Efficiency of procedures and working methods: Report of the study group established by the british institute of international and comparative law as a contribution to the un decade of international law

International and Comparative Law Quarterly

Volumn 45, Issue s1, 1996, Pages 1-32

  Bowett, D W ^a   Crawford, J ^a   Sinclair, I ^a   Watts, A D ^a  

^a NONE

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EID: 84952664940     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S002058930006005X     Document Type: Article

References (84)

1. The unpopularity of the Court's 1966 judgment in the South-West Africa Cases (Second Phase, Judgment, I.C.J. Rep. 1966,6) is often seen as the cause of its decline at that stage, but this may be seen as too simple an explanation.
2. Against this one must record the fact that, of the permanent members of the Security Council, neither Russia nor China has seen fit to use the Court and, since the Nuclear Tests Case (Judgment, I.C.J. Rep. 1974, 253) France appears to have preferred arbitration.
3. Cases with the UK (Continental Shelf (1977))
4. with Canada (La Bretagne (1986)
5. St Pierre et Miquelon (1992)
6. with New Zealand (The Rainbow Warrior (1990)) have all gone to ad hoc arbitrations.
7. However, France did participate in preliminary hearings held by the Court in Sept. 1995 in response to New Zealand's requests relating to nuclear tests in the Pacific, if only to contest that there was a case to respond to. The US, since the Nicaragua case, has withdrawn its acceptance of the Court's compulsory jurisdiction, but has still continued to appear before the Court on an ad hoc basis (USA v. Italy (E.L.S.I.)
8. Iran v. USA (Aerial Incident)
9. Iran v. USA (Oil Platforms)
10. Libya v. USA (Lockerbie)). The UK alone among the permanent members of the Security Council maintains its acceptance of the Court's compulsory jurisdiction, although subject to various reservations.
11. In 1994, two judgments only were given: Libya/Chad in Jan. (and therefore prepared in 1993) and Qatar/Bahrain, on the issue of jurisdiction only, in July. The current backlog would be worse except for the fact that two cases (Nauru v. Australia and Finland v. Denmark) were settled and withdrawn
12. that a third (Iran v. USA (Aerial Incident)) was withdrawn from the list, in anticipation of settlement. Two judgments have already been given during 1995, as well as the Court's decision on the preliminary issue raised by New Zealand's requests relating to the French nuclear tests in the Pacific, but no others are expected. (Just by way of comparison, in the UK the House of Lords currently disposes of about 80 cases a year.)
13. Whereas in the period 1974–83 no provisional measures applications were made, in the period 1984–93 a total of nine such applications were made (in 1993 two were made in Bosnia v. Yugoslavia (Serbia and Montenegro)
14. in 1992 applications were made in Libya v. UK and Libya v. USA
15. in 1991 one was made in Finland v. Denmark
16. in 1990 one was made in Guinea Bissau v. Senegal
17. in 1988 one was made in Nicaragua v. Honduras
18. in 1986 one was made in Burkina Faso/Mali
19. in 1984 one was made in Nicaragua v. USA. One reason for this increase may be the awareness of the applicant State that a considerable period of time may elapse before judgment is given by the Court.
20. Finland v. Denmark (Passage through the Great Bell). In that case Finland and Denmark agreed to a memorial and counter-memorial because of the urgency, the case was, in the end, withdrawn prior to hearing.
21. Tunisia/Libya Continental Shelf (Revision and Interpretation): in this case there was only a request by Tunisia for revision and interpretation of a previous judgment, and written observations thereon by Libya.
22. Burkina Faso/Mali.
23. Sir Robert Jennings, “New Problems at the International Court of Justice”, in International Law in an Evolving World, Essays in tribute to Eduardo Jiminez de Arechaga (1994), Vol.II, p.l061, at p.l062.
24. For other recent contributions by members of the Court, discussing the Court's working methods, see also Oda, “The International Court of Justice Viewed from the Bench (1973–93)” (1993-vii) 244 Hag. Rec. 13–190
