SHORTER ARTICLES, COMMENTS AND NOTES

RESPECTING SOVEREIGN STATES AND RUNNNG A TIGHT

COURTROOM*

I. THE CHANGING ENVIRONMENT IN WHICH THE INTERNATIONAL COURT

OPERATES

THERE was a time when international law was perceived as consisting of a

manageable corpus of rules over a finite, ascertainable subject matter, relevant to
the relations of States with each other.
Today the corpus of norms is vast, the subject matter apparently expanding
indefinitely. Further, this ever expanding subject matter, which is being regulated
across national boundaries, concerns not only States but other actors too. The
component elements of these phenomena go hand in hand. The more our world is
globalised, the less the State retains its monopoly as an international actor and the
more systems of dispute settlement we are likely to find.
The International Court settles disputes between States. Cases cannot be
brought by individuals and indeed, neither they nor non-governmental organis-
ations have any standing to intervene in inter-State litigation by amicus briefs.
That is how it is today. And, so far as the classic issues that engage States in their
relations with each other—territory, boundaries, treaties, etc.—that fact probably
does not matter too much.
But the effects of globalisation have encouraged the realisation that at least in
certain other areas of international law, actors other than States are entitled to
have access to the legal procedures, and indeed, assisted by the revolution in
information technology, they have themselves become important players in the
international system. From the operational point of view, we are seeing an erosion
of national boundaries. Globalisation has not meant the end of the State, as was so
facilely prophesied.1 Rather, as Anne-Marie Slaughter has aptly put it, we are
instead witnessing a disaggregation of the State, with many of its traditional
functions being performed by private parties, based on transnational networks.2
This phenomenon has many implications. One is that international law is now
increasingly being invoked by corporations and human rights activists in their
own courts and in foreign courts.
Another is that the breakdown of the old structures has led inexorably to a
multiplication of international legal institutions. From 1922 to 1960 the Inter-
national Court of Justice at The Hague stood alone as the forum for the resolution
of international disputes. Now there are a plethora of well developed judicial
institutions operating under the great human rights treaties of the UN, as well as

* This article is an updated version of lectures given recently at Yale Law School (Sherrill
Lecture) and at Pembroke College, Oxford University (Blackstone Lecture).
1. Fukuyama, “The End of History”, The National Interest (1989), No. 16, pp.3–18.
2. A.M. Slaughter, “The Real New World Order”, Foreign Affairs (Sept.–Oct. 1997).

121
122 International and Comparative Law Quarterly [VOL. 50
under the regional treaties. There is also the new Hamburg Law of the Sea
Tribunal, which is open, in certain types of disputes, to individuals, corporations,
State enterprises and international organisations.
If the human rights courts and the Law of the Sea Tribunal predate
globalisation, their accessibility to non-State parties is consonant with it. More
recently, the Inspection Panels established by the World Bank and other
multilateral development banks encourage both recourse to a highly specialised
group of decision makers and access, by individuals or groups, in cases involving
States or international organisations.
There is the new World Trade Organization (WTO) dispute settlement system.
Panel decisions are binding3, and an Appellate Body receives appeals on points of
law from the panels.
And there are the new international criminal courts. The International
Criminal Tribunals for the Former Yugoslavia and for Rwanda have been set up
by the Security Council to bring to justice those individuals who have violated the
laws of war and humanitarian law in those countries. The establishment of other
ad hoc tribunals is considered from time to time. And before too long there may
come into being a standing, permanent International Criminal Court.
We thus today have a certain decentralisation of some of the topics with which
the ICJ can in principle deal to new, highly specialised bodies, whose members are
experts in a subject matter which becomes ever more complex, which are more
open to non-State actors, and which can respond rapidly. I think this is an
inevitable consequence of the busy and complex world in which we live and is not
a cause of regret. I do not agree with the call of successive Presidents, made at the
UN General Assembly, for the ICJ to provide advisory opinions to other tribunals
on points of international law. This seeks to re-establish the old order of things
and ignores the very reasons that have occasioned the new decentralisation.

