SECRETARY-GENERAL’S TRUST FUND TO ASSIST STATES IN THE SETTLE-

MENT OF DISPUTES THROUGH THE INTERNATIONAL COURT OF JUSTICE

Author: Antonios Tzanakopoulos

Article last updated: February 2019

A. Introduction 1
B. Structure and Operation of the ICJ Trust Fund 4
a. Object and Purpose 6
b. Eligibility Criteria 7
c. Application Process 14
d. Decision-Making Process 15
e. Disbursement 17
f. Financing and Administration 19
C. Practice of the ICJ Trust Fund 21
a. Applications and Awards 23
b. Financing 27
D. Evaluation 29

Bibliography

Electronic copy available at: https://ssrn.com/abstract=3347205

A. INTRODUCTION

1 Access to justice, including international justice, may be hampered not just by proce-
dural obstacles, but also by practical ones. Even when access to a court is available procedur-
ally, it may be so costly as for that factor to weigh in the decision to actually access the court
or even to appear before it to respond to claim. Appearing before an international court or
tribunal may be particularly costly for a state with limited means: producing documents, in-
cluding potentially detailed maps or hydrographic surveys, convening a legal team with suffi-
cient expertise to deal with potentially difficult or obscure matters of international law, cover-
ing the expenses of the team’s travel to the seat of the international court or tribunal and its
accommodation, and all this over a period that may take years from submission to final judg-
ment or award, does not come cheap. Litigating an average international case all the way to
final decision costs millions of US dollars, even though detailed costs are not readily available
(see Romano, 552).

2 Unlike arbitration, where the parties to a dispute must bear the cost of the arbitrators,
the tribunal in terms of registry services, and of course the cost of their own agents, counsel,
experts and witnesses, as well as all costs associated with preparing documents for submission
during the various procedural stages, the administrative costs of the International Court of Jus-
tice (‘ICJ’ or ‘Court’) are borne by the United Nations (‘UN’) (Art 33 UN Charter). However,
states parties to disputes brought before the ICJ still have to cover the costs associated with
remuneration of counsel they might wish to instruct, defrayment of expenses of agents, experts
and witnesses, and preparation of documents, such as memorials, counter-memorials, replies,
rejoinders, and so on, that they have to submit to the Court. All these costs can quickly mount
to levels which some states, particularly developing states, may be at difficulty to meet (see,
eg, Vignes, 321; Bekker, 662–663; Romano, 553; Claypoole, 78). And even though the ICJ
has the power to award costs to parties to a dispute, the general rule in the ICJ Statute (and
even the general principle of law) is that each party shall bear its own costs (Art 64 ICJ Stat-
ute), and the Court has never decided otherwise, even though it has been asked to do so on
occasion (see generally Espósito, 1777–1778, MNs 5–7).

3 In order to ensure that cost would not be a pertinent consideration in a state’s decision
to submit a dispute for resolution by the International Court of Justice or to participate in the
proceedings, or even in order to incentivise judicial settlement of disputes by the Court, the
UN Secretary-General (‘SG’), Javier Pérez de Cuéllar, decided in 1989 to create a Trust Fund
to financially assist states in that respect. The Secretary-General’s Trust Fund to Assist States
in the Settlement of Disputes through the International Court of Justice (‘ICJ Trust Fund’ or
‘ICJ TF’ or simply ‘Fund’) was duly established and in fact inspired the creation of similar
funds to financially assist states in the resolution of their disputes within the context of the
Permanent Court of Arbitration (‘PCA’) and the International Tribunal for the Law of the Sea
(‘ITLOS’). In what follows, I review the structure and operation (section B) and the practice
of the ICJ Trust Fund (section C), comparing it occasionally to the other funds inspired by it.
Section D, concluding, offers a brief evaluation of the ICJ Trust Fund.

