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Efficiency of Procedures and Working Methods

Report of the Study Group established by the British Institute of International and Comparative Law as a contribution to the UN Decade of International Law

Published online by Cambridge University Press:  30 October 2009

D. W. Bowett ,
J. Crawford ,
I. Sinclair  and
A. D. Watts
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Type
The International Court of Justice
Information
International & Comparative Law Quarterly , Volume 45 , Supplement s1 , January 1996 , pp. 1 - 32
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. The Study Group also had the benefit, informally, of the views of certain others with practical experience of the ICJ. In particular the Group would like to acknowledge the contribution to its work of Mr J. P. Gardner, the Director of the Institute, who attended the Group's meetings and provided much valuable guidance to the Group as it pursued its work.

2. The unpopularity of the Court's 1966 judgment in the South-West Africa Cases (Second Phase, Judgment, I.C J. Rep. 1966,6) is often seen as the cause of its decline at that stage, but this may be seen as too simple an explanation.

3. Against this one must record the fact that, of the permanent members of the Security Council, neither Russia nor China has seen fit to use the Court and, since the Nuclear Tests Case (Judgment, I.C.J. Rep. 1974,253) France appears to have preferred arbitration. Cases with the UK (Continental Shelf (1977)), with Canada (La Bretagne (1986), St Pierre et Miquelon (1992)) and with New Zealand (The Rainbow Warrior (1990)) have all gone to ad hoc arbitrations. However, France did participate in preliminary hearings held by the Court in Sept. 1995 in response to New Zealand's requests relating to nuclear tests in the Pacific, if only to contest that there was a case to respond to. The US, since the Nicaragua case, has withdrawn its acceptance of the Court's compulsory jurisdiction, but has still continued to appear before the Court on an ad hoc basis (USA v. Italy (E.L.S.I.); Iran v. USA (Aerial Incident); Iran v. USA (Oil Platforms); Libya v. USA (Lockerbie)). The UK alone among the permanent members of the Security Council maintains its acceptance of the Court's compulsory jurisdiction, although subject to various reservations.

4. Given the number of cases with which the Court has dealt in recent years concerning maritime boundaries, there must be a question whether the establishment of the Law of the Sea Tribunal will, in time, lead to a reduction in the number of cases being referred to the Court. It is by no means certain that this will happen, and even if it does, it is unlikely to produce noticeable effects for some years yet; and even then, the Court will still remain the international community's principal judicial institution, and the concerns addressed by the Study Group will remain very relevant to securing the most effective functioning of that institution.

5. In 1994, two judgments only were given: Libya/Chad in Jan. (and therefore prepared in 1993) and Qatar/Bahrain, on the issue of jurisdiction only, in July. The current backlog would be worse except for the fact that two cases (Nauru v. Australia and Finland v. Denmark) were settled and withdrawn, and that a third (Iran v. USA (Aerial Incident)) was withdrawn from the list, in anticipation of settlement. Two judgments have already been given during 1995, as well as the Court's decision on the preliminary issue raised by New Zealand's requests relating to the French nuclear tests in the Pacific, but no others are expected. (Just by way of comparison, in the UK the House of Lords currently disposes of about 80 cases a year.)

6. Whereas in the period 1974–83 no provisional measures applications were made, in the period 1984–93 a total of nine such applications were made (in 1993 two were made in Bosnia v. Yugoslavia (Serbia and Montenegro);, in 1992 applications were made in Libya v. UK and Libya v. USA; in 1991 one was made in Finland v. Denmark; in 1990 one was made in Guinea Bissau v. Senegal; in 1988 one was made in Nicaragua v. Honduras; in 1986 one was made in Burkina Faso/Mali; in 1984 one was made in Nicaragua v. USA). One reason for this increase may be the awareness of the applicant State that a considerable period of time may elapse before judgment is given by the Court.

7. Finland v. Denmark (Passage through the Great Belt). In that case Finland and Denmark agreed to a memorial and counter-memorial because of the urgency, the case was, in the end, withdrawn prior to hearing.

8. Tunisia/Libya Continental Shelf (Revision and Interpretation): in this case there was only a request by Tunisia for revision and interpretation of a previous judgment, and written observations thereon by Libya.

