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Essays on International Law and Practice

Essays on International Law and Practice


by

Shabtai Rosenne

LEIDEN BOSTON 2007

This book is printed on acid-free paper. A Cataloging-in-Publication record for this book is available from the Library of Congress.

ISBN

978 90 04 15536 7

Copyright 2007 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change.
PRINTED IN THE NETHERLANDS

CONTENTS

Preface .............................................................................................. Acknowledgments ............................................................................ Documentation ................................................................................ 1. Acccepting The Hague Prize 18 June 2004 .......................... INTERNATIONAL LITIGATION AND COURTS 2. The President of the International Court of Justice .................. 3. A Role for the International Court of Justice in crisis management? .................................................................... 4. Article 95 of the Charter revisited ............................................ 5. Article 27 of the Statute of the International Court of Justice revisited .......................................................................... 6. International Court of Justice: Practice Direction on Agents, Counsel and Advocates .............................................................. 7. Article 31 of the Statute of the International Court of Justice revisited: the Judge ad hoc ............................................ 8. Article 59 of the Statute of the International Court of Justice revisited .......................................................................... 9. The framework agreement as the basis for the jurisdiction of the International Court of Justice and some problems of language ................................................................ 10. Unilateral applications to the International Court of Justice: history revisited ............................................................ 11. The General List of the International Court of Justice ........................................................................................ 12. The Secretary-General of the United Nations and the International Court of Justice .................................................... 13. Visit to the site by the International Court .............................. 14. Fact-nding before the International Court of Justice ............... 15. Controlling interlocutory aspects of proceedings in the International Court of Justice .................................................... 16. Counter-Claims in the International Court of Justice Revisited .................................................................................... 17. The Jaffa-Jerusalem Railway arbitration (1922) ........................

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17 35 65 81 97 105 129 161 171 197 209 221 235 251 267 295

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CONTENTS

18. Some points of contact between the International Criminal Court and the International Court of Justice ............ 19. The jurisdiction of the International Criminal Court .............. 20. Antecedents of the Rome Statute of the International Criminal Court .......................................................................... THE LAW OF TREATIES 21. Reections on automatic treaty succession ................................ 22. What is a treaty? A signatorys intentions Qatar v Bahrain ........................................................................ 23. When is a nal clause not a nal clause? .................................. 24. On multilingual interpretation .................................................. THE LAW OF THE SEA 25. The United Nations Convention on the Law of the Sea, 1982: the Application of Part XI: an element of background ................................................................................ 26. The United Nations, the oceans and some geography .................................................................................. 27. Historic waters in the third United Nations Conference on the Law of the Sea ............................................ INTERNATIONAL RESPONSIBILITY 28. Breach of treaty in the codication of the law of State responsibility .................................................................... 29. State responsibility: festina lente ................................................ 30. Decisions of the International Court and the law of State responsibility .................................................................... MISCELLANEOUS 31. The role of controversy in international legal development .............................................................................. 32. Codication revisited after fty years ........................................ 33. Three central elements of modern international law ................

353 367 391

425 435 445 449

457 469 497

515 533 543

559 599 621

CONTENTS

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34. Self-defence and the Non-use of Force: Some Random Thoughts .................................................................................. 35. Israel: some legal aspects of the transition from Mandate to Independence: December 194715 May 1948 ......

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PREFACE

This collection is a continuation of the collection of my essays published in 1993 under the title An International Law Miscellany. It consists of a number of my scattered essays published between 1992 and 2005 in various Libri Amicorum and Festschriften, together with a few taken from periodical literature of the period. As before, the essays are mostly reproduced as written with occasional editorial changes designed to include essential up-dating. The Publishers made it possible to bring in necessary allusions to the judgment of the International Court of Justice (ICJ) of 26 February 2007 in the Application of the Genocide Convention case, which was relevant to several of the essays in this volume. Again it gives me pleasure to express my appreciation to the publishers Martinus Nijhoff of Leiden, the Netherlands, and to their staff for their cooperation, in particular Ms. Annebeth Rosenboom. I also wish to thank the editors of the various publications and periodicals for permission to reproduce this material here. In the title to this collection, Essays on International Law and Practice, the and is conjunctive, not disjunctive. It is designed to indicate the creative application of the law, with special attention to international litigation practice in some of its especial manifestations. By international litigation is meant in particular litigation between States, whether in one of the current standing international tribunals, the ICJ and the International Tribunal for the Law of the Sea (ITLOS), or in international arbitration proceedings between States before an ad hoc body formed especially to deal with a single case and applying judicial techniques. Experience goes to show that from the professional point of view there is no real difference between these different forums. We can nd evidence of this in the frequent appointment of serving or former members of the ICJ and of ITLOS as members of an arbitration tribunal, and the designation of the President of ITLOS as the residual appointing authority for arbitrations conducted under Annex VII, article 3, of the Law of the Sea Convention of 1982. The only apparent difference is that in the standing courts and tribunals all the principal participants, the judges, the registrar, and counsel appear garbed in out-dated gowns and jabots serving no obvious purpose while in arbitration proceedings all concerned appear in the dress that is appropriate for the twenty-rst century. I have therefore been free in using both types of litigation as sources for my work. Beth ha Kerem, Jerusalem February 2007 Shabtai Rosenne

ACKNOWLEDGMENTS

The articles in this volume were previously published as listed below. The author gratefully acknowledges permission to reprint them here. 2 The President of the International Court of Justice, Fifty Years of the International Court of Justice, Essays in honour of Sir Robert Jennings (1995), pp. 406423. Cambridge University Press. 3 A Role for the International Court of Justice in Crisis Management?, State, Sovereignty and International Governance 195219 (2002). Oxford University Press. 4 Article 95 of the Charter Revisited, Studi di Diritto Internazionale in onore di Gaetano Arangio-Ruiz 13871401 (2004). Ed. Scientica. 5 Article 27 of the Statute of the International Court of Justice, 32 Virginia Journal of International Law 213231 (1991). 6 International Court of Justice: Practice Direction on Agents, Counsel and Advocates, 1 LPICT 223245 (2002). 7 Article 31 of the Statute of the International Court of Justice Revisited, Mlanges en honneur de Nicolas Valticos: Droit et justice (1999), pp. 301317. Pdone. 8 Article 59 of the Statute of the International Court of Justice Revisited, El Derecho internacional en un mundo en transformacin; Liber Amicorum en homenaje al Profesor Eduardo Jimnez de Archaga (M. Rama-Montaldo, ed. 1994), pp. 11291158. Fundacin de cultura universitario, Montevideo. 9 The Framework Agreement as the Basis for the Jurisdiction of the International Court of Justice, O Direito internacional no tercero Milno: Estudios em Homenagem ao Prof. Vicente Marotta Rangel (1998), pp. 6979. Universidad de Chile, Instituto de Estudios internacionales. 10 Unilateral Applications to the International Court of Justice: History Revisited, Liber amicorum Bengt Broms (ILA, Finnish Branch, 1999), pp. 447481. ILA Helsinki.

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ACKNOWLEDGMENTS

11 General List of the International Court of Justice, Theory of International Law at the Threshold of the 21st Century: Essays in honour of Krzysztof Skubiszewski, pp. 805816 (1996). Kluwer Law International. 12 The Secretary-General of the United Nations and the Advisory Procedure of the International Court of Justice, International Law, Theory and Practice, Essays in honour of Eric Suy, pp. 707717 (1998). Kluwer Law International. 13 Visit to the Site by the International Court, Liber Amicorum Judge M. Bedjaoui, pp. 461473 (1999). Kluwer Law International. 14 Fact-nding before the International Court of Justice, International Law and The Hagues 750th Anniversary (W.P. Heere, ed. 1999), pp. 4559. Asser Institute. 15 Controlling Interlocutory Aspects of Proceedings in the International Court of Justice, 94 AJIL 307317 (2000). 16 Counter-claims in the International Court of Justice revisited, Liber amicorum In memoriam of Judge Jos Mara Ruda (2000). 17 The Jaffa-Jerusalem Railway Arbitration (1922), The Israel Yearbook on Human Rights, vol. 28 (1998), pp. 239286. 18 Some Points of Contact between the International Criminal Court and the International Court of Justice, Liber Amicorum I.P. Blischchenko (in the press). Martinus Nijhoff Publishers. 19 The Jurisdiction of the International Criminal Court, Yearbook of International Humanitarian Law, vol. 2 (1999), pp. 119141. Asser Press. 20 Antecedents of the International Criminal Court revisited, International Law across the Spectrum of Conict: Essays in honour of Professor L.C. Green On the Occasion of his Eightieth Birthday, 387420 (1999). Naval War College RI. 21 Automatic Treaty Succession, Essays on the Law of Treaties in honour of R.W. Vierdag 97106 (1997). Kluwer Law International. 22 The Qatar/Bahrain Case: What is a Treaty? A Framework Agreement and the Seising of the Court, The Leiden Journal of International Law, vol. 8 (1995), pp. 161182.

ACKNOWLEDGMENTS

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23 When is a Final Clause not a Final Clause?, 98 AJIL 546549 (2004). 24 On Multilingual Interpretation 6 Israel Law Review 360366 (1971).

25 The United Nations Convention on the Law of the Sea, 1982: The Application of Part XI: An Element of Background, Israel Law Review, vol. 29 (1995), pp. 491505. 26 The United Nations, the Oceans and Some Geography The United Nations at Work (M. Glassner, ed.), pp. 285311 (1998) Praeger, a revised and expanded version of Geography in International Maritime-BoundaryMaking, Political Geography; vol. 15, pp. 319334 (1996). 27 Historic Waters in the Third United Nations Conference on the Law of the Sea; Reections on Principles and the Practice of International Law: Essays in honour of Leo J. Bouchez 191203 (2000). Martinus Nijhoff Publishers. 28 Breach of Treaty in the Codication of the Law of State Responsibility, El derecho international en los albores del siglo XXI: homenaje al profesor Juan Manuel Castro-Rial Canosa 583598 (2002). Trotta. 29 State Responsibility Festina Lente, 75 BYIL 363371 (2004).

30 Decisions of the International Court of Justice and the New Law of State Responsibility, International Responsibility Today 297309 (2005). Martinus Nijhoff Publishers. 31 The Role of Controversy in International Legal Development, The Structure and Process of International Law (R.St.J. McDonald. ed. 1983), pp. 11471183. Martinus Nijhoff Publishers. 32 Codication revisited after 50 Years, Max Planck Yearbook of United Nations Law, No. 2 (1998), pp. 122. Kluwer Law International. 33 The Three Central Elements of Modern International Law, Hague Yearbook of International Law (2004) 313. Martinus Nijhoff Publishers. 34 Self-defence and the Non-use of Force: Some Random Thoughts, Selfdefence in National and International Law: Reections and Materials, Asser Press (forthcoming 2007).

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ACKNOWLEDGMENTS

35 Israel: Some Legal Aspects of the Transition from Mandate to Independence: December 194715 May 1948, Israel among the Nations International and Comparative Law Perspectives on Israels 50th Anniversary (A. Kellerman et al. eds., 1998) pp. 311342. Kluwer Law International.

DOCUMENTATION

As far as possible documents are cited by reference to their printed versions and ofcial number. Most modern documents are available on an appropriate website. Treaties are cited by reference to one of the standard treaty collections. Treaties that have been registered with the UN but not yet printed in the UNTS are cited by reference to their registration number. Decisions of the Permanent Court of International Justice, the International Court of Justice, and the International Tribunal for the Law of the Sea are cited by reference to their ofcial reports or to their website. Resolutions of standing organs of international organizations are taken from the Ofcial Records or from the website. The principal websites are as follows, all http//: ICJ www.icj-cij.org (also through the UN home page) ILC www.un.org/law/ilc/ (also through the UN home page) ITLOS www.itlos.org (English) www.tidm.org (French) (also through the UN home page) PCA www.pca-cpa.org PCIJ through the ICJ home page UN www.un.org (in all the ofcial languages) UNAT United Nations Administrative Tribunal, through the UN home page Institute of International Law www.idi-iil.org * * * Law and Practice
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Sh. Rosenne, The Law and Practice of the International Court 19202005 (Martinus Nijhoff Publishers, Leiden, 2006).

1
ACCEPTING THE HAGUE PRIZE 18 JUNE 2004

Mr Mayor and Aldermen of the City of The Hague, Mr President and Members of the International Court of Justice and of other international courts and tribunals represented here, Excellencies members of the diplomatic corps, members of the Nominating Committee and the Board of the Hague Prize Foundation for International Law, members of Academe, ladies and gentlemen, friends. I must rst, in all humility, express my deep sense of gratitude at the great honour done to me by the Nominating Committee of the Stichting Haagse Prijs voor Internationaal Recht under the distinguished chairmanship of His Excellency Judge Peter Kooijmans of the International Court of Justice, and by the Board of the Hague Prize Foundation under the chairmanship of Professor Judge P.J. Kapteyn, formerly a member of the European Court of Justice and now of the University of Amsterdam. I greatly appreciate the unanimous decision of the jury and the very kind words it contains in my regard. My rst duty after that is to place on record my debt to three persons, without whom I do not think I would be here today. The rst is my wife, who unfortunately cannot make the journey to The Hague. She provided and maintained the conditions, the environment, and the atmosphere which made it possible for me to do all my work, both ofcial and academic. I sometimes think that she knows more of the practical application of international law and of the workings of diplomacy than many of the students that come to see me. The second two are my mentors, the late Sir Hersch Lauterpacht of Cambridge, and the late Dr Jacob Robinson of Vilna and, escaping the Holocaust, New York, two unlikes, but with one major characteristic in common.1 They were both international lawyers with one foot deeply in the world of practice, including practice in the strenuous conditions of the War, and the other foot in the academic side of the law, teaching what they learned from practice, and practising what they learned from teaching. I would also like to take this opportunity to express my deep

For my appreciation of these two mentors, see Sir Hersch Lauterpachts Concept of the Task of the International Judge, and Jacob Robinson, 28 November 188924 October 1977 in Sh. Rosenne, An International Law Miscellany 781 and 831 (1993).

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appreciation for the two Dutch publishing houses that have published most of my important works, rst the House of A.W. Sijthoff of Leiden, and more recently Martinus Nijhoff, now also of Leiden. My rst contact with Sijthoff goes back to the early 1950s, and I have always been grateful to them for the encouragement that they gave me then to write and publish my rst major book on the International Court of Justice. It has for me been a privilege and pleasure, and very instructive, to work with these two great Houses, and witness rst hand the transformation of printing from monotype and tons of boiling lead to modern clean computerized printing. So I start with a deeply felt Thank you all, and may the Hague Prize Fund continue to prosper and offer encouragement to those who devote their lives and capabilities to the advancement of international law. This has brought me into closer contact with the reality of true Dutch liberalism to which Hugo Grotius gave an early expression in his important document for the newly liberated Dutch States General in 1615. That was his Remonstratie nopende de ordre dije in de Landen van Hollandt ende Westvrieslandt dijent gestelt op de Joden2 laying out the conditions under which Jews, then eeing from the Inquisition in Spain and Portugal, could be allowed to settle in the Netherlands, newly liberated from Spanish rule. Indeed, one of my own ancestors directly beneted from that, and was involved in the establishment of the Jewish community in Amsterdam and the building of the famous Portuguese Synagogue there (he was also involved in the excommunication of Spinoza perhaps a more controversial side of his activities).3 So I can claim a distant connection with this country. Early in the days of the present International Court of Justice the Brazilian Judge Carneiro in one of his opinions rightly remarked that it was inevitable that every one should retain some trace of his legal education and former legal activities. That was justied.4 He was speaking about what was expected of the members of the Court, but I think that his remarks are fully relevant to all who practice as international lawyers. International law is an independent and self-standing branch of law and of jurisprudence, of legal science and legal philosophy, but it cannot be, it must not be separated from law as a whole, and the international lawyer cannot throw off his initial training or cultural upbringing, nor is he or she expected to do so. You will therefore, I venture to think, not be surprised if I draw my inspiration for this afternoons remarks from my Jewish upbringing.

2 3

Edition after the manuscript in the Livrana D. Montezinos, published with an introduction by J. Meijer, Amsterdam, 1949. Spinoza has been quoted at least once in an opinion in the International Court of Justice. That was by Judge ad hoc Rigaux in para. 32 of his individual opinion in the Oil Platforms case, ICJ Rep. 2003, 161, 389. Dissenting opinion in the Anglo-Iranian Oil Co, case, ICJ Rep. 1952 at 161 (para. 14).

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My prime inspiration, ever since I rst became interested in the International Court during a dark period of the Second World War and its traumatic impact on all who had anything to do with it, is the little text, only three words in the original Hebrew, in the Book of Deuteronomy which reads in translation: Justice, justice, shalt thou pursue (Deut. 16:20). Many commentators have asked why Holy Writ repeats the word Justice and as many replies as commentators have been given. I like the explanation that is quoted in the Commentary of the thirteenth century Catalonian Rabbi Moses the son of Nahman (Nahmanides) (11941270). He gave as his opinion that the intention behind the repetition of the word Justice is to teach that one should pursue justice always, whether one stands to win as much as whether one stands to lose. If that is an ideal for human beings, it should equally be an ideal for those human beings who are responsible for conducting public affairs, including the affairs of state. International law, like all law, is addressed rst and foremost to human beings who are in the special position of directing the affairs of state and being responsible for them. I do not have to say here that the world is still far from that. However, the ideal is there, and the different courts and tribunals that have come into existence around the world, especially during the twentieth century with all its calamities, for different purposes and for different sections of humanity, several of those courts and tribunals with their seat here in The Hague, are evidence that somewhere in the human conscience this idea is taking root. I owe my introduction to the international court to a bookseller friend in what was once a famous law bookshop in Chancery Lane in London, Sweet and Maxwells. He knew my tastes. I visited him during a leave, shortly before D-Day, and he showed me what had just arrived somehow in London, Hudsons masterly work on the Permanent Court of International Justice. It was under that inspiration and, I might add, with Hudsons encouragement, that I devoted a great part of my studies to the International Court of Justice and more generally to the problems of international litigation. Likewise, it is from that short passage in Deuteronomy that I have reached the conclusion, and the challenge, that I am shortly going to lay before you. The second area in which I have devoted a great part of my life, both as a matter of practice and in an academic sense, is the law of treaties. Here again the Book of Deuteronomy (23:24) supplies some inspiration when it tells us: That which is gone out of thy lips thou should observe and do, four words in the original Hebrew, and three in the equally lapidary common Latin expression which you all know, Pacta sunt servanda. Here alongside practice in my ofcial duties, my membership in the International Law Commission was the driving force. It was a great privilege to have been a member of that Commission when it completed its work on the law of treaties, the central element of all modern international law. This too will link up with the challenge that I am shortly going allow myself to lay before you.

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Thirdly, I come to the law of the sea. One of the rst problems to cross my desk early in 1949, and never to leave it, was the question of freedom of passage through what at that time was an unknown strait, the Strait of Tiran and the Gulf of Aqaba incidentally today a major waterway giving access to an important part of the Arab world from the Indian Ocean and elsewhere. That strait and that Gulf are together an arm of the Red Sea, and the crossing of the Red Sea has always been of special signicance in Jewish tradition, consummated in the Ode to the Sea in Exodus, chapter 15, which is recited every day of the year in the Jewish liturgy. This led to my participation in all the major United Nations Conferences on the Law of the Sea, ve in number, between 1955 and 1995. They are the Rome Conference of 1955, largely overlooked but perhaps one of the most important, the three UN Conferences on the Law of the Sea covering the whole period from 1958 to 1982, and the Straddling Stocks Conference of 1992 to 1995. This participation was one of my professional duties, very hard work but pleasant and rewarding, and leading to many personal friendships the world over, and to a much deeper understanding of the law, how to draft it and how to apply it. I am mentioning this because if in appearance my contribution to international law is measured only in terms of books and articles and other writings covering a wide range of topics, these in their turn are not theoretical examinations of topics that at times might seem esoteric and removed from day to day realities, but to the contrary, they are closely related to my daily practice as an international lawyer. This is what is leading me to what I think should be seen as the central issue in this speech, the place of international law in the daily life of the average human being. It is not sufciently realized by the general public or indeed by the average practitioner of law in any country just to what extent international law regulates the daily activities of every man, woman and child, mostly today through the operation of an international treaty and of national legislation based on and deriving from an international treaty. In todays international law the treaty is from a quantitative point of view the primary source of most of the day-to-day rules of international law. When you wake up in the morning and spray yourself with some toiletry, the chemical which moves that spray is governed by international law. When you take a cup of coffee with your breakfast, international law more than one branch of it lays down how that coffee reaches your table. When you drive your car to work, the road signs on which the discipline of the road and your personal safety depend are governed by a major international treaty. At the same time, the exhaust which your car may emit is also regulated by international law, the protection of the environment being now a major international preoccupation involving serious conicts of interest reconciled only with difculty. I could go on repeating this indenitely, for almost every activity that you undertake during the following twenty-four hours. International law even

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has something to say to help you to sleep peacefully, the international protection of the environment now extending to the prevention of pollution by the noise of aircraft. My journey from my home to here involved regulations and agreements laid down by a series of international organizations and bilateral agreements between governments, together with at least one non-governmental organization. Let me name them: the International Civil Aviation Organization regulating civil aviation generally, including the requirements for an international airport, for trafc separation, for the maintenance and regulation of air corridors, for overying national territory and for ying over the high seas (overight being one of the freedoms of the seas regulated by the new law of the sea), the International Telecommunication Union ensuring safe radio communications to guide the aircraft throughout the ight, the International Labour Organization governing the working conditions of the aircrew, the World Meteorological Organization consolidating the availability and diffusion of weather information essential for a safe ight, the World Health Organization which lays down the regulations essential to prevent the transmission of dangerous diseases by insects inside aircraft or transmitted through passengers and crew, bilateral agreements allowing the scheduled ights point to point from one country to the other, and as a Non Governmental Organization the International Air Trafc Association (IATA), a body that has been incorporated by a Statute of the Canadian Parliament, concerning itself with the mutual relations of commercial airlines. And if you take the trouble to read the small print on your ticket, you will nd that by contract with the carrier, you have voluntarily subjected yourself to a major international treaty, the famous (or perhaps infamous) Warsaw Convention of 1929, now to be replaced by the Montreal Convention of 1999. True, you will not come into direct contact with most of these, except Heaven forbid in the event of an accident, in which case the Warsaw/ Montreal Convention will become of direct relevance and may involve difcult litigation in national courts. This illustrates how globalization is affecting the law, like much else. I could go on like this indenitely, but I want to mention one very specic situation that of a person who runs foul of the law when in a foreign country. Criminals, like all human beings, have rights under international law, and here I am not speaking of that broad area usually known as human rights law, or about the difculties involved in extradition. It is not always known by attorneys dealing with a case that a criminal abroad has very specic rights under international law to consular protection and how to obtain it. This has been the subject of three major cases recently in the International Court of Justice, and an earlier case in the regional Latin American Human Rights organs. The International Court has been quite specic in explaining how these rights, set out in an international treaty, are to be applied on the level of an individual criminal case. When I read the pleadings in those cases I have been struck by the fact that frequently the accused person was

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represented by a court-appointed attorney, who in many of these cases did not know of these treaty rights given to the person he was supposed to represent in the judicial proceedings. In some of those cases the prosecution team was equally unaware of this. As a result those treaty rights were not invoked when they should have been. That was to lead to a series of international disputes discussed at the highest level in one of these cases even at head of state level before being sent to the International Court for a binding decision and for general clarication of the legal position in this type of case. That is one example. Now let us look somewhere else. I have followed fairly closely the work of the International Criminal Tribunal for the Former Yugoslavia. Some senior members of the Dutch Bar have appeared in one or two of the important cases that have come before that Tribunal. I am not going to talk about its substantive work. That is a matter for experts in international criminal law. What has struck me about the cases that have come before that Tribunal is how ordinary people, with ordinary jobs, suddenly found themselves, in circumstances over which they had no control, in a position in which they could perform horrible acts of violence and misconduct on other human beings. Those actions were so serious that the international community, represented through the Security Council, could not let them go unrequited. At considerable expense it set up an ad hoc international criminal tribunal to which these people would have to answer for their deeds. We have seen similar happenings in other parts of the world. There too, except for the terrible genocide in Rwanda where also the Security Council established a special international criminal tribunal, novel but appropriate arrangements have been made for criminal proceedings to be brought in specially created criminal jurisdictions involving a carefully controlled intermixture of national and international elements to try persons charged with responsibility for criminal acts, regardless of their ofcial position in the organization of the State or other entity to which they belonged the special court in Sierra Leone for example. Now we have the permanent International Criminal Court, also with its seat here in The Hague. Whatever criticisms may be made at this or that provision of the Rome Statute and with respect I for one think that it is open to serious criticism the fact remains that this Court is in existence and is working and already has had cases referred to its institutions. One of its special features is the principle of complementarity, that the national courts come rst. That means that any attorney who might be faced with a possible international criminal case must be alert to this if the client is to receive proper legal advice. So must the national judges and the national prosecution. All this has far reaching implications. It means that in one way or another any person whether a regular member of an armed force, or a conscript, or a member of an irregular armed force, or in any other capacity who performs acts that can be considered prima facie as violations of what is now frequently called international humanitarian law, mainly the specic

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international crimes enumerated in the Rome Statute and its related documents, can be charged with criminal responsibility under international law. From this, it would appear that any attorney chosen by that person will be faced with difcult problems of international law. The least that can be expected of a practising attorney in that sort of position is that the international law aspects of the case are properly identied, and a competent international lawyer is brought into the case in a proper professional way. However, one need not go as far as that. Perusal of the last twenty or thirty volumes of the International Law Reports will show an extraordinary number of miscellaneous cases in which important and less important issues of international law arose. Two cases involving the criminal law of a country, one of Belgium and one of France, have come before the International Court of Justice. This is different from the three capital punishment cases involving the criminal justice system of the United States of America, where already the court of one of the states concerned has adapted its decision to what the ICJ has formulated.5 The International Court wisely refuses to act as a court of criminal appeal. However, I do have an impression that it might in some way see itself as a kind of court of cassation and return the case to the national authorities for them to deal with by means of the own choice, in light of the Courts statement of the legal position. The new law of the sea gives ship-owners and cargo-owners rights against a State other than the ag State, a matter of particular importance to the shing community, and the International Tribunal for the Law of the Sea has been established especially to enable the individuals concerned to vindicate their rights in an appropriate international court. Here the French Court in the Island of Reunion, far away in the Pacic, has set an excellent example by adjusting its decisions to the rulings of ITLOS. The internal courts of every country can be faced in routine disputes with questions of diplomatic or consular immunity or what is new, the immunity of international organizations and their staff, for instance in connection with the lease of a building for an embassy or for the residence of the diplomatic staff, or in connection with some forms of taxation. France has had cases of whether the pensions of retired international civil servants (including, I might add, one former Registrar of the International Court of Justice) who have chosen to spend their declining years in France, are subject to any form of taxation. One of these cases was decided in a competent French court,6 while others went to an international arbitration in a form of class action.7 In New York, issues of parking problems have become so serious that a suggestion has been oated that the

5 6 7

New York Times (electronic edition), 13 May 2004. Case of Aquarone, summarized in 92 AJIL 764 (1998). Summarized in 98 AJIL 163 (2004).

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International Court should be asked for an advisory opinion on the consistency of the Citys municipal parking laws with international law.8 From what I can see, I would not be surprised if one day a similar problem could arise here (if it has not already) and in other headquarters cities. One simply never knows when a given situation in which an individual may nd himself or herself will involve questions of international law. All this leads to only one conclusion. Any individual, and any attorney, can suddenly nd himself or herself confronted with international law and international justice, whether that is known or not. This raises a very fundamental question: Is the legal profession as a whole, in any country of the world, qualied today to deal competently with this type of question? Is the average attorney qualied even to identify the existence of an international law problem in the circumstances in which professional advice and action is required? In my experience this goes not only for public international law but just as much for private international law, important aspects of which are regulated by international treaty today under the auspices of the Conference on Private International Law, also with its seat here in The Hague. After much thinking about the matter and reading through the International Law Reports and the reports of other courts and tribunals, I have to say that I have come to a negative conclusion. On the whole, the legal profession, in virtually every country of the world, is not properly equipped to deal with international law problems with which an individual client may be confronted, and the public is entitled to protection against that. I do not think that an attorney can be fully qualied if he or she is unable to identify an international law element in a clients problem. I do not expect every attorney to be able to solve that international law problem. That would certainly be asking too much. But the least that can be expected is that the attorney will identify that the international law problem is part of the complex to be resolved, be it a civil case or a criminal case. One of the early resolutions of the United Nations General Assembly, resolution 176 (II) of 21 November 1947, invited member States to encourage the teaching of international law. This has not had much effect as there was no real follow up until 1993 when the General Assembly started to concern itself with assistance in the teaching, study and dissemination and wider appreciation of international law. This item is now regularly on the agenda of the Sixth (Legal) Committee of the General Assembly. At the same time the two premier organizations devoted to international law, the Institute of International Law and the International Law Association, have concerned themselves with this. In 1979 the Institute of International Law, with the

Report of the Committee on Relations with the Host Country, GAOR, Fifty-eighth Session Sup. No. 26 (A/58/26) para. 43 (2003).

1. THE HAGUE PRIZE, 2004

Czech professor Zourek assisted by Professor Pierre Lalive of Geneva as rapporteurs, at its Athens Session adopted its rst major resolution on the teaching of international law.9 It took the matter up again in the 1990s under the guidance of our friend and a main inspiration for the inauguration of the Hague Prize, Professor Ronald Macdonald of Halifax, Nova Scotia. This led to the Strasbourg resolution of 1997, to which I will return.10 For its part the International Law Association has not yet completed its study of the topic. A preliminary report was presented to its New Delhi Session in 2002,11 and I believe that a further report is to be submitted to the Associations Berlin Session this coming August. It is probably too late for the competent international commission to deal adequately with this suggestion of mine, but I do express the hope that the Commission will nd an opportunity to bring this suggestion to public notice for further detailed examination and that the ILA will give proper consideration to the ideas that I am expressing here. The resolutions of the General Assembly have to be read in the context of the Charter and they are based on an assumption that wider knowledge of international law would come to constitute a contribution to the maintenance of international peace and security. To some extent the Athens resolution of the Institute of International Law follows along the same track. At the same time it commenced the process of broadening the purposes for which the teaching of international law is important, and I suppose bringing it down from that lofty pedestal and drawing it closer to the realities of human life. The second recital of the resolution adopted at Athens reads:
Mindful of the expanding internationalization of social relationships and the growing impact of international factors on the most diverse aspects of the lies of individuals, peoples and States[.]

The Strasbourg resolution of 1997 carries this further:


Emphasizing that international law increasingly affects the content of municipal law and that knowledge of international law is necessary to discharge a wide range of professional responsibilities at the national level and the responsibilities of individuals in an increasingly cohesive international society: Reafrming that, in the conditions prevailing in the present world, legal education is incomplete if it does not cover the basic elements of public and private international law[.]

9 10 11

58II Annuaire de lInstitut de Droit international 204 (1979). 67I ibid., 126, 67II ibid., 83, 466 (1997). ILA, Report of the Seventieth Conference 687 (2002).

10

1. THE HAGUE PRIZE, 2004

Both those resolutions, and so far the work of the competent committee of the International Law Association, seem to be addressed primarily to the teaching of law at university level. I think that the matter should be taken further. The broad aim should be shifted from academic law to practical and applied law, from the idea of producing specialists in international law to that of ensuring that every practising attorney knows enough about international law so as to be able to identify it when a problem crops up, and handle it accordingly. In brief, I think that the time is coming, if it has not already arrived, when both public international law and private international law should be compulsory subjects for entry into the profession, for membership in every bar. Both public and private international law are as much part of daily bread-and-butter law as the law of contracts, the law of property, of civil wrongs, of criminal law, of commercial law, of family law and any form of public law. The members of the public who for whatever reason require the services of a qualied attorney are entitled and should be able to rely on the attorneys competence to deal with the matter if it involves a question of international law. I am not thinking of anything elaborate. I am not thinking that qualication for the national or local bar is in itself qualication as an international lawyer, any more than the bare professional qualication is in itself an indication of specialization in any particular branch of the law. For qualication as a member of the bar, the candidate should have some knowledge of the international law of treaties, alongside knowledge (one would hope) of the national law of treaties probably acquired as part of acquaintance with constitutional or public law more generally. Here, the Vienna Convention on the Law of Treaties of 1969 provides a useful general guide. That Convention can be regarded as a template for anything to do with the international law of treaties. Here I must utter a word of caution. It is often overlooked that the Vienna Convention is only concerned with the international law of treaties. It leaves untouched the internal law of every country. The International Law Commission made this perfectly clear in paragraph (15) of its commentary on Article 2 of its draft articles on the law of treaties of 1966, and nothing has occurred since to change this.12 The practising attorney does not require a detailed knowledge of the international law of treaties. But some knowledge of its basic elements, and in particular of the problems of interpretation of a treaty (alongside national rules for the interpretation of a national law giving effect to a treaty) is, I believe, today essential. Every practising lawyer should be required to demonstrate a basic knowledge of the international treaty, where to nd it in a national or an international collection of treaties,

12

Report of the International Law Commission on the work of its eighteenth session, (A/6309/Rev.1), Part II, Yearbook of the International Law Commission 1966, vol. II.

1. THE HAGUE PRIZE, 2004

11

how to interpret and apply an international treaty; a basic knowledge of the international system of courts and arbitration insofar as an individual person may require recourse to it, including, for instance, the ICSID system if the attorney is going to become involved in international investments, the human rights systems which can arise for any attorney at any time and at any place, and basic elements of international criminal law and jurisdiction. I was very impressed when I read in a recent publication on human rights of the Council of Europe that in the four months of November, December 2003, January and February 2004, the European Court of Human Rights dealt with no less than 7,315 cases (of which, however, 6,255 were declared inadmissible and a further 177 applications were struck off the list).13 This really is a formidable number of cases in a part of the world which is really the parent of the conception of individual human rights against the allpowerful State, where national systems of administration and of criminal justice contain many safeguards to ensure the protection and the application of the rights of the individual. It also shows how all attorneys should be able to read properly any international text, both a treaty or a resolution, and an international judgment. It is not enough to pick out nice turns of phrase without some knowledge of their proper place not only in the document in question, but in international law as a whole. Here I should add that the attorney should be alert to the language problem in reading any international text, especially a judgment and a treaty written in more than one language. I am not asking that the attorney should be an accomplished linguist, although a generation ago most competent international lawyers were at home in two or three languages, especially those of neighbouring States and above all French. Sadly, this is not so common today. I also think that every qualied attorney should have a basic knowledge of where to nd international law, the main textbooks in the language of the Bar to which he or she aspires, the principal websites and how to use them and the main collections of international judgments and arbitral awards. I do not expect the average attorney to be concerned with the details of the law and the procedure. That is for the specialist in international law, in the same way that one goes to a specialist for any intricate question of any branch of the national law. I also think that a practising attorney should have general familiarity with the United Nations system as a whole, and if he or she intends to work in a specic sphere of human activity, knowledge of the international organizations operating in that sphere should be included. When I was at Amsterdam University giving an advanced course in international

13

Council of Europe, Human Rights Information Bulletin No. 61, November 2003February 2004 p. 2.

12

1. THE HAGUE PRIZE, 2004

law, I was struck by the aspirations of some of the students (all post-graduate students). Some wanted to work in their national civil service, some in an international civil service, but two or three in competent and powerful idealistic non-governmental organizations, especially Greenpeace. This came as a surprise to me, I must admit. In short, I am making a plea that a broad swath of international law should be required not only in any university legal education, which is the main thrust of the different resolutions that I have mentioned, but in parallel to that should also be required as part of the legal training in applied law of every qualied attorney. The general public, which may need to have recourse to an attorney for whatever reason, is entitled to reasonable protection should the question also be one in which international law has something to say. That would be the professions response to the globalization of the law. Here is the challenge that I am throwing out. If the City of The Hague is the legal capital of the world, with its ne library and the encouragement of the Hague Prize in International Law, I would like to see it throw its weight behind any move to make this kind of general knowledge and appreciation of international law a requirement for admission to the national bar. I go further. As I mentioned, the international committee of the International Law Association on the Teaching of International Law has not yet completed its work and I would like to suggest that the Dutch representatives look into this suggestion of mine and bring it up. I would like to urge the distinguished and learned members of the Nominating Committee of the Hague Prize to think about my suggestion, and no doubt improve on it, and try and push it forward in their own circles. I would like to urge the Board of the Foundation, with its eminent Dutch personalities, to see if they can undertake at least two propositions. One is to see if there is any chance of the Dutch legal profession assuming a leading role, by insisting on some international law, public and private, as part of the professional qualication for all members of the Dutch Bar (if that is not the case already). The second is to urge the Dutch authorities to pursue this idea in different international organizations, governmental and non-governmental, concerned in any way with education, and especially legal education, that they should think along these lines. I have in mind particularly UNESCO and the UN, and the International Bar Association. The annual discussion in the legal committee of the General Assembly on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law provides an excellent forum at least for trying this idea out, if not leading to a formal resolution of the General Assembly calling for what I am suggesting. The previous Legal Adviser of the United Nations introduced the practice of convening a meeting of all legal advisers of Foreign Ministries during the session of the General Assembly, and I hope that his newly appointed successor will continue this practice and give it a more positive

1. THE HAGUE PRIZE, 2004

13

content. I believe that the Legal Adviser of the Dutch Ministry for Foreign Affairs usually attends this. I wonder if he could be prevailed upon to pursue this idea of mine with his colleagues. There will, of course, be resistance and strong opposition to this suggestion. I detect in the world of today swelling tides of isolationism and nationalism not conducive to any proposal to spread concepts of enlightened internationalism, of international social solidarity. Reasons of State are occupying a superior place in national decision making, and international political organs are over zealous in making one-sided pronouncements about what action is and what action is not lawful, although the Charter only empowers the International Court to make such pronouncements. This is bringing international law into disrepute. That must be resisted. If as I am convinced international law must become a compulsory subject for membership in every national Bar, sufcient pressures must be built up and maintained to keep it so, and to ensure that a good faith application of international law becomes part of decision making of States and of international organizations. Mr Mayor and distinguished friends, In making this suggestion, in daring to put this challenge forward today, I am not allowing any idealism to blind me to the realities which surround us all. I am not making any wild claims that international law is a cure for the worlds ills and misfortunes. While I believe in the completeness of international law, in the sense that the so-called non liquet is not an acceptable answer for any international lawyer to give, I am very aware of the laws limitations. It is relatively static. Always a matter of international compromise, all its black letter texts, often in several languages, possess an in-built ambiguity which only practice or an authoritative international judicial opinion can resolve. A recent judgment of the International Court devoted no less than seven paragraphs to a discussion of what you might think is a simple English expression, without delay, and its equivalent in ve other languages. That very question could, and perhaps should, have been raised very much earlier in the domestic legal proceedings that preceded the international litigation. I must repeat that I am not here making any extravagant claims for international law as the cure for all the worlds ills, and sometimes the lawyer, like Admiral Nelson is reputed to have done, must put his telescope to his blind eye. But before doing that the lawyer, like the admiral, must know what he or she is doing and be able to justify that in a convincing way. My suggestion is motivated exclusively by a series of practical considerations relating, above all, to human welfare and what the average man or woman is entitled to expect when approaching a duly qualied attorney for legal advice. In my line of thought, an attorney who has not reached the required standard of the Bar is not, today, duly qualied, considering how modern international law penetrates into every nook and cranny of everyday life, as I have endeavoured to show.

14

1. THE HAGUE PRIZE, 2004

Mr Mayor and distinguished members of the Board and of the Nominating Committee of the Hague Prize Fund, it is time for me to conclude these remarks. I would like to nish with a sentence from the Talmud, which teaches us to be not like servants who work for the sake of receiving a reward, but like those who work not for the sake of receiving a reward.14 That has always been my attitude when serving the law, studying, and writing about the law. Before I sit down I would simply to express once again my very sincere gratitude for the great honour you have bestowed on me, and as this week draws to its end may I wish you all here a very pleasant week end. Thank you.

14

Pirkei Avoth, The Ethics of the Fathers I:3 (my translation). See H. Danby, The Mishnah 446 (Oxford: Clarendon Press, 1933).

INTERNATIONAL LITIGATION AND COURTS

2
THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

Like all collegiate organs, the International Court of Justice is headed by a President. In current practice, there are two patterns for the presidency of collegiate international organs. In most large organs composed of States, such as the General Assembly of the United Nations or a major plenipotentiary conference, the President is normally a member of a delegation from which, however, the Rules of Procedure will exclude him/her. In small bodies, including for this purpose the Security Council (composed of the representatives of States) or the International Law Commission (composed of individuals), the presiding ofcer is chosen according to the stipulations of the constituent instrument (including the Rules of Procedure), but remains a full member of his delegation or a full participant in the body to which he/she belongs, retaining the right to vote. In those circumstances, it is customary for the presiding ofcer to speak last: voting is usually, in this type of organ (but not in the International Court), conducted instantaneously, and today frequently through electronic means. The President of the International Court belongs to this second category. Article 21 of the Statute requires the Court to elect its President and VicePresident for three years; they may be re-elected. A contemporary interpretation for this three-year term explains:
It was felt that, given the immense prestige of the position of president of the court, the power which he might exercise and the inuence which he might bring to bear upon his colleagues, it was inadvisable to elect him for the full term of his ofce, that is, nine years. One year, on the contrary, seemed too short, inasmuch as the president is to reside at the seat of the court. A period of three years was adopted as a compromise, as an inducement to merit continuance in ofce at the expiration of his term, and of a further term, inasmuch as it is expressly provided that the president and vicepresident may be reelected.1

J.B. Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists: Report and Commentary 78 (1920). To be President had been a male prerogative until the year 2006, when the Court elected as President Judge Dame Rosalyn Higgins, who was the rst woman to be elected a Member of the Court. Over the years the practice has developed of rotating the presidency among the principal legal systems represented on the Court.

18

INTERNATIONAL LITIGATION AND COURTS

Since 1945, this three-year term of ofce of the President and Vice-President coincides with the recurrent election of one third of the Members of the Court every third year. Article 22 requires the President (and the Registrar) to reside at the seat of the Court (The Hague). The President presides at all meetings of the Court, directs its work and supervises its administration (Rules of Court, Article 12). By Article 13, paragraph 3, of the Rules, he has to take the measures necessary to ensure the continuous exercise of the functions of the presidency at the seat of the Court. In case of his absence he may, so far as is compatible with the Statute and Rules, arrange for the Vice-President or failing him, the next senior judge, to exercise these functions.2 Article 20 of the Rules gives him the power in case of urgency to convene the Court at any time. By Article 3, paragraph 5, of the Rules, while holding their ofces the President and Vice-President take precedence before all other Members of the Court. When that term of ofce ends, each resumes his place among the Members of the Court according to the general rule of precedence.3 If the President decides to resign from the Court, his decision is to be communicated to the Court (Article 5, paragraph 2).4 Article 6 deals with the powers of the President to apply Article 18 of the Statute, concerning the dismissal of a Member of the Court. The Presidents powers and duties in relation to the Registrar and staff are set out in Articles 22 to 29 of the Rules. Apart from the standard literature on the Court, there is remarkably little writing devoted exclusively to the status and role of the President.5 A brief discussion on the powers of the President when the Court is not sitting took

As an illustration, note the order of Vice-President Oda xing new time limits in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Rep. 1993 470. Under the Rules of 1926 (Art. 2), the retiring President, whatever his seniority under the general rules, took his seat to the right of the President and the retiring Vice-President to his left. This was abolished in Art. 2 of the Rules of 1931. Art. 13 (4) deals with the resignation of the presidency. See S. Torres-Bernrdez, Resignations at the World Court, International Law at a Time of Perplexity 953 (Y. Dinstein and M. Tabory, eds., 1989). On the President of the Permanent Court of International Justice, see R.A. Lienau, Stellung und Befugnisse des Prsidenten des Stndigen Internationalen Gerichtshofes (1938). For a comparison between the President of that Court and the President of the Council of the League of Nations, see D. Avramoff, Le Prsident du Conseil de la Socit des Nations 110 (1932). On the President of the present International Court of Justice, see C. Sirat, Le Prsident de la Cour internationale de Justice, 62 Revue gnrale de Droit international Public 193 (1958); P.C. Spender, The Ofce of President of the International Court of Justice, 1 The Australian Year Book of International Law 9 (1965); M. Zafrulla Khan, The Appointment of Arbitrators by the President of the International Court of Justice, XIV Comunicazioni e Studi: Il Processo Internazionale, Studi in onore de Gaetano Morelli 1021 (1975). Bibliographical information kindly supplied by the Registry of the Court.

2. THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

19

place early during the Preliminary Session of the Permanent Court in 1922. That was before there had been any experience, and before the Court had adopted any of the Rules of Court. The Court decided to treat each particular case as it arose during the drafting of the Rules. It also adopted a decision of principle to the effect that it could confer on the President the right to take interlocutory decisions.6 The Permanent Court established the basic rule that it elects its President by secret ballot. That, the normal rule of international organizations unless the President is chosen by acclamation, now appears in Article 11, paragraph 2, of the Rules. A majority of the Members of the Court composing it at the time, that is 50 per cent plus one, or eight votes if the full complement of Members exists then, is required for the election of the President, a positive requirement introduced in 1978.7 The previous Rules required a majority of the Members of the Court present.8 The reasons for this change, which enhances the general standing of a President elected under these conditions, have not been made public. The election should take place on or as near as possible after 6 February of each three-year cadence of the Court following the triennial election of one third of the Members of the Court (Rules, Article 10). The term of ofce begins on 6 February or on the date of the election if later, and ends when the new President is elected. If a vacancy in the presidency occurs before the expiration of the current term, the Court is to decide whether to ll it for the remainder of the term (Rules, Article 14).9

6 7

PCIJ, Ser. D No. 2, 28. The Advisory Committee of Jurists of 1920 rejected a proposal that the President should be elected by absolute majority. Procs-Verbaux of the Proceedings of the Committee 459 (1920). The Secretariat of the League of Nations advised the Permanent Court that it was free to adopt any method for the election of the President and Vice-President, and thought that election by simple majority would seem to be in conformity with the intentions of the framers of the original Statute. PCIJ, Ser. D No. 2, 242 (1922). In addition, see article 3 of the draft rules of Court prepared by the Secretariat. Ibid. 253. The Permanent Court in its Preliminary Session, after a brief discussion at the 6th meeting, decided that the election should take place by secret ballot and by an absolute majority of the judges present. Rules of 1922/1936/1946/1972, Art. 9. The change to the present wording was made in Art. 11 of the Rules of 1978. See also Sh. Rosenne, Procedure in the International Court 35 (1983). The only other cases requiring an absolute majority of the Members of the Court are Art. 18 of the Rules, on the election of Chambers under Arts. 26 or 29 of the Statute, and the election of the Registrar and Deputy Registrar under Arts. 22 and 23 of the Rules. By Art. 18 of the Statute, the unanimous opinion of the other Members of the Court is required for the dismissal of a Member on the ground that he has ceased to full the required conditions (there has been no instance of this). By Art. 29 the Registrar and Deputy Registrar can be removed from ofce on the opinion of two thirds of the Members of the Court. On this, the terms of ofce as President and as a Member of the Court of Sir Humphrey Waldock were due to come to an end on 6 February 1982. After Sir Humphreys death on 15 August 1981, the Security Council considered that as the vacancy would be lled through the regular election to be held in the General Assembly of 1981, no purpose would be served

20

INTERNATIONAL LITIGATION AND COURTS

* * * The President operates in two distinct capacities. He is President of the Court, namely the fteen elected Members of that body designated in the Charter as the principal judicial organ of the United Nations. He is also President of the Bench whenever he sits for a particular case, unless disqualied to act as President, or to sit as a judge, under specic provisions of the Statute and Rules. In those circumstances Article 13, paragraph 2, of the Rules provides that when he is precluded by a provision of the Statute or of the Rules either from sitting or from presiding in a particular case, he shall continue to exercise the functions of the presidency for all purposes save in respect of that case.10 However, the Statute and the Rules do not clearly distinguish between these two functions. In two instances a single formal rule is applicable to both capacities. By Article 13 of the Rules, if the President is unable to exercise the functions of the Presidency, the Vice-President or failing him the senior judge shall exercise them. By Article 55 of the Statute, all questions shall be decided by a majority of the judges present, and in case of an equality of votes, the President shall have a casting vote (voix prpondrante). As President of the Court, he has general powers and responsibilities in directing the work of the Court as a whole. The President and VicePresident are ex ofcio members of the Courts Budgetary and Administrative Committee. Alongside the administrative duties, which can be demanding, he also has burdensome responsibilities in his representative capacity, both toward the different international organizations and above all the General Assembly, and in relation to the Host State and generally. He is the ofcial host of the Court when Dutch and foreign dignitaries visit it. In the order of diplomatic precedence at The Hague, he takes precedence over the Dean of the Diplomatic Corps. In his absence, the Vice-President takes his place before the Dean. Although most correspondence with the Court is conducted through the Registrar, following Article 26, paragraph 1(a), of the Rules, in exceptional instances the President himself will conduct the correspondence. Under the Instructions for the Registry the nancial administration of the Court is the primary responsibility of the Registrar. He is accountable in the rst instance to the Court in these matters, but if the Court is not sitting,

10

by invoking the procedures for lling the occasional vacancy. Doc. A/36/451S/14645, General Assembly, Ofcial Records, 36th Session, Annexes, agenda item 15, p. 4. In addition, see [1981] United Nations Juridical Yearbook 145. The Vice-President thereupon became Acting President, and no action was taken by the Court to ll the ofce of President. [19811982] ICJ Yearbook 8. On the distinction between the Court and the Bench, see the letter of 18 March 1983 from the Registrar to the agent of Canada. Gulf of Maine case, VII Pleadings 297 (doc. 23).

2. THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

21

the supervisory functions are delegated to the President.11 Under the same Instructions, the President has to approve the agenda of administrative questions for the Court (Article 6). Every member of the Staff must make a declaration before the President under Article 25 of the Rules of Court and Article 40 of the Instructions for the Registry. In the current Staff Regulations (Annex VI), provision is made for an appeal by a staff member from an administrative decision of the Registrar the Judge for staff appeals within specied time limits. The ling of such an appeal does not have the effect of suspending action on the administrative decision: unless the President, in consultation with the judge for staff appeals, directs otherwise.12 By Article 23, paragraph 3, of the Rules of Court of 1946, the Instructions for the Registry were to be drawn up by the Registrar and approved by the President. The Rules of 1978 (Article 28), however, now require the approval of the Court. The reasons for this curtailment of the powers of the President in what is a purely administrative matter have not been made public. Although the Registrar issues the press communiqus, where necessary he will consult with the President before issue. Similarly, the naming of a case can be a delicate matter. Whenever the parties have not themselves suggested the name of the case, consultation with the President will be needed.13 Previous commentators have noted the possible discrepancy between the English and French versions of the Statute regarding the Presidents casting

11

12 13

Instructions for the Registry, Arts. 26 to 38. Yearbook of the International Court of Justice 194647 82; Sh. Rosenne, Documents on the International Court of Justice 453 (1991). Here it may be noted that the meaning of the expression when the Court is not sitting has changed over the years. In 1922 it was envisaged that the Court would meet in judicial sessions, of which there could be more than one in a year. This was changed in the Rules of 1936, when, in Art. 25, a system of judicial vacations was introduced in lieu of sessions. This has been retained since. The whole system was reorganized in Art. 20 of the current Rules. Essential elements of these Rules are that all Members of the Court and judges ad hoc are expected to attend all meetings of the Court in cases in which they are participating, that the system of judicial vacations and period and conditions of leave for Members of the Court are xed by the Court having regard . . . to the state of its General List and to the requirement of its current work, and that in cases of urgency the President may convene the Court at any time. With the Courts increased work-load, the Court is today virtually in permanent session subject to normal vacations. The ease of modern communications also alters the conception of session. For the 1979 Staff Regulations, see ICJ Yearbook 19781979 127; and for Annex VI, not otherwise published, Sh. Rosenne, Procedure in the International Court 68 (1983). For a discussion of a communiqu issued on the authority of the President alone, see the separate opinion of Judge Oda and the Dissenting Opinion of Judge Schwebel in the Military and Paramilitary Activities in and against Nicaragua (Declaration of Intervention) case, ICJ Rep. 1984 215, 221, 232, respectively. For an illustration of the naming of a case, compare the original name Case concerning the Guardianship of an Infant (Order of the President, ibid. 1957 102) with the name given to the case by the Court after pleading, Case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants, ibid. 1958 55.

22

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vote. They have also pointed out that the English conception is the one followed by the Court. This means that if there is an equality of votes, the President casts a second vote. As far as concerns general administrative matters, there is no real need for a casting vote: the motion put simply has not received a majority and is therefore not adopted or is rejected. Here the casting vote may be a complicating factor. The practice of the Permanent Court was mixed. On occasion the President left matters as they were, the proposal not being adopted. In other circumstances he voted a second time, sometimes to maintain the status quo and sometimes to change it. There was no clear-cut practice that the Presidents second vote had to be the same as his rst vote.14 Nothing is known of the practice of the present Court in administrative matters. In contentious judicial matters, a casting vote is essential to create a decision. * * * The more important functions of the President are those that he exercises as a member of the Bench (the expression here including also the Acting President under conditions described later). If the President is unable to preside, the Vice-President assumes this position. If neither can preside, the senior judge present shall assume this function. That person is designated Acting President. By Article 45 of the Statute the hearing shall be under the control of the President. Minutes of the hearings are to be signed by the President and the Registrar (Article 47). The President and the Registrar sign every judgment, advisory opinion and order (Article 58). This is for purposes of authentication, and commits neither of the signatories to the contents. That is all! In particular, the Statute does not mention the delegation of the Courts powers to the President. As mentioned, the Permanent Court very early assumed this power, and no objection has ever been taken to it. As for the Rules of Court, there have been many changes since the initial Rules of 1922. This article will concentrate on the current Rules, those of 1978 as amended since. By Article 9, paragraph 2, if the Court decides to appoint assessors to sit with it, the President has to take steps to obtain all the information relevant to their choice. There is as yet no practice on this. Articles 32 to 37 deal with the composition of the Court for a particular case (the Bench). They contain several provisions regarding the presidency of a Bench. After Article 12, noted above, the primary norm is in Article 32,

14

For information regarding the casting vote of the President in the Permanent Court, see PCIJ, Ser. E, No. 3, 216 (1927), No. 6, 299 (1930), No. 7, 299 (1931), No. 9 (1933), 174, No. 10 (1934), 163, No. 11 (1935), 150, No. 12 (1936) 197, No. 13 (1937), 153, No. 14 (1938), 159, No. 15 (1939), 198. No similar information has been published by the present Court.

2. THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

23

paragraph 1. If the President of the Court is a national of one of the parties in a case, he shall not exercise the functions of the presidency in respect of that case. The same rule applies to the Vice-President or the senior judge when called upon to act as President. In 1992, President Sir Robert Jennings correctly extended this rule to the second of paired cases being partly heard in common under Article 47 of the Rules. Before the hearings were opened in the provisional measures phase of the two cases concerning the Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie cases (Libya v United Kingdom; Libya v United States of America), Sir Robert decided that it would be inappropriate as well as inconvenient for all concerned if he were to preside, as in theory he supposed he might, in the case against the United States. In both cases, therefore, the Vice-President acted as President.15 In addition, the other general disqualications are applicable to the President who will recuse himself if necessary.16 Article 31 requires the President to ascertain the views of the parties regarding questions of procedure. For this purpose he shall summon the agents to meet him (il convoque les agents) as soon as possible after their appointment, and subsequently whenever necessary. The failure of an agent

15

16

ICJ Yearbook 19911992 198. The rule is applied strictly. Sir Robert was President in the Certain Phosphate Lands in Nauru (Preliminary Objections) case, notwithstanding that one of the preliminary objections was that the United Kingdom ought to have been named as a respondent. No objection appears to have been taken to this. ICJ Rep. 1992 240. The present Court has encountered paired cases in two forms. One is where a single applicant brings identical or interlinked cases against two respondents. These include: Treatment in Hungary of Aircraft and Crew of United States of America cases (U.S. v Hungary; U.S. v USSR), ibid. 1954 99, 103; the Antarctica cases (United Kingdom v Argentina; United Kingdom v Chile), ibid. 1956 12, 15; Border and Transborder Armed Actions (Nicaragua v Costa Rica; Nicaragua v Honduras), ibid. 1987 182, ibid. 1998 69; Questions of Interpretation and Application of the 1971 Montreal Convention arising out of the Aerial Incident at Lockerbie (Libya v United Kingdom; Libya v United States of America), ibid. 1992 4. The second is where two (or more) applicants bring virtually identical cases against a single respondent. These include the Aerial Incident of 27 July 1955 cases (Israel v Bulgaria; United Kingdom v Bulgaria; United States of America v Bulgaria), ibid. 1959 276, ibid. 1960 146; Fisheries Jurisdiction cases (Federal Republic of Germany v Iceland; United Kingdom v Iceland) ibid. 1972 12, 30, ibid. 1973 3, 49 and 302, 313, ibid. 1974 3, 175; Nuclear Tests cases (Australia v France; New Zealand v France) ibid. 1974 253, 457. These have to be distinguished from joined cases leading to a single decision. Art. 47 introduced into the Rules in 1978 deals with both types of case. The paired cases can pose delicate problems for the Court and for its President, especially as regards the composition of the Bench. Thus, President Sir Zafrulla Khan recused himself when the Court considered an objection by South Africa to his presence on the Bench in connection with the advisory opinion on Legal Consequences of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Order No. 1, ICJ Rep. 1971 3. Afterwards he resumed his functions as President, ibid. 6.

24

INTERNATIONAL LITIGATION AND COURTS

to appear before the President when so summoned may bring into operation Article 53 of the Statute, concerning the non-appearance of a party. This is not an invariable rule, and the matter depends on all the circumstances.17 By Article 32, paragraph 2, the Member of the Court who is presiding in a case on the date on which the Court convenes for the oral proceedings shall continue to preside until completion of the current phase of the case, despite the election meanwhile of a new President or Vice-President. That is one of the provisions of the Rules to perpetuate the notion that, for the purposes of the composition of the Court, each phase of a case is separate from earlier or later phases and may therefore be heard by a different Bench. This is a change from the practice of the Permanent Court, and is open to criticism.18 Article 34 sets out how the President is to control the application of Articles 17 and 24 of the Statute. Those provisions address the ineligibility of a judge to sit in a particular case. They are designed to avoid conicts of interest. Article 35 of the Rules deals with the judge ad hoc in application of Article 31 of the Statute. It gives the President powers concerning the time limits within which notications or observations by one or other party have to be made. This is a general power, not limited to when the Court is not sitting as are most of the delegated powers of the President. Article 37 delegates to the President, when the Court is not sitting, the power to x the time limit within which a party may choose a new judge ad hoc if this becomes necessary. By Article 44, when the Court is not sitting the President may exercise the powers of the Court to make orders regarding the number and order of ling written pleadings, and their time limits. The President sometimes exercises this power even when the Court is sitting, for instance when it is deliberating on a case and the time-limits to be xed are not controversial.19 The Presidents powers in this respect are, however, specically without prejudice to any subsequent decision of the

17

18

19

Cf. the Nottebohm case, ICJ Rep. 1952 10, ibid. 1953 8, 111. Effect will always be given to an agreement concerning procedure reached through the application of Art. 31. Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, ibid. 1991 50, 51. In the Free Zones case, the Permanent Court decided in 1930 that if the case should come before it again, it should continue to deal with it in the same composition; and that the duties of President were also to continue to be exercised by the judge who had presided over the Court during the previous phases, and whose term of ofce was to expire on 31 December 1930. PCIJ, Ser. E, No. 8, 246 (1932). In the Corfu Channel case, the President in the preliminary objection phase (Guerrero), who was also President at the commencement of the hearings on the merits, continued as Acting President also in the compensation phase several months later, despite that his term of ofce as President came to an end before the merits phase was concluded. ICJ Rep. 1948 15, ibid. 1949 4, 244. Thus the President made orders regarding time limits in the East Timor and the Oil Platforms cases during the Courts deliberating on another case. ICJ Rep. 1993 32, 35.

2. THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

25

Court. That reservation does not confer any right of appeal from these interlocutory decisions of the President. In this respect the present Court, it is understood, follows the practice established by the Permanent Court in application of Article 48 of the Statute (concerning the general conduct of a case). The Permanent Court has reported as follows:
It was understood (February 18th, 1922) that the Courts right to make orders differing from those already made by the President would not involve a right on the part of the Parties to appeal to the Court against the orders of the President. During the revision of the Rules at the ordinary session in 1926, an amendment to Rule 33 [of the Rules of 1922] providing that there was no right of appeal for the Parties against a decisions of the President, was proposed. This amendment was not adopted, as it was held that it was unnecessary, because the President was simply exercising powers delegated to him by the Court, and consequently there could be no appeal against his decisions.20

By Article 52, paragraph 1, the President may authorize the correction of any slip or error in any document already led, if the other party does not consent. By Article 53, paragraph 1, the President, if the Court is not sitting, may, after ascertaining the views of the parties, decide to make the written pleadings available to any State entitled to appear before the Court that has asked for them something that could be important in cases of contemplated intervention. The decision to make the pleadings public, however, rests with the Court itself. Article 54 empowers the President, if the Court is not sitting, to x the date for the opening of the oral proceedings or their postponement. This was once a matter of routine, since in principle cases were heard in the order in which they became ready for hearing. The Rules of 1978 abolish that provision, replacing it by Article 54. This substitutes for the formal criterion the idea of special circumstances, including the urgency of a particular case as a factor to decide the date of the hearing in a particular case. That places increased responsibility on the President. Article 61, paragraph 3, gives every judge the right to put questions to the parties and to ask for explanations. Before exercising that right, the judge should make his intention known to the President, who is made responsible by Article 45 of the Statute for the control of the hearing. There is little known practice about this. In 1937 a member of the Court asked one of

20

PCIJ, Ser. E, No. 3, 210 (1927). For the discussions of this question in the Permanent Court, see PCIJ, Ser. D, No. 2, 66 (1922); No. 2, Add. 68 (1926). In the Rules of 1922, 1926 and 1931 this reservation was worded subject to any subsequent decision of the Court. In 1936 (Art. 37 (5)), the present wording was adopted and has remained unchanged.

26

INTERNATIONAL LITIGATION AND COURTS

the agents to produce two documents. No difculty was made regarding one of those documents: as for the other, the agent objected on the ground that it was condential. The Permanent Court continues:
It was held that, while the Court could always insist on the production of any document under Article 49 of the Statute, it was preferable in this case not to do so; accordingly, the President at the next hearing announced that he considered the production in question unnecessary and asked the agent concerned not to produce it.21

In Article 63 the Court has delegated to the President, if it is not sitting, the power, at the request of a party or proprio motu, to take the necessary steps for the examination of witnesses otherwise than before the Court itself. Although witnesses have been called in several cases before the present Court or one of its Chambers, there has been no need yet to apply that provision. Article 65 lays down that the examination of witnesses and experts shall be under the control of the President, who, together with the other judges, may himself also put questions to them. A curious incident involving this Rule occurred in the Elettronica Sicula S.p.A. (ELSI) case (before a Chamber). The judgment dryly records this in the following passage:
Mr X [listed as an adviser to the United States delegation] addressed the Court for the United States; since he had occasion to refer to matters of fact within his knowledge as a lawyer acting for Raytheon Company, the President of the Chamber acceded to a request by the Agent of Italy that Mr X be treated pro tanto as a witness. Mr X, who informed the Chamber that both Raytheon Company and Mr X himself waived any relevant privilege, was cross-examined. . . .22

Article 69, paragraph 3, deals with the application of Article 34, paragraph 3, of the Statute, a new provision inserted in 1945. By that, whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the organization concerned and shall communicate to it copies of all the written proceedings. Article 69, paragraph 3, of the Rules provides that in the circumstances contemplated by Article 34, paragraph 3, of the Statute, the Registrar, on the instructions of the Court, or of the President if the Court is not sitting, shall proceed as prescribed in that paragraph. Paragraph 3 continues:

21

22

PCIJ, Ser. E, No. 12, 151. The view of the present Court regarding Art. 49 of the Statute is different. It will take note of a refusal of a party to produce a document. Corfu Channel case, ICJ Rep. 1949 4, 32. ICJ Rep. 1989 15, 19. The proceedings themselves were more dramatic. See C.3/CR.89/9, 52 and CR.89/10, 8, 27 February 1989.

2. THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

27

The Court, or the President if the Court is not sitting, may, as from the date on which the Registrar has communicated copies of the written proceedings and after consulting the chief administrative ofcer of the public international organization concerned, x a time-limit within which the organization may submit to the Court its observations in writing. . . .

This is a new power delegated to the President. It comes within the scope of the principle that there is no appeal from the Presidents decision on this type of question. Instances have occurred which show that this too places new responsibilities on the President. Articles 74 to 78 are the procedural code for provisional measures of protection, amplifying the bare norm enunciated in Article 41 of the Statute. This code grants extensive powers to the President, with corresponding responsibility. When a request for the indication of provisional measures is led, if the Court is not in session the President has to convene it forthwith for deciding the request as a matter of urgency. The Court, or the President if the Court is not sitting, shall x a date for the hearing affording the parties an opportunity of being represented at it. Particularly important is Article 74, paragraph 4, relating exclusively to the President:
Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effect.

This has produced several decisions by the President. In the Anglo-Iranian Oil Co. (Interim Measures) case, the President (Basdevant) exercised that power and sent an appropriate message to the respondent Government, which however, rejected the Presidents appeal.23 In the United States Diplomatic and Consular Staff in Tehran (Provisional Measures) case, the President (Sir Humphrey Waldock) exercised that power. He called to the attention of both parties the fact that the matter was sub judice before the Court and the need to act in such a way as would enable any order the Court might make to have its appropriate effect.24 In the Military and Paramilitary Activities in and against Nicaragua case, six weeks after the order indicating provisional measures the applicant applied for a further indication of provisional measures. The President (Elias) brought this directly to the attention of the Court without arranging for any hearing. The Court decided that the request should await the outcome of the proceedings on jurisdiction and admissibility then in progress.25 In the two cases concerning the Interpretation and

23 24 25

ICJ Rep. 1950 89, 91; Pleadings, 707 (doc. 20). ICJ Rep. 1979 7, 10 (para. 6); Pleadings, 405 (doc. 6). This is recorded in the judgment on the merits. ICJ Rep. 1986 14, 144 (para. 287).

28

INTERNATIONAL LITIGATION AND COURTS

Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie the Acting President (Oda) xed the date for the hearings having regard to the wishes of the parties. He refused to exercise his powers under paragraph 4. He said that after the most careful consideration of all the circumstances then known to him, he had come to the conclusion that it would not be appropriate for him to exercise what he termed the discretionary power conferred on the President by Article 74, paragraph 4, of the Rules.26 In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Further Provisional Measures) case, the President (Sir Robert) acceded to a request by the respondent to x a date for the hearing that would enable it adequately to prepare its response. He rejected appeals by the applicant to reconsider that date and also an amended request by the applicant for an immediate Order without hearing pursuant to Article 75, paragraph 1, of the Rules. The reason for this was that the President followed an earlier decision of the Court on the rst request for an indication of provisional measures, to the effect that the Court did not consider that the question arose of the exercise of its powers under Article 75, paragraph 1, of the Rules of Court. On the other hand, he exercised his power under Article 74, paragraph 4, and addressed an appropriate call to both parties, stressing that the earlier order still applied.27 These instances are sufcient illustration of the delicate nature of this power given to the President. Articles 81 to 86 supply a code of procedure for intervention. In addition, a new Article 43 (as amended in 2005) requires the Court to consider what directions are to be given to the Registrar who, by Article 63 of the Statute, has to notify third States whenever the construction of a treaty to which they are parties is in question. In the conception of the Statute, that duty of the Registrar is administrative and he would usually consult with the President in case of need. It is not clear why the Rules do not vest this power in the President when the Court is not sitting. The failure to delegate this power may become a source of difculty in practice. By Article 83, paragraph 1, the President has a delegated power, when the Court is not sitting, to x a time limit within which the parties may submit their observations

26 27

ICJ Rep. 2993 3, 8, 9 (paras. 16, 17); 114, 120 (paras. 17, 18). ICJ Rep. 1993 325, 333, 334 (paras. 8, 9, 13). In the previous order the Court had xed a very short time limit for the hearing and refused a request by the respondent for an extension, ibid. 3, 9 (para. 7). In that order the Court recalled that under Art. 75 (2) it had the power to indicate provisional measures that are in whole or in part other than those requested, or that ought to be taken or complied with by the party which had itself made the request, and proceeded so to act, ibid. 22 (para. 46). For other instances see Sh. Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (2005) 169.

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29

on an application for permission to intervene under Article 62 of the Statute or a declaration of intervention under Article 63. He has a similar delegated power under Article 85 to x time limits for a written statement by a State applying to intervene under Article 62, and for observations on that written statement by the parties. Article 86 vests a similar delegated power in the President in connection with an admitted intervention under Article 63. Article 65, paragraph 2, of the 1946 Rules (and its predecessor), gave the President power, if the Court was not sitting, to x time limits within which if the intervention was not opposed the intervener could le a memorial on the merits. This was without prejudice to the decision of the Court on whether the application should be granted. The 1978 Rules drop this. Here too, there is no public explanation of the reasons for this curtailment of the Presidents powers.28 Under Articles 88 and 89, relating to discontinuance, the President has the power to make the necessary orders when the Court is not sitting. Usually these orders are a matter of routine, but on occasion control has to be exercised over them. An example is the order of discontinuance in the United States Diplomatic and Consular Staff in Tehran case. Here the President (Sir Humphrey Waldock) refused to accept discontinuance purportedly subject to a right to reinstate the case. He ordered the discontinuance only after he had been assured that it was unconditional.29 Above all, it is in connection with the deliberations of the Bench that the President is placed in the most powerful, most responsible, and most sensitive position. The Statute simply provides that after the hearing the Court shall withdraw to consider the decision. The deliberations take place in private and remain secret (Article 54). All questions shall be decided by a majority of the judges present, the President having a casting vote if necessary (Article 55). The Rules (Articles 94 to 97) carry this a little further, but they are purely formal. The method of deliberation on judicial decisions is now set out in the Resolution on the Courts Judicial Practice adopted on 17 April 1976.30 The President (of the Bench) is responsible for the organization of the deliberation. After an appropriate period for the judges to study the case, the rst deliberation is held. On this occasion the President outlines the issues that he thinks will require discussion and decision by the Court, any

28 29 30

See Sh. Rosenne, Intervention in the International Court of Justice, chapter 4 (1993). ICJ Rep. 1981 45. For criticism of this order, see G. Wegen, Discontinuance of International Proceedings: The Hostages Case, 76 AJIL. 717 (1982). Acts and Documents concerning the Organization of the Court, No. 5, Charter of the United Nations, Statute and Rules of Court and Other Documents 164 (French), 165 (English) (1989); my Documents, note 11 above, 441.

30

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judge having the right to comment and draw attention to any other issues that arise. The Resolution (paragraph 4(ii)) also invites the judges to indicate their preliminary impressions regarding any issue or question. At this stage, the President will call on the judges in the order in which they signify their desire to speak. After this, each judge prepares his note expressing his views on the various questions. These notes are circulated to the other judges. A further deliberation then takes place, where, as a rule, the President calls on the judges in inverse order of seniority. On the request of any judge, the President shall ask the Court to decide whether a vote shall be taken on any question. At this point the Court chooses a drafting committee by secret ballot and by an absolute majority of votes of the judges present. The drafting committee should consist of two judges whose views as expressed in the previous deliberations have most closely and effectively reected the opinion of the majority of the Court as it then exists. The President is ex ofcio a member of the drafting committee unless he does not share the majority opinion as it then appears. In that event the Vice-President or, if he also does not share the majority opinion, a third member elected by the Court, takes his place. However, if the President is not a member of the drafting committee, the draft is to be discussed with him before it is submitted to the Court. The President may also propose amendments. If the drafting committee does not adopt them it shall nevertheless submit the Presidents proposals to the Court together with its own draft. The preliminary draft of the decision is circulated and the judges may submit amendments. After consideration by the drafting committee, the revised draft decision is submitted to the Court for rst reading. The judges then circulate their individual opinions and the drafting committee prepares the text for the second reading. At the second reading the President is to enquire whether any judge wishes to submit further amendments. At a suitable interval after the second reading, the President calls upon the judges to give their nal vote on the decision or conclusion concerned, in inverse order of seniority. In this vote, no abstentions are permitted. It is at this point that the Presidents casting vote becomes decisive. Moreover, since the President is the last to vote, he knows before voting whether the vote will create a situation requiring or enabling him to use the casting vote. In the history of the two Courts, two decisions in contentious cases and one in an advisory case have been made by the Presidents casting vote. The rst contentious judgment so decided was the Lotus case in the Permanent Court (President Huber), and the second the judgment in the second phase of the South West Africa cases in the present Court (President Sir Percy Spender).31 The casting vote was also used by

31

PCIJ, Ser. A, No. 10 (1927); [1966] ICJ Rep. 6. The formula used has varied. In Lotus it is

2. THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

31

President Bedjaoui in the advisory opinion on Legality of the Threat or Use of Nuclear Weapons.32 In none of these cases is it possible to know what the motion was that caused the tie in the rst place; it is accordingly not possible to know how the President used his casting vote. The use of the casting vote in advisory proceedings raises other issues. Since an advisory opinion is not nal and without appeal (in the words of Article 60 of the Statute) and thus is not a decision, there is no functional need for a conclusive and executory operative clause. If the votes are tied the proposition put to the vote simply has not reached the majority of the judges present required by Article 55, paragraph 1, of the Statute. In such circumstances one might expect the Court to exercise its discretion and decline to include the tied vote in its reply to the question put to the Court, in the words of Article 107 of the Rules of Court. An opinion adopted by what in effect is a single vote of whoever is presiding over the Court at the given moment is unlikely to proffer acceptable guidance to the requesting organ. There is no indication in the advisory opinion under discussion that the Court gave any consideration to this aspect. As for the voting, the President may propose, and the Court is to decide, whether through illness or other reason deemed adequate by the President a judge may record his nal vote otherwise than in person at the meeting of the Court. In 1978 the Courts Rules Committee, then preparing the revised Rules of 1978, adopted a decision about separate and dissenting opinions, and declarations. It decided that the President in his capacity as such and as part of his function to direct the work of the Court as a special case could append a declaration not falling within the normal function of such declarations.

32

given by the Presidents casting vote the votes being equally divided judgment to the effect. In South West Africa it is The Court, by the Presidents casting vote the votes being equally divided, decides . . . It is curious that in both instances the effects of a decision reached by the casting vote of the President had to be changed by the international community. The decision in the Lotus case was changed in the process of the codication of the law of the sea; that in the South West Africa cases was repudiated by the General Assembly in its resolution 2145 (XXI), 27 October 1966. In effect that was conrmed by the Court, in a changed composition, in its advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] ICJ Rep. 16. It is understood that the process of deliberation is simplied in the case of orders of the Court, including orders for the indication of provisional measures. ICJ Rep. 1996I 226. The Court adopted a new formula here, the Report stating that para. E of the Courts reply to the question put to it was adopted by seven votes to seven, by the Presidents casting vote. Each judge who sat in this case appended a declaration, or a separate or a dissenting opinion.

32

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This power has been used once, by President Lachs in an interlocutory decision on the composition of the Court, reserving the right of the judges to express their opinion on that matter at a later stage.33 There is no doubt that the role of the President in the deliberations calls for the highest qualities of diplomatic skill coupled with deep knowledge not only of the case itself, but of its broader context. The experience in the cases decided by the Presidents casting vote suggests that the President should take into account the likely reaction of the international community to a decision reached through the casting vote. Articles 15 to 18 concern the composition of the Chambers of the Court, and Articles 90 to 93 govern the procedure in the Chambers. Regarding the composition, both the President and the Vice-President shall be members of the Chamber of Summary Procedure formed annually under Article 29 of the Statute (Article 15, paragraph 1, of the Rules). For an ad hoc Chamber to deal with a particular case formed by virtue of Article 26, paragraph 2, of the Statute, Article 17 of the Rules imposes two separate duties on the President. If only one party requests the formation of such a Chamber, he has to ascertain that the other party agrees. When the parties have agreed, he now has to ascertain their views regarding the composition of the Chamber. The experience of the formation of the Chamber in the Gulf of Maine case shows that this can be a delicate matter. In the rst place, the Rules contain an apparent divergence from the Statute, replacing the word there, namely number, by composition. This gives the parties greater control over the formation of such a Chamber. In the Gulf of Maine case there was a question of the compatibility of the special agreement (ratication of which had encountered difculties in the United States Senate) with the Statute and Rules of Court. This had been a matter for negotiation between the parties and informally with the then President (Sir Humphrey Waldock), but he died before the matter could be completed. Through the Acting President (Elias) further negotiations took place. The Court then decided to form the Chamber and to elect its members as requested by the parties a few days before the end of a triennial period of membership of the Court, well after the election of the replacements.34 It is believed that

33

34

Western Sahara case, ICJ Rep. 1975 6, 9. For that decision of the Rules Committee, see ICJ Yearbook 19781979 217. In the LaGrand cases the President (Guillaume) seems to have made such a statement in the third paragraph of his Declaration appended to the judgment, ICJ Rep. 2001 466 at 517. He amplied that remark in a statement to the press available on the Courts website. ICJ Rep. 1982 3. More on this by S.M. Schwebel (in his personal capacity), Chambers of the International Court of Justice Formed for Particular Cases, International Law at a Time of Perplexity, note 4 above, 739, especially at 754.

2. THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

33

there have been other Chamber cases in which there were difculties over the composition or the recomposition of a Chamber. Article 18 governs the election of the members of all Chambers. Article 18, paragraph 2, provides that if a Chamber when formed includes the President or Vice-President of the Court, the President or Vice-President shall preside over the Chamber. In other cases, the Chamber elects its own President. He continues to preside while he remains a member of the Chamber, even if his term of ofce as a Member of the Court ends. The operative words here are when formed. Thus, the ad hoc Chamber for the ELSI case as originally formed included the then President of the Court (Nagendra Singh). On his death the Court reconstituted the Chamber and the next President of the Court (Ruda) was elected and became President of the Chamber.35 On the other hand, two Members of the Court who were members of the Chamber formed to decide the Land, Island and Maritime Frontier Dispute case were, while the case was pending, elected President and Vice-President of the Court. They continued as members of the Chamber, but their precedence among its members was re-ordered. Furthermore, the term of ofce of the Member of the Court who had been elected President of the Chamber (Sette-Camara) ended while the proceedings were still in progress. He remained President of the Chamber until the judgment was rendered.36 In the Frontier Dispute (Benin/Niger) case, after President Guillaume resigned from the Court the Vice-President (Ranjeva), who was an original member of the Chamber, automatically became president of the Chamber.37 The Court rst made use of its power to form a Chamber under Article 26, paragraph 1, of the Statute, a standing Chamber to deal with a particular category of case, on 19 July 1993. It established a seven-member Chamber for Environmental Matters. Neither the President nor the Vice-President of the Court was a member of that Chamber.38 When a Chamber is to decide a case, Article 91 of the Rules requires the President of the Court to convene the Chamber at the earliest date compatible with the procedure. It is customary for the President of the Court to be present at the rst meeting of an ad hoc Chamber, when the proceedings are formally opened and the judges ad hoc (if any) make their solemn declaration.

35 36 37 38

ICJ Rep. 1987 3; ibid. 1988 158. ICJ Rep. 1987 10; ibid. 1989 162; and for the revised order of precedence of the members of the Chamber, ibid. 1992 351, 353. ICJ Rep. 2005 84. The President of the Court at the time, Judge Shi, did not become a member of the Chamber. Report of the International Court of Justice, 1 August 199231 July 1993, General Assembly, 48th session, Ofcial Records, Supplement No. 4 (A/48/4) 1.

34

INTERNATIONAL LITIGATION AND COURTS

For the interpretation of a judgment, the President, if the Court is not sitting, may x the time limit within which the adverse party may submit its observations (Article 98, paragraph 3). The same rule applies to a request for the revision of a judgment (Article 99, paragraph 2). In the advisory proceedings, the President, if the Court is not sitting, has a comparable power to make interlocutory orders and decisions. This includes an exceptional power to decide whether oral proceedings shall take place (Article 105, paragraph 2(b)). In contentious cases before the full Court, an oral phase is obligatory (Statute, Article 43, paragraph 1). * * * The President is frequently requested by the parties to treaties or commercial and similar contracts, not necessarily a State entitled to appear before the Court, to appoint an arbitrator or an umpire. In 1923 the Permanent Court was asked to appoint an arbitrator in a commercial dispute. It decided that it could not undertake this task, but that the President, if approached, might be willing to act. This has now developed considerably. The President normally performs such a function, subject to the same disqualications as are applicable to his acting as President of a Bench. The parties negotiating such a transaction should consult with the President before concluding their contract.39 Although many interlocutory powers of the President may appear as matters of routine, they nevertheless call for great qualities of leadership and frequently of diplomatic skill. The presidency of a small cohesive body of highly competent individuals, each with his own personality, cannot be compared to the presidency of a large international gathering, relatively impersonal and highly political in its approach to its business. During the drafting of the Statute the view was expressed that it would be dangerous to make the presidency of the Court too important. The President should be only primus inter pares.40 Developments since 1920 have shown that this might be appropriate for the administrative functions of the President. However, it is not an adequate or proper description of the Presidents role or functions in the conduct of judicial proceedings. Here the President has a dominant and leading role. The President faces a major challenge in forging the largest possible majority for any decision the Court may take, be it interlocutory or dispositive. In instances of high political tension, this is no easy matter. It is through this that the ofce of President has attained its great prestige.

39 40

PCIJ, Ser. E, No. 3, 228 (1927); ICJ Yearbook 19911992 146. Lord Phillimore, at the 20th meeting of the Advisory Committee of Jurists. loc. cit. note 7 above, 456.

3
A ROLE FOR THE INTERNATIONAL COURT OF JUSTICE IN CRISIS MANAGEMENT?

I. Sovereignty and jurisdiction The theme of the volume in which this essay originally appeared is changes in the perception of the concept of sovereignty. That assumes the existence of a single concept of sovereignty which, in the twentieth century, has undergone changes. A distinguished Dutch Foreign Minister wrote as far back as 1953: the notion of sovereignty continues to be a dominating element in the treasure-house of our heart and mind; we are strongly affected by it, and it is part of nearly everybodys being. To ignore this fact would be silly.1 Has that changed? In the abstract, and to oversimplify, sovereignty can be considered as a States exclusiveness and paramountcy in the conduct of its affairs, internal and external. It is a commonplace in international law and international relations that any limitation on sovereignty through voluntary participation in an international treaty is one of the supreme manifestations of sovereignty. A well-known expression of this in international law and relations is the rule that no one can compel any State to engage in contentious litigation before any international court or tribunal without its consent. The International Court of Justice (ICJ) insists that there should be no doubt about that consent if it is to decide the whole dispute.2 Yet with this as the point of departure, since the establishment of the United Nations the use of judicial and quasi-judicial techniques in a process of crisis management has developed in directions that the founders could not have foreseen in 1945, and even less the founders of the Permanent Court in 1920. Nevertheless, the practical application of this requirement of consent is not so simple and there is growing articiality in the bare statement of principle. It holds well in routine legal disputes between States that beyond

1 2

E.N. van Kleffens, Sovereignty in International Law, Academy of International Law, Recueil des Cours, vol. 82 (1953I), pp. 1132, p. 130. It has even introduced a special procedure to ensure this. Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) case, ICJ Rep. 1994 112 and 1995 6. And see The Qatar/Bahrain Case: What is a Treaty? A Framework Agreement and the Seising of the Court, at Essay 22 below.