II. HOW SHOULD THE COURT RESPOND?

HOW should the International Court respond to these consequences of the new
international system, and particularly of globalisation? Not, I think, by seeking to
become all things to all men, or by following every current fashion. Seeking to
send out the “right signals”, the Court in 1993 set up a specialised Environmental
Chamber. (It could just as well have set up specialised Chambers in Human
Rights, or in international trade. Happily it did not.) Not surprisingly, no case has
yet been brought to this Chamber, because environmental law is not really a “self
contained” topic. While it is a subject area of growing international concern, it is
still part and parcel of international law generally. And, as both the Gabčíkovo-
Nagymaros Project (Hungary/Slovakia)4 and the Spain-Canada Fisheries5 cases
have shown, what one party terms an overriding environmental issue, another
sees as rather relating to treaty obligations, or the law of State responsibility, or
the law of the sea. In reality, all these issues are usually at play and what weight the

3. Unless the WTO members by consensus agree otherwise.

4. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997,
p.7.
5. Fisheries Jurisdiction (Spain v. Canada), Judgment, I.C.J. Reports 1998.
JANUARY 2001] Running a Tight Courtroom 123

decision maker will give to each, in the particular context, is exactly what has to be
determined.
Nor is it within the Court’s ability to make itself available to non-State parties.
While it can change its own rules of procedure, it cannot change its Statute, which
is a component part of the UN Charter. There is some flexibility, I think, for
possible amicus briefs by NGOs in advisory opinion cases, and I think that a useful
possibility for the Court to explore.
Decentralisation and specialisation are the characteristics of our age, and there
is little to be gained, and much harm to be done, either by resisting these facts or
by ill-conceived imitation.
The International Court, while de facto shedding some of the more specialised
subject matter over which it has competence in principle, nonetheless retains a
central importance. It is the body where the great legal-political issues of the day
between States are litigated. These issues—title to territory, treaty matters, issues
relating to the use of force, everything to do with the UN—are critical in their
implications. They also necessarily take a certain time to handle. The Court
remains the primary judicial organ of the United Nations and the only court which
can give advisory opinions to the UN and its specialised agencies, and the only
court which can deal with the interface of the various fields of international law.
Further, it is striking that even as new judicial bodies spring up, the Court is busier
than at any time in its history, with cases of great weight and importance from
every corner of the world. Even as this judicial decentralisation occurs, the
Court’s docket gets larger and larger.
The important task for the Court is not to reinvent itself—even were it able
to—in the image of more recent tribunals, but rather to ensure that it can respond
as efficaciously as possible to its clientele—sovereign States and international
organisations—who seem to find ever more work for it to do.

What we have done regarding our work methods

To achieve a more rapid response time to its heavy docket of cases, the Court has
made some significant changes to its long standing work methods. Since the
inception of its predecessor, the Permanent Court of International Justice, the
practice has been this: immediately after the conclusion of the oral hearings, the
Court meets to settle a list of issues that must be addressed. The Judges then each
prepare a “Note”, within a stipulated period of time. How long it takes to spell out
the steps of reasoning—even if the reference to legal authority is light in
form—will depend on the issue.
The Notes are then translated (into either English or French) and read by all of
the Judges, only after which the collegial deliberation process begins.
Eighteen months ago the Court decided that it would no longer usually resort to
the judicial Note in cases on preliminary objections to jurisdiction. These form a
significant proportion of the Court’s work. After the end of oral proceedings, the
Court now passes—after a short period for individual reflection—to an oral
deliberation. The savings in time (some seven weeks or so in each case, and in
translation resources) is significant. The Court has also issued a Note for parties to
124 International and Comparative Law Quarterly [VOL. 50

