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Review Article - Non-Appearance before the International Court of Justice: Functional and Comparative Analysis. By Jerome B. Elkind. Dordrecht, Boston, Lancaster: Martinus Nijhoff Publishers, 1984. Pp. xiv, 233. Indexes. Dfl.110; $42; £27.95. - Non-appearance before the International Court of Justice. By H. W. A. Thirlway. New York and London: Cambridge University Press, 1985. Pp. 184. Index. $49.50.

Published online by Cambridge University Press:  27 February 2017

Keith Highet
Keith Highet*
Affiliation:
Of the New York and District of Columbia Bars
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Book Reviews and Notes
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American Journal of International Law , Volume 81 , Issue 1 , January 1987 , pp. 237 - 254
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Copyright © American Society of International Law 1987

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References

1 Carroll, L., Alice’s Adventures in Wonderland 74–75 (1867)Google Scholar.

2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26).

3 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27) [hereinafter cited as Nicaragua Merits].

4 Article 53 of the Statute provides that:

  • 1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim.

  • 2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.

5 The problem is further compounded by the fact that—apparently—these two works were originally in concurrence in another way; it is this reviewer’s understanding that the Thirlway book was intended (but was not submitted in time) for consideration by the Institut de Droit International for its award as prize book for 1985, and that the book by Elkind was submitted in time (and did, in fact, receive the award, the James Brown Scott prize: see Elkind at ix–xi; Thirlway at vii).

6 A word should be added concerning the somewhat delayed timing of the present joint book review, which was held until after the Court’s Judgment in the Nicaragua case became available and the handling of Article 53 by that Judgment could be assessed in conjunction with the books, so that their value as permanent contributions to international law scholarship could be addressed as completely as possible.

7 See note 4 supra.

8 Guyomar, G., Le Défaut des Parties à un Différend Devant les juridictions internationales (1960)Google Scholar.

9 See Fitzmaurice, The Problem of the ‘Non-Appearing’ Defendant Government, 51 Brit. Y.B. Int’l L. 89, 105 (1980), cited in Thirlway at 154:

The non-appearance technique is aimed at exactly the same result, namely to reduce to a purely voluntary act what was undertaken as obligatory (or ostensibly so); and it achieved this in so far as it enables—or seems to enable—the non-appearing State to maintain that it is a stranger to the proceedings and to their outcome.

The discussion here concerns a provocative idea suggested by Fitzmaurice (to whom Thirlway’s book is dedicated), which, in Thirlway’s words, is “a parallel between the non-appearance technique and the use of automatic reservations of the so-called ‘Connally’ type in acceptance of a jurisdiction under the optional clause” (Thirlway, p. 154). See also Sinclair, Some Procedural Aspects of Recent International Litigation, 30 Int’l & Comp. L.Q. 338 (1981); and Elias, T. O., The International Court of Justice and Some Contemporary Problems 33–66 (ch. 2, “The International Court of Justice and the non-appearing respondent”) (1983)CrossRefGoogle Scholar.

10 Art. 94, para. 1 of the Charter and Arts. 59 and 60 of the Statute. See comments by this reviewer in Litigation Implications of the U.S. Withdrawal from the Nicaragua Case, 79 AJIL 992, 1000 (1985).

11 This is in spite of the provisions of Article 94, paragraph 2 of the Charter, which have never been used (as such) in the history of the Organization. The argument, of course, runs that if the will of the Security Council cannot be expressed, by reason of a veto of a permanent member or otherwise, then there will not be any binding enforcement measures under Article 94; this lack of certainty therefore constitutes a flaw in the system and the judgments of the Court have no real weight. The obvious response to this argument is: “Compared with what do the judgments lack weight?” Another obvious response is that the consensual predicates for the binding effect of judgments of the Court are present in customary international law as well as in the Charter and the Statute, and that even though the binding quality of such judgments may not always be capable of being given effect, it still exists as a matter of law, and moreover, it exists to a greater degree of certainty than any alternative system yet devised or previously experienced. In a nutshell, a decision such as that in the Nicaragua case will not go away, can only be revised or amended in accordance with the terms of the Statute and has a substantive content quite separate and distinct from its procedural effectiveness.