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perhaps a ripple do not seriously affect their mutual relations and are not any threat to international peace and security. The change lies in the voluntary waivers by most States of their absolute sovereignty through their membership in the United Nations and other international organizations, and through their participation in other multilateral and bilateral treaties. Membership in the United Nations in particular is bringing about fundamental changes in the practical application of sovereignty in todays international affairs. For while the Charter specically postulates the sovereign equality of States as one of its principles, the expanding range of concern of the United Nations extending virtually to all spheres of human activity is making continuous inroads into the earlier exclusiveness and paramountcy of the sovereign State. This has implications for the International Court of Justice. The Courts Statute is an integral part of the Charter and the Court is a principal organ of the United Nations. Membership in the United Nations includes ipso facto participation in the Statute of the Court. Participation in the Statute of the Court extends automatically to acceptance of what is called the Courts incidental jurisdiction especially its jurisdiction to indicate provisional measures of protection and to decide matters of its own jurisdiction, the comptence de la comptence (neither of which reach the merits of a contentious case) as well as to its advisory competence.3 Membership in the United Nations thus supplies a consensual basis for the exercise of all those forms of jurisdiction, a major attrition of the principle of sovereignty. Since 1945 the ICJ has faced many novel situations. These have included situations of crisis in which there was a threat of the use of armed force and a consequent danger to international peace, the Security Council also dealing with it. When the respondent is unwilling, the Court has to establish its consent as a matter of law, not of policy, through careful and sometimes subtle reasoning and examination of relevant legal texts in light of broader judicial policy. This has brought out a major difference between political willingness to engage in international litigation and the legal obligation to do so, a matter also affecting compliance with the judicial decision. In turn, this has led the Court on occasion to include in its decisions statements about the underlying legal issue, even where it has no jurisdiction over the merits. Here we can see a tendency for the Court to override possible restraints that a strict attention to the demands of exclusive State sovereignty and the consensual basis of its jurisdiction over the merits could be taken to have imposed on it.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) adv. op., ICJ Rep. 1971 16, 23 (para. 31); Western Sahara adv. op., ibid. 1975. 12, 24 (para. 30). On the incidental jurisdiction, see Sh. Rosenne, Law and Practice 4 vol. II 578.

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Although the Court has had to maintain that principle in contentious cases, close examination of different judicial pronouncements suggests that its perception of a States sovereign right to decide whether and when it will participate in contentious litigation is undergoing delicately complex changes. The fundamental principle of the consensual basis of jurisdiction to decide the merits remains. However, modern case-law shows signs of what some might see as a leaning in favour of the applicant, more than was once thought to be usual, possibly even a rened reassessment of what the dispute is really about and what the merits really are. In addition, the distinction between the contentious jurisdiction, in which this conception is rooted, and other forms of jurisdiction, notably incidental jurisdiction and the advisory competence, where this principle does not apply, 4 shows signs of becoming blurred. For the most part, these changes are taking place in incidental proceedings, especially where a State has requested the Court to indicate provisional measures of protection in a crisis situation. What followed the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY) is an outstanding example of the invocation of judicial techniques in different phases of a complex crisis and its management. That began in 1991 and is continuing. This is not the only example, however. This essay looks at the question whether those engaged in crisis management can usefully invoke international judicial techniques, and more specically the ICJ. Some remarks of President Martti Ahtisaari of Finland to the Israel Council on Foreign Relations summarizing the lessons of crisis management in Kosovo have prompted this investigation. President Ahtisaari said:
Something that I have earlier proposed for consideration is that the International Court of Justice be asked for an advisory opinion when a crisis dees resolution. The legal view presented by the Court with all its prestige behind it could help the Security

The advisory competence has been invoked in two situations that developed into crises, the situation of South West Africa (Namibia) and that of Western Sahara, in each case contrary to the wishes of the respective Administering Authorities (States). South West Africa also involved a controversial and unsatisfactory interlude in a contentious case. The long list of relevant judicial pronouncements on those two situations follows. For Namibia International Status of South West Africa, ICJ Rep. 1950 128; Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, ibid. 1955 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa, ibid. 1956 23; the Namibia adv. op. (previous note). The General Assembly requested the rst three opinions, and the Security Council the fourth. The contentious case is the South West Africa (Ethiopia v South Africa; Liberia v South Africa, joined) (Preliminary Objections), ibid. 1962 319; (Second Phase), ibid. 1966 6 (decided by the casting vote of the President, Sir Percy Spender). For Western Sahara (still on the agenda of the Security Council), see Western Sahara adv. op., previous note.

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Council to nd the necessary political consensus where states faced the possibility of international intervention because they were no longer capable of protecting their citizens from armed violence or willing to do so.5

Crisis management in this sense is different from preventive diplomacy, although there is a close interrelationship between the two. In preventive diplomacy, the crisis usually originates in dissatisfaction with the existing state of affairs and a strong political desire for fundamental changes in the status quo, sometimes called, euphemistically, peaceful change. If courts exist to apply the law, can any court play any role when only a change in the law, peaceful or not, will resolve the crisis? The Court has explicitly stated that it cannot render judgment sub specie legis ferendae.6 Yet paradoxical though it might seem, the answer, as will appear from the following pages, might sometimes be afrmative. That is because an international crisis of that size is not a tidy, compact, and easily manageable affair. It will be untidy, with many loose ends and subsidiary disputes. Judicial treatment of appropriate elements of the crisis can, although not necessarily will, perform a signicant, albeit not exclusive, role in the management of that crisis. The International Court has explained the position in the following passage, repeated in two judgments rendered in crisis situations:
[L]egal disputes between sovereign States by their very nature are likely to occur in political contexts, and often form only one element in a wider and long-standing political dispute between the States concerned. Yet never has the view been put forward that, because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal questions at issue between them. Nor can any basis for such a view of the Courts functions or jurisdiction be found in the Charter or the Statute of the Court; if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes.7

The Court has worded this differently in its explanation of the term legal question on which it may give an advisory opinion:

From the text of the speech of 4 October 1999, furnished by the Embassy of Finland in Israel, p. 6. President Ahtisaari had been President of the European Union and had played a leading role during the Kosovo crisis of the rst part of 1999. That speech was devoted to his experiences and recommendations for crisis management. Fisheries Jurisdiction (Merits) (U.K v Iceland, F.R.G v Iceland), ICJ Rep. 1974 3 at p. 23 (para. 53); 175 at p. 192 (para. 45); Delimitation of the Continental Shelf (Tunisia/Libya) case, ibid. 1982 18 at p. 47 (para. 23). United States Diplomatic and Consular Staff in Tehran case, ICJ Rep. 1980 3, 20 (para. 37); the Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) case, ibid. 1984 392, 433 (para. 93).

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[I]n situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles with respect to the matter under debate[.]8

Both formulas point to the Courts functions in crisis management. II. The crises in Yugoslavia The complex situation arising out of the dissolution of the former SFRY can serve as a model for this examination. That crisis has led to more recourse to international judicial and quasi-judicial processes than any other major crisis of the twentieth century. A list follows of judicial or quasi-judicial organs seised at one time or another of different aspects that have arisen since 1991 (excluding criminal cases in the ICTY, formed specially to deal with allegations of individual criminal responsibility for violations of international humanitarian law in the course of the hostilities of that crisis). The Badinter Commission. The initial Conference on Yugoslavia of the European Community established this ve-man Commission, the rst such body, in 1991 under the designation of Arbitration Commission. Its chairman was M. Robert Badinter, President of the French Conseil constitutionnel. Its other members were the Presidents of the Constitutional Courts of Italy (Corasanti), Germany (Herzog) and Spain (Tomas y Valiente), and of the Belgian Cour dArbitrage (Petry). Between 1991 and 1993 it rendered a series of opinions on questions that the Chairman of the Conference referred to it.9

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt adv. op., ICJ Rep. 1980 73, 87 (para. 33); Legality of the Threat or Use of Nuclear Weapons adv. op., ibid. 1996I, 226, 234 (para. 13). English translations of these Opinions are conveniently collected as follows: Opinions 110 (19911992) in 92 ILR 162211, and Opinions 11 to 15 (1993) in 96 ibid. 713742). There are two references to this Commission in the judgment on the merits in the Application of the Genocide Convention case of 26 February 2007 without any comment, in paras. 4 and 233. On this Commission, see M. Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 AJIL 569 (1992); A. Pellet, Lactivit de la Commission darbitrage de la Confrence europenne pour lancienne Yougoslavie, 38 Annuaire franais de droit international 220 (1992); Id., Lactivit de la Commission darbitrage de la Confrence europenne pour lancienne Yougoslavie, 39 ibid. 286 (1993); M.C.R. Craven, The European Community Arbitration Commission on Yugoslavia, 66 BYIL 333 (1995); M. Pomerance, The Badinter Commission: the Use and Misuse of the International Court of Justices Jurisprudence, 20 Mich. J. Intl L. 31 (1998). For a Croatian view of the Commission, see I. Vukas, States, Peoples and Minorities, 231 Recueil (1991VI) 263, particularly at pp. 293, 420. For an authoritative Yugoslav critique of the Commission, see the dissenting opinions of Judge ad hoc Kreca in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) case, ICJ Rep. 1996II 595, 658 and passim, and in the Legality of Use of Force (Provisional Measures) (Yugoslavia v Belgium) case,

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This Commission was originally composed of eminent European constitutional lawyers, not one a specialist in international law. In 1993 the Community reconstituted it to include a former member of the ICJ designated by its President and a member of the European Court of Human Rights designated by its President. The Commission was then composed of Badinter, Herzog, Casavola (Italy), Jos Mara Ruda (Argentina, a former President of the ICJ), and Palm (Sweden, of the European Court of Human Rights). The six constituent republics of the former SFRY (as they existed at the time) Bosnia-Herzegovina, Croatia, Macedonia (as it was then called), Montenegro, Serbia, and Slovenia apparently accepted that arrangement in general before their independence, although not necessarily the Commissions competence in specic cases. Its procedure, while allowing all parties to submit memoranda, did not meet the accepted requirements for the administration of international justice, whether through a court or through arbitral procedure, contentious or advisory, commensurate with the task that it was required to perform. Its advisory opinions carried political weight in the European Community at the time. Their standing as international legal pronouncements is controversial. One view is that some of its opinions led to premature recognition of the independence of new States and their boundaries, in that way prolonging the crisis. On the other hand, an equally strong current of opinion holds that except perhaps regarding Bosnia, the Commissions determination of the date of independence of the new States and its decision to apply the doctrine of uti possidetis to x their initial boundaries were valuable elements for the long-term stabilization of the general situation in the area. The International Court of Justice between 1993 and 1999 has been seised of no less than twelve contentious cases involving thirteen States related to the crisis. Both secessionist States, Bosnia-Herzegovina (Bosnia) and Croatia on the one hand, and on the other Yugoslavia (Serbia and Montenegro), the State claiming to be the continuation of the SFRY, have taken the initiative for this.10

10

ibid. 1999 124, 218 at 228. ICTY has occasionally cited opinions of the Badinter Commission, e.g. in Prosecutor v Delalic et al. (the Celebic i case), IT-9621T, Trial Chamber, Judgment of 16 November 1998, para. 105. In Res. 47/1 of 22 Sept. 1992, the General Assembly considered that the FRY cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations, and therefore decides that the Federal Republic of Yugoslavia should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly. The FRY did not accept that resolution and never raised the question of its effect on its status as a party to the Statute. Respondents raised the question in the 1999 Cases concerning Legality of Use of Force, brought by the Federal Republic against ten NATO members. In the provisional measures phase of those cases the Court did not nd it necessary to consider this question for the purpose of deciding whether it could indicate

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(i) On 20 March 1993 Bosnia & Herzegovina commenced contentious proceedings against SFRY alleging that Yugoslavia had committed a series of violations of the Convention on the Prevention and Punishment of the Crime of Genocide.11 Simultaneously Bosnia requested an indication of provisional measures, which was granted.12 On 27 July 1993 Bosnia submitted a second request for an indication of provisional measures. Yugoslavia submitted a cross-request. Here the Court reafrmed its previous order and called for its immediate and effective application.13 In due course Yugoslavia led preliminary objections to the jurisdiction and to the admissibility of the case, and on 11 July 1996 the Court dismissed the objections one by one and held that it had jurisdiction and that the claim was admissible.14 The countermemorial led in July 1997 contained counter-claims which were subsequently withdrawn.15 On 24 April 2001 Yugoslavia led an application for the revision of the judgment of 1996 on the preliminary objections. On 4 May 2001 Yugoslavia led a document entitled Initiative to the Court to Reconsider ex ofcio Jurisdiction over Yugoslavia (hereafter Initiative). A judgment of 3 February 2003 found the application for revision inadmissible.16 On 12 June 2004 the Court decided that it could not accede to the respondents request to suspend the proceedings until a decision was rendered on

11 12 13 14 15 16

provisional measures in the cases. Case against Belgium, ICJ Rep. 1999I 124, 136 (para. 33), and equivalent paragraph in the other orders. Judge Kooijmans appended his separate opinion to those Orders, mainly because of doubts whether the present Yugoslavia was a fulledged, fully qualied Member of the United Nations. He thought that the Court had no jurisdiction at all, that the Court should not have avoided this question. Separate opinion in the same (and other) cases, ibid. 173, 179. After the change of government in Yugoslavia in late 2000, the Federal Republic changed its position. It applied for admission and by Res. 55/12 of 1 Nov. 2000 the General Assembly admitted the country into the United Nations. In its judgments on the preliminary objections in those cases, the Court found that at the time of the institution of those proceedings (29 April 1999) Serbia and Montenegro did not have access to the Court and had found that it had no jurisdiction to entertain the claims. ICJ Rep. 2004, 2791307. A central question of jurisdiction arose in the later stages of this case and was determined in the judgment on the merits, namely whether the country now named Serbia was or was not a continuator of the Socialist Federal Republic of Yugoslavia. The Court ultimately decided this question in the affirmative. ICJ Rep. 2007, 26 February, paras. 80 to 141 and para. 471 (1), the operative clause on this question. This required a detailed examination of all the previous decisions in this case and in the related cases of the Request for Revision of the Judgment of 11 September 1996 as well as the Legality of Use of Force cases. 78 UNTS 277. ICJ Rep. 1993 3. Ibid. 325. ICJ Rep. 1996 595. ICJ Rep. 1997 243; ibid. 2001 572. ICJ Rep. 2003 7.

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the Initiative but that the respondent would be free to present further argument on the jurisdictional question in the oral proceedings. Those proceedings commenced on 27 February and continued to 9 May 2006. The respondent called six witnesses and one witness-expert. Judgment was delivered on 26 February 2007. In that lengthy judgment (471 paragraphs) the Court, after disposing of the outstanding jurisdictional questions raised by the Initiative, by the substantial majority of thirteen votes to two found that Serbia (as the respondent had come to be known) had not committed genocide, through its organs or persons whose acts engaged its responsibility under customary international law, in violation of its obligations under the Genocide Convention; by the same majority that Serbia had not conspired to commit genocide, nor incited the commission of genocide in violation of the Convention; by eleven votes to four that it had not been complicit in genocide, in violation of its obligations under the Convention; by twelve votes to three that Serbia had violated the obligation to prevent genocide, under the Convention, in respect of the genocide that occurred in Srebrenica in July 1995; that Serbia had violated its obligations under the Convention by having failed to transfer a named individual, indicted for genocide and complicity in genocide, for trial by the ICTY and thus had failed to cooperate with the Tribunal; by thirteen votes to two that Serbia had violated its obligation to comply with the provisional measures ordered in 1993, inasmuch as it had failed to take all measures within its power to prevent genocide in Srebrenica in July 1993;17 decided by fourteen votes to one that Serbia should immediately take effective steps to ensure full compliance with its obligations under the Convention and to transfer individuals accused of genocide to ICTY and to co-operate fully with that Tribunal; and found by thirteen votes to two that as regards the breaches by Serbia of the obligations referred to, the Courts ndings in the relevant paragraphs constituted appropriate satisfaction, and that the case was not one in which an order for the payment of compensation, or, in respect of the violation in respect of the genocide in Srebrenica in July 1995, a direction to provide assurances and guarantees of non-repetition, would be appropriate. The test of these proceedings will depend upon whether in the long run the judgment a veritable Judgment of Solomon but without the symmetry comes to contribute to the general improvement of relations in that disturbed and disturbing part of the world. Neither the subsistence of the proceedings commenced by the filing of the application in 1993, nor the later related proceedings of 1999 in the Legality of Use of Force cases, had

17

In para. 452 of the judgment the Court stated that the orders of 1993 created legal obligations which both parties were required to satisfy. This is not reflected in the operative clause of the judgment.

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any direct impact on the evolution of the situation in this part of the world and the judgment is almost entirely concerned with the past. This experience is not an encouraging sign for crisis management where the crisis is dominated by the use of armed force, whether legal or not: that is really the type of crisis for which the Security Council has primary responsibility under the Charter. The case also shows that current procedures are probably inadequate for a fact-intensive contentious case, where speedy action is required for effective crisis management.18 One wonders, however, what the Courts answer could have been had the issues been put before it in a request for an advisory opinion, following President Ahtisaaris suggestion noted above. (ii) On 13 March 1994 at the height of the Kosovo crisis of that period, Yugoslavia purported to institute proceedings against member States of NATO. That document addressed different actions of NATO forces in Yugoslavia. However, the Registrar found that it did not comply with the conditions required of an application instituting proceedings. He therefore took no further action on it.19 (iii) On 29 April 1999 Yugoslavia brought ten separate cases against NATO member States, alleging violations of the Genocide Convention through the bombing of Serbia in connection with the Kosovo crisis. Simultaneously in each case it requested provisional measures designed to stop that military action. Those are the Legality of Use of Force cases. In a series of ten Orders of 2 June 1999, the Court found that it was manifestly without jurisdiction in the cases brought against Spain and the United States of America and ordered their removal from the list. In the remaining eight cases the Court found that although it lacked prima facie jurisdiction and therefore could not indicate provisional measures, nevertheless it could not at that stage prejudge the question of jurisdiction.20 The issue of NATOs actions in 1999 is still a matter of high controversy. It has led to an unusual statement by the prosecutor of ICTY justifying a decision not to initiate proceedings against NATO or members of the NATO force for possible violations of international humanitarian law,21 and powerful reports from Amnesty

18

19 20 21

See further in Controlling Interlocutory Aspects of Proceedings in the International Court of Justice, Essay 15 below. A notable feature of this judgment is that the violations of the Genocide Convention attributed to the respondent all occurred after the institution of the proceedings. Likewise, the asserted violation of the orders on provisional measures specically attributed to Serbia occurred at a time when there was widespread uncertainty as to the binding force of an order indicating provisional measures. That uncertainty was only removed in the judgment of 2001 in the LaGrand case, ICJ Rep. 2001 466. See the Report of the International Court of Justice 1 August 199331 July 1994, 49 GAOR Supp. 4 (A/49/4) para. 23 (1994); M. Bulaji,c, Alternative Yugoslav Tribunal 209 (1995). ICJ Rep. 1999I 124. Preliminary objections were raised in all eight cases, and the Court found that it had no jurisdiction to entertain them. See note 10 above. Statement of 13 June 2000, ICTY Press Release PR/P.I/S./510e, following a discussion in

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International22 and other neutral bodies alongside reports of the Government of Yugoslavia, themselves found by the ICTY prosecution to be generally reliable in many respects. (iv) On 2 July 1999 Croatia led proceedings against Yugoslavia alleging violations of the Genocide Convention.23 As in the similar case brought by Bosnia, this case looks to the past. We therefore pay no further attention to it beyond noting its existence. (v) In resolution 827 (1993) of 25 May 1993, the Security Council, acting under Chapter VII of the Charter, established the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia (ICTY).24 The Security Council took this unusual action because of its grave alarm at continuing reports of widespread violations of international humanitarian law and in particular the practice of ethnic cleansing, which it determined was a threat to international peace and security (resolution 808, 22 February 1993). As things are developing, there may be some cross-seeding between ICTY and the two cases pending in the ICJ relating to the application of the Genocide Convention.25 (vi) Under the General Framework for Peace in Bosnia and Herzegovina, the Dayton Agreement of 1995, an Inter-Entity Boundary Line between Bosnia and the Republika Srpska was, failing agreement, to be established by binding arbitration. No agreement having been reached, the issue went to arbitration. Absent agreement on the third arbitrator, the President of the ICJ, exercising his extrajudicial power of appointment, appointed Roberts B. Owen. The latter rendered the Brc ko Area Boundary award on 14 February 1997 and a Final Award on 5 March 1999.26 This is another instance of the

22 23 24

25 26

the 4150th meeting of the Security Council on 2 June 2000, with a second discussion in the 4161st meeting, 20 June 2000. On the reliability of the documentation before the Prosecution, including a compilation of the Government of the Federal Republic of Yugoslavia, see para. 90. The Prosecutors Ofce also made use of the documents led by Yugoslavia in the International Court, ibid. para. 6. Amnesty International, June 2000, NATO/Republic of Yugoslavia: Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force. See Orders of 14 Sept. 1999, 10 Mar. 2000 and 27 June 2000. See ICTY, Basic Documents 1998, Sales No. E/F-98IIIP1. The Security Council has shown little interest in the ongoing work of ICTY which, however, reports regularly to the General Assembly. However, in resolution 1503 (2003) of 28 August 2003 the Security Council called for ICTY to complete its work by the year 2010. For the report of an Expert Group to conduct a review of the effective operation and functioning of ICTY and the Rwanda Tribunal, see doc A/54/634, and for the comments of ICTY see A/54/850, since consolidated in S/2000/597. These are the most authoritative contemporary assessments of the work of ICTY. Cf. Some Points of Contact between the International Criminal Court and the International Court of Justice, Essay 18 below. For the Brc ko Area Boundary Award, see 52 SCOR Supp, for January, February, March 1997

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use of legal proceedings in crisis management. The negotiators at Rambouillet could not agree on this issue and deferred it to arbitration. The arbitral process showed sensitivity to all relevant points of view, and its outcome seems to have been successful in removing this disagreement and preventing another crisis from erupting there.27 (vii) The Agreement between Croatia and Bosnia-Herzegovina on Free Transit through the Territory of the Republic of Croatia to and from the Port of Ploce and through the Territory of Bosnia and Herzegovina at Neum, signed at Zagreb on 22 November 1998, required the International Tribunal for the Law of the Sea to appoint the seventh member of a supervisory Commission. The Tribunal appointed its President at the time, Judge Mensah.28 (viii) During the year 2000, relatives of the staff of Radio Television Serbia in Belgrade instituted proceedings in the European Court of Human Rights against NATO members that are parties to the European Convention on Human Rights. The Grand Chamber found that the impugned action of the respondent States did not engage their responsibility under the Convention and that the application was inadmissible.29

27

28

29

(S/1997/126, Annex). It was noted by the Security Council in resolution 1103 (1997), 31 Mar. 1997. It was followed by a Supplemental Award of 15 March 1998, and a Final Award of 5 March 1999 with an Annex of 18 August 1999. For the Final Award, see 38 I.L.M. 1999 p. 534. The Final Award was approved by the General Assembly in Res. 54/119, 16 Dec. 1999. The parties were the Federation of Bosnia and Herzegovina and the Republika Srpska, so this was not strictly speaking an inter-State arbitration. It is, however, in implementation of a formal inter-State agreement and is analogous to one. This and related material is available on the website of the Ofce of the High Representative, <http://www.ohr.int/ brcko.htm>. The Presiding Arbitrator, Roberts B. Owen, a Washington Attorney, is not to be confused with David Owen, who was Co-Chairman of the Steering Committee of the European Conference and was active in connection with the Badinter Commission. For the Dayton Agreement, see 50 SCOR, Supp. for October, November, December 1995 (S/1995/999). Under the Dayton Agreement (see previous note), the Ofce of the High Representative and the Mission to Bosnia-Herzegovina of the Organization for Security and Co-operation in Europe have functions in connection with the establishment of a civilian government, including specic functions in connection with elections. The Provisional Election Committee, composed of nationals and international personnel, has issued many binding decisions. They are not included in the catalogue of international judicial organs operating in connection with the Yugoslav crisis. Particulars are available on their websites, <www.oscebih.org> and <www.ohr.int>. UN Doc. A/53/762 S/1998/1118, 25 Nov. 1998; Annual Report of the International Tribunal for the Law of the Sea for 1998, Doc. SPLOS/35, 31 Mar. 1999, para. 17. That was the rst instance of the exercise of the extra-judicial power by ITLOS. The case is entitled Bankovi,c v Belgium and Others (the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey, and the United Kingdom) (Application No. 52207/99), 11 BHRC 435, 123 ILR 94.

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These frequent instances of recourse to judicial organs do not all stand on the same footing. The work of the Badinter Commission was squarely in the role of crisis management in its early phases. Its advisory opinions, rendered to the Conference that appointed it, had a long-range impact on the evolution of the crisis. Bosnias initial contentious case had as its immediate objective not the indication of provisional measures generally something that could have been taken for granted in the conditions of the time but specically a decision, even if in an order indicating provisional measures then of problematic legal character, embodying a reinterpretation of a major resolution of the Security Council. Bosnias principal request was for the Court to indicate that Security Council resolution 713 (1991), 25 September 1991, imposing a weapons embargo upon the former Yugoslavia, must be construed in such a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia under Article 51 of the Charter and the rules of customary international law. Yugoslavia had asked for that resolution at the time. Yugoslavias ten suits against member States of NATO at the height of the bombing of Serbia in 1999 were similar. Their urgent aim was to obtain from the Court an order requiring an immediate stop to the bombing. The Court refused both of those requests, stressing that each matter lay within the competence of the Security Council. It is notable that two major antagonists in the confused situation then existing saw a possibility that the ICJ could play a role, favourable to them, in crisis management. The Brcko Awards were made in application of the Peace Agreement and avoided further crisis. The two instances in which standing judicial organs were to act as appointing authorities for organs established by treaties, each part of the crisis solution measures, belong to the category of disputeprevention or dispute settlement measures. ICTY has an entirely different role. If the references to Chapter VII of the Charter in the constituent resolution and later repeated references to ICTY in resolutions both of the General Assembly and of the Security Council and in the Dayton and other accords have any legal meaning, the Security Council may have intended it to ease the political crisis. By acting under Chapter VII, the Security Council saw in its establishment an action with respect to threats to the peace, breaches of the peace and acts of aggression (to take the heading of Chapter VII), action directed to the restoration of international peace and security. Considering the disturbing reports prepared by the United Nations showing that serious beaches of international humanitarian law had occurred during the ghting, the Security Council also clearly intended ICTY to have a deterrent effect and to improve the application of international humanitarian law in the bitter armed struggles that were taking place. These two objectives may not always be mutually reconcilable. No assessment of ICTYs achievements in either capacity is possible yet, although some are inclined to see some of its actions as obstacles to the complete pacication of the area. In all these cases involving only States, the traditional rule of the consen-

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sual basis of the contentious jurisdiction, rmly rooted in the sovereignty of States, has on the face of things been observed. Except for ICTY, where different considerations applied, the consent of all States parties and of other relevant entities has been required before the judicial organ could deal with the merits of any of these cases. Nevertheless, in all the contentious cases to date in the ICJ the named respondent or respondents have been unwilling, requiring the Court to establish positively its jurisdiction over the merits and the other relevant conditions for the indication of provisional measures. This in turn has led to the raising of preliminary objections, in that way prolonging indenitely the Courts nal decision on the case. This does not prevent the exercise of incidental jurisdiction to indicate provisional measures if the application meets the low threshold of establishing a prima facie case of jurisdiction over the merits. If the applicant fails in that, the judicial organ cannot operate. The Legality of Use of Force cases brought against Spain and the United States show this. Here one can detect, especially in the orders indicating provisional measures of protection, cautious attempts by the Court to give indications at large of the legal position and to stretch to the utmost its discretionary powers to state the law, even when it is unable to go further in terms of a decision. There has also been some unwillingness by States to co-operate with ICTY, notwithstanding that the Security Council resolution establishing it is binding under Article 25 of the Charter. III. The Crisis in the Congo Another crisis in which the ICJ has become involved is the situation in the Democratic Republic of the Congo (DRC). Four cases arising from this crisis have come before the Court, two of them including a request for the indication of provisional measures. (i) In the cases concerning Armed Activities on the Territory of the Congo, armed forces of neighbouring States had invaded territory of the DRC. In 1999 the Congo instituted proceedings against its neighbours Burundi, Rwanda and Uganda, alleging acts of armed aggression perpetrated by the respondents on its territory. In the cases against Burundi and Rwanda, the forum prorogatum jurisdiction was invoked, and with it the compromissory clause of the Convention against Torture and Other Cruel or Degrading Treatment or Punishment of 10 December 1994.30 In the case against Uganda, the Congo invoked the declarations accepting the compulsory jurisdiction.

30

1465 UNTS 85. The DRC withdrew the case against Burundi, ICJ Rep. 2001 3. It also withdrew the original case against Rwanda, but led a new application in 2002. The Court rejected a request by the DRC for provisional measures and later found that it had no jurisdiction to entertain the application, ibid. 2002 219 and 2006 3 February.

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In that case, on 19 June 2000 Congo requested the indication of provisional measures, following the resumption of ghting in the country early in June. That had come before the Security Council which, acting under Chapter VII of the Charter, adopted resolution 1304 (2000) on 16 June 2000. That resolution did not go as far as the Congo had wished, and the request for provisional measures attempted to take the matter further. The Court, however, while deciding that the circumstances justied an indication of provisional measures, did not go beyond what the Security Council had already ordered.31 The Security Council had determined in resolution 1304 (2000) of 16 June 2000, acting under Chapter VII of the Charter, that the situation in the Congo continues to constitute a threat to international peace and security in the region. The Court picked this up and in paragraph 44 of its order indicating provisional measures of protection was of opinion that there existed a serious risk of events occurring which might aggravate or extend the dispute or make it more difcult to resolve. That was justication enough for the indication of provisional measures. Although the rst these are the rst cases before the ICJ in which the respondent is directly charged with acts of armed aggression, it is not possible to say yet what the Court could do in this type of situation. The charges of aggression are another indication that States are showing interest in involving the Court in peace-keeping and crisis management. It is to be noted that in these cases, and particularly in the case against Uganda, the Court fell shy of any nding that acts of aggression had been committed, in this following sub silentio the lead of the Security Council. Indeed in paragraph 146 of the judgment the Court stated clearly that certain impugned acts did not come within the General Assemblys denition of aggression in resolution 3314 (XXIX) of 14 December 1974. In such delicate matters as aggression or threats to international peace and security the Court cannot be expected to go further than the Security Council. The Courts backing of Security Council decision in what is now clearly a binding order on provisional measures can only strengthen the force of the binding decision of the Security Councils decision taken under Chapter VII of the Charter. There is another parallel with the Yugoslav crisis. At an earlier stage of this crisis, horrendous acts of genocide were committed in Rwanda. This led

31

ICJ Rep. 2000 111. In the hearing, Uganda hinted that it would be contesting the Courts jurisdiction. However, in the counter-memorial Uganda led counter-claims, not all of which were admitted, ibid. 2001 660. Uganda challenged aspects of the admissibility of some of the claims of the DRC not by way of a preliminary objection but by way of a plea in bar. In its judgment on the merits the Court found for each party on its claim and counter-claim, and laid the basis for further proceedings by each side for judicial determination of the reparation due, in the event of the parties failure to reach agreement on this, ICJ Rep. 2005 19 December.

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the Security Council, acting under Chapter VII of the Charter, to establish the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Criminal Law in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 (ICTR).32 On 17 October 2000 the DRC instituted proceedings against Belgium concerning an arrest warrant issued by a Belgian examining magistrate against the acting Minister for Foreign Affairs of the Congo on charges of serious violations of international humanitarian law embodied in Belgian law. It also requested provisional measures to have the arrest warrant withdrawn forthwith. There was a cabinet reshufe in the Congo after the application was led, and the person concerned was moved to another Ministry. In its Order of 8 December 2000 in the Case concerning Arrest Warrant of 11 April 2000 the Court declined to regard the proceedings as moot and to remove them from the General List, as Belgium requested, following the cabinet reshufe. It found that the circumstances as they presented themselves to the Court were not such as to require the exercise of its powers to indicate provisional measures.33 That is a new form of temporizing decision which apparently leaves it open to the applicant to return to the Court if it considers that new circumstances could justify this. Considering the general crisis situation existing in the Congo and surrounding countries at the time, this can be seen as another opening for the Court to have a role in crisis management. In its judgment on the merits the Court rejected objections to the jurisdiction and the admissibility of the case, and found in favour of the claim of the DRC.34 IV. Relations between the United States of America and Iran The fall of the Shah of Iran and the accession to power of the Ayatollah Khomeini in February 1979 was to produce a series of major cases in the ICJ. It also led to the establishment of the Iran-U.S. Claims Commission which has determined a large number of cases involving individual claimants of either country as well as some inter-governmental claims. The rst of these cases was the United States Diplomatic and Consular Staff in Tehran case, brought by the United States against Iran.35 This case arose

32 33 34 35

Security Council Resolution 966 (1994) of 8 November 1994. ICJ Rep. 2000 182. In this period the DRC was involved in another case not directly connected with the political situation, the Ahmadou Sadio Diallo case (Guinea v DRC, pending). ICJ Rep. 2002 2. ICJ Rep. 1979 7 (Provisional Measures), 1980 3 (Merits), 1981 (Discontinuance).

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directly out of the events of 4 November 1979 when a mob in Tehran invaded the U.S. Embassy in that City and took all persons in it as hostages. Here the Court indicated appropriate provisional measures which were similar to those for which the Security Council had called earlier. In 1980 judgment was given in favour of the United States. It required Iran to make reparation to the United States for the injury caused by the events of 4 November 1979. The Court would settle the form and amount of such reparation if the parties could not reach agreement on it. Agreement was reached in the Algiers Declaration of 19 January 1981.36 That settlement also led to the establishment of the Claims Commission. Two cases arose out of incidents occurring during the Iran/Iraq hostilities of the 1980s. In 1989 Iran instituted proceedings against the United States in its claims following the accidental shooting down of an Iranian civil aircraft with heavy loss of life on 8 July 1988. In 1996 this case was settled and Iran discontinued the proceeding.37 That was followed by the Oil Platforms case, which Iran instituted on 2 November 1992 and which occupied the Court for ten years until it delivered its nal judgment on 6 November 2003.38 The origin of this case lay in some incidents in the Persian Gulf between 1980 and 1988, the time of the armed conict between Iran and Iraq. In a judgment of Solomon the Court nally declined to uphold the claim of Iran and the counter-claim of the United States. In all this period the level of tension between the two countries was high and the possibility of incidents involving the use of armed force was always a factor. How far these court actions deected political thinking away from the eventuality of the use of armed force cannot be known until more archival material is available. For present purposes it is sufcient to note that both sides have employed judicial techniques in their efforts to arrive at a settlement of their disputes arising out of individual incidents. V. The typology of the crises There are several types of crisis. A crisis may arise out of a single incident. There are crises caused by strained relations between two States when for some reason low-intensity tension breaks into something more serious and

36 37

38

For the Declaration of Algiers, see Iran-U.S. Claims Commission Reports, vol. I at 3. ICJ Rep. 1996I 9. This settlement was part of a broader General Agreement on the Settlement of Certain ICJ and Tribunal cases of 9 February 1996. For the Award on Agreed Terms in the Claims Commission, see the Claims Commission Reports, vol. 32 207. ICJ Rep. 1996 803 (Preliminary Objection), 1998 110 (Counter-claim), 2003 161 (Merits).

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becomes a threat to international peace and security. Others originate in an event such as the dissolution of a State, when that dissolution takes place in a situation of mutual hostility and mistrust, endangering international peace and security. Political instability and outside intervention in a State can lead to a major crisis. The threat or use of armed force often appears as a means to inuence the outcome of the crisis.39 Since the Badinter Commission was the rst of its kind established in direct connection with a system of crisis management following the dissolution of a State, it is interesting to see the type of question that the European Conference put to it. The most signicant in terms of the crisis related directly to the break up of the SFRY and the dates of the independence of its component parts. These are notably: Opinion 4 on the recognition of Bosnia, Opinion 5 and an unnumbered Opinion of 1992 on the recognition of Croatia and on its Constitution, Opinion 6 on the recognition of Macedonia, Opinion 7 on the recognition of Slovenia, Opinions 8, 9 and 10 on the dissolution of SFRY and whether the Federal Republic of Yugoslavia established by Serbia and Montenegro met the requirements of statehood and required recognition, and Opinions 10 and 11 on the dates of emergence of the successor States. The Commission also dealt with the frontiers of the new States, applying the principle of uti possidetis, although its application in Europe is not to be taken for granted (Opinions 2 and 3); the protection of minorities (Opinions 5 and 7); recognition and its effects (Opinion 8), and different aspects of State succession (Opinions 9, 12, 13, 14 and 15). One wonders how far all these are questions for a judicial organ. Recognition is traditionally and by its nature a political matter, although if premature, it may have legal consequences and engage the international responsibility of the recognizing State. On the other hand, one can see an opening for the use of judicial procedures for condence building measures in the early phases of crisis management. In an interlocutory decision of 1992 before delivering Opinions 8, 9 and 10 over the opposition of Yugoslavia, the Commission decided that it falls to it to give a judgment [sic] on its competence. It went on to say that given the functions which have been given to it, it was competent to reply in the form of Opinions to the three questions submitted to it.40 In a 1993 document entitled Reactions of the Members of the Arbitration Commission of the International Conference on the Former Yugoslavia to the Statement made by the Federal Republic of Yugoslavia Government on its Competence, of unclear status, the Commission claried its competence in

39

40

Situations in which the use of armed force is not in contemplation, even if on the active agenda of the Security Council, are not relevant here Therefore the so-called Lockerbie Crisis is not within the scope of this article. 92 ILR 194 199.

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light of its reconstitution in 1993. Its competence as an advisory body stemmed not from the consent of the parties concerned but from the mere fact of the referral to it by the Co-Chairmen of the Conference. The reply to a question put before it in this context is only of an advisory character; as such it has no binding force (citing here from the ICJs advisory opinion in the Peace Treaties case).41 Echoing statements by the ICJ in connection with its advisory competence, the Commission explained that it gives the opinions not to the States but to the Co-Chairmen of the Conference, in order to furnish them with information needed to take decisions.42 If a court or tribunal is directly involved in crisis management to the extent of the Badinter Commission, it must be able to work with speed. The Commission met this requirement. It worked quickly. We know nothing of how it deliberated. Its Opinions do not state the majority by which they were adopted, and no individual opinions, whether concurring or dissenting, are appended. The reasoning is very sparing and even dogmatic. The questions were not always well formulated, and there were no normal pleadings, written or oral, before it issued its opinions. Nevertheless, despite what some might see as drawbacks, those opinions are useful indications of the type of issue of fact and of law that in a major crisis of that type and it is a common form of international crisis the crisis managers could put to a judicial organ. They also serve as a warning against hasty use of ad hoc judicial techniques without proper safeguards for all the interests directly concerned, including interested non-State and other sectoral bodies. The questions relate to issues that the Security Council, which at the time was seised of the whole situation in the former SFRY, could if properly formulated have requested the ICJ for urgent advisory opinions. It is a matter of speculation whether either the General Assembly or the Security Council would have put such questions to that Court had the Badinter Commission not foreclosed any such action. VI. Crisis cases in the International Court It is not widely appreciated that since 1946 the ICJ has more than once dealt with a crisis (not necessarily a situation constituting a threat to international peace and security) through a contentious case. Perhaps it is curious that no

41 42

ICJ Rep. 1950 65 at 71. 96 ILR. 713. The analogy with an advisory opinion of the ICJ is strained, since being a party to the Statute of the ICJ embodies consent to the exercise of the advisory jurisdiction. See n. 3 above. That element was absent from the Badinter Commission.

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qualied organ of the United Nations or of a specialized agency has ever invoked the advisory competence for this purpose.43 The rst contentious case to come before the ICJ, the Corfu Channel case, is a classic example of using the Court as a means for resolving a crisis arising out of an incident. The case came before the Court on the basis of a recommendation of the Security Council under Article 36 (3) of the Charter. The incident occurred in Albanian territorial sea in the Corfu Channel on 22 October 1946, when two British warships struck mines in an unknown mineeld. The explosions caused heavy loss of life and serious damage to the ships. Another incident occurred in the same waters on 12 and 13 November, when ships of the Royal Navy entered the Albanian territorial sea on a minesweeping operation. There was tension between the two countries, probably not serious international tension in itself but the area in which the incidents occurred, in the Ionian Sea, the coast of the Balkans, was a sensitive focal point as the Cold War began to take shape. The two riparians, Greece and Albania, claimed to be in a state of war with each other. The Security Council discussed the matter from 20 January to 9 April 1947, and then adopted resolution 22 (1947). It recommended that the two countries should immediately refer the dispute to the-International Court of Justice in accordance with the Statute of the Court.44 On 22 May the United Kingdom commenced the proceedings, limited to the incident of 22 October. The United Kingdom founded the jurisdiction on a series of thoughtprovoking and imaginative arguments based on the combination of the Security Council resolution and relevant provisions, notably Articles 25 and 36 of the Charter and Albanias acceptance of the Charter conditions for participation in the Security Council debate. On 22 July Albania informed the Court that, while contesting the basis of jurisdiction invoked by the United Kingdom, it accepted the jurisdiction. Later Albania raised a preliminary objection that the application was inadmissible, not having been submitted in accordance with the Statute. Basing itself on Albanias direct acceptance of the jurisdiction in its message of 22 July, the Court was unanimous in dismissing that objection, only

43

44

In the rst two decades of the United Nations, both the General Assembly and the Security Council were seised of proposals to request advisory opinions on current issues before them. Many of the questions proposed for advisory opinion were slanted and designed to secure political advantage for one side in a conict. For particulars, see Sh. Rosenne, above n. 3, Vol. I at 294 (General Assembly) and 316 (Security Council). If an advisory opinion is requested for the guidance of the requesting organ, the question should be framed in neutral terms. In accordance with Art. 27 (3) of the Charter, the United Kingdom did not take part in that vote, and in accordance with Art. 31, Albania participated in the Security Council discussion without a vote. The parties were thus on a footing of formal equality in the Security Council.

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the judge ad hoc dissenting. However, seven judges of the majority added a separate opinion upholding Albanias argument as to the irregularity of the original application, and rejecting the British contention that the Charter had opened a new source of compulsory jurisdiction on the basis of a recommendation of the Security Council.45 That opinion was unnecessary and we may regret its long term implications. It nevertheless turns on the word recommends which the Security Council used in a resolution adopted under Chapter VI of the Charter. It has no relevance for any resolution of the Security Council using another word, or one adopted under Chapter VII of the Charter. Immediately before the Court read the Judgment on the preliminary objection, the parties concluded a special agreement that also covered the mine-sweeping operation, seen as a counter-claim. Those combined actions of the Security Council and of the United Kingdom together successfully defused any remaining tension arising out of the original incident. The importance of that case for the development of judicial techniques is that it has opened the way to the unilateral institution of proceedings without a clear basis for the jurisdiction of the Court, jurisdiction to be perfected by the respondent after the application has been led. This is sometimes called forum prorogatum jurisdiction, and Article 38, paragraph 5, of the 1978 Rules of the ICJ codies this.46 Although this way of invoking Court procedures has not yet been successfully used in crisis situations, the Courts action in the Legality of Use of Force cases against Spain and the United States shows that it may require the respondent to invoke any relevant reservations before declining to exercise jurisdiction, and not give automatic effect to manifest bars to its jurisdiction. More than that: even in rejecting cases the Court may nd a way to address underlying legal issues. That is already a new view of the Courts function, and is an inroad into the wall of national sovereignty around the Courts ability to contribute to the restoration of international peace and security.

45

46

ICJ Rep. 194748 31. For the merits, see ibid. 1949 4 and for the decision on the compensation due to the United Kingdom, ibid. 244. For the nal settlement of this dispute, after the collapse of the Socialist regime in Albania, see United Kingdom Materials on International Law (G. Marston, ed.), in 63 BYIL. 781 (1993). The dissenting opinion in the 1947 judgment was by Vice-President Basdevant, and Judges Alvarez, Winiarski, Zorici,c, de Visscher, Badawi and Krylov. In the Aerial Incident of 10 August 1999 case, the Court conrmed that the Charter of the United Nations contained no provision of itself [italics added] conferring compulsory jurisdiction on the Court, ibid. 2000 12, 32 (para. 48). Judge Bedjaoui, as President of the Court, made a forceful statement encouraging use of the Courts forum prorogatum jurisdiction in the Sixth Committee during the 51st session of the General Assembly. See A/C.6/51/SR.31, 4 Nov. 1996.

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The provisional measures phase of the Anglo-Iranian Oil Co. case provided a very striking use of the Court when international peace and security were at risk. Early in 1951 the Iranian authorities announced a policy of nationalizing the oil industry in Iran, enacting relevant laws on 1 May. That led to a dispute between the Government of Iran and the Anglo-Iranian Oil Co. The British Government adopted the Companys cause in exercise of its right of diplomatic protection. Reports were current that it was preparing to use force against Iran. The United Kingdom commenced proceedings on 26 May 1951, and requested provisional measures on 22 June. The Courts Order of 5 July 1951 on its face does what the British Government wanted regarding the Companys installations in Iran.47 However, it went beyond that. The rst three of its ve operative clauses are addressed to both parties and requested each party to refrain from any action that might aggravate or extend the dispute before the Court. This formulation, now standard, establishes that indications of provisional measures ought to contain elements of mutuality and reciprocity and not be entirely one-sided statements to protect the rights claimed by one party. The last two operative clauses dealt specically with the protection of the British assets. The impact of those rst three clauses was not the same for either party. For Iran they meant that while the case was pending, no more steps were to be taken to interfere with the Companys operations in the country. For the United Kingdom, those clauses indirectly addressed the reports of contemplated military and naval action against Iran, emphasized by the Courts statement that it was acting proprio motu.48 Following those moves in the Court and in the Security Council, the tension decreased, and a year later, after the Court had found that it was without jurisdiction to decide the case,49 the road was opened to a diplomatic

47 48

49

ICJ Rep. 1951 89. For an account of the military preparations that preceded the institution of these proceedings, see J. Sztucki, Interim Measures in the Hague Court 300 (1983). Anglo-Iranian Oil Co. case, ICJ Rep. 1952 93. An inconclusive discussion in the Security Council followed the Order, also at British initiative, in an attempt to enforce the Order as far as concerned the Companys assets. See discussion at the 559th to 563rd and 565th meetings of the Security Council, Oct. 1951. At its 565th meeting on 19 Oct. 1951, the Security Council decided to postpone the discussion until the Court had ruled on its own competence to deal with the case. However, similar provisions in the orders indicating provisional measures in the Fisheries Jurisdiction cases (n. 6 above) did little to prevent the continuation of low-intensity conict involving units of the armed forces of the countries concerned. For those orders, see ICJ Rep. 1972 12, 30 and 1973 302, 313. On that impact of the provisional measures on that low intensity conict, see C.P.R. Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach 163 (2000). The ineffectiveness of the provisional measures cannot be dissociated from the fact that coastal State exclusive rights beyond its territorial sea was a central issue in the Third United Nations Conference on the Law of the Sea, then under way. ICJ Rep. 1952 93.

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settlement. At the time the recourse to the Court was not seen as an attempt to invoke Court procedures for purposes of crisis management. Looking at it half a century later, however, one can see that whole diplomatic/judicial exercise as showing a way to invoke the Court in crisis management, alongside the political organs created for that specic purpose. The Court realized that the issue of its jurisdiction to deal with the merits of the claim was not clear, and this posed a problem for it. Could it indicate provisional measures of protection before the issue of its jurisdiction was settled? To overcome that genuine problem, which the Statute does not answer, the Court introduced a major innovation into its practice. It asserted that its incidental jurisdiction to indicate provisional measures could rest on its assessment that prima facie the merits of the case might come within its jurisdiction. The Court has explained the meaning of this as that it has no need, before deciding on provisional measures, to satisfy itself beyond doubt that it has jurisdiction on the merits.50 That concept of prima facie jurisdiction is a low threshold test which today we take for granted. In 1951 it was a novelty. Time has shown that it has greatly increased the Courts ability to act in unforeseen circumstances. It has become another inroad into the wall of national sovereignty as a barrier to the Courts ability to function. The Courts action in the provisional measures phase of the Anglo-Iranian case is a noteworthy illustration of what the Court can do, even without the backing of the Security Council, in a situation of danger to the maintenance of international peace and security. VII. The use of provisional measures of protection in crisis management Following the Anglo-Iranian case, there has been increasing use of provisional measures of protection as a way to involve the ICJ in crisis situations, if the State taking the initiative can show prima facie jurisdiction and an element of urgency, even if it is on weak ground. The concept of prima facie jurisdiction has become a core element for this. During the last thirty or so years, requests for provisional measures have gone beyond measures obviously required to protect the rights that the requesting party is claiming. They have gone so far as to ask the Court for an interpretation, or even a reinterpretation, of a resolution of the Security Council as in the Bosnia/Yugoslavia case previously mentioned; or to enjoin two permanent members of the Security Council from proposing resolutions imposing binding non-military sanc-

50

Arrest Warrant of 11 April 2000 (Provisional Measures) case, ICJ Rep. 2000 182, 200 (para. 67).

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tions under Chapter VII of the Charter;51 and in other cases to put a stop to ongoing military action (the Legality of Use of Force cases, the Congo cases). The Court has given little encouragement to these ideas if they involve trespassing on the powers and duties of the Security Council. For instance, it has strongly asserted that it cannot make an order indicating provisional measures addressed to States or entities not parties to the proceedings on the ground that an arms embargo prejudices the States right to self-defence, or an order that would clarify action required of third States under Security Council decisions.52 At the same time, in proper cases the provisional measures procedure can be a factor in maintaining or restoring international peace. The Order in the Anglo-Iranian case was, it seems, a factor in defusing the tension, at least in part. In the same way, the Order in the Nicaragua case might have been a factor in reducing that instance of international tension. In other cases, provisional measures orders have been used to restrain frontier incidents and their tensions in pending cases and restore the status quo, essential if the judicial proceedings are to continue in an appropriately calm atmosphere, and to ensure the preservation of evidence necessary for the trial on the merits of a case. In such instances, there has been mutual assistance through parallel activities by the Security Council or by the competent regional organization. On occasion a carefully worded refusal by the Court to indicate provisional measures has been followed by for satisfactory negotiations to settle the dispute, or prevent it from growing more serious.53 There are other cases in which we can see an element of crisis management. The United States brought the Tehran Hostages case against Iran before the Court while the Security Council was dealing with the situation. That

51

52

53

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Provisional Measures), ICJ Rep. 1992. 3, 114 (these are separate cases, heard in common). The Court rejected a series of preliminary objections and the case proceeded to the merits, ibid., 1998 9 and 115. Following a change of policy on the part of Libya and its agreeing to meet the major claims that had been raised against it, these two cases were discontinued by agreement of the parties, ibid. 2003, 149, 152. This signied a general improvement in the relations between the countries concerned. Genocide Convention case, n. 12 above, ICJ Rep. 1993 at 344 (para. 40). At the Meeting of Experts convened at The Hague in May 1999 in honour of the centenary of the Peace Conference of 1899, under the rubric of the International Court of Justice the Experts drew attention to the need to solve existing problems of requesting interim measures of protection, including due regard for abuse of the system of the compulsory jurisdiction of the Court under Art. 36 (2) of the Statute. Doc. A/54/381, para. 93. For a strong attack on what he sees as an abuse of the right to institute proceedings before the Court, see S. Oda, The Compulsory Jurisdiction of the International Court of Justice: A Myth? A Statistical Analysis of Contentious Cases, 49 Intl & Comp. L.Q 251273 at p. 265 (2000), cited in his declaration (para. 8) in the Congo (Provisional Measures) case, n. 31 above. A classic illustration of this is the Passage through the Great Belt case, ICJ Rep.1991 12 (not a crisis case).

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crisis came before the Security Council immediately, and the Council adopted appropriate resolutions. The United States also took countermeasures against valuable Iranian economic assets in the United States. The United States commenced these proceedings on 29 November, and on the same day requested provisional measures. The Court in its order of 15 December 1979 noted Security Council resolution 457 (1979), 4 December 1979, as recognition of the threat to international peace and security posed by the continued detention of the diplomatic and consular staff in Teheran. It indicated provisional measures and, in an innovation, decided to keep the matter covered by the order under review.54 For its part, the Security Council, in resolution 461 (1979), 31 December 1979, took the Courts order into account, deplored the continued detention of the hostages contrary to its earlier resolution and the Courts Order, and decided to keep the situation under review. It also threatened action under Chapter VII of the Charter in the event of noncompliance with the resolution. That changed the Courts order into a Security Council resolution, with the possibility of coercive measures under Chapter VII in the event of non-compliance. Iran did not comply with the Security Councils resolutions or with the Courts Order and took no part in the Courts proceedings. The parties settled the dispute largely through the good ofces of the Government of Algeria. It is not known whether the Courts actions in this case had any direct impact on the resolution of the crisis, and no claims have been made in that respect. The Congo case was the opposite: a binding Chapter VII resolution of the Security Council was incorporated in an order of the International Court indicating provisional measures of protection. The Nicaragua case is also an instance of invocation of court procedures in a situation of general crisis in which the use of irregular armed force was alleged. Simultaneously with seising the Court Nicaragua requested provisional measures. The application charged that the United States was using military force against Nicaragua, and the request related directly to that.55 In its order the Court indicated unanimously that the United States should immediately cease and refrain from blocking Nicaraguan ports and in particular the laying of mines.56 Although as a diplomatic stance the United States, an unwilling respondent, did not accept the order, and despite uncer-

54

55

56

United States Diplomatic and Consular Staff in Tehran case Provisional Measures, ICJ Rep. 1979 7; Merits, ibid. 1980 3; Discontinuance, ibid. 1981 45 following a broad settlement not only of the hostages question but also of other outstanding issues, in the Algiers Agreement of 19 January 1981 (1 Iran-United States Claims Tribunal Reports 3). The Nicaragua case, ICJ Rep. 1984 165 (Provisional Measures), 215 (Declaration of Intervention by El Salvador), 392 (Jurisdiction and Admissibility), ibid. 1986 14 (Merits), ibid. 1991 47 (Discontinuance). ICJ Rep. 1984, p. 169.

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tainty at that time whether an indication of provisional measures was binding, the mining of the Nicaraguan ports did stop after that order. Cause and effect? Only when the archives are opened will we know. However, at the time the general situation in Central America was dangerous and partly connected with Cold War tensions. Later the President of Costa Rica was awarded the Nobel Peace Prize for his efforts in bringing that situation under control. In its judgment on jurisdiction and admissibility, the Court included a major statement in which it gave expression to a central element of its relations with the Security Council. It pointed out that while there is in the Charter
a provision for a clear demarcation of functions between the General Assembly and the Security Council, in respect of any dispute or situation, that the former should not make any recommendation with regard to that dispute or situation unless the Security Council so requires [a reference to Article 12 of the Charter], there is no similar provision anywhere in the Charter with respect to the Security Council and the Court. The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events (para. 95).57

The situation following the dissolution of the SFRY, as seen, provides major instances of the invocation of Court procedures alongside the Security Council in a grave crisis in which major use of armed force was characteristic. Yugoslavias action in April 1999 bringing suits against ten NATO members is the boldest attempt to take the Court into crisis management. That was a desperate attempt to invoke Court procedures to stop the NATO bombing of Serbia, large scale military action that did not have at the time any specic authority from the Security Council. Yugoslavias major difculty, which it could not overcome, was that there was no jurisdiction whatsoever in respect of the principal respondent, the United States of America (and as it turned out, also regarding Spain). The Court had no choice but to remove those two cases from its list. In the remaining eight cases, applying the test of prima facie jurisdiction the Court found that the circumstances brought to its notice did not come within the scope of the Genocide Convention that Yugoslavia had invoked as the basis for the Courts jurisdiction, so that its prima facie jurisdiction was not established. As a matter of judicial practice, however, that was a provisional nding and did not determine the question of jurisdiction over the merits. Therefore the cases proceeded to the next phase, when the Court found that it was without jurisdiction.58 Nevertheless, in all

57 58

ICJ Rep. 1994 434 (para. 95); Congo case, n. 30 above para. 36. ICJ Rep. 1999, Orders (ten) of 2 June and 2000, Orders (eight) of 8 September. A resolution of the Security Council does not necessarily trump action by the Court, as was brought out in the Congo case, n. 30 above.

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those orders, including those in the cases against Spain and the United States, the Court included three paragraphs that we have to quote in full:
Whereas, whether or not States accept the jurisdiction of the Court, they remain in any case responsible for acts attributable to them that violate international law, including humanitarian law; whereas any disputes relating to the legality of such acts are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties; Whereas in this context the parties should take care not to aggravate or extend the dispute; Whereas, when such a dispute gives rise to a threat to the peace, breach of the peace or an act of aggression the Security Council has special responsibilities under Chapter VII of the Charter[.]

Those cases show two things. One is that a State is prepared in very special circumstances to invoke Court procedures, especially its power to indicate provisional measures of protection, even if it can only establish prima facie jurisdiction over the merits of the case, however slender that might be. The second is that while the Court has shown itself very careful not to trespass on the authority of the Security Council to deal with a crisis situation involving the use of armed force if to do so would exceed the judicial function in the particular case, it nevertheless can, within the limits of the judicial function, indicate its views on the law. The Congo case shows that it will not hesitate to act even when the general situation is on the active agenda of the Security Council, if it is satised that its action comes within the judicial competence in that particular case, and that the Security Council has not taken decisions which prima facie would preclude the rights claimed as appropriate for protection by provisional measures. Although the prima facie mainline jurisdiction may be a low threshold, the Yugoslavia cases of 1999 show that even that low threshold is not something nominal but it has to be reached before the Court will entertain the requests. In all the cases examined in this context, the prima facie jurisdiction was later upheld in preliminary objection proceedings except in the Anglo-Iranian case. That was the only instance in which the Court indicated provisional measures only to nd later that it had no jurisdiction over the merits. Even there, however, it formally stated that the Order indicating the provisional measures only ceased to be operative upon the delivery of the judgment nding that the Court was without jurisdiction in the case. Usually, when the Court has indicated provisional measures of protection based on its nding of prima facie jurisdiction and it later holds that it is without jurisdiction, it will revoke the provisional measures as from the date of that later decision. However, this is not necessarily the end of the provisional measures. The Arbitral Tribunal that decided the Southern Bluen Tuna case declared that the revocation of the provisional measures did not mean

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that the Parties might disregard their effects or their own decisions made in conformity with the Order.59 The Order and those decisions, and the recourse to the tribunal that led to them, as well as the consequential arbitral proceedings on questions of jurisdiction and admissibility, had an impact also on the parties perspectives and actions, and seem to have unblocked the negotiations that had come to a standstill. That was not a case of crisis management in the sense used here. However, the doctrine of that Arbitral Tribunal suggests that provisional measures even in cases where later the jurisdiction is not upheld can have a forward reach for the parties perspectives and actions. That would enhance the role of a court in any process of crisis management. VIII. Moderation in conclusion We can now try to answer the question posed by this article. Is there a role for the International Court of Justice, and indeed for judicial action generally, in international crisis management? In answering that question, we must avoid exaggerated claims. If there is a role for judicial action in crisis management, it would at most be an auxiliary or supporting role. Crisis management is a political function performed both by States acting individually (whether singly or in co-operation with others on an ad hoc basis) and by competent international organizations, especially the Security Council or a regional organization acting within the framework of Chapter VIII of the Charter. The end of a crisis situation is a political solution which the interested participants accept. The precise status of those participants, whether as already existing States or as States-to-be, is immaterial for the purposes of crisis management. That is where the advisory competence, whether of the ICJ or of an ad hoc body such as the Badinter Commission (provided that it is adequately composed, has appropriate procedure, and is in an appropriate legal relation with the parties), can play a useful role. Moreover, it is in the advisory competence that the impact of national sovereignty on the working of an international judicial organ is at its lowest.

59

119 ILR 508, 555 (para. 67). We may also note the decision of the arbitral tribunal under Annex VII of the Law of the Sea Convention in the Mox Plant arbitration between Ireland and the United Kingdom, to suspend the proceedings pending a decision of the European Court of Justice. That suspension was without prejudice to the maintenance of provisional measures prescribed earlier by the International Tribunal for the Law of the Sea and carried through to the arbitral proceedings by virtue of article 290 of the Law of the Sea Convention of 1982, 126 ILR 314, 321 (paragraph 31). For the Law of the Sea Convention, see 1183 UNTS 3.

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Can courts and tribunals act with all the necessary speed? Experience of provisional measures in the ICJ shows that it can.60 Moreover, if the situation is also before the Security Council (as often it probably will be), the Secretary General could present observations that the Court would have to take into account.61 Advisory opinions would probably take longer, but the ICJ has rendered an opinion within a few weeks, and in some crisis situations that could be adequate.62 The Application of the Genocide Convention judgment is a strong indication that contentious proceedings against a politically unwilling respondent, under current procedural rules and practices, is likely to prove inadequate to deal with a crisis situation in which armed force is being used. Contentious proceedings in such circumstances inevitably lead to multifaceted and unanticipated procedural complications. This will be aggravated should the case be fact-intensive and partly dependent on condential or redacted archives. However, this is not necessarily so in advisory cases. At the same time, the ICJ has opened possibilities of a role for itself in crisis management, even in cases of threats of breaches of international peace and security. It can do this thanks to its status as a principal organ of the United Nations with no restrictions on its power and even duty to resolve legal disputes with the consent of the parties. Its efciency for this purpose is enhanced when it can work with the Security Council. The impact of national sovereignty can prevent it from deciding contentious cases without the formal consent of the interested States. Yet it has shown capacity to furnish authoritative legal guidance even when its formal jurisdiction over the merits of a dispute has not been established. There are signs that States, and for its part the Security Council, would hesitate before ignoring that legal guidance. This is a delicate innovation that has been forced on the Court by circumstances beyond its control, and it must be both protected and not over-used or over-rated. Yet it is there, embedded within the Charter, as part of the mechanism available to the United Nations for the maintenance of

60

61 62

The Order in the LaGrand (Germany v U.S.) case was issued within 30 hours of the ling of the request (without any hearing), ICJ Rep. 1999 9. In the Congo case, the request was led on 19 June 2000. Hearings took place on 26 and 28 June (interrupting hearings in another case), and the Order was issued on 1 July. The request for the advisory opinion on the Interpretation of the Headquarters Agreement was led on 4 March 1988. Hearings were held on 11 and 12 April. The advisory opinion was delivered on 26 April 1988, ICJ Rep. 1988 3. That was not a crisis case, but it was urgent. ICJ Rules of Court, Art. 74 (3). The Rule is couched in impersonal language. ICJ Rules of Court, Art. 103, envisages an accelerated procedure. There is a time lag of a few days, perhaps even a week, between the adoption of the decision and its publication (usually by reading in open court and inclusion in the website). Perhaps the Court could consider adopting in appropriate circumstances the practice of some national courts of announcing the operative decision as soon as it is adopted, and publish the reasons later (within a very short time limit).

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international peace and security. In short, courts, and more particularly the International Court of Justice, can and do play a role in crisis management, and that role does not have to be limited to advisory cases if a real basis exists for the Courts contentious jurisdiction. There is room to increase that role in appropriate cases, such as one in which there are no serious differences over the relevant facts of the case. Has this affected the concept of sovereignty? In contentious cases the ICJ, and following it other international courts and tribunals and international arbitrations, have insisted on the consensual basis of their jurisdiction to decide the merits of a case. National sovereignty is pervasive, and no decision can be made by any international court or tribunal without that consent freely given. I submit that in two respects the preceding survey shows that under the inuence of the United Nations Charter, both the Court and States are showing awareness that the maintenance or the restoration of international peace may require States forego some of the attributes of sovereignty, provided they do so freely and willingly. Van Kleffens lectures cited earlier show that while membership in the UN involves a relinquishment of some elements of sovereignty, it has not yet gone so far as to remove the obstacles to judicial settlement imposed by the requirement of consent before an international court or tribunal can decide a case. This has not prevented the ICJ from expressing its views on major issues even if its powers in a given case are limited.63 The obstacles that sovereignty imposes on the contentious jurisdiction of the International Court are less prevalent in the advisory jurisdiction. In some recent noncrisis advisory cases, the Court has made it clear that it will not allow claims of sovereign right to prevent its giving guidance that a responsible organ of the United Nations has requested.64 There is no reason why the Court should not adopt a similar attitude when asked for guidance in a crisis situation.

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In this context, there is interest in a recent suggestion that if a sufcient basis of jurisdiction exists, a sanctioned State, whether by the Security Council, by regional organization acting under Chapter VIII of the Charter, or by an individual State, could test the legality of the sanctions, or their continuation, through the Court. For that suggestion, see Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, The adverse consequences of economic sanctions on the enjoyment of human rights, Working Paper prepared by Marc Bossuyt, doc. E/CN.4/Sub.2/2000/33, para. 106. And see J. dAspremont, The Recommendations made by the International Court of Justice, 56 International and Comparative Law Quarterly 165 (2007). Two examples, both relating to the General Convention on the Privileges and Immunities of the United Nations, can be given: (1) the Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations adv. op. (the Mazilu case), ICJ Rep. 1989 177; (2) the Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights adv. op., ibid. 1999 62 (the Cumaraswamy case).

4
ARTICLE 95 OF THE CHARTER REVISITED

Article 95 of the UN Charter reads:


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 contracted in the future.

At rst sight there is nothing particularly noteworthy about that provision, which parallels the freedom of choice provision for the settlement of disputes contained in Article 33 of the Charter. However, Article 95 has been examined once directly by the International Court of Justice1 and the principle underlying it has also once been considered indirectly.2 That warrants its further examination. The topic can also be of relevance in the current debate over the multiplication of international courts and tribunals. I. Historical Background the Hague Conference of 1907 The origin of Article 95 is found in Article 1 of the draft convention relative to the creation of a Court of Arbitral Justice prepared in the First Commission of the Hague Peace Conference of 1907 but left in draft form by that Conference.3 By that Article:

1 2 3

Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (hereafter Cameroon-Nigeria case), Preliminary Objections, ICJ Rep. 1998, 275, 307 (para. 69). Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (hereafter Qatar-Bahrain case), ICJ Rep. 2001 40. For an English translation of the proceedings of that Conference, see J.B. Scott (ed.), The Proceedings of the Hague Peace Conferences: The Conference of 1907, vol. I, the plenary meetings (New York, Oxford University Press, 1920), Vol. II the proceedings of the First Commission (New York, 1921). For the report of the First Commission recommending the creation of a Court of Arbitral Justice, J.B. Scott, reporter, see also Sh. Rosenne (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents 169 (The Hague, T.M.C. Asser Press, 2001).

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With a view to promoting the cause of arbitration, the contracting Powers agree to constitute, without altering the status of the Permanent Court of Arbitration, a Court of Arbitral Justice, of free and easy access, composed of judges representing the various judicial systems of the world, and capable of ensuring continuity in arbitral jurisprudence.

That provision was the subject of long discussion in the First Commission and Committee B in which the detailed text was negotiated. The report of the First Commission indicates that the question was what should be the relation between the proposed Court and the existing Permanent Court of Arbitration, established in the 1899 Conference and continued in that of 1907. The report of the First Commission continues:
One view would make the new Court a simple committee of the older Court, but constitute it within the Permanent Court. Another view, differing but slightly from the former, would make it independent in name, but by appointing its judges from the membership of the Permanent Court of Arbitration would, in reality, make it a development of the latter. Still another view would recognize the independence of the institution by placing it alongside the Permanent Court as an independent institution, but would establish a close connection between the two by appointing its judges, as far as possible, from among the members of the original Court.

As will be seen, the last view was the one accepted by the Commission. That was followed by Article 2 on the appointment of the judges, and it laid down that the judges and deputy judges are appointed, as far as possible, from the Members of the Permanent Court of Arbitration. Commenting on this, the Report brings out that the Commission indicated very clearly that while the proposed Court would be independent, as indicated in the rst article, it would nevertheless derive in large measure its strength, substance, and inuence from the institution established in 1899. This discussion shows that attention was paid to the problem of arbitration tribunals existing or coming into existence alongside the permanent tribunal, and that the preservation of the continuity of jurisprudence was to be assured by maintaining as far as possible a personal unity between the members of the new institution and those on the list of arbitrators maintained by the International Bureau of the Permanent Court of Arbitration. The question also arose in connection with the decision of the 1907 Conference to establish an International Prize Court. Article 16 of the draft provided that the judges and deputy judges of the Court of Arbitral Justice can also exercise the functions of judge and deputy judge in the International Prize Court. On this, the report of the First Commission explained that the purpose of the project was not to subordinate either Court to the other, but to indicate to the Powers the possibility, indeed the advisability, that the judges of the Court of Arbitral Justice should possess the qualica-

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tions tting them for judges of the Prize Court. This was to give effect to the intentions of the authors of the project that the close relations existing between the Permanent Court of Arbitration and the proposed Court of Arbitral Justice should be extended to the new Prize Court.4 The report of the First Commission explains that its work on the Court of Arbitral Justice still presented gaps and difculties. Absent from the draft were provisions for the constitution of the Court and the selection of the judges. Those questions were discussed at great length but no acceptable solutions were found. As the Conference was unable to agree on the establishment of the Court of Arbitral Justice, it adopted the following vu:
The Conference recommends to the signatory Powers the adoption of the annexed draft Convention for the creation of a Court of Arbitral Justice, and putting it into force as soon as an agreement has been reached respecting the selection of the judges and the constitution of the Court.

That was included in the Final Act, and it is to be read together with the proposal for a third Peace Conference to be convened after necessary preparatory work. This was intended for 1915, but the outbreak of the First World War prevented further work at that stage. Other provisions of the draft assume a close connection between the proposed Arbitral Tribunal and the Permanent Court of Arbitration. Article 22 provided that the Court should follow the rules of procedure laid down in the 1899 Convention except in so far as the procedure is laid down in the new instrument. The report of the First Commission stated that this offers an additional evidence of the relation between the proposed Court and the Permanent Court of Arbitration. By Article 24, the International Bureau was to serve as the channel for all communications to the judges during the interchange of pleadings. Article 25 provided that notices to be given to the parties may be served through the International Bureau. Those two provisions would correspond in part to the functions of a modern Registry. Article 31 provided that the Administrative Council of the Permanent Court of Arbitration applies to the different countries to obtain funds requisite for the working of the Court. That establishes the method of control by States parties over the nancial aspects of an international court that is not part of an international organization. It has been followed since for the International Tribunal for the Law of the Sea, through institutionalized Meetings of the States parties, and for the International Criminal Court through the Assembly of States

For the report of the First Commission on the International Prize Court, see J.B. Scott, op. cit. in note 3, vol. I at 164.

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Parties. It was not necessary for the Permanent Court of International Justice or for the present International Court of Justice since in each case their expenses were a charge on the budget of the League of Nations or the United Nations, the former by the terms of the Statute and the latter also through the Courts status of an organ of the United Nations. That is how matters stood when the First World War put a temporary stop to this kind of international activity, which was resumed in new conditions in 1919. II. Continuation the Permanent Court of International Justice The immediate antecedent of Article 95 of the Charter is Article 13, paragraph 3, of the Covenant of the League of Nations. Article 13 was a general provision to the effect that the members of the League agreed that whenever any dispute should arise between them which they recognized to be suitable for submission to arbitration or judicial settlement and which cannot be settled by diplomacy, they would submit the whole subjectmatter to arbitration or judicial settlement. After the establishment of the Permanent Court, paragraph 3, introduced in 1924, was added to Article 13. It provided:
For the consideration of any such dispute, the court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them.

The League Covenant was adopted before the Statute of the Permanent Court of International Justice and Article 13 in its original form had to be kept in mind in drafting the Statute. This was noted by the League Secretariat in its Memorandum on the different questions arising in connection with the establishment of The Permanent Court of International Justice prepared for the use of the Advisory Committee of Jurists of 1920.5 The Secretariat wrote that disputant members of the League, when submitting their dispute to arbitration, were not bound as a general rule to select the projected Permanent Court, and it cited Article 13 as justication. The Advisory Committee of Jurists took as the basis of its work the conclusions of the two Peace Conferences and the schemes emanating from sev-

Permanent Court of International Justice, Documents presented to the Committee relating to Existing Plans for the Establishment of a Permanent Court of International Justice (1920) 1, 11. For the history of Article 13, see p. 115.

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eral Governments, from international scientic organizations and from jurists of all nationalities.6 A proposal by Baron Descamps was to maintain the Permanent Court of Arbitration. He also proposed that the parties shall have the right to agree on submitting disputes to another jurisdiction.7 A close discussion of this matter took place at the Committees 11th meeting in the context of whether the jurisdiction of the new Court should be compulsory. A proposal by Lord Phillimore suggested that in the absence of any special convention between the parties, the Permanent Court of International Justice should be deemed to be the Court of Arbitration mentioned in Article 13 of the Covenant.8 The discussion was intermingled with two other items, the method of selection of the judges and the general question of the competence of the new Court. After a long debate, Baron Descamps submitted a draft scheme concerning the Permanent Court. Article 1 established the Court independently of the Permanent Court of Arbitration and of the special tribunals of arbitration which the States are free to establish for the settlement of their disputes.9 In that context the issue came within the scope of the Root-Phillimore plan for the organization of the Court. On the question of the competence of the Court, Article 29 of that plan envisaged compulsory jurisdiction more or less along the lines of what became Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice and the Statute of the International Court of Justice. Article 30 provided for an exception to that jurisdiction in cases where the parties agreed to have recourse to the Permanent Court of Arbitration.10 On the basis of the long discussions on these topics, the Drafting Committee produced the following text:
A Permanent Court of International Justice, to which Parties shall have direct access, is hereby established, in accordance with Article 14 of the Covenant of the League of Nations. This Court shall be in addition to the Court of Arbitration organized by the Hague Conventions of 1899 and 1907, and to the special Tribunals of Arbitration to which States are always at liberty to submit their disputes for settlement.11

7 8 9 10 11

Permanent Court of International Justice, Advisory Committee of Jurists, Procs-verbaux of the Proceedings of the Committee (1920) (hereafter Procs-verbaux), 30, 43. In doing so it did not adopt a formal proposal by Elihu Root to take only the draft of the 1907 Conference as the basis for its work (p. 41). Ibid. 142. Ibid. 233, 252, 253. Ibid. 373. Ibid. 547. Ibid. 561.

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The Committee adopted this text unchanged at its 28th meeting, and it appears in the Committees report unchanged, without any further explanation.12 In that form the matter came before the competent organs of the League of Nations. The discussions in the League Council in the period 19201921 did not refer to this aspect, which was left to the Assembly when it adopted the nal instruments, the Statute of the Permanent Court of International Justice and the Protocol of Signature.13 Two amendments to Article 1 were submitted. Argentina proposed:
A Permanent Court of International Justice, to which Parties shall have direct access, is hereby established, in accordance with Article 14 of the Covenant of the League of Nations. This Court shall be in addition to the special Tribunals to which States are always at liberty to submit their disputes for settlement. Immediately upon the establishment of the Permanent Court of International Justice, the Court of Arbitration, organized by The Hague Conventions of 1899 and 1907, shall cease to exist.14

The British delegation proposed deleting from Article 1 the words to which Parties shall have direct access.15 These two amendments were examined by the Sub-committee of the Third Committee of the First Assembly Meeting in 1920. The Sub-committee discussed the British amendment at its second meeting. The debate was whether the retention of those words would introduce compulsory jurisdiction, to which the Big Powers were rmly opposed. The deletion was agreed by eight votes to two.16 The Sub-committee discussed very briey the Argentinian amendment to Article 1 at its sixth meeting.17 The record simply states that it was observed that the Permanent Court of Arbitration was established by a Convention between a great number of States, and that it could be abrogated only by a Convention between the same signatories. The record goes on to state, without attribution, that the constitution of the Permanent Court of International Justice was based on

12 13

14 15 16 17

Ibid. 587, 698 (Report). For this phase, see League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations concerning Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court of International Justice (1921) (hereafter Action). Action at 65. Ibid. 70. Ibid. 114. See on this L. Lloyd, Peace through International Law: Britain and the International Court in the 1920s 12 (1997). Ibid. 137.

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the existence of the Permanent Court of Arbitration and that the Covenant contemplated arbitration in the technical sense of the word. The Sub-committees report to the Third Committee words both aspects slightly differently.18 The report of the Third Committee on the Statute of the Court therefore includes the following statement as regards Article 1.19
The words to which Parties shall have direct access have been deleted, on the ground that, since the provisions of the draft scheme of the Hague with regard to the right of unilateral arraignment have been modied, they involve a certain ambiguity. The proposal made by the Argentinian Delegation to suppress the Permanent Court of Arbitration at The Hague was unanimously rejected by the Sub-Committee. It was thought that this Court would still have a role to ll in certain international disputes which lend themselves more easily to arbitral decision than to an award based on strict rules of law. Further, it was pointed out that the present scheme cannot abolish a Convention signed by several States which are not members of the League of Nations.

The Permanent Court did not have occasion to offer any interpretation of Article 1. III. Continuation: the International Court of Justice The Dumbarton Oaks Proposals which formed the basis for the work of the San Francisco Conference contained nothing corresponding to Article 1 of the Statute of the Permanent Court. The question therefore was rst discussed in the Washington Committee of Jurists (1945).20 Two relevant proposals were submitted to that Committee.21 Regarding Article 1 of the Statute, the United Kingdom proposed striking out the whole of the second sentence, believing it to be unnecessary. With regard to the rst sentence, it proposed a simple provision to the effect that the Court should function in accordance with the provisions of the Statute. The United States proposed a more elaborate amendment, establishing the Court as the chief judicial organ of the United Nations. However, discussion of Article 1 related to a major issue of principle, namely whether the Court should be established as a new Court or whether the Permanent Court should continue in existence, with the change that it should be a principal organ of the new organization. The Washington Committee was unable to resolve this

18 19 20 21

Ibid. 189 (in French only). Ibid. 206. For the Dumbarton Oaks Proposals, see United Nations Conference on International Organization (UNCIO), vol. 3, 10. For the proceedings of the Washington Committee of Jurists, see UNCIO, vol. 14.

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problem and deferred to the San Francisco Conference three major questions: (1) in what form the mission of the Court to be the principal juridical organ of the United Nations should be stated; (2) to judge whether it was necessary to recall, in this connection, the present or possible existence of other international courts; and (3) to consider the Court as a new court or as the continuance of the Court established in 1920. The Committee reported that these were not questions of pure form. The last, in particular, affected the operation of numerous treaties containing reference to the jurisdiction of the Permanent Court of International Justice.22 Following the Committee of Jurists, the Sponsoring Powers submitted a formal amendment to the Dumbarton Oaks proposals to the effect that Chapter VII of those Proposals should be adjusted to bring it into conformity with the recommendations of Commission IV in light of the report of the Washington Jurists Committee.23 At San Francisco, this matter was allocated to Committee IV/1, on Judicial Organization. It was rst examined in Subcommittee IV/I/A, on the question of the continuity of the international court and related problems. That Committee proposed a revision of Chapter VII of the Dumbarton Oaks proposals by the addition of a third paragraph to the effect that nothing in the Charter shall prevent the parties 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. However, the Commission did not propose introducing that notion into the text of the Statute. Without much in the way of explanation, the Report of the Rapporteur of Committee IV/I to the Commission, referring to the provisions of the Charter relating to the Court, simply states that for States that are parties to the new Statute freedom will be reserved to entrust the settlement of their differences to tribunals of their own choice other than the International Court of Justice. These features of the new Court had their prototypes in the old Court.24 No further explanation appears on the record, and in particular no reason is given for the transfer of this provision from the Statute to the Charter. Article 95 was adopted in the form set out at the head of this article without further comment. It has been termed a clarifying provision stemming from Article 1 of the Statute of the Permanent Court, but not included in the Statute of the present Court since that is an integral part of the Charter and was more appropriately placed in the body of the Charter itself .25 More correctly Kelsen shows that Article 95 only repeats what has already been

22 23 24 25

Ibid. 821. Ibid. vol. 13, 624. Ibid. vol. 13, 381. R.B. Russell assisted by J.E. Muther, A History of the United Nations Charter: The Role of the United States 19401945 880 (Washington DC, The Brookings Institution, 1958).

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stipulated in Article 33, paragraph 1, and that members are allowed to submit their disputes in accordance with pre-existing or newly concluded treaties to ad hoc tribunals of arbitration or to establish for instance by regional arrangements another permanent court of justice. According to Article 33, paragraph 1, and Article 95, they may establish a special court with compulsory jurisdiction, excluding the jurisdiction of any other tribunal, even the jurisdiction of the International Court of Justice established by the Charter.26 IV. Interpretation and Application of Article 95 There has been little use of Article 95 by the General Assembly of the United Nations. In resolution 171 C (III), 14 November 1947, on the greater use of the International Court of Justice, drawing attention to the advantages of inserting in treaties provisions for the settlement of disputes by the International Court of Justice, the General Assembly formally indicated that this was without prejudice to Article 95. The General Assembly has as far back as resolution 1213 (XII), 14 December 1957, recommended that the frontier dispute between Ethiopia and what was then Italian Somaliland should be settled by arbitration and the delimitation arbitration between Ethiopia and Eritrea has been organized by the Organization of African Unity with which the United Nations is closely associated. In 1966 the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations reported on a proposal regarding the inclusion of a general compromissory clause in general multilateral conventions and stressed that this would be without prejudice to Article 95.27 The Manila Declaration on the Peaceful Settlement of International Disputes annexed to resolution 37/10, 15 November 1982, without mentioning Article 95, simply repeats that States may entrust the solution of their difference to other tribunals by virtue of agreements already in existence or which may be concluded in the future. In fact, one might say that Article 95 of the Charter expresses a truism that is taken for granted. It is one embodiment of the principle of freedom of choice for the settlement of disputes, consecrated in Article 33 of the Charter. Article 95 refers only to the ability of States to entrust the resolution of their differences to other tribunals of their choice notwithstanding the status of the International Court of Justice as the principal judicial organ of the United Nations. It does not offer any explanation for the word differences,

26 27

H. Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems 477 (London, Stevens & Sons, 1950). 21 General Assembly, Ofcial Records, Annexes, agenda item 87 (A/6230), para. 242.

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but in the context it probably means international differences or disputes with other States. It has no reference to the power of any of the organs of the United Nations, and particularly the General Assembly and the Security Council, to establish tribunals if they consider this necessary for the proper performance of their functions. Tribunals have been established, but so far, these have not been tribunals for the settlement of disputes between States, where the principle of freedom of choice reigns, but for the settlement of other types of disputes which those organs have encountered or anticipated. Thus, in its resolution 181 (II) on the Future Government of Palestine, the General Assembly envisaged the establishment of a Court of Claims with a certain overriding jurisdiction in the International Court, so far the only instance of this. In resolution 388 (V), 15 December 1950, it established the United Nations Tribunal for Libya, and in resolution 580 (VI), 29 January 1952 the United Nations Tribunal for Eritrea, in each case with exclusive and nal jurisdiction for matters coming within their competence. These were all tribunals formed to deal with claims of individuals following changes in the territorial status of the territories for which they were created. The General Assembly has also established one standing tribunal, although not for the settlement of disputes between States the United Nations Administrative Tribunal established by resolution 351 (IV), 24 November 1949, now operating under a revised Statute which excludes any role for the International Court of Justice, adopted in General Assembly resolution 55/159, 12 December 2000. The Security Council also has established tribunals, acting under Chapter VII of the Charter, when it has considered that their establishment was necessary for the maintenance or restoration of international peace and security. They too have not been created for the settlement of differences between States. They include the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (resolution 827 (1993), 25 May 1993)28 and the International Criminal Tribunal for Rwanda (resolution 955 (1994), 8 November 1994). Since these Tribunals have jurisdiction over individuals charged with the crime of genocide, there can be interaction between their jurisdiction and judicial activity and the jurisdiction and judicial activity of the International Court of Justice which has jurisdiction over disputes between States arising under Article IX of the Genocide Convention of 1948.29
For challenges to the legality of the establishment of this Tribunal, see Prosecutor v. Tadi,c, Decision on Defence Motion on Jurisdiction, ICTY, Judicial Reports (1995), 27 (Trial Chamber), 353 (Appeals Chamber); Prosecutor v. Milosevi,c. Decision on Preliminary Motions, 8 November 2001. Case No. IT9937PT. At the time of writing, cases relating to that Convention are pending in the International Court of Justice as inter-State disputes, and the prosecution of Milosevi,c in the Yugoslav Tribunal is an illustration of this parallelism.

