Essays on International Law

Essays on International Law and Practice

Essays on International Law and Practice by

Shabtai Rosenne

LEIDEN • BOSTON 2007

This book is printed on acid-free paper. A Cataloging-in-Publication record for this book is available from the Library of Congress.

ISBN

978 90 04 15536 7

Copyright 2007 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. PRINTED IN THE NETHERLANDS

CONTENTS

Preface .............................................................................................. Acknowledgments ............................................................................ Documentation ................................................................................

ix xi xv

1. Acccepting The Hague Prize – 18 June 2004 ..........................

1

INTERNATIONAL LITIGATION AND COURTS 2. The President of the International Court of Justice .................. 3. A Role for the International Court of Justice in crisis management? .................................................................... 4. Article 95 of the Charter revisited ............................................ 5. Article 27 of the Statute of the International Court of Justice revisited .......................................................................... 6. International Court of Justice: Practice Direction on Agents, Counsel and Advocates .............................................................. 7. Article 31 of the Statute of the International Court of Justice revisited: the Judge ad hoc ............................................ 8. Article 59 of the Statute of the International Court of Justice revisited .......................................................................... 9. The framework agreement as the basis for the jurisdiction of the International Court of Justice and some problems of language ................................................................ 10. Unilateral applications to the International Court of Justice: history revisited ............................................................ 11. The General List of the International Court of Justice ........................................................................................ 12. The Secretary-General of the United Nations and the International Court of Justice .................................................... 13. Visit to the site by the International Court .............................. 14. Fact-finding before the International Court of Justice ............... 15. Controlling interlocutory aspects of proceedings in the International Court of Justice .................................................... 16. Counter-Claims in the International Court of Justice Revisited .................................................................................... 17. The Jaffa-Jerusalem Railway arbitration (1922) ........................

17 35 65 81 97 105 129 161 171 197 209 221 235 251 267 295

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CONTENTS

18. Some points of contact between the International Criminal Court and the International Court of Justice ............ 19. The jurisdiction of the International Criminal Court .............. 20. Antecedents of the Rome Statute of the International Criminal Court ..........................................................................

353 367 391

THE LAW OF TREATIES 21. Reflections on automatic treaty succession ................................ 22. What is a treaty? A signatory’s intentions – Qatar v Bahrain ........................................................................ 23. When is a final clause not a final clause? .................................. 24. On multilingual interpretation ..................................................

425 435 445 449

THE LAW OF THE SEA 25. The United Nations Convention on the Law of the Sea, 1982: the Application of Part XI: an element of background ................................................................................ 26. The United Nations, the oceans and some geography .................................................................................. 27. Historic waters in the third United Nations Conference on the Law of the Sea ............................................

457 469 497

INTERNATIONAL RESPONSIBILITY 28. Breach of treaty in the codification of the law of State responsibility .................................................................... 29. State responsibility: festina lente ................................................ 30. Decisions of the International Court and the law of State responsibility ....................................................................

515 533 543

MISCELLANEOUS 31. The role of controversy in international legal development .............................................................................. 32. Codification revisited after fifty years ........................................ 33. Three central elements of modern international law ................

559 599 621

CONTENTS

34. Self-defence and the Non-use of Force: Some Random Thoughts .................................................................................. 35. Israel: some legal aspects of the transition from Mandate to Independence: December 1947–15 May 1948 ......

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633 649

PREFACE

This collection is a continuation of the collection of my essays published in 1993 under the title An International Law Miscellany. It consists of a number of my scattered essays published between 1992 and 2005 in various Libri Amicorum and Festschriften, together with a few taken from periodical literature of the period. As before, the essays are mostly reproduced as written with occasional editorial changes designed to include essential up-dating. The Publishers made it possible to bring in necessary allusions to the judgment of the International Court of Justice (ICJ) of 26 February 2007 in the Application of the Genocide Convention case, which was relevant to several of the essays in this volume. Again it gives me pleasure to express my appreciation to the publishers Martinus Nijhoff of Leiden, the Netherlands, and to their staff for their cooperation, in particular Ms. Annebeth Rosenboom. I also wish to thank the editors of the various publications and periodicals for permission to reproduce this material here. In the title to this collection, Essays on International Law and Practice, the and is conjunctive, not disjunctive. It is designed to indicate the creative application of the law, with special attention to international litigation practice in some of its especial manifestations. By international litigation is meant in particular litigation between States, whether in one of the current standing international tribunals, the ICJ and the International Tribunal for the Law of the Sea (ITLOS), or in international arbitration proceedings between States before an ad hoc body formed especially to deal with a single case and applying judicial techniques. Experience goes to show that from the professional point of view there is no real difference between these different forums. We can find evidence of this in the frequent appointment of serving or former members of the ICJ and of ITLOS as members of an arbitration tribunal, and the designation of the President of ITLOS as the residual appointing authority for arbitrations conducted under Annex VII, article 3, of the Law of the Sea Convention of 1982. The only apparent difference is that in the standing courts and tribunals all the principal participants, the judges, the registrar, and counsel appear garbed in out-dated gowns and jabots serving no obvious purpose while in arbitration proceedings all concerned appear in the dress that is appropriate for the twenty-first century. I have therefore been free in using both types of litigation as sources for my work. Beth ha Kerem, Jerusalem February 2007

Shabtai Rosenne

ACKNOWLEDGMENTS

The articles in this volume were previously published as listed below. The author gratefully acknowledges permission to reprint them here. 2 ‘The President of the International Court of Justice’, Fifty Years of the International Court of Justice, Essays in honour of Sir Robert Jennings (1995), pp. 406–423. Cambridge University Press. 3 ‘A Role for the International Court of Justice in Crisis Management?’, State, Sovereignty and International Governance 195–219 (2002). Oxford University Press. 4 ‘Article 95 of the Charter Revisited’, Studi di Diritto Internazionale in onore di Gaetano Arangio-Ruiz 1387–1401 (2004). Ed. Scientifica. 5 ‘Article 27 of the Statute of the International Court of Justice’, 32 Virginia Journal of International Law 213–231 (1991). 6 ‘International Court of Justice: Practice Direction on Agents, Counsel and Advocates, 1 LPICT 223–245 (2002). 7 ‘Article 31 of the Statute of the International Court of Justice Revisited’, Mélanges en honneur de Nicolas Valticos: Droit et justice (1999), pp. 301–317. Pédone. 8 ‘Article 59 of the Statute of the International Court of Justice Revisited’, El Derecho internacional en un mundo en transformación; Liber Amicorum en homenaje al Profesor Eduardo Jiménez de Aréchaga (M. Rama-Montaldo, ed. 1994), pp. 1129–1158. Fundación de cultura universitario, Montevideo. 9 ‘The Framework Agreement as the Basis for the Jurisdiction of the International Court of Justice’, O Direito internacional no tercero Milêno: Estudios em Homenagem ao Prof. Vicente Marotta Rangel (1998), pp. 69–79. Universidad de Chile, Instituto de Estudios internacionales. 10 ‘Unilateral Applications to the International Court of Justice: History Revisited’, Liber amicorum Bengt Broms (ILA, Finnish Branch, 1999), pp. 447–481. ILA Helsinki.

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ACKNOWLEDGMENTS

11 ‘General List of the International Court of Justice’, Theory of International Law at the Threshold of the 21st Century: Essays in honour of Krzysztof Skubiszewski, pp. 805–816 (1996). Kluwer Law International. 12 ‘The Secretary-General of the United Nations and the Advisory Procedure of the International Court of Justice’, International Law, Theory and Practice, Essays in honour of Eric Suy, pp. 707–717 (1998). Kluwer Law International. 13 ‘Visit to the Site by the International Court’, Liber Amicorum Judge M. Bedjaoui, pp. 461–473 (1999). Kluwer Law International. 14 ‘Fact-finding before the International Court of Justice’, International Law and The Hague’s 750th Anniversary (W.P. Heere, ed. 1999), pp. 45–59. Asser Institute. 15 ‘Controlling Interlocutory Aspects of Proceedings in the International Court of Justice’, 94 AJIL 307–317 (2000). 16 ‘Counter-claims in the International Court of Justice revisited’, Liber amicorum ‘In memoriam’ of Judge José María Ruda (2000). 17 ‘The Jaffa-Jerusalem Railway Arbitration (1922)’, The Israel Yearbook on Human Rights, vol. 28 (1998), pp. 239–286. 18 ‘Some Points of Contact between the International Criminal Court and the International Court of Justice’, Liber Amicorum I.P. Blischchenko (in the press). Martinus Nijhoff Publishers. 19 ‘The Jurisdiction of the International Criminal Court’, Yearbook of International Humanitarian Law, vol. 2 (1999), pp. 119–141. Asser Press. 20 ‘Antecedents of the International Criminal Court revisited’, International Law across the Spectrum of Conflict: Essays in honour of Professor L.C. Green On the Occasion of his Eightieth Birthday, 387–420 (1999). Naval War College RI. 21 ‘Automatic Treaty Succession’, Essays on the Law of Treaties in honour of R.W. Vierdag 97–106 (1997). Kluwer Law International. 22 ‘The Qatar/Bahrain Case: What is a Treaty? A Framework Agreement and the Seising of the Court’, The Leiden Journal of International Law, vol. 8 (1995), pp. 161–182.

ACKNOWLEDGMENTS

xiii

23 ‘When is a Final Clause not a Final Clause?’, 98 AJIL 546–549 (2004). 24

‘On Multilingual Interpretation’ 6 Israel Law Review 360–366 (1971).

25 The United Nations Convention on the Law of the Sea, 1982: The Application of Part XI: An Element of Background’, Israel Law Review, vol. 29 (1995), pp. 491–505. 26 The United Nations, the Oceans and Some Geography’ The United Nations at Work (M. Glassner, ed.), pp. 285–311 (1998) Praeger, a revised and expanded version of ‘Geography in International Maritime-BoundaryMaking’, Political Geography; vol. 15, pp. 319–334 (1996). 27 Historic Waters in the Third United Nations Conference on the Law of the Sea; Reflections on Principles and the Practice of International Law: Essays in honour of Leo J. Bouchez 191–203 (2000). Martinus Nijhoff Publishers. 28 ‘Breach of Treaty in the Codification of the Law of State Responsibility’, El derecho international en los albores del siglo XXI: homenaje al profesor Juan Manuel Castro-Rial Canosa 583–598 (2002). Trotta. 29

‘State Responsibility – Festina Lente, 75 BYIL 363–371 (2004).

30 ‘Decisions of the International Court of Justice and the New Law of State Responsibility’, International Responsibility Today 297–309 (2005). Martinus Nijhoff Publishers. 31 ‘The Role of Controversy in International Legal Development’, The Structure and Process of International Law (R.St.J. McDonald. ed. 1983), pp. 1147–1183. Martinus Nijhoff Publishers. 32 ‘Codification revisited after 50 Years’, Max Planck Yearbook of United Nations Law, No. 2 (1998), pp. 1–22. Kluwer Law International. 33 ‘The Three Central Elements of Modern International Law’, Hague Yearbook of International Law (2004) 3–13. Martinus Nijhoff Publishers. 34 ‘Self-defence and the Non-use of Force: Some Random Thoughts’, Selfdefence in National and International Law: Reflections and Materials, Asser Press (forthcoming 2007).

xiv

ACKNOWLEDGMENTS

35 ‘Israel: Some Legal Aspects of the Transition from Mandate to Independence: December 1947–15 May 1948’, Israel among the Nations – International and Comparative Law Perspectives on Israel’s 50th Anniversary (A. Kellerman et al. eds., 1998) pp. 311–342. Kluwer Law International.

DOCUMENTATION

As far as possible documents are cited by reference to their printed versions and official number. Most modern documents are available on an appropriate website. Treaties are cited by reference to one of the standard treaty collections. Treaties that have been registered with the UN but not yet printed in the UNTS are cited by reference to their registration number. Decisions of the Permanent Court of International Justice, the International Court of Justice, and the International Tribunal for the Law of the Sea are cited by reference to their official reports or to their website. Resolutions of standing organs of international organizations are taken from the Official Records or from the website. The principal websites are as follows, all http//: ICJ www.icj-cij.org (also through the UN home page) ILC www.un.org/law/ilc/ (also through the UN home page) ITLOS www.itlos.org (English) www.tidm.org (French) (also through the UN home page) PCA www.pca-cpa.org PCIJ through the ICJ home page UN www.un.org (in all the official languages) UNAT United Nations Administrative Tribunal, through the UN home page Institute of International Law www.idi-iil.org * * * 4

Law and Practice

Sh. Rosenne, The Law and Practice of the International Court 1920–2005 (Martinus Nijhoff Publishers, Leiden, 2006).

1 ACCEPTING THE HAGUE PRIZE – 18 JUNE 2004

Mr Mayor and Aldermen of the City of The Hague, Mr President and Members of the International Court of Justice and of other international courts and tribunals represented here, Excellencies members of the diplomatic corps, members of the Nominating Committee and the Board of the Hague Prize Foundation for International Law, members of Academe, ladies and gentlemen, friends. I must first, in all humility, express my deep sense of gratitude at the great honour done to me by the Nominating Committee of the Stichting Haagse Prijs voor Internationaal Recht under the distinguished chairmanship of His Excellency Judge Peter Kooijmans of the International Court of Justice, and by the Board of the Hague Prize Foundation under the chairmanship of Professor Judge P.J. Kapteyn, formerly a member of the European Court of Justice and now of the University of Amsterdam. I greatly appreciate the unanimous decision of the jury and the very kind words it contains in my regard. My first duty after that is to place on record my debt to three persons, without whom I do not think I would be here today. The first is my wife, who unfortunately cannot make the journey to The Hague. She provided and maintained the conditions, the environment, and the atmosphere which made it possible for me to do all my work, both official and academic. I sometimes think that she knows more of the practical application of international law and of the workings of diplomacy than many of the students that come to see me. The second two are my mentors, the late Sir Hersch Lauterpacht of Cambridge, and the late Dr Jacob Robinson of Vilna and, escaping the Holocaust, New York, two unlikes, but with one major characteristic in common.1 They were both international lawyers with one foot deeply in the world of practice, including practice in the strenuous conditions of the War, and the other foot in the academic side of the law, teaching what they learned from practice, and practising what they learned from teaching. I would also like to take this opportunity to express my deep

1

For my appreciation of these two mentors, see ‘Sir Hersch Lauterpacht’s Concept of the Task of the International Judge’, and ‘Jacob Robinson, 28 November 1889–24 October 1977’ in Sh. Rosenne, An International Law Miscellany 781 and 831 (1993).

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appreciation for the two Dutch publishing houses that have published most of my important works, first the House of A.W. Sijthoff of Leiden, and more recently Martinus Nijhoff, now also of Leiden. My first contact with Sijthoff goes back to the early 1950s, and I have always been grateful to them for the encouragement that they gave me then to write and publish my first major book on the International Court of Justice. It has for me been a privilege and pleasure, and very instructive, to work with these two great Houses, and witness first hand the transformation of printing from monotype and tons of boiling lead to modern clean computerized printing. So I start with a deeply felt ‘Thank you all, and may the Hague Prize Fund continue to prosper and offer encouragement to those who devote their lives and capabilities to the advancement of international law’. This has brought me into closer contact with the reality of true Dutch liberalism to which Hugo Grotius gave an early expression in his important document for the newly liberated Dutch States General in 1615. That was his Remonstratie nopende de ordre dije in de Landen van Hollandt ende Westvrieslandt dijent gestelt op de Joden2 laying out the conditions under which Jews, then fleeing from the Inquisition in Spain and Portugal, could be allowed to settle in the Netherlands, newly liberated from Spanish rule. Indeed, one of my own ancestors directly benefited from that, and was involved in the establishment of the Jewish community in Amsterdam and the building of the famous Portuguese Synagogue there (he was also involved in the excommunication of Spinoza – perhaps a more controversial side of his activities).3 So I can claim a distant connection with this country. Early in the days of the present International Court of Justice the Brazilian Judge Carneiro in one of his opinions rightly remarked that it was inevitable that every one should retain some trace of his legal education and former legal activities. That was justified.4 He was speaking about what was expected of the members of the Court, but I think that his remarks are fully relevant to all who practice as international lawyers. International law is an independent and self-standing branch of law and of jurisprudence, of legal science and legal philosophy, but it cannot be, it must not be separated from law as a whole, and the international lawyer cannot throw off his initial training or cultural upbringing, nor is he or she expected to do so. You will therefore, I venture to think, not be surprised if I draw my inspiration for this afternoon’s remarks from my Jewish upbringing.

2 3

4

Edition after the manuscript in the Livrana D. Montezinos, published with an introduction by J. Meijer, Amsterdam, 1949. Spinoza has been quoted at least once in an opinion in the International Court of Justice. That was by Judge ad hoc Rigaux in para. 32 of his individual opinion in the Oil Platforms case, ICJ Rep. 2003, 161, 389. Dissenting opinion in the Anglo-Iranian Oil Co, case, ICJ Rep. 1952 at 161 (para. 14).

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My prime inspiration, ever since I first became interested in the International Court during a dark period of the Second World War and its traumatic impact on all who had anything to do with it, is the little text, only three words in the original Hebrew, in the Book of Deuteronomy which reads in translation: “Justice, justice, shalt thou pursue” (Deut. 16:20). Many commentators have asked why Holy Writ repeats the word ‘Justice’ and as many replies as commentators have been given. I like the explanation that is quoted in the Commentary of the thirteenth century Catalonian Rabbi Moses the son of Nahman (Nahmanides) (1194–1270). He gave as his opinion that the intention behind the repetition of the word Justice is to teach that one should pursue justice always, whether one stands to win as much as whether one stands to lose. If that is an ideal for human beings, it should equally be an ideal for those human beings who are responsible for conducting public affairs, including the affairs of state. International law, like all law, is addressed first and foremost to human beings who are in the special position of directing the affairs of state and being responsible for them. I do not have to say here that the world is still far from that. However, the ideal is there, and the different courts and tribunals that have come into existence around the world, especially during the twentieth century with all its calamities, for different purposes and for different sections of humanity, several of those courts and tribunals with their seat here in The Hague, are evidence that somewhere in the human conscience this idea is taking root. I owe my introduction to the international court to a bookseller friend in what was once a famous law bookshop in Chancery Lane in London, Sweet and Maxwell’s. He knew my tastes. I visited him during a leave, shortly before D-Day, and he showed me what had just arrived somehow in London, Hudson’s masterly work on the Permanent Court of International Justice. It was under that inspiration and, I might add, with Hudson’s encouragement, that I devoted a great part of my studies to the International Court of Justice and more generally to the problems of international litigation. Likewise, it is from that short passage in Deuteronomy that I have reached the conclusion, and the challenge, that I am shortly going to lay before you. The second area in which I have devoted a great part of my life, both as a matter of practice and in an academic sense, is the law of treaties. Here again the Book of Deuteronomy (23:24) supplies some inspiration when it tells us: ‘That which is gone out of thy lips thou should observe and do’, four words in the original Hebrew, and three in the equally lapidary common Latin expression which you all know, Pacta sunt servanda. Here alongside practice in my official duties, my membership in the International Law Commission was the driving force. It was a great privilege to have been a member of that Commission when it completed its work on the law of treaties, the central element of all modern international law. This too will link up with the challenge that I am shortly going allow myself to lay before you.

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Thirdly, I come to the law of the sea. One of the first problems to cross my desk early in 1949, and never to leave it, was the question of freedom of passage through what at that time was an unknown strait, the Strait of Tiran and the Gulf of Aqaba – incidentally today a major waterway giving access to an important part of the Arab world from the Indian Ocean and elsewhere. That strait and that Gulf are together an arm of the Red Sea, and the crossing of the Red Sea has always been of special significance in Jewish tradition, consummated in the Ode to the Sea in Exodus, chapter 15, which is recited every day of the year in the Jewish liturgy. This led to my participation in all the major United Nations Conferences on the Law of the Sea, five in number, between 1955 and 1995. They are the Rome Conference of 1955, largely overlooked but perhaps one of the most important, the three UN Conferences on the Law of the Sea covering the whole period from 1958 to 1982, and the Straddling Stocks Conference of 1992 to 1995. This participation was one of my professional duties, very hard work but pleasant and rewarding, and leading to many personal friendships the world over, and to a much deeper understanding of the law, how to draft it and how to apply it. I am mentioning this because if in appearance my contribution to international law is measured only in terms of books and articles and other writings covering a wide range of topics, these in their turn are not theoretical examinations of topics that at times might seem esoteric and removed from day to day realities, but to the contrary, they are closely related to my daily practice as an international lawyer. This is what is leading me to what I think should be seen as the central issue in this speech, the place of international law in the daily life of the average human being. It is not sufficiently realized by the general public or indeed by the average practitioner of law in any country just to what extent international law regulates the daily activities of every man, woman and child, mostly today through the operation of an international treaty and of national legislation based on and deriving from an international treaty. In today’s international law the treaty is from a quantitative point of view the primary source of most of the day-to-day rules of international law. When you wake up in the morning and spray yourself with some toiletry, the chemical which moves that spray is governed by international law. When you take a cup of coffee with your breakfast, international law – more than one branch of it – lays down how that coffee reaches your table. When you drive your car to work, the road signs on which the discipline of the road and your personal safety depend are governed by a major international treaty. At the same time, the exhaust which your car may emit is also regulated by international law, the protection of the environment being now a major international preoccupation involving serious conflicts of interest reconciled only with difficulty. I could go on repeating this indefinitely, for almost every activity that you undertake during the following twenty-four hours. International law even

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has something to say to help you to sleep peacefully, the international protection of the environment now extending to the prevention of pollution by the noise of aircraft. My journey from my home to here involved regulations and agreements laid down by a series of international organizations and bilateral agreements between governments, together with at least one non-governmental organization. Let me name them: the International Civil Aviation Organization regulating civil aviation generally, including the requirements for an international airport, for traffic separation, for the maintenance and regulation of air corridors, for overflying national territory and for flying over the high seas (overflight being one of the freedoms of the seas regulated by the new law of the sea), the International Telecommunication Union ensuring safe radio communications to guide the aircraft throughout the flight, the International Labour Organization governing the working conditions of the aircrew, the World Meteorological Organization consolidating the availability and diffusion of weather information essential for a safe flight, the World Health Organization which lays down the regulations essential to prevent the transmission of dangerous diseases by insects inside aircraft or transmitted through passengers and crew, bilateral agreements allowing the scheduled flights point to point from one country to the other, and as a Non Governmental Organization the International Air Traffic Association (IATA), a body that has been incorporated by a Statute of the Canadian Parliament, concerning itself with the mutual relations of commercial airlines. And if you take the trouble to read the small print on your ticket, you will find that by contract with the carrier, you have voluntarily subjected yourself to a major international treaty, the famous (or perhaps infamous) Warsaw Convention of 1929, now to be replaced by the Montreal Convention of 1999. True, you will not come into direct contact with most of these, except Heaven forbid in the event of an accident, in which case the Warsaw/ Montreal Convention will become of direct relevance and may involve difficult litigation in national courts. This illustrates how globalization is affecting the law, like much else. I could go on like this indefinitely, but I want to mention one very specific situation – that of a person who runs foul of the law when in a foreign country. Criminals, like all human beings, have rights under international law, and here I am not speaking of that broad area usually known as human rights law, or about the difficulties involved in extradition. It is not always known by attorneys dealing with a case that a criminal abroad has very specific rights under international law to consular protection and how to obtain it. This has been the subject of three major cases recently in the International Court of Justice, and an earlier case in the regional Latin American Human Rights organs. The International Court has been quite specific in explaining how these rights, set out in an international treaty, are to be applied on the level of an individual criminal case. When I read the pleadings in those cases I have been struck by the fact that frequently the accused person was

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represented by a court-appointed attorney, who in many of these cases did not know of these treaty rights given to the person he was supposed to represent in the judicial proceedings. In some of those cases the prosecution team was equally unaware of this. As a result those treaty rights were not invoked when they should have been. That was to lead to a series of international disputes discussed at the highest level – in one of these cases even at head of state level – before being sent to the International Court for a binding decision and for general clarification of the legal position in this type of case. That is one example. Now let us look somewhere else. I have followed fairly closely the work of the International Criminal Tribunal for the Former Yugoslavia. Some senior members of the Dutch Bar have appeared in one or two of the important cases that have come before that Tribunal. I am not going to talk about its substantive work. That is a matter for experts in international criminal law. What has struck me about the cases that have come before that Tribunal is how ordinary people, with ordinary jobs, suddenly found themselves, in circumstances over which they had no control, in a position in which they could perform horrible acts of violence and misconduct on other human beings. Those actions were so serious that the international community, represented through the Security Council, could not let them go unrequited. At considerable expense it set up an ad hoc international criminal tribunal to which these people would have to answer for their deeds. We have seen similar happenings in other parts of the world. There too, except for the terrible genocide in Rwanda where also the Security Council established a special international criminal tribunal, novel but appropriate arrangements have been made for criminal proceedings to be brought in specially created criminal jurisdictions involving a carefully controlled intermixture of national and international elements to try persons charged with responsibility for criminal acts, regardless of their official position in the organization of the State or other entity to which they belonged – the special court in Sierra Leone for example. Now we have the permanent International Criminal Court, also with its seat here in The Hague. Whatever criticisms may be made at this or that provision of the Rome Statute – and with respect I for one think that it is open to serious criticism – the fact remains that this Court is in existence and is working and already has had cases referred to its institutions. One of its special features is the principle of complementarity, that the national courts come first. That means that any attorney who might be faced with a possible international criminal case must be alert to this if the client is to receive proper legal advice. So must the national judges and the national prosecution. All this has far reaching implications. It means that in one way or another any person – whether a regular member of an armed force, or a conscript, or a member of an irregular armed force, or in any other capacity – who performs acts that can be considered prima facie as violations of what is now frequently called ‘international humanitarian law’, mainly the specific

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international crimes enumerated in the Rome Statute and its related documents, can be charged with criminal responsibility under international law. From this, it would appear that any attorney chosen by that person will be faced with difficult problems of international law. The least that can be expected of a practising attorney in that sort of position is that the international law aspects of the case are properly identified, and a competent international lawyer is brought into the case in a proper professional way. However, one need not go as far as that. Perusal of the last twenty or thirty volumes of the International Law Reports will show an extraordinary number of miscellaneous cases in which important and less important issues of international law arose. Two cases involving the criminal law of a country, one of Belgium and one of France, have come before the International Court of Justice. This is different from the three capital punishment cases involving the criminal justice system of the United States of America, where already the court of one of the states concerned has adapted its decision to what the ICJ has formulated.5 The International Court wisely refuses to act as a court of criminal appeal. However, I do have an impression that it might in some way see itself as a kind of court of cassation and return the case to the national authorities for them to deal with by means of the own choice, in light of the Court’s statement of the legal position. The new law of the sea gives ship-owners and cargo-owners rights against a State other than the flag State, a matter of particular importance to the fishing community, and the International Tribunal for the Law of the Sea has been established especially to enable the individuals concerned to vindicate their rights in an appropriate international court. Here the French Court in the Island of Reunion, far away in the Pacific, has set an excellent example by adjusting its decisions to the rulings of ITLOS. The internal courts of every country can be faced in routine disputes with questions of diplomatic or consular immunity or what is new, the immunity of international organizations and their staff, for instance in connection with the lease of a building for an embassy or for the residence of the diplomatic staff, or in connection with some forms of taxation. France has had cases of whether the pensions of retired international civil servants (including, I might add, one former Registrar of the International Court of Justice) who have chosen to spend their declining years in France, are subject to any form of taxation. One of these cases was decided in a competent French court,6 while others went to an international arbitration in a form of class action.7 In New York, issues of parking problems have become so serious that a suggestion has been floated that the

5 6 7

New York Times (electronic edition), 13 May 2004. Case of Aquarone, summarized in 92 AJIL 764 (1998). Summarized in 98 AJIL 163 (2004).

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International Court should be asked for an advisory opinion on the consistency of the City’s municipal parking laws with international law.8 From what I can see, I would not be surprised if one day a similar problem could arise here (if it has not already) and in other headquarters cities. One simply never knows when a given situation in which an individual may find himself or herself will involve questions of international law. All this leads to only one conclusion. Any individual, and any attorney, can suddenly find himself or herself confronted with international law and international justice, whether that is known or not. This raises a very fundamental question: Is the legal profession as a whole, in any country of the world, qualified today to deal competently with this type of question? Is the average attorney qualified even to identify the existence of an international law problem in the circumstances in which professional advice and action is required? In my experience this goes not only for public international law but just as much for private international law, important aspects of which are regulated by international treaty today under the auspices of the Conference on Private International Law, also with its seat here in The Hague. After much thinking about the matter and reading through the International Law Reports and the reports of other courts and tribunals, I have to say that I have come to a negative conclusion. On the whole, the legal profession, in virtually every country of the world, is not properly equipped to deal with international law problems with which an individual client may be confronted, and the public is entitled to protection against that. I do not think that an attorney can be fully qualified if he or she is unable to identify an international law element in a client’s problem. I do not expect every attorney to be able to solve that international law problem. That would certainly be asking too much. But the least that can be expected is that the attorney will identify that the international law problem is part of the complex to be resolved, be it a civil case or a criminal case. One of the early resolutions of the United Nations General Assembly, resolution 176 (II) of 21 November 1947, invited member States to encourage the teaching of international law. This has not had much effect as there was no real follow up until 1993 when the General Assembly started to concern itself with assistance in the teaching, study and dissemination and wider appreciation of international law. This item is now regularly on the agenda of the Sixth (Legal) Committee of the General Assembly. At the same time the two premier organizations devoted to international law, the Institute of International Law and the International Law Association, have concerned themselves with this. In 1979 the Institute of International Law, with the

8

Report of the Committee on Relations with the Host Country, GAOR, Fifty-eighth Session Sup. No. 26 (A/58/26) para. 43 (2003).

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Czech professor ÒZourek assisted by Professor Pierre Lalive of Geneva as rapporteurs, at its Athens Session adopted its first major resolution on the teaching of international law.9 It took the matter up again in the 1990s under the guidance of our friend and a main inspiration for the inauguration of the Hague Prize, Professor Ronald Macdonald of Halifax, Nova Scotia. This led to the Strasbourg resolution of 1997, to which I will return.10 For its part the International Law Association has not yet completed its study of the topic. A preliminary report was presented to its New Delhi Session in 2002,11 and I believe that a further report is to be submitted to the Association’s Berlin Session this coming August. It is probably too late for the competent international commission to deal adequately with this suggestion of mine, but I do express the hope that the Commission will find an opportunity to bring this suggestion to public notice for further detailed examination and that the ILA will give proper consideration to the ideas that I am expressing here. The resolutions of the General Assembly have to be read in the context of the Charter and they are based on an assumption that wider knowledge of international law would come to constitute a contribution to the maintenance of international peace and security. To some extent the Athens resolution of the Institute of International Law follows along the same track. At the same time it commenced the process of broadening the purposes for which the teaching of international law is important, and I suppose bringing it down from that lofty pedestal and drawing it closer to the realities of human life. The second recital of the resolution adopted at Athens reads: Mindful of the expanding internationalization of social relationships and the growing impact of international factors on the most diverse aspects of the lies of individuals, peoples and States[.]

The Strasbourg resolution of 1997 carries this further: Emphasizing that international law increasingly affects the content of municipal law and that knowledge of international law is necessary to discharge a wide range of professional responsibilities at the national level and the responsibilities of individuals in an increasingly cohesive international society: Reaffirming that, in the conditions prevailing in the present world, legal education is incomplete if it does not cover the basic elements of public and private international law[.]

9 10 11

58–II Annuaire de l’Institut de Droit international 204 (1979). 67–I ibid., 126, 67–II ibid., 83, 466 (1997). ILA, Report of the Seventieth Conference 687 (2002).

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Both those resolutions, and so far the work of the competent committee of the International Law Association, seem to be addressed primarily to the teaching of law at university level. I think that the matter should be taken further. The broad aim should be shifted from academic law to practical and applied law, from the idea of producing specialists in international law to that of ensuring that every practising attorney knows enough about international law so as to be able to identify it when a problem crops up, and handle it accordingly. In brief, I think that the time is coming, if it has not already arrived, when both public international law and private international law should be compulsory subjects for entry into the profession, for membership in every bar. Both public and private international law are as much part of daily bread-and-butter law as the law of contracts, the law of property, of civil wrongs, of criminal law, of commercial law, of family law and any form of public law. The members of the public who for whatever reason require the services of a qualified attorney are entitled and should be able to rely on the attorney’s competence to deal with the matter if it involves a question of international law. I am not thinking of anything elaborate. I am not thinking that qualification for the national or local bar is in itself qualification as an international lawyer, any more than the bare professional qualification is in itself an indication of specialization in any particular branch of the law. For qualification as a member of the bar, the candidate should have some knowledge of the international law of treaties, alongside knowledge (one would hope) of the national law of treaties probably acquired as part of acquaintance with constitutional or public law more generally. Here, the Vienna Convention on the Law of Treaties of 1969 provides a useful general guide. That Convention can be regarded as a template for anything to do with the international law of treaties. Here I must utter a word of caution. It is often overlooked that the Vienna Convention is only concerned with the international law of treaties. It leaves untouched the internal law of every country. The International Law Commission made this perfectly clear in paragraph (15) of its commentary on Article 2 of its draft articles on the law of treaties of 1966, and nothing has occurred since to change this.12 The practising attorney does not require a detailed knowledge of the international law of treaties. But some knowledge of its basic elements, and in particular of the problems of interpretation of a treaty (alongside national rules for the interpretation of a national law giving effect to a treaty) is, I believe, today essential. Every practising lawyer should be required to demonstrate a basic knowledge of the international treaty, where to find it in a national or an international collection of treaties,

12

Report of the International Law Commission on the work of its eighteenth session, (A/6309/Rev.1), Part II, Yearbook of the International Law Commission 1966, vol. II.

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how to interpret and apply an international treaty; a basic knowledge of the international system of courts and arbitration insofar as an individual person may require recourse to it, including, for instance, the ICSID system if the attorney is going to become involved in international investments, the human rights systems which can arise for any attorney at any time and at any place, and basic elements of international criminal law and jurisdiction. I was very impressed when I read in a recent publication on human rights of the Council of Europe that in the four months of November, December 2003, January and February 2004, the European Court of Human Rights dealt with no less than 7,315 cases (of which, however, 6,255 were declared inadmissible and a further 177 applications were struck off the list).13 This really is a formidable number of cases in a part of the world which is really the parent of the conception of individual human rights against the allpowerful State, where national systems of administration and of criminal justice contain many safeguards to ensure the protection and the application of the rights of the individual. It also shows how all attorneys should be able to read properly any international text, both a treaty or a resolution, and an international judgment. It is not enough to pick out nice turns of phrase without some knowledge of their proper place not only in the document in question, but in international law as a whole. Here I should add that the attorney should be alert to the language problem in reading any international text, especially a judgment and a treaty written in more than one language. I am not asking that the attorney should be an accomplished linguist, although a generation ago most competent international lawyers were at home in two or three languages, especially those of neighbouring States and above all French. Sadly, this is not so common today. I also think that every qualified attorney should have a basic knowledge of where to find international law, the main textbooks in the language of the Bar to which he or she aspires, the principal websites and how to use them and the main collections of international judgments and arbitral awards. I do not expect the average attorney to be concerned with the details of the law and the procedure. That is for the specialist in international law, in the same way that one goes to a specialist for any intricate question of any branch of the national law. I also think that a practising attorney should have general familiarity with the United Nations system as a whole, and if he or she intends to work in a specific sphere of human activity, knowledge of the international organizations operating in that sphere should be included. When I was at Amsterdam University giving an advanced course in international

13

Council of Europe, Human Rights Information Bulletin No. 61, November 2003–February 2004 p. 2.

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law, I was struck by the aspirations of some of the students (all post-graduate students). Some wanted to work in their national civil service, some in an international civil service, but two or three in competent and powerful idealistic non-governmental organizations, especially Greenpeace. This came as a surprise to me, I must admit. In short, I am making a plea that a broad swath of international law should be required not only in any university legal education, which is the main thrust of the different resolutions that I have mentioned, but in parallel to that should also be required as part of the legal training in applied law of every qualified attorney. The general public, which may need to have recourse to an attorney for whatever reason, is entitled to reasonable protection should the question also be one in which international law has something to say. That would be the profession’s response to the globalization of the law. Here is the challenge that I am throwing out. If the City of The Hague is the legal capital of the world, with its fine library and the encouragement of the Hague Prize in International Law, I would like to see it throw its weight behind any move to make this kind of general knowledge and appreciation of international law a requirement for admission to the national bar. I go further. As I mentioned, the international committee of the International Law Association on the Teaching of International Law has not yet completed its work and I would like to suggest that the Dutch representatives look into this suggestion of mine and bring it up. I would like to urge the distinguished and learned members of the Nominating Committee of the Hague Prize to think about my suggestion, and no doubt improve on it, and try and push it forward in their own circles. I would like to urge the Board of the Foundation, with its eminent Dutch personalities, to see if they can undertake at least two propositions. One is to see if there is any chance of the Dutch legal profession assuming a leading role, by insisting on some international law, public and private, as part of the professional qualification for all members of the Dutch Bar (if that is not the case already). The second is to urge the Dutch authorities to pursue this idea in different international organizations, governmental and non-governmental, concerned in any way with education, and especially legal education, that they should think along these lines. I have in mind particularly UNESCO and the UN, and the International Bar Association. The annual discussion in the legal committee of the General Assembly on the United Nations Programme of Assistance in the Teaching, Study, Dissemination and Wider Appreciation of International Law provides an excellent forum at least for trying this idea out, if not leading to a formal resolution of the General Assembly calling for what I am suggesting. The previous Legal Adviser of the United Nations introduced the practice of convening a meeting of all legal advisers of Foreign Ministries during the session of the General Assembly, and I hope that his newly appointed successor will continue this practice and give it a more positive

1. THE HAGUE PRIZE, 2004

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content. I believe that the Legal Adviser of the Dutch Ministry for Foreign Affairs usually attends this. I wonder if he could be prevailed upon to pursue this idea of mine with his colleagues. There will, of course, be resistance and strong opposition to this suggestion. I detect in the world of today swelling tides of isolationism and nationalism not conducive to any proposal to spread concepts of enlightened internationalism, of international social solidarity. Reasons of State are occupying a superior place in national decision making, and international political organs are over zealous in making one-sided pronouncements about what action is and what action is not ‘lawful’, although the Charter only empowers the International Court to make such pronouncements. This is bringing international law into disrepute. That must be resisted. If as I am convinced international law must become a compulsory subject for membership in every national Bar, sufficient pressures must be built up and maintained to keep it so, and to ensure that a good faith application of international law becomes part of decision making of States and of international organizations. Mr Mayor and distinguished friends, In making this suggestion, in daring to put this challenge forward today, I am not allowing any idealism to blind me to the realities which surround us all. I am not making any wild claims that international law is a cure for the world’s ills and misfortunes. While I believe in the completeness of international law, in the sense that the so-called non liquet is not an acceptable answer for any international lawyer to give, I am very aware of the law’s limitations. It is relatively static. Always a matter of international compromise, all its black letter texts, often in several languages, possess an in-built ambiguity which only practice or an authoritative international judicial opinion can resolve. A recent judgment of the International Court devoted no less than seven paragraphs to a discussion of what you might think is a simple English expression, ‘without delay’, and its equivalent in five other languages. That very question could, and perhaps should, have been raised very much earlier in the domestic legal proceedings that preceded the international litigation. I must repeat that I am not here making any extravagant claims for international law as the cure for all the world’s ills, and sometimes the lawyer, like Admiral Nelson is reputed to have done, must put his telescope to his blind eye. But before doing that the lawyer, like the admiral, must know what he or she is doing and be able to justify that in a convincing way. My suggestion is motivated exclusively by a series of practical considerations relating, above all, to human welfare and what the average man or woman is entitled to expect when approaching a duly qualified attorney for legal advice. In my line of thought, an attorney who has not reached the required standard of the Bar is not, today, duly qualified, considering how modern international law penetrates into every nook and cranny of everyday life, as I have endeavoured to show.

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Mr Mayor and distinguished members of the Board and of the Nominating Committee of the Hague Prize Fund, it is time for me to conclude these remarks. I would like to finish with a sentence from the Talmud, which teaches us to be not like servants who work for the sake of receiving a reward, but like those who work not for the sake of receiving a reward.14 That has always been my attitude when serving the law, studying, and writing about the law. Before I sit down I would simply to express once again my very sincere gratitude for the great honour you have bestowed on me, and as this week draws to its end may I wish you all here a very pleasant week end. Thank you.

14

Pirkei Avoth, The Ethics of the Fathers I:3 (my translation). See H. Danby, The Mishnah 446 (Oxford: Clarendon Press, 1933).

INTERNATIONAL LITIGATION AND COURTS

2 THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

Like all collegiate organs, the International Court of Justice is headed by a President. In current practice, there are two patterns for the presidency of collegiate international organs. In most “large” organs composed of States, such as the General Assembly of the United Nations or a major plenipotentiary conference, the President is normally a member of a delegation from which, however, the Rules of Procedure will exclude him/her. In “small” bodies, including for this purpose the Security Council (composed of the representatives of States) or the International Law Commission (composed of individuals), the presiding officer is chosen according to the stipulations of the constituent instrument (including the Rules of Procedure), but remains a full member of his delegation or a full participant in the body to which he/she belongs, retaining the right to vote. In those circumstances, it is customary for the presiding officer to speak last: voting is usually, in this type of organ (but not in the International Court), conducted instantaneously, and today frequently through electronic means. The President of the International Court belongs to this second category. Article 21 of the Statute requires the Court to elect its President and VicePresident for three years; they may be re-elected. A contemporary interpretation for this three-year term explains: It was felt that, given the immense prestige of the position of president of the court, the power which he might exercise and the influence which he might bring to bear upon his colleagues, it was inadvisable to elect him for the full term of his office, that is, nine years. One year, on the contrary, seemed too short, inasmuch as the president is to reside at the seat of the court. A period of three years was adopted as a compromise, as an inducement to merit continuance in office at the expiration of his term, and of a further term, inasmuch as it is expressly provided that the president and vicepresident may be reelected.1

1

J.B. Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists: Report and Commentary 78 (1920). To be President had been a male prerogative until the year 2006, when the Court elected as President Judge Dame Rosalyn Higgins, who was the first woman to be elected a Member of the Court. Over the years the practice has developed of rotating the presidency among the principal legal systems represented on the Court.

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Since 1945, this three-year term of office of the President and Vice-President coincides with the recurrent election of one third of the Members of the Court every third year. Article 22 requires the President (and the Registrar) to reside at the seat of the Court (The Hague). The President presides at all meetings of the Court, directs its work and supervises its administration (Rules of Court, Article 12). By Article 13, paragraph 3, of the Rules, he has to take the measures necessary to ensure the continuous exercise of the functions of the presidency at the seat of the Court. In case of his absence he may, so far as is compatible with the Statute and Rules, arrange for the Vice-President or failing him, the next senior judge, to exercise these functions.2 Article 20 of the Rules gives him the power in case of urgency to convene the Court at any time. By Article 3, paragraph 5, of the Rules, while holding their offices the President and Vice-President take precedence before all other Members of the Court. When that term of office ends, each resumes his place among the Members of the Court according to the general rule of precedence.3 If the President decides to resign from the Court, his decision is to be communicated to the Court (Article 5, paragraph 2).4 Article 6 deals with the powers of the President to apply Article 18 of the Statute, concerning the dismissal of a Member of the Court. The President’s powers and duties in relation to the Registrar and staff are set out in Articles 22 to 29 of the Rules. Apart from the standard literature on the Court, there is remarkably little writing devoted exclusively to the status and role of the President.5 A brief discussion on the powers of the President when the Court is not sitting took

2

3

4

5

As an illustration, note the order of Vice-President Oda fixing new time limits in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Rep. 1993 470. Under the Rules of 1926 (Art. 2), the retiring President, whatever his seniority under the general rules, took his seat to the right of the President and the retiring Vice-President to his left. This was abolished in Art. 2 of the Rules of 1931. Art. 13 (4) deals with the resignation of the presidency. See S. Torres-Bernárdez, “Resignations at the World Court”, International Law at a Time of Perplexity 953 (Y. Dinstein and M. Tabory, eds., 1989). On the President of the Permanent Court of International Justice, see R.A. Lienau, Stellung und Befugnisse des Präsidenten des Ständigen Internationalen Gerichtshofes (1938). For a comparison between the President of that Court and the President of the Council of the League of Nations, see D. Avramoff, Le Président du Conseil de la Société des Nations 110 (1932). On the President of the present International Court of Justice, see C. Sirat, “Le Président de la Cour internationale de Justice”, 62 Revue générale de Droit international Public 193 (1958); P.C. Spender, “The Office of President of the International Court of Justice”, 1 The Australian Year Book of International Law 9 (1965); M. Zafrulla Khan, “The Appointment of Arbitrators by the President of the International Court of Justice”, XIV Comunicazioni e Studi: Il Processo Internazionale, Studi in onore de Gaetano Morelli 1021 (1975). Bibliographical information kindly supplied by the Registry of the Court.

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place early during the Preliminary Session of the Permanent Court in 1922. That was before there had been any experience, and before the Court had adopted any of the Rules of Court. The Court decided to treat each particular case as it arose during the drafting of the Rules. It also adopted a decision of principle to the effect that it could confer on the President the right to take interlocutory decisions.6 The Permanent Court established the basic rule that it elects its President by secret ballot. That, the normal rule of international organizations unless the President is chosen by acclamation, now appears in Article 11, paragraph 2, of the Rules. A majority of the Members of the Court composing it at the time, that is 50 per cent plus one, or eight votes if the full complement of Members exists then, is required for the election of the President, a positive requirement introduced in 1978.7 The previous Rules required a majority of the Members of the Court present.8 The reasons for this change, which enhances the general standing of a President elected under these conditions, have not been made public. The election should take place on or as near as possible after 6 February of each three-year cadence of the Court following the triennial election of one third of the Members of the Court (Rules, Article 10). The term of office begins on 6 February or on the date of the election if later, and ends when the new President is elected. If a vacancy in the presidency occurs before the expiration of the current term, the Court is to decide whether to fill it for the remainder of the term (Rules, Article 14).9

6 7

8

9

PCIJ, Ser. D No. 2, 28. The Advisory Committee of Jurists of 1920 rejected a proposal that the President should be elected by absolute majority. Procès-Verbaux of the Proceedings of the Committee 459 (1920). The Secretariat of the League of Nations advised the Permanent Court that it was free to adopt any method for the election of the President and Vice-President, and thought that election by simple majority would seem to be in conformity with the intentions of the framers of the original Statute. PCIJ, Ser. D No. 2, 242 (1922). In addition, see article 3 of the draft rules of Court prepared by the Secretariat. Ibid. 253. The Permanent Court in its Preliminary Session, after a brief discussion at the 6th meeting, decided that the election should take place by secret ballot and by an absolute majority of the judges present. Rules of 1922/1936/1946/1972, Art. 9. The change to the present wording was made in Art. 11 of the Rules of 1978. See also Sh. Rosenne, Procedure in the International Court 35 (1983). The only other cases requiring an absolute majority of the Members of the Court are Art. 18 of the Rules, on the election of Chambers under Arts. 26 or 29 of the Statute, and the election of the Registrar and Deputy Registrar under Arts. 22 and 23 of the Rules. By Art. 18 of the Statute, the unanimous opinion of the other Members of the Court is required for the dismissal of a Member on the ground that he has ceased to fulfil the required conditions (there has been no instance of this). By Art. 29 the Registrar and Deputy Registrar can be removed from office on the opinion of two thirds of the Members of the Court. On this, the terms of office as President and as a Member of the Court of Sir Humphrey Waldock were due to come to an end on 6 February 1982. After Sir Humphrey’s death on 15 August 1981, the Security Council considered that as the vacancy would be filled through the regular election to be held in the General Assembly of 1981, no purpose would be served

20

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* * * The President operates in two distinct capacities. He is President of the Court, namely the fifteen elected Members of that body designated in the Charter as the principal judicial organ of the United Nations. He is also President of the Bench whenever he sits for a particular case, unless disqualified to act as President, or to sit as a judge, under specific provisions of the Statute and Rules. In those circumstances Article 13, paragraph 2, of the Rules provides that when he is precluded by a provision of the Statute or of the Rules either from sitting or from presiding in a particular case, “he shall continue to exercise the functions of the presidency for all purposes save in respect of that case”.10 However, the Statute and the Rules do not clearly distinguish between these two functions. In two instances a single formal rule is applicable to both capacities. By Article 13 of the Rules, if the President is unable to exercise the functions of the Presidency, the Vice-President or failing him the senior judge shall exercise them. By Article 55 of the Statute, all questions shall be decided by a majority of the judges present, and in case of an equality of votes, the President shall have a casting vote (voix prépondérante). As President of the Court, he has general powers and responsibilities in directing the work of the Court as a whole. The President and VicePresident are ex officio members of the Court’s Budgetary and Administrative Committee. Alongside the administrative duties, which can be demanding, he also has burdensome responsibilities in his representative capacity, both toward the different international organizations and above all the General Assembly, and in relation to the Host State and generally. He is the official host of the Court when Dutch and foreign dignitaries visit it. In the order of diplomatic precedence at The Hague, he takes precedence over the Dean of the Diplomatic Corps. In his absence, the Vice-President takes his place before the Dean. Although most correspondence with the Court is conducted through the Registrar, following Article 26, paragraph 1(a), of the Rules, in exceptional instances the President himself will conduct the correspondence. Under the Instructions for the Registry the financial administration of the Court is the primary responsibility of the Registrar. He is accountable in the first instance to the Court in these matters, but if the Court is not sitting,

10

by invoking the procedures for filling the occasional vacancy. Doc. A/36/451–S/14645, General Assembly, Official Records, 36th Session, Annexes, agenda item 15, p. 4. In addition, see [1981] United Nations Juridical Yearbook 145. The Vice-President thereupon became Acting President, and no action was taken by the Court to fill the office of President. [1981–1982] ICJ Yearbook 8. On the distinction between the Court and the Bench, see the letter of 18 March 1983 from the Registrar to the agent of Canada. Gulf of Maine case, VII Pleadings 297 (doc. 23).

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the supervisory functions are delegated to the President.11 Under the same Instructions, the President has to approve the agenda of administrative questions for the Court (Article 6). Every member of the Staff must make a declaration before the President under Article 25 of the Rules of Court and Article 40 of the Instructions for the Registry. In the current Staff Regulations (Annex VI), provision is made for an appeal by a staff member from an administrative decision of the Registrar the Judge for staff appeals within specified time limits. The filing of such an appeal does not have the effect of suspending action on the administrative decision: “unless the President, in consultation with the judge for staff appeals, directs otherwise”.12 By Article 23, paragraph 3, of the Rules of Court of 1946, the Instructions for the Registry were to be drawn up by the Registrar and approved by the President. The Rules of 1978 (Article 28), however, now require the approval of the Court. The reasons for this curtailment of the powers of the President in what is a purely administrative matter have not been made public. Although the Registrar issues the press communiqués, where necessary he will consult with the President before issue. Similarly, the naming of a case can be a delicate matter. Whenever the parties have not themselves suggested the name of the case, consultation with the President will be needed.13 Previous commentators have noted the possible discrepancy between the English and French versions of the Statute regarding the President’s casting

11

12 13

Instructions for the Registry, Arts. 26 to 38. Yearbook of the International Court of Justice 1946–47 82; Sh. Rosenne, Documents on the International Court of Justice 453 (1991). Here it may be noted that the meaning of the expression “when the Court is not sitting” has changed over the years. In 1922 it was envisaged that the Court would meet in judicial sessions, of which there could be more than one in a year. This was changed in the Rules of 1936, when, in Art. 25, a system of judicial vacations was introduced in lieu of sessions. This has been retained since. The whole system was reorganized in Art. 20 of the current Rules. Essential elements of these Rules are that all Members of the Court and judges ad hoc are expected to attend all meetings of the Court in cases in which they are participating, that the system of judicial vacations and period and conditions of leave for Members of the Court are fixed by the Court “having regard . . . to the state of its General List and to the requirement of its current work”, and that in cases of urgency the President may convene the Court at any time. With the Court’s increased work-load, the Court is today virtually in permanent session subject to normal vacations. The ease of modern communications also alters the conception of “session”. For the 1979 Staff Regulations, see ICJ Yearbook 1978–1979 127; and for Annex VI, not otherwise published, Sh. Rosenne, Procedure in the International Court 68 (1983). For a discussion of a communiqué issued on the authority of the President alone, see the separate opinion of Judge Oda and the Dissenting Opinion of Judge Schwebel in the Military and Paramilitary Activities in and against Nicaragua (Declaration of Intervention) case, ICJ Rep. 1984 215, 221, 232, respectively. For an illustration of the naming of a case, compare the original name Case concerning the Guardianship of an Infant (Order of the President, ibid. 1957 102) with the name given to the case by the Court after pleading, Case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants, ibid. 1958 55.

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vote. They have also pointed out that the English conception is the one followed by the Court. This means that if there is an equality of votes, the President casts a second vote. As far as concerns general administrative matters, there is no real need for a casting vote: the motion put simply has not received a majority and is therefore not adopted or is rejected. Here the casting vote may be a complicating factor. The practice of the Permanent Court was mixed. On occasion the President left matters as they were, the proposal not being adopted. In other circumstances he voted a second time, sometimes to maintain the status quo and sometimes to change it. There was no clear-cut practice that the President’s second vote had to be the same as his first vote.14 Nothing is known of the practice of the present Court in administrative matters. In contentious judicial matters, a casting vote is essential to create a “decision”. * * * The more important functions of the President are those that he exercises as a member of the Bench (the expression here including also the Acting President under conditions described later). If the President is unable to preside, the Vice-President assumes this position. If neither can preside, the senior judge present shall assume this function. That person is designated Acting President. By Article 45 of the Statute the hearing shall be under the control of the President. Minutes of the hearings are to be signed by the President and the Registrar (Article 47). The President and the Registrar sign every judgment, advisory opinion and order (Article 58). This is for purposes of authentication, and commits neither of the signatories to the contents. That is all! In particular, the Statute does not mention the delegation of the Court’s powers to the President. As mentioned, the Permanent Court very early assumed this power, and no objection has ever been taken to it. As for the Rules of Court, there have been many changes since the initial Rules of 1922. This article will concentrate on the current Rules, those of 1978 as amended since. By Article 9, paragraph 2, if the Court decides to appoint assessors to sit with it, the President has to take steps to obtain all the information relevant to their choice. There is as yet no practice on this. Articles 32 to 37 deal with the composition of the Court for a particular case (the Bench). They contain several provisions regarding the presidency of a Bench. After Article 12, noted above, the primary norm is in Article 32,

14

For information regarding the casting vote of the President in the Permanent Court, see PCIJ, Ser. E, No. 3, 216 (1927), No. 6, 299 (1930), No. 7, 299 (1931), No. 9 (1933), 174, No. 10 (1934), 163, No. 11 (1935), 150, No. 12 (1936) 197, No. 13 (1937), 153, No. 14 (1938), 159, No. 15 (1939), 198. No similar information has been published by the present Court.

2. THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

23

paragraph 1. If the President of the Court is a national of one of the parties in a case, he shall not exercise the functions of the presidency in respect of that case. The same rule applies to the Vice-President or the senior judge when called upon to act as President. In 1992, President Sir Robert Jennings correctly extended this rule to the second of “paired” cases being partly heard in common under Article 47 of the Rules. Before the hearings were opened in the provisional measures phase of the two cases concerning the Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie cases (Libya v United Kingdom; Libya v United States of America), Sir Robert decided that it would be inappropriate as well as inconvenient for all concerned if he were to preside, as in theory he supposed he might, in the case against the United States. In both cases, therefore, the Vice-President acted as President.15 In addition, the other general disqualifications are applicable to the President who will recuse himself if necessary.16 Article 31 requires the President to ascertain the views of the parties regarding questions of procedure. For this purpose he shall “summon” the agents to meet him (il convoque les agents) as soon as possible after their appointment, and subsequently whenever necessary. The failure of an agent

15

16

ICJ Yearbook 1991–1992 198. The rule is applied strictly. Sir Robert was President in the Certain Phosphate Lands in Nauru (Preliminary Objections) case, notwithstanding that one of the preliminary objections was that the United Kingdom ought to have been named as a respondent. No objection appears to have been taken to this. ICJ Rep. 1992 240. The present Court has encountered “paired” cases in two forms. One is where a single applicant brings identical or interlinked cases against two respondents. These include: Treatment in Hungary of Aircraft and Crew of United States of America cases (U.S. v Hungary; U.S. v USSR), ibid. 1954 99, 103; the Antarctica cases (United Kingdom v Argentina; United Kingdom v Chile), ibid. 1956 12, 15; Border and Transborder Armed Actions (Nicaragua v Costa Rica; Nicaragua v Honduras), ibid. 1987 182, ibid. 1998 69; Questions of Interpretation and Application of the 1971 Montreal Convention arising out of the Aerial Incident at Lockerbie (Libya v United Kingdom; Libya v United States of America), ibid. 1992 4. The second is where two (or more) applicants bring virtually identical cases against a single respondent. These include the Aerial Incident of 27 July 1955 cases (Israel v Bulgaria; United Kingdom v Bulgaria; United States of America v Bulgaria), ibid. 1959 276, ibid. 1960 146; Fisheries Jurisdiction cases (Federal Republic of Germany v Iceland; United Kingdom v Iceland) ibid. 1972 12, 30, ibid. 1973 3, 49 and 302, 313, ibid. 1974 3, 175; Nuclear Tests cases (Australia v France; New Zealand v France) ibid. 1974 253, 457. These have to be distinguished from “joined” cases leading to a single decision. Art. 47 introduced into the Rules in 1978 deals with both types of case. The “paired” cases can pose delicate problems for the Court and for its President, especially as regards the composition of the Bench. Thus, President Sir Zafrulla Khan recused himself when the Court considered an objection by South Africa to his presence on the Bench in connection with the advisory opinion on Legal Consequences of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Order No. 1, ICJ Rep. 1971 3. Afterwards he resumed his functions as President, ibid. 6.

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to appear before the President when so summoned may bring into operation Article 53 of the Statute, concerning the non-appearance of a party. This is not an invariable rule, and the matter depends on all the circumstances.17 By Article 32, paragraph 2, the Member of the Court who is presiding in a case on the date on which the Court convenes for the oral proceedings shall continue to preside until completion of the current phase of the case, despite the election meanwhile of a new President or Vice-President. That is one of the provisions of the Rules to perpetuate the notion that, for the purposes of the composition of the Court, each phase of a case is separate from earlier or later phases and may therefore be heard by a different Bench. This is a change from the practice of the Permanent Court, and is open to criticism.18 Article 34 sets out how the President is to control the application of Articles 17 and 24 of the Statute. Those provisions address the ineligibility of a judge to sit in a particular case. They are designed to avoid conflicts of interest. Article 35 of the Rules deals with the judge ad hoc in application of Article 31 of the Statute. It gives the President powers concerning the time limits within which notifications or observations by one or other party have to be made. This is a general power, not limited to when the Court is not sitting as are most of the delegated powers of the President. Article 37 delegates to the President, when the Court is not sitting, the power to fix the time limit within which a party may choose a new judge ad hoc if this becomes necessary. By Article 44, when the Court is not sitting the President may exercise the powers of the Court to make orders regarding the number and order of filing written pleadings, and their time limits. The President sometimes exercises this power even when the Court is sitting, for instance when it is deliberating on a case and the time-limits to be fixed are not controversial.19 The President’s powers in this respect are, however, specifically “without prejudice to any subsequent decision of the

17

18

19

Cf. the Nottebohm case, ICJ Rep. 1952 10, ibid. 1953 8, 111. Effect will always be given to an agreement concerning procedure reached through the application of Art. 31. Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, ibid. 1991 50, 51. In the Free Zones case, the Permanent Court decided in 1930 that if the case should come before it again, it should continue to deal with it in the same composition; and that the duties of President were also to continue to be exercised by the judge who had presided over the Court during the previous phases, and whose term of office was to expire on 31 December 1930. PCIJ, Ser. E, No. 8, 246 (1932). In the Corfu Channel case, the President in the preliminary objection phase (Guerrero), who was also President at the commencement of the hearings on the merits, continued as Acting President also in the compensation phase several months later, despite that his term of office as President came to an end before the merits phase was concluded. ICJ Rep. 1948 15, ibid. 1949 4, 244. Thus the President made orders regarding time limits in the East Timor and the Oil Platforms cases during the Court’s deliberating on another case. ICJ Rep. 1993 32, 35.

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Court”. That reservation does not confer any right of appeal from these interlocutory decisions of the President. In this respect the present Court, it is understood, follows the practice established by the Permanent Court in application of Article 48 of the Statute (concerning the general conduct of a case). The Permanent Court has reported as follows: It was understood (February 18th, 1922) that the Court’s right to make orders differing from those already made by the President would not involve a right on the part of the Parties to appeal to the Court against the orders of the President. During the revision of the Rules at the ordinary session in 1926, an amendment to Rule 33 [of the Rules of 1922] providing that there was no right of appeal for the Parties against a decisions of the President, was proposed. This amendment was not adopted, as it was held that it was unnecessary, because the President was simply exercising powers delegated to him by the Court, and consequently there could be no appeal against his decisions.20

By Article 52, paragraph 1, the President may authorize the correction of “any slip or error” in any document already filed, if the other party does not consent. By Article 53, paragraph 1, the President, if the Court is not sitting, may, after ascertaining the views of the parties, decide to make the written pleadings available to any State entitled to appear before the Court that has asked for them – something that could be important in cases of contemplated intervention. The decision to make the pleadings public, however, rests with the Court itself. Article 54 empowers the President, if the Court is not sitting, to fix the date for the opening of the oral proceedings or their postponement. This was once a matter of routine, since in principle cases were heard in the order in which they became ready for hearing. The Rules of 1978 abolish that provision, replacing it by Article 54. This substitutes for the formal criterion the idea of “special circumstances, including the urgency of a particular case” as a factor to decide the date of the hearing in a particular case. That places increased responsibility on the President. Article 61, paragraph 3, gives every judge the right to put questions to the parties and to ask for explanations. Before exercising that right, the judge should make his intention known to the President, “who is made responsible by Article 45 of the Statute for the control of the hearing”. There is little known practice about this. In 1937 a member of the Court asked one of

20

PCIJ, Ser. E, No. 3, 210 (1927). For the discussions of this question in the Permanent Court, see PCIJ, Ser. D, No. 2, 66 (1922); No. 2, Add. 68 (1926). In the Rules of 1922, 1926 and 1931 this reservation was worded “subject to any subsequent decision of the Court”. In 1936 (Art. 37 (5)), the present wording was adopted and has remained unchanged.

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the agents to produce two documents. No difficulty was made regarding one of those documents: as for the other, the agent objected on the ground that it was confidential. The Permanent Court continues: It was held that, while the Court could always insist on the production of any document under Article 49 of the Statute, it was preferable in this case not to do so; accordingly, the President at the next hearing announced that he considered the production in question unnecessary and asked the agent concerned not to produce it.21

In Article 63 the Court has delegated to the President, if it is not sitting, the power, at the request of a party or proprio motu, to take the necessary steps for the examination of witnesses otherwise than before the Court itself. Although witnesses have been called in several cases before the present Court or one of its Chambers, there has been no need yet to apply that provision. Article 65 lays down that the examination of witnesses and experts shall be under the control of the President, who, together with the other judges, may himself also put questions to them. A curious incident involving this Rule occurred in the Elettronica Sicula S.p.A. (ELSI) case (before a Chamber). The judgment dryly records this in the following passage: Mr X [listed as an adviser to the United States delegation] addressed the Court for the United States; since he had occasion to refer to matters of fact within his knowledge as a lawyer acting for Raytheon Company, the President of the Chamber acceded to a request by the Agent of Italy that Mr X be treated pro tanto as a witness. Mr X, who informed the Chamber that both Raytheon Company and Mr X himself waived any relevant privilege, was cross-examined. . . .22

Article 69, paragraph 3, deals with the application of Article 34, paragraph 3, of the Statute, a new provision inserted in 1945. By that, whenever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the organization concerned and shall communicate to it copies of all the written proceedings. Article 69, paragraph 3, of the Rules provides that in the circumstances contemplated by Article 34, paragraph 3, of the Statute, the Registrar, on the instructions of the Court, or of the President if the Court is not sitting, shall proceed as prescribed in that paragraph. Paragraph 3 continues:

21

22

PCIJ, Ser. E, No. 12, 151. The view of the present Court regarding Art. 49 of the Statute is different. It will take note of a refusal of a party to produce a document. Corfu Channel case, ICJ Rep. 1949 4, 32. ICJ Rep. 1989 15, 19. The proceedings themselves were more dramatic. See C.3/CR.89/9, 52 and CR.89/10, 8, 27 February 1989.

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The Court, or the President if the Court is not sitting, may, as from the date on which the Registrar has communicated copies of the written proceedings and after consulting the chief administrative officer of the public international organization concerned, fix a time-limit within which the organization may submit to the Court its observations in writing. . . .