a case (Annex to Press Communiqué 98/14) in which it proposes to parties that

they should follow various procedures, which will also expedite matters.
In 1997 the Court established its website. The website seems to be very well
regarded and greatly used. The website is to be found at http://www.icj-cij.org It
provides very much more than just the judgments and opinions. It has been an
important point of principle for us that the moment the oral arguments open, the
voluminous written pleadings in a case become available on the website, in their
entirety. Since our website was established we required pleadings to be provided
in diskette form, with technical characteristics that will facilitate immediate
placing on our website. The same is true of the texts of the oral proceedings.
Anyone can now follow, day by day, the arguments in Court in a particular case, as
these are posted on the website on a daily basis. And the judgment is available on
the website from the moment that the Deputy-Registrar passes to the Agent the
paragraphs of the dispositif—that is to say, as the President is concluding the
reading of a judgment in open court. During this short period some 800,000 copies
of Judgments, Opinions and Orders have been taken down from the website.
Today, some 18,000 documents are being downloaded daily. These are, of course,
a free resource available to all counsel, teachers and embassies.
The Court, then, has done a great deal to facilitate a faster throughput of the
cases on its docket. It has published the details of its efforts on its website. Its
determination to cut through the backlog, and not to allow it to accrue again, has
undoubtedly contributed—along with other factors—to its ever expanding
docket. But as the docket is ever expanding, the commitment to efficiency must be
a continuing one.
The general sentiment in the Court has been to suggest that it is now for the
litigant States to make their contribution.
But mere wishfulness cannot achieve this result. The Court’s point of departure
is that it is dealing with sovereign States. Things can be requested of them but not
demanded of them. How best then to make them aware of how helpful it would be
to share any translating with the Registry of the Court; or of the Court’s desire for
less prolix annexes? The Court has made these observations in a series of Notes
for Parties, which are delivered by the Registrar to the litigating parties at the
outset of a case and of which possible litigants generally are made aware through
their placing on the Court’s website.
My own point of departure is somewhat different.
I think it is time to move away, in a variety of circumstances that I will explore,
from undue deference to the litigants by virtue of their rank as sovereign States.
The Court will only have proper control over its own procedure if it changes the
legal culture that underlies its dealings with its clients. And only then will it be able
to guarantee the results that it seeks. A useful start would be for the Court to
introduce periodic Practice Directions. Not only would these be tidier than Notes
to Parties, but their status would be clearer. A Practice Direction indicates
something the Court requires to be done, not requests to be done.

Control over Pleadings

There are several different facets to this issue, and I take them each in turn.
JANUARY 2001] Running a Tight Courtroom 125
First, the written pleadings:
Article 43 of the Statute provides that the written proceedings shall consist of
memorials, counter-memorials “and, if necessary, replies”. These are to be
provided “within the time fixed by the Court”. The Rules of Court (Article 45 (2))
provides that there may be not only a Reply but also a Rejoinder “if the parties are
so agreed, or if the Court decides, proprio motu or at the request of one of the
parties, that these pleadings are necessary”.
It is clear from the Rules that the Memorial and Counter Memorial are
entitlements; and there may be a Reply and a Rejoinder, by right if the parties
agree, or otherwise at the Court’s discretion or proprio motu.
Once a third round is allowed by the Court, then the fourth round, the
Rejoinder, in a sense follows automatically, because otherwise there will not be a
parity of pleading rounds between the Applicant and the Respondent. The Court
will usually exercise its discretion in favour of a fourth round if it has allowed a
third round or if a third round has been agreed by the parties.
Reading these pleadings, my sense overall is that the third and fourth rounds
are usually, to use two clichés, but apposite clichés nonetheless, arguments that
are gilding the lily on the one hand and make-weights on the other. I do believe
that virtually everything in them could be—and really should be—dealt with in
oral argument. Instead, we allow these extra rounds and then complain that in the
oral arguments that follow later we are hearing nothing that we did not already
know. I would like the Court to make these further pleadings, beyond the
Memorial and Counter Memorial, the exception rather than the norm. That
would contribute greatly to dealing faster with cases, from beginning to end, than
is presently the case. But for the moment the thinking is that if sovereign States
wish to put further arguments to us, it is difficult to refuse their request.
It is not a perspective I share. Indeed, the Court has already developed a
tougher practice when the case before it concerns its jurisdiction, rather than the
merits of a case. Where the Court’s jurisdiction has been challenged by a
respondent, or when it contends that the applicant’s claims are inadmissible, and
there is to be an interlocutory hearing, the Court very rarely allows more than one
round each. It has recently rejected requests for one or more such additional
rounds in the recent cases of Spain/Canada6 and Pakistan/India7.
Of course, it will be said that, as the issues are usually not so complex in a
jurisdictional case as in a case on the merits, there is rarely real need for these
extra rounds. Indeed so. But this precisely shows that the matter is properly one of
judicial appreciation of need and not of deference to State sovereignty.
There are two special factors that I can conveniently mention at this juncture.
The first is that any flexibility the Court might have over curtailing the rounds of
written argument, if it were so inclined, is being undercut by a recent but worrying
practice. I refer to a practice in certain recent cases—of which the Gabčíkovo-
Nagymaros Project litigation8 between Hungary and Slovakia was a prime
example—to attach huge technical reports as appendices not to the initial round
of pleading, but to a later round of pleadings. Not only does that, understandably,

