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The International Court of Justice: Cruising Ahead at 70

  • HUGH THIRLWAY

Abstract

The International Court of Justice (ICJ or the Court) continues to hear and determine the contentious cases submitted to it, keeping up what has been referred to as an acceptable ‘cruising pace’. After recalling the extent to which the demands on the Court have increased, and the practical means available to it have been greatly extended, the author (following up an earlier article on the subject in the Netherlands International Law Review) examines the Court's recent case-law (decisions given since 2010) to show how each decision, besides furthering settlement of the specific dispute, has contributed to the enlargement or development of international law. Attention is concentrated, however, on particular questions: the role of peremptory norms (jus cogens); interpretation of treaties; questions of jurisdiction (including the problem of the existence of a justiciable dispute in each case); and certain incidental proceedings contemplated by the Court's Statute and Rules, namely provisional measures and intervention under Articles 62 and 63 of the Statute.

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1 Subsequently published in (2010) 57(3) Netherlands International Law Review 347.

2 The papers submitted are to be published shortly in the Journal of International Dispute Settlement.

3 These are nowadays rarely made by the President under the relevant provisions of the Statute and Rules, as the full Court is now assembled for far more of the year than used to be the case.

4 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order of 8 March 2011, [2011] ICJ Rep. 6; Joinder of Proceedings, Order of 17 April 2013, [2013] ICJ Rep. 166; Provisional Measures, Order of 16 July 2013, [2013] ICJ Rep. 230; Provisional Measures, Order of 22 November 2013, [2013] ICJ Rep. 354; Merits, Judgment of 16 December 2015 (not yet reported).

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1 April 2011, [2011] ICJ Rep. 70.

Territorial and Maritime Dispute (Nicaragua v. Colombia), Application of Costa Rica for Permission to Intervene, Judgment of 4 May 2011, [2011] ICJ Rep. 348; Application of Honduras for Permission to Intervene, Judgment of 4 May 2011, [2011] ICJ Rep. 420; Merits, Judgment of 19 November 2012, [2012] ICJ Rep. 624.

Jurisdictional Immunities of the State (Germany v. Italy), Application of the Hellenic Republic for Permission to Intervene, Order of 4 July 2011, [2011] ICJ Rep. 494; Merits, Judgment of 3 February 2012, [2012] ICJ Rep. 99.

Request for the Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, [2011] ICJ Rep. 537; Merits, Judgment of 11 November 2013, [2013] ICJ Rep. 281.

Application of the Interim Accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v. Greece), Judgment of 5 December 2011, [2011] ICJ Rep. 644.

Judgment No. 2867 of the Administrative Tribunal of the ILO upon a complaint against IFAD, Advisory Opinion of 1 February 2012, [2012] ICJ Rep. 10.

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment of 19 June 2012, [2012] ICJ Rep. 324.

Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Merits, Judgment of 20 July 2012, [2012] ICJ Rep. 422.

Whaling in the Antarctic (Australia v. Japan), Intervention of New Zealand, Order of 6 February 2013, [2013] ICJ Rep. 3; Merits, Judgment of 31 March 2014, [2014] ICJ Rep. 226.

Frontier Dispute (Burkina Faso/Niger), Judgment of 16 April 2013, [2013] ICJ Rep. 44.

Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Joinder of Proceedings, Order of 17 April 2013, [2013] ICJ Rep. 184; Merits, Judgment of 16 December 2015 (not yet reported).

Maritime Dispute (Peru v. Chile), Judgment of 27 January 2014, [2014] ICJ Rep. 3.

Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia), Provisional Measures, Order of 3 March 2014, [2014] ICJ Rep. 147; Modification of Provisional Measures, Order of 22 April 2015 (not yet reported); Removal from List, Order of 11 June 2015 (not yet reported).

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment of 3 February 2015 (not yet reported).

Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objections, Judgment of 24 September 2015 (not yet reported).

Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016 (not yet reported).

Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016 (not yet reported).

5 A. Meron, ‘Les methods de travail de la Cour’, in Proceedings of the ICJ 70th Anniversary Seminar (2016) Journal of International Dispute Settlement (forthcoming), para. 4 (translation by ICJ Registry). There has been no request for an advisory opinion of the Court since 2010; any advisory proceedings of the scale of the Namibia case or the Palestine Wall case could still greatly complicate the smooth processing of contentious cases.

6 Thanks, in a considerable degree, to the direction of Dame Rosalyn Higgins as President, 2006–2009.

7 Since the seminar was held, no less than three new cases have been instituted, which may mean that the cruising pace will have to be stepped up if the Court is to stay ahead.