This is a new power delegated to the President. It comes within the scope of the principle that there is no appeal from the President’s decision on this type of question. Instances have occurred which show that this too places new responsibilities on the President. Articles 74 to 78 are the procedural code for provisional measures of protection, amplifying the bare norm enunciated in Article 41 of the Statute. This code grants extensive powers to the President, with corresponding responsibility. When a request for the indication of provisional measures is filed, if the Court is not in session the President has to convene it “forthwith” for deciding the request “as a matter of urgency”. The Court, or the President if the Court is not sitting, shall fix a date for the hearing affording the parties an opportunity of being represented at it. Particularly important is Article 74, paragraph 4, relating exclusively to the President: Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effect.

This has produced several decisions by the President. In the Anglo-Iranian Oil Co. (Interim Measures) case, the President (Basdevant) exercised that power and sent an appropriate message to the respondent Government, which however, rejected the President’s appeal.23 In the United States Diplomatic and Consular Staff in Tehran (Provisional Measures) case, the President (Sir Humphrey Waldock) exercised that power. He called to the attention of both parties the fact that the matter was sub judice before the Court and the need to act in such a way as would enable any order the Court might make to have its appropriate effect.24 In the Military and Paramilitary Activities in and against Nicaragua case, six weeks after the order indicating provisional measures the applicant applied for a further indication of provisional measures. The President (Elias) brought this directly to the attention of the Court without arranging for any hearing. The Court decided that the request should await the outcome of the proceedings on jurisdiction and admissibility then in progress.25 In the two cases concerning the Interpretation and

23 24 25

ICJ Rep. 1950 89, 91; Pleadings, 707 (doc. 20). ICJ Rep. 1979 7, 10 (para. 6); Pleadings, 405 (doc. 6). This is recorded in the judgment on the merits. ICJ Rep. 1986 14, 144 (para. 287).

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Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie the Acting President (Oda) fixed the date for the hearings having regard to the wishes of the parties. He refused to exercise his powers under paragraph 4. He said that after the most careful consideration of all the circumstances then known to him, he had come to the conclusion that it would not be appropriate for him to exercise what he termed “the discretionary power” conferred on the President by Article 74, paragraph 4, of the Rules.26 In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Further Provisional Measures) case, the President (Sir Robert) acceded to a request by the respondent to fix a date for the hearing that would enable it adequately to prepare its response. He rejected appeals by the applicant to reconsider that date and also an amended request by the applicant “for an immediate Order without hearing pursuant to Article 75, paragraph 1,” of the Rules. The reason for this was that the President followed an earlier decision of the Court on the first request for an indication of provisional measures, to the effect that the Court did not consider that the question arose of the exercise of its powers under Article 75, paragraph 1, of the Rules of Court. On the other hand, he exercised his power under Article 74, paragraph 4, and addressed an appropriate call to both parties, stressing that the earlier order still applied.27 These instances are sufficient illustration of the delicate nature of this power given to the President. Articles 81 to 86 supply a code of procedure for intervention. In addition, a new Article 43 (as amended in 2005) requires the Court to consider what directions are to be given to the Registrar who, by Article 63 of the Statute, has to notify third States whenever the construction of a treaty to which they are parties is in question. In the conception of the Statute, that duty of the Registrar is administrative and he would usually consult with the President in case of need. It is not clear why the Rules do not vest this power in the President when the Court is not sitting. The failure to delegate this power may become a source of difficulty in practice. By Article 83, paragraph 1, the President has a delegated power, when the Court is not sitting, to fix a time limit within which the parties may submit their observations

26 27

ICJ Rep. 2993 3, 8, 9 (paras. 16, 17); 114, 120 (paras. 17, 18). ICJ Rep. 1993 325, 333, 334 (paras. 8, 9, 13). In the previous order the Court had fixed a very short time limit for the hearing and refused a request by the respondent for an extension, ibid. 3, 9 (para. 7). In that order the Court recalled that under Art. 75 (2) it had the power to indicate provisional measures that are in whole or in part other than those requested, or that ought to be taken or complied with by the party which had itself made the request, and proceeded so to act, ibid. 22 (para. 46). For other instances see Sh. Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (2005) 169.

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on an application for permission to intervene under Article 62 of the Statute or a declaration of intervention under Article 63. He has a similar delegated power under Article 85 to fix time limits for a written statement by a State applying to intervene under Article 62, and for observations on that written statement by the parties. Article 86 vests a similar delegated power in the President in connection with an admitted intervention under Article 63. Article 65, paragraph 2, of the 1946 Rules (and its predecessor), gave the President power, if the Court was not sitting, to fix time limits within which if the intervention was not opposed the intervener could file a memorial on the merits. This was “without prejudice to the decision of the Court on whether the application should be granted”. The 1978 Rules drop this. Here too, there is no public explanation of the reasons for this curtailment of the President’s powers.28 Under Articles 88 and 89, relating to discontinuance, the President has the power to make the necessary orders when the Court is not sitting. Usually these orders are a matter of routine, but on occasion control has to be exercised over them. An example is the order of discontinuance in the United States Diplomatic and Consular Staff in Tehran case. Here the President (Sir Humphrey Waldock) refused to accept discontinuance purportedly subject to a right to reinstate the case. He ordered the discontinuance only after he had been assured that it was unconditional.29 Above all, it is in connection with the deliberations of the Bench that the President is placed in the most powerful, most responsible, and most sensitive position. The Statute simply provides that after the hearing the Court shall withdraw to consider the decision. The deliberations take place in private and remain secret (Article 54). All questions shall be decided by a majority of the judges present, the President having a casting vote if necessary (Article 55). The Rules (Articles 94 to 97) carry this a little further, but they are purely formal. The method of deliberation on judicial decisions is now set out in the Resolution on the Court’s Judicial Practice adopted on 17 April 1976.30 The President (of the Bench) is responsible for the organization of the deliberation. After an appropriate period for the judges to study the case, the first deliberation is held. On this occasion the President outlines the issues that he thinks will require discussion and decision by the Court, any

28 29 30

See Sh. Rosenne, Intervention in the International Court of Justice, chapter 4 (1993). ICJ Rep. 1981 45. For criticism of this order, see G. Wegen, “Discontinuance of International Proceedings: The Hostages Case”, 76 AJIL. 717 (1982). Acts and Documents concerning the Organization of the Court, No. 5, Charter of the United Nations, Statute and Rules of Court and Other Documents 164 (French), 165 (English) (1989); my Documents, note 11 above, 441.

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judge having the right to comment and draw attention to any other issues that arise. The Resolution (paragraph 4(ii)) also invites the judges to indicate their preliminary impressions regarding any issue or question. At this stage, the President will call on the judges in the order in which they signify their desire to speak. After this, each judge prepares his note expressing his views on the various questions. These notes are circulated to the other judges. A further deliberation then takes place, where, as a rule, the President calls on the judges in inverse order of seniority. On the request of any judge, the President shall ask the Court to decide whether a vote shall be taken on any question. At this point the Court chooses a drafting committee by secret ballot and by an absolute majority of votes of the judges present. The drafting committee should consist of two judges whose views as expressed in the previous deliberations “have most closely and effectively reflected the opinion of the majority of the Court as it then exists”. The President is ex officio a member of the drafting committee unless he does not share the majority opinion as it then appears. In that event the Vice-President or, if he also does not share the majority opinion, a third member elected by the Court, takes his place. However, if the President is not a member of the drafting committee, the draft is to be discussed with him before it is submitted to the Court. The President may also propose amendments. If the drafting committee does not adopt them it shall nevertheless submit the President’s proposals to the Court together with its own draft. The preliminary draft of the decision is circulated and the judges may submit amendments. After consideration by the drafting committee, the revised draft decision is submitted to the Court for first reading. The judges then circulate their individual opinions and the drafting committee prepares the text for the second reading. At the second reading the President is to enquire whether any judge wishes to submit further amendments. At a suitable interval after the second reading, the President calls upon the judges to give their final vote on the decision or conclusion concerned, in inverse order of seniority. In this vote, no abstentions are permitted. It is at this point that the President’s casting vote becomes decisive. Moreover, since the President is the last to vote, he knows before voting whether the vote will create a situation requiring or enabling him to use the casting vote. In the history of the two Courts, two decisions in contentious cases and one in an advisory case have been made by the President’s casting vote. The first contentious judgment so decided was the Lotus case in the Permanent Court (President Huber), and the second the judgment in the second phase of the South West Africa cases in the present Court (President Sir Percy Spender).31 The casting vote was also used by

31

PCIJ, Ser. A, No. 10 (1927); [1966] ICJ Rep. 6. The formula used has varied. In Lotus it is

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President Bedjaoui in the advisory opinion on Legality of the Threat or Use of Nuclear Weapons.32 In none of these cases is it possible to know what the motion was that caused the tie in the first place; it is accordingly not possible to know how the President used his casting vote. The use of the casting vote in advisory proceedings raises other issues. Since an advisory opinion is not ‘final and without appeal’ (in the words of Article 60 of the Statute) and thus is not a ‘decision’, there is no functional need for a conclusive and executory operative clause. If the votes are tied the proposition put to the vote simply has not reached the ‘majority of the judges present’ required by Article 55, paragraph 1, of the Statute. In such circumstances one might expect the Court to exercise its discretion and decline to include the tied vote in its ‘reply to the question put to the Court’, in the words of Article 107 of the Rules of Court. An opinion adopted by what in effect is a single vote of whoever is presiding over the Court at the given moment is unlikely to proffer acceptable guidance to the requesting organ. There is no indication in the advisory opinion under discussion that the Court gave any consideration to this aspect. As for the voting, the President may propose, and the Court is to decide, whether through illness or other reason deemed adequate by the President a judge may record his final vote otherwise than in person at the meeting of the Court. In 1978 the Court’s Rules Committee, then preparing the revised Rules of 1978, adopted a decision about separate and dissenting opinions, and declarations. It decided that the President in his capacity as such and as part of his function to direct the work of the Court as a “special case” could append a declaration not falling within the normal function of such declarations.

32

‘given by the President’s casting vote – the votes being equally divided – judgment to the effect’. In South West Africa it is ‘The Court, by the President’s casting vote – the votes being equally divided, decides . . .’ It is curious that in both instances the effects of a decision reached by the casting vote of the President had to be changed by the international community. The decision in the Lotus case was changed in the process of the codification of the law of the sea; that in the South West Africa cases was repudiated by the General Assembly in its resolution 2145 (XXI), 27 October 1966. In effect that was confirmed by the Court, in a changed composition, in its advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), [1971] ICJ Rep. 16. It is understood that the process of deliberation is simplified in the case of orders of the Court, including orders for the indication of provisional measures. ICJ Rep. 1996–I 226. The Court adopted a new formula here, the Report stating that para. E of the Court’s reply to the question put to it was adopted by ‘seven votes to seven, by the President’s casting vote’. Each judge who sat in this case appended a declaration, or a separate or a dissenting opinion.

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This power has been used once, by President Lachs in an interlocutory decision on the composition of the Court, reserving the right of the judges to express their opinion on that matter at a later stage.33 There is no doubt that the role of the President in the deliberations calls for the highest qualities of diplomatic skill coupled with deep knowledge not only of the case itself, but of its broader context. The experience in the cases decided by the President’s casting vote suggests that the President should take into account the likely reaction of the international community to a decision reached through the casting vote. Articles 15 to 18 concern the composition of the Chambers of the Court, and Articles 90 to 93 govern the procedure in the Chambers. Regarding the composition, both the President and the Vice-President shall be members of the Chamber of Summary Procedure formed annually under Article 29 of the Statute (Article 15, paragraph 1, of the Rules). For an ad hoc Chamber to deal with a particular case formed by virtue of Article 26, paragraph 2, of the Statute, Article 17 of the Rules imposes two separate duties on the President. If only one party requests the formation of such a Chamber, he has to ascertain that the other party agrees. When the parties have agreed, he now has to “ascertain their views regarding the composition” of the Chamber. The experience of the formation of the Chamber in the Gulf of Maine case shows that this can be a delicate matter. In the first place, the Rules contain an apparent divergence from the Statute, replacing the word there, namely “number”, by “composition”. This gives the parties greater control over the formation of such a Chamber. In the Gulf of Maine case there was a question of the compatibility of the special agreement (ratification of which had encountered difficulties in the United States Senate) with the Statute and Rules of Court. This had been a matter for negotiation between the parties and informally with the then President (Sir Humphrey Waldock), but he died before the matter could be completed. Through the Acting President (Elias) further negotiations took place. The Court then decided to form the Chamber and to elect its members as requested by the parties a few days before the end of a triennial period of membership of the Court, well after the election of the replacements.34 It is believed that

33

34

Western Sahara case, ICJ Rep. 1975 6, 9. For that decision of the Rules Committee, see ICJ Yearbook 1978–1979 217. In the LaGrand cases the President (Guillaume) seems to have made such a statement in the third paragraph of his Declaration appended to the judgment, ICJ Rep. 2001 466 at 517. He amplified that remark in a statement to the press available on the Court’s website. ICJ Rep. 1982 3. More on this by S.M. Schwebel (in his personal capacity), “Chambers of the International Court of Justice Formed for Particular Cases”, International Law at a Time of Perplexity, note 4 above, 739, especially at 754.

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there have been other Chamber cases in which there were difficulties over the composition or the recomposition of a Chamber. Article 18 governs the election of the members of all Chambers. Article 18, paragraph 2, provides that if a Chamber when formed includes the President or Vice-President of the Court, the President or Vice-President shall preside over the Chamber. In other cases, the Chamber elects its own President. He continues to preside while he remains a member of the Chamber, even if his term of office as a Member of the Court ends. The operative words here are when formed. Thus, the ad hoc Chamber for the ELSI case as originally formed included the then President of the Court (Nagendra Singh). On his death the Court reconstituted the Chamber and the next President of the Court (Ruda) was elected and became President of the Chamber.35 On the other hand, two Members of the Court who were members of the Chamber formed to decide the Land, Island and Maritime Frontier Dispute case were, while the case was pending, elected President and Vice-President of the Court. They continued as members of the Chamber, but their precedence among its members was re-ordered. Furthermore, the term of office of the Member of the Court who had been elected President of the Chamber (Sette-Camara) ended while the proceedings were still in progress. He remained President of the Chamber until the judgment was rendered.36 In the Frontier Dispute (Benin/Niger) case, after President Guillaume resigned from the Court the Vice-President (Ranjeva), who was an original member of the Chamber, automatically became president of the Chamber.37 The Court first made use of its power to form a Chamber under Article 26, paragraph 1, of the Statute, a standing Chamber to deal with a particular category of case, on 19 July 1993. It established a seven-member Chamber for Environmental Matters. Neither the President nor the Vice-President of the Court was a member of that Chamber.38 When a Chamber is to decide a case, Article 91 of the Rules requires the President of the Court to convene the Chamber at the earliest date compatible with the procedure. It is customary for the President of the Court to be present at the first meeting of an ad hoc Chamber, when the proceedings are formally opened and the judges ad hoc (if any) make their solemn declaration.

35 36 37 38

ICJ Rep. 1987 3; ibid. 1988 158. ICJ Rep. 1987 10; ibid. 1989 162; and for the revised order of precedence of the members of the Chamber, ibid. 1992 351, 353. ICJ Rep. 2005 84. The President of the Court at the time, Judge Shi, did not become a member of the Chamber. Report of the International Court of Justice, 1 August 1992–31 July 1993, General Assembly, 48th session, Official Records, Supplement No. 4 (A/48/4) 1.

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For the interpretation of a judgment, the President, if the Court is not sitting, may fix the time limit within which the adverse party may submit its observations (Article 98, paragraph 3). The same rule applies to a request for the revision of a judgment (Article 99, paragraph 2). In the advisory proceedings, the President, if the Court is not sitting, has a comparable power to make interlocutory orders and decisions. This includes an exceptional power to decide whether oral proceedings shall take place (Article 105, paragraph 2(b)). In contentious cases before the full Court, an oral phase is obligatory (Statute, Article 43, paragraph 1). * * * The President is frequently requested by the parties to treaties or commercial and similar contracts, not necessarily a State entitled to appear before the Court, to appoint an arbitrator or an umpire. In 1923 the Permanent Court was asked to appoint an arbitrator in a commercial dispute. It decided that it could not undertake this task, but that the President, if approached, might be willing to act. This has now developed considerably. The President normally performs such a function, subject to the same disqualifications as are applicable to his acting as President of a Bench. The parties negotiating such a transaction should consult with the President before concluding their contract.39 Although many interlocutory powers of the President may appear as matters of routine, they nevertheless call for great qualities of leadership and frequently of diplomatic skill. The presidency of a small cohesive body of highly competent individuals, each with his own personality, cannot be compared to the presidency of a large international gathering, relatively impersonal and highly political in its approach to its business. During the drafting of the Statute the view was expressed that it would be dangerous to make the presidency of the Court “too important”. The President should be “only” primus inter pares.40 Developments since 1920 have shown that this might be appropriate for the administrative functions of the President. However, it is not an adequate or proper description of the President’s role or functions in the conduct of judicial proceedings. Here the President has a dominant and leading role. The President faces a major challenge in forging the largest possible majority for any decision the Court may take, be it interlocutory or dispositive. In instances of high political tension, this is no easy matter. It is through this that the office of President has attained its great prestige.

39 40

PCIJ, Ser. E, No. 3, 228 (1927); ICJ Yearbook 1991–1992 146. Lord Phillimore, at the 20th meeting of the Advisory Committee of Jurists. loc. cit. note 7 above, 456.

3 A ROLE FOR THE INTERNATIONAL COURT OF JUSTICE IN CRISIS MANAGEMENT?

I. Sovereignty and jurisdiction The theme of the volume in which this essay originally appeared is changes in the perception of the concept of sovereignty. That assumes the existence of a single ‘concept of sovereignty’ which, in the twentieth century, has undergone changes. A distinguished Dutch Foreign Minister wrote as far back as 1953: ‘the notion of sovereignty continues to be a dominating element in the treasure-house of our heart and mind; we are strongly affected by it, and it is part of nearly everybody’s being. To ignore this fact would be silly’.1 Has that changed? In the abstract, and to oversimplify, ‘sovereignty’ can be considered as a State’s exclusiveness and paramountcy in the conduct of its affairs, internal and external. It is a commonplace in international law and international relations that any limitation on sovereignty through voluntary participation in an international treaty is one of the supreme manifestations of sovereignty. A well-known expression of this in international law and relations is the rule that no one can compel any State to engage in contentious litigation before any international court or tribunal without its consent. The International Court of Justice (ICJ) insists that there should be no doubt about that consent if it is to decide the whole dispute.2 Yet with this as the point of departure, since the establishment of the United Nations the use of judicial and quasi-judicial techniques in a process of crisis management has developed in directions that the founders could not have foreseen in 1945, and even less the founders of the Permanent Court in 1920. Nevertheless, the practical application of this requirement of consent is not so simple and there is growing artificiality in the bare statement of principle. It holds well in routine legal disputes between States that beyond

1 2

E.N. van Kleffens, ‘Sovereignty in International Law’, Academy of International Law, Recueil des Cours, vol. 82 (1953–I), pp. 1–132, p. 130. It has even introduced a special procedure to ensure this. Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) case, ICJ Rep. 1994 112 and 1995 6. And see ‘The Qatar/Bahrain Case: What is a Treaty? A Framework Agreement and the Seising of the Court’, at Essay 22 below.

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perhaps a ripple do not seriously affect their mutual relations and are not any threat to international peace and security. The change lies in the voluntary waivers by most States of their absolute sovereignty through their membership in the United Nations and other international organizations, and through their participation in other multilateral and bilateral treaties. Membership in the United Nations in particular is bringing about fundamental changes in the practical application of sovereignty in today’s international affairs. For while the Charter specifically postulates the sovereign equality of States as one of its principles, the expanding range of concern of the United Nations extending virtually to all spheres of human activity is making continuous inroads into the earlier exclusiveness and paramountcy of the sovereign State. This has implications for the International Court of Justice. The Court’s Statute is an integral part of the Charter and the Court is a principal organ of the United Nations. Membership in the United Nations includes ipso facto participation in the Statute of the Court. Participation in the Statute of the Court extends automatically to acceptance of what is called the Court’s ‘incidental’ jurisdiction – especially its jurisdiction to indicate provisional measures of protection and to decide matters of its own jurisdiction, the compétence de la compétence (neither of which reach the merits of a contentious case) – as well as to its advisory competence.3 Membership in the United Nations thus supplies a consensual basis for the exercise of all those forms of jurisdiction, a major attrition of the principle of sovereignty. Since 1945 the ICJ has faced many novel situations. These have included situations of crisis in which there was a threat of the use of armed force and a consequent danger to international peace, the Security Council also dealing with it. When the respondent is ‘unwilling’, the Court has to establish its consent as a matter of law, not of policy, through careful and sometimes subtle reasoning and examination of relevant legal texts in light of broader judicial policy. This has brought out a major difference between political willingness to engage in international litigation and the legal obligation to do so, a matter also affecting compliance with the judicial decision. In turn, this has led the Court on occasion to include in its decisions statements about the underlying legal issue, even where it has no jurisdiction over the merits. Here we can see a tendency for the Court to override possible restraints that a strict attention to the demands of exclusive State sovereignty and the consensual basis of its jurisdiction over the merits could be taken to have imposed on it.

3

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) adv. op., ICJ Rep. 1971 16, 23 (para. 31); Western Sahara adv. op., ibid. 1975. 12, 24 (para. 30). On the incidental jurisdiction, see Sh. Rosenne, Law and Practice 4 vol. II 578.

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37

Although the Court has had to maintain that principle in contentious cases, close examination of different judicial pronouncements suggests that its perception of a State’s sovereign right to decide whether and when it will participate in contentious litigation is undergoing delicately complex changes. The fundamental principle of the consensual basis of jurisdiction to decide the merits remains. However, modern case-law shows signs of what some might see as a leaning in favour of the applicant, more than was once thought to be usual, possibly even a refined reassessment of what the dispute is really about and what the ‘merits’ really are. In addition, the distinction between the contentious jurisdiction, in which this conception is rooted, and other forms of jurisdiction, notably incidental jurisdiction and the advisory competence, where this principle does not apply, 4 shows signs of becoming blurred. For the most part, these changes are taking place in ‘incidental proceedings’, especially where a State has requested the Court to indicate provisional measures of protection in a crisis situation. What followed the dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY) is an outstanding example of the invocation of judicial techniques in different phases of a complex crisis and its management. That began in 1991 and is continuing. This is not the only example, however. This essay looks at the question whether those engaged in crisis management can usefully invoke international judicial techniques, and more specifically the ICJ. Some remarks of President Martti Ahtisaari of Finland to the Israel Council on Foreign Relations summarizing the lessons of crisis management in Kosovo have prompted this investigation. President Ahtisaari said: Something that I have earlier proposed for consideration is that the International Court of Justice be asked for an advisory opinion when a crisis defies resolution. The legal view presented by the Court with all its prestige behind it could help the Security

4

The advisory competence has been invoked in two situations that developed into crises, the situation of South West Africa (Namibia) and that of Western Sahara, in each case contrary to the wishes of the respective Administering Authorities (States). South West Africa also involved a controversial and unsatisfactory interlude in a contentious case. The long list of relevant judicial pronouncements on those two situations follows. For Namibia – International Status of South West Africa, ICJ Rep. 1950 128; Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa, ibid. 1955 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa, ibid. 1956 23; the Namibia adv. op. (previous note). The General Assembly requested the first three opinions, and the Security Council the fourth. The contentious case is the South West Africa (Ethiopia v South Africa; Liberia v South Africa, joined) (Preliminary Objections), ibid. 1962 319; (Second Phase), ibid. 1966 6 (decided by the casting vote of the President, Sir Percy Spender). For Western Sahara (still on the agenda of the Security Council), see Western Sahara adv. op., previous note.

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Council to find the necessary political consensus where states faced the possibility of international intervention because they were no longer capable of protecting their citizens from armed violence or willing to do so.5

‘Crisis management’ in this sense is different from preventive diplomacy, although there is a close interrelationship between the two. In preventive diplomacy, the crisis usually originates in dissatisfaction with the existing state of affairs and a strong political desire for fundamental changes in the status quo, sometimes called, euphemistically, peaceful change. If courts exist to apply the law, can any court play any role when only a change in the law, peaceful or not, will resolve the crisis? The Court has explicitly stated that it cannot render judgment sub specie legis ferendae.6 Yet paradoxical though it might seem, the answer, as will appear from the following pages, might sometimes be affirmative. That is because an international crisis of that size is not a tidy, compact, and easily manageable affair. It will be untidy, with many loose ends and subsidiary disputes. Judicial treatment of appropriate elements of the crisis can, although not necessarily will, perform a significant, albeit not exclusive, role in the management of that crisis. The International Court has explained the position in the following passage, repeated in two judgments rendered in crisis situations: [L]egal disputes between sovereign States by their very nature are likely to occur in political contexts, and often form only one element in a wider and long-standing political dispute between the States concerned. Yet never has the view been put forward that, because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal questions at issue between them. Nor can any basis for such a view of the Court’s functions or jurisdiction be found in the Charter or the Statute of the Court; if the Court were, contrary to its settled jurisprudence, to adopt such a view, it would impose a far-reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes.7

The Court has worded this differently in its explanation of the term ‘legal question’ on which it may give an advisory opinion:

5

6

7

From the text of the speech of 4 October 1999, furnished by the Embassy of Finland in Israel, p. 6. President Ahtisaari had been President of the European Union and had played a leading role during the Kosovo crisis of the first part of 1999. That speech was devoted to his experiences and recommendations for crisis management. Fisheries Jurisdiction (Merits) (U.K v Iceland, F.R.G v Iceland), ICJ Rep. 1974 3 at p. 23 (para. 53); 175 at p. 192 (para. 45); Delimitation of the Continental Shelf (Tunisia/Libya) case, ibid. 1982 18 at p. 47 (para. 23). United States Diplomatic and Consular Staff in Tehran case, ICJ Rep. 1980 3, 20 (para. 37); the Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) case, ibid. 1984 392, 433 (para. 93).

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39

[I]n situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles with respect to the matter under debate[.]8

Both formulas point to the Court’s functions in crisis management. II. The crises in Yugoslavia The complex situation arising out of the dissolution of the former SFRY can serve as a model for this examination. That crisis has led to more recourse to international judicial and quasi-judicial processes than any other major crisis of the twentieth century. A list follows of judicial or quasi-judicial organs seised at one time or another of different aspects that have arisen since 1991 (excluding criminal cases in the ICTY, formed specially to deal with allegations of individual criminal responsibility for violations of international humanitarian law in the course of the hostilities of that crisis). • The Badinter Commission. The initial Conference on Yugoslavia of the European Community established this five-man Commission, the first such body, in 1991 under the designation of ‘Arbitration Commission’. Its chairman was M. Robert Badinter, President of the French Conseil constitutionnel. Its other members were the Presidents of the Constitutional Courts of Italy (Corasanti), Germany (Herzog) and Spain (Tomas y Valiente), and of the Belgian Cour d’Arbitrage (Petry). Between 1991 and 1993 it rendered a series of opinions on questions that the Chairman of the Conference referred to it.9

8

9

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt adv. op., ICJ Rep. 1980 73, 87 (para. 33); Legality of the Threat or Use of Nuclear Weapons adv. op., ibid. 1996–I, 226, 234 (para. 13). English translations of these Opinions are conveniently collected as follows: Opinions 1–10 (1991–1992) in 92 ILR 162–211, and Opinions 11 to 15 (1993) in 96 ibid. 713–742). There are two references to this Commission in the judgment on the merits in the Application of the Genocide Convention case of 26 February 2007 without any comment, in paras. 4 and 233. On this Commission, see M. Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’, 86 AJIL 569 (1992); A. Pellet, ‘L’activité de la Commission d’arbitrage de la Conférence européenne pour l’ancienne Yougoslavie’, 38 Annuaire français de droit international 220 (1992); Id., ‘L’activité de la Commission d’arbitrage de la Conférence européenne pour l’ancienne Yougoslavie’, 39 ibid. 286 (1993); M.C.R. Craven, ‘The European Community Arbitration Commission on Yugoslavia’, 66 BYIL 333 (1995); M. Pomerance, ‘The Badinter Commission: the Use and Misuse of the International Court of Justice’s Jurisprudence’, 20 Mich. J. Int’l L. 31 (1998). For a Croatian view of the Commission, see I. Vukas, ‘States, Peoples and Minorities’, 231 Recueil (1991–VI) 263, particularly at pp. 293, 420. For an authoritative Yugoslav critique of the Commission, see the dissenting opinions of Judge ad hoc KreÏca in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) case, ICJ Rep. 1996–II 595, 658 and passim, and in the Legality of Use of Force (Provisional Measures) (Yugoslavia v Belgium) case,

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This Commission was originally composed of eminent European constitutional lawyers, not one a specialist in international law. In 1993 the Community reconstituted it to include a former member of the ICJ designated by its President and a member of the European Court of Human Rights designated by its President. The Commission was then composed of Badinter, Herzog, Casavola (Italy), José María Ruda (Argentina, a former President of the ICJ), and Palm (Sweden, of the European Court of Human Rights). The six constituent republics of the former SFRY (as they existed at the time) – Bosnia-Herzegovina, Croatia, Macedonia (as it was then called), Montenegro, Serbia, and Slovenia – apparently accepted that arrangement in general before their independence, although not necessarily the Commission’s competence in specific cases. Its procedure, while allowing all parties to submit memoranda, did not meet the accepted requirements for the administration of international justice, whether through a court or through arbitral procedure, contentious or advisory, commensurate with the task that it was required to perform. Its advisory opinions carried political weight in the European Community at the time. Their standing as international legal pronouncements is controversial. One view is that some of its opinions led to premature recognition of the independence of new States and their boundaries, in that way prolonging the crisis. On the other hand, an equally strong current of opinion holds that except perhaps regarding Bosnia, the Commission’s determination of the date of independence of the new States and its decision to apply the doctrine of uti possidetis to fix their initial boundaries were valuable elements for the long-term stabilization of the general situation in the area. • The International Court of Justice between 1993 and 1999 has been seised of no less than twelve contentious cases involving thirteen States related to the crisis. Both secessionist States, Bosnia-Herzegovina (Bosnia) and Croatia on the one hand, and on the other Yugoslavia (Serbia and Montenegro), the State claiming to be the continuation of the SFRY, have taken the initiative for this.10

10

ibid. 1999 124, 218 at 228. ICTY has occasionally cited opinions of the Badinter Commission, e.g. in Prosecutor v DelaliÏc et al. (the ÛCelebiÏc i case), IT-96–21–T, Trial Chamber, Judgment of 16 November 1998, para. 105. In Res. 47/1 of 22 Sept. 1992, the General Assembly considered that the FRY ‘cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations, and therefore decides that the Federal Republic of Yugoslavia should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly’. The FRY did not accept that resolution and never raised the question of its effect on its status as a party to the Statute. Respondents raised the question in the 1999 Cases concerning Legality of Use of Force, brought by the Federal Republic against ten NATO members. In the provisional measures phase of those cases the Court did not find it necessary to consider this question for the purpose of deciding whether it could indicate

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41

(i) On 20 March 1993 Bosnia & Herzegovina commenced contentious proceedings against SFRY alleging that Yugoslavia had committed a series of violations of the Convention on the Prevention and Punishment of the Crime of Genocide.11 Simultaneously Bosnia requested an indication of provisional measures, which was granted.12 On 27 July 1993 Bosnia submitted a second request for an indication of provisional measures. Yugoslavia submitted a cross-request. Here the Court reaffirmed its previous order and called for its immediate and effective application.13 In due course Yugoslavia filed preliminary objections to the jurisdiction and to the admissibility of the case, and on 11 July 1996 the Court dismissed the objections one by one and held that it had jurisdiction and that the claim was admissible.14 The countermemorial filed in July 1997 contained counter-claims which were subsequently withdrawn.15 On 24 April 2001 Yugoslavia filed an application for the revision of the judgment of 1996 on the preliminary objections. On 4 May 2001 Yugoslavia filed a document entitled Initiative to the Court to Reconsider ex officio Jurisdiction over Yugoslavia (hereafter Initiative). A judgment of 3 February 2003 found the application for revision inadmissible.16 On 12 June 2004 the Court decided that it could not accede to the respondent’s request to suspend the proceedings until a decision was rendered on

11 12 13 14 15 16

provisional measures in the cases. Case against Belgium, ICJ Rep. 1999–I 124, 136 (para. 33), and equivalent paragraph in the other orders. Judge Kooijmans appended his separate opinion to those Orders, mainly because of doubts whether the present Yugoslavia was a ‘fullfledged, fully qualified Member of the United Nations’. He thought that the Court had no jurisdiction at all, that the Court should not have avoided this question. Separate opinion in the same (and other) cases, ibid. 173, 179. After the change of government in Yugoslavia in late 2000, the Federal Republic changed its position. It applied for admission and by Res. 55/12 of 1 Nov. 2000 the General Assembly admitted the country into the United Nations. In its judgments on the preliminary objections in those cases, the Court found that at the time of the institution of those proceedings (29 April 1999) Serbia and Montenegro did not have access to the Court and had found that it had no jurisdiction to entertain the claims. ICJ Rep. 2004, 279–1307. A central question of jurisdiction arose in the later stages of this case and was determined in the judgment on the merits, namely whether the country now named Serbia was or was not a ‘continuator’ of the Socialist Federal Republic of Yugoslavia. The Court ultimately decided this question in the affirmative. ICJ Rep. 2007, 26 February, paras. 80 to 141 and para. 471 (1), the operative clause on this question. This required a detailed examination of all the previous decisions in this case and in the related cases of the Request for Revision of the Judgment of 11 September 1996 as well as the Legality of Use of Force cases. 78 UNTS 277. ICJ Rep. 1993 3. Ibid. 325. ICJ Rep. 1996 595. ICJ Rep. 1997 243; ibid. 2001 572. ICJ Rep. 2003 7.

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the Initiative but that the respondent would be free to present further argument on the jurisdictional question in the oral proceedings. Those proceedings commenced on 27 February and continued to 9 May 2006. The respondent called six witnesses and one witness-expert. Judgment was delivered on 26 February 2007. In that lengthy judgment (471 paragraphs) the Court, after disposing of the outstanding jurisdictional questions raised by the Initiative, by the substantial majority of thirteen votes to two found that Serbia (as the respondent had come to be known) had not committed genocide, through its organs or persons whose acts engaged its responsibility under customary international law, in violation of its obligations under the Genocide Convention; by the same majority that Serbia had not conspired to commit genocide, nor incited the commission of genocide in violation of the Convention; by eleven votes to four that it had not been complicit in genocide, in violation of its obligations under the Convention; by twelve votes to three that Serbia had violated the obligation to prevent genocide, under the Convention, in respect of the genocide that occurred in Srebrenica in July 1995; that Serbia had violated its obligations under the Convention by having failed to transfer a named individual, indicted for genocide and complicity in genocide, for trial by the ICTY and thus had failed to cooperate with the Tribunal; by thirteen votes to two that Serbia had violated its obligation to comply with the provisional measures ordered in 1993, inasmuch as it had failed to take all measures within its power to prevent genocide in Srebrenica in July 1993;17 decided by fourteen votes to one that Serbia should immediately take effective steps to ensure full compliance with its obligations under the Convention and to transfer individuals accused of genocide to ICTY and to co-operate fully with that Tribunal; and found by thirteen votes to two that as regards the breaches by Serbia of the obligations referred to, the Court’s findings in the relevant paragraphs constituted appropriate satisfaction, and that the case was not one in which an order for the payment of compensation, or, in respect of the violation in respect of the genocide in Srebrenica in July 1995, a direction to provide assurances and guarantees of non-repetition, would be appropriate. The test of these proceedings will depend upon whether in the long run the judgment – a veritable Judgment of Solomon but without the symmetry – comes to contribute to the general improvement of relations in that disturbed and disturbing part of the world. Neither the subsistence of the proceedings commenced by the filing of the application in 1993, nor the later related proceedings of 1999 in the Legality of Use of Force cases, had

17

In para. 452 of the judgment the Court stated that the orders of 1993 created legal obligations which both parties were required to satisfy. This is not reflected in the operative clause of the judgment.

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any direct impact on the evolution of the situation in this part of the world and the judgment is almost entirely concerned with the past. This experience is not an encouraging sign for crisis management where the crisis is dominated by the use of armed force, whether legal or not: that is really the type of crisis for which the Security Council has primary responsibility under the Charter. The case also shows that current procedures are probably inadequate for a fact-intensive contentious case, where speedy action is required for effective crisis management.18 One wonders, however, what the Court’s answer could have been had the issues been put before it in a request for an advisory opinion, following President Ahtisaari’s suggestion noted above. • (ii) On 13 March 1994 at the height of the Kosovo crisis of that period, Yugoslavia purported to institute proceedings against member States of NATO. That document addressed different actions of NATO forces in Yugoslavia. However, the Registrar found that it did not comply with the conditions required of an application instituting proceedings. He therefore took no further action on it.19 • (iii) On 29 April 1999 Yugoslavia brought ten separate cases against NATO member States, alleging violations of the Genocide Convention through the bombing of Serbia in connection with the Kosovo crisis. Simultaneously in each case it requested provisional measures designed to stop that military action. Those are the Legality of Use of Force cases. In a series of ten Orders of 2 June 1999, the Court found that it was manifestly without jurisdiction in the cases brought against Spain and the United States of America and ordered their removal from the list. In the remaining eight cases the Court found that although it lacked prima facie jurisdiction and therefore could not indicate provisional measures, nevertheless it could not at that stage prejudge the question of jurisdiction.20 The issue of NATO’s actions in 1999 is still a matter of high controversy. It has led to an unusual statement by the prosecutor of ICTY justifying a decision not to initiate proceedings against NATO or members of the NATO force for possible violations of international humanitarian law,21 and powerful reports from Amnesty

18

19 20 21

See further in ‘Controlling Interlocutory Aspects of Proceedings in the International Court of Justice’, Essay 15 below. A notable feature of this judgment is that the violations of the Genocide Convention attributed to the respondent all occurred after the institution of the proceedings. Likewise, the asserted violation of the orders on provisional measures specifically attributed to Serbia occurred at a time when there was widespread uncertainty as to the binding force of an order indicating provisional measures. That uncertainty was only removed in the judgment of 2001 in the LaGrand case, ICJ Rep. 2001 466. See the Report of the International Court of Justice 1 August 1993–31 July 1994, 49 GAOR Supp. 4 (A/49/4) para. 23 (1994); M. Bulaji,c, Alternative Yugoslav Tribunal 209 (1995). ICJ Rep. 1999–I 124. Preliminary objections were raised in all eight cases, and the Court found that it had no jurisdiction to entertain them. See note 10 above. Statement of 13 June 2000, ICTY Press Release PR/P.I/S./510–e, following a discussion in

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International22 and other ‘neutral’ bodies alongside reports of the Government of Yugoslavia, themselves found by the ICTY prosecution to be ‘generally reliable’ in many respects. • (iv) On 2 July 1999 Croatia filed proceedings against Yugoslavia alleging violations of the Genocide Convention.23 As in the similar case brought by Bosnia, this case looks to the past. We therefore pay no further attention to it beyond noting its existence. • (v) In resolution 827 (1993) of 25 May 1993, the Security Council, acting under Chapter VII of the Charter, established the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia (ICTY).24 The Security Council took this unusual action because of its grave alarm at continuing reports of widespread violations of international humanitarian law and in particular the practice of ‘ethnic cleansing’, which it determined was a threat to international peace and security (resolution 808, 22 February 1993). As things are developing, there may be some cross-seeding between ICTY and the two cases pending in the ICJ relating to the application of the Genocide Convention.25 • (vi) Under the General Framework for Peace in Bosnia and Herzegovina, the Dayton Agreement of 1995, an Inter-Entity Boundary Line between Bosnia and the Republika Srpska was, failing agreement, to be established by binding arbitration. No agreement having been reached, the issue went to arbitration. Absent agreement on the third arbitrator, the President of the ICJ, exercising his extrajudicial power of appointment, appointed Roberts B. Owen. The latter rendered the BrÏc ko Area Boundary award on 14 February 1997 and a Final Award on 5 March 1999.26 This is another instance of the

22 23 24

25 26

the 4150th meeting of the Security Council on 2 June 2000, with a second discussion in the 4161st meeting, 20 June 2000. On the reliability of the documentation before the Prosecution, including a compilation of the Government of the Federal Republic of Yugoslavia, see para. 90. The Prosecutor’s Office also made use of the documents filed by Yugoslavia in the International Court, ibid. para. 6. Amnesty International, June 2000, NATO/Republic of Yugoslavia: “Collateral Damage” or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force. See Orders of 14 Sept. 1999, 10 Mar. 2000 and 27 June 2000. See ICTY, Basic Documents 1998, Sales No. E/F-98–III–P–1. The Security Council has shown little interest in the ongoing work of ICTY which, however, reports regularly to the General Assembly. However, in resolution 1503 (2003) of 28 August 2003 the Security Council called for ICTY to complete its work by the year 2010. For the report of an Expert Group to conduct a review of the effective operation and functioning of ICTY and the Rwanda Tribunal, see doc A/54/634, and for the comments of ICTY see A/54/850, since consolidated in S/2000/597. These are the most authoritative contemporary assessments of the work of ICTY. Cf. ‘Some Points of Contact between the International Criminal Court and the International Court of Justice’, Essay 18 below. For the BrÏc ko Area Boundary Award, see 52 SCOR Supp, for January, February, March 1997

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45

use of legal proceedings in crisis management. The negotiators at Rambouillet could not agree on this issue and deferred it to arbitration. The arbitral process showed sensitivity to all relevant points of view, and its outcome seems to have been successful in removing this disagreement and preventing another crisis from erupting there.27 • (vii) The Agreement between Croatia and Bosnia-Herzegovina on Free Transit through the Territory of the Republic of Croatia to and from the Port of PloÏce and through the Territory of Bosnia and Herzegovina at Neum, signed at Zagreb on 22 November 1998, required the International Tribunal for the Law of the Sea to appoint the seventh member of a supervisory Commission. The Tribunal appointed its President at the time, Judge Mensah.28 • (viii) During the year 2000, relatives of the staff of Radio Television Serbia in Belgrade instituted proceedings in the European Court of Human Rights against NATO members that are parties to the European Convention on Human Rights. The Grand Chamber found that the impugned action of the respondent States did not engage their responsibility under the Convention and that the application was inadmissible.29

27

28

29

(S/1997/126, Annex). It was noted by the Security Council in resolution 1103 (1997), 31 Mar. 1997. It was followed by a Supplemental Award of 15 March 1998, and a Final Award of 5 March 1999 with an Annex of 18 August 1999. For the Final Award, see 38 I.L.M. 1999 p. 534. The Final Award was approved by the General Assembly in Res. 54/119, 16 Dec. 1999. The parties were the Federation of Bosnia and Herzegovina and the Republika Srpska, so this was not strictly speaking an inter-State arbitration. It is, however, in implementation of a formal inter-State agreement and is analogous to one. This and related material is available on the website of the Office of the High Representative, . The Presiding Arbitrator, Roberts B. Owen, a Washington Attorney, is not to be confused with David Owen, who was Co-Chairman of the Steering Committee of the European Conference and was active in connection with the Badinter Commission. For the Dayton Agreement, see 50 SCOR, Supp. for October, November, December 1995 (S/1995/999). Under the Dayton Agreement (see previous note), the Office of the High Representative and the Mission to Bosnia-Herzegovina of the Organization for Security and Co-operation in Europe have functions in connection with the establishment of a civilian government, including specific functions in connection with elections. The Provisional Election Committee, composed of nationals and international personnel, has issued many binding decisions. They are not included in the catalogue of international judicial organs operating in connection with the Yugoslav crisis. Particulars are available on their websites, and . UN Doc. A/53/762 – S/1998/1118, 25 Nov. 1998; Annual Report of the International Tribunal for the Law of the Sea for 1998, Doc. SPLOS/35, 31 Mar. 1999, para. 17. That was the first instance of the exercise of the extra-judicial power by ITLOS. The case is entitled Bankovi,c v Belgium and Others (the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey, and the United Kingdom) (Application No. 52207/99), 11 BHRC 435, 123 ILR 94.

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These frequent instances of recourse to judicial organs do not all stand on the same footing. The work of the Badinter Commission was squarely in the role of crisis management in its early phases. Its advisory opinions, rendered to the Conference that appointed it, had a long-range impact on the evolution of the crisis. Bosnia’s initial contentious case had as its immediate objective not the indication of provisional measures generally – something that could have been taken for granted in the conditions of the time – but specifically a decision, even if in an order indicating provisional measures then of problematic legal character, embodying a reinterpretation of a major resolution of the Security Council. Bosnia’s principal request was for the Court to indicate that Security Council resolution 713 (1991), 25 September 1991, imposing a weapons embargo upon the former Yugoslavia, must be construed in such a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia under Article 51 of the Charter and the rules of customary international law. Yugoslavia had asked for that resolution at the time. Yugoslavia’s ten suits against member States of NATO at the height of the bombing of Serbia in 1999 were similar. Their urgent aim was to obtain from the Court an order requiring an immediate stop to the bombing. The Court refused both of those requests, stressing that each matter lay within the competence of the Security Council. It is notable that two major antagonists in the confused situation then existing saw a possibility that the ICJ could play a role, favourable to them, in crisis management. The BrÌcko Awards were made in application of the Peace Agreement and avoided further crisis. The two instances in which standing judicial organs were to act as appointing authorities for organs established by treaties, each part of the crisis solution measures, belong to the category of disputeprevention or dispute settlement measures. ICTY has an entirely different role. If the references to Chapter VII of the Charter in the constituent resolution and later repeated references to ICTY in resolutions both of the General Assembly and of the Security Council and in the Dayton and other accords have any legal meaning, the Security Council may have intended it to ease the political crisis. By acting under Chapter VII, the Security Council saw in its establishment an action with respect to threats to the peace, breaches of the peace and acts of aggression (to take the heading of Chapter VII), action directed to the restoration of international peace and security. Considering the disturbing reports prepared by the United Nations showing that serious beaches of international humanitarian law had occurred during the fighting, the Security Council also clearly intended ICTY to have a deterrent effect and to improve the application of international humanitarian law in the bitter armed struggles that were taking place. These two objectives may not always be mutually reconcilable. No assessment of ICTY’s achievements in either capacity is possible yet, although some are inclined to see some of its actions as obstacles to the complete pacification of the area. In all these cases involving only States, the traditional rule of the consen-

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sual basis of the contentious jurisdiction, firmly rooted in the sovereignty of States, has on the face of things been observed. Except for ICTY, where different considerations applied, the consent of all States parties and of other relevant entities has been required before the judicial organ could deal with the merits of any of these cases. Nevertheless, in all the contentious cases to date in the ICJ the named respondent or respondents have been ‘unwilling’, requiring the Court to establish positively its jurisdiction over the merits and the other relevant conditions for the indication of provisional measures. This in turn has led to the raising of preliminary objections, in that way prolonging indefinitely the Court’s final decision on the case. This does not prevent the exercise of incidental jurisdiction to indicate provisional measures if the application meets the low threshold of establishing a prima facie case of jurisdiction over the merits. If the applicant fails in that, the judicial organ cannot operate. The Legality of Use of Force cases brought against Spain and the United States show this. Here one can detect, especially in the orders indicating provisional measures of protection, cautious attempts by the Court to give indications at large of the legal position and to stretch to the utmost its discretionary powers to state the law, even when it is unable to go further in terms of a decision. There has also been some unwillingness by States to co-operate with ICTY, notwithstanding that the Security Council resolution establishing it is ‘binding’ under Article 25 of the Charter. III. The Crisis in the Congo Another crisis in which the ICJ has become involved is the situation in the Democratic Republic of the Congo (DRC). Four cases arising from this crisis have come before the Court, two of them including a request for the indication of provisional measures. (i) In the cases concerning Armed Activities on the Territory of the Congo, armed forces of neighbouring States had invaded territory of the DRC. In 1999 the Congo instituted proceedings against its neighbours Burundi, Rwanda and Uganda, alleging acts of armed aggression perpetrated by the respondents on its territory. In the cases against Burundi and Rwanda, the forum prorogatum jurisdiction was invoked, and with it the compromissory clause of the Convention against Torture and Other Cruel or Degrading Treatment or Punishment of 10 December 1994.30 In the case against Uganda, the Congo invoked the declarations accepting the compulsory jurisdiction.

30

1465 UNTS 85. The DRC withdrew the case against Burundi, ICJ Rep. 2001 3. It also withdrew the original case against Rwanda, but filed a new application in 2002. The Court rejected a request by the DRC for provisional measures and later found that it had no jurisdiction to entertain the application, ibid. 2002 219 and 2006 3 February.

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In that case, on 19 June 2000 Congo requested the indication of provisional measures, following the resumption of fighting in the country early in June. That had come before the Security Council which, acting under Chapter VII of the Charter, adopted resolution 1304 (2000) on 16 June 2000. That resolution did not go as far as the Congo had wished, and the request for provisional measures attempted to take the matter further. The Court, however, while deciding that the circumstances justified an indication of provisional measures, did not go beyond what the Security Council had already ordered.31 The Security Council had determined in resolution 1304 (2000) of 16 June 2000, acting under Chapter VII of the Charter, that the situation in the Congo ‘continues to constitute a threat to international peace and security in the region’. The Court picked this up and in paragraph 44 of its order indicating provisional measures of protection was of opinion that there existed a serious risk of events occurring which might aggravate or extend the dispute or make it more difficult to resolve. That was justification enough for the indication of provisional measures. Although the first these are the first cases before the ICJ in which the respondent is directly charged with acts of armed aggression, it is not possible to say yet what the Court could do in this type of situation. The charges of aggression are another indication that States are showing interest in involving the Court in peace-keeping and crisis management. It is to be noted that in these cases, and particularly in the case against Uganda, the Court fell shy of any finding that acts of aggression had been committed, in this following sub silentio the lead of the Security Council. Indeed in paragraph 146 of the judgment the Court stated clearly that certain impugned acts did not come within the General Assembly’s definition of aggression in resolution 3314 (XXIX) of 14 December 1974. In such delicate matters as aggression or threats to international peace and security the Court cannot be expected to go further than the Security Council. The Court’s backing of Security Council decision in what is now clearly a binding order on provisional measures can only strengthen the force of the binding decision of the Security Council’s decision taken under Chapter VII of the Charter. There is another parallel with the Yugoslav crisis. At an earlier stage of this crisis, horrendous acts of genocide were committed in Rwanda. This led

31

ICJ Rep. 2000 111. In the hearing, Uganda hinted that it would be contesting the Court’s jurisdiction. However, in the counter-memorial Uganda filed counter-claims, not all of which were admitted, ibid. 2001 660. Uganda challenged aspects of the admissibility of some of the claims of the DRC not by way of a preliminary objection but by way of a plea in bar. In its judgment on the merits the Court found for each party on its claim and counter-claim, and laid the basis for further proceedings by each side for judicial determination of the reparation due, in the event of the parties’ failure to reach agreement on this, ICJ Rep. 2005 19 December.

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the Security Council, acting under Chapter VII of the Charter, to establish the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Criminal Law in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994 (ICTR).32 • On 17 October 2000 the DRC instituted proceedings against Belgium concerning an arrest warrant issued by a Belgian examining magistrate against the acting Minister for Foreign Affairs of the Congo on charges of serious violations of international humanitarian law embodied in Belgian law. It also requested provisional measures to have the arrest warrant withdrawn forthwith. There was a cabinet reshuffle in the Congo after the application was filed, and the person concerned was moved to another Ministry. In its Order of 8 December 2000 in the Case concerning Arrest Warrant of 11 April 2000 the Court declined to regard the proceedings as moot and to remove them from the General List, as Belgium requested, following the cabinet reshuffle. It found that the circumstances as they presented themselves to the Court were not such as to require the exercise of its powers to indicate provisional measures.33 That is a new form of temporizing decision which apparently leaves it open to the applicant to return to the Court if it considers that new circumstances could justify this. Considering the general crisis situation existing in the Congo and surrounding countries at the time, this can be seen as another opening for the Court to have a role in crisis management. In its judgment on the merits the Court rejected objections to the jurisdiction and the admissibility of the case, and found in favour of the claim of the DRC.34 IV. Relations between the United States of America and Iran The fall of the Shah of Iran and the accession to power of the Ayatollah Khomeini in February 1979 was to produce a series of major cases in the ICJ. It also led to the establishment of the Iran-U.S. Claims Commission which has determined a large number of cases involving individual claimants of either country as well as some inter-governmental claims. The first of these cases was the United States Diplomatic and Consular Staff in Tehran case, brought by the United States against Iran.35 This case arose

32 33 34 35

Security Council Resolution 966 (1994) of 8 November 1994. ICJ Rep. 2000 182. In this period the DRC was involved in another case not directly connected with the political situation, the Ahmadou Sadio Diallo case (Guinea v DRC, pending). ICJ Rep. 2002 2. ICJ Rep. 1979 7 (Provisional Measures), 1980 3 (Merits), 1981 (Discontinuance).

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directly out of the events of 4 November 1979 when a mob in Tehran invaded the U.S. Embassy in that City and took all persons in it as hostages. Here the Court indicated appropriate provisional measures which were similar to those for which the Security Council had called earlier. In 1980 judgment was given in favour of the United States. It required Iran to make reparation to the United States for the injury caused by the events of 4 November 1979. The Court would settle the form and amount of such reparation if the parties could not reach agreement on it. Agreement was reached in the Algiers Declaration of 19 January 1981.36 That settlement also led to the establishment of the Claims Commission. Two cases arose out of incidents occurring during the Iran/Iraq hostilities of the 1980s. In 1989 Iran instituted proceedings against the United States in its claims following the accidental shooting down of an Iranian civil aircraft with heavy loss of life on 8 July 1988. In 1996 this case was settled and Iran discontinued the proceeding.37 That was followed by the Oil Platforms case, which Iran instituted on 2 November 1992 and which occupied the Court for ten years until it delivered its final judgment on 6 November 2003.38 The origin of this case lay in some incidents in the Persian Gulf between 1980 and 1988, the time of the armed conflict between Iran and Iraq. In a judgment of Solomon the Court finally declined to uphold the claim of Iran and the counter-claim of the United States. In all this period the level of tension between the two countries was high and the possibility of incidents involving the use of armed force was always a factor. How far these court actions deflected political thinking away from the eventuality of the use of armed force cannot be known until more archival material is available. For present purposes it is sufficient to note that both sides have employed judicial techniques in their efforts to arrive at a settlement of their disputes arising out of individual incidents. V. The typology of the crises There are several types of crisis. A crisis may arise out of a single incident. There are crises caused by strained relations between two States when for some reason low-intensity tension breaks into something more serious and

36 37

38

For the Declaration of Algiers, see Iran-U.S. Claims Commission Reports, vol. I at 3. ICJ Rep. 1996–I 9. This settlement was part of a broader General Agreement on the Settlement of Certain ICJ and Tribunal cases of 9 February 1996. For the Award on Agreed Terms in the Claims Commission, see the Claims Commission Reports, vol. 32 207. ICJ Rep. 1996 803 (Preliminary Objection), 1998 110 (Counter-claim), 2003 161 (Merits).

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becomes a threat to international peace and security. Others originate in an event such as the dissolution of a State, when that dissolution takes place in a situation of mutual hostility and mistrust, endangering international peace and security. Political instability and outside intervention in a State can lead to a major crisis. The threat or use of armed force often appears as a means to influence the outcome of the crisis.39 Since the Badinter Commission was the first of its kind established in direct connection with a system of crisis management following the dissolution of a State, it is interesting to see the type of question that the European Conference put to it. The most significant in terms of the crisis related directly to the break up of the SFRY and the dates of the independence of its component parts. These are notably: Opinion 4 on the recognition of Bosnia, Opinion 5 and an unnumbered Opinion of 1992 on the recognition of Croatia and on its Constitution, Opinion 6 on the recognition of Macedonia, Opinion 7 on the recognition of Slovenia, Opinions 8, 9 and 10 on the dissolution of SFRY and whether the Federal Republic of Yugoslavia established by Serbia and Montenegro met the requirements of statehood and required recognition, and Opinions 10 and 11 on the dates of emergence of the successor States. The Commission also dealt with the frontiers of the new States, applying the principle of uti possidetis, although its application in Europe is not to be taken for granted (Opinions 2 and 3); the protection of minorities (Opinions 5 and 7); recognition and its effects (Opinion 8), and different aspects of State succession (Opinions 9, 12, 13, 14 and 15). One wonders how far all these are questions for a judicial organ. Recognition is traditionally and by its nature a political matter, although if premature, it may have legal consequences and engage the international responsibility of the recognizing State. On the other hand, one can see an opening for the use of judicial procedures for confidence building measures in the early phases of crisis management. In an interlocutory decision of 1992 before delivering Opinions 8, 9 and 10 over the opposition of Yugoslavia, the Commission decided that ‘it falls to it to give a judgment [sic] on its competence’. It went on to say that given the functions which have been given to it, it was competent to reply in the form of Opinions to the three questions submitted to it’.40 In a 1993 document entitled Reactions of the Members of the Arbitration Commission of the International Conference on the Former Yugoslavia to the Statement made by the Federal Republic of Yugoslavia Government on its Competence, of unclear status, the Commission clarified its competence in

39

40

Situations in which the use of armed force is not in contemplation, even if on the active agenda of the Security Council, are not relevant here Therefore the so-called ‘Lockerbie Crisis’ is not within the scope of this article. 92 ILR 194 199.

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light of its reconstitution in 1993. Its competence as an advisory body stemmed not from the consent of the parties concerned but from the mere fact of the referral to it by the Co-Chairmen of the Conference. The reply to a question put before it in this context ‘is only of an advisory character; as such it has no binding force’ (citing here from the ICJ’s advisory opinion in the Peace Treaties case).41 Echoing statements by the ICJ in connection with its advisory competence, the Commission explained that it gives the opinions not to the States but to the Co-Chairmen of the Conference, in order to furnish them with information needed to take decisions.42 If a court or tribunal is directly involved in crisis management to the extent of the Badinter Commission, it must be able to work with speed. The Commission met this requirement. It worked quickly. We know nothing of how it deliberated. Its Opinions do not state the majority by which they were adopted, and no individual opinions, whether concurring or dissenting, are appended. The reasoning is very sparing and even dogmatic. The questions were not always well formulated, and there were no normal pleadings, written or oral, before it issued its opinions. Nevertheless, despite what some might see as drawbacks, those opinions are useful indications of the type of issue of fact and of law that in a major crisis of that type – and it is a common form of international crisis – the crisis managers could put to a judicial organ. They also serve as a warning against hasty use of ad hoc judicial techniques without proper safeguards for all the interests directly concerned, including interested non-State and other sectoral bodies. The questions relate to issues that the Security Council, which at the time was seised of the whole situation in the former SFRY, could if properly formulated have requested the ICJ for urgent advisory opinions. It is a matter of speculation whether either the General Assembly or the Security Council would have put such questions to that Court had the Badinter Commission not foreclosed any such action. VI. Crisis cases in the International Court It is not widely appreciated that since 1946 the ICJ has more than once dealt with a crisis (not necessarily a situation constituting a threat to international peace and security) through a contentious case. Perhaps it is curious that no

41 42

ICJ Rep. 1950 65 at 71. 96 ILR. 713. The analogy with an advisory opinion of the ICJ is strained, since being a party to the Statute of the ICJ embodies consent to the exercise of the advisory jurisdiction. See n. 3 above. That element was absent from the Badinter Commission.

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qualified organ of the United Nations or of a specialized agency has ever invoked the advisory competence for this purpose.43 The first contentious case to come before the ICJ, the Corfu Channel case, is a classic example of using the Court as a means for resolving a crisis arising out of an incident. The case came before the Court on the basis of a recommendation of the Security Council under Article 36 (3) of the Charter. The incident occurred in Albanian territorial sea in the Corfu Channel on 22 October 1946, when two British warships struck mines in an unknown minefield. The explosions caused heavy loss of life and serious damage to the ships. Another incident occurred in the same waters on 12 and 13 November, when ships of the Royal Navy entered the Albanian territorial sea on a minesweeping operation. There was tension between the two countries, probably not serious international tension in itself but the area in which the incidents occurred, in the Ionian Sea, the coast of the Balkans, was a sensitive focal point as the Cold War began to take shape. The two riparians, Greece and Albania, claimed to be in a state of war with each other. The Security Council discussed the matter from 20 January to 9 April 1947, and then adopted resolution 22 (1947). It recommended that the two countries ‘should immediately refer the dispute to the-International Court of Justice in accordance with the Statute of the Court’.44 On 22 May the United Kingdom commenced the proceedings, limited to the incident of 22 October. The United Kingdom founded the jurisdiction on a series of thoughtprovoking and imaginative arguments based on the combination of the Security Council resolution and relevant provisions, notably Articles 25 and 36 of the Charter and Albania’s acceptance of the Charter conditions for participation in the Security Council debate. On 22 July Albania informed the Court that, while contesting the basis of jurisdiction invoked by the United Kingdom, it accepted the jurisdiction. Later Albania raised a preliminary objection that the application was inadmissible, not having been submitted in accordance with the Statute. Basing itself on Albania’s direct acceptance of the jurisdiction in its message of 22 July, the Court was unanimous in dismissing that objection, only

43

44

In the first two decades of the United Nations, both the General Assembly and the Security Council were seised of proposals to request advisory opinions on current issues before them. Many of the questions proposed for advisory opinion were ‘slanted’ and designed to secure political advantage for one side in a conflict. For particulars, see Sh. Rosenne, above n. 3, Vol. I at 294 (General Assembly) and 316 (Security Council). If an advisory opinion is requested for the guidance of the requesting organ, the question should be framed in ‘neutral’ terms. In accordance with Art. 27 (3) of the Charter, the United Kingdom did not take part in that vote, and in accordance with Art. 31, Albania participated in the Security Council discussion without a vote. The parties were thus on a footing of formal equality in the Security Council.

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the judge ad hoc dissenting. However, seven judges of the majority added a separate opinion upholding Albania’s argument as to the irregularity of the original application, and rejecting the British contention that the Charter had opened a new source of compulsory jurisdiction on the basis of a recommendation of the Security Council.45 That opinion was unnecessary and we may regret its long term implications. It nevertheless turns on the word ‘recommends’ which the Security Council used in a resolution adopted under Chapter VI of the Charter. It has no relevance for any resolution of the Security Council using another word, or one adopted under Chapter VII of the Charter. Immediately before the Court read the Judgment on the preliminary objection, the parties concluded a special agreement that also covered the mine-sweeping operation, seen as a counter-claim. Those combined actions of the Security Council and of the United Kingdom together successfully defused any remaining tension arising out of the original incident. The importance of that case for the development of judicial techniques is that it has opened the way to the unilateral institution of proceedings without a clear basis for the jurisdiction of the Court, jurisdiction to be perfected by the respondent after the application has been filed. This is sometimes called forum prorogatum jurisdiction, and Article 38, paragraph 5, of the 1978 Rules of the ICJ codifies this.46 Although this way of invoking Court procedures has not yet been successfully used in crisis situations, the Court’s action in the Legality of Use of Force cases against Spain and the United States shows that it may require the respondent to invoke any relevant reservations before declining to exercise jurisdiction, and not give automatic effect to manifest bars to its jurisdiction. More than that: even in rejecting cases the Court may find a way to address underlying legal issues. That is already a new view of the Court’s function, and is an inroad into the wall of national sovereignty around the Court’s ability to contribute to the restoration of international peace and security.

45

46

ICJ Rep. 1947–48 31. For the merits, see ibid. 1949 4 and for the decision on the compensation due to the United Kingdom, ibid. 244. For the final settlement of this dispute, after the collapse of the Socialist regime in Albania, see United Kingdom Materials on International Law (G. Marston, ed.), in 63 BYIL. 781 (1993). The dissenting opinion in the 1947 judgment was by Vice-President Basdevant, and Judges Alvarez, Winiarski, ZoriÏci,c, de Visscher, Badawi and Krylov. In the Aerial Incident of 10 August 1999 case, the Court confirmed that the Charter of the United Nations contained no provision of itself [italics added] conferring compulsory jurisdiction on the Court, ibid. 2000 12, 32 (para. 48). Judge Bedjaoui, as President of the Court, made a forceful statement encouraging use of the Court’s forum prorogatum jurisdiction in the Sixth Committee during the 51st session of the General Assembly. See A/C.6/51/SR.31, 4 Nov. 1996.