6. Op. cit. supra, n.5.

7. Aerial Incident of 10 August 1999 (Pakistan v. India), Judgment of 21 June 2000.
8. Op. cit. supra, n.4.
126 International and Comparative Law Quarterly [VOL. 50
lead the other side to say it would have fashioned its own initial pleadings
differently had it been aware of the report concerned; it often leads to a request
for delays in the writing of any further round (as wholly new material is being dealt
with), and often to the attachment of yet another vast technical report in response
to the Rejoinder. You will readily see that this in turn leads to the State that has
submitted the first technical report late in proceedings to say that it now needs
special authorisation to submit yet more new documents “out of time”.
I think that it would be desirable for our Rules to be amended to specify that all
major documentation should be annexed to the first round of pleadings, with only
limited and essential documentation to accompany any subsequent rounds of
written pleading or documentation that could not have been ascertained or
prepared earlier. Pending such rule revision, the Court should issue a Practice
Direction as to what it expects in this regard.
The second special factor I want to mention is the particular way in which the
problem presents itself in Special Agreement cases. Because these cases are
brought by the agreement of the parties, on the basis of a Compromis—that is to
say, an agreement as to the legal questions to be asked of the Court—there is
technically no applicant and no respondent. Accordingly, the written pleadings
are put in simultaneously—each side, on the same date, submits a Memorial; each
side, on the same date, submits a Counter Memorial. In the experience of the
Court, this has invariably made it essential to allow two extra rounds, because the
first round is often air punching, with each side making assumptions about the
legal position of the other, which then turns out to be wide of the mark. This was
graphically illustrated in the Chad/Libya case,9 a Special Agreement case. Chad,
basing itself on the diplomatic history of the dispute, directed its Memorial to the
issue of whether the border between itself and Libya ran north or south of the
contested Aouzou Strip. But Libya, in its Memorial, to general surprise, claimed
fully half of Chad as Libyan territory. The issues were not properly joined until
late in the cycle of written pleadings.
The Court has addressed this particular problem as a component part of its
review of work methods. In the Note to Parties, it asks (but stops short of ordering)
parties to Special Agreement cases to submit sequential rather than simultaneous
written pleadings. They are to agree between themselves as to who should “go
first”, with no implications that the other party thereby becomes a “defendant”.
As the Court points out, they have to do that anyway when it comes to the oral
pleadings, as both sides can’t speak simultaneously to us in a babel of oral
argument.
There is a second aspect to the control over written pleadings: this concerns the
time limits given for the submission of those pleadings. Article 43 of the Statute
makes it clear that it is for the Court to determine the time by which the pleadings
are to reach the Court. At the moment that these limits are fixed, the parties know
better than the Court the dimensions of the case and what the legal arguments are
likely to consist of. They are thus well placed to insist that they need nine or 10
months to prepare a Memorial, or Counter Memorial. Moreover, the Court

9. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994,

p.6.
JANUARY 2001] Running a Tight Courtroom 127
knows full well that whereas a private client will often delegate considerable
responsibility to its counsel in the formulation of argument, legal argument
advanced on behalf of a State requires prior agreement between a myriad of
governmental departments before the hapless counsel can begin to draft. And
then his draft submissions will have to be crawled over by each and every one of
the departments concerned and probably even be cleared by ministers. This all
takes time and one has to be reasonable about preparation times.
But the objective assessment of these realities is also coloured by the culture of
deference to State sovereignty. By this I mean that part of what goes into deciding
if a requested time limit is reasonable is the status of the party as a sovereign State.
This, at least, is changing. Three phases can be discerned in the practice of the
Court—first, a tendency to accede to all requests, out of deference to State
sovereignty; second, realising that this was contributing to the inordinate length of
cases, an attempt at amelioration by “splitting the difference” between what State
A asked for to prepare its pleadings, and what State B said State A should be
allowed. The third, current practice, is to take a somewhat tougher line, and
decide time limits to be set on the basis of what seems reasonable in all the
circumstances.

