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Accelerating Advisory Opinions: Critique And Proposal

Published online by Cambridge University Press:  28 March 2017

Michael Reisman
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Time is a fundamental component of all social organization. Any component may be manipulated to achieve preferred outcomes, but time is particularly malleable. The concept of linear time, which allows complex sequential and conditional planning and deferred allocation of resources, is a critical part of Western political theory, for it facilitatesthe extension of present control far into the future. A peculiar genius of the law has been the elaboration of this linearism and the manipulation and supervision of different phases of future activity. Manipulation of time ia mundane legal activities has a utility per se in that it permits order and eflBciency in the complex, adversarial, but necessarily collaborative operations of groups and individuals. It is also a prerequisite to the realization of many other procedural privileges; without “enough” time, the privileges may be meaningless and even tavinting.

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 4 , October 1974 , pp. 648 - 671
Copyright
Copyright © American Society of International Law 1974

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References

1 See generally Mumford, L., Technics and Civilization 16, 42, 272 (1934, 1963)Google Scholar.

2 The Kantian notion that time, though not a thing in itself, is an immutable part of the mind is increasingly rejected. The more relativist position, as developed, for example, by von Bertalanffy, is that time schema are a product of varying biological and cultural factors: von Bertalanffy, , An Essay on the Relativity of Categories, 243, 22 Phil, of Science 243 (1945)Google Scholar; reprinted in General Systems 71 (1962). See also Siffre, , Beyond Time (1964)Google Scholar for reports of dramatic experiments in this regard. For a psychoanalytical critique, see Brown, , Life Against Death 272–75 (1959, paperback ed. 1970)Google Scholar.

The most refined and articulated use of the time artifact in law is found in the common law’s development of future interests, on which there is an enormous literature. Social scientists have been much concerned with “total control” situations in which an effective elite may organize social time in order to contribute to securing whatever the elite determines to be major institutional goals. Hence time-budget studies and time and motion studies for industrial settings, timetables for hospitals and prisons and so on. See Roth, J., Timetables: Structuring the Passage of Time in Hospital Treatment and other Careers (1963)Google Scholar. For discussion and literature on time as a pervasive component of social organization, see Goody, J., Time: Social Organization, 16 I.E.S.S. 31–41 (1968)Google Scholar. For a survey of theories of time as factors in social change, see Heirich, M., The Use of Time in the Study of Social Change, Amer. Sociological R. 386 (1954)Google Scholar.

The manipulation of time may also have per se costs in terms of biological and psychological integrity. For some discussion, see the interesting speculative article by Wiegele, , Toward a Psychophysiological Variable in Conflict Theory, 1 Experimental Study of Politics 51 (1971)Google Scholar.

3 Statute Article 29 establishes a chamber of five judges “with a view to the speedy dispatch of business.” Article 41, dealing with interim measures, is premised on the need for speed in certain cases. Article 43 confirms the Court’s authority to fix time limits, and Article 48 confirms its more general procedural authority. Article 52 authorizes the Court to refuse to accept belated evidence, after the time limits it has set have expired. Article 61 limits the Court’s revisory capacity to six months from the date of a new fact becoming known, but in no case more than ten years from the date of judgment.

Rules of Court Articles 36 and 37 (revised 1972) require the Registrar to transmit notice of application “forthwith” and the desire for expedition is found again in Article 38 (“as soon as possible”). Articles 40 and 41 (discussed infra) treat the setting of time limits. Article 53 authorizes the President of the Court to decide postponement only if the parties do not agree on the point. Rule Article 52, dealing with belated adduction of evidence, is somewhat narrower than Statute Article 52, for it seems to self-deny the Court’s statutory power to refuse belated adduction even semble if the parties agree thereto. Article 53 refers to prior notification to the Registry of evidence a party intends to bring (“in sufficient time before the commencement of the oral proceedings”). Article 56 asks that oral statements be “as succinct as possible.” Presumably Articles 53 and 56 are hortatory; no sanctions are designated. Article 69 dealing with interventions by third-parties requires that they be taken no later than the commencement of the oral proceedings. Article 76(4), dealing with Chambers, requires the President to convene it “at the earliest date compatible with requirements of the procedure,” and Article 77 is somewhat more peremptory in regard to the Chamber’s competence to set time limits.

