The International Court of Justice: Revision of Articles 79 and 80 of the Rules of Court

Leiden Journal of International Law

Volumn 14, Issue 1, 2001, Pages 77-87

  Rosenne, Shabtai ^a  

^a Institute of International Law   (Belgium)

Author keywords

counter claims; International Court of Justice; jurisdiction; preliminary objections; Rules of the International Court of Justice; Statute of the International Court of Justice

Indexed keywords

EID: 78049327508     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156501000048     Document Type: Article

References (15)

1. See ICJ Press Communiqué 2001/1, 12 January 2001, together with the Registry's Background Note of explanation, available on the Court's website www.icj-cij.org. The Registrar's Note to the permanent missions included a bilingual version of the Rules of Court of 1978 as amended on 5 December 2000, the Registry's Background Note VII explaining the amendments, and amended copies of the Note containing recommendations to the parties to new cases. The enacting clause of the Preamble has also been amended consequentially to read: “[a]dopts the amendments to Articles 79 and 80 of the Rules of Court as approved on 5 December 2000. The amended Rules shall come into force on 1 February 2001, and shall as from that date replace the Rules adopted by the Court on 14 April 1978, save in respect of any case submitted to the Court before 1 February 2001, or any phase of such a case, which shall continue to be governed by the Rules in force before that date.” Maintaining the title page of the amended Rules of Court as “Rules of Court (1978),” subtitled “as amended on 5 December 2000,” and with the signatures unchanged from the 1978 Rules, may become a source of confusion, especially for the occasional user and for non-specialist libraries. As no new articles were added to the Rules, it was not necessary to alter the numbering of the Rules as adopted in 1978.
2. For my initial commentary on those Rules, see Sh. Rosenne, Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice (1983).
3. The Court has decided that while a respondent that wishes to submit a preliminary objection is entitled before doing so to be informed as to the nature of the claim by the submission of a memorial by the applicant, it may nevertheless file its objection earlier if it so wishes. Aerial Incident of 3 July 1988 (Iran v. United States), 1989 ICJ Rep. 132.
4. The Saiga No. 2 case (St. Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, 38 ILM 1323 (1999). For my observations on that Judgment, see Sh. Rosenne, The International Tribunal for the Law of the Sea: Survey for 1999, 15 The International Journal of Marine and Coastal Law 443, especially on this point at 452. That follows the practice of the International Court, although the issue has not arisen since the Rule in its present form was first adopted in 1972. For a recent review of the Court's jurisprudence on this aspect, see the cases concerning Questions of Interpretation and Application of the Montreal Convention of 1971 arising out of the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom, Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, 1998 ICJ Rep. 9, at 26, para. 46, and 1998 ICJ Rep. 115, at 131, para. 46.
5. The first instance of this was in the two Fisheries Jurisdiction cases (Federal Republic of Germany v. Iceland; United Kingdom v. Iceland), Orders of 18 August 1972, 1972 ICJ Rep. 181 and 188. Followed in the two Nuclear Tests cases (Australia v. France; New Zealand v. France), Interim Protection, Orders of 22 June 1973, 1973 ICJ Rep. 99 and 135 (the decision being part of the operative clause indicating provisional measures); Trial of Pakistani Prisoners of War case (Pakistan v. India), Interim Protection, Order of 13 July 1973, 1973 ICJ Rep. 328 (in the Order declining to indicate provisional measures); Aegean Sea Continental Shelf case (Greece v. Turkey), Order of 11 September 1976, 1976 ICJ Rep. 3 (in the Order declining to indicate provisional measures). In the provisional measures proceedings of the Hostages case, the Court had found that its jurisdiction was manifest and therefore fixed time-limits for proceedings on the merits, with liberty, however, for Iran, if it appointed an agent, to apply for reconsideration of the time-limit. United States Diplomatic and Consular Staff in Tehran case (United States of America v. Iran), Order of 15 December 1979, 1979 ICJ Rep. 7, at 22.
6. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, 1984 ICJ Rep. 169. In the Order on provisional measures in the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), the Court considered it appropriate to ensure that the decision on the application be reached with all expedition (para. 76). The parties agreed and the President, in his order fixing time-limits, recited that paragraph and arranged for written pleadings that should address both issues of jurisdiction and admissibility and the merits. Orders of 8 and 11 December 2000, available on the Court's website www.icj-cij.org.
7. Border and Transborder Armed Actions cases (Nicaragua v. Costa Rica) (Nicaragua v. Honduras), Order of 21 October 1986, 1986 ICJ Rep. 548 and Order of 22 October 1986, 1986 ICJ Rep. 551; Maritime Delimitation and Territorial Questions between Qatar and Bahrain case (Qatar v. Bahrain), Order of 11 October 1991, 1991 ICJ Rep. 50; Fisheries Jurisdiction case (Spain v. Canada), Order of 2 May 1995, 1995 ICJ Rep. 87.
8. That occurred in the Anglo-Iranian Oil Company case (Iran v. United Kingdom), Preliminary Objection, Judgment of 22 July 1952, 1952 ICJ Rep. 93.
9. See the Fisheries Jurisdiction case, That occurred in the Anglo-Iranian Oil Company case note 7. In its memorial Spain claimed that the order of pleading fixed by the Court left it to “imagine” what arguments Canada might use in support of its position (para. 6). Pleadings at 21. And see the dissenting opinion of Judge ad hoc Torres Bernárdez in the Fisheries Jurisdiction case (Spain v. Canada), Jurisdiction, Judgment of 4 December 1998, 1998 ICJ Rep. 432, at 584. Nevertheless, after the exchange of the memorials and counter-memorials the Court found that it was sufficiently informed at that stage of the contentions of fact and law on which the parties relied with respect to jurisdiction, and that no further written pleadings on that question appeared necessary. See 1996-I ICJ Rep. 56. This did not relate to any question of admissibility, which remained open.
10. See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, 1986 ICJ Rep. 14, at 29, para. 27. That phase of the case was however dominated by the non-participation of the respondent, thus bringing Article 53 of the Statute into play for that phase.
11. See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment of 27 February 1998, 1998 ICJ Rep. 115, at 134, para. 51. Note that para. 8 of the Rules refers only to jurisdiction.
12. See ICJ Yearbook 285 (1997-1998).
13. See S. Rosenne, Counter-Claims in the International Court of Justice Revisited, in C.A. Armas et al. (Ed.), Liber Amicorum ‘In Memoriam’ of Judge José María Ruda 457 (2000). Art. 63 adopted by the present Court in 1946 and its revision as Art. 80 of the Rules of 1978 were evolutive, not structural. Examination of the place of jurisdiction in the new version of Rule 80 has led me to change the views I expressed in earlier writings, and especially in that article, on the meaning of “jurisdiction” in the context of counter-claims.
14. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovina v. Yugoslavia), Counter-Claims, Judgment of 11 July 1996, 1997 ICJ Rep. 243; Oil Platforms case (Islamic Republic of Iran v. United States of America), Counter-Claim, Order 10 March 1998, 1998 ICJ Rep. 190.
15. Land and Maritime Frontier between Cameroon and Nigeria case (Cameroon v. Nigeria), Order of 30 June 1999, 1999 ICJ Rep., forthcoming.