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The provisional measures phase of the Anglo-Iranian Oil Co. case provided a very striking use of the Court when international peace and security were at risk. Early in 1951 the Iranian authorities announced a policy of nationalizing the oil industry in Iran, enacting relevant laws on 1 May. That led to a dispute between the Government of Iran and the Anglo-Iranian Oil Co. The British Government adopted the Company’s cause in exercise of its right of diplomatic protection. Reports were current that it was preparing to use force against Iran. The United Kingdom commenced proceedings on 26 May 1951, and requested provisional measures on 22 June. The Court’s Order of 5 July 1951 on its face does what the British Government wanted regarding the Company’s installations in Iran.47 However, it went beyond that. The first three of its five operative clauses are addressed to both parties and requested each party to refrain from any action that might aggravate or extend the dispute before the Court. This formulation, now standard, establishes that indications of provisional measures ought to contain elements of mutuality and reciprocity and not be entirely one-sided statements to protect the rights claimed by one party. The last two operative clauses dealt specifically with the protection of the British assets. The impact of those first three clauses was not the same for either party. For Iran they meant that while the case was pending, no more steps were to be taken to interfere with the Company’s operations in the country. For the United Kingdom, those clauses indirectly addressed the reports of contemplated military and naval action against Iran, emphasized by the Court’s statement that it was acting proprio motu.48 Following those moves in the Court and in the Security Council, the tension decreased, and a year later, after the Court had found that it was without jurisdiction to decide the case,49 the road was opened to a diplomatic

47 48

49

ICJ Rep. 1951 89. For an account of the military preparations that preceded the institution of these proceedings, see J. Sztucki, Interim Measures in the Hague Court 300 (1983). Anglo-Iranian Oil Co. case, ICJ Rep. 1952 93. An inconclusive discussion in the Security Council followed the Order, also at British initiative, in an attempt to ‘enforce’ the Order as far as concerned the Company’s assets. See discussion at the 559th to 563rd and 565th meetings of the Security Council, Oct. 1951. At its 565th meeting on 19 Oct. 1951, the Security Council decided to postpone the discussion until the Court had ruled on its own competence to deal with the case. However, similar provisions in the orders indicating provisional measures in the Fisheries Jurisdiction cases (n. 6 above) did little to prevent the continuation of low-intensity conflict involving units of the armed forces of the countries concerned. For those orders, see ICJ Rep. 1972 12, 30 and 1973 302, 313. On that impact of the provisional measures on that low intensity conflict, see C.P.R. Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach 163 (2000). The ineffectiveness of the provisional measures cannot be dissociated from the fact that coastal State exclusive rights beyond its territorial sea was a central issue in the Third United Nations Conference on the Law of the Sea, then under way. ICJ Rep. 1952 93.

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settlement. At the time the recourse to the Court was not seen as an attempt to invoke Court procedures for purposes of crisis management. Looking at it half a century later, however, one can see that whole diplomatic/judicial exercise as showing a way to invoke the Court in crisis management, alongside the political organs created for that specific purpose. The Court realized that the issue of its jurisdiction to deal with the merits of the claim was not clear, and this posed a problem for it. Could it indicate provisional measures of protection before the issue of its jurisdiction was settled? To overcome that genuine problem, which the Statute does not answer, the Court introduced a major innovation into its practice. It asserted that its incidental jurisdiction to indicate provisional measures could rest on its assessment that prima facie the merits of the case might come within its jurisdiction. The Court has explained the meaning of this as that it has no need, before deciding on provisional measures, ‘to satisfy itself beyond doubt that it has jurisdiction on the merits’.50 That concept of prima facie jurisdiction is a low threshold test which today we take for granted. In 1951 it was a novelty. Time has shown that it has greatly increased the Court’s ability to act in unforeseen circumstances. It has become another inroad into the wall of national sovereignty as a barrier to the Court’s ability to function. The Court’s action in the provisional measures phase of the Anglo-Iranian case is a noteworthy illustration of what the Court can do, even without the backing of the Security Council, in a situation of danger to the maintenance of international peace and security. VII. The use of provisional measures of protection in crisis management Following the Anglo-Iranian case, there has been increasing use of provisional measures of protection as a way to involve the ICJ in crisis situations, if the State taking the initiative can show prima facie jurisdiction and an element of urgency, even if it is on weak ground. The concept of prima facie jurisdiction has become a core element for this. During the last thirty or so years, requests for provisional measures have gone beyond measures obviously required to protect the rights that the requesting party is claiming. They have gone so far as to ask the Court for an interpretation, or even a reinterpretation, of a resolution of the Security Council as in the Bosnia/Yugoslavia case previously mentioned; or to enjoin two permanent members of the Security Council from proposing resolutions imposing binding non-military sanc-

50

Arrest Warrant of 11 April 2000 (Provisional Measures) case, ICJ Rep. 2000 182, 200 (para. 67).

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tions under Chapter VII of the Charter;51 and in other cases to put a stop to ongoing military action (the Legality of Use of Force cases, the Congo cases). The Court has given little encouragement to these ideas if they involve trespassing on the powers and duties of the Security Council. For instance, it has strongly asserted that it cannot make an order indicating provisional measures addressed to States or entities not parties to the proceedings on the ground that an arms embargo prejudices the State’s right to self-defence, or an order that would ‘clarify’ action required of third States under Security Council decisions.52 At the same time, in proper cases the provisional measures procedure can be a factor in maintaining or restoring international peace. The Order in the Anglo-Iranian case was, it seems, a factor in defusing the tension, at least in part. In the same way, the Order in the Nicaragua case might have been a factor in reducing that instance of international tension. In other cases, provisional measures orders have been used to restrain frontier incidents and their tensions in pending cases and restore the status quo, essential if the judicial proceedings are to continue in an appropriately calm atmosphere, and to ensure the preservation of evidence necessary for the trial on the merits of a case. In such instances, there has been mutual assistance through parallel activities by the Security Council or by the competent regional organization. On occasion a carefully worded refusal by the Court to indicate provisional measures has been followed by for satisfactory negotiations to settle the dispute, or prevent it from growing more serious.53 There are other cases in which we can see an element of crisis management. The United States brought the Tehran Hostages case against Iran before the Court while the Security Council was dealing with the situation. That

51

52

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Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Provisional Measures), ICJ Rep. 1992. 3, 114 (these are separate cases, heard in common). The Court rejected a series of preliminary objections and the case proceeded to the merits, ibid., 1998 9 and 115. Following a change of policy on the part of Libya and its agreeing to meet the major claims that had been raised against it, these two cases were discontinued by agreement of the parties, ibid. 2003, 149, 152. This signified a general improvement in the relations between the countries concerned. Genocide Convention case, n. 12 above, ICJ Rep. 1993 at 344 (para. 40). At the Meeting of Experts convened at The Hague in May 1999 in honour of the centenary of the Peace Conference of 1899, under the rubric of the International Court of Justice the Experts drew attention to the need to solve existing problems of requesting interim measures of protection, including due regard for abuse of the system of the compulsory jurisdiction of the Court under Art. 36 (2) of the Statute. Doc. A/54/381, para. 93. For a strong attack on what he sees as an abuse of the right to institute proceedings before the Court, see S. Oda, ‘The Compulsory Jurisdiction of the International Court of Justice: A Myth? – A Statistical Analysis of Contentious Cases’, 49 Int’l & Comp. L.Q 251–273 at p. 265 (2000), cited in his declaration (para. 8) in the Congo (Provisional Measures) case, n. 31 above. A classic illustration of this is the Passage through the Great Belt case, ICJ Rep.1991 12 (not a ‘crisis’ case).

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crisis came before the Security Council immediately, and the Council adopted appropriate resolutions. The United States also took countermeasures against valuable Iranian economic assets in the United States. The United States commenced these proceedings on 29 November, and on the same day requested provisional measures. The Court in its order of 15 December 1979 noted Security Council resolution 457 (1979), 4 December 1979, as recognition of the threat to international peace and security posed by the continued detention of the diplomatic and consular staff in Teheran. It indicated provisional measures and, in an innovation, decided to keep the matter covered by the order under review.54 For its part, the Security Council, in resolution 461 (1979), 31 December 1979, took the Court’s order into account, deplored the continued detention of the hostages contrary to its earlier resolution and the Court’s Order, and decided to keep the situation under review. It also threatened action under Chapter VII of the Charter in the event of noncompliance with the resolution. That changed the Court’s order into a Security Council resolution, with the possibility of coercive measures under Chapter VII in the event of non-compliance. Iran did not comply with the Security Council’s resolutions or with the Court’s Order and took no part in the Court’s proceedings. The parties settled the dispute largely through the good offices of the Government of Algeria. It is not known whether the Court’s actions in this case had any direct impact on the resolution of the crisis, and no claims have been made in that respect. The Congo case was the opposite: a binding Chapter VII resolution of the Security Council was incorporated in an order of the International Court indicating provisional measures of protection. The Nicaragua case is also an instance of invocation of court procedures in a situation of general crisis in which the use of irregular armed force was alleged. Simultaneously with seising the Court Nicaragua requested provisional measures. The application charged that the United States was using military force against Nicaragua, and the request related directly to that.55 In its order the Court indicated unanimously that the United States should immediately cease and refrain from blocking Nicaraguan ports and in particular the laying of mines.56 Although as a diplomatic stance the United States, an ‘unwilling respondent’, did not accept the order, and despite uncer-

54

55

56

United States Diplomatic and Consular Staff in Tehran case Provisional Measures, ICJ Rep. 1979 7; Merits, ibid. 1980 3; Discontinuance, ibid. 1981 45 following a broad settlement not only of the hostages question but also of other outstanding issues, in the Algiers Agreement of 19 January 1981 (1 Iran-United States Claims Tribunal Reports 3). The Nicaragua case, ICJ Rep. 1984 165 (Provisional Measures), 215 (Declaration of Intervention by El Salvador), 392 (Jurisdiction and Admissibility), ibid. 1986 14 (Merits), ibid. 1991 47 (Discontinuance). ICJ Rep. 1984, p. 169.

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tainty at that time whether an indication of provisional measures was binding, the mining of the Nicaraguan ports did stop after that order. Cause and effect? Only when the archives are opened will we know. However, at the time the general situation in Central America was dangerous and partly connected with Cold War tensions. Later the President of Costa Rica was awarded the Nobel Peace Prize for his efforts in bringing that situation under control. In its judgment on jurisdiction and admissibility, the Court included a major statement in which it gave expression to a central element of its relations with the Security Council. It pointed out that while there is in the Charter a provision for a clear demarcation of functions between the General Assembly and the Security Council, in respect of any dispute or situation, that the former should not make any recommendation with regard to that dispute or situation unless the Security Council so requires [a reference to Article 12 of the Charter], there is no similar provision anywhere in the Charter with respect to the Security Council and the Court. The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events (para. 95).57

The situation following the dissolution of the SFRY, as seen, provides major instances of the invocation of Court procedures alongside the Security Council in a grave crisis in which major use of armed force was characteristic. Yugoslavia’s action in April 1999 bringing suits against ten NATO members is the boldest attempt to take the Court into crisis management. That was a desperate attempt to invoke Court procedures to stop the NATO bombing of Serbia, large scale military action that did not have at the time any specific authority from the Security Council. Yugoslavia’s major difficulty, which it could not overcome, was that there was no jurisdiction whatsoever in respect of the principal respondent, the United States of America (and as it turned out, also regarding Spain). The Court had no choice but to remove those two cases from its list. In the remaining eight cases, applying the test of prima facie jurisdiction the Court found that the circumstances brought to its notice did not come within the scope of the Genocide Convention that Yugoslavia had invoked as the basis for the Court’s jurisdiction, so that its prima facie jurisdiction was not established. As a matter of judicial practice, however, that was a provisional finding and did not determine the question of jurisdiction over the merits. Therefore the cases proceeded to the next phase, when the Court found that it was without jurisdiction.58 Nevertheless, in all

57 58

ICJ Rep. 1994 434 (para. 95); Congo case, n. 30 above para. 36. ICJ Rep. 1999, Orders (ten) of 2 June and 2000, Orders (eight) of 8 September. A resolution of the Security Council does not necessarily trump action by the Court, as was brought out in the Congo case, n. 30 above.

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those orders, including those in the cases against Spain and the United States, the Court included three paragraphs that we have to quote in full: Whereas, whether or not States accept the jurisdiction of the Court, they remain in any case responsible for acts attributable to them that violate international law, including humanitarian law; whereas any disputes relating to the legality of such acts are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties; Whereas in this context the parties should take care not to aggravate or extend the dispute; Whereas, when such a dispute gives rise to a threat to the peace, breach of the peace or an act of aggression the Security Council has special responsibilities under Chapter VII of the Charter[.]

Those cases show two things. One is that a State is prepared in very special circumstances to invoke Court procedures, especially its power to indicate provisional measures of protection, even if it can only establish prima facie jurisdiction over the merits of the case, however slender that might be. The second is that while the Court has shown itself very careful not to trespass on the authority of the Security Council to deal with a crisis situation involving the use of armed force if to do so would exceed the judicial function in the particular case, it nevertheless can, within the limits of the judicial function, indicate its views on the law. The Congo case shows that it will not hesitate to act even when the general situation is on the active agenda of the Security Council, if it is satisfied that its action comes within the judicial competence in that particular case, and that the Security Council has not taken decisions which prima facie would preclude the rights claimed as appropriate for protection by provisional measures. Although the prima facie mainline jurisdiction may be a low threshold, the Yugoslavia cases of 1999 show that even that low threshold is not something nominal but it has to be reached before the Court will entertain the requests. In all the cases examined in this context, the prima facie jurisdiction was later upheld in preliminary objection proceedings except in the Anglo-Iranian case. That was the only instance in which the Court indicated provisional measures only to find later that it had no jurisdiction over the merits. Even there, however, it formally stated that the Order indicating the provisional measures only ceased to be operative upon the delivery of the judgment finding that the Court was without jurisdiction in the case. Usually, when the Court has indicated provisional measures of protection based on its finding of prima facie jurisdiction and it later holds that it is without jurisdiction, it will revoke the provisional measures as from the date of that later decision. However, this is not necessarily the end of the provisional measures. The Arbitral Tribunal that decided the Southern Bluefin Tuna case declared that the revocation of the provisional measures did not mean

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that the Parties might disregard their effects or their own decisions made in conformity with the Order.59 The Order and those decisions, and the recourse to the tribunal that led to them, as well as the consequential arbitral proceedings on questions of jurisdiction and admissibility, had an impact also on the parties’ perspectives and actions, and seem to have unblocked the negotiations that had come to a standstill. That was not a case of crisis management in the sense used here. However, the doctrine of that Arbitral Tribunal suggests that provisional measures even in cases where later the jurisdiction is not upheld can have a forward reach for the parties’ perspectives and actions. That would enhance the role of a court in any process of crisis management. VIII. Moderation in conclusion We can now try to answer the question posed by this article. Is there a role for the International Court of Justice, and indeed for judicial action generally, in international crisis management? In answering that question, we must avoid exaggerated claims. If there is a role for judicial action in crisis management, it would at most be an auxiliary or supporting role. Crisis management is a political function performed both by States acting individually (whether singly or in co-operation with others on an ad hoc basis) and by competent international organizations, especially the Security Council or a regional organization acting within the framework of Chapter VIII of the Charter. The end of a crisis situation is a political solution which the interested participants accept. The precise status of those participants, whether as already existing States or as States-to-be, is immaterial for the purposes of crisis management. That is where the advisory competence, whether of the ICJ or of an ad hoc body such as the Badinter Commission (provided that it is adequately composed, has appropriate procedure, and is in an appropriate legal relation with the parties), can play a useful role. Moreover, it is in the advisory competence that the impact of national sovereignty on the working of an international judicial organ is at its lowest.

59

119 ILR 508, 555 (para. 67). We may also note the decision of the arbitral tribunal under Annex VII of the Law of the Sea Convention in the Mox Plant arbitration between Ireland and the United Kingdom, to suspend the proceedings pending a decision of the European Court of Justice. That suspension was without prejudice to the maintenance of provisional measures prescribed earlier by the International Tribunal for the Law of the Sea and carried through to the arbitral proceedings by virtue of article 290 of the Law of the Sea Convention of 1982, 126 ILR 314, 321 (paragraph 31). For the Law of the Sea Convention, see 1183 UNTS 3.

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Can courts and tribunals act with all the necessary speed? Experience of provisional measures in the ICJ shows that it can.60 Moreover, if the situation is also before the Security Council (as often it probably will be), the Secretary General could present observations that the Court would have to take into account.61 Advisory opinions would probably take longer, but the ICJ has rendered an opinion within a few weeks, and in some crisis situations that could be adequate.62 The Application of the Genocide Convention judgment is a strong indication that contentious proceedings against a politically unwilling respondent, under current procedural rules and practices, is likely to prove inadequate to deal with a crisis situation in which armed force is being used. Contentious proceedings in such circumstances inevitably lead to multifaceted and unanticipated procedural complications. This will be aggravated should the case be fact-intensive and partly dependent on confidential or redacted archives. However, this is not necessarily so in advisory cases. At the same time, the ICJ has opened possibilities of a role for itself in crisis management, even in cases of threats of breaches of international peace and security. It can do this thanks to its status as a principal organ of the United Nations with no restrictions on its power and even duty to resolve legal disputes with the consent of the parties. Its efficiency for this purpose is enhanced when it can work with the Security Council. The impact of national sovereignty can prevent it from deciding contentious cases without the formal consent of the interested States. Yet it has shown capacity to furnish authoritative legal guidance even when its formal jurisdiction over the merits of a dispute has not been established. There are signs that States, and for its part the Security Council, would hesitate before ignoring that legal guidance. This is a delicate innovation that has been forced on the Court by circumstances beyond its control, and it must be both protected and not over-used or over-rated. Yet it is there, embedded within the Charter, as part of the mechanism available to the United Nations for the maintenance of

60

61 62

The Order in the LaGrand (Germany v U.S.) case was issued within 30 hours of the filing of the request (without any hearing), ICJ Rep. 1999 9. In the Congo case, the request was filed on 19 June 2000. Hearings took place on 26 and 28 June (interrupting hearings in another case), and the Order was issued on 1 July. The request for the advisory opinion on the Interpretation of the Headquarters Agreement was filed on 4 March 1988. Hearings were held on 11 and 12 April. The advisory opinion was delivered on 26 April 1988, ICJ Rep. 1988 3. That was not a ‘crisis’ case, but it was urgent. ICJ Rules of Court, Art. 74 (3). The Rule is couched in impersonal language. ICJ Rules of Court, Art. 103, envisages an accelerated procedure. There is a time lag of a few days, perhaps even a week, between the adoption of the decision and its publication (usually by reading in open court and inclusion in the website). Perhaps the Court could consider adopting in appropriate circumstances the practice of some national courts of announcing the operative decision as soon as it is adopted, and publish the reasons later (within a very short time limit).

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international peace and security. In short, courts, and more particularly the International Court of Justice, can and do play a role in crisis management, and that role does not have to be limited to advisory cases if a real basis exists for the Court’s contentious jurisdiction. There is room to increase that role in appropriate cases, such as one in which there are no serious differences over the relevant facts of the case. Has this affected the concept of sovereignty? In contentious cases the ICJ, and following it other international courts and tribunals and international arbitrations, have insisted on the consensual basis of their jurisdiction to decide the merits of a case. National sovereignty is pervasive, and no decision can be made by any international court or tribunal without that consent freely given. I submit that in two respects the preceding survey shows that under the influence of the United Nations Charter, both the Court and States are showing awareness that the maintenance or the restoration of international peace may require States forego some of the attributes of sovereignty, provided they do so freely and willingly. Van Kleffens’ lectures cited earlier show that while membership in the UN involves a relinquishment of some elements of sovereignty, it has not yet gone so far as to remove the obstacles to judicial settlement imposed by the requirement of consent before an international court or tribunal can decide a case. This has not prevented the ICJ from expressing its views on major issues even if its powers in a given case are limited.63 The obstacles that sovereignty imposes on the contentious jurisdiction of the International Court are less prevalent in the advisory jurisdiction. In some recent noncrisis advisory cases, the Court has made it clear that it will not allow claims of sovereign right to prevent its giving guidance that a responsible organ of the United Nations has requested.64 There is no reason why the Court should not adopt a similar attitude when asked for guidance in a crisis situation.

63

64

In this context, there is interest in a recent suggestion that if a sufficient basis of jurisdiction exists, a ‘sanctioned’ State, whether by the Security Council, by regional organization acting under Chapter VIII of the Charter, or by an individual State, could test the legality of the sanctions, or their continuation, through the Court. For that suggestion, see Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, The adverse consequences of economic sanctions on the enjoyment of human rights, Working Paper prepared by Marc Bossuyt, doc. E/CN.4/Sub.2/2000/33, para. 106. And see J. d’Aspremont, “The Recommendations made by the International Court of Justice,” 56 International and Comparative Law Quarterly 165 (2007). Two examples, both relating to the General Convention on the Privileges and Immunities of the United Nations, can be given: (1) the Applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations adv. op. (the Mazilu case), ICJ Rep. 1989 177; (2) the Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights adv. op., ibid. 1999 62 (the Cumaraswamy case).

4 ARTICLE 95 OF THE CHARTER REVISITED

Article 95 of the UN Charter reads: Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be contracted in the future.

At first sight there is nothing particularly noteworthy about that provision, which parallels the freedom of choice provision for the settlement of disputes contained in Article 33 of the Charter. However, Article 95 has been examined once directly by the International Court of Justice1 and the principle underlying it has also once been considered indirectly.2 That warrants its further examination. The topic can also be of relevance in the current debate over the multiplication of international courts and tribunals. I. Historical Background – the Hague Conference of 1907 The origin of Article 95 is found in Article 1 of the draft convention relative to the creation of a Court of Arbitral Justice prepared in the First Commission of the Hague Peace Conference of 1907 but left in draft form by that Conference.3 By that Article:

1 2 3

Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (hereafter Cameroon-Nigeria case), Preliminary Objections, ICJ Rep. 1998, 275, 307 (para. 69). Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (hereafter Qatar-Bahrain case), ICJ Rep. 2001 40. For an English translation of the proceedings of that Conference, see J.B. Scott (ed.), The Proceedings of the Hague Peace Conferences: The Conference of 1907, vol. I, the plenary meetings (New York, Oxford University Press, 1920), Vol. II the proceedings of the First Commission (New York, 1921). For the report of the First Commission recommending the creation of a Court of Arbitral Justice, J.B. Scott, reporter, see also Sh. Rosenne (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents 169 (The Hague, T.M.C. Asser Press, 2001).

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With a view to promoting the cause of arbitration, the contracting Powers agree to constitute, without altering the status of the Permanent Court of Arbitration, a Court of Arbitral Justice, of free and easy access, composed of judges representing the various judicial systems of the world, and capable of ensuring continuity in arbitral jurisprudence.

That provision was the subject of long discussion in the First Commission and Committee B in which the detailed text was negotiated. The report of the First Commission indicates that the question was what should be the relation between the proposed Court and the existing Permanent Court of Arbitration, established in the 1899 Conference and continued in that of 1907. The report of the First Commission continues: One view would make the new Court a simple committee of the older Court, but constitute it within the Permanent Court. Another view, differing but slightly from the former, would make it independent in name, but by appointing its judges from the membership of the Permanent Court of Arbitration would, in reality, make it a development of the latter. Still another view would recognize the independence of the institution by placing it alongside the Permanent Court as an independent institution, but would establish a close connection between the two by appointing its judges, as far as possible, from among the members of the original Court.

As will be seen, the last view was the one accepted by the Commission. That was followed by Article 2 on the appointment of the judges, and it laid down that the judges and deputy judges “are appointed, as far as possible, from the Members of the Permanent Court of Arbitration”. Commenting on this, the Report brings out that the Commission indicated very clearly that while the proposed Court would be independent, as indicated in the first article, it would nevertheless derive in large measure its strength, substance, and influence from the institution established in 1899. This discussion shows that attention was paid to the problem of arbitration tribunals existing or coming into existence alongside the permanent tribunal, and that the preservation of the continuity of jurisprudence was to be assured by maintaining as far as possible a personal unity between the members of the new institution and those on the list of arbitrators maintained by the International Bureau of the Permanent Court of Arbitration. The question also arose in connection with the decision of the 1907 Conference to establish an International Prize Court. Article 16 of the draft provided that the judges and deputy judges of the Court of Arbitral Justice “can also exercise the functions of judge and deputy judge in the International Prize Court”. On this, the report of the First Commission explained that the purpose of the project was not to subordinate either Court to the other, but to indicate to the Powers the possibility, indeed the advisability, that the judges of the Court of Arbitral Justice should possess the qualifica-

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tions fitting them for judges of the Prize Court. This was to give effect to the intentions of the authors of the project that the close relations existing between the Permanent Court of Arbitration and the proposed Court of Arbitral Justice should be extended to the new Prize Court.4 The report of the First Commission explains that its work on the Court of Arbitral Justice still presented gaps and difficulties. Absent from the draft were provisions for the constitution of the Court and the selection of the judges. Those questions were discussed at great length but no acceptable solutions were found. As the Conference was unable to agree on the establishment of the Court of Arbitral Justice, it adopted the following vœu: The Conference recommends to the signatory Powers the adoption of the annexed draft Convention for the creation of a Court of Arbitral Justice, and putting it into force as soon as an agreement has been reached respecting the selection of the judges and the constitution of the Court.

That was included in the Final Act, and it is to be read together with the proposal for a third Peace Conference to be convened after necessary preparatory work. This was intended for 1915, but the outbreak of the First World War prevented further work at that stage. Other provisions of the draft assume a close connection between the proposed Arbitral Tribunal and the Permanent Court of Arbitration. Article 22 provided that the Court should follow the rules of procedure laid down in the 1899 Convention except in so far as the procedure is laid down in the new instrument. The report of the First Commission stated that this offers an additional evidence of the relation between the proposed Court and the Permanent Court of Arbitration. By Article 24, the International Bureau was to serve as the channel for all communications to the judges during the interchange of pleadings. Article 25 provided that notices to be given to the parties may be served through the International Bureau. Those two provisions would correspond in part to the functions of a modern Registry. Article 31 provided that the Administrative Council of the Permanent Court of Arbitration applies to the different countries to obtain funds requisite for the working of the Court. That establishes the method of control by States parties over the financial aspects of an international court that is not part of an international organization. It has been followed since for the International Tribunal for the Law of the Sea, through institutionalized Meetings of the States parties, and for the International Criminal Court through the Assembly of States

4

For the report of the First Commission on the International Prize Court, see J.B. Scott, op. cit. in note 3, vol. I at 164.

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Parties. It was not necessary for the Permanent Court of International Justice or for the present International Court of Justice since in each case their expenses were a charge on the budget of the League of Nations or the United Nations, the former by the terms of the Statute and the latter also through the Court’s status of an organ of the United Nations. That is how matters stood when the First World War put a temporary stop to this kind of international activity, which was resumed in new conditions in 1919. II. Continuation – the Permanent Court of International Justice The immediate antecedent of Article 95 of the Charter is Article 13, paragraph 3, of the Covenant of the League of Nations. Article 13 was a general provision to the effect that the members of the League agreed that whenever any dispute should arise between them which they recognized to be suitable for submission to arbitration or judicial settlement and which cannot be settled by diplomacy, they would submit the whole subjectmatter to arbitration or judicial settlement. After the establishment of the Permanent Court, paragraph 3, introduced in 1924, was added to Article 13. It provided: For the consideration of any such dispute, the court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them.

The League Covenant was adopted before the Statute of the Permanent Court of International Justice and Article 13 in its original form had to be kept in mind in drafting the Statute. This was noted by the League Secretariat in its Memorandum on the different questions arising in connection with the establishment of The Permanent Court of International Justice prepared for the use of the Advisory Committee of Jurists of 1920.5 The Secretariat wrote that disputant members of the League, when submitting their dispute to arbitration, were not bound as a general rule to select the projected Permanent Court, and it cited Article 13 as justification. The Advisory Committee of Jurists took as the basis of its work the conclusions of the two Peace Conferences and the schemes emanating from sev-

5

Permanent Court of International Justice, Documents presented to the Committee relating to Existing Plans for the Establishment of a Permanent Court of International Justice (1920) 1, 11. For the history of Article 13, see p. 115.

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eral Governments, from international scientific organizations and from jurists of all nationalities.6 A proposal by Baron Descamps was to maintain the Permanent Court of Arbitration. He also proposed that the parties “shall have the right to agree on submitting disputes to another jurisdiction”.7 A close discussion of this matter took place at the Committee’s 11th meeting in the context of whether the jurisdiction of the new Court should be compulsory. A proposal by Lord Phillimore suggested that in the absence of any special convention between the parties, the Permanent Court of International Justice should be deemed to be the Court of Arbitration mentioned in Article 13 of the Covenant.8 The discussion was intermingled with two other items, the method of selection of the judges and the general question of the competence of the new Court. After a long debate, Baron Descamps submitted a draft scheme concerning the Permanent Court. Article 1 established the Court independently of the Permanent Court of Arbitration and of the special tribunals of arbitration which the States are free to establish for the settlement of their disputes.9 In that context the issue came within the scope of the Root-Phillimore plan for the organization of the Court. On the question of the competence of the Court, Article 29 of that plan envisaged compulsory jurisdiction more or less along the lines of what became Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice and the Statute of the International Court of Justice. Article 30 provided for an exception to that jurisdiction in cases where the parties agreed to have recourse to the Permanent Court of Arbitration.10 On the basis of the long discussions on these topics, the Drafting Committee produced the following text: A Permanent Court of International Justice, to which Parties shall have direct access, is hereby established, in accordance with Article 14 of the Covenant of the League of Nations. This Court shall be in addition to the Court of Arbitration organized by the Hague Conventions of 1899 and 1907, and to the special Tribunals of Arbitration to which States are always at liberty to submit their disputes for settlement.11

6

7 8 9 10 11

Permanent Court of International Justice, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee (1920) (hereafter Procès-verbaux), 30, 43. In doing so it did not adopt a formal proposal by Elihu Root to take only the draft of the 1907 Conference as the basis for its work (p. 41). Ibid. 142. Ibid. 233, 252, 253. Ibid. 373. Ibid. 547. Ibid. 561.

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The Committee adopted this text unchanged at its 28th meeting, and it appears in the Committee’s report unchanged, without any further explanation.12 In that form the matter came before the competent organs of the League of Nations. The discussions in the League Council in the period 1920–1921 did not refer to this aspect, which was left to the Assembly when it adopted the final instruments, the Statute of the Permanent Court of International Justice and the Protocol of Signature.13 Two amendments to Article 1 were submitted. Argentina proposed: A Permanent Court of International Justice, to which Parties shall have direct access, is hereby established, in accordance with Article 14 of the Covenant of the League of Nations. This Court shall be in addition to the special Tribunals to which States are always at liberty to submit their disputes for settlement. Immediately upon the establishment of the Permanent Court of International Justice, the Court of Arbitration, organized by The Hague Conventions of 1899 and 1907, shall cease to exist.14

The British delegation proposed deleting from Article 1 the words ‘to which Parties shall have direct access’.15 These two amendments were examined by the Sub-committee of the Third Committee of the First Assembly Meeting in 1920. The Sub-committee discussed the British amendment at its second meeting. The debate was whether the retention of those words would introduce compulsory jurisdiction, to which the Big Powers were firmly opposed. The deletion was agreed by eight votes to two.16 The Sub-committee discussed very briefly the Argentinian amendment to Article 1 at its sixth meeting.17 The record simply states that it was observed that the Permanent Court of Arbitration was established by a Convention between a great number of States, and that it could be abrogated only by a Convention between the same signatories. The record goes on to state, without attribution, that the constitution of the Permanent Court of International Justice was based on

12 13

14 15 16 17

Ibid. 587, 698 (Report). For this phase, see League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations concerning Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court of International Justice (1921) (hereafter Action). Action at 65. Ibid. 70. Ibid. 114. See on this L. Lloyd, Peace through International Law: Britain and the International Court in the 1920s 12 (1997). Ibid. 137.

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the existence of the Permanent Court of Arbitration and that the Covenant contemplated arbitration in the technical sense of the word. The Sub-committee’s report to the Third Committee words both aspects slightly differently.18 The report of the Third Committee on the Statute of the Court therefore includes the following statement as regards Article 1.19 The words “to which Parties shall have direct access” have been deleted, on the ground that, since the provisions of the draft scheme of the Hague with regard to the right of unilateral arraignment have been modified, they involve a certain ambiguity. The proposal made by the Argentinian Delegation to suppress the Permanent Court of Arbitration at The Hague was unanimously rejected by the Sub-Committee. It was thought that this Court would still have a role to fill in certain international disputes which lend themselves more easily to arbitral decision than to an award based on strict rules of law. Further, it was pointed out that the present scheme cannot abolish a Convention signed by several States which are not members of the League of Nations.

The Permanent Court did not have occasion to offer any interpretation of Article 1. III. Continuation: the International Court of Justice The Dumbarton Oaks Proposals which formed the basis for the work of the San Francisco Conference contained nothing corresponding to Article 1 of the Statute of the Permanent Court. The question therefore was first discussed in the Washington Committee of Jurists (1945).20 Two relevant proposals were submitted to that Committee.21 Regarding Article 1 of the Statute, the United Kingdom proposed striking out the whole of the second sentence, believing it to be unnecessary. With regard to the first sentence, it proposed a simple provision to the effect that the Court should function in accordance with the provisions of the Statute. The United States proposed a more elaborate amendment, establishing the Court as the chief judicial organ of the United Nations. However, discussion of Article 1 related to a major issue of principle, namely whether the Court should be established as a new Court or whether the Permanent Court should continue in existence, with the change that it should be a principal organ of the new organization. The Washington Committee was unable to resolve this

18 19 20 21

Ibid. 189 (in French only). Ibid. 206. For the Dumbarton Oaks Proposals, see United Nations Conference on International Organization (UNCIO), vol. 3, 10. For the proceedings of the Washington Committee of Jurists, see UNCIO, vol. 14.

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problem and deferred to the San Francisco Conference three major questions: (1) in what form the mission of the Court to be the principal juridical organ of the United Nations should be stated; (2) to judge whether it was necessary to recall, in this connection, the present or possible existence of other international courts; and (3) to consider the Court as a new court or as the continuance of the Court established in 1920. The Committee reported that these were not questions of pure form. The last, in particular, affected the operation of numerous treaties containing reference to the jurisdiction of the Permanent Court of International Justice.22 Following the Committee of Jurists, the Sponsoring Powers submitted a formal amendment to the Dumbarton Oaks proposals to the effect that Chapter VII of those Proposals should be adjusted to bring it into conformity with the recommendations of Commission IV in light of the report of the Washington Jurists Committee.23 At San Francisco, this matter was allocated to Committee IV/1, on Judicial Organization. It was first examined in Subcommittee IV/I/A, on the question of the continuity of the international court and related problems. That Committee proposed a revision of Chapter VII of the Dumbarton Oaks proposals by the addition of a third paragraph to the effect that nothing in the Charter shall prevent the parties from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future. However, the Commission did not propose introducing that notion into the text of the Statute. Without much in the way of explanation, the Report of the Rapporteur of Committee IV/I to the Commission, referring to the provisions of the Charter relating to the Court, simply states that for States that are parties to the new Statute freedom will be reserved to entrust the settlement of their differences to tribunals of their own choice other than the International Court of Justice. “These features of the new Court had their prototypes in the old Court”.24 No further explanation appears on the record, and in particular no reason is given for the transfer of this provision from the Statute to the Charter. Article 95 was adopted in the form set out at the head of this article without further comment. It has been termed a “clarifying provision” stemming from Article 1 of the Statute of the Permanent Court, but not included in the Statute of the present Court since that is an integral part of the Charter and “was more appropriately placed in the body of the Charter itself ”.25 More correctly Kelsen shows that Article 95 only repeats what has already been

22 23 24 25

Ibid. 821. Ibid. vol. 13, 624. Ibid. vol. 13, 381. R.B. Russell assisted by J.E. Muther, A History of the United Nations Charter: The Role of the United States 1940–1945 880 (Washington DC, The Brookings Institution, 1958).

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stipulated in Article 33, paragraph 1, and that members “are allowed to submit their disputes in accordance with pre-existing or newly concluded treaties to ad hoc tribunals of arbitration or to establish – for instance by regional arrangements – another permanent court of justice”. According to Article 33, paragraph 1, and Article 95, they may establish a special court with compulsory jurisdiction, excluding the jurisdiction of any other tribunal, even the jurisdiction of the International Court of Justice established by the Charter.26 IV. Interpretation and Application of Article 95 There has been little use of Article 95 by the General Assembly of the United Nations. In resolution 171 C (III), 14 November 1947, on the greater use of the International Court of Justice, drawing attention to the advantages of inserting in treaties provisions for the settlement of disputes by the International Court of Justice, the General Assembly formally indicated that this was without prejudice to Article 95. The General Assembly has as far back as resolution 1213 (XII), 14 December 1957, recommended that the frontier dispute between Ethiopia and what was then Italian Somaliland should be settled by arbitration and the delimitation arbitration between Ethiopia and Eritrea has been organized by the Organization of African Unity with which the United Nations is closely associated. In 1966 the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations reported on a proposal regarding the inclusion of a general compromissory clause in general multilateral conventions and stressed that this would be without prejudice to Article 95.27 The Manila Declaration on the Peaceful Settlement of International Disputes annexed to resolution 37/10, 15 November 1982, without mentioning Article 95, simply repeats that States may entrust the solution of their difference to other tribunals by virtue of agreements already in existence or which may be concluded in the future. In fact, one might say that Article 95 of the Charter expresses a truism that is taken for granted. It is one embodiment of the principle of freedom of choice for the settlement of disputes, consecrated in Article 33 of the Charter. Article 95 refers only to the ability of States to entrust the resolution of their differences to other tribunals of their choice notwithstanding the status of the International Court of Justice as the principal judicial organ of the United Nations. It does not offer any explanation for the word “differences”,

26 27

H. Kelsen, The Law of the United Nations: A Critical Analysis of its Fundamental Problems 477 (London, Stevens & Sons, 1950). 21 General Assembly, Official Records, Annexes, agenda item 87 (A/6230), para. 242.

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but in the context it probably means international differences or disputes with other States. It has no reference to the power of any of the organs of the United Nations, and particularly the General Assembly and the Security Council, to establish tribunals if they consider this necessary for the proper performance of their functions. Tribunals have been established, but so far, these have not been tribunals for the settlement of disputes between States, where the principle of freedom of choice reigns, but for the settlement of other types of disputes which those organs have encountered or anticipated. Thus, in its resolution 181 (II) on the Future Government of Palestine, the General Assembly envisaged the establishment of a Court of Claims with a certain overriding jurisdiction in the International Court, so far the only instance of this. In resolution 388 (V), 15 December 1950, it established the United Nations Tribunal for Libya, and in resolution 580 (VI), 29 January 1952 the United Nations Tribunal for Eritrea, in each case with exclusive and final jurisdiction for matters coming within their competence. These were all tribunals formed to deal with claims of individuals following changes in the territorial status of the territories for which they were created. The General Assembly has also established one standing tribunal, although not for the settlement of disputes between States – the United Nations Administrative Tribunal established by resolution 351 (IV), 24 November 1949, now operating under a revised Statute which excludes any role for the International Court of Justice, adopted in General Assembly resolution 55/159, 12 December 2000. The Security Council also has established tribunals, acting under Chapter VII of the Charter, when it has considered that their establishment was necessary for the maintenance or restoration of international peace and security. They too have not been created for the settlement of differences between States. They include the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (resolution 827 (1993), 25 May 1993)28 and the International Criminal Tribunal for Rwanda (resolution 955 (1994), 8 November 1994). Since these Tribunals have jurisdiction over individuals charged with the crime of genocide, there can be interaction between their jurisdiction and judicial activity and the jurisdiction and judicial activity of the International Court of Justice which has jurisdiction over disputes between States arising under Article IX of the Genocide Convention of 1948.29

28

29

For challenges to the legality of the establishment of this Tribunal, see Prosecutor v. Tadi,c, Decision on Defence Motion on Jurisdiction, ICTY, Judicial Reports (1995), 27 (Trial Chamber), 353 (Appeals Chamber); Prosecutor v. MiloÌsevi,c. Decision on Preliminary Motions, 8 November 2001. Case No. IT–99–37–PT. At the time of writing, cases relating to that Convention are pending in the International Court of Justice as inter-State disputes, and the prosecution of MiloÏsevi,c in the Yugoslav Tribunal is an illustration of this parallelism.

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Apart from tribunals established by the General Assembly and the Security Council, diplomatic conferences convened by the General Assembly have also established independent and autonomous tribunals. The Third United Nations Conference on the Law of the Sea established the International Tribunal for the Law of the Sea. This is a standing judicial organ which has a residual compulsory jurisdiction even for disputes between States where no other existing court or tribunal has jurisdiction, notably for the prescription of provisional measures of protection under Article 290, paragraph 5, and for the prompt release of vessels under Article 292. The Conference also established the Seabed Disputes Chamber with exclusive jurisdiction in connection with activities in the international seabed area (Articles 186–191). The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (the Rome Conference for the International Criminal Court) established that Court to try and punish individuals accused of crimes that come within its jurisdiction. That Court does not have jurisdiction over disputes between States, and this may lead to an element of parallelism with the International Court of Justice which does have jurisdiction arising out of treaties which also come within the scope of the jurisdiction of the International Criminal Court, for instance, at present, under the Convention for the Prevention and Punishment of the Crime of Genocide. The Iran-United States Claims Commission, of which our honoree is a distinguished neutral member, also has limited jurisdiction to decide cases between those two countries.30 The major legal question that arises out of Article 95 is the meaning of the word ‘tribunal’. This has been considered by the International Court of Justice. It first examined the use of the word “tribunal” in connection with the United Nations Administrative Tribunal in its advisory opinion on Effect of Awards of Compensation made by the United Nations Administrative Tribunal. The Court had no difficulty in finding that the use of that word, together with other provisions of that Tribunal’s Statute, indicated the essential judicial character of the Tribunal whose decisions would be res judicata and have binding force between the parties to the dispute. At the same time it stated that the Charter does not confer judicial functions on the General Assembly

30

There can be a certain interconnection between a case in the International Court of Justice and pending matters in the Claims Commission. Thus: the discontinuance of the Aerial Incident of 3 July 1988 case in the International Court of Justice coincided with an award on agreed terms relating to several cases between Iran and the United States pending before the Claims Tribunal. See ICJ Rep. 1996, 9, and 32 Iran-U.S. Claims Tribunal Reports (1996) 207. The Order of the President of the International Court of Justice (Bedjaoui) placed on record the conclusion of the settlement agreement, the relevant terms of which are set out in the Award on Agreed Terms.

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and that when it established the Administrative Tribunal, it was not delegating the performance of its own functions but exercising another power granted to it by the Charter.31 The question arose directly in the Preliminary Objection phase of the Cameroon-Nigeria case, in connection with the third preliminary objection raised by Nigeria.32 That objection was to the effect that the settlement of boundary disputes within the Lake Chad region is subject to the exclusive competence of the Lake Chad Basin Commission, established by the Convention relating to the development of the Chad Basin on 22 May 1964.33 In 1964 experts of the Commission undertook a demarcation of the boundary which was later ratified by Cameroon but not by Nigeria. In its third preliminary objection Nigeria invoked Article 95, claiming that the Basin Commission should be seen as a tribunal within the meaning of Article 95, and that for the International Court to exercise jurisdiction would be in breach of the principle of the autonomy of jurisdictional competence. The Court did not see the Commission as a tribunal. “It renders neither arbitral awards nor judgments and is therefore neither an arbitral nor a judicial body” (para. 69). The Court was virtually unanimous in dismissing this objection, only Judge Koroma and Judge ad hoc Ajibola voting negative. Judge Koroma did not refer specifically to this question in his dissenting opinion, merely remarking that in some of its holdings, the Court would appear to have gone too far in taking positions which may appear prejudicial when it reaches the merits phase (p. 391). On the other hand, Judge ad hoc Ajibola explained fully why he thought that this objection should have been upheld (p. 405). The Qatar-Bahrain case gave the Court the opportunity to take the matter further. In the diplomatic history of this dispute, the parties had at one stage asked the British Government for a decision on a question that had arisen. On the facts the Court found that the parties had not submitted the question to arbitration by the British Government but had left it to the British Government to determine how that decision would be reached and by whom. In consequence, that decision did not have the quality of res judicata, although this did not mean that it was devoid of legal effect. For a “decision” to constitute an arbitral award, it has to be made by judges of the parties own choice and on the basis of respect for law, as laid down in the relevant Hague Conventions and other instruments.34

31 32 33 34

ICJ Rep. 1954 47, 52. Ibid. 1998, 275, 304. UNEP, Register of International Treaties and Other Agreements in the Field of the Environment 61. Note 2 above, paras. 114, 117.

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When the Permanent Court was established, there were no other standing courts in existence. The Permanent Court of Arbitration continued functioning, although States inclined more to employ ad hoc procedures when they wanted to settle a dispute through arbitration. The 1919 Peace Treaties established a series of Mixed Claims Commissions, but these were not for the settlement of disputes between States, and in connection with the Peace Settlement other judicial bodies were established, notably the Arbitration Tribunal for Upper Silesia. The Permanent Court had to consider the relationship of these tribunals to itself and its jurisdiction in the Factory at Chorzów Jurisdiction case.35 The basic principles laid down by the Permanent Court for sorting out the jurisdiction of these different bodies, all of which may have had some application to different parts of the dispute between Germany and Poland, were two in number. The first, which emerges in general from the Court’s statement of the law, is that the jurisdiction of each possible tribunal is governed exclusively by its constituent instrument. The second expressed in the Court’s own words, is that when the Court has to define its jurisdiction in relation to that of another tribunal, it “cannot allow its own competence to give way unless confronted with a clause which it considers sufficiently clear to prevent the possibility of a negative conflict of jurisdiction involving the danger of a denial of justice” (at p. 30). Since the 1920s, however, a radical change has come over the texture of international law. In the rules of international law the treaty, not custom, is now predominant, and many treaties contain their own provisions for the settlement of disputes arising out of their interpretation or application, including specially created arbitration tribunals or processes of conciliation. This has led to what a recent Arbitral Tribunal has termed “a parallelism of treaties, both in their substantive content and in their provisions for the settlement of disputes arising thereunder”. That is because it is now a “commonplace of international law and State practice for more than one treaty to bear upon a particular dispute”.36 In these circumstances, should a dispute arise which

35 36

PCIJ, Ser. A No. 9 (1927). Southern Bluefin Tuna case (Australia and New Zealand v. Japan), Arbitral Award of 4 August 2000, para. 52, reproduced in 119 ILR 509; 39 ILM 1359 (2000). For a more striking example, note in the Mox Plant case (Ireland v United Kingdom) the decision of the Arbitral Tribunal, operating under Annex VII of the Law of the Sea Convention, to suspend the proceedings until the European Court of Justice had decided whether the case was one that came within the jurisdiction of the European Union. The European Court of Justice held that Ireland was in breach of Community law in bringing those proceedings against the United Kingdom alleging violations of the UN Convention on the Law of the Sea to which the European Union was a party on terms duly laid down. Commission of rhe European Communities v Ireland Case No. C–459/03, judgment of 30 May 2006. For the order of the Arbitral Tribunal see 126 ILR 314.

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could come within the scope of more than one treaty or more than one jurisdictional clause, the court or tribunal competent for the merits will have to determine which of the parallel instruments is governing. In this context the Arbitral Tribunal cited the judgment of the International Court of Justice in the Fisheries Jurisdiction case between Spain and Canada: “It is for the Court itself, while giving particular attention to the formulation of the dispute chosen by the Applicant, to determine on an objective basis the dispute dividing the parties, by examining the position of both parties”. On that basis the Court would determine the real dispute [my italics – Sh.R.] that has been submitted to it.37 The Court made that determination in light of the whole of the diplomatic history of the dispute, and the Arbitral Tribunal did likewise, paying particular attention to the efforts made during that history to resolve the dispute by pacific means. It is clear from the foregoing account that the 1907 Conference, at which one new international court was established, the International Prize Court, and a second was contemplated, the proposed Court of Arbitral Justice, both alongside the existing Permanent Court of Arbitration, was quite alert to the problem of continuity in arbitral jurisprudence or what is now frequently referred to as the multiplicity of tribunals and to the possibility of what is today sometimes called the “fragmentation of international law”. The Conference attempted to meet that problem by allowing for members of the existing Permanent Court of Arbitration – national panels of up to four persons nominated by each State party – to be elected as members of the Prize Court and the proposed new Court of Arbitration. To some extent that desideratum is met today by the frequent appointment of serving or former members of the International Court of Justice as arbitrators, and I might add of experienced international counsel who themselves can be regarded as potential members of the International Court of Justice. Although the records of 1920 (and those of 1945) are scanty, it would appear that the Argentinian proposal of 1920, and the United Kingdom proposal of 1945 regarding Article 1 of the Statute of the PCIJ, could have had a similar purpose in view. The inclusion of Article 1 in the Statute of the PCIJ, and in 1945 the insertion of Article 95 into the Charter, can be seen as an indication that the negotiating States at the time were not overly concerned at this prospect. Nevertheless, the possibility of challenges to the law as set out by the principal judicial organ of the United Nations exists, and as President Guillaume of the International Court of Justice has suggested, no new international court should be created without first questioning whether the duties which the international legislator intends to confer on it could not better be per-

37

ICJ Rep. 1998, 432, 448, 449 (paras. 30, 31).

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formed by an existing court.38 The First Commission at The Hague in 1907 thought that a court sitting in permanence will not lightly overrule or deviate from previous decisions unless there be overwhelming and compelling reasons; and it is also clear that judges, knowing that their decision is likely to be authority with its successor and cited as a precedent, will devote the labor and reflection to the decision necessary to make it a landmark in international law. The twofold purpose, namely “to advance the cause of arbitration” and to assure “the continuity of arbitral jurisprudence” would seem to demand a Permanent Court and the permanence of the Court would insensibly and inevitably assure the scientific development of arbitral jurisprudence.39 That is what has occurred with first the Permanent Court, and now the existing International Court of Justice taking first place in the order of international courts and tribunals. Article 95 of the Charter, like its predecessors, has brought no prejudice to that position.

38 39

Statement at the meeting of the General Assembly on 30 October 2001, A/56/PV.32, 9. Report cited in note 3 above, on article 1.

5 ARTICLE 27 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE

Article 27 of the Statute of the International Court of Justice, a new provision which was inserted when the Statute was revised at the San Francisco Conference of 1945, provides: A judgment given by any one of the Chambers provided for in Articles 26 and 29 shall be considered as rendered by the Court.

Tout arrêt rendu par l’une des chambres prévues aux articles 26 et 29 sera considéré comme rendu par la Cour.

The chambers referred to are of three distinct kinds. Article 26, paragraph 1, of the Statute reads: The Court may [peut] from time to time form one or more chambers, composed of three or more judges as the Court may determine [décidera], for dealing with particular categories of cases; for example, labour cases and cases relating to transit and communications.

This is a relic of Articles 26 and 27 of the Statute of the Permanent Court of International Justice, to which reference will be made later. Article 26, paragraph 2, of the Statute, which is also new, reads: The Court may [ peut] at any time form a chamber for dealing with a particular case. The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties.

Article 29 is a slightly revised version of Article 29 of the Statute of the Permanent Court of International Justice. It provides that with a view to the speedy despatch of business, the Court shall form annually a chamber composed of five judges which, at the request of the parties, may hear and determine cases by summary procedure (la Cour compose annuellement une chambre de cinq juges, appelés à statuer en procédure sommaire).

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The faculty made available to States by paragraph 2 lay dormant until 1982.1 Since then, in response to requests from States the Court has formed six ad hoc chambers each to deal with one particular case, as envisaged in paragraph 2, two of them for cases in which the United States was a party.2 The Chamber of Summary Procedure3 has been regularly formed each year since the present Court was installed in 1946, but no case has been brought before it. These three types of chamber do not stand on the same footing. The chambers envisaged in Article 26 are formed at the discretion of the Court, but cases shall be heard and determined by those chambers only at the request of the parties. It is possible that a chamber formed under paragraph 1 to deal with a particular category of case will be a standing chamber once the Court has decided to form it, but this is not necessarily invariable. A chamber formed to deal with a particular case is an ad hoc chamber which ceases to exist once it has completed its task.4 The Chamber of Summary Procedure is a standing body, the composition of which partly changes each year, and its existence is not dependent on whether it has any cases. On the other hand, a case can be heard and determined by the Chamber of Summary

1 2

3

4

Cf. J.N. Hyde, “A Special Chamber of the International Court of Justice – An Alternative to ad hoc Arbitration”, 62 AJIL 439 (1968). For the orders of the Court constituting or reconstituting these chambers, see Gulf of Maine case, ICJ Rep. 1982, 3; Frontier Dispute case (Burkina Faso/Mali), ibid. 1985, 6; Elettronica Sicula S.p.A. (ELSI) case, ibid. 1987, 3 and 1998, 158; Land, Island and Maritime Frontier Dispute case, ibid. 1987, 10 and 1989, 162.; Frontier Dispute (Benin/Niger) case. ibid. 2002, 613, ibid. 2005, 84; Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute, ibid. 2002, 618. All these cases except the ELSI and the Application for Revision cases were introduced by special agreement; as for the ELSI case formally introduced by an application, it had been agreed before the filing of the application that the parties would request the formation of a chamber to deal with the case. The Application for Revision case was introduced unilaterally on the basis of Art. 61 of the Statute. In Art. 17 of the Rules of Court of 1978, the Court has adopted a controversial text by which it gives to the parties a dominant role not only as regards the number of judges to constitute the chamber, but also their identity. This was first applied in the Gulf of Maine case, and has been followed consistently since. In the Permanent Court, this was denominated the Chamber for Summary Procedure. The Rules of Court, however, consistently referred to the Chamber of Summary Procedure. The reasons for the change in the English text of the Statute in 1945 have never been explained. The French remains unchanged, La chambre de procédure sommaire. For this reason the provision of Art. 100, para. 1, of the Rules of Court, according to which a request for the revision or the interpretation of a judgment given by a chamber shall be dealt with by that chamber, may be difficult to apply in connection with chambers formed under Art. 26 of the Statute. It is virtually impossible should a request for revision be filed towards the end of the ten-year period required by Art. 61 of the Statute.

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Procedure only at the request of the parties. An element of stability in the composition of the Chamber of Summary Procedure is provided by Article 15, paragraph 1, of the 1978 Rules by which both the President and the Vice-President of the Court, acting ex officio, shall be members of this Chamber.5 In connection with a chamber formed under Article 26, paragraph 2, an ad hoc chamber, Article 27 of the Statute has recently been interpreted by Judge T.O. Elias in the sense that: It must follow that the Court and all its Members are bound by the judgment of a chamber, but not necessarily by a judgment arrived at by whatever means, or in defiance of a rule of justice overlooked or misconceived, or one subsequently overruled by the Court in the long run. This is so because, even though every Member of the Court is bound by the decision of the chamber, no non-member of the chamber has the chance or indeed the right to take part or to intervene in the work of the chamber before its decision is handed down. This means that there is no opportunity for any member to criticize or to point out any lacunae before the case is ended by the particular chamber; nor has the Court any opportunity to intervene. Yet according to the present Statute the decision is one by which the Court must be regarded as also bound, without having had any opportunity of interference.6

A not dissimilar interpretation of Article 27 was given by Judge Tarassov in his dissenting opinion in the same case: According to Article 27 of the Statute, a judgment given by an ad hoc chamber is to be considered as rendered by the full Court. As a result of the present Order adopted by a majority of the judges, the Applicant [for permission to intervene] will have no more than two possible courses of action – it can either abandon its intention of preserving and defending its interests against possible violation as a result of judicial processes in the International Court of Justice or it can submit its Application to the Chamber. If it opts for the latter course, the Applicant will have to abide by the decision of five judges, only two of whom are Members of the Court, but whose decision will have the status of a judgment of the Court. In the event that permission to intervene is

5 6

This was introduced into the Rules in 1972 as Art. 24. See my Procedure in the International Court 41 (1983). Dissenting opinion in the Land, Island and Maritime Frontier Dispute (Application for permission to intervene) case, ICJ Rep. 1990, 3, 9. Judge Elias had previously expounded this view at some length in his The United Nations Charter and the World Court at 205 (1989). It may be noted, however, that Judge Elias was Acting President of the Court when the Gulf of Maine Chamber was constituted, but he did not participate in the other decisions constituting ad hoc chambers. This dissenting opinion was appended to the order of the Court dealing with a preliminary question connected with the application of Nicaragua to intervene in the pending case.

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summarily rejected, or if the judgment on the merits fails to provide a proper safeguard of its lawful interests as an intervening Party, the Applicant will not be able to appeal, as the Court’s judgment will have been rendered!7

* * * Traces of this idea can be seen in the literature. Thus Judge Bedjaoui (although not in his judicial capacity) has written, in a passage with which in general I do not disagree, that L’unité de la jurisprudence de la Cour pourrait aussi être menacée par la création de chambres ad hoc avec surcroît d’autres complications. On sait que la chambre c’est la Cour et que l’on pousse le respect de ce dogme jusqu’au bout . . . L’arrêt de la chambre est réputé arrêt de la Cour tout entière. Se profile alors une difficulté. Car si on peut comprendre que l’arrêt de la Cour entière s’impose même aux juges minoritaires qui ont émis une opinion dissidente à son égard, on comprend moins bien que trois juges constituant une chambre ad hoc puissent par leur arrêt engager les douze autres qui constituent la majorité de la Cour.8

However, many other writers are content to echo the language of Article 27, simply postulating that a judgment of a chamber is considered as a judgment of the Court without further adumbration.9 Without entering into the merits of the fundamental argument raised in passages such as these, I believe, with all due respect, that this interpretation of Article 27 of the Statute, that it is a judgment of the Court and as

7

8

9

ICJ Rep. 1990, 3, 16. When the chamber was constituted, three of its members were Members of the Court, but the term of office of one of them terminated while the case was pending in the Chamber, with the consequence that in subsequent phases only two of the members of the Chamber were Members of the Court. The statement that there is no appeal from a judgment of a Chamber is certainly correct: Statute. Arts. 27 and 60. And see S.M. Schwebel, “Chambers of the International Court of Justice Formed for Particular Cases”, International Law at a Time of Perplexity 739, 741 (1989, Y. Dinstein, ed.). “Universalisme et régionalisme au sein de la Cour internationale de Justice: La constitution de chambres «ad hoc»”, Liber amicorum . . . al Prof. Dr. D. José Pérez Montero, vol. I, 155, 170 (1988). The emphasis has been added. Thus: G. Schwarzenberger, International Law as applied by International Courts and Tribunals, IV, International Judicial Law 395 (1986); A. de Saavedra y Muguelar, “La creación y el funcionamiento de las salas «ad hoc» del Tribunal internacional de Justicia”, Liber Amicorum cited in previous note, vol. III, 1285, 1287; H. Mosler, “The ad hoc Chambers of the International Court of Justice: Evaluation after Five Years of Experience”, International Law at a Time of Perplexity 449, 457 (ed. Y. Dinstein, 1989) (“the judgments given by Chambers are equal to those rendered by the Plenary Court”); S.M. Schwebel, loc. cit. in note 7, at 749; Nagendra Singh, The Role and Record of the International Court of Justice 116 (1989).

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such binds all the Members of the Court, is incorrect and should not be perpetuated.10 * * * The origin of Article 27 of the Statute of the present Court is found in a series of amendments to the Statute of the Permanent Court proposed by the United States of America at the Washington Committee of Jurists. This Committee was in session from 9 to 25 April 1945 immediately before the San Francisco Conference at which the combined Charter of the United Nations and the annexed Statute of the International Court of Justice were adopted.11 The task of the Washington Committee of Jurists was to examine the Statute of the Permanent Court and prepare it for that Conference. In those amendments, the United States proposed a rearrangement of the provisions relating to all the chambers. In so doing, the United States suggested substituting for the former Articles 26 and 27 (which had never been used) a new provision, which read: ‘A judgment given by any of the chambers provided for in Article 26 or 29 shall be a judgment rendered by the Court’. In a very brief introductory note, it was stated that a provision of the 1936 Rules of the Permanent Court was being adopted.12 That referred to Article 73 of the 1936 Rules, reading: Judgments given by the Special Chambers [under Articles 26 or 27 of the Statute of the Permanent Court] or by the Chamber for Summary Procedure are judgments rendered by the Court. They will be read, however, at a public sitting of the chamber.

Les arrêts émanant des Chambres spéciales ou de la Chambre de procédure sommaire sont des arrêts rendus par la Cour. Toutefois, lecture en est donnée en séance publique de la Chambre.

This was first discussed at the 4th meeting of the Committee of Jurists, and in the absence of any opposition, the Chairman, Mr (later Judge) Hackworth, announced that the proposal would be considered as tentatively agreed.13 Later a subcommittee reported this out in the terms proposed. A

10

11 12 13

For an interpretation of Art. 27 as requiring a chamber to decide a dispute in accordance with international law (Art. 38 of the Statute), see Frontier Dispute (Burkina Faso/Mali) case, ICJ Rep. 1986, 554, 575 (para. 42). The Statute is fully binding on any chamber formed by the Court in accordance with either Art. 26 or Art. 29 of the Statute. It is perhaps important that this should be stressed, even though it is obvious, because of a tendency not shared, it is believed, by Governments, to regard recourse to an ad hoc chamber as more akin to arbitration than to judicial settlement properly so called. Documents of the United Nations Conference on International Organization, San Francisco 1945 [hereafter, UNCIO], vol. 14, 324, 335. PCIJ, Ser. D, No. 1 (4th ed., 1940). 14 UNCIO 111.

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brief discussion took place at the Committee’s 9th meeting when the Chairman explained that in the American proposal an attempt had been made to preserve the same numbering of the articles. Judge Hudson, who was representing the Permanent Court in the Committee of Jurists, pleaded for the retention of the old numbering in order to facilitate use of the literature on the Court’s activities. The article was then approved, subject to consideration by the Drafting Committee of the Committee of Jurists. No further discussion took place on the record, and the article appeared, as article 27, in the same form in the report which the Committee of Jurists submitted to the San Francisco Conference.14 At the San Francisco Conference, examination of the Statute of the Court in light of the report of the Committee of Jurists was undertaken in Committee IV/1. At the Committee’s 4th meeting, Article 27 was adopted unanimously. In the version of the draft statute which was annexed to the draft report of the Rapporteur of Committee IV/1, Article 27 appears in exactly the same form as in the report of the Washington Committee of Jurists. At the Committee’s 17th meeting, it was agreed that the Co-ordination Committee might decide “questions of style” with respect to the Statute. At the 6th meeting of the Committee of Jurists attached to the Co-ordination Committee, the provision was changed into its present form, but without any explanation on the record.15 It appears in this form in the final report of the Rapporteur of Committee IV/1, which merely states that “certain minor modifications and changes” had been introduced, but nothing more.16 Hudson, in his annual article for the year 1945, describing the changes in the Statute made at the San Francisco Conference, has no comment of substance to make on the final text of Article 27.17 * * * The starting point for an appreciation of the difference between Article 27 of the Statute of the present Court and Article 73 of the Rules of the Permanent Court of 1936 lies in the wording of Articles 26 and 27 of the Statute of the Permanent Court, as well as in the slightly revised wording of Article 29. Article 26 of that Statute, dealing with labour cases with particular reference to the International Labour Organization, laid down that such cases

14 15 16 17

Ibid. 201, 283 (Report of the Subcommittee, where the provision was numbered art. 28), 714, 722. 17 UNCIO 412. 13 UNCIO 402 (doc. 913, Annex 2). M.O. Hudson, “The Twenty-fourth Year of the World Court”, 40 AJIL 1, 27 (1946).

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“shall be heard” (la Cour statuera) under the conditions laid down. Those conditions required the Court to “appoint” a special chamber with technical assessors for labour cases; but such a chamber should function only “if the parties so demand”. Although this chamber was regularly constituted since 1922, no case was ever brought before it.18 Article 27 dealt with cases relating to transit and communications with special reference to Part XII (Ports, Waterways and Railways) of the Treaty of Versailles.19 Its structure was similar to that of Article 26, the assessors being designated “Assessors for Transit and Communications cases”. This chamber too was regularly constituted since 1922, but no case was ever brought before it.20 Article 29 was very similar to the present Article 29, except that the Chamber for Summary Procedure was to be composed of three judges “who” (“appelée”) may hear and determine cases by summary procedure at the request of the parties. In 1945 “who” (appelée) was changed to “which” (appelés). The effect of that change was to bring the English text of the 1945 Statute into line with the French version of the Statute of 1920, and the French version of the 1945 Statute into line with the English version of the previous Statute, the discordance between the two language versions of the Statute accordingly remaining but reversed. The Permanent Court commonly worked in French,21 and in that language the word appelée referred to the Chamber for Summary Procedure itself, and not to its individual members, thus “incorporating” or “embodying” it as a standing organ of the Permanent Court, while the English word “who” referred to the members of the chamber. The effect of these slight grammatical changes made in 1945 is not clear, since the French now refers to the members of the chamber and the English to the chamber itself as a “body”. The requirement of the Statute of the Permanent Court that the Court “shall” appoint chambers, and that certain cases “shall be heard” by one or other of those chambers at the demand of the parties has been dropped in the Statute of the present International Court of Justice. In place of that, the Court “may” establish chambers, and the parties “may” agree – without any intervention by the Court – that a particular case will be heard by such a chamber. For chambers constituted under Article 26, language that the Court statuera, that is to say will decide the case, through a chamber no longer exists.