8 Cassese, A., ‘The International Court of Justice: It is High Time to Restyle the Respected Old Lady’, in Cassese, A. (ed.), Realizing Utopia: The Future of International Law (2012), 239 ; but see also the response of Scobbie, I., ‘“All Right, Mr. de Mille, I'm ready for my close-up”: Some Critical Reflections on Professor Cassese's “The International Court of Justice: It Is High Time to Restyle the Respected Old Lady”’, (2012) 23 EJIL 1071 .

9 A.M. Weisburd, Failings of the International Court of Justice (2016).

10 Ibid., at 4.

11 Separate or dissenting opinions of great, sometime immense, length are also probably more frequent at the present time.

12 For a slight, and (it is hoped) discreet partial lifting of the veil, see Thirlway, H., ‘The Drafting of ICJ Decisions: Some Personal Recollections and Observations’, (2006) 5 Chinese Journal of International Law 15 .

13 It would be a courageous reader who immediately sat down to tackle the decision and all the opinions, including some recent examples of enormous length and sometimes of doubtful relevance.

14 For contrasting and welcome brevity in this regard, see Maritime Dispute (Peru v. Chile), supra note 4, at 16, paras. 22–3.

15 As Pascal famously noted in his Lettres provençales, ‘Je n'ai fait celle-ci plus longue que parce que je n'ai pas eu le loisir de la faire plus courte’: Lettre XVI, 4 décembre 1656.

16 This is illustrated by the Court's ruling in the Genocide case brought by Croatia: the Court, seised under the compromissory clause in the Genocide Convention, declined to apply international humanitarian law, or even ‘to rule, in general or abstract terms, on the relationship between the [Genocide] Convention and international humanitarian law’: Application of the Genocide Convention (Croatia v. Serbia), supra note 4, para. 153.

17 Ibid., paras. 128–9.

18 Jurisdiction of the Court and Admissibility of the Application, Judgment of 3 February 2006, [2006] ICJ Rep. 6, at 32, paras. 67–8, citing previous decisions in the same sense. The opposite view was powerfully argued by A. Orakhelashvili, Peremptory Norms in International Law (2006), 499 ff. The present author has explained elsewhere the reasons why he considered that the Court's conclusion was preferable, and the controversy need not be pursued here: H. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (2007), Vol. II, 1317.

19 Joint separate opinion of Judges Higgins, Kooijmans, El Araby, Owada and Simma, [2006] ICJ Rep. 65, at 70, para. 21.

20 An approach espoused doctrinally by, in particular, Orakheklashvili, supra note 18.

21 In its decision in the Questions relating to the Obligation to Prosecute or Extradite case in the same year, the Court declared the jus cogens status of the prohibition of torture, but did not draw any conclusion from this finding (supra note 4, at 457, para. 99).

22 Greek citizens had also been the victims of similar acts, and Greece was authorized to intervene, to a limited extent, in the ICJ proceedings: Jurisdictional Immunities of the State, Application of the Hellenic Republic for Permission to Intervene, supra note 4, at 494.

23 Jurisdictional Immunities of the State, Judgment of 3 February 2012, supra note 4, at 140, para. 92 (emphasis added).

24 The concept is familiar in domestic legal systems: freedom of contract reaches its limit when considerations of ordre public make it necessary to forbid certain agreements, or more commonly simply to deny them the possibility of enforcement through the courts.

25 The seminal work is recognized to be von Verdross, A., ‘Forbidden Treaties in International Law’ (emphasis added), (1937) 31 AJIL 571 ; see also ‘Règles générales du droit de la paix’, (1929) 30 Recueil des Cours 304.

26 See supra note 18. Reference is in fact made in the Italian Rejoinder (para. 4.12, fn. 67) to an article by the same author: ‘State Immunity and Hierarchy of Norms: Why the House of Lords Got It Wrong’, (2007) 18 EJIL 955, at 967.

27 Jurisdictional Immunities of the State, Judgment of 3 February 2012, supra note 4, at 140, para. 93.

28 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, [2009] ICJ Rep. 213, at 237, para. 47; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment of 17 December 2002, [2002] ICJ Rep. 625, at 645–6, paras. 37–8; Kasikili/Sedudu Island (Botswana/Namibia), Judgment of 13 December 1999, [1999] ICJ Rep. 1045, at 1059, para. 18.

29 The Costa Rica v. Nicaragua case (supra note 28), in which the Treaty was referred to, with some litotes, as one that ‘considerably pre-dates the drafting of the said Convention’.