12 See Nicaragua Merits, 1986 ICJ Rep. at 25, para. 31:

[T]he experience of previous cases in which one party has decided not to appear shows that something more is involved. Though formally absent from the proceedings, the party in question frequently submits to the Court letters and documents, in ways and by means not contemplated by the Rules. The Court has thus to strike a balance. On the one hand, it is valuable for the Court to know the views of both parties in whatever form those views may have been expressed. . . . On the other hand, the Court has to emphasize that the equality of the parties to the dispute must remain the basic principle for the Court. . . . [Therefore the party which declines to appear cannot be permitted to profit from its absence, since this would amount to placing the party appearing at a disadvantage.

Judge Schwebel, in his dissenting opinion, stated that “the practice of the Court demonstrates repeated reliance on irregular communications from States parties to a case and reliance even on documents and statements of a non-appearing State which are not addressed to the Court and which are published after the closure of oral hearings.” Id. at 318, para. 123. (Thirlway considers this problem in depth at pp. 143–51.)

13 The United States publication was not submitted to the Court in any formal manner contemplated by the Statute and Rules of Court, though on 13 September 1985 the United States Information Office in The Hague sent copies to an official of the Registry to be made available to anyone at the Court interested in the subject.

Id. at 44, para. 73. The oral proceedings had begun on the day before (Sept. 12). The publication was later circulated as an official document of the United Nations. Id.

14 “[T]he Court is bound to emphasize that the non-participation of a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of its judgment. Nor does such validity depend upon the acceptance of that judgment by one party.” Id. at 23, para. 27 (italics added).

15 A State which decides not to appear must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute.

Id. at 24, para. 28 (italics added).

16 Id. The United States is a “party” to a decision that says that the United States is party to that decision. A nice question is suggested by the fact that the paragraph cited from Nicaragua specifically “held” that the nonappearing party would remain a party. It is res judicata as to the United States, on just that point; even though it did not form part of the dispositif, it is an essential element of the decision. (Moreover, the matter is made crystal clear by the provisions of the Charter, Art. 94, para. 1, and the Statute, Art. 36, para. 6, and Arts. 59 and 60.)

17 Id. at 23–24, paras. 26-27. See Department of State, Statement on the U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice, reprinted in 24 ILM 246 (1985), and in large part in 79 AJIL 439 (1985); the statement was supported by Observations on the International Court of Justice’s November 26, 1984 Judgment on Jurisdiction and Admissibility in the Case of Nicaragua v. United States of America, 24 ILM 249 (1985) and 79 AJIL 423 (1985); see material cited in note 41 infra.

18 1986 ICJ Rep. at 23–24, para. 27.

19 Indeed, Thirlway does not reach the comparative material in any significant sense until late in his study, and does so in the context of forum prorogatum as being at the heart of the problem: see Thirlway at 155–57.

20 It should be noted here that Elkind was in fact the author of an entire book on the subject of interim protection. J. B. Elkind, Interim Protection: A Functional Approach (1981); see Elkind at 105 n.6, and comment in author’s preface at xiv.

21 Although bedeviled by distracting typographical errors, and sometimes even words that must have been totally dropped by the printer, the form of the book is commendable. Footnotes are where they should be: at the foot of the page. Admittedly, there are far too many cross-references to other parts of the book that refer to chapter and footnote, rather than to page. However, there is an extensive bibliography, a table of cases, a name index and a subject index. By contrast, Thirlway has only a brief bibliography and table of cases, and an irritatingly incomplete and sketchy index.

22 However, the chapter reads as if it were a half-polished first draft rather than a completed whole; the author plunges from discussing one author or topic to another without seeming to pause for breath, and without relating the first to the second. Not only is it tiring; it also gives the impression that this chapter was written in a hurry and without thoughtful revision. Unfortunately, this is the overall impression given by the book as a whole. See, e.g., the very last paragraph of the book, quoted in this review at p. 248.

23 This way lies madness: from the compétence de la compétence we have derived the incompétence de l’incompétence: no doubt a new and threatening (and equally circular) concept.

24 This point, of course, goes beyond the immediate point under discussion in Elkind, namely, at what point might the declaration of adherence to the jurisdiction of the Court under Article 36, paragraph 2, be considered a “nullity”; but it is a point that is indeed raised by the context of the discussion.