9. Burkina Faso/Mali.

10. Sir Robert, Jennings, “New Problems at the International Court of Justice”, in International Law in an Evolving World, Essays in tribute to Eduardo Jiminez de Arechaga (1994), Vol.II, p.1061, at p.1062.Google Scholar For other recent contributions by members of the Court, discussing the Court's working methods, see also Oda, “The International Court of Justice Viewed from the Bench (1973–93)” (1993–vii) 244 Hag. Rec. 13–190; and Bedjaoui, , “La ‘Fabrication’ des Arrêts de la Cour Internationale de Justice”, in Le Droit International au Service de la paix, de la Justice et du Développement. Mélanges Michel Virally (1991), pp.87–107.Google Scholar

11. El Salvador/Honduras, extending the time for simultaneous counter-memorials by 10 days (1 to 10 Feb. 1989), and for simultaneous replies by over 5 months (1 Aug. 1989 to 12 Jan. 1990).

12. Nicaragua v. Costa Rica, time limit for Nicaragua's memorial extended from 21 July to 10 Aug. 1987, and for Costa Rica's counter-memorial from 21 Apr. to 2 June 1988; Nicaragua v. Honduras, time limit for Nicaragua's memorial extended from 19 Sept. to 8 Dec. 1989, and extending sine die the time limit for Honduras's counter-memorial originally set for 19 Feb. 1990 (the case being subsequently discontinued); Iran v. USA (Aerial Incident), time limit for Iran's memorial extended from 12 June to 24 July 1990, and for the US's counter-memorial from 10 Dec. 1990 to 4 Mar. 1991, and then time limit for Iran's observations on US preliminary objections extended from 9 Dec. 1991 to 9 June 1992, and then further extended until 9 Sept. 1992; East Timor (Portugal v. Australia), time limit for Australia's rejoinder extended from 1 June to 1 July 1993; Iran v. USA (Oil Platforms), time limit for Iran's memorial extended from 31 May to 8 June 1993, and for US counter-memorial from 30 Nov. to 16 Dec. 1993; Bosnia-Herzegovina v. Yugoslavia (Genocide), time limit for Bosnia-Herzegovina's memorial extended from 15 Oct. 1993 to 15 Apr. 1994, and for Yugoslavia's counter-memorial from 15 Apr. 1994 to 15 Apr. 1995 (this extension was largely the result of intervening proceedings on requests by both parties for provisional measures).

13. The “international Bar” consists predominantly of English-and French-speaking lawyers, largely because these are the two working languages of the Court.

14. There is of course a risk that if translations were prepared earlier the costs of doing so would be wasted if the case were later settled. But this risk is inherent in any procedure which allows for the discontinuance of proceedings, and may, even under present arrangements, arise if proceedings are discontinued after the close of written proceedings—or indeed at any time before judgment is delivered. Further, discontinuance at such late stages is far less frequent than the risk of delay caused in all other cases by the present arrangements; the risk of “wasted” translation work is the lesser risk, which should thus be taken in order to avoid the risk of delay.

15. For published comment about the loquacity of counsel see Bedjaoui, op. cit. supra n.10, at pp.94–95.Google Scholar

16. See Bekker (1993) 87 A.J.I.L. 430–432.

17. See idem, pp.429–432. These years are therefore cited simply as examples, though they do not appear untypical. The figures over the past decade, as given in the Court's Yearbook for successive Court terms (i.e. 1 Aug.–31 July), are as follows: 1984–5, the Court held 45 public and 36 private sittings, chambers 2 public and 9 private; 1985–6, the Court held 13 public and 49 private sittings, a chamber 14 public and 10 private; 1986–7, the Court held 1 public and 26 private sittings, chambers 1 public and 12 private; 1987–8, the Court held 11 public and 28 private sittings, chambers 2 public and 3 private; 1988–9, the Court held 2 public and 21 private sittings, a chamber 13 public and 13 private; 1989–90, the Court held 7 public and 34 private sittings, a chamber 5 public and 3 private; 1990–1, the Court held 13 public and 20 private sittings, a chamber 51 public and 24 private; 1991–2, the Court held 17 public and 25 private sittings, a chamber 27 private; 1992–3, the Court held 34 public and “a number of” private sittings, a chamber 1 public and 20 private; and in 1993–4, the Court held 11 public and “a number of” private sittings.