18 19 20 21

M.O. Hudson, The Permanent Court of International Justice 1920–1942 347 (1943). C.I. Bevans, 2 Treaties and Other International Agreements of the United States of America, 1776–1949 43; 16 AJIL Supp. 207 (1920). Hudson, loc. cit. in note 18. Cf. the discussion at the 16th meeting of the Permanent Court on 31 May 1934, PCIJ, Ser. D, No. 2, Add. 3, at 133 (No. 38).

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The matter addressed by Article 73 of the 1936 Rules was first adopted as Article 70 of the Rules of 1922, where it read: The judgment [in summary procedure] is the judgment of the Court rendered in the Chamber of Summary Procedure. It shall be read at a public sitting of the Chamber.

L’arrêt est rendu par la Cour statuant en Chambre de procédure sommaire, et lecture en est donnée en audience publique de la Chambre.

Article 70 was placed in Chapter II, Procedure, section C, Summary Procedure, of the Rules of 1922. A text along these lines first appeared in the revised text of the Secretariat’s draft of rules of Court.22 A brief discussion took place at the Court’s 37th meeting. Replying to an observation by Judge Anzilotti that the provision might be omitted since it was useless, Judges Weiss and Lord Finlay explained that the object was to make it clear that the judgments of the Chamber for Summary Procedure were “actually judgments of the Court, but that these judgments were to be delivered by the Chamber”. Judge Nyholm stressed that the judgments of the Chamber were to be delivered in public and this to some extent “compensated for the secret nature of the summary procedure”. In reply to another question, Lord Finlay explained that there was no danger that the Article would create an impression that the judgments delivered by a special Chamber were not judgments of the Court. He pointed out that in the first paragraphs of Article 26 and 27 of the Statute, it was stated that “cases shall be . . . determined by the Court” under the conditions laid down in those Articles,23 and the provision was accordingly adopted. It remained unchanged in the Rules of Court of 1926 and 1931. On the basis thus established, the two judgments of the Chamber for Summary Procedure,24 of which the authoritative texts are French, open with the words: La Cour, statuant en Chambre de procédure sommaire[.]

The Court, sitting as a Chamber of [sic] Summary Procedure[.]

It will be noted that formally those Rules only applied to the Chamber for Summary Procedure of the Permanent Court; there was no corresponding

22 23 24

PCIJ, Ser. D, No. 2, 399, 413 (Annex 59a). Ibid. 218 (No. 315). Treaty of Neuilly, Annex, Paragraph 4 (Interpretation) case (1924) and its interpretation (1925), PCIJ, Ser. A, Nos. 3, 4.

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provision in the Rules of Court regarding the special chambers envisaged in Articles 26 and 27 of the Statute. This omission was rectified in Article 73 of the Rules of 1936. On that occasion, Judge Fromageot proposed that these judgments “shall be regarded as judgments rendered by the Court” (seront reputés rendus par la Cour), but after a brief exchange the words “shall be regarded as” were replaced by “are” (sont). A vote was taken on the proposition that judgments given by the special chambers and the Chamber for Summary Procedure are judgments rendered by the Court, nevertheless shall be read at a public sitting of the Chamber, and was answered in the affirmative.25 There can therefore be no doubt that under the Statute of the Permanent Court, judgments of a Chamber were judgments of the Court. But what that means in terms of “binding” the Members of the Court who had no part in that decision is another matter altogether. Following the new wording of the Statute introduced in 1945, the Rules of Court of 1946/1972 (Articles 73 and 78 respectively) avoid this question, and simply provided that judgments given by a Chamber will be read at a public sitting of that Chamber. This is repeated unchanged as Article 93 of the Rules of 1978, currently in force. Against this background, it is to be noted that late in the San Francisco Conference, and without full discussion in the competent Main Committee, the absolute statement proposed by the United States of America for Article 27, said to follow on Article 73 of the Rules of the Permanent Court of 1936, was changed into the language of a legal fiction. The French expression seront considérés appears also in Article 36, paragraph 5, of the Statute (where it is rendered in English as “shall be deemed”), another legal fiction. In the context of the combined Charter and Statute, as a matter of law in Article 27 this can only refer to the finality of the judgment (Statute, Article 60), leading to the obligations contained in Article 94 of the Charter. That is the undertaking to comply with the decisions of the Court and the recourse to the Security Council in the event of non-compliance by the judgment debtor with a judgment of a Chamber.26 No other function can be attributed to Article 27, and there is no need to overcharge it with burdens it was seemingly not designed to bear. * * * The formulation of Articles 26 and 27 of the Statute has in the nature of things led to a significant reformulation of the opening statement of a judgment of an ad hoc chamber, in comparison with that used by the Chamber for Summary Procedure of the Permanent Court. The standard opening for

25 26

PCIJ, Ser. D, No. 2, Add. 3, 449; Add. 4, 314. Cf. Judge Shahabuddeen, dissenting opinion in the Land, Island and Maritime Frontier Dispute (Application to Intervene) case, [ICJ Rep. 1990, 3, 47].

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a judgment of an ad hoc chamber is: “In the case concerning . . . between [the parties, represented by . . .], the Chamber of the International Court of Justice formed to deal with the case above mentioned, composed as above”[.]27 In none of the cases so far determined by an ad hoc chamber has it been indicated that the decision is made in the name of the Court. * * * There are three other references to chambers in the Statute. Article 28 provides that the chambers provided for ( prévues) in Articles 26 and 29 may, with the consent of the parties, sit and exercise their functions elsewhere than at the seat of the Court, a provision which has so far never been invoked. Article 30 permits the Court through the Rules of Procedure to provide for assessors to sit with any of the chambers, without the right to vote.28 Article 31, on the question of judges ad hoc, makes provision for the participation in a Chamber of judges “specially chosen by the parties”. In the case of an ad hoc chamber, there is apparently a differentiation made between those judges specially chosen by the parties and the Members of the Court originally suggested by the parties, even when Members of the Court having the nationality of one or both of the parties are suggested as members of the Chamber.29 This difference (which may be a technicality) is, it is understood, reflected in the fact that the Court only elects its members who are to be members of an ad hoc chamber. Consequently, the order of the Court form-

27

28

29

The same formula is used for orders by a chamber. Frontier Dispute (Burkina Faso/Mali) (Provisional Measures) case, ICJ Rep. 1990, 3. An order made by the President of the Chamber alone is introduced by the phrase: “The President of the Chamber of the International Court of Justice formed to deal with the case concerning . . .”. The President signs in his capacity of “President of the Chamber”. In no case have assessors been appointed, and it is not possible to state with any degree of confidence what their functions are. In the Gulf of Maine case, the parties were agreed on the appointment of an expert for defined purposes, and an expert was duly appointed by the Chamber, his technical report being duly annexed to the judgment. ICJ Rep. 1984, 165, 347. In the Frontier Dispute (Burkina Faso/Mali) case, the parties were agreed in requesting the Chamber to appoint experts to assist them in demarcating the frontier as determined by the Chamber. The Chamber saw no objection to this and an expert was duly appointed by the President of the Chamber, but not as an expert of the Chamber within the meaning of Art. 50 of the Statute, ibid. 1987, 7. This occurred in the ELSI case, where judges of the nationality of each party (Judges Ago and Schwebel) are listed in their order of precedence as members of the Court. In the Land, Island and Maritime Frontier Dispute case, the two members of the Court who remained in the Chamber were, during the pendency of the proceedings, elected President and VicePresident of the Court. However, in the Chamber the person originally elected as its President retained that position throughout the case.

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ing the Chamber at one and the same time confers this task on its members and places on record the composition of the Chamber including the judges specially chosen by the parties who are not members of the Court, denominated judges ad hoc. This has now produced the somewhat unusual situation that while all the members of an ad hoc chamber are chosen by the parties, those who are “specially chosen” are technically in a different position, as judges ad hoc, taking part in the decision “on terms of complete equality with their colleagues” (Statute, Article 31, paragraph 6). This framework is complemented by the Rules of Court. In the Rules of 1946, Article 7, paragraph 4, dealt with the appointment of assessors by a chamber. In 1946 this was limited to the Chamber of Summary Procedure, but in 1972 this was extended to all the chambers, a provision now found in Article 9, paragraph 4, of the Rules of 1978. Article 24 dealt with the formation of the chambers. Paragraph 1 addressed the chambers envisaged in Article 26, paragraph 1, but otherwise the Rules were silent as regards the ad hoc chambers envisaged in paragraph 2. The impression given by paragraph 1 is that those chambers would be standing bodies. Paragraph 2 provided that the Presidents and members of the two types of chamber envisaged in paragraphs 1 and 2 of Article 26 and the Chamber for Summary Procedure were to be elected by the Court by secret ballot and by an absolute majority of votes. Paragraph 3 dealt with the Chamber of Summary Procedure and paragraph 4 provided that the members of any of the chambers shall, in conformity with Article 13, paragraph 3, of the Statute, finish any case which they may have begun, though they have ceased to be members of the Chamber. These provisions were all considerably revised in 1972, a matter to be examined later. Article 28 (1972 Rules, Article 31), paragraph 2, required the President of the Court to fix the date for the convening of a Chamber, the date and hour of its sittings to be determined by the President of the Chamber. The Court, or its President if the Court was not sitting, was also required to fix the place other than The Hague where a Chamber should sit and exercise its functions. Procedure before the chambers was regulated in Articles 70 to 73. Of these, particular importance attached to Article 71, paragraph 2, which read: A request for the formation of a Chamber to deal with a particular case as provided for in Article 26, paragraph 2, of the Statute, can be filed at any moment until the closure of the written proceedings. Upon receipt of such a request by the Registry, the President shall ascertain whether the other party assents. When both parties have assented, the President shall ascertain the views of the parties as to the number of judges to constitute the Chamber. The Court shall decide upon the request for the formation of a Chamber in accordance with Article 26, paragraphs 2 and 3 of the Statute and Article 24, paragraphs 2 and 5, of these Rules.

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By paragraph 4, the President of the Court was to convene the Chamber at the earliest date compatible with the requirements of the procedure. However, by paragraph 5, as soon as the Chamber has met “to begin the hearing of the case”, the powers of the President of the Court were to be exercised in respect of the case by the President of the Chamber. The remainder of the provisions dealt with the procedure before the Chamber of Summary Procedure, and Article 73 (1972 Rules, Article 78, 1978 Rules, Article 93) required the judgments of a Chamber to be read at a public sitting of that Chamber – a hold-over from Article 73 of the 1936 Rules of the Permanent Court. A thorough revision of these Rules was accomplished in 1972, and was retained as Articles 15 to 18 and 90 to 93 of the Rules of 1978. The formation of ad hoc Chambers is the subject of Article 17, which reads: 1. A request for the formation of a Chamber to deal with a particular case, as provided in Article 26, paragraph 2, of the Statute, may be filed at any time until the closure of the written proceedings. Upon receipt of a request made by one party, the President shall ascertain whether the other party assents. 2. When the parties have agreed, the President shall ascertain their views regarding the composition of the Chamber, and shall report to the Court accordingly. He shall also take such steps as may be necessary to give effect to the provisions of Article 31, paragraph 4, of the Statute [regarding judges ad hoc]. 3. When the Court has determined, with the approval of the parties, the number of its Members who are to constitute the Chamber, it shall proceed to their election, in accordance with the provisions of Article 18, paragraph 1, of these Rules. The same procedure shall be followed as regards the filling of any vacancy that may occur on the Chamber.30 4. Members of a Chamber formed under this Article who have been replaced, in accordance with Article 13 of the Statute following the expiration of their terms of office, shall continue to sit in all phases of the case, whatever the stage it has then reached.31

By Article 18, elections to all Chambers shall take place by secret ballot. The Members of the Court obtaining the largest number of votes constituting a majority of the Members of the Court composing it at the time of the election shall be declared elected. If necessary to fill vacancies, more than one ballot shall take place, such ballot being limited to the number of vacancies that remain to be filled.

30

31

This procedure for filling vacancies on a Chamber has been applied three times, in the ELSI, Land, Island and Maritime Frontier Dispute, and Frontier Dispute (Benin/Niger) cases, supra, note 2. This provision has been applied twice. in the Gulf of Maine and the Land, Island and Maritime Frontier Dispute cases, supra, note 2.

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Article 26, on the functions of the Registrar, indicates certain functions to be performed by the Registrar in relation to Chambers. Articles 90 to 93 deal with the procedure before all the Chambers (subject to the Statute, the Rules governing contentious proceedings are applicable to proceedings in the Chambers); and Article 100, paragraph 2, requires that the interpretation or the revision of a judgment given by a Chamber shall be dealt with by that Chamber. Article 101 allows the parties jointly to propose particular modifications or additions to the Rules, other than Articles 93 to 97 (on judgments), which may be applied by a Chamber if the Chamber considers them appropriate in the circumstances of the case. On the other hand, the resolution concerning the internal judicial practice makes no mention of the practice to be followed by the Chambers.32 It follows from the Statute and the Rules of Court that once a chamber is constituted under Article 27, paragraph 2, of the Statute, the Court itself has nothing more to do with the Chamber or with the case. Insofar as the President of the Court has certain functions in relation to a chamber, they all derive from the general role of the President as indicated in Article 12 of the Rules of Court, namely, that the President “shall direct the work and supervise the administration of the Court”, a provision which has remained unchanged since 1922. * * * In one sense, Article 59 of the Statute of the Court answers the preoccupations of those who believe that Article 27 somehow or other “binds” all the Members of the Court. Article 59 provides quite simply, and deliberately, that “The decision of the Court has no binding force except between the parties and in respect of that particular case”. If it has no binding force except between the parties, it cannot possibly be binding on any person or other entity than the parties; and in the Statute the expression “the parties” means the litigating States, nothing else. Examination of the circumstances in which the Council of the League of Nations inserted that provision in the draft Statute33 shows that the intention of those who insisted on it, above all the British Government, was to exclude the very danger which is seen to exist, and to avoid the common law doctrine of the binding force of judicial precedents from becoming a part of positive international law. This intention is reinforced by the exact language of Article 38, paragraph 1, letter d, of the Statute. This is further reinforced by the requirement of Article 56,

32

33

In fact, it is understood that the Chambers apply the same practice, except that only those members of the Chamber who have not been “specially chosen” by the parties constitute the Drafting Committee of the Chamber. See M.O. Hudson, op. cit. in note 18, at 207.

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paragraph 2, of the Statute, that every judgment – and by extension this now applies also to every advisory opinion and every order which is made by the full Court (as opposed to those which the President is empowered to make when the Court is not sitting) – should contain the names of the judges “who have taken part in the decision”. To this is to be added Article 95 of the Rules, requiring every judgment to state whether it is given by the Court or by a Chamber, and to contain the names of the judges participating in it,34 as well as by the elaborate practice, also consecrated in the Rules, regarding separate and dissenting opinions and declarations. No member of the Court is ever bound by any judicial pronouncement in which he did not concur; and a fortiori no member of the Court can be “bound” by any judicial pronouncement in which that member did not take part, whether it is a decision of the full Court, of its President alone, or of any chamber which the Court might have constituted. This formal answer is reflected in the actual language of Article 27 of the Statute especially when it is read against the backdrop of its legislative history. The last-minute change made by the Committee of Jurists of the Coordination Committee, converting the text of the provision into the language of a legal fiction, is the most significant element of that legislative history – although as Article 27 is clear and unambiguous there should be no need for recourse to the legislative history. Possibly, had the original text been retained, the arguments here being criticized might have had some foundation. The fact is, however, that the final text of Article 27 itself excludes that interpretation, for Article 27 itself establishes that judgments of a chamber are not judgments of the Court. Moreover, in the Statute as revised in 1945, with the possible exception of the Chamber of Summary Procedure, the provisions appearing in Article 26 and 27 of the Statute of the Permanent Court have been systematically revised. They make it clear that the Chambers envisaged in Article 26 do not act in the name of the Court but are independent organisms, established no doubt by the Court under powers conferred by the Statute, but, as far as concerns an ad hoc chamber, established and acting exclusively at the request of the parties. Nevertheless, it could be understood that the formal answer may not always be found to be adequate. It is well appreciated, and has been recognized by the Court, that a judgment can have effects going beyond the actual parties to the litigation35 and may have implications in the relations between States

34

35

A similar provision regarding advisory opinions is contained in Art. 107 of the Rules. There is no corresponding formal provision regarding orders, but practice has correctly assimilated orders to all other judicial pronouncements. Aegean Sea Continental Shelf case, ICJ Rep. 1978, 3, 16 (para. 39).

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other than the parties. That may be a good reason for the exercise of judicial restraint and caution. Article 26 of the Statute (and in fact Article 29 as well) imposes an element of responsibility on those members of the Court who participate in the decision to constitute a Chamber, but this is no greater than their responsibility in general which they incur in the exercise of their judicial functions. The Rules of Court, controversial though they might be in some respects, are designed to facilitate the decisions of States with regard to recourse to the chambers, and the performance by the members of the Court of their duties with regard to the establishment and the composition of Chambers when so requested. Once the members of the Court have done that, their responsibility is discharged.

6 INTERNATIONAL COURT OF JUSTICE: PRACTICE DIRECTION ON AGENTS, COUNSEL AND ADVOCATES

On 7 February 2002 the International Court of Justice adopted three new practice directions.1 Practice Direction VII expresses the Court’s views on how the parties to a case, acting under Article 31 of the Statute, should choose a judge ad hoc. It is examined in Essay 7 of this Collection. Practice Direction VIII introduces certain restrictions on the qualification of persons chosen to act as agent, counsel or advocate in a case before the Court, in application of Article 42 of the Statute. It expresses the Court’s views on whom the parties should not appoint as agent, counsel or advocate in a case before the Court, namely a person who recently has had close connections with the Court’s judicial activities. Taken together with Practice Direction VII these two Practice Directions are an indication of the Court’s unease at some relatively new practices of States as regards their choice of persons to serve as judge ad hoc and, related to it, their choice of persons to act as their representatives in a case before it. The need for some regulation of this aspect of litigation practice has come to the fore with the increase in the Court’s growing docket and the consequent demand for experienced practitioners to represent parties in often complicated and prolonged proceedings. Since the mid-1990s the Court has been re-examining its working methods, bearing in mind both the congested state of its General List and its budgetary constraints. The first major outcome of this examination was the adoption in 1978 of a new set of Rules of Court. This was followed in 2001 by the promulgation of what are termed Practice Directions – a term common enough in common law judicial institutions. These Practice Directions replaced a number of miscellaneous communications regarding practice which the Court wished the parties to follow in proceedings before it. A Press Release issued at the time explains that the Practice Directions involved no

1

These Practice Directions are available on the Court’s website, and in appropriate editions of the Court’s Yearbook. For a consolidated version, see Sh. Rosenne, The Law and Practice of the International Court 1920–20054, vol. 4, 1817. In preparing this Essay, I have used B. Patel, The World Court Reference Guide: Judgments, Advisory Opinions of the Permanent Court of International Justice and the International Court of Justice (1920–2000).

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alteration in the Rules but are additional to them.2 The Court keeps these Directions under continuous review, and in 2004 more were added. In 2005 the Court carried this review process a step forward and adopted a new procedure for the promulgation of amendments to the Rules. In future individual Rules will be reviewed and amended as necessary, in place of the general review previously undertaken.3 This had led to the current procedure of revising Rules as experience shows the need for treatment of individual Rules, as opposed to a general review of the whole. Some of the Court’s decisions reached in the course of this on-going review concern its internal working methods, with the general aim of accelerating them where this can be done without doing violence to the Statute or prejudicing the thoroughness of its deliberations. Other decisions embodied in Practice Directions are indications of how the Court wishes the parties to act in given respects. They make clear the Court’s position on the practical handling of different procedural matters. When a new case is filed in the Registry, the Registrar gives to the parties a Note concerning important information for parties to new cases.4 That Note includes the Practice Directions. The addressees of the Note are the States engaged in any proceedings before the Court, in whatever capacity. The two Practice Directions VII and VIII deal both with agents of the parties and with their counsel and advocates. However, the position of agents should be kept distinct from that of other representatives of parties in litigation. The inclusion of agents in these two Directives raises a major question of principle, the more so as there is no known case to date of an agent being appointed judge ad hoc in another case. Article 42 of the Statute simply provides that the parties shall be represented by agents and may have the assistance of counsel or advocates before the Court. Article 40 of the Rules provides that after proceedings have been instituted, all steps on behalf of the parties shall be taken by the agents whose name shall be furnished to the Court and who shall have an address for service at the seat of the Court. Neither the Statute nor the Rules contain any provisions regarding the qualifications of an agent. As the agent is the diplomatic representative of a State it would not be appropriate for the Court to lay down any requirements as to the agent’s personal qualifications or to give any indications of what it would regard as an appropriate choice of a person to fulfil that func-

2

3 4

Report of the Court from the period 1 August 2000 to 31 July 2001, General Assembly 56th session Official Records Supplement A/56/4 paras. 368–353, completed in 59th session, Official Records Supplement A/59/4 para. 249. Press Release 2005/9, 14 April 2005. Available on the Court’s website. Accordingly, persons preparing for litigation in the Court should check the website in the course of their work.

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tion. That is a matter for the State appointing the agent, having due regard for the nature of the agent’s responsibilities and duties and the dignity of the Court. Most frequently States appoint to this position the legal adviser of the Foreign Ministry or a member of that officer’s staff or another member of its legal service, or the Ambassador at or near The Hague. In the International Court there have been several cases in which the agent or an acting agent was not a national of the State represented but a practicing attorney from another country.5 The criterion has always been the person’s ability to present fully and faithfully to the Court and to the other party the State’s position on any issue that might arise in or in connection with the proceedings, and confidence on the part of the Court that the person concerned is in that position and can convey accurately to the home authorities anything that the Court might wish to convey to them – a normal diplomatic function. Since the agent is the diplomatic representative of the appointing Government before the Court and before the other party and alone is authorized to make or confirm statements binding the appointing Government, the agent is not in that capacity a member of the bar and does not act as a member of the bar. Very frequently the agent’s speech in the Court is formal and does not partake of the quality of a “pleading” in the sense of advancing or rebutting legal arguments. It is more usually limited to introducing the delegation, indicating how the oral statement will be presented with perhaps a general overview of the case as that party sees it, and a formal duty prescribed by the Rules of reading or confirming the party’s final submissions. When the agent is also listed as counsel or advocate, the statement may assume the character of a pleading. Practice Direction VIII (and Practice Direction VII) raises the question how far the Court may go in indicating its wishes for the handling of a procedural matter which could interfere with a Government’s choice of its representative in proceedings before the Court. Hitherto it has been axiomatic in the law of international organizations that the organization has no say as regards the person chosen by any Government to represent it in any organ of the organization. However, the autonomous standing of the International Court of Justice as the principal judicial organ of the United Nations may justify a relaxed application of that principle. Article 17, paragraph 1, of the Statute correctly lays down that no member of the Court

5

‘In the Nottebohm case, Liechtenstein’s agent was a Solicitor of the Supreme Court of England; in the Armed Activities on the Territory of the Congo (Uganda) case the agent was an advocate of the Brussels Bar, and in the Certain Property case a Rechtsanwalt from Düsseldorf. He had been the representative of the claimant, Prince Hans-Adam of Liechtenstein, in earlier proceedings relating to the same matter in the European Court of Human Rights HansAdam II of Liechtenstein v Germany, Application No. 42527/98, judgment of 12 July 2002. For an attempt to cancel the appointment of the agent and allegedly to discontinue the proceedings, see the Application of the Genocide Convention (Merits) case, ICJ Rep. 2007, 26 February, paras. 18 to 21, 23, 24.

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may act as agent, counsel, or advocate “in any case”, that is before the Court itself or any other international or national court or tribunal. But a judge ad hoc is not a “member of the Court”, and Article 17, paragraph 1, is not one of the provisions listed in Article 31, paragraph 6, on the conditions required for a judge ad hoc. While Governments will certainly heed the Court’s wishes, in the last resort they remain free to appoint whomsoever they consider appropriate in the circumstances. In this context the observations made in Essay 4 of this collection regarding possible difficulties caused by the prolonged length of some cases is also relevant here. Practice Direction VIII reads: The Court considers that it is not in the interest of the sound administration of justice that a person who until recently was a Member of the Court, judge ad hoc, Registrar, Deputy Registrar or higher official of the Court (principal legal secretary, first secretary or secretary), appear as agent, counsel or advocate in a case before the Court. Accordingly, parties should refrain from designating as agent, counsel or advocate in a case before the Court a person who in the three years preceding the date of the designation was a Member of the Court, judge ad hoc, Registrar, Deputy Registrar or higher official of the Court.

Practice Direction VIII (like Practice Direction VII) introduces a “cooling off period” for the position of agent, counsel or advocate of a person who previously had been a member of the Court, a judge ad hoc, or a senior official of the Registry. For any person who has served in any of those positions, a cooling off period of three years is required before such a person can be appointed agent, counsel or advocate in any case. The cooling off period of three years set down in Practice Direction VIII is long, and it may deter qualified persons from accepting appointment as judge ad hoc. It is believed that it prompted the resignation of persons serving as judge ad hoc in the immediate aftermath of its promulgation. There is no provision in either the Statute or the Rules (nor, by implication, in the Judges’ Pensions Regulations)6 regarding the activities of any person who has ceased to be a member of the Court, or has ceased to be in the professional service of the Court, although there is apparently no instance of a person who would be disqualified under this Practice Direction being chosen to serve as a judge ad hoc during the cooling off period of three years.

6

This is subject to General Assembly resolution 58/264, 23 December 2003, regarding the pension rights of a former member of the Court who is appointed to serve on the International Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR). This principle does not apply to a former member of the Court who has been chosen as judge ad hoc. That does not affect the pension rights of the former member of the Court.

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There is no known instance of a former member of the Permanent Court acting as agent or counsel in a case filed after that person ceased to be a member of the Court. In that connection it is recalled that all the members of the Permanent Court served for a simultaneous nine-year term leading to the general election of 1929. This aspect has been changed in the present Statute through the introduction of the system of staggered elections, the term of office of one third of the members of the Court (five judges) coming to an end each third year since the first election in 1946. This has led to an increase in the number of former members of the Court who have returned to the practice of the law. There are a few instances of persons within the categories of Practice Direction VIII serving as counsel after they ceased to hold office. The first instance in which a former member of the Court was a member of a delegation was Sir Gerald Fitzmaurice, listed as Consultant and Co-ordinator of the delegation of Malta applying for permission to intervene in the Continental Shelf (Tunisia/Libya) case.7 He did not address the Court in those proceedings. Sir Gerald’s term of office as a member of the Court terminated in 1973. After Judge (and former President) Jiménez de Aréchaga ceased to be a member of the Court in 1979, he was retained as counsel by one of the parties in several cases: the Frontier Dispute (Burkina Faso/Mali) case,8 the Phosphate Lands in Nauru case,9 the Land, Island and Maritime Frontier case,10 the Maritime Delimitation in the Area between Greenland and Jan Mayen case,11 and in the Jurisdiction and Admissibility phases of the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case.12 In none of these cases did he address the Court in the oral proceedings. The former Registrar of the Permanent Court, Mr López Oliván was a member of a delegation in a case in the present Court, in the Asylum case.13 These are it is believed the only contentious cases in which a former member of the Court or a former senior member of its staff acted as counsel in the Court itself. In each instance, the person assumed that role more than three years after he ceased to occupy the position in question. The introduction of this three year rule in Practice Direction VIII would seem to reflect

7 8 9 10 11 12 13

ICJ Rep. 1981, 3. The request for permission to intervene was filed on 18 August 1980. ICJ Rep. 1986, 554. The case was filed on 14 October 1983. ICJ Rep. 1992, 241. That case was filed on 19 May 1989. ICJ Rep. 1992, 351. That case was filed on 11 December 1986. ICJ Rep. 1993, 38. That case was filed on 6 August 1988. ICJ Rep. 1994, 112, [1995] ibid. 6. That case was filed on 8 July 1991. ICJ Rep. 1950, 266, 1951, 71. Following the dissolution of the Permanent Court, Mr Oliván’s term of office as its Registrar terminated on 20 July 1946. The Asylum case was commenced on 15 October 1949. He did not address the Court.

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practice in this delicate aspect of international litigation, and should not cause unnecessary hardship to any individual or difficulty for any State engaged in litigation before the International Court of Justice. On the other hand, there seems to have been no case in which a judge ad hoc later served as agent, counsel or advocate in another case. Judges ad hoc, as we have seen, are not in the same position as members of the Court (or the senior staff of the Registry), and while there are no known instances, it is possible that this ineligibility may cause difficulties to States engaged in or contemplating litigation in the International Court. A three year cooling off period may deter practitioners before the Court from accepting to serve as judge ad hoc. It is assumed that this Practice Direction only relates to persons appearing in Court as members of one of the delegations. Former judges, including judges ad hoc, and former senior members of the Registry staff are frequently retained by States as external advisers without appearing as members of the delegation in the courtroom itself. Article 16 of the Statute prevents members of the Court from engaging in that type of activity so long as they are members of the Court. * * * There are two recent judicial pronouncements regarding the quality of a person appointed as agent and its possible effect on the case as a whole, one in the International Court of Justice and the other in the International Tribunal for the Law of the Sea. Note should be taken of those observations in the appointment of an agent. In the Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) (Provisional Measures) case, Judge Oda, in a declaration annexed to the order, noted that a State appearing before the Court [the applicant] is not represented by a person holding high office in the Government acting as Agent, but by a private lawyer from another, highly developed, country. This has rarely been the case in the history of the Court and reinforces my feeling that a question arises as to whether the case is brought to the Court in the interest of the State involved or for some other reason.14

In the International Tribunal for the Law of the Sea, which operates under the United Nations Convention on the Law of the Sea of 1982,15 a special procedure exists for the prompt release of vessels under Article 292 of the Convention. Article 292, paragraph 2, provides that an application for

14 15

ICJ Rep. 2000, 111. 1183 UNTS 3.

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103

prompt release may be made only by or on behalf of the flag State of the vessel. That wording was designed not to restrict the freedom of the flag State in the choice of an agent in this type of case, which could include a private person, for instance the captain or the owner of the vessel. Accordingly, Article 110, paragraph 2, of the Rules of the Tribunal provides inter alia that a State Party may at any time notify the Tribunal of the name and address of any person who is authorized to make an application on its behalf. Paragraph 3 of that Rule provides: An application on behalf of a flag State shall be accompanied by an authorization under paragraph 2, if such authorization has not been previously submitted to the Tribunal, as well as by documents stating that the persons submitting the application is the person named in the authorization. It shall also contain a certification that a copy of the application and all supporting documentation has been delivered to the flag State.16

In the Grand Prince case there was some doubt about whether Belize, the applicant, was at the time of the vessel’s arrest its flag State and the agent, a representative of the parties authorized by the Belize authorities, was unable to supply the Tribunal with adequate explanations of the position. In its judgment, the Tribunal concluded that the documentary evidence adduced by the applicant failed to establish that Belize was the flag State of the vessel when the application was made and that accordingly it had no jurisdiction in this case. The Judgment makes no mention of the quality of the agent.17 However, two of the members of the Tribunal referred to this. Judge ad hoc Jean-Pierre Cot included in his declaration a long passage (paragraphs 9–15) on the role of advocates before the Tribunal. He referred to Judge Oda’s opinion in the Congo case and made the interesting suggestion that in choosing their representatives, Governments should keep in mind the qualifications required of members of the Tribunal and that advocates should be similarly qualified.18 Judge Anderson, in his separate opinion, mentioned what he termed “an unusual feature” in this case: The Agent appointed by Belize is not well placed, as a non-Belizean lawyer in private practice, to explain to the Tribunal the seeming inconsistencies in the statements of different government departments and agencies in Belize.19

16 17 18

19

International Tribunal for the Law of the Sea, Basic Texts/Textes de base, at 58. ITLOS Rep. 2001, 19. See also J.-P. Cot, “Appearing for” or “on behalf of ” a State: The Role of Private Counsel before International Tribunals”, Liber Amicorum Judge Shigeru Oda, vol. II, 835 (2002). Cot has since been elected a member of the Tribunal. ITLOS Rep. 2001, 19 at 54.

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The fact that the agent in this case was not a Belizean lawyer was not directly relevant. What was relevant for the majority of the members of the Tribunal in that case was his inability to present accurately and completely the position of the Government of Belize, but in this respect it is to be noted that no less that nine of the members of the Tribunal did not accept the majority view.20 With regard to counsel and advocates (it is not clear that there is any difference of substance between these two terms), Article 17, paragraph 1, of the Statute provides that no member of the Court shall act as agent, counsel or advocate in any case. No further provisions relating to this aspect of litigation appear in either the Statute or the Rules.21 Although promulgated as Practice Directions, Directions VII and VIII read almost like Rules of Court if not as desirable amendments of the Statute itself. They do not lay down any provision regarding the practice of States engaged in litigating a case before the Court. Rather they indicate to the world at large what is acceptable to the Court in the interests of the good administration of justice.

20 21

Joint dissenting opinion of Judges Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson and Jesus at p. 66. See on this, M.O. Hudson, The Permanent Court of International Justice: A Treatise at 537 (1943).

7 ARTICLE 31 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE REVISITED: THE JUDGE AD HOC

Dika¤vw tÚ d¤kaion di≈j˙ – Deut. 16:20

I Article 31 of the Statute of the International Court of Justice, following the similar provision in the Statute of its predecessor the Permanent Court of International Justice as amended in 1929,1 provides: 1. Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court. 2. If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5. 3. If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article. 4. The provisions of this Article shall apply to the case of Articles 26 and 29. In such cases, the President shall request one or, if necessary, two of the members of the Court forming the chamber to give place to the members of the Court of the nationality of the parties concerned, and, failing such, or if they are unable to be present, to the judges specially chosen by the parties. 5. Should there be several parties in the same interest [ font cause commune], they shall, for the purpose of the preceding provisions, be reckoned as one party only. Any doubt upon this point shall be settled by the decision of the Court. 6. Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article shall fulfil the conditions required by Articles 2, 17 (paragraph 2), 20, and 24 of the present Statute. They shall take part in the decision on terms of complete equality with their colleagues.

1

For the text as adopted in 1920, see 6 LNTS 384. For the original drafting of this provision, see note 8 below. For the amendment of 1929 see note 9 below and for the revision of 1945, note 11.

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Nicolas Valticos, in honour of whom this article was written, was first chosen as judge ad hoc by Malta (after the resignation for reasons of health of Jorge Castañeda) in the Libya/Malta Continental Shelf case.2 After that Honduras appointed him in the Land, Island and Maritime Frontier Dispute case,3 determined by an ad hoc chamber of the Court. He was chosen for the third time by Bahrain in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case.4 He was later elected a Judge of the European Court of Human Rights at Strasbourg. Article 31 embodies two interrelated and interactive principles. The first is that a State which comes or is brought before the International Court of Justice is entitled to have its case determined by every available member of the Court. The corollary of this is that every elected member of the Court is entitled if not obliged to take part in all cases before the Court, including those in which one party is the State of which he or she is a national. The second principle to which Article 31 gives expression is that where there is no member of the Court of the nationality of one or all of the parties in litigation before it, those parties may each designate a person to sit as a judge for that particular case, on an equal footing with all the other judges. The formal designation of such a person is judge ad hoc. Articles 15 and 16 of the Twelfth Hague Convention of 1907 relative to the Creation of an International Prize Court supply the conceptual basis for this. The language of those provisions was, of course, quite different from that of Article 31. The rationale for those provisions, however, retains its interest. The Report of the First Commission of the Conference on this point included the following: we did not wish to exclude the judge appointed by an interested party from the Court called upon to decide a case. In ordinary arbitration the Powers are generally anxious to have their views presented authoritatively and with exactness to the Court and they can be certain of this only if they have a judge of their choice in the Court. In a court of three members, if each of the parties appoints an arbitrator, they are inclined to consider these arbitrators as the defenders of their interests rather than real judges, and as a matter of fact the award is made by the umpire. This is unsatisfactory. The situation here is different. With the quorum required for the Court, the vote of one judge will not be so important a factor in the case just referred to. Moreover, it is to be presumed that a judge appointed so to act, not in a specific case, but during a definite period, will feel a professional pride which will prevent his considering himself the advocate of the Power which appointed him. Without doubt, he will not lay his nationality aside, but his nationality will not be the only influence exerted upon his judgment.

2 3 4

ICJ Rep. 1985, 13. ICJ Rep. 1990, 92. ICJ Rep. 1994, 112.

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A final observation must be made in reference to the advisability of having judges appointed by the Power interested in the case. It will keep out of the award reasons which might, without intention on the part of the drafters, be a source of legitimate irritation. There are different ways of being right and of condemning a litigant, and the form should not aggravate the displeasure caused by the substance.5

In the preparation of the Statute of the Permanent Court of International Justice, what became Article 31 was an integral part of the Root-Phillimore Plan for the election of the members of the Court and the general organization of the Court.6 At first there were serious differences of opinion among the members of the 1920 Advisory Committee of Jurists on the major issue of what should be done when there was a member of the bench of the nationality of one only of the parties to a case. The Advisory Committee considered three choices: to do nothing and leave matters as they were; not to count the vote of the most junior member of the Court; and to allow the State concerned to appoint what was called at the time a judge ad hoc. The issue was finally settled at a closed meeting of the Committee of which no records are available. The Committee reported the proposal out more or less in its present form, as article 28, with the exception, however, that it was based on the presence of elected deputy-judges (should there be one), who should be the first choice as judge ad hoc, and that otherwise the person chosen should have the nationality of the appointing State. The only available issue of the report of the Committee of Jurists is defective, but another contemporary report by one who took part in the Committee’s meetings explains the issues and the manner in which the solution was reached. According to that, one of the factors which persuaded the minority and enabled the proposal to be adopted unanimously was the provision now in paragraph 6, to the effect that the judges ad hoc should fulfil the conditions required by the Statute on the qualifications of the titular judges.7

5

6

7

From the report of the First Commission by Louis Renault, Proceedings of the Hague Peace Conferences, translation of the official texts: the Conference of 1907, vol. I, plenary meetings of the Conference 179, 190 (J.B. Scott, ed. 1920). For the Twelfth Convention, see id. 660. Under that Convention the court was to consist of 15 members, nine constituting a quorum. Each State party could designate a judge or a deputy judge, and while eight Big Powers were permanently to have a member on the Court, the other members would be chosen by rotation from the deputy judges. Under this system the judges ad hoc would be chosen from the deputy judges. Art. 15 of Convention XII was one of the sources brought to the attention of the Advisory Committee of Jurists (see next note). For the original Root-Phillimore Plan see PCIJ, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee (hereafter Procès-verbaux) 327 (as art. 27). For the text adopted by the Committee as art. 28, see p. 678. For the defective report distorted precisely at this point, see p. 720. J.P. Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists 85–90 (1920).

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Further minor amendments were made in the 1920 session of the League Assembly at which the Statute was finally adopted.8 The abolition of the post of deputy-judge in the 1929 revision of the Statute (in force from 1936) required adjustment of Article 31.9 The most important change made then was the dropping of the requirement that a judge ad hoc should possess the nationality of the appointing State. At the same time, what is now Article 31, paragraph 4, was added to the Statute, regarding the presence of the judges ad hoc in the Court’s chambers.10 Further minor drafting changes and improvement of the concordance between the English and French texts were undertaken in 1945 in the Washington Committee of Jurists and the San Francisco Conference, when the Article received its present form.11 The application of Article 31 is a matter for the Rules of Court. II In its initial form, the Statute of the Permanent Court (Article 3) provided that the Court would consist of eleven judges and four deputy-judges, that the full Court should sit except where expressly provided otherwise, that if eleven judges could not be present, the number should be made up by calling on deputy-judges to sit, and that if eleven judges were still not available, a quorum of nine judges should suffice (Article 25). The original (1922) Rules of Court were therefore based on those provisions and have mainly historical interest today. However, those Rules established some basic principles which have been retained and form the core of the current Rules. Article 2 provided that national judges (as they were sometimes then called) chosen from outside

8

9

10 11

Report and draft Scheme presented to the Assembly [of the League of Nations] by the Third Committee, League of Nations, Permanent Court of International Justice, Documents concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court of International Justice 206, 210 (1921) (hereafter Documents). League of Nations, Committee of Jurists on the Statute of the Permanent Court of International Justice, Minutes of the Session held at Geneva from March 11th to 19th 1929, League of Nations doc. C.166.M.66.1929.V at pp. 50, 53, 70, 84, 92, 114, 123, 127; Minutes of the Conference regarding Revision of the Statute of the Permanent Court of International Justice and the Accession of the United States of America to the Protocol of Signature of that Statute, held at Geneva from September 4th to 12th, 1929, doc. C.514.M.173.1929.V, at pp. 40, 61, 74, 87. That was initially applied literally by the present Court in the constitution of the chamber for the Gulf of Maine case, ICJ Rep. 1982, 3. UN Conference on International Organization (UNCIO – Washington Committee of Jurists and the San Francisco Conference), Documents, vol. XIV 821, 836.

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the Court under the terms of Article 31 of the Statute should take precedence after the deputy-judges in order of age. This now appears as Article 7, paragraph 4, of the Rules of 1978. That means that in voting on judicial matters the judges ad hoc vote first in their order of seniority. Article 4 included the principle that in any case in which there is a judge ad hoc the full Court may sit with a number in excess of eleven (later changed to fifteen). Article 4 also provided that when the Court has satisfied itself that there are several parties in the same interest and that one of them has a judge of its nationality on the bench, it should invite them to select by common consent a deputy-judge of the nationality of one of the parties. Should there not be one, they should choose a judge in accordance with Article 31 of the Statute. This, suitably adapted, now appears in Article 36 of the 1978 Rules. Article 4 also interpreted Article 31 of that Statute as it then stood as requiring that the judge ad hoc should be of the nationality of the appointing State (later dropped). That nationality requirement was retained in the revised Rules of 1926. In 1927 an addition was made to the Rules regulating the advisory procedure, to the effect that on a question relating to an existing dispute Article 31 of the Statute should apply, any doubt to be settled by the Court.12 That was an important addition, and it marked the first formal step in assimilating the advisory procedure, at that time not regulated in the Statute, to the contentious. These provisions were left unchanged in the modified Rules of 1931. Two important incidents concerning the application of Article 31 of the Statute occurred in this period. The first related to the application of Article 31, paragraphs 4 and 5, and led the Permanent Court, after a hearing, to make its well-known order of 20 June 1931 in the advisory proceedings concerning the Customs Régime between Germany and Austria (which it found related to an existing dispute). In that order the Court laid down that “all governments which, in the proceedings before the Court, come to the same conclusion, must be held to be in the same interest” for the purposes of the case. 13 The second related to Article 31, paragraph 1, and the position of a State

12

13

For that addition, as Art. 71 of the Rules, see PCIJ Ser. E 4 (1927) 296. For an interpretation and application of that Rule, see the order of 31 October 1935 in the Danzig Legislative Decrees advisory opinion, Ser. A/B 65 at 69. Ser. A/B 41 (1931). The order referred several times to the ‘present case’. In 1933 the Registrar reported to the Court that it was “expressly stated that this case should not be considered as a precedent”. Report by the Registrar of June 1933 in Ser. D 2 Addendum 3. The Registrar reported that decisions under Art. 31 (5) are settled by a decision of the Court. He also dealt with the question, not directly settled in the Statute, of a contested nomination of a judge ad hoc. The material is repeated in a more organized manner in Addendum 4 (1943). On the possible discordance between “in the same interest” and “font cause commune”, see B. Schenk von Stauffenberg, Statut et Règlement de la Cour Permanente de Justice Internationale: Eléments d’Interprétation 190 (1934).

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which has an elected member of the Court when that elected member is unable to sit. That issue arose first in the Lotus case between France and Turkey, and again in the Free Zones case between France and Switzerland. In the Lotus case, the French elected member of the Court, Judge Weiss, was at one stage unwell and the Court decided in principle that should he be unable to sit, France would be entitled to appoint a judge ad hoc.14 Judge Weiss died on 31 August 1928, during the pendency of the Serbian Loans and Brazilian Loans cases, his successor being elected by the competent organs of the League of Nations on 19 September 1929. In those two pending cases France was entitled to appoint a judge ad hoc. At the same time other cases involving France came before the Court. In the Territorial Jurisdiction of the International Commission of the River Oder case, in which France was one of several joint applicant parties, there was no French judge on the Court.15 In the Free Zones case France appointed a judge ad hoc who took part in the order of 19 August 1929. Following the general election of judges in 1930 and other difficulties that had been experienced in obtaining a quorum for this case, the Court decided that the later phases would be heard by the Court in the same composition.16 After the 1929 amendment of the Statute and with the experience thus gained, the Rules were thoroughly examined by the Court and revised. In the Rules of 1936, the rule that a judge ad hoc must have the nationality of the appointing State was dropped. Article 3 provided that any State which considered that it possessed and intended to exercise its right to nominate a judge under Article 31 of the Statute was to notify the Court by the date fixed for the filing of the memorial. The name of the person so chosen was also to be indicated and communicated by the Court to the other parties which may “submit their views” to the Court. “If any doubt or objection should arise, the decision shall rest with the Court, if necessary after hearing the parties.” By that, the Court assumed a power not specifically mentioned in the Statute, which on its face leaves the choice of the person to the unfettered discretion of the nominating party, subject to observance of the rules for ad hoc ineligibility of Articles 17 and 24 of the Statute. There is no authoritative explanation of the words “if necessary” in this context. This was repeated substantially unchanged in Article 3 of the Rules of 1946 (where the time limit was more aptly placed at the date of filing the

14 15

16

Ser. E 22 (1928) 224. Judge Weiss recovered and resumed his place on the Court. Ser. A 23 (1929). The applicants were United Kingdom, Czechoslovakia, Denmark, France, Germany and Sweden. Since the Court included a member of Danish nationality (Nyholm) none of the other applicants was entitled to appoint a judge ad hoc. See the statement of the Registrar at the opening of the hearings, Ser. C 17/2 at 8. Ser. E 8 (1932). Although by that time there was a French member of the Court (Fromageot), he was ineligible to take part in that case, Ser. C 19/1 at 10, 2234.

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memorial or counter-memorial), in Article 3 of the Rules of 1972, and in Article 35 of the Rules of 1978. Those provisions also retained the earlier provisions regarding the situation where there is more than one party in the same interest. Article 29 of the 1936 Rules (now Article 20, paragraph 2, of the 1978 Rules) formalized the Permanent Court’s practice of not including judges ad hoc in the quorum necessary for the Court to sit. Article 61, paragraph 9, of the 1936 Rules on provisional measures of protection provided that when the President had occasion to convene the Court, judges ad hoc should be convened if their presence can be assured at the date fixed by the President for hearing the parties. For reasons not made public this was dropped in the 1946 Rules, but today with the ease and speed of modern communications there is no importance in this. Several cases involving the application of Article 31 of the Statute have arisen under these provisions of the Rules of the present Court: the South West Africa cases, the North Sea Continental Shelf cases, the Fisheries Jurisdiction cases against Iceland (under the Rules of 1972) and the Legality of Use of Force cases of 1999 against ten members of NATO. In the first two of these, the Court applied to contentious cases the doctrine of the Customs Union case. At the same time it joined two sets of cases, both of them cases of two applicants against a single respondent, the South West Africa cases by separate applicants against a single respondent, and the North Sea Continental Shelf cases, between Denmark and the Federal Republic of Germany and between the Netherlands and the Federal Republic. In the special agreement, the three parties agreed that Denmark and the Netherlands should appoint a single judge ad hoc and that the cases should be joined. In the provisional measures phase of the ten Legality of Use of Force cases any respondent without a national among the members of the Court was entitled to appoint a judge ad hoc, but in the jurisdiction phase in 2004 the Court applied the Customs Union rule. In all of these cases, the Court examined the relevant pleadings before it made the appropriate order, so as to satisfy itself that the parties concerned had come to the same conclusions.17 The situation was different in the two Fisheries Jurisdiction cases, brought respectively by the Federal Republic of Germany and by the United Kingdom against Iceland. Here the Federal Republic, in reliance on Article 31, paragraph 3, of the Statute, informed the Court of its intention to appoint a judge ad hoc, although in view of the urgency this would not done before the proceedings for an indication of provisional measures. It repeated that notice of its intention later, when it informed the Court of the name of the person it had chosen. No objection having been received from Iceland, the

17

For these joinders, see ICJ Rep. 1961, 13 and 1968, 9.

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Registrar forwarded the documents in the case to the chosen person. Shortly before the opening of the proceedings in the jurisdictional phase of that case, however, the Court had a deliberation on the matter. Without seeking the parties’ views or hearing them, it decided by eight votes to five that taking into account the United Kingdom case against Iceland and the composition of the Court in the Federal Republic’s case, which included a judge of United Kingdom nationality, there was in the present case, concerning the jurisdiction of the Court, “a common interest in the sense of Article 31, paragraph 5, of the Statute which justified the refusal of the request of the Federal Republic of Germany for the appointment of a judge ad hoc”.18 In the merits phase, the Federal Government reiterated its intention to appoint a judge ad hoc. At the same time it added that before taking a decision on the nomination of the person to sit as judge ad hoc, it would like to know whether, in the opinion of the Court, in the present phase of the proceedings a common interest continued to exist which might be regarded as an obstacle to the admission of a judge ad hoc. Referring to paragraph 7 of the 1973 judgment, the Court approached both the United Kingdom and the Federal Republic requesting their observations on the possible joinder of the two cases. Both Governments replied in the negative on the question of joinder. The merits judgment in the Federal Republic’s case contains the following passage: The Court does not include upon the bench any judge of the nationality of either of the Parties. However, the Government of Iceland did not indicate any intention to avail itself of the right conferred upon it by Article 31, paragraph 3, of the Statute of the Court; and in the present phase of the proceedings the Agent for the Federal Republic of Germany informed the Court that, taking account of the fact that the Government of Iceland was declining to take part in the proceedings and to avail itself of the right to have a judge ad hoc on the bench, the Government of the Federal Republic, as long as that situation persisted, did not feel it necessary to insist on the appointment of a judge ad hoc.19

18

19

For the correspondence on this, see the Pleadings in that case, vol. II at 387 (doc. 35), 403 (docs. 68, 70) and 421 (doc. 77). Announcing this in open Court at the commencement of the hearings, the President (Zafrulla Khan) stated that the Court found the appointment of a judge ad hoc in that phase of the case inadmissible. “This decision affects only the present phase of the proceedings . . . and does not in any way prejudice the question whether, if the Court finds that it has jurisdiction, a judge ad hoc might be chosen to sit in the subsequent phases of the case.” Ibid. 120. For the record of the decision in the judgment, see ICJ Rep. 1971, 49, 51 (para. 7). ICJ Rep. 1974, 175, 178 (para. 10). For the relevant correspondence, see Pleadings, vol. II at 454 (doc. 110), 455 (doc. 112), 456 (docs. 113, 114). For the statement of the President (Lachs) on the opening of the hearings in this phase, see id. at 28. At the same time the Court decided by nine votes to five not to join the two cases but to hold public hearings immediately following on each other, id. at 5 (para. 8) and 177 (para. 8).

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In the Legality of Use of Force cases (under the Rules of 1978) Yugoslavia instituted ten separate proceedings (with different titles of jurisdiction) against member States of NATO. Together with the application instituting these proceedings Yugoslavia requested provisional measures. Those of the respondents (except one) who did not have a member of the Court of its nationality applied to appoint a judge ad hoc in the provisional measures phase. Opening the hearings the Acting President (Weeramantry) stated that the Court, after due deliberation, found that the nomination of a judge ad hoc each by Belgium, Canada, Italy and Spain was justified “in the present phase of their respective cases”. Special arrangements were made for the hearings in these cases, where, when the respondents were speaking there were repeated adjournments so that the Court could re-assemble in a different composition according to whether one of the judges ad hoc was participating. In this phase the lack of jurisdiction in the cases brought against Spain and the United States was manifest, and the Court ordered them removed from the General List. Things changed in the preliminary objection phase of the remaining eight cases. Here the Court invited the parties to consider two issues that arose – the presence on the Court of judges ad hoc in the preliminary objections phase (in this connection, the German member of the Court [Simma] was ineligible to sit as judge in this phase), and the possible joinder of the cases. On the question of the judges ad hoc, the judgments record that the Court had decided, pursuant to Article 31, paragraph 5, that taking into account the presence on the Bench of judges of British, Dutch and French nationality, the judges ad hoc chosen by the respondent States should not sit during the preliminary objections phase. The Court made it clear that this decision did not in any way prejudice the question whether, should the Court reject the objections, judges ad hoc “might sit in subsequent stages of the cases”. As for Germany, the Court decided that in view of this decision, Germany had not become entitled to choose a judge ad hoc under Article 7 of the Rules.20 III Substantial additions were introduced into the revised Rules of 1978. Distinguishing between the Court itself and the bench for a particular case, Article 1 states that for the purposes of a particular case, the Court may

20

For the 1999 decision, see CR 99/14, 10 May 1999, opening the hearings on provisional measures. For the 2004 decision, see the judgment in the case against Germany of 15 December 2004, para. 15 (the general decision) and para. 16 (the specific decision) and the corresponding paragraphs in the other seven judgments of that date. The decision about the nonjoinder is also recorded there. See ICJ Rep. 2004 720, 727 (para. 15).

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include upon the bench one or more persons chosen under Article 31 of the Statute to sit as judges ad hoc. Although that is a restatement of the continual practice of both Courts, it is important as part of the general restructuring of the Rules which make a distinction between the Court, the fifteen members elected in accordance with the Statute, and the bench for a particular case, with the addition of judges ad hoc and the subtraction of recused members. Articles 7 and 8 deal with the judges ad hoc as such, and repeat earlier provisions: Article 7 1. Judges ad hoc, chosen under Article 31 of the Statute for the purposes of particular cases, shall be admitted to sit on the Bench of the Court in the circumstances and according to the procedure indicated in Article 17, paragraph 2, Articles 35, 36, 37, Article 91, paragraph 2, and Article 102, paragraph 3, of these Rules. 2. They shall participate in the case in which they sit on terms of complete equality with the other judges on the Bench. 3. Judges ad hoc shall take precedence after the Members of the Court and in order of seniority of age. Article 8 1. The solemn declaration to be made by every judge ad hoc in accordance with Articles 20 and 31, paragraph 6, of the Statute shall be as set out in Article 4, paragraph 1, of these Rules. 2. This declaration shall be made at a public sitting in the case in which the judge ad hoc is participating. If the case is being dealt with by a chamber of the Court, the declaration shall be made in the same manner in that chamber. 3. Judges ad hoc shall make the declaration in relation to any case in which they are participating, even if they have already done so in a previous case, but shall not make a new declaration for a later phase of the same case.

With regard to attendance in the meetings of the Court devoted to a case, Article 10, paragraph 3, of the Rules, a new provision, provides: 3. Judges ad hoc are likewise bound to hold themselves at the disposal of the Court and to attend all meetings held in the case in which they are participating. They shall not be taken into account for the calculation of the quorum.21

21

With regard to the non-inclusion of judges ad hoc in the quorum, in 1920 the League Assembly refused to include such a provision in Art. 31 of the Statute on the ground that it went without saying. Report of the Third Committee in Documents at 130, 193 (on what was then art. 28). It was first included in Art. 30 of the Rules of 1926 and has been repeated ever since. There is an implied duty on the Registrar to ensure that the judges ad hoc are duly summoned to the meetings that they are entitled and required to attend. This is not mentioned in Art. 26 of the Rules, which sets out the Registrar’s functions.

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For the appointment of judges ad hoc, Article 35, 36 and 37 apply, as follows: Article 35 1. If a party proposes to exercise the power conferred by Article 31 of the Statute to choose a judge ad hoc in a case, it shall notify the Court of its intention as soon as possible. If the name and nationality of the judge selected are not indicated at the same time, the party shall, not later than two months before the time-limit fixed for the filing of the Counter-Memorial, inform the Court of the name and nationality of the person chosen and supply brief biographical details. The judge ad hoc may be of a nationality other than that of the party which chooses him. 2. If a party proposes to abstain from choosing a judge ad hoc, on condition of a like abstention by the other party, it shall so notify the Court which shall inform the other party. If the other party thereafter gives notice of its intention to choose, or chooses, a judge ad hoc, the time-limit for the party which has previously abstained from choosing a judge may be extended by the President. 3. A copy of any notification relating to the choice of a judge ad hoc shall be communicated by the Registrar to the other party, which shall be requested to furnish, within a time-limit to be fixed by the President, such observations as it may wish to make. If within the said time-limit no objection is raised by the other party, and if none appears to the Court itself, the parties shall be so informed. 4. In the event of any objection or doubt, the matter shall be decided by the Court, if necessary after hearing the parties. 5. A judge ad hoc who has accepted appointment but who becomes unable to sit may be replaced. 6. If and when the reasons for the participation of a judge ad hoc are found no longer to exist, he shall cease to sit on the Bench. Article 36 1. If the Court finds that two or more parties are in the same interest, and therefore are to be reckoned as one party only, and that there is no Member of the Court of the nationality of any one of those parties upon the Bench, the Court shall fix a time-limit within which they may jointly choose a judge ad hoc. 2. Should any party amongst those found by the Court to be in the same interest allege the existence of a separate interest of its own, or put forward any other objection, the matter shall be decided by the Court, if necessary after hearing the parties. Article 37 1. If a Member of the Court having the nationality of one of the parties is or becomes unable to sit in any phase of a case, that party shall thereupon become entitled to choose a judge ad hoc within a time-limit to be fixed by the Court, or by the President if the Court is not sitting. 2. Parties in the same interest shall be deemed not to have a judge of one of their nationalities upon the Bench if the Member of the Court having one of their nationalities is or becomes unable to sit in any phase of the case. 3. If the Member of the Court having the nationality of a party becomes able to sit not later than the closure of the written proceedings in that phase of the case, that Member of the Court shall resume his seat on the Bench in the case.

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Article 102, paragraph 3, repeats the earlier Rule regarding judges ad hoc in advisory proceedings: 3. When an advisory opinion is requested upon a legal question actually pending between two or more States, Article 31 of the Statute shall apply, as also the provisions of these Rules concerning the application of that Article.

Article 31 of the Statute is complemented by Article 35 of the Rules which sets out the modalities of the appointment. In that provision, which originated in Article 4 of the initial Rules of Court of 1922, the Court has reasserted its power to monitor and control the person chosen to serve as judge ad hoc. So far, both the Permanent Court and the present Court have had to decide questions of the entitlement of a party to appoint a judge ad hoc. It also appears that the Permanent Court once intimated its reservations at the choice as judge ad hoc of a person at the time serving as head of his country’s diplomatic mission in another capital, and another person was chosen.22 That demonstrates that the Permanent Court asserted a power to examine whether a person chosen as judge ad hoc was not ineligible for that task, but not whether the person was qualified in accordance with Article 31, paragraph 6, of the Statute (that could be an unenviable duty). There is no further published record of any other decision by either Court as to the eligibility or qualification of a person chosen to sit as judge. If either Court has had instances of this, it has dealt with them discreetly and without publicity. IV Perhaps the most important discussion about judges ad hoc took place in connection with the revision of the Rules of 1936. Following the abolition in the 1929 amendment of the Statute that a judge ad hoc had to be of the nationality of the designating State, the Court examined at some depth whether a judge ad hoc could possess the same nationality as any of the members of the Court. The Permanent Court decided not to include in the Rules a clause making it possible to appoint a judge ad hoc who is not a national of the State exercising the right of appointment, providing always that the person so appointed does not possess the same nationality as any other titular judge of the Court. It also decided not to insert a clause in the Rules

22

Serbian Loans case, PCIJ, Ser. C-16-III at 811 (telegram of 29 April 1929); B. von Stauffenberg, op. cit. in note 13 above, 192 (1934); M.O. Hudson, The Permanent Court of International Justice 1920–1942: A Treatise 365 (1943). For decisions of the International Court regarding persons who should not be chosen as judges ad hoc, see p. 125 below.

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making it possible for the President, before the appointment of a judge ad hoc had become definitive, to draw the attention of the State concerned to the difficulties which might be caused by the appointment of a person of the same nationality as a judge on the bench. Judge Anzilotti summarized this discussion as indicating that the minutes should show that members of the Court were agreed in point of fact that it was desirable that there should not be two judges of the same nationality in the Court; that the Court would be disposed, if necessary to convey this to a State, but that, having regard to the terms of the Statute, it would go no further. Judge Guerrero stated that the Court had been checked by a doubt with regard to the interpretation of the Statute.23 The second major issue related to the nomination of the judges ad hoc. The discussion was complicated, but to simplify matters here it can be resumed as concerning two apparently separate issues. The first was whether the party concerned should notify its intention to appoint a judge ad hoc and if so at what stage of the proceedings. The second was, having done that should it make the appointment later and if so at what stage of the proceedings. Implicit in this discussion was an assumption by the Court that it had the power, and perhaps the duty, itself to scrutinize the appointment and to approve it. It appears from the record that the practice in the Permanent Court was for States intending to exercise their right to appoint a judge ad hoc to notify the name of the appointee informally, and to allow the other party to submit its comments on the nomination. The Court’s decision is included in Article 3 of the 1936 Rules mentioned above, retained in the Rules of 1946 and in Article 34, paragraph 3, of the Rules of 1978.24 In the present Court there is a growing tendency for States to appoint a person of another nationality as a judge ad hoc, including for a judge ad hoc to be chosen from a State of a different geographical group than that of the appointing State. The first instance of this was in the first contentious case before the present Court, the Corfu Channel case (1948, 1949). Albania appointed jurists of Czech nationality. This case, however, is not to be regarded as trend-setting: it is likely that Albania did not have a suitably qualified Albanian for that post. The persons it chose – its first choice resigned after the preliminary objection phase – both came from what was then the ideological and political-military group known in United Nations jargon as the Eastern European States (before Albania went on its own way). The next instance of this was Bulgaria’s choice of an eminent Czech international lawyer, a member of the International Law Commission, in the Aerial Incident

23 24

This discussion was spread over the years 1932 to 1934. It is summarized in D2 Add. 4 at 357. For that discussion in the Permanent Court see D2 Add. 4 at 9.

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of 27 July 1955 cases (1959). This is more interesting, since Bulgaria probably did have competent nationals of its own for this position, although its choice still remained within the ideological group to which the country then adhered. The next instance was the choice by both parties in the Arbitral Award of the King of Spain case (1960) of non-nationals as judges ad hoc, the person chosen by Honduras – Roberto Ago – not even from a Latin American country. It has been repeated several times since. This has even led to the choice of former members of the Court (including a former President) and a former Registrar as judges ad hoc, something which the Court, as will be seen, discourages.25 This is an interesting development which is certainly giving new and refreshed content to the concept of judge ad hoc, for clearly in not all of these cases can the appointment of a non-national be ascribed to lack of qualified personnel amongst the parties’ nationals. There have also been contentious cases in which the parties agreed not to appoint any judges ad hoc. These included the Frontier Lands case (1959), the Temple of Preah Vihear case (1961, 1962), the Border and Transborder Armed Actions case between Nicaragua and Honduras (1988), the Kasikili/Sedudu Island case (1999) and Portugal in the Legality of Use of Force case brought against that country (1999, 2004). In addition, it is to be noted that in its original form, the agreement between Canada and the United States of America to refer the Gulf of Maine case to an ad hoc chamber constituted under Article 26, paragraph 2, of the Statute envisaged that neither party would have a national of its own among the members of the chamber: That intention was overturned by a series of unforeseen and unfortunate events, including the decease of two of the proposed members of the chamber and of Judge Baxter who would have been ineligible to have taken part in that case. This development is encouraged by Article 35, paragraph 2, of the Rules of 1978. V There have been four instances of the appointment of a judge ad hoc of a person with the same nationality as a member of the Court sitting in the case. The first was Nicaragua’s appointment of a French professor of international law in the Military and Paramilitary Activities case. Moreover, that person was at the time appearing before the Court as counsel in another pending case. On this occasion, not only was there a French member of the

25

In the Arbitral Award of 31 July 1989 case there was originally a member of the Court of the nationality of one of the parties. His term of office came to an end during the pendency of the case, and he was then appointed judge ad hoc by that party.