28

29

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Apart from tribunals established by the General Assembly and the Security Council, diplomatic conferences convened by the General Assembly have also established independent and autonomous tribunals. The Third United Nations Conference on the Law of the Sea established the International Tribunal for the Law of the Sea. This is a standing judicial organ which has a residual compulsory jurisdiction even for disputes between States where no other existing court or tribunal has jurisdiction, notably for the prescription of provisional measures of protection under Article 290, paragraph 5, and for the prompt release of vessels under Article 292. The Conference also established the Seabed Disputes Chamber with exclusive jurisdiction in connection with activities in the international seabed area (Articles 186191). The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (the Rome Conference for the International Criminal Court) established that Court to try and punish individuals accused of crimes that come within its jurisdiction. That Court does not have jurisdiction over disputes between States, and this may lead to an element of parallelism with the International Court of Justice which does have jurisdiction arising out of treaties which also come within the scope of the jurisdiction of the International Criminal Court, for instance, at present, under the Convention for the Prevention and Punishment of the Crime of Genocide. The Iran-United States Claims Commission, of which our honoree is a distinguished neutral member, also has limited jurisdiction to decide cases between those two countries.30 The major legal question that arises out of Article 95 is the meaning of the word tribunal. This has been considered by the International Court of Justice. It rst examined the use of the word tribunal in connection with the United Nations Administrative Tribunal in its advisory opinion on Effect of Awards of Compensation made by the United Nations Administrative Tribunal. The Court had no difculty in nding that the use of that word, together with other provisions of that Tribunals Statute, indicated the essential judicial character of the Tribunal whose decisions would be res judicata and have binding force between the parties to the dispute. At the same time it stated that the Charter does not confer judicial functions on the General Assembly

30

There can be a certain interconnection between a case in the International Court of Justice and pending matters in the Claims Commission. Thus: the discontinuance of the Aerial Incident of 3 July 1988 case in the International Court of Justice coincided with an award on agreed terms relating to several cases between Iran and the United States pending before the Claims Tribunal. See ICJ Rep. 1996, 9, and 32 Iran-U.S. Claims Tribunal Reports (1996) 207. The Order of the President of the International Court of Justice (Bedjaoui) placed on record the conclusion of the settlement agreement, the relevant terms of which are set out in the Award on Agreed Terms.

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and that when it established the Administrative Tribunal, it was not delegating the performance of its own functions but exercising another power granted to it by the Charter.31 The question arose directly in the Preliminary Objection phase of the Cameroon-Nigeria case, in connection with the third preliminary objection raised by Nigeria.32 That objection was to the effect that the settlement of boundary disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad Basin Commission, established by the Convention relating to the development of the Chad Basin on 22 May 1964.33 In 1964 experts of the Commission undertook a demarcation of the boundary which was later ratied by Cameroon but not by Nigeria. In its third preliminary objection Nigeria invoked Article 95, claiming that the Basin Commission should be seen as a tribunal within the meaning of Article 95, and that for the International Court to exercise jurisdiction would be in breach of the principle of the autonomy of jurisdictional competence. The Court did not see the Commission as a tribunal. It renders neither arbitral awards nor judgments and is therefore neither an arbitral nor a judicial body (para. 69). The Court was virtually unanimous in dismissing this objection, only Judge Koroma and Judge ad hoc Ajibola voting negative. Judge Koroma did not refer specically to this question in his dissenting opinion, merely remarking that in some of its holdings, the Court would appear to have gone too far in taking positions which may appear prejudicial when it reaches the merits phase (p. 391). On the other hand, Judge ad hoc Ajibola explained fully why he thought that this objection should have been upheld (p. 405). The Qatar-Bahrain case gave the Court the opportunity to take the matter further. In the diplomatic history of this dispute, the parties had at one stage asked the British Government for a decision on a question that had arisen. On the facts the Court found that the parties had not submitted the question to arbitration by the British Government but had left it to the British Government to determine how that decision would be reached and by whom. In consequence, that decision did not have the quality of res judicata, although this did not mean that it was devoid of legal effect. For a decision to constitute an arbitral award, it has to be made by judges of the parties own choice and on the basis of respect for law, as laid down in the relevant Hague Conventions and other instruments.34

31 32 33 34

ICJ Rep. 1954 47, 52. Ibid. 1998, 275, 304. UNEP, Register of International Treaties and Other Agreements in the Field of the Environment 61. Note 2 above, paras. 114, 117.

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When the Permanent Court was established, there were no other standing courts in existence. The Permanent Court of Arbitration continued functioning, although States inclined more to employ ad hoc procedures when they wanted to settle a dispute through arbitration. The 1919 Peace Treaties established a series of Mixed Claims Commissions, but these were not for the settlement of disputes between States, and in connection with the Peace Settlement other judicial bodies were established, notably the Arbitration Tribunal for Upper Silesia. The Permanent Court had to consider the relationship of these tribunals to itself and its jurisdiction in the Factory at Chorzw Jurisdiction case.35 The basic principles laid down by the Permanent Court for sorting out the jurisdiction of these different bodies, all of which may have had some application to different parts of the dispute between Germany and Poland, were two in number. The rst, which emerges in general from the Courts statement of the law, is that the jurisdiction of each possible tribunal is governed exclusively by its constituent instrument. The second expressed in the Courts own words, is that when the Court has to dene its jurisdiction in relation to that of another tribunal, it cannot allow its own competence to give way unless confronted with a clause which it considers sufciently clear to prevent the possibility of a negative conict of jurisdiction involving the danger of a denial of justice (at p. 30). Since the 1920s, however, a radical change has come over the texture of international law. In the rules of international law the treaty, not custom, is now predominant, and many treaties contain their own provisions for the settlement of disputes arising out of their interpretation or application, including specially created arbitration tribunals or processes of conciliation. This has led to what a recent Arbitral Tribunal has termed a parallelism of treaties, both in their substantive content and in their provisions for the settlement of disputes arising thereunder. That is because it is now a commonplace of international law and State practice for more than one treaty to bear upon a particular dispute.36 In these circumstances, should a dispute arise which

35 36

PCIJ, Ser. A No. 9 (1927). Southern Bluen Tuna case (Australia and New Zealand v. Japan), Arbitral Award of 4 August 2000, para. 52, reproduced in 119 ILR 509; 39 ILM 1359 (2000). For a more striking example, note in the Mox Plant case (Ireland v United Kingdom) the decision of the Arbitral Tribunal, operating under Annex VII of the Law of the Sea Convention, to suspend the proceedings until the European Court of Justice had decided whether the case was one that came within the jurisdiction of the European Union. The European Court of Justice held that Ireland was in breach of Community law in bringing those proceedings against the United Kingdom alleging violations of the UN Convention on the Law of the Sea to which the European Union was a party on terms duly laid down. Commission of rhe European Communities v Ireland Case No. C459/03, judgment of 30 May 2006. For the order of the Arbitral Tribunal see 126 ILR 314.

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could come within the scope of more than one treaty or more than one jurisdictional clause, the court or tribunal competent for the merits will have to determine which of the parallel instruments is governing. In this context the Arbitral Tribunal cited the judgment of the International Court of Justice in the Fisheries Jurisdiction case between Spain and Canada: It is for the Court itself, while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective basis the dispute dividing the parties, by examining the position of both parties. On that basis the Court would determine the real dispute [my italics Sh.R.] that has been submitted to it.37 The Court made that determination in light of the whole of the diplomatic history of the dispute, and the Arbitral Tribunal did likewise, paying particular attention to the efforts made during that history to resolve the dispute by pacic means. It is clear from the foregoing account that the 1907 Conference, at which one new international court was established, the International Prize Court, and a second was contemplated, the proposed Court of Arbitral Justice, both alongside the existing Permanent Court of Arbitration, was quite alert to the problem of continuity in arbitral jurisprudence or what is now frequently referred to as the multiplicity of tribunals and to the possibility of what is today sometimes called the fragmentation of international law. The Conference attempted to meet that problem by allowing for members of the existing Permanent Court of Arbitration national panels of up to four persons nominated by each State party to be elected as members of the Prize Court and the proposed new Court of Arbitration. To some extent that desideratum is met today by the frequent appointment of serving or former members of the International Court of Justice as arbitrators, and I might add of experienced international counsel who themselves can be regarded as potential members of the International Court of Justice. Although the records of 1920 (and those of 1945) are scanty, it would appear that the Argentinian proposal of 1920, and the United Kingdom proposal of 1945 regarding Article 1 of the Statute of the PCIJ, could have had a similar purpose in view. The inclusion of Article 1 in the Statute of the PCIJ, and in 1945 the insertion of Article 95 into the Charter, can be seen as an indication that the negotiating States at the time were not overly concerned at this prospect. Nevertheless, the possibility of challenges to the law as set out by the principal judicial organ of the United Nations exists, and as President Guillaume of the International Court of Justice has suggested, no new international court should be created without rst questioning whether the duties which the international legislator intends to confer on it could not better be per-

37

ICJ Rep. 1998, 432, 448, 449 (paras. 30, 31).

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formed by an existing court.38 The First Commission at The Hague in 1907 thought that a court sitting in permanence will not lightly overrule or deviate from previous decisions unless there be overwhelming and compelling reasons; and it is also clear that judges, knowing that their decision is likely to be authority with its successor and cited as a precedent, will devote the labor and reection to the decision necessary to make it a landmark in international law. The twofold purpose, namely to advance the cause of arbitration and to assure the continuity of arbitral jurisprudence would seem to demand a Permanent Court and the permanence of the Court would insensibly and inevitably assure the scientic development of arbitral jurisprudence.39 That is what has occurred with rst the Permanent Court, and now the existing International Court of Justice taking rst place in the order of international courts and tribunals. Article 95 of the Charter, like its predecessors, has brought no prejudice to that position.

38 39

Statement at the meeting of the General Assembly on 30 October 2001, A/56/PV.32, 9. Report cited in note 3 above, on article 1.

5
ARTICLE 27 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Article 27 of the Statute of the International Court of Justice, a new provision which was inserted when the Statute was revised at the San Francisco Conference of 1945, provides:
A judgment given by any one of the Chambers provided for in Articles 26 and 29 shall be considered as rendered by the Court. Tout arrt rendu par lune des chambres prvues aux articles 26 et 29 sera considr comme rendu par la Cour.

The chambers referred to are of three distinct kinds. Article 26, paragraph 1, of the Statute reads:
The Court may [ peut] from time to time form one or more chambers, composed of three or more judges as the Court may determine [dcidera], for dealing with particular categories of cases; for example, labour cases and cases relating to transit and communications.

This is a relic of Articles 26 and 27 of the Statute of the Permanent Court of International Justice, to which reference will be made later. Article 26, paragraph 2, of the Statute, which is also new, reads:
The Court may [ peut] 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.

Article 29 is a slightly revised version of Article 29 of the Statute of the Permanent Court of International Justice. It provides that with a view to the speedy despatch of business, the Court shall form annually a chamber composed of ve judges which, at the request of the parties, may hear and determine cases by summary procedure (la Cour compose annuellement une chambre de cinq juges, appels statuer en procdure sommaire).

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The faculty made available to States by paragraph 2 lay dormant until 1982.1 Since then, in response to requests from States the Court has formed six ad hoc chambers each to deal with one particular case, as envisaged in paragraph 2, two of them for cases in which the United States was a party.2 The Chamber of Summary Procedure3 has been regularly formed each year since the present Court was installed in 1946, but no case has been brought before it. These three types of chamber do not stand on the same footing. The chambers envisaged in Article 26 are formed at the discretion of the Court, but cases shall be heard and determined by those chambers only at the request of the parties. It is possible that a chamber formed under paragraph 1 to deal with a particular category of case will be a standing chamber once the Court has decided to form it, but this is not necessarily invariable. A chamber formed to deal with a particular case is an ad hoc chamber which ceases to exist once it has completed its task.4 The Chamber of Summary Procedure is a standing body, the composition of which partly changes each year, and its existence is not dependent on whether it has any cases. On the other hand, a case can be heard and determined by the Chamber of Summary

1 2

Cf. J.N. Hyde, A Special Chamber of the International Court of Justice An Alternative to ad hoc Arbitration, 62 AJIL 439 (1968). For the orders of the Court constituting or reconstituting these chambers, see Gulf of Maine case, ICJ Rep. 1982, 3; Frontier Dispute case (Burkina Faso/Mali), ibid. 1985, 6; Elettronica Sicula S.p.A. (ELSI) case, ibid. 1987, 3 and 1998, 158; Land, Island and Maritime Frontier Dispute case, ibid. 1987, 10 and 1989, 162.; Frontier Dispute (Benin/Niger) case. ibid. 2002, 613, ibid. 2005, 84; Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute, ibid. 2002, 618. All these cases except the ELSI and the Application for Revision cases were introduced by special agreement; as for the ELSI case formally introduced by an application, it had been agreed before the ling of the application that the parties would request the formation of a chamber to deal with the case. The Application for Revision case was introduced unilaterally on the basis of Art. 61 of the Statute. In Art. 17 of the Rules of Court of 1978, the Court has adopted a controversial text by which it gives to the parties a dominant role not only as regards the number of judges to constitute the chamber, but also their identity. This was rst applied in the Gulf of Maine case, and has been followed consistently since. In the Permanent Court, this was denominated the Chamber for Summary Procedure. The Rules of Court, however, consistently referred to the Chamber of Summary Procedure. The reasons for the change in the English text of the Statute in 1945 have never been explained. The French remains unchanged, La chambre de procdure sommaire. For this reason the provision of Art. 100, para. 1, of the Rules of Court, according to which a request for the revision or the interpretation of a judgment given by a chamber shall be dealt with by that chamber, may be difcult to apply in connection with chambers formed under Art. 26 of the Statute. It is virtually impossible should a request for revision be led towards the end of the ten-year period required by Art. 61 of the Statute.

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Procedure only at the request of the parties. An element of stability in the composition of the Chamber of Summary Procedure is provided by Article 15, paragraph 1, of the 1978 Rules by which both the President and the Vice-President of the Court, acting ex ofcio, shall be members of this Chamber.5 In connection with a chamber formed under Article 26, paragraph 2, an ad hoc chamber, Article 27 of the Statute has recently been interpreted by Judge T.O. Elias in the sense that:
It must follow that the Court and all its Members are bound by the judgment of a chamber, but not necessarily by a judgment arrived at by whatever means, or in deance of a rule of justice overlooked or misconceived, or one subsequently overruled by the Court in the long run. This is so because, even though every Member of the Court is bound by the decision of the chamber, no non-member of the chamber has the chance or indeed the right to take part or to intervene in the work of the chamber before its decision is handed down. This means that there is no opportunity for any member to criticize or to point out any lacunae before the case is ended by the particular chamber; nor has the Court any opportunity to intervene. Yet according to the present Statute the decision is one by which the Court must be regarded as also bound, without having had any opportunity of interference.6

A not dissimilar interpretation of Article 27 was given by Judge Tarassov in his dissenting opinion in the same case:
According to Article 27 of the Statute, a judgment given by an ad hoc chamber is to be considered as rendered by the full Court. As a result of the present Order adopted by a majority of the judges, the Applicant [for permission to intervene] will have no more than two possible courses of action it can either abandon its intention of preserving and defending its interests against possible violation as a result of judicial processes in the International Court of Justice or it can submit its Application to the Chamber. If it opts for the latter course, the Applicant will have to abide by the decision of ve judges, only two of whom are Members of the Court, but whose decision will have the status of a judgment of the Court. In the event that permission to intervene is

5 6

This was introduced into the Rules in 1972 as Art. 24. See my Procedure in the International Court 41 (1983). Dissenting opinion in the Land, Island and Maritime Frontier Dispute (Application for permission to intervene) case, ICJ Rep. 1990, 3, 9. Judge Elias had previously expounded this view at some length in his The United Nations Charter and the World Court at 205 (1989). It may be noted, however, that Judge Elias was Acting President of the Court when the Gulf of Maine Chamber was constituted, but he did not participate in the other decisions constituting ad hoc chambers. This dissenting opinion was appended to the order of the Court dealing with a preliminary question connected with the application of Nicaragua to intervene in the pending case.

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summarily rejected, or if the judgment on the merits fails to provide a proper safeguard of its lawful interests as an intervening Party, the Applicant will not be able to appeal, as the Courts judgment will have been rendered!7

* * * Traces of this idea can be seen in the literature. Thus Judge Bedjaoui (although not in his judicial capacity) has written, in a passage with which in general I do not disagree, that
Lunit de la jurisprudence de la Cour pourrait aussi tre menace par la cration de chambres ad hoc avec surcrot dautres complications. On sait que la chambre cest la Cour et que lon pousse le respect de ce dogme jusquau bout . . . Larrt de la chambre est rput arrt de la Cour tout entire. Se prole alors une difcult. Car si on peut comprendre que larrt de la Cour entire simpose mme aux juges minoritaires qui ont mis une opinion dissidente son gard, on comprend moins bien que trois juges constituant une chambre ad hoc puissent par leur arrt engager les douze autres qui constituent la majorit de la Cour.8

However, many other writers are content to echo the language of Article 27, simply postulating that a judgment of a chamber is considered as a judgment of the Court without further adumbration.9 Without entering into the merits of the fundamental argument raised in passages such as these, I believe, with all due respect, that this interpretation of Article 27 of the Statute, that it is a judgment of the Court and as

ICJ Rep. 1990, 3, 16. When the chamber was constituted, three of its members were Members of the Court, but the term of ofce of one of them terminated while the case was pending in the Chamber, with the consequence that in subsequent phases only two of the members of the Chamber were Members of the Court. The statement that there is no appeal from a judgment of a Chamber is certainly correct: Statute. Arts. 27 and 60. And see S.M. Schwebel, Chambers of the International Court of Justice Formed for Particular Cases, International Law at a Time of Perplexity 739, 741 (1989, Y. Dinstein, ed.). Universalisme et rgionalisme au sein de la Cour internationale de Justice: La constitution de chambres ad hoc, Liber amicorum . . . al Prof. Dr. D. Jos Prez Montero, vol. I, 155, 170 (1988). The emphasis has been added. Thus: G. Schwarzenberger, International Law as applied by International Courts and Tribunals, IV, International Judicial Law 395 (1986); A. de Saavedra y Muguelar, La creacin y el funcionamiento de las salas ad hoc del Tribunal internacional de Justicia, Liber Amicorum cited in previous note, vol. III, 1285, 1287; H. Mosler, The ad hoc Chambers of the International Court of Justice: Evaluation after Five Years of Experience, International Law at a Time of Perplexity 449, 457 (ed. Y. Dinstein, 1989) (the judgments given by Chambers are equal to those rendered by the Plenary Court); S.M. Schwebel, loc. cit. in note 7, at 749; Nagendra Singh, The Role and Record of the International Court of Justice 116 (1989).

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such binds all the Members of the Court, is incorrect and should not be perpetuated.10 * * * The origin of Article 27 of the Statute of the present Court is found in a series of amendments to the Statute of the Permanent Court proposed by the United States of America at the Washington Committee of Jurists. This Committee was in session from 9 to 25 April 1945 immediately before the San Francisco Conference at which the combined Charter of the United Nations and the annexed Statute of the International Court of Justice were adopted.11 The task of the Washington Committee of Jurists was to examine the Statute of the Permanent Court and prepare it for that Conference. In those amendments, the United States proposed a rearrangement of the provisions relating to all the chambers. In so doing, the United States suggested substituting for the former Articles 26 and 27 (which had never been used) a new provision, which read: A judgment given by any of the chambers provided for in Article 26 or 29 shall be a judgment rendered by the Court. In a very brief introductory note, it was stated that a provision of the 1936 Rules of the Permanent Court was being adopted.12 That referred to Article 73 of the 1936 Rules, reading:
Judgments given by the Special Chambers [under Articles 26 or 27 of the Statute of the Permanent Court] or by the Chamber for Summary Procedure are judgments rendered by the Court. They will be read, however, at a public sitting of the chamber. Les arrts manant des Chambres spciales ou de la Chambre de procdure sommaire sont des arrts rendus par la Cour. Toutefois, lecture en est donne en sance publique de la Chambre.

This was rst discussed at the 4th meeting of the Committee of Jurists, and in the absence of any opposition, the Chairman, Mr (later Judge) Hackworth, announced that the proposal would be considered as tentatively agreed.13 Later a subcommittee reported this out in the terms proposed. A

10

11 12 13

For an interpretation of Art. 27 as requiring a chamber to decide a dispute in accordance with international law (Art. 38 of the Statute), see Frontier Dispute (Burkina Faso/Mali) case, ICJ Rep. 1986, 554, 575 (para. 42). The Statute is fully binding on any chamber formed by the Court in accordance with either Art. 26 or Art. 29 of the Statute. It is perhaps important that this should be stressed, even though it is obvious, because of a tendency not shared, it is believed, by Governments, to regard recourse to an ad hoc chamber as more akin to arbitration than to judicial settlement properly so called. Documents of the United Nations Conference on International Organization, San Francisco 1945 [hereafter, UNCIO], vol. 14, 324, 335. PCIJ, Ser. D, No. 1 (4th ed., 1940). 14 UNCIO 111.

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brief discussion took place at the Committees 9th meeting when the Chairman explained that in the American proposal an attempt had been made to preserve the same numbering of the articles. Judge Hudson, who was representing the Permanent Court in the Committee of Jurists, pleaded for the retention of the old numbering in order to facilitate use of the literature on the Courts activities. The article was then approved, subject to consideration by the Drafting Committee of the Committee of Jurists. No further discussion took place on the record, and the article appeared, as article 27, in the same form in the report which the Committee of Jurists submitted to the San Francisco Conference.14 At the San Francisco Conference, examination of the Statute of the Court in light of the report of the Committee of Jurists was undertaken in Committee IV/1. At the Committees 4th meeting, Article 27 was adopted unanimously. In the version of the draft statute which was annexed to the draft report of the Rapporteur of Committee IV/1, Article 27 appears in exactly the same form as in the report of the Washington Committee of Jurists. At the Committees 17th meeting, it was agreed that the Co-ordination Committee might decide questions of style with respect to the Statute. At the 6th meeting of the Committee of Jurists attached to the Co-ordination Committee, the provision was changed into its present form, but without any explanation on the record.15 It appears in this form in the nal report of the Rapporteur of Committee IV/1, which merely states that certain minor modications and changes had been introduced, but nothing more.16 Hudson, in his annual article for the year 1945, describing the changes in the Statute made at the San Francisco Conference, has no comment of substance to make on the nal text of Article 27.17 * * * The starting point for an appreciation of the difference between Article 27 of the Statute of the present Court and Article 73 of the Rules of the Permanent Court of 1936 lies in the wording of Articles 26 and 27 of the Statute of the Permanent Court, as well as in the slightly revised wording of Article 29. Article 26 of that Statute, dealing with labour cases with particular reference to the International Labour Organization, laid down that such cases

14 15 16 17

Ibid. 201, 283 (Report of the Subcommittee, where the provision was numbered art. 28), 714, 722. 17 UNCIO 412. 13 UNCIO 402 (doc. 913, Annex 2). M.O. Hudson, The Twenty-fourth Year of the World Court, 40 AJIL 1, 27 (1946).

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shall be heard (la Cour statuera) under the conditions laid down. Those conditions required the Court to appoint a special chamber with technical assessors for labour cases; but such a chamber should function only if the parties so demand. Although this chamber was regularly constituted since 1922, no case was ever brought before it.18 Article 27 dealt with cases relating to transit and communications with special reference to Part XII (Ports, Waterways and Railways) of the Treaty of Versailles.19 Its structure was similar to that of Article 26, the assessors being designated Assessors for Transit and Communications cases. This chamber too was regularly constituted since 1922, but no case was ever brought before it.20 Article 29 was very similar to the present Article 29, except that the Chamber for Summary Procedure was to be composed of three judges who (appele) may hear and determine cases by summary procedure at the request of the parties. In 1945 who (appele) was changed to which (appels). The effect of that change was to bring the English text of the 1945 Statute into line with the French version of the Statute of 1920, and the French version of the 1945 Statute into line with the English version of the previous Statute, the discordance between the two language versions of the Statute accordingly remaining but reversed. The Permanent Court commonly worked in French,21 and in that language the word appele referred to the Chamber for Summary Procedure itself, and not to its individual members, thus incorporating or embodying it as a standing organ of the Permanent Court, while the English word who referred to the members of the chamber. The effect of these slight grammatical changes made in 1945 is not clear, since the French now refers to the members of the chamber and the English to the chamber itself as a body. The requirement of the Statute of the Permanent Court that the Court shall appoint chambers, and that certain cases shall be heard by one or other of those chambers at the demand of the parties has been dropped in the Statute of the present International Court of Justice. In place of that, the Court may establish chambers, and the parties may agree without any intervention by the Court that a particular case will be heard by such a chamber. For chambers constituted under Article 26, language that the Court statuera, that is to say will decide the case, through a chamber no longer exists.

18 19 20 21

M.O. Hudson, The Permanent Court of International Justice 19201942 347 (1943). C.I. Bevans, 2 Treaties and Other International Agreements of the United States of America, 17761949 43; 16 AJIL Supp. 207 (1920). Hudson, loc. cit. in note 18. Cf. the discussion at the 16th meeting of the Permanent Court on 31 May 1934, PCIJ, Ser. D, No. 2, Add. 3, at 133 (No. 38).

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The matter addressed by Article 73 of the 1936 Rules was rst adopted as Article 70 of the Rules of 1922, where it read:
The judgment [in summary procedure] is the judgment of the Court rendered in the Chamber of Summary Procedure. It shall be read at a public sitting of the Chamber. Larrt est rendu par la Cour statuant en Chambre de procdure sommaire, et lecture en est donne en audience publique de la Chambre.

Article 70 was placed in Chapter II, Procedure, section C, Summary Procedure, of the Rules of 1922. A text along these lines rst appeared in the revised text of the Secretariats draft of rules of Court.22 A brief discussion took place at the Courts 37th meeting. Replying to an observation by Judge Anzilotti that the provision might be omitted since it was useless, Judges Weiss and Lord Finlay explained that the object was to make it clear that the judgments of the Chamber for Summary Procedure were actually judgments of the Court, but that these judgments were to be delivered by the Chamber. Judge Nyholm stressed that the judgments of the Chamber were to be delivered in public and this to some extent compensated for the secret nature of the summary procedure. In reply to another question, Lord Finlay explained that there was no danger that the Article would create an impression that the judgments delivered by a special Chamber were not judgments of the Court. He pointed out that in the rst paragraphs of Article 26 and 27 of the Statute, it was stated that cases shall be . . . determined by the Court under the conditions laid down in those Articles,23 and the provision was accordingly adopted. It remained unchanged in the Rules of Court of 1926 and 1931. On the basis thus established, the two judgments of the Chamber for Summary Procedure,24 of which the authoritative texts are French, open with the words:
La Cour, statuant en Chambre de procdure sommaire[.] The Court, sitting as a Chamber of [sic] Summary Procedure[.]

It will be noted that formally those Rules only applied to the Chamber for Summary Procedure of the Permanent Court; there was no corresponding

22 23 24

PCIJ, Ser. D, No. 2, 399, 413 (Annex 59a). Ibid. 218 (No. 315). Treaty of Neuilly, Annex, Paragraph 4 (Interpretation) case (1924) and its interpretation (1925), PCIJ, Ser. A, Nos. 3, 4.

5. ARTICLE 27 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

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provision in the Rules of Court regarding the special chambers envisaged in Articles 26 and 27 of the Statute. This omission was rectied in Article 73 of the Rules of 1936. On that occasion, Judge Fromageot proposed that these judgments shall be regarded as judgments rendered by the Court (seront reputs rendus par la Cour), but after a brief exchange the words shall be regarded as were replaced by are (sont). A vote was taken on the proposition that judgments given by the special chambers and the Chamber for Summary Procedure are judgments rendered by the Court, nevertheless shall be read at a public sitting of the Chamber, and was answered in the afrmative.25 There can therefore be no doubt that under the Statute of the Permanent Court, judgments of a Chamber were judgments of the Court. But what that means in terms of binding the Members of the Court who had no part in that decision is another matter altogether. Following the new wording of the Statute introduced in 1945, the Rules of Court of 1946/1972 (Articles 73 and 78 respectively) avoid this question, and simply provided that judgments given by a Chamber will be read at a public sitting of that Chamber. This is repeated unchanged as Article 93 of the Rules of 1978, currently in force. Against this background, it is to be noted that late in the San Francisco Conference, and without full discussion in the competent Main Committee, the absolute statement proposed by the United States of America for Article 27, said to follow on Article 73 of the Rules of the Permanent Court of 1936, was changed into the language of a legal ction. The French expression seront considrs appears also in Article 36, paragraph 5, of the Statute (where it is rendered in English as shall be deemed), another legal ction. In the context of the combined Charter and Statute, as a matter of law in Article 27 this can only refer to the nality of the judgment (Statute, Article 60), leading to the obligations contained in Article 94 of the Charter. That is the undertaking to comply with the decisions of the Court and the recourse to the Security Council in the event of non-compliance by the judgment debtor with a judgment of a Chamber.26 No other function can be attributed to Article 27, and there is no need to overcharge it with burdens it was seemingly not designed to bear. * * * The formulation of Articles 26 and 27 of the Statute has in the nature of things led to a signicant reformulation of the opening statement of a judgment of an ad hoc chamber, in comparison with that used by the Chamber for Summary Procedure of the Permanent Court. The standard opening for

25 26

PCIJ, Ser. D, No. 2, Add. 3, 449; Add. 4, 314. Cf. Judge Shahabuddeen, dissenting opinion in the Land, Island and Maritime Frontier Dispute (Application to Intervene) case, [ICJ Rep. 1990, 3, 47].

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a judgment of an ad hoc chamber is: In the case concerning . . . between [the parties, represented by . . .], the Chamber of the International Court of Justice formed to deal with the case above mentioned, composed as above[.]27 In none of the cases so far determined by an ad hoc chamber has it been indicated that the decision is made in the name of the Court. * * * There are three other references to chambers in the Statute. Article 28 provides that the chambers provided for ( prvues) in Articles 26 and 29 may, with the consent of the parties, sit and exercise their functions elsewhere than at the seat of the Court, a provision which has so far never been invoked. Article 30 permits the Court through the Rules of Procedure to provide for assessors to sit with any of the chambers, without the right to vote.28 Article 31, on the question of judges ad hoc, makes provision for the participation in a Chamber of judges specially chosen by the parties. In the case of an ad hoc chamber, there is apparently a differentiation made between those judges specially chosen by the parties and the Members of the Court originally suggested by the parties, even when Members of the Court having the nationality of one or both of the parties are suggested as members of the Chamber.29 This difference (which may be a technicality) is, it is understood, reected in the fact that the Court only elects its members who are to be members of an ad hoc chamber. Consequently, the order of the Court form-

27

28

29

The same formula is used for orders by a chamber. Frontier Dispute (Burkina Faso/Mali) (Provisional Measures) case, ICJ Rep. 1990, 3. An order made by the President of the Chamber alone is introduced by the phrase: The President of the Chamber of the International Court of Justice formed to deal with the case concerning . . .. The President signs in his capacity of President of the Chamber. In no case have assessors been appointed, and it is not possible to state with any degree of condence what their functions are. In the Gulf of Maine case, the parties were agreed on the appointment of an expert for dened purposes, and an expert was duly appointed by the Chamber, his technical report being duly annexed to the judgment. ICJ Rep. 1984, 165, 347. In the Frontier Dispute (Burkina Faso/Mali) case, the parties were agreed in requesting the Chamber to appoint experts to assist them in demarcating the frontier as determined by the Chamber. The Chamber saw no objection to this and an expert was duly appointed by the President of the Chamber, but not as an expert of the Chamber within the meaning of Art. 50 of the Statute, ibid. 1987, 7. This occurred in the ELSI case, where judges of the nationality of each party (Judges Ago and Schwebel) are listed in their order of precedence as members of the Court. In the Land, Island and Maritime Frontier Dispute case, the two members of the Court who remained in the Chamber were, during the pendency of the proceedings, elected President and VicePresident of the Court. However, in the Chamber the person originally elected as its President retained that position throughout the case.

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ing the Chamber at one and the same time confers this task on its members and places on record the composition of the Chamber including the judges specially chosen by the parties who are not members of the Court, denominated judges ad hoc. This has now produced the somewhat unusual situation that while all the members of an ad hoc chamber are chosen by the parties, those who are specially chosen are technically in a different position, as judges ad hoc, taking part in the decision on terms of complete equality with their colleagues (Statute, Article 31, paragraph 6). This framework is complemented by the Rules of Court. In the Rules of 1946, Article 7, paragraph 4, dealt with the appointment of assessors by a chamber. In 1946 this was limited to the Chamber of Summary Procedure, but in 1972 this was extended to all the chambers, a provision now found in Article 9, paragraph 4, of the Rules of 1978. Article 24 dealt with the formation of the chambers. Paragraph 1 addressed the chambers envisaged in Article 26, paragraph 1, but otherwise the Rules were silent as regards the ad hoc chambers envisaged in paragraph 2. The impression given by paragraph 1 is that those chambers would be standing bodies. Paragraph 2 provided that the Presidents and members of the two types of chamber envisaged in paragraphs 1 and 2 of Article 26 and the Chamber for Summary Procedure were to be elected by the Court by secret ballot and by an absolute majority of votes. Paragraph 3 dealt with the Chamber of Summary Procedure and paragraph 4 provided that the members of any of the chambers shall, in conformity with Article 13, paragraph 3, of the Statute, nish any case which they may have begun, though they have ceased to be members of the Chamber. These provisions were all considerably revised in 1972, a matter to be examined later. Article 28 (1972 Rules, Article 31), paragraph 2, required the President of the Court to x the date for the convening of a Chamber, the date and hour of its sittings to be determined by the President of the Chamber. The Court, or its President if the Court was not sitting, was also required to x the place other than The Hague where a Chamber should sit and exercise its functions. Procedure before the chambers was regulated in Articles 70 to 73. Of these, particular importance attached to Article 71, paragraph 2, which read:
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, can be led at any moment until the closure of the written proceedings. Upon receipt of such a request by the Registry, the President shall ascertain whether the other party assents. When both parties have assented, the President shall ascertain the views of the parties as to the number of judges to constitute the Chamber. The Court shall decide upon the request for the formation of a Chamber in accordance with Article 26, paragraphs 2 and 3 of the Statute and Article 24, paragraphs 2 and 5, of these Rules.

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By paragraph 4, the President of the Court was to convene the Chamber at the earliest date compatible with the requirements of the procedure. However, by paragraph 5, as soon as the Chamber has met to begin the hearing of the case, the powers of the President of the Court were to be exercised in respect of the case by the President of the Chamber. The remainder of the provisions dealt with the procedure before the Chamber of Summary Procedure, and Article 73 (1972 Rules, Article 78, 1978 Rules, Article 93) required the judgments of a Chamber to be read at a public sitting of that Chamber a hold-over from Article 73 of the 1936 Rules of the Permanent Court. A thorough revision of these Rules was accomplished in 1972, and was retained as Articles 15 to 18 and 90 to 93 of the Rules of 1978. The formation of ad hoc Chambers is the subject of Article 17, which reads:
1. A request for the formation of a Chamber to deal with a particular case, as provided in Article 26, paragraph 2, of the Statute, may be led at any time until the closure of the written proceedings. Upon receipt of a request made by one party, the President shall ascertain whether the other party assents. 2. When the parties have agreed, the President shall ascertain their views regarding the composition of the Chamber, and shall report to the Court accordingly. He shall also take such steps as may be necessary to give effect to the provisions of Article 31, paragraph 4, of the Statute [regarding judges ad hoc]. 3. When the Court has determined, with the approval of the parties, the number of its Members who are to constitute the Chamber, it shall proceed to their election, in accordance with the provisions of Article 18, paragraph 1, of these Rules. The same procedure shall be followed as regards the lling of any vacancy that may occur on the Chamber.30 4. Members of a Chamber formed under this Article who have been replaced, in accordance with Article 13 of the Statute following the expiration of their terms of ofce, shall continue to sit in all phases of the case, whatever the stage it has then reached.31

By Article 18, 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. If necessary to ll vacancies, more than one ballot shall take place, such ballot being limited to the number of vacancies that remain to be lled.

30

31

This procedure for lling vacancies on a Chamber has been applied three times, in the ELSI, Land, Island and Maritime Frontier Dispute, and Frontier Dispute (Benin/Niger) cases, supra, note 2. This provision has been applied twice. in the Gulf of Maine and the Land, Island and Maritime Frontier Dispute cases, supra, note 2.

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Article 26, on the functions of the Registrar, indicates certain functions to be performed by the Registrar in relation to Chambers. Articles 90 to 93 deal with the procedure before all the Chambers (subject to the Statute, the Rules governing contentious proceedings are applicable to proceedings in the Chambers); and Article 100, paragraph 2, requires that the interpretation or the revision of a judgment given by a Chamber shall be dealt with by that Chamber. Article 101 allows the parties jointly to propose particular modications or additions to the Rules, other than Articles 93 to 97 (on judgments), which may be applied by a Chamber if the Chamber considers them appropriate in the circumstances of the case. On the other hand, the resolution concerning the internal judicial practice makes no mention of the practice to be followed by the Chambers.32 It follows from the Statute and the Rules of Court that once a chamber is constituted under Article 27, paragraph 2, of the Statute, the Court itself has nothing more to do with the Chamber or with the case. Insofar as the President of the Court has certain functions in relation to a chamber, they all derive from the general role of the President as indicated in Article 12 of the Rules of Court, namely, that the President shall direct the work and supervise the administration of the Court, a provision which has remained unchanged since 1922. * * * In one sense, Article 59 of the Statute of the Court answers the preoccupations of those who believe that Article 27 somehow or other binds all the Members of the Court. Article 59 provides quite simply, and deliberately, that The decision of the Court has no binding force except between the parties and in respect of that particular case. If it has no binding force except between the parties, it cannot possibly be binding on any person or other entity than the parties; and in the Statute the expression the parties means the litigating States, nothing else. Examination of the circumstances in which the Council of the League of Nations inserted that provision in the draft Statute33 shows that the intention of those who insisted on it, above all the British Government, was to exclude the very danger which is seen to exist, and to avoid the common law doctrine of the binding force of judicial precedents from becoming a part of positive international law. This intention is reinforced by the exact language of Article 38, paragraph 1, letter d, of the Statute. This is further reinforced by the requirement of Article 56,

32

33

In fact, it is understood that the Chambers apply the same practice, except that only those members of the Chamber who have not been specially chosen by the parties constitute the Drafting Committee of the Chamber. See M.O. Hudson, op. cit. in note 18, at 207.

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paragraph 2, of the Statute, that every judgment and by extension this now applies also to every advisory opinion and every order which is made by the full Court (as opposed to those which the President is empowered to make when the Court is not sitting) should contain the names of the judges who have taken part in the decision. To this is to be added Article 95 of the Rules, requiring every judgment to state whether it is given by the Court or by a Chamber, and to contain the names of the judges participating in it,34 as well as by the elaborate practice, also consecrated in the Rules, regarding separate and dissenting opinions and declarations. No member of the Court is ever bound by any judicial pronouncement in which he did not concur; and a fortiori no member of the Court can be bound by any judicial pronouncement in which that member did not take part, whether it is a decision of the full Court, of its President alone, or of any chamber which the Court might have constituted. This formal answer is reected in the actual language of Article 27 of the Statute especially when it is read against the backdrop of its legislative history. The last-minute change made by the Committee of Jurists of the Coordination Committee, converting the text of the provision into the language of a legal ction, is the most signicant element of that legislative history although as Article 27 is clear and unambiguous there should be no need for recourse to the legislative history. Possibly, had the original text been retained, the arguments here being criticized might have had some foundation. The fact is, however, that the nal text of Article 27 itself excludes that interpretation, for Article 27 itself establishes that judgments of a chamber are not judgments of the Court. Moreover, in the Statute as revised in 1945, with the possible exception of the Chamber of Summary Procedure, the provisions appearing in Article 26 and 27 of the Statute of the Permanent Court have been systematically revised. They make it clear that the Chambers envisaged in Article 26 do not act in the name of the Court but are independent organisms, established no doubt by the Court under powers conferred by the Statute, but, as far as concerns an ad hoc chamber, established and acting exclusively at the request of the parties. Nevertheless, it could be understood that the formal answer may not always be found to be adequate. It is well appreciated, and has been recognized by the Court, that a judgment can have effects going beyond the actual parties to the litigation35 and may have implications in the relations between States

34

35

A similar provision regarding advisory opinions is contained in Art. 107 of the Rules. There is no corresponding formal provision regarding orders, but practice has correctly assimilated orders to all other judicial pronouncements. Aegean Sea Continental Shelf case, ICJ Rep. 1978, 3, 16 (para. 39).

5. ARTICLE 27 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

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other than the parties. That may be a good reason for the exercise of judicial restraint and caution. Article 26 of the Statute (and in fact Article 29 as well) imposes an element of responsibility on those members of the Court who participate in the decision to constitute a Chamber, but this is no greater than their responsibility in general which they incur in the exercise of their judicial functions. The Rules of Court, controversial though they might be in some respects, are designed to facilitate the decisions of States with regard to recourse to the chambers, and the performance by the members of the Court of their duties with regard to the establishment and the composition of Chambers when so requested. Once the members of the Court have done that, their responsibility is discharged.

6
INTERNATIONAL COURT OF JUSTICE: PRACTICE DIRECTION ON AGENTS, COUNSEL AND ADVOCATES

On 7 February 2002 the International Court of Justice adopted three new practice directions.1 Practice Direction VII expresses the Courts views on how the parties to a case, acting under Article 31 of the Statute, should choose a judge ad hoc. It is examined in Essay 7 of this Collection. Practice Direction VIII introduces certain restrictions on the qualication of persons chosen to act as agent, counsel or advocate in a case before the Court, in application of Article 42 of the Statute. It expresses the Courts views on whom the parties should not appoint as agent, counsel or advocate in a case before the Court, namely a person who recently has had close connections with the Courts judicial activities. Taken together with Practice Direction VII these two Practice Directions are an indication of the Courts unease at some relatively new practices of States as regards their choice of persons to serve as judge ad hoc and, related to it, their choice of persons to act as their representatives in a case before it. The need for some regulation of this aspect of litigation practice has come to the fore with the increase in the Courts growing docket and the consequent demand for experienced practitioners to represent parties in often complicated and prolonged proceedings. Since the mid-1990s the Court has been re-examining its working methods, bearing in mind both the congested state of its General List and its budgetary constraints. The rst major outcome of this examination was the adoption in 1978 of a new set of Rules of Court. This was followed in 2001 by the promulgation of what are termed Practice Directions a term common enough in common law judicial institutions. These Practice Directions replaced a number of miscellaneous communications regarding practice which the Court wished the parties to follow in proceedings before it. A Press Release issued at the time explains that the Practice Directions involved no

These Practice Directions are available on the Courts website, and in appropriate editions of the Courts Yearbook. For a consolidated version, see Sh. Rosenne, The Law and Practice of the International Court 192020054, vol. 4, 1817. In preparing this Essay, I have used B. Patel, The World Court Reference Guide: Judgments, Advisory Opinions of the Permanent Court of International Justice and the International Court of Justice (19202000).

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alteration in the Rules but are additional to them.2 The Court keeps these Directions under continuous review, and in 2004 more were added. In 2005 the Court carried this review process a step forward and adopted a new procedure for the promulgation of amendments to the Rules. In future individual Rules will be reviewed and amended as necessary, in place of the general review previously undertaken.3 This had led to the current procedure of revising Rules as experience shows the need for treatment of individual Rules, as opposed to a general review of the whole. Some of the Courts decisions reached in the course of this on-going review concern its internal working methods, with the general aim of accelerating them where this can be done without doing violence to the Statute or prejudicing the thoroughness of its deliberations. Other decisions embodied in Practice Directions are indications of how the Court wishes the parties to act in given respects. They make clear the Courts position on the practical handling of different procedural matters. When a new case is led in the Registry, the Registrar gives to the parties a Note concerning important information for parties to new cases.4 That Note includes the Practice Directions. The addressees of the Note are the States engaged in any proceedings before the Court, in whatever capacity. The two Practice Directions VII and VIII deal both with agents of the parties and with their counsel and advocates. However, the position of agents should be kept distinct from that of other representatives of parties in litigation. The inclusion of agents in these two Directives raises a major question of principle, the more so as there is no known case to date of an agent being appointed judge ad hoc in another case. Article 42 of the Statute simply provides that the parties shall be represented by agents and may have the assistance of counsel or advocates before the Court. Article 40 of the Rules provides that after proceedings have been instituted, all steps on behalf of the parties shall be taken by the agents whose name shall be furnished to the Court and who shall have an address for service at the seat of the Court. Neither the Statute nor the Rules contain any provisions regarding the qualications of an agent. As the agent is the diplomatic representative of a State it would not be appropriate for the Court to lay down any requirements as to the agents personal qualications or to give any indications of what it would regard as an appropriate choice of a person to full that func-

3 4

Report of the Court from the period 1 August 2000 to 31 July 2001, General Assembly 56th session Ofcial Records Supplement A/56/4 paras. 368353, completed in 59th session, Ofcial Records Supplement A/59/4 para. 249. Press Release 2005/9, 14 April 2005. Available on the Courts website. Accordingly, persons preparing for litigation in the Court should check the website in the course of their work.

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tion. That is a matter for the State appointing the agent, having due regard for the nature of the agents responsibilities and duties and the dignity of the Court. Most frequently States appoint to this position the legal adviser of the Foreign Ministry or a member of that ofcers staff or another member of its legal service, or the Ambassador at or near The Hague. In the International Court there have been several cases in which the agent or an acting agent was not a national of the State represented but a practicing attorney from another country.5 The criterion has always been the persons ability to present fully and faithfully to the Court and to the other party the States position on any issue that might arise in or in connection with the proceedings, and condence on the part of the Court that the person concerned is in that position and can convey accurately to the home authorities anything that the Court might wish to convey to them a normal diplomatic function. Since the agent is the diplomatic representative of the appointing Government before the Court and before the other party and alone is authorized to make or conrm statements binding the appointing Government, the agent is not in that capacity a member of the bar and does not act as a member of the bar. Very frequently the agents speech in the Court is formal and does not partake of the quality of a pleading in the sense of advancing or rebutting legal arguments. It is more usually limited to introducing the delegation, indicating how the oral statement will be presented with perhaps a general overview of the case as that party sees it, and a formal duty prescribed by the Rules of reading or conrming the partys nal submissions. When the agent is also listed as counsel or advocate, the statement may assume the character of a pleading. Practice Direction VIII (and Practice Direction VII) raises the question how far the Court may go in indicating its wishes for the handling of a procedural matter which could interfere with a Governments choice of its representative in proceedings before the Court. Hitherto it has been axiomatic in the law of international organizations that the organization has no say as regards the person chosen by any Government to represent it in any organ of the organization. However, the autonomous standing of the International Court of Justice as the principal judicial organ of the United Nations may justify a relaxed application of that principle. Article 17, paragraph 1, of the Statute correctly lays down that no member of the Court

In the Nottebohm case, Liechtensteins agent was a Solicitor of the Supreme Court of England; in the Armed Activities on the Territory of the Congo (Uganda) case the agent was an advocate of the Brussels Bar, and in the Certain Property case a Rechtsanwalt from Dsseldorf. He had been the representative of the claimant, Prince Hans-Adam of Liechtenstein, in earlier proceedings relating to the same matter in the European Court of Human Rights HansAdam II of Liechtenstein v Germany, Application No. 42527/98, judgment of 12 July 2002. For an attempt to cancel the appointment of the agent and allegedly to discontinue the proceedings, see the Application of the Genocide Convention (Merits) case, ICJ Rep. 2007, 26 February, paras. 18 to 21, 23, 24.

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may act as agent, counsel, or advocate in any case, that is before the Court itself or any other international or national court or tribunal. But a judge ad hoc is not a member of the Court, and Article 17, paragraph 1, is not one of the provisions listed in Article 31, paragraph 6, on the conditions required for a judge ad hoc. While Governments will certainly heed the Courts wishes, in the last resort they remain free to appoint whomsoever they consider appropriate in the circumstances. In this context the observations made in Essay 4 of this collection regarding possible difculties caused by the prolonged length of some cases is also relevant here. Practice Direction VIII reads:
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 higher ofcial of the Court (principal legal secretary, rst 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 ofcial of the Court.

Practice Direction VIII (like Practice Direction VII) introduces a cooling off period for the position of agent, counsel or advocate of a person who previously had been a member of the Court, a judge ad hoc, or a senior ofcial of the Registry. For any person who has served in any of those positions, a cooling off period of three years is required before such a person can be appointed agent, counsel or advocate in any case. The cooling off period of three years set down in Practice Direction VIII is long, and it may deter qualied persons from accepting appointment as judge ad hoc. It is believed that it prompted the resignation of persons serving as judge ad hoc in the immediate aftermath of its promulgation. There is no provision in either the Statute or the Rules (nor, by implication, in the Judges Pensions Regulations)6 regarding the activities of any person who has ceased to be a member of the Court, or has ceased to be in the professional service of the Court, although there is apparently no instance of a person who would be disqualied under this Practice Direction being chosen to serve as a judge ad hoc during the cooling off period of three years.

This is subject to General Assembly resolution 58/264, 23 December 2003, regarding the pension rights of a former member of the Court who is appointed to serve on the International Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR). This principle does not apply to a former member of the Court who has been chosen as judge ad hoc. That does not affect the pension rights of the former member of the Court.

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There is no known instance of a former member of the Permanent Court acting as agent or counsel in a case led after that person ceased to be a member of the Court. In that connection it is recalled that all the members of the Permanent Court served for a simultaneous nine-year term leading to the general election of 1929. This aspect has been changed in the present Statute through the introduction of the system of staggered elections, the term of ofce of one third of the members of the Court (ve judges) coming to an end each third year since the rst election in 1946. This has led to an increase in the number of former members of the Court who have returned to the practice of the law. There are a few instances of persons within the categories of Practice Direction VIII serving as counsel after they ceased to hold ofce. The rst instance in which a former member of the Court was a member of a delegation was Sir Gerald Fitzmaurice, listed as Consultant and Co-ordinator of the delegation of Malta applying for permission to intervene in the Continental Shelf (Tunisia/Libya) case.7 He did not address the Court in those proceedings. Sir Geralds term of ofce as a member of the Court terminated in 1973. After Judge (and former President) Jimnez de Archaga ceased to be a member of the Court in 1979, he was retained as counsel by one of the parties in several cases: the Frontier Dispute (Burkina Faso/Mali) case,8 the Phosphate Lands in Nauru case,9 the Land, Island and Maritime Frontier case,10 the Maritime Delimitation in the Area between Greenland and Jan Mayen case,11 and in the Jurisdiction and Admissibility phases of the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case.12 In none of these cases did he address the Court in the oral proceedings. The former Registrar of the Permanent Court, Mr Lpez Olivn was a member of a delegation in a case in the present Court, in the Asylum case.13 These are it is believed the only contentious cases in which a former member of the Court or a former senior member of its staff acted as counsel in the Court itself. In each instance, the person assumed that role more than three years after he ceased to occupy the position in question. The introduction of this three year rule in Practice Direction VIII would seem to reect

7 8 9 10 11 12 13

ICJ Rep. 1981, 3. The request for permission to intervene was led on 18 August 1980. ICJ Rep. 1986, 554. The case was led on 14 October 1983. ICJ Rep. 1992, 241. That case was led on 19 May 1989. ICJ Rep. 1992, 351. That case was led on 11 December 1986. ICJ Rep. 1993, 38. That case was led on 6 August 1988. ICJ Rep. 1994, 112, [1995] ibid. 6. That case was led on 8 July 1991. ICJ Rep. 1950, 266, 1951, 71. Following the dissolution of the Permanent Court, Mr Olivns term of ofce as its Registrar terminated on 20 July 1946. The Asylum case was commenced on 15 October 1949. He did not address the Court.

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practice in this delicate aspect of international litigation, and should not cause unnecessary hardship to any individual or difculty for any State engaged in litigation before the International Court of Justice. On the other hand, there seems to have been no case in which a judge ad hoc later served as agent, counsel or advocate in another case. Judges ad hoc, as we have seen, are not in the same position as members of the Court (or the senior staff of the Registry), and while there are no known instances, it is possible that this ineligibility may cause difculties to States engaged in or contemplating litigation in the International Court. A three year cooling off period may deter practitioners before the Court from accepting to serve as judge ad hoc. It is assumed that this Practice Direction only relates to persons appearing in Court as members of one of the delegations. Former judges, including judges ad hoc, and former senior members of the Registry staff are frequently retained by States as external advisers without appearing as members of the delegation in the courtroom itself. Article 16 of the Statute prevents members of the Court from engaging in that type of activity so long as they are members of the Court. * * * There are two recent judicial pronouncements regarding the quality of a person appointed as agent and its possible effect on the case as a whole, one in the International Court of Justice and the other in the International Tribunal for the Law of the Sea. Note should be taken of those observations in the appointment of an agent. In the Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) (Provisional Measures) case, Judge Oda, in a declaration annexed to the order, noted that a State appearing before the Court [the applicant]
is not represented by a person holding high ofce in the Government acting as Agent, but by a private lawyer from another, highly developed, country. This has rarely been the case in the history of the Court and reinforces my feeling that a question arises as to whether the case is brought to the Court in the interest of the State involved or for some other reason.14

In the International Tribunal for the Law of the Sea, which operates under the United Nations Convention on the Law of the Sea of 1982,15 a special procedure exists for the prompt release of vessels under Article 292 of the Convention. Article 292, paragraph 2, provides that an application for

14 15

ICJ Rep. 2000, 111. 1183 UNTS 3.

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prompt release may be made only by or on behalf of the ag State of the vessel. That wording was designed not to restrict the freedom of the ag State in the choice of an agent in this type of case, which could include a private person, for instance the captain or the owner of the vessel. Accordingly, Article 110, paragraph 2, of the Rules of the Tribunal provides inter alia that a State Party may at any time notify the Tribunal of the name and address of any person who is authorized to make an application on its behalf. Paragraph 3 of that Rule provides:
An application on behalf of a ag State shall be accompanied by an authorization under paragraph 2, if such authorization has not been previously submitted to the Tribunal, as well as by documents stating that the persons submitting the application is the person named in the authorization. It shall also contain a certication that a copy of the application and all supporting documentation has been delivered to the ag State.16

In the Grand Prince case there was some doubt about whether Belize, the applicant, was at the time of the vessels arrest its ag State and the agent, a representative of the parties authorized by the Belize authorities, was unable to supply the Tribunal with adequate explanations of the position. In its judgment, the Tribunal concluded that the documentary evidence adduced by the applicant failed to establish that Belize was the ag State of the vessel when the application was made and that accordingly it had no jurisdiction in this case. The Judgment makes no mention of the quality of the agent.17 However, two of the members of the Tribunal referred to this. Judge ad hoc Jean-Pierre Cot included in his declaration a long passage (paragraphs 915) on the role of advocates before the Tribunal. He referred to Judge Odas opinion in the Congo case and made the interesting suggestion that in choosing their representatives, Governments should keep in mind the qualications required of members of the Tribunal and that advocates should be similarly qualied.18 Judge Anderson, in his separate opinion, mentioned what he termed an unusual feature in this case:
The Agent appointed by Belize is not well placed, as a non-Belizean lawyer in private practice, to explain to the Tribunal the seeming inconsistencies in the statements of different government departments and agencies in Belize.19

16 17 18

19

International Tribunal for the Law of the Sea, Basic Texts/Textes de base, at 58. ITLOS Rep. 2001, 19. See also J.-P. Cot, Appearing for or on behalf of a State: The Role of Private Counsel before International Tribunals, Liber Amicorum Judge Shigeru Oda, vol. II, 835 (2002). Cot has since been elected a member of the Tribunal. ITLOS Rep. 2001, 19 at 54.

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The fact that the agent in this case was not a Belizean lawyer was not directly relevant. What was relevant for the majority of the members of the Tribunal in that case was his inability to present accurately and completely the position of the Government of Belize, but in this respect it is to be noted that no less that nine of the members of the Tribunal did not accept the majority view.20 With regard to counsel and advocates (it is not clear that there is any difference of substance between these two terms), Article 17, paragraph 1, of the Statute provides that no member of the Court shall act as agent, counsel or advocate in any case. No further provisions relating to this aspect of litigation appear in either the Statute or the Rules.21 Although promulgated as Practice Directions, Directions VII and VIII read almost like Rules of Court if not as desirable amendments of the Statute itself. They do not lay down any provision regarding the practice of States engaged in litigating a case before the Court. Rather they indicate to the world at large what is acceptable to the Court in the interests of the good administration of justice.

20 21

Joint dissenting opinion of Judges Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson and Jesus at p. 66. See on this, M.O. Hudson, The Permanent Court of International Justice: A Treatise at 537 (1943).

7
ARTICLE 31 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE REVISITED: THE JUDGE AD HOC

Dikavw t dkaion dij Deut. 16:20

I Article 31 of the Statute of the International Court of Justice, following the similar provision in the Statute of its predecessor the Permanent Court of International Justice as amended in 1929,1 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. 4. The provisions of this Article shall apply to the case of Articles 26 and 29. In such cases, the President shall request one or, if necessary, two of the members of the Court forming the chamber to give place to the members of the Court of the nationality of the parties concerned, and, failing such, or if they are unable to be present, to the judges specially chosen by the parties. 5. Should there be several parties in the same interest [ font cause commune], 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. 6. Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article shall full 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.

For the text as adopted in 1920, see 6 LNTS 384. For the original drafting of this provision, see note 8 below. For the amendment of 1929 see note 9 below and for the revision of 1945, note 11.

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Nicolas Valticos, in honour of whom this article was written, was rst chosen as judge ad hoc by Malta (after the resignation for reasons of health of Jorge Castaeda) in the Libya/Malta Continental Shelf case.2 After that Honduras appointed him in the Land, Island and Maritime Frontier Dispute case,3 determined by an ad hoc chamber of the Court. He was chosen for the third time by Bahrain in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case.4 He was later elected a Judge of the European Court of Human Rights at Strasbourg. Article 31 embodies two interrelated and interactive principles. The rst is that a State which comes or is brought before the International Court of Justice is entitled to have its case determined by every available member of the Court. The corollary of this is that every elected member of the Court is entitled if not obliged to take part in all cases before the Court, including those in which one party is the State of which he or she is a national. The second principle to which Article 31 gives expression is that where there is no member of the Court of the nationality of one or all of the parties in litigation before it, those parties may each designate a person to sit as a judge for that particular case, on an equal footing with all the other judges. The formal designation of such a person is judge ad hoc. Articles 15 and 16 of the Twelfth Hague Convention of 1907 relative to the Creation of an International Prize Court supply the conceptual basis for this. The language of those provisions was, of course, quite different from that of Article 31. The rationale for those provisions, however, retains its interest. The Report of the First Commission of the Conference on this point included the following:
we did not wish to exclude the judge appointed by an interested party from the Court called upon to decide a case. In ordinary arbitration the Powers are generally anxious to have their views presented authoritatively and with exactness to the Court and they can be certain of this only if they have a judge of their choice in the Court. In a court of three members, if each of the parties appoints an arbitrator, they are inclined to consider these arbitrators as the defenders of their interests rather than real judges, and as a matter of fact the award is made by the umpire. This is unsatisfactory. The situation here is different. With the quorum required for the Court, the vote of one judge will not be so important a factor in the case just referred to. Moreover, it is to be presumed that a judge appointed so to act, not in a specic case, but during a denite period, will feel a professional pride which will prevent his considering himself the advocate of the Power which appointed him. Without doubt, he will not lay his nationality aside, but his nationality will not be the only inuence exerted upon his judgment.

2 3 4

ICJ Rep. 1985, 13. ICJ Rep. 1990, 92. ICJ Rep. 1994, 112.

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A nal observation must be made in reference to the advisability of having judges appointed by the Power interested in the case. It will keep out of the award reasons which might, without intention on the part of the drafters, be a source of legitimate irritation. There are different ways of being right and of condemning a litigant, and the form should not aggravate the displeasure caused by the substance.5

In the preparation of the Statute of the Permanent Court of International Justice, what became Article 31 was an integral part of the Root-Phillimore Plan for the election of the members of the Court and the general organization of the Court.6 At rst there were serious differences of opinion among the members of the 1920 Advisory Committee of Jurists on the major issue of what should be done when there was a member of the bench of the nationality of one only of the parties to a case. The Advisory Committee considered three choices: to do nothing and leave matters as they were; not to count the vote of the most junior member of the Court; and to allow the State concerned to appoint what was called at the time a judge ad hoc. The issue was nally settled at a closed meeting of the Committee of which no records are available. The Committee reported the proposal out more or less in its present form, as article 28, with the exception, however, that it was based on the presence of elected deputy-judges (should there be one), who should be the rst choice as judge ad hoc, and that otherwise the person chosen should have the nationality of the appointing State. The only available issue of the report of the Committee of Jurists is defective, but another contemporary report by one who took part in the Committees meetings explains the issues and the manner in which the solution was reached. According to that, one of the factors which persuaded the minority and enabled the proposal to be adopted unanimously was the provision now in paragraph 6, to the effect that the judges ad hoc should full the conditions required by the Statute on the qualications of the titular judges.7

From the report of the First Commission by Louis Renault, Proceedings of the Hague Peace Conferences, translation of the ofcial texts: the Conference of 1907, vol. I, plenary meetings of the Conference 179, 190 (J.B. Scott, ed. 1920). For the Twelfth Convention, see id. 660. Under that Convention the court was to consist of 15 members, nine constituting a quorum. Each State party could designate a judge or a deputy judge, and while eight Big Powers were permanently to have a member on the Court, the other members would be chosen by rotation from the deputy judges. Under this system the judges ad hoc would be chosen from the deputy judges. Art. 15 of Convention XII was one of the sources brought to the attention of the Advisory Committee of Jurists (see next note). For the original Root-Phillimore Plan see PCIJ, Advisory Committee of Jurists, Procs-verbaux of the Proceedings of the Committee (hereafter Procs-verbaux) 327 (as art. 27). For the text adopted by the Committee as art. 28, see p. 678. For the defective report distorted precisely at this point, see p. 720. J.P. Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists 8590 (1920).

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Further minor amendments were made in the 1920 session of the League Assembly at which the Statute was nally adopted.8 The abolition of the post of deputy-judge in the 1929 revision of the Statute (in force from 1936) required adjustment of Article 31.9 The most important change made then was the dropping of the requirement that a judge ad hoc should possess the nationality of the appointing State. At the same time, what is now Article 31, paragraph 4, was added to the Statute, regarding the presence of the judges ad hoc in the Courts chambers.10 Further minor drafting changes and improvement of the concordance between the English and French texts were undertaken in 1945 in the Washington Committee of Jurists and the San Francisco Conference, when the Article received its present form.11 The application of Article 31 is a matter for the Rules of Court. II In its initial form, the Statute of the Permanent Court (Article 3) provided that the Court would consist of eleven judges and four deputy-judges, that the full Court should sit except where expressly provided otherwise, that if eleven judges could not be present, the number should be made up by calling on deputy-judges to sit, and that if eleven judges were still not available, a quorum of nine judges should sufce (Article 25). The original (1922) Rules of Court were therefore based on those provisions and have mainly historical interest today. However, those Rules established some basic principles which have been retained and form the core of the current Rules. Article 2 provided that national judges (as they were sometimes then called) chosen from outside

10 11

Report and draft Scheme presented to the Assembly [of the League of Nations] by the Third Committee, League of Nations, Permanent Court of International Justice, Documents concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court of International Justice 206, 210 (1921) (hereafter Documents). League of Nations, Committee of Jurists on the Statute of the Permanent Court of International Justice, Minutes of the Session held at Geneva from March 11th to 19th 1929, League of Nations doc. C.166.M.66.1929.V at pp. 50, 53, 70, 84, 92, 114, 123, 127; Minutes of the Conference regarding Revision of the Statute of the Permanent Court of International Justice and the Accession of the United States of America to the Protocol of Signature of that Statute, held at Geneva from September 4th to 12th, 1929, doc. C.514.M.173.1929.V, at pp. 40, 61, 74, 87. That was initially applied literally by the present Court in the constitution of the chamber for the Gulf of Maine case, ICJ Rep. 1982, 3. UN Conference on International Organization (UNCIO Washington Committee of Jurists and the San Francisco Conference), Documents, vol. XIV 821, 836.

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the Court under the terms of Article 31 of the Statute should take precedence after the deputy-judges in order of age. This now appears as Article 7, paragraph 4, of the Rules of 1978. That means that in voting on judicial matters the judges ad hoc vote rst in their order of seniority. Article 4 included the principle that in any case in which there is a judge ad hoc the full Court may sit with a number in excess of eleven (later changed to fteen). Article 4 also provided that when the Court has satised itself that there are several parties in the same interest and that one of them has a judge of its nationality on the bench, it should invite them to select by common consent a deputy-judge of the nationality of one of the parties. Should there not be one, they should choose a judge in accordance with Article 31 of the Statute. This, suitably adapted, now appears in Article 36 of the 1978 Rules. Article 4 also interpreted Article 31 of that Statute as it then stood as requiring that the judge ad hoc should be of the nationality of the appointing State (later dropped). That nationality requirement was retained in the revised Rules of 1926. In 1927 an addition was made to the Rules regulating the advisory procedure, to the effect that on a question relating to an existing dispute Article 31 of the Statute should apply, any doubt to be settled by the Court.12 That was an important addition, and it marked the rst formal step in assimilating the advisory procedure, at that time not regulated in the Statute, to the contentious. These provisions were left unchanged in the modied Rules of 1931. Two important incidents concerning the application of Article 31 of the Statute occurred in this period. The rst related to the application of Article 31, paragraphs 4 and 5, and led the Permanent Court, after a hearing, to make its well-known order of 20 June 1931 in the advisory proceedings concerning the Customs Rgime between Germany and Austria (which it found related to an existing dispute). In that order the Court laid down that all governments which, in the proceedings before the Court, come to the same conclusion, must be held to be in the same interest for the purposes of the case. 13 The second related to Article 31, paragraph 1, and the position of a State

12

13

For that addition, as Art. 71 of the Rules, see PCIJ Ser. E 4 (1927) 296. For an interpretation and application of that Rule, see the order of 31 October 1935 in the Danzig Legislative Decrees advisory opinion, Ser. A/B 65 at 69. Ser. A/B 41 (1931). The order referred several times to the present case. In 1933 the Registrar reported to the Court that it was expressly stated that this case should not be considered as a precedent. Report by the Registrar of June 1933 in Ser. D 2 Addendum 3. The Registrar reported that decisions under Art. 31 (5) are settled by a decision of the Court. He also dealt with the question, not directly settled in the Statute, of a contested nomination of a judge ad hoc. The material is repeated in a more organized manner in Addendum 4 (1943). On the possible discordance between in the same interest and font cause commune, see B. Schenk von Stauffenberg, Statut et Rglement de la Cour Permanente de Justice Internationale: Elments dInterprtation 190 (1934).

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which has an elected member of the Court when that elected member is unable to sit. That issue arose rst in the Lotus case between France and Turkey, and again in the Free Zones case between France and Switzerland. In the Lotus case, the French elected member of the Court, Judge Weiss, was at one stage unwell and the Court decided in principle that should he be unable to sit, France would be entitled to appoint a judge ad hoc.14 Judge Weiss died on 31 August 1928, during the pendency of the Serbian Loans and Brazilian Loans cases, his successor being elected by the competent organs of the League of Nations on 19 September 1929. In those two pending cases France was entitled to appoint a judge ad hoc. At the same time other cases involving France came before the Court. In the Territorial Jurisdiction of the International Commission of the River Oder case, in which France was one of several joint applicant parties, there was no French judge on the Court.15 In the Free Zones case France appointed a judge ad hoc who took part in the order of 19 August 1929. Following the general election of judges in 1930 and other difculties that had been experienced in obtaining a quorum for this case, the Court decided that the later phases would be heard by the Court in the same composition.16 After the 1929 amendment of the Statute and with the experience thus gained, the Rules were thoroughly examined by the Court and revised. In the Rules of 1936, the rule that a judge ad hoc must have the nationality of the appointing State was dropped. Article 3 provided that any State which considered that it possessed and intended to exercise its right to nominate a judge under Article 31 of the Statute was to notify the Court by the date xed for the ling of the memorial. The name of the person so chosen was also to be indicated and communicated by the Court to the other parties which may submit their views to the Court. If any doubt or objection should arise, the decision shall rest with the Court, if necessary after hearing the parties. By that, the Court assumed a power not specically mentioned in the Statute, which on its face leaves the choice of the person to the unfettered discretion of the nominating party, subject to observance of the rules for ad hoc ineligibility of Articles 17 and 24 of the Statute. There is no authoritative explanation of the words if necessary in this context. This was repeated substantially unchanged in Article 3 of the Rules of 1946 (where the time limit was more aptly placed at the date of ling the

14 15

16

Ser. E 22 (1928) 224. Judge Weiss recovered and resumed his place on the Court. Ser. A 23 (1929). The applicants were United Kingdom, Czechoslovakia, Denmark, France, Germany and Sweden. Since the Court included a member of Danish nationality (Nyholm) none of the other applicants was entitled to appoint a judge ad hoc. See the statement of the Registrar at the opening of the hearings, Ser. C 17/2 at 8. Ser. E 8 (1932). Although by that time there was a French member of the Court (Fromageot), he was ineligible to take part in that case, Ser. C 19/1 at 10, 2234.

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memorial or counter-memorial), in Article 3 of the Rules of 1972, and in Article 35 of the Rules of 1978. Those provisions also retained the earlier provisions regarding the situation where there is more than one party in the same interest. Article 29 of the 1936 Rules (now Article 20, paragraph 2, of the 1978 Rules) formalized the Permanent Courts practice of not including judges ad hoc in the quorum necessary for the Court to sit. Article 61, paragraph 9, of the 1936 Rules on provisional measures of protection provided that when the President had occasion to convene the Court, judges ad hoc should be convened if their presence can be assured at the date xed by the President for hearing the parties. For reasons not made public this was dropped in the 1946 Rules, but today with the ease and speed of modern communications there is no importance in this. Several cases involving the application of Article 31 of the Statute have arisen under these provisions of the Rules of the present Court: the South West Africa cases, the North Sea Continental Shelf cases, the Fisheries Jurisdiction cases against Iceland (under the Rules of 1972) and the Legality of Use of Force cases of 1999 against ten members of NATO. In the rst two of these, the Court applied to contentious cases the doctrine of the Customs Union case. At the same time it joined two sets of cases, both of them cases of two applicants against a single respondent, the South West Africa cases by separate applicants against a single respondent, and the North Sea Continental Shelf cases, between Denmark and the Federal Republic of Germany and between the Netherlands and the Federal Republic. In the special agreement, the three parties agreed that Denmark and the Netherlands should appoint a single judge ad hoc and that the cases should be joined. In the provisional measures phase of the ten Legality of Use of Force cases any respondent without a national among the members of the Court was entitled to appoint a judge ad hoc, but in the jurisdiction phase in 2004 the Court applied the Customs Union rule. In all of these cases, the Court examined the relevant pleadings before it made the appropriate order, so as to satisfy itself that the parties concerned had come to the same conclusions.17 The situation was different in the two Fisheries Jurisdiction cases, brought respectively by the Federal Republic of Germany and by the United Kingdom against Iceland. Here the Federal Republic, in reliance on Article 31, paragraph 3, of the Statute, informed the Court of its intention to appoint a judge ad hoc, although in view of the urgency this would not done before the proceedings for an indication of provisional measures. It repeated that notice of its intention later, when it informed the Court of the name of the person it had chosen. No objection having been received from Iceland, the

17

For these joinders, see ICJ Rep. 1961, 13 and 1968, 9.

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Registrar forwarded the documents in the case to the chosen person. Shortly before the opening of the proceedings in the jurisdictional phase of that case, however, the Court had a deliberation on the matter. Without seeking the parties views or hearing them, it decided by eight votes to ve that taking into account the United Kingdom case against Iceland and the composition of the Court in the Federal Republics case, which included a judge of United Kingdom nationality, there was in the present case, concerning the jurisdiction of the Court, a common interest in the sense of Article 31, paragraph 5, of the Statute which justied the refusal of the request of the Federal Republic of Germany for the appointment of a judge ad hoc.18 In the merits phase, the Federal Government reiterated its intention to appoint a judge ad hoc. At the same time it added that before taking a decision on the nomination of the person to sit as judge ad hoc, it would like to know whether, in the opinion of the Court, in the present phase of the proceedings a common interest continued to exist which might be regarded as an obstacle to the admission of a judge ad hoc. Referring to paragraph 7 of the 1973 judgment, the Court approached both the United Kingdom and the Federal Republic requesting their observations on the possible joinder of the two cases. Both Governments replied in the negative on the question of joinder. The merits judgment in the Federal Republics case contains the following passage:
The Court does not include upon the bench any judge of the nationality of either of the Parties. However, the Government of Iceland did not indicate any intention to avail itself of the right conferred upon it by Article 31, paragraph 3, of the Statute of the Court; and in the present phase of the proceedings the Agent for the Federal Republic of Germany informed the Court that, taking account of the fact that the Government of Iceland was declining to take part in the proceedings and to avail itself of the right to have a judge ad hoc on the bench, the Government of the Federal Republic, as long as that situation persisted, did not feel it necessary to insist on the appointment of a judge ad hoc.19

18

19

For the correspondence on this, see the Pleadings in that case, vol. II at 387 (doc. 35), 403 (docs. 68, 70) and 421 (doc. 77). Announcing this in open Court at the commencement of the hearings, the President (Zafrulla Khan) stated that the Court found the appointment of a judge ad hoc in that phase of the case inadmissible. This decision affects only the present phase of the proceedings . . . and does not in any way prejudice the question whether, if the Court nds that it has jurisdiction, a judge ad hoc might be chosen to sit in the subsequent phases of the case. Ibid. 120. For the record of the decision in the judgment, see ICJ Rep. 1971, 49, 51 (para. 7). ICJ Rep. 1974, 175, 178 (para. 10). For the relevant correspondence, see Pleadings, vol. II at 454 (doc. 110), 455 (doc. 112), 456 (docs. 113, 114). For the statement of the President (Lachs) on the opening of the hearings in this phase, see id. at 28. At the same time the Court decided by nine votes to ve not to join the two cases but to hold public hearings immediately following on each other, id. at 5 (para. 8) and 177 (para. 8).

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In the Legality of Use of Force cases (under the Rules of 1978) Yugoslavia instituted ten separate proceedings (with different titles of jurisdiction) against member States of NATO. Together with the application instituting these proceedings Yugoslavia requested provisional measures. Those of the respondents (except one) who did not have a member of the Court of its nationality applied to appoint a judge ad hoc in the provisional measures phase. Opening the hearings the Acting President (Weeramantry) stated that the Court, after due deliberation, found that the nomination of a judge ad hoc each by Belgium, Canada, Italy and Spain was justied in the present phase of their respective cases. Special arrangements were made for the hearings in these cases, where, when the respondents were speaking there were repeated adjournments so that the Court could re-assemble in a different composition according to whether one of the judges ad hoc was participating. In this phase the lack of jurisdiction in the cases brought against Spain and the United States was manifest, and the Court ordered them removed from the General List. Things changed in the preliminary objection phase of the remaining eight cases. Here the Court invited the parties to consider two issues that arose the presence on the Court of judges ad hoc in the preliminary objections phase (in this connection, the German member of the Court [Simma] was ineligible to sit as judge in this phase), and the possible joinder of the cases. On the question of the judges ad hoc, the judgments record that the Court had decided, pursuant to Article 31, paragraph 5, that taking into account the presence on the Bench of judges of British, Dutch and French nationality, the judges ad hoc chosen by the respondent States should not sit during the preliminary objections phase. The Court made it clear that this decision did not in any way prejudice the question whether, should the Court reject the objections, judges ad hoc might sit in subsequent stages of the cases. As for Germany, the Court decided that in view of this decision, Germany had not become entitled to choose a judge ad hoc under Article 7 of the Rules.20 III Substantial additions were introduced into the revised Rules of 1978. Distinguishing between the Court itself and the bench for a particular case, Article 1 states that for the purposes of a particular case, the Court may

20

For the 1999 decision, see CR 99/14, 10 May 1999, opening the hearings on provisional measures. For the 2004 decision, see the judgment in the case against Germany of 15 December 2004, para. 15 (the general decision) and para. 16 (the specic decision) and the corresponding paragraphs in the other seven judgments of that date. The decision about the nonjoinder is also recorded there. See ICJ Rep. 2004 720, 727 (para. 15).

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include upon the bench one or more persons chosen under Article 31 of the Statute to sit as judges ad hoc. Although that is a restatement of the continual practice of both Courts, it is important as part of the general restructuring of the Rules which make a distinction between the Court, the fteen members elected in accordance with the Statute, and the bench for a particular case, with the addition of judges ad hoc and the subtraction of recused members. Articles 7 and 8 deal with the judges ad hoc as such, and repeat earlier provisions:
Article 7 1. Judges ad hoc, chosen under Article 31 of the Statute for the purposes of particular cases, shall be admitted to sit on the Bench of the Court in the circumstances and according to the procedure indicated in Article 17, paragraph 2, Articles 35, 36, 37, Article 91, paragraph 2, and Article 102, paragraph 3, of these Rules. 2. They shall participate in the case in which they sit on terms of complete equality with the other judges on the Bench. 3. Judges ad hoc shall take precedence after the Members of the Court and in order of seniority of age. Article 8 1. The solemn declaration to be made by every judge ad hoc in accordance with Articles 20 and 31, paragraph 6, of the Statute shall be as set out in Article 4, paragraph 1, of these Rules. 2. This declaration shall be made at a public sitting in the case in which the judge ad hoc is participating. If the case is being dealt with by a chamber of the Court, the declaration shall be made in the same manner in that chamber. 3. Judges ad hoc shall make the declaration in relation to any case in which they are participating, even if they have already done so in a previous case, but shall not make a new declaration for a later phase of the same case.

With regard to attendance in the meetings of the Court devoted to a case, Article 10, paragraph 3, of the Rules, a new provision, provides:
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.21

21

With regard to the non-inclusion of judges ad hoc in the quorum, in 1920 the League Assembly refused to include such a provision in Art. 31 of the Statute on the ground that it went without saying. Report of the Third Committee in Documents at 130, 193 (on what was then art. 28). It was rst included in Art. 30 of the Rules of 1926 and has been repeated ever since. There is an implied duty on the Registrar to ensure that the judges ad hoc are duly summoned to the meetings that they are entitled and required to attend. This is not mentioned in Art. 26 of the Rules, which sets out the Registrars functions.

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For the appointment of judges ad hoc, Article 35, 36 and 37 apply, as follows:
Article 35 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 xed for the ling 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 notication 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 xed 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. Article 36 1. If the Court nds 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 x 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. Article 37 1. 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 xed by the Court, or by the President if the Court is not sitting. 2. 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. 3. If the Member of the Court having the nationality of a party becomes able to sit not later than the closure of the written proceedings in that phase of the case, that Member of the Court shall resume his seat on the Bench in the case.

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Article 102, paragraph 3, repeats the earlier Rule regarding judges ad hoc in advisory proceedings:
3. 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.

Article 31 of the Statute is complemented by Article 35 of the Rules which sets out the modalities of the appointment. In that provision, which originated in Article 4 of the initial Rules of Court of 1922, the Court has reasserted its power to monitor and control the person chosen to serve as judge ad hoc. So far, both the Permanent Court and the present Court have had to decide questions of the entitlement of a party to appoint a judge ad hoc. It also appears that the Permanent Court once intimated its reservations at the choice as judge ad hoc of a person at the time serving as head of his countrys diplomatic mission in another capital, and another person was chosen.22 That demonstrates that the Permanent Court asserted a power to examine whether a person chosen as judge ad hoc was not ineligible for that task, but not whether the person was qualied in accordance with Article 31, paragraph 6, of the Statute (that could be an unenviable duty). There is no further published record of any other decision by either Court as to the eligibility or qualication of a person chosen to sit as judge. If either Court has had instances of this, it has dealt with them discreetly and without publicity. IV Perhaps the most important discussion about judges ad hoc took place in connection with the revision of the Rules of 1936. Following the abolition in the 1929 amendment of the Statute that a judge ad hoc had to be of the nationality of the designating State, the Court examined at some depth whether a judge ad hoc could possess the same nationality as any of the members of the Court. The Permanent Court decided not to include in the Rules a clause making it possible to appoint a judge ad hoc who is not a national of the State exercising the right of appointment, providing always that the person so appointed does not possess the same nationality as any other titular judge of the Court. It also decided not to insert a clause in the Rules

22

Serbian Loans case, PCIJ, Ser. C-16-III at 811 (telegram of 29 April 1929); B. von Stauffenberg, op. cit. in note 13 above, 192 (1934); M.O. Hudson, The Permanent Court of International Justice 19201942: A Treatise 365 (1943). For decisions of the International Court regarding persons who should not be chosen as judges ad hoc, see p. 125 below.

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making it possible for the President, before the appointment of a judge ad hoc had become denitive, to draw the attention of the State concerned to the difculties which might be caused by the appointment of a person of the same nationality as a judge on the bench. Judge Anzilotti summarized this discussion as indicating that the minutes should show that members of the Court were agreed in point of fact that it was desirable that there should not be two judges of the same nationality in the Court; that the Court would be disposed, if necessary to convey this to a State, but that, having regard to the terms of the Statute, it would go no further. Judge Guerrero stated that the Court had been checked by a doubt with regard to the interpretation of the Statute.23 The second major issue related to the nomination of the judges ad hoc. The discussion was complicated, but to simplify matters here it can be resumed as concerning two apparently separate issues. The rst was whether the party concerned should notify its intention to appoint a judge ad hoc and if so at what stage of the proceedings. The second was, having done that should it make the appointment later and if so at what stage of the proceedings. Implicit in this discussion was an assumption by the Court that it had the power, and perhaps the duty, itself to scrutinize the appointment and to approve it. It appears from the record that the practice in the Permanent Court was for States intending to exercise their right to appoint a judge ad hoc to notify the name of the appointee informally, and to allow the other party to submit its comments on the nomination. The Courts decision is included in Article 3 of the 1936 Rules mentioned above, retained in the Rules of 1946 and in Article 34, paragraph 3, of the Rules of 1978.24 In the present Court there is a growing tendency for States to appoint a person of another nationality as a judge ad hoc, including for a judge ad hoc to be chosen from a State of a different geographical group than that of the appointing State. The rst instance of this was in the rst contentious case before the present Court, the Corfu Channel case (1948, 1949). Albania appointed jurists of Czech nationality. This case, however, is not to be regarded as trend-setting: it is likely that Albania did not have a suitably qualied Albanian for that post. The persons it chose its rst choice resigned after the preliminary objection phase both came from what was then the ideological and political-military group known in United Nations jargon as the Eastern European States (before Albania went on its own way). The next instance of this was Bulgarias choice of an eminent Czech international lawyer, a member of the International Law Commission, in the Aerial Incident

23 24

This discussion was spread over the years 1932 to 1934. It is summarized in D2 Add. 4 at 357. For that discussion in the Permanent Court see D2 Add. 4 at 9.

