No CrossRef data available.
Article contents
Controlling Interlocutory Aspects of Proceedings in the International Court of Justice
Published online by Cambridge University Press: 27 February 2017
Extract
Profound changes in the structure and composition of today’s international community of states and equally profound changes in the kinds of disputes coming before the International Court of Justice are making essential a thorough review of the Court’s methods of handling contentious cases, and possibly advisory cases as well. Attention has been focused on hearings, where some useful modifications have been introduced. It seems, however, that more is needed than adjustments in the oral proceedings, which nevertheless can serve as the point of departure for further developments. Article 48 of the Statute gives the Court almost unfettered power to “make orders for the conduct o f the case... and to make all arrangements connected with the taking o f evidence” (emphasis added). As will be seen, in 1999 the General Assembly of the United Nations encouraged the Court to adopt additional measures aimed at expediting its proceedings. This Note has the limited purpose of drawing attention to some recent measures taken by the Court with that end in view, and suggests directions for a more fundamental change in the Court’s procedures.
- Type
- Notes and Comments
- Information
- Copyright
- Copyright © American Society of International Law 2000
References
1 For the Court’s 1999 record, see Peter H. F. Bekker, The 1999 Judicial Activity of the International Court of Justice, infra at 412.
2 UN Doc. A/52/PV.36 (provisional), at 5 (Oct. 27, 1997).
3 Alinguistic curiosity one sometimes encounters in literature about the Courtis the expression “oral hearings.” Are any other kinds of hearings possible? Perhaps, yes. Cf. infra note 15.
4 In this Note, citations from the Court’s judgments and orders not yet published in the last (1998, 1999) volumes of the Court’s Reports have been taken from the Court’s Website, <>. They are given by date only. Press communiqués are also available on this site.
5 Press Communiqué 99/3 (Feb. 16, 1999).
6 CR 99/3 (Feb. 17, 1999).
7 Id.
8 Id.
9 See Press Communiqué 99/13 (Mar. 22, 1999).
10 1999 ICJ Rep. (Judgment of Mar. 25). Judge ad hoc Ajibola’s strong dissenting opinion shows that the question of the application of Article 98 of the Rules was thoroughly ventilated in the Court’s deliberations.
11 Id.
12 Shabtai Rosenne, Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice 171 (1983) (also published in III The Law and Practice of the International Court 1920–1996, at 123 (1997)); See Shabtai Rosenne, Counter-claims in the International Court of Justice Revisited, in Liber Amicorum in Memoriam of Judge José María Ruda (Calixto A. Annas Barea et al. eds.) (forthcoming May 2000).
13 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Counter-claims, 1997 ICJ Rep. 243, 256 (para. 26). The decision not to hold hearings was heavily criticized by Judge ad hoc Kreāa. (p. 267), Judge Koroma (p. 276) and Judge ad hoc Sir E. Lauterpacht (p. 279), but not by Vice-President Weeramantry in his dissenting opinion (p. 287).
14 Id., passim.
15 Oil Platforms (Iran v. U.S.), Counter-claim, 1998 ICJ Rep. 190. Judge Oda in his separate opinion criticized this procedure (at p. 215). On the other hand, Judge Higgins thought that oral submissions are neither required nor excluded by the terms of Article 80, paragraph 3, and that the Court has found sufficient freedom to decide, notwithstanding the apparent limiting terminology of that provision, that the parties may be heard “whether in writing or orally” on the question of jurisdiction as well as on the question of the connection of the counter-claim with the original claim (at p. 223).
16 Land and Maritime Boundary between Cameroon and Nigeria, Order, 1999 ICJ Rep. (June 30).
17 LaGrand (Germany v. U.S.), Provisional Measures, 1999 ICJ Rep. 9 (March 3).
18 Id. Reservations were expressed by President Schwebel in his separate opinion at 21. That decision was rendered at 7 P.M. (The Hague time), Press Communiqué 99/8 (March 3, 1999). To appreciate the time element in this case, The Hague time is GMT + 1, and Arizona time is GMT - 7. That is, there is an 8-hour time difference between The Hague and Arizona. Given the instantaneity of modern communications, and the fact that the United States Embassy at The Hague maintains a full Legal Section familiar with international litigation experience, there is no obvious reason why a brief hearing could not have been arranged for this case.