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Court, but at the same time a former French member of the Court was finishing a case under Article 13, paragraph 2, of the Statute. The second instance was in the Application for the Revision and Interpretation of the Tunisia/ Libya Continental Shelf case (1985), where again one of the judges ad hoc (incidentally the first woman to sit on the bench) was of French nationality alongside the French member of the Court. The third case of this nature was the appointment of a distinguished British international lawyer as judge ad hoc by Bosnia-Herzegovina in the Genocide Convention case, that person also being counsel in another pending case before the Court. Lastly Liechtenstein, in its application instituting proceedings in the Certain Property case, filed on 30 May 2001, announced the appointment as judge ad hoc of a person who at the time was counsel in more than one case then pending in the Court, also of the nationality of a member of the Court. In these cases not one of the parties, or apparently the Court, raised any objection to the appointment. In the Permanent Court this phenomenon was encountered in two advisory opinions involving the Free City of Danzig, which the Court found in the circumstances was entitled to appoint a judge ad hoc. In each case, the Free City appointed a German national, notwithstanding that there was a member of the Permanent Court of German nationality, and no objection appears to have been taken to this.26 Although the Free City of Danzig was an anomalous creation of the Treaty of Versailles and an element in the ongoing tension between Germany and Poland throughout the inter-war period, it is clear from the discussion on the issue during the 1936 revision of the Rules of the Permanent Court that the Permanent Court viewed this practice with disfavour. One might think that it conflicts with the spirit, if not with the letter, of what is now specifically written into the Statute in Article 3, paragraph 1, that no two of the members of the Court may be nationals of the same State. That Article is not one of those mentioned in Article 13, paragraph 6, regarding the conditions to be met by persons chosen as judge ad hoc, and it is arguable that a judge ad hoc is not a member of the Court notwithstanding membership of the bench in the particular case. This line of cases indicates two things. The fact that the person chosen was serving as counsel or advocate in another case pending before the Court

26

Access to or Anchorage in the Port of Danzig of Polish War Vessels (1931) and Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932) advisory opinions, Ser. A/B 43 and 44. The Free City appointed the same person in each case, and the two German nationals on the Court voted the same way. At that time the Rules of Court had not been amended and still required the judge ad hoc to possess the nationality of the appointing State. However, the amendment to the Statute had been adopted although it was not yet in force.

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was not at the time seen as a ground for ineligibility to serve as judge ad hoc, although it is open to criticism. There is probably value in practitioners in international courts obtaining from the inside experience of the working of these courts. But the choice of practitioners as judge ad hoc (and this is quite common) should not extend to persons who at the time they are chosen are already appearing or have recently appeared before the Court as agent, counsel or advocate. The second conclusion from these precedents is that the present Court sees no objection to a judge ad hoc possessing the nationality of a member of the Court. Article 37 of the 1978 Rules of Court is a new provision, to some extent codifying the practice developed by the Permanent Court in the case of Judge Weiss and France. The first instance of the application of this Rule in the present Court occurred in the Lockerbie case, in which the current member of the Court of British nationality was ineligible to sit, having acted as counsel for the United Kingdom in the provisional measures phase of that case in 1992. The United Kingdom thereupon appointed the former British member of the Court, also a former President, as judge ad hoc. In an unprecedented move, the Court informed both Libya and the United States of this, and invited their observations before taking a decision. The Court held that in the phase relating to jurisdiction and admissibility the United Kingdom and the United States were not parties in the same interest within the meaning of Article 31, paragraph 5. The choice of a judge ad hoc by the United Kingdom was therefore justified in the current phase in that case.27 Some may see in this a fine example of scholastic casuistry. The Court has had to face a new problem in connection with requests for permission to intervene under Article 62 of the Statute.28 The first instance of this was Malta’s request for permission to intervene in the Continental Shelf case between Tunisia and Libya. Malta included in its application for permission to intervene a reasoned statement of its intention to appoint a judge ad hoc. At the same time it questioned whether the two judges ad hoc appointed by the parties should sit in the proceedings on the request for permission to intervene, since both parties objected to the request and were therefore parties in the same interest. The Court, sitting without the participation of the two judges ad hoc, decided that Malta’s request for the appointment of a judge ad hoc did not fall within the ambit of Article 31 of the Statute, and that a State seeking to intervene under Article 62 had no other right than to submit a request for permission to intervene. Pending the

27 28

The decision was reached by ten votes to three. ICJ Rep. 1998, 9, 13 (para. 9). Art. 62 allows a State which considers that it has interest of a legal nature which may be affected by the decision in a case to submit a request to be permitted to intervene, on which the Court will decide.

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decision on that request, the conditions under which Article 31 may become applicable did not exist. This decision applied to both aspects of Malta’s initial request, and accordingly the judgment dismissing Malta’s request was reached with the participation of the two judges ad hoc chosen by the parties.29 The next case of this nature was Italy’s request for permission to intervene in the similar Continental Shelf (Libya/Malta) case. Here there was a member of the Court of Italian nationality. The judgment dismissing Italy’s request makes no mention of the composition of the Court on that occasion.30 The most complicated instance of this was Nicaragua’s request for permission to intervene in the Land, Island and Maritime Frontier Dispute case between El Salvador and Honduras, brought before a Chamber of the Court under Article 26, paragraph 2, of the Statute. This request for permission to intervene went through two phases. The first was before the Court for a decision on whether this request should be heard by the Court or by the Chamber, and following that by the Chamber. The Court determined the first question without the participation of judges ad hoc, deciding that it was for the Chamber formed to deal with the case to decide whether to grant the application for permission to intervene.31 The Chamber included two judges ad hoc, and in a judgment decided to allow the intervention limited to that part of the case that related to the regime of the waters of the Gulf of Fonseca but not on the delimitation of those waters or any decision as to the legal situation of the maritime spaces outside the Gulf or any decision as to the legal situation of the islands in the Gulf. The judgment (para. 102) expressly states that Nicaragua did not become party to the proceedings.32 No question requiring decision by the Court or by the Chamber and concerning judges ad hoc, including the possibility of a judge ad hoc being chosen by the intervening State, seems to have arisen in these unusual proceedings, and it followed from the admission of Nicaragua as a non-party intervener that it was not entitled to appoint a judge ad hoc in the proceedings in the Chamber. Perhaps the most serious question regarding the judges ad hoc that has arisen in the present Court concerns the question whether previous appointment as judge ad hoc (whether he sat or not) would disqualify a person from

29

30 31 32

Continental Shelf (Tunisia/Libya) (Application by Malta for Permission to Intervene) case, ICJ Rep. 1981, 3, 5 (para. 8); Sovereignty over Pulau Litigan and Pulau Sipadan (Application by the Philippines for Permission to Intervene) case, ICJ Rep. 1991, 575. This has been followed when the parties to the case did not oppose the request for permission to intervene and the Court embodied its formal decision granting the permission in an order, Land and Maritime Boundary between Cameroon and Nigeria (Application by Equatorial Guinea for Permission to Intervene) case, ICJ Rep. 1999–II, 1029. ICJ Rep. 1984, 3. ICJ Rep. 1990, 3. ICJ Rep. 1990, 92.

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sitting in a later phase of the case or in a later case related to the same subjectmatter, should that person subsequently be elected a titular member of the Court. That had first occurred in the Permanent Court when Judge De Visscher, who had been chosen as judge ad hoc by Belgium in the Water from the Meuse case, was elected during the pendency of the case as a member of that Court. No question then arose of his possible disentitlement to sit on the ground of his earlier appointment as judge ad hoc. In the present Court, the applicants chose Sir Mohammed Zafrulla Khan, a former member and Vice-President of the Court whose term of office had expired, to be judge ad hoc in the South West Africa cases. For extrinsic reasons he never took his seat and was replaced before the hearings in the Preliminary Objections phase in 1962. In 1963 he was again elected as a member of the Court. In connection with the later phase of the case, it appears that the President, Sir Percy Spender, persuaded him that his previous appointment as judge ad hoc rendered him ineligible to sit in the case, and that if he were to bring the matter before the Court for decision, the majority would uphold that view. Accordingly, Sir Muhammad did not participate in the second phase of the case.33 In the Application for Revision and Interpretation of the 1982 Judgment in the Tunisia/Libya Continental Shelf case, a member of the Court recused himself on the ground that he had been appointed judge ad hoc in the original case. The President (Judge Elias) accepted this under either Article 17 or Article 24 of the Statute.34 It is not consistent with the concept of judge ad hoc or with the solemn declaration that one is required to make in the same terms as the solemn declaration of the elected members of the Court, that appointment as judge ad hoc should later be a ground for the ineligibility of a duly elected member of the Court to sit in the case should the case proceed to another phase or should an earlier judgment come before the Court in a process of revision or interpretation. In fact, Article 100 of the Rules can be read as requiring if possible that proceedings in revision or in interpretation should be determined by the same Court. This is, indeed, the practice in international arbitration.35

33

34 35

For particulars of this incident, see M. Reisman, “Revision of the South West Africa cases”, 7 Virginia J. Int’l L. at 55 (1966). This non-participation was decisive as it left the proceedings in this phase to a bench composed of an even number of judges, and the case was decided by the casting vote of the President. ICJ Yearbook 1984-1985 at 177. This occurred in the interpretation phases of two recent arbitrations, the Anglo-French Continental Shelf arbitration of 1977 and 1978, XVIII RIAA 3 and 271, and the arbitration between Argentina and Chile in 1994 and 1995 concerning Laguna del Desierto, 113 ILR 1. On the composition of the bench in cases of interpretation on revision of a judgment, see Sh. Rosenne, Interpretation, Revision and Other Recourse from International Judgments and Awards, p. 172 (2007).

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VI Neither the Statute nor the Rules contain any provision regarding the duration of an appointment as judge ad hoc. Following the practice of the Permanent Court, the duties of a judge ad hoc commence on appointment. From that time the judge ad hoc is entitled to be summoned to any meeting of the Court called to discuss matters of substance, and procedural matters if they raise controversy as between the parties.36 This can occur before the judge ad hoc makes the solemn declaration in open Court, required of all judges.37 In the nature of things one might presume that the appointment continues until the final disposal of the case for which the person was appointed. It is not usual for the judges ad hoc to be convened for purely procedural matters which are not controversial, such as prolongation of the time limits, nor are they normally convened for decisions regarding the termination of a case.38 In the Corfu Channel case, the person appointed as judge ad hoc for the preliminary objections phase was later ‘by reasons of health’ prevented from sitting on the date fixed for the opening of the proceedings on the merits. The Court allowed Albania to choose a new judge ad hoc and fixed a new date for the opening of the proceedings.39 In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain ( Jurisdiction and Admissibility) case, one of the judges ad hoc died after the judgment of 1 July 1994. The judge ad hoc appointed in his place took part in the second judgment, of 15 February 1995, although the Court held no further hearings on the issues of jurisdiction and admissibility. This is unusual, since a person elected a member of the Court while hearings are in progress does not take part in those hearings or in the judgment. This was an 36

37

38

39

Cf. the Court’s order deciding not to authorize a further round of written pleadings in the Fisheries Jurisdiction (Spain v. Canada) case, with both judges ad hoc present. One of these attached a dissenting opinion. ICJ Rep. 1996, 58. That was before there had been any public session of the Court and before that judge ad hoc had made the solemn declaration in a public session of the Court. Thus, the judge ad hoc chosen by Slovakia in the GabÌcíkovo-Nagymaros Project case took part in the order regarding the visit to the site of 5 February 1997 and made the solemn declaration in open Court on the opening of the hearings on 5 March, when he was declared “duly installed” as judge ad hoc. An outstanding illustration of this is the proceeding for the termination of the Aerial Incident of 3 July 1988 case. This involved both the discontinuance of the proceedings in the Court and the simultaneous Partial Award on Agreed Terms of cases pending in the Iran-U.S. Claims Tribunal. The same persons were agents in the two sets of proceedings and the person appointed as Iranian judge ad hoc in the Court was a member of the Claims Tribunal. The order of discontinuance in the Court was made by the President (Bedjaoui) alone although the Court was technically in session at the time. The Partial Award on Agreed Terms was made by the full Tribunal including the persons chosen as judge ad hoc in the Aerial Incident case, 32 IranU.S. Claims Tribunal Reports 207. ICJ Rep. 1949, 7.

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exceptional case, and it must not be assumed that in normal instances a person appointed as judge ad hoc who was not present at the hearings would be entitled or obliged to participate in the decision. There is no provision in the constituent instruments regarding the resignation of a judge ad hoc. In the Pakistani Prisoners of War case, the judge ad hoc appointed by Pakistan, himself a former President of the Court, resigned after the oral proceedings on a request for the indication of provisional measures of protection but before the order was made.40 In the Request for an Examination of the Situation in accordance with the Court’s Judgment of 20 December 1971 in the case of the Nuclear Tests (New Zealand v. France), the agent of New Zealand accompanied the request with a letter informing the Registrar of the resignation of the judge ad hoc who had been chosen by New Zealand in 1974, and the choice of another person to replace him. That reflected New Zealand’s view that the 1995 case was a continuation of the 1974 case, and the appointment of a judge ad hoc was contested by France. In the pre-judicatory proceedings to determine whether New Zealand had properly filed a case against France, the Court decided that the new judge ad hoc appointed by New Zealand ‘will join the Court and make the necessary solemn declaration’.41 The issue of the right of a State formally to withdraw the appointment of a judge ad hoc has arisen in the Inter-American Court of Human Rights. In its order of 11 September 1995 in the Paniagua Morales et al. case, that Court explained that an ad hoc judge is similar in nature to other judges on that Court “in that he does not represent a particular government, is not its agent and sits on the Court in an individual capacity [bold in original]”. The Court went on: An ad hoc judge is required to meet the same prerequisites as permanent judges. The provision for all permanent and ad hoc judges to sit on the Court in an individual capacity is based on and must always allow for the need to protect the independence and impartiality of an international court of justice.42

The Court also noted that it was unaware of any factor which might prevent the judge ad hoc concerned from serving as judge ad hoc, and in those circumstances he could not be replaced. 40

41

42

ICJ Rep. 1973, 329 (para. 4). And see the Pleading in that case at p. 159 (doc. 45). The order simply mentions that Sir Zafrulla Khan “sat in the case until 2 July 1973” – that is shortly after the hearings were closed. ICJ Rep. 1995, 291 and 296 (paras. 7 and 27). On this appointment by New Zealand see G. Barwick, A Radical Tory: Reflections and Recollections (1995); K. Keith, “The International Court of Justice and Nuclear Weapons”, 21 New Zealand International Review (January/February 1996) at 21. OAS, Inter-American Court of Human Rights, Annual Report of the Inter-American Court of Human Rights 1995 at 123 (doc. OAS/Ser.L/V/II.33 doc. 4, 22 January 1996).

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The right of a State to appoint a judge ad hoc is statutory. The exercise of that right is independent of its other rights under the Statute relating to the conduct of a case. The appointment of a judge ad hoc accordingly is never understood as an implied acceptance of the Court’s jurisdiction, if the State concerned is persistently challenging that jurisdiction. In the South West Africa cases the Registrar explained this in the following terms: The right conferred by Article 31 of the Statute is an absolute one, which affects the composition of the Court and the equality of the parties. It is thus an independent constitutional right, the exercise of which is independent of a party’s attitude towards the proceedings themselves or the jurisdiction of the Court.43

The Court’s decisions regarding judges ad hoc in mainline proceedings are taken by the members of the Court constituting the bench at the time, to the exclusion of any judge ad hoc already duly appointed. These decisions are also taken as early as possible and communicated to the parties. The establishment of the composition of the bench is an essential preliminary to the oral proceedings in any case or phase of a case. VII In February 2000 the Court adopted Practice Direction VII, its first attempt to give general notice of its position on some of the requirements for a judge ad hoc and a significant illustration of the Court’s view of the relationship that should exist between the Court and the bar. That Practice Direction reads: The Court considers that it is not in the interest of the sound administration of justice that a person sit as judge ad hoc in one case who is also acting or has recently acted as agent, counsel or advocate in another case before the Court. Accordingly, parties, when choosing a judge ad hoc pursuant to Article 31 of the Statute and Article 35 of the Rules of Court, should refrain from nominating persons who are acting as agent, counsel or advocate in another case before the Court or have acted in that capacity in the three years preceding the date of the nomination.

The relevant provisions of Article 31 of the Statute to which Practice Direction VII refers are the first sentence of paragraph 2 and paragraph 3. By that

43

South West Africa cases, XII Pleadings 525 (doc. 25). Judges ad hoc are frequently appointed when the jurisdiction is being challenged and have taken part in those decisions. There has been no instance of a State which has decided not to appear before the Court or to defend its case (Statute, Art. 53) appointing a judge ad hoc.

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provision, which originated in Article 4 of the initial Rules of Court of 1922, the Court re-asserted its power to monitor and control the person chosen to serve as judge ad hoc. Practice Direction VII therefore appears as the first formal attempt to lay down qualifications for a person designated as judge ad hoc, or perhaps it would be more accurate to say that the Practice Direction sets out some factors that would render a person ineligible or inappropriate for that function. It is the Court’s reaction to a practice that has developed in the last three decades. On the question of whether a person with the nationality of a serving member of the Court not ineligible to sit in a particular case may be chosen as judge ad hoc, the Court has obviously decided sub silentio to leave matters as they stand. At the same time it is frequently suggested that the period of three years is too long for the ‘cooling off ’ period, and that it may well discourage suitable practitioners from accepting the function of judge ad hoc. This view must also be considered in light of the practice in some cases of a judgment on the merits calling for, or at the least anticipating, some further proceedings. When a case is instituted there is no way of knowing how long it will remain on the Court’s General List. Leaving aside the long time limits for the written pleadings which parties frequently request, the mainline proceedings are often interrupted by incidental proceedings which may require expeditious attention, such as requests for provisional measures in the same or in another case, preliminary objections, requests for permission to intervene and interlocutory proceedings connected with counter-claims. Thus, the case between Qatar and Bahrain was filed on 8 July 1991 and final judgment was only delivered on 16 March 2001. Both parties appointed non-nationals as judges ad hoc. The case between Cameroon and Nigeria was filed on 29 March 1994 and final judgment was delivered on 10 October 2002. The record so far is held by the case on the Application of the Genocide Convention brought in 1993 by Bosnia & Herzegovina against Yugoslavia. The oral pleadings on the merits took place in the spring of 2006 and the judgment was delivered a year later on 26 February 2007. Often delays are caused by the parties’ initiative in seeking a diplomatic solution of the dispute while legal proceedings are in progress. In cases of State responsibility the Court has several times decided that monetary damages were payable, to be determined by the Court should the parties not reach agreement on the matter. In those circumstances the judgment on the merits does not have the consequence that the case is removed from the General List. In the Corfu Channel case, the first instance of this in the present Court, only a few months elapsed between the judgment on the merits and the final judgment on the compensation due.44 In the US Diplomatic and Consular Staff in Tehran the judg-

44

ICJ Rep. 1949, 4 (Merits), 244 (compensation).

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ment on the merits was delivered in 1980 but the case remained on the List until it was discontinued in May of 1981.45 In the Armed Activities on the Territory of the Congo (Uganda) case the Court decided in December 2005 that each party, Uganda on a counter-claim, was entitled to monetary compensation from the other. That case therefore remains on the General List. In the GabÌcíkovo-Nagymaros Project case the special agreement which was the title of jurisdiction envisaged further proceedings after the judgment on the merits. Although that judgment was delivered in 1997, negotiations between the parties are proceeding and the case remains on the General List.46 The effect of the Practice Direction would be that during this period and for a further three years after the final decision, if the Government of those judges ad hoc should become involved in a new case before the Court it could not appoint those persons as its agent,47 counsel or advocate. Only resignation would enable a judge ad hoc to resume practice before the Court, including representation of his own Government after the cooling off period. (Parenthetically, no difficulty is felt over the ineligibility of these judges ad hoc from serving as counsel or advocate in another case before the Court while they are serving as judges ad hoc.) Given this background, while in principle a Government ought not to appoint a sitting judge ad hoc as its agent in another case, the principle should be applied with flexibility, allowing the Government concerned to consult with the Court, or at least with its President who would be in a position to know the real state of the cases in which no further action is being taken with the consent of the parties, with a view to reducing this cooling off period for the appointment of its representatives. VIII What really are the functions of a judge ad hoc? In his capacity of judge ad hoc in a case, Sir Elihu Lauterpacht has given the following classic exposition of the role of judge ad hoc, and that partly reflects, and partly expands on the original concept as expressed in 1907 in the report on the proposed international prize court. Lauterpacht has said:

45 46

47

ICJ Rep. 1980, 3 (Merits), 1981, 45 (Discontinuance). ICJ Rep. 1997, 7, Report of the ICJ to the UN General Assembly, 1 August 2004–31 July 2005, UN General Assembly Official Records sixtieth session Supplement No. 4 (A/60/4) paras. 124–132. Regarding the special situation of agents, see Essay 6 of this collection.

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It cannot be forgotten that the institution of the ad hoc judge was created for the purpose of giving a party, not otherwise having upon the Court a judge of its nationality, an opportunity to join in the work of this tribunal. The evidence in this regard of the attitude of those who participated in the drafting of the original Statute of the Permanent Court of International Justice can hardly be contradicted. This has led many to assume that an ad hoc judge must be regarded as a representative of the State that appoints him and, therefore, as necessarily pre-committed to the position that that State may adopt. That assumption is, in my opinion, contrary to principle and cannot be accepted. Nonetheless, consistently with the duty of impartiality by which the ad hoc judge is bound, there is still something specific that distinguishes his role. He has, I believe, the special obligation to endeavour to ensure that, so far as is reasonable, every relevant argument in favour of the party that has appointed him has been fully appreciated in the course of collegial consideration and, ultimately, is reflected though not necessarily accepted in any separate or dissenting opinion that he may write.48

As far as can be detected from a natural reticence in this regard, those sentiments are widely shared by non-nationals who have been appointed judge ad hoc.

48

Separate opinion in the Application of the Genocide Convention (Further Provisional Measures) case, ICJ Rep. 1993 409 (para. 5). Adopted by Judge ad hoc Sir Geoffrey Palmer in the Request for Examination case, ICJ Rep. 1995 288, 421 (para. 118), Judge ad hoc Bula Bula in the Arrest Warrant of 11 April 2002 case, ibid. 2002, 3, 101, Judge ad hoc Franck in the Sovereignty over Pulau Litigan and Pulau Sipadan case, ibid. 2002, 625, 693, Judge ad hoc Berman in the Certain Property case, ibid. 2005, 6, 71, Judge ad hoc Bennouna in the Frontier Dispute (Benin/Niger) case, ibid. 2005, 90. 153, Judge ad hoc Kateka, Armed Activities on the Territory of the Congo (Uganda) ibid. 2005, 19 December.

8 ARTICLE 59 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE REVISITED

If our courts in the early part of the seventeenth century had so small a reverence for the most powerful or supposed to be monarch of the European continent, they were at the same time rather nearer to European practice in the matter of precedent than they have since become. For the rule at that time, ex relatione Johannis Selden, was that: “In this or that particular case the King’s Bench will declare unto you what the law is, but that binds nobody but whom that case concerns. So the highest court, the Parliament may do . . .” Did the draftsmen of Article 59 of the Statute of the Court have this in mind when they wrote . . . [Article 59]? And yet, as we all know, you may expel precedents with a pitchfork, but no court that aspires to consistency (and without consistency there can be no law) will attempt to prevent their perpetual (and permanent) return, as guides at any rate, if not as dictators. “O” in XV British Year Book of International Law 146 (1934).

Article 59 of the Statute of the International Court of Justice, following in this respect Article 59 of the Statute of the Permanent Court of International Justice, provides: The decision of the Court has no binding force except between the parties and in respect of that particular case.

La décision de la Cour n’est obligatoire que pour les parties en litige and dans le cas qui a été décidé.

A similar provision had appeared in article 56 of the First Hague Convention of 1899 (“The award is only binding on the parties who concluded the compromis”) and in Article 84 of the First Hague Convention of 1907 (“The award is not binding except on the parties in dispute”).1 This was brought to the notice of the Advisory Committee of Jurists of 1920 appointed by the Council of the League of Nations under Article 14 of the League Covenant

1

187 Consolidated Treaty Series 410 (1899); 298 ibid. 233 (1907).

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to prepare a draft Statute for the Permanent Court.2 Late in this meeting the Secretariat drew the Committee’s attention to the fact that the question of the legal force of the sentence, for the suit only which it terminated and for the parties to that suit (except in the form of a precedent), had not been fully discussed by the Committee.3 However, no discussion of this, as opposed to the aspect of third-party intervention, took place in the Advisory Committee. Only the British Government referred to this question during the subsequent meetings of the League Council. In a Note of October 1920, largely concerned with the question of intervention under what is now Article 63 of the Statute when the construction of a multilateral treaty is involved in the case, the following appears: It seems to me that the decision of the Permanent Court cannot but have the effect of gradually moulding and modifying international law. This may be good or bad; but I do not think this was contemplated by the Covenant; and in any case there ought to be some provision by which a State can enter a protest, not [emphasis in original] against any particular decision arrived at by the Court, but against any ulterior conclusions to which that decision may seem to point.4

From the discussion on this it was explained that if in such circumstances a State did not intervene under Article 63, a judicial interpretation of the treaty in question could not be enforced against it. “No possible disadvantage would ensue from stating directly what Article [63] indirectly admits.” That led to what became Article 59 of the Statute which, it was explained, would state this directly.5 The Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice (1944) examined this provision in the course of its work. In paragraph 63 of its Report it wrote:

2 3 4

5

Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee [hereafter Procès-Verbaux] at 38 (1920). Procès-verbaux, 559 at 560. See also the reminder of Mr Loder at p. 594. It is not clear why this aspect should have been omitted from the discussions. League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article 14 of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court of International Justice (hereafter Documents) at 38 (1921). See the report by the representative of France, Léon Bourgeois, presented to the League Council on 27 October 1920, Documents, 45 at 50. For the consequential amendment of what is now Article 38 (then 35), by the inclusion in paragraph 1(d) of the introductory words “Subject to the provisions of Article 59”, see ibid. at 44. See further on this, H. Lauterpacht, The Development of International Law by the International Court 8 (1958).

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The effect of this provision has, in our opinion, sometimes been misinterpreted. What it means is not that the decisions of the Court have no effect as precedents for the Court or for international law in general, but that they do not possess the binding force of particular decisions in the relations between the countries who are parties to the Statute. The provision in question in no way prevents the Court from treating its own judgments as precedents. . . . It is important to maintain the principle that countries are not “bound” in the above sense by decisions in cases to which they were not parties, and we consider accordingly that the provision in question should be retained without alteration.6

No proposals for amendment of Article 59 were made at the San Francisco Conference, and the provision is accordingly retained in the Statute of the International Court of Justice unchanged. Article 59 of the Statute of the Permanent Court was subject to serious criticism by Professor Verzijl. In an article published in 1926, in a commentary on the application of the decision in the Wimbledon7 case after the intervention of Poland had been admitted on the basis of Article 63 of the Statute, Verzijl considered Article 59, particularly its concluding words (“in respect of that particular case”), to be “illogical in the context of the Statute”. It had been “imprudently” inserted by the Council of the League of Nations. Verzijl has consistently held that the view that Article 59 was merely the reverse of Article 63 was erroneous and that in fact “the two articles contradict each other”. By the same token he regarded the consequential amendment in the form of the addition of the opening words of Article 38, paragraph 1(d) as “imprudent”. He was particularly scornful of the phrase “in respect of that particular case”, which does not appear in either of the Hague Conventions of 1899 and 1907. He thought that an interpretation given in a case should be binding on the parties for all future cases and that, taking the Wimbledon case as an illustration, the interpretation there given of the relevant provisions of the Treaty of Versailles would always be binding on Poland, but would not be binding on the principal parties in the case in future cases. In a later article he called Article 59 “ill-advised”.8 Verizjl’s criticism appears to proceed to a very great extent from the political origin of Article 59 in the Council of the League of Nations [“how wrong it is for a draft framed by leading experts to be amended by less competent revisers”]. In that respect this criticism is not easily understood. Treatymaking is a political operation and the most carefully prepared draft has

6 7 8

British Parliamentary Paper, Misc. No. 2 (1944) Cmd. 6531; 39 AJIL, Supplement, 1 (1945). PCIJ, Ser. A, No. 1 (1923). See further on the Lighthouses arbitration, note 45 below. “Die Rechtsprechung des Ständigen Internationalen Gerichtshofes von 1922 bis Mai 1926”, 13 Zeitschrift für Völkerrecht 489 (1926). Reproduced in English in his I The Jurisprudence of the World Court 21 (1965). See also p. 115.

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always to meet the test of political approval. This is a fact of political life (to which the International Law Commission, for instance, has always been alert), as much in the international sphere as in internal parliamentary activities. It is probable that the Inter-Allied Committee had that criticism in mind when it included the above-quoted passage in its Report. * * * The Permanent Court of International Justice had little occasion to have recourse to Article 59 of the Statute. The situation has changed with the present Court, where Article 59 has become relevant in a series of issues which were probably not foreseen when the Statute was drafted. Those issues relate above all to the question of the Court’s reaction to a contested application for permission to intervene under Article 62 of the Statute by a State which considers that it has an interest of a legal nature might be affected by the decision in the case, and the conceptually related issue, where the Court’s jurisdiction is contested on the ground that a State whose interests might be affected by the decision is not a party to the case, either because it was not cited in the instrument instituting the proceedings, or because it has not submitted a request to intervene under Article 62 of the Statute, or because of some peculiarity in the manner in which the case came before the Court. Recently Article 59 has been applied to an issue of the power of the Court to indicate provisional measures of protection with effects beyond the parties to the litigation. Questions have also arisen as to the relationship of holdings in an advisory opinion and in a judgment on preliminary objections with the following phase of a case. That serves to introduce the different uses of Article 59 and the different interpretations placed upon it, by the Permanent Court and by the present International Court of Justice, and the function which Article 59 has come to play in modern international litigation in the International Court. * * * The Permanent Court decided quite early that Article 59 “does not exclude purely declaratory judgments”. It went on to explain that the object of Article 59 was simply to prevent legal principles accepted by the Court in a particular case from being binding upon other States or in other disputes.9 If there may be an ambiguity in that turn of phrase, and that ambiguity may remove some of the sharpness of Article 59, given its origins together with the addi-

9

German Interests in Polish Upper Silesia (Merits) case, Ser. A 7 at 19 (1926); Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory) case, Ser. A 13 at 20 (1927). In his dissenting opinion in that case, Judge Anzilotti observed that Art. 59 clearly referred to a traditional and generally accepted theory in regard to the material limits of the res judicata (at 27). This may have been a reaction to criticism of Art. 59 by Verzijl. Cf. previous note.

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tion to Article 38, paragraph 1(d), that dictum can only mean that the common law doctrine of stare decisis is formally excluded from the purview of public international law. This notwithstanding, with the passage of time and the accumulation of reasoned decisions of the International Court (and of other international courts and tribunals following it), international case-law, without being a formal “source” of international law, is becoming all-pervasive. The International Court itself is today a primary generator both of specific rules and of trends of international law. It is developing the fine art of distinguishing one case from another in a manner strongly reminiscent of the practice of the commonlaw courts. On the other hand, it would appear that the common law conception of a decision per incuriam, in cases in which the issues of fact and of law have not been properly or fully argued by the parties, has not yet made an open appearance in the case-law of the International Court, although there are signs that the Court may be sensitive to this aspect, which could be one of particular delicacy in the context of international litigation. The Permanent Court also established that “orders made by the Court, although as a general rule read in open Court, due notice having been given to the Agents, have no ‘binding’ force (Article 59 of the Statute) or ‘final’ effect (Article 60 of the Statute) in deciding the dispute brought by the parties before the Court”.10 Later in the same case the Permanent Court stated that it was certainly incompatible with the character of the judgments rendered by the Court and with the binding force attached to them by Articles 59 and 63, paragraph 2, of the Statute, for the Court to render a judgment which either of the Parties may render inoperative.11 The effect of those dicta is probably more limited than a cursory reading of them might suggest. Orders can constitute precedents (most of the law concerning provisional measures of protection and of discontinuance is found in orders, as is a certain amount of the law governing other aspects of what is sometimes called the “incidental jurisdiction” of the Court). Nor was the

10

11

Free Zones case, Ser. A 22 at 13 (1929). Modern practice is for orders to be read in open Court only in exceptional circumstances. However, it is doubtful if there can be any significance in the manner in which the judicial pronouncement is made public or even how it is composed, especially as the present Court includes all its orders seriatim in each annual volume of its Reports. Significance attaches to its quality – judgment, advisory opinion, order, decision. A judgment is final and binding, on the parties and, de facto at least, on the Court, for that particular case only, even if it is interlocutory. Free Zones case, Ser. A 24 at 14 (1930); reiterated in the judgment on the merits in that case, Ser. A/B. 46 at 161 (1932). Judge Negulesco thought that having regard to Arts. 59 and 60 of the Statute, the Court could not regard a case as validly submitted to it if the special agreement infringed those provisions, and that in this case the Court should have declared that it had no jurisdiction (p. 193).

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Permanent Court laying down any general principle which would compel the winning party to exact full compliance with the terms of any decision in its favour. The procedural and to some extent constitutional issue which the Permanent Court faced was whether it could render a judgment in a case in which, a priori and before the proceedings took place, the parties had made an agreement open to an interpretation that they would decide whether (not how) to implement a future decision of the Court. Without referring to the Free Zones case, the present Court has several times rendered judgments in which it has stated applicable rules and principles, leaving the ‘how’ of their application to further negotiations between the parties. The earliest, and in some respects the most significant, instance of this is found in the North Sea Continental Shelf cases.12 A very striking illustration of the direct effect and application of Article 59 can be seen in the Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility) case. Here Nicaragua adduced two heads of jurisdiction, its 1929 declaration accepting the compulsory jurisdiction of the Permanent Court, the validity of which had been upheld by the Court in the Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) case,13 and factual elements which had been established by the Court in the merits phase of that case in which the respondent did not participate, leaving the Court to act in accordance with Article 53 of the Statute.14 In its judgment the Court found that as it had jurisdiction under the Pact of Bogotá, there was no need for it to examine the question of its jurisdiction under the declarations made by virtue of Article 36, paragraphs 2 and 5, of the Statute. On the issues of fact, the Court included the following passage in its judgment: Nor can it be accepted that once the Court has given judgment in a case involving certain allegations of fact, and made findings in that respect, no new procedure can be commenced in which those, as well as other, facts might have to be considered. In any event, it is for the Parties to establish the facts in the present case taking account of the usual rules of evidence, without it being possible to rely on considerations of res judicata in another case not involving the same parties (see Article 59 of the Statute).15

12

13 14 15

ICJ Rep. 1969, 3. Those cases (subsequently joined) were instituted by the filing of special agreements. No issue seems to have been raised of the relationship between the questions which the Court was requested to answer and Art. 59 of the Statute, although there is no question that the implementation of that judgment was, ex hypothesi, a matter for negotiation between the parties. ICJ Rep. 1984, 392. ICJ Rep. 1986, 14. Ibid. 54, subsequently discontinued, ibid. 1992, 222. Judge Schwebel in his separate opinion applauded the Court’s giving “the most rigorous effect” to the import of Art. 59 (p. 131). This may be an indication that the Court recognized that its decision in the Military and

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* * * Turning now to the innovative case-law of the present International Court of Justice, one item which has arisen concerns the relation between holdings contained in a judgment on preliminary objections and the later phases of the case. This issue, and the significance of Article 59, first arose in both phases of the South West Africa cases. In the preliminary objection phase, the joint dissenting opinion of Sir Gerald Fitzmaurice and Sir Percy Spender dealt with the assumption that the Court would find that it had jurisdiction and that on the merits would hold in favour of the respondent (South Africa). The dissenting judges said: Such a decision would be res judicata only for the Applicant States (Article 59 of the Statute). It would not bind the United Nations Assembly, nor would it bind any States except the Applicants. Any other State dissatisfied with it could, at some future time, bring fresh proceedings on exactly or substantially the same grounds, with results what might be the same, or again might not. From the Mandatory’s point of view, there could be no finality. On the other hand a decision given against the Respondent would be binding on it, and would enable Article 94 of the Charter to be invoked if necessary by the other Party.16

The question of the force of the res judicata arising from the judgment on the preliminary objections was next discussed in the second phase of that case. Judge Tanaka, for instance, in his individual opinion, seemed to think that the Court’s finding of 1962 in favour of the survival of the Mandate for South West Africa would have the force of res judicata under Article 59, but that the effect of the res judicata of that judgment should be limited to the operative part of the judgment and should not extend to the reasons underlying it. The opposite point of view was expressed in forceful terms by Judge Jessup and, perhaps less emphatically, by Judge Koretsky.17 But the Court did not commit itself. It said: [T]he Court finds it unnecessary to pronounce on various issues . . . such as whether a decision on a preliminary objection constitutes a res judicata in the proper sense of the term, – whether it ranks as a “decision” for the purposes of Article 59 of the Court’s

16 17

Paramilitary Activities in and against Nicaragua (Merits) case had been reached without full or proper argument, and would therefore be prepared to hear relevant argument afresh without any restrictions which might be attributable to the earlier decision. It also indicates that the Court, for whatever reason, wished to take a fresh look at the facts as found in 1986, to the extent that they would be still relevant. ICJ Rep. 1962, at 552. ICJ Rep. 1966, 261 (Tanaka), 240 (Koretsky), 332 (Jessup).

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Statute, or as “final” within the meaning of Article 60. The essential point is that a decision on a preliminary objection can never be preclusive of a matter appertaining to the merits, whether or not it has in fact been dealt with in connection with the preliminary objection.18

Without directly citing Article 59, the Court in another case has also given an important explanation of the phrase “binding force” in the context of a special agreement requesting the Court to indicate the principles and rules of international law applicable to the delimitation of the continental shelf, the parties undertaking to meet to put those principles and rules into effect. Thus the Court has said: 47. . . . It is always open to the parties to a dispute to have recourse to a conjunction of judicial determination and settlement by agreement. . . . 48. The fact however that the Parties did not entrust the Court in this case with the task of drawing the delimitation line itself in no way affects the Judgment of the Court or its binding effect on the Parties as a matter of res judicata[.] . . . It will be the treaty [contemplated by the special agreement] which will constitute the final delimitation. The treaty will however be the implementation of an obligation already entered into [in the special agreement]; and that provision is not a bare pactum de contrahendo. The Parties have undertaken not merely to conclude a treaty, but in doing so to apply the principles and rules indicated by the Court in its 1982 Judgment. While the Parties requested the Court to indicate “what principles and rules of international law may be applied for the delimitation of the area of the continental shelf ”, they may of course still reach mutual agreement upon a delimitation that does not correspond to that decision. Nevertheless, it must be understood that in such circumstances their accord will constitute an instrument superseding their Special Agreement. What should be emphasized is that, failing such mutual agreement, the terms of the Court’s Judgment are definitive and binding. In any event moreover, they stand, not as something proposed to the Parties by the Court, but as something established by the Court.19

18

19

Ibid. at 36 (para. 59). That passage is to be understood in light of the Rules of Court in force in 1966. The revised wording now incorporated in Art. 79 of the 1978 Rules of Court may render that passage less persuasive. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ibid. 1985, 192, 218 (paras. 46–48). In a maritime delimitation case introduced unilaterally, the Court has interpreted Art. 59 as endowing its delimitation with a certain permanency and as excluding possible impact of one anticipated event, Bahrain’s claim that it is entitled to the status of archipelagic State. In the judgment on the merits in the Maritime Delimitation and Territorial Questions case the Court asserted that the judgment will have binding force between the Parties in accordance with Article 59 and “consequently could not be put in issue by the unilateral action of either of the Parties, and in particular, by any decision of Bahrain to declare itself an archipelagic State”, ICJ Rep. 2001, 40, 97 (para. 183).

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Probably the fullest and most complex analysis of the principle of res judicata and the application of Articles 59, 60 and 61 of the Statute of the International Court of Justice took place in the final merits phase of the Application of the Genocide Convention case between Bosnia & Herzegovina and Serbia.20 Here the Court had to examine a question of its jurisdiction based on the status of the applicant State as a party to the Statute on the institution of these proceedings in 1993. The Court had taken decisions on matters of jurisdiction in this case (in the language of Article 36 (6) of the Statute) four times before the merits stage of the proceedings. That was in its two orders of 1993 on provisional measures, its judgment of 1996 on preliminary objections and its judgment of 2003 in a decision on the admissibility of a request for revision of the 1996 judgment.21 In addition a similar issue had arisen twice in another set of cases decided in 1999 and 2004.22 The question that it faced in the merits stage of the Genocide Convention case was what precisely it had decided in all these previous cases. This raised issues of the scope of the res judicata. The Court first examined the relevance of its past decisions (paragraphs 105 to 113). No question of res judicata arose in connection with the 1993 orders on the requests for the indication of provisional measures (paragraph 105). With regard to the revision proceedings, which it analysed closely, the Court found that for the purposes of the merits case the 2003 judgment, while binding between the parties, and final and without appeal, did not contain any finding on the question whether or not the Federal Republic of Yugoslavia (as the respondent State was known at the time) had actually been a member of the United Nations in 1993 (an issue that arose as a matter of jurisdiction in the merits phase of the current case). ‘The question of the status of the FRY in 1993 formed no part of the issues upon which the Court pronounced judgment when dismissing that Application’ (paragraph 113). This led the Court into a discussion of the principle of res judicata and its application to the 1996 judgment on the preliminary objections. The

20

21 22

Judgment of 26 February 2007. Of the judges who took part in the merits phase, four, Judges Ranjeva, Shi, Koroma and Judge ad hoc KreÏca had taken part in the preliminary objection phase of this case in 1996 (see next note) and of these only Judge Ranjeva had taken part in the provisional measures proceedings of 1993. President Higgins and Judges Shi, Ranjeva and Koroma had sat in the Application for Revision phase in 2003. President Higgins and Judges Shi, Ranjeva, Koroma, Owada and Tomka, and Judge ad hoc KreÏca had likewise been members of the bench in the preliminary objection phase of the Legality of Use of Force cases in 2004 (see note 22 below). For the ‘three traditional elements for identification, persona, petitum, causa petendi, in an instance of res judicata, see the dissenting opinion of Judge Anzilotti in the Chorzów Factory (Interpretation) case, PCIJ Ser. A 13 (1927) at 23. For these cases see ICJ Rep. 1993 3 and 325, 1996 595 and 2003 7. Legality of Use of Force cases, provisional measures ICJ Rep. 1999 124 to 916 (ten cases) and preliminary objections, 2004 279 to 1307 (eight cases). Here citations are made to the case against Belgium.

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Court first explained the character of that principle as it appears from the terms of the Statute of the Court and the Charter of the United Nations: The underlying character and purposes of the principle are reflected in the judicial practice of the Court. That principle signifies that the decisions of the Court are not only binding on the parties, but are final, in the sense that they cannot be reopened by the parties as regards issues that have been determined, save by procedures, of an exceptional nature, specially laid down for that purpose. Article 59 of the Statute, notwithstanding its negative wording, has as its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is final and without appeal; Article 61 places close limits of time and substance on the ability of the parties to seek revision of the judgment. . . . Two purposes, one general, the other specific, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to “decide”, that is, to bring to an end, “such disputes as are submitted to it”. Secondly, it is in the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. Article 60 of the Statute articulates this finality of judgments. Depriving a litigant of the benefit of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes [paragraphs 115, 116].

The Court concluded this part of this judgment with the following categorical statement: This does not however mean that, should a party to a case believe that elements have come to light subsequent to the decision of the Court which tend to show that the Court’s conclusions may have been based on incorrect or insufficient facts, the decision must remain final, even if it is in apparent contradiction to reality. The Statute provides for only one procedure in such an event: the procedure under Article 61, which offers the possibility for the revision of judgments, subject to the restrictions stated in that Article. In the interests of the stability of legal relations, those restrictions must be rigorously applied. . . . Subject only to this possibility of revision, the applicable principle is res judicata pro veritate habetur, that is to say that the findings of a judgment are, for the purposes of the case and between the parties, to be taken as correct, and may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events [paragraph 120].

The Court then turned to the application of this holding to the case at hand. Starting with the statement that the operative part of a judgment of the Court possesses the force of res judicata and recalling that the operative part of the 1996 judgment stated that the Court found that it had jurisdiction, it went on: ‘That jurisdiction is established with all the weight of the Court’s judicial authority. . . . [I]f any question arises as to the scope of the

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res judicata attaching to a judgment, it must be determined in each case having regard to the context in which the judgment was given (paragraphs 123, 125). The Court went on: For this purpose, in respect of a particular judgment it may be necessary to distinguish between, first, the issues which have been decided with the force of res judicata, or which are necessarily entailed in the decision of those issues; secondly, any peripheral or subsidiary matters, or obiter dicta; and finally matters which have not been ruled upon at all. Thus an application for interpretation of a judgment under Article 60 of the Statute may well require the Court to settle “[a] difference of opinion [between the parties] as to whether a particular point has or has not been decided with binding force” [a reference to Chorzów Factory (Interpretation) case]. If a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attached to it: and a general finding may have to be read in context in order to ascertain whether a particular matter is or is not contained in it [paragraph 126].

And: That principle [res judicata] signifies that once the Court has made a determination, whether on a matter of the merits of a dispute brought before it, or on a question of its own jurisdiction, that determination is definitive both for the parties to the case, in respect of the case (Article 59 of the Statute) and for the Court itself in the context of that case. . . . [O]nce a finding in favour of jurisdiction has been pronounced with the force of res judicata, it is not open to question or re-examination, except by way of revision under Article 61 of the Statute. . . . [paragraph 138].

The question of the savings effect of Article 59 in relation to a State which is not a party to the proceedings but whose interests are closely involved in a given case arose for the first time in the Monetary Gold Removed from Rome case. Here the jurisdiction of the Court was based on a complex arrangement which envisaged a series of competing claims by Italy and by Albania to the gold in question, namely monetary gold from the National Bank of Albania, taken to Italy and then to Germany during World War II, and recovered by the Western Allies. Italy instituted proceedings in the Court, and itself contested the Court’s jurisdiction on the ground that an essential party, that is a State (Albania) whose legal position formed the very subjectmatter of the case, was not before the Court, neither having been cited in the application instituting the proceedings nor having submitted a request for permission to intervene under Article 62 of the Statute. In the circumstances the Court found that it could not entertain the case as submitted to it. It took the opportunity to explain in strong language that “the rule in Article 59 rests on the assumption that the Court is at least able to render a binding decision”. Where the issue concerns the international responsibility of a third State which has not given its consent to the exercise of the

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jurisdiction, the Court cannot give a decision on that issue binding on any State, either the third State, or any of the parties before it.23 So far this doctrine has been limited to a case involving the international responsibility of a third State, and it would be otiose to speculate on its application in other circumstances. Furthermore, the Court has shown reluctance to extend the scope of that ruling to cases where the interests of the absent third State do not form the very subject-matter of the case. The test appears to be whether a third State is directly impugned in the final submission of one or other of the parties, not whether that third State’s actions are discussed in the pleadings.24 The earliest example of this restraint is seen in the Military and Paramilitary Activities in and against Nicaragua case. In the merits phase the Court took the opportunity to assert that a State which decides not to appear in or to withdraw from a case or a phase of a case must accept the consequences of its decision, the first of which is that the case will continue without its participation; the State which has chosen not to appear remains a party to the case, and is bound by the eventual judgment in accordance with Article 59 of the Statute.

Later in that judgment Article 59 was found to have another implication altogether. In its submissions Nicaragua had requested an award of a sum of money as the “minimum (and in that sense provisional) valuation of direct damages”. Refusing to make such an award, the Court said: There is no provision in the Statute of the Court either specifically empowering the Court to make an interim award of this kind, or indeed debarring it from doing so. In view of the final and binding character of the Court’s judgments, under Articles 59 and 60 of the Statute, it would however only be appropriate to make an award of this kind, assuming that the Court possesses the power to do so, in exceptional circumstances, and where the entitlement of the State making the claim was already established with certainty and precision. Furthermore, in a case in which the respondent State is not appearing, so that its views on the matter are not known to the Court, the Court should refrain from any unnecessary act which might prove an obstacle to a negotiated settlement.25

The implications of Article 59 in connection with an absent State arose for a second time in 1986, in the Chamber which decided the Frontier Dispute (Burkina Faso/Mali) case. Here the question was one of jurisdiction, in rela-

23 24

25

Monetary Gold Removed from Rome case, ICJ Rep. 1984, 19, 33. This can be deduced from the action of the Court vis-à-vis material furnished to it by a third State – Yugoslavia – in the Corfu Channel (Merits) case, ICJ Rep. 1949, 3, 17. And see my Intervention in the International Court of Justice 170 (1993). ICJ Rep. 1986, 14, 24 (para. 28); 143 (para. 285).

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tion to the termination of a land frontier at a tripoint with the frontier of a State not a party to the proceedings. The Chamber said: 46. The Chamber also considers that its jurisdiction is not restricted simply because the end-point of the frontier lies on the frontier of a third State not a party to the proceedings. The rights of the neighbouring State, Niger, are in any event safeguarded by the operation of Article 59. . . . The Parties could at any time have concluded an agreement for the delimitation of their frontier, according to whatever perception they might have had of it, and an agreement of this kind, although legally binding upon them by virtue of the principle pacta sunt servanda, would not be opposable to Niger. A judicial decision . . . merely substitutes for the solution stemming directly from their shared intention, the solution arrived at by a court under the mandate which they have given it. In both instances, the solution only has legal and binding effect as between the States which have accepted it, either directly or as a consequence of having accepted the Court’s jurisdiction to decide the case. Accordingly, on the supposition that the Chamber’s judgment specifies a point which it finds to be the easternmost point of the frontier, there would be nothing to prevent Niger from claiming rights, vis-à-vis either of the Parties, to territories lying west of the point identified by the Chamber.26

This doctrine has been continued in the Certain Phosphate Lands in Nauru (Preliminary Objections) case. One of Australia’s objections was that in addition to Australia, two other States parties to the Trusteeship Agreement ought also to have been cited in the application instituting the proceedings. The Court rejected that objection. It pointed out that if those States considered that their interests of a legal nature might be affected by the decision in the case, they were entitled under Article 62 of the Statute to submit a request for permission to intervene. The Court continued: But the absence of such a request in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for. Where the Court is so entitled to act, the interests of the third

26

Ibid. 554, 557, 559 (paras. 46, 49–50). At the end of this part the Court made the formal statement that “In . . . accordance with Article 59 of the Statute, this Judgment will not be opposable to Niger as regards the course of that country’s frontiers”. Cf. also the Northern Cameroons case: “In accordance with Article 59 of the Statute, the judgment would not be binding on Nigeria [which had not participated in the proceedings], or on any other State, or on any organ of the United Nations” [emphasis added], ibid. 1963, 25, 33. The precise import of the last few emphasized words is not clear. There is no reason why the existence of a tripoint on a frontier – land or maritime – which the Court is being asked to determine should interfere with the action of the Court in dealing with an otherwise purely bilateral case. Cf. in the Land, Island and Maritime Frontier Dispute case, concerning the first sector of the land boundary. ICJ Rep. 1992, 351, 401 (para. 68).

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State which is not a party to the case are protected by Article 59 of the Statute of the Court. . . .27

Judge Shahabuddeen in his separate opinion concurred in the Court’s holding that Article 59 afforded adequate protection to the absent States (p. 298). Judge Schwebel, in his dissenting opinion, was critical of reliance made by the Court on precedents invoking Article 59, and thought that in the present case the protection afforded the absent States by Article 59 “in the quite exceptional situation of this case” would be “notional rather than real” (p. 342). In another respect, the present Court has pointed to a certain weakness in the protection afforded to third States by Article 59. This issue made an appearance in the Aegean Sea Continental Shelf case. Here a question arose (not for the first time) as a matter of the jurisdiction of the Court, whether the General Act for the Pacific Settlement of Disputes of 1928 as revised by the United Nations General Assembly in its resolution 268 A (III) of 29 April 1949, was in force and constituted a good title of jurisdiction. This question had been raised in the Nuclear Tests and Pakistani Prisoners of War cases,28 but in those cases the Court had been able to base itself on other instruments so that it became unnecessary for it to discuss this particular issue. In Aegean Sea it could not do this, and had to face the question head on. After describing something of the formal history of the General Act, the Court said: 39. Although under Article 59 of the Statute “the decision of the Court has no binding force except between the parties and in respect of that particular case”, it is evident that any [emphasis added] pronouncement of the Court as to the status of the 1928 Act, whether it were to be found to be a convention in force or to be no longer in force, may have implications in the relations between States other than Greece and Turkey.

As Judge Nagendra Singh was to emphasize in his individual opinion in Aegean Sea, despite Article 59 the Court’s observations could easily create

27

28

ICJ Rep. 1992, 240, 261 (para. 54). However, the Court left the substantive aspect to the merits (para. 56). In the agreement of 10 August 1993 for the discontinuance of the case, Nauru waived any right to make a claim against those other two States in relation to the subject-matter of the case. 32 ILM 1471, 1474 (1993). For the discontinuance of the case, see ICJ Rep. 1993, 322. ICJ Rep. 1973, 99/135; and 1974, 253/457: 1975, 328 (provisional measures of protection: the case was discontinued before it reached the next phase).

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implications in the relations between States including even those not before the Court. “A tribunal has to be ever mindful of that aspect”.29 This has been applied without direct citat ion of Article 59 in the unusual circumstances of the jurisdictional issue in the eight Legality of Use of Force cases, brought by Yugoslavia against eight members of NATO. The question of Yugoslavia’s status in the United Nations and consequently its status in relation to the Court was the central issue in the Application for Revision of the Judgment of 11 July 1996 in the Case concerning the Application of the Genocide Convention case, decided in 2003. In paragraphs 80 to 91 of its judgment of 15 December 2004 in the Legality of Use of Force case against Belgium the Court examined the relevance of the 2003 judgment for the later case. “There is no question of that Judgment possessing any force of res judicata in relation to the present case.” The Court distinguished this from the question of the relevance of the 2003 judgment for the second case. It described in some detail the principal issue that was decided in 2003, in proceedings under Article 61 of the Charter, and found that the issue then was not relevant to the issue that arose in 2004. * * * Above all, it is in relation to the applications for permission to intervene under Article 62 of the Statute, that a new side to Article 59 has been revealed. In that connection it is recalled that Article 59 was inserted into the Statute essentially in order to complete the statement of the law regarding thirdparty intervention in current judicial proceedings as contained in the Statute and to maintain the general principle of the relativity of any res judicata. The first hesitant illustration of this is seen in the application of Malta to intervene in the Tunisia/Libya Continental Shelf case. Malta argued that notwithstanding Article 59, its interests might be affected not only by the formal operative part of the Court’s decision but also by what it called the “effective decision contained in the Court’s reasoning”. The argument was that the reasoning was bound to contain substantive elements that in content must inevitably have, or at any rate were likely to have, an impact upon subsequent relations between Malta and Libya and Tunisia. For its part, Libya contended that any interest of Malta would be safeguarded by the Court in delivering its judgment, and would be adequately protected by Article 59. In the circumstances of this case, the Court found that Malta was seeking to enter into the proceedings in the case, but to do so without assuming the obligations of a party to the case within the meaning of the Statute,

29

ICJ Rep. 3, 16. For Nagendra Singh’s remarks, see p. 47. For the original General Act of 1928, see 43 LNTS 343. For the Revised General Act of 1949, see 71 UNTS 101.

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and in particular of Article 59 under which the decision would be binding upon Malta in its relations with Libya and with Tunisia. Elsewhere the Court pointed out that having regard to the terms of Article 59, the Court’s decision would certainly be binding upon Tunisia and Libya with respect to the matters covered by the special agreement by which the proceedings had been instituted. The issue was, however, sharpened by Judge Oda in his individual opinion, in which he pointed out – echoing but not citing the Court’s earlier pronouncement in the Aegean Sea Continental Shelf case – that the provisions of Article 59 did not in fact [emphasis added] guarantee a State which had not [emphasis in original] intervened in the principal case any immunity from the subsequent application of the Court’s interpretation of the principles and rules of international law.30 The issue arose again in a different form in the merits phase of the case, and again the Court adopted a mid-way position. Interpreting the special agreement in connection with the scope of its jurisdiction on the merits, the Court explained that it was not asked to render an advisory opinion, but to render a judgment in a contentious case in accordance with Articles 59 and 60 of the Statute and Article 94, paragraph 2, of the Rules of Court (of 1978), “a judgment which will have therefore the effect and the force attributed to it under Article 94 of the Charter of the United Nations and the said provisions of the Statute and the Rules of Court”. This was highlighted in the separate opinion of Judge Jiménez de Aréchaga. The special agreement in this case envisaged that the final delimitation would be effected by the experts of the parties as a diplomatic exercise. These would negotiate the final delimitation within a vague and very general framework of pronouncements from the Court which were described as “guidance”. Judge Jiménez de Aréchaga found himself confronted with a situation in which there were two possible interpretations of the special agreement, one of them making the judgment dependent on a subsequent agreement of the parties. Citing in this connection pronouncements by the Permanent Court in the Free Zones case, he stated: 8. In the light of those pronouncements it must be concluded that, in making the choice between the two conflicting interpretations of the Special Agreement, the one to be preferred is that which is compatible with the character of judgments rendered by the Court and with the binding force attached to them by Articles 59 and 63, paragraph 2, of the Statute.

30

ICJ Rep. 1981. 3, 18 (para. 32), 19 (para. 33). For Judge Oda’s separate opinion on this point, see p. 30 (para. 16).

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It would certainly be incompatible with the Statute and with the Court’s position as a Court of Justice to accept an interpretation of the Special Agreement leading to a judgment which would not advance the settlement of the dispute and which would be dependent for its application on the subsequent agreement of the Parties.31

The question was to arise again a few years later, when Italy submitted a request to intervene in the Libya/Malta Continental Shelf case. Not unexpectedly, the arguments were similar to those advanced in the earlier case, and this gave the Court an opportunity to express itself more fully in a passage which requires ample quotation, despite its length: 42. In the first place, the rights claimed by Italy would be safeguarded by Article 59 . . . Much argument has been addressed . . . to the question of the relationship between Article 62 of the Statute and Article 59. It is clear from the latter provision that the principles and rules of international law found by the Court to be applicable to the delimitation between Libya and Malta, and the indications given by the Court as to their application in practice, cannot be relied upon by the Parties against [emphasis added] any other State.

The Court here quoted from the Interpretation of Judgments Nos. 7 and 8 (The Chorzów Factory) case cited above, and continued: It has been contended by counsel for Italy that if Article 59 always provides adequate protection for third States, and if the protection which it affords is such as to prevent the interest of the third State from being genuinely affected in a pending case, then . . . Article 62 no longer has any point whatsoever, nor any sphere of application. The Court however considers that the conclusion does not follow: a State which considers that its legal interest may be affected by a decision in a case has the choice – as is implied by the fact that Article 62 provides that a State “may” submit a request to intervene – whether to intervene thus securing a procedural economy of means (as noted by Italian counsel); or to refrain from intervening, and to rely on Article 59.

31

ICJ Rep. 1982, 18 at 40. For the separate opinion of Jiménez de Aréchaga, sitting as judge ad hoc, see p. 101. In practical terms, the Judge thought that the operative provisions of the judgment in this case ought to have been framed not on the basis of degrees of latitude and longitude (as it was), but in terms of concepts such as “the line perpendicular to the coast at Ras Ajdir, going as far as the parallel of the westernmost point in the Gulf of Gabes, and from that point successive veerings parallel to the successive inclinations of the coast of the Tunisian mainland, all of these geographical facts to be determined by the experts”. A judgment couched in those terms might have rendered unnecessary the subsequent proceedings in interpretation and revision in this case, ibid. 1985, 192.

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43. Furthermore, there can be no doubt that the Court will, in its future judgment in the case, take account, as a fact, of the existence of other States having claims in the region. . . . The future judgment will not merely be limited in its effect by Article 59 of the Statute: it will be expressed, upon its face, to be without prejudice to the rights and titles of third States.32

In his separate opinion in this case Jiménez de Aréchaga, again sitting as judge ad hoc, also referred to Article 59. Touching upon the vexed question of whether a jurisdictional link has to exist between a State wishing to assert an interest of a legal nature which might be affected by the decision in the case and therefore requesting to intervene under Article 62 of the Statute, a request which had been denied Italy in the previous phase of this case, he pointed out the difficulties in the merits phase of this case following upon the assurances given by the Court with regard to Italy’s position. He said: 37. The remedy to that situation is different from granting intervention without a jurisdictional link: it is to be found in the lack of competence of the Court to dispose of the rights of a State which is not before it, and in the relative effects of the Court’s judgment as provided in Article 59 of the Statute.33

The theme of the judgment was picked up and expanded in the judgment on the merits, where the Court said: 21. The Court notes that by the Special Agreement it is asked to define the legal principles and rules applicable to the delimitation of the area of continental shelf “which pertains” to each of the Parties. The decision of the Court will, by virtue of Article 59 of the Statute, have binding force between the Parties, but not against third States. . . . It is true that the Parties have in effect invited the Court, notwithstanding the terms of their Special Agreement, not to limit its judgment to the area in which theirs are the sole competing claims; but the Court does not regard itself as free to do so, in view of the interests of Italy in the proceedings. . . . A decision limited in this way does not signify either that the principles and rules applicable to the delimitation within this area are not applicable outside it, or that the claims of either Party to expanses of continental shelf outside that area have been found to be unjustified: it signifies simply that the Court has not been endowed with jurisdiction to determine what principles and rules govern delimitations with third States, or whether the claims of the Parties outside that area prevail over the claims of those third States in the region.34

32

33 34

ICJ Rep. 1974, 3, 26 (para. 42). The position of the Court was criticized in the dissenting opinions of Judge Schwebel (p. 131) and more severely of Sir Robert Jennings (p. 148), on the ground that the Court’s interpretation of Article 59 could deprive Article 62 of all meaning. See further, at p. 147 below. Ibid. 68. ICJ Rep. 1985, 13, 25. Dissenting opinions were appended by Judges Mosler, Oda and Schwebel, pp. 116, 131 and 172, partly it seems on the ground that in effect the judgment on the merits proceeds as if the intervention had been admitted.

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The last case of intervention in the International Court in which Article 59 was relevant was the Land, Island and Maritime Frontier Dispute case, heard by a Chamber under Article 26, paragraph 2, of the Statute. The Chamber had accepted a request by Nicaragua to intervene in respect of that part of the case which related to the Gulf of Fonseca, but not as a party. In its judgment on that application for permission to intervene the Chamber had explained that Nicaragua would not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or under the general principles of procedural law.35 Recalling this in the judgment on the merits, the Chamber described the effect of this non-party intervention in the following terms: 423. The Chamber considers that it is correct that a State permitted to intervene under Article 62 of the Statute, but which does not acquire the status of party to the case, is not bound by the Judgment given in the proceedings in which it has intervened.

After referring to the Chamber’s judgment admitting Nicaragua as a nonparty, it went on to explain that in those circumstances, the right to be heard, which the intervener did acquire, did not carry with it the obligation of being bound by the decision. The Chamber reached the conclusion that in the circumstances of the case, the judgment is not res judicata for Nicaragua. It said: The terms on which intervention was granted . . . were that Nicaragua would not, as intervening State, become party to the proceedings. The binding force of the present Judgment for the Parties, as contemplated by Article 59 of the Statute of the Court, does not therefore extend to Nicaragua as intervener.36

This notwithstanding, in the relevant operative clause of the judgment, paragraph 432, several references were made to the rights and duties of the intervening State, Nicaragua. In the introductory phrase of the operative clause, however, the Chamber seems deliberately to have excluded the considerations advanced in paragraphs 421–424 from those on the basis of which it

35

36

ICJ Rep. 1990, 92, 135 (para. 102). It is not clear why the Chamber had to add the words which have been emphasized above. In preliminary proceedings before the full Court to determine whether the Court or the Chamber should decide on Nicaragua’s request for permission to intervene, Judge Shahabuddeen in a dissenting opinion had drawn attention to Art. 59. He pointed out that it was true that under Art. 59 the decision of the Chamber would not be binding on a non-party, but he did not go so far as to suggest that the non-party would be under no obligations at all arising out of the judgment on the merits, ibid. 59. ICJ Rep. 1992, 351, 609 (paras. 421–424).

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reached its decision: “For the reasons set out in the present Judgment, in particular paragraphs 269 to 420 thereof.”37 The Court made an important pronouncement on the effect of Article 59 on its power to indicate provisional measures of protection in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Further Requests for the Indication of Provisional Measures) case. Here the applicant requested provisional measures which in the view of the Court would be addressed to States or entities not parties to the litigation. In that connection, the applicant explained that it was not asking for an order binding upon any State other than the parties, but for a “clarification” of the applicant’s rights “which can be used in the Security Council and the General Assembly and elsewhere”. Rejecting this request, the Court said: [T]he judgment in a particular case by which disputed rights may be adjudged by the Court to belong to the Applicant or to the Respondent has, in accordance with Article 59 of the Statute of the Court, “no binding force except between the parties”[.]