18. One possible solution might be to pay judges a basic annual stipend, but with a generous “attendance allowance” for each day spent in The Hague and available for Court business. Cf. Art. 18.1 of Annex VI to the Law of the Sea Convention 1982, relating to the remuneration of members of the International Tribunal for the Law of the Sea. However, the Study Group did not enter into any consideration of questions of the judges' remuneration.

19. See Guyomar, , Commentaire du Règlement de la C.I.J. (1983), pp.85–89; and I.C.J: Acts and Documents concerning the Organisation of the Court, No.5 (1989), p.165.Google Scholar

20. Oda, op. cit. supra n.10, at p. 120; Bedjaoui, op. cit. supra n.10, at p.97, puts the time at between two and four weeks.

21. Jennings, op. cit. supra n.10, at p.1065; Oda, ibid, says that 40–50 pages are normal, but the notes can extend to 100 pages or more.

22. Jennings, idem, p.1066.

23. Ibid.

24. idem, p.1067. Cf. the “President's Outline of Issues” referred to supra, para.47, which is initially prepared by the Registry: this may be as far in the suggested direction as it is likely to be acceptable to go.

25. It has been said that this stage may take the members of the Court four or five days, meeting mornings and afternoons: Bedjaoui, op. cit. supra n.10, at p.98.

26. Oda, op. cit. supra n.10, at p.121; Bedjaoui, idem, p.99, who gives three to six weeks as the kind of period involved.

27. See Bedjaoui, idem, pp.98–103.

28. Oda, op. cit. supra n.10, at p. 126.

29. The statistics should not be treated as entirely scientific; clearly the differences in typefaces etc. will mean that the number of words which constitute a page in the ICJ reports will be different from the number which constitutes a page in the PCIJ reports. No attempt to correct this problem has been made, though, in fact, the number of words per page in the ICJ reports is greater than that for the reports of the PCIJ, so that correction would tend to accentuate the disparity between the length of judgments of the two Courts. In calculating the number of pages, a part of a page is counted as a whole page. A “judgment” for these purposes is what is described by the Court as a judgment rather than an order, e.g. a judgment includes a decision on jurisdiction and admissibility and on an application to intervene, but not a request for provisional measures. It may be worth noting that in respect of orders of the Court there would appear to be more occasions on which the ICJ judges have found it necessary to attach separate opinions than the PCIJ judges.

30. For details see infra Table II. Where more than one judge has joined in a single separate or dissenting opinion, for the purposes of these statistics this has been considered as one dissenting opinion (since the object of the exercise is how concisely, or otherwise, decisions and opinions are expressed). The expression “separate opinion” also includes for these purposes individual opinions and observations and declarations appended by individual judges.

31. Oda, op. cit. supra n.10, at p.125.

32. But see idem, p.126.

33. The question of the number of terms for which a judge may seek re-election is different, for it has no necessary connection with age. But there is at least a case for having two full terms as a maximum. Again, this could be achieved without amendment of the Statute if the General Assembly (and possibly the Security Council as well) were to indicate that this was an opinion which would motivate the Assembly in elections.

34. Thus it is understood that whereas the UN Joint Pension Fund has indexation and currency adjustment provisions, the pension arrangements for judges have neither.

35. Schwebel, “Ad Hoc Chambers of the ICJ” (1987) 81 A.J.I.L. 831; Oda, “Further Thoughts on the Chambers Procedure of the ICJ” (1988) 82 AJ.l.L. 556–562. For other comments see also McWhinney, “Special Chambers within the International Court of Justice: The Preliminary, Procedural Aspect of the Gulf of Maine Case” (1985) 12 Syracuse J.Int.L. and Commerce 1, and also Letter to the Editor in Chief (1988) 82 A.J.I.L. 797; Zoller, “La première constitution d'une Chambre spéciale par la Cour Internationale de Justice” (1982) 86 R.G.D.I.P. 305; Mosler, , “The ad hoc Chambers of the International Court of Justice: Evaluation after Five Years of Experience”, in Dinstein, (Ed.), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (1989); Ostriansky, “Chambers of the International Court of Justice” (1988) 37 I.C.L.Q. 30; Bedjaoui, “Universalisme et régionalisme au sein de la Cour Internationale de Justice: la constitution de chambres ‘ad hoc’”, in Liber amicorum: Colección de estudios juridicos en homenaje al Prof. Dr. D. José Pérez Montero (1988). For critical comment see the dissenting opinions of Judges Morozov and El-Khani attached to the Court's order of 20 Jan. 1982 (Constitution of Chamber) in Delimitation of the Maritime Boundaries in the Gulf of Maine Area (Canada v. USA) I.C.J. Rep. 1982, 3, 11 and 12; and also those of Judges Elias, Tarassov, and Shahabuddeen to the Court's order of 28 Feb. 1990 (Application to intervene) in Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) I.C.J. Rep. 1990, 3 at pp.9, 11 and 18 (respectively).Google Scholar

