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Limitations Upon the Judicial Function

  • Leo Gross

Extract

The case of the Cameroons v. The United Kingdom concerning the Northern Cameroons, described, in a typical understatement, as “almost unique in the annals of international litigation,” has been terminated by a judgment of the International Court of Justice which appears as well to be “almost unique.” In fact, neither the Court nor any of the separate opinions referred to any precedent.

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1 Case concerning the Northern Cameroons (Cameroon v.United Kingdom) Preliminary Objections. Judgment of Dec. 2, 1963, [1963] I.C.J. Rep. 15. Separate opinion of Judge Sir Gerald Fitzmaurice at 98. For a digest of the judgment see p. 488 below.

2 Ibid,at 38.

3 Ibid,at 24.

4 The text of Art. 19 is as follows: “ I f any dispute whatever should arise between the Administering Authority and another Member of the United Nations relating to the interpretation or application of the provisions of this Agreement, such dispute, if it cannot be settled by negotiation or other means, shall be submitted to the International Court of Justice, provided for in Chapter XIV of the United Nations Charter.

5 [1963] I.C.J. Sep. at 20.

6 Dissenting opinion of Judge Bustamante, ibid,at 173, and separate opinion of Judge “Wellington Koo, ibid, at 42-43.

7 With reference to the examination of jurisdictional questions proprio motu,see Lauterpacht, The Development of International Law by the International Court 347 (1958), and Rosenne, The International Court of Justice 359 (1957).

8 [1963] I.C.J. Rep. at 28.

9 Ibid,at 27.

10 Judgment of Dec. 21, 1962, [1962] I.C.J. Rep. 319, at 342-344; digested in 57 A.J.I.L. 640 (1963).

11 [1963] I.C.J. Rep. at 29.

12 Ibid,at 29-30. On this matter see also Hudson, The Permanent Court of International Justice 1920-42, p. 588, and Rosenne, op.cit. 360.

13 [1963] I.C.J. Rep. at 20 and 26.

14 Ibid,at 32.

15 Ibid,at 33.

16 Ibid,at 33-34. Italics supplied.

17 Ibid.at 35

18 Ibid,at 38.

19 Ibid.The dissenting judges were: Spiropoulos, Koretsky, Badawi, Bustamante y Rivero, and Beb a Don (ad hoe).

20 Ibid,at 37. See also Hudson, op. cit.at 588; Rosenne, op. cit.at 82-83; De Tisscher, Theories et Realites en Droit International Public 361 (1960); 1 Schwarzenberger, International Law 654 (3d ed., 1957); Witenberg, L'Organisation Judiciaire, la Procedure et la Sentence Internationales 321-322 (1937) ; 2 Guggenheim, Traite de Droit International Public 103 (1954).

21 [1963] I.C.J. Rep. 37. The Court quoted at this point the following statement from Judgment No. 11 (Interpretation of Judgments Nos. 7 and 8, The Chorz6w Factory) given by the Permanent Court of International Justice on Dec. 10, 1927, which is the sedes materiae for declaratory judgments: “The Court's Judgment No. 7 is in the nature of a declaratory judgment, the intention of which is to ensure recognition of a situation at law, onee and for all and with binding force as between the Parties; so that the legal position thus established cannot again be called in question insofar as the legal effects ensuing therefrom are concerned.” P.C.I.J., Series A, No. 13, p. 20.

22 [1951] I.C.J. Rep. 78-79, quoted in this judgment at p. 30.

23 [1963] I.C.J. Rep. 37.

24 The French translation, ‘ ‘ mesures visant le passé,'’ is perhaps a clearer expression of the Court's meaning

25 Ibid,at 37-38.

26 See separate opinion of Judge Wellington Koo, ibid,at 61-64; separate opinion of Judge Morelli, ibid,at 132, 140-141; dissenting opinion of Judge Badawi, ibid, at 150-153; dissenting opinion of Judge Bustamante, ibid, at 170-172, 182-183; and dissenting opinion of Judge ad hoc Beb a Don, at 193-196.

27 [1949] I.C.J. Rep. 4 at 26, 36.

28 Ibid,at 35.

29 Bosenne,op. tit.at 83, note 3

30 [1963] I.C.J. Rep. at 195.

31 See dissenting opinions of Judges Badawi, ibid,at 150-151, Bustamante, ibid,at 170 and 180, and Judge ad hocBeb a Don,ibid, at 196.