B. STRUCTURE AND OPERATION OF THE ICJ TRUST FUND

4 The establishment of the ICJ Trust Fund was announced by the Secretary-General on 1
November 1989, on the same date that the ICJ TF’s Terms of Reference, Guidelines and Rules
(‘TOR’) were issued (UN Doc A/47/444, 7 October 1992, para 2, and Annex). In its first
iteration, the ICJ TF was a rather circumscribed affair, in the sense that it could only be used

Electronic copy available at: https://ssrn.com/abstract=3347205

by states to defray costs related to litigation in the ICJ which had been commenced on the basis
of a special agreement (compromis) or related to the execution of a judgment of the Court
resulting from such a special agreement. This was ostensibly because the Fund’s resources
ought not to be made available in cases where jurisdiction of the ICJ was in contention, and,
relatedly, to avoid any ‘political bickering’ as to the operation of the Fund (Bekker, 664; cf
UN Doc A/47/444, para 4: ‘by using this requirement, the Secretary-General sought to
prevent criticism of partiality’). Even though international litigation should not be considered
in any way an unfriendly act (Manila Declaration, para II(5)), more often than not unilateral
recourse to the ICJ on the basis of declarations under Art 36(2) of the Statute of the ICJ (‘ICJ
Statute’) or on the basis of compromissory clauses in treaties is so considered; unilateral re-
course of this sort effectively subsidised by the international community was seen, at least at
the time of establishment of the Fund, to be politically unacceptable (see also Romano, 556).

5 The restrictive scope of the ICJ Trust Fund was the focus of criticism in early academic
work (see, eg, Bien-Aime, 679–683; O’Connell, 238). This was followed by the creation of
similar Funds for the PCA and ITLOS with less restrictive scope. All of this, combined with a
very detailed comparative and critical study of the American Branch of the International Law
Association (‘ILA’) which included proposals for reform of the ICJ TF (see generally ILA
AB Study), led to the revision of the Fund’s TOR in 2004 (UN Doc A/59/372, 21 September
2004, and Annex) (‘Revised TOR’). The Revised TOR expanded the scope of cases that were
eligible for funding and made other improvements, taking up many of the proposals in the ILA
Report.

a. Object and Purpose

6 According to the ICJ TF TOR, the reasons for establishing the Trust Fund were that the
peaceful settlement of international disputes in conformity with justice and international law is
a basic purpose of the UN and an essential tool for the maintenance of international peace and
security, as per the UN Charter, Art 1(1) (Revised TOR, para 1). Accordingly, access to such
dispute resolution through the ICJ, or implementation of a judgment of the ICJ, ought not to be
hampered by the lack of expertise or funds on the part of parties to a dispute (Revised TOR,
para 3). The object and purpose of the ICJ TF this is to minimise the cost of ICJ proceedings
as a factor in the decision of states to bring disputes to the ICJ for resolution by providing
financial assistance for expenses incurred in that connection (Revised TOR, para 6).

b. Eligibility Criteria

7 Eligible States: The Revised TOR set out the conditions for eligibility of applications
for financial assistance. As far as ratione personae eligibility is concerned, applications may
be submitted by any state that has access to the ICJ (ie any UN member state, any state-party
to the ICJ Statute, and any state that is not a party to the ICJ Statute but has complied with the
conditions set out in Art 35(2) ICJ Statute and Security Council Resolution 9 of 1946). Notably,
ratione personae eligibility is not limited to states that are indigent or otherwise in financial
difficulty: any state that has access to the ICJ may submit an application for financial assis-
tance. This may seem odd, and is not, for example, the route taken by the PCA Fund. The latter
limits eligibility to states parties to the Hague Conventions on the Peaceful Settlement of Dis-
putes of 1899 or 1907 who have concluded an agreement for the submission of disputes, present
or future, for settlement by any of the means administered by the PCA, and that are listed on
the ‘DAC List of Aid Recipients’ maintained by the Organisation for Economic Co-operation
and Development (‘OECD’) (PCA Financial Assistance Fund for Settlement of

Electronic copy available at: https://ssrn.com/abstract=3347205

International Disputes Terms of Reference and Guidelines, 11 December 1995, para 5).
This does not mean, however, that any state eligible to apply for assistance under the ICJ TF
TOR will also be granted such assistance: as will be seen, the question of need of the requesting
state is a main consideration in the decision-making process (see section B.d below).