30 Sed quaere: compare Art. 32 of the Vienna Convention and the rule in UK courts that the parliamentary history of an Act of Parliament may not be put in evidence as a guide to its interpretation. For a recent example of the value of reference to drafting history of a convention, as resolving an ambiguity that there was little or no other means to resolve, see Application of the Genocide Convention (Croatia v. Serbia), supra note 4, para. 136.

31 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, [2007] ICJ Rep. 43, at 230, para. 453.

32 The alternative interpretation of the situation, that the meaning of Art. 41 had changed, or ‘evolved’, was not wholly inconceivable: cf. the ruling on the interpretation of Art. 12 of the UN Charter in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 149–50, para. 27.

33 See also Jurisdictional Immunities of the State (Germany v. Italy), Counter claims, Order of 6 July 2010, [2010] ICJ Rep. 310, at 317, para. 18, citing Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment of 10 February 2005, [2005] ICJ Rep. 6, at 25, para. 48.

34 Vienna Convention, Art. 31(1). There may be a preliminary problem in establishing what were the terms, particularly in the case of a ‘tacit agreement’, something that may be found to exist if there is ‘compelling evidence’: see Maritime Dispute, supra note 4, at 37, para. 91, and which may be ‘cemented’ by, or ‘acknowledged in’ a subsequent written agreement (ibid., and at 41, para. 102).

35 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment of 13 December 2007, [2007] ICJ Rep. 832, at 848, para. 39.

36 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, supra note 4, at 126, para. 134; Obligation to Negotiate Access to the Pacific Ocean, supra note 4, at para. 50.

37 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, supra note 4, at 126, para. 134.

38 Frontier Dispute (Burkina Faso/Niger), supra note 4, at 68–73, paras. 31–59, particularly 70, paras. 48–9. The existence of a dispute may also be a condition of the operation of a jurisdictional clause: see the cases mentioned below.

39 At least one of these cases revealed a major defect in the drafting of that instrument: see Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, supra note 4, paras. 33–48. The decisions in these cases and others involving treaty-based jurisdiction, have thus also contributed to the law of treaty interpretation.

40 See Application of the Genocide Convention (Croatia v. Serbia), supra note 4, at para. 77. Some of the events complained of took place as from that date, but the Court had to resolve the issue for the remaining events (the ‘great majority’ – ibid., para. 91.

41 Ibid., para. 95

42 Ibid., para. 96.

43 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea.

44 There is a parallel in respect of Art. 36 jurisdiction in relation to the effect of the withdrawal of a declaration of acceptance of jurisdiction: cf. the Nottebohm case, Judgment of 6 April 1955, [1955] ICJ Rep. 4 (cited by the Court in its decision in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, supra note 4, para. 33).

45 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, supra note 4, para. 48.

46 By analogy with Kompetenz-Kompetenz.

47 See the decision in Obligation to Negotiate Access to the Pacific Ocean, supra note 4, paras. 41–50.

48 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, supra note 4, at 84, para. 29.

49 The wording is that of the dissenters: Joint Dissenting Opinion of President Owada and Judges Simma, Abraham, Donoghue and Judge ad hoc Gaja, [2011] ICJ Rep. 142, at 143.

50 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, supra note 4, paras. 50 and 52.

51 See Pact of Bogotá, Art. II.

52 In which the problem was also raised of discrepancy on the point between the various language-versions of the text: see Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction of the Court and Admissibility of the Application, Judgment of 20 December 1988, [1988] ICJ Rep. 69, at 95, para. 65.

53 It simply noted that it did not need to ‘rehearse’ the parties’ arguments on the point: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, supra note 4, para. 95.

54 Of the 12 cases instituted in the period 2010–2016 (counting the three Marshall Islands cases as a single case), four have involved requests for provisional measures.

55 The present author was strongly of the opinion that the interpretation of the Statute affording the legal basis of the LaGrand decision was questionable (see Thirlway, H., ‘The Law and Procedure of the International Court of Justice 1960–1989: Part Twelve’ (2001) 72 (1) BYIL 37, at 111–26; and ibid., The Law and Practice of the International Court of Justice (2013), Vol. I, 956 ff); but it is clear that a power of the Court to direct measures of interim relief fits well into the international dispute-settlement system of today, even though it might not have done so in 1936, let alone in 1922.

56 Removal from List, Order of 11 June 2015, supra note 4.

57 This could be one view of Mexico's request for interpretation of the decision in Avena, but the end in view – the preservation of a human life – is an excuse, if excuse were needed. See also Leonhardsen, E.M., ‘Trials of Ordeal in the International Court of Justice: Why States Seek Provisional Measures when non-Compliance Is to Be Expected’, (2014) 5 (2) Journal of International Dispute Settlement 306 .