19 Nuclear Tests (Austl. v. Fr.) (N.Z. v. Fr.), Application of Fiji to Intervene, 1973 ICJ Rep. 320, 324, and 1974 ICJ Rep. 530, 535; Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Application of El Salvador to Intervene, 1984 ICJ Rep. 215. In that case the Court decided by a vote not to hold a hearing.
20 Delimitation of the Continental Shelf between Tunisia and Libya, Application of Malta to Intervene, 1981 ICJ Rep. 3; Delimitation of the Continental Shelf between Libya and Malta, Application of Italy to Intervene, 1984 ICJ Rep. 3.
21 That provision has been applied once, to allow the Canadianjudge ad hoc for the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.) case to be present at the meeting of the Court for the purpose of fixing the initial time limits for the proceedings in the Chamber that determined the case. 1982 ICJ Rep. 15.
22 1990 ICJ Rep. 3.
23 1990 ICJ Rep. 92.
24 Land and Maritime Boundary between Cameroon and Nigeria (Cam. v. Nig.), Application by Equatorial Guinea for Permission to Intervene, Order, 1999 ICJ Rep., para. 13 (October 21). This case is pending.
25 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.K.), Preliminary Objections, 1998 ICJ Rep. 9, 13 (para. 9).
26 Legality of Use of Force (Yugo v. Belg.), Provisional Measures, Order, 1999 ICJ Rep., para. 12 (June 2), and the corresponding paragraphs in the Orders of the same date in the cases against Canada, Italy, and Spain). Portugal did not appoint a judge ad hoc. These cases are pending.
27 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277.
28 Legality of Use of Force (Yugo. v. Sp.) (Yugo. v. U.S.), Provisional Measures, Orders, 1999 ICJ Rep., paras. 34 & 26 (respectively) (June 2). These two cases were removed from the General List.
29 No less than 50 public sittings, covering two full months, were required for the oral proceedings before a Chamber in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua intervening) case, and that after three rounds of written pleadings by the principal parties, and further pleadings by the intervening state. 1992 ICJ Rep. 351.
30 See supra note 13.
31 There has been one instance in which this rule has been invoked, namely, the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis, v. Libya), 1985 ICJ Rep. 192.
32 The following contentious cases decided since 1960 have involved at least one decolonized or defederalized party: Northern Cameroons (Cameroon v. U.K.) (1963); ICAO Council Appeal (India v. Pak.) (1972); Pakistani Prisoners of War (Pak. v. India) (1973); Continental Shelf Delimitation (Tunis./Libya) (1981, 1982, 1985); Continental Shelf Delimitation (Libya/Malta) (1984, 1985); Frontier Dispute (Burk. Faso/Mali) (1987); Certain Phosphate Lands in Nauru (Nauru v. Austl.) (1993); Territorial Dispute (Libya/Chad) (1994); Maritime Delimitation between Guinea-Bissau and Senegal (1995); Gabćíkovo-Nagymaros Project (Hung./Slovk.) (1997); Kabilu/Sedudu Island (Bots./Namib.) (1999); Application of the Genocide Convention cases (Bosn. & Herz. v. Yugo; Croat, v. Yugo.) (both pending); the Lockerbie cases (Libya v. U.K, Libya v. U.S.) (both pending); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (pending); Land and Maritime Boundary between Cameroon and Nigeria (pending); Sovereignty over Pulau Ligitan and Pulau Sipidan (Indon./Malay.) (pending); Diallo (Guinea v. Dem. Congo) (pending); Legality of Use of Force (Yugoslavia v. Belgium) (Yugoslavia v. Canada) (Yugoslavia v. France) (Yugoslavia v. Germany) (Yugoslavia v. Italy) (Yugoslavia v. the Netherlands) (Yugoslavia v. Portugal) (Yugoslavia v. Spain) (Yugoslavia v. United Kingdom) (Yugoslavia v. United States)) (1999, eight cases pending); Armed Activities in the Congo (Dem. Congo v. Burundi; Dem. Congo v. Uganda; Dem. Congo v. Rwanda) (all pending); Aerial Incident of 10 August 1999 (Pak. v.India) (pending).
