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The Peace Palace Heats Up: The World Court in Business Again?

Published online by Cambridge University Press:  27 February 2017

Abstract

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Type
Editorial Comments
Copyright
Copyright © American Society of International Law 1991

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References

1 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26).

2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27). See, e.g., Appraisals of the ICJ’s Decision: Nicaragua v. United States (Merits), 81 AJIL 77 (1987).

3 For a discussion of the historical position of the United States toward the Permanent Court and the International Court, see a recent article by the author, Winning and Losing: The Commitment of the United States to the International CourtWhat Was It, What Is It, and Where Has It Gone?, 1 Transnat’l L. & Contemp. Probs. 157 (1991).

4 The International Court of Justice at a Crossroads (L. Damrosch ed. 1987).

5 See Briggs, The International Court of Justice Lives up to Its Name, 81 AJIL 78, 81 (1987). The present author is honored to count himself in Briggs’s company. See, e.g., Highet, Litigation Implications of the U.S. Withdrawal from the Nicaragua Case, 79 AJIL 992 (1985); “You Can Run But You Can’t Hide”Reflections on the U.S. Position in the Nicaragua Case, 27 Va. J. Int’l L. 551 (1987); Nonappearance and Disappearance Before the International Court of Justice (Book Review), 81 AJIL 237 (1987); Evidence, the Court, and the Nicaragua Case, 81 AJIL 1 (1987); and most recently, Highet, supra note 3.

6 UN Charter Art. 92.

7 See the two thoughtful and provocative studies R. Falk, Reviving the World Court (1986), and T. Franck, Judging the World Court (1986).

8 See, e.g., 41 UN SCOR (27 18th mtg.) at 46, UN Doc. S/PV.2718 (1986).

9 Department of State Letter and Statement Concerning Termination of Acceptance of I.C.J. Compulsory Jurisdiction (Oct. 7, 1985), reprinted in 24 ILM 1742 (1985).

10 Territorial Dispute (Libya / Chad): this was an amalgam of application and special agreement. See 1990 ICJ Rep. 149 (Order of Oct. 26).

11 Although it is not necessary to have a special agreement or compromis to arrive at a chambers procedure rather than proceedings before the full Court, this was in fact what happened in the ELSI case. Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ Rep. 15 (Judgment of July 20). ELSI was the only instance of that occurrence, which is essentially an anomaly, for not the least reason that the parties to the case were close friends and allies. See Highet, Evidence, the Chamber, and the ELSI Case, in Fact-Finding Before International Tribunals 33 (R. Lillich ed. 1991).

12 East Timor (Port. v. Austl.); Maritime Boundary (Guinea-Bissau v. Senegal); Passage through the Great Belt (Fin. v. Den.); and the case brought by Qatar against Bahrain concerning sovereignty over islands, shoals, and maritime areas.

13 Application filed on Aug. 16, 1988.

14 Application filed on May 17, 1989.

15 Application filed on May 19, 1989.

16 Application filed on August 23, 1989.

17 1990 ICJ Rep. 149 (Order of Oct. 26).

18 Application filed on February 22, 1991.

19 Application filed on March 12, 1991.

20 Application filed on May 17, 1991.

21 See ICJ Communiqué No. 91/20 (July 8, 1991).

22 The official title has not yet been indicated by the Registry. Application filed on July 8, 1991. See ICJ Communique No. 91/21 (July 8, 1991).

23 See 1986 ICJ Rep. 551 (Order of Oct. 22); and Provisional Measures, 1988 ICJ Rep. 9 (Order of Mar. 31).

24 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), a matter not unlike the 1960 case in the Court concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Hond. v. Nicar.), 1960 ICJ Rep. 192 (Judgment of Nov. 18). (The writer served as counsel for Guinea-Bissau in these proceedings.)

25 Land, Island and Maritime Frontier Dispute (El Salvador I Honduras: Nicaragua Intervening).

26 For critics of the Court, who like to point out without personal experience how light the workload of the Court is, the actual schedule kept by the judges should come as a rude awakening. In addition, keep in mind that the burden is particularly hard on the President and Vice-President, Judges Sir Robert Jennings and Shigeru Oda, who in April served on the full bench in the Guinea-Bissau v. Senegal case and then continued’ to sit as members of the Chamber in the Land, Island and Maritime Frontier Dispute (El Salvador I Honduras: Nicaragua Intervening), to which they had been appointed individual members several years ago under the presidency of José Sette-Camara.

