30

Remedies in the
International Court ofJustice
Ian Brottmlie

THE TOPIC
The remedies available in the International Court are a subject generally
neglected in the literature of the law.1 The textbooks include a section of
'modes of reparation' but, of course, this is a related but different area
of inquiry. This general neglect is difficult to explain. It cannot be laid at the
door of civil law training because writers with a common law background
show the same trait.
The principal purpose of this chapter in honour of my friend Sir Robert
Jennings2 is to review the forms ofjudicial relief available. Familiar keywords
will be employed in spite of the fact that such keywords may prove to be
question-begging and freighted with unreliable implications. The familiar
headings of declaratory judgments, actions for damages, and restitutio in
integrum will therefore be used.

THE REMEDIAL COMPETENCE OF THE COURT

The competence of the Court to indicate remedies is based on article 36 of
the Statute which indicates 'the jurisdiction of the Court in all legal disputes
concerning: . . . (d) the nature and extent of the reparation to be made for the
breach of an international obligation', in cases of compulsory jurisdiction by
virtue of paragraph 2.3 No doubt the Court was expected to follow the

1
For an exception, see Christine Gray, Judicial Remedies in International Law (Oxford, 1987),
pp. 59-119.
2
In the academic year 1955—6, the writer held a Humanitarian Trust Studentship in Cambridge.
Professor Jennings, the newly elected holder of the Whewell Chair, acted as my supervisor.
During his tenure of the Senior Editorship of the British Year Book, 1974 to 1981, the writer was
co-editor.
3
See further Gray, Judicial Remedies, pp. 59-69.

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practice of courts of arbitration in presuming a power to award damages and,

apart from special agreement cases, the power of the Court to award damages
has gone unquestioned.
In other respects the Court has had to make its own way because the
formulation in article 36 provides no express guidance in respect of
declaratory judgments, specific performance and injunctive relief. It is
precisely in the remedial sphere that the Court has applied general principles
of procedural law. The creative process has been pragmatic, unselfconscious,
and somewhat unreflective. The results have been practically useful but rather
cryptic in terms of formulation. In practice the parties have avoided raising
issues of competence in relation to forms of judicial relief, except in certain
proceedings based on compromissory clauses. When issues of competence
have been the subject of argument, both the Permanent Court and its
successor have tended to take a robust line. Thus the Permanent Court
rejected an argument that a jurisdictional clause referring to 'differences of
opinion resulting from the interpretation and the application of certain treaty
provisions did not include claims for reparation.4

CONNECTED QUESTIONS
The question of remedies extends beyond the topic of the forms of judicial
relief available to include matters that are, practically speaking, cognate. Such
matters include the question of res judicata,5 the limits of the judicial function
in face of a request to the Court to indicate how a judgment should be carried
out,6 and the process by which the Court should determine the object of the
claim.7
The 'incidental proceedings' provided for in the Rules of Court also have
a remedial role. This is particularly true of intervention, where advantages may
be obtained both as a consequence of the grant of permission to intervene,8
and also as a consequence of the pleadings pertaining to a request for
permission to intervene which is refused, when the Court is nonetheless
informed of the form and geographical extent of the requesting state's legal

4
Chorzow Factory (Jurisdiction) case, PCIJ, Series A, N o . 9, p. 21. See further Gray, Judicial Remedies,
pp. 59-64.
5
See Gerald Fitzmaurice, The Law and Procedure of the International Court ofJustice (Cambridge, 1986),
vol. II, pp. 584-6.
6
Ibid., pp. 555-8.
7
Nuclear Tests (Australia v. France), ICJ Reports, 1974, p. 253.
8
Case Concerning the Land, Island and Maritime Dispute (El Salvador/Honduras, Nicaragua intervening), ICJ
Reports, 1992, p. 351.

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 Remedies in the ICJ

interest and acts upon such data during the merits phase.9 It is also true of
interim measures. In formal terms, a request for the indication of interim
measures of protection may appear to have a peripheral and highly contingent
role. In practical terms the requesting state can present cogent documentary
evidence, and especially if the oral proceedings receive substantial media
attention, very useful affirmations of wrongs endured and impending may be
made and a wrongdoer effectively exposed. By the same token requests should
not be raised without careful consideration, and an unsuccessful request may
produce adverse effects.