58 Request by Nicaragua for the Indication of Provisional Measures, Order of 13 December 2013, [2013] ICJ Rep. 398, at 399, para. 3.

59 See, for example, Jurisdictional Immunities of the State, supra note 33; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Counter-claims, Order of 18 April 2013, [2013] ICJ Rep. 200, at 209, para. 24.

60 Argentina, the applicant, asked for measures in the context of its claim against Uruguay (Request for the Indication of Provisional Measures, Order of 13 July 2006, [2006] ICJ Rep. 113); Uruguay subsequently asked for measures (Order of 23 January 2007, [2007] ICJ Rep. 3), inasmuch as groups of Argentinian citizens, in protest against the Uruguayan activities complained of in the case, were blockading an international bridge over the river.

61 The US Government showed willingness to implement the measures, but was unable, in the short term, to do so because the matter was in the hands of one of the constituent states, and constitutionally the federal government could not over-rule the decision taken at that level.

62 An interesting question, but one probably unlikely to have practical importance, is the status of an undertaking by a party of the kind given in the cases of Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, [2009] ICJ Rep. 139, at 155, paras. 71–2; and Questions relating to the Seizure and Detention of Certain Documents and Data, Provisional Measures, supra note 4, at 158–9, paras. 43–7. Is it a unilateral declaration creating legal obligations, even outside the procedural framework, on the lines of those given by France in the Nuclear Tests cases?

63 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Request for the Indication of Provisional Measures, Order of 16 July 2008, [2008] ICJ Rep. 311. In the Temple of Preah Vihear (Interpretation) case, the Court noted in its judgment that measures had been indicated, but made no further comment, supra note 4, at 294, para. 29.

64 Certain Activities Carried Out by Nicaragua in the Border Area, Judgment of 16 December 2015, supra note 4, paras. 129 and 139. The Court refused to award Costa Rica its costs in respect of this aspect of the case: ibid. para. 144; and see the powerful dissent of Judges Tomka, Greenwood, Sebutinde and Dugard, ibid.

65 Application of the International Convention on the Elimination of All Forms of Racial Discrimination, supra note 4, at 124, para. 129.

66 There is nevertheless some suggestion in two recent decisions that a state seeking to intervene as a party must show that not merely a legal interest but a right must be potentially affected: see Territorial and Maritime Dispute, Application of Costa Rica for Permission to Intervene, supra note 4, at 358, para. 26; Application of Honduras for Permission to Intervene, supra note 4, at 432, para. 29.

67 Application of Costa Rica for Permission to Intervene, supra note 4, at 372, para. 87; the decision was adopted by 9 votes to 7.

68 See Territorial and Maritime Dispute, Application of Costa Rica for Permission to Intervene, supra note 4, Dissenting opinion Judge Abraham, at 384, para. 4. The judgment in that case lays itself open to this criticism by invoking ‘the sound administration of justice’, a consideration difficult to pin down, and therefore difficult to keep under control.

69 See Statute, Art. 66(2); ‘information’ has never been interpreted as limited to factual information, but includes information as to the state's view of the applicable law.

70 Territorial and Maritime Dispute, Application of Costa Rica for Permission to Intervene, supra note 4, at 363, para. 51. Although the Court does not say so, presumably it would also take note of any information supplied by the parties in response to the attempted intervention.

71 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment of 13 September 1990, [1990] ICJ Rep. 92, at 130, para. 90, quoted in Territorial and Maritime Dispute, Application of Costa Rica for Permission to Intervene, supra note 4, at 360, para. 34 (emphasis added).

72 There was in fact some suggestion that this course had been chosen, in preference to institution of proceedings jointly by Australia and New Zealand, in order that Australia might have a judge ad hoc despite the presence of a regular judge of New Zealand nationality: see Intervention of New Zealand, supra note 4, at 9, para. 21, and the Declaration of Judge Owada, ibid., 11, at 12–13, paras. 4–6.

73 See Gaja, G., ‘A New Way for Submitting Observations on the Construction of Multilateral Treaties to the International Court of Justice’, in Fastenrath, U. et al. (eds.), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (2011), 665 .

74 The change may be regarded as an implementation of Art. 43(3) of the Statute.

75 This phrase, associated with commercial operations during repairs or renovations to the premises, is perhaps particularly appropriate, as the Court has, for a substantial period, been excluded from a major part of its accommodation in the Peace Palace, following the discovery, in the summer of 2014, of the presence of asbestos in the building.

76 See supra note 7 and accompanying text.

* Former Principal Legal Secretary, International Court of Justice; former Professor of International Law, Graduate Institute of International Studies, Geneva.

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The International Court of Justice: Cruising Ahead at 70

  • HUGH THIRLWAY

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