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The 1972 Revision of the Rules of the International Court of Justice

Published online by Cambridge University Press:  12 February 2016

Shabtai Rosenne
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Extract

The Rules of Court which the International Court of Justice adopted in 1946, on the commencement of its existence, were essentially a reproduction of the Rules of Court adopted by the Permanent Court of International Justice on March 11, 1936 with such alterations as became necessary after the changes incorporated in the new Court's Statute, in comparison with that of the Permanent Court. When the Court adopted those Rules it did so with the intention of undertaking a more thorough revision after more experience of the judicial function had been acquired. Since then, the Court has had the matter under review, but for over twenty years nothing concrete has emerged.

The Court has had a rough passage in this period. This is demonstrated by insufficient judicial business, bitter debates on its role in the United Nations both in connection with advisory opinions and in connection with the inclusion of jurisdictional clauses in multilateral treaties drawn up in United Nations meetings, widespread mistrust of the Court as an institution and of judicial settlement as a mode for the pacific settlement of international disputes, and a general malaise attending everything to do with the Court.

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Articles
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Israel Law Review , Volume 8 , Issue 2 , April 1973 , pp. 197 - 253
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1973

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References

1 P.C.I.J., Ser. D, No. 1 (4th ed.) at 31 (1940).

2 I.C.J., Acts and Documents Concerning the Organization of the Court, (2nd ed., 1947) 54. For an analysis of the changes, see Hudson, , “The Twenty-fourth Year of the World Court” (1946) 40 Am. J., Int'l L. 1.CrossRefGoogle Scholar For a Soviet view see Krylov, , “Reglam'ent M'ezhdunarodnogo Suda Ob'ied'in'ennykh Natsii” Sovietskoys Gosudarstvo i Pravo, No. 10, 38 (1946).Google Scholar

3 (1954–5) I.C.J. Yearbook 34. For details regarding some of the proposals then made, see Jenks, , “Hersch Lauterpacht—The Scholar as Prophet” (1960) 36 British Year Book of International Law 1 at 97.Google Scholar For a useful catalogue, see Golsong, , “Role and Functioning of the International Court of Justice: Proposals Recently Made on the Subject” (1971) 31 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 672.Google Scholar

4 13 UNCIO Documents at 393 (doc. 913 IV/1/74 (1), June 12, 1945).

5 [1962] I.C.J. Rep. 319 and [1966] I.C.J. Rep. 6.

6 [1964] I.C.J. Rep. 6 and [1970] I.C.J. Rep. 3.

7 General Assembly Resolution 2625 (XXV), October 24, 1970. On the Court see in particular the report of the 1966 Special Committee, paras. 210–220, 21 UN GAOR, annexes, agenda item 87, doc. A/6320 (1966); report of the 1967 Special Committee, paras. 384–393, 22 UN GAOR, annexes, agenda item 87, doc. A/6799 (1967); report of the 1970 Special Committee, 25 UN GAOR, Supp. No. 18, paras. 56–7, doc. A/8018 (1970).

8 Report of the International Court of Justice, August 1, 1967—July 31, 1968, 23 UN GAOR, Supp. No. 17, doc. A/7217, paras. 28–34 (1968). This was the first report submitted by the Court to the General Assembly, an innovation the origins of which can be traced to factors similar to those which prompted the Court to undertake a revision of its Rules. A slightly different account of the revision of the Rules appears in (1967–8) 22 I.C.J. Yearbook 87 and in subsequent issues.

9 Loc. cit. supra n. 1 at 62.

10 Report cited supra n. 8, paras. 35–8. For the text of the new resolution, see (1967–8) 22 I.C.J. Yearbook 88. A bilingual edition of the resolution (without bibliographical indications) was published by the Court at the time. Article 30 of the 1946 Rules remains unchanged as Article 33 of the 1972 Rules. See on this internal practice Grieves, , “Reform of the Method of Rendering Decisions in the International Court of Justice” (1970) 64 Am. J. In'l. L. 144CrossRefGoogle Scholar; Hambro, , “The Drafting Procedure of the International Court of Justice” (1968) Festschrift Frangistas 341Google Scholar; Mosler, , “La procédure de la Cour internationale de Justice et de la Cour européenne des Droits de l'Homme: observations à l'occasion de la nouvelle procédure interne de la Cour internationale de Justice” Liber Amicorum Discipulorumque René Cassin (1969) 196.Google Scholar

11 Report of the International Court of Justice, August 1, 1968—July 31, 1969, 24 UN GAOR, Supp. No. 5, para. 34, doc. A/7605 (1969).

