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THE RECOMMENDATIONS MADE BY THE INTERNATIONAL COURT OF JUSTICE: A SCEPTICAL VIEW

Published online by Cambridge University Press:  06 February 2009

Hugh Thirlway
Hugh Thirlway
Affiliation:
Visiting Professor, Universities of Leiden (NL), Bristol, UK and Wuhan (PRC).
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Type
Shorter Articles
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International & Comparative Law Quarterly , Volume 58 , Issue 1 , January 2009 , pp. 151 - 162
Copyright
Copyright © 2009 British Institute of International and Comparative Law

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References

1 ‘The Recommendations made by the International Court of Justice’ ICLQ (2007) 56, 185–198.

2 For example, Legality of the Use of Force (Yugoslavia v Belgium) [1999] ICJ Reports 132 para 19.

3 [2002] ICJ Reports 249–250 para 93.

4 [2005] ICJ Reports 158 para 221.

5 [2006] ICJ Reports para 82. Since the publication of Dr d'Aspremont's article, the Court has issued a further Order in the case, in which it ‘reiterated its call to the parties’ made in the previous Order: [2007] ICJ Reports para 53. In its Order of 15 October 2008 in the case concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, the Court did not make any recommendations of the kind here discussed, but did preface its indication of binding measures with the words ‘the Court, reminding the Parties of their duty to comply with their obligations under’ the Convention. One would not think that either Party, having argued the case at length, and having read the 148 paragraphs of the Order, would need any reminder on this score.

6 ibid 198.

7 ibid.

8 D'Aspremont (n 1) 189.

9 ibid 190.

10 [1950] ICJ Reports 140. Rosenne links this statement with the Permanent Court's attitude in the Free Zones case to the problem of determination of the adaptation of the regime of the Zones: The Law and Practice of the International Court 96, n 1. Contrast the willingness of the Permanent Court, while ‘abstain[ing] from giving an opinion’ on certain points, nevertheless to ‘make certain reservations in regard to them’ (Mavrommatis Palestine Concessions, PCIJ Series A, No. 2 24), the difference being that these were legal questions submitted to the Court by the parties.

11 [1951] ICJ Reports 73.

12 ibid 77.

13 ibid 82.

14 ibid 83.

15 [1950] ICJ Reports 286.

16 [1980] ICJ Reports 17–18, 32.

17 [1980] ICJ Reports 42 para 92.

18 [1980] ICJ Reports 42–43 para 93.

19 Note however that the ILC contemplated not only that the tribunal in question would have the power to indicate provisional measures, but also that an order for such measures would be complied with, which of course was not so in the Tehran case: see Crawford, The International Law Commission's Articles on State Responsibility 124, para (8), sub Article 52.

20 Legality of the Use of Force, Yugoslavia v Belgium [1999] ICJ Reports 132 para 19.

21 The United States of course invoked self-defence and Article 51 of the Charter; but it is doubtful, at least, whether an attack on a diplomatic mission constitutes an ‘armed attack’ for that purpose: see Simma (ed) The Charter of the United Nations: A Commentary, Article 51 MN 26 fn 87.

22 [1979] ICJ Reports 20 para 42.

23 [1991] ICJ Reports 20 para 35.

24 See Dr d'Aspremont's paper 194. Something much more like an invitation to negotiate is found in other cases in separate opinions of individual judges: eg the opinions of Judge Lachs in United States Diplomatic and Consular Staff in Tehran [1980] ICJ Reports 49, and in Military and Paramilitary Activities in and against Nicaragua [1986] ICJ Reports 171–173.

25 ‘… to search for the best technical possibilities which may fully guarantee that ‘the erection of the bridge … will, in conformity with international law, allow for the maintenance of free passage for international shipping’ in the relevant area: [1991] ICJ Reports 23.

26 See Passage through the Great Belt ICJ Pleadings 226 (Mr Lehmann, Denmark).

27 See the separate opinion of Judge Oda [1991] ICJ Reports 26–27; for this reason he was opposed to the inclusion of para 35.

28 [1992] ICJ Reports 400–401 para 66.

29 Which the present writer has been unable to share: see the criticisms in ‘The Law and Procedure of the International Court of Justice, Part Twelve’ 72 BYBIL (2001) 111–126.