Article 87 of the Rules states that an accelerated procedure will be followed when the requesting agency indicates or the Court concludes that urgency is called for. For doctrinal treatment, see Gross, L., The Time Element in the Contentious Proceedings of the International Court of Justice, 63 AJIL 74 (1969)CrossRefGoogle Scholar; on the more technical problem of computation, see Deák, , Computation of Time in International Law, 20 AJIL 502 (1926)CrossRefGoogle Scholar.

4 See, for example, Rule 6, Federal Practice Rules (1971).

5 The Judicial Committee of the Privy Council is, to all intents and purposes, a contentious appeal instance. The prominent common law exception is the Canadian “Reference” power and its analogues in Canadian provincial legislation. Supreme Court Act, R.S.C. 1952, c. 259, s.55. See generally Strayer, , Judicial Review of Legislation in Canada 189 ff. (1968)Google Scholar. Cf. U.S. Constitution, Article 3(1). For one recent construction, see Sierra Club v. Morton, 92 S.Ct. 1361 (1972). On the broader function of advisory jurisdiction, see Hudson, , Permanent Court of International Justice 523–24 (1942)Google Scholar.

6 See generally Reisman, , Nullity and Revision 157–59 (1971)Google Scholar. Barberis has noted in this regard that both the Permanent Court and the International Court have mentioned opinions and decisions as precedents indistinguishably. See Barberis, J. A., La Jurisprudencia Intemacional como fuente de Derecho de Gentes según la Corte de la Haya, 31 ZaörRV 641, 667 (1971)Google Scholar.

7 See, for example, Fisheries Jurisdiction case, [1972] ICJ Rep. 35. But cf. the Court’s refusal to accelerate procedure to take account of the seasonal requirements of the British fishing industry: Anglo-Norwegian Fisheries Case, Order [1951] ICJ Rep. 9.

8 Jimenéz de Aréchaga, The Amendments to the Rules of Procedure of the International Court of Justice, 67 AJIL 1, 9 (1973).

9 See Art. 26 to 29 of the Statute of the Court and Art. 24 to 27 of the Rules of Court.

10 Note, however, that stipulations prearranged by the parties probably do not bind the International Court of Justice, the preeminent role of the compromis in a system of consensual jurisdiction notwithstanding. Jura novit curia. Thus, in Coleann c. Etat Allemand, 9 R.D.T.A.M. 216, the Mixed Tribunal would not hold itself bound by party preagreement on certain points. In a dissent in the Oscar Chinn case, Judge Schiicking contended that the terms of Statute Article 38 obliged the Court to ignore treaties stipulated by the litigants if the Court knew that the treaties were invalid. [1934] PCIJ ser. A/B No. 63, at 149–50. An analogy to stipulated but incorrect facts would be compelling, although the ICJ might well provide an opinion on preagreed “hypothetical” facts which could be of use to the litigants, for example in establishing ex nihilo a complex treaty regime. Some precedent for this type of activity might be found in the Namibia case itself; there the Court advised all states of the lawfulness of different types of projected behavior which was not yet commenced or consummated in occupied South West Africa: [1971] ICJ Rep. 16, 54–57. In the Monetary Gold case, the International Court seems to have rejected the options which the parties to the Washington Agreement proposed, although the reasons for the Court’s choice in this complex and baffling decision are not clear: [1954] ICJ Rep. 19. On the other hand, in the Minquiers and Ecrehos case, [1953] ICJ Rep. 47, the Court accepted compromissary options which, according to one scholar, obliged the Court to assume that either France or the United Kingdom owned the islets and excluded the possibility of condominium or tes nullius: Roche, , The Minquiers and Ecrehos Case: An Analysis of the Decision of the International Court of Justice 49 ff. (1959)Google Scholar. An important factor in the lawfulness of these preagreements would seem to be the extent to which they infringed rights of third parties. Thus in Minquiers and Ecrehos, compromissary preagreement which precluded a decision confirming that the existence of a condominium would be lawful, for it would affect only the litigants themselves. I would suggest that the same pattern of reasoning be applied to problems of determining lawfulness of time stipulations: Does the subject matter of the case and the effect of acceleration affect only the litigants themselves or does it also affect others, outside of the judicial arena? For other criteria for such decisions, see infra at pp. 17–23. See also Reisman, supra note 6, at 541–54.