12 Report of the International Court of Justice, August 1, 1969—July 31, 1970, 25 UN GAOR, Supp. No. 5, paras. 31–5, doc. A/8005 (1970).

13 (1969–70) 24 I.C.J. Yearbook 114, (1970–1) 25 id., 109.

14 Report of the International Court of Justice, August l, 1970—July 31, 1971, 26 UN GAOR, Supp. No. 5, paras. 34–6, doc. A/8405 (1971).

15 Report of the International Court of Justice, August 1, 1971—July 31, 1972, 27 UN GAOR, Supp. No. 5, paras. 38–41, doc. A/8705 (1972). For the official bilingual text, see Acts and Documents Concerning the Organization of the Court, No. 2 (Sales No. 364) (1972).

16 Communiqué No. 72/5, June 6, 1972. The Background Note IV was subsequently mostly reprinted in (1971–2) 26 I.C.J. Yearbook 3–11.

17 1936 Rules, Article 86. Applied in Pajzs, Csáky, Esterházy, and Losinger cases, Ser. A/B Nos. 66 and 67. See also Hudson, , The Permanent Court of International Justice, 1920–1943 (1943) 300.Google Scholar

18 On May 10, 1972 two contentious cases were pending: Appeal relating to Jurisdiction of the ICAO Council (India v. Pakistan) and Fisheries Jurisdiction (United Kingdom v. Iceland). By September 1, 1972 the Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) case and Review of Administrative Tribunal Judgment 158 advisory opinion had been added. It is thus likely that the 1946 Rules will continue to be applicable for some time to come, unless the parties in those contentious cases, invoking Article 34 of the 1972 Rules (previously Article 31), jointly propose to the Court to apply the new Rules.

19 Changes, limited to renumbered cross-references to other Rules, occur in Articles 38 and 50 (previously 35 and 46), in other respects unamended. These formal changes are not indicated in the Registry's Background Note.

20 25 UN GAOR, agenda item 96 (1970); 26 id., agenda item 90 (1971). The reports of the Sixth Committee on its debates in 1970 and 1971 appear in docs. A/8238 and A/8568 respectively. The written observations of Governments submitted in 1971 appear in docs. A/8382 and Add. 1 through 4 (offset, issued separately from the annex). Further observations, submitted in 1972, are contained in doc. A/8747, but it is not necessary to consider them for the purposes of the present article. It has been indicated that these observations were taken into consideration by the Court in the course of its revision of the Rules. Judge Jiménez de Aréchaga, “The Amendments to the Rules of Procedure of the International Court of Justice”, being the Gilberto Amado Memorial lecture, June 15, 1972 (United Nations, Geneva, 1972). Citations herein are to the text published by the United Nations in Geneva, September 1972 (no further bibliographical indications).

21 21 Order of January 29, 1971, [1971] I.C.J. Rep. 12; advisory opinion of June 21, 1971, [1971] I.C.J. Rep. 16 at 24, paras. 35–41.

22 Doc. A/8382, para. 180, supra n. 20.

23 Gross, Leo, “The International Court of Justice: Consideration of Requirements for Enhancing its Role in the International Legal Order” (1971) 65 Am. J. Int'l L. 253 at 277CrossRefGoogle Scholar and the authorities there cited.

24 Doc. A/8382/Add, 1 at 5, supra n. 20.

25 Treaty of Neuilly, Article 179, case. Ser. A, Nos. 3 and 4 (1924, 1925).

26 14 UNCIO documents at 834.

27 Hyde, J.N., “A Special Chamber of the International Court of Justice: An Alternative to ad hoc Arbitration” (1968) 62 Am. J. In'l L. 439.CrossRefGoogle Scholar

28 Doc. A/CONF.39/C.1/L.355, annex, article 4, reported in A/CONF.39/14, para. 571 (e) (3), United Nations Conference on the Law of Treaties, Official Records, Documents of the Conference, at 190 (A/CONF.39/11/Add.2). The proposal was withdrawn. The representative of the United States, Mr. Wozencraft, explained that this provision had been inserted “in the interests of a prompt decision”. 68th meeting of the Committee of the Whole, id., first session, at 406 (A/CONF.39/11).

29 Doc. A/8238, para. 24, loc. cit., supra n. 20.

30 See comments in doc. A/8382, paras. 127–143 and, on regional tribunals, paras. 144–158. Further comments in doc. A/8382/Add.1 and Add.4. Supra n. 20.