33 For the Court’s reply to mat invitation, see United Nations, Report of the International Court of Justice, 1 August 1997—31 July 1998, 53 GAOR Supp. No. 4 (Doc. A/53/4), Annex I (1998).
34 For that resolution, see International Court of Justice, Charter of the United Nations, Statute and Rules of Court and Other Documents (5th ed. 1989), reprinted in Shabtai Rosenne, Documents on the International Court of Justice/Documents Relatifs à la Cour internationale de Justice 441 (1991).
35 Cf. John Norton Moore, Enhancing Compliance with International Law, 39 Va. J. Int’l L. 881 (1999).
36 In this period two conferences were convened by the League of Nations, in 1926 and in 1929, to examine certain aspects of the Court’s affairs. Those Conferences are only of historic interest today. The affairs of the International Court of Justice have not been the subject of diplomatic examination since the San Francisco Conference of 1945, when the United Nations was established.
37 Three important collective works are useful for this purpose: British Institute of International and Comparative Law, Report of the Study Group on the International Court of Justice, Efficiency of Procedures and Working Methods, first published as a supplement to the January 1996 issue of the International and Comparative Law Quarterly, and republished, with additions, as D. W. Bowett et al., The International Court of Justice: Process, Practice and Procedure (J. P. Gardner & Chanaka Wickremasinghe eds., 1997); Increasing the Effectiveness of the International Court of Justice: Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (C. Peck & Roy S. Lee eds., 1997); Francisco Orrego Vicuña & Christopher Pinto, The Peaceful Settlement of Disputes: Prospects for the Twenty-first Century (1999) (preliminary report and revised report) <> (presenting a long series of comments by different governments and individuals, prepared in connection with the celebrations of the Centennial on the First International Peace Conference of 1899, listed in the appendix to UN Doc. A/54/381 (September 21, 1999)).
38 By Article 50 of the Statute, the Court may at any time entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.
39 For those Rules, see International Tribunal for the Law of the Sea, Basic Texts/Textes de Base 1998 at 15. In many instances those Rules copy the corresponding Rule of the International Court, differing only where the Statute of itlos differs from the Statute of the International Court of Justice. In fact, those Rules in some respects fail to learn from the consequences that have followed in the International Court from new provisions introduced in 1978—for instance, in connection with preliminary objections (Rules of the Tribunal, Article 97). Other related documents are the Resolution on the Internal Judicial Practice of the Tribunal (at p. 71) and the Guidelines concerning the Preparation and Presentation of Cases before the Tribunal (at p. 78). For my preliminary observations on those Rules and their practical application, see Shabtai Rosenne, International Tribunal for the Law of the Sea: 1996–97 Survey, 13 Int’l J. Marine & Coastal L. 487, 501 (1998). A striking feature of the cases heard by that Tribunal in the initial period of 1997–1999 is the frequency which witnesses and experts have been called to testify and be subject to cross-examination and examination on the voir dire—something not really desirable or necessary in any international court or tribunal.
40 Cf. the debates in the General Assembly leading to Resolutions 171 (II), Nov. 14, 1947; 2625 (XXV), Oct. 24, 1970; 3232 (XXIX), Nov. 12, 1974; and 37/10, Nov. 15, 1982.
41 United Nations, supra note 33.
42 The suggestion for this resolution came from the Special Committee on the Charter of the United Nations and on Strengthening the Role of the Organization, following a debate on practical ways and means of strengthening the International Court of Justice while respecting its authority and independence. See its report, GAOR, 54th Sess., Supp. No. 33 (A/54/33), paras. 117–22 (1999).
43 At a press conference on February 15, 2000, the newly elected president of the Court, Judge Guillaume, announced further improvements in the Court’s methods of work. These improvements include attempts to: reduce the large amount of documentation that parties submit to the Court; ensure that hearings do not last longer than necessary; and shorten whenever possible the time that the Court spends on its own deliberations. He also indicated that the Rules Committee (of which Judge Fleischhauer is chairman, replacing President Guillaume) will make proposals in the near future as regards witness evidence, counterclaims, and preliminary objections. Press Communique 2000/5 (February 16, 2000).