DECLARATORY JUDGMENTS

This category is in general use and, though convenient, is unreliable. A useful

starting-point is the relevant part of the Court's judgment in the Northern
Cameroons case: 10

Throughout these proceedings the contention of the Republic of Cameroon has

been that all it seeks is a declaratory judgment of the Court that prior to the
termination of the Trusteeship Agreement with respect to the Northern
Cameroons, the United Kingdom had breached the provisions of the Agreement,
and that, if its Application were admissible and the Court had jurisdiction to
proceed to the merits, such a declaratory judgment is not only one the Court could
make but one that it should make.
That the Court may, in an appropriate case, make a declaratory judgment is
indisputable. The Court has, however, already indicated that even if, when seised
of an Application, the Court finds that it has jurisdiction, it is not obliged to
exercise it in all cases. If the Court is satisfied, whatever the nature of the relief
claimed, that to adjudicate on the merits of an Application would be inconsistent
with its judicial function, it should refuse to do so.
Moreover the Court observes that if in a declaratory judgment it expounds a rule
of customary law or interprets a treaty which remains in force, its judgment has a
continuing applicability. But in this case there is a dispute about the interpretation
and application of a treaty — the Trusteeship Agreement — which has now been
terminated, is no longer in force, and there can be no opportunity for a future act
of interpretation or application of that treaty in accordance with any judgment the
Court might render.
In its Interpretation of Judgments Nos. 7 and 8 (the Chorzow Factory) (P.C.I.J., Series
A, No. 13, p. 20), the Court said:

9
Case Concerning the Continental Shelf (Request for Permission to Intervene), ICJ Reports, 1985, p. 25,
para. 41; ICJ Reports, 1985, pp. 24-8, paras. 20-3.
10
ICJ Reports, 1963, pp. 36-7.

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The Court's Judgment No. 7 is in the nature of a declaratory judgment, the

intention of which is to ensure recognition of a situation at law, once and for all
and with binding force as between the Parties; so that the legal position
thus established cannot again be called in question in so far as the legal effects
ensuing therefrom are concerned.
The Court here affirms its competence to make a declaratory judgment and
the main point of the decision otherwise is to indicate certain limits to the
judicial function, which limits are described by Fitzmaurice as 'the question of
judicial propriety'.11
The distinguishing characteristic upon which the Court appears to rely is
that a declaration should have a 'forward reach'.
The difficulty is that the writers prefer to segregate the 'declaratory
judgment' from other remedial forms and are tempted to rely on the
difference between a request for a declaration and a claim for damages, or a
claim for specific performance. It may be doubted whether this segregation
and the distinction it implies can be justified.
There are no problems of form and, as will be shown in due course, the
category of declaratory judgments is very diverse in content. Even when an
award of damages, or an order for restitution, is made, this is premissed upon
a finding of legal entitlement. The provisions of article 36 involve a broad
mandate for the Court to resolve 'legal disputes' and all judgments are
declaratory of the existence of international obligations or of other forms of
legal entitlements or of the absence of legal justification (state responsibility).
It follows that there is no useful purpose in seeking to separate out a
category of'declaratory judgments'. The essential question is to determine the
limits to the judicial function. This view is reinforced when consideration is
given to the variety of remedial forms sheltering under the umbrella of the
declaratory judgment.