11 The Rules, as amended on May 10, 1972, are published in ICJ Acts and Documents, No. 2, and in 67 AJIL 195 ff. (1973). Background material is found in Jimenéz de Aréchaga, supra note 8.

12 However, an arbitral tribunal, it would seem, might under certain circumstances, bar proprio motu such belated adduction despite the agreement thereto by the other litigant. If, for example, the tribunal concluded that the time limit of its compromise could be tolled if it did not close proceedings and undertake judgment, it might bar belated evidence. It is arguable that, in such circumstances, the opposing party’s agreement to adduction of belated evidence is also a tacit extension of the temporal life of the compromis. However, with the lesson of the disruption of the Franco-Mexican Commission of 1924, an arbitrator would be prudent to bar belated adduction unless written agreement to temporal extension were given. 5 U.N.R.I.A.A. 512 (1929) and see Cahlston, , The Process of International Arbitration 47 (1946)Google Scholar.

13 [1949] ICJ Rep. 267.

14 [1950] ICJ Rep. 125; in this case, the Court appears to have been moved by its own administrative exigencies. Among other reasons which the Court cited for its order, it noted the “. . . priority which the Court must give to other cases . . .” ibid.

15 [1950] ICJ Rep. 62.

16 [1958] ICJ Rep. 40. A number of other cases are discussed in 2 Rosenne, , The Law and Practice of the International Court 559–62 (1965)Google Scholar.

17 Case Concerning the Barcelona Traction Light and Power Company, Limited, [1970] ICJ Rep. 4, 30–31.

18 Id. at 113.

19 Id. at 221.

20 Where the effectiveness of an advisory opinion depends upon the acquiescence of a state or states and the organ or agency requesting the opinion does not have the effective power to force the actual targets to comply, the Court encounters the same control considerations it ordinarily faces in contentious jurisdiction: see Reisman, supra note 6, at 277–85. Thus in cases such as Certain Expenses [1962] ICJ Rep. 151 and Namibia [1971] ICJ Rep. 16 the effectiveness of the advisory opinion will depend upon preponderant superpower acquiescence and, in the latter case, acquiescence of South Africa. A comparable analysis can be applied in regard to the Peace Treaties case [1950] ICJ Rep. 65; 221.

21 Statute Article 66 provides:

1. The Registrar shall forthwith give notice of the request for an advisory opinion to all states entitled to appear before the Court.

2. The Registrar shall also, by means of a special and direct communication, notify any state entitled to appear before the Court or international organization considered by the Court, or, should it not be sitting, by the President, as likely to be able to furnish information on the question, that the Court will be prepared to receive, within a time limit to be fixed by the President, written statements, or to hear, at a public sitting to be held for the purpose, oral statements relating to the question.

3. Should any such state entitled to appear before the Court have failed to receive the special communication referred to in paragraph 2 of this Article, such state may express a desire to submit a written statement or to be heard; and the Court will decide.

4. States and organizations having presented written or oral statements or both shall be permitted to comment on the statements made by other states or organizations in the form, to the extent and within the time limits which the Court, or, should it not be sitting, the President, shall decide in each particular case. Accordingly, the Registrar shall in due time communicate any such written statements to states and organizations having submitted similar statements.

22 PCIJ ser. B, No. 4, at 17.

23 The parties may be quite candid about the contentious, bilateral character of the “advisory opinion.” See the speech by Sir Douglas Hogg before the Court, January 9, 1922 PCIJ ser. C, Acts and Documents Relating to Judgments and Advisory Opinions Given by the Court, No. 2, Documents Relating to Advisory Opinion No. 4, Annex 2, at 17. Other transparently “contentious” advisory opinions have included Railway Traffic between Lithuania and Poland, PCIJ ser. A/B, No. 42, at 108; Jaworzina Boundary. PCIJ ser. B, No. 8, at 6.