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of 27 July 1955 cases (1959). This is more interesting, since Bulgaria probably did have competent nationals of its own for this position, although its choice still remained within the ideological group to which the country then adhered. The next instance was the choice by both parties in the Arbitral Award of the King of Spain case (1960) of non-nationals as judges ad hoc, the person chosen by Honduras Roberto Ago not even from a Latin American country. It has been repeated several times since. This has even led to the choice of former members of the Court (including a former President) and a former Registrar as judges ad hoc, something which the Court, as will be seen, discourages.25 This is an interesting development which is certainly giving new and refreshed content to the concept of judge ad hoc, for clearly in not all of these cases can the appointment of a non-national be ascribed to lack of qualied personnel amongst the parties nationals. There have also been contentious cases in which the parties agreed not to appoint any judges ad hoc. These included the Frontier Lands case (1959), the Temple of Preah Vihear case (1961, 1962), the Border and Transborder Armed Actions case between Nicaragua and Honduras (1988), the Kasikili/Sedudu Island case (1999) and Portugal in the Legality of Use of Force case brought against that country (1999, 2004). In addition, it is to be noted that in its original form, the agreement between Canada and the United States of America to refer the Gulf of Maine case to an ad hoc chamber constituted under Article 26, paragraph 2, of the Statute envisaged that neither party would have a national of its own among the members of the chamber: That intention was overturned by a series of unforeseen and unfortunate events, including the decease of two of the proposed members of the chamber and of Judge Baxter who would have been ineligible to have taken part in that case. This development is encouraged by Article 35, paragraph 2, of the Rules of 1978. V There have been four instances of the appointment of a judge ad hoc of a person with the same nationality as a member of the Court sitting in the case. The rst was Nicaraguas appointment of a French professor of international law in the Military and Paramilitary Activities case. Moreover, that person was at the time appearing before the Court as counsel in another pending case. On this occasion, not only was there a French member of the

25

In the Arbitral Award of 31 July 1989 case there was originally a member of the Court of the nationality of one of the parties. His term of ofce came to an end during the pendency of the case, and he was then appointed judge ad hoc by that party.

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Court, but at the same time a former French member of the Court was nishing a case under Article 13, paragraph 2, of the Statute. The second instance was in the Application for the Revision and Interpretation of the Tunisia/ Libya Continental Shelf case (1985), where again one of the judges ad hoc (incidentally the rst woman to sit on the bench) was of French nationality alongside the French member of the Court. The third case of this nature was the appointment of a distinguished British international lawyer as judge ad hoc by Bosnia-Herzegovina in the Genocide Convention case, that person also being counsel in another pending case before the Court. Lastly Liechtenstein, in its application instituting proceedings in the Certain Property case, led on 30 May 2001, announced the appointment as judge ad hoc of a person who at the time was counsel in more than one case then pending in the Court, also of the nationality of a member of the Court. In these cases not one of the parties, or apparently the Court, raised any objection to the appointment. In the Permanent Court this phenomenon was encountered in two advisory opinions involving the Free City of Danzig, which the Court found in the circumstances was entitled to appoint a judge ad hoc. In each case, the Free City appointed a German national, notwithstanding that there was a member of the Permanent Court of German nationality, and no objection appears to have been taken to this.26 Although the Free City of Danzig was an anomalous creation of the Treaty of Versailles and an element in the ongoing tension between Germany and Poland throughout the inter-war period, it is clear from the discussion on the issue during the 1936 revision of the Rules of the Permanent Court that the Permanent Court viewed this practice with disfavour. One might think that it conicts with the spirit, if not with the letter, of what is now specically written into the Statute in Article 3, paragraph 1, that no two of the members of the Court may be nationals of the same State. That Article is not one of those mentioned in Article 13, paragraph 6, regarding the conditions to be met by persons chosen as judge ad hoc, and it is arguable that a judge ad hoc is not a member of the Court notwithstanding membership of the bench in the particular case. This line of cases indicates two things. The fact that the person chosen was serving as counsel or advocate in another case pending before the Court

26

Access to or Anchorage in the Port of Danzig of Polish War Vessels (1931) and Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932) advisory opinions, Ser. A/B 43 and 44. The Free City appointed the same person in each case, and the two German nationals on the Court voted the same way. At that time the Rules of Court had not been amended and still required the judge ad hoc to possess the nationality of the appointing State. However, the amendment to the Statute had been adopted although it was not yet in force.

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was not at the time seen as a ground for ineligibility to serve as judge ad hoc, although it is open to criticism. There is probably value in practitioners in international courts obtaining from the inside experience of the working of these courts. But the choice of practitioners as judge ad hoc (and this is quite common) should not extend to persons who at the time they are chosen are already appearing or have recently appeared before the Court as agent, counsel or advocate. The second conclusion from these precedents is that the present Court sees no objection to a judge ad hoc possessing the nationality of a member of the Court. Article 37 of the 1978 Rules of Court is a new provision, to some extent codifying the practice developed by the Permanent Court in the case of Judge Weiss and France. The rst instance of the application of this Rule in the present Court occurred in the Lockerbie case, in which the current member of the Court of British nationality was ineligible to sit, having acted as counsel for the United Kingdom in the provisional measures phase of that case in 1992. The United Kingdom thereupon appointed the former British member of the Court, also a former President, as judge ad hoc. In an unprecedented move, the Court informed both Libya and the United States of this, and invited their observations before taking a decision. The Court held that in the phase relating to jurisdiction and admissibility the United Kingdom and the United States were not parties in the same interest within the meaning of Article 31, paragraph 5. The choice of a judge ad hoc by the United Kingdom was therefore justied in the current phase in that case.27 Some may see in this a ne example of scholastic casuistry. The Court has had to face a new problem in connection with requests for permission to intervene under Article 62 of the Statute.28 The rst instance of this was Maltas request for permission to intervene in the Continental Shelf case between Tunisia and Libya. Malta included in its application for permission to intervene a reasoned statement of its intention to appoint a judge ad hoc. At the same time it questioned whether the two judges ad hoc appointed by the parties should sit in the proceedings on the request for permission to intervene, since both parties objected to the request and were therefore parties in the same interest. The Court, sitting without the participation of the two judges ad hoc, decided that Maltas request for the appointment of a judge ad hoc did not fall within the ambit of Article 31 of the Statute, and that a State seeking to intervene under Article 62 had no other right than to submit a request for permission to intervene. Pending the

27 28

The decision was reached by ten votes to three. ICJ Rep. 1998, 9, 13 (para. 9). Art. 62 allows a State which considers that it has interest of a legal nature which may be affected by the decision in a case to submit a request to be permitted to intervene, on which the Court will decide.

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decision on that request, the conditions under which Article 31 may become applicable did not exist. This decision applied to both aspects of Maltas initial request, and accordingly the judgment dismissing Maltas request was reached with the participation of the two judges ad hoc chosen by the parties.29 The next case of this nature was Italys request for permission to intervene in the similar Continental Shelf (Libya/Malta) case. Here there was a member of the Court of Italian nationality. The judgment dismissing Italys request makes no mention of the composition of the Court on that occasion.30 The most complicated instance of this was Nicaraguas request for permission to intervene in the Land, Island and Maritime Frontier Dispute case between El Salvador and Honduras, brought before a Chamber of the Court under Article 26, paragraph 2, of the Statute. This request for permission to intervene went through two phases. The rst was before the Court for a decision on whether this request should be heard by the Court or by the Chamber, and following that by the Chamber. The Court determined the rst question without the participation of judges ad hoc, deciding that it was for the Chamber formed to deal with the case to decide whether to grant the application for permission to intervene.31 The Chamber included two judges ad hoc, and in a judgment decided to allow the intervention limited to that part of the case that related to the regime of the waters of the Gulf of Fonseca but not on the delimitation of those waters or any decision as to the legal situation of the maritime spaces outside the Gulf or any decision as to the legal situation of the islands in the Gulf. The judgment (para. 102) expressly states that Nicaragua did not become party to the proceedings.32 No question requiring decision by the Court or by the Chamber and concerning judges ad hoc, including the possibility of a judge ad hoc being chosen by the intervening State, seems to have arisen in these unusual proceedings, and it followed from the admission of Nicaragua as a non-party intervener that it was not entitled to appoint a judge ad hoc in the proceedings in the Chamber. Perhaps the most serious question regarding the judges ad hoc that has arisen in the present Court concerns the question whether previous appointment as judge ad hoc (whether he sat or not) would disqualify a person from

29

30 31 32

Continental Shelf (Tunisia/Libya) (Application by Malta for Permission to Intervene) case, ICJ Rep. 1981, 3, 5 (para. 8); Sovereignty over Pulau Litigan and Pulau Sipadan (Application by the Philippines for Permission to Intervene) case, ICJ Rep. 1991, 575. This has been followed when the parties to the case did not oppose the request for permission to intervene and the Court embodied its formal decision granting the permission in an order, Land and Maritime Boundary between Cameroon and Nigeria (Application by Equatorial Guinea for Permission to Intervene) case, ICJ Rep. 1999II, 1029. ICJ Rep. 1984, 3. ICJ Rep. 1990, 3. ICJ Rep. 1990, 92.

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sitting in a later phase of the case or in a later case related to the same subjectmatter, should that person subsequently be elected a titular member of the Court. That had rst occurred in the Permanent Court when Judge De Visscher, who had been chosen as judge ad hoc by Belgium in the Water from the Meuse case, was elected during the pendency of the case as a member of that Court. No question then arose of his possible disentitlement to sit on the ground of his earlier appointment as judge ad hoc. In the present Court, the applicants chose Sir Mohammed Zafrulla Khan, a former member and Vice-President of the Court whose term of ofce had expired, to be judge ad hoc in the South West Africa cases. For extrinsic reasons he never took his seat and was replaced before the hearings in the Preliminary Objections phase in 1962. In 1963 he was again elected as a member of the Court. In connection with the later phase of the case, it appears that the President, Sir Percy Spender, persuaded him that his previous appointment as judge ad hoc rendered him ineligible to sit in the case, and that if he were to bring the matter before the Court for decision, the majority would uphold that view. Accordingly, Sir Muhammad did not participate in the second phase of the case.33 In the Application for Revision and Interpretation of the 1982 Judgment in the Tunisia/Libya Continental Shelf case, a member of the Court recused himself on the ground that he had been appointed judge ad hoc in the original case. The President (Judge Elias) accepted this under either Article 17 or Article 24 of the Statute.34 It is not consistent with the concept of judge ad hoc or with the solemn declaration that one is required to make in the same terms as the solemn declaration of the elected members of the Court, that appointment as judge ad hoc should later be a ground for the ineligibility of a duly elected member of the Court to sit in the case should the case proceed to another phase or should an earlier judgment come before the Court in a process of revision or interpretation. In fact, Article 100 of the Rules can be read as requiring if possible that proceedings in revision or in interpretation should be determined by the same Court. This is, indeed, the practice in international arbitration.35

33

34 35

For particulars of this incident, see M. Reisman, Revision of the South West Africa cases, 7 Virginia J. Intl L. at 55 (1966). This non-participation was decisive as it left the proceedings in this phase to a bench composed of an even number of judges, and the case was decided by the casting vote of the President. ICJ Yearbook 1984-1985 at 177. This occurred in the interpretation phases of two recent arbitrations, the Anglo-French Continental Shelf arbitration of 1977 and 1978, XVIII RIAA 3 and 271, and the arbitration between Argentina and Chile in 1994 and 1995 concerning Laguna del Desierto, 113 ILR 1. On the composition of the bench in cases of interpretation on revision of a judgment, see Sh. Rosenne, Interpretation, Revision and Other Recourse from International Judgments and Awards, p. 172 (2007).

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VI Neither the Statute nor the Rules contain any provision regarding the duration of an appointment as judge ad hoc. Following the practice of the Permanent Court, the duties of a judge ad hoc commence on appointment. From that time the judge ad hoc is entitled to be summoned to any meeting of the Court called to discuss matters of substance, and procedural matters if they raise controversy as between the parties.36 This can occur before the judge ad hoc makes the solemn declaration in open Court, required of all judges.37 In the nature of things one might presume that the appointment continues until the nal disposal of the case for which the person was appointed. It is not usual for the judges ad hoc to be convened for purely procedural matters which are not controversial, such as prolongation of the time limits, nor are they normally convened for decisions regarding the termination of a case.38 In the Corfu Channel case, the person appointed as judge ad hoc for the preliminary objections phase was later by reasons of health prevented from sitting on the date xed for the opening of the proceedings on the merits. The Court allowed Albania to choose a new judge ad hoc and xed a new date for the opening of the proceedings.39 In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain ( Jurisdiction and Admissibility) case, one of the judges ad hoc died after the judgment of 1 July 1994. The judge ad hoc appointed in his place took part in the second judgment, of 15 February 1995, although the Court held no further hearings on the issues of jurisdiction and admissibility. This is unusual, since a person elected a member of the Court while hearings are in progress does not take part in those hearings or in the judgment. This was an
36

37

38

39

Cf. the Courts order deciding not to authorize a further round of written pleadings in the Fisheries Jurisdiction (Spain v. Canada) case, with both judges ad hoc present. One of these attached a dissenting opinion. ICJ Rep. 1996, 58. That was before there had been any public session of the Court and before that judge ad hoc had made the solemn declaration in a public session of the Court. Thus, the judge ad hoc chosen by Slovakia in the Gabckovo-Nagymaros Project case took part in the order regarding the visit to the site of 5 February 1997 and made the solemn declaration in open Court on the opening of the hearings on 5 March, when he was declared duly installed as judge ad hoc. An outstanding illustration of this is the proceeding for the termination of the Aerial Incident of 3 July 1988 case. This involved both the discontinuance of the proceedings in the Court and the simultaneous Partial Award on Agreed Terms of cases pending in the Iran-U.S. Claims Tribunal. The same persons were agents in the two sets of proceedings and the person appointed as Iranian judge ad hoc in the Court was a member of the Claims Tribunal. The order of discontinuance in the Court was made by the President (Bedjaoui) alone although the Court was technically in session at the time. The Partial Award on Agreed Terms was made by the full Tribunal including the persons chosen as judge ad hoc in the Aerial Incident case, 32 IranU.S. Claims Tribunal Reports 207. ICJ Rep. 1949, 7.

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exceptional case, and it must not be assumed that in normal instances a person appointed as judge ad hoc who was not present at the hearings would be entitled or obliged to participate in the decision. There is no provision in the constituent instruments regarding the resignation of a judge ad hoc. In the Pakistani Prisoners of War case, the judge ad hoc appointed by Pakistan, himself a former President of the Court, resigned after the oral proceedings on a request for the indication of provisional measures of protection but before the order was made.40 In the Request for an Examination of the Situation in accordance with the Courts Judgment of 20 December 1971 in the case of the Nuclear Tests (New Zealand v. France), the agent of New Zealand accompanied the request with a letter informing the Registrar of the resignation of the judge ad hoc who had been chosen by New Zealand in 1974, and the choice of another person to replace him. That reected New Zealands view that the 1995 case was a continuation of the 1974 case, and the appointment of a judge ad hoc was contested by France. In the pre-judicatory proceedings to determine whether New Zealand had properly led a case against France, the Court decided that the new judge ad hoc appointed by New Zealand will join the Court and make the necessary solemn declaration.41 The issue of the right of a State formally to withdraw the appointment of a judge ad hoc has arisen in the Inter-American Court of Human Rights. In its order of 11 September 1995 in the Paniagua Morales et al. case, that Court explained that an ad hoc judge is similar in nature to other judges on that Court in that he does not represent a particular government, is not its agent and sits on the Court in an individual capacity [bold in original]. The Court went on:
An ad hoc judge is required to meet the same prerequisites as permanent judges. The provision for all permanent and ad hoc judges to sit on the Court in an individual capacity is based on and must always allow for the need to protect the independence and impartiality of an international court of justice.42

The Court also noted that it was unaware of any factor which might prevent the judge ad hoc concerned from serving as judge ad hoc, and in those circumstances he could not be replaced.
40

41

42

ICJ Rep. 1973, 329 (para. 4). And see the Pleading in that case at p. 159 (doc. 45). The order simply mentions that Sir Zafrulla Khan sat in the case until 2 July 1973 that is shortly after the hearings were closed. ICJ Rep. 1995, 291 and 296 (paras. 7 and 27). On this appointment by New Zealand see G. Barwick, A Radical Tory: Reections and Recollections (1995); K. Keith, The International Court of Justice and Nuclear Weapons, 21 New Zealand International Review (January/February 1996) at 21. OAS, Inter-American Court of Human Rights, Annual Report of the Inter-American Court of Human Rights 1995 at 123 (doc. OAS/Ser.L/V/II.33 doc. 4, 22 January 1996).

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The right of a State to appoint a judge ad hoc is statutory. The exercise of that right is independent of its other rights under the Statute relating to the conduct of a case. The appointment of a judge ad hoc accordingly is never understood as an implied acceptance of the Courts jurisdiction, if the State concerned is persistently challenging that jurisdiction. In the South West Africa cases the Registrar explained this in the following terms:
The right conferred by Article 31 of the Statute is an absolute one, which affects the composition of the Court and the equality of the parties. It is thus an independent constitutional right, the exercise of which is independent of a partys attitude towards the proceedings themselves or the jurisdiction of the Court.43

The Courts decisions regarding judges ad hoc in mainline proceedings are taken by the members of the Court constituting the bench at the time, to the exclusion of any judge ad hoc already duly appointed. These decisions are also taken as early as possible and communicated to the parties. The establishment of the composition of the bench is an essential preliminary to the oral proceedings in any case or phase of a case. VII In February 2000 the Court adopted Practice Direction VII, its rst attempt to give general notice of its position on some of the requirements for a judge ad hoc and a signicant illustration of the Courts view of the relationship that should exist between the Court and the bar. That Practice Direction reads:
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.

The relevant provisions of Article 31 of the Statute to which Practice Direction VII refers are the rst sentence of paragraph 2 and paragraph 3. By that

43

South West Africa cases, XII Pleadings 525 (doc. 25). Judges ad hoc are frequently appointed when the jurisdiction is being challenged and have taken part in those decisions. There has been no instance of a State which has decided not to appear before the Court or to defend its case (Statute, Art. 53) appointing a judge ad hoc.

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provision, which originated in Article 4 of the initial Rules of Court of 1922, the Court re-asserted its power to monitor and control the person chosen to serve as judge ad hoc. Practice Direction VII therefore appears as the rst formal attempt to lay down qualications for a person designated as judge ad hoc, or perhaps it would be more accurate to say that the Practice Direction sets out some factors that would render a person ineligible or inappropriate for that function. It is the Courts reaction to a practice that has developed in the last three decades. On the question of whether a person with the nationality of a serving member of the Court not ineligible to sit in a particular case may be chosen as judge ad hoc, the Court has obviously decided sub silentio to leave matters as they stand. At the same time it is frequently suggested that the period of three years is too long for the cooling off period, and that it may well discourage suitable practitioners from accepting the function of judge ad hoc. This view must also be considered in light of the practice in some cases of a judgment on the merits calling for, or at the least anticipating, some further proceedings. When a case is instituted there is no way of knowing how long it will remain on the Courts General List. Leaving aside the long time limits for the written pleadings which parties frequently request, the mainline proceedings are often interrupted by incidental proceedings which may require expeditious attention, such as requests for provisional measures in the same or in another case, preliminary objections, requests for permission to intervene and interlocutory proceedings connected with counter-claims. Thus, the case between Qatar and Bahrain was led on 8 July 1991 and nal judgment was only delivered on 16 March 2001. Both parties appointed non-nationals as judges ad hoc. The case between Cameroon and Nigeria was led on 29 March 1994 and nal judgment was delivered on 10 October 2002. The record so far is held by the case on the Application of the Genocide Convention brought in 1993 by Bosnia & Herzegovina against Yugoslavia. The oral pleadings on the merits took place in the spring of 2006 and the judgment was delivered a year later on 26 February 2007. Often delays are caused by the parties initiative in seeking a diplomatic solution of the dispute while legal proceedings are in progress. In cases of State responsibility the Court has several times decided that monetary damages were payable, to be determined by the Court should the parties not reach agreement on the matter. In those circumstances the judgment on the merits does not have the consequence that the case is removed from the General List. In the Corfu Channel case, the rst instance of this in the present Court, only a few months elapsed between the judgment on the merits and the nal judgment on the compensation due.44 In the US Diplomatic and Consular Staff in Tehran the judg-

44

ICJ Rep. 1949, 4 (Merits), 244 (compensation).

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ment on the merits was delivered in 1980 but the case remained on the List until it was discontinued in May of 1981.45 In the Armed Activities on the Territory of the Congo (Uganda) case the Court decided in December 2005 that each party, Uganda on a counter-claim, was entitled to monetary compensation from the other. That case therefore remains on the General List. In the Gabckovo-Nagymaros Project case the special agreement which was the title of jurisdiction envisaged further proceedings after the judgment on the merits. Although that judgment was delivered in 1997, negotiations between the parties are proceeding and the case remains on the General List.46 The effect of the Practice Direction would be that during this period and for a further three years after the nal decision, if the Government of those judges ad hoc should become involved in a new case before the Court it could not appoint those persons as its agent,47 counsel or advocate. Only resignation would enable a judge ad hoc to resume practice before the Court, including representation of his own Government after the cooling off period. (Parenthetically, no difculty is felt over the ineligibility of these judges ad hoc from serving as counsel or advocate in another case before the Court while they are serving as judges ad hoc.) Given this background, while in principle a Government ought not to appoint a sitting judge ad hoc as its agent in another case, the principle should be applied with exibility, allowing the Government concerned to consult with the Court, or at least with its President who would be in a position to know the real state of the cases in which no further action is being taken with the consent of the parties, with a view to reducing this cooling off period for the appointment of its representatives. VIII What really are the functions of a judge ad hoc? In his capacity of judge ad hoc in a case, Sir Elihu Lauterpacht has given the following classic exposition of the role of judge ad hoc, and that partly reects, and partly expands on the original concept as expressed in 1907 in the report on the proposed international prize court. Lauterpacht has said:

45 46

47

ICJ Rep. 1980, 3 (Merits), 1981, 45 (Discontinuance). ICJ Rep. 1997, 7, Report of the ICJ to the UN General Assembly, 1 August 200431 July 2005, UN General Assembly Ofcial Records sixtieth session Supplement No. 4 (A/60/4) paras. 124132. Regarding the special situation of agents, see Essay 6 of this collection.

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It cannot be forgotten that the institution of the ad hoc judge was created for the purpose of giving a party, not otherwise having upon the Court a judge of its nationality, an opportunity to join in the work of this tribunal. The evidence in this regard of the attitude of those who participated in the drafting of the original Statute of the Permanent Court of International Justice can hardly be contradicted. This has led many to assume that an ad hoc judge must be regarded as a representative of the State that appoints him and, therefore, as necessarily pre-committed to the position that that State may adopt. That assumption is, in my opinion, contrary to principle and cannot be accepted. Nonetheless, consistently with the duty of impartiality by which the ad hoc judge is bound, there is still something specic that distinguishes his role. He has, I believe, the special obligation to endeavour to ensure that, so far as is reasonable, every relevant argument in favour of the party that has appointed him has been fully appreciated in the course of collegial consideration and, ultimately, is reected though not necessarily accepted in any separate or dissenting opinion that he may write.48

As far as can be detected from a natural reticence in this regard, those sentiments are widely shared by non-nationals who have been appointed judge ad hoc.

48

Separate opinion in the Application of the Genocide Convention (Further Provisional Measures) case, ICJ Rep. 1993 409 (para. 5). Adopted by Judge ad hoc Sir Geoffrey Palmer in the Request for Examination case, ICJ Rep. 1995 288, 421 (para. 118), Judge ad hoc Bula Bula in the Arrest Warrant of 11 April 2002 case, ibid. 2002, 3, 101, Judge ad hoc Franck in the Sovereignty over Pulau Litigan and Pulau Sipadan case, ibid. 2002, 625, 693, Judge ad hoc Berman in the Certain Property case, ibid. 2005, 6, 71, Judge ad hoc Bennouna in the Frontier Dispute (Benin/Niger) case, ibid. 2005, 90. 153, Judge ad hoc Kateka, Armed Activities on the Territory of the Congo (Uganda) ibid. 2005, 19 December.

8
ARTICLE 59 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE REVISITED

If our courts in the early part of the seventeenth century had so small a reverence for the most powerful or supposed to be monarch of the European continent, they were at the same time rather nearer to European practice in the matter of precedent than they have since become. For the rule at that time, ex relatione Johannis Selden, was that: In this or that particular case the Kings Bench will declare unto you what the law is, but that binds nobody but whom that case concerns. So the highest court, the Parliament may do . . . Did the draftsmen of Article 59 of the Statute of the Court have this in mind when they wrote . . . [Article 59]? And yet, as we all know, you may expel precedents with a pitchfork, but no court that aspires to consistency (and without consistency there can be no law) will attempt to prevent their perpetual (and permanent) return, as guides at any rate, if not as dictators. O in XV British Year Book of International Law 146 (1934).

Article 59 of the Statute of the International Court of Justice, following in this respect Article 59 of the Statute of the Permanent Court of International Justice, provides:
The decision of the Court has no binding force except between the parties and in respect of that particular case. La dcision de la Cour nest obligatoire que pour les parties en litige and dans le cas qui a t dcid.

A similar provision had appeared in article 56 of the First Hague Convention of 1899 (The award is only binding on the parties who concluded the compromis) and in Article 84 of the First Hague Convention of 1907 (The award is not binding except on the parties in dispute).1 This was brought to the notice of the Advisory Committee of Jurists of 1920 appointed by the Council of the League of Nations under Article 14 of the League Covenant

187 Consolidated Treaty Series 410 (1899); 298 ibid. 233 (1907).

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to prepare a draft Statute for the Permanent Court.2 Late in this meeting the Secretariat drew the Committees attention to the fact that the question of the legal force of the sentence, for the suit only which it terminated and for the parties to that suit (except in the form of a precedent), had not been fully discussed by the Committee.3 However, no discussion of this, as opposed to the aspect of third-party intervention, took place in the Advisory Committee. Only the British Government referred to this question during the subsequent meetings of the League Council. In a Note of October 1920, largely concerned with the question of intervention under what is now Article 63 of the Statute when the construction of a multilateral treaty is involved in the case, the following appears:
It seems to me that the decision of the Permanent Court cannot but have the effect of gradually moulding and modifying international law. This may be good or bad; but I do not think this was contemplated by the Covenant; and in any case there ought to be some provision by which a State can enter a protest, not [emphasis in original] against any particular decision arrived at by the Court, but against any ulterior conclusions to which that decision may seem to point.4

From the discussion on this it was explained that if in such circumstances a State did not intervene under Article 63, a judicial interpretation of the treaty in question could not be enforced against it. No possible disadvantage would ensue from stating directly what Article [63] indirectly admits. That led to what became Article 59 of the Statute which, it was explained, would state this directly.5 The Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice (1944) examined this provision in the course of its work. In paragraph 63 of its Report it wrote:

2 3 4

Permanent Court of International Justice, Advisory Committee of Jurists, Procs-Verbaux of the Proceedings of the Committee [hereafter Procs-Verbaux] at 38 (1920). Procs-verbaux, 559 at 560. See also the reminder of Mr Loder at p. 594. It is not clear why this aspect should have been omitted from the discussions. League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article 14 of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court of International Justice (hereafter Documents) at 38 (1921). See the report by the representative of France, Lon Bourgeois, presented to the League Council on 27 October 1920, Documents, 45 at 50. For the consequential amendment of what is now Article 38 (then 35), by the inclusion in paragraph 1(d) of the introductory words Subject to the provisions of Article 59, see ibid. at 44. See further on this, H. Lauterpacht, The Development of International Law by the International Court 8 (1958).

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The effect of this provision has, in our opinion, sometimes been misinterpreted. What it means is not that the decisions of the Court have no effect as precedents for the Court or for international law in general, but that they do not possess the binding force of particular decisions in the relations between the countries who are parties to the Statute. The provision in question in no way prevents the Court from treating its own judgments as precedents. . . . It is important to maintain the principle that countries are not bound in the above sense by decisions in cases to which they were not parties, and we consider accordingly that the provision in question should be retained without alteration.6

No proposals for amendment of Article 59 were made at the San Francisco Conference, and the provision is accordingly retained in the Statute of the International Court of Justice unchanged. Article 59 of the Statute of the Permanent Court was subject to serious criticism by Professor Verzijl. In an article published in 1926, in a commentary on the application of the decision in the Wimbledon7 case after the intervention of Poland had been admitted on the basis of Article 63 of the Statute, Verzijl considered Article 59, particularly its concluding words (in respect of that particular case), to be illogical in the context of the Statute. It had been imprudently inserted by the Council of the League of Nations. Verzijl has consistently held that the view that Article 59 was merely the reverse of Article 63 was erroneous and that in fact the two articles contradict each other. By the same token he regarded the consequential amendment in the form of the addition of the opening words of Article 38, paragraph 1(d) as imprudent. He was particularly scornful of the phrase in respect of that particular case, which does not appear in either of the Hague Conventions of 1899 and 1907. He thought that an interpretation given in a case should be binding on the parties for all future cases and that, taking the Wimbledon case as an illustration, the interpretation there given of the relevant provisions of the Treaty of Versailles would always be binding on Poland, but would not be binding on the principal parties in the case in future cases. In a later article he called Article 59 ill-advised.8 Verizjls criticism appears to proceed to a very great extent from the political origin of Article 59 in the Council of the League of Nations [how wrong it is for a draft framed by leading experts to be amended by less competent revisers]. In that respect this criticism is not easily understood. Treatymaking is a political operation and the most carefully prepared draft has

6 7 8

British Parliamentary Paper, Misc. No. 2 (1944) Cmd. 6531; 39 AJIL, Supplement, 1 (1945). PCIJ, Ser. A, No. 1 (1923). See further on the Lighthouses arbitration, note 45 below. Die Rechtsprechung des Stndigen Internationalen Gerichtshofes von 1922 bis Mai 1926, 13 Zeitschrift fr Vlkerrecht 489 (1926). Reproduced in English in his I The Jurisprudence of the World Court 21 (1965). See also p. 115.

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always to meet the test of political approval. This is a fact of political life (to which the International Law Commission, for instance, has always been alert), as much in the international sphere as in internal parliamentary activities. It is probable that the Inter-Allied Committee had that criticism in mind when it included the above-quoted passage in its Report. * * * The Permanent Court of International Justice had little occasion to have recourse to Article 59 of the Statute. The situation has changed with the present Court, where Article 59 has become relevant in a series of issues which were probably not foreseen when the Statute was drafted. Those issues relate above all to the question of the Courts reaction to a contested application for permission to intervene under Article 62 of the Statute by a State which considers that it has an interest of a legal nature might be affected by the decision in the case, and the conceptually related issue, where the Courts jurisdiction is contested on the ground that a State whose interests might be affected by the decision is not a party to the case, either because it was not cited in the instrument instituting the proceedings, or because it has not submitted a request to intervene under Article 62 of the Statute, or because of some peculiarity in the manner in which the case came before the Court. Recently Article 59 has been applied to an issue of the power of the Court to indicate provisional measures of protection with effects beyond the parties to the litigation. Questions have also arisen as to the relationship of holdings in an advisory opinion and in a judgment on preliminary objections with the following phase of a case. That serves to introduce the different uses of Article 59 and the different interpretations placed upon it, by the Permanent Court and by the present International Court of Justice, and the function which Article 59 has come to play in modern international litigation in the International Court. * * * The Permanent Court decided quite early that Article 59 does not exclude purely declaratory judgments. It went on to explain that the object of Article 59 was simply to prevent legal principles accepted by the Court in a particular case from being binding upon other States or in other disputes.9 If there may be an ambiguity in that turn of phrase, and that ambiguity may remove some of the sharpness of Article 59, given its origins together with the addi-

German Interests in Polish Upper Silesia (Merits) case, Ser. A 7 at 19 (1926); Interpretation of Judgments Nos. 7 and 8 (The Chorzw Factory) case, Ser. A 13 at 20 (1927). In his dissenting opinion in that case, Judge Anzilotti observed that Art. 59 clearly referred to a traditional and generally accepted theory in regard to the material limits of the res judicata (at 27). This may have been a reaction to criticism of Art. 59 by Verzijl. Cf. previous note.

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tion to Article 38, paragraph 1(d), that dictum can only mean that the common law doctrine of stare decisis is formally excluded from the purview of public international law. This notwithstanding, with the passage of time and the accumulation of reasoned decisions of the International Court (and of other international courts and tribunals following it), international case-law, without being a formal source of international law, is becoming all-pervasive. The International Court itself is today a primary generator both of specic rules and of trends of international law. It is developing the ne art of distinguishing one case from another in a manner strongly reminiscent of the practice of the commonlaw courts. On the other hand, it would appear that the common law conception of a decision per incuriam, in cases in which the issues of fact and of law have not been properly or fully argued by the parties, has not yet made an open appearance in the case-law of the International Court, although there are signs that the Court may be sensitive to this aspect, which could be one of particular delicacy in the context of international litigation. The Permanent Court also established that orders made by the Court, although as a general rule read in open Court, due notice having been given to the Agents, have no binding force (Article 59 of the Statute) or nal effect (Article 60 of the Statute) in deciding the dispute brought by the parties before the Court.10 Later in the same case the Permanent Court stated that it was certainly incompatible with the character of the judgments rendered by the Court and with the binding force attached to them by Articles 59 and 63, paragraph 2, of the Statute, for the Court to render a judgment which either of the Parties may render inoperative.11 The effect of those dicta is probably more limited than a cursory reading of them might suggest. Orders can constitute precedents (most of the law concerning provisional measures of protection and of discontinuance is found in orders, as is a certain amount of the law governing other aspects of what is sometimes called the incidental jurisdiction of the Court). Nor was the

10

11

Free Zones case, Ser. A 22 at 13 (1929). Modern practice is for orders to be read in open Court only in exceptional circumstances. However, it is doubtful if there can be any signicance in the manner in which the judicial pronouncement is made public or even how it is composed, especially as the present Court includes all its orders seriatim in each annual volume of its Reports. Signicance attaches to its quality judgment, advisory opinion, order, decision. A judgment is nal and binding, on the parties and, de facto at least, on the Court, for that particular case only, even if it is interlocutory. Free Zones case, Ser. A 24 at 14 (1930); reiterated in the judgment on the merits in that case, Ser. A/B. 46 at 161 (1932). Judge Negulesco thought that having regard to Arts. 59 and 60 of the Statute, the Court could not regard a case as validly submitted to it if the special agreement infringed those provisions, and that in this case the Court should have declared that it had no jurisdiction (p. 193).

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Permanent Court laying down any general principle which would compel the winning party to exact full compliance with the terms of any decision in its favour. The procedural and to some extent constitutional issue which the Permanent Court faced was whether it could render a judgment in a case in which, a priori and before the proceedings took place, the parties had made an agreement open to an interpretation that they would decide whether (not how) to implement a future decision of the Court. Without referring to the Free Zones case, the present Court has several times rendered judgments in which it has stated applicable rules and principles, leaving the how of their application to further negotiations between the parties. The earliest, and in some respects the most signicant, instance of this is found in the North Sea Continental Shelf cases.12 A very striking illustration of the direct effect and application of Article 59 can be seen in the Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility) case. Here Nicaragua adduced two heads of jurisdiction, its 1929 declaration accepting the compulsory jurisdiction of the Permanent Court, the validity of which had been upheld by the Court in the Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) case,13 and factual elements which had been established by the Court in the merits phase of that case in which the respondent did not participate, leaving the Court to act in accordance with Article 53 of the Statute.14 In its judgment the Court found that as it had jurisdiction under the Pact of Bogot, there was no need for it to examine the question of its jurisdiction under the declarations made by virtue of Article 36, paragraphs 2 and 5, of the Statute. On the issues of fact, the Court included the following passage in its judgment:
Nor can it be accepted that once the Court has given judgment in a case involving certain allegations of fact, and made ndings in that respect, no new procedure can be commenced in which those, as well as other, facts might have to be considered. In any event, it is for the Parties to establish the facts in the present case taking account of the usual rules of evidence, without it being possible to rely on considerations of res judicata in another case not involving the same parties (see Article 59 of the Statute).15

12

13 14 15

ICJ Rep. 1969, 3. Those cases (subsequently joined) were instituted by the ling of special agreements. No issue seems to have been raised of the relationship between the questions which the Court was requested to answer and Art. 59 of the Statute, although there is no question that the implementation of that judgment was, ex hypothesi, a matter for negotiation between the parties. ICJ Rep. 1984, 392. ICJ Rep. 1986, 14. Ibid. 54, subsequently discontinued, ibid. 1992, 222. Judge Schwebel in his separate opinion applauded the Courts giving the most rigorous effect to the import of Art. 59 (p. 131). This may be an indication that the Court recognized that its decision in the Military and

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* * * Turning now to the innovative case-law of the present International Court of Justice, one item which has arisen concerns the relation between holdings contained in a judgment on preliminary objections and the later phases of the case. This issue, and the signicance of Article 59, rst arose in both phases of the South West Africa cases. In the preliminary objection phase, the joint dissenting opinion of Sir Gerald Fitzmaurice and Sir Percy Spender dealt with the assumption that the Court would nd that it had jurisdiction and that on the merits would hold in favour of the respondent (South Africa). The dissenting judges said:
Such a decision would be res judicata only for the Applicant States (Article 59 of the Statute). It would not bind the United Nations Assembly, nor would it bind any States except the Applicants. Any other State dissatised with it could, at some future time, bring fresh proceedings on exactly or substantially the same grounds, with results what might be the same, or again might not. From the Mandatorys point of view, there could be no nality. On the other hand a decision given against the Respondent would be binding on it, and would enable Article 94 of the Charter to be invoked if necessary by the other Party.16

The question of the force of the res judicata arising from the judgment on the preliminary objections was next discussed in the second phase of that case. Judge Tanaka, for instance, in his individual opinion, seemed to think that the Courts nding of 1962 in favour of the survival of the Mandate for South West Africa would have the force of res judicata under Article 59, but that the effect of the res judicata of that judgment should be limited to the operative part of the judgment and should not extend to the reasons underlying it. The opposite point of view was expressed in forceful terms by Judge Jessup and, perhaps less emphatically, by Judge Koretsky.17 But the Court did not commit itself. It said:
[T]he Court nds it unnecessary to pronounce on various issues . . . such as whether a decision on a preliminary objection constitutes a res judicata in the proper sense of the term, whether it ranks as a decision for the purposes of Article 59 of the Courts

16 17

Paramilitary Activities in and against Nicaragua (Merits) case had been reached without full or proper argument, and would therefore be prepared to hear relevant argument afresh without any restrictions which might be attributable to the earlier decision. It also indicates that the Court, for whatever reason, wished to take a fresh look at the facts as found in 1986, to the extent that they would be still relevant. ICJ Rep. 1962, at 552. ICJ Rep. 1966, 261 (Tanaka), 240 (Koretsky), 332 (Jessup).

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Statute, or as nal within the meaning of Article 60. The essential point is that a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits, whether or not it has in fact been dealt with in connection with the preliminary objection.18

Without directly citing Article 59, the Court in another case has also given an important explanation of the phrase binding force in the context of a special agreement requesting the Court to indicate the principles and rules of international law applicable to the delimitation of the continental shelf, the parties undertaking to meet to put those principles and rules into effect. Thus the Court has said:
47. . . . It is always open to the parties to a dispute to have recourse to a conjunction of judicial determination and settlement by agreement. . . . 48. The fact however that the Parties did not entrust the Court in this case with the task of drawing the delimitation line itself in no way affects the Judgment of the Court or its binding effect on the Parties as a matter of res judicata[.] . . . It will be the treaty [contemplated by the special agreement] which will constitute the nal delimitation. The treaty will however be the implementation of an obligation already entered into [in the special agreement]; and that provision is not a bare pactum de contrahendo. The Parties have undertaken not merely to conclude a treaty, but in doing so to apply the principles and rules indicated by the Court in its 1982 Judgment. While the Parties requested the Court to indicate what principles and rules of international law may be applied for the delimitation of the area of the continental shelf , they may of course still reach mutual agreement upon a delimitation that does not correspond to that decision. Nevertheless, it must be understood that in such circumstances their accord will constitute an instrument superseding their Special Agreement. What should be emphasized is that, failing such mutual agreement, the terms of the Courts Judgment are denitive and binding. In any event moreover, they stand, not as something proposed to the Parties by the Court, but as something established by the Court.19

18

19

Ibid. at 36 (para. 59). That passage is to be understood in light of the Rules of Court in force in 1966. The revised wording now incorporated in Art. 79 of the 1978 Rules of Court may render that passage less persuasive. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ibid. 1985, 192, 218 (paras. 4648). In a maritime delimitation case introduced unilaterally, the Court has interpreted Art. 59 as endowing its delimitation with a certain permanency and as excluding possible impact of one anticipated event, Bahrains claim that it is entitled to the status of archipelagic State. In the judgment on the merits in the Maritime Delimitation and Territorial Questions case the Court asserted that the judgment will have binding force between the Parties in accordance with Article 59 and consequently could not be put in issue by the unilateral action of either of the Parties, and in particular, by any decision of Bahrain to declare itself an archipelagic State, ICJ Rep. 2001, 40, 97 (para. 183).

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Probably the fullest and most complex analysis of the principle of res judicata and the application of Articles 59, 60 and 61 of the Statute of the International Court of Justice took place in the nal merits phase of the Application of the Genocide Convention case between Bosnia & Herzegovina and Serbia.20 Here the Court had to examine a question of its jurisdiction based on the status of the applicant State as a party to the Statute on the institution of these proceedings in 1993. The Court had taken decisions on matters of jurisdiction in this case (in the language of Article 36 (6) of the Statute) four times before the merits stage of the proceedings. That was in its two orders of 1993 on provisional measures, its judgment of 1996 on preliminary objections and its judgment of 2003 in a decision on the admissibility of a request for revision of the 1996 judgment.21 In addition a similar issue had arisen twice in another set of cases decided in 1999 and 2004.22 The question that it faced in the merits stage of the Genocide Convention case was what precisely it had decided in all these previous cases. This raised issues of the scope of the res judicata. The Court rst examined the relevance of its past decisions (paragraphs 105 to 113). No question of res judicata arose in connection with the 1993 orders on the requests for the indication of provisional measures (paragraph 105). With regard to the revision proceedings, which it analysed closely, the Court found that for the purposes of the merits case the 2003 judgment, while binding between the parties, and nal and without appeal, did not contain any nding on the question whether or not the Federal Republic of Yugoslavia (as the respondent State was known at the time) had actually been a member of the United Nations in 1993 (an issue that arose as a matter of jurisdiction in the merits phase of the current case). The question of the status of the FRY in 1993 formed no part of the issues upon which the Court pronounced judgment when dismissing that Application (paragraph 113). This led the Court into a discussion of the principle of res judicata and its application to the 1996 judgment on the preliminary objections. The
Judgment of 26 February 2007. Of the judges who took part in the merits phase, four, Judges Ranjeva, Shi, Koroma and Judge ad hoc Kreca had taken part in the preliminary objection phase of this case in 1996 (see next note) and of these only Judge Ranjeva had taken part in the provisional measures proceedings of 1993. President Higgins and Judges Shi, Ranjeva and Koroma had sat in the Application for Revision phase in 2003. President Higgins and Judges Shi, Ranjeva, Koroma, Owada and Tomka, and Judge ad hoc Kreca had likewise been members of the bench in the preliminary objection phase of the Legality of Use of Force cases in 2004 (see note 22 below). For the three traditional elements for identication, persona, petitum, causa petendi, in an instance of res judicata, see the dissenting opinion of Judge Anzilotti in the Chorzw Factory (Interpretation) case, PCIJ Ser. A 13 (1927) at 23. For these cases see ICJ Rep. 1993 3 and 325, 1996 595 and 2003 7. Legality of Use of Force cases, provisional measures ICJ Rep. 1999 124 to 916 (ten cases) and preliminary objections, 2004 279 to 1307 (eight cases). Here citations are made to the case against Belgium.

20

21 22

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Court rst explained the character of that principle as it appears from the terms of the Statute of the Court and the Charter of the United Nations:
The underlying character and purposes of the principle are reected in the judicial practice of the Court. That principle signies that the decisions of the Court are not only binding on the parties, but are nal, in the sense that they cannot be reopened by the parties as regards issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. Article 59 of the Statute, notwithstanding its negative wording, has as its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is nal and without appeal; Article 61 places close limits of time and substance on the ability of the parties to seek revision of the judgment. . . . Two purposes, one general, the other specic, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Courts function, according to Article 38 of its Statute, is to decide, that is, to bring to an end, such disputes as are submitted to it. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. Article 60 of the Statute articulates this nality of judgments. Depriving a litigant of the benet of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes [paragraphs 115, 116].

The Court concluded this part of this judgment with the following categorical statement:
This does not however mean that, should a party to a case believe that elements have come to light subsequent to the decision of the Court which tend to show that the Courts conclusions may have been based on incorrect or insufcient facts, the decision must remain nal, even if it is in apparent contradiction to reality. The Statute provides for only one procedure in such an event: the procedure under Article 61, which offers the possibility for the revision of judgments, subject to the restrictions stated in that Article. In the interests of the stability of legal relations, those restrictions must be rigorously applied. . . . Subject only to this possibility of revision, the applicable principle is res judicata pro veritate habetur, that is to say that the ndings of a judgment are, for the purposes of the case and between the parties, to be taken as correct, and may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events [paragraph 120].

The Court then turned to the application of this holding to the case at hand. Starting with the statement that the operative part of a judgment of the Court possesses the force of res judicata and recalling that the operative part of the 1996 judgment stated that the Court found that it had jurisdiction, it went on: That jurisdiction is established with all the weight of the Courts judicial authority. . . . [I]f any question arises as to the scope of the

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res judicata attaching to a judgment, it must be determined in each case having regard to the context in which the judgment was given (paragraphs 123, 125). The Court went on:
For this purpose, in respect of a particular judgment it may be necessary to distinguish between, rst, the issues which have been decided with the force of res judicata, or which are necessarily entailed in the decision of those issues; secondly, any peripheral or subsidiary matters, or obiter dicta; and nally matters which have not been ruled upon at all. Thus an application for interpretation of a judgment under Article 60 of the Statute may well require the Court to settle [a] difference of opinion [between the parties] as to whether a particular point has or has not been decided with binding force [a reference to Chorzw Factory (Interpretation) case]. If a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attached to it: and a general nding may have to be read in context in order to ascertain whether a particular matter is or is not contained in it [paragraph 126].

And:
That principle [res judicata] signies that once the Court has made a determination, whether on a matter of the merits of a dispute brought before it, or on a question of its own jurisdiction, that determination is denitive both for the parties to the case, in respect of the case (Article 59 of the Statute) and for the Court itself in the context of that case. . . . [O]nce a nding in favour of jurisdiction has been pronounced with the force of res judicata, it is not open to question or re-examination, except by way of revision under Article 61 of the Statute. . . . [paragraph 138].

The question of the savings effect of Article 59 in relation to a State which is not a party to the proceedings but whose interests are closely involved in a given case arose for the rst time in the Monetary Gold Removed from Rome case. Here the jurisdiction of the Court was based on a complex arrangement which envisaged a series of competing claims by Italy and by Albania to the gold in question, namely monetary gold from the National Bank of Albania, taken to Italy and then to Germany during World War II, and recovered by the Western Allies. Italy instituted proceedings in the Court, and itself contested the Courts jurisdiction on the ground that an essential party, that is a State (Albania) whose legal position formed the very subjectmatter of the case, was not before the Court, neither having been cited in the application instituting the proceedings nor having submitted a request for permission to intervene under Article 62 of the Statute. In the circumstances the Court found that it could not entertain the case as submitted to it. It took the opportunity to explain in strong language that the rule in Article 59 rests on the assumption that the Court is at least able to render a binding decision. Where the issue concerns the international responsibility of a third State which has not given its consent to the exercise of the

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jurisdiction, the Court cannot give a decision on that issue binding on any State, either the third State, or any of the parties before it.23 So far this doctrine has been limited to a case involving the international responsibility of a third State, and it would be otiose to speculate on its application in other circumstances. Furthermore, the Court has shown reluctance to extend the scope of that ruling to cases where the interests of the absent third State do not form the very subject-matter of the case. The test appears to be whether a third State is directly impugned in the nal submission of one or other of the parties, not whether that third States actions are discussed in the pleadings.24 The earliest example of this restraint is seen in the Military and Paramilitary Activities in and against Nicaragua case. In the merits phase the Court took the opportunity to assert that a State which decides not to appear in or to withdraw from a case or a phase of a case
must accept the consequences of its decision, the rst of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute.

Later in that judgment Article 59 was found to have another implication altogether. In its submissions Nicaragua had requested an award of a sum of money as the minimum (and in that sense provisional) valuation of direct damages. Refusing to make such an award, the Court said:
There is no provision in the Statute of the Court either specically empowering the Court to make an interim award of this kind, or indeed debarring it from doing so. In view of the nal and binding character of the Courts judgments, under Articles 59 and 60 of the Statute, it would however only be appropriate to make an award of this kind, assuming that the Court possesses the power to do so, in exceptional circumstances, and where the entitlement of the State making the claim was already established with certainty and precision. Furthermore, in a case in which the respondent State is not appearing, so that its views on the matter are not known to the Court, the Court should refrain from any unnecessary act which might prove an obstacle to a negotiated settlement.25

The implications of Article 59 in connection with an absent State arose for a second time in 1986, in the Chamber which decided the Frontier Dispute (Burkina Faso/Mali) case. Here the question was one of jurisdiction, in rela-

23 24

25

Monetary Gold Removed from Rome case, ICJ Rep. 1984, 19, 33. This can be deduced from the action of the Court vis--vis material furnished to it by a third State Yugoslavia in the Corfu Channel (Merits) case, ICJ Rep. 1949, 3, 17. And see my Intervention in the International Court of Justice 170 (1993). ICJ Rep. 1986, 14, 24 (para. 28); 143 (para. 285).

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tion to the termination of a land frontier at a tripoint with the frontier of a State not a party to the proceedings. The Chamber said:
46. The Chamber also considers that its jurisdiction is not restricted simply because the end-point of the frontier lies on the frontier of a third State not a party to the proceedings. The rights of the neighbouring State, Niger, are in any event safeguarded by the operation of Article 59. . . . The Parties could at any time have concluded an agreement for the delimitation of their frontier, according to whatever perception they might have had of it, and an agreement of this kind, although legally binding upon them by virtue of the principle pacta sunt servanda, would not be opposable to Niger. A judicial decision . . . merely substitutes for the solution stemming directly from their shared intention, the solution arrived at by a court under the mandate which they have given it. In both instances, the solution only has legal and binding effect as between the States which have accepted it, either directly or as a consequence of having accepted the Courts jurisdiction to decide the case. Accordingly, on the supposition that the Chambers judgment species a point which it nds to be the easternmost point of the frontier, there would be nothing to prevent Niger from claiming rights, vis--vis either of the Parties, to territories lying west of the point identied by the Chamber.26

This doctrine has been continued in the Certain Phosphate Lands in Nauru (Preliminary Objections) case. One of Australias objections was that in addition to Australia, two other States parties to the Trusteeship Agreement ought also to have been cited in the application instituting the proceedings. The Court rejected that objection. It pointed out that if those States considered that their interests of a legal nature might be affected by the decision in the case, they were entitled under Article 62 of the Statute to submit a request for permission to intervene. The Court continued:
But the absence of such a request in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for. Where the Court is so entitled to act, the interests of the third

26

Ibid. 554, 557, 559 (paras. 46, 4950). At the end of this part the Court made the formal statement that In . . . accordance with Article 59 of the Statute, this Judgment will not be opposable to Niger as regards the course of that countrys frontiers. Cf. also the Northern Cameroons case: In accordance with Article 59 of the Statute, the judgment would not be binding on Nigeria [which had not participated in the proceedings], or on any other State, or on any organ of the United Nations [emphasis added], ibid. 1963, 25, 33. The precise import of the last few emphasized words is not clear. There is no reason why the existence of a tripoint on a frontier land or maritime which the Court is being asked to determine should interfere with the action of the Court in dealing with an otherwise purely bilateral case. Cf. in the Land, Island and Maritime Frontier Dispute case, concerning the rst sector of the land boundary. ICJ Rep. 1992, 351, 401 (para. 68).

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State which is not a party to the case are protected by Article 59 of the Statute of the Court. . . .27

Judge Shahabuddeen in his separate opinion concurred in the Courts holding that Article 59 afforded adequate protection to the absent States (p. 298). Judge Schwebel, in his dissenting opinion, was critical of reliance made by the Court on precedents invoking Article 59, and thought that in the present case the protection afforded the absent States by Article 59 in the quite exceptional situation of this case would be notional rather than real (p. 342). In another respect, the present Court has pointed to a certain weakness in the protection afforded to third States by Article 59. This issue made an appearance in the Aegean Sea Continental Shelf case. Here a question arose (not for the rst time) as a matter of the jurisdiction of the Court, whether the General Act for the Pacic Settlement of Disputes of 1928 as revised by the United Nations General Assembly in its resolution 268 A (III) of 29 April 1949, was in force and constituted a good title of jurisdiction. This question had been raised in the Nuclear Tests and Pakistani Prisoners of War cases,28 but in those cases the Court had been able to base itself on other instruments so that it became unnecessary for it to discuss this particular issue. In Aegean Sea it could not do this, and had to face the question head on. After describing something of the formal history of the General Act, the Court said:
39. Although under Article 59 of the Statute the decision of the Court has no binding force except between the parties and in respect of that particular case, it is evident that any [emphasis added] pronouncement of the Court as to the status of the 1928 Act, whether it were to be found to be a convention in force or to be no longer in force, may have implications in the relations between States other than Greece and Turkey.

As Judge Nagendra Singh was to emphasize in his individual opinion in Aegean Sea, despite Article 59 the Courts observations could easily create

27

28

ICJ Rep. 1992, 240, 261 (para. 54). However, the Court left the substantive aspect to the merits (para. 56). In the agreement of 10 August 1993 for the discontinuance of the case, Nauru waived any right to make a claim against those other two States in relation to the subject-matter of the case. 32 ILM 1471, 1474 (1993). For the discontinuance of the case, see ICJ Rep. 1993, 322. ICJ Rep. 1973, 99/135; and 1974, 253/457: 1975, 328 (provisional measures of protection: the case was discontinued before it reached the next phase).

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implications in the relations between States including even those not before the Court. A tribunal has to be ever mindful of that aspect.29 This has been applied without direct citat ion of Article 59 in the unusual circumstances of the jurisdictional issue in the eight Legality of Use of Force cases, brought by Yugoslavia against eight members of NATO. The question of Yugoslavias status in the United Nations and consequently its status in relation to the Court was the central issue in the Application for Revision of the Judgment of 11 July 1996 in the Case concerning the Application of the Genocide Convention case, decided in 2003. In paragraphs 80 to 91 of its judgment of 15 December 2004 in the Legality of Use of Force case against Belgium the Court examined the relevance of the 2003 judgment for the later case. There is no question of that Judgment possessing any force of res judicata in relation to the present case. The Court distinguished this from the question of the relevance of the 2003 judgment for the second case. It described in some detail the principal issue that was decided in 2003, in proceedings under Article 61 of the Charter, and found that the issue then was not relevant to the issue that arose in 2004. * * * Above all, it is in relation to the applications for permission to intervene under Article 62 of the Statute, that a new side to Article 59 has been revealed. In that connection it is recalled that Article 59 was inserted into the Statute essentially in order to complete the statement of the law regarding thirdparty intervention in current judicial proceedings as contained in the Statute and to maintain the general principle of the relativity of any res judicata. The rst hesitant illustration of this is seen in the application of Malta to intervene in the Tunisia/Libya Continental Shelf case. Malta argued that notwithstanding Article 59, its interests might be affected not only by the formal operative part of the Courts decision but also by what it called the effective decision contained in the Courts reasoning. The argument was that the reasoning was bound to contain substantive elements that in content must inevitably have, or at any rate were likely to have, an impact upon subsequent relations between Malta and Libya and Tunisia. For its part, Libya contended that any interest of Malta would be safeguarded by the Court in delivering its judgment, and would be adequately protected by Article 59. In the circumstances of this case, the Court found that Malta was seeking to enter into the proceedings in the case, but to do so without assuming the obligations of a party to the case within the meaning of the Statute,

29

ICJ Rep. 3, 16. For Nagendra Singhs remarks, see p. 47. For the original General Act of 1928, see 43 LNTS 343. For the Revised General Act of 1949, see 71 UNTS 101.

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and in particular of Article 59 under which the decision would be binding upon Malta in its relations with Libya and with Tunisia. Elsewhere the Court pointed out that having regard to the terms of Article 59, the Courts decision would certainly be binding upon Tunisia and Libya with respect to the matters covered by the special agreement by which the proceedings had been instituted. The issue was, however, sharpened by Judge Oda in his individual opinion, in which he pointed out echoing but not citing the Courts earlier pronouncement in the Aegean Sea Continental Shelf case that the provisions of Article 59 did not in fact [emphasis added] guarantee a State which had not [emphasis in original] intervened in the principal case any immunity from the subsequent application of the Courts interpretation of the principles and rules of international law.30 The issue arose again in a different form in the merits phase of the case, and again the Court adopted a mid-way position. Interpreting the special agreement in connection with the scope of its jurisdiction on the merits, the Court explained that it was not asked to render an advisory opinion, but to render a judgment in a contentious case in accordance with Articles 59 and 60 of the Statute and Article 94, paragraph 2, of the Rules of Court (of 1978), a judgment which will have therefore the effect and the force attributed to it under Article 94 of the Charter of the United Nations and the said provisions of the Statute and the Rules of Court. This was highlighted in the separate opinion of Judge Jimnez de Archaga. The special agreement in this case envisaged that the nal delimitation would be effected by the experts of the parties as a diplomatic exercise. These would negotiate the nal delimitation within a vague and very general framework of pronouncements from the Court which were described as guidance. Judge Jimnez de Archaga found himself confronted with a situation in which there were two possible interpretations of the special agreement, one of them making the judgment dependent on a subsequent agreement of the parties. Citing in this connection pronouncements by the Permanent Court in the Free Zones case, he stated:
8. In the light of those pronouncements it must be concluded that, in making the choice between the two conicting interpretations of the Special Agreement, the one to be preferred is that which is compatible with the character of judgments rendered by the Court and with the binding force attached to them by Articles 59 and 63, paragraph 2, of the Statute.

30

ICJ Rep. 1981. 3, 18 (para. 32), 19 (para. 33). For Judge Odas separate opinion on this point, see p. 30 (para. 16).

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It would certainly be incompatible with the Statute and with the Courts position as a Court of Justice to accept an interpretation of the Special Agreement leading to a judgment which would not advance the settlement of the dispute and which would be dependent for its application on the subsequent agreement of the Parties.31

The question was to arise again a few years later, when Italy submitted a request to intervene in the Libya/Malta Continental Shelf case. Not unexpectedly, the arguments were similar to those advanced in the earlier case, and this gave the Court an opportunity to express itself more fully in a passage which requires ample quotation, despite its length:
42. In the rst place, the rights claimed by Italy would be safeguarded by Article 59 . . . Much argument has been addressed . . . to the question of the relationship between Article 62 of the Statute and Article 59. It is clear from the latter provision that the principles and rules of international law found by the Court to be applicable to the delimitation between Libya and Malta, and the indications given by the Court as to their application in practice, cannot be relied upon by the Parties against [emphasis added] any other State.

The Court here quoted from the Interpretation of Judgments Nos. 7 and 8 (The Chorzw Factory) case cited above, and continued: It has been contended by counsel for Italy that
if Article 59 always provides adequate protection for third States, and if the protection which it affords is such as to prevent the interest of the third State from being genuinely affected in a pending case, then . . . Article 62 no longer has any point whatsoever, nor any sphere of application. The Court however considers that the conclusion does not follow: a State which considers that its legal interest may be affected by a decision in a case has the choice as is implied by the fact that Article 62 provides that a State may submit a request to intervene whether to intervene thus securing a procedural economy of means (as noted by Italian counsel); or to refrain from intervening, and to rely on Article 59.

31

ICJ Rep. 1982, 18 at 40. For the separate opinion of Jimnez de Archaga, sitting as judge ad hoc, see p. 101. In practical terms, the Judge thought that the operative provisions of the judgment in this case ought to have been framed not on the basis of degrees of latitude and longitude (as it was), but in terms of concepts such as the line perpendicular to the coast at Ras Ajdir, going as far as the parallel of the westernmost point in the Gulf of Gabes, and from that point successive veerings parallel to the successive inclinations of the coast of the Tunisian mainland, all of these geographical facts to be determined by the experts. A judgment couched in those terms might have rendered unnecessary the subsequent proceedings in interpretation and revision in this case, ibid. 1985, 192.

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43. Furthermore, there can be no doubt that the Court will, in its future judgment in the case, take account, as a fact, of the existence of other States having claims in the region. . . . The future judgment will not merely be limited in its effect by Article 59 of the Statute: it will be expressed, upon its face, to be without prejudice to the rights and titles of third States.32

In his separate opinion in this case Jimnez de Archaga, again sitting as judge ad hoc, also referred to Article 59. Touching upon the vexed question of whether a jurisdictional link has to exist between a State wishing to assert an interest of a legal nature which might be affected by the decision in the case and therefore requesting to intervene under Article 62 of the Statute, a request which had been denied Italy in the previous phase of this case, he pointed out the difculties in the merits phase of this case following upon the assurances given by the Court with regard to Italys position. He said:
37. The remedy to that situation is different from granting intervention without a jurisdictional link: it is to be found in the lack of competence of the Court to dispose of the rights of a State which is not before it, and in the relative effects of the Courts judgment as provided in Article 59 of the Statute.33

The theme of the judgment was picked up and expanded in the judgment on the merits, where the Court said:
21. The Court notes that by the Special Agreement it is asked to dene the legal principles and rules applicable to the delimitation of the area of continental shelf which pertains to each of the Parties. The decision of the Court will, by virtue of Article 59 of the Statute, have binding force between the Parties, but not against third States. . . . It is true that the Parties have in effect invited the Court, notwithstanding the terms of their Special Agreement, not to limit its judgment to the area in which theirs are the sole competing claims; but the Court does not regard itself as free to do so, in view of the interests of Italy in the proceedings. . . . A decision limited in this way does not signify either that the principles and rules applicable to the delimitation within this area are not applicable outside it, or that the claims of either Party to expanses of continental shelf outside that area have been found to be unjustied: it signies simply that the Court has not been endowed with jurisdiction to determine what principles and rules govern delimitations with third States, or whether the claims of the Parties outside that area prevail over the claims of those third States in the region.34

32

33 34

ICJ Rep. 1974, 3, 26 (para. 42). The position of the Court was criticized in the dissenting opinions of Judge Schwebel (p. 131) and more severely of Sir Robert Jennings (p. 148), on the ground that the Courts interpretation of Article 59 could deprive Article 62 of all meaning. See further, at p. 147 below. Ibid. 68. ICJ Rep. 1985, 13, 25. Dissenting opinions were appended by Judges Mosler, Oda and Schwebel, pp. 116, 131 and 172, partly it seems on the ground that in effect the judgment on the merits proceeds as if the intervention had been admitted.

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The last case of intervention in the International Court in which Article 59 was relevant was the Land, Island and Maritime Frontier Dispute case, heard by a Chamber under Article 26, paragraph 2, of the Statute. The Chamber had accepted a request by Nicaragua to intervene in respect of that part of the case which related to the Gulf of Fonseca, but not as a party. In its judgment on that application for permission to intervene the Chamber had explained that Nicaragua would not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or under the general principles of procedural law.35 Recalling this in the judgment on the merits, the Chamber described the effect of this non-party intervention in the following terms:
423. The Chamber considers that it is correct that a State permitted to intervene under Article 62 of the Statute, but which does not acquire the status of party to the case, is not bound by the Judgment given in the proceedings in which it has intervened.

After referring to the Chambers judgment admitting Nicaragua as a nonparty, it went on to explain that in those circumstances, the right to be heard, which the intervener did acquire, did not carry with it the obligation of being bound by the decision. The Chamber reached the conclusion that in the circumstances of the case, the judgment is not res judicata for Nicaragua. It said:
The terms on which intervention was granted . . . were that Nicaragua would not, as intervening State, become party to the proceedings. The binding force of the present Judgment for the Parties, as contemplated by Article 59 of the Statute of the Court, does not therefore extend to Nicaragua as intervener.36

This notwithstanding, in the relevant operative clause of the judgment, paragraph 432, several references were made to the rights and duties of the intervening State, Nicaragua. In the introductory phrase of the operative clause, however, the Chamber seems deliberately to have excluded the considerations advanced in paragraphs 421424 from those on the basis of which it

35

36

ICJ Rep. 1990, 92, 135 (para. 102). It is not clear why the Chamber had to add the words which have been emphasized above. In preliminary proceedings before the full Court to determine whether the Court or the Chamber should decide on Nicaraguas request for permission to intervene, Judge Shahabuddeen in a dissenting opinion had drawn attention to Art. 59. He pointed out that it was true that under Art. 59 the decision of the Chamber would not be binding on a non-party, but he did not go so far as to suggest that the non-party would be under no obligations at all arising out of the judgment on the merits, ibid. 59. ICJ Rep. 1992, 351, 609 (paras. 421424).

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reached its decision: For the reasons set out in the present Judgment, in particular paragraphs 269 to 420 thereof.37 The Court made an important pronouncement on the effect of Article 59 on its power to indicate provisional measures of protection in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Further Requests for the Indication of Provisional Measures) case. Here the applicant requested provisional measures which in the view of the Court would be addressed to States or entities not parties to the litigation. In that connection, the applicant explained that it was not asking for an order binding upon any State other than the parties, but for a clarication of the applicants rights which can be used in the Security Council and the General Assembly and elsewhere. Rejecting this request, the Court said:
[T]he judgment in a particular case by which disputed rights may be adjudged by the Court to belong to the Applicant or to the Respondent has, in accordance with Article 59 of the Statute of the Court, no binding force except between the parties[.]

Accordingly, the Court might, for the preservation of those rights, indicate provisional measures to be taken by the parties, but not by third States or other entities who would not be bound by the eventual judgment to recognize and respect those rights. In consequence:
the Court cannot, in the exercise of its power to indicate provisional measures, indicate by way of clarication that those States or entities should take, or refrain from taking, specic action in relation to the acts of genocide which the Applicant alleges are being committed in Bosnia-Herzegovina[.]38

* * *
37

38

Ibid. 616 (para. 432). This elicited a scathing dissent by Judge Oda, who thought that Nicaragua would certainly be bound by the judgment insofar as it related to the legal situation of the maritime spaces in the Gulf of Fonseca (p. 619). In this he was joined by Judge ad hoc Torres Bernrdez at 730 (para. 208). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Further requests for the indication of provisional measures), ICJ Rep. 1993, 325, 344 (para. 40). Impliedly criticized by Judge ad hoc E. Lauterpacht, who thought that the arms embargo established by Security Council resolution 713 (1991) of 25 September 1991 created an imbalance in the supply of weaponry to Bosnia-Herzegovina, and that the situation was one calling for further consideration by the Security Council. However, in this context, the provision of Art. 59 are not overcome by using the expression Security Council, since by Art. 23 that term means the States members of the Security Council at any given time, and Art. 59 has the effect stated by the Court. For this view, see his separate opinion in that case, paras. 84 to 107 and 126.

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It is to be stressed that in principle, Article 59 is only relevant in contentious cases, subject to Article 68 of the Statute.39 No such restriction on the force of a judicial pronouncement in the form of an advisory opinion exists, and the value of an advisory opinion as a precedent is no less than that of any other judicial pronouncement. The real scope of an advisory opinion depends upon the terms of the question, and in many if not in most instances the limitation will be self-evident. Nevertheless, this is not always so. For example, if on the one hand the interpretations of provisions such as Article 4 or Article 17 of the Charter of the United Nations contained in advisory opinions specically directed to the interpretation of those provisions, are by their terms limited to the circumstances which gave rise to the requests and to the terms of the questions put to the Court, the same cannot be said of advisory opinions such as those on Reparation for Injuries Suffered in the Service of the United Nations40 or on the Status of South West Africa.41 This is demonstrated indeed by the judgment on the preliminary objections in the South West Africa cases, where the Court had no hesitation in dismissing similar contentions which had been raised in the advisory opinion of 1950, from which it cited copiously.42 Alternatively, to take a recent example, the interpretation of Article VI, section 22, of the Convention on the Privileges and Immunities of the United Nations contained in the advisory opinion of 15 December 1989, in so far as concerns the meaning of the expression Experts . . . performing missions for the United Nations, is of completely general application.43 * * * Nevertheless, there are cases in which the Court has pronounced itself on the case before it without overt consideration of the possible impact of its pronouncement on the relations of other States either with the parties or as between themselves, or on other cases. One example of this is found in the judgment on the preliminary objections in the Aerial Incident of 27 July 1955 (Israel v Bulgaria) case, delivered when two other cases arising out of the same incident were pending before the Court. The same jurisdictional issue arose in all three cases, namely whether a declaration made by Bulgaria in 1920 accepting the compulsory jurisdiction of the Permanent Court was in

39

40 41 42 43

By that provision, in the exercise of its advisory functions the Court shall be further guided by the provisions of the Statute which apply in contentious cases to the extent to which it recognizes them to be applicable. Amplied in Art. 102 of the Rules of Court. ICJ Rep. 1949, 174. ICJ Rep. 1950, 128. ICJ Rep. 1962, 319, 333. ICJ Rep. 1989, 177, 195 (para. 52).

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force in 1955 by virtue of Article 36, paragraph 5, of the Statute of the present Court. After the Court had decided in the Israel case that this declaration was not covered by that provision of the new Statute, the United States at rst persisted in its case, and in reply to a preliminary objection based on the Courts reasoning in the Israel case, contended that by virtue of Article 59 the judgment in the Israel case was not conclusive as between the parties in the United States case. The Court could and should review its decision on the ground that Article 36, paragraph 5, was a constitutional text not subject to legislative revision for the purpose of altering the effect of a judicial decision construing the text.44 However, the United States later discontinued its case on other grounds, and the Court did not have to address this new contention. This can be compared to the attitude which the Court adopted in 1988, regarding the validity of Nicaraguas declaration of 1929, mentioned above. More signicant, because potentially of much wider implication, is the decision of the Chamber which decided the ELSI case between the United States and Italy.45 That case concerned the interpretation and the application of several provisions in standard form in the Treaty of Friendship, Commerce and Navigation (FCN) between the two countries, and its provisions have been repeated in a large number of later treaties initiated by the United States.46 In this case Italy, as respondent, led a series of preliminary objections to the jurisdiction and to the admissibility, and the parties were agreed that these objections should be heard within the framework of the merits in accordance with Article 79, paragraph 8, of the Rules of Court. The Chamber proceeded to dismiss the objection based on the non-exhaustion of local remedies, after which it entered into detailed examination and interpretation of the relevant provisions of the FCN Treaty. It is difcult to assume that those interpretations will be without effect on the interpretation and application of the similar clauses in other FCN treaties, much in the same way that it is difcult to assume that the interpretation of the Pact of Bogot in Border and Transborder Armed Actions (Nicaragua v. Honduras (supra) will not sooner or later have a direct impact on the mutual relations of the States parties to that instrument. * * *
Aerial Incident of 27 July 1955 case, Pleadings 310. Elettronica Sicula S.p.A. (ELSI) case, ICJ Rep. 1989, 15. Similar FCN treaties of the United States had been considered by the Court in the Diplomatic and Consular Staff in Tehran and in the Military and Paramilitary activities in and against Nicaragua cases. Since then the question has also arisen in the Aerial Incident of 3 July 1988 and the Oil Platforms cases, but so far (except for the compromissory clause itself ) different provisions of the treaties were relevant in each of the ve cases.

44 45 46

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Article 59 has been found of relevance in one international arbitration, the Lighthouses arbitration between France and Greece.47 This arbitration had been preceded by two related cases in the Permanent Court, the Lighthouses case and the Lighthouses in Crete and Samos case between the same parties.48 Claims Nos. 11 and 4 in that arbitration related directly to matters which had been raised before the Permanent Court, and the question arose what exactly had been the subject-matter of those two cases. After discussing that, the award continues:
The present case is governed by Article 59 of the Statute of the former Permanent Court of International Justice. . . . Now, although in the present arbitration the parties are the same as in the judicial proceedings of 1937 . . . the lis which was decided in 1937 is quite distinct from those which are the objects of the present claims Nos. 11 and 4. . . . There is . . . in neither matter identity of lis (or concrete disputes) to be resolved; there is only identity of parties. If there can be no question of res judicata in the strict sense of the term, . . . [one] could . . . maintain . . . that the text of Article 59 . . . is badly drafted and that one must necessarily interpret it in a more liberal sense than its terms appear to justify. There is much to be said in favour of this thesis, the more so since the provision in question was not taken from the draft of the Committee of Jurists which drew up the Statute of 1920, but was distorted by an unfortunate amendment by a political body. If it were true that a Judgment of the Court is clothed with the authority of res judicata only in the case which has been decided, that would mean that, if the lis concerns the interpretation of a clause of a treaty, the interpretation given could be used again in arguments in any future lis concerning the same clause of a treaty.49 Such a result would not only be absurd; it would put Article 59 in irreconcilable contradiction with the last sentence of Article 63 of the . . . Statute, which provides that when a third State intervenes in a case in which there is in question the construction of a multilateral convention to which it and the States concerned in the case are parties, the construction given by the Judgment will be equally binding on that State. The res judicata extends, in consequence, beyond the strict limits of the case decided.50

47

48

49

50

XI RIAA 155, 194; 23 ILR 81 (1956). The Tribunal, a panel of the Permanent Court of Arbitration, was composed of J.H.W. Verzijl (President), A. Mestre and G. Charbouris. See also A.M. Stuyt, Survey of International Arbitrations 17941989 412 (3rd ed., 1990). PCIJ, Ser. A/B 62 (1934), and No. 71 (1936). For Verzijls comments on these two cases, see his The Jurisprudence of the World Court, I, 370, 483 (1965). The articles were originally published in 1934 and 1937. See further text to note 8 above. The original French text of this passage reads: Sil tait vrai quun arrt de la Cour nest revtu de lautorit de la chose juge que dans le seul cas qui a t dcid, cela signierait que, si le cas concerne linterprtation dune clause de trait, linterprtation donne pourrait tre remise en discussion en des cas futurs ayant trait la mme clause de trait. RIAA cited in note 45 above at 194. Ibid. 194/86. This is virtually a repetition of Verzijls criticism of Art. 59 rst expressed in 1926. See text to note 8 above.

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Article 59 has also found its place in the case-law of the internal courts of a State party to a judgment of the International Court. This issue arose out of an attempt by a group of United States citizens living in Nicaragua to force the United States Government to implement the judgment on the merits in the Military and Paramilitary Activities in and against Nicaragua case. The United States Court of Appeals for the District of Colombia Circuit dismissed the suit on a number of grounds. Among those grounds was the Courts interpretation of Article 94 of the Charter as contemplating only States that are parties to the decision of the International Court. On this the Court said:
Our interpretation of Article 94 is buttressed by a related provision in the Statute of the ICJ, which is incorporated by reference in the U.N. Charter. See U.N. Charter Art. 92. The Statute provides that A[t]he decision of the Court has no binding force except between the parties and in respect of th[e] [that] particular case. . . . Taken together, these Charter clauses make clear that the purpose of establishing the ICJ was to resolve disputes between national governments [emphasis in original]. We nd in these clauses no intent to vest citizens who reside in a U.N. member nation with authority to enforce an ICJ decision against their own government.51

* * * In his dissenting opinion in the Continental Shelf (Application of Italy to Intervene) case, Judge (later President) Sir Robert Jennings raised serious criticism, not so much of Article 59 itself as of the Courts use of it in dismissing Italys request for permission to intervene. This section of the opinion is too long to reproduce here. Its gist is that for many reasons the protection of third-party interests assumed to be supplied by Article 59 is largely illusory. This was partly based on what Sir Robert called the force of persuasive precedent in decisions of the Court. Furthermore, insofar as the operative clause of the judgment would be addressed to the parties only, to that extent the third-party interests would enjoy some protection due to Article 59. Sir Robert continued:
28. Nevertheless it would be unrealistic even in consideration of strict legal principle, to suppose that the effects of a judgment are thus wholly conned by Article 59. Every State a member of the Court [sic: in French translation les Etats parties au Statut de la Cour] is under a general obligation to respect the judgments of the Court.

He pointed out that under the special agreement the Court was asked to determine the principles and rules of international law applicable to the

51

Committee of United States Citizens living in Nicaragua v. Reagan, 859 F.2d 929, 938 (D.C. Cir. 1988); 85 ILR 248.

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delimitation in question as well as the application of those rules and principles in practice, and he asked whether general opinion would be so very wrong if it assumes, as general opinion surely will, that the Courts judgment will have decided precisely that. Sir Robert went on to discuss the agreement between the parties based on the judgment:
If the result is an agreement which trespasses on Italian continental shelf, yet is apparently backed by the powerful sanction of the Courts Judgment, does the Court really believe that Italy will nd an adequate remedy in the words of Article 59? . . . [T]he mention of Article 59 as adequate protection of Italy would seem almost to have a touch of irony.

Later Sir Robert concluded this part of his dissenting opinion with these words:
34. Quite apart from the dangers, inadequacies and infelicities which would result from using Article 59 as a vehicle for importing an inappropriate bilateralism or relativism into the judgments of the Court concerning sovereign rights, the complete answer to the argument that Italy is sufciently protected by Article 59 is simply that Article 62 is just as much a part of the Courts Statute as is Article 59; and it provides a sensible solution entirely in accord with principle, of precisely the problem the Court nds itself faced with. . . . Article 59 applies, after all, in all cases without exception that come before the Court for judgment. If Article 59 ensures that a third States rights can never be affected by a judgment, this must mean that a third States rights can never be affected in the sense of Article 62. To interpret one article of the Statute in such a way as to deprive another article in the same section of the Statute of all meaning, cannot be right.52

A somewhat similar point of view was adduced in a more summary form in the dissenting opinion of Judge Schwebel: Article 59 cannot, by any canon of interpretation, be so read as to read Article 62 out of the Statute. Initially Judge Schwebel was critical towards the Courts handling of applications for permission to intervene under Article 62 of the Statute. In the Continental Shelf (Libya/Malta) (Application of Italy to Intervene) case, he amplied his criticism by referring specically to Article 59. He criticized the Courts decision in that case on the ground that by relying on Article 59, the Court had reduced Article 62 to an improbable procedural convenience . . . virtually tantamount to reading Article 62 out of the Statute.53 This criticism was advanced with emphasis in his dissenting opinion in the Certain Phosphate Lands in Nauru (Preliminary Objections) case. Judge Schwebels principal

52 53

ICJ Rep. 1984, 3, 157. Ibid. 134.

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argument is that there is an illusory element not so much in Article 59 itself, as in some inconsistency in its application by the Court in concrete cases. His contention was that it was clear, and should have been clear in 1984 (in the jurisdictional phase of the Military and Paramilitary Activities in and against Nicaragua case), that on the factual premises put forward by the United States Article 59 could provide no meaningful protection to third States which were the objects of alleged Nicaraguan support of armed insurrection within their borders. He went on to indicate that in the circumstances of the Nauru case, the protection afforded the absent States by Article 59 in the quite exceptional situation of this case would be notional rather than real.54 In the circumstances of the these cases there would seem to be force in this criticism (although in the Nauru case only a decision on the merits could support a nal evaluation of this inadequacy, and that case has since been discontinued). This criticism, however, would appear to be directed not so much at Article 59 itself, as at its application in particular cases. As Judge Schwebel himself recognized, the issue of the weight to be accorded to the situation of absent States may be a nely balanced one.55 * * * The experience of the present Court there was no experience in the Permanent Court or in the present Court before Verzijls award in 1956 would seem to suggest that the real problem set by Article 59 is not whether it is consistent with Article 63, as had been thought in connection with Article 59 of the Statute of the Permanent Court of International Justice, but its relations with Article 62 of the Statute. That experience, culminating in the judgment of the Chamber in the Land, Island and Maritime Frontier Dispute case, suggests that Article 59 as interpreted and applied by the Court or by the Chamber may have converted Article 62 into a procedural mechanism by which proceedings under that Article, at all events so long as the would-be intervening State does not become a party to the mainline proceedings, have as their main purpose to focus the Courts attention not so much on the interveners interests of a legal nature which might be affected by the decision in the case as on the facts upon which that legal interest is based. Article 59 may be adequate to protect third-party interests in the abstract. However, litigation is not concerned with protecting the abstract, and for third-party interests to be adequately protected whether those interests are sovereign rights as in the continental shelf cases or something else the principle of Article 59 has to be reinforced by adequate presentation to

54 55

ICJ Rep. 1992, 333, 342. Ibid. 343.

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the Court of the relevant facts. In this context, it is to be noted that there is no real experience yet of the relationship of Article 59 and 62 of the Statute in the circumstance of an application for permission to intervene being granted to a third State in the status of intervening party. To some extent this is borne out by the decision of the Third United Nations Conference on the Law of the Sea regarding what became Annex VI, article 31, of the United Nations Convention on the Law of the Sea of 1982.56 That Annex is the Statute of the new International Tribunal for the Law of the Sea, and in general it was closely modelled on the Statute of the International Court. Article 296, paragraph 2, of the Convention itself follows Article 59 of the Statute of the Court with only a drafting adaptation,57 an indication that States continue to nd the provision necessary. On the other hand, Annex VI, article 31, contains a signicant addition to the corresponding provision in the Courts Statute. Paragraph 3 provides:
If a request to intervene is granted, the decision of the Tribunal in respect of the dispute shall be binding upon the intervening State in so far as relates to matters in respect of which that State Party [i.e. to the Convention, following article 1, paragraph 2(1)] intervened.

The inclusion of these two provisions in the 1982 Convention can be taken to show that on the one hand, States continue not to accept the view that a provision along the lines of Article 59 of the Statute of the Court is either ill-advised or stands in contradiction to Article 63, at all events in normal cases, and that if the Statute of the Court contains any defect in this respect, that is to be found in Article 62, not in Article 59 or Article 63. At the same time, it has to be mentioned that there is no published legislative history to throw light on the intention behind this combination of provisions in the 1982 Convention. Consequently, it is impossible to speculate on their possible impact on future international litigation, whether in the International Tribunal for the Law of the Sea or elsewhere. * * * It is now possible to draw a number of conclusions from the preceding review. A very signicant development in the practice of the Court, and in fact of litigants and, it could be added, of State practice in general, is that the presence of Article 59 in the Statute has not prevented extensive use now

56

57

See Third United Nations Conference on the Law of the Sea, 1183 UNTS 3; University of Virginia, Center for Oceans Law and Policy, I The United Nations Convention on the Law of the Sea 1982: A Commentary. Vol. V 331, 392 (Sh. Rosenne and L.B. Sohn, eds., 1989). Ibid. 82.

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normally being made of judicial precedents, especially those created by the International Court of Justice. This process has been achieved without the development of any theory of the binding force of judicial precedents, a theory which would probably be unacceptable to States as a matter of State practice in the present condition of international law, and which is not necessary for the conduct of international relations. No violence to the letter or spirit of Article 59 is seen in this. At the same time, the States have found it necessary, and have been able to create procedures for dealing with any unwelcome legal situation derived from any statement of law by the International Court, without this implying any criticism of what the Court might have decided in a particular case. This process has been facilitated since the establishment of the United Nations by the marked expansion and systematization of the work of codication and progressive development of the law pursued by virtue of Article 13 of the Charter, especially but not exclusively through the International Law Commission. This has supplied important machinery for changing the law as expounded by the Court, conceptually the parallel of parliamentary intervention to minimize any possible undesirable or unacceptable consequences in internal law of a judicial interpretation of the existing legal position. An outstanding illustration of this is found in the overruling of the nding of the Permanent Court in the Lotus case through article 35 of the draft articles on the law of the sea prepared in 1956 by the International Law Commission. That now appears as article 11 of the Convention on the High Seas of 1958 and since repeated as article 97 of the United Nations Convention on the Law of the Sea of 1982.58 Other illustrations of this process could be furnished. Most States have found it necessary to maintain appropriate machinery for applying correctives to the law-declaring work of their courts. In the sphere of law-making and law-declaring, the international community has found itself in a similar position with regard to its principal judicial organ, the International Court of Justice. As seen, the Statutes of the two Courts, read in the light of the drafting history of 1920, can be interpreted as indicating that the doctrine of stare decisis is not accepted as an element of international law itself. But this is insufcient having regard to the proliferation of international judicial decisions and the natural tendency for later deci-

58

For the Lotus case, see PCIJ, Ser. A No. 10 (1927). The change in the law was rst made in the International Convention for the Unication of Certain Rules relating to Penal Jurisdiction in Matters of Collision or other Incidents of Navigation of 10 May 1952. 439 UNTS 233. For the draft articles of 1956, see International Law Commission, Yearbook, 1956II, 254, 281. For the Convention on the High Seas, see 450 UNTS 11. For the 1982 Convention see note 54 above. That provision dealt with penal jurisdiction in matters of collision and any other incident of navigation at sea.