25. Bedjaoui, “La ‘Fabrication’ des Arrêts de la Cour Internationale de Justice”, in Le Droit International au Service de la Paix, de la Justice et du Développement. Mélanges Michel Virally (1991), pp.87–107.
26. El Salvador/Honduras, extending the time for simultaneous counter-memorials by 10 days (1 to 10 Feb. 1989), and for simultaneous replies by over 5 months (1 Aug. 1989 to 12 Jan. 1990).
27. Nicaragua v. Costa Rica, time limit for Nicaragua's memorial extended from 21 July to 10 Aug. 1987, and for Costa Rica's counter-memorial from 21 Apr. to 2 June 1988
28. Nicaragua V. Honduras, time limit for Nicaragua's memorial extended from 19 Sept. to 8 Dec. 1989, and extending sine die the time limit for Honduras's counter-memorial originally set for 19 Feb. 1990 (the case being subsequently discontinued)
29. Iran v. USA (Aerial Incident), time limit for Iran's memorial extended from 12 June to 24 July 1990, and for the US's counter-memorial from 10 Dec. 1990 to 4 Mar. 1991, and then time limit for Iran's observations on US preliminary objections extended from 9 Dec. 1991 to 9 June 1992, and then further extended until 9 Sept. 1992
30. East Timor (Portugal v. Australia), time limit for Australia's rejoinder extended from 1 June to 1 July 1993
31. Iran v. USA (Oil Platforms), time limit for Iran's memorial extended from 31 May to 8 June 1993, and for US counter-memorial from 30 Nov. to 16 Dec. 1993
32. Bosnia-Herzegovina v. Yugoslavia (Genocide), time limit for Bosnia-Herzegovina's memorial extended from 15 Oct. 1993 to 15 Apr. 1994, and for Yugoslavia's counter-memorial from 15 Apr. 1994 to 15 Apr. 1995 (this extension was largely the result of intervening proceedings on requests by both parties for provisional measures).
33. For published comment about the loquacity of counsel see Bedjaoui, Genocide n.10, at pp.94–95.
34. See Bekker (1993) 87 A.J.I.L. 430–432.
35. See idem, pp.429–432.
36. See Guyomar, Commentaire du Règlement de la C.I.J. (1983), pp.85–89
37. ICJ: Acts and Documents concerning the Organisation of the Court, No.5 (1989), p.l65.
38. Oda, ICJ: Acts and Documents concerning the Organisation of the Court n.10, at p. 120
39. Bedjaoui, ICJ: Acts and Documents concerning the Organisation of the Court n.10, at p.97, puts the time at between two and four weeks.
40. Jennings, ICJ: Acts and Documents concerning the Organisation of the Court n.10, at p.l065
41. Oda, ICJ: Acts and Documents concerning the Organisation of the Court, says that 40–50 pages are normal, but the notes can extend to 100 pages or more.
42. Jennings, idem, p.1066.
43. idem.
44. Idem, p.1067.
45. Cf. the “President's Outline of Issues” referred to Idem, para.47, which is initially prepared by the Registry: this may be as far in the suggested direction as it is likely to be acceptable to go.
46. It has been said that this stage may take the members of the Court four or five days, meeting mornings and afternoons: Bedjaoui, Idem n.10, at p.98.
47. Oda, Idem n.10, at p.l21
48. Bedjaoui, idem, p.99, who gives three to six weeks as the kind of period involved.
49. See Bedjaoui, idem, pp.98–103.
50. Oda, idem n.10, at p. 126.
51. Oda, infra n.10, at p.125.
52. But see idem, p.126.
53. Schwebel, “Ad Hoc Chambers of the ICJ” (1987) 81 A.J.I.L. 831
54. Oda, “Further Thoughts on the Chambers Procedure of the ICJ” (1988) 82 A.J.I.L. 556–562.
55. For other comments see also McWhinney, “Special Chambers within the International Court of Justice: The Preliminary, Procedural Aspect of the Gulf of Maine Case” (1985) 12 Syracuse J.Int.L. and Commerce 1
56. also Letter to the Editor in Chief (1988) 82 A.J.I.L. 797
57. Zoller, “La première constitution d'une Chambre spéciale par la Cour Internationale de Justice” (1982) 86 R.G.D.I.P. 305
58. Mosler, “The ad hoc Chambers of the International Court of Justice: Evaluation after Five Years of Experience”, in Dinstein (Ed.), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne (1989)
59. Ostriansky, “Chambers of the International Court of Justice” (1988) 37 I.C.L.Q. 30