8 Eligible Disputes and Judgments: The other eligibility requirement for applications
could be termed ratione competentiae eligibility and refers to the jurisdictional basis by which
reference of a dispute is made to the ICJ. This requirement is more complicated. Originally,
the ICJ TF was only open to applications in connection with disputes submitted to the Court
by special agreement, or in connection with the execution of a judgment of the Court resulting
from a special agreement. The Revised TOR of 2004, however, greatly expanded the jurisdic-
tional bases on which the submission of disputes is eligible for financial assistance. Paragraph
6 of the Revised TOR provides that financial assistance can be applied for expenses incurred
in connection with:

(a) A dispute submitted to the International Court of Justice under Article 40, paragraph
1, of its Statute:
(i) By way of a special agreement on the basis of Article 36, paragraph 1, of the
Statute;
(ii) By way of an application on the basis of Article 36, paragraphs 1 and 2, of
the Statute provided that:
(a) In a case in which preliminary objections have been filed by one or
both parties to the case under Article 79 of the Rules of the Court, such
objections have been either rejected by the Court or definitively with-
drawn by the party or parties concerned;
(b) In a case in which no preliminary objections have been filed, the
State requesting financial assistance gives the Secretary-General an un-
dertaking not to present any preliminary objection under Article 79 of
the Rules of the Court and to plead the case on the merits; such an un-
dertaking shall be duly notified to the Court by the Secretary-General;
(b) The execution of a Judgment of the International Court of Justice.

9 This complicated provision aims at expanding the eligible bases of jurisdiction that can
be relied on to bring a dispute to the Court by including, beyond special agreements, also com-
promissory clauses in treaties in force and declarations under Art 36(2) ICJ Statute. At the same
time, it maintains the rationale of not allowing funding simply to dispute the Court’s jurisdic-
tion or the admissibility of the case, or more generally, of not allowing funding in connection
with disputes where the Court’s jurisdiction or the admissibility of the case is in contention.
This is precisely in order to avoid any political ‘bickering’ in case the TF is seen as essentially
subsidising the bringing of a dispute on questionable or contentious jurisdictional bases before
the Court (see above, para 4). The Marshall Islands cases may come to mind as an example
of such a dispute which could have caused some political fallout (pun intended).

10 As is evident from the wording of the relevant paragraph of the Revised TOR, which
refers generally to ‘preliminary objections’, and from the discussion in the preceding paragraph
of this contribution, the Revised TOR aim to exclude generally from eligibility for funding any
dispute which does not proceed to the merits for whatever reason. As such, the exclusion is not
limited solely to jurisdiction being in contention, but is also to be seen as referring to any pre-
liminary objection, however characterised: eg as a question of admissibility or otherwise. At
the same time, the relevant provision of the Revised TOR seems also to consider eligible

Electronic copy available at: https://ssrn.com/abstract=3347205

disputes that proceed to the merits on the basis of forum prorogatum, given that such disputes
would fall within the scope of paragraph 6(a)(ii)(a) or 6(a)(ii)(b).

11 Paragraph 6(b) of the Revised TOR further expands eligibility by considering eligible
‘expenses incurred in connection with … the execution of a judgment of the International Court
of Justice’. In their previous iteration, the ICJ TF TOR only considered eligible expenses in-
curred in connection with the execution of a judgment of the ICJ resulting from ‘such a special
agreement’ as would have been eligible for funding when bringing a dispute. In their current
iteration they seem to cover any judgment of the Court, given that a judgment that can lead to
expenses for its implementation can only be a judgment on the merits of a case, ie a judgment
rendered after any preliminary objections have been ‘rejected by the Court or definitively with-
drawn by the party or parties concerned’ or have not been filed at all (as per paragraph
6(a)(ii)(a) and 6(a)(ii)(b) of the Revised TOR). As such, a state can apply for financial assis-
tance with expenses incurred in connection with the execution of any judgment of the Court,
whether or not it applied earlier for financial assistance for expenses incurred in the context of
litigation.