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157

sions to follow or distinguish earlier cases without overcharging the difcult question of the sources of the law with controversial theories of judicial precedents and their binding force. In this way it may be said that the preoccupation of the British Government in 1920 has been met. Another signicant development produced through the interpretation and application of Article 59 is seen in the disposal of the requests for permission to intervene in the Libyan Continental Shelf cases. The Court seems to have taken the position that, having regard to Article 59, intervention under Article 62 of the Statute, where a State considers that its legal interests might be affected by the decision in a case, is frequently unnecessary, since ex hypothesi the Court has no jurisdiction in a case between two States where the legal position of a third State is the main issue of the case, and that third State has not given its consent to the exercise of jurisdiction by the Court. That, it is submitted, is the real implication of the Monetary Gold Removed from Rome case taken together with the instances that have been mentioned of requests for permission to intervene. Indeed, it is this which leads to the view that if there is any inconsistency between Article 59 and any other provision of the Statute, it is with Article 62, itself a new provision invented by the Advisory Committee of Jurists in 1920 without, so far as is known, guidance from authoritative precedents from nineteenth century arbitrations, and amended in 1945. Yet it is precisely in that respect that the inadequacies of Article 59 have been demonstrated. Full protection for third States can only be assured if the Court is in full possession of the relevant facts as that third State sees them and as the principal parties can contest them in adversarial proceedings. The procedure of requesting permission to intervene, which assumes an adversarial character almost from its initiation, is one of the methods by which the Court is supplied with these facts, and can assess their impact on the bilateral case originally brought before it. Article 59 is manifestly insufcient for this purpose. At the same time, contrary to what was envisaged during the drafting of the Statute of the Permanent Court, the Court has emphasized an essential and perhaps unsuspected weakness of Article 59, when it pointed out that any pronouncement of the Court on the status of a multilateral convention could have implications in the relations between States other than the parties in the case. This inadequacy is not addressed in Article 63 of the Statute, and clearly Article 59 would not have any relevance. There can be little doubt that the Court acted correctly in the Aegean Sea Continental Shelf case. In this respect that case is distinguished from both the Aerial Incident of 27 July 1955 and the Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) cases, where any decision of the Court would have an implication for every other State which, at a given moment, had in force a declaration made under Article 36, paragraph 2 or 5, of the Statute). But State practice may not be fully concordant with that judicial caution. This is brought out by the provision of article 66 of the Vienna Convention

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on the Law of Treaties of 1969, according to which in certain circumstances the Court may have jurisdiction to decide a dispute concerning the interpretation or application of the jus cogens articles of the Convention in relation to any treaty, bilateral or multilateral, on the unilateral application of a State which is a party to both the Convention and the impugned treaty, against any other State in a similar situation.59 One can go further. The conceptual underpinning of the Statute is that normally there are only two parties to a given legal dispute, with the intellectual exception of a dispute in which the construction of a multilateral treaty is in issue. That approach carefully articulated in Article 59 was certainly appropriate in nineteenth century arbitration and indeed in all arbitration. But the unforeseen expansion in the employment of the multilateral treaty on the one hand, and the ever-increasing complexity and multilateralization of international relations in general, must give rise to doubts whether a dispute settlement mechanism based on the single assumption that disputes exist only between two parties is adequate or even appropriate for modern needs. An inkling of this appeared towards the end of the Third United Nations Conference on the Law of the Sea when, after careful examination, the Drafting Committee proposed a series of amendments to the Annexes dealing with conciliation and with arbitration, to accommodate disputes involving more than two parties having separate interests.60 The third signicant element disclosed by the relevant case-law concerns the endorsement given by the Court to the approach, rst employed in the North Sea Continental Shelf cases, of what is termed partial settlement of a dispute by the Court. The meaning of this is that the Court indicates in a judgment attracting the force of res judicata and Article 59 of the Statute, relevant principles and rules of law which the parties undertake to apply in subsequent negotiations. So far this procedure, which at rst glance may be misunderstood as a form of disguised advisory proceeding, has been employed only in various kinds of maritime delimitation cases. In that respect it may, to some extent, be considered to have received the endorsement of the Third United Nations Conference on the Law of the Sea, in provisions such as articles 74 and 83 of the 1982 Convention regarding overlapping claims to areas of sea such as exclusive economic zones or continental shelves. But there is no reason why this mechanism should not be appropriate wherever the basic rule of law is not clearly established or is enunciated in excessively general terms. The doctrine expounded in the passage from the Revision and Interpretation case cited above emphasizes one aspect of the clas-

59 60

1155 UNTS 331. United Nations Convention on the Law of the Sea, note 54 above, Annexes V, VII and VIII, art. 3, (g) and (h). And see the Commentary cited in that note, Vol. V, at 318, 428 and 448.

8. ARTICLE 59 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

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sic law of treaties, namely the relativity of a treaty, and applies that concept to a judgment which itself is the consequence of a treaty, the special agreement, which can legitimately be displaced by a later treaty (cf. article 30 of the Vienna Convention on the Law of Treaties). This is an important addition to the general techniques of the settlement of disputes through binding third-party decision, and is likely to open the way to a more satisfactory method of settling disputes through the International Court than the pure black and white approach traditionally associated with the judicial settlement of a dispute. In the complexities of international relations today, this is a welcome development.

9
THE FRAMEWORK AGREEMENT AS THE BASIS FOR THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE AND SOME PROBLEMS OF LANGUAGE

What is now frequently known as the framework agreement (accord cadre) as the basis for the jurisdiction and the seisin of the International Court of Justice in a contentious case is an innovation. It is derived from the special agreement (compromis), the traditional basis for the jurisdiction of arbitral tribunals and the typical foundation for the jurisdiction of the International Court under Article 36, paragraph 1, of its Statute. The characteristic feature of the special agreement is that it simultaneously denes the question to be decided by the Court together with the Courts jurisdiction. That jurisdiction, which is limited to deciding that dened question, is established and the Court is seised of the case through the parties joint notication of the special agreement to the Court.1 Unless the parties otherwise agree, the procedure of the simultaneous ling of the documents of the written procedure is followed in cases introduced by special agreement (although in Practice Direction I the Court is trying to discourage this). It means that the written pleadings are transmitted by the Registrar simultaneously to the opposing parties. That is the traditional practice of international arbitration. The Statute requires that a special agreement indicates the subject of the dispute and the parties. This requirement has come to be a source of difculty, especially on the diplomatic plane. Diplomatic experience, especially since 1945, has shown that it may be difcult after a dispute has arisen for the parties to negotiate a special agreement in the traditional sense.2 Those difculties have always related to the statutory requirement that the agreement indicates the subject of the

1 2

Statute of the International Court of Justice Article 40, Rules of Court (1978), Article 39. This was actually recognized at the beginning of the twentieth century when the First Hague Convention on the Pacic Settlement of Disputes of 1899 was revised in 1907. Article 53 of the 1907 Convention empowers the arbitral tribunal to settle the compromis if the parties have recourse to it for this purpose, and in certain circumstances it may so act at the request of one party. There is no such direct provision in the Statute of the International Court.

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dispute. In order to overcome those difculties, States have developed what is sometimes called a framework agreement as the basis for the jurisdiction and the seising of the Court in a contentious case. The essential features of the framework agreement are the following: (a) the parties are in agreement that a dispute exists between them; and (b) the dispute may be decided by the International Court as a contentious case. However, the parties are unable to dene the subject of the dispute and possibly also the method of seising the Court. Accordingly, a framework agreement allows either or both of the parties to bring the dispute before the Court, each in its own way, and even by unilateral application. The underlying assumption is that in the course of the proceedings each party will present to the Court its own denition of the dispute. In this way the Court can determine the legal position of each party and either settle the dispute or open the road to an agreed settlement within the concept of partial judicial settlement. If the framework agreement allows the proceedings to be instituted by unilateral application, the application will not be regarded by the respondent State as an unfriendly act. The framework agreement may regulate the question of whether the deposit of the written pleadings is to be simultaneous or sequential as is usual in cases introduced by unilateral application. If this is not done, the Court will establish the method of pleading either on its own initiative3 or after the usual procedural discussion held by the President with the parties. This process has its origins in Latin America. It was rst used in the Asylum case between Colombia and Peru in the early 1950s. It has since been developed in other situations, both by the Organization of American States and more recently by the African Union, in their dispute settlement activities for their member States. The framework agreement cannot always be distinguished from a special agreement in the normal sense of the word, in terms of litigation practice. However, there is a fundamental difference between the two types of agreements. When a case is introduced by the notication of a special agreement, the operative clause of the judgment will usually contain a precise answer to the question that the Court is requested to decide. When the proceedings are introduced on the basis of a framework agreement, the Court will give its answer in the form of a decision on the nal submissions

For an example, see the Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) case, ICJ. Rep. 1994 112 at 125 (para. 125), 1995 6 at 22 (para. 49) and 83 (order xing time limits without the participation of Bahrain). On the 1994 judgment see Sh. Rosenne, The Qatar/Bahrain case: What is a Treaty? A Framework Agreement and the Seising of the Court, 5 Leiden Journal of International Law 161 196 (1995); Essay 21 below.

9. THE FRAMEWORK AGREEMENT

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of the parties as it has understood them, and that may not always coincide with what the parties had in mind. In this respect, the framework agreement is essentially a form of agreement for referring a dispute to the Court in which, while the parties are indicated, the subject of the dispute is not. The acceptance of this form of agreement by the Court has enabled the requirements of diplomatic renements to nd accommodation within the traditional formats of international adjudication as set out in the Statute and the Rules of the International Court. Although this method of conferring jurisdiction on the Court has come to the fore in the present Court, it is possible that its origin is earlier, and that its use is wider than appears. The Permanent Court was once seised simultaneously by two States, Denmark and Norway, each one having previously accepted jurisdiction under Article 36, paragraph 2, of the Statute of that Court, of cases which each party formulated in its own way. Commenting on this in its rst procedural order in the matter, the Permanent Court indicated that the two applications were directed to the same object, and that the situation with which the Court had to deal closely approximated, as far as concerns the procedure, to that which would have arisen if the parties had submitted a special agreement indicating the subject of the dispute and their differing claims. In those circumstances the Court joined the two cases and held each government to be simultaneously in the position of applicant and respondent.4 It would be fair to assume that this procedure was the outcome of an agreement reached on the diplomatic plane. The Diversion of Waters from the Meuse case between Belgium and the Netherlands may have had a similar diplomatic background, although there is no indication of this in the proceedings.5 Here the claims of the applicant party were met by a series of counter-claims by the respondent, the Court exercising its jurisdiction also by virtue of declarations made under Article 36, paragraph 2, of its Statute. In the present Court, it is a matter of public knowledge that the Fisheries dispute between the United Kingdom and Norway was introduced unilaterally on the basis of the mutual acceptances of the compulsory jurisdiction following agreement on the diplomatic level.6 The same can be said about the Elettronica Sicula s.p.a. (ELSI) dispute between the United States of America and Italy, where the initial diplomatic agreement extended to the hearing of the case by a specially constituted Chamber of the Court under

4 5 6

South-Eastern Greenland case, PCIJ Ser. A/B48 (1932) 270. And cf. the statement of the representative of Norway on 28 July 1932, PCIJ Ser C 69 at p. 69. PCIJ Ser A/B 70 (1937) 4. Cf. M. Bourquin, La porte gnrale de larrt rendu . . . dans laffaire . . . des Pcheries, 22 Acta Scandinavica Juris Gentium 130 (1952).

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Article 26, paragraph 2, of the Statute of the present Court.7 In a sense the Monetary Gold removed from Rome in 1943 case rested on a framework agreement. Here the three potential respondents indicated their willingness to accept as respondent the jurisdiction of the Court over a dispute which was not fully dened, and which required the proceedings to be instituted by unilateral application against all of them jointly on the part of one or other, or both, of two named States.8 As stated, the rst case brought before the present Court on the basis of a framework agreement was the Asylum case. By a diplomatic agreement called the Act of Lima of 31 August 1949, plenipotentiaries appointed by the Governments of Colombia and Peru to negotiate and draw up the terms of an agreement to refer to the Court a dispute which arose following a request by the Colombian Embassy in Lima for the delivery of a safe conduct to Monsieur Victor Ral Haya de la Torre stated that they had examined the existing dispute which they agreed should be referred to the Court. However, they were unable to reach agreement on the terms of the reference to the Court. They accordingly agreed that proceedings before the recognized jurisdiction of the Court may be instituted on the application of either of the Parties without this being regarded as an unfriendly act toward the other, or as an act likely to affect the good relations between the two countries. The Party exercising this right shall, with reasonable advance notice, announce in a friendly way to the other Party the date on which the application is to be made. Peru led the application introducing the proceedings. In that instrument, as amplied in the memorial, Peru dened the dispute on its terms. It was met by a counter-claim in Colombias counter-memorial. However, neither the claim nor the counter-claim was framed in a way which could enable the Court to settle the dispute. After prolonged proceedings, in the Asylum, Asylum (Interpretation) and Haya de la Torre cases, the dispute returned to the diplomatic channel with, however, some of the legal differences between the parties settled in one or other of the three judgments rendered by the Court. A further two years passed before the way was found to settle the dispute. This was not an encouraging beginning for the institution of proceedings in this way. The next case before the Court on the basis of a framework agreement was the Arbitral Award Made by the King of Spain on 23 December 1906 case between Honduras and Nicaragua. That dispute went back to the nineteenth century and had led to an arbitral award rendered by the King of Spain in

7 8

ICJ Rep. 1989 15. ICJ Rep. 1954 19.

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1906.9 Nicaragua challenged the validity of that award, and different attempts by third States to mediate the dispute were unsuccessful. In 1957 incidents involving the use of armed force took place, and the Organization of American States dealt with the matter. That led to the Washington Agreement of 21 July 1957. By the principal clause of that Agreement, the parties undertook to submit to the International Court of Justice, in accordance with the Statute and Rules of Court, the disagreement existing between them with respect to the Arbitral Award handed down by His Majesty the King of Spain on 23 December 1906, with the understanding that each Party, in the exercise of its sovereignty and in accordance with the procedures outlined in this instrument, shall present such facets of the matter in disagreement as it deems pertinent. Two appendices to that Agreement set out the respective positions of each party. Honduras led the application introducing the proceedings, claiming that the arbitral award should be carried out. The proceedings, with the sequential ling of the written pleadings and Honduras speaking rst in the hearings, took place without procedural incident. The Court found that the award was nal and binding and that Nicaragua was under an obligation to give effect to it. Difculties arose over the implementation of that decision, and again the OAS was called in to assist the parties in reaching a nal settlement of the dispute.10 The dispute between El Salvador and Honduras over the location of their common frontier also has its origins in the period of decolonization and independence of the nineteenth century. Incidents involving the use of force occurred in 1959 leading to a formal sate of war between the two countries and to intervention by the OAS. The title of jurisdiction consisted in a complex series of bilateral agreements between the two countries which add up to a framework agreement. In 1972 they concluded a Convention for the adoption of a Mediation Procedure under the auspices of the OAS. That led to the conclusion of a general Treaty of Peace signed at Lima on 30 October 1980, under the auspices of the OAS. That Treaty provided that if after the expiry of ve years total agreement on the frontier disputes had not been reached, the parties would proceed to negotiate a special agreement to submit jointly any existing controversy or controversies to the Court. In 1986 the special agreement was negotiated. By this, outstanding points in dispute were referred to a Chamber of the Court under Article 26, paragraph 2, of the Statute, although the language of the relevant provisions is marked by

9 10

For that award, see UN Reports of International Arbitral Awards, vol. XI, 111. ICJ Rep. 1960 192. Honduras also based the jurisdiction on declarations made under Article 36, paragraphs 2 or 5, of the Statute. The Court made no reference to that aspect.

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studied ambiguity.11 The 1972 Treaty also included an agreement by the parties to execute in its entirety and in complete good faith the decision of the Court, and empowered the Joint frontier Commission set up by the Treaty (later replaced by a Special Demarcation Commission) to initiate the demarcation of the frontier as laid down by the Chamber. The parties differed on the respective roles of the Chamber and the Commission under that provision. The Chamber which heard the case held that it was its duty to give such indications of the lines of the frontier as would enable the Demarcation Commission to demarcate it by a technical operation. That was the political and legal background which led to the submission of the Land, Island and Maritime Frontier Dispute to the Court in 1986. The parties remained in dispute throughout the case as to the terms of reference to the Chamber. Indeed, one of the unusual features of these proceedings is that it was not until 1991 that they were able to produce an agreed English translation of the special agreement which had been concluded in Spanish. That English version did not completely dispose of the differences as to the function of the Chamber in relation to that of other organs operating on the basis of this complicated set of agreements. In determining these disputes as to its own jurisdiction, the Chamber repeatedly compared its task with that of the other organs and adopted solutions which would not impair the powers of the other organs. This required interpretation of the special agreement against the background of its predecessors.12 The framework agreement between Chad and Libya was concluded at Algiers on 31 August 1989. It provided for an attempt to reach a political settlement of the territorial dispute between the two countries. In the absence of a political settlement it was agreed to submit the dispute to the Court, and a number of provisional measures were adopted. An ad hoc Committee of the OAU was to monitor the implementation of the agreement, of which notice was to be given to the OAU. No political agreement was reached. Accordingly, on 31 August 1990 Libya notied the agreement to the Court and gave its denition of the question which it asked the Court to determine. On 1 September Chad communicated by facsimile and on 3 September led an application instituting proceedings against Libya, basing the jurisdiction on the Framework Agreement and on an additional title of jurisdic-

11 12

The President of this Chamber was the Brazilian jurist and former member of the International Court of Justice Jos Sette-Camara. ICJ Rep. 1992 351, 386 (para. 39), 390 (para. 47), 401 (para. 67), 554 (para. 325), 557 (para. 331), 579 (para. 368). In 2002, El Salvador submitted an application for the revision of that judgment. The Chamber that heard that case found that the application was inadmissible. ICJ Rep. 2002 618.

9. THE FRAMEWORK AGREEMENT

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tion. Chad later notied the Court that its claim coincided with that contained in Libyas notication. It considered that the two notications related to one single case and it referred the Court to the application of the Algiers Agreement which constitutes the special agreement, the principal basis of the Courts jurisdiction to deal with the matter. The parties then agreed at a meeting with the President that the proceedings had been instituted by two successive notications of the Framework Agreement and that the procedure should be determined on the basis that the case had been instituted by notication of the special agreement. The meaning of this was that by agreement the procedure of the simultaneous ling of the written pleadings should be used.13 The Court commented on this in the following terms:
The Court has been seised of the present dispute . . . by notication of the special agreement constituted by the Accord-Cadre of 31 August 1989. . . . The Accord-Cadre described the dispute between the parties as their territorial dispute but gave no further particularization of it and it has become apparent from the Parties pleadings and oral arguments that they disagree as to the nature of the dispute.14

The Court went on to describe the two approaches, Libya contending that it was a territorial dispute and Chad that it was a boundary dispute. The Court concluded the introductory part of its judgment with the statement that both parties had accepted the jurisdiction on the basis of the AccordCadre, and that since the Courts jurisdiction on that basis had not been disputed there was no need to consider the question of an additional ground of jurisdiction. It concluded its judgment, in favour of Chad, because however the dispute was described, it was conclusively determined by a treaty to which Libya was an original party and Chad a party by succession to France. The last to date in this series of cases is the Marine Delimitation and Territorial Questions between Qatar and Bahrain case. This case presented several unusual features and exceptional difculty. In the rst (1994) judgment on jurisdiction and admissibility the Court rst found that a series of instruments concluded in 1987 and 1990 constituted an agreement to refer what was termed the whole dispute to the Court. Amongst those instruments was the minute of a conversation at Foreign Minister level in one of the capitals drawn up in Arabic and signed by the Foreign Ministers concerned. In that judgment the Court found that the unilateral application led by Qatar did not conform to the requirements of those documents. Accordingly, in an unusual procedure, the Court xed a time limit within which the parties

13 14

ICJ Rep. 1990 149, 1994 6, 9 (para. 8), 12 (para. 16). ICJ Rep. 1990 149, 1994 6, 9 (para. 8), 14 (para. 18).

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could take joint or several action to submit the whole dispute to the Court. In that judgment it decided that for the merits phase the procedure of the sequential ling of the written pleadings would be followed. On the date xed Qatar led additional documents. Bahrain on the other hand, contesting the jurisdiction, led a report in which continued to contest the Courts jurisdiction. Without further hearings the Court in 1995 adopted a second judgment on jurisdiction and admissibility. In that judgment the Court held that it had jurisdiction and that the application was admissible. Bahrain was not represented at the public meeting of the Court when that judgment was read, and did not attend the meeting with the President to x the procedure for the further proceedings. For its part the Court thereupon issued an order xing a time limit for the simultaneous ling of memorials on the merits by the parties.15 From that point on the proceedings on the merits continued in the normal way. Unlike special agreements properly so called, framework agreements have come to present to the Court new problems of language and terminology. In the Permanent Court, titles of jurisdiction were usually drawn up in either English or French, the two ofcial languages of the League of Nations and of the Permanent Court. The Charter of the United Nations and the annexed Statute of the Court are drawn up in ve authentic texts, although Article 39, paragraph 1, of the Statute retains English and French as the Courts ofcial languages. Originally the United Nations made a distinction between its ofcial languages and its working languages. That distinction was abolished in 1973 when Arabic was added as an ofcial language of the United Nations and the distinction between ofcial and working languages was abolished, rst in the General Assembly and later generally. This has had an impact on the language of special agreements and more so on that of framework agreements. With regard to special agreements in the original sense, notwithstanding Article 39 of the Statute the practice of States is now showing a tendency to follow the language practices of the United Nations in drawing up titles of jurisdiction. As special agreements have to be registered with the Secretariat in accordance with Article 102 of the Charter, the Secretariat has to prepare translations into English and French if necessary. Multilateral treaties concluded under the auspices of the United Nations or one of the specialized agencies are multilingual following the language practice of the organization in question. Bilateral titles of jurisdiction show a tendency, if the case is between two parties using the same ofcial language, to use that language.16

15 16

ICJ Rep. 1995 83. For an illustration of this, see the discussion about the special agreement between Libya and Tunisia in the Continental Shelf (Tunisia/Libya) case, ICJ Rep. 3, 37 (para. 22), 39 (para. 29), 40 (para. 31).

9. THE FRAMEWORK AGREEMENT

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Framework agreements tend to show less regard for the Courts language practices. The Act of Lima of 1950 for the Asylum case was in Spanish. The parties supplied separate translations into French. Perus application instituting the proceedings was in French and French-speaking counsel appeared for Peru in the hearings. The Act of Lima was not cited in the application as a title of jurisdiction, but for some aspects of procedure the Courts attention was drawn to it.17 In the Arbitral Award case the Washington Agreement of 1957 was in Spanish. A French translation prepared by the UN Secretariat was annexed to the application which was in English. Both languages were used in the oral proceedings, according to the convenience of counsel.18 In the Land, Island and Maritime Frontier case the special agreement was in Spanish. In the early stages of that case, including proceedings on Nicaraguas request for permission to intervene under Article 62 of the Statute in the full Court and later before the ad hoc Chamber, neither party had supplied the Court or the Chamber with an agreed translation of the special agreement or a translation of its own. The Court used a translation prepared by the Registry. Only in 1991 did the parties provide the Chamber with a joint translation of the special agreement into English, from which the Registry made a French translation. There was a dispute between the parties as to the interpretation of the special agreement, especially regarding questions relating to the Gulf of Fonseca, where the Chamber had granted a limited intervention to Nicaragua. That intervention expressly excluded argument on the interpretation of the relevant passage of the special agreement, because the Special Agreement is, for Nicaragua, res inter alios acta.19 The dispute between the parties over the interpretation of the special agreement was not affected by the joint translation, and the Chamber decided it in application with the normal practices of interpretation in this type of case. The framework agreement in the Chad/Libya case was in French. In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, the principal element of the framework agreement which the Court found to exist was in Arabic. Qatar submitted its translation of that document into English. Bahrain submitted two translations into English, one prepared by the Translation Division of the UN Secretariat and the other

17

18

19

Asylum case, Pleadings, vol. I, 8 (application), vol. II 194 (translation supplied by Colombia) and 196 (translation supplied by Peru). In the judgment the Court referred to the Act of Lima and did not mention the titles of jurisdiction invoked in the application instituting these proceedings. Arbitral Award of King of Spain case, Pleadings, vol. I 2 (application). For the Washington Agreement, see p. 27. Nicaraguas counter-memorial indicates that this was a translation, at 131. ICJ Rep. 1990 92, 136 (para. 103).

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by an expert advising Bahrain. In its 1994 judgment on jurisdiction and admissibility the Court quoted the translation supplied by Qatar and the translation made by Bahrains expert, but it did not attempt to resolve directly the dispute on the interpretation of the document.20 In its 1995 judgment, however, the Court faced this issue head-on, for this purpose using a translation which it was able to prepare out of its own resources, and which, on the disputed issue, was very close to the UN translation. The Court rather boldly gave its opinion on the disputed question of Arabic grammar:
The dual form in Arabic serves simply to express the existence of two units (the parties, or the two parties), so what has to be determined is whether the words, when used here in the dual form, have an alternative or a cumulative meaning. In the rst case, the text would leave each of the parties with the option of acting unilaterally, and in the second it would imply that the question be submitted to the Court by both Parties acting in concert, either jointly or separately.

By a process of legal reasoning and analysis the Court reached the conclusion that the alternative interpretation was the one to be applied in this case.21 This case law suggests the solutions to two type of problem that have arisen. If the governing texts are in a language other than one of the Courts ofcial languages, the Court will rely on its own translation in case of need, unless and until the parties supply it with an agreed translation into one of the Courts ofcial languages. If there is no agreed translation, the Court will make use of its own resources (which include, if necessary, the UN Translation Services) to reach a translation into English or French (or both) which it considers reects the intentions of the parties. At the same time, this experience would indicate that the absence of an agreed English or French version of a special agreement or a framework agreement is likely to complicate the Courts task. The creation of this form of agreement to refer a case to the Court and its proven adaptability to different diplomatic and political currents and requirements is a welcome addition to the machinery of international adjudication as one of the means for the peaceful settlement of international disputes.

20 21

ICJ Rep. 1994 112, 119 (para. 19). ICJ Rep. 1995 6, 18 (para. 24), 22 (para. 41). The three translations are included in the article cited in note 3 above. Judge Oda, in his dissenting opinion joined to the 1994 judgment cited the Qatari and UN translations, ibid. 1994 at 148 (para. 32). The dispute concerned the proper meaning in the context of the Arabic word al-taraf9an (dual form of the word altaraf [party], plural al-turuf. The informal Arabic translation of the Rules of Court regularly uses the plural form even when from the English or French one might of have expected the dual form. After its excursion into the meaning of the dual form in Arabic the Court correctly stated the legal problem that it faced.

10
UNILATERAL APPLICATIONS TO THE INTERNATIONAL COURT OF JUSTICE: HISTORY REVISITED

The fundamental issue that the International Court of Justice faced in its judgment of 4 December 1998 in the Fisheries Jurisdiction (Spain v Canada) case was the Courts power to dene the subject of the dispute brought before it by a unilateral application.1 The Court found that to resolve the question of jurisdiction, it rst had to dene the dispute before it. The essential facts something distinct from the characterization of the dispute were not in serious dispute. The account that follows is a shortened version of the facts as given by the Court in paragraphs 13 to 22 of the judgment. On 9 March 1995 Canadian authorities boarded the Spanish ship Estai on the high seas and took her into a Canadian port. There proceedings were initiated against the vessel and her master for offences against Canadian exterritorial legislation designed to exercise control over shing in an area of the high seas within the competence of the Northwest Atlantic Fisheries Organization (NAFO) Regulatory Area. That area is part of the high seas, being beyond, but contiguous to, the outer limit of Canadas exclusive economic zone. This legislation related in particular to straddling stocks on the Grand Banks of Newfoundland. The sh in question, mainly Greenland halibut, is a straddling stock as that term is understood in the modern law of the sea.

ICJ Rep. 1998, 432 (hereafter Judgment). This is being used here to demonstrate how the problem can arise in any given case. By twelve votes to ve the Court found that it had no jurisdiction. Criticism of the Courts denition of the dispute was expressed by two of the Judges of the majority, Judges Oda and Koroma in their separate opinions. The dissenting opinions, by Judges Weeramantry (Vice-President), Bedjaoui, Ranjeva, Vereschchetin and Judge ad hoc Torres Bernrdez, of course, concentrate on this aspect. The main precedents on which the Court relied for this part of its decision were the Right of Passage (Merits) (Portugal v India) case, ICJ Rep. 1960 at p. 33; Nuclear Tests (Australia v France) case, ICJ Rep. 1974 at 262 (para. 29); Nuclear Tests (New Zealand v France) case, ICJ Rep. 1974 at 466 (para. 30); and others. A similar incident of procedure occurred in the Certain Property case between Liechtenstein and Germany, ICJ Rep. 2005, 6, 17 (paras. 20 to 27). Germany led a preliminary objection, which the Court dismissed by fteen votes to one (Judge Fleischhauer), that there was no dispute between the parties.

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Spain led its application instituting these proceedings on 28 March 1995. It founded the jurisdiction on the declarations made under Article 36, paragraph 2, of the Statute, namely Spains declaration of 29 October 1990 (this containing nothing of relevance to this case) and Canadas declaration of 10 May 1994. That declaration contained a reservation (d ) excluding disputes arising or concerning conservation or management measures taken by Canada with respect to vessels shing in the NAFO Regulatory Area as dened in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978,2 and the enforcement of such measures. That declaration, made together with the Canadian legislation in question, replaced an earlier declaration. Immediately on receipt of the application, Canada informed the Court that the Court manifestly lacks jurisdiction to deal with the Application . . . by reason of paragraph 2 (d ) of the Declaration by which Canada accepted the Courts compulsory jurisdiction.3 At the initial meeting of the parties with the President to settle the procedure in the case, the parties agreed that the question of the Courts jurisdiction should be separately determined before any proceedings on the merits, and that the applicant would le the rst pleading.4 The written and oral pleadings showed the existence of a dispute between the parties on the question what was the dispute which Spain was seeking to bring before the Court. This difference was characterized by the Court in paragraph 23 of its Judgment as follows:
Spain has characterized the dispute as one relating to Canadas lack of entitlement to exercise jurisdiction on the high seas, and the non-opposability of its amended Coastal Fisheries Protection legislation and regulations to third States, including Spain. Spain further maintains that Canada, by its conduct, has violated Spains rights under international law and that such violation entitles it to reparation. Canada states that the dispute concerns the adoption of measures for the conservation and management of sheries stocks with respect to vessels shing in the NAFO Regulatory Area and their enforcement.

2 3

1135 UNTS 369. For the text of the Canadian declaration, see Judgment, para. 14. It is the peremptory character of the word manifestly in this context that distinguishes the Canadian position in this case from that of the United States in the Military and Paramilitary Activities in and against Nicaragua case, where the formula was: rm conviction that the Court was without jurisdiction. ICJ Rep. 1984 at 172 (para. 6). ICJ Rep. 1995, 87. After the rst written pleadings Spain asked for a second round, which the Court refused. Ibid. 1998, 58. When, as occasionally has occurred, the applicant les the rst pleading in a phase of jurisdiction and admissibility, it is an open question how far this can be assimilated to the formal objection procedure where the respondent initiates the incidental proceedings, usually after the applicant has led its memorial on the merits. This is not always so, and the Court has accepted that the respondent can le preliminary objections at any time up to the date of the ling of its counter-memorial. Aerial Incident of 3 July 1988 (Iran v U.S.A.) case, ICJ Rep. 1989, 132.

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The Court went on in paragraph 35 to give its own denition of the dispute before it:
The specic acts . . . which gave rise to the present dispute are the Canadian activities on the high seas in relation to the pursuit of the Estai, the means used to accomplish its arrest and the fact of its arrest, and the detention of the vessel and arrest of its master, arising from Canadas amended Coastal Fisheries Protection Act and implementing regulations. The essence of the dispute between the parties is whether these acts violated Spains rights under international law and require reparation.

The Court found that the dispute thus dened came within the scope of the Canadian reservation, and that it had no jurisdiction to adjudicate upon it. This judgment has raised in an acute form the signicance and the real function of the application, in relation to other relevant documents in the case. The Court decided the issue of its jurisdiction without in any way touching the merits of the case that were never fully set before it. * * * The problem arises from the combination of two separate provisions, one in the Statute and one in the Rules of Court. Article 40 of the Statute, a slightly revised version of the corresponding Article (40) of the Statute of the Permanent Court of International Justice, provides that cases are brought before the Court, as the case may be, either by the notication of the special agreement or by a written application. In either case the subject of the dispute and the parties shall be indicated [dans les deux cas, lobjet du diffrend et les parties doivent tre indiqus].5 For cases introduced by application, Article 38 of the current Rules of Court applies.6 It reads:
1. When proceedings before the Court are instituted by means of an application addressed as specied in Article 40, paragraph 1, of the Statute, the application shall indicate the party making it, the 1. Lorsquune instance est introduite devant la Cour par une requte adresse conforme larticle 40, paragraphe 1, du Statut, la requte indique la partie requrante, lEtat contre lequel la

The Statute of the Permanent Court used here the expression contesting parties [ parties en cause], and that the different items must [doivent tre] be indicated. The San Francisco Conference dropped contesting parties in both texts, and changed must to shall in the English text as part of its general tidying up of the texts and the improvement of the concordance between them. See United Nations Conference on International Organization, Documents, vol. 13 at 406. These are purely drafting changes. On the drafting of Article 40 of the 1920 Statute, see B. Schenk von Stauffenberg (ed.), Statut et Rglement de la Cour internationale de Justice permanente: Elments dInterprtation 292 (1934). In this respect, current Art. 38 is substantially identical with all its predecessors: Art. 35 of the Rules of 1922, Art. 35 of the revised Rules of 1926, Art. 35 of the Rules of 1931, Art. 32 of the Rules of 1936, Art. 32 of the Rules of 1946 and Art. 35 of the Rules of 1972. The development of the Rules is traced in the following pages.

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State against which the claim is brought, and the subject of the dispute. 2. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based. 5. When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Courts jurisdiction for the purposes of the case.

demande est forme et lobjet du diffrend. 2. La requte indique autant que possible les moyens de droit sur lesquels le demandeur prtend fonder la comptence de la Cour; elle indique en outre la nature prcise de la demande et contient un expos succinct des faits et moyens sur lesquels cette demande repose. 5. Lorsque le demandeur entend fonder la comptence de la Cour sur un consentement non encore donn ou manifest par lEtat contre lequel la requte est forme, la requte est transmise cet Etat. Toutefois elle nest pas inscrite au rle gnral de la Cour et aucun acte de procdure nest effectu tant que lEtat contre lequel la requte est forme na pas accept la comptence de la Cour aux ns de laffaire.

There is a marked lack of concordance between the English and French texts of the rst two paragraphs. In paragraph 1, the English word indicate is rendered by the French verb indiquer. In the second paragraph, the English specify, seemingly a stronger word, is also twice rendered by the French verb indiquer. If the working language of most of the judges in the previous versions of the Rules was French, by 1978 most of the judges were using English as their working language. Both versions are equally authentic. Paragraph 1 in the main repeats Article 40 of the Statute, with however a slight addition. It includes among the obligatory requirements of the application the State against which the claim is brought. That is the rst reference to claim in the provisions governing the Courts jurisdiction and procedure. More important is paragraph 2, saying what an application should specify as far as possible. The mention of jurisdiction in the rst phrase of paragraph 2 links the manner of seising the Court with the Courts jurisdiction. Seising the Court is the topic of the second phrase, read in the light of the Statute and paragraph 1. It imports the following elements: claim, its precise nature, and a succinct statement of the facts and grounds on which that claim is based. In this context, one can detect a possible inconsistency between precise nature and succinct statement. It is from that possible inconsistency that the problem arises. Should a dispute whether the Court has jurisdiction arise out of that, Article 36, paragraph 6, of the Statute

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the comptence de la comptence takes over. The matter shall be decided by the Court. One of Spains contentions was that the Canadian reservation foreclosed the Courts power under Article 36(6). Paragraphs 1 and 2 have a long history, going back to the initial work of preparing the Statute of the Permanent Court in 1920. Paragraph 5 is completely new. However, when read with the reference to jurisdiction in paragraph 2, it preserves the doctrine of the forum prorogatum as it has developed in the Courts practice, while aiming to deter what some see as abusive use of that doctrine during the 1950s.7 Today these provisions appear normal, mundane, and even obvious. However, that was not so when they were rst formulated in the early 1920s. The establishment of a standing international court with universal jurisdiction over States opened the way to the possibility of the unilateral institution of proceedings by one State against another in the Permanent Court of International Justice. That was revolutionary. Nothing like it had been conceived in nineteenth century arbitration practice between States. The nearest to this was in article 4 of the Hague Convention No. XIII concerning the creation of an international prize court.8 This envisaged that in given circumstances a neutral individual could initiate an appeal against the judgment of a belligerent prize court. The Convention said nothing about the contents of a notice of appeal: however, it visualized that the case would continue with phases of written and oral pleadings. That Convention never entered into force, so there are no draft rules of procedure to carry the matter further. On the regional level, the Convention for the Establishment of a Central American Court of Justice of 20 December 19079 contemplated that an interested party could institute proceedings by presenting a complaint (requte) which would comprise all the points of fact and law concerning the matter.10

10

See the following cases: Treatment in Hungary of Aircraft and Crews of United States of America (U.S.A. v USSR, U.S.A. v Hungary) (1954), Aerial Incident of 10 March 1953 (U.S.A. v USSR) (1955), Antarctica (U.K. v Argentina, U.K. v Chile) (1955), Aerial Incident of 7 October 1952 (U.S.A. v USSR) (1955), Aerial Incident of 4 September 1954 (U.S.A. v USSR) (1958), Aerial Incident of 7 November 1954 (U.S.A. v USSR) (1959). Except for the Antarctica cases, these were Cold War incidents. 205 Consolidated Treaty Series 381. Nevertheless, international thought was beginning to move away from the strict purely bilateral nature of arbitral proceedings requiring a special agreement to begin them. Article 53, rst sentence, of the Hague Convention No. I of 1907 provided that the Permanent Court of Arbitration was competent to settle the Compromis, if the parties were agreed to have recourse to it for that purpose. Ibid. 233. 206 ibid. 79, 90. Reproduced in Permanent Court of International Justice, Advisory Committee of Jurists, Documents presented to the Committee relating to Existing Plans for the Establishment of a Permanent Court of International Justice, at 141 (1920) (hereafter: Documents). The word requte means: Mode dinstruction en justice de certaines procdures principales

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The fundamental and revolutionary innovation that the possibility of the unilateral institution of judicial proceedings by one State against another introduced into international diplomatic practice called for caution in formulating the relevant texts. This was a major item to be examined both in the diplomatic phase leading to the adoption of the Statute of the Permanent Court in 1920, and the adoption of the rst set of Rules of that Court in the Courts preliminary session of 1922. Revisiting that legislative history is justied not so much because of possible difculties of interpretation that the relevant texts are sometimes seen to present, but to bring out the problems that those who drafted those texts faced and the solutions they had in mind. * * * The matter was rst discussed by the Advisory Committee of Jurists, convened by the Council of the League of Nations in 1920. Its task was to prepare the draft of a statute for the Permanent Court, carrying out Article 14 of the Covenant of the League of Nations. The Legal Secretariat of the Leagues Permanent Secretariat presented a memorandum to the Advisory Committee on the different questions arising in connection with the establishment of the Court. It contained a section headed: Is the Court competent when one party alone invokes it?11 This summarized existing instruments and plans, and formed a basis for the Committees work. The Committee commenced its discussion of this issue under the rubric of what States may appear before the Court, at its 10th meeting on 26 June 1920.12 The discussion involved the issue of compulsory jurisdiction and the interpretation of different articles of the Covenant of the League of Nations. The Committees conclusion, in the article then numbered 38, was that a State wanting to have recourse to the Court should lodge a written application (requte) to the Court. The application shall indicate the subject of the dispute, and name the contesting parties. The Committees commentary on that proposal included the following explanations. This application shall state the point at issue. It was thought that a juridical term should be used as being more exact and more suitable from the point of view of the res judicata, than the term nature . . . The demands (conclusions), however, are not yet set out in their nal form: a general indication is all that is required, one that is sufcient to dene the case and allow the proceedings to be commenced.13 The ref-

11 12

13

ou incidentes, de certaines voies de recours, caractris par remise dune requte. Le Robert lectronique s.v. requte (1994). Documents, 3 at 19. Permanent Court of International Justice, Advisory Committee of Jurists, Procs-Verbaux of the Proceedings of the Committee, June 16thJuly 24th 1920 with Annexes at 219 (1920) (hereafter Proceedings). Proceedings at 734.

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erence there to a general indication allowing the case to commence is completed by the more elaborate presentation of the two stage procedure of written and oral pleadings set out in the Statute. In that form, the Committee was not particularly concerned here with whether the Courts mainline jurisdiction permitted unilateral application. The reason is that the Committees whole scheme was based on the assumption that the Courts mainline jurisdiction would be compulsory deriving from a formal agreement, namely the constituent instrument of the new Court read in light of the Covenant of the League of Nations. Little attention was paid to this aspect in the later phase of the completion and adoption of the Statute. The Report of the Committee of Jurists was immediately forwarded to the Council of the League of Nations. It was introduced by the representative of France, Lon Bourgeois, who included the following passage in his statement:
[W]hen it had to be decided whether as before national courts a State might summon another State before the Court of International Justice, without previous agreement being necessary, the Jurists did not hesitate to waive the principle generally admitted by which States could not summon each other save under an existing convention between the Parties or without a special compromise being arrived at for the carrying out of a general convention on arbitration. It is in consequence of the general convention, as it appears to them from the interpretation of the principles of the Covenant (Article 13), that the Committee felt they could allow such a compromise to be dispensed with, and that they could admit the right of one of the Parties to summon the other directly before the Court, leaving the Court itself to decide whether the dispute was within its competence. In this case, the actual Statute of the Court would act as the general convention of arbitration. There is no need for me to emphasize the importance of this decision which now comes before the Council.14

At its eighth session in San Sebastian at the end of July the Council decided, after a brief debate, to forward the Jurists Report to the Members of the League, and to examine it itself at a later session. The representative of Italy (T. Tittoni) was the only member of the Council to comment on this aspect. He thought that recommending the Jurists proposals in their entirety was impossible for the Council. Among his reservations he pointed out that bringing another State before a tribunal without its assent (assentiment) was unprecedented for one State and to condemn it by default; and in practice

14

League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article 14 of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court of International Justice at 24 (hereafter: Action taken).

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such a procedure would only be tolerated by the smaller countries. However, no further discussion took place on this, and the Council went on with its procedural decision.15 The Council resumed its discussion at its tenth session in Brussels in October 1920, and revised the Jurists proposal in one major respect. The Council declined to accept the idea of the compulsory jurisdiction of the new Court owing directly from its Statute, requiring it in each case to be based on an agreement. No substantive amendment to article 38 was presented, and the Council transmitted the text of that article to the Assembly unchanged. In the First Assembly (1920), the item was allocated to the Third Committee which appointed a Sub-committee to consider in detail the problem before it. That Sub-committee consisted of ve former members of the Advisory Committee of Jurists and ve members appointed by the Committee. L. Bourgeois was chairman of the Third Committee, and F. Hagerup (Norway) was chairman of the Sub-committee. The Sub-committee examined article 38 at its fth meeting. There was no substantive discussion of the rst paragraph. In the examination of other parts of that draft, however, reference was made to a unilateral application being made by the plaintiff party. There was mention of the freedom of a State to consent or refuse to go before the Court, which should not be prejudiced. The French representative, H. Fromageot, suggested overcoming this by combining the rst two paragraphs of the article into their present wording.16 In the nal text the article re-numbered 40 was slightly redrafted without change of substance. No further changes have been made except the minor drafting changes introduced in 1945. This account of the drafting of Article 40 of the Statute shows that the unilateral institution of proceedings by application was accepted without much recorded discussion. The legal requirement to enable a unilateral application to set the judicial process in motion remained the agreement of the parties, and the Statute of the Court did not constitute that agreement. On the other hand, no special form or other requirements of that agreement are laid down. A unilateral application can be no more than an indication of what the case is about, sufcient to describe the case and to allow the proceedings to be commenced. It is left to the formal pleadings to bring out whether the Court has jurisdiction and to develop the appropriate arguments in fact and in law. This approach has coloured the future drafting of the different Rules of Court governing the matter, and the relevant decisions of both the Permanent Court and the present International Court of Justice.

15 16

Action taken, pp. 2027. Action taken at 134.

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* * * The Preliminary Session of the Permanent Court early in 1922 was the next body to discuss the matter, when the Court adopted the rst version of the Rules of Court. Draft rules of court prepared by the Secretariat contained the following article 28:
Applications shall contain, in addition to an indication of the subject of the dispute and the names of the contesting parties, a succinct statement of the facts, an indication of the claim, and the name and address of the Claimants agent at the seat of the Court.17

The Court did not discuss this draft, preferring to work on a text prepared by its own members. Draft rules of court prepared by the Drafting Committee and based on decisions of the Court contained article 35 in substantially the same terms.18 This was discussed at the Courts 24th meeting (8 March 1922). The rst two parts of the article were accepted without discussion, subject to further examination by the Drafting Committee.19 The revised draft in distr. 87 was unchanged in this respect. However, at the 35th meeting on 20 March, several amendments were presented (not directly relating to the matter under examination here), and the article was adopted subject to further scrutiny by the Drafting Committee.20 During that discussion judges pointed out that it would be impossible for the applicant to state the case in detail in the application, since it would take too much time to collect the necessary documents, and that if applicants were compelled to submit all the details in the document instituting the proceedings, they would often be prevented from coming before the Court. Resulting from this discussion, the Drafting Committee presented a new draft of article 35, which, regarding the topic of this article, read:
In all other cases [i.e. cases not brought before the Court by means of a special agreement] in which the Court has jurisdiction, the application shall include, in addition to an indication of the subject of the dispute and the names of the parties concerned, a succinct statement of facts, an indication of the claim, and the address selected at the seat of the Court to which notices and communications are to be sent.21

17

18 19 20 21

PCIJ, Ser. D, Acts and Documents concerning the Organization of the Court, No. 2 Preparation of the Rules of Court. Minutes of Meetings held during the Preliminary Session of the Court, with Annexes (January 30th to March 24th 1922) at 260 (hereafter: D2). D2 at 463. The records refer to this as Distr[ibution] 79. For the initial draft (distr. 71), in identical terms in this respect, see p. 425. There was no discussion of this aspect. D2 at 133. For distr. 87, see D2 at 489, and for the discussion, see p. 198. D2 at 527 (distr. 106).

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This was examined at the 38th meeting on 22 March. It was stressed in this discussion that the agreement of the parties must always form the basis of the Courts jurisdiction, and not only when the procedure was opened by the ling of a special agreement. The article was amended in other respects and adopted.22 It appeared unchanged as Article 35 in the Rules of 1922. There is one difference between the Rule and Article 40 of the Statute of the Permanent Court. The Statute required an application to indicate the subject of the dispute and the contesting parties. The Rule as adopted in 1922 required the application to include, in addition, a succinct statement of facts, and an indication of the claim. There had been no public discussion of the word succinct which therefore presumably carries its dictionary meaning. On the other hand, the discussion had shown realization that an application could not set out the full case, either in fact or in law, which the applicant wished to bring before the Court. To that extent, therefore, an application would have a tentative character, which, in the nature of things, could spill over to the matter of the Courts jurisdiction. * * * A slight change was made when the Rules were rst revised in 1926.23 The opening phrase of article 35 was amended to read:
In all other cases in which the Court has jurisdiction, the application, in addition to the specication of the object of the dispute and the names of the parties concerned, a succinct statement of facts, and an indication of the claim, shall include . . . [particulars regarding the agent and the address for service].

What the Statute called the subject of the dispute as something to be indicated in an application now became in English an obligatory specication of the object of the dispute (although the French text continued to use the verb indiquer). All the contentious cases determined by the Permanent Court up to 1926 (except the Treaty of Neuilly case heard in the Chamber of Summary Procedure) had been introduced by application Wimbledon, Mavrommatis Palestine Concessions, German Interests in Polish Upper Silesia. Jurisdiction in each of them was based on a treaty that permitted unilateral applications. This gave the Court some experience when it came to re-examine the Rules in 1926. It is interesting to see how in those cases the Permanent Court had dealt with Article 40 of the Statute and Article 35 of its Rules.

22 23

D2 at 222. PCIJ, Ser. D 2, Add., Revision of the Rules of Court (1926) (hereafter: D2 Add.) at pp. 70, 104, 233, 308.

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In the Wimbledon (the Principal Allied Powers v Germany) case the Court pointed out that the conclusions of the application were developed in the case (memorial). It went on to set out the facts as stated in the course of the proceedings and in regard to which there appears to be no disagreement. It based its judgment on those facts. It also noted without comment that during the written proceedings the respective conclusions of the parties were to some extent modied or supplemented, and it gave judgment on those conclusions in their nal form.24 In the Mavrommatis Palestine Concessions (Greece v Great Britain) case the application was developed in the case led later. Immediately on receipt of the case the respondent notied the Court that it wished to make a preliminary objection on which the Court duly gave judgment partly upholding the objection and partly dismissing it. The proceedings therefore continued.25 In the German Interests in Polish Upper Silesia (Germany v Poland) case, immediately on receipt of the application the respondent raised objections, which it went on to set out in a document entitled Rponse exceptionnelle, to which the applicant submitted a countercase. In its judgment on the preliminary objections, the Permanent Court observed that its jurisdiction cannot depend solely on the wording of the Application; on the other hand, it cannot be ousted merely because the respondent Party maintains that the rules of law applicable in the case are not among those regarding which the Courts jurisdiction is recognized.26 These three cases taken together amply illustrate the tentative and indicative character of an application, both regarding its statement concerning the jurisdiction of the Court and about the claim itself. With that experience, Article 35 was rst discussed at the Courts eighth meeting on 25 June 1926. Several amendments had been submitted, all relating to the problem of the agent and the address for service. The Registrar (. Hammarskjld) explained the words in regard to the case in that provision: when a matter was brought before the Court by application, its jurisdiction, being compulsory, also covered possible future disputes between the same parties. It must therefore be specied that the selection of an address only related to subsequent communications in the same case. The discussion was resumed at the 22nd meeting on 21 July. Nothing in the published records shows why the words the specication of were introduced, or who proposed them. When the revised article was nally adopted

24 25 26

PCIJ, Ser. A 1 (1923) at 16, 17, 18. PCIJ, Ser. A 2 (1924) (Preliminary Objection); A5 (1925) (Merits). PCIJ, Ser. A 6 (1925) at 15. The Court also pointed out that the objection had been led when no document on the merits had been led and that, in consequence of the objection, the proceedings on the merits were suspended. Ibid. The German counter-case was very long, and this led the Court in the 1936 revision to revise the Rule. See the 1934 Report of the Second Committee in the document cited in note 28 below (D2 Add. 3) at 755, 775.

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at the 31st meeting, the words shall include were transposed to their new position to clarify the object of that verb.27 This was retained unchanged in the revised Rules of 1931. * * * In 1936 the article was renumbered as article 32, paragraph 2 of which read:
When a case is brought before the Court by means of an application, the application must, as laid down in Article 40, paragraph 1, of the Statute, indicate the party making it, the party against whom the claim is brought and the subject of the dispute. It must also, as far as possible, specify the provision on which the applicant founds the jurisdiction of the Court, state the precise nature of the claim and give a succinct statement of the facts and grounds on which the claim is based, these facts and grounds being developed in the Memorial, to which the evidence will be annexed. Lorsquune affaire est porte devant la Cour par une requte, celle-ci, conformment larticle 40, alina 1, du Statut, doit indiquer la partie requrante et la partie contre laquelle la demande est forme, ainsi que lobjet du diffrend. Elle contiendra en outre, autant que possible, la mention de la disposition par laquelle le requrant prtend tablir la comptence de la Cour; lindication prcise de lobjet de la demande; un expos succinct des faits et des motifs par lesquelles la demande est prtendu justie, sous rserve des dveloppements fournir dans le mmoire et des preuves qui y seront annexes.

In 1931 the League Assembly adopted a series of amendments to the Statute, and these, in turn, required the Court to undertake a thorough review and revision of the Rules. This occupied the Court up to 1936, when the revised Rules were adopted.28 It became the only thorough examination of the relation of an application to the subsequent proceedings for which a record exists. The matter was rst discussed (under Article 35) at the eighth meeting on 23 May 1934. The Co-ordination Commission submitted the following text:
When a case is brought before the Court by application, the latter shall indicate the names of the parties concerned, the subject of the dispute, the provisions relied upon submitting the case to the Court and those governing the particular matter in issue; the appli-

27 28

D2 Add. at 233. There are two versions of the records of the Courts deliberations preceding this revision. The principal record is in PCIJ, Ser. D 2, Add. 3, Elaboration of the Rules of Court of March 11th, 1936 (1936); and Add. 4, Elaboration of the Rules of Court of March 11th, 1936: Extracts from the Minutes of 1934, 1935, 1936, arranged according to the Articles of the Rules (1943). Hereafter D2 Add. 3 and D2 Add. 4 respectively. The systematic account of the development of Art. 32 of the 1936 Rules appears in D2 Add. 4, at pages 67103. No further references to Add. 4 will be given here. For the Registrars Report on the experience of Art. 38, see D2 Add. 3 at 817.

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cation shall also contain, in addition to an indication of the claim, a succinct statement of facts. Evidence in support of the claim shall not be appended to the application.

This text was partly based on the existing Rule and partly on a proposal by Judge Fromageot, who suggested an addition to the effect that the whole application would be subject to future developments as required by the written proceedings in the case. Fromageot explained that he had meant to bring out the special character of the application in comparison with the case (memorial), as revealed by the preparatory deliberations on the existing Statute and Rules. The application was an act that a government must be able to undertake rapidly, in order to bring the matter speedily before the Court and thus to give effect to its intention of obtaining a judicial settlement of the dispute. The memorial would follow, going into all the necessary details and which constituted the main element of the claim. Judge Schcking agreed that when the Statute required the application to state the subject of the dispute that might be held to cover a succinct statement of the facts, and likewise a denite claim. It might be difcult, he thought, to explain the subject of the dispute without referring to the facts underlying it, and a claim formulated by one party against the other was an essential element in a dispute. On the other hand he objected to requiring an application to include reference to the provisions conferring jurisdiction on the Court and those governing the particular case. That was to lead into a discussion of the forum prorogatum, not directly relevant here. This discussion was concluded with a series of votes. By the casting vote of the President (Sir Cecil Hurst) the Court considered it desirable to lay down that mention should be made in the application of the treaty provision (or unilateral declaration) in virtue of which the applicant State was arraigning the other State before the Court. The Court then answered in the afrmative the question that it was desirable that mention be made in the application of the grounds alleged in support of the claim. It also decided that the evidence in support of the claim would be annexed to the memorial. On that basis the President read a new text:
Whenever a case is brought before the Court by application, the latter shall give the names of the parties concerned, the subject of the dispute, the treaty provision or unilateral declaration pursuant to which the application is made, a succinct statement of the facts and grounds alleged in support of the claim and an indication of the claim itself, all these points to be amplied by argument and evidence, which shall be produced in the Case [Memorial] provided for in . . .

That text led to a renewed discussion. Judge Anzilotti objected that it seemed to make it possible to amend the actual claim in the memorial. Judge van Eysinga thought that the text would enormously enlarge the scope of the application which, by losing its brevity, would also lose its most essential

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characteristic. He also recalled the view of the 1920 Jurists Committee as to the nature of an application (see text to note 13 above). Judge Guerrero (Vice-President) thought that an application should be regarded as an urgent document that should be very brief and even provisional in character. The parties would develop their arguments in the succeeding written and oral phases. The President concluded this part of the discussion by recalling that in accordance with the view of the Jurists Committee, the Court had for a long time allowed submissions to be amended and that there was no intention of departing from that. The Co-ordination Commission would submit a new text.29 The discussion was resumed at the 18th meeting on 1 June. The new text submitted by the Co-ordination Commission read:
When a case is brought before the Court by means of an application, the application shall specify, in addition to the name of the applicant and the subject of the dispute, the name of the party against whom the claim is submitted, the provision on which the applicant founds the jurisdiction of the Court and the precise nature of the claim, and give a succinct statement of the facts and grounds on which the claim is based, these facts and grounds being developed and the evidence adduced in the Memorial to which the evidence will be annexed.

The initial discussion was concerned with preserving the forum prorogatum. It was therefore mostly concerned with the mention of the basis of jurisdiction, and with the consequences of the failure of the application to meet the requirements laid down in the Rules (as distinct from those laid down in the Statute). At the end of the discussion Fromageot suggested the wording it must also, as far as possible, specify the provision . . . That was adopted unanimously.30 The Drafting Committee then produced a new version of the Rules as adopted in 1934, and in this text the article was renumbered article 33. It was adopted unchanged on the rst reading at the 47th meeting on 4 April 1935.31 The second reading took place at the Courts 20th meeting on 18 February 1936. A brief discussion on the relationship of this provision to Article 40 of the Statute led to the introduction of the specic reference to Article 40, as now found in the nal text of Article 38.32 The provision was then adopted as Article 32. * * *

29 30 31 32

D2 D2 D2 D2

Add. Add. Add. Add.

3 at 6574. For Fromageots amendment, see p. 901. 3, pp. 153160. 3 at 430. For the Drafting Committees text, see p. 933 (French only). 3 at 573.

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Following the slight revision of the Statute in 1945, the present Court, in 1946, retained the provision unchanged as Article 32, paragraph 1, of its Rules (unchanged as Article 35, paragraph 1, of the 1972 Rules). It was revised to its present form, set out above, as Article 38 of the Rules of 1978. No explanation appears for the dropping of the phrase regarding the development of the case in the memorial, but the retention of the words as far as possible in the opening phrase of this paragraph maintains the tentative and provisional character of an application instituting proceedings. It will be noted that in its current form, the Rule does not mention the provision on which the applicant founds the jurisdiction of the Court. Instead it uses a more professional turn of phrase: the legal grounds upon which the jurisdiction of the Court is said to be based [italics added]. The forum prorogatum is further preserved by the new paragraph 5 of Article 38, providing that when the applicant proposes to found the jurisdiction upon a consent yet to be given or manifested by the State against which an application is made, the only action to be taken by the Registrar is to transmit the application to that State.33 * * * The case-law dealing specically with Article 40 of the Statute and the appropriate provision of the Rules of Court retains as its starting point that the object of a dispute is indicated rst in the application and the nal submissions of the applicant. The case-law also brings out that several distinct types of issue have arisen, and that serves as a warning against over-simplication of this matter. These include the signicance of the indication of the nature of the dispute in the application; the question whether a new basis for the Courts jurisdiction may be introduced in later pleadings; the adequacy of the application to introduce the desired proceedings; and the issue of whether the pleadings, and more particularly the memorial, have modied the case beyond what is legitimate, given the indicative or tentative character of an application instituting proceedings.

33

There have been eleven instances of this since 1978: in 1994 Yugoslavia attempted to institute proceedings against member States of NATO; an initial application by Hungary against the Czech and Slovak Federal Republic in 1992 preceding the special agreement initiating the Gabckovo-Nagymaros Project case, four applications by Yugoslavia against States members of NATO in 1999, an application by Eritrea against Ethiopia in 1999; and two applications by the Democratic Republic of Congo against Burundi and Rwanda in 1999. In none of these cases was the unilateral invitation to accept the jurisdiction of the Court accepted. In the rst of these, the invitation led to a special agreement. In the Legality of the Use of Force cases (except those against Spain and the United States of America), there was another title of jurisdiction and the remaining eight cases proceeded to the next phase. France has twice accepted the jurisdiction in cases introduced this way Certain Criminal Proceedings in France case, ICJ Rep. 2003 102, 143 and Certain Questions of Mutual Resistance in Criminal Matters case, ICJ, Rep. 2006 15 November. Both those cases are pending.

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The rst of these issues, the signicance of the indication of the nature of the dispute in the application, rst arose in the Permanent Court. One preliminary objection in the Prince von Pless Administration (Preliminary Objections) case between Germany and Poland averred that no dispute existed between the parties. In that connection the Permanent Court said that to determine whether such a difference does or does not exist, it is necessary to determine what the subject of the dispute is. Under Article 40, it is the application that sets out the subject of the dispute. The memorial, although it may elucidate the terms of the application, must not go beyond the limits of the claim as set out in the application. Here the application had been followed by what was at the time called the case, which, with some additional documents, referred back to the application but did not, as required by Article 40, formulate the submissions of the applicant government. Dealing with that objection, the Court found that it was closely related to the merits, and joined it to the merits. The proceedings were later discontinued.34 The issue next arose in the Socit Commerciale de Belgique (Belgium v Greece) case. Here the application had been followed by a full set of written pleadings and then by two rounds of oral pleading by each side. In those pleadings, the character of the case had become transformed. In its judgment the Court rst considered whether the Statute and Rules authorized the parties to transform the character of the case as profoundly as the applicant had done here. In an important statement of principle the Court said:
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 [1936] Rules which provide that the Application must indicate the subject of the dispute. The Court has not hitherto had occasion to determine the limits of this liberty, but it is clear that the Court cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character.

The Court pointed out that a practice of that kind would be calculated to prejudice the interests of third States to which all applications must be communicated so that they could avail themselves of the right of intervention provided for in the Statute. Similarly, a complete change in the basis of the case submitted to the Court might affect the Courts jurisdiction.35

34

35

Ser. A/B 52 (1933). For the discontinuance, see A/B 59 (1933). In the Nuclear Tests cases, the Court stated that the application must be the point of reference for the consideration by the Court of the nature and existence of the dispute before it. ICJ Rep. 1974 at 160 (para. 24) and 463 (para. 24). Ser. A/B 78 (1938) at 173. Neither of those reasons is entirely convincing. The jurisdiction of the Court can be perfected by the doctrine of the forum prorogatum, and as seen, one of

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In the present Court, this issue arose in the Phosphate Lands in Nauru (Nauru v Australia) case. Referring to Article 40 of the Statute and Article 38 of the 1978 Rules, the Court stated that 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 and of the rst Rules of Court adopted in 1922. The judgment goes on to recall the two cases in the Permanent Court. On the facts it found that a claim of Nauru advanced for the rst time in the memorial was inadmissible inasmuch as it constitutes, both in form and in substance, a new claim, and the subject of the dispute originally submitted to the Court would be transformed if it entertained that claim.36 The question whether a new basis of jurisdiction may be introduced in the memorial arose in the Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) (Nicaragua v United States of America) case. On 9 April 1984 the applicant led an application, founding the jurisdiction on the declarations made under Article 36, paragraphs 2 and 5, of the Statute. On the same date the applicant led a request for the indication of provisional measures. In correspondence with the Court the respondent expressed its rm conviction that the Court lacked all jurisdiction to deal with this case and requested the removal of the case from the General List. The proceedings on the request for provisional measures had brought out the principal jurisdictional issues raised by the application, and both parties included a submission relating to the Courts jurisdiction. After the Court had indicated provisional measures, the parties agreed that the written pleadings should rst be addressed to the questions of jurisdiction and admissibility, the applicant ling the rst pleading. In that pleading the applicant introduced a new title of jurisdiction, namely a bilateral treaty in force between the two countries. It did this as a complementary title of jurisdiction. The respondent objected to this invocation of a jurisdictional basis not specied in the application. This issue was not argued in the oral proceedings. The applicants agent merely explained that in order to respect the Courts indications regarding the necessity to be as concise as possible, it had omitted from the oral phase a number of arguments that it had developed in the memorial, and it maintained this title as a subsidiary basis for the jurisdiction. On this point the Court said:

36

the factors inuencing the evolution of the Rules of Court was the desire to preserve that. The doctrine was in fact applied in this case, the respondent continuing to argue on the basis of the amended submissions. As for notice to third States, it is not impossible for an adequate procedure to be devised to ensure this. ICJ Rep. 1992, 240 at 266 (para. 69). For an example of a new claim submitted while the proceedings on the merits were suspended following the ling of preliminary objections, see the Interhandel case, ICJ Rep. 1959, at 20. The Court did not consider it in preliminary objection proceedings.

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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 satised 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 of the proceedings, and Article 38 of the Rules of Court therefore provides for these to be specied as far as possible in the application. An additional ground of jurisdiction may however be brought to the Courts attention later, and the Court may take it into account provided the Applicant makes it clear that it intends to proceed upon that basis . . . 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 . . . Both these conditions are satised in the present case.

There is, however, an important limitation on this. The Court had found that the declarations accepting the compulsory jurisdiction did not cover all the claims of the application, and for that reason it went on to examine the second title of jurisdiction invoked in the memorial.37 The Courts order in the Further Provisional Measures phase in the Application of the Genocide Convention (Bosnia & Herzegovina v Yugoslavia) case brings out that in principle this type of action is exceptional. Here the Court intimated that the applicant could not, simply by including in the application a reservation of the right to amend it, confer on itself a right to invoke additional grounds of jurisdiction not referred to in the application, and that the Court would if necessary at an appropriate stage determine the validity of any such claim. For the purposes of provisional measures the Court found that the additional titles of jurisdiction sought to be brought in could not be found to constitute prima facie titles of jurisdiction sufcient to support the indication of provisional measures.38 The present Court has had three instances of preliminary objections alleging non-compliance with Article 40 of the Statute and the applicable provision of the Rules. The rst case of this kind was the Northern Cameroons (Cameroon v United Kingdom) case. Here the formal preliminary objection was included in a counter-memorial that also pleaded to the merits. The Court made the following comment:

37 38

ICJ Rep. 1984, 169 (Provisional Measures), 209 (Procedure), 392 (Jurisdiction and Admissibility) at 426 (para. 80); ibid. 1986, 14 (Merits) at 136 (para. 271). ICJ Rep. 1993, at 338 (para. 28). In the judgment on preliminary objections the Court rejected claims based on those additional titles of jurisdiction. Reports, 1996II, 595 at 621 (para. 41). In two of the Legality of the Use of Force cases (Yugoslavia v Belgium and Yugoslavia v Netherlands) the applicant sought to introduce new titles of jurisdiction during the second round of speeches in the provisional measures phase. The Court refused to take the new titles of jurisdiction into consideration at that stage. Orders of 2 June 1999, para. 42 in each of those cases. ICJ Rep. 1999 124, 542.

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The Court notes that whilst under Article 40 of its Statute the subject of a dispute brought before the Court shall be indicated, Article 32 (2) of the [1946] Rules of Court requires 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. In the view of the Court the Applicant has sufciently complied with the provisions of Article 32 (2) of the Rules and the preliminary objection based upon non-compliance therewith is accordingly without substance.39

The next case of this character was the Border and Transborder Armed Actions (Nicaragua v Honduras) case. Here, in reply to the formal notication of the ling of the application the respondent informed the Court that in its view the Court had no jurisdiction over the dispute, and expressed the hope that the Court would conne the rst written pleadings to the questions of jurisdiction and admissibility. The parties agreed to this, the respondent to le the rst written pleading. In its judgment the Court recalled the applicants claims as stated in the application. On an objection that the application was vague and the allegations contained in it not properly particularized, the Court said:
Article 40, paragraph 1, of the Statute requires that an Application indicate the subject of the dispute. Under the [1978] Rules of Court, an Application is required to specify the precise nature of the claim, and in support thereof to give no more than a succinct statement of the facts and grounds on which the claim is based (Art. 38, para. 2). The Court considers that the Nicaraguan Application in the present case, summarized . . . above, meets these requirements.40

The third case in this series is Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) case. The written pleadings were led in the normal order, Nigeria ling preliminary objections under Article 79 of the (1978) Rules. While the written proceedings were in progress, the applicant led a request for the indication of provisional measures, on which the Court took the necessary action. One objection was to the effect that the application (and as far as relevant, an amendment to the application) and the memorial did not meet the required standards of adequacy as to the facts on which they were based, including the dates, circumstances and precise locations of the alleged incursions and incidents by Nigerian State organs. Those deciencies made it impossible for Nigeria to have the knowledge, to

39 40

ICJ Rep. 1963, 15 at p. 28. On other grounds the Court found that it was without jurisdiction in this case. ICJ Rep. 1988, at 92 (para. 56). The case was discontinued. Ibid. 1992, at 222.

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which it was entitled, of the circumstances said by the applicant to result in Nigerias international responsibility and consequential obligation to make reparation, and for the Court to carry out a fair and effective judicial examination of, or make a judicial determination on, the issues of State responsibility and reparation raised by Cameroon. On that ground, Nigeria asked for the application to be declared inadmissible. This was the sixth of a series of preliminary objections. In its judgment, the Court said:
The decision on Nigerias sixth preliminary objection hinges upon the question of whether the requirements which an application must meet and which are set out in Article 38, paragraph 2, of the Rules of Court are met in the present instance. The requirements set out in Article 38, paragraph 2, are that the Application shall specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based. The Court notes that succinct, in the ordinary meaning to be given to this term, does not mean complete and neither the context in which the term is used in Article 38, paragraph 2, of the Rules of Court nor the object and purpose of that provision indicate that it should be interpreted in that way. Article 38, paragraph 2, does therefore not preclude later additions to the statement of facts and grounds on which a claim is based. Nor does Article 38, paragraph 2, provide that the latitude of an applicant State, in developing what it has said in its application is strictly limited, as suggested by Nigeria. That conclusion cannot be inferred from the term succinct; nor can it be drawn from the Courts pronouncements on the importance of the point of time of the submission of the application as the critical date for the determination of its admissibility; these pronouncements do not refer to the content of applications . . . Nor would so narrow an interpretation correspond to the nding of the Court that [here follows a citation from the judgment in the Northern Cameroons case quoted above]. The Court also recalls that it has become an established practice for States submitting an application to the Court to reserve the right to present additional facts and legal considerations. The limit of the freedom to present such facts and considerations is that the result is not to transform the dispute brought before the Court by the application into another dispute which is different in character. . . . In this case Cameroon has not so transformed the dispute. As regards the meaning to be given to the term succinct, the Court would simply note that Cameroons Application contains a sufciently precise statement of the facts and grounds on which the Applicant bases its claim. That statement fulls the conditions laid down in Article 38, paragraph 2, and the Application is accordingly admissible. This observation does not, however, prejudge the question whether, taking account of the information submitted to the Court, the facts alleged by the Applicant are established or not, and whether the grounds it relies upon are founded or not. Those questions belong to the merits and may not be prejudged in this phase of the proceedings.

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The Court concluded its discussion of this objection by observing that it could not agree that the lack of sufcient clarity and completeness in the application and its inadequate character, as perceived by Nigeria, made it impossible for Nigeria to respond effectively to the allegations that had been presented or made it impossible for the Court ultimately to make a fair and effective determination in light of the arguments and evidence before it.41 This is the fullest discussion to date of the requirements of an application, and of the relation between the obligatory contents laid down in the Statute and the as far as possible requirements laid down in the Rules. It effectively summarizes and consolidates the law on this aspect of the Courts procedure. One further indication has to be mentioned here. In the two Nuclear Tests cases the Court proprio motu raised the question whether it could deal with the cases. In its judgments it included the following passage:
[T]he Court must ascertain the true object and purpose of the claim and in doing so it cannot conne itself to the ordinary meaning of the words used; it must take into account the Application as a whole, the arguments of the Applicant before the Court, the diplomatic changes brought to the Courts attention, and public statements made on behalf of the applicant Government. If these clearly circumscribe the object of the claim, the interpretation of the submissions must clearly be affected.42

That is the background against which the Courts decision in the Fisheries Jurisdiction (Spain v Canada) case can be evaluated. There the Court started by reafrming that there is no doubt that it is for the applicant, in its application, to present to the Court the dispute with which it wishes to seise the Court and to set out the claims that it is submitting to it. To identify its task in any proceedings by one State against another, the Court must begin by examining the application. If uncertainties or disagreements arise concerning the real subject of the dispute or the exact nature of the claims, the Court cannot be restricted to a consideration of the terms of the application alone or, more generally, can it regard itself as bound by the claims of the applicant. It is for the Court itself, while giving particular attention to the formulation of the dispute by the Applicant, to determine on an objective

41

42

ICJ Rep., 1998 at 275, 318 (paras. 98101). The Court rejected that objection by fteen votes to two, Judge Koroma and Judge ad hoc Ajibola dissenting. For the indication of provisional measures, see Reports, 1996 at 13. On 29 October 1998 Nigeria led a request for an interpretation of this part of the judgment. In its judgment the Court declared the request inadmissible. Ibid. 1999, 31. Nuclear Tests (Australia v France) case, ICJ Rep., 1974 at 263 (para. 30); (New Zealand v France) case, ibid. 467 (para. 31). Afrmed in Request for an Examination of the Situation in accordance with Paragraph 63 of the Courts Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case. ICJ Rep. 1995 at 304 (para. 56).

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basis the dispute dividing the parties, by examining the position of both parties. The Courts jurisprudence shows that it will not conne itself to the formulation by the applicant when determining the subject of the dispute. It will itself determine the real dispute submitted to it, basing itself not only on the application and nal submissions, but on diplomatic exchanges, public statements and other pertinent evidence. In deciding the preliminary issue of jurisdiction here, the Court will ascertain the dispute between Spain and Canada, taking account of Spains Application as well as the various written and oral pleadings placed before the Court by the Parties. The ling of the Application was occasioned by specic acts of Canada which Spain contends violated its rights under international law.43 * * * There is nothing extraordinary about the cases introduced by application in the Permanent Court. The experience then gained served to consolidate this new international practice and to normalize it. With the present Court, however, many important developments in the use of this procedure have taken place. These include:
Action to comply with a recommendation of the Security Council under Article 36, paragraph 3, of the Charter, jurisdiction being perfected by the acceptance of the respondent.44 The institution of proceedings by application where the title of jurisdiction is a framework agreement that recognizes the existence of a dispute but does not dene it.45 The urgent seising of the Court to provide a basis for a request for provisional measures to prevent possible action being taken against the applicant by the respondent or to foreclose action by the respondent.46 The urgent seising of the Court to provide a basis for a request for provisional measures designed to obtain a reinterpretation of a resolution of the Security Council assertedly unfavourable to the applicant.47

43 44

45

46

47

Judgment, paras. 29 ff. Corfu Channel (United Kingdom v Albania) case (1947). The application was subsequently replaced by the special agreement which incorporated a possible counter-claim by the respondent. The Asylum case (Colombia v Peru) case (1949); the Arbitral Award of the King of Spain (Honduras v Nicaragua) case (1958); and above all the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case (1991). Military and Paramilitary Activities in and against Nicaragua case (1984); the Great Belt (Finland v Denmark) case (1991); Application of the 1971 Montreal Convention (Libya v U.K., Libya v U.S.A.) cases (1992). Application of the Genocide Convention (Bosnia & Herzegovina v. Yugoslavia) case (1993).

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Urgent seising of the Court in a case of diplomatic protection, to avoid enforcement of the death penalty against a national of the applicant State.48 To institute forum prorogatum proceedings when there is no title of jurisdiction, the respondent being invited to confer jurisdiction on the Court for that particular case.49 Two sets of rulings by the present Court have given impetus to the application as an instrument instituting proceedings, one general, and one specically relating to applications introducing proceedings where the jurisdiction rests on Article 36, paragraph 2 of the Statute. The rst set of rulings lay down that there is no abuse of rights in ling an application without giving any prior notice to the respondent, and, in parallel, that there is no rule of general international law requiring the unilateral introduction of proceedings to be preceded by diplomatic negotiations. The law on this aspect has been summarized in the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) case:
The Court . . . notes that although the principle of good faith is one of the basic principles governing the creation and performance of legal obligations . . . it is not in itself a source of obligation where none would otherwise exist . . . There is no specic obligation in international law for States to inform other States party to the Statute that they intend to subscribe or have subscribed to the Optional Clause. Consequently, Cameroon was not bound to inform Nigeria that it intended to subscribe or had subscribed to the Optional Clause . . . Cameroon was not bound to inform Nigeria of its intention to bring proceedings before the Court. In the absence of any such obligations and of any infringement of Nigerias corresponding rights, Nigeria may not justiably rely upon the principle of good faith in support of its [objection to the jurisdiction].50

This is closely related to the Courts doctrine on the entry into force and immediate effect of the deposit of a declaration accepting the jurisdiction under Article 36, paragraph 2. That ruling was rst made in the Right of Passage (Preliminary Objections) case. Basing itself on the wording of Article 36, paragraph 4, of the Statute, a new provision inserted in 1945, the Court held that a declaration enters into force immediately on its deposit with the Secretary-General of the United Nations, and that proceedings can from that

48

49 50

Vienna Convention on Consular Relations (Provisional Measures) (Paraguay v U.S.A.) case, ICJ Rep. 1998 at 248; discontinued at p. 246. LaGrand (Provisional Measures) (Germany v U.S.A.) case, ibid. 1999 at 9. See notes 7 and 33 above. Judgment (cited) at 297 (para. 39). The initial quotation is from the Border and Transborder Armed Actions case, note 40 above at 105 (para. 94).

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moment be brought against any other State that is a party to the Optional Clause even before that State knew, or could have known, that the applicant State had deposited a declaration or what it contained. A State accepting the jurisdiction of the Court must expect that an Application may be led against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance.51 Although made in connection with declarations accepting the jurisdiction under Article 36, paragraph 2, of the Statute, there is no reason why the same rule should not apply where the jurisdiction is based on a treaty under Article 36, paragraph 1. Jurisdiction will exist as between the parties to the treaty as from the moment the treaty enters into force between them. This follows from the general law of treaties.52 * * * The legislative history of the relevant provisions of the Statute and the caselaw of the Permanent Court of International Justice and of the present Court show that both Courts repeatedly have closely analysed the dispute before them and based their decisions on their own appreciation of what it was that they had to decide. Furthermore, this appears as an inherent power of any international court, which probably would be unable to function properly were it otherwise. Usually, when this kind of issue has arisen, the Court had before it some account of the merits, whether in a provisional form as in requests for the indication of provisional measures of protection, or after formal preliminary objection proceedings, or even both. The signicance of the Spain v. Canada case is that this was the rst occasion when the respondent instantly and peremptorily challenged the denition of the dispute furnished by the applicant in the application instituting the proceedings, and the Court dealt with the issue without having a memorial on the facts before it. The unilateral application instituting proceedings has now become a powerful instrument with many spheres of operation. Beginning proceedings by ling an application brings two factors into play, requiring the Court to effect any reconciliation between them should that become necessary. Since an application is an instrument designed to enable the proceedings to commence, and little more than that, much that it contains is tentative, indica-

51

52

Right of Passage (Preliminary Objections) case, ICJ Rep. 1957 at 146; deliberately upheld in the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) case, cited in previous note, at para. 39. Most multilateral treaties provide for a time lag between the date on which the required number of parties is reached and the entry into force of the treaty or between the later deposit of an instrument of accession and the entry into force of the treaty for that State. For the entry into force of a treaty, cf. the Vienna Convention on the Law of Treaties, 1969, art. 24. 1155 UNTS 331.

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tive, and is written as far as possible. There are circumstances in which the application is prepared and led as a matter of urgency, without full exposition of the elements that it is required to indicate or specify, and merely gives the respondent (and the Court) an idea of what the case is about. It is unilateral, and indeed technically it is not even regarded as a document of the proceedings. It is given wide circulation, in fact it is virtually in the public domain from the moment it is led. The second element is the evolution of the case through the written proceedings. The applicant may, in its rst written pleading, amplify the unilateral indication of the dispute of the application. However, often only after the issues have been joined by the respondents rst pleading can the real nature of the dispute be clearly seen. The parties can come to agree on what are the real issues for decision to bring the dispute to an end. However, if they cannot do this, then the Court has to step in and decide itself what are the real issues calling for its decision. The nature of an application, and its relation to the proceedings that follow, make this an essential and inherent power of the Court.53 A fortiori is this so when the parties agree that the rst written pleadings should address issues of jurisdiction and admissibility, especially when they also agree that the applicant, not the respondent, should le the rst pleading.

53

Circumstances can arise when the Court has to examine the nature of a dispute submitted to it by the ling of a special agreement. For example, in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) case, the Chamber that decided the case found it necessary to interpret its task under the special agreement. ICJ Rep. 1992, at p. 570 (para. 355). In the Territorial Dispute between Libya and Chad the parties disagreed as to the nature of the dispute. The Court found that it could answer the question put to it without determining that point. Ibid. 1994 at 14 (para. 18) and p. 38 (para. 75). Since there the Court was interpreting and applying the special agreement, it is not clear why it cited this case in the Spain v. Canada case (at para. 29). In the Kasikili/Sedudu Island case, the Court made its own determination of what it termed the real dispute between the Parties and proceeded to decide the dispute on that basis. ICJ Rep. 1999II, 1045, 1062 (para. 27).

11
THE GENERAL LIST OF THE INTERNATIONAL COURT OF JUSTICE

The question of the General List of the International Court of Justice, not as a technical administrative matter but as a legal issue, has recently come into prominence. Its development is examined in this article.1 I There is no mention of the General List in the Statute of the Court. Its legal signicance is partly the outcome of successive versions of the Rules of Court, and partly originated in State practice in connection with the discontinuance of a case. More recently the presence of an unwilling respondent in a case has added a new dimension in connection with objections to the admissibility of an application or possibly to the jurisdiction of the Court. The original organization of the Permanent Court as expressed in the Rules of 1922 was that the Court would meet in sessions each year, and that the Registry would maintain separate lists of contentious and advisory cases submitted to the Court, together with lists for each session (Rules of 1922/ 1926/1931, Article 23). This required the Registrar to maintain the archives in accordance with the arrangements laid down; and on the matter examined here required each case to have a le number (numro de dossier). Other provisions dealt with the session lists and related matters. The concept of the General List was introduced in Article 38 of the Rules of 1931. This required that:

The Rules of Court to which reference is made are as follows: Permanent Court of International Justice [PCIJ] Rules of 24 March 1922, International Intermediary Institute, The Hague (1922); Rules of 31 July 1926, PCIJ, Ser. D 1 (1926); Rules of 21 February 1931, PCIJ, Ser. D 1 (2nd edition); Rules of 11 March 1936, PCIJ, Ser. D 1 (4th edition, 1940): International Court of Justice [ICJ] Rules of 6 May 1946, ICJ, Acts and Documents concerning the Organization of the Court, No. 1 (2nd edition, 1947); Rules of 10 May 1972, ibid., No. 3 (1977); Rules of 14 April 1978, ibid., No. 5 (1989). The 1946, 1972 and 1978 Rules of the International Court of Justice are reproduced in my compilation Documents on the International Court of Justice, First Bilingual Edition (1991).

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The general list of cases submitted to the Court for decision or for advisory opinion shall be prepared and kept up to date by the Registrar on the instructions of and subject to the authority of the President. Cases shall be entered in the list and numbered successively according to the date of the receipt of the document submitting the case to the Court.

This was introduced on the proposal of Judge Fromageot who explained that his object in proposing the creation of a General List was to prevent it being possible to give one case preference over another which had been entered higher in the List.2 The General List existed alongside the session lists. No further consequences were included in the 1931 revision of the Rules. In 1936, Article 25 of the new Rules introduced the concept of the judicial year (lanne judiciaire) in place of sessions. Article 38 of the 1931 Rules was retained as Article 20, with drafting amendments. The session lists were abolished, and in their place Article 20, paragraph 2, set out 20 headings which the General List was to contain. Heading III was the date of registration; heading XVII was the result (nature and date), and heading XIX removal from list (cause and date). Paragraph 3 required the General List to contain a space for notes, if any, and spaces for the inscription, above the initials of the President and of the Registrar, of the dates of the entry of the case, of its result, or of its removal from the list, as the case may be. At the same time, one of the functions of the General List was indicated in Article 46:
1. Subject to the priority resulting from Article 61 of the present Rules [relating to provisional measures of protection], cases submitted to the Court will be taken in the order in which they become ready for hearing. When several cases are ready for hearing, the order in which they shall be taken is determined by the position which they occupy in the General List. 2. Nevertheless, the Court may, in special circumstances, decide to take a case in priority to other cases which are ready for hearing, and which precede it in the General List. 3. If the parties to a case which is ready for hearing are agreed in asking for the case to be put after other cases which are ready for hearing and which follow in the General List, the President may grant an adjournment: if the parties are not in agreement, the President decides whether or not to submit the question to the Court.