25 His book is structured around the actual problem: his 179 pages are divided into 11 short chapters: “The phenomenon”; “The text”; “The concept”; “Is a non-appearing State a ‘party’ to proceedings?”; “Is there a duty to appear in ICJ proceedings?”; “Non-appearance and indication of provisional measures”; “Procedure on non-appearance” (Parts 1 and 2); “Attitudes concomitant with non-appearance”; “Diagnoses and remedies”; and “Conclusions.” It is a logical breakdown.

26 Aegean Sea Continental Shelf (Greece v. Turk.), Interim Protection, 1976 ICJ Rep. 3 (Order of Sept. 11), and 1978 ICJ Rep. 3 (Judgment of Dec. 19).

27 “In the locus classicus for criticism of the non-appearing respondent State, the argument of Professor O’Connell in the Aegean Sea case, it is argued that the failure to appear and present its arguments put both the Court and the applicant party in an embarrassing position” (Thirlway, p. 140).

28 Pp. 121–25, at 124; 1976 ICJ Pleadings (Aegean Sea Continental Shelf, Interim Protection) 317–20, at 319.

29 How relevant it was to the Court’s decision on the merits in the Nicaragua case! The Court in that case did not, however, seem to be notably vexed by the concept of a double burden of this nature, and served itself liberally to a theory of admissions and responsibility by acquiescence or nondenial in order to counter what might otherwise have been a double burden of disproving the acts that would have stimulated the alleged requirement of the United States to use the right of self-defense.

30 The book’s elegant dedication reads: “In memoriam G. G. F., judicis doctissimi.” (Cambridge University Press should have printed the rest of the book in the same type size as the dedication; see note 34 infra.)

31 These suggestions concerned the rights and duties of states vis-à-vis the Court in matters of nonappearance. See note 9 supra; Thirlway at 166–74.

32 See Thirlway at 128; concerning “unofficial and unorthodox methods,” see pp. 142–48.

33 See note 13 supra.

34 Thirlway’s book could, however, also have used more careful editing and writing. Although it is only a formal objection, this reviewer found vexing the author’s habit of referring directly in the text to works cited in the meager bibliography as if they were, e.g., medical or scientific treatises. This method results inevitably in an unintelligible sentence such as: “It is noteworthy that both Favoreu and Eisemann (p. 3 51) quote as authority for their approach the same sentence from the classic study of Guyomar (p. 20, footnote 26; see also the comments of von MANGOLDT (pp. 518-19) on the appeal made to this passage)” (p. 36). A bit less informality and more polished editing would have benefited the book substantially. The above technique also tends to create the unhappy impression of a dialogue within a dialogue, on a level of Byzantine sophistication, which can only be clearly understood by someone who is actually cited in the course of the discussion. (It should also be pointed out that Cambridge University Press is hot on the scent of a truly false economy in publishing, as the type size employed is lamentably small; the book appears to have been set in 9-point Times Roman and the footnotes in 7-point, making anyone over the age of 30 reach for a magnifying glass.)

35 The inevitable impression given is that each of the chapters would have served well for a partial outline of a lecture course, and that they might as well have been cobbled together with the assiduous ministrations of graduate students as research assistants (see the three acknowledgments of assistance at the beginning of the book).

36 The irony intended by the sentence is somewhat lost in the formulation.

37 The Latin statement is given as being from 2 Coke, Institutes 537, and can be translated as: “The judgments are received as statements of the law and, as such, are the truth.”

38 See Lauterpacht, H., The Development of International Law by the International Court (1958)Google Scholar.

39 Supra note 3.

40 See comments by this reviewer, supra note 10, at 994.

41 Not only was this disappearance abrupt and unprecedented; it was also accompanied by a “reservation of rights,” which ominously anticipated the attitude of the United States as being one of disregard for the ultimate decision and for any duty to comply therewith under Article 94, paragraph 1 of the Charter. See “U.S. Withdrawal from Proceedings Initiated by Nicaragua” (reference to U.S. Digest, Ch. 13, §3), 79 AJIL 438, 439 (1985) (quoting U.S. Department of State telegram No. 017113 to the American Embassy at The Hague (Jan. 18, 1985)). The Court in its Judgment took appropriate note of this “reservation of rights” and took pains to deal with it aggressively: see Nicaragua Merits, supra note 3, at 23–24, paras. 26–27.