24 The Court’s actual response to advisory cases in which the guest of honor chose not to attend has varied, but has almost always indicated concern for the absence of consent. In the Status of Eastern Carelia case, the Permanent Court refused to render an opinion because the Soviet Union, in many senses the defendant, refused to consent or attend: [1923] PCIJ ser. B, No. 5 at 7, 27–29. In that case, the Soviet Union was not even a member of the League of Nations and hence could not be deemed to have undertaken either a general or collateral obligation to adjudicate differences. In the contentious Monetary Gold case [1954] ICJ Rep. 24, the Court rendered its decision in a way which, in effect, protected the interests of Albania, which was at that time not a member of the United Nations. The Monetary Gold case arose out of the failure of Albania to pay compensation due to the United Kingdom under the decision of the Court in the Corfu Channel case, [1948] ICJ Rep. 15; [1949] ICJ Rep. 4; [1954] ICJ Rep. 19. The Court had initially based its jurisdiction in the Corfu Channel case on the doctrine of forum prorogatum but in the subsequent proceedings jurisdiction was based on the special agreement concluded by the United Kingdom and Albania.

25 On operational code, see Lettes, N., The Operational Code of the Politburo (1951)Google Scholar and idem. A Study of Bolshevism (1953). In Reisman, & Simson, , Compacts: A Study of Interstate Agreements in the American Federal System 27 Rutgers L. R. 70 (1973)Google Scholar, operational code is used to designate the demands and related expectations actually held by politically relevant strata in an institutional setting. In a hospital setting, for example, where general social morality barred overt discussion of allocation of scarce resources for patients determining who will live, for how long, and who will die, the “operational code” would refer to the unwritten and unstated norms about making these decisions.

26 But cf. Order, Anglo-Norwegian Fisheries, [1951] ICJ Rep. 9.

27 Indeed, the Court itself indicated some awareness of this feature in an Order on a time decision in the Anglo-Norwegian Fisheries case [1951] ICJ Rep. 9.

28 Anglo-Norwegian Fisheries, 4 Pleadings 637, cited in 2 Rosenne, supra note 16, at 561.

29 See Domke, , Israeli-Soviet Oil Arbitration, 53 AJIL 787 (1959)CrossRefGoogle Scholar. The statutes of international arbitral tribunals do not provide for nullifications of their own awards; the Statute of the ICJ is no exception to this practice. Regarding the possibility of nullification of an ICJ judgment see Reisman, supra note 6, at 123–24; Reisman, , Revision of the South West Africa Cases: An Analysis of the Grounds of Nullity in the Decision of July 18, 1966 and Methods of Revision, 7 Va. J. Int’l L. 1, 12–15 (1966)Google Scholar.

30 See, for example, 1 Davis, , Administrative Law Treatise 382, 412 ff. (1958)Google Scholar. Cf. the comment of the Registrar of the ICJ in a cable to Professor Elias, implying that the O.A.U.’s right to submit a written statement in the Namibia case depended on the Court’s independent conclusion that the O.A.U. could furnish information on the question. 2 Pleadings, Namibia 646 and see infra text and notes at note 49.

31 [1971] ICJ Rep. 16.

32 Sec. Council Res. 284 (1970).

33 2 Pleadings, Oral Arguments, Documents, Namibia Case 629.

34 Ibid.

35 [1971] ICJ Rep. 16, 17.

36 Pleadings, op. cit. at 631.

37 Id. at 634.

38 The tables are appended at the conclusion of this article.

39 [1966] ICJ Rep. 8.

40 Pleadings, op. cit. at 633.

41 Id. at 633–34.

42 [1970] ICJ Rep. 362.

43 Id. at 21–27.

44 Pleadings, op. cit. at 642.

45 Id. at 642–43.

46 Id. at 645–46.

47 Id. at 647.

48 Id. at 645.

49 Id. at 646.

50 Ibid.

51 Ibid.

52 Id. at 647–48.

53 Id. at 648–49.

54 The states submitting written statements or letters were Czechoslovakia, Finland, France, Hungary, India, the Netherlands, Nigeria, Pakistan, Poland, South Africa, the United States, and Yugoslavia.

55 Finland, Nigeria and the United Arab Republic sub nom. the Organization of African Unity, the Netherlands, Nigeria, Pakistan, South Africa, Republic of Vietnam, and the United States.

56 1 Pleadings 75–206; C. H. Stavropoulos and D. B. H. Vickers pleaded orally for the Secretary-General.