12 Eligible Expenses: This refers to eligibility ratione materiae, ie what kind of expenses
are eligible to be defrayed by recourse to the ICJ TF. The Revised TOR do not specifically
refer to eligible expenses, however these might be inferred from the provisions of paragraphs
4 and 9. In particular, paragraph 9 of the Revised TOR includes a detailed description of ‘types
of expenses to be covered by the assistance’:

preparation of memorials, counter-memorials and replies; fees for counsel and pay-
ment, where applicable, of the expenses of agents, experts or witnesses; legal research
fees; costs related to oral proceedings (e.g., interpretation in the case of languages other
than English and French); expenses of producing technical materials (e.g., reproduction
of cartographic evidence) and costs relating to the execution of a judgment of the Court
(e.g., demarcation of boundaries).

Some of these categories are quite broad and may accommodate all sorts of expenses; the ex-
amples given parenthetically in the Revised TOR are self-evidently not exhaustive.

13 The more interesting question here is how to interpret the terms ‘expenses incurred in
connection with the execution of a judgment of the Court’. What could be such eligible ex-
penses? Taking a broad interpretation of the terms, such expenses could even consist in the
payment of compensation owed to the injured state as per the Court’s determination (contra
O’Connell, 237; Bekker, 664–665). However, most authors seem to understand this provision
as related rather to expenses that may be incurred in the process of, for example, demarcation
of a boundary that has been delimited by the Court’s judgment (see, eg, Vignes, 321–322;
Bekker, 663; Espósito, 1779, MN12). This could be because this is the only example of rele-
vant expenses mentioned in paragraph 9 of the Revised TOR (and earlier in the original TOR),
which might indicate what the Secretary-General’s intention was. While boundary demarcation
would be admittedly an obvious example, nothing in the actual text of the TOR restricts the
expenses for which defrayment can be applied. One could easily imagine a situation where a
state needs technical or other expert assistance in bringing its domestic law in conformity with
what its international obligations, now determined by the ICJ as to their content and scope,
require. In the final analysis, the fact that a particular expense is eligible to be included in a
request for financial assistance, does not mean that it will also be approved. The decision-

Electronic copy available at: https://ssrn.com/abstract=3347205

making process of the TF will operate to finally determine which expenses are to be defrayed.
This is discussed in section B.d, below.

c. Application Process

14 The application process is as follows: an eligible state may submit an application for
financial assistance with respect to expenses incurred in connection with an eligible dispute or
judgment of the Court to the Secretary-General (as inferred from paragraph 9 of the Revised
TOR). This application should presumably be in writing, as inferred from paragraph 8 of the
Revised TOR, which provides that it ‘shall be accompanied by’:

(a) If financial assistance is sought under paragraph 6 (a) (i) of the Terms of Reference,
a copy of the special agreement;
(b) If financial assistance is sought under paragraph 6 (a) (ii) (a.) of the Terms of Ref-
erence, a copy of the judgment of the Court rejecting preliminary objections in the case,
and/or a copy of a document confirming the withdrawal of preliminary objections, as
appropriate;
(c) If financial assistance is sought under paragraph 6 (a) (ii) (b.) of the Terms of Ref-
erence, the undertaking referred to in that paragraph;
(d) An itemized statement of the estimated costs for which financial assistance is re-
quested from the Fund;
(e) An undertaking that the requesting State shall:
(i) Supply a final statement of account providing details of the expenditures
made from the approved amounts, to be certified by an auditor acceptable to the
United Nations;
(ii) Refund, where applicable, any unused advance which may have been made
to it;
(f) An indication by the requesting State of the amount of the advance it wishes to
receive under the provisions of paragraph 13 of the Terms of Reference.

d. Decision-Making Process

15 Once the Secretary-General receives an application and determines that it is ‘admissi-

ble’, ie presumably that it complies with the provisions of eligibility in paragraphs 6 and 8 of
the Revised TOR and is accompanied by the documents required as per paragraph 8 of the
Revised TOR, he or she shall establish an ad hoc ‘Panel of Experts’ (‘POE’ or ‘Panel’), which
has the mandate of examining the application and making recommendations to the Secretary-
General as to ‘the amount of the financial assistance to be awarded, the amount of the advance
to be allocated under the provisions of paragraph 13 of the Terms of Reference and the types
of expenses to be covered by the assistance’ (Revised TOR, para 9).