60. Bedjaoui, “Universalisme et régionalisme au sein de la Cour Internationale de Justice: la constitution de chambres ‘ad hoc’ ”, in Liber amicorum: Colección de estudios jurídicos en homenaje al Prof. Dr. D. José Pérez Montero (1988).
61. For critical comment see the dissenting opinions of Judges Morozov and El-Khani attached to the Court's order of 20 Jan. 1982 (Constitution of Chamber) in Delimitation of the Maritime Boundaries in the Gulf of Maine Area (Canada v. USA) I.C.J. Rep. 1982, 3, 11 and 12
62. also those of Judges Elias, Tarassov, and Shahabuddeen to the Court's order of 28 Feb. 1990 (Application to intervene) in Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) I.C.J. Rep. 1990, 3 at pp.9, 11 and 18 (respectively).
63. The statistics over the last decade are inconclusive. In Burkina Faso/Mali the application to the Court was made on 14 Oct. 1983, and judgment was delivered on 2 Dec. 1986-some three years and two months later
64. in USA v. Italy (E.L.S.I.) the application made on 6 Feb. 1987 led to a judgment delivered on 20 July 1989, nearly two and a half years later
65. in El Salvador/Honduras (Nicaragua Intervening) the application was made on 11 Dec. 1986, and judgment delivered only some five years and nine months later-but the case was, of course, complicated and lengthened by the intervention of Nicaragua.
66. Oda, Nicaragua Intervening n.10, at pp.60–61.
67. The Court is believed to be “somewhat hesitant” about having to play this appellate role, and divesting the Court of that function is a suggestion already made by a member of the Court: idem, p.100.
68. Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), application by Nicaragua for permission to intervene, judgment of 13 Sept. 1990.
69. This device is used in the system for review of UN administrative tribunal judgments, in disputes arising from the 1946 UN Convention on Privileges and Immunities, the 1986 Vienna Convention on Treaties between States and International Organisations, and the 1988 UN Convention against the Illicit Traffic in Narcotic Drugs. For criticism of the artificiality of this system see Ago (1991) 85 A.J.I.L. 439.
70. See Bowett (1992) 86 A.J.I.L. 342. This was an appeal for organisations themselves to take up some of the issues raised by Judge Ago, as part of their contribution to the UN Decade of International Law.
71. Which took 990 days from request until opinion; see I.C J. Rep. 1987, 18.
72. A mere 15 days in the 1950 advisory opinion on the Competence of the General Assembly for the Admission of a State to the United Nations
73. a mere eight days in the 1988 advisory opinion on the Applicability of the Obligation to Arbitrate under s.21 of the UN HQ Agreement of 26 June 1947.
74. See UN Doc.A/45/1, 16 Sept. 1990, Pt.III, p.7; A/46/1, 16 Sept. 1991; A/47/277, S/24111, 17 June 1992; GA Res.43/51, para.l5, 15 Dec. 1988; I.C.J. Yearbook (1990–1991), pp.204–219.
75. See also speech of President Bedjaoui at the UN Congress on International Law, 14 Mar. 1995: “Les resources offertes par la fonction consultative de la Cour Internationale de Justice, bilan et perspectives.”
76. However, in relation to Finland v. Denmark (Passage through the Great Belt) the memorial and counter-memorial will appear in the Court's Pleadings Series, see Koskin-niemi, “L'Affaire du Passage par le Grand-Belt” (1992) XXXVIII A.F.D.I. 405, 406.
77. The Court has on occasion sought agreement with the parties to do this where the documentation was excessively voluminous: see Bedjaoui, A.F.D.I. n.10, at p.92.
78. Rules, Art.66. The procedure is not often used.
79. Guyomar, Rules n.19, at pp.424–429 cites no instance of its use by the ICJ.
80. Rules, Art.67.
81. And see White, The Use of Experts by International Tribunals (1965), pp.43–49.
82. See Arangio-Ruiz, “Non-Appearance before the ICJ”, Annuaire de l'Institut de D.I. (1991), Vol.64-I, pp.193–376, esp. the sixth considerandum to the Resolution, at p.374.
83. See the dissenting opinion of Judge Schwebel in Case concerning Military and Paramilitary activities etc. I.C.J. Rep. 1986, 321–331.
84. See the separate opinion of Judge Fitzmaurice, referring to the absence of Canada, in the Barcelona Traction Case: Second Phase I.C.J. Rep. 1970, 80, para.28.