27 South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.), Second Phase, 1966 ICJ Rep. 6 (Judgment of July 18).

28 The author served as counsel for El Salvador during these proceedings.

29 Sovereignty over Certain Frontier Land (Belg./Neth.), 1959 ICJ Rep. 209 (Judgment of June 20); Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, 1962 ICJ Rep. 6 (Judgment of June 15).

30 Frontier Dispute (Burkina Faso/Mali), 1986 ICJ Rep. 554 (Judgment of Dec. 22).

31 Case concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Hond. v. Nicar.), 1960 ICJ Rep. 192 (Judgment of Nov. 18).

32 The Minquiers and Ecrehos case (Fr./UK), 1953 ICJ Rep. 47 (Judgment of Nov. 17).

33 Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ (ser. A/B) No. 53 (Judgment of Apr. 5).

34 Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Judgment of Dec. 18).

35 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Judgments of Feb. 20); Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18 (Judgment of Feb. 24).

36 Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ Rep. 92 (Judgment of Sept. 13).

37 Continental Shelf (Tunisia/Libyan Arabjamahiriya), Application [Malta] to Intervene, 1981 ICJ Rep. 3 (Judgment of Apr. 14).

38 Continental Shelf (Libyan Arab Jamahiriya/Malta), Application [Italy] to Intervene, 1984 ICJ Rep. 3 (Judgment of Mar. 21).

39 See note 22 supra.

40 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 ICJ Rep. 246 (Judgment of Oct. 12).

41 Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ Rep. 3, 18 (Order of Feb. 28) (Shahabuddeen, J., diss. op.). Judge Shahabuddeen is of the view that fully consensual chambers—in which the judges are handpicked by the parties—are inconsistent with the Statute.

42 There has been substantial argument and discussion concerning this point. See, e.g., Schwebel, Ad Hoc Chambers of the International Court of Justice, 81 AJIL 831 (1987); and Oda, Further Thoughts on the Chambers Procedure of the International Court of Justice, 82 AJIL 556 (1988). In particular, however, see the Dissenting Opinion of Judge Shahabuddeen in the Nicaraguan Intervention proceedings, supra note 41, and the extensive discussion of this opinion and the overall subject in E. Lauterpacht, Aspects of the Administration of International Justice 86–95 (1991).

43 It is also to be hoped that the United States would not then bash the Court indirectly by vetoing any enforcement action in the Security Council, an action which, although technically legal, is obviously of dubious propriety. See, for example, the reasoning of the Permanent Court in Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier Between Iraq and Turkey), 1925 PCIJ (ser. B) No. 12, at 32 (Advisory Opinion of Nov. 21), concerning the principle of nemo judex in re sua.

44 1986 ICJ Rep. 554.

45 I.e., provisional measures of protection under Article 41 of the Statute. The Court rejected a Finnish application for provisional measures on July 29, 1991. ICJ Communique No. 91/24 (July 29, 1991).

46 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP. 3 (Judgments of Feb. 20).

47 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ Rep. 253, 457 (Judgments of Dec. 20).

48 Case concerning right of passage over Indian territory (Preliminary Objections), 1957 ICJ Rep. 125 (Judgment of Nov. 26); and (Merits), 1960 ICJ Rep. 6 (Judgment of Apr. 12).

49 See Continental Shelf (Tunisia/Libyan Arabjamahiriya), Application [Malta] to Intervene, 1981 ICJ Rep. 3 (Judgment of Apr. 14); Continental Shelf (Tunisia/Libyan Arabjamahiriya), 1982 ICJ Rep. 18 (Judgment of Feb. 24); Continental Shelf (Libyan Arab Jamahiriya/Malta), Application [Italy] to Intervene, 1984 ICJ Rep. 3 (Judgment of Mar. 21); Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13 (Judgment of June 3); Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arabjamahiriya) (Tunisia v. Libyan Arabjamahiriya), 1985 ICJ Rep. 192 (Judgment of Dec. 10).

50 Anglo-Iranian Oil Co. (UK v. Iran), Interim Protection, 1951 ICJ Rep. 89 (Order of July 5), and Preliminary Objections, 1952 ICJ Rep. 93 (Judgment of July 22); and United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24).

51 1986 ICJ Rep. 554.

52 See E. Lauterpacht, supra note 42, at 19–22.

53 Sofaer, Adjudication in the International Court of Justice: Progress through Realism, 44 A.B.N.Y.C. Rec. 462, 483 (1989) (emphasis added).

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