16 The SG determines who shall serve on each POE, selecting each time three persons of
‘the highest judicial and moral standing’ (Revised TOR, para 9). The POE thus established
shall deliberate in ‘strict confidentiality’ (Revised TOR, para 10), and shall be guided in its
deliberations ‘solely by the financial needs of the requesting state and the availability of funds’
(Revised TOR, para 11). Here, then, it is highlighted that, even though any state with access
to the ICJ may make an application to the Fund (see above, para 7), the POE shall make
recommendations taking into consideration, apart from the availability of funds, exclusively
the financial needs of the requesting state. Accordingly, the POE makes recommendations to
the SG, who has decisive authority over the granting of assistance (Revised TOR, para 13).

Electronic copy available at: https://ssrn.com/abstract=3347205

While it is unlikely that the SG will not accede to the recommendations of the POE, the ‘final
determination’ belongs to him or her.

e. Disbursement

17 Originally, the ICJ TF TOR provided for disbursement of funds for approved costs only
in the manner of reimbursement: payments would only be made against receipts evidencing
actual expenditures for such approved costs. This provision came in for some criticism, as it is
clear that expenses can mount in the litigation phase, and that a state seeking recourse to the
Fund may have problems covering them out of its own resources (see ILA AB Study, 235).
Furthermore, the PCA Financial Assistance Fund, which was created after the ICJ TF, allowed
for immediate disbursement of financial assistance that had been approved (PCA Financial
Assistance Fund Terms of Reference and Guidelines, para 14). The Revised TOR remedied
this problem by providing that up to 50% of the financial assistance awarded could be disbursed
as an advance, depending on the relevant decision of the SG following the recommendation of
the POE (Revised TOR, para 13).

18 As such, there are two types of payments for the disbursement of the financial assis-
tance awarded: an advance payment, if and up to the limit decided by the SG, and in no case
more than 50% of the total amount of assistance awarded; and a final payment of the balance.
Both payments are to be made by wire transfer from the TF (Revised TOR, para 13). The
final payment, however, shall only be made ‘against receipts evidencing actual expenditures
for the total amount of the approved costs’ (Revised TOR, para 13). Finally, the state that has
been awarded financial assistance will not be eligible to receive the final payment, and will be
under an obligation to reimburse the advance, if the final payment is not claimed either within
two years from the date of the judgment, if the application was for expenses in connection with
a dispute being brought to the Court under paragraph 6(a) of the Revised TOR, or within a
reasonable time from the date of the judgment, which in any case shall not exceed five years,
if the application was for expenses in connection with the execution of judgment of the Court
under paragraph 6(b) of the Revised TOR (Revised TOR, para 14).

f. Financing and Administration

19 The ICJ Trust Fund is financed by voluntary contributions. Much like the original TOR,
the Revised TOR provide in paragraph 7 that making financial contributions to the Fund is
basically open to anyone, ie ‘states, intergovernmental organisations, national institutions and
non-governmental organisations, as well as natural and juridical persons’. Anyone then, in-
cluding private individuals and legal entities established under domestic law, such as founda-
tions or corporations, can make contributions to the ICJ TF.

20 The Trust Fund is administered by the SG, via the Office of Legal Affairs of the United
Nations (‘OLA’), which is designated as the ‘implementing office’ for the TF, as required by
the Financial Regulations and Rules of the UN, which apply to the administration of the TF,
including the auditing procedures provided therein (Revised TOR, paras 17 and 15 respec-
tively). The OLA ‘shall provide the services required for the operation of the Fund’ (Revised
TOR, para 17). The SG, for his or her part, shall submit an annual report on the activities of
the Fund to the General Assembly (Revised TOR, para 16), and has the competence to revise
the ICJ TF TOR ‘if circumstances so require’ (Revised TOR, para 18).