42 See Thirlway at 154:

This criticism, however, seems to us to go too far. The “Connally” reservation amounts to a premeditated restriction on the future jurisdiction of the Court, designed to enable the State to pick and choose in the future what disputes it will permit the Court to determine; non-appearance is a reaction to what is seen as the threat of judicial settlement in a sensitive area (see Fitzmaurice, pp. 100–2), and not a predetermined policy vis-à-vis the Court.

43 See generally the Department Statement, supra note 17.

44 Corfu Channel (U.K. v. Alb.), Merits, 1949 ICJ Rep. 4, 17 (Judgment of Apr. 9).

45 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Declaration of Intervention of the Republic of El Salvador, 1984 ICJ Rep. 215 (Order of Oct. 4).

46 Pace Judge Schwebel and his heroic efforts to establish what he perceived as some sort of forensic balance in the proceedings.

47 “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”

48 Supra note 44. Corfu Channel’s main contribution to the development of international law was not in the area of the jurisprudence of Article 53 as such, since Albania was present in Court during the merits phase of the proceedings.

49 Corfu Channel (U.K. v. Alb.), Assessment of Amount of Compensation, 1949 ICJ Rep. 244 (Judgment of Dec. 15).

50 Revolution Beyond our Borders, a State Department White Paper. (See note 13 supra.) Judge Schwebel was of the opinion that the Court should have given this document far greater weight: Dissenting Opinion of Judge Schwebel, 1986 ICJ Rep. at 259, 318–20, paras. 122–27 (especially para. 122, at 318); and see also the Dissenting Opinion of Judge Oda, 1986 ICJ Rep. at 212, 240–45, paras. 61-69 (especially id. at 242–43, para. 62).

51 1986 ICJ Rep. at 24–25, paras. 29–30.

52 The Court referred to United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24), in its discussion of the use of judicial notice of facts that are public knowledge, largely conveyed in the form of press information: “although it is perfectly proper that press information should not be treated in itself as evidence for judicial purposes, public knowledge of a fact may nevertheless be established by means of these sources of information, and the Court can attach a certain amount of weight to such public knowledge.” Nicaragua Merits, 1986 ICJ Rep. at 40–41, para. 63. (See generally id. at 38–44, paras. 57–73; and, for examples of varying treatment, see p. 53, para. 92; pp. 65–66, para. 117; and p. 80, para. 146.)

53 Id. at 40–44, paras. 63–72.

54 Id. at 41, paras. 64-65 and 42–43, paras. 69–70.

55 Id. at 41, para. 64 and 42–44, paras. 69–72.

56 Undenied press reports, or uncorrected press reports of official statements, may be accepted, but the Court is cautious when there is no independent verification such as origination, inaction by the government at which the report is aimed or failure to deny important matters forming the substance of the report. (See, e.g., id. at 47, para. 78; 49–50, para. 84; 51–52, paras. 88–89; and 80, para. 146; and see, by contrast, the Dissenting Opinion of Judge Schwebel, id. at 317, para. 120 and 323–27, paras. 135–45.)

57 “[A]s counsel for the United States pointed out, no other State had appeared in response to a request for provisional measures. If a turn of the tide is at hand, the moment is propitious to try to strike a balance” (p. 176, italics added).

58 See, e.g., Statement on the U.S. Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice, Jan. 18, 1985, reprinted in 24 ILM 246 (1985) and in large part in 79 AJIL 439 (1985), and related statements.

59 This is, precisely, what the United States is now in the process of doing.

60 See ICJ Communiqué No. 86/10, July 29, 1986, announcing the filing of two applications by Nicaragua on July 28, 1986, one against Costa Rica and one against Honduras, each entitled “Border and Transborder Armed Actions” (Nicar. v. Costa Rica; Nicar. v. Hond.).

61 Both respondents have appointed agents; Honduras is expected to contest its case on jurisdictional grounds, and Costa Rica has reserved the right to present a counterclaim on the merits: see, respectively, ICJ Communiqué Nos. 86/11 and 86/12, Sept. 3, 1986.

62 See Thirlway at 156–57.

63 And even, as in the Gulf of Maine case, actually selecting the panel of sitting judges.