36. The statistics over the last decade are inconclusive. In Burkina Faso/Mali the application to the Court was made on 14 Oct. 1983, and judgment was delivered on 2 Dec. 1986— some three years and two months later; in USA v. Italy (E.L.S.I.) the application made on 6 Feb. 1987 led to a judgment delivered on 20 July 1989, nearly two and a half years later; and in El Salvador/Honduras (Nicaragua Intervening) the application was made on 11 Dec. 1986, and judgment delivered only some five years and nine months later—but the case was, of course, complicated and lengthened by the intervention of Nicaragua.

37. Oda, op. cit. supra n.10, at pp.60–61.Google Scholar

38. The Court is believed to be “somewhat hesitant” about having to play this appellate role, and divesting the Court of that function is a suggestion already made by a member of the Court: idem, p. 100.

39. Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), application by Nicaragua for permission to intervene, judgment of 13 Sept. 1990.

40. This device is used in the system for review of UN administrative tribunal judgments, in disputes arising from the 1946 UN Convention on Privileges and Immunities, the 1986 Vienna Convention on Treaties between States and International Organisations, and the 1988 UN Convention against the Illicit Traffic in Narcotic Drugs. For criticism of the artificiality of this system see Ago (1991) 85 A.J.I.L. 439.

41. See Bowett (1992) 86 A.J.I.L. 342. This was an appeal for organisations themselves to take up some of the issues raised by Judge Ago, as part of their contribution to the UN Decade of International Law.

42. In four advisory opinions of the ICJ a second round was either ordered or allowed.

43. Which took 990 days from request until opinion; see I.C.J. Rep. 1987, 18.

44. Even discounting the Yakimetz case.

45. The figures in fact show a remarkable consistency—with one or two understandable exceptions—in this regard.

46. A mere 15 days in the 1950 advisory opinion on the Competence of the General Assembly for the Admission of a State to the United Nations;, and a mere eight days in the 1988 advisory opinion on the Applicability of the Obligation to Arbitrate under s.21 of the UN HQ Agreement of 26 June 1947.

47. See UN Doc.A/45/1, 16 Sept. 1990, Pt.III, p.7; A/46/1, 16 Sept. 1991; A/47/277, S/24111, 17 June 1992; GA Res.43/5], para.15, 15 Dec. 1988; I.C.J. Yearbook (1990–91), pp.204–219. See also speech of President Bedjaoui at the UN Congress on International Law, 14 Mar. 1995: “Les resources offertes par la fonction consultative de la Cour Internationale de Justice, bilan et perspectives.“Google Scholar

48. However, in relation to Finland v. Denmark (Passage through the Great Belt) the memorial and counter-memorial will appear in the Court's Pleadings Series, see Koskin-niemi, “L'Affaire du Passage par le Grand-Belt” (1992) XXXVIII A.F.D.I. 405, 406.

49. The Court has on occasion sought agreement with the parties to do this where the documentation was excessively voluminous: see Bedjaoui, op. cit. supra n.10, at p.92.

50. Rules, Art.66. The procedure is not often used. Guyomar, op. cit. supra n.19, at pp.424–429 cites no instance of its use by the ICJ.Google Scholar

51. Rules, Art.67. And see White, , The Use of Experts by International Tribunals (1965), pp.43–49.Google Scholar

52. See Arangio-Ruiz, , “Non-Appearance before the ICJ“, Annuaire de l'Institut de D.I. (1991), Vol.64–I, pp.193–376, esp. the sixth considerandum to the Resolution, at p.374.Google Scholar

53. See the dissenting opinion of Judge Schwebel in Case concerning Military and Paramilitary activities etc. I.C.J. Rep. 1986, 321–331.

54. See the separate opinion of Judge Fitzmaurice, referring to the absence of Canada, in the Barcelona Traction Case: Second Phase I.C.J. Rep. 1970, 80, para.28.