57 2 Pleadings 88.

58 If we take as a base the Reservations case of 1951 which also dealt with a world constitutive issue and in which there was the same number of participants as in the Namibia case, rough participatory comparisons are as follows: In 1951, 13 out of 60; in 1971, 13 out of 130. In short participation was about halved.

59 See Annex, infra pp. 670–71.

60 See supra note 58.

61 2 Pleadings 648.

62 [1923] PCIJ ser. B, No. 5.

63 As Judge Jiménez de Aréchaga has observed (supra note 8, at 9):

Naturally the requesting organ only expresses its view and its desire as to the urgency of the answer: it remains for the Court to comply with this request if it is feasible to do so, taking into account all of its duties and functions.

64 Saenger, G. and Gilbert, E., Customer Reactions to the Integration of Negro Sales Personnel, 4 Int’l J. Opinion and Attitude Research 57 (1950)Google Scholar and see especially at 69–70. One lesson of these investigations is that in some contexts rapid social change may prove less socially disruptive than slow deliberate change.

65 See generally Schwelb, , The Actio Popularis and International Law, Israel YB. Human Rights 46 (1972)Google Scholar.

66 McDougal, , Lasswell, , and Reisman, , The World Constitutive Process of Authoritative Decision, 19 J. Legal Ed. 253, 403 Google Scholar; reprinted in 1 Black, and Falk, , The Future of the International Legal Order 73 (1969)Google Scholar.

67 See Statute Arts. 66 and 62. See also Puente Egido, José, Consideraciones sobre la Naturaleza y Efectos de las Opiniones Consultivas 31 ZaöRV 730, 807 (1971)Google Scholar where it is argued that principles of natural justice require broadening jus standi in advisory opinions so that all interested states can participate directly in the proceedings.

68 Statute Art. 41. See also Anglo-Iranian Oil Co. case, [1951] ICJ Rep. 89; Iceland Fisheries case [1972] ICJ Rep. 35.

69 The need for an international injunction process goes far beyond the narrow range of activities of the International Court. Given the capacity of contemporary technology to introduce rapid, vast and perhaps irreparable changes in the environment, the need for an international restraining competence is greater than ever.

70 For the reasons motivating the Court to depart from its original purpose of systematic revision of the Rules to a partial amendment, see Nuclear Tests Case (Australia v. France), Request for the Indication of Interim Measures of Protection [1973] ICJ Rep. 99; Jimenéz de Aréchaga, supra note 8, at 1.

71 Id. at 9–11.

72 Id. at 9–10.

73 Statute Article 66 (4) refers to states which have “presented written or oral statements or both.” From this language Judge Jiménez de Aréchaga seems to learn that the Court is authorized to prevent all parties from one of the alternative forms of participation. I would concede that as a general matter of teleological interpretation, the Court may, where appropriate, restrict forms of participation if this does not discriminate in favor of one litigant and contributes to the performance of the major functions of the tribunal. This was the case in the Administrative Tribunals opinion: [1956] ICJ Rep. 77. On the other hand, Article 66(4) plainly refers to an option of the states and agencies appearing in the advisory process and not to an option of the Court. The distinction can be important; it distinguishes the Administrative Tribunals case from the regrettable attenuation of participation which the Court has undertaken in its revision of the Rules. On individuals in advisory proceedings, see Gross, , Participation of Individuals in Advisory Proceedings Before the International Court of Justice: Question of Equality Between the Parties, 52 AJIL 16 (1958)CrossRefGoogle Scholar. And on the real costs of dispensing with oral argument see the dissent of Judge Gros in Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal [1973] ICJ Rep. 265–66.

74 [1956] ICJ Rep. 77, 85–87.

75 GAOR 21st Sess., Supp. No. 16 (A/6316), at 2.

76 Report of the United Nations Council for South West Africa, GAOR 22nd Sess., Annexes, Agenda item 64 at 2. Report of the United Nations Council for Namibia, GAOR 23rd Sess., Agenda item 64, A/7338.