This arrangement was retained as Articles 20 and 46 of the Rules of 1946 and Articles 20 and 50 of the Rules of 1972. In 1978, however, the Rules were changed completely. The previous Article 20 was replaced by Article 16, paragraph 1, which sets out in general terms the functions of the Registrar. Subparagraph 1(b) requires the Registrar to

PCIJ, Ser. D 2, Addendum 2 96 (1931).

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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. This replaces the 20 headings of the previous Rules. That provision has to be read in conjunction with Article 14 of the Instructions for the Registry.3 By this,
. . . Any failure to conform to the directions of the Statute or Rules which may be noted by him [the Registrar] in a document instituting proceedings or in a pleading will be brought by him to the notice of the party or person from whom, the document emanates.

This is an independent and autonomous power of the Registrar from which there is no appeal, and his decision holds until the Court takes the matter under its consideration. So far as is known, the Registrar has used this power only once to refuse to accept a document purporting to be an application instituting proceedings. In a letter of 18 February 1994 he informed the Government of Yugoslavia that
In exercise of my duty under the Statute and Rules of Court, I have carefully examined [a communication incorporating an application instituting proceedings against the member States of NATO] from the standpoint of formal compliance with the procedural requirements laid down by those texts. With regret I have to inform you that I am unable to regard your communication as constituting an application justifying action by me under Article 40 of the Statute and Article 38 of the Rules of Court . . . I observe that no indication at all is given in your communication of any legal grounds of jurisdiction whatever; nor is any claim presented, as distinct from a request for the indication of provisional measures. Nor can the communication be accepted as a request, formally valid, for the indication of provisional measures . . . [N]o case exists until an application, formally valid, has been led instituting proceedings.

He therefore did not propose taking any further action on that communication.4 At the same time, former Article 46 was completely recast. The date for oral proceedings is to be xed by the Court or by the President if the Court is not sitting; and the Court is to have regard for the priority required for cases of provisional measures of protection and to any other special circumstances, including the urgency of a particular case. There is no provision in the 1978 Rules dealing specically with the contingency that several cases

Yearbook of the International Court of Justice 19461947, p. 66, amended ibid. 19491950, p. 74. Reproduced in my compilation of Documents, note 1 above, at 453. Art. 16 of the Instructions for the Registry of the Permanent Court were identical in this respect. See M.O. Hudson, The Permanent Court of International Justice 19221942 at 762 (1943). M. Bulaji,c, Alternative Yugoslavia Tribunal 209 (1995).

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should be ready for hearing at the same time. Under general principle this should probably be a matter for the full Court, the decision to be taken in light not only of the dates upon which the different cases became ready for hearing, but also of their places in the General List, and subject to the priorities to be given to other cases under the Statute or other Rules of Court. There is no explanation why the Court cancelled the objective criterion for the taking of cases when more than one is ready for hearing at a given moment.5 The Rules of Court are supplemented by the Instructions for the Registry. For present purpose it is sufcient to refer to the current Instructions, those issued in 1946 and still in force. Article 6 requires the Registrar in accordance with the relevant provision of the Rules to prepare and keep up to date the General List of cases submitted to the Court for judgment or advisory opinion. Article 46, on the archives, prescribes in paragraph 3 that the archives will contain the General List of cases, and that in case of doubt the Registrar will decide in which le a document shall be placed. That is all. II With regard to the termination of proceedings, in the Rules of 1936 Article 68, dealing with agreement to discontinue the proceedings, provides that the order recording the conclusion of the settlement or the discontinuance of the proceedings will prescribe the removal of the case from the list. A similar provision appears in Article 69, paragraph 1, on the unilateral discontinuance of a case instituted by application. This has been repeated in Articles 68 and 69 of the Rules of 1946, Articles 73 and 74 of the Rules of 1972, and Articles 88 and 89 of the Rules of 1978. It seems that the origin of this addition was a remark by Judge Fromageot, to the effect that there was no indication of how the discontinuance (in either case) was to be done. The record goes on to report his remark that this was normally done by way of order. It would be a good thing to say so in the Rules, adding that the Court would order the case to be struck out of the

This contingency occurred in January 1996. On 31 December 1995 the following cases were ready for hearing, their position in the General List and the date on which they became ready for hearing being indicated: Aerial Incident of 3 July 1999 case (No. 79, 9 September 1992 hearings had been xed for this case in September 1994, but were suspended at the request of both parties in their attempt to settle the case); Oil Platforms case (No. 90, 1 July 1994); Gabckovo-Nagymaros Project case (No. 92, 20 June 1995); Application of Genocide Convention case (No. 91, 14 November 1995); Application of the Montreal Convention of 1971 cases (Nos. 88, 89, 22 December 1995) an unprecedented pile-up. For comment on this, see the judgment on the merits in the Application of the Genocide Convention case, ICJ Rep. 26 February 2007, para. 38.

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list.6 A vote was taken on the question of the removal of the case from the list, and the proposal was adopted unanimously.7 No further explanation was given for this addition. In fact that had been the practice of the Court in all cases of agreed termination or unilateral discontinuance of a case, with one exception.8 The rst instance of this was when the applicant (Belgium) requested the removal of the case from the List when it discontinued the Denunciation of the Treaty of 2 November 1865 between China and Belgium case, and the order of the Permanent Court included an appropriate operative paragraph.9 The Permanent Court included such a paragraph even when it had not been directly requested.10 III The versions of the Rules of 1936/1946/1972 do nothing to affect the administrative quality of the General List or its function in relation to the determination of the order in which cases ready for hearing shall be taken. They establish that a folio is opened with the receipt in the Registry of a document instituting proceedings, and is closed either by the termination of the proceedings through a judgment or an advisory opinion, or by an order in an instance of termination by agreement or unilateral discontinuance. While the opening of the folio is a matter for the Registrar, acting under the authority of the President (and subject to the Registrars power under the Instructions for the Registry), its closing is always a matter for the Court or, in the case of discontinuance, its President if the Court is not sitting. No question about the entering of a case in the General List appears to have arisen until 1973. In the 1950s eight cases were introduced by appli6 7 8

10

PCIJ, Ser. D 2, Add.3, p. 313 (meeting of 22 February 1935). Ibid. 317. The exception was the rst order terminating a case by agreement, in the Chorzw Factory case, PCIJ, Ser. A 18/19 at 13. Here the Court simply declared that the proceedings are terminated. That this differentiation was deliberate in a case terminated by agreement is demonstrated by the fact that this order was made on the same day 25 May 1929 as the order in the Belgium-China case mentioned in the next note. PCIJ, Ser. A 18 (1929). Followed by the Permanent Court at the request of one or both parties in Delimitation of the Territorial Waters between the Island of Castellorizo and the Coasts of Anatolia case, PCIJ, Ser. A/B 51 (1933); Appeals from Certain Judgments of the HungarianCzechoslovak Mixed Arbitral Tribunal case. PCIJ, Ser. A/B 56 (1933). Polish Agrarian Reform case, PCIJ, Ser. A/B 60 (1933). In the Borchgrave case, under the Rules of 1936, the Court included in its recitals a statement to the effect that under Art. 68 of the Rules, if the parties inform the Court in writing that they are not going on with the proceedings, it is for the Court to make an order ofcially recording the discontinuance of the case and prescribing the removal of the case from the list. This was followed by a formal operative clause ordering the case to be removed from the Courts list. PCIJ, Ser. A/B 78 (1938).

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cation on the basis of the so-called forum prorogatum doctrine. By that, in the application instituting the proceedings the respondent is invited to accept the jurisdiction of the Court for the particular case. If the respondent refuses, that is the end of the matter. Those applications were entered in the General List like all other instruments instituting proceedings, and when the invitations to accept the jurisdiction were refused, the Court made orders directing the removal of the cases from the General List.11 The rst indication that an entry in the General List could play a legal role in a case occurred in 1973. On receipt of the applications instituting the proceedings in the Nuclear Tests cases of that year (heard under the Rules of 1972, and duly entered in the List), the unwilling respondent, France, contesting the jurisdiction of the Court, informed the Court that in its view the Court was manifestly not competent in the case, that it could not accept the Courts jurisdiction, and that accordingly the French Government did not intend to appoint an agent. France requested the Court to remove the Case from its list. Opening the hearings on the request for the indication of provisional measures of protection, the President (Lachs) stated that the French request to remove the case from the List had been duly noted and the Court will deal with it in due course, in application of Article 36, paragraph 6, of the Statute.12 In its orders indicating provisional measures of protection the Court rst found that the material submitted by the applicants appeared prima facie to afford a basis on which the Courts jurisdiction might be founded, and that accordingly the Court would proceed to examine the requests for the indication of provisional measures of protection. It went on to decide that the circumstances of the case did not permit the Court to accede at the present stage of the proceedings to the French request that the case be removed from the list.13 None of the individual (separate or dissenting) opinions attached to those orders refer to this aspect. In those orders, the Court required the issues of jurisdiction and admissibility to be pleaded rst. In its 1974 judgments, the Court referred to the Presidents statement when opening the hearings in the provisional measures phase, and to the cited paragraphs of those orders, and concluded: Having now had the opportunity of examining the request in the light of the sub-

11

12

13

Treatment in Hungary of Aircraft and Crew of United States of America (U.S.A. v Hungary; U.S.A. v USSR), ICJ Rep. 1954, 99 and 103; Aerial Incident of 10 March 1953 (U.S.A. v USSR), 1956 ibid., 5; Aerial Incident of 7 October 1952 (U.S.A. v USSR), ibid. 9; Antarctica (U.K. v Argentina; U.K. v Chile), ibid., 12 and 15; Aerial Incident of 4 September 1954 (U.S.A. v USSR), 1958 ibid., 158; Aerial Incident of 7 November 1954 (U.S.A. v USSR), 1959 ibid. 276. Nuclear Tests cases, I Pleadings 165 (Australia) and II ibid. 99 (New Zealand). Recited in the judgments in these case, ICJ Rep. 1974. at 257 (para. 14) (Australia) and 460 (para. 14) (New Zealand). ICJ Rep. 1973 at 102 (para. 17), 105 (para. 32) and 138 (para. 18), 141 (para. 33).

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sequent proceedings, the Court nds that the present case is not one in which the procedure of summary removal from the list would be appropriate.14 This statement does not throw much light on when it would be appropriate for the Court summarily to remove a case from the list: the only instances of this in the past had been cases in which there was manifestly no jurisdiction, which was not the situation here. As in the case of the orders indicating provisional measures, none of the individual (separate or dissenting) opinions joined to the judgment in the next phase deal with this aspect, except for a glancing reference to it by Judge ad hoc Barwick in his dissent.15 Two years later, in the Aegean Sea Continental Shelf case, Turkey, the unwilling respondent, asked the Court to remove the case from the list on the ground that there was no jurisdiction. As before, in the phase of provisional measures of protection the Court stated that having regard to what had proceeded in the order of 11 September 1976, the Court cannot, at the present stage of the proceedings, accede to the request of the Turkish Government . . . that the case be removed from the list.16 Judge Tarazi, in his separate opinion, gave an interpretation of that request: [it] denied the Courts right he said to pronounce upon the Application by Greece or even to discuss it. Judge Tarazi continued with the following explanation of the Courts decision:
The request that the case be removed from the Courts list could not be acceded to in the present circumstances. According to the consistent jurisprudence of the Court, such removal is decided only in the event that the applicant State does not invoke in support of its Application any legal instrument conferring jurisdiction on the Court but contents itself with leaving the respondent State the possibility of expressing its assent to the proceedings. If, on the other hand, the respondent State responds in the negative, by indicating its refusal to recognize the Courts jurisdiction, the Court orders the case to be removed from its list. Such in my view are the signicance and legal scope of the Orders [referred to in note 11 above]. It is clear that this situation is different in respect of the present case. That is why the Court has not decided to remove it from its list and has reserved its position on the question of jurisdiction for later consideration.17

Turkey also introduced a more openly political element in an informal communication to the Court in connection with that case. In one of its communications to Greece, the Turkish Government stated that the discontinuance
14 15

16 17

ICJ Rep. 1974, at 257 (para. 14) (Australia) and 460 (para. 14) (New Zealand). ICJ Rep. 1974, at 400. In addition, see Sir Garelds very personal account of his participation in those cases, in his A Radical Tory: Gareld Barwicks Reections and Recollections 254 (1995). ICJ Rep. 1976, at 13 (para. 46). ICJ Rep. 1976, at 31 and 32.

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of the proceedings and the removal of the case from the Courts list would be more conducive to the creation of a favourable political climate for an agreed settlement. The Court interpreted this as suggesting that the Court ought not to proceed with the case while the parties continue to negotiate, and that the existence of active negotiations in progress constitutes an impediment to the Courts exercise of jurisdiction in the present case.18 This is a statement of principle which the Court limited to the present case, in which it found that it was without jurisdiction. In 1978 the Court introduced a new provision into the Rules of Court. Dealing with the institution of proceedings by unilateral application, Article 38, paragraph 5, reads:
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 [the application] 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 Courts jurisdiction for the purposes of the case.

By including this in the revised Rules, the Court adopted Judge Tarazis interpretation of the implications of a request by the respondent for the case to be removed from the list. An authoritative comment on that provision suggests that the previous procedure, of entering that type of case in the list was inconvenient. Cases which had no chance of being examined on their substance were entered on the list. In these cases the respondent was ofcially cited by its opponent without there being any basis for such action. Paragraph 5 remedies that situation.19 The issue was raised again by the unwilling respondent in the Military and Paramilitary Activities in and against Nicaragua case, in a slightly different form. Here, in acknowledging receipt of the application instituting the proceedings the United States indicated its rm conviction that the Court was without jurisdiction and requested the Court to remove the case from the list. A few days later the United States brought to the Courts notice further information which in its view established that the instruments relied upon by Nicaragua could not serve as a basis of jurisdiction, and requested

18 19

ICJ Rep. 1976 at 12. La procdure ainsi suivie ntait pas sans inconvnient: on inscrivait au rle de la Cour des affaires qui navaient, en fait, aucune chance dtre examine au fond; le dfendeur ventuel, dautre part, napprciait gure dtre mis en cause ofciellement, alors quaucun fondement juridique ne pouvait tre invoqu pour justier une telle dmarche de son adversaire. Cest cette situation que le 5 de larticle 38 entend porter remde. G. Guyomar, Commentaire du rglement de la Cour internationale de Justice, Adopt le 14 avril 1978 246 (1983). See also G. Wegen, Vergleich und Klagerckname im internationalen Proze especially at 159 (1987).

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the Court to take an immediate decision which will preclude any further proceedings. The next day the Court, taking into account some observations received from Nicaragua, decided that it then had no sufcient basis for acceding to that request or the earlier request for removal of the case from the list.20 The hearings on the request for provisional measures then followed. In the operative clause of the order indicating provisional measures the Court unanimously rejected the request the case be terminated by the removal of the case from the list the most far-reaching pronouncement on this issue by the Court to date.21 This case conrms the previous interpretation placed upon the Courts practice before the adoption of the 1978 Rule, and the interpretation given to that Rule. New light was thrown on the signicance of the General List in 1995, in connection with the New Zealands application for examination of the situation arising out of Frances underwater nuclear tests in the Pacic region, in light of the 1974 judgment. The Registrar did not immediately enter this request on the General List.22 On receipt of the request for examination, together with New Zealands request for further provisional measures, France replied on 28 August 1995 that France considered that the Court manifestly lacked jurisdiction and that France could not accept jurisdiction in this case. Consequently the choice of an ad hoc judge did not arise any more than that of the indication of provisional measures of protection. The message continued:
Hence, in its view, the action of New Zealand cannot properly be the object of an entry in the General List, pursuant to the provisions of Article 38, paragraph 5, of the Rules.

At the same time France agreed to be represented at a meeting with the President (Bedjaoui) by the Director of Legal Affairs of its Ministry for Foreign Affairs who was not designated agent in informal proceedings limited to the question of whether the New Zealand requests fell within the provisions of a cited paragraph from the 1974 judgment in the Nuclear Tests case between New Zealand and France. That meeting took place on 30 August, and it was agreed that each party would submit to the Court what was termed an

20 21

22

ICJ Rep. 1984 at 172 (para. 6), repeated at 175 (para. 15). Ibid. 186. To some extent Judge Schwebel at rst sight thought that the United States request to strike the application from the List appeared to be justied were it not for some other facts which did not come sufciently to light in the course of the oral proceedings (p. 201). He found in those facts sufcient at that stage to provide the Court with a possible basis of jurisdiction, and therefore did not nd it possible to vote to strike the application from the list (p. 204). In fact there were two issues regarding the General List. One was whether the Court had been seised of a case at all; the second was, if it had been seised of a case, was it a continuation of the 1974 case (General List No. 59) or a new case.

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Aide-Mmoire on certain procedural points, to be followed by a hearing at which each party would be given equal speaking-time. In its aide-mmoire France reiterated its view that the application could not be entered in the General List. It pointed out that in the cases mentioned in note 11 above, the Court had made use of its power of administration and by means of orders delivered without hearings and without the parties having been invited to take any procedural steps, had decided to remove them from the list. That was under the Rules of 1946. There was no difference under the later Rules: whether a case manifestly not lying within the jurisdiction of the Court has been removed from the List or not entered in it, no procedural steps can be taken (paras. 31, 32). The issue of the entry in the General List occupied a prominent place in the hearings on 12 and 13 September 1995. Opening the hearing, the President referred to the aides-mmoire and stated that they conrmed that the parties held radically different views on the preliminary and fundamental issue whether, in the absence of an act expressly recognized by the Statute as capable of instituting proceedings, the Court is, in the circumstances, seised of a case.23 Each side argued the matter in depth. In its order of 22 September the Court, after reciting the procedural developments and the principal contentions of the parties included the following paragraph:
Whereas New Zealand has submitted a Request for an Examination of the Situation under paragraph 63 of the Judgment delivered by the Court on 20 December 1974 in the Nuclear Tests Case (New Zealand v. France); whereas such a request, even if it is disputed in limine whether it fulls the conditions set forth in that paragraph, must nonetheless be the object of an entry in the General List of the Court for the sole purpose of enabling the latter to determine whether those conditions are fullled; and whereas, consequently, the Court has instructed the Registrar, pursuant to Article 26, paragraph 1(b) of its Rules, to enter that Request in the General List[.]

At the end of that order the Court wrote:


Whereas, as indicated in paragraph 44 above, the Request for Examination of the Situation submitted by New Zealand in accordance with paragraph 63 of the 1974 Judgment has been entered in the General List for the sole purpose of allowing the Court to determine whether the conditions laid down in that text have been fullled in the present case; and whereas following the present Order, the Court has instructed the Registrar, acting pursuant to Article 26, paragraph 1(b), of the Rules, to remove that request from the General List as from 22 September 1995[.]

Accordingly, the case was entered in the General List under a new number, No. 97.24 The question whether the case should be entered in the General

23 24

CR 95/19, 11 September 1995, 13 (uncorrected translation by the Registry). ICJ Rep. 1995, 302, 306 (paras. 44 and 66). It is interesting to note that Vice-President

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List or not was rst discussed in the written communications to the Court. It was later argued in the hearings, and it is clear that the Court in the course of its deliberations decided on the entry in the General List in the course of its deliberations. It dealt with the matter somewhat extensively in the two passages recited above. No reference to this aspect of the case appears in any of the individual opinions joined to the order. One of the implications of this is that before any decision can be given on a pre-judicial question of whether the Court has been seised of a case, even if some sort of written and oral exchanges have taken place, an appropriate entry has to be made in the General List. On the other hand, the fact that such an entry is made has no effect whatsoever on the basic question of whether the Court is seised of a case or not or whether it has jurisdiction. A fuller discussion of the issue took place in the Preliminary Objections phase of the eight cases on the Legality of Use of Force that survived the initial provisional measures phase in 1999. In the course of the provisional measures proceedings France, Italy and Spain each requested the removal of the case from the General List. At that stage the Court concluded that its negative ndings on the question of prima facie jurisdiction to indicate provisional measures of protection in no way prejudged the question of its jurisdiction to deal with the merits or any question relating to the admissibility of the application or relating to the merits themselves and left unaffected the parties right to submit arguments in respect of those questions.25 In the preliminary objections phase of all eight cases that remained the Court commenced its judgments by dealing with what it termed a preliminary question. It dened that question as whether the Court should reject the applicant States claims in limine litis by removing the cases from the List, by a prepreliminary or summary decision in each case nding that there is no subsisting dispute or that the Court either has no jurisdiction or is not called upon to give a decision on the claims; or by declining to exercise jurisdiction. This led the Court to a detailed and rened examination of the precise procedural position (in unusual circumstances) of the applicant and its principal contentions as they stood at that stage. This part of the judgments is intimately connected with the particular facts of that case and with the law and practice of the discontinuance of a case. It does not raise questions of principle in so far as concerns the General List, beyond its implication

25

Schwebel, who in his declaration pointedly listed most of the actions taken by the Court to reach the conclusion that the Court had conducted oral hearings on a phase of a case, did not mention the entry in the General List. ICJ Rep. 1999I, 363, 373 (para. 33) and equivalent passage in the orders in the cases against Italy and Spain. The Court later explained that by declining to remove a case from the List it simply reserved the right fully to examine further the issue of jurisdiction. Armed Activities in the Territory of the Congo (Rwanda) (New Application), ICJ Rep. 2006, 3 February (para. 25).

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that a request for removal from the List is in law a request to dismiss the case in limine litis. If such a request is presented before the counter-memorial (as it should be), it is a form of preliminary objection. This examination in turn led the Court to its major conclusion that it could not remove the eight cases from the List, or take any decision putting an end to the cases in limine litis. In the present phase of the proceedings it must proceed to examine the titles of jurisdiction asserted by the applicant and the objections advanced by the respondents and give its decision with respect to jurisdiction. After detailed examination of the status of Yugoslavia in relation to the Charter of the United Nations and the Statute of the Court, the Court concluded that the applicant did not, at the time of the institution of the proceedings, have access to the Court under Article 35 of the Statute, and that made it unnecessary for the Court to consider the other preliminary objections that had been led.26 In one sense, the initial hesitation of the Registrar regarding the entry in the General List follows the general line established by the Court when it introduced Article 38, paragraph 5, into the Rules in 1978 incidentally, a provision to which no reference is made in the order, although it was cited in the pleadings. There is really nothing unusual about this. Most if not all courts have what is sometimes known as a cause list simply a list of cases on the tribunals agenda, whether immediate or long-term, without any further implication. The case law of the Court on this seemingly technical and administrative matter establishes that for the International Court of Justice, the General List is nothing more than an indication of its agenda, without any presumption, one way or the other, as to what the decision will be.27

26

27

ICJ Rep. 2004, 25 December (paras. 26 to 44) and equivalent passages in all the other judgments of that date. These judgments deal principally with the unprecedented issue of whether the applicant was or was not a party to the Statute of the Court at the time of the institution of the proceedings. The Court answered that question in the negative and found that it had no jurisdiction to entertain the claims. For those cases see ICJ Rep. 2004 279 (Belgium), 429 (Canada), 575 (France), 720 (Germany), 865 (Italy), 1011 (Netherlands), 1160 (Portugal), 1307 (United Kingdom). The General List used to be published in the Courts Yearbook. This practice was stopped in Yearbook 19641965. No explanation for this is furnished. However, the Yearbook 19641965 states that extracts from the General List are supplied by the Registry on request (p. 92). The current issue of that publication is ambiguous. It states that extracts from the General List are supplied by the Registry on request in the form of Background Notes II and II bis: Synopsis of cases referred to the International Court of Justice (19471969 and 19691976). Yearbook 20022003 at 205. The same publication states that the General List is prepared and kept up to date by the Registrar in accordance with Arts. 28, para. 1(b) and 38, para. 5, of the Rules of Court and Arts. 6, para. 1 and 46, para. 3, of the Instructions for the Registry.

12
THE SECRETARY-GENERAL OF THE UNITED NATIONS AND THE INTERNATIONAL COURT OF JUSTICE

I Since the inauguration of the present International Court of Justice in April, 1946, the Court has received 23 requests for advisory opinions. Of these, 14 emanated from the General Assembly, one from the Security Council, one from the Economic and Social Council, three from the Committee on Applications for Review of Administrative Tribunal Judgments (in existence between 1955 and 1995),1 two from the World Health Organization, and one each from UNESCO and the International Maritime Organization, formerly known as the Inter-governmental Maritime Consultative Organization. This article will draw attention to the principal features which the SecretaryGeneral of the United Nations and the Directors-General of the two specialized agencies concerned, assisted by their legal advisers, have developed in relation to the requests originating in the organs of the United Nations, of the World Health Organization, and in IMCO. Article 104 of the Rules of the International Court of Justice of 19782 requires that all requests for advisory opinions shall be transmitted to the Court by the Secretary-General of the United Nations or, as the case may be, the chief administrative ofcer of the body authorized to make the request. That completes Article 65, paragraph 2, of the Statute of the Court, by which the request for an advisory opinion is to be accompanied by all documents likely to throw light upon the question. That is the point of departure. In advisory proceedings the Secretary-General3 has come to occupy a special amicus curiae role, one which may in due course come to have a deeper

1 2

These three advisory proceedings are not considered in this article. Art. 104 corresponds to Art. 88 of the Rules of 1972, a new provision introduced then. Further, see my III The Law and Practice of the International Court 192020054 [hereafter Law and Practice] 1659 (2006). All the statements mentioned in this article are to be found in the volume of ICJ Pleadings appropriate for each case. Accordingly, detailed footnote references have not been given. Since most of the advisory opinions requested since 1946 originated in an organ of the United Nations, the Secretary-General of the United Nations has developed this role. To some extent

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signicance for the future development of international judicial techniques. Partly this development may be traced to the manner in which the SecretaryGeneral has assumed responsibility for the les of documents transmitted to the Court with the request. However, the Secretary-General has rarely been content to conne his participation in advisory proceedings only to the compiling and transmission of documents. He has frequently, though not invariably, found it opportune to submit his views on the contents of those documents, and on the legal problems arising out of the request, whether in written or in oral statements or even in both. In addition there have been cases in which the United Nations, and more particularly the Secretariat, has been a directly interested party. The oral statements are particularly signicant and the more contentious. They are delivered after the interested Governments have submitted their written statements, and in the nature of things this gives the Secretary-General the opportunity to take issue with contentions advanced by different Governments. It is through these activities, the Secretary-General has come to occupy a special position in advisory proceedings. For except when the question arises out of a dispute or situation directly involving the United Nations as such and the Secretary-General as the chief administrative ofcer of the United Nations, these interventions on behalf of the Secretary-General are in principle freed from issues of national policy which in the nature of things must colour the presentations made by the representatives of States. They bring before the Court the international point of view as seen by the SecretaryGeneral and his colleagues, or they plead the concrete interests of the United Nations in the outcome of the proceedings. To some extent, they resemble, or may come to resemble, the observations of the Advocate-General in some national legal systems and in the Court of Justice of the European Communities, though they have not reached the degree of intermixing in the judicial process of those Procurators-General. It is readily admitted that this task is one requiring great tact and skill qualities which have hitherto been forthcoming as is indeed evidenced by the strong delegations which have appeared on his behalf in the oral proceedings.4

the same considerations would doubtless apply to the chief administrative ofcer of any other organization requesting an opinion. However, as far as the United Nations is concerned, the Secretary-General is in a special position vis--vis the Court, since he is head of another principal organ of the United Nations, the Secretariat. For an early account of these activities by the United Nations, see I. Kerno, LOrganisation des Nations Unies et la Cour internationale de Justice, 78 Hague Recueil 511 at 560 (1951I). Representatives of the Secretary-General of the United Nations have appeared in the following sets of oral proceedings: Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (1948) (I. Kerno, Assistant Secretary-General in charge of Legal Affairs) [Admission], Reparation for Injuries Suffered in the Service of the United Nations (1949) (Kerno, with A. Feller, Principal Director of the Legal Department as Counsel)

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The power of the Secretary-General to undertake these activities derives from his general representative capacity as the chief administrative ofcer of the United Nations. He has a general capacity to represent the United Nations in legal proceedings, both at the international and at the national level.5 In that framework it has been authoritatively stated that in their statements, the representatives of the Secretary-General have generally given a survey of the consideration by the United nations organs of the question on which the advisory opinion has been sought, and have drawn the attention of the Court to elements of law and of fact which might assist the Court in reaching its conclusions.6

5 6

[Reparation], Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (1950) (Kerno, with Hsuan-Tsui Liu, Member of the General Legal Division of the Secretariat, in both phases) [Peace Treaties], International Status of South-West Africa (1950) (Kerno, with Marc Schreiber and Blaine Sloan, of the Legal Department) [South Africa], Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) (Kerno, with Gurdon Wattles of the Legal Department) [Reservations], Effect of Awards of Compensation made by the United Nations Administrative Tribunal (1954) (C. Stavropoulos, Principal Director in charge of the Legal Department) [UNAT], Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (1971) (Stavropoulos, with E. Schwelb, Special Consultant to the Ofce of Legal Affairs, former Director of the Division of Human Rights and D.B.H. Vickers, Senior Legal Ofcer of the Ofce of Legal Affairs) [Namibia], Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (1988) (C-A Fleischhauer, with R. Zacklin and Mme M. Constable of the Ofce of Legal Affairs) [Headquarters Agreement] and Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (1989) (Fleischhauer with Paul Szasz, Roy Lee and Mme Constable, of the Ofce of Legal Affairs) [Privileges and Immunities Convention]. No representative of the Secretary-General required to speak in the Competence of the General Assembly for the Admission of a State to the United Nations (1950), Voting Procedure on Questions Relating to Reports and Petitions concerning the Territory of SouthWest Africa (1955), Admissibility of Hearings of Petitioners by the Committee on South WestAfrica (1956), Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (1962), Western Sahara (1975), Legality of the Threat or Use of Nuclear Weapons (1996) and Construction of a Wall in Palestinian Occupied Territory (2004) proceedings. In some of those cases, however, as will be seen, in addition to submitting the le of documents the SecretaryGeneral also submitted a written statement. As for the specialized agencies, in the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization case (1960) [Maritime Safety Committee], the Director-General of IMCO limited himself to the transmission of documents, and made no written or oral statements. In the Interpretation of the Agreement of 25 March 1951 between WHO and Egypt case (1980) [WHO/Egypt Agreement] the representative of the Director-General (C. Vignes, as special legal adviser), did not make an opening statement, but replied orally to questions put to him by members of the Court. In the Legality of the Use by a State of Nuclear Weapons in Armed Conict case (1996) the representative of the Director-General (Vignes) made an oral statement. V Repertory of the Practice of United Nations Organs, ad Art. 98, para. 129 (Sales No. 1955.V.2 (Vol. V) (hereafter UN Repertory). Ibid. at Art. 96, para. 29.

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In cases concerning the United Nations, the Secretary-General has asserted his right to present written and oral argument on his own authority.7 These arguments are distinct from the accompanying documents which he is obliged to collect and submit. Although the United Nations was specically invited, the Secretary-General made no argument as such in the proceedings on Certain Expenses and on the Legality of the Threat or Use of Nuclear Weapons opinion, and limited himself to the transmission of the documents without comment. In general, the Secretary-General has not made substantive arguments in proceedings when the request followed a bitterly divisive vote, except rarely when the outcome of the case directly concerned the Secretary-General and the performance of his functions, as in the Peace Treaties advisory opinions. II At this point, the actual appearances of the Secretary-General require brief notice. The tone was set in the Admission case. Here there was written statement as such, and the documents submitted by the Secretary-General were limited to United Nations documents in the narrow sense. The long oral statement, which occupied a whole session of the Court, commenced by describing the course of the debates on the question in both the Security Council and the General Assembly. That included a survey of the principal arguments advanced in those debates relating to the answers to be given to the question and this indirectly related also to some of the contentions advanced by Governments in their written statements. At the end of that statement Kerno introduced two new annexes of documents, relating in particular to the relevant discussions at the San Francisco Conference (that memorandum is unfortunately not included in the volume of Pleadings devoted to that case). Perusal of the advisory opinion and of the individual opinions appended to it suggests that this statement had a profound inuence on the Court. The advisory opinion does not refer to the travaux prparatoires of the Charter. This is in accordance with the consistent ambivalence of the Court that when a text is clear there is no need to have recourse to the travaux. But nearly all the individual opinions do have recourse to those documents, which obviously were discussed in depth in the Courts deliberations. Furthermore, it is not beyond the bounds of possibility, and even probability, that the Courts treatment of the question as abstract, that is as not addressing par-

Ibid. Art. 98, para. 129.

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ticular contentions advanced in the debates in the Security Council and the General Assembly, may be the direct outcome of Kernos presentation. In the Peace Treaties advisory opinion, the two oral interventions were brief, and concerned with what had occurred in the past. Because of the delicacy of the subject, the Secretary-General refrained from giving any indication of his legal views in either phase. Kerno made it plain that the Secretary-General could only dene his attitude after the Court had given its opinion and the General Assembly had indicated its views. In the Competence of the Assembly advisory opinion also a delicate topic the SecretaryGenerals written statement was conned to historical analysis. In the South-West Africa (Status) case, however, a new element appears, in the form of a long and carefully reasoned statement of the legal issues involved in the case. This, as it were, emphasized the conict of views between the United Nations or at least a majority in the General Assembly and the Union of South Africa. The Secretary-General transmitted a very large dossier of documents going back to the League of Nations and the San Francisco Conference. He followed this with a very long oral statement, lasting nearly three sessions of the Court. The rst part was devoted to a description of the lengthy debates that had taken place in the different organs of the United Nations. The second part was a long statement of observations regarding the legal problems raised by the questions. The tenor of this pleading is brought out by its concluding remarks: The Covenant of the League of Nations has treated as a sacred trust the well-being and development of peoples who are not yet capable of governing themselves. The Charter of the United Nations has taken up this noble idea. You now have before you the difculties which have arisen in a special case particularly complicated and important. Although this statement was made after the Governments concerned had submitted their written statements, there is as yet no direct confrontation with the position taken by the mandatory Government of South Africa. That was to come later, after it had become clear that there was no possibility of a direct and agreed settlement. But in the delicate SouthWest Africa (Voting) opinion, two written statements were led, termed respectively Introductory Note, containing an incomplete survey of the discussions that had taken place since 1950, and Additional Notes, devoted to a discussion of the voting rules in the Council of the League of Nations and in the General Assembly of the United Nations. A similar note accompanied the le in the South-West Africa Committee case. In the Certain Expenses case, lengthy explanatory notes but no formal pleadings were submitted. In the Namibia advisory opinion the SecretaryGeneral again entered into the substance of the matter. Here, besides transmitting a heavy dossier of documents, the Secretary-General also submitted a written statement of his legal views. The oral proceedings were opened by a statement from Stavropoulos which is coloured by the observation that the Secretary-General felt it to be his special duty to comment upon certain of

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the points raised mainly in one statement which, if accepted, would have profound, in fact possibly disastrous effects, upon the structure, functioning and constitutional practices of the United Nations as these have developed over the last 25 years. At the end of this speech he remarked: the question before the Court concerns the fundamental rights and freedoms of more than half a million people, the indigenous inhabitants of an international territory to which promises were made in the name of mankind. This speech had been preceded by some questions from Judge Gros based on the Secretary-Generals written statement, and it was followed by some further telling questions from Judge Sir Gerald Fitzmaurice the rst occasion on which questions had been put to the representative of the Secretary-General. A member of the delegation, Mr Vicker, gave the replies in an oral statement later in the proceedings. He took the occasion to make some remarks concerning the South African proposal for a plebiscite in Namibia. There is no doubt that this speech gave vent to widespread feelings which prevailed in United Nations circles after the two judgments of 1962 and 1966 in the contentious cases on South West Africa. At the same time, it must be recognized that they were for all practical purposes a pleading against the position then being taken by the former Apartheid regime of South Africa. Those very exceptional circumstances may be found to justify the departure from a neutral position which ought to characterize any legal position taken by the Secretary-General in advisory proceedings before the Court, where the requesting organ is seeking guidance as to its own future action. III The rst case in which the Secretary-General as chief administrative ofcer of the United Nations was directly interested was the Reparation case. The Secretary-General placed the item on the agenda of the General Assembly following the assassination of the United Nations Mediator in Palestine, Count Folke Bernadotte, and several of his assistants in 1948. That led to two difcult legal questions: (1) whether the United Nations could bring a claim for compensation for damage it had suffered; and (2) what would be the position of the State of which the victim was a national, and coupled with that, how to protect the potential respondent States from double damages. None of the potential respondent States took part in those proceedings: of potential claimant States, only France made written and oral statements. The United Nations submitted the usual set of documents, limited to the discussion on the agenda item proposed by the Secretary-General. The oral statement and pleading by Kerno and Feller was a different matter. Kerno explained that the United Nations would be appearing in a double role: he would present the usual objective summary of the relevant debate, and he went on: Mais le Secrtaire gnral participe aussi, jallais presque dire quil

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est partie, la procdure actuelle, qui prsente pour lui un intrt essentiel. He therefore pleaded and made submissions on both issues, that of the capacity of the United Nations to bring claims, and on the reconciliation of the claims of the United Nations with those of interested States. This advisory opinion was to some extent prophylactic, although given the circumstances of the time it is unlikely that any of the potential respondent States would have contested the capacity of the United Nations to make these claims (without prejudice, of course, to any other position which some of those States might have taken at the time or since). The interest of the United Nations was a potential one. That distinguishes this case from the two cases in the 1980s in which there was an actual dispute between the Secretary-General and a member State. It also distinguishes this case from others in which the Secretary-General had a direct interest in the sense that it was his own actions that were the subject of the request for the advisory opinion. The rst case in this category is the Reservations case. The Secretary-General placed the item Reservations to multilateral conventions on the agenda of the General Assembly, because of anticipated difculties over determining the entry into force of the Genocide Convention of which he was the depositary and would therefore have to inform the States of the entry into force of the Convention. Some of the ratications of that Convention were accompanied by reservations to which other States had made objection. In fact the requisite number of ratications without reservations was received. This solved the difculties of the Secretary-General rendering the question moot. The discussion in the Sixth Committee had been general: the reference in the question to the Genocide Convention was inserted relatively late in the debate, in order to make the question concrete enough so that the Court could answer it.8 The Secretary-General submitted a long written statement dealing exclusively with the question of reservations to the Genocide Convention, not with the general question of reservations to multilateral conventions. The oral statement was on a broader canvass. It dealt with the depositary practice of the Secretary-General in more general terms, and in relation to reservations was a spirited defence of the practice followed by the Secretary-General based on the practice of the Secretariat of the League of Nations That was rejected by the Court, by a very narrow majority, in favour of a system said

See doc. A/C.6/L.125 and Rev.1, in Report of the Sixth Committee (A/1494 + Corr.1) in Ofcial Records of the General Assembly, Fifth Session, Annexes, agenda item 56. And see Resolutions of the General Assembly concerning the Law of Treaties: Memorandum prepared by the Secretariat (A/CN.4/154) ILCYB 1963/II at 18 (paras. 106 ff.).

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to be close to the system then in use in the Pan-American Union (now the Organization of American States), and which has since been codied in articles 19 to 23 of the Vienna Convention on the Law of Treaties of 1969.9 This must be regarded as the most serious defeat of the Secretary-General in the Court. In retrospect, it was probably a mistake in 1951 to single out a single convention, the Genocide Convention, and a single aspect, the impact of objections to reservations on the establishment of the necessary quorum of States for the entry into force of the Convention, as isolated topics. Both aspects are an integral part of the law of treaties as a whole. As it was, the General Assembly made the mistake of asking at one and the same time the Court for an advisory opinion de lege lata and the International Law Commission for a report de lege ferenda on the basis of the advisory opinion to be received. The Commission did not accept the Courts advisory opinion for general purposes, and this produced a delicate situation which was only resolved when State practice declared itself on the whole favourable to the Courts approach, and accepted it when it was generalized in 1966 by the International Law Commission in its nal report on the law of treaties. In the UNAT case, which arose out of a discussion on the supplementary estimates to meet the awards made by the Administrative Tribunal, the Secretary-General submitted long written statement which dealt in some detail with the Administrative Tribunal, its functions and powers and its general characteristics. There is no doubt from the advisory opinion that this was of great use to the Court. This statement was of a general character. It was followed by an oral statement which Stavropoulos indicated dealt with aspects of the questions which concerned the Secretary-General as chief administrative ofcer of the organization. These of course related to internal staff matters: and it was in this speech that the idea appeared that the discretionary budgetary powers of the General Assembly under Article 17 of the Charter only related to the future, and that there is no discretion as regards obligations and commitments which have already been duly made. That is the core of the advisory opinion as regards awards made by the Administrative Tribunal. Reading the pleadings in that case, there is little doubt that these statements of the Secretary-General were decisive. It was not until 1988 that the Court was asked for an advisory opinion when there was an actual dispute between the Secretary-General and a member State. That was the Headquarters Agreement case. Here the SecretaryGeneral had reported the existence of this dispute to the General Assembly through the Committee on Relations with the Host State. He also reported

1155 UNTS 331.

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that he had invoked the dispute settlement provisions of the Headquarters Agreement, a position which had not been accepted by the United States. Here the General Assembly adopted two resolutions. In one of these it took note of the position of the Secretary-General that a dispute existed and that he had invoked the applicable dispute settlement provisions. In its operative clause the General Assembly considered that a dispute existed and that the dispute settlement machinery should be set in motion. In the second resolution, bearing in mind the rst, it afrmed the position of the SecretaryGeneral that a dispute existed, and decided to request an advisory opinion as to whether the United States was under an obligation to enter into arbitration in accordance with the dispute settlement procedure of the Agreement. The unusual situation here was that two principal organs, the General Assembly and the Secretariat, had both decided that a dispute existed and that the dispute settlement procedure of the Agreement should be applied. The Secretariat submitted to the Court a dossier of documents and a written statement in which he concluded for an afrmative answer to both questions. Fleischhauer made a short oral statement reiterating the position. That led to a series of questions by several judges, and an oral reply by Fleischhauer. In one sense, the Court should have refused to answer the question, on the ground that the resolutions adopted by the General Assembly had already given the answers. The Court had very little choice in all the circumstances. Viewed from that point of view, one could say that the General Assemblys request for an advisory opinion was coming close to an abuse of the Courts procedures. However, there is another way of looking at the matter, and I have written elsewhere that the advisory opinion has an important place in the general policy of the Court to preserve the integrity of the general regime of the Charter and its appurtenant documents.10 The Privileges and Immunities Convention case has many similarities. A long correspondence between the Secretariat and the Socialist Government of Romania regarding the ability of a Romanian national to perform his functions as a special rapporteur of the Subcommission on Prevention of Discrimination and the Protection of Minorities had reached a deadlock. There is no doubt that in the formal sense there was a dispute between the Secretary-General and that Government. However, Romania had made a reservation to the dispute settlement clause of the Privileges and Immunities Convention. and this prevented the direct invocation of that provision. For this reason the question put to the Court asked about the applicability of the dispute settlement procedure, not its application. Here the Secretary-General submitted a very long dossier of documents and a written statement. This

10

The Contribution of the International Court of Justice to the United Nations, United Nations at 50 and Beyond at 133 (1996).

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was followed by a short oral statement conrming the conclusion that the Romanian national concerned was entitled to the status of expert on mission for the United Nations within the terms of the Convention. The distinction between the applicability of the Convention and its application was accepted by the Court in answer to Socialist Romanias contention that its reservation to the Convention deprived the Court of power to give the requested opinion. IV The position of the Director-General of WHO in the WHO/Egypt case was unusual. That case had high political overtones, and the request for the advisory opinion was adopted over stiff opposition by a technical majority which in fact was less than 50% of the total of the members of the WHO. This put the Director-General in a difcult position. He transmitted the customary dossier of documents, but there was no written statement. The representative of the Director-General was present for the oral proceedings, but only in order to reply to any questions which the Court or any of its members might wish to put to him. Several questions were put to him after the representatives of interested Governments had made their statements. Vignes made a full reply to those questions, but without any attempt to suggest answers to the question put to the Court for advisory opinion. The last case in this series is Legality of the Use by a State of Nuclear Weapons in Armed Conict. Here the Director General submitted the customary le of documents, and his representative (Vignes) made a formal statement at the opening of the oral proceedings on 30 October 1995. He referred to the absence of consensus in the WHO which prevented the Organization itself from taking any position on the question. He described the evolution of the issue in the WHO, and, referring to the debate that preceded the adoption of the request, mentioned that the Legal Adviser had expressed doubts as to whether the question came within the competence of WHO. Giving the results of the nal vote, he did not mention the secret ballot. There is no doubt that this secret ballot exercised the Court, since it is mentioned specically in the dissenting opinion of Judge Weeramantry. If it was of relevance for the Court, that would have been in connection with the propriety of the Courts acceding to the request. However, as the Court decided that the issue of propriety could only arise after it had decided whether it has jurisdiction (a question answered here in the negative), it did not have to pronounce on this.11

11

ICJ Rep. 1996I, 66, 84 (para. 31).

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V So far, the Secretary-General has only taken part in advisory cases. Article 34, paragraph 2, of the Statute, a new provision inserted in 1945, allows the Court, subject to an in conformity with its Rules, to request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.12 The rst and so far only instance in which the Court has approached the United Nations on the basis of Article 34 of the Statute was in connection with the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide.13

12 13

On this, see II Law and Practice4 630. See ICJ Rep. 1993. 3, 9 (para. 6). So far as is known, the United Nations (of which the Court is a principal organ) has not made any reply to that communication.

13
VISIT TO THE SITE BY THE INTERNATIONAL COURT

Judge Bedjaouis last formal act as President of the International Court of Justice was to conduct the deliberations and sign the Courts Order regarding the visit to the site by the Court in the Gabckovo-Nagymaros Project case between Hungary and Slovakia. That was the culmination of a long series of negotiations between the parties and between the parties with the Court through President Bedjaoui. In that order the Court decided to exercise its function with regard to the obtaining of evidence by visiting a place or locality to which the case related; and to adopt to that end the arrangements proposed by the parties in a series of agreements and other documents set out in its preambles.1 That was the rst occasion on which the present Court had conducted a visit to the site (descente sur les lieux). In a similar river dispute between two neighbouring countries in 1937, the Diversion of Water from the Meuse case, the Permanent Court had likewise decided to visit the site.2 The nearest reference in the Statute to the power of the Court to undertake a visit to the site is in Article 44. That provision requires the Court to apply direct to the government of the State concerned whenever steps are to be taken to procure evidence on the spot (sil sagit de fair procder sur place ltablissement de tous moyens de preuve). Accordingly, to undertake a visit to the site comes within the implied or inherent powers of the Court. It derives from Article 48 of the Statute, the general catch-all provision enabling the Court to make orders for the conduct of the case. In consequence, there is no specic provision in the Rules of Court governing the procedure for such a visit. However, Article 66 of the current Rules provides that the Court may at any time decide, either proprio motu or at the request of a party, to exercise its functions with regard to the obtaining of evidence at a place or

ICJ Rep. 1997 at 3. Hereafter Order. The judgment was rendered on 25 September 1997, ICJ Rep. 1997, 7. Hereafter Judgment. For an insider view of this visit, see P. Tomka and S. Wordsworth, The First Site Visit of the International Court of Justice in Fulllment of its Judicial Function, 92 AJIL 133 (1998). The authors were respectively Agent and Counsel for Slovakia in that case. In general, see D.V. Sandifer, Evidence before International Tribunals 343 (Revised edition, 1975). See text to note 15 below.

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locality to which the case relates, subject to such conditions as the Court may decide after ascertaining the views of the parties. Article 66 in its present form is new.3 Strictly speaking, a visit to the site is not necessarily connected with the obtaining of evidence. In both the Water from the Meuse case and in the Gabckovo-Nagymaros Project case, no evidence was taken. The purpose of the visit was to enlighten the Court on the area the subject of the litigation more directly than is possible in regular written and oral pleadings. As the Court stated in its judgment on the merits, (para. 10), the Court took note of the technical explanations given by the representatives who had been designated for the purpose by the Parties. Usually a visit to the site takes place after the written proceedings are concluded and either before the oral proceedings commence, or between the two rounds of oral pleading. Experience regarding visits to the site by the International Court is limited. As mentioned, the Permanent Court conducted such a visit in the Water from the Meuse case;4 and the present Court required a Committee of Experts to visit the site on its behalf in the Corfu Channel case. There have been occasions on which the present Court has refused to conduct a visit to the site. Some relevant recent arbitral proceedings will also be noted. The Gabckovo-Nagymaros case was brought before the Court by a special agreement concluded between Hungary and Slovakia after an earlier forum prorogatum application by Hungary against the former Czech and Slovak Federal Republic had not been accepted by the named respondent.5 In that case, the formal initiative for the visit was taken by Slovakia shortly before the replies were led. Hungary agreed and the parties co-operated in making the detailed arrangements. The general outlines for the visit were set out in a Protocol of Agreement between the parties with a view to proposing to the Court the arrangements for a visit in situ in the case, concluded in Budapest and New York on 14 November 1995. That was followed by a joint meeting between the agents at Bratislava in January 1997. Agreed Minutes of that meeting were concluded in Budapest and New York on 3 February 1997. Both those instruments were communicated to the Court and are recited in the preambles to the order of 5 February 1997.

4 5

This is a broader provision deriving from Art. 49 of the Rules of the Permanent Court of 1926 and of 1931, and Art. 55 of the Rules of 1936/1946, empowering the Court to take the necessary steps for the examination of witnesses or experts otherwise than before the Court itself. For the experience of the Permanent Court, see M.O. Hudson, The Permanent Court of International Justice 19201942 at 566 (1943). Judgment, para. 24.

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The Protocol of Agreement commences by references to Article 44 of the Statute and Article 66 of the Rules, to Slovakias proposal for the visit, and to an exchange of views (not yet made public) between the President of the Court (Bedjaoui) and the parties in June 1995, and continues:
Considering that a visit in situ by the Court would usefully complement the data available to the Court in the case . . . Aware that it falls to the Court to decide to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates, subject to such conditions as it may decide upon after ascertaining the views of the Parties[.]

The substance of that agreement was that the Court would make a four-day visit at dates to be xed later. The exact schedule for the visit was to be drawn by the Court following further conversations with the agents in accordance with Articles 31 and 66 of the Rules. The Parties undertake not to call that schedule into question for whatever reason, other than on grounds of force majeure duly explained and accepted as such by the Court, the other Party having been heard. There followed an outline suggestion for each day of the visit, the rst two days of which would be spent in Slovakia and the last two in Hungary. At the end of the last day there would be a brief account of the visit by the experts of the parties, who would be given a strictly equal amount of time to that end (which might be half an hour each) and who will be available to the judges to answer their questions, before returning to The Hague. By paragraph 4:
During the whole of the visit in situ the Court shall be accompanied by the Agents of each Party and by three persons designated by each of the Parties, to the exclusion of any other ofcial. The explanations given by the representatives of the Parties shall be of a purely technical nature, without any discussion of the legal issues. Interpretation into English and French shall be effected by the interpreters of the Court or by persons appointed by the Court. The Parties, which once again express their hope that they will be able to welcome the Court in the best possible conditions, rule out in advance any attempt to vie with each other in the solemnity of the welcome extended and undertake to ensure that the Court will be able to discharge its mission in complete security and total discretion. No formal reception shall be organized by the governmental authorities of the two countries, with the exception of a low-key reception in Bratislava during the evening of the rst day, and another in Budapest during the evening of the third day. The visit of the Court shall not be the subject of any press communiqu with the exception of the one drawn up by the Registrar and shall not occasion any interview.

The parties proposed to take equal responsibility for the expenses occasioned by the visit, apart from the expenses of the two receptions. The Protocol concluded that a copy should be addressed jointly to the Registrar by the two agents.

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That basic agreement was completed by the Agreed Minutes, which were supplementary to the Agreement. In general:
1. The purpose of the visit will be to familiarize the Court with the area to which the Case . . . relates and with the technical issues which can be presented in the course of the visit, without referring to juridical questions, The parties agree that this purpose will best be achieved if their presentations to the Court are as far as possible objective in content and neutral in tone. 2. In addition, the members of the Court should be afforded an opportunity to ask questions of a factual or technical character to the presenting party at any time during the presentation, and the presenting party may respond forthwith to such questions, or may reserve its answer to the Reply phase in the following week. The other party may make brief factual or technical responses to any presentation or answer, it being understood that such responses will be as brief as possible and will be consistent with paragraph 1 above. 3. The presenting party may make remarks and comments, consistent with paragraph 1 above, at any stage during the course of the tour of the concerned areas. Arrangements will be made, in conjunction with the Registry of the Court, for the translation of remarks and comments and of any responses made under paragraph 2. 4. Presentations may be made by the Agent, or one of the accompanying persons nominated under paragraph 4 of the Agreement. At a particular location other persons with expertise relating to that location may be called on to make a presentation. The names of the persons who will be called on will be exchanged between the parties two weeks prior to the visit.

The Agreed Minutes went on to lay down details of the schedule day by day. The itinerary, commencing the visit upstream, was constructed on the principle of equal time, taking into account different local conditions. It was agreed that in addition to any illustrative material drawn from the written pleadings, either party might provide the members of the Court with simple reference maps and other simple explanatory materials or graphics. Copies of such materials were to be exchanged between the parties not less than two weeks before the start of the visit. Detailed logistical arrangements were set out, as well as the administrative requirements from the Registry. With regard to the nancial arrangements, each party agreed to pay promptly on request half the total cost of air travel from Amsterdam or some other European departure point to Vienna/Bratislava and from Budapest to Amsterdam. Each party would meet the costs of accommodation and travel for the members of the Court and the Registry in its own territory, and the costs of the respective receptions. Other expenses were borne by the Court in the usual way. In its order of 5 February the Court (with the judge ad hoc present) recited that it appeared to it that to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case related might facilitate its task, and that the proposals made by the Parties to that end might

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be accepted. The Court thereupon unanimously decided to adopt the arrangements proposed by the parties. On that basis, the visit took place as planned between the two rounds of the oral pleadings. The Registry issued a formal communiqu announcing that the visit had taken place.6 Opening the resumed hearing of 10 April, the new President referred to the visit which he was sure had enhanced the Courts understanding of the issues which it was called upon to decide.7 Beyond the formal statement regarding the visit contained in paragraph 10, there is no further mention of that visit in the judgment or in any of the opinions appended to it. However, in his statement at the 36th meeting of the 52nd session of the General Assembly on 27 October 1997, the new President Schwebel included the following:
The case also gave the Court the unique opportunity, between two rounds of oral hearings, at the joint invitation of the Parties to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates. This procedure is poetically known in French as a descente sur les lieux; in English we have come to call it a site visit. The Parties agreed on the detailed itinerary, content and logistical arrangement of the visit, and the full Court spent four days visiting locations along the Danube between Bratislava and Budapest, accompanied by representatives of the two States and their scientic advisers. The Court looked, listened, asked many questions, and gained a new dimension of insight into the case and what it meant to the Parties much more than could have been gleaned from conning proceedings to The Hague. I might add that it was all organized by the Parties with admirable efciency. I use the word unique because it was the rst time in the history of the present Court that such a working visit to the site of the dispute has been undertaken. The visit was not entirely unprecedented. Almost exactly sixty years ago, in May 1937, the Permanent Court of International Justice spent two days visiting a number of locations rather closer to the seat of the Court, along the River Meuse between Maastricht and Antwerp in connection with a dispute between the Netherlands and Belgium in the case concerning the Diversion of Water from the Meuse. The published record of that case is terse, but even so, the parallels between the two exercises as between the cases themselves and the character of the visits turned out to be striking. There have been other occasions when such visits were requested by one party or canvassed, but for various reasons were not carried out by the Court. Clearly, the issues of law can usually be decided without such an exercise. In the exceptional case in which a site visit would be useful, it would depend upon a high degree of co-operation between the States concerned, and one can imagine only some contentious cases in which the

Communiqu No. 97/7, 9 April 1997. See also the Report of the International Court of Justice, 1 August 199631 July 1997, United Nations, General Assembly Fifty second Session, Ofcial Records Supplement No. 4 (A/52/4), para. 108. CR 97/12, 10 April 1997, at 10.

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situation on the ground may lend itself to carrying out a site visit. There are also nancial implications for the States concerned. However, the successful completion of this valuable procedure in the Gabckovo case is suggestive.8

The Agreement and the Agreed Minutes are, it is believed, the rst public instruments dealing with the practical and logistical aspects of a visit to the site. Three elements at least are striking. The rst is the strict insistence on equality between the parties, allowance only being made for supercial inequalities due to the different and separated localities to be visited. The second is the exclusively technical nature of the visit and of the explanations allowed to be made by the representatives of the parties. All juridical considerations were excluded. The third is the general low-key approach adopted by the parties and accepted by the Court. These documents could supply useful guidance to the Court and to arbitration proceedings, and to the parties and their Governments, in future cases. The present Court has had some other instances in which issues of a visit were raised. In the Corfu Channel case, in which some of the most important facts at issue were contested, the Court appointed a Committee of Experts to make a report to it on the matter. This report did not answer the questions to the Courts satisfaction, so the Court adopted a decision requiring the experts to proceed to the land area relevant to the case, part of which was in the territory of a third State (Yugoslavia). These investigations took place between the two rounds of oral pleadings, and they enabled the Court to make the necessary ndings of fact on which to base its judgment.9 This visit was directly connected with the evidence, and the questions put to the experts were aimed at clarifying the conicting versions of the relevant facts presented by the parties the only instance of this in the visits considered in this article. The rst instance in which the Court declined to make a visit to the site was in the second (merits) phase of the South West Africa cases. During the oral proceedings, on 30 March 1965, South Africa proposed that the Court should make an inspection in loco of the Territory of South West Africa and also, but subject to the conditions indicated by it, that the Court should visit South Africa itself and the Applicant States (Ethiopia and Liberia) as well as one or two sub-Saharan countries of the Courts own choosing. The applicants opposed all those proposals. In an order of 29 November 1965, that is after the oral proceedings had been closed and the parties had been heard on this matter, the Court in a series of votes decided not to accede to

8 9

A/52/PV.36, at 2. It is also available on the Courts website. See ICJ Rep. 1949 at 9 and 151.

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that request. No reasons were given, and no opinions were appended to that order.10 The second instance of this was in the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, heard by an ad hoc Chamber of the Court. During the hearings El Salvador requested the Chamber to consider a visit to the disputed areas of the land frontier. At the closure of the oral proceedings the President of the Chamber stated that the Chamber considered that it was not yet in a position to reach a decision on this. Later, after deliberation, it decided that it was not necessary for it to undertake a visit to the site.11 Reference should be made to an incident of procedure which occurred during the Gulf of Maine case. It appears that at one time there was an understanding that the Chamber would not undertake such a visit. However, after the closure of the written proceedings, in a meeting on procedure with the President of the Chamber Canada indicated that it was withdrawing its opposition to a visit to the site. Shortly afterwards Canada informed the Chamber that it was preparing a lm dealing with what it termed the human geography of the area in question. The United States objected to any presentation on a number of grounds. One of these was that the presentation of the lm would be contrary to the previous understanding that an on-site visit to the Gulf of Maine area need not and, in the view of the two Governments, should not be conducted in this case. The letter of the United States agent of 18 October 1983 contains the following paragraphs:
. . . I refer . . . to the previous understanding of the Parties, communicated to the President of the Chamber, that an on-site visit need not be conducted in this case. The Registrar of the Court raised the subject of a visit with the Parties in March of 1982, shortly after the formation of the Chamber and in the early stages of the preparation of the Memorials by the Parties. The Parties consulted on this question and agreed that they would jointly discourage the Chamber from conducting an on-site visit. During a subsequent meeting with the Registrar on 22 March 1982, the Deputy Agents . . . informed the Court that they saw no need for an on-site visit and indeed were opposed to one being held. Subsequently, on 11 May 1982, in keeping with Article 31 of the Rules of the Court, the Agents . . . met with the President of the Chamber and the Registrar to discuss this and other matters. At that time, the Parties reiterated for the President of the Chamber their common view that an on-site visit by the Chamber would serve no useful or necessary purpose and would, for local reasons, be undesirable to both Parties. The Court has relied upon the understanding not to conduct an on-site visit, for instance in the preparation of its budget for the biennium 19841985 . . . [T]he United

10 11

Ibid. 1965 at 9. And see the judgment of 18 July 1966, ibid. 1966 at 9. More on that in Sandifer, op. cit. in n. 1 above, at 346. ICJ Rep. 1992, at 361 (para. 22).

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States fears neither the facts nor the law of this case but is concerned about unnecessary or unanticipated politicization of these proceedings. In the absence of a compelling need, Canada should not now be permitted to withdraw unilaterally from that agreement and, without the consent of the United States, present what is, in effect, an unsatisfactory substitute for an on-site visit, subject to no safeguards and raising the very spectre of politicization that the Parties had previously agreed to seek to avoid in not encouraging an unnecessary visit. . . . [E]ven in the absence of prior agreement, the practice of the Court in regard both to visits and to lms suggests that the Court should not permit the proposed Canadian lm without the consent of the United States. As far as the United States can determine, no on-site visit has ever been conducted by the Court without the consent of all of the Parties. Indeed, in the only instance of which the United States is aware [a reference to the South West Africa cases], where one Party objected to a request by another Party for such a visit, the Court declined to conduct the visit . . . Thus, as far as the United States is aware, international tribunals have followed a practice of permitting on-site visits or admitting lms only where the parties are not in disagreement.12

In his reply to the American contentions, Canadas agent stated that in deference to the strong objections raised by the United States, Canada had not pressed its views concerning an on-site visit by the Court, despite its opinion that such a visit would have assisted the Court in appreciating certain circumstances relevant to the delimitation of the maritime boundary. After the lm had been made and viewed by the United States, the American objections were renewed. Canadas agent later informed the Agent of the United States, copied to the Registrar, as follows:
For the record, I must point out that there was never any agreement between Canada and the United States regarding the question of an on-site visit by the Court. The United States, for its own reasons, expressed opposition to such a visit. Canada, for its own reasons, expressed reservations. There was in this a measure of coincidence of views but no agreement in the sense in which you [the United States] appear to use the term.

The letter goes on to explain that after the deposit of the second set of written pleadings Canada decided to withdraw its reservations, but without press-

12

The letter went on to discuss at some length relevant Rules of Court. It also referred to the Water from the Meuse case in the Permanent Court, the Corfu Channel case, and the Grisbadarna arbitration of 23 October 1909. For that arbitration, see United Nations, XI Reports of International Arbitral Awards 155. Since this article is concerned only with on-site visits, to use the American expression, the author wishes to reserve his position regarding the admissibility of lms as a generality, without prejudice to the question of the admissibility of the particular lm under discussion in that correspondence.

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ing for an on-site visit in light of the very strong opposition of the United States. Finally, Canada decided not to further burden the situation by asking the Chamber to view a lm.13 There is at least one instance in which an individual member of the Court undertook on his own a visit to the site. In his dissenting opinion in the case concerning Sovereignty over Certain Frontier Land between Belgium and the Netherlands, Judge Moreno Quintana indicated that he had been to see for himself the area in dispute.14 * * * As has been mentioned, some sixty years earlier the Permanent Court had been faced with a similar matter in dealing with the Diversion of Water from the Meuse case between Belgium and the Netherlands. In its judgment of 28 June 1937 we read:
At the hearing of May 7th, 1937, the Agent for the Belgian Government suggested that the Court should pay a visit to the locality in order to see on the spot all the installations, canals and waterways to which the dispute related. This suggestion met with no opposition on the part of the Netherlands Government, and the Court decided, by an Order made on May 13th, 1937, to comply with it. Adopting the itinerary jointly proposed by the Agents of the Parties, the Court carried out this inspection on May 13th, 14th and 15th, 1937. It heard explanations given by the representatives who had been designated for the purpose by the Parties and witnessed practical demonstrations of the operation of the locks and of installations connected therewith.15

In this connection, there is some interest in the Courts order of 13 May 1937. After the formal recitals, the order goes on to state, in non-committal language, that in this case, an inspection on the spot may facilitate the Courts task. Consequently the Court decided to carry out an inspection on the spot and to follow the itinerary jointly prepared by the agents of the parties, commencing upstream. The Courts minutes of its visit to the places concerned in the proceedings indicate that the two agents and competent

13

14

15

For this correspondence, see Delimitation of the Maritime Boundary in the Gulf of Maine Area case, VII Pleadings at 328, 329, 334, 341, 352, 354, 355, 356, 372 (docs. 68, 70, 72, 83, 88, 89, 90, 91, 113). ICJ Rep. 1959 at 252. True, the disputed area was not far from The Hague and any member of the Court could have visited it at any time. However, a statement of that kind in an individual opinion of one of the judges borders on judicial impropriety. It is not for an individual member of an international court or tribunal to make his own inspection of the site. PCIJ, Series A/B 70 at 9. For the order, see Series C 81 at 553; and for the Courts minutes of that visit, see ibid. at 222. According to Hudson, the Belgian suggestion was viewed not as an offer to present evidence, but as an invitation to the Court to procure its own information for a better understanding of the case. M.O. Hudson, op. cit. in note 4 above, at 566.

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engineers and other representatives of the parties were in attendance. The minutes set out in detail the places visited, and the persons who gave explanations or answered questions, but they contain no particulars of any questions asked or statements made. There is no mention in those minutes of any social or ceremonial engagements which without doubt were offered by the different hosts. * * * Some recent arbitrations have also conducted visits. The prolonged series of arbitrations between Argentina and Chile over frontier delimitation disputes produced a series of visits. In the Palena case of 1966, decided by a Court of Arbitration over which Lord McNair presided, special arrangements were made for an aerial inspection and photography of the disputed area, and for a eld mission in which two members of the Court participated. In its Award the Court of Arbitration set out the details at length and expressed its gratitude for the assistance rendered by both parties to that eld mission, which had audiences with the President of each country.16 The Court used the air photographs as authority for the exact location of some of the disputed frontier points. In the Beagle Channel arbitration of 1977, at the request of both parties the members of the Court of Arbitration (with Sir Gerald Fitzmaurice as President), accompanied by the Registrar and Liaison Ofcers from both sides, visited the Beagle Channel region after the conclusion of the written proceedings and before the opening of the oral proceedings. It inspected the islands and waterways concerned, rst on a Chilean Naval Transport vessel and then on an Argentine Naval Transport vessel. Every possible assistance and facility was afforded by the personnel of both navies and by the individual representatives of the Parties participating in the expedition.17 Finally in this series, the International Arbitral Tribunal which determined the dispute concerning the frontier between Boundary Post 61 and Mount Fitzroy, presided by R.F. Navia, decided to visit the site. The visit took pace after the conclusion of the written proceedings and before the opening of the oral proceedings. The order of the visit was determined by lot, drawn in the presence of the parties Consuls General in Rio de Janeiro, the seat of the arbitration. The Tribunal rst visited Chile, together with its Registrar and Geographical Expert. In Chile it was accompanied by the Chilean agent and other ofcials, together with an observer from Argentina,

16 17

Argentina-Chile Frontier Case, United Nations, XVI Reports of International Arbitral Awards 109, 149 (Award of 9 December 1966). 52 ILR at 116 (Award of 18 February 1977). That Court was composed entirely of members of the Court, and is frequently regarded as the forerunner of the ad hoc chamber formed under Art. 26 (2) of the Statute. Judge Bedjaoui was President of the Chamber that determined the Burkina-Faso/Mali Boundary case in 1986.

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and the reverse when it was in Argentina. In Chile the Tribunal was received in audience by the President of the Republic: in Argentina the President called on the Tribunal at its site.18 In the Taba arbitration between Egypt and Israel, the special agreement contained some rudimentary provisions regarding visits. The proceedings themselves were to consist, in addition to the normal written and oral proceedings, visits, to sites which the Tribunal considers pertinent. Visits were to be conducted in such order and in such a manner as the Tribunal should determine. Specically,
Each party shall facilitate the visits of the Tribunal. The agent of each party, and such other individuals as the agent may determine, shall be entitled to accompany the Tribunal during the visits. Members of the Tribunal shall be accorded by each party the privileges and immunities applicable under customary international law. The Tribunal shall be accompanied by such expert, technical and other staff as it deems necessary.19

The award includes the following paragraph:


The Tribunal conducted a visit to selected sites within the disputed areas on 17 February 1988 [that is, after the conclusion of the written proceedings and before the opening of the oral proceedings]. The Tribunals visit itinerary was established in consultation with the Parties. Air and ground transportation within the disputed areas was provided by the Multinational Force and Observers (MFO), an organization established by the Parties pursuant to the Treaty of Peace and charged, inter alia, with maintaining security in the Taba area . . .20

In none of these cases are the precise details of the visit known. It must be assumed, however, that always the basic principle of the equality of the parties was the basis for the visit. It is also likely that in most cases they were low prole, although public interest in the disputes may well have made it necessary for the host country at a given moment to have made special arrangements for accommodating the electronic and written media. * * * Visits to the site are not matters to be taken lightly. They are strenuous for all those taking part in them and may require physical stamina the visit to the Taba area, for example, involved clambering over rough ground up the wadi which was the principal object of the dispute. They are delicate,

18 19

20

Award of 21 October 1994, paras. 10, 11, 113 ILR 1. Arbitration compromise of 11 September 1986, article VIII (B), Appendix A to the arbitral award of 29 September 1988. United Nations, XX Reports of International Arbitral Awards at 110. Ibid. at 9 (para. 7). The Tribunal spent equal time one night in Egypt and in Israel.

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both for the Court or tribunal and for the Parties and their representatives, and for those who have to host them and make the logistical arrangements. They are also expensive. So far, not one of the visits surveyed in this brief overview (except in the Corfu Channel case) has been concerned with the obtaining of evidence. Each has had as its purpose to acquaint the Court or tribunal with the particularities of the situation on the spot, in order to facilitate understanding of the pleadings which in this type of case can become quite technical. Above all, visits to the site have hitherto not been concerned with any juridical questions. In that sense, at whatever stage of the case the visit takes place, it is not part of the pleading as such. The pleading itself, both as to fact and as to law, is a juridical act which is performed in the solemnity of the formal proceedings at the seat of the Court or arbitration. A visit to the site has a factual implication, for the better understanding of the issues at stake in the case. In this respect it is signicant that in none of the instances of visits considered here has the judgment or arbitral award had anything more to say about the visit beyond the formal statements in the introductory procedural history of the case, to the effect that the visit has taken place. On the other hand, in all these cases, careful perusal of the judgment or arbitral award, especially in light of any individual opinions that may have been appended, indicates that in cases of this particular type, the visit without doubt made it easier for the Court or tribunal to reach its conclusions. To some degree, by bringing the Court or (perhaps to less extent) an arbitral tribunal into direct contact with the area in dispute, and in the nature of things with its population, a visit may detract from the distance from the scene which in principle is a characteristic of international litigation, and especially of judicial settlement before the Court. It can, unless care is taken, lead to a politicization which is so prominent a feature of the correspondence between the United States and Canada in connection with the Gulf of Maine case. That distance by no means in the sense of placing the Court in an ivory tower of disembodied legalism is reected in the provisions of the Statute which establish the seat of the Court at The Hague the only principal organ of the United Nations with an established seat elsewhere than at the Organizations headquarters with the proviso that this does not prevent the Court from sitting and exercising its functions elsewhere whenever the Court considers this desirable.21 That furnishes one explanation for the infrequency of visits to the site by the International Court, and for a general reticence of States involved in litigation before the Court to propose such a step.

21

Statute, Art. 22 (1). And see Art. 55 of the Rules of Court, requiring the Court to ascertain the views of the parties before so deciding.

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The value of the detailed arrangements which were made by the Parties with the Court for the visit in the Gabckovo-Nagymaros case is that they supply valuable indications of the nature of the careful planning that is required, with the co-operation of all parties (including the Court itself ), before a visit to the site can be contemplated.

14
FACT-FINDING BEFORE THE INTERNATIONAL COURT OF JUSTICE

Da mihi factum, dabo tibi jus.

Every jurist understands that before he or she can give a worthwhile legal opinion, he or she must know the facts. This applies when the lawyer is giving advice, and it applies equally when he or she is rendering a decision. International law, and with it international lawyers and international litigation, are no exception. The Statute of the International Court of Justice makes adequate provision for clarication of two aspects of the facts. One is the orderly presentation in contentious cases of facts by the parties in their pleadings, written and oral. The second is the ability of the Court in both contentious and in advisory cases to make its own enquiry into facts so far rarely used. Article 49 of the Rules of Court requires the memorial to contain a statement of the relevant facts, and the counter-memorial to contain an admission or denial of the facts and additional facts, if any. Although relevancy in that context is a subjective assessment, that provision assures the presentation and the airing of the facts and of any arguments on them throughout the written proceedings in every contentious case. If by Article 38 of the Rules a unilateral application instituting proceedings must contain a succinct statement of the facts and grounds on which a claim is based, the later pleadings require the formal and systematic development of the statement of facts by each party.1 The generic name for this adversarial presentation of facts is evidence.2 Article 48 of the Statute empowers the Court to make all arrangements connected with the taking of evidence. The wording of that provision is general. It is not limited, as a rapid reading of it might suggest, only to

The Court has given an explanation of the word succinct in its judgment in the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) case, ICJ Rep. 1998, 275, 318 (para. 98): . . . succinct in the ordinary meaning to be given to this term does not mean complete and neither the context in which the term is used in Art. 38 (2) of the Rules of Court not the object and purpose of that provision indicate that it should be interpreted in that way. Art. 38 (2) does therefore not preclude later additions to the statement of facts and grounds on which the claim is based. The word evidence appears in Arts. 44, 48 and 52 if the Statute and in Arts. 57, 58, 62, 63, 66 and 79 of the Rules.

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the oral proceedings. Article 50 empowers the Court at any time to arrange for the carrying out of an enquiry or giving an expert opinion a provision used only twice, each time in the same case, in the merits and the compensation phases of the Corfu Channel case.3 The second faculty open to the Court is its ability to make its own investigation into the facts if it is not able to reach satisfactory conclusions on the basis of the facts as the parties have presented them.4 There has been no instance of this yet, but isolated discussion of this aspect suggests that in a contentious case the Court would not assume a task of this nature without the agreement of the parties.5 (This is something distinguished from the research that an individual judge may undertake.) Articles 95 and 107 of the Rules of Court are at the apex of this emphasis on facts. Those provisions require a judgment and an advisory opinion to include a statement of the facts. The Court is free to determine what facts are relevant for any judgment or advisory opinion, and there have been cases, both in the Permanent Court and in the present Court, in which a judgment or an advisory opinion went straight in medias res without any statement of facts.6 This paper concentrates on the Court and modern scientic and technological facts. Before doing that, however, we must note the special problem of factnding that the Court faces when one of the parties does not appear or fails to defend its case, for that is part of the Courts case-law on evidence. In those circumstances, Article 53 of the Statute of the Court requires the Court to satisfy itself that the claim is well founded in fact and law. The Courts experience of facts in this type of case is mixed. In the Corfu Channel (Compensation) case, the Court appointed a Committee of Experts to examine the gures and estimates submitted by the United Kingdom. The Experts placed a higher gure on the damages than was claimed, so the Court awarded the amount claimed on the basis of the ne ultra petita rule.7 In the provisional measures phase of the Anglo-Iranian Oil Company case, the Court relied only on the facts as presented in the memorial. However, provisional

3 4 5

ICJ Rep. 1949 4, 237. This follows Art. 30 of the Statute. The principal discussion of this aspect took place in the Military and Paramilitary Activities in and against Nicaragua (Merits) case, ICJ Rep. 1986 14, 22 (para. 25), 25 (paras. 30, 31), 38 (para. 57) and 40 (para. 61). This is one of the more questionable features of that judgment, which has excited widespread controversy. In the Permanent Court, see the Phosphates in Morocco case, PCIJ Ser.A/B 74 (1938), and in the present Court in an advisory opinion, Legality of the Threat or Use of Nuclear Weapons in Armed Conict, ICJ Rep. 1996I 226. The Court is always aware, form the documentation submitted to it by the Secretary-General or the equivalent ofcer of a specialized agency requesting an opinion, what prompted the organ concerned to request the opinion. The requirement of the Rules is technically met by a reference in the judgment or advisory opinion to the instrument instituting the proceedings and the subsequent proceedings. ICJ Rep. 1949 237 at p. 241.

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measures phases alone are not really indicative for the treatment of the merits. In the two Fisheries Jurisdiction cases against Iceland, the Court again relied only on the facts as stated by the applicants in their written and oral pleadings. There was no attempt to challenge or verify those facts. In the Nuclear Tests cases, the Court disposed of the cases on preliminary grounds without having to consider the merits. In the U.S. Diplomatic and Consular Staff in Tehran case, the facts on which the merits of the case depended were in the Courts own words matters of common knowledge which had received extensive coverage in the world press and in radio and television broadcasts from Iran and other countries.8 In the Military and Paramilitary Activities in and against Nicaragua (Merits) case, one of the witnesses called by the applicant was closely questioned by the member of the Bench with the nationality of the absent respondent party, and in fact he retracted large parts of his evidence-in-chief. Nevertheless, the Court preferred that evidence, partly on the ground that a State that does not take part in the proceedings waives its right to cross-examine the witnesses.9 There is no question that modern international relations, and hence modern diplomacy and modern international litigation, is daily becoming increasingly concerned with scientic and technological facts. The law too, all law including international law, has to face this. For Governments, this interdisciplinary work does not present any insurmountable problem. Faced with any matter of this kind, most Governments can call upon appropriate expertise, whether in the country itself from its academic, scientic, military and technological communities or from the outside. The development of government positions in the Third United Nations Conference on the Law of the Sea, which posed innumerable questions relating to almost every branch of human knowledge, activity and science, provides an excellent example for this. A small illustration is seen in the evolution of the so-called Bay of Bengal clause, article 7, paragraph 2, of the United Nations Convention on the Law of the Sea. That was originally drafted with the Ganges/Brahmaputra River delta particularly in mind. However, it raised problems for any country with or near a river delta. That provision went through a series of drafts, indicating prolonged and widespread governmental study of the problem of deltas.10

10

ICJ Rep. 1980 3, 9 (para. 12). Nevertheless, reliance on the media, especially in cases of nonappearance, must be treated with care. Cf. the retraction by CNN of an important story broadcast by a Pulitzer Prize journalist in the International Herald Tribune Tel Aviv edition, 45 July 1998 at p. 5. ICJ Rep. 1986 14, 25 (para. 30). Facts that have become known since suggest that the Court may have erred in its ndings of fact in this case. See Sh. Rosenne, The World Court: What it is and How it works 5th edn. 152 (1995). For that Convention, see 1833 UNTS 3. On that legislative history, see University of Virginia,

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For the International Court of Justice, for all courts and tribunals in fact, the position is quite different. Courts, even with the widest powers for obtaining evidence, do not have this unlimited ability to place a telephone call or send a fax or today an e-mail to whomsoever they wish for an expert practice-oriented opinion as a matter of applied science. They are all largely dependent on the evidence placed before them. In practice, they will have recourse to outside experts only when their participation in the proceedings has been agreed between the parties and the Court. Nevertheless, as Sir Robert Jennings has written, the International Court has not infrequently employed cartographers, hydrographers, geographers, linguists and even very specialized legal experts to assist in the understanding of the issues in a case before it.11 That is a signicant observation. It highlights the tension that inevitably exists between the legal conception of fact and of evidence, and the conception which other disciplines, especially the exact and applied sciences, hold about facts and evidence. This calls for a closer examination in so far as it concerns litigation in the International Court of Justice. In addition, thanks to new provisions inserted into the Statute when it was redrafted in 1945, the Court now has the power to request of public international organizations what is termed information relevant to cases before it.12 This is not limited to the specialized agencies, which, however, by virtue of the relationship agreements concluded between them and the United Nations are obliged to render appropriate assistance to the International Court. The Statute does not state how this information is to be given, and there is no reason why the experts of the appropriate public international organization should not supply it in person, and be subject to questioning by the parties and from the Bench. The existence of this tension appeared in the rst contentious case to come before the present Court the Corfu Channel case.13 The issue concerned the facts of offensive and defensive naval operations in mine-infested waters in a situation of post-war international tension and uncertainties. One sentence in the judgment on the merits in that case illustrates the point. Being anxious to obtain any technical information that might guide it in its search for the truth, the Court submitted the following question to the Experts

11

12 13

Center for Oceans Law and Policy, S. Nandan and Sh. Rosenne (eds.), The United Nations Convention on the Law of the Sea: A Commentary, vol. II at p. 95 (1993). No doubt many geographers, geologists and other experts on river delta were consulted world-wide before that text was nally settled. R. Jennings, International Lawyers and the Progressive Development of International Law, in J. Makarczyk, ed., Theory of International Law at the Threshold of the 21st Century: Essays in honour of Krzysztof Skubiszewski 416 (1996). Statute, Art. 34, para. 2. On the application of this, see Sh. Rosenne, The Law and Practice of the International Court 19202005, vol. II 620 (2006). ICJ Rep. 1949 4.

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appointed by it (p. 20). The Experts were three senior neutral naval ofcers with wartime experience, and the questions were formulated after the parties had been given the opportunity to make suggestions to the Court.14 In producing their reports, the experts acted as professional naval ofcers reporting on a naval incident to their authorities. Those reports did not decide the case. They supplied the Court with correct and impartial information (p. 21) on which the Court could base its ndings of fact as the foundation for its decision. The use of the word information has its interest. Information is distinguished from evidence. That was the rst occasion on which the International Court, as opposed to Governments, had enlisted impartial and professional assistance to supply it with information necessary for it to reach a tenable conclusion. That was the rst occasion on which the International Court, and probably any international tribunal, accepted that legal criteria and experience alone could not always be adequate for the tasks that the Court had to perform. Nevertheless, the Court has so far refrained from pursuing a similar course when faced with carefully prepared technical and professional contentions in both advisory and contentious cases. It has always attempted to resolve these issues solely through the application of the Courts legal techniques. Three examples illustrate this, one from the advisory jurisdiction and two from the contentious jurisdiction. In the advisory jurisdiction, the most striking instance is found in the advisory opinion on Legality of the Threat or Use of Nuclear Weapons.15 The only piece of impartial scientic information ofcially before the Court, and then not in that case but in the parallel case of Legality of the Use by a State of Nuclear Weapons in Armed Conict16 was a report by the Director-General of the World Health Organization entitled Health and Environmental Effects of Nuclear Weapons.17 In the advisory opinion under consideration, the Court stated quite clearly that it found it unnecessary to study various types of nuclear weapons and to evaluate highly complex and controversial technological, strategic and scientic information (p. 237, paragraph 15). In another place the Court referred to the material before the Court regarding the causes of damage in nuclear weapons, but without any indication of what that material was or its provenance (p. 243, paragraph 35). That indeed was in the introductory paragraph to the main part of its opinion. In one of the operative clauses of that advisory opinion the Court went so far as to refer

14

15 16 17

Corfu Channel case, Pleadings, vol. V, pp. 230, 240, 243, 246, docs. 249, 266, 275, 279. The parties did not avail themselves of that invitation and left the matter in the hands of the Court. ICJ Rep. 1996I 226. ICJ Rep. 1996I 66. WHO doc. A46/30, 26 April 1993.