C. PRACTICE OF THE ICJ TRUST FUND

Electronic copy available at: https://ssrn.com/abstract=3347205

21 Although the ICJ Trust Fund was created on 1 November 1989 at the initiative of the
SG, states were ‘informed’ of its establishment only in January 1990 (UN Doc A/47/444, paras
2 and 6). Just over a year after that the TF received its first applications in March 1991 and
September 1991 under the limited eligibility rules then in force. Both applications were sub-
mitted by developing states in connection with territorial or boundary disputes (UN Doc
A/47/444, paras 7–8). These were reported in the SG’s Report of 1992, the first Report that
was submitted to the GA as to the activities of the Fund. Despite the provision in the original
TOR then in force, which, like the current Revised TOR, required the submission of an annual
report to the GA, the next SG Report on the activities of the Fund was submitted only in 2001
(UN Doc A/56/456, 10 October 2001), more than nine years after the first Report.

22 Since then, the SG has been diligent in submitting Reports annually to the GA. This
allows for an assessment of the practice of the Fund, as the SG’s Reports are the only source
of information regarding the Fund. It is neither known nor explained anywhere why the SG
neglected to report to the GA as to the activities of the Fund for nearly a decade, despite the
clear provision in paragraph 15 of the original TOR (maintained in the Revised TOR, para
16) that reporting on the activities of the Fund shall be annual.

a. Applications and Awards

23 According to the SG’s Reports to the GA, between 1989 and 2001, a total of 4 applica-
tions were made to the Fund, in March 1991, September 1991, September 1996 and January
1997. All were made by developing states in connection with territorial or boundary disputes,
and in all four cases ‘limited financial assistance was awarded by the Secretary-General’ (UN
Doc A/56/456, paras 4–7). The financial assistance awarded was limited apparently in view
of the Fund’s limited assets, and the POE’s consideration that it was ‘necessary to strike a
balance between encouraging recourse to the Court and the need to be in a position to accom-
modate future applications’ (UN Doc A/56/456, para 7). In all four cases the expenses for
which financial assistance was requested were incurred in connection with the submission of a
dispute to the Court, except in one case the application also sought defrayment of expenses
incurred also in connection with the execution of the judgment (UN Doc A/56/456, paras 4
and 6).

24 The 2002 and 2003 Reports indicate that no applications were made to the TF during
these reporting periods, while the 2004 Report indicates that one application had been made to
the Fund. For the first time the Report indicated the names of the states applying, and the
amounts awarded by the SG on the recommendation of the POE. Apparently, the joint appli-
cation was submitted by Benin and Niger for expenses incurred in connection with the submis-
sion of a boundary dispute to the Court and with the demarcation of the boundary, ie the exe-
cution of the judgment, and each state was awarded USD 350,000 (UN Doc A/59/372, 21 Sep-
tember 2004, paras 4–6). This was the last Report under the original TOR, as the TOR were
revised at that time. As such, under the original TOR, in 15 years of operation, the ICJ TF
received applications from a total of 6 states (two applying jointly), all developing, and all in
connection with disputes submitted by special agreement (as required by the then TOR) and
referring to territorial or boundary issues. All six states were awarded limited defrayment of
expenses incurred in the context of submission of the dispute and litigation, and three of them
(two jointly) were also awarded limited defrayment of expenses incurred in connection with
the execution of the relevant judgment.