77 Sec. Council Res. 276 (1970), Jan. 30, 1970.

78 Sec. Council Res. 284 (1970), July 29, 1970.

79 The Permanent Court dispensed with oral argument in the interim measures phase of the Belgian-Chinese case, PCIJ ser. A, No. 8, at 6–8 (1927) perhaps because China appointed no agent and at no time made an appearance. It also dispensed with them in the Prince von Pless case, ser. A/B, No. 54, at 150, 152 after waiver of “the right to a hearing” by each side. On the advisory side, there were no oral arguments in the Polish Postal Service case, PCIJ ser. B, No. 11, at 10. In the Jurisdiction of Danzig Courts case, PCIJ ser. B, No. 15, at 7, the Permanent Court insisted on argument despite the disinterest of the “interested states.” In the interim measures phase of Chorzow Factory case, ser. A, No. 12, at 9 (1927), the Court dispensed with observations by Poland, in effect the respondent, because it rejected virtually in limine litis, Germany’s request.

80 For a survey of the literature in this regard, see Gross, S., The United Nations, Self-Determination and the Namibia Question, 82 Yale L.J. 533 (1973)Google Scholar.

81 Of the six regular members of the Court voting for the 1966 judgment, only Judges Fitzmaurice and Gros remained for the 1971 Opinion. For a critique of the judgment and an argument for its nullification on grounds of improper composition, see Reisman, Revision of the South West Africa Cases, supra note 29, at 3.

82 1 Bos. & Pul. 455 (1799); 126 E.R. 1007.

83 Letter from Registrar, Nov. 6, 1970, 2 Pleadings 638.

84 Judgment of the Administrative Tribunal of the International Labor Organization upon Complaints Made Against the UNESCO, [1956] ICJ Rep. 77.

85 This would have been quite feasible in the Namibia case itself. The great bulk of the majority opinion there deals with preliminary questions, subjected to exhaustive legal analysis. It is only in paragraph 117 (page 42 of a 46 page opinion) that the majority states: “Having reached these conclusions, the Court will now address itself to the legal consequences arising for States from the continued presence of South Africa in Namibia. . . .” Thereafter, the dispositif is presented in one and a half pages.

86 See text and notes supra at 18–19.

87 Jimenéz de Aréchaga, supra note 8, at 10. If the context of Judge Guerrero’s comment is taken into account, its import is changed. The discussion revolved about a proposal submitted by Judge Negulesco to permit oral argument in advisory opinions which were about “questions” and not about “disputes.” The proposal was withdrawn and the consensus seems to have been that the rule change would have been ultra vires Statute Article 66, PCIJ, ser. D. Acts and Documents Concerning the Organization of the Court; Third Addendum to No. 2. Elaboration of the Rules of Court of March 11th, 1936.

88 Statute Art. 66, paras. 2 and 4. Cf. Art. 34 (3).

89 In a companion article to this study, [Amici Curiae Jure Gentium: For a Court in Need of Friends (in preparation)], I argue that the major motive for the Court’s attenuation of the privilege of submission of written statements may have been to limit the amount of data which it would have to process in cases and, more generally, to limit “excessive” participation in the case. It is ironic that Judge Jimenéz de Aréchaga in his defense of the revised Rules of Court cited the I.L.O. case as a precedent for dropping written pleadings. In the I.L.O. case, oral argument was dropped to increase participation on equal terms. The Court accepted the written statements of both the I.L.O. and a private party and dispensed with oral argument for it assumed that only the I.L.O. would have been permitted to appear in that phase. The Court might also have permitted the employees and the I.L.O. to argue orally as two representatives of the I.L.O. appearing on behalf of that organization. I believe that attenuation of participation is unwise as a political strategy and ill-considered as a technique for increasing the rationality of judicial decision. Currently the device of the written statement is the most economic way of increasing participation in advisory and ultimately perhaps in contentious jurisdiction.

90 See note and text supra at note 9. Significantly, the revised rules do attempt to expand the role of Chambers. See Jessup, , To Form a More Perfect United Nations, 129 Recueil des Cours 21 (1970)Google Scholar; Hyde, S., A Special Chamber of the International Court of Justice, 62 AJIL 439 (1968)CrossRefGoogle Scholar; Jimenéz de Aréchaga, supra note 8, at 2–4.

* Including Ukrainian SSR and USSR.

** Including Byelorussian SSR, Ukrainian SSR, and USSR.