30 ‘54. Whereas the Court is deeply concerned by the deplorable human tragedy, loss of life, and enormous suffering in the east of the Democratic Republic of the Congo resulting from the continued fighting there;

55. Whereas the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statute of the Court;

56. Whereas the Court finds it necessary to emphasize that all parties to proceedings before it must act in conformity with their obligations pursuant to the United Nations Charter and other rules of international law; including humanitarian law; whereas the Court cannot in the present case over-emphasize the obligation borne by the Congo and Rwanda to respect the provisions of the Geneva Conventions of 12 August 1949 and of the first Protocol additional to those Conventions, of 8 June 1977, relating to the protection of victims of international armed conflicts, to which instruments both of them are parties; …

93. Whereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law; whereas in particular they are required to fulfil their obligations under the United Nations Charter; whereas the Court cannot but note in this respect that the Security Council has adopted a great number of resolutions concerning the situation in the region … [the Court continues by enumerating these and quoting passages from them]’ [2002] ICJ Reports 240–241, 249–250.

31 ibid 257 para 2.

32 ibid 258 para 4.

33 ibid para 5.

34 ibid para 6.

35 ibid 259 para 9.

36 ‘Whereas, notwithstanding the fact that the Court has not been able to accede to the request by Argentina for the indication of provisional measures ordering the suspension of construction of the mills, the Parties are required to fulfil their obligations under international law; whereas the Court wishes to stress the necessity for Argentina and Uruguay to implement in good faith the consultation and cooperation procedures provided for by the 1975 Statute, with CARU constituting the envisaged forum in this regard; and whereas the Court further encourages both Parties to refrain from any actions which might render more difficult the resolution of the present dispute;’.

37 D'Aspremont (n 1) 192.

38 As was the case in the Diplomatic and Consular Staff case, noted above, where the references to the suffering of the hostages pointed to the existence of the risk of irremediable harm, required for the indication of measures.

39 A technical point that is not without interest is the following. The Statute of the Court provides for majority decisions in the exercise of the Court's judicial function. If the Court, in making a recommendation or expressing concern is not exercising jurisdiction, nor making findings of fact or imputability, it is not discharging the judicial function, and may (it could be argued) only act in this way as an entity if its position is unanimously adopted—which was singularly not the case in the Armed Activities case. There was formerly (and may still be) a convention within the Court that a question could only be put to the parties as a question by the Court, under Article 49 of the Statute and Article 61, para 2, of the Rules of Court, if all participating judges consented. Is there here perhaps a parallel?

40 Cf also the discussion in the case of the Continental Shelf (Libya/Malta) of the question whether the parties to a case may agree to ask for revision or interpretation of a judgment in a manner other than that laid down in the Statute: (n 47). While this article was in the press, the ICJ delivered its judgment on the preliminary objections in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), in which it discussed the wider question of the relationship between consent of the parties to a case and the powers of the Court under its constitutional instrument—a question also examined in the dissenting opinion of Judge Owada in that case.

41 D'Aspremont (n 1) 190.

42 See the discussion in the Advisory Opinion given on the request of the WHO in the case of Legality of the Use by a State of Nuclear Weapons in Armed Conflict [1996-I] ICJ Reports 78–79 para 25. It is here contended (paraphrasing that passage) that a power for the Court to make recommendations ‘could not be deemed a necessary implication’ of the Statute ‘in the light of the purposes assigned to it’ by the States party to the Statute or the Charter.

43 ICTY, Tadič, Appeals Chamber, Decision of 2 October 1995, 43, para 10.

44 [2002] ICJ Reports 258 para 6.

45 Legality of the Use of Force (Yugoslavia v Belgium) [1999] ICJ Reports 143.

46 Military and Paramilitary Activities in and against Nicaragua (Jurisdiction) [1984] ICJ Reports 438 para 102.

47 Para 128 of the Decision of 30 April 1990, UNRIAA, Vol XX 274. It has been suggested that this part of the decision is a novelty, whose value as precedent might be questionable: see Société française de droit international, Colloque du Mans, 1990, Rapport du Professeur Decaux, cited in Charpentier, ‘L'affaire du Rainbow Warrior: la sentence arbitrale du 30 avril 1990’, AFDI XXXVI (1990) 407 fn 19.

48 ibid.

49 In the case of the Continental Shelf (Libya/Malta), a question arose whether the provisions in the Statute giving the Court power to interpret a judgment could be excluded or varied by agreement of the parties. In the event, it proved unnecessary to deal with the issue; but see the interesting comments of Judge Ruda in his separate opinion [1985] ICJ Reports 232–235.

50 In this sense, Scott Davidson in (1991) 40 ICLQ 456.

51 The Law and Practice of the International Court of Justice, 1920–2005, Vol II 574 (§ II.159).

52 [2002] ICJ Reports 271 para 13.

53 For example, in the Legality of the Use of Force cases, the Court emphasized that ‘all parties appearing before it must act in conformity with the United Nations Charter and other rules of international law’ (Yugoslavia v Belgium [1999] ICJ Reports 132 para 19); does that mean that States not so appearing are not under the same duty?