Electronic copy available at: https://ssrn.com/abstract=3347205

25 In the 15 years since the revision of the TOR, the ICJ Trust Fund has received only
three applications in connection with two cases. The first was from Djibouti on 20 March 2007,
in connection with the dispute it brought against France in Certain Questions of Mutual Assis-
tance in Criminal Matters (ICJ Reports 2008, 177). This application marks the first (and only)
application that was not based on a special agreement between the parties to the dispute, but
rather on forum prorogatum (see further ICJ Reports 2008, 203ff, paras 60ff). The SG de-
cided on 3 October 2007 to award USD 290,500 to Djibouti to defray expenses incurred in
connection with the litigation of the dispute, USD 136,260 of which were paid as an advance
on 28 January 2008 (see UN Docs A/62/171, 31 July 2007, para 4 and A/63/229, 8 August
2008, paras 4–5). Notably, both the application and the decision were made subsequent to
France’s acceptance of the Court’s jurisdiction by letter addressed to the Court on 25 July 2006,
although a dispute as to the extent of that acceptance remained (see ICJ Reports 2008, 199ff,
paras 45ff).

26 The other two applications during the latter period were submitted by Burkina Faso and
Niger in 2013–14, and sought defrayment of expenses incurred in the implementation of the
Court’s judgment of 16 April 2013 in their Frontier Dispute (ICJ Reports 2013, 44), which
had been submitted by means of a special agreement between the two (see UN Doc A/69/337,
21 August 2014, para 4). In particular, the two states sought financial assistance in order to
implement the judgment by demarcating the relevant section of their common boundary on the
basis of the Court’s delimitation (see ibid.). The SG awarded USD 125,000 to each state, 50%
of which was to be paid in the form of an advance (UN Doc A/71/339, 16 August 2016, para
4). According to paragraph 14(b) of the Revised TOR, the last point in time at which final
payment of the award could be claimed for both states was 16 April 2018, ie ‘under no circum-
stances’ more than 5 years from the date of the judgment. However, there is no relevant infor-
mation in the 2018 Report (UN Doc A/73/319, 8 August 2018). From the balance of the Fund
it appears that no such final payments have been made, though they may have been claimed
and be in the process of clearing.

b. Financing

27 As discussed in paragraph 19 above, the ICJ TF is financed by voluntary contributions,

which can be made by states or any other entity, including international organisations, NGOs,
or even any natural or legal persons. Despite this, only states appear to have made contributions
to the Trust Fund so far. Initial contributions (ie between 1989 and 1992) were made by 34
states, some of which were developing states, to the tune of USD 583,705 (UN Doc A/47/444,
para 10). Between 1992 and 2001, when the SG reported again, contributions had been re-
ceived from 18 States, most of which were recurring donors, and the balance of the Fund stood
at USD 1,602,734, having already made some payments of awards during that time (UN Doc
A/56/456, paras 9–10). Since then, the number of states contributing to the Fund has been
averaging approximately 2–3 per year. Contributed amounts have ranged from under USD
1,000 (Venezuela on a couple of occasions) to close to USD 120,000 (Belgium on one occa-
sion), but generally average between USD 10,000–20,000.

28 The first state to apparently make a contribution to the Fund was Cyprus in 1989, and
the most dependable donors is Finland, who made its first contribution in 1991 and has con-
tributed annually between then and 2018, with the exception of 2015. Mexico and Japan, as
well as Norway, also have a good record of contributing to the Fund, as does Switzerland over
the last decade. At the last reporting period, at the end of June 2018, the balance of the Fund
stood at USD 3,230,392.

Electronic copy available at: https://ssrn.com/abstract=3347205

D. EVALUATION

29 There is no doubt that the ICJ Trust Fund is a good idea. International litigation can be
an expensive exercise. Just like in domestic law litigation costs should not be a factor in decid-
ing to resort to the court, or to appear before it to respond to a claim, so it should be in interna-
tional law as well. While in law all are equal, and in international law states are sovereign and
thus equal, in reality all are not equal at all. That the ICJ Trust Fund is a good idea is further
confirmed by the fact that it has been emulated in the context of the PCA and the ITLOS. The
availability of such international legal aid has the potential of facilitating the access of states
to the ICJ (and other courts and tribunals) and thus of promoting the peaceful curial settlement
of disputes. While this is obviously not the only, or even necessarily the best, way of resolving
international disputes, the availability of such legal aid is something to be lauded.