31 Doc. A/8568 paras. 35 (general) and 36 (regional chambers), supra n. 20.

32 The Oxford English Dictionary Supplement defines “expertise” inter alia as “expert…knowledge”. 2 Compact ed., (1971) 3959. Webster defines it as “specialized skill or technical knowledge: expertness in a particular field: know-how”. Third New International Dictionary (1961) 800. The difference between “special knowledge” and “expertise” in this Article is not therefore clear. Confusion is increased when reference is made to the French version (connaissances particulières and aptitudes techniques).

33 Judge Jiménez de Aréchaga, supra n. 20 at 4.

34 (1971) 10 International Legal Materials 1182; (1970–1) 25 I.C.J. Yearbook 114; British Parliamentary Papers, Miscellaneous No. 23 (1971), Cmnd. 4781. Five members of the International Court were chosen, presumably with the concurrence of the Court. For a warning to wait, before drawing conclusions, until the diplomatic history of this case is written, see E. Hambro, “Will the Revised Rules of Court lead to a Greater Willingness on the part of Prospective Clients?”, paper prepared for the Panel on the Future of the International Court of Justice of the American Society of International Law, November 1972, MS p. 5.

35 P.C.I.J., Ser. D No. 2, Add. 3 at 754 and 756 (1st Committee); 932 (Drafting Committee, Article renumbered 24). For discussion, at which this matter was not mentioned, ib., at 517. The Registry later regarded this as a “slight modification”. Ser. D No. 2, Add. 4 at 52. In the Introduction to that publication, issued in 1943, the Registrar of the Permanent Court, Lopéz Oliván, stated that the Drafting Committee formed in 1935 presented no written or oral report, and no explanation therefore appears for a number of changes which it made. Id., at vi. This seems to be one of them.

36 (1954–5) I.C.J. Yearbook 94.

37 [1957] I.C.J. Rep. 125, [1960] id. 6. Elections had been held between these two phases, and although preliminary objections had been joined to the merits, in the second phase the Court sat in its new composition. See (1958–9) I.C.J. Yearbook 108.

38 For example, the President in the first phase of Barcelona Traction, Sir Percy Spender, ceased to be a member of the Court before the second phase, and did not take any part in that case after he had ceased to be a member of the Court. The President in the preliminary objection phase of South West Africa, although still a member of the Court, did not act as President in the second phase. Initially, e.g., in Corfu Channel, the Court's practice was otherwise.

39 This resolution was applied for the first time in the deliberations in Continental Shelf. [1969] I.C.J. Rep. 3. It has been favourably commented upon by one of the judges ad hoc in that case. Mosler, supra n. 10.

40 Hudson, op. cit. supra n. 17 at 299. The question has not arisen in the present Court. But cf., 2 Rosenne, , The Law and Practice of the International Court (1965) 830.Google Scholar

41 For these interpretations, which were not challenged, and indeed were hardly a matter for discussion, see P.C.I.J., Ser. D No. 2 at 75 (President Loder, 1925) and ib., Add. 2 at 95 (President Huber, 1926). The language of Article 41 of the 1946 Rules is virtually identical with the draft prepared in 1926 by the Registrar (Hammarskjöld) as draft article 39, on the basis of practice and discussions in the Permanent Court.

42 [1951] I.C.J. Rep. 4 at 6 and 71 at 73. This was the third phase in a case which during the previous year had been fully argued. The Court's decision follows similar decisions by the Permanent Court in Lighthouses, on the basis of the special agreement, when nevertheless the right proprio motu to invite the parties to continue the written pleadings was reserved. P.C.I.J., Ser. C, No. 74 at 435, Ser. A/B, No. 62, 4 at 6. Similarly in Lighthouse in Crete and Samos, Ser. A/B, No. 71, 94 at 96.

43 [1951] I.C.J. Rep. 8 at 9.

44 [1952] ib., 28 at 45.

45 [1968] ib. 13 at 14. Earlier in the same case the Court exacted an assurance that a date for the filing of the counter-memorial would be adhered to. [1965] ib., 6 at 7.

46 [1970] ib., 3 at 31. See also Judges Sir Gerald Fitzmaurice and Jessup at 113 and 221.

47 [1972] ib., 3. Perusal of the reply and rejoinder in this case, in which much new documentary material was filed by each party, leaves an impression that the insistence of one party on continuing the written proceedings was not misplaced.

48 Following the list in (1970–71) 25 I.C.J. Yearbook 33: Asylum (where the special agreement referred to the “ordinary procedure” of the Court), [1950] I.C.J. Rep. 266 at 268; Minquiers & Ecrehos, [1953] ib., 47 at 50; Frontier Land, [1959] ib., 209 at 211; Continental Shelf, [1959] ib., 3 at 7.