Accordingly, the Court might, for the preservation of those rights, indicate provisional measures to be taken by the parties, but not by third States or other entities who would not be bound by the eventual judgment to recognize and respect those rights. In consequence: the Court cannot, in the exercise of its power to indicate provisional measures, indicate by way of “clarification” that those States or entities should take, or refrain from taking, specific action in relation to the acts of genocide which the Applicant alleges are being committed in Bosnia-Herzegovina[.]38

* * * 37

38

Ibid. 616 (para. 432). This elicited a scathing dissent by Judge Oda, who thought that Nicaragua would “certainly” be bound by the judgment insofar as it related to the legal situation of the maritime spaces in the Gulf of Fonseca (p. 619). In this he was joined by Judge ad hoc Torres Bernárdez at 730 (para. 208). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Further requests for the indication of provisional measures), ICJ Rep. 1993, 325, 344 (para. 40). Impliedly criticized by Judge ad hoc E. Lauterpacht, who thought that the arms embargo established by Security Council resolution 713 (1991) of 25 September 1991 created an imbalance in the supply of weaponry to Bosnia-Herzegovina, and that the situation was one “calling for further consideration by the Security Council.” However, in this context, the provision of Art. 59 are not overcome by using the expression “Security Council”, since by Art. 23 that term means the States members of the Security Council at any given time, and Art. 59 has the effect stated by the Court. For this view, see his separate opinion in that case, paras. 84 to 107 and 126.

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It is to be stressed that in principle, Article 59 is only relevant in contentious cases, subject to Article 68 of the Statute.39 No such restriction on the force of a judicial pronouncement in the form of an advisory opinion exists, and the value of an advisory opinion as a precedent is no less than that of any other judicial pronouncement. The real scope of an advisory opinion depends upon the terms of the question, and in many if not in most instances the limitation will be self-evident. Nevertheless, this is not always so. For example, if on the one hand the interpretations of provisions such as Article 4 or Article 17 of the Charter of the United Nations contained in advisory opinions specifically directed to the interpretation of those provisions, are by their terms limited to the circumstances which gave rise to the requests and to the terms of the questions put to the Court, the same cannot be said of advisory opinions such as those on Reparation for Injuries Suffered in the Service of the United Nations40 or on the Status of South West Africa.41 This is demonstrated indeed by the judgment on the preliminary objections in the South West Africa cases, where the Court had no hesitation in dismissing “similar contentions” which had been raised in the advisory opinion of 1950, from which it cited copiously.42 Alternatively, to take a recent example, the interpretation of Article VI, section 22, of the Convention on the Privileges and Immunities of the United Nations contained in the advisory opinion of 15 December 1989, in so far as concerns the meaning of the expression “Experts . . . performing missions for the United Nations”, is of completely general application.43 * * * Nevertheless, there are cases in which the Court has pronounced itself on the case before it without overt consideration of the possible impact of its pronouncement on the relations of other States either with the parties or as between themselves, or on other cases. One example of this is found in the judgment on the preliminary objections in the Aerial Incident of 27 July 1955 (Israel v Bulgaria) case, delivered when two other cases arising out of the same incident were pending before the Court. The same jurisdictional issue arose in all three cases, namely whether a declaration made by Bulgaria in 1920 accepting the compulsory jurisdiction of the Permanent Court was in

39

40 41 42 43

By that provision, in the exercise of its advisory functions the Court shall be further guided by the provisions of the Statute which apply in contentious cases “to the extent to which it recognizes them to be applicable”. Amplified in Art. 102 of the Rules of Court. ICJ Rep. 1949, 174. ICJ Rep. 1950, 128. ICJ Rep. 1962, 319, 333. ICJ Rep. 1989, 177, 195 (para. 52).

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force in 1955 by virtue of Article 36, paragraph 5, of the Statute of the present Court. After the Court had decided in the Israel case that this declaration was not covered by that provision of the new Statute, the United States at first persisted in its case, and in reply to a preliminary objection based on the Court’s reasoning in the Israel case, contended that by virtue of Article 59 the judgment in the Israel case was not conclusive as between the parties in the United States case. The Court could and should review its decision on the ground that Article 36, paragraph 5, was a “constitutional text not subject to legislative revision for the purpose of altering the effect of a judicial decision construing the text”.44 However, the United States later discontinued its case on other grounds, and the Court did not have to address this new contention. This can be compared to the attitude which the Court adopted in 1988, regarding the validity of Nicaragua’s declaration of 1929, mentioned above. More significant, because potentially of much wider implication, is the decision of the Chamber which decided the ELSI case between the United States and Italy.45 That case concerned the interpretation and the application of several provisions in standard form in the Treaty of Friendship, Commerce and Navigation (FCN) between the two countries, and its provisions have been repeated in a large number of later treaties initiated by the United States.46 In this case Italy, as respondent, filed a series of preliminary objections to the jurisdiction and to the admissibility, and the parties were agreed that these objections should be heard within the framework of the merits in accordance with Article 79, paragraph 8, of the Rules of Court. The Chamber proceeded to dismiss the objection based on the non-exhaustion of local remedies, after which it entered into detailed examination and interpretation of the relevant provisions of the FCN Treaty. It is difficult to assume that those interpretations will be without effect on the interpretation and application of the similar clauses in other FCN treaties, much in the same way that it is difficult to assume that the interpretation of the Pact of Bogotá in Border and Transborder Armed Actions (Nicaragua v. Honduras (supra) will not sooner or later have a direct impact on the mutual relations of the States parties to that instrument. * * *

44 45 46

Aerial Incident of 27 July 1955 case, Pleadings 310. Elettronica Sicula S.p.A. (ELSI) case, ICJ Rep. 1989, 15. Similar FCN treaties of the United States had been considered by the Court in the Diplomatic and Consular Staff in Tehran and in the Military and Paramilitary activities in and against Nicaragua cases. Since then the question has also arisen in the Aerial Incident of 3 July 1988 and the Oil Platforms cases, but so far (except for the compromissory clause itself ) different provisions of the treaties were relevant in each of the five cases.

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Article 59 has been found of relevance in one international arbitration, the Lighthouses arbitration between France and Greece.47 This arbitration had been preceded by two related cases in the Permanent Court, the Lighthouses case and the Lighthouses in Crete and Samos case between the same parties.48 Claims Nos. 11 and 4 in that arbitration related directly to matters which had been raised before the Permanent Court, and the question arose what exactly had been the subject-matter of those two cases. After discussing that, the award continues: The present case is governed by Article 59 of the Statute of the former Permanent Court of International Justice. . . . Now, although in the present arbitration the parties are the same as in the judicial proceedings of 1937 . . . the lis which was decided in 1937 is quite distinct from those which are the objects of the present claims Nos. 11 and 4. . . . There is . . . in neither matter identity of lis (or concrete disputes) to be resolved; there is only identity of parties. If there can be no question of res judicata in the strict sense of the term, . . . [one] could . . . maintain . . . that the text of Article 59 . . . is badly drafted and that one must necessarily interpret it in a more liberal sense than its terms appear to justify. There is much to be said in favour of this thesis, the more so since the provision in question was not taken from the draft of the Committee of Jurists which drew up the Statute of 1920, but was distorted by an unfortunate amendment by a political body. If it were true that a Judgment of the Court is clothed with the authority of res judicata only in the case which has been decided, that would mean that, if the lis concerns the interpretation of a clause of a treaty, the interpretation given could be used again in arguments in any future lis concerning the same clause of a treaty.49 Such a result would not only be absurd; it would put Article 59 in irreconcilable contradiction with the last sentence of Article 63 of the . . . Statute, which provides that when a third State intervenes in a case in which there is in question the construction of a multilateral convention to which it and the States concerned in the case are parties, the construction given by the Judgment will be equally binding on that State. The res judicata extends, in consequence, beyond the strict limits of the case decided.50

47

48

49

50

XI RIAA 155, 194; 23 ILR 81 (1956). The Tribunal, a panel of the Permanent Court of Arbitration, was composed of J.H.W. Verzijl (President), A. Mestre and G. Charbouris. See also A.M. Stuyt, Survey of International Arbitrations 1794–1989 412 (3rd ed., 1990). PCIJ, Ser. A/B 62 (1934), and No. 71 (1936). For Verzijl’s comments on these two cases, see his The Jurisprudence of the World Court, I, 370, 483 (1965). The articles were originally published in 1934 and 1937. See further text to note 8 above. The original French text of this passage reads: S’il était vrai qu’un arrêt de la Cour n’est revêtu de l’autorité de la chose jugée que dans le seul cas qui a été décidé, cela signifierait que, si le « cas » concerne l’interprétation d’une clause de traité, l’interprétation donnée pourrait être remise en discussion en des « cas » futurs ayant trait à la même clause de traité. RIAA cited in note 45 above at 194. Ibid. 194/86. This is virtually a repetition of Verzijl’s criticism of Art. 59 first expressed in 1926. See text to note 8 above.

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Article 59 has also found its place in the case-law of the internal courts of a State party to a judgment of the International Court. This issue arose out of an attempt by a group of United States citizens living in Nicaragua to force the United States Government to “implement” the judgment on the merits in the Military and Paramilitary Activities in and against Nicaragua case. The United States Court of Appeals for the District of Colombia Circuit dismissed the suit on a number of grounds. Among those grounds was the Court’s interpretation of Article 94 of the Charter as contemplating only States that are parties to the decision of the International Court. On this the Court said: Our interpretation of Article 94 is buttressed by a related provision in the Statute of the ICJ, which is incorporated by reference in the U.N. Charter. See U.N. Charter Art. 92. The Statute provides that “A[t]he decision of the Court has no binding force except between the parties and in respect of th[e] [that] particular case. . . .” Taken together, these Charter clauses make clear that the purpose of establishing the ICJ was to resolve disputes between national governments [emphasis in original]. We find in these clauses no intent to vest citizens who reside in a U.N. member nation with authority to enforce an ICJ decision against their own government.51

* * * In his dissenting opinion in the Continental Shelf (Application of Italy to Intervene) case, Judge (later President) Sir Robert Jennings raised serious criticism, not so much of Article 59 itself as of the Court’s use of it in dismissing Italy’s request for permission to intervene. This section of the opinion is too long to reproduce here. Its gist is that for many reasons the protection of third-party interests assumed to be supplied by Article 59 is largely illusory. This was partly based on what Sir Robert called “the force of persuasive precedent” in decisions of the Court. Furthermore, insofar as the operative clause of the judgment would be addressed to the parties only, to that extent the third-party interests would enjoy some protection due to Article 59. Sir Robert continued: 28. Nevertheless it would be unrealistic even in consideration of strict legal principle, to suppose that the effects of a judgment are thus wholly confined by Article 59. Every State a member of the Court [sic: in French translation – les Etats parties au Statut de la Cour] is under a general obligation to respect the judgments of the Court.

He pointed out that under the special agreement the Court was asked to determine the principles and rules of international law applicable to the

51

Committee of United States Citizens living in Nicaragua v. Reagan, 859 F.2d 929, 938 (D.C. Cir. 1988); 85 ILR 248.

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delimitation in question as well as the application of those rules and principles in practice, and he asked whether general opinion would “be so very wrong if it assumes, as general opinion surely will, that the Court’s judgment will have decided precisely that”. Sir Robert went on to discuss the agreement between the parties based on the judgment: If the result is an agreement which trespasses on Italian continental shelf, yet is apparently backed by the powerful sanction of the Court’s Judgment, does the Court really believe that Italy will find an adequate remedy in the words of Article 59? . . . [T]he mention of Article 59 as adequate protection of Italy would seem almost to have a touch of irony.

Later Sir Robert concluded this part of his dissenting opinion with these words: 34. Quite apart from the dangers, inadequacies and infelicities which would result from using Article 59 as a vehicle for importing an inappropriate bilateralism or relativism into the judgments of the Court concerning “sovereign rights”, the complete answer to the argument that Italy is sufficiently protected by Article 59 is simply that Article 62 is just as much a part of the Court’s Statute as is Article 59; and it provides a sensible solution entirely in accord with principle, of precisely the problem the Court finds itself faced with. . . . Article 59 applies, after all, in all cases without exception that come before the Court for judgment. If Article 59 ensures that a third State’s rights can never be affected by a judgment, this must mean that a third State’s rights can never be affected in the sense of Article 62. To interpret one article of the Statute in such a way as to deprive another article in the same section of the Statute of all meaning, cannot be right.52

A somewhat similar point of view was adduced in a more summary form in the dissenting opinion of Judge Schwebel: “Article 59 cannot, by any canon of interpretation, be so read as to read Article 62 out of the Statute.” Initially Judge Schwebel was critical towards the Court’s handling of applications for permission to intervene under Article 62 of the Statute. In the Continental Shelf (Libya/Malta) (Application of Italy to Intervene) case, he amplified his criticism by referring specifically to Article 59. He criticized the Court’s decision in that case on the ground that by relying on Article 59, the Court had reduced Article 62 “to an improbable procedural convenience . . . virtually tantamount to reading Article 62 out of the Statute”.53 This criticism was advanced with emphasis in his dissenting opinion in the Certain Phosphate Lands in Nauru (Preliminary Objections) case. Judge Schwebel’s principal

52 53

ICJ Rep. 1984, 3, 157. Ibid. 134.

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argument is that there is an illusory element not so much in Article 59 itself, as in some inconsistency in its application by the Court in concrete cases. His contention was that it was clear, and should have been clear in 1984 (in the jurisdictional phase of the Military and Paramilitary Activities in and against Nicaragua case), that on the factual premises put forward by the United States Article 59 could provide no meaningful protection to third States which were the objects of alleged Nicaraguan support of armed insurrection within their borders. He went on to indicate that in the circumstances of the Nauru case, “the protection afforded the absent States by Article 59 in the quite exceptional situation of this case would be notional rather than real”.54 In the circumstances of the these cases there would seem to be force in this criticism (although in the Nauru case only a decision on the merits could support a final evaluation of this inadequacy, and that case has since been discontinued). This criticism, however, would appear to be directed not so much at Article 59 itself, as at its application in particular cases. As Judge Schwebel himself recognized, the issue of the weight to be accorded to the situation of absent States “may be a finely balanced one”.55 * * * The experience of the present Court – there was no experience in the Permanent Court or in the present Court before Verzijl’s award in 1956 – would seem to suggest that the real problem set by Article 59 is not whether it is consistent with Article 63, as had been thought in connection with Article 59 of the Statute of the Permanent Court of International Justice, but its relations with Article 62 of the Statute. That experience, culminating in the judgment of the Chamber in the Land, Island and Maritime Frontier Dispute case, suggests that Article 59 as interpreted and applied by the Court or by the Chamber may have converted Article 62 into a procedural mechanism by which proceedings under that Article, at all events so long as the would-be intervening State does not become a party to the mainline proceedings, have as their main purpose to focus the Court’s attention not so much on the intervener’s interests of a legal nature which might be affected by the decision in the case as on the facts upon which that legal interest is based. Article 59 may be adequate to protect third-party interests in the abstract. However, litigation is not concerned with protecting the abstract, and for third-party interests to be adequately protected – whether those interests are “sovereign rights” as in the continental shelf cases or something else – the principle of Article 59 has to be reinforced by adequate presentation to

54 55

ICJ Rep. 1992, 333, 342. Ibid. 343.

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the Court of the relevant facts. In this context, it is to be noted that there is no real experience yet of the relationship of Article 59 and 62 of the Statute in the circumstance of an application for permission to intervene being granted to a third State in the status of intervening party. To some extent this is borne out by the decision of the Third United Nations Conference on the Law of the Sea regarding what became Annex VI, article 31, of the United Nations Convention on the Law of the Sea of 1982.56 That Annex is the Statute of the new International Tribunal for the Law of the Sea, and in general it was closely modelled on the Statute of the International Court. Article 296, paragraph 2, of the Convention itself follows Article 59 of the Statute of the Court with only a drafting adaptation,57 an indication that States continue to find the provision necessary. On the other hand, Annex VI, article 31, contains a significant addition to the corresponding provision in the Court’s Statute. Paragraph 3 provides: If a request to intervene is granted, the decision of the Tribunal in respect of the dispute shall be binding upon the intervening State in so far as relates to matters in respect of which that State Party [i.e. to the Convention, following article 1, paragraph 2(1)] intervened.

The inclusion of these two provisions in the 1982 Convention can be taken to show that on the one hand, States continue not to accept the view that a provision along the lines of Article 59 of the Statute of the Court is either ill-advised or stands in contradiction to Article 63, at all events in normal cases, and that if the Statute of the Court contains any defect in this respect, that is to be found in Article 62, not in Article 59 or Article 63. At the same time, it has to be mentioned that there is no published legislative history to throw light on the intention behind this combination of provisions in the 1982 Convention. Consequently, it is impossible to speculate on their possible impact on future international litigation, whether in the International Tribunal for the Law of the Sea or elsewhere. * * * It is now possible to draw a number of conclusions from the preceding review. A very significant development in the practice of the Court, and in fact of litigants and, it could be added, of State practice in general, is that the presence of Article 59 in the Statute has not prevented extensive use now

56

57

See Third United Nations Conference on the Law of the Sea, 1183 UNTS 3; University of Virginia, Center for Oceans Law and Policy, I The United Nations Convention on the Law of the Sea 1982: A Commentary. Vol. V 331, 392 (Sh. Rosenne and L.B. Sohn, eds., 1989). Ibid. 82.

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normally being made of judicial precedents, especially those created by the International Court of Justice. This process has been achieved without the development of any theory of the binding force of judicial precedents, a theory which would probably be unacceptable to States as a matter of State practice in the present condition of international law, and which is not necessary for the conduct of international relations. No violence to the letter or spirit of Article 59 is seen in this. At the same time, the States have found it necessary, and have been able to create procedures for dealing with any unwelcome legal situation derived from any statement of law by the International Court, without this implying any criticism of what the Court might have decided in a particular case. This process has been facilitated since the establishment of the United Nations by the marked expansion and systematization of the work of codification and progressive development of the law pursued by virtue of Article 13 of the Charter, especially but not exclusively through the International Law Commission. This has supplied important machinery for changing the law as expounded by the Court, conceptually the parallel of parliamentary intervention to minimize any possible undesirable or unacceptable consequences in internal law of a judicial interpretation of the existing legal position. An outstanding illustration of this is found in the “overruling” of the finding of the Permanent Court in the Lotus case through article 35 of the draft articles on the law of the sea prepared in 1956 by the International Law Commission. That now appears as article 11 of the Convention on the High Seas of 1958 and since repeated as article 97 of the United Nations Convention on the Law of the Sea of 1982.58 Other illustrations of this process could be furnished. Most States have found it necessary to maintain appropriate machinery for applying correctives to the law-declaring work of their courts. In the sphere of law-making and law-declaring, the international community has found itself in a similar position with regard to its principal judicial organ, the International Court of Justice. As seen, the Statutes of the two Courts, read in the light of the drafting history of 1920, can be interpreted as indicating that the doctrine of stare decisis is not accepted as an element of international law itself. But this is insufficient having regard to the proliferation of international judicial decisions and the natural tendency for later deci-

58

For the Lotus case, see PCIJ, Ser. A No. 10 (1927). The change in the law was first made in the International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision or other Incidents of Navigation of 10 May 1952. 439 UNTS 233. For the draft articles of 1956, see International Law Commission, Yearbook, 1956–II, 254, 281. For the Convention on the High Seas, see 450 UNTS 11. For the 1982 Convention see note 54 above. That provision dealt with penal jurisdiction in matters of collision and any other incident of navigation at sea.

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sions to follow or distinguish earlier cases without overcharging the difficult question of the “sources” of the law with controversial theories of judicial precedents and their binding force. In this way it may be said that the preoccupation of the British Government in 1920 has been met. Another significant development produced through the interpretation and application of Article 59 is seen in the disposal of the requests for permission to intervene in the Libyan Continental Shelf cases. The Court seems to have taken the position that, having regard to Article 59, intervention under Article 62 of the Statute, where a State considers that its legal interests might be affected by the decision in a case, is frequently unnecessary, since ex hypothesi the Court has no jurisdiction in a case between two States where the legal position of a third State is the main issue of the case, and that third State has not given its consent to the exercise of jurisdiction by the Court. That, it is submitted, is the real implication of the Monetary Gold Removed from Rome case taken together with the instances that have been mentioned of requests for permission to intervene. Indeed, it is this which leads to the view that if there is any inconsistency between Article 59 and any other provision of the Statute, it is with Article 62, itself a new provision invented by the Advisory Committee of Jurists in 1920 without, so far as is known, guidance from authoritative precedents from nineteenth century arbitrations, and amended in 1945. Yet it is precisely in that respect that the inadequacies of Article 59 have been demonstrated. Full protection for third States can only be assured if the Court is in full possession of the relevant facts as that third State sees them and as the principal parties can contest them in adversarial proceedings. The procedure of requesting permission to intervene, which assumes an adversarial character almost from its initiation, is one of the methods by which the Court is supplied with these facts, and can assess their impact on the bilateral case originally brought before it. Article 59 is manifestly insufficient for this purpose. At the same time, contrary to what was envisaged during the drafting of the Statute of the Permanent Court, the Court has emphasized an essential and perhaps unsuspected weakness of Article 59, when it pointed out that any pronouncement of the Court on the status of a multilateral convention could have implications in the relations between States other than the parties in the case. This inadequacy is not addressed in Article 63 of the Statute, and clearly Article 59 would not have any relevance. There can be little doubt that the Court acted correctly in the Aegean Sea Continental Shelf case. In this respect that case is distinguished from both the Aerial Incident of 27 July 1955 and the Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) cases, where any decision of the Court would have an implication for every other State which, at a given moment, had in force a declaration made under Article 36, paragraph 2 or 5, of the Statute). But State practice may not be fully concordant with that judicial caution. This is brought out by the provision of article 66 of the Vienna Convention

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on the Law of Treaties of 1969, according to which in certain circumstances the Court may have jurisdiction to decide a dispute concerning the interpretation or application of the jus cogens articles of the Convention in relation to any treaty, bilateral or multilateral, on the unilateral application of a State which is a party to both the Convention and the impugned treaty, against any other State in a similar situation.59 One can go further. The conceptual underpinning of the Statute is that normally there are only two parties to a given legal dispute, with the intellectual exception of a dispute in which the construction of a multilateral treaty is in issue. That approach – carefully articulated in Article 59 – was certainly appropriate in nineteenth century arbitration – and indeed in all arbitration. But the unforeseen expansion in the employment of the multilateral treaty on the one hand, and the ever-increasing complexity and multilateralization of international relations in general, must give rise to doubts whether a dispute settlement mechanism based on the single assumption that disputes exist only between two parties is adequate or even appropriate for modern needs. An inkling of this appeared towards the end of the Third United Nations Conference on the Law of the Sea when, after careful examination, the Drafting Committee proposed a series of amendments to the Annexes dealing with conciliation and with arbitration, to accommodate disputes involving more than two parties having separate interests.60 The third significant element disclosed by the relevant case-law concerns the endorsement given by the Court to the approach, first employed in the North Sea Continental Shelf cases, of what is termed “partial settlement” of a dispute by the Court. The meaning of this is that the Court indicates in a judgment attracting the force of res judicata and Article 59 of the Statute, relevant principles and rules of law which the parties undertake to apply in subsequent negotiations. So far this procedure, which at first glance may be misunderstood as a form of disguised advisory proceeding, has been employed only in various kinds of maritime delimitation cases. In that respect it may, to some extent, be considered to have received the endorsement of the Third United Nations Conference on the Law of the Sea, in provisions such as articles 74 and 83 of the 1982 Convention regarding overlapping claims to areas of sea such as exclusive economic zones or continental shelves. But there is no reason why this mechanism should not be appropriate wherever the basic rule of law is not clearly established or is enunciated in excessively general terms. The doctrine expounded in the passage from the Revision and Interpretation case cited above emphasizes one aspect of the clas-

59 60

1155 UNTS 331. United Nations Convention on the Law of the Sea, note 54 above, Annexes V, VII and VIII, art. 3, (g) and (h). And see the Commentary cited in that note, Vol. V, at 318, 428 and 448.

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sic law of treaties, namely the relativity of a treaty, and applies that concept to a judgment which itself is the consequence of a treaty, the special agreement, which can legitimately be displaced by a later treaty (cf. article 30 of the Vienna Convention on the Law of Treaties). This is an important addition to the general techniques of the settlement of disputes through binding third-party decision, and is likely to open the way to a more satisfactory method of settling disputes through the International Court than the pure “black and white” approach traditionally associated with the judicial settlement of a dispute. In the complexities of international relations today, this is a welcome development.

9 THE FRAMEWORK AGREEMENT AS THE BASIS FOR THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE AND SOME PROBLEMS OF LANGUAGE

What is now frequently known as the framework agreement (accord cadre) as the basis for the jurisdiction and the seisin of the International Court of Justice in a contentious case is an innovation. It is derived from the special agreement (compromis), the traditional basis for the jurisdiction of arbitral tribunals and the typical foundation for the jurisdiction of the International Court under Article 36, paragraph 1, of its Statute. The characteristic feature of the special agreement is that it simultaneously defines the question to be decided by the Court together with the Court’s jurisdiction. That jurisdiction, which is limited to deciding that defined question, is established and the Court is seised of the case through the parties’ joint notification of the special agreement to the Court.1 Unless the parties otherwise agree, the procedure of the simultaneous filing of the documents of the written procedure is followed in cases introduced by special agreement (although in Practice Direction I the Court is trying to discourage this). It means that the written pleadings are transmitted by the Registrar simultaneously to the opposing parties. That is the traditional practice of international arbitration. The Statute requires that a special agreement indicates ‘the subject of the dispute and the parties’. This requirement has come to be a source of difficulty, especially on the diplomatic plane. Diplomatic experience, especially since 1945, has shown that it may be difficult after a dispute has arisen for the parties to negotiate a special agreement in the traditional sense.2 Those difficulties have always related to the statutory requirement that the agreement indicates the subject of the

1 2

Statute of the International Court of Justice Article 40, Rules of Court (1978), Article 39. This was actually recognized at the beginning of the twentieth century when the First Hague Convention on the Pacific Settlement of Disputes of 1899 was revised in 1907. Article 53 of the 1907 Convention empowers the arbitral tribunal to settle the compromis if the parties have recourse to it for this purpose, and in certain circumstances it may so act at the request of one party. There is no such direct provision in the Statute of the International Court.

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dispute. In order to overcome those difficulties, States have developed what is sometimes called a ‘framework agreement’ as the basis for the jurisdiction and the seising of the Court in a contentious case. The essential features of the framework agreement are the following: (a) the parties are in agreement that a dispute exists between them; and (b) the dispute may be decided by the International Court as a contentious case. However, the parties are unable to define the subject of the dispute and possibly also the method of seising the Court. Accordingly, a framework agreement allows either or both of the parties to bring the dispute before the Court, each in its own way, and even by unilateral application. The underlying assumption is that in the course of the proceedings each party will present to the Court its own definition of the dispute. In this way the Court can determine the legal position of each party and either settle the dispute or open the road to an agreed settlement within the concept of partial judicial settlement. If the framework agreement allows the proceedings to be instituted by unilateral application, the application will not be regarded by the respondent State as an unfriendly act. The framework agreement may regulate the question of whether the deposit of the written pleadings is to be simultaneous or sequential as is usual in cases introduced by unilateral application. If this is not done, the Court will establish the method of pleading either on its own initiative3 or after the usual procedural discussion held by the President with the parties. This process has its origins in Latin America. It was first used in the Asylum case between Colombia and Peru in the early 1950s. It has since been developed in other situations, both by the Organization of American States and more recently by the African Union, in their dispute settlement activities for their member States. The framework agreement cannot always be distinguished from a special agreement in the normal sense of the word, in terms of litigation practice. However, there is a fundamental difference between the two types of agreements. When a case is introduced by the notification of a special agreement, the operative clause of the judgment will usually contain a precise answer to the question that the Court is requested to decide. When the proceedings are introduced on the basis of a framework agreement, the Court will give its answer in the form of a decision on the final submissions

3

For an example, see the Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) case, ICJ. Rep. 1994 112 at 125 (para. 125), 1995 6 at 22 (para. 49) and 83 (order fixing time limits without the participation of Bahrain). On the 1994 judgment see Sh. Rosenne, “The Qatar/Bahrain case: What is a Treaty? A Framework Agreement and the Seising of the Court”, 5 Leiden Journal of International Law 161 196 (1995); Essay 21 below.

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of the parties as it has understood them, and that may not always coincide with what the parties had in mind. In this respect, the framework agreement is essentially a form of agreement for referring a dispute to the Court in which, while the parties are indicated, the subject of the dispute is not. The acceptance of this form of agreement by the Court has enabled the requirements of diplomatic refinements to find accommodation within the traditional formats of international adjudication as set out in the Statute and the Rules of the International Court. Although this method of conferring jurisdiction on the Court has come to the fore in the present Court, it is possible that its origin is earlier, and that its use is wider than appears. The Permanent Court was once seised simultaneously by two States, Denmark and Norway, each one having previously accepted jurisdiction under Article 36, paragraph 2, of the Statute of that Court, of cases which each party formulated in its own way. Commenting on this in its first procedural order in the matter, the Permanent Court indicated that the two applications were directed to the same object, and that the situation with which the Court had to deal closely approximated, as far as concerns the procedure, to that which would have arisen if the parties had submitted a special agreement indicating the subject of the dispute and their differing claims. In those circumstances the Court joined the two cases and held each government to be simultaneously in the position of applicant and respondent.4 It would be fair to assume that this procedure was the outcome of an agreement reached on the diplomatic plane. The Diversion of Waters from the Meuse case between Belgium and the Netherlands may have had a similar diplomatic background, although there is no indication of this in the proceedings.5 Here the claims of the applicant party were met by a series of counter-claims by the respondent, the Court exercising its jurisdiction also by virtue of declarations made under Article 36, paragraph 2, of its Statute. In the present Court, it is a matter of public knowledge that the Fisheries dispute between the United Kingdom and Norway was introduced unilaterally on the basis of the mutual acceptances of the compulsory jurisdiction following agreement on the diplomatic level.6 The same can be said about the Elettronica Sicula s.p.a. (ELSI) dispute between the United States of America and Italy, where the initial diplomatic agreement extended to the hearing of the case by a specially constituted Chamber of the Court under

4 5 6

South-Eastern Greenland case, PCIJ Ser. A/B48 (1932) 270. And cf. the statement of the representative of Norway on 28 July 1932, PCIJ Ser C 69 at p. 69. PCIJ Ser A/B 70 (1937) 4. Cf. M. Bourquin, “La portée générale de l’arrêt rendu . . . dans l’affaire . . . des Pêcheries”, 22 Acta Scandinavica Juris Gentium 130 (1952).

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Article 26, paragraph 2, of the Statute of the present Court.7 In a sense the Monetary Gold removed from Rome in 1943 case rested on a framework agreement. Here the three potential respondents indicated their willingness to accept as respondent the jurisdiction of the Court over a dispute which was not fully defined, and which required the proceedings to be instituted by unilateral application against all of them jointly on the part of one or other, or both, of two named States.8 As stated, the first case brought before the present Court on the basis of a framework agreement was the Asylum case. By a diplomatic agreement called the Act of Lima of 31 August 1949, plenipotentiaries appointed by the Governments of Colombia and Peru to negotiate and draw up the terms of an agreement to refer to the Court ‘a dispute which arose following a request by the Colombian Embassy in Lima for the delivery of a safe conduct to Monsieur Victor Raúl Haya de la Torre’ stated that they had examined ‘the existing dispute’ which they agreed should be referred to the Court. However, they were unable to reach agreement on the terms of the reference to the Court. They accordingly agreed that ‘proceedings before the recognized jurisdiction of the Court may be instituted on the application of either of the Parties without this being regarded as an unfriendly act toward the other, or as an act likely to affect the good relations between the two countries. The Party exercising this right shall, with reasonable advance notice, announce in a friendly way to the other Party the date on which the application is to be made’. Peru filed the application introducing the proceedings. In that instrument, as amplified in the memorial, Peru defined the dispute on its terms. It was met by a counter-claim in Colombia’s counter-memorial. However, neither the claim nor the counter-claim was framed in a way which could enable the Court to settle the dispute. After prolonged proceedings, in the Asylum, Asylum (Interpretation) and Haya de la Torre cases, the dispute returned to the diplomatic channel with, however, some of the legal differences between the parties settled in one or other of the three judgments rendered by the Court. A further two years passed before the way was found to settle the dispute. This was not an encouraging beginning for the institution of proceedings in this way. The next case before the Court on the basis of a framework agreement was the Arbitral Award Made by the King of Spain on 23 December 1906 case between Honduras and Nicaragua. That dispute went back to the nineteenth century and had led to an arbitral award rendered by the King of Spain in

7 8

ICJ Rep. 1989 15. ICJ Rep. 1954 19.

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1906.9 Nicaragua challenged the validity of that award, and different attempts by third States to mediate the dispute were unsuccessful. In 1957 incidents involving the use of armed force took place, and the Organization of American States dealt with the matter. That led to the Washington Agreement of 21 July 1957. By the principal clause of that Agreement, the parties undertook ‘to submit to the International Court of Justice, in accordance with the Statute and Rules of Court, the disagreement existing between them with respect to the Arbitral Award handed down by His Majesty the King of Spain on 23 December 1906, with the understanding that each Party, in the exercise of its sovereignty and in accordance with the procedures outlined in this instrument, shall present such facets of the matter in disagreement as it deems pertinent’. Two appendices to that Agreement set out the respective positions of each party. Honduras filed the application introducing the proceedings, claiming that the arbitral award should be carried out. The proceedings, with the sequential filing of the written pleadings and Honduras speaking first in the hearings, took place without procedural incident. The Court found that the award was final and binding and that Nicaragua was under an obligation to give effect to it. Difficulties arose over the implementation of that decision, and again the OAS was called in to assist the parties in reaching a final settlement of the dispute.10 The dispute between El Salvador and Honduras over the location of their common frontier also has its origins in the period of decolonization and independence of the nineteenth century. Incidents involving the use of force occurred in 1959 leading to a formal sate of war between the two countries and to intervention by the OAS. The title of jurisdiction consisted in a complex series of bilateral agreements between the two countries which add up to a framework agreement. In 1972 they concluded a Convention for the adoption of a Mediation Procedure under the auspices of the OAS. That led to the conclusion of a general Treaty of Peace signed at Lima on 30 October 1980, under the auspices of the OAS. That Treaty provided that if after the expiry of five years total agreement on the frontier disputes had not been reached, the parties would proceed to negotiate a special agreement to submit jointly any existing controversy or controversies to the Court. In 1986 the special agreement was negotiated. By this, outstanding points in dispute were referred to a Chamber of the Court under Article 26, paragraph 2, of the Statute, although the language of the relevant provisions is marked by

9 10

For that award, see UN Reports of International Arbitral Awards, vol. XI, 111. ICJ Rep. 1960 192. Honduras also based the jurisdiction on declarations made under Article 36, paragraphs 2 or 5, of the Statute. The Court made no reference to that aspect.

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studied ambiguity.11 The 1972 Treaty also included an agreement by the parties to execute in its entirety and in complete good faith the decision of the Court, and empowered the Joint frontier Commission set up by the Treaty (later replaced by a Special Demarcation Commission) to initiate the demarcation of the frontier as laid down by the Chamber. The parties differed on the respective roles of the Chamber and the Commission under that provision. The Chamber which heard the case held that it was its duty to give such indications of the lines of the frontier as would enable the Demarcation Commission to demarcate it ‘by a technical operation’. That was the political and legal background which led to the submission of the Land, Island and Maritime Frontier Dispute to the Court in 1986. The parties remained in dispute throughout the case as to the terms of reference to the Chamber. Indeed, one of the unusual features of these proceedings is that it was not until 1991 that they were able to produce an agreed English translation of the special agreement which had been concluded in Spanish. That English version did not completely dispose of the differences as to the function of the Chamber in relation to that of other organs operating on the basis of this complicated set of agreements. In determining these disputes as to its own jurisdiction, the Chamber repeatedly compared its task with that of the other organs and adopted solutions which would not impair the powers of the other organs. This required interpretation of the special agreement against the background of its predecessors.12 The framework agreement between Chad and Libya was concluded at Algiers on 31 August 1989. It provided for an attempt to reach a political settlement of the ‘territorial dispute’ between the two countries. In the absence of a political settlement it was agreed ‘to submit the dispute to the Court’, and a number of provisional measures were adopted. An ad hoc Committee of the OAU was to monitor the implementation of the agreement, of which notice was to be given to the OAU. No political agreement was reached. Accordingly, on 31 August 1990 Libya notified the agreement to the Court and gave its definition of the question which it asked the Court to determine. On 1 September Chad communicated by facsimile and on 3 September filed an application instituting proceedings against Libya, basing the jurisdiction on the Framework Agreement and on an additional title of jurisdic-

11 12

The President of this Chamber was the Brazilian jurist and former member of the International Court of Justice José Sette-Camara. ICJ Rep. 1992 351, 386 (para. 39), 390 (para. 47), 401 (para. 67), 554 (para. 325), 557 (para. 331), 579 (para. 368). In 2002, El Salvador submitted an application for the revision of that judgment. The Chamber that heard that case found that the application was inadmissible. ICJ Rep. 2002 618.

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tion. Chad later notified the Court that its claim coincided with that contained in Libya’s notification. It considered that the two notifications related to one single case and it referred the Court to the application of the Algiers Agreement which constitutes the special agreement, the principal basis of the Court’s jurisdiction to deal with the matter. The parties then agreed at a meeting with the President that the proceedings had been instituted by two successive notifications of the Framework Agreement and that the procedure should be determined on the basis that the case had been instituted by notification of the special agreement. The meaning of this was that by agreement the procedure of the simultaneous filing of the written pleadings should be used.13 The Court commented on this in the following terms: The Court has been seised of the present dispute . . . by notification of the special agreement constituted by the Accord-Cadre of 31 August 1989. . . . The Accord-Cadre described the dispute between the parties as ‘their territorial dispute’ but gave no further particularization of it and it has become apparent from the Parties’ pleadings and oral arguments that they disagree as to the nature of the dispute.14

The Court went on to describe the two approaches, Libya contending that it was a territorial dispute and Chad that it was a boundary dispute. The Court concluded the introductory part of its judgment with the statement that both parties had accepted the jurisdiction on the basis of the AccordCadre, and that since the Court’s jurisdiction on that basis had not been disputed there was no need to consider the question of an additional ground of jurisdiction. It concluded its judgment, in favour of Chad, because however the dispute was described, it was conclusively determined by a treaty to which Libya was an original party and Chad a party by succession to France. The last to date in this series of cases is the Marine Delimitation and Territorial Questions between Qatar and Bahrain case. This case presented several unusual features and exceptional difficulty. In the first (1994) judgment on jurisdiction and admissibility the Court first found that a series of instruments concluded in 1987 and 1990 constituted an agreement to refer what was termed ‘the whole dispute’ to the Court. Amongst those instruments was the minute of a conversation at Foreign Minister level in one of the capitals drawn up in Arabic and signed by the Foreign Ministers concerned. In that judgment the Court found that the unilateral application filed by Qatar did not conform to the requirements of those documents. Accordingly, in an unusual procedure, the Court fixed a time limit within which the parties

13 14

ICJ Rep. 1990 149, 1994 6, 9 (para. 8), 12 (para. 16). ICJ Rep. 1990 149, 1994 6, 9 (para. 8), 14 (para. 18).

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could take joint or several action to submit the whole dispute to the Court. In that judgment it decided that for the merits phase the procedure of the sequential filing of the written pleadings would be followed. On the date fixed Qatar filed additional documents. Bahrain on the other hand, contesting the jurisdiction, filed a report in which continued to contest the Court’s jurisdiction. Without further hearings the Court in 1995 adopted a second judgment on jurisdiction and admissibility. In that judgment the Court held that it had jurisdiction and that the application was admissible. Bahrain was not represented at the public meeting of the Court when that judgment was read, and did not attend the meeting with the President to fix the procedure for the further proceedings. For its part the Court thereupon issued an order fixing a time limit for the simultaneous filing of memorials on the merits by the parties.15 From that point on the proceedings on the merits continued in the normal way. Unlike special agreements properly so called, framework agreements have come to present to the Court new problems of language and terminology. In the Permanent Court, titles of jurisdiction were usually drawn up in either English or French, the two official languages of the League of Nations and of the Permanent Court. The Charter of the United Nations and the annexed Statute of the Court are drawn up in five authentic texts, although Article 39, paragraph 1, of the Statute retains English and French as the Court’s official languages. Originally the United Nations made a distinction between its official languages and its working languages. That distinction was abolished in 1973 when Arabic was added as an official language of the United Nations and the distinction between official and working languages was abolished, first in the General Assembly and later generally. This has had an impact on the language of special agreements and more so on that of framework agreements. With regard to special agreements in the original sense, notwithstanding Article 39 of the Statute the practice of States is now showing a tendency to follow the language practices of the United Nations in drawing up titles of jurisdiction. As special agreements have to be registered with the Secretariat in accordance with Article 102 of the Charter, the Secretariat has to prepare translations into English and French if necessary. Multilateral treaties concluded under the auspices of the United Nations or one of the specialized agencies are multilingual following the language practice of the organization in question. Bilateral titles of jurisdiction show a tendency, if the case is between two parties using the same official language, to use that language.16

15 16

ICJ Rep. 1995 83. For an illustration of this, see the discussion about the special agreement between Libya and Tunisia in the Continental Shelf (Tunisia/Libya) case, ICJ Rep. 3, 37 (para. 22), 39 (para. 29), 40 (para. 31).

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Framework agreements tend to show less regard for the Court’s language practices. The Act of Lima of 1950 for the Asylum case was in Spanish. The parties supplied separate translations into French. Peru’s application instituting the proceedings was in French and French-speaking counsel appeared for Peru in the hearings. The Act of Lima was not cited in the application as a title of jurisdiction, but for some aspects of procedure the Court’s attention was drawn to it.17 In the Arbitral Award case the Washington Agreement of 1957 was in Spanish. A French translation prepared by the UN Secretariat was annexed to the application which was in English. Both languages were used in the oral proceedings, according to the convenience of counsel.18 In the Land, Island and Maritime Frontier case the special agreement was in Spanish. In the early stages of that case, including proceedings on Nicaragua’s request for permission to intervene under Article 62 of the Statute in the full Court and later before the ad hoc Chamber, neither party had supplied the Court or the Chamber with an agreed translation of the special agreement or a translation of its own. The Court used a translation prepared by the Registry. Only in 1991 did the parties provide the Chamber with a joint translation of the special agreement into English, from which the Registry made a French translation. There was a dispute between the parties as to the interpretation of the special agreement, especially regarding questions relating to the Gulf of Fonseca, where the Chamber had granted a limited intervention to Nicaragua. That intervention expressly excluded argument on the interpretation of the relevant passage of the special agreement, ‘because the Special Agreement is, for Nicaragua, res inter alios acta’.19 The dispute between the parties over the interpretation of the special agreement was not affected by the joint translation, and the Chamber decided it in application with the normal practices of interpretation in this type of case. The framework agreement in the Chad/Libya case was in French. In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, the principal element of the framework agreement which the Court found to exist was in Arabic. Qatar submitted its translation of that document into English. Bahrain submitted two translations into English, one prepared by the Translation Division of the UN Secretariat and the other

17

18

19

Asylum case, Pleadings, vol. I, 8 (application), vol. II 194 (translation supplied by Colombia) and 196 (translation supplied by Peru). In the judgment the Court referred to the Act of Lima and did not mention the titles of jurisdiction invoked in the application instituting these proceedings. Arbitral Award of King of Spain case, Pleadings, vol. I 2 (application). For the Washington Agreement, see p. 27. Nicaragua’s counter-memorial indicates that this was a translation, at 131. ICJ Rep. 1990 92, 136 (para. 103).

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by an expert advising Bahrain. In its 1994 judgment on jurisdiction and admissibility the Court quoted the translation supplied by Qatar and the translation made by Bahrain’s expert, but it did not attempt to resolve directly the dispute on the interpretation of the document.20 In its 1995 judgment, however, the Court faced this issue head-on, for this purpose using a translation which it was able to prepare out of its own resources, and which, on the disputed issue, was very close to the UN translation. The Court rather boldly gave its opinion on the disputed question of Arabic grammar: The dual form in Arabic serves simply to express the existence of two units (the parties, or the two parties), so what has to be determined is whether the words, when used here in the dual form, have an alternative or a cumulative meaning. In the first case, the text would leave each of the parties with the option of acting unilaterally, and in the second it would imply that the question be submitted to the Court by both Parties acting in concert, either jointly or separately.

By a process of legal reasoning and analysis the Court reached the conclusion that the alternative interpretation was the one to be applied in this case.21 This case law suggests the solutions to two type of problem that have arisen. If the governing texts are in a language other than one of the Court’s official languages, the Court will rely on its own translation in case of need, unless and until the parties supply it with an agreed translation into one of the Court’s official languages. If there is no agreed translation, the Court will make use of its own resources (which include, if necessary, the UN Translation Services) to reach a translation into English or French (or both) which it considers reflects the intentions of the parties. At the same time, this experience would indicate that the absence of an agreed English or French version of a special agreement or a framework agreement is likely to complicate the Court’s task. The creation of this form of agreement to refer a case to the Court and its proven adaptability to different diplomatic and political currents and requirements is a welcome addition to the machinery of international adjudication as one of the means for the peaceful settlement of international disputes.

20 21

ICJ Rep. 1994 112, 119 (para. 19). ICJ Rep. 1995 6, 18 (para. 24), 22 (para. 41). The three translations are included in the article cited in note 3 above. Judge Oda, in his dissenting opinion joined to the 1994 judgment cited the Qatari and UN translations, ibid. 1994 at 148 (para. 32). The dispute concerned the proper meaning in the context of the Arabic word al-taraf9an (dual form of the word altaraf [party], plural al-turuf. The informal Arabic translation of the Rules of Court regularly uses the plural form even when from the English or French one might of have expected the dual form. After its excursion into the meaning of the dual form in Arabic the Court correctly stated the legal problem that it faced.

10 UNILATERAL APPLICATIONS TO THE INTERNATIONAL COURT OF JUSTICE: HISTORY REVISITED

The fundamental issue that the International Court of Justice faced in its judgment of 4 December 1998 in the Fisheries Jurisdiction (Spain v Canada) case was the Court’s power to define the subject of the dispute brought before it by a unilateral application.1 The Court found that to resolve the question of jurisdiction, it first had to define the dispute before it. The essential facts – something distinct from the characterization of the dispute – were not in serious dispute. The account that follows is a shortened version of the facts as given by the Court in paragraphs 13 to 22 of the judgment. On 9 March 1995 Canadian authorities boarded the Spanish ship Estai on the high seas and took her into a Canadian port. There proceedings were initiated against the vessel and her master for offences against Canadian exterritorial legislation designed to exercise control over fishing in an area of the high seas within the competence of the Northwest Atlantic Fisheries Organization (NAFO) Regulatory Area. That area is part of the high seas, being beyond, but contiguous to, the outer limit of Canada’s exclusive economic zone. This legislation related in particular to straddling stocks on the Grand Banks of Newfoundland. The fish in question, mainly Greenland halibut, is a straddling stock as that term is understood in the modern law of the sea.

1

ICJ Rep. 1998, 432 (hereafter Judgment). This is being used here to demonstrate how the problem can arise in any given case. By twelve votes to five the Court found that it had no jurisdiction. Criticism of the Court’s definition of the dispute was expressed by two of the Judges of the majority, Judges Oda and Koroma in their separate opinions. The dissenting opinions, by Judges Weeramantry (Vice-President), Bedjaoui, Ranjeva, Vereschchetin and Judge ad hoc Torres Bernárdez, of course, concentrate on this aspect. The main precedents on which the Court relied for this part of its decision were the Right of Passage (Merits) (Portugal v India) case, ICJ Rep. 1960 at p. 33; Nuclear Tests (Australia v France) case, ICJ Rep. 1974 at 262 (para. 29); Nuclear Tests (New Zealand v France) case, ICJ Rep. 1974 at 466 (para. 30); and others. A similar incident of procedure occurred in the Certain Property case between Liechtenstein and Germany, ICJ Rep. 2005, 6, 17 (paras. 20 to 27). Germany filed a preliminary objection, which the Court dismissed by fifteen votes to one (Judge Fleischhauer), that there was no dispute between the parties.

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Spain filed its application instituting these proceedings on 28 March 1995. It founded the jurisdiction on the declarations made under Article 36, paragraph 2, of the Statute, namely Spain’s declaration of 29 October 1990 (this containing nothing of relevance to this case) and Canada’s declaration of 10 May 1994. That declaration contained a reservation (d ) excluding ‘disputes arising or concerning conservation or management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978,2 and the enforcement of such measures’. That declaration, made together with the Canadian legislation in question, replaced an earlier declaration. Immediately on receipt of the application, Canada informed the Court that the Court ‘manifestly lacks jurisdiction to deal with the Application . . . by reason of paragraph 2 (d ) of the Declaration’ by which Canada accepted the Court’s compulsory jurisdiction.3 At the initial meeting of the parties with the President to settle the procedure in the case, the parties agreed that the question of the Court’s jurisdiction should be separately determined before any proceedings on the merits, and that the applicant would file the first pleading.4 The written and oral pleadings showed the existence of a dispute between the parties on the question what was the dispute which Spain was seeking to bring before the Court. This difference was characterized by the Court in paragraph 23 of its Judgment as follows: Spain has characterized the dispute as one relating to Canada’s lack of entitlement to exercise jurisdiction on the high seas, and the non-opposability of its amended Coastal Fisheries Protection legislation and regulations to third States, including Spain. Spain further maintains that Canada, by its conduct, has violated Spain’s rights under international law and that such violation entitles it to reparation. Canada states that the dispute concerns the adoption of measures for the conservation and management of fisheries stocks with respect to vessels fishing in the NAFO Regulatory Area and their enforcement.

2 3

4

1135 UNTS 369. For the text of the Canadian declaration, see Judgment, para. 14. It is the peremptory character of the word manifestly in this context that distinguishes the Canadian position in this case from that of the United States in the Military and Paramilitary Activities in and against Nicaragua case, where the formula was: firm conviction that the Court was without jurisdiction. ICJ Rep. 1984 at 172 (para. 6). ICJ Rep. 1995, 87. After the first written pleadings Spain asked for a second round, which the Court refused. Ibid. 1998, 58. When, as occasionally has occurred, the applicant files the first pleading in a phase of jurisdiction and admissibility, it is an open question how far this can be assimilated to the formal objection procedure where the respondent initiates the incidental proceedings, usually after the applicant has filed its memorial on the merits. This is not always so, and the Court has accepted that the respondent can file preliminary objections at any time up to the date of the filing of its counter-memorial. Aerial Incident of 3 July 1988 (Iran v U.S.A.) case, ICJ Rep. 1989, 132.

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The Court went on in paragraph 35 to give its own definition of the dispute before it: The specific acts . . . which gave rise to the present dispute are the Canadian activities on the high seas in relation to the pursuit of the Estai, the means used to accomplish its arrest and the fact of its arrest, and the detention of the vessel and arrest of its master, arising from Canada’s amended Coastal Fisheries Protection Act and implementing regulations. The essence of the dispute between the parties is whether these acts violated Spain’s rights under international law and require reparation.

The Court found that the dispute thus defined came within the scope of the Canadian reservation, and that it had no jurisdiction to adjudicate upon it. This judgment has raised in an acute form the significance and the real function of the application, in relation to other relevant documents in the case. The Court decided the issue of its jurisdiction without in any way touching the merits of the case that were never fully set before it. * * * The problem arises from the combination of two separate provisions, one in the Statute and one in the Rules of Court. Article 40 of the Statute, a slightly revised version of the corresponding Article (40) of the Statute of the Permanent Court of International Justice, provides that cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application. ‘In either case the subject of the dispute and the parties shall be indicated’ [dans les deux cas, l’objet du différend et les parties doivent être indiqués].5 For cases introduced by application, Article 38 of the current Rules of Court applies.6 It reads: 1. When proceedings before the Court are instituted by means of an application addressed as specified in Article 40, paragraph 1, of the Statute, the application shall indicate the party making it, the

5

6

1. Lorsqu’une instance est introduite devant la Cour par une requête adressée conforme à l’article 40, paragraphe 1, du Statut, la requête indique la partie requérante, l’Etat contre lequel la

The Statute of the Permanent Court used here the expression contesting parties [ parties en cause], and that the different items must [doivent être] be indicated. The San Francisco Conference dropped contesting parties in both texts, and changed must to shall in the English text as part of its general tidying up of the texts and the improvement of the concordance between them. See United Nations Conference on International Organization, Documents, vol. 13 at 406. These are purely drafting changes. On the drafting of Article 40 of the 1920 Statute, see B. Schenk von Stauffenberg (ed.), Statut et Règlement de la Cour internationale de Justice permanente: Eléments d’Interprétation 292 (1934). In this respect, current Art. 38 is substantially identical with all its predecessors: Art. 35 of the Rules of 1922, Art. 35 of the revised Rules of 1926, Art. 35 of the Rules of 1931, Art. 32 of the Rules of 1936, Art. 32 of the Rules of 1946 and Art. 35 of the Rules of 1972. The development of the Rules is traced in the following pages.

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State against which the claim is brought, and the subject of the dispute.

demande est formée et l’objet du différend.

2. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based.

2. La requête indique autant que possible les moyens de droit sur lesquels le demandeur prétend fonder la compétence de la Cour; elle indique en outre la nature précise de la demande et contient un exposé succinct des faits et moyens sur lesquels cette demande repose.

5. When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case.

5. Lorsque le demandeur entend fonder la compétence de la Cour sur un consentement non encore donné ou manifesté par l’Etat contre lequel la requête est formée, la requête est transmise à cet Etat. Toutefois elle n’est pas inscrite au rôle général de la Cour et aucun acte de procédure n’est effectué tant que l’Etat contre lequel la requête est formée n’a pas accepté la compétence de la Cour aux fins de l’affaire.

There is a marked lack of concordance between the English and French texts of the first two paragraphs. In paragraph 1, the English word indicate is rendered by the French verb indiquer. In the second paragraph, the English specify, seemingly a stronger word, is also twice rendered by the French verb indiquer. If the working language of most of the judges in the previous versions of the Rules was French, by 1978 most of the judges were using English as their working language. Both versions are equally authentic. Paragraph 1 in the main repeats Article 40 of the Statute, with however a slight addition. It includes among the obligatory requirements of the application ‘the State against which the claim is brought’. That is the first reference to ‘claim’ in the provisions governing the Court’s jurisdiction and procedure. More important is paragraph 2, saying what an application should specify ‘as far as possible’. The mention of jurisdiction in the first phrase of paragraph 2 links the manner of seising the Court with the Court’s jurisdiction. Seising the Court is the topic of the second phrase, read in the light of the Statute and paragraph 1. It imports the following elements: claim, its ‘precise nature’, and a ‘succinct statement of the facts and grounds on which that claim is based’. In this context, one can detect a possible inconsistency between ‘precise nature’ and ‘succinct statement’. It is from that possible inconsistency that the problem arises. Should a dispute whether the Court has jurisdiction arise out of that, Article 36, paragraph 6, of the Statute –

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the compétence de la compétence – takes over. The matter shall be decided by the Court. One of Spain’s contentions was that the Canadian reservation foreclosed the Court’s power under Article 36(6). Paragraphs 1 and 2 have a long history, going back to the initial work of preparing the Statute of the Permanent Court in 1920. Paragraph 5 is completely new. However, when read with the reference to jurisdiction in paragraph 2, it preserves the doctrine of the forum prorogatum as it has developed in the Court’s practice, while aiming to deter what some see as abusive use of that doctrine during the 1950s.7 Today these provisions appear normal, mundane, and even obvious. However, that was not so when they were first formulated in the early 1920s. The establishment of a standing international court with universal jurisdiction over States opened the way to the possibility of the unilateral institution of proceedings by one State against another in the Permanent Court of International Justice. That was revolutionary. Nothing like it had been conceived in nineteenth century arbitration practice between States. The nearest to this was in article 4 of the Hague Convention No. XIII concerning the creation of an international prize court.8 This envisaged that in given circumstances a neutral individual could initiate an appeal against the judgment of a belligerent prize court. The Convention said nothing about the contents of a notice of appeal: however, it visualized that the case would continue with phases of written and oral pleadings. That Convention never entered into force, so there are no draft rules of procedure to carry the matter further. On the regional level, the Convention for the Establishment of a Central American Court of Justice of 20 December 19079 contemplated that an interested party could institute proceedings by presenting a ‘complaint’ (requête) which would comprise all the points of fact and law concerning the matter.10

7

8

9

10

See the following cases: Treatment in Hungary of Aircraft and Crews of United States of America (U.S.A. v USSR, U.S.A. v Hungary) (1954), Aerial Incident of 10 March 1953 (U.S.A. v USSR) (1955), Antarctica (U.K. v Argentina, U.K. v Chile) (1955), Aerial Incident of 7 October 1952 (U.S.A. v USSR) (1955), Aerial Incident of 4 September 1954 (U.S.A. v USSR) (1958), Aerial Incident of 7 November 1954 (U.S.A. v USSR) (1959). Except for the Antarctica cases, these were Cold War incidents. 205 Consolidated Treaty Series 381. Nevertheless, international thought was beginning to move away from the strict purely bilateral nature of arbitral proceedings requiring a special agreement to begin them. Article 53, first sentence, of the Hague Convention No. I of 1907 provided that the Permanent Court of Arbitration was competent to settle the ‘Compromis’, if the parties were agreed to have recourse to it for that purpose. Ibid. 233. 206 ibid. 79, 90. Reproduced in Permanent Court of International Justice, Advisory Committee of Jurists, Documents presented to the Committee relating to Existing Plans for the Establishment of a Permanent Court of International Justice, at 141 (1920) (hereafter: Documents). The word requête means: ‘Mode d’instruction en justice de certaines procédures principales

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The fundamental and revolutionary innovation that the possibility of the unilateral institution of judicial proceedings by one State against another introduced into international diplomatic practice called for caution in formulating the relevant texts. This was a major item to be examined both in the diplomatic phase leading to the adoption of the Statute of the Permanent Court in 1920, and the adoption of the first set of Rules of that Court in the Court’s preliminary session of 1922. Revisiting that legislative history is justified not so much because of possible difficulties of interpretation that the relevant texts are sometimes seen to present, but to bring out the problems that those who drafted those texts faced and the solutions they had in mind. * * * The matter was first discussed by the Advisory Committee of Jurists, convened by the Council of the League of Nations in 1920. Its task was to prepare the draft of a statute for the Permanent Court, carrying out Article 14 of the Covenant of the League of Nations. The Legal Secretariat of the League’s Permanent Secretariat presented a memorandum to the Advisory Committee on the different questions arising in connection with the establishment of the Court. It contained a section headed: Is the Court competent when one party alone invokes it?11 This summarized existing instruments and plans, and formed a basis for the Committee’s work. The Committee commenced its discussion of this issue under the rubric of what States may appear before the Court, at its 10th meeting on 26 June 1920.12 The discussion involved the issue of compulsory jurisdiction and the interpretation of different articles of the Covenant of the League of Nations. The Committee’s conclusion, in the article then numbered 38, was that a State wanting to have recourse to the Court should lodge a written application (requête) to the Court. ‘The application shall indicate the subject of the dispute, and name the contesting parties’. The Committee’s commentary on that proposal included the following explanations. ‘This application shall state the point at issue. It was thought that a juridical term should be used as being more exact and more suitable from the point of view of the res judicata, than the term “nature” . . . The demands (conclusions), however, are not yet set out in their final form: a general indication is all that is required, one that is sufficient to define the case and allow the proceedings to be commenced.’13 The ref-

11 12

13

ou incidentes, de certaines voies de recours, caractérisé par remise d’une requête.’ Le Robert électronique s.v. requête (1994). Documents, 3 at 19. Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee, June 16th–July 24th 1920 with Annexes at 219 (1920) (hereafter Proceedings). Proceedings at 734.

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erence there to a ‘general indication’ allowing the case to commence is completed by the more elaborate presentation of the two stage procedure of written and oral pleadings set out in the Statute. In that form, the Committee was not particularly concerned here with whether the Court’s mainline jurisdiction permitted unilateral application. The reason is that the Committee’s whole scheme was based on the assumption that the Court’s mainline jurisdiction would be compulsory deriving from a formal agreement, namely the constituent instrument of the new Court read in light of the Covenant of the League of Nations. Little attention was paid to this aspect in the later phase of the completion and adoption of the Statute. The Report of the Committee of Jurists was immediately forwarded to the Council of the League of Nations. It was introduced by the representative of France, Léon Bourgeois, who included the following passage in his statement: [W]hen it had to be decided whether – as before national courts – a State might summon another State before the Court of International Justice, without previous agreement being necessary, the Jurists did not hesitate to waive the principle generally admitted by which States could not summon each other save under an existing convention between the Parties or without a special compromise being arrived at for the carrying out of a general convention on arbitration. It is in consequence of the general convention, as it appears to them from the interpretation of the principles of the Covenant (Article 13), that the Committee felt they could allow such a compromise to be dispensed with, and that they could admit the right of one of the Parties to summon the other directly before the Court, leaving the Court itself to decide whether the dispute was within its competence. In this case, the actual Statute of the Court would act as the general convention of arbitration. There is no need for me to emphasize the importance of this decision which now comes before the Council.14

At its eighth session in San Sebastian at the end of July the Council decided, after a brief debate, to forward the Jurists’ Report to the Members of the League, and to examine it itself at a later session. The representative of Italy (T. Tittoni) was the only member of the Council to comment on this aspect. He thought that recommending the Jurists’ proposals in their entirety was impossible for the Council. Among his reservations he pointed out that bringing another State before a tribunal without its assent (assentiment) was ‘unprecedented for one State and to condemn it by default; and in practice

14

League of Nations, Permanent Court of International Justice, Documents concerning the action taken by the Council of the League of Nations under Article 14 of the Covenant and the adoption by the Assembly of the Statute of the Permanent Court of International Justice at 24 (hereafter: Action taken).

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such a procedure would only be tolerated by the smaller countries’. However, no further discussion took place on this, and the Council went on with its procedural decision.15 The Council resumed its discussion at its tenth session in Brussels in October 1920, and revised the Jurists’ proposal in one major respect. The Council declined to accept the idea of the compulsory jurisdiction of the new Court flowing directly from its Statute, requiring it in each case to be based on an agreement. No substantive amendment to article 38 was presented, and the Council transmitted the text of that article to the Assembly unchanged. In the First Assembly (1920), the item was allocated to the Third Committee which appointed a Sub-committee to consider in detail the problem before it. That Sub-committee consisted of five former members of the Advisory Committee of Jurists and five members appointed by the Committee. L. Bourgeois was chairman of the Third Committee, and F. Hagerup (Norway) was chairman of the Sub-committee. The Sub-committee examined article 38 at its fifth meeting. There was no substantive discussion of the first paragraph. In the examination of other parts of that draft, however, reference was made to a unilateral application being made by the ‘plaintiff party’. There was mention of the freedom of a State to consent or refuse to go before the Court, which should not be prejudiced. The French representative, H. Fromageot, suggested overcoming this by combining the first two paragraphs of the article into their present wording.16 In the final text the article re-numbered 40 was slightly redrafted without change of substance. No further changes have been made except the minor drafting changes introduced in 1945. This account of the drafting of Article 40 of the Statute shows that the unilateral institution of proceedings by application was accepted without much recorded discussion. The legal requirement to enable a unilateral application to set the judicial process in motion remained the agreement of the parties, and the Statute of the Court did not constitute that agreement. On the other hand, no special form or other requirements of that agreement are laid down. A unilateral application can be no more than an indication of what the case is about, sufficient to describe the case and to allow the proceedings to be commenced. It is left to the formal pleadings to bring out whether the Court has jurisdiction and to develop the appropriate arguments in fact and in law. This approach has coloured the future drafting of the different Rules of Court governing the matter, and the relevant decisions of both the Permanent Court and the present International Court of Justice.

15 16

Action taken, pp. 20–27. Action taken at 134.

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* * * The Preliminary Session of the Permanent Court early in 1922 was the next body to discuss the matter, when the Court adopted the first version of the Rules of Court. Draft rules of court prepared by the Secretariat contained the following article 28: Applications shall contain, in addition to an indication of the subject of the dispute and the names of the contesting parties, a succinct statement of the facts, an indication of the claim, and the name and address of the Claimant’s agent at the seat of the Court.17

The Court did not discuss this draft, preferring to work on a text prepared by its own members. Draft rules of court prepared by the Drafting Committee and based on decisions of the Court contained article 35 in substantially the same terms.18 This was discussed at the Court’s 24th meeting (8 March 1922). The first two parts of the article were accepted without discussion, subject to further examination by the Drafting Committee.19 The revised draft in distr. 87 was unchanged in this respect. However, at the 35th meeting on 20 March, several amendments were presented (not directly relating to the matter under examination here), and the article was adopted subject to further scrutiny by the Drafting Committee.20 During that discussion judges pointed out that it would be impossible for the applicant to state the case in detail in the application, since it would take too much time to collect the necessary documents, and that if applicants were compelled to submit all the details in the document instituting the proceedings, they would often be prevented from coming before the Court. Resulting from this discussion, the Drafting Committee presented a new draft of article 35, which, regarding the topic of this article, read: In all other cases [i.e. cases not brought before the Court by means of a special agreement] in which the Court has jurisdiction, the application shall include, in addition to an indication of the subject of the dispute and the names of the parties concerned, a succinct statement of facts, an indication of the claim, and the address selected at the seat of the Court to which notices and communications are to be sent.21

17

18 19 20 21

PCIJ, Ser. D, Acts and Documents concerning the Organization of the Court, No. 2 Preparation of the Rules of Court. Minutes of Meetings held during the Preliminary Session of the Court, with Annexes (January 30th to March 24th 1922) at 260 (hereafter: D2). D2 at 463. The records refer to this as Distr[ibution] 79. For the initial draft (distr. 71), in identical terms in this respect, see p. 425. There was no discussion of this aspect. D2 at 133. For distr. 87, see D2 at 489, and for the discussion, see p. 198. D2 at 527 (distr. 106).