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to the elements of fact at its disposal (p. 266, paragraph 105 (2) E). This did not prevent a remarkable dissenting opinion by Judge (later Vice-President) Weeramantry largely devoted to the nature and effects of nuclear weapons.18 In that dissenting opinion Judge Weeramantry found it necessary to examine the specic facts, at least in outline (p. 451), because bland and disembodied language should not be permitted to conceal the basic contradictions between the nuclear weapon and the fundamentals of international law (p. 452). The purpose of that observation here is to illustrate the Courts handling of difcult scientic questions exclusively within the connes of legal concept of facts.19 The second illustration, and in some respect the more serious, is the judgment in the Continental Shelf case between Tunisia and Libya.20 Certainly, the core issue in that case was the legal meaning of the fundamental concept of the continental shelf as the natural prolongation of the land domain (p. 43, paragraph 36). Each side produced a large quantity of technical evidence on the geological and geomorphologic history of the formation of the relevant part of the sea-bed. Clarication of that issue would have gone a long way towards disposing of the case as a whole. Much of that judgment examines the contentions of the parties regarding the character of the seabed. That had been the subject of very abundant examination by the Parties, and of detailed scientic studies by their experts [necessarily partisan Sh. R.] during the written and oral proceedings (p. 41, paragraph 32). That was to require the Court to appreciate a Libyan argument based on a comparatively recently developed theory known as plate tectonics (p. 59, paragraph 52). However, the Court concluded this lengthy if simplied account of geological theories with the following:
[I]t is not possible to dene the areas of continental shelf appertaining to Tunisia and to Libya by reference solely or mainly to geological considerations. The function of the Court is to make use of geology only so far as required for the application of international law. It [the Court] is of the view that what must be taken into account in the delimitation of shelf areas are the physical circumstances as they are today; that just as it is the geographical conguration of the present-day coasts, so also it is the present-

18

19 20

Note 15 above. Judge Weeramantry in effect was continuing his dissenting opinion in the parallel case, ibid. at 97. These opinions themselves follow on his earlier opinion in the Request for Examination of the Situation in accordance with Paragraph 63 of the Courts Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) case, where he concentrated on the environmental aspects of submarine nuclear tests, ibid. at 317. My views on these cases are set out in an article entitled The Nuclear Weapons Advisory Opinions of 8 July 1996, Israel Yearbook on Human Rights 1997 at 263. ICJ Rep. 1984 18. Nevertheless, if this material was irrelevant for the decision, some method should have been found to apprise the parties of this earlier in the proceedings, if only to save them from unnecessary expenditure.

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day sea-bed, which must be considered. It is the outcome, not the evolution in the long-distant past, which is of importance (p. 53, paragraph 61).

To say that the issue thus examined was close to the core of the case is not a satisfactory answer to the question of principle that is being examined here. That question addresses the correctness and even the appropriateness of a procedure that allows and even requires the parties to go to the lengths that they did in this case, and to incur the heavy expenditure that they did incur, only to be told that in legal terms what is relevant is the sea-bed as it exists today, and not how it was formed over millions of years and its evolution in the long-distant past. On the other hand, if the geological history had been found to be relevant, the question could have arisen whether the Court alone should even attempt to assess that technical evidence as submitted to it. If, as in this case, the Court is to nd that there is no relevance in certain scientic evidence and the issues to which that evidence is directed, procedures need to be put into place to permit the matter to be dealt with as early as possible. The written proceedings should in most cases present a sufcient basis, with perhaps a short hearing directed exclusively to that issue. This would simplify the proceedings on the merits and clarify the nal decision of the Court. That aspect of this case has been brought in here to illustrate how modern science comes into modern international relations and hence into modern international litigation, and the need for the Court to adapt its procedures to this. The Court seems to have reached a similar position in the GabckovoNagymaros Project case between Hungary and Slovakia.21 A major factual issue in this case related to the contention of Slovakias responsibility for a grave and immediate peril to the environment to Hungarys detriment. On this, the judgment states that the verication of the existence of the grave and imminent peril invoked by Hungary and of the absence of any means to respond to it other than the measures actually taken by Hungary to suspend the work, are all complex processes. The judgment continues:
Both parties have placed on record an amount of scientic material aimed at reinforcing their respective arguments. The Court has given most careful consideration to this material, in which both Parties have developed their opposing views as to the ecological consequences of the Project. It concludes, however, that, as will be shown below, it is not necessary, in order to respond to the question put to it in the Special Agreement, for it to determine which of those points of view is scientically better founded (paragraph 54).

Nevertheless, later in that judgment the Court made pronouncements regarding the environmental impact of the Project and the duties of the parties in
21

ICJ Rep. 1997 7.

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regard to the protection of the environment, which was a key issue for their future relations: The numerous scientic reports which have been presented to the Court by the Parties even if their conclusions are contradictory provide abundant evidence that this impact and these implications are considerable (paragraphs 139 and following). Would it not have been better for the Court to have sought impartial technical information and thus rendered a judgment more specic on these scientic matters? This brings me to the crux, and here let me recall at the start that the International Court is not the only superior court to have to face this problem. There is however one major difference between the International Court and other superior courts. The International Court is a court of rst instance and a court of last resort, for its judgments are nal and without appeal. It is this provision of Article 59 of the Statute that is likely to pose special difculties for the Court when confronted with this kind of question. The Supreme Court of the United States has frequently had to face this problem, and the Federal Rules of Evidence make appropriate provision for it. The Court reviewed the issue of scientic evidence at the end of 1997, in a tort case involving medical injuries.22 Justice Breyer delivered an important concurring opinion regarding the duties of a trial judge to ensure that any and all scientic testimony or evidence admitted is not only relevant, but also reliable.
This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientic methodology and its relation to the conclusions an expert witness seeks to offer, particularly when a case arises in an area where the science itself is tentative or uncertain.

The learned Justice continued:


I want specially to note that, as cases presenting signicant science-related issues have increased in number . . . judges have increasingly found . . . ways to help them overcome the inherent difculty of making determinations about complicated scientic or otherwise technical evidence. Among these techniques is an increased use of . . . pretrial conference authority to narrow the scientic issues in dispute, pretrial hearings where potential experts are subject to examination by the court, and the appointment of special masters and specially trained law clerks.

Justice Breyer referred here to an amicus curiae brief led by the New England Journal of Medicine. The brief suggested that reputable experts could be

22

General Electric Company et al. v James et al. (1997) Nos. 96188, 118 S. Ct. 512 (certiorari). This was a toxic tort case, and the action in the Supreme Court related to the lower courts handling of expert evidence. Copy of the opinions of the Supreme Court received through the courtesy of Mr Peter Bekker of McDermot, Will & Emery of New York.

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recommended to courts by established scientic organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science. He then quoted a provision in the Rules of Evidence to the effect that the court may, of its own motion or on the motion of any party, appoint an expert on behalf of the court. The parties may agree on this expert, or the Court may make the choice. He concluded:
Given this kind of offer of cooperative effort, from the scientic to the legal community, and given the various Rules-authorized methods for facilitating the courts task, it seems to me that [the Courts] gatekeeping requirement will not prove inordinately difcult to implement; and that it will help to secure the basic objectives of the Federal Rules of Evidence; which are, to repeat, the ascertainment of truth and the just determination of proceedings.23

The amicus curiae brief led by the New England Journal of Medicine deserves closer scrutiny.24 Discussing the nature of scientic evidence, the brief made the following remark:
Perhaps the most important hall mark of science is its complete reliance on objectively veriable evidence. That usually means that something must be counted or measured. The reliance on concrete evidence distinguishes science from all other human endeavors (p. 5).

Dealing with medical evidence, the brief explains the scientic method. First the scientist needs to formulate the question he wants to answer and design a study that is capable of answering it. After the study is designed, researchers must collect data. This is the concept that many nonscientists are least comfortable with, because it reduces everything to numbers. The brief points out (p. 10) that everything cannot be reduced to numbers, but some things can and must be; and it continues:
To reach a conclusion about the physical world, we need numbers because they are often the only way that evidence can be expressed. What is enumerated depends on the study design. When the data are assembled, they must be analyzed appropriately. Often the analysis consists of comparing one set of data with another set to lead to a logical conclusion (p. 10).

The brief turns to the nal step in a research study, drawing the proper conclusions. Interpreting a study is perilous because of the strong temptation to reach conclusions that are more encompassing than the evidence will support

23 24

LEXIS 7503* at *8. Brief received through the courtesy of Mr Donald Schnabel of New York and the New England Journal of Medicine, Boston, Massachusetts.

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(p. 11). And it goes on: Mistakes in drawing conclusions are particularly likely when researchers have strong preconceptions about the question they are studying. The conclusions of research study must be limited to those and only those that follow logically and necessarily from the data (ibid.). The brief looks at what it terms Peer review and Publication.
In science, the requirement for veriable evidence must be met, no matter what the researchers are or what their credentials. Not even Nobel laureates are permitted to base a scientic conclusion on educated speculation. (They can, of course, speculate or hypothesize, but that speculation will not be accepted as evidence unless it is put to the test.) One of the most important protections against unwarranted conclusions is the system of peer review and publication . . . Researchers are expected to write up their study in a standardized way, with sections dealing with the methods, results, and conclusions, and submit the paper to a scientic journal. The editors of the journal then send the paper for evaluation by other scientists working in the same eld. This process of peer review is the cornerstone of scientic research. (Note that scientists performing peer review evaluate the researchers study design, technical methods, analysis and interpretation, not their principles, theories or hypotheses.) The reason peer review is so important that even the most honest researchers cannot be expected to judge their own work dispassionately. They are likely to be enthusiastic about their ideas and, almost by denition, not aware of aws in the design of their study or the interpretation of their data. The process of interpretation is seldom clear-cut, and it is easy to be unaware that the data are inadequate to support the conclusions. Without the discipline of organizing and presenting their evidence, and without the criticism and revisions stimulated by the peer-review process, researchers may unconsciously misrepresent their work or exaggerate its importance (pp. 1112).

Next the brief examines scientic uncertainty. In addition to the reliance on objective evidence collected in properly designed studies, science is also characterized by its tentativeness. This may seem counterintuitive to nonscientists who may think science is cut-and-dried. But, in fact, good scientists rarely reach absolute conclusions (p. 13). After some further interim discussion, the brief addresses the major question of dening evidence in science and in law.
The most important feature of scientic research is its dependence on objective evidence. No scientic conclusion can be accepted without evidence. This is perhaps the only feature of science that it absolute. The law also depends on evidence, but the term has a different meaning in a courtroom. The opinion of a properly qualied expert witness is considered to be evidence. Expert witnesses need not, however, produce objectively veriable data to buttress their opinions, let alone point to a consistent body of research published in peer-reviewed scientic journals. In a sense, this is the reverse of the scientic method. In science, objective evidence leads to an opinion; in the courtroom, the opinion of an expert becomes evidence. A courts emphasis on the qualications of expert witnesses is very different from the standards of science, in which

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ad hominem considerations are minimized. Scientists are trained to look at the strength of the data, not the credentials of the researcher. Associated with the laws emphasis on the credentials of expert-witnesses is a highly individualistic view of science. In the courtroom, the testimony of expert-witnesses may be based on their own research, published or unpublished (p. 17).

Against that background the brief approaches the cardinal issue of how to bring science and the law together. It is this passage that particularly attracted Justice Breyers attention. It makes the constructive suggestion that reputable experts could be recommended to courts by established scientic organizations. These experts, representing neither side, could evaluate the expert testimony and generally interpret for the judge the current scientic knowledge about the matter at hand. In essence, the scientic community, by relying on its usual methods of research, peer review and publication, would be helping the judge to fulll his or her required . . . role of screening testimony for reliability and relevance (pp. 1819). And the conclusion:
A scientic question can be answered only through rigorous scientic research. There should not be one standard for scientists and another for the courtroom (p. 19).

This idea of combining the rigour of the scientic community with the requirements of the courtroom is worthy of further consideration in the international context. In a sense, that is what the Court did in the merits phase of the Corfu Channel case when it requested experienced neutral naval ofcers to assist it in establishing, or perhaps in better understanding, conicting or inconclusive testimony about the facts. The Court was careful in that case not to allow the experts to decide the case. The Court cannot fail to give great weight to the opinion of the Experts who examined the locality in a manner giving every guarantee of correct and impartial information (p. 21). From all the facts and observations which it mentioned, the Court drew its own conclusions (p. 22), and those conclusions formed the basis for the conclusions in law on which the Court decided the case. The concept of enlisting duly qualied scientic bodies in a binding decision-making process has been introduced into modern international law in the United Nations Convention on the Law of the Sea of 1982 (n. 10 above). Article 289 provides that in any dispute involving scientic or technical matters, a court or tribunal exercising jurisdiction under the Convention may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientic or technical experts chosen preferably from the relevant list prepared in accordance with Annex VIII of the Convention, to sit with the court or tribunal but without the right to vote. The International Court can (under article 287 of the Convention) exercise jurisdiction under this Convention, so that article 289 could be applicable to it

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provided that the Court is satised that it is not incompatible with any provision in the Statute. Annex VIII of the Convention is based on the same conception. It deals with what is there termed Special arbitration, that is arbitration by a panel not necessarily composed of lawyers. Four types of special arbitration are envisaged there, relating to: (1) sheries, (2) protection of the marine environment, (3) marine scientic research and (4) navigation, including pollution form vessels and by dumping. For this purpose, lists of experts are to be drawn up by the Food and Agriculture Organization, the United Nations Environment Programme, the Intergovernmental Oceanographic Commission and the International Maritime Organization. While the parties to a special arbitration do have a certain freedom as to whether the panel shall be composed exclusively of persons on the appropriate list, the International Tribunal for the Law of the Sea, established by article 287 and Annex VI of that Convention, will be bound to apply article 289. In article 15 of its Rules of Tribunal it has established a regular procedure for the application of article 289.25 The International Court of Justice is the principal judicial organ of the United Nations,26 and there is a widespread view that this makes it the principal judicial organ of the whole United Nations system. That system includes not only the specialized agencies, two of which (FAO and IMO) only are mentioned in article 289 of the Law of the Sea Convention, but also a vast and perhaps amorphous conglomeration of miscellaneous organs (many of which would defy formal description within the terms of Article 7 of the United Nations Charter),27 embracing virtually every branch of human activity. Alongside the intergovernmental bodies, there are an even larger number of non-governmental organizations, including many scientic bodies meeting the requirements that the New England Journal of Medicine has enumerated. Justice Breyer was speaking as a member of the highest court in the land, in a case that had already gone through appropriate proceedings in the lower courts. He mentioned three ways to help judges overcome the inherent difculty of making determinations about complicated scientic or otherwise technical evidence: pre-trial conference, pre-trial hearings, and the appointment of special masters and specially trained law clerks.

25

26 27

For the ITLOS Rules of the Tribunal, see ITLOS, Basic Texts 2005, 16 (2005). In fact, the idea is older and is found in art. 9 of the Convention on Fishing and Conservation of the Living Resources of the High Seas of 1958, 559 UNTS 285. That envisages compulsory dispute settlement by a commission consisting of persons specializing in legal, administrative or scientic questions relating to sheries, depending on the nature of the dispute to be settled. No dispute has been brought before such a commission for settlement. Charter. Art. 7. Cf. D. Sarooshi, The Legal Framework Governing United Nations Subsidiary Organs, 67 British Year Book of International Law 413 (1996).

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All these machineries exist, at least potentially, in the Statute and Rules of the International Court. The concept of pre-trial conference was introduced formally (it has always existed in fact) in Article 40, paragraph 1, of the amended Rules of 1972 (previously Article 37 of the 1946 Rules). It is now retained, in a slightly revised form, as Article 31 of the Rules of 1978. As formulated, and as applied in practice in effect from the establishment of the Permanent Court in 1922, these conferences have been limited to participation of the representatives of the parties and the President (including the Acting President) alone, apart from the all-important Registrar. They are off the record in the sense that whatever notes participants may make of them, no formal record is published. No other member of the Court is present. Much of what is discussed at these conferences is not controversial, or not seriously so, such as the xing of time limits and other aspects of procedure. The time has come for reconsideration of the function and nature of these consultations and of participation in them. For non-controversial matters, there is no need for any change. But in complicated matters, the question may be asked whether there is not room for developing the whole concept of consultation into some form of pre-trial conference at which issues in dispute could be narrowed down. Could not other Members of the Court be added to the participants? The Vice-President and perhaps the next senior judge? Judges of the nationality of the parties, whether Members of the Court or ad hoc? Or perhaps the Chamber of Summary Procedure could be converted into a kind of Steering Committee at which pre-trial controversial aspects could be examined and narrowed down? The President and VicePresident are ex ofcio members of that Chamber and there are provisions for the participation of national or ad hoc judges. There are other possibilities, but this is not the place to detail them. The essential point is that under the current Statute and Rules of Court the possibility of a more developed pre-trial conference than has been encountered hitherto certainly exists, and that consideration should be given to expanding its role in appropriate cases. For instance, should the parties in the Tunisia/Libya case have been obliged to pursue expensive pleadings about plate tectonic theories if the Court was to nd them irrelevant? Could not some procedure have been devised for that issue of relevance in those proceedings to be ironed out earlier? Should Hungary and Slovakia have been put to the huge expense of experts reports and pleadings, only to be told that the scientic data was irreconcilable, leaving the Court to making some general statements about their duties in regard to the protection of the environment and its reconciliation with economic requirements problems which in their generality are well known? The possibility of pre-trial hearings where potential experts are subject to examination by the Court is something that needs to be explored. The Statute would certainly permit the introduction of this procedure, through Article 48. What little experience there is of the examination of party-called

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experts by the Court in formal hearings in the South West Africa (Merits) cases, for instance leaves the reader with a deep feeling of unease. By temperament, by training, and by experience, very few of the Members of the International Court of Justice are really qualied to assess the credibility of a witness or the reliability of an expert. The diplomatic or academic background of many of them militates against their nding that a witness was not telling the truth, or that an expert was not being objective or even that the person was not qualied, or holding that a document led was for any reason not authentic or accurate and for that reason inadmissible. In the Corfu Channel (Merits) case the Court simply said what it said [w]ithout deciding as to the personal sincerity of the witness . . . or the truth of what he said.28 In the South West Africa (Merits) case the Courts unease at the hearing of a long series of witness-experts and its unhappiness when their expertise was challenged on the voir-dire comes through virtually every page of their long testimony.29 If the authenticity or accuracy of a document is challenged, usually a discreet way is found to dispose of the issue, but occasionally contentions relying on that document have been withdrawn, not requiring any reaction from the Court.30 Finally we come to the idea of special masters. In the Anglo-American legal system, the term Master is applied to court ofcials with quasi-judicial powers, usually subject to control of a judge or an appeal to a judge. A special master is an ofcer of the court appointed, after consultation with the parties, to assist the court, for instance by hearing about the facts and reporting to the court before the case comes to trial. This leaves the decision to the court. There is nothing to prevent the International Court from adopting such a procedure when it is faced with complicated facts, and especially with technical facts. Here again, Article 48 of the Statute at least, and together with it Articles 49 and 50, supply a statutory basis for the introduction of this type of proceeding.

28

29

30

Note 13 above at p. 16. Re-reading that witnesss evidence after the passage of nearly 60 years, one is impressed at the diplomatic manner in which the Court then disposed of the issue of his credibility. It is doubtful if a national Court would have been so rened. On this, see K. Highet, Evidence, the Chamber and the ELSI case, in R.B. Lillich, ed., Fact-nding before International Tribunals, Eleventh Sokol Colloquium (1997) at p. 54 n. 58. See also D.V. Sandifer, Evidence before International Tribunals, revised edn, 340 (1975). An incident of this character occurred in the Arbitral Award of the King of Spain case, ICJ Rep. 1960 192. It is not mentioned in the judgment, but see the Pleadings in that case, vol. II at pp. 168, 169. In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, one party challenged the authenticity of a large number of documents led by the other party. After consultation with the President and after deliberation the Court in its order of 30 March 1998 adopted a special procedure for dealing with the matter at the stage of the written proceedings, ICJ Rep. 1998 243.

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At the same time, a word of caution is required. It would be essential that all these procedures, if they become applicable in the International Court and in international litigation generally, should by narrowly focused on an immediately relevant issue, whether of fact or of law, or of both, on which the parties and the Court have agreed. If that is not done, there is always a risk that they would degenerate into what is sometimes called a shing expedition. In domestic litigation processes such as discovery are sometimes used for this purpose, under the control of the court or tribunal seised of the case, and there is no reason why similar practices should not be introduced into the Courts procedure. But that is essentially a procedure between the parties. The three procedures suggested in the U.S. Supreme Court which are seen to be appropriate and applicable in the International Court are not purely procedures inter partes, but require the active participation of the Court or its delegated representatives in all phases. * * * The Permanent Court of International Justice adopted the rst Rules of Court in 1922. These were amended slightly in 1926, 1927 and 1931. They were thoroughly revised in 1936. The records of the Permanent Courts discussions on those Rules of Court have been published. Experience has shown those records to be essential for a proper understanding of the Rules. The International Court of Justice adopted those Rules, with minor modications, in 1946. They were amended in 1972 and thoroughly revised in 1978. No records of those discussions have been published. Yet on closer inspection one can see that basically, the Rules as they exist today do not differ in their fundamentals from those rst adopted in 1922, notwithstanding the thick crust of judicial experience deposited on them. The original Rules were in the nature of things heavily inuenced by international arbitration practice as it had developed throughout the nineteenth century. The 1978 Rules incorporate modications and additions for the most part based on accretive judicial experience. Yet in fact the Rules have only been seriously reexamined twice since their initial promulgation, in the revisions of 1936 and of 1978. Neither of those revisions disturbed the fundamental structure or elements of the Rules of Court as rst set out by the Permanent Court. It is becoming increasingly realized that international law all law in fact is growing daily more interdisciplinary and even multi-disciplinary. This interdisciplinary character has two aspects. In one sense it is becoming more and more difcult to break the law down into independent or semiindependent branches or categories. The classication of a rule or law is a matter of great difculty, both philosophically and pragmatically. In international law and relations this nds expression in the virtual impossibility of separating substantive and adjectival law the black letter rules of the law themselves and the rules of procedure for their application. The second sense of this interdisciplinary character serves to indicate that the law cannot be

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successfully developed, understood, or applied, in a world of itself. It is interfused with other disciplines, and with other branches of human activity, of human interest and of human science. The brief quotations from the Nuclear Weapons advisory opinion give an inkling of that is in mind. With these developments rapidly unfolding before our eyes, we have to ask ourselves repeatedly whether the machinery for the application of the law is adequate for the life of the twenty-rst century. Can the principal judicial organ of the United Nations continue to be governed and to govern itself and its activities on the basis of rules now over 85 years old? One can go further. In intellectual and academic circles the question is being asked with growing frequency, whether the settlement of disputes through courts composed exclusively of lawyers is the most appropriate form of a dispute settlement organ. That is the challenge. That is where the Courts procedures for handling evidence and scientic information are urgently in need of aggiornamento, of bringing up to date. We have to be grateful to the New England Journal of Medicine and to Justice Breyer for their showing us some of the ideas that have to have their place in a modern judicial system.

15
CONTROLLING INTERLOCUTORY ASPECTS OF PROCEEDINGS IN THE INTERNATIONAL COURT OF JUSTICE

Profound changes in the structure and composition of todays international community of states and equally profound changes in the kinds of dispute coming before the International Court of Justice are making essential a thorough review of the Courts methods of handling contentious cases, and possibly advisory cases as well. Attention has been focused on hearings, where some useful modications have been introduced. It seems, however, that more is needed than adjustments in the oral proceedings, which nevertheless can serve as the point of departure for further developments. Article 48 of the Statute gives the Court almost unfettered power to make orders for the conduct of the case . . . and to make all [emphasis supplied] arrangements connected with the taking of evidence. As will be seen, in 1999 the General Assembly of the United Nations has encouraged the Court to adopt additional measures aimed at expediting its proceedings. This Note has the limited purpose of drawing attention to some recent measures taken by the Court with that end in view, and suggests directions for a more fundamental change in the Courts procedures. The Courts former President, Judge S.M. Schwebel, in his statement to the United Nations General Assembly on 27 October 1997, indicated that the Court was adopting a range of alterations to its working practices, as part of its efforts to maximize the Courts efciency.1 Not all of these alterations have been announced, but some can be deduced from several of the Courts recent pronouncements. One of those unannounced alterations has been to dispense with a hearing, even in instances where the Statute or the Rules of Court in their 1978 version would appear prima facie to require hearing the parties.2 Instances of this are found in a judgment, in orders regarding the admissibility of counter-claims, in one order indicating provisional measures of protection, in an order concerning the admission of a request for permission to intervene under Article 62 of the Statute, and decisions under Article 31 of the Statute regarding the appointment of judges

1 2

UN Doc. A/52/PV.36 (provisional), p. 5 (27 October 1997). A linguistic curiosity one sometimes encounters in literature about the Court is the expression oral hearings. Are any other kinds of hearings possible? Perhaps yes, cf. note 8 below.

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ad hoc. All these relate to incidental proceedings, and all except the judgment relate to proceedings that were clearly interlocutory. This Note will survey this development and attempt to set it in a larger context. The remarks that follow are critical, for the reason that they suggest that not all the Courts decisions were compatible with the expectations generated by the Rules of Court. That criticism is not intended to deter the Court from adjusting its Rules to overcome those divergences. I. A judgment It is common ground that proceedings on a request for the interpretation of a judgment are independent proceedings, entered under a new number in the Courts General List. Article 98, paragraph 4, of the 1978 Rules of Court gives the Court freedom to decide whether, after the other party has led its written observations on the request for interpretation, to afford the parties the opportunity of furnishing further written or oral explanations. This notwithstanding, whether or not the Court exercises that discretion does not alter the fact that the proceedings introduced by the request are new proceedings, standing on their own. As such, one might think that they would come within the scope of Article 43, paragraph 1, of the Statute, by which the proceedings shall consist of two parts: written and oral (La procdure a deux phases: lune crite, lautre orale). That seems categorical enough and, being in the Statute, it overrides the Rules. Article 98 of the Rules cannot derogate from the Statute, and neither the Statute nor the Rules as they now stand foresee the possibility of dispensing with oral proceedings. In the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) (Interpretation) case, the Court held a public session for the purpose of enabling the two judges ad hoc to make the required solemn declaration. In that session, the President emphasized that a request for interpretation, inasmuch as it is submitted in an instrument instituting proceedings, does not fall within the category of incidental proceedings: it gives rise to a new case. That new case was procedurally independent from the principal case in progress between Cameroon and Nigeria following the dismissal of the preliminary objections. At the same time he stated that the Court considered that it had sufcient information on the positions of the parties after the ling of Cameroons observations, and accordingly did not consider it necessary to invite the parties to furnish further explanations.3 The Court then proceeded to deliberate and in due course handed down a judgment read at a public session of the Court. That judgment was slightly more explicit. It stated that in light of the dossier submitted to it, the Court,

ICJ, CR 99/3, 17 February 1999, p. 3.

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considering that it had sufcient information on the positions of the parties, did not deem it necessary to invite them to furnish further written or oral explanations as Article 98, paragraph 4, of the Rules allows it to do. In that judgment, the Court declared inadmissible the request for the interpretation of the earlier judgment.4 This is the rst time since the Permanent Court of International Justice commenced functioning in 1922 that a judgment of the Court has not been preceded by a hearing (as opposed to judgments of the Chamber of Summary Procedure, where different rules apply). The judgment creates a res judicata, and for that reason alone dispensing with a hearing is a questionable precedent, to be followed only in the most exceptional circumstances. There is no provision in either the Statute or the Rules that requires a decision on the admissibility of a request for the interpretation of a judgment to be in the form of a judgment, but if it is in that form, the judgment normally should follow the two-phased procedure required by the Statute. Furthermore, in this case, where the request related to the interpretation of an interlocutory judgment on preliminary objections, it might be thought that even if procedurally independent, the proceedings on the request itself would lead to an interlocutory decision which could be in the form of an order. II. Counter-claims In the 1978 Rules of Court, for unexplained reasons the Court introduced in Article 89, paragraph 3, the requirement that in the event of doubt as to the connection of a claim presented by way of counter-claim and the subject matter of the claim of the other party the Court shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings. In that text, the expression after hearing the parties replaced after due examination in previous texts, and the reader is justied in assuming that it means what it says. The categorical language of that provision led me to write that it means that in future there will always be some oral proceedings in the event of doubt.5 When those Rules were promulgated, neither the Permanent Court nor the present Court had had much experience of counter-claims, and none at all of cases where the

1999 ICJ Rep. 31. On this public session, see Press Communiqu 99/13 (22 March 1999). Judge ad hoc Ajibolas strong dissenting opinion shows that the question of the application of Art. 98 of the Rules was thoroughly ventilated in the Courts deliberations. Shabtai Rosenne, Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice 171 (1983); repeated in III The Law and Practice of the International Court 19202005, at 1232 (2006): and Counter-claims in the International Court of Justice Revisited, p. 267 below.

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admissibility of a counter-claim was challenged peremptorily immediately on receipt of the counter-memorial which made it reasonable to assume that should such a case occur, the Court would not diverge from the rule that it had established. This was rudely shattered in 1997, however. When the Court was for the rst time confronted with such a challenge to counter-claims presented in the counter-memorial, it reacted in an unexpected way. In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case, the applicants immediate reaction was to challenge the admissibility of those counter-claims and to request a hearing at an early date, in accordance with Article 80, paragraph 3, of the Rules. The President (Judge Schwebel) convened a meeting of the agents, who accepted to submit written observations on the question of the admissibility of the counterclaims, at the same time contemplating hearings on the question. These written observations, recited quite fully in the Courts Order, also envisaged a hearing. However, after deliberating on the basis of those written observations, the Court thought otherwise:
Whereas, having received full and detailed written observations from each of the Parties, the Court is sufciently well informed of the positions they hold with regard to the admissibility of the claims presented as counter-claims by Yugoslavia in the CounterMemorial; and whereas, accordingly, it does not appear necessary to hear the Parties otherwise on the subject.6

The Court then found that the counter-claims were admissible as such and formed part of the current proceedings.7 A similar scenario was repeated in another case a few months later. There, too, the Court required a set of written observations from the parties, after which, as in the case above, it decided that it had sufcient information, and proceeded to make an order admitting the counter-claim.8 In the last counter-claim case to date, no objection

7 8

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Counter-claims), ICJ Rep. 1997, 243, 256 (para. 26). The decision not to hold hearings was heavily criticized by Judge ad hoc Kre)ka (p. 267), Judge Koroma (p. 276) and Judge ad hoc Sir E. Lauterpacht (p. 279), but not by Vice-President Weeramantry in his dissenting opinion (p. 287). Id., passim. Oil Platforms, Counter-claim, ICJ Rep. 1998, 190. Judge Oda in his separate opinion criticized this procedure (at p. 215). On the other hand, Judge Higgins thought that oral submissions are neither required nor excluded by the terms of Art. 80 (3) and that the Court has found sufcient freedom to decide, notwithstanding the apparent limiting terminology of that provision, that the parties may be heard whether in writing or orally on the question of jurisdiction as well as on the question of the connection of the counter-claim with the original claim (at p. 223).

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was raised to the inclusion of counter-claims in the counter-memorial, and the Court, acting proprio motu, admitted them without further discussion.9 III. Provisional measures of protection Article 74, paragraph 3, of the Rules of Court provides that on receipt of a request for the indication of provisional measures, the Court shall x a date for a hearing which will afford the parties an opportunity of being represented at it. There had been no instance of an indication of provisional measures being made without a hearing until March, 1999. An urgent request for the indication of provisional measures relating to a person whose execution was scheduled for the following afternoon at 3 p.m. Arizona time was led in the Court at 7.30 p.m. (The Hague time) on 2 March 1999. At a meeting with the Acting President (Judge Weeramantry) at 9 a.m. (The Hague time) on 3 March, the applicant requested that the indication should be made without a hearing. The Court acceded to this request on the basis of Article 75, paragraph 1, of the Rules. That allows the Court to decide at any time to examine proprio motu whether the circumstances of the case require the indication of provisional measures.10 The Court has read the word examine as allowing it to make such an order without giving both parties the right to be heard, or at least to submit observations, on the matter. But can a Rule of Court exclude the basic principle Audiatur et altera pars? Examination of a situation proprio motu does not in itself empower the Court to make an order ex parte. IV. Intervention In cases of an application to intervene under Article 62 or 63 of the Statute, in which the admissibility of the intervention is to some extent a matter of discretion, the Courts practice is vacillating. In some cases it has decided
9

10

Land and Maritime Boundary between Cameroon and Nigeria, ICJ Rep. 1999II, 985. On the later Armed Activities on the Territory of the Congo (DRC v Uganda) case, see Counterclaims in the International Court of Justice, Essay 16, fn. 46 below. LaGrand Provisional Measures, ICJ Rep. 1999, 9. Reservations were expressed by President Schwebel in his separate opinion at p. 21. That decision was rendered at 7 p.m. (The Hague time), Press Communiqu 99/8 (3 March 1999). To appreciate the time element in this case, The Hague time is GMT + 1, and Arizona time is GMT 7. That is, there is an 8-hour time difference between The Hague and Arizona. Given the instantaneity of modern communications, and the fact that the United States Embassy at The Hague maintains a full Legal Section familiar with international litigation experience, there is no obvious reason why a brief hearing could not have been arranged for this case.

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not to deal with or not to admit the intervention without any hearing.11 Those decisions have been expressed in orders. In other cases, it has rejected a request (under Article 62) by a judgment rendered after written and oral proceedings. In those proceedings, one party had opposed the intervention.12 The res judicata thus created bound the Court and determined the geographical parameters of the delimitation that the Court was required to make. In another case being heard by a Chamber, the full Court was asked to determine the preliminary question whether the application for permission to intervene should be heard by the Court or by the Chamber. The Court sat in its current composition at that date. The President of the Chamber was no longer a member of the Court; he did not sit in the Court; and was not invited to be present, which would have been permitted in application of Article 1, paragraph 3, of the Rules.13 The two judges ad hoc also were not present in that deliberation of the Court. Two members of the Chamber who were also members of the Court at that time were present. Here too the Court in this unusual composition which included two members of the ve-member Chamber, considered that it was sufciently informed of the views of the states concerned without there being any need for oral proceedings which the Rules of Court did not require in this context, and which neither Nicaragua [the state seeking to intervene] nor the Parties had requested. The Court embodied its decision in an order.14 The Chamber then went on to decide in respect of the request for permission to intervene, its decision being in the form of a judgment.15 In the Land and Maritime Boundary between Cameroon and Nigeria (Application by Equatorial Guinea to intervene) case, although neither of the parties objected to that intervention, there was a difference between them as to the precise nature of the intervention. The Court, acting on the basis of the written observations, found that Equatorial Guinea had sufciently established that it has an interest of a legal nature which could be affected by any judgment which the Court might hand down for the purpose of

11

12

13

14 15

Nuclear Tests (Application of Fiji to Intervene), ICJ Rep. 1973, 320, 324; 1974, 530, 535; Military and Paramilitary Activities in and against Nicaragua (Application of El Salvador to Intervene), ICJ Rep. 1984, 215. In that case the Court decided by a vote not to hold a hearing. Delimitation of the Continental Shelf between Tunisia and Libya (Application of Malta to Intervene), ICJ Rep. 1981, 3; Delimitation of the Continental Shelf between Libya and Malta (Application of Italy to Intervene), ICJ Rep. 1984, 3. That provision has been applied once, to allow the Canadian judge ad hoc for the Delimitation of the Maritime Boundary in the Gulf of Maine Area case to be present at the meeting of the Court for the purpose of xing the initial time-limits for the proceedings in the Chamber which determined that case. ICJ Rep. 1982, 15. ICJ Rep. 1990, 3. ICJ Rep. 1990, 92.

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determining the maritime boundary between Cameroon and Nigeria.16 The Court therefore decided to admit the intervention to the extent, in the manner and for the purposes set out in the Application for permission to intervene. The order, which admits Equatorial Guiniea into the case as a non-party intervenor, makes no mention of any question of a hearing. V. Judges ad hoc Article 36 of the Rules provides, with respect to the choice of a judge ad hoc, that certain objections shall be decided by the Court, if necessary after hearing the parties. This question has recently arisen twice, and in neither case was it necessary to hear the parties. It rst occurred in the preliminary objection phase of the Lockerbie case between Libya and the United Kingdom. The British member of the Court (Judge Higgins) was ineligible to sit in that case, and the United Kingdom appointed Sir Robert Jennings, a previous member and president of the Court, as judge ad hoc. The Court invited the three governments concerned in the two cases (the United Kingdom, United States, and Libya), to submit observations on the application of that provision of the Rules. According to the judgment, after due deliberation, the Court, by ten votes to three decided to accept the appointment of the British judge ad hoc for that case. There is no mention of any hearing on the question.17 The second instance arose in connection with Yugoslavias ten cases against members of NATO in 1999, entitled by the Court the Legality of the Use of Force cases. Five of the members of the Court had the nationality of ve of the respondents. In the other cases, Yugoslavia objected to the choice of a judge ad hoc by the states concerned. Here again the Court, after due deliberation, found the appointment of the judges ad hoc justied in the provisional measures phase of the cases.18 * * * Despite this tendency to dispense with hearings if at all possible, there are two cases in which the Court held hearings contrary to what could be expected

16 17

18

Land and Maritime Boundary between Cameroon and Nigeria (Application by Equatorial Guinea for Permission to Intervene), ICJ Rep. 1999II, 1029 (para. 13). Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.K.) (Preliminary Objections), ICJ Rep. 1998, 9, 13 (para. 9). Legality of Use of Force (Yugo v. Belg.) (Provisional Measures) case, ICJ Rep. 1999I (para. 12), and the corresponding paragraphs in the orders of the same date in the cases against Canada, Italy, and Spain). Portugal did not appoint a judge ad hoc. The Court changed its position in the preliminary objections phase. See the case against Germany, ICJ Rep. 2004 320, 327 (paras. 15, 16).

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from the Rules of Court. That occurred in two of the Legality of Use of Force cases, those brought by Yugoslavia against Spain and against the United States. Article 38, paragraph 5, of the Rules, introduced in 1978, provides that when an 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 the 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 Courts jurisdiction. Yugoslavias application against the United States referred specically to Article 38, paragraph 5, of the Rules, and Spain invoked that provision in the oral proceedings. In its application against Spain, Yugoslavia purported to base the jurisdiction on each countrys declaration accepting the jurisdiction of the Court under Article 36, paragraph 2, of the Statute, and on the compromissory clause (article IX) of the Genocide Convention.19 Notwithstanding that by its terms the case did not come within the scope of Spains acceptance of the compulsory jurisdiction and that Spain had made a reservation to Article IX of the Genocide Convention, the case was entered in the General List (No. 112). A hearing took place on Yugoslavias request for an indication of provisional measures and both parties appointed a judge ad hoc. In the application against the United States, where there was no prima facie jurisdiction either since the United States had not accepted the compulsory jurisdiction and had also made a reservation to Article IX of the Genocide Convention Yugoslavia invoked Article 38, paragraph 5, of the Rules specically. That case too was entered in the General List (No. 114), and a hearing was held. In both cases the Court found that the lack of jurisdiction was manifest, declined to indicate provisional measures, and ordered each case to be removed from the General List.20 No explanation is given as to why those two cases were entered in the Courts General List which, according to Article 38, paragraph 5, of the Rules, should not have been done in the rst place. * * * The Court has justied dispensing with hearings on the ground that it was sufciently informed of the positions of the parties from the written observations submitted. It has done so even where there had been only one round of written observations, neither party having been given an opportunity to respond to the others observations. But ensuring that the Court is adequately
19 20

Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277. Legality of Use of Force (Yugo. v. Sp. and Yugo. v. U.S.), Provisional Measures, 1999 ICJ Rep. 761, 772 (para. 34) and 916, 925 (para. 29). These two cases were removed from the General List.

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informed of the position of each party is only one function of oral proceedings. The hearing is the rst direct confrontation of the parties face to face, and that alone can lead to a simplication of the issues. True, if the relations between the parties, and the delegations representing them before the Court, are cool, a hearing may exacerbate feelings, or bring in personal factors the better avoided. That is certainly a factor which the Court is entitled, even obliged, to have in mind. That may be an unarticulated premise of some of the cases noted here. While the Courts practices regarding hearings have become uncertain, this tendency to limit the oral proceedings, often a repetition of the written proceedings, is not to be discouraged. At the same time, we should note that the Court has formally introduced new practices as part of a broader effort to adapt itself to modern requirements and to reduce the costs of litigation. There was during the 1980s mounting criticism that, after a case had been heavily pleaded in written proceedings, the oral proceedings were much too drawn out. Many suggestions were made that the Court, following the practice in major national courts, including the Supreme Court of the United States, should exercise more control over the time allowed for the oral proceedings. In addition to the nancial costs to the Court, lengthy oral proceedings place a heavy nancial and logistical burden on the states participating in them and on their counsel.21 The issue had become acute with the growth in the Courts case-load. In the hearings in November 1995 in the two Nuclear Weapons advisory opinions, the Court laid down strict time limits within which each oral presentation was to be made. This is now regular practice. These time-limits are usually determined by the Court after consultation with the parties. In his concurring opinion in Application of the Genocide Convention (Counterclaims), Sir E. Lauterpacht drew attention to the confused and confusing terminology of the Rules of Court in the matter of how observations are to be presented to the Court, whether in writing or after a hearing, and suggested that when the Rules are next revised, this is a matter that needs clarication.22 He is certainly correct that there is much room for improvement and that litigants would welcome the clarication that he seeks. At present

21

22

No less than 50 public sittings, covering two full months, were required for the oral proceedings before a Chamber in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua intervening) case, and that after three rounds of written pleadings by the principal parties, and further pleadings by the intervening state. 1992 ICJ Rep. 351. Forty-ve public sittings were held in the merits phase of the Application of the Genocide Convention case in 2006 after two provisional measures phases in 1993, a preliminary objection phase in 1996 and a revision phase in 2003. For a particulars see Counter-claims in the International Court of Justice, Essay 16, fn. 33 below. Judgment in the merits phase was delivered after deliberations lasting approximately one year, on 26 February 2007. See supra note 7.

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there is no provision in the Statute requiring a judgment in any particular interlocutory proceeding. Only Article 61, paragraph 2, requires proceedings in revision of a judgment to be opened by a judgment.23 The Rules of Court require the decision to be in the form of a judgment only in Article 79, paragraph 7, concerning the decision on a preliminary objection, and in Article 99, on revision of a judgment (following Article 61 of the Statute). In all other cases in which a decision of the Court may be required, the Rules are indifferent as to the form of the decision, which may be in a judgment, a formal order, or a simple decision duly conveyed to the interested parties. A clarication of the Rules of Court would not be enough, however. As is apparent from the foregoing survey of the Courts recent treatment of hearings, it is most desirable that the Court provide clearer indications of what its practices will be under whatever Rules are in force. The current situation is a source of difculty for states and their legal advisers. It is important to try and assess factors that could lead the Court to hesitate today before it applies literally Rules of Court last drawn up in 1978. When the Permanent Court was established (1920), and likewise when the present Court was established (1945), the international community of states that both were designed to serve was small in number around 50 or so and relatively compact, and war-weary. Both in 1920 and in 1945, the craft of diplomacy was also relatively elitist, and its practitioners reasonably close knit. At the end of the century, the situation is quite different. The international community of states parties to the Statute now reaches the gure of 192, of which one only, Holy See, is not a member of the United Nations. This change is the direct consequence of two processes in part interrelated, since both can trace their origin to the human rights provisions of the Charter and the evolution of the concept of self-determination. One is the massive decolonization of Africa, Asia and the island states of the Pacic. This process has continued virtually without a break since the General Assembly of the United Nations adopted its decolonization resolution 1514 (XV) of 14 December 1960. In the last decade of the twentieth century, the distant relation of the decolonization process was the dissolution of federal states in Europe following the end of the Cold War, bringing in its train the emancipation of the mini-States of Western Europe and their membership in the United Nations. This completely unforeseen increase in the number of

23

There have been three instances in which this provision has been invoked, namely, the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v Libya), ICJ Rep. 1985 192; Application for Revision of the Judgment of 11 July 1996 in the Application of the Genocide Convention case (Yugoslavia v Bosnia & Herzegovina), ICJ Rep. 2003 7; Application for Revision of the Judgment of 11 September 1992 in the Land, Island and Maritime Frontier Dispute (El Salvador v Honduras), ibid. 392.

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states parties to the Statute (to which the Court is therefore open) has in the nature of things swollen the Courts workload, both actual and potential, beyond all expectations.24 Quite apart from that, often the language of parliamentary diplomacy is direct and even shrill, and although this has not yet found a place in Court proceedings, some speeches have come close to the borderline of propriety. A tandem development is the increased bulk of documents often annexed to pleadings. In addition, governments today are much more answerable to their constituencies than they were in 1920 or even in 1945. To withstand public and often hostile scrutiny at home, very full and heavily documented pleadings are required in an international case one consequence of the democratization of public affairs. Unlike other United Nations organs, the Court does not work on programs to be picked up and dropped at will or at the behest of some other organ. The Court is not free to choose what it will do, and it cannot adjust its work to the happenstances of this or that nancial crisis of the United Nations. Nor can it grade disputes like eggs, seeing one dispute as large and another as small, the small ones going to a Chamber. For the parties all disputes are major, and States resorting to the Court are entitled to have their case decided by all available judges, regardless of whether the matter involves thousands of square miles of territory, or the location of a few frontier posts, or an island so small that one needs a magnifying glass to see it on all but the largest of charts and maps. The increasing nancial stringency of the United Nations is another factor that has affected the Court. Indeed, nancial constraints had become so

24

The following contentious cases decided since 1960 have involved at least one decolonized or defederalized party: Northern Cameroons (Cameroon v. U.K.) (1963); ICAO Council Appeal (India v. Pak.) (1972); Pakistani Prisoners of War (Pak. v. India) (1973); Continental Shelf Delimitation (Tunisia/Libya) (1981, 1982, 1985); Continental Shelf Delimitation (Libya/Malta) (1984, 1985); Frontier Dispute (Burk. Faso/Mali) (1987); Certain Phosphate Lands in Nauru (Nauru v. Austl.) (1993); Territorial Dispute (Libya/Chad) (1994); Maritime Delimitation between Guinea-Bissau and Senegal (1995); Gabckovo-Nagymaros Project (Hung./Slovk.) (1997); Kabilu/Sedudu Island (Bots./Namib.) (1999); Application of the Genocide Convention cases (1996, pending); Croatia v Yugo. (pending); the Aerial Incident at Lockerbie case (Libya v United Kingdom, Libya v United States of America, not joined (1998, discontinued); Arbitral Award of 31 July 1989 case (Guinea-Bissau v Senegal) (1990, 1991); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (1994, 1995, 2001); Land and Maritime Boundary between Cameroon and Nigeria (1996, 1998, 1999, 2001, 2002); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) (2001, 2002); Frontier Dispute (Benin/Niger) (2005); Diallo (Guinea v Congo) (pending); Armed Activities on the Territory of the Congo (Congo v Burundi) (1999) (Congo v Uganda) (2000, 2001, 2005); (Congo v Rwanda) (2002, 2006); Arrest Warrant of 11 April 2000 case (Congo v Belgium); Aerial Incident of 10 August 1999 (Pak. v India) (2000); Certain Criminal Proceedings in France (Congo v France) (pending); Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (pending); Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Lodge (Malaysia/Singapore) (pending).

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grave that in 1997 the General Assembly invited the Court to submit its comments and observations on the consequences that the increase in the volume of cases before the Court had on its operation. The Courts reply was submitted in 1998 but the two immediate results were little more than palliatives.25 The rst was that the matter was discussed in the Sixth (Legal) Committee of the General Assembly before the Fifth (Administrative and Budgetary) Committee dealt with the Courts budget. The second was a small increase in the Courts manning table to strengthen the Registry. Annex II to that Report contained the text of a Note relating to reexamination by the Court of its working methods. That Note dealt mainly with the length and content of both written and oral pleadings and contained suggestions which the Court now gives to the parties early in the proceedings. Changes in the internal working methods of the Court related mainly to the Judges Notes, which under the Resolution on the Internal Judicial Practice of the Court appear as an essential element in the Courts collective deliberation after the hearing.26 But they did not touch the major problems that litigants now face in the International Court. Yet another factor is the huge proliferation of modern-treaty-law, both bilateral and multilateral. Many of these instruments contain dispute settlement provisions involving the Court in one way or another. The continuing expansion of the black-letter texts of treaty law is not, however, accompanied by any comparable renement in the means for securing enforcement of the law, especially when the instruments establish erga omnes rules.27 The result is a change in the types of case coming before the Court, leading to changes in the Courts role not only for the management of international law but also in crisis management including grave political situations of universal concern. The Permanent Court rst adopted its Rules of Court in 1922. They were amended slightly in 1926, 1927 and 1931, and revised after thorough review in 1936.28 The International Court adopted those Rules with minor adap-

25

26

27 28

For the Courts reply to that invitation, see United Nations, Report of the International Court of Justice, 1 August 199731 July 1998, 53 GAOR Supp. No. 4 (Doc. A/53/4), Annex I (1998). For that Resolution, see International Court of Justice, Charter of the United Nations, Statute and Rules of Court and Other Documents, 5th ed. (1989); reproduced in Shabtai Rosenne, Documents on the International Court of Justice/Documents relatifs la Cour internationale de Justice 441 (1991). Cf. John Norton Moore, Enhancing Compliance with International Law, 39 Va. J. Intl L. 881 (1999). In this period two conferences were convened by the League of Nations, in 1926 and in 1929, to examine certain aspects of the Courts affairs. Those Conferences are only of historic interest today. The affairs of the International Court of Justice have not been the subject of diplomatic examination since the San Francisco Conference of 1945, when the United Nations was established.

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tations and amendments in 1946, and they remained unchanged until 1972. In 1972 the Court made a few amendments to the Rules, the most important (as far as concerns litigation techniques) relating to preliminary objections. The former well-established and well-understood practice of joining objections (especially to the admissibility) to the merits was abolished. In its place the Court introduced as a possible decision, a declaration that a specic objection does not possess, in the circumstances, an exclusively preliminary character. This change has severely confused modern litigation without any appreciable benets whether for the Court or for states, and has complicated the organization of coherent litigation strategy. In 1978 the Court promulgated a more thorough revision, which comprises the Rules currently in force. Comparison of the Rules of 1978 with those of 1922 will quickly show that they are all cast in the same mold, the mold of the diplomacy of the 1920s. The changes that have been made do not touch fundamentals. The only difference between litigation today and litigation in the 1920s, is that today the proceedings are much more drawn out, the written and oral pleadings are much longer, and the individual opinions of judges more frequent and also more extensive. This suggests that the time is ripe for a more fundamental review of the Courts procedure than has yet been undertaken. What the Court lacks in comparison with superior national courts is an ofcial process under judicial oversight to control the development of a case up to the opening of the oral proceedings, and perhaps to make preliminary determinations where the parties are in dispute over the facts or over a matter of procedure. Neither the Permanent Court nor the present Court has been able to confer on the registrar much more than a duty to ensure the formal compliance of a written pleading with the appropriate rule of Court. What the Court needs is an equivalent to a master or even a special master found in one form or another in national jurisdictions. The Court is now actively pursuing a revision of its Rules,29 and that provides a window of opportunity to strengthen the powers of the presidency to control

29

Three important collective works are useful for this. They are: British Institute of International and Comparative Law, Report of the Study Group on the International Court of Justice, Efciency of Procedures and Working Methods, rst published as a Supplement to the January 1996 issue of the International and Comparative Law Quarterly, and republished, with additions, as D.W. Bowett et al., The International Court of Justice: Process, Practice and Procedure (J.P. Gardner and Ch. Wickremasinghe, eds., 1997); Increasing the Effectiveness of the International Court of Justice: Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (C. Peck and Roy S. Lee, eds., 1997); F. Orrego Vicua and Ch. Pinto, Report and Revised Report on The Peaceful Settlement of Disputes: Prospects for the Twenty-rst Century and a long series of comments by different Governments and individuals, prepared in connection with the celebrations of the Centennial of the First International Peace Conference of 1899, listed in the appendix to UN Doc. A/54/381, 21 September 1999, and at present available on the website of the Netherlands Ministry for Foreign Affairs, <http://www. minbuza.nl/english/conferences/c_peace_docs.html>.

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the course of proceedings leading up to the hearings and even beyond (subject to occasional consultations with the parties as required under Article 31 of the Rules). One possible approach would be to bring in the Chamber of Summary Procedure as a standing control or supervisory organ for the interlocutory phases. Article 50 of the Statute could provide an opening for that. Functions for this control mechanism could be to investigate the facts if these are not agreed between the parties, to assist the Court and the parties in ironing out difculties and in determining whether there has been an adequate exchange of observations between them, or whether an interlocutory hearing is necessary, and to make recommendations with regard to the calling and examination of witnesses whenever a party wishes to have recourse to witnesses, on the basis of Article 48 of the Statute mentioned above. Under the current Rules of Court, both the president and the vice-president of the Court are ex ofcio members of that Chamber, and the Statute makes provision for participation in it of national judges and judges ad hoc. Together with the registrar (who should always be a qualied international lawyer), such a body ought to be able to exercise appropriate control over the contents of written pleadings, especially over the annexed materials (which seem to cause the Court special difculties). The use of this Chamber as a Steering Committee for the Court, leaving the ultimate decision on procedural matters either with the Court itself or with the president, could also assist the president in his efforts to maintain a reasonable balance between the Courts reasons for its decision, and any individual opinions. It is tempting to see in the Rules of the Tribunal and other related documents adopted by the International Tribunal for the Law of the Sea (ITLOS) a guide for a modern set of cost-effective rules of Court and of practice. No doubt the International Court will take a close look at those documents and even more at their application, and see whether they can be adopted or adapted to its use. But one must be careful not to rush to conclusions, for the two Courts have different constituent instruments, different functions, and different types of parties before them, even when the Rules look the same.30

30

For those Rules, see International Tribunal for the Law of the Sea, Basic Texts/Textes de Base 2005 at 15. In many instances those Rules copy the corresponding Rule of the International Court, differing only where the Statute of ITLOS differs from the Statute of the International Court of Justice. In fact those Rules in some respects fail to learn from the consequences that have followed in the International Court from new provisions introduced in 1978, for instance in connection with preliminary objections (Rules of the Tribunal, Article 97). Other related documents are the Resolution on the Internal Judicial Practice of the Tribunal (at p. 71) and the Guidelines concerning the Preparation and Presentation of Cases before the Tribunal (at p. 78). For my preliminary observations on those Rules and their practical application, see Shabtai Rosenne, International Tribunal for the Law of the Sea: 199697 Survey,

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Since 1998, the Sixth Committee of the General Assembly has been taking more interest in the Courts affairs than previously, but not yet enough. The earlier debates about the Court from 1947 onwards had been held in the confrontational context of the Cold War and did not help the Court as the principal judicial organ of the United Nations.31 Since the Court in 1968 started submitting an annual report to the General Assembly, the General Assemblys practice has been to do nothing more than take note of the report. No substantive action has been taken until 1999 when, for the rst time, the Sixth Committee recommended a resolution, adopted by the General Assembly as resolution 54/108, 9 December 1999, endorsing the Courts procedural suggestions set out in Annex II of its 1998 Report. One of those suggestions recalled the need for succinctness in the oral proceedings, and all of them called for changes in the practice of states in litigation before the Court. The General Assemblys resolution also invited the Court to keep its working methods under periodic review and to adopt additional measures aimed at expediting its proceedings.32 This reference to additional measures is particularly noteworthy.33 That resolution thus gives political backing to changes in practice which themselves can be seen as a reinterpretation of the Statute. That should encourage the Court not to shrink from needed innovation when reviewing its practice and procedure and bringing them into line with the requirements, the capabilities and the potentialities available to it at the start of the twenty-rst century.

31

32

33

13, The International Journal of Marine and Coastal law 487, 501 (1998). A striking feature of the cases heard by that Tribunal in the initial period 19971999 is the frequency in which witnesses and experts have been called to testify and be subject to cross-examination and examination on the voir-dire, something not really desirable or necessary in any international court or tribunal. Cf. the debates in the General Assembly leading to resolutions 171 (II), 14 November 1947, 2625 (XXV), 24 October 1970, 3232 (XXIX), 12 November 1974, 37/10, 15 November 1982. The suggestion for this resolution came from the Special Committee on the Charter of the United Nations and on Strengthening the Role of the Organization, following a debate on practical ways and means of strengthening the International Court of Justice while respecting its authority and independence. See its report, GAOR, 54th session, Supp. 33 (A/54/33), paras. 117 to 122 (1999). At a press conference on 15 February 2000, the newly elected President of the the Court, Judge Guillaume, announced further improvements in the Courts methods of work. These include attempts to reduce the large amount of documentation the parties submit to the Court, ensuring that hearings do not last longer than necessary, and that the Court should spend less time on its own deliberations whenever possible. He also indicated that the Rules Committee (of which Judge Fleischauer is chairman, replacing President Guillaume) will make proposals in the near future as regards witness evidence, counter-claims and preliminary objections. Press Communiqu 2000/5, 16 February 2000.

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On 4 December 2006 the General Assembly adopted without a vote Resolution 61/37, Commemoration of the sixtieth anniversary of the Court the rst resolution on the International Court of Justice adopted in this fashion. In it, the General Assembly 1. Solemnly commends the International Court of Justice for the important rule that it has played as the principal judicial organ of the United Nations over the past sixty years in adjudicating disputes, and recognizes the value of its work; 2. Expresses its appreciation to the Court for the measures adopted to operate an increased workload with maximum efciency; 3. Stresses the desirability of nding practical ways and means to strengthen the Court, taking into consideration, in particular, the needs resulting from its workload; 4. Encourages States to continue considering recourse to the Court by means available under its Statute, and calls upon States that have not yet done so to consider accepting the jurisdiction of the Court in accordance with its Statute; 5. Calls upon States to consider means of strengthening the Courts work, including by supporting the Secretary-Generals Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice on a voluntary basis, in order to enable the Fund to carry on and to strengthen its support to the countries which submit their disputes to the Court; 6. Stresses the importance of promoting the work of the International Court of Justice, and urges that efforts be continued through available means to encourage public awareness in the teaching, study and wider dissemination of the activities of the Court in the peaceful settlement of disputes, in view of both its judiciary and advisory functions.

16
COUNTER-CLAIMS IN THE INTERNATIONAL COURT OF JUSTICE

I. An Introduction
The Statute of the Permanent Court of International Justice made no mention of counter-claims, and the matter was not discussed when the Statute was revised in 1945. That has left the development of this aspect of the Courts law and practice in the hands of the Court and of States engaged in litigation before it. States have accepted the Courts initiative in the matter. There is no universally accepted denition of the term counter-claim. The Oxford Companion to Law explains it as a cross-claim that can conveniently be disposed of in an action initiated by another party. It is not necessarily a defence, but a substantive claim against the plaintiff that could have grounded an independent action. If the counter-claim is one that can conveniently be disposed of in the pending action, the judge gives judgment both on the original claim and on the counter-claim. If it cannot, it may be struck out. Then the defendant must bring a cross-action.1 The Dictionnaire de la Terminologie du Droit international explains demande reconventionnelle as Demande incidente forme par le dfendeur une action en justice et se rattachant la demande initiale par un lien de connexit. It goes on to quote Article 63 of the 1946 Rules of the International Court of Justice and from a report on arbitral procedure by Georges Scelle to the International Law Commission.2 A later dictionary denition is slightly broader: Demande incidente par laquelle une partie une instance prtend obtenir, en sus du rejet de la demande introduite contre elle,

1 2

The Oxford Companion to Law at 298 (D.M. Walker, ed. 1980). Dictionnaire de la Terminologie du Droit international, s.v. Demande, at 199 (J. Basdevant, ed. 1960). For the Scelle report, see Yearbook of the International Law Commission, 1950, vol. II (A/CN.4/18, para. 78), at p. 137. English text, mimeographed only. Scelle quotes an early illustration of this in the Fishing in the Fur (Behring) Sea arbitration between Great Britain and the United States, award of 15 August 1893, J.B. Moore, History and Digest of International Arbitrations to which the United States has been a Party vol. 1 935 (1898). Further details in A.M. Stuyt, Survey of International Arbitrations 17941989 174 (1990). See further article 16 of the Draft Convention on Arbitral Procedure prepared by the International Law Commission in Yearbook of the International Law Commission, 1953, vol. II (A/2456), at 210 and the Commentary, at p. 205 (para. 16); and Commentary on the Draft Convention on Arbitral Procedure adopted by the International Law Commission at its Fifth Session, prepared by the Secretariat (A/CN.4/92) at 63 (Sales No. 1955.V.1, 1955).

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la satisfaction par la partie adverse dune prtention entretenant un lien de connexit avec lobjet de la demande de cette partie.3 Despite this absence of any generally accepted denition of the term, the combined experience of the two Courts, including in particular the formulation of the Rules of Court and the considerations that weighed, permit some general assertions, valid for international litigation generally. Little substantive importance attaches to the requirement that the subjectmatter of the counter-claim must come within the jurisdiction of the Court. That is obvious. The Court can only decide claims that come within its jurisdiction, under the general rules governing the jurisdiction of the Court, and there is no reason why a counter-claim should be any different. What is meant is that the counter-claim must come within the jurisdiction of the Court as is established for the particular case. Secondly, since 1936 the Rules of Court have required a counter-claim to have some connection with the originating or principal claim possibly a misleading rendition of the French expression demande primitive, meaning the claim that lies at the origin of the proceedings.4 That requirement was not in the original Rules of Court of 1922. It was introduced by the Permanent Court in its judgment in the Factory at Chorzw case noted in II below. The admissibility of the counter-claim depends on its connection with that claim, and the legal question is always, what is meant by connection in the context, and does the counter-claim meet that requirement. In the nature of things, this must depend on the material that is before the Court at the time of the ling of the counter-claim. The third feature to be noted is that after the initial Rule of 1922 which remained unchanged until 1936, the provision on counter-claims has been presented in the subdivision of the Rules relating to what are in the 1978 Rules designated Incidental Proceedings. This means that the Court is already seised of a case, and that the incidental proceeding available to the respondent State of introducing a counter-claim can only be undertaken in respect of a case that is actually pending before the Court and within the parameters of that case. The implication of this is that a claim that would transform the case into something else cannot be admitted as a counter-claim. Fourthly, the requirement, which has existed since the rst Rules of Court of 1922, that a counter-claim cannot be led later than the counter-memorial means that the unilateral factual account given by the applicant alone is not the factual basis for the counter-claim. Article 80 of the current Rules of Court now pinpoints the time-stage in the proceedings at which and only at which a counter-claim can be submitted, namely in the respondents counter-memorial and in its submissions. That in turn conrms that the facts on which any counter-

3 4

Dictionnaire de Droit International Public s.v. Demande reconventionnelle at 316 (J. Salmon, ed., 2001). For this common meaning of the English principal and the French primitif, cf. the CD-ROM editions of the Oxford English Dictionary (1992) and Le Robert lectronique (1994).

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claim must be based are the facts as they have been presented to the Court in all the phases of the case up to and including the counter-memorial on the merits.5 As will be seen, the experience of the Permanent Court and of the present Court until the end of 2006 has established a clear pattern of law and procedure for the institution of counter-claims in the general scheme of inter-State litigation in the International Court of Justice. One may assume that this pattern will guide any other international court or tribunal that might be faced with a counter-claim. To the end of 2005, in quick succession, the International Court has been faced with a series of peremptory challenges by applicant States to the admissibility of counter-claims. In the Permanent Court and early in the International Court of Justice, questions relating to counter-claims had been raised during the pleadings, argued in the oral phase of the merits, and decided in the judgment on the merits. Recent objections to the jurisdiction or to the admissibility of counter-claims, however, have been made immediately on receipt of the counter-memorial on the merits in the cases in question. That has required the Court to organize interlocutory proceedings on the admissibility of the counter-claims and the procedure to be followed. In those cases the Court rst assessed the admissibility of the counter-claims to the case le in light of the total factual complex of the case as a whole as it then stood. This was without prejudice to any question with which the Court would have to deal during the remainder of the proceedings, should the counter-claim be admitted to the case in that way.

II. In the Permanent Court of International Justice


Article 40 of the initial Rules of Court adopted by the Permanent Court in 1922 contained what looks like a passing reference to counter-claims. Setting out the contents of what was then designated counter-case, the Rule provided that the conclusions [submissions] of the counter-case, to be based on the facts stated, might include counter-claims, in so far as the latter came within the jurisdiction of the Court. That provision was repeated unchanged in the Rules of 1926 and 1931. The rst mention of counter-claims in 1922 was in the draft rules of court prepared by the Secretariat.6 Article 33 of that document, dealing with the

From the structure of the Rule (Article 80), it is clear that when the Rules of Court use the word counter-memorial in this context, the counter-memorial on the merits is intended. This precautionary statement is necessary because of the occasional practice of the Court to require the rst pleadings to address questions of jurisdiction and admissibility. Those pleadings are also designated memorial and counter-memorial. PCIJ, Ser. D, Acts and Documents concerning the Organization of the Court, No. 2, Preparation of the Rules of Court, Minutes of Meetings held during the Preliminary Session of the Court, with Annexes (January 30th to March 24th 1922) (1922). Hereafter D 2. It was later stated

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contents of counter-cases, referred to conclusions, which may contain counterclaims, based on the facts quoted. . . .7 In a list of questions prepared by the Committee on Procedure that the Court established to deal with the Rules of Court, for discussion at a full meeting of the Court, point 9 raised the question whether in cases when counter-claims are made in the counter-case, a rejoinder is admissible. That question arose out of Article 43 of the Statute which referred only to cases, counter-cases and replies.8 In the draft rules of Court prepared later by the Drafting Committee, this became article 41. It proposed that counter-cases should contain conclusions based on the facts stated, which may include counter-claims.9 The Court rst discussed this at its 25th meeting (9 March 1922).10 Judge Anzilotti suggested deleting the article as, if not superfluous, at all events merely declaratory. He would have replaced it with a statement that the parties should submit their written conclusions in the rst documents of procedure. That proposal was later withdrawn. Anzilotti then turned more specically to the question of counter-claims. He pointed out that in the case of a special agreement, a counter-claim could not be submitted.11 With an application, a counter-claim could only be submitted if it came within the conditions subject to which all the parties had accepted the compulsory jurisdiction of the Court. After a discussion during which stress was laid on the difference between counter-claims essential for the purpose of the defence and counter-claims independent of the case, the Court adopted a proposal by Deputy-judge Beichmann to the effect that the conclusions of a counter-case may, in certain circumstances, include counter-claims. The draft prepared for the second reading included a new text for article 41. The counter-case was to include conclusions based on the facts stated: these conclusions may include counter-claims, in so far as the latter come within the jurisdiction of the Court.12 This was adopted without discussion, and appeared as Article 40 of the Rules of Court of 24 March 1922. Clearly, little thought

7 8

9 10 11 12

that this draft, for which Anzilotti as Under Secretary-General of the League in charge of the Permanent Court was responsible, was to a great extent based on the procedure of the Supreme Court of the United States. Statement by the Registrar (. Hammarskjld) on 28 May 1934, PCIJ, Ser. D, No. 2, Add. 3 at 107 (on that document, see note 16 below). Anzilotti himself, in his article cited in note 15 below, does not conrm this, but refers generally to practices in internal courts. D.2 at 262. Ibid. at 290. The Statute of the International Court is unchanged in this respect. Article 49, paragraph 3, of the 1978 Rules enunciates the functions of a rejoinder (and of a reply), and in that way lls the gap in the Statute. Ibid. 453 at 465. The Minutes refer to this as Dist[ribution] 79. Ibid. 139. In fact, States have developed a form of counter-claim proceeding even for cases adjudicated on the basis of an agreement, as will be seen in V below. Ibid. 481 at 491. That was Distr. 87. For the adoption of this provision, see p. 208.

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was given at that stage to the juridical problems of counter-claims, and more particularly to the question of any connection that should exist between the counter-claim and the originating claim, or as a matter of procedure to the difference between seising the Court of a counter-claim formulated in a countermemorial and the normal rules for the seising of the Court. Those issues were to come up later, in connection with the 1936 revision of the Rules. The Permanent Court had little experience of the application of this Rule. In the Factory at Chorzw (Merits) case (Germany v. Poland), the applicant regarded one of the submissions of the respondent in its counter-case as a counterclaim. The parties agreed that the Court should decide the issue raised in that way, so that, regarding the counter-claim, the Courts jurisdiction was perfected by the doctrine of the forum prorogatum. Moreover, the Court found that the counter-claim was in reality an objection to the jurisdiction. Nevertheless, the Court took the opportunity to examine the matter of counter-claims. That led to the introduction into the Courts case-law of the notion of a connection with the originating claim. The Court observed that the counter-claim was based on article 256 of the Treaty of Versailles (1919), that article also forming the basis of the respondents objection, and that in consequence it was juridically connected with the principal claim. That article was one of the provisions relevant to the case as a whole. The counter-claim was formulated in the submissions of the counter-case as required by Article 40 of the Rules then in force. Accordingly, the formal requirement of the Rules regarding the counter-claim was met there, and also the material conditions with which the Rule then did not deal. At the same time, regarding the relationship between the applicants claims and the respondents submission in question, the Court added that although in form a counter-claim, since its object is to obtain judgment against the Applicant for the delivery of certain things to the Respondent in reality, having regard to the arguments on which it is based, the submission constitutes an objection to the claim (p. 38).13 Some see a counter-claim in the Norwegian counter-memorial in the Legal Status of Eastern Greenland case (Denmark v. Norway). Then Denmark claimed that a declaration by Norway of occupation of Eastern Greenland was a violation of the existing legal situation and accordingly was unlawful and without legal effect. In the counter-case Norway, without using the word counter-claim, asked for judgment that Denmark had no sovereignty over the area and that Norway had acquired sovereignty. The Court found in Denmarks favour and rejected the opposing submissions of Norway. The Court did not treat those submissions as a counter-claim.14 The matter was not discussed during the revisions of the Rules of 1926 and of 1931.

13 14

PCIJ, Ser. A, No. 17 (1928). PCIJ, Ser. A/B, No. 53 (1933).

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The question of counter-claims as it then stood was the subject of a major article published in 1928 by one of the members of the Court, Dionisio Anzilotti.15 His main conclusions were that a counter-claim must do more than merely ask for the claim to be dismissed. It required some positive claim by the respondent against the applicant, that claim arising out of the facts as pleaded in the memorial and the counter-memorial. It must also have a legal link with the case that is before the Court and could not be based on a title of jurisdiction other than the one that is applicable to the case in question. Furthermore, although raising a counter-claim is an exceptional method of introducing a case, once it is validly made all the provisions of the Statute and of the Rules apply to the case as instituted by the counter-claim. This includes the right of third parties to intervene under Articles 62 or 63 of the Statute, the provisions regarding preliminary objections and all other incidental proceedings available under the Statute and the Rules. That article has had an abiding influence on the Permanent Court and on the present Court. In the Permanent Court it was followed by a more thorough discussion during the revision of the Rules, leading to the revised Rules of Court of 1936. The Permanent Court initiated that revision after the Assembly of the League of Nations, on 25 September 1930 had adopted a series of amendments to the Statute, some of which required amendments to the Rules. The Court decided to undertake a general revision of the Rules.16 Its rst step was to set up four committees to report on different parts of the existing Rules. The Second Committee (Sir Cecil Hurst, President) examined article 40. Its only mention

15

16

D. Anzilotti, La riconvenzione nella procedura internazionale, Scritti della Facolt giuridica di Roma in onore di Antonio Salandra 341 (1928), and in 21 Rivista di Diritto internazionale 309 (1929); reprinted in D. Anzilotti, II Scritti di diritto internazionale pubblico 221 (1952). French translation by M. Barda, La demande reconventionnelle en procdure internationale, 57 Journal du Droit international (Clunet) 857 (1930). Other articles on counter-claims include the following: R. Genet, Les demandes reconventionnelles et la procdure de la Cour permanente de Justice internationale, XIX Revue de Droit international 145 (1938); A. Miaja de la Muela, La reconvencin ante el Tribunal internacional de Justicia, VII (N.S.) Boletn mexicano de derecho comparado 737 (1975); B. Larschan and G. Mirfendereski, The Status of Counterclaims in International Law, with Particular Reference to International Arbitration involving a Private Party and a Foreign State, 15 Denver Journal of International Law and Policy 11 (1986); A.D. Renteln, Encouraging Counterclaims, ibid. 379; M. Arcani, Demandi reconvenzionali nel processo di fronte alla Corte internazionale di Giustizia, 81 Rivista di diritto internazionale 1042 (1998); O.L. Pegua, Counter-claims and obligations erga omnes before the International Court of Justice, 9 European Journal of International Law 724 (1998); S.D. Murphy, Amplifying the World Courts Jurisdiction through Counter-Claims, 35 Washington International Law Review 5 (2000). PCIJ, Ser. D, Third Addendum to No. 2, Elaboration of the Rules of Court of March 11th, 1936, contains the full records of the Courts deliberations leading to the 1936 Rules. Hereafter Add. 3. It is supplemented by Add. 4, a systematic reproduction of those records arranged according to the articles of the Rules as revised.

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of counter-claims is in connection with the silence of the Rules on the contents of replies and rejoinders. The Committee proposed no change, as no mention had been made of any inconvenience arising from that omission. However, the Committee continued that this might be because no counter-claim has ever been made. If in a future case a counter-claim were set up, it is the Reply of the applicant which would constitute the Counter-Memorial to the counterclaim (prophetic words, indeed!).17 In May 1933 the Court requested the Registrar (. Hammarskjld) to prepare a detailed report on the Courts practice to date. On counter-claims, this report showed that the Court had decided to cause the question of counter-claims to be examined. No experience in this respect is as yet available. Nevertheless, the question has arisen most recently in the Eastern Greenland case; but the Court has refrained from dealing with it.18 That led to a report from the Co-ordination Committee consisting of the rapporteurs of the four Committees. Its full report only exists in French. On counter-claims it wrote:
A propos de lalina 2 [de larticle 40] du texte propos, la question a t souleve de savoir si la disposition quil contient en ce qui concerne les demandes reconventionnelles est opportune et conforme aux principes gnralement admis en matire de procdure. Il a t soutenu cet gard que, normalement, les demandes reconventionnelles doivent tre lobjet dune demande spciale faite dans les formes prescrites pour lintroduction dune nouvelle instance, et que cette rgle simpose avec une force particulire devant la Cour, eu gard au fait quaux termes du Statut seules les pices introductives dinstance sont obligatoirement noties aux tats admis ester devant la Cour, an de leur permettre de dcider sil y a lieu pour eux dintervenir. Il a t propos, dans cet ordre dides, dajouter au Rglement un nouvel article prescrivant que toute demande reconventionnelle doit tre introduite par une requte, sous rserve du droit de la Cour, si elle le juge opportun, dordonner la jonction de la nouvelle instance ainsi ouverte une instance dj ouverte. Il a t expliqu, dautre part, que lobjet de la disposition de larticle 40 visant les demandes reconventionnelles nest nullement dexclure lintroduction de ces demandes par voie de requte, mais seulement douvrir exceptionnellement, en vue dassurer une bonne administration de la justice, la possibilit de prsenter des demandes de ce genre dans les contre-mmoires galement. Il a t expliqu, en outre, que les inconvnients rsultant de cette facult ne sauraient tre considrables, tant donn quelle tait prvue seulement dans les limites de la comptence de la Cour telles quelles taient tablies pour les besoins de linstance en cours de laquelle la demande serait faite; ds lors, en effet, la requte introduisant cette instance aurait dj t notie tous les tats admis ester devant la Cour.

17 18

Ser. D, No. 2, Add. 3 at 768. Ibid. at 821. This and the preceding Report indicate that neither Chorzw nor Eastern Greenland were regarded at the time as precedents dealing with counter-claims.

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Having regard for that difference of opinion, the Commission preferred to maintain the existing text, pending fuller consideration by the Court of the question of counter-claims.19 With that preparatory work before it, the Court rst examined the substance of the question of counter-claims at its 13th and 14th meetings on 28 and 29 May 1934.20 Judge Schcking asked the meaning of counter-claim. Did it cover only claims arising out of the defence? Or could the respondent always bring a counter-claim in the Counter-Memorial even if the counter-claim had no connection with the principal claim? He referred to the 1922 discussion leading to the adoption of the Beichmann proposal, and asked Judge Anzilotti if he could throw some light on the import of that. Anzilottis reply, after a vague reference to Chorzw, stated that it was a question of determining the relation between the counter-claim and the principal or originating claim, the counter-claim being considered admissible provided that it was connected with the principal claim. In 1922 the Courts attention was directed to the fact that sometimes a counterclaim constituted a means of defence, and the Court could not in justice pass upon the principal claim without at the same time passing upon this plea of the defence. Judge Negulesco thought that a counter-claim should be introduced by application. He also observed that if a counter-claim were to be regarded merely as a plea of the defence, the Court could not pass upon it in the operative part of the judgment, but only in the grounds. But there were cases in which the counter-claim might outweigh and nullify the principal claim, so that the Court should be able to give judgment on it against the applicant. That discussion led the President (Sir Cecil Hurst) to ask whether all reference to counter-claims should be omitted from Article 40. Judge Negulesco agreed, and was supported by the Vice-President, Judge Guerrero and others. After a long discussion the President put to the vote a question by Anzilotti: Does the Court wish to maintain the principle that counter-claims directly connected with the principal claim may be presented in the Counter-case? By eleven votes to one the Court answered in the afrmative. By the same vote the Court decided that it wished to deal with counter-claims presented in the counter-case in a separate article of the Rules. By seven votes to ve the Court adopted a proposal by Negulesco to the effect that any other claim that does not full the condition of connection is to be presented in the form of an application. The Court may exercise its power to join this claim to the application to which it refers. By those votes the Court accepted that a counter-claim made in the counter-memorial is an exceptional method of seising the Court of a case, provided that the counter-claim meets the conditions laid down and in particular is directly connected with the principal claim. If it does not, a new claim is to

19 20

Ibid. at 871. Ibid. at 104117; summarized in Add. 4 at 261266.

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be led, and that may be joined to the pending case. On that basis the article was referred to the Co-ordination Commission. The Commissions new text, numbered 41, read:
When proceedings have been instituted by means of an application, counter-claims may be presented in the submissions of the Counter-Memorial, provided that such counterclaims are directly connected with the subject of the application and that they come within the jurisdiction of the Court. Any other claim which does not full the rst condition mentioned shall be presented in the form of an application. The Court may exercise its power to join the two suits thus lodged.

After a brief discussion the last two sentences were combined to read: Any claim which does not full the former condition shall be presented in the form of an application and be the subject of a separate suit or be joined by the Court to the original suit.21 In 1935 the Drafting Committee presented this text unchanged as article 63, moving it from the section dealing with the contents of the written pleadings in contentious cases to a new section then entitled Occasional Rules. The Court considered this at its 51st meeting on 8 April 1935. The main issue treated at this stage was whether a counter-claim could be led at a later stage than the counter-memorial. The Court decided to change the nal sentence to read: Any claim which is not directly connected with the subject of the original application must be presented in the form of a separate application and may form the subject of distinct proceedings or be joined by the Court to the original proceedings.22 The article was then adopted on rst reading. At its 29th meeting on 26 February 1936 the Court adopted the provision unchanged.23 During this discussion it was explained that the initial words may be presented did not mean that presenting a counter-claim in the counter-memorial was obligatory, but that the counter-memorial was the latest point of time at which a counterclaim in the sense of the Rules could be presented. The result appeared in Article 63 of the Rules of 1936, as follows:24
When proceedings have been instituted by means of an application, a counter-claim may be presented in the submissions of the Counter-Memorial, provided that such counter-claim is directly connected with the subject of the application and that it comes within the jurisdiction of the Court. Any claim which is not directly connected with the subject of the original application [requte originaire] must be put forward by means of a separate application and may form the subject of distinct proceedings or may be joined to the original proceedings [instance primitive].
Ibid. Add. 3 at 152, 923; Add. 4 at 267. Ibid. Add. 3 at 441; Add. 4 at 267. Ibid. Add. 3 at 649; Add. 4 at 268. PCIJ, Ser. D, No. 1, 4th ed. (1940). That was in the subdivision of the Rules headed Occasional Rules.

21 22 23 24

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At the same time, the provision regarding the inclusion of a counter-claim in the counter-memorial was dropped from the new provision (Rule 41) setting out the contents of the counter-memorial (which still did not mention the rejoinder). The Permanent Court twice faced counter-claims made under Article 63 of the 1936 Rules. The rst occasion was in the Diversion of Water from the Meuse case.25 The applicant raised no issue regarding the counter-claim, and consequently the jurisdiction was perfected by the doctrine of the forum prorogatum. Nevertheless, the Court pointed out that the counter-claim was directly connected with the principal claim, so that presenting it in the counter-memorial was permissible (p. 34). In the Panevezys-Saldutiskis Railway case (Estonia v Lithuania), Lithuania led preliminary objections that were joined to the merits. In its counter-memorial on the merits Lithuania included a counter-claim. The Court upheld the objection, and therefore did not have to consider any question relating to that counter-claim.26 In neither of those cases were third States notied of the counter-claim.

III. In the International Court of Justice


In 1946 the International Court of Justice adopted a new version for Article 63 of the Rules:
When proceedings have been instituted by means of an application, a counter-claim may be presented in the submissions of the Counter-Memorial, provided that such counter-claim is directly connected with the subject-matter of the application and that it comes within the jurisdiction of the Court. In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the application the Court shall, after due examination, direct whether or not the question thus presented shall be joined to the original proceedings [instance primitive].

No authoritative explanation has been given for that change. One major source of difculty lies in the words in the event of doubt, since it is not clear whether the Rule had in mind doubt expressed by either of the parties, or doubt experienced by the Court whatever the position of the parties. The provision was retained unchanged as Article 68 of the Rules of 1972.27 Two cases have come before the Court under that provision, the Asylum case (Colombia v Peru) instituted by application on the basis of a framework agreement which provided for

25 26

27

PCIJ, Ser. A/B, No. 70 (1937) (Netherlands v. Belgium). PCIJ, Ser. A/B, Nos. 75 and 76 (1938, 1939). For a procedural decision by the Permanent Court regarding the presentation of new documents relating to the counter-claim, see PCIJ, Ser. E (Annual Report), No. 15 at 114; No. 16 at 183. On this, see G. Guyomar, Commentaire du Rglement de la Cour internationale de Justice: interprtation et pratique 372 (1973).

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the seising of the Court but without dening the dispute, and the U.S. Nationals in Morocco case (France v U.S.A.) instituted by application on the basis of declarations accepting the jurisdiction under Article 36, paragraph 2, of the Statute. In the Asylum case the counter-claim was duly led in the counter-memorial, and in regular subsequent proceedings, written and oral, Colombia challenged its admissibility. Peru amended the counter-claim in the oral proceedings. The Court, in its judgment, rst examined the counter-claim in its original form and found (p. 289) that the applicant had not contested the Courts jurisdiction in respect of the original formulation. On the other hand, it had disputed the admissibility of the counter-claim which, in its view, lacked all connection with the subject-matter of the application and raised new problems, thus tending to shift the grounds of the dispute. The Court did not accept that view. The connection is so direct that certain conditions which are required to exist before a safe-conduct [for the asylee] can be demanded depend precisely on facts which are raised by the counter-claim. The direct connexion being thus clearly established, the sole objection to the admissibility of the counter-claim in its original form is therefore resolved. The Court partly rejected the submissions of the applicant, rejected part of the counter-claim in its original form, and upheld it on another part. That nding made it unnecessary for the Court to consider any aspect of the amendment to the counter-claim submitted during the oral proceedings (p. 288).28 In the U.S. Nationals in Morocco case, the claim related to a series of bilateral treaties between Morocco (before the establishment of the French Protectorate) and the United States and the General Act of the International Conference of Algeciras of 7 April 1906. The counter-claim was based on the same instruments, and the arguments of each party in support of its claims are at one and the same time offensive and defensive. No question or doubt was raised of the Courts jurisdiction over the counter-claims, nor was their admissibility challenged, so that in a legal sense the Courts competence to deal with them rests on the doctrine of forum prorogatum. This case therefore adds little to the Courts general case law on counter-claims.29 In the revised Rules of Court of 1978, the new Article 80 reads:

28

29

ICJ Rep. 1950, 266. This case was introduced by application on the basis of a framework agreement which did not dene the dispute, but gave the Court jurisdiction over a dispute to be instituted by means of an application. On this form of framework agreement, see Sh. Rosenne, II The Law and Practice of the International Court 192020054 at 652 (2006) and Essay 9 above. Third States were not specially notied of the counter-claim, but the States parties to the conventions invoked in the case had previously been appropriately notied as required by the Rules. ICJ Rep. 1952, 176. Third States were not specially notied of the counter-claim, but most of the States parties to the Act of Algeciras had previously been appropriately informed of the subsistence of these proceedings.