I now turn to the question of oral pleadings:

When one compares the oral phase of the proceedings in a case with the passage
through its various phases of the case overall, it will readily be seen that the oral
phase is but a small element. I am speaking, of course, of the time taken to dispose
of a case from beginning to end, not of the importance of the oral phase in
developing an argument and persuading the Bench. There is really no such thing
as “an average case” at the ICJ. But, very often, the oral phase of cases where the
merits have been reached will be between three and five weeks. The pending
Genocide cases, between Bosnia and Yugoslavia,10 with its counterclaims, and
Croatia and Yugoslavia,11 have the potential for being longer because of the need
for examination of witness evidence. Provisional measures hearings—inter-
national injunctions—such as those in the 10 cases brought by Yugoslavia against
certain NATO countries,12 or the capital punishment cases brought by Paraguay
against the United States,13 or by Germany against the United States,14 take no
more than a day, or a couple of days.
There is, particularly among those judges of the International Court from civil
law countries, a feeling that oral pleadings take longer than is needed and are in

10. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia).
11. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Yugoslavia).
12. Legality of Use of Force (Yugoslavia v. Belgium), Legality of Use of Force (Yugoslavia
v. Canada), Legality of Use of Force (Yugoslavia v. France), Legality of Use of Force
(Yugoslavia v. Germany), Legality of Use of Force (Yugoslavia v. Italy), Legality of Use of
Force (Yugoslavia v. Netherlands), Legality of Use of Force (Yugoslavia v. Portugal),
Legality of Use of Force (Yugoslavia v. United Kingdom).
13. Vienna Convention on Consular Relations (Paraguay v. USA), I.C.J. Reports 1998,
p.248.
14. LaGrand (Germany v. United States of America), Order of 5 March 1999.
128 International and Comparative Law Quarterly [VOL. 50
large measure repetitive of what is already clear from the written submissions.
But, as that feeling is also accompanied by the view that it is hard to deny to
sovereign States their demand to deploy in full all their arguments, the net result is
merely to express dissatisfaction within the walls of the Court. The judges coming
from common law countries have tended to have a different view. They often find
oral argument particularly illuminating (notwithstanding that the Court, with a
Bench of 15, cannot engage in the insistent questioning of counsel in the way of
the English courts). They also point out that as the oral phase is but a single part of
the whole, rather little would be gained in terms of saving time by insisting that
counsel are briefer.
I was initially part of the latter group of thinking: but in my five years at the
Court, I have come to think that further controls should be exercised over the oral
phase. It is not a question of whether the time expended is crucial. It is rather a
question of running a tight courtroom.
In the Advisory Opinion case on the Legality of the Use of Nuclear Weapons15
the Court was faced with the need to respond promptly (requests for advisory
opinions are always given a certain priority in the Court’s calendar) and with the
necessity of hearing oral argument from 22 States. It announced a rigorous
schedule, in which each State was allowed only two hours in the first round of oral
pleading; and this was accepted without any complaint by the States concerned.
Several of them have informed us that they felt they had ample time to make their
arguments. Again, in the provisional measures (injunction) Kosovo cases,16 it was
obviously convenient to hear the arguments in the 10 cases together, even though
they are not for the moment consolidated. A strict limited time was given to each
of the respondent States, again without complaint.
The Court has begun to apply some of those lessons to single-respondent
contentious cases. Very often, when the Court is making administrative arrange-
ments for an upcoming oral hearing, State A will insist that it needs six weeks
while State B says four will be ample. The temptation has been to schedule five
weeks for hearings. The Court has recently moved away from this. The tendency
now is to assess, in the light of what is already known about the case from the
written pleadings, how long is reasonable and necessary; and to inform the parties
that that is the time that has been allocated. This is in fact not unwelcome to the
States concerned. Not only does it help them focus their arguments more closely,
but they are also coming to realise that they have a choice: either the unrestrained
exercise of sovereignty to demand all possible rounds of written pleadings and the
fullest oral argument, or the achievement of a decision from the Court in a
reasonable time.