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This was examined at the 38th meeting on 22 March. It was stressed in this discussion that the agreement of the parties must always form the basis of the Court’s jurisdiction, and not only when the procedure was opened by the filing of a special agreement. The article was amended in other respects and adopted.22 It appeared unchanged as Article 35 in the Rules of 1922. There is one difference between the Rule and Article 40 of the Statute of the Permanent Court. The Statute required an application to indicate ‘the subject of the dispute and the contesting parties’. The Rule as adopted in 1922 required the application to include, in addition, a succinct statement of facts, and an indication of the claim. There had been no public discussion of the word ‘succinct’ which therefore presumably carries its dictionary meaning. On the other hand, the discussion had shown realization that an application could not set out the full case, either in fact or in law, which the applicant wished to bring before the Court. To that extent, therefore, an application would have a tentative character, which, in the nature of things, could spill over to the matter of the Court’s jurisdiction. * * * A slight change was made when the Rules were first revised in 1926.23 The opening phrase of article 35 was amended to read: In all other cases in which the Court has jurisdiction, the application, in addition to the specification of the object of the dispute and the names of the parties concerned, a succinct statement of facts, and an indication of the claim, shall include . . . [particulars regarding the agent and the address for service].

What the Statute called ‘the subject of the dispute’ as something to be ‘indicated’ in an application now became in English an obligatory ‘specification of the object of the dispute’ (although the French text continued to use the verb indiquer). All the contentious cases determined by the Permanent Court up to 1926 (except the Treaty of Neuilly case heard in the Chamber of Summary Procedure) had been introduced by application – Wimbledon, Mavrommatis Palestine Concessions, German Interests in Polish Upper Silesia. Jurisdiction in each of them was based on a treaty that permitted unilateral applications. This gave the Court some experience when it came to re-examine the Rules in 1926. It is interesting to see how in those cases the Permanent Court had dealt with Article 40 of the Statute and Article 35 of its Rules.

22 23

D2 at 222. PCIJ, Ser. D 2, Add., Revision of the Rules of Court (1926) (hereafter: D2 Add.) at pp. 70, 104, 233, 308.

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In the Wimbledon (the Principal Allied Powers v Germany) case the Court pointed out that the conclusions of the application were ‘developed’ in the case (memorial). It went on to set out the facts ‘as stated in the course of the proceedings and in regard to which there appears to be no disagreement’. It based its judgment on those facts. It also noted without comment that during the written proceedings the respective conclusions of the parties were to some extent modified or supplemented, and it gave judgment on those conclusions in their final form.24 In the Mavrommatis Palestine Concessions (Greece v Great Britain) case the application was ‘developed’ in the case filed later. Immediately on receipt of the case the respondent notified the Court that it wished to make a preliminary objection on which the Court duly gave judgment partly upholding the objection and partly dismissing it. The proceedings therefore continued.25 In the German Interests in Polish Upper Silesia (Germany v Poland) case, immediately on receipt of the application the respondent raised objections, which it went on to set out in a document entitled Réponse exceptionnelle, to which the applicant submitted a countercase. In its judgment on the preliminary objections, the Permanent Court observed that its jurisdiction ‘cannot depend solely on the wording of the Application; on the other hand, it cannot be ousted merely because the respondent Party maintains that the rules of law applicable in the case are not among those regarding which the Court’s jurisdiction is recognized’.26 These three cases taken together amply illustrate the tentative and indicative character of an application, both regarding its statement concerning the jurisdiction of the Court and about the claim itself. With that experience, Article 35 was first discussed at the Court’s eighth meeting on 25 June 1926. Several amendments had been submitted, all relating to the problem of the agent and the address for service. The Registrar (Å. Hammarskjöld) explained the words ‘in regard to the case’ in that provision: when a matter was brought before the Court by application, its jurisdiction, being compulsory, also covered possible future disputes between the same parties. It must therefore be specified that the selection of an address only related to subsequent communications in the same case. The discussion was resumed at the 22nd meeting on 21 July. Nothing in the published records shows why the words ‘the specification of ’ were introduced, or who proposed them. When the revised article was finally adopted

24 25 26

PCIJ, Ser. A 1 (1923) at 16, 17, 18. PCIJ, Ser. A 2 (1924) (Preliminary Objection); A5 (1925) (Merits). PCIJ, Ser. A 6 (1925) at 15. The Court also pointed out that the objection had been filed when no document on the merits had been filed and that, in consequence of the objection, the proceedings on the merits were suspended. Ibid. The German counter-case was very long, and this led the Court in the 1936 revision to revise the Rule. See the 1934 Report of the Second Committee in the document cited in note 28 below (D2 Add. 3) at 755, 775.

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at the 31st meeting, the words ‘shall include’ were transposed to their new position to clarify the object of that verb.27 This was retained unchanged in the revised Rules of 1931. * * * In 1936 the article was renumbered as article 32, paragraph 2 of which read: When a case is brought before the Court by means of an application, the application must, as laid down in Article 40, paragraph 1, of the Statute, indicate the party making it, the party against whom the claim is brought and the subject of the dispute. It must also, as far as possible, specify the provision on which the applicant founds the jurisdiction of the Court, state the precise nature of the claim and give a succinct statement of the facts and grounds on which the claim is based, these facts and grounds being developed in the Memorial, to which the evidence will be annexed.

Lorsqu’une affaire est portée devant la Cour par une requête, celle-ci, conformément à l’article 40, alinéa 1, du Statut, doit indiquer la partie requérante et la partie contre laquelle la demande est formée, ainsi que l’objet du différend. Elle contiendra en outre, autant que possible, la mention de la disposition par laquelle le requérant prétend établir la compétence de la Cour; l’indication précise de l’objet de la demande; un exposé succinct des faits et des motifs par lesquelles la demande est prétendu justifiée, sous réserve des développements à fournir dans le mémoire et des preuves qui y seront annexées.

In 1931 the League Assembly adopted a series of amendments to the Statute, and these, in turn, required the Court to undertake a thorough review and revision of the Rules. This occupied the Court up to 1936, when the revised Rules were adopted.28 It became the only thorough examination of the relation of an application to the subsequent proceedings for which a record exists. The matter was first discussed (under Article 35) at the eighth meeting on 23 May 1934. The Co-ordination Commission submitted the following text: When a case is brought before the Court by application, the latter shall indicate the names of the parties concerned, the subject of the dispute, the provisions relied upon submitting the case to the Court and those governing the particular matter in issue; the appli-

27 28

D2 Add. at 233. There are two versions of the records of the Court’s deliberations preceding this revision. The principal record is in PCIJ, Ser. D 2, Add. 3, Elaboration of the Rules of Court of March 11th, 1936 (1936); and Add. 4, Elaboration of the Rules of Court of March 11th, 1936: Extracts from the Minutes of 1934, 1935, 1936, arranged according to the Articles of the Rules (1943). Hereafter D2 Add. 3 and D2 Add. 4 respectively. The systematic account of the development of Art. 32 of the 1936 Rules appears in D2 Add. 4, at pages 67–103. No further references to Add. 4 will be given here. For the Registrar’s Report on the experience of Art. 38, see D2 Add. 3 at 817.

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cation shall also contain, in addition to an indication of the claim, a succinct statement of facts. Evidence in support of the claim shall not be appended to the application.

This text was partly based on the existing Rule and partly on a proposal by Judge Fromageot, who suggested an addition to the effect that the whole application would be subject to future developments as required by the written proceedings in the case. Fromageot explained that he had meant to bring out the special character of the application in comparison with the case (memorial), ‘as revealed by the preparatory deliberations on the existing Statute and Rules’. The application was an act that a government must be able to undertake rapidly, in order to bring the matter speedily before the Court and thus to give effect to its intention of obtaining a judicial settlement of the dispute. The memorial would follow, going into all the necessary details ‘and which constituted the main element of the claim’. Judge Schücking agreed that when the Statute required the application to state the subject of the dispute that might be held to cover a succinct statement of the facts, and likewise a definite claim. It might be difficult, he thought, to explain the subject of the dispute without referring to the facts underlying it, and a claim formulated by one party against the other was an essential element in a dispute. On the other hand he objected to requiring an application to include reference to the provisions conferring jurisdiction on the Court and those governing the particular case. That was to lead into a discussion of the forum prorogatum, not directly relevant here. This discussion was concluded with a series of votes. By the casting vote of the President (Sir Cecil Hurst) the Court considered it desirable to lay down that mention should be made in the application of the treaty provision (or unilateral declaration) in virtue of which the applicant State was arraigning the other State before the Court. The Court then answered in the affirmative the question that it was desirable that mention be made in the application of the grounds alleged in support of the claim. It also decided that the evidence in support of the claim would be annexed to the memorial. On that basis the President read a new text: Whenever a case is brought before the Court by application, the latter shall give the names of the parties concerned, the subject of the dispute, the treaty provision or unilateral declaration pursuant to which the application is made, a succinct statement of the facts and grounds alleged in support of the claim and an indication of the claim itself, all these points to be amplified by argument and evidence, which shall be produced in the Case [Memorial] provided for in . . .

That text led to a renewed discussion. Judge Anzilotti objected that it seemed to make it possible to amend the actual claim in the memorial. Judge van Eysinga thought that the text would enormously enlarge the scope of the application which, by losing its brevity, would also lose its most essential

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characteristic. He also recalled the view of the 1920 Jurists Committee as to the nature of an application (see text to note 13 above). Judge Guerrero (Vice-President) thought that an application should be regarded as an urgent document that should be very brief and even provisional in character. The parties would develop their arguments in the succeeding written and oral phases. The President concluded this part of the discussion by recalling that in accordance with the view of the Jurists Committee, the Court had for a long time allowed submissions to be amended and that there was no intention of departing from that. The Co-ordination Commission would submit a new text.29 The discussion was resumed at the 18th meeting on 1 June. The new text submitted by the Co-ordination Commission read: When a case is brought before the Court by means of an application, the application shall specify, in addition to the name of the applicant and the subject of the dispute, the name of the party against whom the claim is submitted, the provision on which the applicant founds the jurisdiction of the Court and the precise nature of the claim, and give a succinct statement of the facts and grounds on which the claim is based, these facts and grounds being developed and the evidence adduced in the Memorial to which the evidence will be annexed.

The initial discussion was concerned with preserving the forum prorogatum. It was therefore mostly concerned with the mention of the basis of jurisdiction, and with the consequences of the failure of the application to meet the requirements laid down in the Rules (as distinct from those laid down in the Statute). At the end of the discussion Fromageot suggested the wording ‘it must also, as far as possible, specify the provision . . .’ That was adopted unanimously.30 The Drafting Committee then produced a new version of the Rules as adopted in 1934, and in this text the article was renumbered article 33. It was adopted unchanged on the first reading at the 47th meeting on 4 April 1935.31 The second reading took place at the Court’s 20th meeting on 18 February 1936. A brief discussion on the relationship of this provision to Article 40 of the Statute led to the introduction of the specific reference to Article 40, as now found in the final text of Article 38.32 The provision was then adopted as Article 32. * * *

29 30 31 32

D2 D2 D2 D2

Add. Add. Add. Add.

3 at 65–74. For Fromageot’s amendment, see p. 901. 3, pp. 153–160. 3 at 430. For the Drafting Committee’s text, see p. 933 (French only). 3 at 573.

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Following the slight revision of the Statute in 1945, the present Court, in 1946, retained the provision unchanged as Article 32, paragraph 1, of its Rules (unchanged as Article 35, paragraph 1, of the 1972 Rules). It was revised to its present form, set out above, as Article 38 of the Rules of 1978. No explanation appears for the dropping of the phrase regarding the development of the case in the memorial, but the retention of the words ‘as far as possible’ in the opening phrase of this paragraph maintains the tentative and provisional character of an application instituting proceedings. It will be noted that in its current form, the Rule does not mention the provision on which the applicant founds the jurisdiction of the Court. Instead it uses a more professional turn of phrase: ‘the legal grounds upon which the jurisdiction of the Court is said to be based’ [italics added]. The forum prorogatum is further preserved by the new paragraph 5 of Article 38, providing that when the applicant proposes to found the jurisdiction upon a consent yet to be given or manifested by the State against which an application is made, the only action to be taken by the Registrar is to transmit the application to that State.33 * * * The case-law dealing specifically with Article 40 of the Statute and the appropriate provision of the Rules of Court retains as its starting point that the object of a dispute is indicated first in the application and the final submissions of the applicant. The case-law also brings out that several distinct types of issue have arisen, and that serves as a warning against over-simplification of this matter. These include the significance of the indication of the nature of the dispute in the application; the question whether a new basis for the Court’s jurisdiction may be introduced in later pleadings; the adequacy of the application to introduce the desired proceedings; and the issue of whether the pleadings, and more particularly the memorial, have modified the case beyond what is legitimate, given the indicative or tentative character of an application instituting proceedings.

33

There have been eleven instances of this since 1978: in 1994 Yugoslavia attempted to institute proceedings against member States of NATO; an initial application by Hungary against the Czech and Slovak Federal Republic in 1992 preceding the special agreement initiating the GabÌcíkovo-Nagymaros Project case, four applications by Yugoslavia against States members of NATO in 1999, an application by Eritrea against Ethiopia in 1999; and two applications by the Democratic Republic of Congo against Burundi and Rwanda in 1999. In none of these cases was the unilateral invitation to accept the jurisdiction of the Court accepted. In the first of these, the invitation led to a special agreement. In the Legality of the Use of Force cases (except those against Spain and the United States of America), there was another title of jurisdiction and the remaining eight cases proceeded to the next phase. France has twice accepted the jurisdiction in cases introduced this way – Certain Criminal Proceedings in France case, ICJ Rep. 2003 102, 143 and Certain Questions of Mutual Resistance in Criminal Matters case, ICJ, Rep. 2006 15 November. Both those cases are pending.

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The first of these issues, the significance of the indication of the nature of the dispute in the application, first arose in the Permanent Court. One preliminary objection in the Prince von Pless Administration (Preliminary Objections) case between Germany and Poland averred that no dispute existed between the parties. In that connection the Permanent Court said that to determine whether such a difference does or does not exist, it is necessary to determine what the subject of the dispute is. Under Article 40, it is the application that sets out the subject of the dispute. The memorial, although it may elucidate the terms of the application, ‘must not go beyond the limits of the claim as set out’ in the application. Here the application had been followed by what was at the time called the case, which, with some additional documents, referred back to the application but did not, as required by Article 40, formulate the submissions of the applicant government. Dealing with that objection, the Court found that it was closely related to the merits, and joined it to the merits. The proceedings were later discontinued.34 The issue next arose in the Société Commerciale de Belgique (Belgium v Greece) case. Here the application had been followed by a full set of written pleadings and then by two rounds of oral pleading by each side. In those pleadings, the character of the case had become transformed. In its judgment the Court first considered whether the Statute and Rules authorized the parties to transform the character of the case as profoundly as the applicant had done here. In an important statement of principle the Court said: It is to be observed that the liberty accorded to the parties to amend their submissions up to the end of the oral proceedings must be construed reasonably and without infringing the terms of Article 40 of the Statute and Article 32, paragraph 2, of the [1936] Rules which provide that the Application must indicate the subject of the dispute. The Court has not hitherto had occasion to determine the limits of this liberty, but it is clear that the Court cannot, in principle, allow a dispute brought before it by application to be transformed by amendments in the submissions into another dispute which is different in character.

The Court pointed out that a practice of that kind would be calculated to prejudice the interests of third States to which all applications must be communicated so that they could avail themselves of the right of intervention provided for in the Statute. ‘Similarly, a complete change in the basis of the case submitted to the Court might affect the Court’s jurisdiction.’35

34

35

Ser. A/B 52 (1933). For the discontinuance, see A/B 59 (1933). In the Nuclear Tests cases, the Court stated that the application must be the point of reference for the consideration by the Court of the nature and existence of the dispute before it. ICJ Rep. 1974 at 160 (para. 24) and 463 (para. 24). Ser. A/B 78 (1938) at 173. Neither of those reasons is entirely convincing. The jurisdiction of the Court can be perfected by the doctrine of the forum prorogatum, and as seen, one of

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In the present Court, this issue arose in the Phosphate Lands in Nauru (Nauru v Australia) case. Referring to Article 40 of the Statute and Article 38 of the 1978 Rules, the Court stated that ‘These provisions are so essential from the point of view of legal security and the good administration of justice’ that they were already, in substance, part of the text of the Statute of the Permanent Court and of the first Rules of Court adopted in 1922. The judgment goes on to recall the two cases in the Permanent Court. On the facts it found that a claim of Nauru advanced for the first time in the memorial was inadmissible ‘inasmuch as it constitutes, both in form and in substance, a new claim, and the subject of the dispute originally submitted to the Court would be transformed if it entertained that claim’.36 The question whether a new basis of jurisdiction may be introduced in the memorial arose in the Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) (Nicaragua v United States of America) case. On 9 April 1984 the applicant filed an application, founding the jurisdiction on the declarations made under Article 36, paragraphs 2 and 5, of the Statute. On the same date the applicant filed a request for the indication of provisional measures. In correspondence with the Court the respondent expressed its firm conviction that the Court lacked all jurisdiction to deal with this case and requested the removal of the case from the General List. The proceedings on the request for provisional measures had brought out the principal jurisdictional issues raised by the application, and both parties included a submission relating to the Court’s jurisdiction. After the Court had indicated provisional measures, the parties agreed that the written pleadings should first be addressed to the questions of jurisdiction and admissibility, the applicant filing the first pleading. In that pleading the applicant introduced a new title of jurisdiction, namely a bilateral treaty in force between the two countries. It did this as a ‘complementary title of jurisdiction’. The respondent objected to this invocation of a jurisdictional basis not specified in the application. This issue was not argued in the oral proceedings. The applicant’s agent merely explained that in order to respect the Court’s indications regarding the necessity to be as concise as possible, it had omitted from the oral phase a number of arguments that it had developed in the memorial, and it maintained this title as a ‘subsidiary basis’ for the jurisdiction. On this point the Court said:

36

the factors influencing the evolution of the Rules of Court was the desire to preserve that. The doctrine was in fact applied in this case, the respondent continuing to argue on the basis of the amended submissions. As for notice to third States, it is not impossible for an adequate procedure to be devised to ensure this. ICJ Rep. 1992, 240 at 266 (para. 69). For an example of a new claim submitted while the proceedings on the merits were suspended following the filing of preliminary objections, see the Interhandel case, ICJ Rep. 1959, at 20. The Court did not consider it in preliminary objection proceedings.

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The Court considers that the fact that the 1956 Treaty was not invoked in the Application as a title of jurisdiction does not in itself constitute a bar to reliance being placed upon it in the Memorial. Since the Court must always be satisfied that it has jurisdiction before proceeding to examine the merits of a case, it is certainly desirable that “the legal grounds upon which the jurisdiction of the Court is said to be based” should be indicated at an early stage of the proceedings, and Article 38 of the Rules of Court therefore provides for these to be specified “as far as possible” in the application. An additional ground of jurisdiction may however be brought to the Court’s attention later, and the Court may take it into account provided the Applicant makes it clear that it intends to proceed upon that basis . . . and provided also that the result is not to transform the dispute brought before the Court by the application into another dispute which is different in character . . . Both these conditions are satisfied in the present case.

There is, however, an important limitation on this. The Court had found that the declarations accepting the compulsory jurisdiction did not cover all the claims of the application, and for that reason it went on to examine the second title of jurisdiction invoked in the memorial.37 The Court’s order in the Further Provisional Measures phase in the Application of the Genocide Convention (Bosnia & Herzegovina v Yugoslavia) case brings out that in principle this type of action is exceptional. Here the Court intimated that the applicant could not, simply by including in the application a reservation of the right to amend it, confer on itself a right to invoke additional grounds of jurisdiction not referred to in the application, and that the Court would if necessary at an appropriate stage determine the validity of any such claim. For the purposes of provisional measures the Court found that the additional titles of jurisdiction sought to be brought in could not be found to constitute prima facie titles of jurisdiction sufficient to support the indication of provisional measures.38 The present Court has had three instances of preliminary objections alleging non-compliance with Article 40 of the Statute and the applicable provision of the Rules. The first case of this kind was the Northern Cameroons (Cameroon v United Kingdom) case. Here the formal preliminary objection was included in a counter-memorial that also pleaded to the merits. The Court made the following comment:

37 38

ICJ Rep. 1984, 169 (Provisional Measures), 209 (Procedure), 392 (Jurisdiction and Admissibility) at 426 (para. 80); ibid. 1986, 14 (Merits) at 136 (para. 271). ICJ Rep. 1993, at 338 (para. 28). In the judgment on preliminary objections the Court rejected claims based on those additional titles of jurisdiction. Reports, 1996–II, 595 at 621 (para. 41). In two of the Legality of the Use of Force cases (Yugoslavia v Belgium and Yugoslavia v Netherlands) the applicant sought to introduce new titles of jurisdiction during the second round of speeches in the provisional measures phase. The Court refused to take the new titles of jurisdiction into consideration at that stage. Orders of 2 June 1999, para. 42 in each of those cases. ICJ Rep. 1999 124, 542.

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The Court notes that whilst under Article 40 of its Statute the subject of a dispute brought before the Court shall be indicated, Article 32 (2) of the [1946] Rules of Court requires the Applicant “as far as possible” to do certain things. These words apply not only to specifying the provision on which the Applicant founds the jurisdiction of the Court, but also to stating the precise nature of the claim and giving a succinct statement of the facts and grounds on which the claim is based. In the view of the Court the Applicant has sufficiently complied with the provisions of Article 32 (2) of the Rules and the preliminary objection based upon non-compliance therewith is accordingly without substance.39

The next case of this character was the Border and Transborder Armed Actions (Nicaragua v Honduras) case. Here, in reply to the formal notification of the filing of the application the respondent informed the Court that in its view the Court had no jurisdiction over the dispute, and expressed the hope that the Court would confine the first written pleadings to the questions of jurisdiction and admissibility. The parties agreed to this, the respondent to file the first written pleading. In its judgment the Court recalled the applicant’s claims as stated in the application. On an objection that the application was vague and the allegations contained in it not properly particularized, the Court said: Article 40, paragraph 1, of the Statute requires that an Application indicate “the subject of the dispute”. Under the [1978] Rules of Court, an Application is required to specify “the precise nature of the claim”, and in support thereof to give no more than “a succinct statement of the facts and grounds on which the claim is based” (Art. 38, para. 2). The Court considers that the Nicaraguan Application in the present case, summarized . . . above, meets these requirements.40

The third case in this series is Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) case. The written pleadings were filed in the normal order, Nigeria filing preliminary objections under Article 79 of the (1978) Rules. While the written proceedings were in progress, the applicant filed a request for the indication of provisional measures, on which the Court took the necessary action. One objection was to the effect that the application (and as far as relevant, an amendment to the application) and the memorial did not meet the required standards of adequacy as to the facts on which they were based, including the dates, circumstances and precise locations of the alleged incursions and incidents by Nigerian State organs. Those deficiencies made it impossible for Nigeria to have the knowledge, to

39 40

ICJ Rep. 1963, 15 at p. 28. On other grounds the Court found that it was without jurisdiction in this case. ICJ Rep. 1988, at 92 (para. 56). The case was discontinued. Ibid. 1992, at 222.

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which it was entitled, of the circumstances said by the applicant to result in Nigeria’s international responsibility and consequential obligation to make reparation, and for the Court to carry out a fair and effective judicial examination of, or make a judicial determination on, the issues of State responsibility and reparation raised by Cameroon. On that ground, Nigeria asked for the application to be declared inadmissible. This was the sixth of a series of preliminary objections. In its judgment, the Court said: The decision on Nigeria’s sixth preliminary objection hinges upon the question of whether the requirements which an application must meet and which are set out in Article 38, paragraph 2, of the Rules of Court are met in the present instance. The requirements set out in Article 38, paragraph 2, are that the Application shall “specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based”. The Court notes that “succinct”, in the ordinary meaning to be given to this term, does not mean “complete” and neither the context in which the term is used in Article 38, paragraph 2, of the Rules of Court nor the object and purpose of that provision indicate that it should be interpreted in that way. Article 38, paragraph 2, does therefore not preclude later additions to the statement of facts and grounds on which a claim is based. Nor does Article 38, paragraph 2, provide that the latitude of an applicant State, in developing what it has said in its application is strictly limited, as suggested by Nigeria. That conclusion cannot be inferred from the term “succinct”; nor can it be drawn from the Court’s pronouncements on the importance of the point of time of the submission of the application as the critical date for the determination of its admissibility; these pronouncements do not refer to the content of applications . . . Nor would so narrow an interpretation correspond to the finding of the Court that [here follows a citation from the judgment in the Northern Cameroons case quoted above]. The Court also recalls that it has become an established practice for States submitting an application to the Court to reserve the right to present additional facts and legal considerations. The limit of the freedom to present such facts and considerations is “that the result is not to transform the dispute brought before the Court by the application into another dispute which is different in character.” . . . In this case Cameroon has not so transformed the dispute. As regards the meaning to be given to the term “succinct”, the Court would simply note that Cameroon’s Application contains a sufficiently precise statement of the facts and grounds on which the Applicant bases its claim. That statement fulfils the conditions laid down in Article 38, paragraph 2, and the Application is accordingly admissible. This observation does not, however, prejudge the question whether, taking account of the information submitted to the Court, the facts alleged by the Applicant are established or not, and whether the grounds it relies upon are founded or not. Those questions belong to the merits and may not be prejudged in this phase of the proceedings.

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The Court concluded its discussion of this objection by observing that it could not agree that the lack of sufficient clarity and completeness in the application and its inadequate character, as perceived by Nigeria, made it impossible for Nigeria to respond effectively to the allegations that had been presented or made it impossible for the Court ultimately to make a fair and effective determination in light of the arguments and evidence before it.41 This is the fullest discussion to date of the requirements of an application, and of the relation between the obligatory contents laid down in the Statute and the ‘as far as possible’ requirements laid down in the Rules. It effectively summarizes and consolidates the law on this aspect of the Court’s procedure. One further indication has to be mentioned here. In the two Nuclear Tests cases the Court proprio motu raised the question whether it could deal with the cases. In its judgments it included the following passage: [T]he Court must ascertain the true object and purpose of the claim and in doing so it cannot confine itself to the ordinary meaning of the words used; it must take into account the Application as a whole, the arguments of the Applicant before the Court, the diplomatic changes brought to the Court’s attention, and public statements made on behalf of the applicant Government. If these clearly circumscribe the object of the claim, the interpretation of the submissions must clearly be affected.42

That is the background against which the Court’s decision in the Fisheries Jurisdiction (Spain v Canada) case can be evaluated. There the Court started by reaffirming that there is no doubt that it is for the applicant, in its application, to present to the Court the dispute with which it wishes to seise the Court and to set out the claims that it is submitting to it. To identify its task in any proceedings by one State against another, the Court must begin by examining the application. If uncertainties or disagreements arise concerning the real subject of the dispute or the exact nature of the claims, the Court cannot be restricted to a consideration of the terms of the application alone or, more generally, can it regard itself as bound by the claims of the applicant. ‘It is for the Court itself, while giving particular attention to the formulation of the dispute by the Applicant, to determine on an objective

41

42

ICJ Rep., 1998 at 275, 318 (paras. 98–101). The Court rejected that objection by fifteen votes to two, Judge Koroma and Judge ad hoc Ajibola dissenting. For the indication of provisional measures, see Reports, 1996 at 13. On 29 October 1998 Nigeria filed a request for an interpretation of this part of the judgment. In its judgment the Court declared the request inadmissible. Ibid. 1999, 31. Nuclear Tests (Australia v France) case, ICJ Rep., 1974 at 263 (para. 30); (New Zealand v France) case, ibid. 467 (para. 31). Affirmed in Request for an Examination of the Situation in accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) case. ICJ Rep. 1995 at 304 (para. 56).

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basis the dispute dividing the parties, by examining the position of both parties.’ The Court’s jurisprudence shows that it will not confine itself to the formulation by the applicant when determining the subject of the dispute. It will itself determine the real dispute submitted to it, basing itself not only on the application and final submissions, but on diplomatic exchanges, public statements and other pertinent evidence. In deciding the preliminary issue of jurisdiction here, ‘the Court will ascertain the dispute between Spain and Canada, taking account of Spain’s Application as well as the various written and oral pleadings placed before the Court by the Parties. The filing of the Application was occasioned by specific acts of Canada which Spain contends violated its rights under international law’.43 * * * There is nothing extraordinary about the cases introduced by application in the Permanent Court. The experience then gained served to consolidate this new international practice and to normalize it. With the present Court, however, many important developments in the use of this procedure have taken place. These include: • Action to comply with a recommendation of the Security Council under Article 36, paragraph 3, of the Charter, jurisdiction being perfected by the acceptance of the respondent.44 • The institution of proceedings by application where the title of jurisdiction is a framework agreement that recognizes the existence of a dispute but does not define it.45 • The urgent seising of the Court to provide a basis for a request for provisional measures to prevent possible action being taken against the applicant by the respondent or to foreclose action by the respondent.46 • The urgent seising of the Court to provide a basis for a request for provisional measures designed to obtain a reinterpretation of a resolution of the Security Council assertedly unfavourable to the applicant.47

43 44

45

46

47

Judgment, paras. 29 ff. Corfu Channel (United Kingdom v Albania) case (1947). The application was subsequently replaced by the special agreement which incorporated a possible counter-claim by the respondent. The Asylum case (Colombia v Peru) case (1949); the Arbitral Award of the King of Spain (Honduras v Nicaragua) case (1958); and above all the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case (1991). Military and Paramilitary Activities in and against Nicaragua case (1984); the Great Belt (Finland v Denmark) case (1991); Application of the 1971 Montreal Convention (Libya v U.K., Libya v U.S.A.) cases (1992). Application of the Genocide Convention (Bosnia & Herzegovina v. Yugoslavia) case (1993).

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• Urgent seising of the Court in a case of diplomatic protection, to avoid enforcement of the death penalty against a national of the applicant State.48 • To institute forum prorogatum proceedings when there is no title of jurisdiction, the respondent being invited to confer jurisdiction on the Court for that particular case.49 Two sets of rulings by the present Court have given impetus to the application as an instrument instituting proceedings, one general, and one specifically relating to applications introducing proceedings where the jurisdiction rests on Article 36, paragraph 2 of the Statute. The first set of rulings lay down that there is no abuse of rights in filing an application without giving any prior notice to the respondent, and, in parallel, that there is no rule of general international law requiring the unilateral introduction of proceedings to be preceded by diplomatic negotiations. The law on this aspect has been summarized in the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) case: The Court . . . notes that although the principle of good faith is “one of the basic principles governing the creation and performance of legal obligations . . . it is not in itself a source of obligation where none would otherwise exist” . . . There is no specific obligation in international law for States to inform other States party to the Statute that they intend to subscribe or have subscribed to the Optional Clause. Consequently, Cameroon was not bound to inform Nigeria that it intended to subscribe or had subscribed to the Optional Clause . . . Cameroon was not bound to inform Nigeria of its intention to bring proceedings before the Court. In the absence of any such obligations and of any infringement of Nigeria’s corresponding rights, Nigeria may not justifiably rely upon the principle of good faith in support of its [objection to the jurisdiction].50

This is closely related to the Court’s doctrine on the entry into force and immediate effect of the deposit of a declaration accepting the jurisdiction under Article 36, paragraph 2. That ruling was first made in the Right of Passage (Preliminary Objections) case. Basing itself on the wording of Article 36, paragraph 4, of the Statute, a new provision inserted in 1945, the Court held that a declaration enters into force immediately on its deposit with the Secretary-General of the United Nations, and that proceedings can from that

48

49 50

Vienna Convention on Consular Relations (Provisional Measures) (Paraguay v U.S.A.) case, ICJ Rep. 1998 at 248; discontinued at p. 246. LaGrand (Provisional Measures) (Germany v U.S.A.) case, ibid. 1999 at 9. See notes 7 and 33 above. Judgment (cited) at 297 (para. 39). The initial quotation is from the Border and Transborder Armed Actions case, note 40 above at 105 (para. 94).

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moment be brought against any other State that is a party to the Optional Clause even before that State knew, or could have known, that the applicant State had deposited a declaration or what it contained. ‘A State accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance.’51 Although made in connection with declarations accepting the jurisdiction under Article 36, paragraph 2, of the Statute, there is no reason why the same rule should not apply where the jurisdiction is based on a treaty under Article 36, paragraph 1. Jurisdiction will exist as between the parties to the treaty as from the moment the treaty enters into force between them. This follows from the general law of treaties.52 * * * The legislative history of the relevant provisions of the Statute and the caselaw of the Permanent Court of International Justice and of the present Court show that both Courts repeatedly have closely analysed the dispute before them and based their decisions on their own appreciation of what it was that they had to decide. Furthermore, this appears as an inherent power of any international court, which probably would be unable to function properly were it otherwise. Usually, when this kind of issue has arisen, the Court had before it some account of the merits, whether in a provisional form as in requests for the indication of provisional measures of protection, or after formal preliminary objection proceedings, or even both. The significance of the Spain v. Canada case is that this was the first occasion when the respondent instantly and peremptorily challenged the definition of the dispute furnished by the applicant in the application instituting the proceedings, and the Court dealt with the issue without having a memorial on the facts before it. The unilateral application instituting proceedings has now become a powerful instrument with many spheres of operation. Beginning proceedings by filing an application brings two factors into play, requiring the Court to effect any reconciliation between them should that become necessary. Since an application is an instrument designed to enable the proceedings to commence, and little more than that, much that it contains is tentative, indica-

51

52

Right of Passage (Preliminary Objections) case, ICJ Rep. 1957 at 146; deliberately upheld in the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) case, cited in previous note, at para. 39. Most multilateral treaties provide for a time lag between the date on which the required number of parties is reached and the entry into force of the treaty or between the later deposit of an instrument of accession and the entry into force of the treaty for that State. For the entry into force of a treaty, cf. the Vienna Convention on the Law of Treaties, 1969, art. 24. 1155 UNTS 331.

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tive, and is written ‘as far as possible’. There are circumstances in which the application is prepared and filed as a matter of urgency, without full exposition of the elements that it is required to indicate or specify, and merely gives the respondent (and the Court) an idea of what the case is about. It is unilateral, and indeed technically it is not even regarded as a document of the proceedings. It is given wide circulation, in fact it is virtually in the public domain from the moment it is filed. The second element is the evolution of the case through the written proceedings. The applicant may, in its first written pleading, amplify the unilateral indication of the dispute of the application. However, often only after the issues have been joined by the respondent’s first pleading can the real nature of the dispute be clearly seen. The parties can come to agree on what are the real issues for decision to bring the dispute to an end. However, if they cannot do this, then the Court has to step in and decide itself what are the real issues calling for its decision. The nature of an application, and its relation to the proceedings that follow, make this an essential and inherent power of the Court.53 A fortiori is this so when the parties agree that the first written pleadings should address issues of jurisdiction and admissibility, especially when they also agree that the applicant, not the respondent, should file the first pleading.

53

Circumstances can arise when the Court has to examine the nature of a dispute submitted to it by the filing of a special agreement. For example, in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) case, the Chamber that decided the case found it necessary to interpret its task under the special agreement. ICJ Rep. 1992, at p. 570 (para. 355). In the Territorial Dispute between Libya and Chad the parties disagreed as to the nature of the dispute. The Court found that it could answer the question put to it without determining that point. Ibid. 1994 at 14 (para. 18) and p. 38 (para. 75). Since there the Court was interpreting and applying the special agreement, it is not clear why it cited this case in the Spain v. Canada case (at para. 29). In the Kasikili/Sedudu Island case, the Court made its own determination of what it termed ‘the real dispute between the Parties’ and proceeded to decide the dispute on that basis. ICJ Rep. 1999–II, 1045, 1062 (para. 27).

11 THE GENERAL LIST OF THE INTERNATIONAL COURT OF JUSTICE

The question of the General List of the International Court of Justice, not as a technical administrative matter but as a legal issue, has recently come into prominence. Its development is examined in this article.1 I There is no mention of the General List in the Statute of the Court. Its legal significance is partly the outcome of successive versions of the Rules of Court, and partly originated in State practice in connection with the discontinuance of a case. More recently the presence of an ‘unwilling respondent’ in a case has added a new dimension in connection with objections to the admissibility of an application or possibly to the jurisdiction of the Court. The original organization of the Permanent Court as expressed in the Rules of 1922 was that the Court would meet in sessions each year, and that the Registry would maintain separate lists of contentious and advisory cases submitted to the Court, together with lists for each session (Rules of 1922/ 1926/1931, Article 23). This required the Registrar to maintain the archives in accordance with the arrangements laid down; and on the matter examined here required each case to have a ‘file number’ (numéro de dossier). Other provisions dealt with the session lists and related matters. The concept of the General List was introduced in Article 38 of the Rules of 1931. This required that:

1

The Rules of Court to which reference is made are as follows: Permanent Court of International Justice [PCIJ] – Rules of 24 March 1922, International Intermediary Institute, The Hague (1922); Rules of 31 July 1926, PCIJ, Ser. D 1 (1926); Rules of 21 February 1931, PCIJ, Ser. D 1 (2nd edition); Rules of 11 March 1936, PCIJ, Ser. D 1 (4th edition, 1940): International Court of Justice [ICJ] – Rules of 6 May 1946, ICJ, Acts and Documents concerning the Organization of the Court, No. 1 (2nd edition, 1947); Rules of 10 May 1972, ibid., No. 3 (1977); Rules of 14 April 1978, ibid., No. 5 (1989). The 1946, 1972 and 1978 Rules of the International Court of Justice are reproduced in my compilation Documents on the International Court of Justice, First Bilingual Edition (1991).

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The general list of cases submitted to the Court for decision or for advisory opinion shall be prepared and kept up to date by the Registrar on the instructions of and subject to the authority of the President. Cases shall be entered in the list and numbered successively according to the date of the receipt of the document submitting the case to the Court.

This was introduced on the proposal of Judge Fromageot who explained that his object in proposing the creation of a General List was to prevent it being possible to give one case preference over another which had been entered higher in the List.2 The General List existed alongside the session lists. No further consequences were included in the 1931 revision of the Rules. In 1936, Article 25 of the new Rules introduced the concept of the judicial year (l’année judiciaire) in place of sessions. Article 38 of the 1931 Rules was retained as Article 20, with drafting amendments. The session lists were abolished, and in their place Article 20, paragraph 2, set out 20 headings which the General List was to contain. Heading III was the date of registration; heading XVII was the result (nature and date), and heading XIX removal from list (cause and date). Paragraph 3 required the General List to contain a space for notes, if any, and spaces for the inscription, above the initials of the President and of the Registrar, of the dates of the entry of the case, of its result, or of its removal from the list, as the case may be. At the same time, one of the functions of the General List was indicated in Article 46: 1. Subject to the priority resulting from Article 61 of the present Rules [relating to provisional measures of protection], cases submitted to the Court will be taken in the order in which they become ready for hearing. When several cases are ready for hearing, the order in which they shall be taken is determined by the position which they occupy in the General List. 2. Nevertheless, the Court may, in special circumstances, decide to take a case in priority to other cases which are ready for hearing, and which precede it in the General List. 3. If the parties to a case which is ready for hearing are agreed in asking for the case to be put after other cases which are ready for hearing and which follow in the General List, the President may grant an adjournment: if the parties are not in agreement, the President decides whether or not to submit the question to the Court.

This arrangement was retained as Articles 20 and 46 of the Rules of 1946 and Articles 20 and 50 of the Rules of 1972. In 1978, however, the Rules were changed completely. The previous Article 20 was replaced by Article 16, paragraph 1, which sets out in general terms the functions of the Registrar. Subparagraph 1(b) requires the Registrar to

2

PCIJ, Ser. D 2, Addendum 2 96 (1931).

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keep, under the supervision of the President, and in such form as may be laid down by the Court, a General List of all cases, entered and numbered in the order in which the documents instituting proceedings or requesting an advisory opinion are received in the Registry. This replaces the 20 headings of the previous Rules. That provision has to be read in conjunction with Article 14 of the Instructions for the Registry.3 By this, . . . Any failure to conform to the directions of the Statute or Rules which may be noted by him [the Registrar] in a document instituting proceedings or in a pleading will be brought by him to the notice of the party or person from whom, the document emanates.

This is an independent and autonomous power of the Registrar from which there is no appeal, and his decision holds until the Court takes the matter under its consideration. So far as is known, the Registrar has used this power only once to refuse to accept a document purporting to be an application instituting proceedings. In a letter of 18 February 1994 he informed the Government of Yugoslavia that In exercise of my duty under the Statute and Rules of Court, I have carefully examined [a communication incorporating an application instituting proceedings against the member States of NATO] from the standpoint of formal compliance with the procedural requirements laid down by those texts. With regret I have to inform you that I am unable to regard your communication as constituting an “application” justifying action by me under Article 40 of the Statute and Article 38 of the Rules of Court . . . I observe that no indication at all is given in your communication of any legal grounds of jurisdiction whatever; nor is any claim presented, as distinct from a request for the indication of provisional measures. Nor can the communication be accepted as a request, formally valid, for the indication of provisional measures . . . [N]o case exists until an application, formally valid, has been filed instituting proceedings.

He therefore did not propose taking any further action on that communication.4 At the same time, former Article 46 was completely recast. The date for oral proceedings is to be fixed by the Court or by the President if the Court is not sitting; and the Court is to have regard for the priority required for cases of provisional measures of protection and to any other special circumstances, including the urgency of a particular case. There is no provision in the 1978 Rules dealing specifically with the contingency that several cases

3

4

Yearbook of the International Court of Justice 1946–1947, p. 66, amended ibid. 1949–1950, p. 74. Reproduced in my compilation of Documents, note 1 above, at 453. Art. 16 of the Instructions for the Registry of the Permanent Court were identical in this respect. See M.O. Hudson, The Permanent Court of International Justice 1922–1942 at 762 (1943). M. Bulaji,c, Alternative Yugoslavia Tribunal 209 (1995).

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should be ready for hearing at the same time. Under general principle this should probably be a matter for the full Court, the decision to be taken in light not only of the dates upon which the different cases became ready for hearing, but also of their places in the General List, and subject to the priorities to be given to other cases under the Statute or other Rules of Court. There is no explanation why the Court cancelled the objective criterion for the taking of cases when more than one is ready for hearing at a given moment.5 The Rules of Court are supplemented by the Instructions for the Registry. For present purpose it is sufficient to refer to the current Instructions, those issued in 1946 and still in force. Article 6 requires the Registrar in accordance with the relevant provision of the Rules to prepare and keep up to date the General List of cases submitted to the Court for judgment or advisory opinion. Article 46, on the archives, prescribes in paragraph 3 that the archives will contain the General List of cases, and that in case of doubt the Registrar will decide in which file a document shall be placed. That is all. II With regard to the termination of proceedings, in the Rules of 1936 Article 68, dealing with agreement to discontinue the proceedings, provides that the order recording the conclusion of the settlement or the discontinuance of the proceedings ‘will prescribe the removal of the case from the list’. A similar provision appears in Article 69, paragraph 1, on the unilateral discontinuance of a case instituted by application. This has been repeated in Articles 68 and 69 of the Rules of 1946, Articles 73 and 74 of the Rules of 1972, and Articles 88 and 89 of the Rules of 1978. It seems that the origin of this addition was a remark by Judge Fromageot, to the effect that there was no indication of how the discontinuance (in either case) was to be done. The record goes on to report his remark that this was normally done by way of order. ‘It would be a good thing to say so in the Rules, adding that the Court would order the case to be struck out of the

5

This contingency occurred in January 1996. On 31 December 1995 the following cases were ready for hearing, their position in the General List and the date on which they became ready for hearing being indicated: Aerial Incident of 3 July 1999 case (No. 79, 9 September 1992 – hearings had been fixed for this case in September 1994, but were suspended at the request of both parties in their attempt to settle the case); Oil Platforms case (No. 90, 1 July 1994); GabÌcíkovo-Nagymaros Project case (No. 92, 20 June 1995); Application of Genocide Convention case (No. 91, 14 November 1995); Application of the Montreal Convention of 1971 cases (Nos. 88, 89, 22 December 1995) – an unprecedented pile-up. For comment on this, see the judgment on the merits in the Application of the Genocide Convention case, ICJ Rep. 26 February 2007, para. 38.

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list.’6 A vote was taken on the question of the removal of the case from the list, and the proposal was adopted unanimously.7 No further explanation was given for this addition. In fact that had been the practice of the Court in all cases of agreed termination or unilateral discontinuance of a case, with one exception.8 The first instance of this was when the applicant (Belgium) requested the removal of the case from the List when it discontinued the Denunciation of the Treaty of 2 November 1865 between China and Belgium case, and the order of the Permanent Court included an appropriate operative paragraph.9 The Permanent Court included such a paragraph even when it had not been directly requested.10 III The versions of the Rules of 1936/1946/1972 do nothing to affect the administrative quality of the General List or its function in relation to the determination of the order in which cases ready for hearing shall be taken. They establish that a folio is opened with the receipt in the Registry of a document instituting proceedings, and is closed either by the termination of the proceedings through a judgment or an advisory opinion, or by an order in an instance of termination by agreement or unilateral discontinuance. While the opening of the folio is a matter for the Registrar, acting under the authority of the President (and subject to the Registrar’s power under the Instructions for the Registry), its closing is always a matter for the Court or, in the case of discontinuance, its President if the Court is not sitting. No question about the entering of a case in the General List appears to have arisen until 1973. In the 1950s eight cases were introduced by appli6 7 8

9

10

PCIJ, Ser. D 2, Add.3, p. 313 (meeting of 22 February 1935). Ibid. 317. The exception was the first order terminating a case by agreement, in the Chorzów Factory case, PCIJ, Ser. A 18/19 at 13. Here the Court simply declared that the proceedings ‘are terminated’. That this differentiation was deliberate in a case terminated by agreement is demonstrated by the fact that this order was made on the same day – 25 May 1929 – as the order in the Belgium-China case mentioned in the next note. PCIJ, Ser. A 18 (1929). Followed by the Permanent Court at the request of one or both parties in Delimitation of the Territorial Waters between the Island of Castellorizo and the Coasts of Anatolia case, PCIJ, Ser. A/B 51 (1933); Appeals from Certain Judgments of the HungarianCzechoslovak Mixed Arbitral Tribunal case. PCIJ, Ser. A/B 56 (1933). Polish Agrarian Reform case, PCIJ, Ser. A/B 60 (1933). In the Borchgrave case, under the Rules of 1936, the Court included in its recitals a statement to the effect that under Art. 68 of the Rules, if the parties inform the Court in writing that they are not going on with the proceedings, ‘it is for the Court to make an order officially recording the discontinuance of the case and prescribing the removal of the case from the list’. This was followed by a formal operative clause ordering the case to be removed from the Court’s list. PCIJ, Ser. A/B 78 (1938).

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cation on the basis of the so-called forum prorogatum doctrine. By that, in the application instituting the proceedings the respondent is invited to accept the jurisdiction of the Court for the particular case. If the respondent refuses, that is the end of the matter. Those applications were entered in the General List like all other instruments instituting proceedings, and when the invitations to accept the jurisdiction were refused, the Court made orders directing the removal of the cases from the General List.11 The first indication that an entry in the General List could play a legal role in a case occurred in 1973. On receipt of the applications instituting the proceedings in the Nuclear Tests cases of that year (heard under the Rules of 1972, and duly entered in the List), the unwilling respondent, France, contesting the jurisdiction of the Court, informed the Court that in its view the Court was manifestly not competent in the case, that it could not accept the Court’s jurisdiction, and that accordingly the French Government did not intend to appoint an agent. France requested the Court to remove the Case from its list. Opening the hearings on the request for the indication of provisional measures of protection, the President (Lachs) stated that the French request to remove the case from the List had been duly noted ‘and the Court will deal with it in due course, in application of Article 36, paragraph 6, of the Statute’.12 In its orders indicating provisional measures of protection the Court first found that the material submitted by the applicants appeared prima facie to afford a basis on which the Court’s jurisdiction might be founded, and that accordingly the Court would proceed to examine the requests for the indication of provisional measures of protection. It went on to decide that the circumstances of the case did not permit the Court to accede ‘at the present stage of the proceedings’ to the French request that the case be removed from the list.13 None of the individual (separate or dissenting) opinions attached to those orders refer to this aspect. In those orders, the Court required the issues of jurisdiction and admissibility to be pleaded first. In its 1974 judgments, the Court referred to the President’s statement when opening the hearings in the provisional measures phase, and to the cited paragraphs of those orders, and concluded: ‘Having now had the opportunity of examining the request in the light of the sub-

11

12

13

Treatment in Hungary of Aircraft and Crew of United States of America (U.S.A. v Hungary; U.S.A. v USSR), ICJ Rep. 1954, 99 and 103; Aerial Incident of 10 March 1953 (U.S.A. v USSR), 1956 ibid., 5; Aerial Incident of 7 October 1952 (U.S.A. v USSR), ibid. 9; Antarctica (U.K. v Argentina; U.K. v Chile), ibid., 12 and 15; Aerial Incident of 4 September 1954 (U.S.A. v USSR), 1958 ibid., 158; Aerial Incident of 7 November 1954 (U.S.A. v USSR), 1959 ibid. 276. Nuclear Tests cases, I Pleadings 165 (Australia) and II ibid. 99 (New Zealand). Recited in the judgments in these case, ICJ Rep. 1974. at 257 (para. 14) (Australia) and 460 (para. 14) (New Zealand). ICJ Rep. 1973 at 102 (para. 17), 105 (para. 32) and 138 (para. 18), 141 (para. 33).

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sequent proceedings, the Court finds that the present case is not one in which the procedure of summary removal from the list would be appropriate’.14 This statement does not throw much light on when it would be appropriate for the Court summarily to remove a case from the list: the only instances of this in the past had been cases in which there was manifestly no jurisdiction, which was not the situation here. As in the case of the orders indicating provisional measures, none of the individual (separate or dissenting) opinions joined to the judgment in the next phase deal with this aspect, except for a glancing reference to it by Judge ad hoc Barwick in his dissent.15 Two years later, in the Aegean Sea Continental Shelf case, Turkey, the unwilling respondent, asked the Court to remove the case from the list on the ground that there was no jurisdiction. As before, in the phase of provisional measures of protection the Court stated that having regard to what had proceeded in the order of 11 September 1976, ‘the Court cannot, at the present stage of the proceedings, accede to the request of the Turkish Government . . . that the case be removed from the list’.16 Judge Tarazi, in his separate opinion, gave an interpretation of that request: ‘[it] denied the Court’s right – he said – to pronounce upon the Application by Greece or even to discuss it’. Judge Tarazi continued with the following explanation of the Court’s decision: The request that the case be removed from the Court’s list could not be acceded to in the present circumstances. According to the consistent jurisprudence of the Court, such removal is decided only in the event that the applicant State does not invoke in support of its Application any legal instrument conferring jurisdiction on the Court but contents itself with leaving the respondent State the possibility of expressing its assent to the proceedings. If, on the other hand, the respondent State responds in the negative, by indicating its refusal to recognize the Court’s jurisdiction, the Court orders the case to be removed from its list. Such in my view are the significance and legal scope of the Orders [referred to in note 11 above]. It is clear that this situation is different in respect of the present case. That is why the Court has not decided to remove it from its list and has reserved its position on the question of jurisdiction for later consideration.17

Turkey also introduced a more openly political element in an informal communication to the Court in connection with that case. In one of its communications to Greece, the Turkish Government stated that the discontinuance 14 15

16 17

ICJ Rep. 1974, at 257 (para. 14) (Australia) and 460 (para. 14) (New Zealand). ICJ Rep. 1974, at 400. In addition, see Sir Garfield’s very personal account of his participation in those cases, in his A Radical Tory: Garfield Barwick’s Reflections and Recollections 254 (1995). ICJ Rep. 1976, at 13 (para. 46). ICJ Rep. 1976, at 31 and 32.

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of the proceedings and the removal of the case from the Court’s list would be more conducive to the creation of a favourable political climate for an agreed settlement. The Court interpreted this as suggesting that the Court ought not to proceed with the case while the parties continue to negotiate, and that the existence of active negotiations in progress constitutes an impediment to the Court’s exercise of jurisdiction in the present case.18 This is a statement of principle which the Court limited to ‘the present case’, in which it found that it was without jurisdiction. In 1978 the Court introduced a new provision into the Rules of Court. Dealing with the institution of proceedings by unilateral application, Article 38, paragraph 5, reads: When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It [the application] shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case.

By including this in the revised Rules, the Court adopted Judge Tarazi’s interpretation of the implications of a request by the respondent for the case to be removed from the list. An authoritative comment on that provision suggests that the previous procedure, of entering that type of case in the list was inconvenient. Cases which had no chance of being examined on their substance were entered on the list. In these cases the respondent was officially cited by its opponent without there being any basis for such action. Paragraph 5 remedies that situation.19 The issue was raised again by the unwilling respondent in the Military and Paramilitary Activities in and against Nicaragua case, in a slightly different form. Here, in acknowledging receipt of the application instituting the proceedings the United States indicated its firm conviction that the Court was without jurisdiction and requested the Court to remove the case from the list. A few days later the United States brought to the Court’s notice further information which in its view established that the instruments relied upon by Nicaragua could not serve as a basis of jurisdiction, and requested

18 19

ICJ Rep. 1976 at 12. La procédure ainsi suivie n’était pas sans inconvénient: on inscrivait au rôle de la Cour des affaires qui n’avaient, en fait, aucune chance d’être examinée au fond; le défendeur éventuel, d’autre part, n’appréciait guère d’être mis en cause officiellement, alors qu’aucun fondement juridique ne pouvait être invoqué pour justifier une telle démarche de son adversaire. C’est à cette situation que le § 5 de l’article 38 entend porter remède. G. Guyomar, Commentaire du règlement de la Cour internationale de Justice, Adopté le 14 avril 1978 246 (1983). See also G. Wegen, Vergleich und Klagerückname im internationalen Prozeß especially at 159 (1987).

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the Court to ‘take an immediate decision which will preclude any further proceedings’. The next day the Court, taking into account some observations received from Nicaragua, decided that it then had no sufficient basis for acceding to that request or the earlier request for removal of the case from the list.20 The hearings on the request for provisional measures then followed. In the operative clause of the order indicating provisional measures the Court unanimously rejected the request the case be terminated by the removal of the case from the list – the most far-reaching pronouncement on this issue by the Court to date.21 This case confirms the previous interpretation placed upon the Court’s practice before the adoption of the 1978 Rule, and the interpretation given to that Rule. New light was thrown on the significance of the General List in 1995, in connection with the New Zealand’s application for examination of the situation arising out of France’s underwater nuclear tests in the Pacific region, in light of the 1974 judgment. The Registrar did not immediately enter this request on the General List.22 On receipt of the request for examination, together with New Zealand’s request for further provisional measures, France replied on 28 August 1995 that France considered that the Court manifestly lacked jurisdiction and that France could not accept jurisdiction in this case. Consequently the choice of an ad hoc judge did not arise any more than that of the indication of provisional measures of protection. The message continued: Hence, in its view, the action of New Zealand cannot properly be the object of an entry in the General List, pursuant to the provisions of Article 38, paragraph 5, of the Rules.

At the same time France agreed to be represented at a meeting with the President (Bedjaoui) by the Director of Legal Affairs of its Ministry for Foreign Affairs – who was not designated agent – in informal proceedings limited to the question of whether the New Zealand requests fell within the provisions of a cited paragraph from the 1974 judgment in the Nuclear Tests case between New Zealand and France. That meeting took place on 30 August, and it was agreed that each party would submit to the Court what was termed an

20 21

22

ICJ Rep. 1984 at 172 (para. 6), repeated at 175 (para. 15). Ibid. 186. To some extent Judge Schwebel at first sight thought that the United States request to strike the application from the List appeared to be justified were it not for some other facts ‘which did not come sufficiently to light in the course of the oral proceedings’ (p. 201). He found in those facts sufficient at that stage to provide the Court with a possible basis of jurisdiction, and therefore did not find it possible to vote to strike the application from the list (p. 204). In fact there were two issues regarding the General List. One was whether the Court had been seised of a case at all; the second was, if it had been seised of a case, was it a continuation of the 1974 case (General List No. 59) or a new case.

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Aide-Mémoire on certain procedural points, to be followed by a hearing at which each party would be given equal speaking-time. In its aide-mémoire France reiterated its view that the application could not be entered in the General List. It pointed out that in the cases mentioned in note 11 above, the Court had made use of its power of administration and by means of orders delivered without hearings and without the parties having been invited to take any procedural steps, had decided to remove them from the list. That was under the Rules of 1946. There was no difference under the later Rules: whether a ‘case’ manifestly not lying within the jurisdiction of the Court has been removed from the List or not entered in it, no procedural steps can be taken (paras. 31, 32). The issue of the entry in the General List occupied a prominent place in the hearings on 12 and 13 September 1995. Opening the hearing, the President referred to the aides-mémoire and stated that they confirmed that the parties held radically different views on the ‘preliminary and fundamental issue’ whether, in the absence of an act expressly recognized by the Statute as capable of instituting proceedings, the Court is, in the circumstances, seised of a case’.23 Each side argued the matter in depth. In its order of 22 September the Court, after reciting the procedural developments and the principal contentions of the parties included the following paragraph: Whereas New Zealand has submitted a “Request for an Examination of the Situation” under paragraph 63 of the Judgment delivered by the Court on 20 December 1974 in the Nuclear Tests Case (New Zealand v. France); whereas such a request, even if it is disputed in limine whether it fulfils the conditions set forth in that paragraph, must nonetheless be the object of an entry in the General List of the Court for the sole purpose of enabling the latter to determine whether those conditions are fulfilled; and whereas, consequently, the Court has instructed the Registrar, pursuant to Article 26, paragraph 1(b) of its Rules, to enter that Request in the General List[.]

At the end of that order the Court wrote: Whereas, as indicated in paragraph 44 above, the “Request for Examination of the Situation” submitted by New Zealand in accordance with paragraph 63 of the 1974 Judgment has been entered in the General List for the sole purpose of allowing the Court to determine whether the conditions laid down in that text have been fulfilled in the present case; and whereas following the present Order, the Court has instructed the Registrar, acting pursuant to Article 26, paragraph 1(b), of the Rules, to remove that request from the General List as from 22 September 1995[.]

Accordingly, the case was entered in the General List under a new number, No. 97.24 The question whether the case should be entered in the General

23 24

CR 95/19, 11 September 1995, 13 (uncorrected translation by the Registry). ICJ Rep. 1995, 302, 306 (paras. 44 and 66). It is interesting to note that Vice-President

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List or not was first discussed in the written communications to the Court. It was later argued in the hearings, and it is clear that the Court in the course of its deliberations decided on the entry in the General List in the course of its deliberations. It dealt with the matter somewhat extensively in the two passages recited above. No reference to this aspect of the case appears in any of the individual opinions joined to the order. One of the implications of this is that before any decision can be given on a pre-judicial question of whether the Court has been seised of a case, even if some sort of written and oral exchanges have taken place, an appropriate entry has to be made in the General List. On the other hand, the fact that such an entry is made has no effect whatsoever on the basic question of whether the Court is seised of a case or not or whether it has jurisdiction. A fuller discussion of the issue took place in the Preliminary Objections phase of the eight cases on the Legality of Use of Force that survived the initial provisional measures phase in 1999. In the course of the provisional measures proceedings France, Italy and Spain each requested the removal of the case from the General List. At that stage the Court concluded that its negative findings on the question of prima facie jurisdiction to indicate provisional measures of protection in no way prejudged the question of its jurisdiction to deal with the merits or any question relating to the admissibility of the application or relating to the merits themselves and left unaffected the parties’ right to submit arguments in respect of those questions.25 In the preliminary objections phase of all eight cases that remained the Court commenced its judgments by dealing with what it termed ‘a preliminary question’. It defined that question as whether the Court should reject the applicant State’s claims in limine litis ‘by removing the cases from the List, by a “prepreliminary” or summary decision in each case finding that there is no subsisting dispute or that the Court either has no jurisdiction or is not called upon to give a decision on the claims; or by declining to exercise jurisdiction’. This led the Court to a detailed and refined examination of the precise procedural position (in unusual circumstances) of the applicant and its principal contentions as they stood at that stage. This part of the judgments is intimately connected with the particular facts of that case and with the law and practice of the discontinuance of a case. It does not raise questions of principle in so far as concerns the General List, beyond its implication

25

Schwebel, who in his declaration pointedly listed most of the actions taken by the Court to reach the conclusion that the Court had conducted oral hearings on a phase of a case, did not mention the entry in the General List. ICJ Rep. 1999–I, 363, 373 (para. 33) and equivalent passage in the orders in the cases against Italy and Spain. The Court later explained that by declining to remove a case from the List it simply reserved the right fully to examine further the issue of jurisdiction. Armed Activities in the Territory of the Congo (Rwanda) (New Application), ICJ Rep. 2006, 3 February (para. 25).

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that a request for removal from the List is in law a request to dismiss the case in limine litis. If such a request is presented before the counter-memorial (as it should be), it is a form of preliminary objection. This examination in turn led the Court to its major conclusion that it could not remove the eight cases from the List, or take any decision putting an end to the cases in limine litis. In the present phase of the proceedings it must proceed to examine the titles of jurisdiction asserted by the applicant and the objections advanced by the respondents and give its decision with respect to jurisdiction. After detailed examination of the status of Yugoslavia in relation to the Charter of the United Nations and the Statute of the Court, the Court concluded that the applicant did not, at the time of the institution of the proceedings, have access to the Court under Article 35 of the Statute, and that made it unnecessary for the Court to consider the other preliminary objections that had been filed.26 In one sense, the initial hesitation of the Registrar regarding the entry in the General List follows the general line established by the Court when it introduced Article 38, paragraph 5, into the Rules in 1978 – incidentally, a provision to which no reference is made in the order, although it was cited in the pleadings. There is really nothing unusual about this. Most if not all courts have what is sometimes known as a ‘cause list’ – simply a list of cases on the tribunal’s agenda, whether immediate or long-term, without any further implication. The case law of the Court on this seemingly technical and administrative matter establishes that for the International Court of Justice, the General List is nothing more than an indication of its agenda, without any presumption, one way or the other, as to what the decision will be.27

26

27

ICJ Rep. 2004, 25 December (paras. 26 to 44) and equivalent passages in all the other judgments of that date. These judgments deal principally with the unprecedented issue of whether the applicant was or was not a party to the Statute of the Court at the time of the institution of the proceedings. The Court answered that question in the negative and found that it had no jurisdiction to entertain the claims. For those cases see ICJ Rep. 2004 279 (Belgium), 429 (Canada), 575 (France), 720 (Germany), 865 (Italy), 1011 (Netherlands), 1160 (Portugal), 1307 (United Kingdom). The General List used to be published in the Court’s Yearbook. This practice was stopped in Yearbook 1964–1965. No explanation for this is furnished. However, the Yearbook 1964–1965 states that extracts from the General List are supplied by the Registry on request (p. 92). The current issue of that publication is ambiguous. It states that extracts from the General List are supplied by the Registry on request ‘in the form of Background Notes II and II bis: Synopsis of cases referred to the International Court of Justice (1947–1969 and 1969–1976). Yearbook 2002–2003 at 205. The same publication states that the General List is prepared and kept up to date by the Registrar in accordance with Arts. 28, para. 1(b) and 38, para. 5, of the Rules of Court and Arts. 6, para. 1 and 46, para. 3, of the Instructions for the Registry.