The declaratory judgment as a first stage in proceedings

In the Case Concerning Certain Phosphate Lands in Nauru,12 Nauru requested the
Court 'to adjudge and declare that the Respondent State bears responsibility
for breaches of the following obligations', and, finally, 'to adjudge and declare
that the Respondent State is under a legal duty to make appropriate reparation
in respect of the loss caused to the Republic of Nauru as a result of the
breaches of its legal obligations detailed above'. The application did not

11
Ibid., pp. 100-8 (Separate Opinion).
12
Nauru v. Australia (Preliminary Objections), ICJ Reports, 1992, p. 240.

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 Remedies in the ICJ

request the Court to proceed to an assessment of damages. Thus the finding

on liability, assuming it were favourable, would provide a juncture at which
negotiations would provide an appropriate option. A similar two-stage
proceeding resulted from the judgment on the merits in the Corfu Channel
case, in which the Court, having made a declaration as to Albania's responsi-
bility, reserved the question of the amount of compensation.13 The Albanian
contention that the Court lacked jurisdiction with respect to the assessment of
compensation was rejected in subsequent proceedings.14 The Corfu Channel
case was, it may be recalled, founded upon a Special Agreement.

A declaration of some form of legal entitlement

An important mode of declaration relates to the legal entitlement of the
parties in their mutual relations. In the Anglo-Norwegian Fisheries case the Court
found 'that the method employed for the delimitation of the fisheries zone by
the Norwegian Decree of July 12th, 1935, is not contrary to international
law'.15 In the Temple case (Merits) the Court found 'that the Temple of Preah
Vihear is situated in territory under the sovereignty of Cambodia'.16 In such
cases the primary objective is the issue of entitlement, and determinations as
to the legality of the conduct of the parties are either not requested or are
otherwise marginalized. In the Fisheries case the application included a claim
for damages for illegal interferences with fishing vessels, but this was laid aside
during the oral proceedings.

A declaration that certain conduct is contrary to international law

The Court has on several important occasions been asked to give a declaration
of the illegality of specific conduct of the respondent state, not simply as a basis
for an ex post finding of state responsibility, but as a categorical issue, that is,
the legality or not of a particular type of activity. At least in the view of the
joint Dissenting Opinion in the Nuclear Tests cases, the Australian application
and submissions involved a request for a declaration of the illegality of France's
atmospheric nuclear weapons tests.17 In the case of Nicaragua v. United States
(Merits), the Court made a series of decisions to the effect that certain actions

13
ICJ Reports, 1949, p. 36.
14
Ibid., p. 248. The Court relied upon article 60.
15
ICJ Reports, 1951, p. 143.
16
ICJ Reports, 1962, p. 36. See also the case concerning the Land, Island and Maritime Frontier Dispute, ICJ
Reports, 1992, p. 351, at pp. 610-17.
17
ICJ Reports, 1974, p. 63, at p. 319 {Australia v. France); ibid., p. 494, at p. 501 (New Zealand v. France).

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 PROCEDURAL ASPECTS OF THE ICJ

of the United States constituted breaches of various obligations under

customary international law, or in some cases breaches of the Treaty of
Friendship, Commerce and Navigation.18 The Court also decided that the US
was under an obligation to make reparation for all injury caused to Nicaragua
by the breaches of the obligations previously elaborated. An additional finding
of particular interest was the following paragraph in the dispositif. 'The Court
. . . rejects the justification of collective self-defence maintained by the United
States of America in connection with the military and paramilitary activities in
and against Nicaragua the subject of this case.'
There is no reason to see any qualitative distinction between this type of
declaratory judgment and the previous group relating to legal entitlements.
Both types satisfy the criterion indicated by the Permanent Court19 according
to which a declaratory judgment was designed 'to ensure recognition of a
situation at law, once and for all, and with binding force as between the
Parties; so that the legal position thus established cannot again be called in
question in so far as the legal effects ensuing therefrom are concerned'.

A declaration that specific acts of implementation

of a decision are required
In three cases the Court has responded to requests in applications by requiring
the respondent state to perform specific acts or refrain from specific conduct
as a consequence of the findings as to the legal entitlements of the applicant.
Thus in the Temple case (Merits)20 the dispositif is as follows:
The Court, by nine votes to three, finds that the Temple of Preah Vihear is
situated in territory under the sovereignty of Cambodia;
finds in consequence, by nine votes to three,
that Thailand is under an obligation to withdraw any military or police forces, or
other guards or keepers, stationed by her at the Temple, or in its vicinity on
Cambodian territory;
by seven votes to five,
that Thailand is under an obligation to restore to Cambodia any objects of the
kind specified in Cambodia's fifth submission which may, since the date of
the occupation of the Temple by Thailand in 1954, have been removed from the
Temple or the Temple area by the Thai authorities.