32 Ibid,at 141.

33 See above, at p. 420.

34 Lauterpacht,op. cit.at 27: “ Infact, it would be a mistake to assume that the function of interpretation of treaties, consisting as it does in ascertaining what was the intention of the parties, is a process divorced from the application and development of customary international law.“

35 See, on this subject, the interesting observations of Judge Bustamante, [1963] I.C.J. Rep. at 176-182.

36 Ibid,at 98, note 2. Italics in the original.

37 Op.cit.at 163. The French text is as follows: “La décision autorise seulement les parties é tirer elles-mfimes les consequences juridiques d?coulant du jugement, a moans que la partie lfisfie n'obtienne un autre jugement comportant cette fois une obligation de prestation.

38 Guggenheim,ibid,at 164.

39 And from the separate opinion of Judge Fitzmaurice, [1963] I.C.J. rep. a t 107.

40 Ibid.

41 See Schwarzenberger, op. cit.at 270.

42 For recent restatements of the doctrine, see Lauterpacht, ‘ ‘ Some Observations on the Problem of ‘Non-Liquet’ and the Completeness of International Law,” in Symbolae Verzijl 196-222 (1958); and Stone, “ N o n Liquet and the Function of Law in the International Community,” 35 British Tear Book of International Law 124-161 (1959).

43 See dissenting opinion of Judge Bustamante, [1963] I.C.J. Rep. at 170.

44 Lauterpacht, The Development of International Law by the International Court 146 (1958). But see Rosenne, op. cit. at 82.

45 De Visseher, Theories et E6alit6s en Droit International Public (1960); Bosenne, op. cit. at 269-271.

46 See Rosenne,op. cit.at 63-64.

47 See Rosenne,op. cit.at 65.

48 See Lauterpacht, The Development of International Law by the International Court at 342 (1958). But see separate opinion of Judge Fitzmaurice, [1963] I.C.J. Bep. at 102, note 4.

49 Separate opinion of Judge Fitzmaurice, ibid,at 103. 1964]

50 Ibid,at 101.

51 Ibid,at 28.

52 Judge Koretsky dissented precisely on this ground. In his opinion, the Court should have dealt with the preliminary objections before going into the merits. Ibid, at 39-40.

53 Ibid,at 38.

54 Ibid,at 30.

55 Judgement (Preliminary Objection) of June 24, 1932. P.C.I.J., Series A/B, No. 47, pp. 243-258, at 258. Italics in the original.

56 Judgment (Merits) of Aug. 11, 1932. P.C.I.J., Series A/B, No. 49, pp. 294-360, at 349, 350.

57 South West Africa Cases (Ethiopia v.South Africa; Liberia v.South Africa) Preliminary Objections, Judgment of Dec. 21, 1962. [1962] I.C.J. Rep. 319, at 466-467.

58 See the separate opinion of Judge Jessup,ibid,at 428.

59 Case concerning the Right of Passage over Indian Territory (Merits), Judgment of April 12, 1960. [1960] I.C.J. Rep. 6, at 45-46.

60 For a trenchant critique of this judgment, see Verzijl, in 7 Netherlands International Law Review 211-242 (1960)

61 De Visscher, op. cit.at 360; Witenberg,op. cit.at 323.

62 South West Africa cases, [1962] I.C.J. Hep. at 425.

63 [1963] I.C.J.Rep. at 153.

64 Ibid,at 172. Italics in the original. In this context note the observation of ad hoc Judge Chagla that the judgment of the Court in the Eight of Passage case “ in the main vindicates the attitude taken up by India in the controversy between herself and Portugal over the question of the right of passage.” [1960] I.C.J. Eep. 6, at 118. Italics added.

65 See De Visscher, op. tit.at 462.

66 See Ibid. at 451, 458-459.

67 “ In one famous case, the judge sought to escape the dilemma by washing his hands, but neither the precedent nor the judge has been deemed worthy of imitation.'’ Jessup, “The Customs Union Advisory Opinion,” 26 A.J.I.L. 105-110 at 105 (1932).

68 [1963] I.C.J. Rep. at 64.

69 I t is suggested that the Court may have erred when it said that the General Assembly “decided on the termination of the Trust,” for nothing in the Charter or the Trusteeship Agreement confers such a unilateral power on the General Assembly. The termination could only result from the joint action of the General Assembly and the Administering Authority. See ibid, at 32, 33, 34 and 36.

70 See p. 415 above.

Limitations Upon the Judicial Function

  • Leo Gross

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