49 Doc. A/8382, para. 338. For summary of the discussions, see A/8238 para. 48 and A/8568 para. 47, supra n. 20.

50 Fisheries, [1951] I.C.J. Rep. 116 at 126; Minquiers & Ecrehos, supra n. 48 at 16; Right of Passage, Merits, [1960] ib., 4 at 28–9; Temple of Preah Vihear, Merits, [1962] ib., 6 at 36.

51 Nottebohm, Second Phase provides a typical illustration of how the matter has been approached in the past. It stresses objective factors justifying the belated production of documents. [1955] ib., at 6.

52 A/8382, para. 341. Supra n. 20.

53 Judge de Aréchaga, supra n. 20 at 10.

54 Judge Jiménez de Aréchaga (ibid.) refers to an unpublished opinion to this effect by Professor Paul Reuter. He also cites observations by Switzerland and Sweden in doc. A/8382, paras. 342, 349 and 450, supra n. 20, and Owada in (1971) 65 Procs. Am. Soc. Int'l L. 274. Incidentally, the question is not new. For an earlier discussion on February 6, 1935, see P.C.I.J., Ser. D No. 2, Add. 3 at 183, when the Permanent Court rejected a proposal by the Co-ordinating Commission (id., at 872) which would have empowered the Court to determine the number of counsel to be heard.

55 Doubts arise whether this explanation is fully consistent with basic principles governing the representation of States in international organizations. In 1971 the International Law Commission reached the conclusion that the freedom of choice of the members of a mission and of a delegation is a basic principle to the effective performance of the functions of the mission or delegation subject only, as regards size, that the mission or delegation shall not exceed what is reasonable, having regard to the function of the Organization or the object, as well as the needs of the particular mission or delegation and the circumstances and conditions in the host State. Draft articles on the representation of States in their relations with international organizations, articles 9, 14, 43 and 46. Report of the International Law Commission on the Work of its twenty-third session, Chapter II, 26 UN GAOR, Supp. No. 10, doc. A/8410/Rev. 1.

56 Corfu Channel, Temple of Preah Vihear and South West Africa. In the first of these experts were twice appointed by the Court for various purposes. [1947–8] I.C.J. Rep. 124, [1949] ib., 237. In the last the Court adopted various decisions regarding the handling of evidence, and rejected a suggestion for an inspection in loco. [1965] ib., 9, [1966] ib., 6 at 9.

57 The International Law Commission in article 82 of its draft articles quoted supra n. 55, after a difficult discussion, used the same expression in a similar context as applying to the corresponding officer of each international organization concerned. [1971] 1 Y.B. lnt'l L. Comm'n 333–5, U.N. doc. A/CN.4/Ser.A/1971, 1136th meeting, paras. 5–45.

58 It is understood that in ICAO Appeal difficulties arose because of the mandatory wording of the 1946 Rules. Judge Jiménez de Aréchaga, loc. cit. at 11. Cf. [1972] I.C.J. Rep. 46 at 48.

59 Nevertheless, considerable delay elapses before the record is published. It would be useful if some method could be found of making the provisional record of the hearings available as rapidly as those of the Security Council. Since the Court is a principal organ of the United Nations, it would be appropriate for its documentation to be distributed through United Nations channels, such as the United Nations Office at Geneva. The introduction of some such system would also make it possible to meet the useful suggestion of the United Kingdom regarding the publishing of the unofficial translations of the written and oral proceedings for the benefit of scholars and practitioners who find it easier to work in one of the official languages of the Court rather than the other. Doc. A/8382/Add. 1, supra n. 20.

60 Doc. A/8238, para. 48. Supra n. 20.

61 Doc. A/8568, para. 47. Supra n. 20.

62 Preliminary objections were raised in the following cases (in those marked with an asterisk the decision on the objection in the preliminary phase disposed of the case): Maurommatis, Polish Upper Silesia, Chorzów Factory, Mavrommatis (Preadaptation),* Memel Statute, Prince von Pless, Pajzs, Csáky, Esterházy, Losinger, Borchgrave, Phosphates in Morocco* Panevezys-Saldutiskis Railway, Electricity Company of Sofia.

63 Preliminary objections were raised in the following cases (in those marked with an asterisk the decision on the objection in the preliminary phase disposed of the case): Corfu Channel, U.S. Nationals in Morocco, Ambatielos, Anglo-Iranian Oil Co.*, Nottebohm, Monetary Gold from Rome*, Norwegian Loans, Right of Passage, Interhandel*, Aerial Incident (Israel v. Bulgaria)*, Aerial Incident (U.S.A. v. Bulgaria), Barcelona Traction, Compagnie du Port, Temple of Preah Vihear, South West Africa, Northern Cameroons*, Barcelona Traction (new application).