18
ICJ Reports, 1986, pp. 146-8.
19
Chorzow Factory case (Merits), PCIJ, Series A, N o . 13, p. 20; quoted in the joint Dissenting Opinion,
Nuclear Tests cases, ICJ Reports, 1974, p. 139 (Australia v. France); ibid., p. 501 (New Zealand v.
France).
20
ICJ Reports, 1962, pp. 3 6 - 7 .

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 Remedies in the ICJ

Similar orders were made by the Court in the Tehran Hostages21 and
Nicaragua22 cases. In the latter, the Court decided 'that the United States of
America is under a duty immediately to cease and to refrain from all such acts
as may constitute breaches of the foregoing legal obligations' (by twelve votes
to three).
This 'preventive' role is sometimes seen as the specific function of
declaratory judgments.23 Gray is of the opinion that declarations of this type
are radical in some way, at least in the context of the competence of the
Court.24 The present writer is unable to discern any significant difference
between this mode of declaration and the other types examined above. The
form depends on the requests of the parties in the application. The substance
of the matter is that a judgment is binding and the performance required is the
consequence of the decision on entitlement.

The declaration as a form of satisfaction

In the Corfu Channel case (Merits) the Court found that the action of the British
Navy on 12/13 November 1946, the mine-collecting operation, 'constituted
a violation of Albanian sovereignty'. As a consequence the Court stated:25
'This declaration is in accordance with the request made by Albania through
her Counsel, and is in itself appropriate satisfaction.'
This finding has been criticized on not very substantial grounds by Charles
De Visscher.26 However, it appears to qualify as a declaratory judgment
and the Court, as is its custom, was responding to the request of the party
concerned in the matter of remedies.

The declaration of the applicable principles and rules

of international law
In the North Sea Continental Shelf cases the Special Agreements requested the
Court to decide the question:27 'What principles and rules of international law
are applicable to the delimitation as between the Parties of the areas of the

21
ICJ Reports, 1980, pp. 4 4 - 5 .
22
ICJ Reports, 1986, p. 149.
23
Charles D e Visscher, Aspects recents du droit procedural de la Cour Internationale de Justice (Paris, 1966),
p. 187.
24
Gray, Judicial Remedies, pp. 6 4 - 8 .
25
ICJ Reports, 1949, p. 35. T h e issue is not referred to in the dispositif.
26
D e Visscher, Aspects recents, pp. 1 9 0 - 1 .
27
ICJ Reports, 1969, p. 6.

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continental shelf in the North Sea which appertain to each of them beyond
the partial boundary determined by the above-mentioned Convention of
1 December 1964?'
The Court had no difficulty in dealing with this case. Although fears have
at times been expressed that a readiness to give relatively abstract declaratory
judgments might lead to the contentious jurisdiction being used by states to
obtain Advisory Opinions,28 the judicial function in the North Sea cases was
related in several practical ways to the resolution of specific disputes. This is
evident from the terms of article 1 (2) of the two Special Agreements: The
Governments [the respective parties] shall delimit the continental shelf in
the North Sea as between their countries by agreement in pursuance of the
decision requested from the International Court ofJustice.'
Declaratory judgments in such cases are closely related to the ascertainment
of the legal entitlements of the parties and involve a legitimate and con-
structive exercise of the judicial function.

CLAIMS FOR DAMAGES

The question that presents itself at this stage is: to what extent, if at all, is the
declaratory judgment distinct from judgments involving the award of
damages?29 In all essentials, the answer must be in the negative. The element
of compensation, whether this itself is in the form of a declaration that there
is an obligation to make reparation, or in the form of a separate phase of
the proceedings for the assessment of compensation, is contingent upon a
declaration of a legal entitlement of some kind.
It may be recalled that in Nicaragua v. United States30 the applicant state had
included in its submissions a request that the Court make an interim award of
damages. The Court did not accede to this request, but did not deny the
existence of a competence to give such awards.