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1. A counter-claim may be presented provided that it is directly connected with the subject matter of the claim of the other party and that it comes within the jurisdiction of the Court. 2. A counter-claim shall be made in the Counter-memorial of the party presenting it, and shall appear as part of the submissions of that party. 3. In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party, the Court shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings. No explanation has been vouchsafed for this new Rule.30 It largely reflects both sentiments expressed by the members of the Permanent Court during the proceedings leading to the 1936 revision of the Rules of that Court, and important developments in the Courts general law and practice, especially the distinction between jurisdiction, regulated by Article 36 of the Statute, and the seising of the Court, a matter for Article 40. The new Rule contains some signicant changes. It omits the formal requirement that a counter-claim can only be led in a case introduced by application. It is nevertheless unlikely that a counterclaim can be led in a case submitted to the Court by notication of a special agreement properly so called. In paragraph 2, including the counter-claim in the counter-memorial is now obligatory, shall be made replacing may be presented, thus ensuring the liaison between the defence on the merits and a counterclaim: and a counter-memorial may also exceptionally introduce a preliminary objection. The former expression subject-matter of the application is replaced by the broader subject-matter of the claim. Following the new Article 49, paragraph 4, which distinguishes between the arguments and the submissions in a written pleading, Article 80 also seems to differentiate between the arguments in the body of the counter-memorial and its submissions. In paragraph 3, the expression after hearing the parties replaces after due examination of the previous Rules, the lack of clarity over the word doubt remaining. This, it now appears, was an unwise change which the Court so far has not found possible or necessary to apply, at all events in certain types of case as will be seen later. The Courts rst reference to a counter-claim since the adoption of that Rule was an aside in the provisional measures phase of the U.S. Diplomatic and Consular Staff in Tehran case (U.S.A. v Iran).31 Dealing with an Iranian contention that certain alleged illegal activities by the United States had a close connection with the detention of the American personnel in the Embassy in Tehran, the Court showed that it remained open to the Iranian Government under the Courts Statute and Rules to present its own arguments to the Court regarding

30 31

For commentary, see G. Guyomar, Commentaire du Rglement de la Cour internationale de Justice adopt le 14 avril 1978: Interprtation et pratique 519 (1983). ICJ Rep. 1979, at 15 (para. 24).

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those activities either by way of defence in a counter-memorial or by way of a counter-claim led under Article 80 of the Rules. By not appearing in those proceedings, Iran had by its own choice deprived itself of the opportunity of developing its own arguments. That passage, which was not repeated in the corresponding passage in the judgment on the merits,32 is probably to be read as an indication to a non-appearing government of the facilities that are open to it and which it renounces by not appearing in the proceedings. Taken by itself it does not add anything to the juridical concept of a counter-claim nor does it contribute to the distinction between a defence and a counter-claim. At most it shows that such a distinction can exist. It does emphasize, however, that a communication sent to the Court by a non-appearing respondent, en dehors the regular written proceedings as such, cannot raise a counter-claim even though, as far as concerns provisional measures, the Court may take such a communication into consideration on the basis of Article 74, paragraph 3, second sentence, of the 1978 Rules of Court. The recent cases in which the admissibility of counter-claims was challenged peremptorily and partly disposed of in interlocutory proceedings are best appreciated with due consideration of their antecedent procedural history. The clarication that they have introduced into the concept and practice of a counterclaim is of the greatest importance. Nevertheless, their signicance as precedents cannot be separated from their procedural history, since in those cases the Courts jurisdiction, and its limits, either were not being contested or had been established judicially in formal closely argued preliminary objection proceedings. How the Court would deal with a counter-claim when its jurisdiction has not been established is an open question. The Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia-Herzegovina v Yugoslavia) was introduced by application in 1993, jurisdiction being based on the compromissory clause, article IX, of the Genocide Convention of 1948.33 In the rst set of provisional measures proceedings in 1993 Yugoslavia recommended the Court to order provisional measures to be observed by the applicant, and in the further provisional measures phase Yugoslavia itself requested the indication of provisional measures to be observed by the applicant. To some extent those resemble counterclaims in a form appropriate for provisional measures proceedings. In those proceedings, the applicant argued that by those actions the respondent had conferred jurisdiction on the Court over the claims formulated in the application claims that went beyond the jurisdictional clause of the Genocide Convention. However,
Ibid. 1980, at 19 (paras. 19, 20). For that Convention, see 78 UNTS 277. For the proceedings in the International Court, see the orders of 8 April and 13 September 1993 on provisional measures and further provisional measures, the judgment of 11 July 1996 on preliminary objections, and the order of 17 December 1997 on Counter-claims. ICJ Rep. 1993, at 3 and 325; 1996, at 595; and 1997, at 243. Judgment on the merits was delivered on 26 February 2007.

32 33

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the Court declined to see in the respondents actions anything to confer additional jurisdiction on the Court. In its order of 3 April 1993 it indicated three sets of measures, the rst two being addressed to the respondent only and the third to both parties. In its second order of 13 September it reafrmed the previous indication. In its judgment of 1996 on the preliminary objection, the Court conrmed its previous ndings on jurisdiction and, rejecting a series of objections by Yugoslavia, found that on the basis of article IX of the Genocide Convention it had jurisdiction to adjudicate upon the dispute. It dismissed additional bases of jurisdiction invoked by the applicant, and found that the application was admissible. Against that background, the proceedings on the merits, suspended on the ling of the preliminary objections, were resumed. Within the time limit laid down Yugoslavia led its counter-memorial. The arguments fall into two distinct parts, namely the refutation of the applicants allegations and case, and the counter-claim. Two of the submissions of that counter-memorial were defences and were directed at the rejection of the claims made against Yugoslavia. These were followed by four further submissions making allegations charging the applicant with violations of the Genocide Convention. Those four submissions were not designated counter-claim but the corresponding argument in the countermemorial carried that title. Immediately on receipt of the counter-memorial the applicant informed the Court of its opinion that the counter-claims did not meet the criterion of Article 80, paragraph 1, of the Rules and should therefore not be joined to the original proceedings. At the meeting with the President to x the procedure for dealing with this, the two parties agreed that they would submit written observations on the question of the admissibility of the counterclaims, and both contemplated hearings on the question. The lengthy written observations were led within the time limits laid down.34 The Court found that having received full and detailed written observations from each party, it was sufciently well informed of their positions regarding the admissibility of the claims presented in the counter-memorial as counter-claims by Yugoslavia. Accordingly, it did not appear necessary to hear the parties on the subject (order, para. 25). This suggests that whatever the positions of the parties, the Court felt no doubt as to the connection of the counter-claims to the original claim. The very heavy pleadings on fact and on law that had taken place up to this stage were no doubt relevant to the Courts conclusion. The Court then looked at the question whether the Yugoslav claims constituted counter-claims within the meaning of Article 80 of the Rules. The Court stated that it is established that a counter-claim has a dual character in relation to the claim of the other party. A counter-claim is independent of the principal claim in so far as it constitutes a separate claim, that is to say, an autonomous

34

The proceedings on this issue, including the written observations submitted by the parties, are fully summarized in paras. 6 to 24 of the order of 17 December 1997.

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legal act the object of which is to submit a new claim to the Court.35 At the same time, it is linked to the principal claim in so far as, formulated as a counter claim, it reacts to the principal claim. Its thrust is thus to widen [largir] the original subject-matter of the dispute by pursuing objectives other than the mere dismissal of the applicants claim in the main proceedings for example, that a nding be made against the applicant. That is what distinguishes a counterclaim from a defence on the merits (para. 27). The Court then went on to explain the difference between counter-claims and defences to the merits in the scheme of the Rules of Court. In Article 80 of its Rules, the Court did not confer a different meaning on the expression counter-claim. However, the inclusion of Article 80 in the section of the Rules devoted to incidental proceedings in contentious cases and its provisions show that the expression does not apply to mere defences on the merits which the Court must hear in the normal exercise of its functions to decide the Applicants claims. The Court saw in the reference to counter-claims in the Tehran case a need to differentiate between counter-claims and defences in the scheme of the Rules of Court (para. 28). The Court recognized that a claim should normally be made before the Court by means of an application instituting proceedings. At the same time, certain types of claim may be set out in incidental proceedings, that is to say, within the context of a case that is already in progress. That is merely to ensure better administration of justice, given the specic nature of the claims in question. The idea of counter-claims is essentially to achieve a procedural economy while enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently. The admissibility of the counter-claims must necessarily also relate to the aims thus pursued and be subject to conditions designed to prevent abuse (para. 30). The respondent cannot use a counterclaim as a means of referring to an international court claims that exceed the limits of its jurisdiction as recognized by the parties note the generality of the language here. Nor also can the respondent use the counter-claim to impose on the applicant any claim it chooses, at the risk of infringing the applicants rights and of compromising the proper administration of justice. That is why Article 80, paragraph 1, requires the counter-claim both to come within the jurisdiction of the Court and to be directly connected with the subject-matter of the claim of the other party (para. 31). The Court then turned to the issue of directly connected that being the core contention of Bosnia-Herzegovina. Since the Rules do not dene what is meant by that expression, it is for Court, in its sole discretion, to assess whether the counter-claim is sufciently connected to the principal claim, taking account of the particular aspects of each case. Furthermore, as a general rule the degree of connection must be assessed both in fact and in law (para. 33).
35

The expression autonomous legal act [un acte juridique autonome] echoes Anzilottis description of a counter-claim as un acte autonome du dfendeur in his article cited in note 15 above, at p. 875 of the French translation.

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As for the facts, the Court pointed out that it emerged from the parties submissions that their respective claims rested on facts of the same nature; they formed part of the same factual complex since they are alleged to have occurred on the territory of Bosnia and Herzegovina and during the same period. In addition, Yugoslavia intended to rely on certain identical facts both to refute the allegations made against it and to obtain judgment against the applicant (para. 34). The Court also pointed out that the parties were pursuing the same legal aim, the establishment of legal responsibility for violations of the Genocide Convention (para. 35). The Court found support for this in the 1993 proceedings for the indication of provisional measures. In para. 36 it quoted two long passages from its order of 13 September, in which it referred to the duties of both parties. The Court accordingly found that the counter-claims were directly connected with the subject-matter of the applicants claims and were, as counter-claims, admissible and formed part of the present proceedings (para. 37). This decision on the admissibility of the counter-claims in no way prejudged any question with which the Court would have to deal during the remainder of the proceedings (para. 38). Having in this way found for the admissibility of the counter-claims, the Court turned to the major procedural aspects.36 The rst of these concerned the protection of the rights of third States entitled to appear before the Court. In this case the issue was not a theoretical one since in the arguments of the countermemorial, but not in its submissions, Yugoslavia made allegations possibly involving one of those third States. The Court therefore instructed the Registrar to transmit a copy of the order to third States entitled to appear before the Court (para. 39) an instruction corresponding to Article 42 of the Rules of Court regarding the transmission of a notication of the institution of proceedings to the members of the United Nations and to other States entitled to appear before the Court. The second procedural issue related to the equality of the parties in the subsequent proceedings.37 The Court stressed the necessity to ensure strict equality between the parties. It accordingly reserved the right of Bosnia-Herzegovina to present its views on the counter-claim in writing a second time in an additional pleading that may be the subject of a subsequent order (para. 42). In the operative clause, therefore, the Court found the counter-claims admissible as such and form part of the current proceedings. It directed the parties to le a reply

36 37

These procedural aspects were foreseen by Anzilotti in his article cited in note 15 above, particularly at pages 874 and following of the French translation. In the Asylum case the Court had held that as the applicant was the respondent on the counter-claim, it could have the last word in the hearings. International Court of Justice, ICJ Yearbook 19531954 at p. 114; Sh. Rosenne, III The Law and Practice of the International Court 192020054 at 1301 (2006). Peru made no request for an extra round of the written proceedings to deal with the counter-claim, but exercised that right in the oral proceedings Asylum case, II Pleadings, 13, 178.

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and a rejoinder for which it xed the dates, and reserved the subsequent procedure. This order was adopted by the impressive majority of 13 votes to 1. Each judge ad hoc voted in favour of the order. On 20 April 2001 Yugoslavia informed the Court of its intention to withdraw the counter-claims. Bosnia-Herzegovina had no objection. On 10 September the President of the Court made an order placing on record the withdrawal of the counter-claims.38 For the withdrawal or discontinuance of counter-claims, it appears that the Court will apply the same procedure as for the withdrawal or discontinuance of any other claim or case. The next case, Oil Platforms (Iran v U.S.A.), arose out of a series of incidents involving naval actions by United States warships against Iranian installations in the Gulf during the Iran-Iraq War of the 1980s. The procedural history of this case differs from the Application of the Genocide Convention case in one important respect. There had been no previous phases of provisional measures in which the whole of the cases of both parties had been presented to the Court in summary form. However, as in the Genocide Convention case, the Court had carefully dened the scope of its jurisdiction before the counter-claim was led. The case was introduced by application in November 1992, jurisdiction being based on the compromissory clause, article XXI, paragraph 2, of the Treaty of Amity, Economic Relations and Consular Rights between the two countries of 15 August 1955.39 After the memorial was led, the United States raised a preliminary objection. In a Judgment of 12 December 1996 the Court rejected the preliminary objection to the jurisdiction and found that it had jurisdiction, on the basis of Article XXI of the Treaty of 1955, to entertain the claims made by Iran under Article X, paragraph 1, of that Treaty.40 That was only one aspect of Irans original claim. The United States duly led its counter-memorial containing two sets of submissions. One set asked for the dismissal of Irans claims. The second, stated to be a counter-claim according to Article 80 of the Rules, made claims against Iran alleging violations of the 1955 Treaty, mirroring the formulation that Iran had used in the submissions of its memorial. Iran objected to the admissibility of the counter-claim on the ground that it did not come within the Courts jurisdiction and requested a hearing on the matter. At the meeting with the Vice-President (as Acting President, the President of the Court being a national of the United States), the parties differed over the nature and purport of the interlocutory proceedings. The United States understood that they would be limited to the issue set forth in Article 80, paragraph 3, of the Rules, namely a doubt over the connection of the counter-claim

38 39 40

ICJ Rep. 2001, 572. 284 UNTS 93. ICJ Rep. 1996II, 803. This was the second case between those two countries arising out of incidents in the Gulf during that war. The other case was the Aerial Incident of 3 July 1988 case, withdrawn, ICJ Rep. 1996, 9.

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to Irans claims. This was contested by Iran. The Court set time limits for the ling by the parties of their written observations, which the Court recites at length in its order of 10 March 1998 (paras. 8 to 30).41 As in the Genocide Convention case, the Court found that having received detailed written observation from each of the parties it was sufciently well informed of the positions they held with regard to the admissibility of the claims presented as counterclaims and accordingly it did not appear necessary to hear them further on the subject (para. 31). On the substance of the matter, the Court followed its earlier approach. It cited paragraph 31 of its previous order as its point of departure. Regarding jurisdiction, it quoted two passages from its judgment of 12 December 1996 in which it had explained with some nesse the extent of its jurisdiction over Irans claims. It found that the counter-claim alleged acts capable of falling within the scope of its jurisdiction as previously dened, so that the Court had jurisdiction to entertain the counter-claim in so far as the facts alleged may have prejudiced the freedoms guaranteed by article X, paragraph 1, of the 1955 Treaty (para. 36). Repeating verbatim (not as a citation) paragraph 33 of the Genocide Convention order regarding the meaning of directly connected and the Courts discretion in this matter (para. 37), the order goes on to declare that it emerged from the parties submissions that their claims rested on facts of the same nature, forming part of the same factual complex, since the facts all occurred in the Gulf in the same period. As in the previous case, the United States indicated that it intended to rely on the same facts and circumstances in order both to refute the allegations of Iran and to obtain judgment against Iran. In addition, the two parties were pursuing the same legal aim, the establishment of legal responsibility for violations of the 1955 Treaty (para. 38). The Court concluded that the counter-claim was directly connected with the subject-matter of Irans claims and satised the conditions set forth in Article 80, paragraph 1, of the Rules (paras. 39, 40). Finally, the Court repeated its procedural decisions regarding notication of the order to third States entitled to appear before the Court, and regarding the future proceedings in the case (paras. 42 to 45). Again the Court reached its decision that the counter-claim is admissible as such by the impressive majority of 15 votes to one (the Judge ad hoc chosen by Iran, Professor F. Rigaux). On the procedure the order directed Iran to submit a reply and the United States to submit a rejoinder relating to the claims of both parties within the time limit laid down (later prolonged), reserving the rest of the procedure. On 28 August 2001, by agreement of the parties the Vice-President of the Court authorized the submission by Iran of an additional written pleading relating solely to the counter-claim and xed a time limit for that.42
41 42

ICJ Rep. 1998, 190. ICJ Rep. 2001, 568. In the hearings in March 2003 Iran was granted the floor after the oral rejoinder of the United States solely to make an oral rejoinder on the counter-claim.

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The judgment on the merits43 commences by explaining that the Courts task was to determine whether or not there have been breaches of the 1955 Treaty, and if it nds that such is the case, to draw the appropriate consequences according to the submissions of the Parties on both the claim and the counter-claim (para. 21). As regards the counter-claim, the Court recalled the terms of its 1988 order and pointed out that questions had been raised between the parties as to the signicance and scope of the 1988 ruling on jurisdiction, to be examined later in the judgment (para. 22). At the same time the Court explained that both the claim and the counter-claim could be upheld only so far as a breach or breaches of Article X, paragraph 1, of the 1955 Treaty may be shown, even though other provisions of the Treaty may be relevant to the interpretation of that paragraph (para. 22). In the course of the proceedings it transpired that on the counter-claim Iran was asking the Court to rule generally on its jurisdiction and on the admissibility of the counter-claim. The United States was basing itself solely on Article 80 of the Rules and contended that many of Irans objections to jurisdiction and admissibility involved contested matters which the Court could not effectively address particularly in the context of the abbreviated procedure of Article 80, paragraph 3. This gave the Court the opportunity to clarify the scope of the decision on the admissibility as such of the counter-claim in a statement which has become a major directive for this aspect of the Courts practice:
The Court considers that it is open to Iran at this stage of the proceedings to raise objections to the jurisdiction of the Court to entertain the counter-claim or to its admissibility, other than those addressed by the Order of 10 March 1998. When in that Order the Court ruled on the admissibility of the counter-claim, the task of the Court at that stage was only to verify whether or not the requirements laid down by Article 80 of the Rules were satised, namely, that there was a direct connection of the counterclaim with the subject-matter of the Iranian claims, and that, to the extent indicated in paragraph 102 above [summarizing the Courts nding that their claims rest on facts of the same nature and form part of the same factual complex and that the Parties were pursuing the same legal aim], the counter-claim fell within the jurisdiction of the Court. The Order of 10 March 1998 therefore does not address any other question relating to jurisdiction and admissibility, not directly linked to Article 80 of the Rules. This is clear from the terms of the Order, by which the Court found that the counter-claim was admissible as such; and in paragraph 41 of the Order the Court further stated that: a decision given on the admissibility of a counter-claim taking account of the requirements set out in Article 80 of the Rules in no way prejudges any question which the Court will be called upon to hear during the remainder of the proceedings . . . The Court will therefore proceed to address the objections now presented by Iran to its jurisdiction to entertain the counter-claim and to the admissibility thereof [para. 105].

43

ICJ Rep. 2003, 161. Paragraphs 101 to 124 deal exclusively with the counter-claim.

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Most of this part of the judgment examines different objections in light of the relevant facts. The fourth objection raised the more general question of whether the counter-claim had broadened the subject-matter of the claim beyond the submissions set out in the original counter-claim, by having added belatedly some other complaints. The Court found that this objection raised the issue of whether the United States was presenting a new claim. In answering this contention the Court took as its starting point the general rule that the parties to a case cannot in the course of the proceedings transform the dispute brought before the Court into a dispute that would be of a different nature.44 This rule applies a fortiori to the case of counter-claims, having regard to the provisions of Article 80 of the Rules, and in particular taking into account the fact that it is on the basis of the counter-claim as originally submitted that the Court determines whether it is directly connected with the subject-matter of the claim, and as such admissible under that text (para. 117). Reviewing the countermemorial and the counter-claim the Court found that the United States had not transformed the subject of the dispute originally submitted to the Court, which remains the same (para. 118). The Court therefore could not uphold Irans submission on this score. On the merits the Court rejected the counterclaim (para. 124). An important development occurred in the Land and Maritime Boundary between Cameroon and Nigeria case. In its counter-memorial led on 31 May 1999, Nigeria referred to Article 80 of the Rules and included a series of counterclaims relating to incidents along the border which Nigeria alleged engaged the international responsibility of Cameroon. Cameroons claim alleged a series of incidents alleged to engage the international responsibility of Nigeria, and Nigeria requested the rejection of those claims. Cameroon did not make any objection to the submission of the counter-claims. In the process of xing the time limits for the reply and rejoinder, and after the usual meeting with the parties about that, the Court made an order on 30 June 1999 xing those time limits.45 In that order, the Court found that the counter-claims met the requirements of Article 80. They rested on facts of the same nature as the corresponding claims of Cameroon and all those facts were alleged to have occurred along the frontier between the two countries. Echoing but not repeating the orders of 1997 and 1998, the Court found that the claims in question of each of the parties pursued the same legal aim, namely the establishment of legal responsibility and the determination of the reparation due on this account. Accordingly the counter-

44

45

The Court relied here on the Socit Commerciale de Belgique case in the Permanent Court and its own ruling in the Certain Phosphate Lands in Nauru case, PCIJ Ser. A/B No. 78 p. 175 and ICJ Rep. 1992, 240, 265 (para. 63). ICJ Rep. 1999II, 983. This stage had been preceded by phases of provisional measures, preliminary objections, and a request for the interpretation of the preliminary objection judgment, so the Court was well informed of the nature of the case when it came to examine the counter-claims.

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claims were directly connected with the subject-matter of Cameroons claims, and were therefore admissible as such and formed part of the proceedings. In order to protect the rights of third States entitled to appear before the Court, the Court instructed the Registrar to transmit a copy of that order to them. As in the previous cases, and to ensure strict equality between the parties, the Court also reserved Cameroons right to present its views in writing on the counter-claims a second time in an additional pleading which might be the subject of a subsequent order. In the merits phase no difculties arose over the counter-claim. The Court treated together Cameroons submissions concerning Nigerias State responsibility and Nigerias counter-claims concerning Cameroons State responsibility, dismissing them both (paras. 308 to 324). This case is a major change from the practice of the Permanent Court, and from that of the present Court in the previous cases in which counter-claims had been presented in the counter-memorial the Asylum case and the U.S. Nationals in Morocco case. In both those cases the Court took no action regarding the counter-claims when dealing with the proceedings after the countermemorials had been led. In the Asylum case it allowed the applicant an additional speech to deal with the counter-claim only. The order of 30 June 1999 suggests that in future the Court would proprio motu examine the admissibility of a counter-claim presented in the counter-memorial in accordance with Article 80 of the Rules, and make pertinent orders if it nds it admissible. Should the applicant raise any objection to the counter-claims, the Court will arrange for appropriate interlocutory proceedings. The last to date in this cluster of counter-claims is the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo [DRC] v Uganda).46 Here Ugandas counter-memorial included three counter-claims. At a meeting with the President on 11 June 2001 the DRC raised objections to the admissibility of the counter-claims and the parties agreed that each party would le written observations on the admissibility question. This was done sequentially, the DRC ling rst. Having received these detailed written observations the Court considered that it was sufciently well informed of the respective positions of the parties, and on 29 November 2001 it issued an order holding that two of the counter-claims were admissible as such but that the third was not. To ensure strict equality between the parties the DRCs right to present its views in writing a second time in an additional pleading was reserved.47 In the hearings the DRC was allowed to make an oral rejoinder to Ugandas nal pleading, linked to the counter-claim.

46 47

ICJ Rep. 2005, 19 December, paras. 266 to 344 address the counter-claims in this case. ICJ Rep. 2001, 660. For the formal authorization for the ling of the additional pleading see ICJ Rep. 2003, 3.

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In its judgment the Court rst considered the admissibility of the objections (paras. 266 to 275). Starting from its dictum in paragraph 105 of Oil Platforms, (above p. 285) the Court found that there was nothing in the facts of Armed Activities that compelled a different conclusion. On the contrary: the Courts order admitting this counter-claim clearly called for the same outcome as the Court had reached in Oil Platforms. The Court explained that the enquiry under Article 80 to admissibility is only in regard to the question whether a counterclaim is directly connected with the subject-matter of the principal claim; it is not an over-arching test of admissibility (para. 272). In the order of 29 November 2001 the Court had intended only to settle the question of a direct connection within the meaning of Article 80. Uganda had argued that the objection was inadmissible as failing to conform to Article 79 of the Rules (relating to preliminary objections). Rejecting this contention the Court said that
Article 79 concerns the case of an objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision on which is requested before any further proceedings on the merits. It is inapplicable to the case of an objection to counter-claims which have been joined to the original proceedings. The Court notes that nonetheless, the DRC raised objections to the counterclaims in its Reply, i.e. the rst pleading following the submission of Ugandas CounterMemorial containing its counter-claims (para. 274).

The effect of this was that the objections came within the category of pleas in bar, on which the Court had to give a decision before deciding on the merits of the objections. In this case the Court went on and formally rejected the objections to the rst counter-claim and to the part of the second counter-claim relating to breach of the Vienna Convention on Diplomatic Relations of 1963. It upheld the objection to the admissibility of the part of the second counter-claim relating to the maltreatment of individuals other than Ugandan diplomats at Nidjili International Airport on 20 August 1998 and found that the DRC had violated obligations owing to Uganda under the Vienna Convention and was under an obligation to make reparation to Uganda for the injury caused. It decided that failing agreement, the question of reparation due to Uganda should be settled by the Court, and reserved for this purpose the subsequent procedure in the case (para. 345 sub-paras. (8) to (14)). This matches the conclusions on the DRCs claim where it found that Uganda was under obligation to make reparation to the DRC and adopted a similar clause regarding the question of reparation. Dealing with the rst counter-claim and DRCs argument that it was partly inadmissible and not founded as to the merits, the Court explained that the 2001 order does not deal with questions of admissibility outside the scope of Article 80 of the Rules, nor does it deal with the merits of the rst counterclaim. Neither does the Order prejudge any question as to the possibility of dividing this counter-claim according to specic periods of time. The Court

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was therefore not precluded, if it was justied by the circumstances of the case, from considering the rst counter-claim following specic time periods. In this case the Court did not see any obstacle to examining the rst counter-claim following three periods of time and for practical purposes deems it useful to do so (para. 291). In connection with the second counter-claim, the Court noted that certain new claims advanced by Uganda were based on the same factual allegation, i.e. the alleged illegal use of force as the Court had observed in the 2001 order. It was the use of force on Embassy premises that brought this counter-claim within the scope of Article 80 of the Rules, but that does not preclude examination of the special status of the Embassy. The Court cited its judgment on the preliminary objections in the Cameroon v Nigeria case48 for the proposition that counter-claims do not have to rely on identical instruments to meet the connection test of Article 80 (para. 326). A consequence of this dispositif on the merits of the case was that each party was under obligation to make reparation to the other, further proceedings on the questions of reparation being reserved pending agreement between the parties. The case therefore remains pending on the Courts General List, relevant to the application of Practice Directions VII and VIII.49

IV. What is not a Counter-claim?


A consequential claim by the respondent based on the rejection of the applicants claim is not a counter-claim. The present Court furnishes two illustrations of this (one is a consequential claim by the applicant). In the Temple of Preah Vihear (Merits) (Cambodia v Thailand) case, at the end of the hearings Cambodia presented a revised submission asking for the return of certain artefacts that it alleged the Thai authorities had removed from the Temple since the date of the Thai occupation of that area. Commenting on this, the Court said:
. . . [T]he Court considers that the request . . . does not represent any extension of Cambodias original claim (in which case it would have been irreceivable at the stage at which it was rst advanced). Rather it is . . . implicit in, and consequential on, the claim of sovereignty itself.50

The Court made a nding of principle in favour of Cambodia after it had upheld Cambodias main claim. Here, the consequential claim was made by the

48 49 50

ICJ Rep. 1998 275, 318 (para. 99). See Essays 6 and 7 above. ICJ Rep. 1962 at 30.

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applicant. However, the same principle would also be applicable to a consequential claim of this nature made by the respondent in similar circumstances. That issue appeared in the Arbitral Award of 31 July 1989 case (Guinea-Bissau v Senegal). Senegal, in its counter-memorial, requested the rejection of the applicants submissions. The counter-memorial then went on to ask for a declaration that the arbitral award was valid and binding for the two parties, and that the applicant had the obligation to apply it. The Court made no particular observation on that submission. However, in the operative clause of the Judgment, after rejecting a submission by Guinea-Bissau that Senegal was not justied in seeking to require the application of the arbitral award in question, the Court turned specically to that submission of Senegal, which it upheld.51 These two cases show that a consequential submission that does not involve any extension or widening of the case or any transformation of the case into another case, is something distinct both from a defence on the merits and from a counter-claim. This is a development that may widen the scope of judicial settlement in the broader context of the pacic settlement of international disputes and the remedies available in the International Court of Justice.

V. Counter-claims by agreement
The original assumption of the Permanent Court was that a counter-claim could only be made when the case is begun by application. That was apparently something left over from the original idea of the Advisory Committee of Jurists of 1920. That Committee had envisaged a form of compulsory jurisdiction over legal disputes, an approach that was rejected by the Council of the League of Nations. However, as seen, the condition that the dispute should have been begun by application was dropped by the present Court in the revised Rule 80 of 1978. The reasons for this change are not known. The rst instance of the incorporation of a counter-claim in a special agreement was in the Corfu Channel case. Here the proceedings were originally introduced by an application of the United Kingdom against Albania on the basis of the forum prorogatum jurisdiction, but after preliminary objection proceedings the parties concluded a special agreement which formed the basis for subsequent proceedings.52 The second question asked in that special agreement was the counter-claim of Albania, and was treated as such by the United Kingdom. The existence of this as a counter-claim can be determined from a comparison of the two questions that the Court was asked to decide with the initial unilateral application instituting the proceedings led by the United Kingdom.53

51 52 53

ICJ Rep. 1991, 53. ICJ Rep. 19471948, 53 at 55. ICJ Rep. 1949, 3.

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The second example of this is the special agreement of 28 June 1993 that formed the basis for the Gabckovo-Nagymaros Project case (Hungary/Slovakia). Earlier, on 23 October 1992, Hungary had seised the Court of an application against the then Czech and Slovak Federal Republic regarding diversion works on the River Danube. There was no basis for the Courts jurisdiction. Since the named respondent declined the invitation to accept the unilateral application the Court, following Article 38, paragraph 5, of the 1978 Rules, took no action on it. The diplomatic negotiations that followed led to the special agreement, in which three questions were put to the Court.54 This was a more synallagmatic approach to the Court than Hungarys initial unilateral application. It is consonant with this practice that in the jurisdictional phase of the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, during the oral proceedings Qatar acknowledged that its application instituting the proceedings corresponded only to part of the dispute, and invited Bahrain to remedy the matter by bringing a separate application or a counter-claim respecting, for example, Zubarah. The 1994 Judgment goes on to afford the parties the opportunity to submit to the Court the whole of the dispute, without specifying any particular method for them to do this. In the second (1995) judgment on jurisdiction, after some additional documents had been led, the Court found that Qatar had introduced the elements that Bahrain wanted, although perhaps not in the form preferred by that country, and held that it had jurisdiction to adjudicate upon the dispute and that Qatars application was admissible.55 Common to the rst two of those cases is that the special agreement replaced a unilateral approach to the Court in a situation of a unitary factual complex, similar to those found by the Court to have existed in the Application of the Genocide Convention and the Oil Platforms cases. The conclusion of the special agreements widened the scope of the cases to cover the whole of the dispute and introduced an element of mutuality and reciprocity into the litigation. That did not change the nature of the cases, although it did supply a more satisfactory basis for the employment of judicial settlement in the pacic settlement of two difcult disputes. However, it is with the framework agreement type of case the Asylum case for instance that the counter-claim has shown its real value in the employment of judicial settlement as a process for the pacic settlement of an international dispute. This is a relatively new diplomatic procedure used when the parties are unable to dene the dispute in terms appropriate for a special agreement in the traditional sense but agree that either party may le an application instituting proceedings. As it appeared in the Asylum case, the parties agreed

54 55

ICJ Rep. 25 September 1997 (para. 24). ICJ Rep. 1994, 112 at 124 (para. 36) and 1995, 6. The Court decided that the proceedings would be those usual in a case introduced by notication of a special agreement, with the simultaneous ling of the written proceedings. That case is pending.

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that a dispute about Sr. Haya de la Torre and his asylum existed and that it should be referred to the Court. Since they were unable to dene the question to be put to the Court they agreed that a unilateral application by either party would not be regarded as an unfriendly act. The ability to make a counter-claim opens the possibility that each side could present the Court with its conception of what the dispute between them is, thus permitting the Court to give a more balanced decision embracing the whole of the dispute than is frequently encountered in situations of purely unilateral recourse to the Court. It would appear that the potentialities of this procedure for energizing the judicial settlement of disputes are especially relevant in the context of regional attempts at dispute settlement.

VI. Some Afterthoughts


Whatever the intention when the idea of a counter-claim was introduced into the rst rules of the Permanent Court in 1922, today Article 80 of the Rules has to be construed and applied in the context of the Courts law and practice as a whole. All questions of the Courts jurisdiction are governed by Article 36 of the Statute (including paragraph 6 of that Article). In some of the recent counter-claim cases, the Courts jurisdiction, and its parameters in the particular case, had been determined in earlier preliminary objection proceedings, and the Court found that the counter-claims came within the scope of the jurisdiction as it had been determined. The method of seising of the Court is another matter. That is governed by Article 40 of the Statute, which recognizes two methods of seising the Court of the originating claim by notication of a special agreement or by unilateral application. The jurisdiction of the Court is based exclusively on the consent of the parties, however expressed. That consent may extend specically to the method of seising the Court, but if not, a party that has consented to the jurisdiction may institute proceedings unilaterally if no special agreement can be or has been concluded. Once a case has been properly brought before the Court, the Rules take over. For reasons of judicial economy Article 80 permits an exceptional method of seising the Court of a claim. That exceptional method, available only to a State that is already a party to a case in the capacity of respondent and participating in the proceedings, is the ability of that State to introduce a new claim by way of counter-claim argued and formulated in its counter-memorial. If that counter-claim comes within the Courts jurisdiction and meets the material condition of a direct connection with the original claim, it will be joined to and form part of the proceedings already before the Court. Following appropriate procedure to maintain the rights of third States and the equality of the parties, a single judgment will then dispose of the claims and the counter-claims. A State which unilaterally lodges a suit against another State must keep in mind the possibility that the respondent will use its right to make a counter-claim under Article 80 of the Rules.

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The Court has made a major clarication of the concept of directly connected as the main material element of a counter-claim in international litigation. The direct connection is determined by relating the counter-claim and the arguments on which it is based to what the Court has termed the factual complex. That factual complex, the cases show, comprises many factors: the title of jurisdiction; the time-span to which the counter-claim relates as compared with the time-span of the originating claim, an aspect of the scope of jurisdiction ratione temporis; the territorial aspect, what might be termed the scope of the jurisdiction ratione territorii; the instruments invoked in the counter-claim in comparison with those originally invoked, jurisdiction ratione pacti; and the aim of restoring legality in the relations of the States litigant, to mention but some that have appeared in the recent cases. The preceding survey well illustrates the difference between a respondents counter-claim and its defence, between the respondents asking the Court for a positive decision in its favour while rejecting the applicants claims as opposed to a purely negative decision rejecting the applicants claim. It also indicates the defensive function of a counter-claim in appropriate cases, especially cases of State responsibility arising out of an incident. The presence of a counter-claim compels the Court to look at the facts through two prisms, rst that of the applicant and then that of the respondent. This can produce a neutralizing mode, when the Court rejects the claims of both parties as in Oil Platforms, or an equalizing mode as in Armed Activities when the Court accepts the claims of both parties. Another form of equalizing produced through careful use of the counter-claim procedure is when the case is brought before the Court on the basis of a framework agreement which does not dene the dispute but regulates the seising of the Court (Asylum). The inclusion of a counter-claim in the submissions of the counter-memorial links the two processes and opens the way to a sophisticated legal strategy. The inclusion of the counter-claim in the submissions introduces an element of symmetry in the dispute and ensures its disposal in the operative clause of the judgment. This case-law leads to the general conclusion that in the law and practice of the International Court, the counter-claim is a purely self-standing institution following its own logic, its own procedure, and its own rules, with its own place in a well conceived litigation strategy. Its development has followed parallel developments in the Courts general law and practice, particularly as regards its jurisdiction and the seising of the Court. It is immaterial whether it was initially inspired by one or other system of internal law or by theories of abstract jurisprudence. Analogies drawn from internal law and practice are of little relevance for litigation in the International Court.

17
THE JAFFA-JERUSALEM RAILWAY ARBITRATION (1922)1

On 4 October 1922 an Arbitral Tribunal rendered its nal award in the case arising out of the purchase by the Government of Palestine of the railway concession between Jerusalem and Jaffa. The concession was owned by a French company. The case goes under the name of the Chemin de Fer ottoman de Jaffa Jrusalem et Prolongements and His Britannic Majestys Government. The arbitral proceedings were arranged between the British and French Governments, but in the proceedings themselves, the Railway Company appeared as claimant and the British Government as respondent. By agreement between the two Governments and accepted by the Company, the arbitration took place in Paris on the basis of article 311 of the Treaty of Svres, the Treaty of Peace with Turkey of 10 August 1920, although at the time that treaty had not come into force (later events aborted it).2 No other case of

The author wishes to thank the following persons for assistance in connection with this article: President S.M. Schwebel of the International Court of Justice and Dr A. Eyfnger, the Courts Librarian for obtaining copies of the Award; Dr Geoffrey Marston, of Sidney Sussex College, Cambridge, England, for providing him with references to documents preserved in the Public Record Ofce (PRO) London; Mr David Lerer and Ms Emily Daniel of D.J. Freeman, Solicitors, London, for examining and retrieving copies of documents kept at the PRO; La Direction des Archives du Ministre franais des Affaires trangres (Paris) for relevant information from the French archives; and Mr Jonathan Meidan, First Secretary of the Embassy of Israel in Oslo for undertaking researches in Norwegian Archives relevant to Deputy-judge F.V.N. Beichmann. For this article the author has used the les of the Foreign Ofce (as it was then known) and of the Treasury Solicitor in the PRO in London, that is les FO 371/5259 (1920), FO 371/6380 and 6381 (1921) and FO 371/7787 and 7788 (1922), Treasury Solicitor les TS/27/143 and TS/27/144, and information received from the Quai dOrsay in Paris. The original Foreign Ofce numbers of the dockets and other papers have been inserted in square brackets. Material relating to the arbitral proceedings themselves is contained in the Treasury Solicitor les. Parallel British les exist in the PRO for the Colonial Ofce, les CO 733/9, 10 and 11 (for 1921), and CO 733/29, 30 and 31 (for 1922). E-mail Marston to the author, 22 April 1998. The Israel State Archives hold microlms from the PRO of the Foreign Ofce and Colonial Ofce les. Letter G. Livneh to the author, 26 February 1998. The author has deposited his les relating to this case in the Library of Tel Aviv University Law School. For the text of the Treaty of Svres, see 113 British and Foreign State Papers 652; 15 American Journal of International Law, Supplement, 179 (1920); F.L. Israel (ed.), III Major Peace Treaties of Modern History 16481967 2055 (1967). The fact that no treaty of peace with Turkey was

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this nature under that Treaty is recorded in the International Law Reports. That Award and the Preliminary Decision have never been published in full and are reproduced in Appendix I of this article.3 Appendix II reproduces the relevant available diplomatic correspondence exchanged between the British and French Governments. The nal award, rendered by consent after a weeks hearings on the merits, had been preceded by a Preliminary Decision of 29 May 1922, which resolved one of the principal legal issues in the case. The Tribunal was composed of F.V.N. Beichmann, Deputy-judge of the Permanent Court of International Justice and President of the Court of Appeal of Trondheim, Norway, as President, together with Lt. Col. H. Osborne Mance, Royal Engineers, an experienced railway engineer nominated by the British Government and Chief Engineer Ferdinand Meyer, nominated by the French Government. The future of another concession in Palestine was also under discussion between the two Governments at the time and some of the diplomatic correspondence refers to it. That was a concession to the Turkish Tobacco Rgie. There was a suggestion from the French Government that this concession too should be submitted to the same arbitration, and that in some way the Ottoman Public Debt Commission could be interested in it. The British Government at rst was inclined to accept this, while denying any possible interest on the part of the Ottoman Public Debt Commission (Appendix II, No. 2). However, the British Governments communication of 18 July 1921 (Appendix II, No. 3) only refers to the railway claim. There was no further substantial reference to the Tobacco Rgie in the diplomatic correspondence until much later. In its second letter of 13 February 1922 (Appendix II, No. 15b) the British Government formally declined to arbitrate that claim. That matter was settled independently.4
in force at the time meant that Palestine was still technically Turkish territory under a form of belligerent occupation until the entry into force of the Treaty of Lausanne on 6 August 1924. For that Treaty, see 117 British and Foreign State Papers 543; 18 American Journal of International Law, Supplement, 4; Israel, op. cit., vol. IV at 2301. The Tribunals preliminary decision (see Appendix I) notes that the Treaty of Svres was not yet ratied. See A.M. Stuyt, Survey of International Arbitrations 17941989 at 477 (Third updated ed. 1990). The text has been made available from the Peace Palace Library at The Hague. The Award does not indicate which language version is authoritative. The only known reference to that Award is in the article by S.M. Schwebel, assisted by Dr. J. Willis Wetter, Some Littleknown Cases on Concessions, 40 BYIL 183 (1964), and reproduced in S.M. Schwebel, Justice in International Law 436 (1994). There is no mention of it in the leading treatise on the Palestine Mandate, S.J. Stoyanovsky, The Mandate for Palestine (1929). According to Schwebel, op. cit. fns. 36 and 41, the following rate of exchange was used for computing Egyptian pounds into pounds sterling applicable in October 1922 1.00 = E.975, and the rate of exchange for computing French francs was 1.00 = 58 frs. At that time the Egyptian Pound was the currency in use in Palestine. Concerning that concession, on 13 October 1920 the Government of Palestine promulgated Public Notice No. 192, requiring persons holding or claiming concessions in Palestine granted

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I. The Background The background of this arbitration can be reconstructed from the diplomatic documents retrieved from Foreign Ofce les in the Public Record Ofce in London, from information that has been furnished from the Archives of the Ministry for Foreign Affairs (the Quai dOrsay) in Paris, and from the written pleadings in the case, retrieved from the Treasury Solicitors les now also in the Public Record Ofce in London. On 29 October 1888 the Imperial Ottoman Government through its Department of Commerce and Public Works granted to Youssouf [Joseph] Navon Effendi, an Ottoman subject living in Jerusalem, a concession for the construction and exploitation of a railway of approximately 80 kilometres (actually, nally, 87 kms) in length, to pass from Jaffa through Ramleh to Jerusalem. That was the rst railway to be built in Palestine itself, and it reduced the time of the journey from approximately 12 hours by diligence (stage coach) to some four hours.5 The duration of the concession was 71 years from the date of the Firman authorizing it, namely 29 October 1888, expiring in 1959. The Ottoman Government retained the right to repurchase the concession on agreed terms after 30 years. On the termination of the concession, the railway was to be handed over to the Turkish authorities in good condition without payment for track and xed properties, the price for the remainder to be xed by experts. The rates were to be laid down in what was called the Cahier des Charges, an integral part of the concession arrangements. Following the grant of the original concession, the Company Socit du Chemin de Fer ottoman de Jaffa Jrusalem et Prolongements was formed in Paris to exploit the concession. The line was opened for trafc in September 1892.6 Joseph Navon (18581934) was a prominent gure in Jewish Jerusalem of the latter part of the nineteenth century. He was a merchant and a banker,

by the Ottoman Government to forward immediately full particulars to the Department of Commerce and Industry in Jerusalem. Ofcial Gazette of the Government of Palestine No. 31, 15 November 1920, p. 4. Questions relating to that concession, which was not conned to Palestine, arose in the Ottoman Public Debt arbitration of 1925. United Nations, I Reports of International Arbitral Awards 529. Service on this line was suspended by the Israel Railways in August 1998. It had ceased to be economic, although it remained a tourist attraction, passing through some of the most beautiful countryside in Judea. For a partial reproduction of the original concession, see G. Young, IV Corps de droit ottoman 207 (1906). The full text appears in the written pleadings of the arbitration. See General Statement of Claim of the Applicants (undated, [? 19 April 1922]), Appendix C1, and Appendix C2 (Cahier des Charges). Repeated in the Amended General Statement of Claim (undated [? 21 June 1922]). The written pleadings of this case are found in PRO le TS [Treasury Solicitor] 27/144. Other material is in le TS 27/143. See also IV Encyclopedia Hebraica at cols. 955 and 960 (in Hebrew).

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and was active in developing Jewish Palestine at that time. After the railway was opened, the Ottoman Government conferred on him the title of Bey, in recognition of his services in developing Palestine. He moved to Paris in 1894, where he met Herzl. He died in Paris in 1934.7 There is a street named after him in the Mahane Yehuda quarter of Jerusalem, between Jaffa Road and Rashi Street. In April 1914, the French and Ottoman Governments concluded a treaty by which they agreed on the construction of a deep-water port at Jaffa, the prolongation of the railway to that port, and the exercise of the right of repurchase of the railway in accordance with the terms of the concession. The details were worked out directly between the Ottoman authorities and the Company. On 4 August 1914 the day of the outbreak of the First World War in Western Europe a Supplementary Agreement on this matter was signed in Constantinople between the Ottoman Minister of Finance and the representative of the Company. In one of the clauses of that Supplementary Agreement, the Ottoman Government renounced its right of repurchase. The Company was allowed to extend the line to the Dead Sea, but was unable to do so.8 The Ottoman Empire entered the War on the side of the Central Powers on 29 October 1914. The Turkish authorities immediately seized the railway, which they held and worked until November 1917. In November 1917, during General Allenbys advance through Palestine to Syria, the railway came into the hands of the British military authorities. These apparently requisitioned it under the customary law of war. In the course of their retreat, the Turkish forces deliberately damaged the railway so as to prevent its use by the advancing British forces. According to the Company, the costs of reinstating and repairing that damage would form the subject of claims against the Turkish Government under the terms of the Treaty of Svres. We shall return to that Treaty. The British undertook then to repair the line, which was in use again by January 1918. During 1919 negotiations took place between the Company and General Allenbys Headquarters in Cairo regarding payment for this property. On 19 July 1919 the Company sent a formal request to General Allenby asking for a regular requisition of the line according to the usages of war and setting out its view regarding the factors which should govern payment for the requisitioned property. That letter concluded:
It is evident that this requisition, which only concerns the deprivation of enjoyment of our enterprise, will not prevent us from settling later on with the Allies the question of material damages caused by them to our installations (destroyed Gases! [Gares ? StaEncyclopedia Judaica, CD-ROM edition, s.v. Navon; VI Encyclopedia Hebraica col. 816. For this contract, see General Statement of Claim of the Applicants and the Amended General Statement of Claim cited in note 5 above, Appendix D.

7 8

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tions], partial replacement of routes substitution of wide for narrow gauge) and these are matters which will be settled by agreement, decidedly realisable I believe, the day on which it will be possible for you to give us back our lines.9

Those proposals were not accepted, and apparently the requisition of the railway was never completed.10 In October 1920 the Occupied Enemy Territory Administration (OETA) in Palestine was replaced by the civil administration, with Sir Herbert Samuel (as he then was) as High Commissioner. The railway was handed over to the Palestine authorities. It was operated as part of the general system of the Palestine Government Railways. Article 287 of the Treaty of Svres dealt with the property of Allied nationals in the Ottoman Empire as at 1 August 1914 (the date of the outbreak of the War in Central and Eastern Europe). That property was to be restored to its owners or compensation should be paid for it. If the property, rights and interests had been damaged or injured, compensation was to be paid by the Turkish Government, after determination if necessary by an Arbitral Commission to be appointed by the Council of the League of Nations. Article 311 of the Treaty addressed concessions in territories detached from Turkey and placed under the tutelage of one of the Principal Allied Powers Palestine was one of those territories, placed under League of Nations Mandate administered by Great Britain. If the Allied Power concerned considered that the maintenance of the concession would be contrary to the public interest, it was entitled to buy it out or to propose modications, subject to the payment of equitable compensation. If the parties could not agree on the amount of the equitable compensation, the compensation was to be determined by an Arbitral Tribunal. Paragraphs 3, 4 and 5 of article 311 provided:
If the parties cannot agree on the amount of such compensation, it will be determined by Arbitral Tribunals composed of three members, one designated by the State of which the concessionaire or the holder of the majority of the capital in the case of a company is or are nationals, one by the Government exercising authority in the territory in question, and the third designated, failing agreement between the parties, by the Council of the League of Nations. The Tribunal shall take into account, from both the legal and equitable standpoints, all relevant matters, on the basis of the maintenance of the contract adapted as indicated in the following paragraph. The holder of a concession which is maintained in force shall have the right, within a period of six months after the period specied in the second paragraph of this article, to demand the adaptation of his contract to the new economic conditions, and in

9 10

The Company to General Allenby, 19 November 1919, translation in the British Reply, 21 July 1922, Appendix E, at pp. 39, 40, cited in note 5 above. Rejoinder on behalf of the Company, 12 August 1922, p. 3 (para. 9), cited in note 5 above.

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the absence of agreement direct with the Government concerned the decision shall be deferred to the Arbitral Commission provided for above.

Almost immediately on its installation the civil administration of Palestine, the Government of Palestine, decided to buy out the concession. On 22 September 1920 the Foreign Ofce in London informed the French Embassy (Appendix II, No. 1) that the High Commissioner for Palestine wished to take the railway. The British Government thought that the best course to pursue would be for the Company to submit a claim based on the value of the line at the date when it was taken over by the British military authorities. The Palestine Government would make a similar estimate of its value at that date. The case as submitted by the two parties concerned could then, if necessary, be settled by arbitration, due consideration being given to the value of the concession and the expenditure which has been entailed to restore the line to working conditions. The Note continued that any claim put forward as suggested would not of course invalidate their claim against the Turkish Government for damage done during the period of Turkish occupation. No direct reply to that Note has come to hand. Negotiations then took place in Palestine between the Government and the Company from December 1920 to March 1921. In those negotiations, the Company put forward a claim for 25,318,395 francs [436,524]. For its part, the Palestine Government without prejudice made a counter-offer of 11,000,000 francs [189,655]. No agreement was reached.11 After this the negotiations were transferred to London and Paris. Most of the diplomatic correspondence took place between the Foreign Ofce and the French Embassy in London. For its part, the Foreign Ofce was in close contact with the Colonial Ofce, and no doubt through that Ofce with the Government of Palestine. In Paris, the Ministry for Foreign Affairs maintained liaison with the Company. On 24 June 1921 the Foreign Ofce advised the French Embassy in London [Appendix II, No. 2], in reply to the Embassys Notes of 29 March and 1 April [not found] dealing respectively with claims of the Tobacco Rgie and the Railway Company against the Administration of Palestine,12 that it accepted the French view that these claims should be submitted to arbitration without waiting for the entry into force of the Treaty of Svres, and that one tribunal should be set up to deal with both the claims. Article 311 of

11

12

Afdavits by Norman Bentwich, Attorney General of the Government of Palestine, and of Sir Herbert Samuel (2), all of 22 August 1922, PRO le TS 27/143. Those afdavits were apparently led in the arbitration proceedings. In the arbitration there was some discussion as to whether the payment was to be in gold francs, and the two afdavits were led to answer that contention made by the Company. The French Government referred to that offer in its aide mmoire of 10 August 1921 (Appendix II, No. 4). These Notes are not available to the author.

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the Treaty of Svres provided a procedure designed to meet cases of that nature. On 20 July 1921 the French Embassy sent its reply to the Foreign Ofce (Appendix II, No. 4). In that Note the French Government accepted the proposal to submit the two claims to a single arbitral tribunal. It requested an immediate payment to the Company of the sum of 5,600,000 francs [later assessed by agreement as 103,368] in order to enable it to meet its current obligations. The French Foreign Minister, Aristide Briand, thought that the arbitral tribunal should be constituted and should function according to the terms of articles 287 and 311 of the Treaty of Svres even though the Treaty had not yet come into force. The tribunal should have the widest powers to settle all questions submitted to it and its decision should x the amount of compensation to be paid, and the dates and method of payment. It should also have the power to determine the costs of the arbitration and the method of payment of those costs.13 On 10 August, Mr R.G. Vansittart, at the time secretary to Lord Curzon, the Secretary of State for Foreign Affairs, visited the Quai dOrsay. He was handed an aide mmoire (Appendix II, No. 5) devoted almost exclusively to the payment of that sum. The aide mmoire displays French impatience at what appeared to it to be delaying tactics on the part of some British authorities. On 15 August (Appendix II, No. 6) the Foreign Ofce, acknowledging the Embassys communication of 20 July [Appendix II, No. 4), made a suggestion regarding the president of the tribunal, to be discussed in II below. It also asked for particulars regarding the French request for the immediate payment of the 5,600,000 francs on account. Replying to the Foreign Ofce on 25 August 1921 (Appendix II, No. 7), the French Embassy returned with greater emphasis to the question of the immediate payment of the sum of 5,600,000 francs to the Company to enable it to meet current obligations pending the arbitral award.14 In its reply of 9 September (Appendix II, No. 8), the Foreign Ofce indicated that it was most anxious that the Tribunal should begin its work with the least possible delay. It therefore suggested that the Company should forthwith submit unofcially a copy of its claim so that the British authorities could make a preliminary investigation of it and thus perhaps avoid delays which might be occasioned by the necessity of reference to the Government of Palestine.15 There followed some interim correspondence relating to the composition of the Tribunal, to be discussed later

13

14 15

PRO le FO 371/6331. That letter dealt equally with the claim of the Tobacco Rgie. In its Preliminary Decision, the Arbitral Tribunal seems to have misread that letter as a rejection of the British suggestion to arbitrate the matter. But viewing the diplomatic correspondence as a whole. it is difcult to see why the Tribunal should have thought this. PRO ibid. That Note also dealt with the composition of the tribunal. PRO ibid. [E 10048/40/88]. At the same time the Foreign Ofce intimated that the question of the advance payment was under consideration.

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( II below). On 3 October the Foreign Ofce notied the French Embassy that it was prepared to make the advance payment requested, the sum in question to be deducted from the total amount of compensation eventually decided upon by the Tribunal (Appendix II, No. 9).16 In a letter of 21 December 1921 to the French Ambassador in London (Appendix II, No. 13), the Foreign Ofce assumed that there would be no necessity to agree upon specic terms of reference to the tribunal, as it was already mutually understood that the arbitration was taking place with the object of determining the equitable compensation payable to the Company under article 311 of the Treaty of Svres. The French side had accepted this proposal (Appendix II, No. 14). On 13 February 1922 (Appendix II, No. 15a), referring to a request for more specic terms of reference from Beichmann, now President of the Arbitral Tribunal, the British Government reiterated its view that no specic terms of reference were necessary. However, at the same time the members of the Tribunal must be supplied with instructions in some form which will specify both the object and the limitations of the proposed arbitration. The Government accordingly proposed that the Notes of 21 December 1921, 10 January 1922, the present note and the reply to it should be submitted jointly to the arbitral tribunal. It went on to point out that the correspondence did not contain any specic provision for the possibility of the award being other than unanimous. In view of the urgent necessity of reaching a nal decision in the matter at issue, the Government considered that an award given by a majority of the members of the Tribunal should be accepted as binding on both parties. On 27 February (Appendix II, No. 16), the French Ambassador accepted those proposals. He also contended that following from article 311 of the Treaty of Svres, a decision by a majority of the members of an arbitral tribunal would be sufcient.17

16

17

PRO ibid. [E 10426/40/88]. This was acknowledged by the Embassy in its Note to the Foreign Ofce of 7 October 1921, Appendix II, No. 10. The text of that British reply given in Appendix II is reconstructed from the drafts also available in the PRO, the second page of the letter having been inadvertently omitted from the copy that was sent to the author. A note in the PRO le dated 8 December 1921 from the British Embassy in Paris states that a communication was sent to the chairman of the Company and that the Count de Vaural presented himself and took possession of the cheques. Form receipted by this gentleman is transmitted [docket E 13520/40/88]. De Vaural was chairman of the Company. The Treaty of Svres does not contain a specic provision that a majority of the Tribunal would be sufcient. But presumably its draftsmen were familiar with article 52 of the Hague Convention No. I of 1899, repeated in article 78, paragraph 2, of The Hague Convention No. I of 1907, for the Pacic Settlement of International Disputes, providing that all questions are decided by a majority of the members of the tribunal, and no doubt that was the normal practice. For those Conventions, see 187 Consolidated Treaty Series 410 and 205 ibid. 233. Those four letters were accordingly transmitted to the Tribunal and formed its terms of reference. They are set out in full in appendix A of the British Reply of 21 July 1921 (see note 5 above). They are mentioned in the opening paragraphs of the Award of 4 October 1922.

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II. The Composition of the Tribunal The rst mention of the composition of the Tribunal appears in the British Note of 18 July 1921 (Appendix II, No. 3). The Government was endeavouring to secure as the British arbitrator an expert in railway administration and nance, and hoped that the French Government would choose as its arbitrator an expert with similar qualications. The Note explained that the Government thought this course to be desirable because the questions with which the Tribunal would have to deal would be largely of a technical and nancial nature, and unless the national members possessed the qualications for dealing with such questions, the Tribunal would probably nd it necessary to incur considerable expense in providing itself with expert assistance. The Note went on to state that if one national representative is an expert, it seemed desirable that the other should possess similar qualications. At the same time, the British Government thought that the President should be a lawyer as some legal questions will no doubt arise, but that one legal member should sufce. This communication does not mention the claim of the Tobacco Rgie. This suggests that the idea of submitting that claim to the same arbitral tribunal was no longer being actively pursued. The French Note of 20 July 1921 (Appendix II, No. 4) did not directly refer to the British proposal regarding the composition of the tribunal. It simply announced the appointment by the French Government, in the terms of article 311 of the Treaty of Svres, of Ferdinand Meyer, Ingnieur en chef des ponts et chausses, pour le reprsenter. The Foreign Ofce, acknowledging that appointment in its Note of 15 August (Appendix II, No. 6), put forward the name of the Chilean jurist Alejandro Alvarez, then living in Paris, as being eminently suitable to preside over the Tribunal. The French Embassys Note of 25 August 1921 (Appendix II, No. 7) did not refer to the question of the presidency of the tribunal. It merely complained that the British arbitrator had not yet been designated. The British reply of 9 September (Appendix II, No. 8) announced the appointment of a representative, but that was conditional on his being released from other duties, a contingency that in the event did not occur. The communication went on to state that the British Government was most anxious that the Arbitral Commission should commence its work, but until they learned whether Alvarez was acceptable as President, it was difcult to proceed with preliminary arrangements.18 The Government was also arranging

18

A minute on the draft of this letter on le PRO FO 371/6381 [E 10048/40/88] suggests that there might have been some private correspondence regarding Alvarez. In 1946 Alvarez, despite his advanced years, was elected to the new International Court of Justice on which he served until 1955. His opinions are refreshingly modern and highly controversial.

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for the immediate appointment of the British agent. The letter continued by suggesting that the tribunal should meet in Paris, and raised routine questions about the remuneration of its members. The British proposal regarding the designation of the President of the Tribunal led the French Government to look more closely into the question of how the President was to be chosen. The Quai dOrsay thought that the two national arbitrators should attempt to agree on that person, and forward their recommendation to the two Governments. In a conversation with a representative of the French Embassy in the Foreign Ofce on 19 September 1921, agreement was reached on this point.19 This meant that the earlier British suggestion regarding the presidency lapsed. On 3 October the Foreign Ofce informed the Embassy (Appendix II, No. 9) that the original nominee as British arbitrator would not be available. That Note also recalls that at the conversation in the Foreign Ofce, the French representative had suggested that the two national arbitrators should meet in Paris to decide on a President of the Tribunal, and to settle the exact terms of reference to the [Arbitral] Commission. On 6 December (Appendix II, No. 11), the Foreign Ofce announced to the Embassy the appointment of Colonel H.O. Mance, C.B., C.M.G., D.S.O., Royal Engineers, as the British arbitrator, and of Mr Orme B. Clarke, Assistant Treasury Solicitor, as agent. The name of the French agent was requested.20 On 10 January 1922 (Appendix II, No. 14) the Embassy let the Foreign Ofce know that the Company had accepted the procedure proposed by the British Government to settle the dispute by arbitration. The Company would be represented by the President of its Council and its Director, and by its technical adviser Colonel Barry and such others as might be required (in the hearings it was also represented by Lord Cozens-Hardy as Counsel). At the same time it forwarded a copy of the claim that would be submitted to the Arbitral Tribunal.21 There was nevertheless some question as to the identity of the parties to this arbitration proceeding. At a meeting in the Colonial Ofce on 20 March 1922 with the two agents present, Col. Barry

19 20

21

This is based on information received from the Quai dOrsay. No record of this meeting has been found in the PRO in London. Curiously, the handwritten draft of that letter, is clearly dated 26 Dec. But that is impossible as 26 December is a public holiday in London (Boxing Day). PRO le FO 371/6381 [E 13258/40/88]. That was immediately sent to the Colonial Ofce. Minute sheet dated 10 January 1922 in PRO le FO 371/7787 [E 388/190/45]. In the Foreign Ofce it was seen, amongst others, by Sir Cecil Hurst, at that time the Legal Adviser of the Foreign Ofce. The total amount claimed, under various heads, in this General Statement of Claim (unsigned and undated) was E1,888,325 [1,936,742]. Col. Barry was the Companys effective agent in the arbitration proceedings.

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stated that the arbitration was between the Company and the British Government and that the French Government was not a party. The British representatives replied that this was not in conformity with their instructions. They asked for clarication of Barrys status, as they had been ofcial informed otherwise. Barry said that he was the agent.22 On 21 December 1921 (Appendix II, No. 13), the British Government put forward a programme of work. Regarding the composition of the tribunal, it suggested that the two national arbitrators should proceed to the selection of the third arbitrator, the name to be submitted to the Governments for conrmation. This establishes that although the appointment of Alvarez as President was no longer under discussion, a replacement had not yet been chosen. Paragraph 3 of this Note contains an interesting perception of the role of the national arbitrators:
His Majestys Government also assume that the French Government agree with them that, in accordance with the usual practice in international arbitration cases, Monsieur Mayer and Colonel Mance will be acting in the capacity solely of arbitrators and in no respect as advocates or representatives charged with the duty of advancing the interests of their respective governments.23

O si sic omnes! The two arbitrators met in Paris early in January, 1922. On the basis of article 311 of the Treaty of Svres they proceeded to deal with the question of the third arbitrator. They thought that it would be appropriate to look for one from among the Members of the Permanent Court of International Justice at The Hague.24 Their rst choice fell upon Judge Max Huber (Switzerland), subject to the approval of the two Governments. In the event of his refusal, they proposed Deputy-judge Beichmann. For reasons that are not available, Huber did not accept the task, and in that way Beichmanns name was forwarded to the two Governments.25 The rst mention of Beichmann in the diplomatic correspondence appears in the letter of the Foreign Ofce

22

23

24 25

Interview, 20 March 1922, PRO le TS 24/143. Given the terms of article 311 of the Treaty of Svres, it seems that in reality both parties to this arbitration were surrogates the British Government for the Government of Palestine, and the Company for the French Government. Was that passage a gentle reaction to the French note of 20 July (Appendix II, No. 4) that Mayer would represent the French Government in the arbitral tribunal? This letter went through several drafts. That paragraph appeared in all of them. The nal draft, dated 20 December, was initialed by Hurst. It had also been approved by the Colonial Ofce. Drafts in PRO le FO 371/6381 [E 13352/40/88]. The Permanent Court had just been established and held its preliminary organizational session in January, 1922. Beichmann formally accepted the position in a latter dated 21 February 1922, written on the letter-head of the Permanent Court.

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to the French Embassy of 18 February 1922 (Appendix II, No. 15a). Here the Foreign Ofce intimated that it was in receipt of informal information that Beichmann had provisionally agreed to accept the position of President of the Tribunal. The French Government on 27 February 1922 accepted the British proposals, and suggested forwarding the relevant diplomatic papers to Beichmann immediately (Appendix II, No. 16).26 In that way, the composition of the Tribunal was completed. As stated, Beichmann was a Deputy-judge of the Permanent Court of International Justice. Article 16 of the original (unamended) Statute of that Court of 1920 specically stated that its provision regarding incompatibilities did not apply to the Deputy-judges except when performing their duties on the Court. Beichmann took an active part in the preliminary session of that Court between 30 January and 24 March 1922. It seems that no question of possible incompatibility was raised in this instance. An interesting aspect of the choice of Beichmann as the President of the Tribunal is that neither of the two Governments at the time the predominant Governments in the League of Nations regarded the choice of a Member or a Deputymember of the Permanent Court to serve as an arbitrator in this type of dispute between a commercial concern and a foreign Government as incompatible with the functions of that person on the Court itself.27 In their January meeting, the two national arbitrators also took note of Clarkes appointment as British agent. They saw that as an application of article 37 of the Hague Convention No. I of 1899, and requested information as to the person who, if necessary, would represent the French Government.28 III. The Proceedings On 3 March 1922 the Tribunal adopted Rules of Procedure, after hearing the parties. Unfortunately, no trace of these has been found. However, there is no reason to suppose that they contained any unusual provisions. This notwithstanding, the proceedings developed in an unexpected manner. In the General Statement of Claim, formally led on 2 March 1922, the total amount claimed was E2,393,324 [2,454,691]. It included claims for the physical railway line and plant (E838,370 [859,857]) the major single element of the claim. On various grounds connected with the terms

26

27 28

A minute on the le states that the French reply was most satisfactory. The Colonial Ofce agreed, in fact preferred, our writing to M. Beichmann, to whom the papers were sent in Paris on 28 February. PRO le FO 371/7787 [E 2262/190/65]. See further on this, my The Law and Practice of the International Court 19202005, vol. I at 403 (2006). For the 1899 Convention, see note 16 above.

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of the concession contracts this was challenged by the British Government. Meetings between the two agents and a representative of the Colonial Ofce took place on 8 and 20 March 1922 in an attempt to resolve the question, but to no avail.29 On 19 April the British agent led an application with the Tribunal on this point. By Order of 26 April the Tribunal indicated that it would hear the parties on this issue, and required the respondent to le a memorial in support of its conclusions. That memorial was led on 6 May, and was followed by an answer led on 18 May. A hearing took place on 26 May, 30 and on 29 May the Tribunal handed down its Preliminary Decision. On the question of its jurisdiction to do this, the Tribunal was of opinion that it should defer to the unanimous decision of the parties and make this question the object of a preliminary decision. It also observed that the two Governments had decided to apply as between themselves the stipulations of article 311 of the Treaty of Svres, notwithstanding that the treaty had not yet been ratied. It is evident that the rights of others who may ultimately be interested are reserved. As to the substance of this preliminary question, in that Preliminary Decision the Tribunal made an important interpretation of article 311 of the Treaty of Svres and of the diplomatic correspondence that had passed between the two Governments. It said:
The Tribunal considers that the text of article 311 of the Treaty of Svres leaves it open to the Tribunal to decide freely what are the material elements which should be taken into consideration on the basis of the maintenance of the contract adapted. The Tribunal is not therefore bound by the opinions which may have been expressed in the negotiations prior to the agreement. Even if the method of procedure envisaged by the British Government in its letter of 22nd September 1920 [Appendix II, No. 1] had been accepted by the French Government which does not appear to be the case judging by the note dated 20th July 1921 [Appendix II, No. 4] the Tribunal can only adhere to the conditions of article 311 of the Treaty of Svres which, as a result of the agreement arrived at, is to form the basis of its decision. In accordance with these conditions, account must be taken of the situation in which the Company would have found itself if the British Government had not decided to exercise the option provided for in article 311. On this point there appears to be no doubt that, being obliged by [quoted articles of the concession arrangements] to hand over to the Turkish Government, without payment, at the termination of the concession, the railway line with its xed properties [as dened in the Cahier des Charges],

29 30

Notes of these two meetings are on PRO le TS 27/143. There is a summary record of the sitting of the Tribunal on 26 May 1922 in PRO le TS 27/144. No similar record has been found of the later sittings in this case. The view has been expressed, by some of those with whom the author has been in correspondence in connection with this article, that at that period it is unlikely that a formal record of a hearing would normally have been made.

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the Company would only have been entitled to the prots which could be earned by the operation of the line for the duration of the concession. If its prots had not been sufciently high to cover the present value (reproduction cost) of the line with its xed properties, the Company would not have had any right to be refunded the difference. The Tribunal further considers that the amount of the said prots does not depend on the above value. Consequently, this value cannot, in the opinion of the Tribunal, enter into account in the determination of the compensation to be awarded to the Claimants.

That nding effectively determined in favour of the British Government one of the principal legal issues arising out of the Companys claims. The Tribunal accordingly made a formal nding that the present value reproduction cost of the railway line with those xed properties which according to the concession arrangements were to be handed over to the Turkish Government on the termination of the period of the concession shall not be taken into account for the determination of the compensation to be paid by the British Government to the Company.31 The Company was to present an amended claim by 21 June, and the British Government was given to 12 July for its answer. In its amended claim, the Company claimed a total of E1,696,452 [1,739,951] under various heads together with interest at the rate of ve per cent per annum. The claim included the sum of E97,414 in respect of Turkish occupation and of loss and damage during that occupation, and E261,010 in respect of the British military occupation and loss and damage during that occupation. The British reply was led after an agreed extension, on 22 July. After disputing the statements and calculations of the claimants, the British agent expressed willingness to accept by way of equitable compromise the gure of 12,950,000 francs [223,276] as representing the approximate value of the concession. From that there would be deducted the advance of 5,600,000 francs paid on account during the diplomatic phase; and the cost of repairing the damage caused by the Turks, it being for the claimants to recover compensation for that damage from the Turks. By way of compromise, the amount to be deducted on this account was placed at 5,000,000 francs. The Companys rejoinder was led on 10 August. The Company generally maintained its claims and allegations in so far as they had been contested. There was no further British written pleading. Hearings were held for ve days between 26 and 30 September 1922. During those hearings the claimants called several witnesses. They were ex-

31

Schwebel points out that this case is of high interest because of the holding that the basis of compensation due to a concessionaire for premature termination of contractual rights due to a concessionaire is lost prots, and that, where the concession contains a provision that xed properties shall be transferred free of charge to the Government at the expiration of the concession term, compensation payable to the concessionaire shall not take account of the physical value of the xed assets. Loc. cit. in n. 2 above at 230/487.

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amined and cross-examined by the British agent an early, and perhaps the rst, instance of British cross-examination in international judicial proceedings, and it is a matter for regret that no record of these sittings is available. At this stage the parties agreed to ask the Tribunal to settle the whole of the compensation payable by the British Government to the Company, even if article 311 of the Treaty of Svres did not confer jurisdiction on the Tribunal. This is an early example of the extension of the jurisdiction of an arbitral tribunal through the doctrine of the forum prorogatum.32 After these hearings and while the Tribunal was deliberating, however, the parties reached agreement on the nal settlement. At the sitting of 3 October, their representatives announced the terms of a complete settlement of all the matters in dispute between them. They submitted to the Tribunal the text of the award which by consent they requested the Tribunal to make. That the Tribunal proceeded to do. It formally awarded to the Company a total sum of 565,000 sterling. That was the compensation for the buying out of the concession and in satisfaction of all claims of the Company against the British Government or by the British Government against the Company. The amount paid on account was calculated as the equivalent of 103,368, leaving a balance due of 461,632. Of this, 200,000 was to be paid on or before 22 October 1922, and the remainder was to be paid in three annual installments of 87,210, commencing on 1 October 1923, with interest de die in diem at the rate of 5 per centum per annum payable halfyearly, the rst payment of interest to be made on 1 April 1923. The right to any claim for compensation against the Turkish Government passed to the British Government. The Company was to execute any documents that might be necessary to effect that transfer and was to give all assistance that may be reasonably required by the British Government for the prosecution of its claim. The British Government was to indemnify the Company against all expenses necessarily incurred by it in that respect. There was no question as to costs. The parties agreed that the costs of the Tribunal should be shared equally, and that each party should pay its own costs. IV. Loss of Prots The Future of Palestine In the Amended General Statement of Claim led following the Preliminary Decision, the Company included the sum of E816,388 [837,321] for loss of prots which could have been derived from trafc calculated on normal

32

In its Award the Tribunal stated that in view of the consent award the parties had requested it to make, the Tribunal does not consider it necessary to dwell upon the question of the limits of the jurisdiction conferred by article 311 of the Treaty of Svres.

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pre-war rate increase, plus a further E289,321 [296,740] loss of prots which would have been derived from the additional increase in trafc due to more favourable conditions, in all a total of E1,105,709 [1,134,061]. In its justication for this claim, the Company argued that direct railway communication had been established with El Kantara and so with the Egyptian railway system, bringing Cairo and Port Said within about 18 hours of Jerusalem. Direct connection had also been made between Jaffa, Jerusalem and Haifa, giving an all rail route to Deraa, Damascus and the Hedjaz line. The Company had no actual gures of the trafc carried after 1 October 1922, but there is every reason to anticipate that with the increasing prosperity of the country under stable British government, the trafcs estimated previously have been maintained and improved . . . It is reasonable to expect that as development of the country progresses, population increases and new enterprises are introduced, this will be a constantly increasing percentage.33 This provoked a strong response. The British Government contended that if that prosperity comes to pass, it would be one of the new conditions which must be taken into account in adapting the concession contracts. The relevant passages from the Reply deserve lengthy quotation:
If the development of Palestine is to result in certain economic conditions which in themselves conduce to the making of larger prots by the Claimants in the operation of their undertaking, this factor must be set off against the other and unfavourable economic factors upon which a claim for a modication of the fares and rates laid down in the Cahier des Charges may be supported. . . . [T]he Respondents will show that even assuming that Palestine as a whole may be considerably more intensively developed than it was before the war, there is no reason to suppose that this development will have any great effect upon the fortunes of the Jaffa-Jerusalem Railway. Palestine is on the whole a poor country, possessing no proved resources of fuel or minerals. None of the essential raw materials for the establishment of great industries are to be found; therefore, even if power can be generated there is no likelihood of its being used by industrial enterprises on a big scale. A considerable part of the country, and especially the country around Jerusalem, is and must remain of low productivity. The trafc on the line in question must remain that of import into Jerusalem of the commodities necessary to meet the needs of the inhabitants. The City and its neighbourhood are not rich and the population is unlikely to increase with any marked rapidity either in numbers or in wealth. Consequently there is no reason to suppose that the present consumption of commodities will increase to any great extent. Nor, so far as can be foreseen will Jerusalem become an industrial centre from which any large volume of trafc will ow Westward. Neither is the port

33

Amended General Statement of Claim on behalf of the Railway Company, at 21. PRO le TS 27/144. See note 5 above.

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of Jaffa likely to develop to any considerable extent. The true port of Palestine is undoubtedly Haifa not Jaffa. The geographical situation of Haifa in relation to the routes along which trade may be expected to ow and the natural features of the place make it quite certain that it must be preferred to Jaffa as a port. And it is abundantly clear that Palestine will not, at any rate within the life of the Claimants concession, require more than one port. In as far as the products of the Plain of Sharon, through which the Claimants line runs, may be exported by rail they will reach the railway at Ludd [Lydda, Lod] and thence be taken either to Haifa or Egypt without passing over the Claimants line. Oranges, and other products of the country, if exported from Jaffa, are brought in on camels.

The Reply pointed out that the very important orange growing area of Palestine at Petach Tikva was by then connected with the main line between Ludd and Haifa at Ras el Ain [Rosh ha Ayin]. None of the oranges grown in this area would therefore reach the Jaffa-Ludd line. The Reply continued:
It will be shown that such development as may be expected to take place in Palestine will probably be mainly in the north and will not affect the earnings of the Jaffa-Jerusalem Railway. Water for irrigation on a large scale, and rapidly owing streams capable of providing power for the production of electrical energy can only be found in the north. Southern Palestine as a whole, except for the Plain of Sharon, is not capable of any great development either agriculturally or industrially. Possibly the most hopeful outlook is in the country between Gaza and Beersheba, where the production of barley might be increased, but any development in this region would not assist the JaffaJerusalem Railway, a[s] such barley as may be exported by rail would be taken directly to Port Said or Haifa for shipment without touching the Claimants line.

At that point the Reply explained that at the time of writing Palestines productive capacity was less than it had been immediately before the war, and that it would require some years before economic conditions as favourable as those existing in 1914 would prevail. In any case, such development as may take place would proceed slowly and gradually and no abnormally rapid progress could be expected in the immediate future.
It is admitted that the Jaffa-Jerusalem Railway may be expected to benet to some extent owing to tourists coming to Jerusalem from Egypt. It will, however, be some years before there is likely to be any great increase in the number of tourists and the competition of motor cars will prevent tourists from becoming a source of much prot to the railway. If the Claimants were operating a narrow gauge railway which necessitated transshipment at Ludd the bulk of the tourists might be expected to continue their journey by motor car rather than by rail. On the other hand, it will be shown that a substantial proportion of the pre-war passenger trafc passenger receipts of the railway line was due to pilgrims coming from Russia. This source of revenue is closed indenitely.

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The Reply then argued that the possible extensions to the new port to be constructed at Jaffa, and to the Dead Sea, would be of no value. The extension to the Dead Sea would be prohibitively expensive, and a railway could never compete with the existing means of transport having regard to the amount of trafc that might be expected. There was no intention to link Jerusalem to the Hedjaz Railway via the Dead Sea. The existing means of transport were sufcient to carry such trafc as existed or was likely to exist, and the route via Jerusalem could never compete with existing routes for the export of the products of Moab.34 This is probably one of the earliest ofcial statements of the British Government (Colonial Ofce) on how it saw the future development of Palestine. Judging by the agreed award, the claimants found these contentions persuasive. * * * Had Youssouf Navon Effendi not transferred the concession to a French company, the concession would have remained Turkish property and would not have been treated as Allied property after the First World War. These interesting proceedings would not then have taken place.

34

Reply, paras. 1719. PRO le TS 27/144. See note 5 above.

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17 APPENDIX I

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THE AWARD

By agreement between the British and French Governments, an Arbitration Tribunal has been constituted in order to determine the equitable compensation which should be paid by the British Government to the Socit du Chemin de Fer Ottoman de Jaffa Jrusalem et Prolongements , under the terms of Article 311 of the Treaty of Peace with Turkey, signed at Svres on the 10th August 1920, the British Government having, on the 22nd September 1920, given notice of their intention to buy out the concession belonging to the above Company. Although the above Treaty has not yet been ratied, the Governments agreed that the above article should be applied in the present case. The following documents relating to the above claim were communicated to the Tribunal: 1. A letter from the British Foreign Ofce to the French London, dated 21st December 1921. 2. A note from the French Ambassador in London to the Ofce, dated 10th January 1922. 3. A letter from the British Foreign Ofce to the French London, dated 13th February 1922. 4. A note from the French Ambassador in London to the Ofce, dated 27th February 1922. Ambassador in British Foreign Ambassador in British Foreign

The Tribunal is composed of the undersigned: Lieutenant Colonel H. Osborne MANCE, C.B., C.M.G., D.S.O., arbitrator nominated by the British Government; Chief Engineer Ferdinand MEYER, arbitrator nominated by the French Government; and the President of the Superior Court of Trondhjem (Norway), Deputy Judge of the Permanent Court of International Justice, Member of the Permanent Court of Arbitration, F.V.N. BEICHMANN, arbitrator chosen by the two other arbitrators with the consent of their respective Governments, the last named acting as Chairman of the Tribunal. Rules of procedure were established by the Tribunal on the 3rd March 1922, after hearing the representatives of the parties on this point. The Agents appointed by the parties are: Mr. Orme B. CLARKE, C.B.E., for the British Government, and Colonel A.J. BARRY, C.B.E., for the Socit du Chemin de Fer Ottoman de Jaffa A Jrusalem et Prolongements.

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SENTENCE

Les Gouvrnements Britannique et Franais se sont mis daccord pour constituer un Tribunal Arbitral en vue de dterminer la compensation quitable qui, aux termes de larticle 311 du Trait de paix avec la Turquie, sign Svres le 10 aot 1920, serait due par le Gouvernement Britannique la Socit du Chemin de Fer Ottoman de Jaffa Jrusalem et Prolongements, le Gouvernement Britannique ayant, le 22 septembre 1920, fait savoir son intention de racheter la concession dont bncie ladite Socit. Bien que le Trait susdit nait pas encore t rati, les Gouvernements ont convenu que ledit article serait nanmoins appliqu au litige dont il sagit. Sur laccord en question, les documents suivants ont t communiqus au Tribunal : 1 Lettre du Foreign Ofce Britannique lAmbassadeur de dres, en date du 21 dcembre 1921. 2 Note de lAmbassadeur de France Londres au Foreign nique, en date du 10 janvier 1922. 3 Lettre du Foreign Ofce Britannique lAmbassadeur de dres, en date du 13 fvrier 1922. 4 Note de lAmbassadeur de France Londres au Foreign nique, en date du 27 fvrier 1922. France LonOfce BritanFrance LonOfce Britan-

Le Tribunal est compos des soussigns : Le Lieutenant-Colonel H. Osborne MANCE, C.B., C.M.G., D.S.O., arbitre nomm par le Gouvernement Britannique, lIngnieur en Chef des Ponts-et-Chausses Ferdinand MEYER, arbitre nomm par le Gouvernement Franais, et le Prsident de la Cour dAppel de Trondhjem (Norvge), Juge supplant la Cour Permanente de Justice Internationale et Membre de la Cour Permanente dArbitrage, F.V.N. BEICHMANN, arbitre choisi par les deux autres arbitres avec lassentiment des Gouvernements respectifs, ce dernier faisant fonctions de Prsident du Tribunal. Un rglement de procdure a t x par le Tribunal, le 3 mars 1922, aprs avoir entendu ce sujet les reprsentants des parties. Les parties ont dsign pour tre leurs Agents auprs du Tribunal : Le Gouvernement Britannique, M. Orme B. CLARKE, C.B.E., et la Socit du Chemin de Fer Ottoman de Jaffa Jrusalem et Prolongements, M. le Colonel A. J. BARRY, C.B.E.

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The Railway Company as claimants formulated their claim in a statement submitted on the 3rd March 1922, accompanied by several annexes, including: 1. Translation of a Convention dated 29th October 1889 establishing the concession, of a Cahier des Charges of the same date, and of a Supplementary Convention dated 4th August 1914. 2. Several tables, including two diagrams. A jacket entitled Privation de jouissance et questions diverses , and the Annual Reports submitted to the General Meetings of the Company in the years 1894 to 1914 were also submitted on the same date. At the request of the British Agent further information was given on the 8th April and the 7th, 9th and 12th May 1922. The claimants having in their statement demanded among other items payment for the physical value of the railway, calculated at the present cost of constructing and equipping the line, the British Agent, who disputed the taking into account of this value by the Tribunal, applied for a preliminary decision on this point, with the consent of the Agent of the claimants. In giving effect to this application, the Tribunal, after having received from the parties a written and an oral explanation of their respective views on this question, gave on the 29 th May the annexed decision, by which it was provided: 1. That the present value reproduction cost of the Jaffa-Jerusalem Railway line with these xed properties which, according to article 20 of the Cahier des Charges were to be handed over without payment to the Turkish Government on the termination of the period of the concession, shall not enter into account for the determination of the compensation to be paid by the British Government to the Socit du Chemin de Fer Ottoman de Jaffa Jrusalem et Prolongements. 2. That the said Company may present an amended claim not later than the 21st June next and that the answer of the British Government must be presented at the latest by the 12th July following. Five copies of the amended claim and of the answer shall be addressed to the ofce of the Tribunal and six copies to the agent of the adverse party. In conformity with this decision, the Agent of the claimants submitted a new statement on the 21st June following, formulating the amended claim of the Company, and accompanied by several annexes including translations of the conventions and of the Cahier des Charges referred to above and certain tables. In this statement the claim of the Company was summarised as follows:

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