64 Nottebohm, Norwegian Loans, South West Africa, Barcelona Traction (new application).

65 Orders of August 18, 1972, made in exceptional circumstances after the respondent had twice denied the jurisdiction in formal communications to the Court, and after orders had been made indicating interim measures of protection. [1972] I.C.J. Rep. 181, 188. For judgments upholding jurisdiction, see [1973] ib., 3, 49, and for the resumption of the proceedings on the merits, ib., 93, 96.

66 Cf. Sir Gerald Fitzmaurice in Northern Cameroons. [1963] I.C.J. Rep. 15 at 100 ff.

67 ICAO Appeal, judgment of August 17, 1972, para. 18. [1972] I.C.J. Rep. at 56. Cf. also Statute, Articles 36, paragraph (6), and 53. In paragraph 13 of that judgment, the Court also recalled that “it must always be satisfied that it has jurisdiction, and must if necessary go into that matter proprio motu”. Ib., at 52.

68 For examples in the present Court see the counter-memorials-cum-preliminary objections filed by the United Kingdom in Ambatielos and Northern Cameroons. Similarly, in the Permanent Court, the pleading by Yugoslavia in Pajzs, Csáky, Esterházy.

69 [1954] I.C.J. Rep. 19 at 29.

70 P.C.I.J. Ser. D No. 2, Add. 3 at 248–60. In Barcelona Traction the present Court had no difficulty in referring to what it called the “drafting records” of the Rules of Court, without specifying whether it was referring to those of the Permanent Court, all of which have been published, or also to those of the 1946 Rules, none of which have been published. Preliminary Objections, [1964] I.C.J. Rep. 6 at 19, 20, 43.

71 See our work supra n. 40, vol. 1 at 451, fn. 4. This view is vigorously contested by Grisel, , Les exceptions d'incompétence et d'irrecevabilité dans la procédure de la Cour internationale de Justice (1968) 23.Google Scholar

72 Ser. A/B, No. 74. In Electricity Company of Sofia the Court was able to reject such an objection after normal preliminary objection procedure. Ser. A/B No. 77.

73 [1957] I.C.J. Rep. 125 at 152. It later rejected it.

74 [1959] ib., 6 at 21 f.

75 Ser. A/B, No. 82.

76 [1964] I.C.J. Rep. 6 at 41.

77 Prince von Pless (cited); Panevezys-Saldutiskis Railway, Ser. A/B, No. 75; Norwegian Loans, [1956] I.C.J. Rep. 73. Note that in these cases the proceedings on the merits, suspended with the filing of the preliminary objections, were not resumed. Contra in Right of Passage, despite the joinder of two objections to the merits. This is not a theoretical matter, because so long as the proceedings on the merits remain suspended the Court cannot consider any new claim presented by the applicant and involving the merits of the dispute. Interhandel, cited, at 20.

78 Judge de Aréchaga, supra n. 20 at 21.

79 Mavrommatis, Ser. A., No. 2 at 29.

80 It is often overlooked that in Barcelona Traction the applicant Government was always agreed that the issue of its locus standi could be decided before the merits. Cf. the remarks of the judge ad hoc, Amand-Ugon, in [1964] I.C.J. Rep. at 165–6. There may be room for criticism of the Court, as composed in 1964, for not having decided that issue, as a question of law, then.

81 Supra n. 25.

82 Administrative Tribunal of ILO, [1956] I.G.J. Rep. 77 at 86.

83 The second sentence, in particular, reflects the procedural decision of the Court in Maritime Committee of IMCO, [1959] ib., 267.

84 24 UN GAOR, annexes, agenda item 93 (1969), 25 ib., agenda item 89 (1970). And see Schwelb, , “The Process of Amending the Statute of the International Court of Justice” (1970) 64 Am. J. Int'l. L. 880.CrossRefGoogle Scholar

85 The 1971 report of the Sixth Committee mentions that some representatives, while recognizing the Court's prerogative to amend its Rules, believed that the Court would wish to take account of the views of Governments and of the General Assembly in doing so, and that the General Assembly, while acknowledging the Court's prerogative, could appropriately make recommendations on the subject. Doc. A/8568, para. 59, supra n. 20. Although the Court did consult with some experts outside its ranks, it did not take counsel, even on a confidential basis, with Governments. Cf., Ambassador Hambro, as representative of Norway, at the 1279th meeting of the Sixth Committee, November 11, 1971, and Judge de Aréchaga, supra n. 20 at 1.