Late documents
An area in which I believe the Court needs more firmly to assert its authority with
sovereign States is that relating to the submission of late documents. All
documentation is to be submitted before the end of the written pleadings. Article
56 of the Rules provides that no further documents may be submitted save with

15. I.C.J. Reports 1996, p.66.

16. Op. cit. supra n.12.
JANUARY 2001] Running a Tight Courtroom 129
the consent of the other party or save by decision of the Court when there is no
such consent given.
The Court has to work in English and French. That is a requirement of the
Statute. Every Judge is entitled to work on the written briefs and documents in his
or her first working language of choice. And it is important for States parties, who
are entitled to feel assured that all their arguments are fully understood by all the
Bench, that this is so.
But in recent years the dossier for each case has undoubtedly got larger and
larger. In technical cases, understandably, long and detailed technical reports are
appended (Gabčíkovo-Nagymaros Project17 and Botswana/Namibia18 afford
recent examples). Moreover, there has been a tendency to append every possible
scrap of paper, however marginal to the outcome. The translation costs for the
Court were becoming prodigious and indeed the necessity to translate these
thousands of pages of documentary annexes was beginning to dictate the pace at
which cases could be heard.
It was said informally to the Court, by a very experienced counsel whom we see
often before us, that legal teams, knowing that documents could only be put in
after the closure of written proceedings with the consent of the other side, or if the
Court ruled in favour of such addition, thought it prudent, in the rush of meeting
the deadlines for the pleadings rounds, to throw in everything that might
conceivably be needed. It was suggested that a more flexible attitude to late
documentary additions would let a legal team feel more comfortable with a more
limited bundle of annexes. The Court, as an element in its review of work
methods, let it be known that it wanted more discipline from the parties in the
volume of annexed documents; and that, for its part, it would encourage more
careful and limited selection by itself allowing a more liberal policy on admission
of essential late documents.
It is perhaps too early to see if the experiment has been a success. The fairly
constant requests for late documents to be entered into the record continues. The
hoped-for self restraint by States in what they append in timely fashion is not as
yet discernible. It may turn out to be that this well intentioned gesture by the
Court—which I certainly supported—pulls against what I believe should be the
general thrust of policy, namely a greater control over our procedures, and a
somewhat tougher attitude to sovereign States.
A brief survey may show why I take this view. Certainly there is a clear pattern
of practice that new documents communicated under Article 56 (2) of the Rules
will be admitted if there is no objection from the other party. Many examples
could be cited. I will mention the Burkina Faso/Mali case,19 the ELSI case,20 the

17. Op. cit. supra, n.4.

18. Kasikili/Sedudu Island (Botswana/Namibia), Judgment of 13 Dec. 1999.
19. Frontier Dispute, Judgment, I.C.J. Reports 1986, p.554.
20. Elettronica Sicula S.p.A., Judgment, I.C.J. Reports 1989, p.15.
130 International and Comparative Law Quarterly [VOL. 50
Jan Mayen case,21 the Chad/Libya case,22 the Lockerbie cases23 and the Botswana/
Namibia case.24
Sometimes, of course, when one party objects to documents submitted late by
another, the Court will not agree to their admission. In this connection I could
mention the Land, Island and Maritime Frontier Dispute case.25 And in the East
Timor case26 both parties presented documents after the closure of the written
pleadings. One of those—a Portuguese-Moroccan Treaty—was produced by
Australia during the oral argument, indeed “sprung”, in best TV courtroom
drama style, upon an unsuspecting Portuguese legal team, and legal argument
advanced on it. I am able to attest to this, as I was then one of the discomfited
Portuguese team. Formal objection was made by Portugal to this late introduction
of a document, and the Court, after in camera deliberation, decided not to admit
the document to the record. But the damage was already done; and it was one of
those rare cases where a single document (of which the Portuguese legal team
until that moment was totally unaware) had a very real psychological impact,
regardless of whether it was formally admitted into the record or not.
But the more usual pattern, I think, is to admit, even over the objection of the
other party. To be sure, the Court will accompany such a decision to admit late
documents with the caveat that it is not to be a precedent, or that special
circumstances have led to this decision (see Corfu Channel,27 I.C.J. Yearbook
1962–3, p. 123; Nottebohm28 (ibid., p.125); Genocide (Bosnia v. Yugoslavia)29
I.C.J. Yearbook 1993–4, p.212.)
The Court will usually admit late documents—and then to seek to minimise any
inequalities between the parties caused by such a decision.
Article 56(3) provides that where a late document is admitted, “the other party
shall have an opportunity of commenting upon it and of submitting documents in
support of its comments”. Sometimes, in fact, the practice seems rather to have
been to open the door to yet further documentation, with comments in support. It
is obviously a fine line to draw.
Parties have a tendency to want to say everything in writing. They are reluctant
to leave till the oral phase responses to documentation that they imagine might
have a certain impact. The Court is apt, having allowed a late document upon
what it sees as good reason, then to allow written comments on it (outside of the
regular rounds of written argument) by the objecting party; and then the party
producing the contested documents is given time to put its written comments

21. Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment,
I.C.J. Reports 1993, p.38
22. Op. cit. supra, n.9.
23. Questions of Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Questions of Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America).
24. Op. cit. supra, n.18.
25. Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), I.C.J. Reports
1992, p.351.
26. East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p.90.
27. Corfu Channel, Judgment, I.C.J. Reports 1949, p.4.
28. Nottebohm, Second Phase, Judgment, I.C.J. Reports 1955, p.4.
29. Op. cit. supra, n.10.
JANUARY 2001] Running a Tight Courtroom 131
upon those observations. This was indeed done in the Gabčíkovo-Nagymaros
Project case.30
And essentially the same thing has happened in the Qatar/Bahrain case.31 In
December last year, the Court decided to allow late submission by Qatar, under
Article 56, of certain technical reports (again, because of an expert report put in
by Bahrain only at the Reply stage, i.e. at the stage of the final round of written
pleadings). But, once more, it felt compelled to make allowances in the interest of
equality of the parties. This time both parties were informed that they could
submit late reports by a designated date, an equality of treatment that is perhaps
more apparent than real. Moreover, in the LaGrand case,32 Germany proferred
new documentation literally on the eve of oral hearings in November 2000.
Notwithstanding the protest of the United States, the Court admitted the
document, whilst giving the United States the opportunity to comment on it in
writing after the closure of oral proceedings.
In sum, I believe that this matter is one that requires overall, in the interests of
efficiency and control of our own procedures, a differently weighted practice;
parties have to be told that they do not need to say everything in writing. There
will always be an opportunity to address the Court on matters arising late in the
written phase. But that will only be done when we have a different culture so far as
the exercise of control over sovereign States is concerned.

CONCLUSIONS

NOTWITHSTANDING the very real changes in international society, there remains a

role of major importance for the International Court to play. That role is
necessarily directed to the efficacious handling of cases between States. The
Court has done much in the last four years to modernise and improve its work
methods and to raise its profile in the world. Its hopes and plans are necessarily
circumscribed by certain financial realities obtaining within the UN system, and
States must also play their part in maximising the Court’s potential. But what it
can itself bring about is not yet completed. The next phase of modernisation must
be to alter the culture of excessive deference to State sovereignty in a range of
procedural issues—issues that are at once prosaic but which have critical
implications for the timely dispensing of justice.
One must focus on desired outcomes and one must be transparent in all
decision-making. There is no intangible “value-added” to be built in to decisions,
whether procedural or substantive, by virtue of the fact that they concern
sovereign States.
The deference that is to be paid to the sovereign status of the litigants before the
Court is already reflected in the fact that it is not possible under the Statute to
bring a State to Court without its consent having been given. This is the
regrettable reality at the beginning of the new millennium. Consent to jurisdiction
must be shown ad hoc, or under a relevant treaty, or under the Optional Clause of

30. Op. cit. supra, n.4.

31. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain).
32. LaGrand (Germany v. United States of America).
132 International and Comparative Law Quarterly [VOL. 50

the Statute. And that privileged position (which is not that of private litigants the
world round) is sufficient by way of sovereignty-based deference. Once that
consent has been given—and, if necessary, the Court has determined that it has
been given—States become normal litigants before a court. It is the Court that
thereafter controls the proceedings. In deciding on such things as time limits for
the preparation of written pleadings it will, to be sure, take account of the reality
that the structure of States means that pleadings will take a certain time to
prepare, perhaps somewhat longer than is the case for a private litigant. But
beyond these inherent realities, I see no reason why there should be any further
“value added” to reflect State sovereignty, whether in the number of rounds of
written pleadings to be allowed, the length of oral pleadings to be set, whether late
documents will or will not be tolerated. The Court has in the last five years in a
forthright way modernised its own work procedures; it is to be hoped that it will
now take the same firm grip on another range of issues, which not only also affect
the timetable for speedy resolution of disputes, but impact upon the very integrity
of the normal control by a court of its own procedures.
JUDGE ROSALYN HIGGINS, DBE, QC