RESTITUTIO IN INTEGRUM
It is doubtful whether this is a separate category any more than claims for
damages. In appropriate cases the applicant state will request restitution in
kind, and if the Court has jurisdiction over the subject matter, and the

28
Hersch Lauterpacht, The Development of International Law by the International Court (London, 1958),
pp. 250-1.
29
Cf. Gray, Judicial Remedies, pp. 9 6 - 7 .
30 ICJ Reports, 1986, p. 143, para. 285.

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relevant legal principles point to restitution or specific performance, then such

orders will be consequential upon the finding of a legal entitlement. Such
orders were made in the Temple,31 Tehran Hostages32 and Nicaragua33 cases.
Whether such orders are made depends closely on the nature of the requests
of the parties. If restitutio in integrum is not a separate remedy but the natural
result of certain forms of request for a declaratory judgment, the question of
the competence of the Court to give specific performance does not arise, apart
from cases based on compromissory clauses.34

CAUSES OF ACTION: MULTIPLE COMPLAINTS

In his General Course at the Hague Academy in 1967,35 Jennings pointed to
the significance of the selection of causes of action. This significance can be
seen in the case ofNicaragua v. United States36 An early version of Nicaragua's
application based exclusively on multilateral treaties as to the merits would
have been sunk by the multilateral treaty reservation in the US Declaration
under the Optional Clause, and indeed the causes of action based on multi-
lateral treaties were ruled out.37 The application as presented to the Registry
contained a useful and effective array of causes of action based on customary
international law which escaped the reservation and which provided multiple
characterizations of the activities of which Nicaragua complained.
The definition of 'the precise nature of the claim' is required by the Rules
of Court (article 38(2)), and the use of multiple causes of action may be
warranted by the circumstances. However, there may be issues of judicial
policy if causes of action appear to overlap. Thus, in the Nicaragua case in
a Dissenting Opinion Jennings adopted the position that the Charter
prohibition on the use of force was identical with the relevant principle of
customary law.38 In the context this was a question going to jurisdiction, but
it is possible that similar questions might arise in relation to the award of
damages in relation to similar or overlapping causes of action.

31
ICJ Reports, 1962, pp. 36-7.
32
ICJ Reports, 1980, pp. 44-5.
33
ICJ Reports, 1986, p. 149.
34
Cf. Gray, Judicial Remedies, pp. 64—6, 95-6, where the issue of competence is considered to be
problematical.
35
Recueil des cours, 127 (1967), p. 507. See also the present writer, System of the Law of Nations: State
Responsibility, part I (Oxford, 1983), p p . 5 3 - 8 8 .
36
ICJ Reports, 1986, p. 14.
37
Ibid., pp. 29-38, paras. 37-56.
38
Ibid., p p . 529—34; and see also his views o n the principle o f n o n - i n t e r v e n t i o n , ibid., p p . 534—6. T h e
Court's view appears at p. 38, para. 56.

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FINALE
By way of conclusion, it may be observed that there is no great profit in
seeking to erect internal partitions within the sphere ofjudicial remedies. The
distinctions between declaratory judgments, actions for damages, and restitutio
in integrum involve operational variations stemming from the requests of
applicant states and the circumstances of each case. The more profitable and
difficult areas involve the outer boundaries of justiciability and judicial
propriety. Another area, still little explored, concerns the nature of the links
between causes of action and the assessment of compensation. This question
may emerge when a proceeding is based on an acceptance of liability and is
therefore devoted exclusively to the assessment of damages. The difficulty that
then arises is this. In the case of intentional wrongs the heads of loss and the
approach to causation should in principle be different from ordinary cases of
objective responsibility or culpa. If the wrongs themselves have not been
identified, the Court will have to construct the liability picture in its own
way.39

39
Problems of this kind arose during the arguments in the Arbitration between Stichting Greenpeace
Council v. The French State (1987). The Award, dated 30 September 1987, has not been published.

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