30 However, not all good ideas flourish in practice. In its 30 years of existence, the ICJ
Trust Fund has only made awards to a total of approximately eight states, relating to approxi-
mately five cases (no states or cases were named with respect to the first four applications,
which ostensibly however related to two cases, so these numbers are based on speculation;
though we do know that at least Niger has applied in two different cases that it was involved).
This does not compare favourably with the number of cases added to the Court’s docket over
these 30 years, and there is no tangible evidence that the Fund has contributed in promoting
the resolution of disputes through recourse to the ICJ.

31 Early assessments of the Trust Fund focused on some of the provisions of its original
TOR as the main shortcomings hampering its success. In particular, the very restrictive scope
of cases that were eligible for assistance, as well as the lack of any availability of funding
before the actual expenses had been incurred were considered as significant flaws. After 15
years, the SG revised the TOR in 2004 to remedy these shortcomings, clearly responding to
these criticisms and emulating other Funds that had been inspired by the ICJ TF’s creation, but
which implemented the idea against the experience of the ICJ TF. Yet the following 15 years
demonstrated that the restrictive TOR were hardly the reason states had not been resorting to
the Fund.

32 What is the reason then? That may well be a matter of speculation. It may be that the
Fund has very limited assets—just over USD 3 million at the end of the last reporting period
in 2018—and thus can hardly properly assist in covering any significant part of the expenses
that will be incurred in a lengthy process of international litigation before the ICJ. These ex-
penses may well add up to several million USD for a state. It may also be that states, even when
in need, will put their pride above their purse and channel resources to such litigation, once
they have decided that it is in the national interest to pursue it. This may not be ideal, but it
may just be the way it is. None of these speculations should be taken as arguments against the
existence of the Trust Fund, however: on the contrary, its existence should be lauded and pro-
moted by the UN, so that more states know about it, and so that more contributors decide to
support it. ‘Build it and they will come’, says the pop culture cliché. They haven’t really come
in 30 years. But maybe they will.

Electronic copy available at: https://ssrn.com/abstract=3347205

BIBLIOGRAPHY

PHF Bekker, ‘International Legal Aid in Practice: The ICJ Trust Fund’ (1993) 87 AJIL 659

T Bien-Aime, ‘A Pathway to The Hague and Beyond: The United Nations Trust Fund Pro-
posal’ (1990) 22 NYU JILP 671

C Claypoole, ‘Access to International Justice: A Review of the Trust Funds Available for Law
of the Sea-Related Disputes’ (2008) 23 IJMCL 77

C Espósito, ‘Article 64’ in A Zimmermann, CJ Tams et al (eds), The Statute of the International
Court of Justice: A Commentary (3rd edn, OUP, Oxford 2019) 1775

International Law Association (American Branch) (Committee on Transnational Dispute Res-

olution), ‘A Study and Evaluation of the Secretary-General’s Trust Fund to Assist States in the
Settlement of Disputes through the International Court of Justice’ (2002) 1 Chinese JIL 234

SI Lekkas and C Stakker, ‘Article 34 Annex VI’ in A Proelß (ed), United Nations Convention
on the Law of the Sea: A Commentary (Beck/Hart/Nomos, München/Oxford/Baden-Baden,
2017) 2451

ME O’Connell, ‘International Legal Aid: The Secretary-General’s Trust Fund to Assist States
in the Settlement of Disputes through the International Court of Justice’ in MW Janis (ed),
International Courts for the Twenty-First Century (Martinus Nijhoff, Dordrecht/Boston/Lon-
don 1992) 235

CPR Romano, ‘International Justice and Developing Countries (Continued): A Qualitative

Analysis’ (2002) 1 LPICT 539

D Vignes, ‘Aide au développement et assistance judiciaire pour le règlement des différends

devant la Cour internationale de Justice’ (1989) 35 AFDI 321

Electronic copy available at: https://ssrn.com/abstract=3347205