12 THE SECRETARY-GENERAL OF THE UNITED NATIONS AND THE INTERNATIONAL COURT OF JUSTICE

I Since the inauguration of the present International Court of Justice in April, 1946, the Court has received 23 requests for advisory opinions. Of these, 14 emanated from the General Assembly, one from the Security Council, one from the Economic and Social Council, three from the Committee on Applications for Review of Administrative Tribunal Judgments (in existence between 1955 and 1995),1 two from the World Health Organization, and one each from UNESCO and the International Maritime Organization, formerly known as the Inter-governmental Maritime Consultative Organization. This article will draw attention to the principal features which the SecretaryGeneral of the United Nations and the Directors-General of the two specialized agencies concerned, assisted by their legal advisers, have developed in relation to the requests originating in the organs of the United Nations, of the World Health Organization, and in IMCO. Article 104 of the Rules of the International Court of Justice of 19782 requires that all requests for advisory opinions shall be transmitted to the Court by the Secretary-General of the United Nations or, as the case may be, the chief administrative officer of the body authorized to make the request. That completes Article 65, paragraph 2, of the Statute of the Court, by which the request for an advisory opinion is to be accompanied by all documents likely to throw light upon the question. That is the point of departure. In advisory proceedings the Secretary-General3 has come to occupy a special amicus curiae role, one which may in due course come to have a deeper

1 2

3

These three advisory proceedings are not considered in this article. Art. 104 corresponds to Art. 88 of the Rules of 1972, a new provision introduced then. Further, see my III The Law and Practice of the International Court 1920–20054 [hereafter Law and Practice] 1659 (2006). All the statements mentioned in this article are to be found in the volume of ICJ Pleadings appropriate for each case. Accordingly, detailed footnote references have not been given. Since most of the advisory opinions requested since 1946 originated in an organ of the United Nations, the Secretary-General of the United Nations has developed this role. To some extent

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significance for the future development of international judicial techniques. Partly this development may be traced to the manner in which the SecretaryGeneral has assumed responsibility for the files of documents transmitted to the Court with the request. However, the Secretary-General has rarely been content to confine his participation in advisory proceedings only to the compiling and transmission of documents. He has frequently, though not invariably, found it opportune to submit his views on the contents of those documents, and on the legal problems arising out of the request, whether in written or in oral statements or even in both. In addition there have been cases in which the United Nations, and more particularly the Secretariat, has been a directly interested party. The oral statements are particularly significant and the more contentious. They are delivered after the interested Governments have submitted their written statements, and in the nature of things this gives the Secretary-General the opportunity to take issue with contentions advanced by different Governments. It is through these activities, the Secretary-General has come to occupy a special position in advisory proceedings. For except when the question arises out of a dispute or situation directly involving the United Nations as such and the Secretary-General as the chief administrative officer of the United Nations, these interventions on behalf of the Secretary-General are in principle freed from issues of national policy which in the nature of things must colour the presentations made by the representatives of States. They bring before the Court the international point of view as seen by the SecretaryGeneral and his colleagues, or they plead the concrete interests of the United Nations in the outcome of the proceedings. To some extent, they resemble, or may come to resemble, the observations of the Advocate-General in some national legal systems and in the Court of Justice of the European Communities, though they have not reached the degree of intermixing in the judicial process of those Procurators-General. It is readily admitted that this task is one requiring great tact and skill – qualities which have hitherto been forthcoming as is indeed evidenced by the strong delegations which have appeared on his behalf in the oral proceedings.4

4

the same considerations would doubtless apply to the chief administrative officer of any other organization requesting an opinion. However, as far as the United Nations is concerned, the Secretary-General is in a special position vis-à-vis the Court, since he is head of another principal organ of the United Nations, the Secretariat. For an early account of these activities by the United Nations, see I. Kerno, ‘L’Organisation des Nations Unies et la Cour internationale de Justice’, 78 Hague Recueil 511 at 560 (1951–I). Representatives of the Secretary-General of the United Nations have appeared in the following sets of oral proceedings: Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (1948) (I. Kerno, Assistant Secretary-General in charge of Legal Affairs) [Admission], Reparation for Injuries Suffered in the Service of the United Nations (1949) (Kerno, with A. Feller, Principal Director of the Legal Department as Counsel)

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The power of the Secretary-General to undertake these activities derives from his general representative capacity as the chief administrative officer of the United Nations. He has a general capacity to represent the United Nations in legal proceedings, both at the international and at the national level.5 In that framework it has been authoritatively stated that in their statements, the representatives of the Secretary-General have generally given a survey of the consideration by the United nations organs of the question on which the advisory opinion has been sought, and have drawn the attention of the Court to elements of law and of fact which might assist the Court in reaching its conclusions.6

5 6

[Reparation], Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (1950) (Kerno, with Hsuan-Tsui Liu, Member of the General Legal Division of the Secretariat, in both phases) [Peace Treaties], International Status of South-West Africa (1950) (Kerno, with Marc Schreiber and Blaine Sloan, of the Legal Department) [South Africa], Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) (Kerno, with Gurdon Wattles of the Legal Department) [Reservations], Effect of Awards of Compensation made by the United Nations Administrative Tribunal (1954) (C. Stavropoulos, Principal Director in charge of the Legal Department) [UNAT], Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (1971) (Stavropoulos, with E. Schwelb, Special Consultant to the Office of Legal Affairs, former Director of the Division of Human Rights and D.B.H. Vickers, Senior Legal Officer of the Office of Legal Affairs) [Namibia], Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (1988) (C-A Fleischhauer, with R. Zacklin and Mme M. Constable of the Office of Legal Affairs) [Headquarters Agreement] and Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (1989) (Fleischhauer with Paul Szasz, Roy Lee and Mme Constable, of the Office of Legal Affairs) [Privileges and Immunities Convention]. No representative of the Secretary-General required to speak in the Competence of the General Assembly for the Admission of a State to the United Nations (1950), Voting Procedure on Questions Relating to Reports and Petitions concerning the Territory of SouthWest Africa (1955), Admissibility of Hearings of Petitioners by the Committee on South WestAfrica (1956), Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter) (1962), Western Sahara (1975), Legality of the Threat or Use of Nuclear Weapons (1996) and Construction of a Wall in Palestinian Occupied Territory (2004) proceedings. In some of those cases, however, as will be seen, in addition to submitting the file of documents the SecretaryGeneral also submitted a written statement. As for the specialized agencies, in the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization case (1960) [Maritime Safety Committee], the Director-General of IMCO limited himself to the transmission of documents, and made no written or oral statements. In the Interpretation of the Agreement of 25 March 1951 between WHO and Egypt case (1980) [WHO/Egypt Agreement] the representative of the Director-General (C. Vignes, as special legal adviser), did not make an opening statement, but replied orally to questions put to him by members of the Court. In the Legality of the Use by a State of Nuclear Weapons in Armed Conflict case (1996) the representative of the Director-General (Vignes) made an oral statement. V Repertory of the Practice of United Nations Organs, ad Art. 98, para. 129 (Sales No. 1955.V.2 (Vol. V) (hereafter UN Repertory). Ibid. at Art. 96, para. 29.

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In cases concerning the United Nations, the Secretary-General has asserted his right to present written and oral argument on his own authority.7 These arguments are distinct from the accompanying documents which he is obliged to collect and submit. Although the United Nations was specifically invited, the Secretary-General made no argument as such in the proceedings on Certain Expenses and on the Legality of the Threat or Use of Nuclear Weapons opinion, and limited himself to the transmission of the documents without comment. In general, the Secretary-General has not made substantive arguments in proceedings when the request followed a bitterly divisive vote, except rarely when the outcome of the case directly concerned the Secretary-General and the performance of his functions, as in the Peace Treaties advisory opinions. II At this point, the actual appearances of the Secretary-General require brief notice. The tone was set in the Admission case. Here there was written statement as such, and the documents submitted by the Secretary-General were limited to United Nations documents in the narrow sense. The long oral statement, which occupied a whole session of the Court, commenced by describing the course of the debates on the question in both the Security Council and the General Assembly. That included a survey of the principal arguments advanced in those debates relating to the answers to be given to the question and this indirectly related also to some of the contentions advanced by Governments in their written statements. At the end of that statement Kerno introduced two new annexes of documents, relating in particular to the relevant discussions at the San Francisco Conference (that memorandum is unfortunately not included in the volume of Pleadings devoted to that case). Perusal of the advisory opinion and of the individual opinions appended to it suggests that this statement had a profound influence on the Court. The advisory opinion does not refer to the travaux préparatoires of the Charter. This is in accordance with the consistent ambivalence of the Court that when a text is clear there is no need to have recourse to the travaux. But nearly all the individual opinions do have recourse to those documents, which obviously were discussed in depth in the Court’s deliberations. Furthermore, it is not beyond the bounds of possibility, and even probability, that the Court’s treatment of the question as ‘abstract’, that is as not addressing par-

7

Ibid. Art. 98, para. 129.

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ticular contentions advanced in the debates in the Security Council and the General Assembly, may be the direct outcome of Kerno’s presentation. In the Peace Treaties advisory opinion, the two oral interventions were brief, and concerned with what had occurred in the past. Because of the delicacy of the subject, the Secretary-General refrained from giving any indication of his legal views in either phase. Kerno made it plain that the Secretary-General could only define his attitude after the Court had given its opinion and the General Assembly had indicated its views. In the Competence of the Assembly advisory opinion – also a delicate topic – the SecretaryGeneral’s written statement was confined to historical analysis. In the South-West Africa (Status) case, however, a new element appears, in the form of a long and carefully reasoned statement of the legal issues involved in the case. This, as it were, emphasized the conflict of views between the United Nations – or at least a majority in the General Assembly – and the Union of South Africa. The Secretary-General transmitted a very large dossier of documents going back to the League of Nations and the San Francisco Conference. He followed this with a very long oral statement, lasting nearly three sessions of the Court. The first part was devoted to a description of the lengthy debates that had taken place in the different organs of the United Nations. The second part was a long statement of ‘observations’ regarding the legal problems raised by the questions. The tenor of this pleading is brought out by its concluding remarks: ‘The Covenant of the League of Nations has treated as a sacred trust the well-being and development of peoples who are not yet capable of governing themselves. The Charter of the United Nations has taken up this noble idea. You now have before you the difficulties which have arisen in a special case particularly complicated and important.’ Although this statement was made after the Governments concerned had submitted their written statements, there is as yet no direct confrontation with the position taken by the mandatory Government of South Africa. That was to come later, after it had become clear that there was no possibility of a direct and agreed settlement. But in the delicate SouthWest Africa (Voting) opinion, two written statements were filed, termed respectively Introductory Note, containing an incomplete survey of the discussions that had taken place since 1950, and Additional Notes, devoted to a discussion of the voting rules in the Council of the League of Nations and in the General Assembly of the United Nations. A similar note accompanied the file in the South-West Africa Committee case. In the Certain Expenses case, lengthy explanatory notes but no formal pleadings were submitted. In the Namibia advisory opinion the SecretaryGeneral again entered into the substance of the matter. Here, besides transmitting a heavy dossier of documents, the Secretary-General also submitted a written statement of his legal views. The oral proceedings were opened by a statement from Stavropoulos which is coloured by the observation that the Secretary-General felt it to be his special duty to comment upon certain of

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the points raised mainly in one statement which, if accepted, would have profound, in fact possibly disastrous effects, upon the structure, functioning and constitutional practices of the United Nations as these have developed over the last 25 years’. At the end of this speech he remarked: ‘the question before the Court concerns the fundamental rights and freedoms of more than half a million people, the indigenous inhabitants of an international territory to which promises were made in the name of mankind.’ This speech had been preceded by some questions from Judge Gros based on the Secretary-General’s written statement, and it was followed by some further telling questions from Judge Sir Gerald Fitzmaurice – the first occasion on which questions had been put to the representative of the Secretary-General. A member of the delegation, Mr Vicker, gave the replies in an oral statement later in the proceedings. He took the occasion to make some remarks concerning the South African proposal for a plebiscite in Namibia. There is no doubt that this speech gave vent to widespread feelings which prevailed in United Nations circles after the two judgments of 1962 and 1966 in the contentious cases on South West Africa. At the same time, it must be recognized that they were for all practical purposes a pleading against the position then being taken by the former Apartheid regime of South Africa. Those very exceptional circumstances may be found to justify the departure from a neutral position which ought to characterize any legal position taken by the Secretary-General in advisory proceedings before the Court, where the requesting organ is seeking guidance as to its own future action. III The first case in which the Secretary-General as chief administrative officer of the United Nations was directly interested was the Reparation case. The Secretary-General placed the item on the agenda of the General Assembly following the assassination of the United Nations Mediator in Palestine, Count Folke Bernadotte, and several of his assistants in 1948. That led to two difficult legal questions: (1) whether the United Nations could bring a claim for compensation for damage it had suffered; and (2) what would be the position of the State of which the victim was a national, and coupled with that, how to protect the potential respondent States from double damages. None of the potential respondent States took part in those proceedings: of potential claimant States, only France made written and oral statements. The United Nations submitted the usual set of documents, limited to the discussion on the agenda item proposed by the Secretary-General. The oral statement and pleading by Kerno and Feller was a different matter. Kerno explained that the United Nations would be appearing in a double role: he would present the usual objective summary of the relevant debate, and he went on: ‘Mais le Secrétaire général participe aussi, j’allais presque dire qu’il

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est partie, à la procédure actuelle, qui présente pour lui un intérêt essentiel’. He therefore pleaded and made submissions on both issues, that of the capacity of the United Nations to bring claims, and on the reconciliation of the claims of the United Nations with those of interested States. This advisory opinion was to some extent prophylactic, although given the circumstances of the time it is unlikely that any of the potential respondent States would have contested the capacity of the United Nations to make these claims (without prejudice, of course, to any other position which some of those States might have taken at the time or since). The interest of the United Nations was a potential one. That distinguishes this case from the two cases in the 1980s in which there was an actual dispute between the Secretary-General and a member State. It also distinguishes this case from others in which the Secretary-General had a direct interest in the sense that it was his own actions that were the subject of the request for the advisory opinion. The first case in this category is the Reservations case. The Secretary-General placed the item Reservations to multilateral conventions on the agenda of the General Assembly, because of anticipated difficulties over determining the entry into force of the Genocide Convention of which he was the depositary and would therefore have to inform the States of the entry into force of the Convention. Some of the ratifications of that Convention were accompanied by reservations to which other States had made objection. In fact the requisite number of ratifications without reservations was received. This solved the difficulties of the Secretary-General rendering the question moot. The discussion in the Sixth Committee had been general: the reference in the question to the Genocide Convention was inserted relatively late in the debate, in order to make the question concrete enough so that the Court could answer it.8 The Secretary-General submitted a long written statement dealing exclusively with the question of reservations to the Genocide Convention, not with the general question of reservations to multilateral conventions. The oral statement was on a broader canvass. It dealt with the depositary practice of the Secretary-General in more general terms, and in relation to reservations was a spirited defence of the practice followed by the Secretary-General based on the practice of the Secretariat of the League of Nations That was rejected by the Court, by a very narrow majority, in favour of a system said

8

See doc. A/C.6/L.125 and Rev.1, in Report of the Sixth Committee (A/1494 + Corr.1) in Official Records of the General Assembly, Fifth Session, Annexes, agenda item 56. And see Resolutions of the General Assembly concerning the Law of Treaties: Memorandum prepared by the Secretariat (A/CN.4/154) ILCYB 1963/II at 18 (paras. 106 ff.).

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to be close to the system then in use in the Pan-American Union (now the Organization of American States), and which has since been codified in articles 19 to 23 of the Vienna Convention on the Law of Treaties of 1969.9 This must be regarded as the most serious ‘defeat’ of the Secretary-General in the Court. In retrospect, it was probably a mistake in 1951 to single out a single convention, the Genocide Convention, and a single aspect, the impact of objections to reservations on the establishment of the necessary quorum of States for the entry into force of the Convention, as isolated topics. Both aspects are an integral part of the law of treaties as a whole. As it was, the General Assembly made the mistake of asking at one and the same time the Court for an advisory opinion de lege lata and the International Law Commission for a report de lege ferenda on the basis of the advisory opinion to be received. The Commission did not accept the Court’s advisory opinion for general purposes, and this produced a delicate situation which was only resolved when State practice declared itself on the whole favourable to the Court’s approach, and accepted it when it was generalized in 1966 by the International Law Commission in its final report on the law of treaties. In the UNAT case, which arose out of a discussion on the supplementary estimates to meet the awards made by the Administrative Tribunal, the Secretary-General submitted long written statement which dealt in some detail with the Administrative Tribunal, its functions and powers and its general characteristics. There is no doubt from the advisory opinion that this was of great use to the Court. This statement was of a general character. It was followed by an oral statement which Stavropoulos indicated dealt with aspects of the questions which concerned the Secretary-General as chief administrative officer of the organization. These of course related to internal staff matters: and it was in this speech that the idea appeared that the discretionary budgetary powers of the General Assembly under Article 17 of the Charter only related to the future, and that there is no discretion as regards obligations and commitments which have already been duly made. That is the core of the advisory opinion as regards awards made by the Administrative Tribunal. Reading the pleadings in that case, there is little doubt that these statements of the Secretary-General were decisive. It was not until 1988 that the Court was asked for an advisory opinion when there was an actual dispute between the Secretary-General and a member State. That was the Headquarters Agreement case. Here the SecretaryGeneral had reported the existence of this dispute to the General Assembly through the Committee on Relations with the Host State. He also reported

9

1155 UNTS 331.

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that he had invoked the dispute settlement provisions of the Headquarters Agreement, a position which had not been accepted by the United States. Here the General Assembly adopted two resolutions. In one of these it took note of the position of the Secretary-General that a dispute existed and that he had invoked the applicable dispute settlement provisions. In its operative clause the General Assembly considered that a dispute existed and that the dispute settlement machinery should be set in motion. In the second resolution, bearing in mind the first, it affirmed the position of the SecretaryGeneral that a dispute existed, and decided to request an advisory opinion as to whether the United States was under an obligation to enter into arbitration in accordance with the dispute settlement procedure of the Agreement. The unusual situation here was that two principal organs, the General Assembly and the Secretariat, had both decided that a dispute existed and that the dispute settlement procedure of the Agreement should be applied. The Secretariat submitted to the Court a dossier of documents and a written statement in which he concluded for an affirmative answer to both questions. Fleischhauer made a short oral statement reiterating the position. That led to a series of questions by several judges, and an oral reply by Fleischhauer. In one sense, the Court should have refused to answer the question, on the ground that the resolutions adopted by the General Assembly had already given the answers. The Court had very little choice in all the circumstances. Viewed from that point of view, one could say that the General Assembly’s request for an advisory opinion was coming close to an abuse of the Court’s procedures. However, there is another way of looking at the matter, and I have written elsewhere that the advisory opinion has an important place in the general policy of the Court to preserve the integrity of the general regime of the Charter and its appurtenant documents.10 The Privileges and Immunities Convention case has many similarities. A long correspondence between the Secretariat and the Socialist Government of Romania regarding the ability of a Romanian national to perform his functions as a special rapporteur of the Subcommission on Prevention of Discrimination and the Protection of Minorities had reached a deadlock. There is no doubt that in the formal sense there was a ‘‘dispute” between the Secretary-General and that Government. However, Romania had made a reservation to the dispute settlement clause of the Privileges and Immunities Convention. and this prevented the direct invocation of that provision. For this reason the question put to the Court asked about the applicability of the dispute settlement procedure, not its application. Here the Secretary-General submitted a very long dossier of documents and a written statement. This

10

‘The Contribution of the International Court of Justice to the United Nations’, United Nations at 50 and Beyond at 133 (1996).

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was followed by a short oral statement confirming the conclusion that the Romanian national concerned was entitled to the status of expert on mission for the United Nations within the terms of the Convention. The distinction between the applicability of the Convention and its application was accepted by the Court in answer to Socialist Romania’s contention that its reservation to the Convention deprived the Court of power to give the requested opinion. IV The position of the Director-General of WHO in the WHO/Egypt case was unusual. That case had high political overtones, and the request for the advisory opinion was adopted over stiff opposition by a technical majority which in fact was less than 50% of the total of the members of the WHO. This put the Director-General in a difficult position. He transmitted the customary dossier of documents, but there was no written statement. The representative of the Director-General was present for the oral proceedings, but only in order to reply to any questions which the Court or any of its members might wish to put to him. Several questions were put to him after the representatives of interested Governments had made their statements. Vignes made a full reply to those questions, but without any attempt to suggest answers to the question put to the Court for advisory opinion. The last case in this series is Legality of the Use by a State of Nuclear Weapons in Armed Conflict. Here the Director General submitted the customary file of documents, and his representative (Vignes) made a formal statement at the opening of the oral proceedings on 30 October 1995. He referred to the absence of consensus in the WHO which prevented the Organization itself from taking any position on the question. He described the evolution of the issue in the WHO, and, referring to the debate that preceded the adoption of the request, mentioned that the Legal Adviser had expressed doubts as to whether the question came within the competence of WHO. Giving the results of the final vote, he did not mention the secret ballot. There is no doubt that this secret ballot exercised the Court, since it is mentioned specifically in the dissenting opinion of Judge Weeramantry. If it was of relevance for the Court, that would have been in connection with the propriety of the Court’s acceding to the request. However, as the Court decided that the issue of propriety could only arise after it had decided whether it has jurisdiction (a question answered here in the negative), it did not have to pronounce on this.11

11

ICJ Rep. 1996–I, 66, 84 (para. 31).

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V So far, the Secretary-General has only taken part in advisory cases. Article 34, paragraph 2, of the Statute, a new provision inserted in 1945, allows the Court, subject to an in conformity with its Rules, to request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative.12 The first and so far only instance in which the Court has approached the United Nations on the basis of Article 34 of the Statute was in connection with the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide.13

12 13

On this, see II Law and Practice4 630. See ICJ Rep. 1993. 3, 9 (para. 6). So far as is known, the United Nations (of which the Court is a principal organ) has not made any reply to that communication.

13 VISIT TO THE SITE BY THE INTERNATIONAL COURT

Judge Bedjaoui’s last formal act as President of the International Court of Justice was to conduct the deliberations and sign the Court’s Order regarding the visit to the site by the Court in the GabÌcíkovo-Nagymaros Project case between Hungary and Slovakia. That was the culmination of a long series of negotiations between the parties and between the parties with the Court through President Bedjaoui. In that order the Court decided to exercise its function with regard to the obtaining of evidence by visiting a place or locality to which the case related; and to adopt to that end the arrangements proposed by the parties in a series of agreements and other documents set out in its preambles.1 That was the first occasion on which the present Court had conducted a visit to the site (descente sur les lieux). In a similar river dispute between two neighbouring countries in 1937, the Diversion of Water from the Meuse case, the Permanent Court had likewise decided to visit the site.2 The nearest reference in the Statute to the power of the Court to undertake a visit to the site is in Article 44. That provision requires the Court to apply direct to the government of the State concerned whenever steps are to be taken to procure evidence on the spot (s’il s’agit de fair procéder sur place à l’établissement de tous moyens de preuve). Accordingly, to undertake a visit to the site comes within the implied or inherent powers of the Court. It derives from Article 48 of the Statute, the general “catch-all” provision enabling the Court to make orders for the conduct of the case. In consequence, there is no specific provision in the Rules of Court governing the procedure for such a visit. However, Article 66 of the current Rules provides that the Court may at any time decide, either proprio motu or at the request of a party, to exercise its functions with regard to the obtaining of evidence at a place or

1

2

ICJ Rep. 1997 at 3. Hereafter Order. The judgment was rendered on 25 September 1997, ICJ Rep. 1997, 7. Hereafter Judgment. For an insider view of this visit, see P. Tomka and S. Wordsworth, ‘The First Site Visit of the International Court of Justice in Fulfillment of its Judicial Function’, 92 AJIL 133 (1998). The authors were respectively Agent and Counsel for Slovakia in that case. In general, see D.V. Sandifer, Evidence before International Tribunals 343 (Revised edition, 1975). See text to note 15 below.

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locality to which the case relates, subject to such conditions as the Court may decide after ascertaining the views of the parties. Article 66 in its present form is new.3 Strictly speaking, a visit to the site is not necessarily connected with the obtaining of evidence. In both the Water from the Meuse case and in the GabÌcíkovo-Nagymaros Project case, no evidence was taken. The purpose of the visit was to enlighten the Court on the area the subject of the litigation more directly than is possible in regular written and oral pleadings. As the Court stated in its judgment on the merits, (para. 10), the Court “took note of the technical explanations given by the representatives who had been designated for the purpose by the Parties”. Usually a visit to the site takes place after the written proceedings are concluded and either before the oral proceedings commence, or between the two rounds of oral pleading. Experience regarding visits to the site by the International Court is limited. As mentioned, the Permanent Court conducted such a visit in the Water from the Meuse case;4 and the present Court required a Committee of Experts to visit the site on its behalf in the Corfu Channel case. There have been occasions on which the present Court has refused to conduct a visit to the site. Some relevant recent arbitral proceedings will also be noted. The GabÌcíkovo-Nagymaros case was brought before the Court by a special agreement concluded between Hungary and Slovakia after an earlier forum prorogatum application by Hungary against the former Czech and Slovak Federal Republic had not been accepted by the named respondent.5 In that case, the formal initiative for the visit was taken by Slovakia shortly before the replies were filed. Hungary agreed and the parties co-operated in making the detailed arrangements. The general outlines for the visit were set out in a Protocol of Agreement between the parties with a view to proposing to the Court the arrangements for a visit in situ in the case, concluded in Budapest and New York on 14 November 1995. That was followed by a joint meeting between the agents at Bratislava in January 1997. Agreed Minutes of that meeting were concluded in Budapest and New York on 3 February 1997. Both those instruments were communicated to the Court and are recited in the preambles to the order of 5 February 1997.

3

4 5

This is a broader provision deriving from Art. 49 of the Rules of the Permanent Court of 1926 and of 1931, and Art. 55 of the Rules of 1936/1946, empowering the Court to take the necessary steps for the examination of witnesses or experts otherwise than before the Court itself. For the experience of the Permanent Court, see M.O. Hudson, The Permanent Court of International Justice 1920–1942 at 566 (1943). Judgment, para. 24.

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The Protocol of Agreement commences by references to Article 44 of the Statute and Article 66 of the Rules, to Slovakia’s proposal for the visit, and to an exchange of views (not yet made public) between the President of the Court (Bedjaoui) and the parties in June 1995, and continues: Considering that a visit in situ by the Court would usefully complement the data available to the Court in the case . . . Aware that it falls to the Court to decide to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates, subject to such conditions as it may decide upon after ascertaining the views of the Parties[.]

The substance of that agreement was that the Court would make a four-day visit at dates to be fixed later. The exact schedule for the visit was to be drawn by the Court following further conversations with the agents in accordance with Articles 31 and 66 of the Rules. “The Parties undertake not to call that schedule into question for whatever reason, other than on grounds of force majeure duly explained and accepted as such by the Court, the other Party having been heard.” There followed an outline suggestion for each day of the visit, the first two days of which would be spent in Slovakia and the last two in Hungary. At the end of the last day there would be a brief account of the visit by the experts of the parties, who would be given a strictly equal amount of time to that end (which might be half an hour each) and who will be available to the judges to answer their questions, before returning to The Hague. By paragraph 4: During the whole of the visit in situ the Court shall be accompanied by the Agents of each Party and by three persons designated by each of the Parties, to the exclusion of any other official. The explanations given by the representatives of the Parties shall be of a purely technical nature, without any discussion of the legal issues. Interpretation into English and French shall be effected by the interpreters of the Court or by persons appointed by the Court. The Parties, which once again express their hope that they will be able to welcome the Court in the best possible conditions, rule out in advance any attempt to vie with each other in the solemnity of the welcome extended and undertake to ensure that the Court will be able to discharge its mission in complete security and total discretion. No formal reception shall be organized by the governmental authorities of the two countries, with the exception of a low-key reception in Bratislava during the evening of the first day, and another in Budapest during the evening of the third day. The visit of the Court shall not be the subject of any press communiqué – with the exception of the one drawn up by the Registrar – and shall not occasion any interview.

The parties proposed to take equal responsibility for the expenses occasioned by the visit, apart from the expenses of the two receptions. The Protocol concluded that a copy should be addressed jointly to the Registrar by the two agents.

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That basic agreement was completed by the Agreed Minutes, which were supplementary to the Agreement. In general: 1. The purpose of the visit will be to familiarize the Court with the area to which the Case . . . relates and with the technical issues which can be presented in the course of the visit, without referring to juridical questions, The parties agree that this purpose will best be achieved if their presentations to the Court are as far as possible objective in content and neutral in tone. 2. In addition, the members of the Court should be afforded an opportunity to ask questions of a factual or technical character to the presenting party at any time during the presentation, and the presenting party may respond forthwith to such questions, or may reserve its answer to the Reply phase in the following week. The other party may make brief factual or technical responses to any presentation or answer, it being understood that such responses will be as brief as possible and will be consistent with paragraph 1 above. 3. The presenting party may make remarks and comments, consistent with paragraph 1 above, at any stage during the course of the tour of the concerned areas. Arrangements will be made, in conjunction with the Registry of the Court, for the translation of remarks and comments and of any responses made under paragraph 2. 4. Presentations may be made by the Agent, or one of the accompanying persons nominated under paragraph 4 of the Agreement. At a particular location other persons with expertise relating to that location may be called on to make a presentation. The names of the persons who will be called on will be exchanged between the parties two weeks prior to the visit.

The Agreed Minutes went on to lay down details of the schedule day by day. The itinerary, commencing the visit upstream, was constructed on the principle of equal time, taking into account different local conditions. It was agreed that in addition to any illustrative material drawn from the written pleadings, either party might provide the members of the Court with simple reference maps and other simple explanatory materials or graphics. Copies of such materials were to be exchanged between the parties not less than two weeks before the start of the visit. Detailed logistical arrangements were set out, as well as the administrative requirements from the Registry. With regard to the financial arrangements, each party agreed to pay promptly on request half the total cost of air travel from Amsterdam or some other European departure point to Vienna/Bratislava and from Budapest to Amsterdam. Each party would meet the costs of accommodation and travel for the members of the Court and the Registry in its own territory, and the costs of the respective receptions. Other expenses were borne by the Court in the usual way. In its order of 5 February the Court (with the judge ad hoc present) recited that it appeared to it that to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case related might facilitate its task, and that the proposals made by the Parties to that end might

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be accepted. The Court thereupon unanimously decided to adopt the arrangements proposed by the parties. On that basis, the visit took place as planned between the two rounds of the oral pleadings. The Registry issued a formal communiqué announcing that the visit had taken place.6 Opening the resumed hearing of 10 April, the new President referred to the visit which he was sure had enhanced the Court’s understanding of the issues which it was called upon to decide.7 Beyond the formal statement regarding the visit contained in paragraph 10, there is no further mention of that visit in the judgment or in any of the opinions appended to it. However, in his statement at the 36th meeting of the 52nd session of the General Assembly on 27 October 1997, the new President Schwebel included the following: The case also gave the Court the unique opportunity, between two rounds of oral hearings, at the joint invitation of the Parties “to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates”. This procedure is poetically known in French as a “descente sur les lieux”; in English we have come to call it a “site visit”. The Parties agreed on the detailed itinerary, content and logistical arrangement of the visit, and the full Court spent four days visiting locations along the Danube between Bratislava and Budapest, accompanied by representatives of the two States and their scientific advisers. The Court looked, listened, asked many questions, and gained a new dimension of insight into the case and what it meant to the Parties – much more than could have been gleaned from confining proceedings to The Hague. I might add that it was all organized by the Parties with admirable efficiency. I use the word “unique” because it was the first time in the history of the present Court that such a working visit to the site of the dispute has been undertaken. The visit was not entirely unprecedented. Almost exactly sixty years ago, in May 1937, the Permanent Court of International Justice spent two days visiting a number of locations rather closer to the seat of the Court, along the River Meuse between Maastricht and Antwerp in connection with a dispute between the Netherlands and Belgium in the case concerning the Diversion of Water from the Meuse. The published record of that case is terse, but even so, the parallels between the two exercises – as between the cases themselves and the character of the visits – turned out to be striking. There have been other occasions when such visits were requested by one party or canvassed, but for various reasons were not carried out by the Court. Clearly, the issues of law can usually be decided without such an exercise. In the exceptional case in which a site visit would be useful, it would depend upon a high degree of co-operation between the States concerned, and one can imagine only some contentious cases in which the

6

7

Communiqué No. 97/7, 9 April 1997. See also the Report of the International Court of Justice, 1 August 1996–31 July 1997, United Nations, General Assembly – Fifty second Session, Official Records Supplement No. 4 (A/52/4), para. 108. CR 97/12, 10 April 1997, at 10.

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situation on the ground may lend itself to carrying out a site visit. There are also financial implications for the States concerned. However, the successful completion of this valuable procedure in the GabÌcíkovo case is suggestive.8

The Agreement and the Agreed Minutes are, it is believed, the first public instruments dealing with the practical and logistical aspects of a visit to the site. Three elements at least are striking. The first is the strict insistence on equality between the parties, allowance only being made for superficial inequalities due to the different and separated localities to be visited. The second is the exclusively technical nature of the visit and of the explanations allowed to be made by the representatives of the parties. All juridical considerations were excluded. The third is the general ‘low-key’ approach adopted by the parties and accepted by the Court. These documents could supply useful guidance to the Court and to arbitration proceedings, and to the parties and their Governments, in future cases. The present Court has had some other instances in which issues of a visit were raised. In the Corfu Channel case, in which some of the most important facts at issue were contested, the Court appointed a Committee of Experts to make a report to it on the matter. This report did not answer the questions to the Court’s satisfaction, so the Court adopted a decision requiring the experts to proceed to the land area relevant to the case, part of which was in the territory of a third State (Yugoslavia). These investigations took place between the two rounds of oral pleadings, and they enabled the Court to make the necessary findings of fact on which to base its judgment.9 This visit was directly connected with the evidence, and the questions put to the experts were aimed at clarifying the conflicting versions of the relevant facts presented by the parties – the only instance of this in the visits considered in this article. The first instance in which the Court declined to make a visit to the site was in the second (merits) phase of the South West Africa cases. During the oral proceedings, on 30 March 1965, South Africa proposed that the Court should make an inspection in loco of the Territory of South West Africa and also, but subject to the conditions indicated by it, that the Court should visit South Africa itself and the Applicant States (Ethiopia and Liberia) as well as one or two sub-Saharan countries of the Court’s own choosing. The applicants opposed all those proposals. In an order of 29 November 1965, that is after the oral proceedings had been closed and the parties had been heard on this matter, the Court in a series of votes decided not to accede to

8 9

A/52/PV.36, at 2. It is also available on the Court’s website. See ICJ Rep. 1949 at 9 and 151.

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that request. No reasons were given, and no opinions were appended to that order.10 The second instance of this was in the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, heard by an ad hoc Chamber of the Court. During the hearings El Salvador requested the Chamber to consider a visit to the disputed areas of the land frontier. At the closure of the oral proceedings the President of the Chamber stated that the Chamber considered that it was not yet in a position to reach a decision on this. Later, after deliberation, it decided that it was not necessary for it to undertake a visit to the site.11 Reference should be made to an incident of procedure which occurred during the Gulf of Maine case. It appears that at one time there was an understanding that the Chamber would not undertake such a visit. However, after the closure of the written proceedings, in a meeting on procedure with the President of the Chamber Canada indicated that it was withdrawing its opposition to a visit to the site. Shortly afterwards Canada informed the Chamber that it was preparing a film dealing with what it termed the “human geography” of the area in question. The United States objected to any presentation on a number of grounds. One of these was that the presentation of the film would be contrary to the previous understanding that an on-site visit to the Gulf of Maine area need not and, in the view of the two Governments, should not be conducted in this case. The letter of the United States agent of 18 October 1983 contains the following paragraphs: . . . I refer . . . to the previous understanding of the Parties, communicated to the President of the Chamber, that an on-site visit need not be conducted in this case. The Registrar of the Court raised the subject of a visit with the Parties in March of 1982, shortly after the formation of the Chamber and in the early stages of the preparation of the Memorials by the Parties. The Parties consulted on this question and agreed that they would jointly discourage the Chamber from conducting an on-site visit. During a subsequent meeting with the Registrar on 22 March 1982, the Deputy Agents . . . informed the Court that they saw no need for an on-site visit and indeed were opposed to one being held. Subsequently, on 11 May 1982, in keeping with Article 31 of the Rules of the Court, the Agents . . . met with the President of the Chamber and the Registrar to discuss this and other matters. At that time, the Parties reiterated for the President of the Chamber their common view that an on-site visit by the Chamber would serve no useful or necessary purpose and would, for local reasons, be undesirable to both Parties. The Court has relied upon the understanding not to conduct an on-site visit, for instance in the preparation of its budget for the biennium 1984–1985 . . . [T]he United

10 11

Ibid. 1965 at 9. And see the judgment of 18 July 1966, ibid. 1966 at 9. More on that in Sandifer, op. cit. in n. 1 above, at 346. ICJ Rep. 1992, at 361 (para. 22).

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States fears neither the facts nor the law of this case but is concerned about unnecessary or unanticipated politicization of these proceedings. In the absence of a compelling need, Canada should not now be permitted to withdraw unilaterally from that agreement and, without the consent of the United States, present what is, in effect, an unsatisfactory substitute for an on-site visit, subject to no safeguards and raising the very spectre of politicization that the Parties had previously agreed to seek to avoid in not encouraging an unnecessary visit. . . . [E]ven in the absence of prior agreement, the practice of the Court in regard both to visits and to films suggests that the Court should not permit the proposed Canadian film without the consent of the United States. As far as the United States can determine, no on-site visit has ever been conducted by the Court without the consent of all of the Parties. Indeed, in the only instance of which the United States is aware [a reference to the South West Africa cases], where one Party objected to a request by another Party for such a visit, the Court declined to conduct the visit . . . Thus, as far as the United States is aware, international tribunals have followed a practice of permitting on-site visits or admitting films only where the parties are not in disagreement.12

In his reply to the American contentions, Canada’s agent stated that in deference to the strong objections raised by the United States, Canada had not pressed its views concerning an on-site visit by the Court, “despite its opinion that such a visit would have assisted the Court in appreciating certain circumstances relevant to the delimitation of the maritime boundary”. After the film had been made and viewed by the United States, the American objections were renewed. Canada’s agent later informed the Agent of the United States, copied to the Registrar, as follows: For the record, I must point out that there was never any agreement between Canada and the United States regarding the question of an on-site visit by the Court. The United States, for its own reasons, expressed opposition to such a visit. Canada, for its own reasons, expressed reservations. There was in this a measure of coincidence of views but no “agreement” in the sense in which you [the United States] appear to use the term.

The letter goes on to explain that after the deposit of the second set of written pleadings Canada decided to withdraw its reservations, but without press-

12

The letter went on to discuss at some length relevant Rules of Court. It also referred to the Water from the Meuse case in the Permanent Court, the Corfu Channel case, and the Grisbadarna arbitration of 23 October 1909. For that arbitration, see United Nations, XI Reports of International Arbitral Awards 155. Since this article is concerned only with on-site visits, to use the American expression, the author wishes to reserve his position regarding the admissibility of films as a generality, without prejudice to the question of the admissibility of the particular film under discussion in that correspondence.

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ing for an on-site visit in light of the very strong opposition of the United States. Finally, Canada decided not to further burden the situation by asking the Chamber to view a film.13 There is at least one instance in which an individual member of the Court undertook on his own a visit to the site. In his dissenting opinion in the case concerning Sovereignty over Certain Frontier Land between Belgium and the Netherlands, Judge Moreno Quintana indicated that he had been to see for himself the area in dispute.14 * * * As has been mentioned, some sixty years earlier the Permanent Court had been faced with a similar matter in dealing with the Diversion of Water from the Meuse case between Belgium and the Netherlands. In its judgment of 28 June 1937 we read: At the hearing of May 7th, 1937, the Agent for the Belgian Government suggested that the Court should pay a visit to the locality in order to see on the spot all the installations, canals and waterways to which the dispute related. This suggestion met with no opposition on the part of the Netherlands Government, and the Court decided, by an Order made on May 13th, 1937, to comply with it. Adopting the itinerary jointly proposed by the Agents of the Parties, the Court carried out this inspection on May 13th, 14th and 15th, 1937. It heard explanations given by the representatives who had been designated for the purpose by the Parties and witnessed practical demonstrations of the operation of the locks and of installations connected therewith.15

In this connection, there is some interest in the Court’s order of 13 May 1937. After the formal recitals, the order goes on to state, in non-committal language, that in this case, an inspection on the spot may facilitate the Court’s task. Consequently the Court decided to carry out an inspection on the spot and to follow the itinerary jointly prepared by the agents of the parties, commencing upstream. The Court’s minutes of its visit to the places concerned in the proceedings indicate that the two agents and competent

13

14

15

For this correspondence, see Delimitation of the Maritime Boundary in the Gulf of Maine Area case, VII Pleadings at 328, 329, 334, 341, 352, 354, 355, 356, 372 (docs. 68, 70, 72, 83, 88, 89, 90, 91, 113). ICJ Rep. 1959 at 252. True, the disputed area was not far from The Hague and any member of the Court could have visited it at any time. However, a statement of that kind in an individual opinion of one of the judges borders on judicial impropriety. It is not for an individual member of an international court or tribunal to make his own inspection of the site. PCIJ, Series A/B 70 at 9. For the order, see Series C 81 at 553; and for the Court’s minutes of that visit, see ibid. at 222. According to Hudson, the Belgian suggestion was viewed not as an offer to present evidence, but as an invitation to the Court to procure its own information for a better understanding of the case. M.O. Hudson, op. cit. in note 4 above, at 566.

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engineers and other representatives of the parties were in attendance. The minutes set out in detail the places visited, and the persons who gave explanations or answered questions, but they contain no particulars of any questions asked or statements made. There is no mention in those minutes of any social or ceremonial engagements which without doubt were offered by the different hosts. * * * Some recent arbitrations have also conducted visits. The prolonged series of arbitrations between Argentina and Chile over frontier delimitation disputes produced a series of visits. In the Palena case of 1966, decided by a Court of Arbitration over which Lord McNair presided, special arrangements were made for an aerial inspection and photography of the disputed area, and for a field mission in which two members of the Court participated. In its Award the Court of Arbitration set out the details at length and expressed its gratitude for the assistance rendered by both parties to that field mission, which had audiences with the President of each country.16 The Court used the air photographs as authority for the exact location of some of the disputed frontier points. In the Beagle Channel arbitration of 1977, at the request of both parties the members of the Court of Arbitration (with Sir Gerald Fitzmaurice as President), accompanied by the Registrar and Liaison Officers from both sides, visited the Beagle Channel region after the conclusion of the written proceedings and before the opening of the oral proceedings. It inspected the islands and waterways concerned, first on a Chilean Naval Transport vessel and then on an Argentine Naval Transport vessel. Every possible assistance and facility was afforded by the personnel of both navies and by the individual representatives of the Parties participating in the expedition.17 Finally in this series, the International Arbitral Tribunal which determined the dispute concerning the frontier between Boundary Post 61 and Mount Fitzroy, presided by R.F. Navia, decided to visit the site. The visit took pace after the conclusion of the written proceedings and before the opening of the oral proceedings. The order of the visit was determined by lot, drawn in the presence of the parties’ Consuls General in Rio de Janeiro, the seat of the arbitration. The Tribunal first visited Chile, together with its Registrar and Geographical Expert. In Chile it was accompanied by the Chilean agent and other officials, together with an observer from Argentina,

16 17

Argentina-Chile Frontier Case, United Nations, XVI Reports of International Arbitral Awards 109, 149 (Award of 9 December 1966). 52 ILR at 116 (Award of 18 February 1977). That Court was composed entirely of members of the Court, and is frequently regarded as the forerunner of the ad hoc chamber formed under Art. 26 (2) of the Statute. Judge Bedjaoui was President of the Chamber that determined the Burkina-Faso/Mali Boundary case in 1986.

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and the reverse when it was in Argentina. In Chile the Tribunal was received in audience by the President of the Republic: in Argentina the President called on the Tribunal at its site.18 In the Taba arbitration between Egypt and Israel, the special agreement contained some rudimentary provisions regarding visits. The proceedings themselves were to consist, in addition to the normal written and oral proceedings, “visits, to sites which the Tribunal considers pertinent”. Visits were to be conducted in such order and in such a manner as the Tribunal should determine. Specifically, Each party shall facilitate the visits of the Tribunal. The agent of each party, and such other individuals as the agent may determine, shall be entitled to accompany the Tribunal during the visits. Members of the Tribunal shall be accorded by each party the privileges and immunities applicable under customary international law. The Tribunal shall be accompanied by such expert, technical and other staff as it deems necessary.19

The award includes the following paragraph: The Tribunal conducted a visit to selected sites within the disputed areas on 17 February 1988 [that is, after the conclusion of the written proceedings and before the opening of the oral proceedings]. The Tribunal’s visit itinerary was established in consultation with the Parties. Air and ground transportation within the disputed areas was provided by the Multinational Force and Observers (MFO), an organization established by the Parties pursuant to the Treaty of Peace and charged, inter alia, with maintaining security in the Taba area . . .20

In none of these cases are the precise details of the visit known. It must be assumed, however, that always the basic principle of the equality of the parties was the basis for the visit. It is also likely that in most cases they were “low profile”, although public interest in the disputes may well have made it necessary for the host country at a given moment to have made special arrangements for accommodating the electronic and written media. * * * Visits to the site are not matters to be taken lightly. They are strenuous for all those taking part in them and may require physical stamina – the visit to the Taba area, for example, involved clambering over rough ground up the wadi which was the principal object of the dispute. They are delicate,

18 19

20

Award of 21 October 1994, paras. 10, 11, 113 ILR 1. Arbitration compromise of 11 September 1986, article VIII (B), Appendix A to the arbitral award of 29 September 1988. United Nations, XX Reports of International Arbitral Awards at 110. Ibid. at 9 (para. 7). The Tribunal spent equal time – one night – in Egypt and in Israel.

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both for the Court or tribunal and for the Parties and their representatives, and for those who have to host them and make the logistical arrangements. They are also expensive. So far, not one of the visits surveyed in this brief overview (except in the Corfu Channel case) has been concerned with the obtaining of evidence. Each has had as its purpose to acquaint the Court or tribunal with the particularities of the situation on the spot, in order to facilitate understanding of the pleadings which in this type of case can become quite technical. Above all, visits to the site have hitherto not been concerned with any juridical questions. In that sense, at whatever stage of the case the visit takes place, it is not part of the pleading as such. The pleading itself, both as to fact and as to law, is a juridical act which is performed in the solemnity of the formal proceedings at the seat of the Court or arbitration. A visit to the site has a factual implication, for the better understanding of the issues at stake in the case. In this respect it is significant that in none of the instances of visits considered here has the judgment or arbitral award had anything more to say about the visit beyond the formal statements in the introductory procedural history of the case, to the effect that the visit has taken place. On the other hand, in all these cases, careful perusal of the judgment or arbitral award, especially in light of any individual opinions that may have been appended, indicates that in cases of this particular type, the visit without doubt made it easier for the Court or tribunal to reach its conclusions. To some degree, by bringing the Court or (perhaps to less extent) an arbitral tribunal into direct contact with the area in dispute, and in the nature of things with its population, a visit may detract from the distance from the scene which in principle is a characteristic of international litigation, and especially of judicial settlement before the Court. It can, unless care is taken, lead to a politicization which is so prominent a feature of the correspondence between the United States and Canada in connection with the Gulf of Maine case. That distance – by no means in the sense of placing the Court in an ivory tower of disembodied legalism – is reflected in the provisions of the Statute which establish the seat of the Court at The Hague – the only principal organ of the United Nations with an established seat elsewhere than at the Organization’s headquarters – with the proviso that this does not prevent the Court from sitting and exercising its functions elsewhere whenever the Court considers this desirable.21 That furnishes one explanation for the infrequency of visits to the site by the International Court, and for a general reticence of States involved in litigation before the Court to propose such a step.

21

Statute, Art. 22 (1). And see Art. 55 of the Rules of Court, requiring the Court to ascertain the views of the parties before so deciding.

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The value of the detailed arrangements which were made by the Parties with the Court for the visit in the GabÌcíkovo-Nagymaros case is that they supply valuable indications of the nature of the careful planning that is required, with the co-operation of all parties (including the Court itself ), before a visit to the site can be contemplated.

14 FACT-FINDING BEFORE THE INTERNATIONAL COURT OF JUSTICE

Da mihi factum, dabo tibi jus.

Every jurist understands that before he or she can give a worthwhile legal opinion, he or she must know the facts. This applies when the lawyer is giving advice, and it applies equally when he or she is rendering a decision. International law, and with it international lawyers and international litigation, are no exception. The Statute of the International Court of Justice makes adequate provision for clarification of two aspects of the facts. One is the orderly presentation in contentious cases of facts by the parties in their pleadings, written and oral. The second is the ability of the Court in both contentious and in advisory cases to make its own enquiry into facts – so far rarely used. Article 49 of the Rules of Court requires the memorial to contain a statement of the relevant facts, and the counter-memorial to contain an admission or denial of the facts and additional facts, if any. Although relevancy in that context is a subjective assessment, that provision assures the presentation and the airing of the facts and of any arguments on them throughout the written proceedings in every contentious case. If by Article 38 of the Rules a unilateral application instituting proceedings must contain a succinct statement of the facts and grounds on which a claim is based, the later pleadings require the formal and systematic development of the statement of facts by each party.1 The generic name for this adversarial presentation of facts is ‘evidence’.2 Article 48 of the Statute empowers the Court to make all arrangements connected with the taking of evidence. The wording of that provision is general. It is not limited, as a rapid reading of it might suggest, only to

1

2

The Court has given an explanation of the word ‘succinct’ in its judgment in the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) case, ICJ Rep. 1998, 275, 318 (para. 98): ‘. . . “succinct” in the ordinary meaning to be given to this term does not mean “complete” and neither the context in which the term is used in Art. 38 (2) of the Rules of Court not the object and purpose of that provision indicate that it should be interpreted in that way. Art. 38 (2) does therefore not preclude later additions to the statement of facts and grounds on which the claim is based.’ The word ‘evidence’ appears in Arts. 44, 48 and 52 if the Statute and in Arts. 57, 58, 62, 63, 66 and 79 of the Rules.

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the oral proceedings. Article 50 empowers the Court at any time to arrange for the carrying out of an enquiry or giving an expert opinion – a provision used only twice, each time in the same case, in the merits and the compensation phases of the Corfu Channel case.3 The second faculty open to the Court is its ability to make its own investigation into the facts if it is not able to reach satisfactory conclusions on the basis of the facts as the parties have presented them.4 There has been no instance of this yet, but isolated discussion of this aspect suggests that in a contentious case the Court would not assume a task of this nature without the agreement of the parties.5 (This is something distinguished from the research that an individual judge may undertake.) Articles 95 and 107 of the Rules of Court are at the apex of this emphasis on facts. Those provisions require a judgment and an advisory opinion to include a statement of the facts. The Court is free to determine what facts are relevant for any judgment or advisory opinion, and there have been cases, both in the Permanent Court and in the present Court, in which a judgment or an advisory opinion went straight in medias res without any statement of facts.6 This paper concentrates on the Court and modern scientific and technological facts. Before doing that, however, we must note the special problem of factfinding that the Court faces when one of the parties does not appear or fails to defend its case, for that is part of the Court’s case-law on evidence. In those circumstances, Article 53 of the Statute of the Court requires the Court to satisfy itself that the claim is well founded in fact and law. The Court’s experience of facts in this type of case is mixed. In the Corfu Channel (Compensation) case, the Court appointed a Committee of Experts to examine the figures and estimates submitted by the United Kingdom. The Experts placed a higher figure on the damages than was claimed, so the Court awarded the amount claimed on the basis of the ne ultra petita rule.7 In the provisional measures phase of the Anglo-Iranian Oil Company case, the Court relied only on the facts as presented in the memorial. However, provisional

3 4 5

6

7

ICJ Rep. 1949 4, 237. This follows Art. 30 of the Statute. The principal discussion of this aspect took place in the Military and Paramilitary Activities in and against Nicaragua (Merits) case, ICJ Rep. 1986 14, 22 (para. 25), 25 (paras. 30, 31), 38 (para. 57) and 40 (para. 61). This is one of the more questionable features of that judgment, which has excited widespread controversy. In the Permanent Court, see the Phosphates in Morocco case, PCIJ Ser.A/B 74 (1938), and in the present Court in an advisory opinion, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, ICJ Rep. 1996–I 226. The Court is always aware, form the documentation submitted to it by the Secretary-General or the equivalent officer of a specialized agency requesting an opinion, what prompted the organ concerned to request the opinion. The requirement of the Rules is technically met by a reference in the judgment or advisory opinion to the instrument instituting the proceedings and the subsequent proceedings. ICJ Rep. 1949 237 at p. 241.

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measures phases alone are not really indicative for the treatment of the merits. In the two Fisheries Jurisdiction cases against Iceland, the Court again relied only on the facts as stated by the applicants in their written and oral pleadings. There was no attempt to challenge or verify those facts. In the Nuclear Tests cases, the Court disposed of the cases on preliminary grounds without having to consider the merits. In the U.S. Diplomatic and Consular Staff in Tehran case, the facts on which the merits of the case depended were – in the Court’s own words – matters of common knowledge which had received extensive coverage in the world press and in radio and television broadcasts from Iran and other countries.8 In the Military and Paramilitary Activities in and against Nicaragua (Merits) case, one of the witnesses called by the applicant was closely questioned by the member of the Bench with the nationality of the absent respondent party, and in fact he retracted large parts of his evidence-in-chief. Nevertheless, the Court preferred that evidence, partly on the ground that a State that does not take part in the proceedings waives its right to cross-examine the witnesses.9 There is no question that modern international relations, and hence modern diplomacy and modern international litigation, is daily becoming increasingly concerned with scientific and technological facts. The law too, all law including international law, has to face this. For Governments, this interdisciplinary work does not present any insurmountable problem. Faced with any matter of this kind, most Governments can call upon appropriate expertise, whether in the country itself – from its academic, scientific, military and technological communities – or from the outside. The development of government positions in the Third United Nations Conference on the Law of the Sea, which posed innumerable questions relating to almost every branch of human knowledge, activity and science, provides an excellent example for this. A small illustration is seen in the evolution of the so-called Bay of Bengal clause, article 7, paragraph 2, of the United Nations Convention on the Law of the Sea. That was originally drafted with the Ganges/Brahmaputra River delta particularly in mind. However, it raised problems for any country with or near a river delta. That provision went through a series of drafts, indicating prolonged and widespread governmental study of the problem of deltas.10

8

9

10

ICJ Rep. 1980 3, 9 (para. 12). Nevertheless, reliance on the media, especially in cases of nonappearance, must be treated with care. Cf. the retraction by CNN of an important story broadcast by a Pulitzer Prize journalist in the International Herald Tribune Tel Aviv edition, 4–5 July 1998 at p. 5. ICJ Rep. 1986 14, 25 (para. 30). Facts that have become known since suggest that the Court may have erred in its findings of fact in this case. See Sh. Rosenne, The World Court: What it is and How it works 5th edn. 152 (1995). For that Convention, see 1833 UNTS 3. On that legislative history, see University of Virginia,

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For the International Court of Justice, for all courts and tribunals in fact, the position is quite different. Courts, even with the widest powers for obtaining ‘evidence’, do not have this unlimited ability to place a telephone call or send a fax or today an e-mail to whomsoever they wish for an expert practice-oriented opinion as a matter of applied science. They are all largely dependent on the evidence placed before them. In practice, they will have recourse to outside experts only when their participation in the proceedings has been agreed between the parties and the Court. Nevertheless, as Sir Robert Jennings has written, the International Court has not infrequently employed cartographers, hydrographers, geographers, linguists and even very specialized legal experts to assist in the understanding of the issues in a case before it.11 That is a significant observation. It highlights the tension that inevitably exists between the legal conception of ‘fact’ and of evidence, and the conception which other disciplines, especially the exact and applied sciences, hold about facts and evidence. This calls for a closer examination in so far as it concerns litigation in the International Court of Justice. In addition, thanks to new provisions inserted into the Statute when it was redrafted in 1945, the Court now has the power to request of ‘public international organizations’ what is termed ‘information relevant to cases before it’.12 This is not limited to the specialized agencies, which, however, by virtue of the relationship agreements concluded between them and the United Nations are obliged to render appropriate assistance to the International Court. The Statute does not state how this information is to be given, and there is no reason why the experts of the appropriate public international organization should not supply it in person, and be subject to questioning by the parties and from the Bench. The existence of this tension appeared in the first contentious case to come before the present Court – the Corfu Channel case.13 The issue concerned the facts of offensive and defensive naval operations in mine-infested waters in a situation of post-war international tension and uncertainties. One sentence in the judgment on the merits in that case illustrates the point. ‘Being anxious to obtain any technical information that might guide it in its search for the truth, the Court submitted the following question to the Experts

11

12 13

Center for Oceans Law and Policy, S. Nandan and Sh. Rosenne (eds.), The United Nations Convention on the Law of the Sea: A Commentary, vol. II at p. 95 (1993). No doubt many geographers, geologists and other experts on river delta were consulted world-wide before that text was finally settled. R. Jennings, “International Lawyers and the Progressive Development of International Law”, in J. Makarczyk, ed., Theory of International Law at the Threshold of the 21st Century: Essays in honour of Krzysztof Skubiszewski 416 (1996). Statute, Art. 34, para. 2. On the application of this, see Sh. Rosenne, The Law and Practice of the International Court 1920–2005, vol. II 620 (2006). ICJ Rep. 1949 4.

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appointed by it’ (p. 20). The Experts were three senior neutral naval officers with wartime experience, and the questions were formulated after the parties had been given the opportunity to make suggestions to the Court.14 In producing their reports, the experts acted as professional naval officers reporting on a naval incident to their authorities. Those reports did not decide the case. They supplied the Court with ‘correct and impartial information’ (p. 21) on which the Court could base its findings of fact as the foundation for its decision. The use of the word ‘information’ has its interest. ‘Information’ is distinguished from ‘evidence’. That was the first occasion on which the International Court, as opposed to Governments, had enlisted impartial and professional assistance to supply it with information necessary for it to reach a tenable conclusion. That was the first occasion on which the International Court, and probably any international tribunal, accepted that legal criteria and experience alone could not always be adequate for the tasks that the Court had to perform. Nevertheless, the Court has so far refrained from pursuing a similar course when faced with carefully prepared technical and professional contentions in both advisory and contentious cases. It has always attempted to resolve these issues solely through the application of the Court’s legal techniques. Three examples illustrate this, one from the advisory jurisdiction and two from the contentious jurisdiction. In the advisory jurisdiction, the most striking instance is found in the advisory opinion on Legality of the Threat or Use of Nuclear Weapons.15 The only piece of impartial scientific information officially before the Court, and then not in that case but in the parallel case of Legality of the Use by a State of Nuclear Weapons in Armed Conflict16 was a report by the Director-General of the World Health Organization entitled Health and Environmental Effects of Nuclear Weapons.17 In the advisory opinion under consideration, the Court stated quite clearly that it found it unnecessary ‘to study various types of nuclear weapons and to evaluate highly complex and controversial technological, strategic and scientific information’ (p. 237, paragraph 15). In another place the Court referred to the ‘material before the Court’ regarding the causes of damage in nuclear weapons, but without any indication of what that material was or its provenance (p. 243, paragraph 35). That indeed was in the introductory paragraph to the main part of its opinion. In one of the operative clauses of that advisory opinion the Court went so far as to refer

14

15 16 17

Corfu Channel case, Pleadings, vol. V, pp. 230, 240, 243, 246, docs. 249, 266, 275, 279. The parties did not avail themselves of that invitation and left the matter in the hands of the Court. ICJ Rep. 1996–I 226. ICJ Rep. 1996–I 66. WHO doc. A46/30, 26 April 1993.

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to the ‘elements of fact at its disposal’ (p. 266, paragraph 105 (2) E). This did not prevent a remarkable dissenting opinion by Judge (later Vice-President) Weeramantry largely devoted to the nature and effects of nuclear weapons.18 In that dissenting opinion Judge Weeramantry found it necessary to examine the specific facts, ‘at least in outline’ (p. 451), because ‘bland and disembodied language should not be permitted to conceal the basic contradictions between the nuclear weapon and the fundamentals of international law’ (p. 452). The purpose of that observation here is to illustrate the Court’s handling of difficult scientific questions exclusively within the confines of legal concept of ‘facts’.19 The second illustration, and in some respect the more serious, is the judgment in the Continental Shelf case between Tunisia and Libya.20 Certainly, the core issue in that case was the legal meaning of the fundamental concept of the continental shelf as the natural prolongation of the land domain (p. 43, paragraph 36). Each side produced a large quantity of technical evidence on the geological and geomorphologic history of the formation of the relevant part of the sea-bed. Clarification of that issue would have gone a long way towards disposing of the case as a whole. Much of that judgment examines the contentions of the parties regarding the character of the seabed. That had been the subject of ‘very abundant examination by the Parties, and of detailed scientific studies by their experts [necessarily partisan – Sh. R.] during the written and oral proceedings’ (p. 41, paragraph 32). That was to require the Court to appreciate a Libyan argument based on a ‘comparatively recently developed theory known as plate tectonics’ (p. 59, paragraph 52). However, the Court concluded this lengthy if simplified account of geological theories with the following: [I]t is not possible to define the areas of continental shelf appertaining to Tunisia and to Libya by reference solely or mainly to geological considerations. The function of the Court is to make use of geology only so far as required for the application of international law. It [the Court] is of the view that what must be taken into account in the delimitation of shelf areas are the physical circumstances as they are today; that just as it is the geographical configuration of the present-day coasts, so also it is the present-

18

19 20

Note 15 above. Judge Weeramantry in effect was continuing his dissenting opinion in the parallel case, ibid. at 97. These opinions themselves follow on his earlier opinion in the Request for Examination of the Situation in accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) case, where he concentrated on the environmental aspects of submarine nuclear tests, ibid. at 317. My views on these cases are set out in an article entitled “The Nuclear Weapons Advisory Opinions of 8 July 1996”, Israel Yearbook on Human Rights 1997 at 263. ICJ Rep. 1984 18. Nevertheless, if this material was irrelevant for the decision, some method should have been found to apprise the parties of this earlier in the proceedings, if only to save them from unnecessary expenditure.

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day sea-bed, which must be considered. It is the outcome, not the evolution in the long-distant past, which is of importance (p. 53, paragraph 61).

To say that the issue thus examined was close to the core of the case is not a satisfactory answer to the question of principle that is being examined here. That question addresses the correctness and even the appropriateness of a procedure that allows and even requires the parties to go to the lengths that they did in this case, and to incur the heavy expenditure that they did incur, only to be told that in legal terms what is relevant is the sea-bed as it exists today, and not how it was formed over millions of years and its evolution in the long-distant past. On the other hand, if the geological history had been found to be relevant, the question could have arisen whether the Court alone should even attempt to assess that technical evidence as submitted to it. If, as in this case, the Court is to find that there is no relevance in certain scientific evidence and the issues to which that evidence is directed, procedures need to be put into place to permit the matter to be dealt with as early as possible. The written proceedings should in most cases present a sufficient basis, with perhaps a short hearing directed exclusively to that issue. This would simplify the proceedings on the merits and clarify the final decision of the Court. That aspect of this case has been brought in here to illustrate how modern science comes into modern international relations and hence into modern international litigation, and the need for the Court to adapt its procedures to this. The Court seems to have reached a similar position in the GabÌcíkovoNagymaros Project case between Hungary and Slovakia.21 A major factual issue in this case related to the contention of Slovakia’s responsibility for a grave and immediate peril to the environment to Hungary’s detriment. On this, the judgment states that the verification of the existence of the grave and imminent peril invoked by Hungary and of the absence of any means to respond to it other than the measures actually taken by Hungary to suspend the work, ‘are all complex processes’. The judgment continues: Both parties have placed on record an amount of scientific material aimed at reinforcing their respective arguments. The Court has given most careful consideration to this material, in which both Parties have developed their opposing views as to the ecological consequences of the Project. It concludes, however, that, as will be shown below, it is not necessary, in order to respond to the question put to it in the Special Agreement, for it to determine which of those points of view is scientifically better founded (paragraph 54).

Nevertheless, later in that judgment the Court made pronouncements regarding the environmental impact of the Project and the duties of the parties in 21

ICJ Rep. 1997 7.

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regard to the protection of the environment, which was a key issue for their future relations: ‘The numerous scientific reports which have been presented to the Court by the Parties – even if their conclusions are contradictory – provide abundant evidence that this impact and these implications are considerable’ (paragraphs 139 and following). Would it not have been better for the Court to have sought impartial technical information and thus rendered a judgment more specific on these scientific matters? This brings me to the crux, and here let me recall at the start that the International Court is not the only superior court to have to face this problem. There is however one major difference between the International Court and other superior courts. The International Court is a court of first instance and a court of last resort, for its judgments are final and without appeal. It is this provision of Article 59 of the Statute that is likely to pose special difficulties for the Court when confronted with this kind of question. The Supreme Court of the United States has frequently had to face this problem, and the Federal Rules of Evidence make appropriate provision for it. The Court reviewed the issue of scientific evidence at the end of 1997, in a tort case involving medical injuries.22 Justice Breyer delivered an important concurring opinion regarding the duties of a trial judge to ensure that any and all scientific testimony or evidence admitted is not only relevant, but also reliable. This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer, particularly when a case arises in an area where the science itself is tentative or uncertain.

The learned Justice continued: I want specially to note that, as cases presenting significant science-related issues have increased in number . . . judges have increasingly found . . . ways to help them overcome the inherent difficulty of making determinations about complicated scientific or otherwise technical evidence. Among these techniques is an increased use of . . . pretrial conference authority to narrow the scientific issues in dispute, pretrial hearings where potential experts are subject to examination by the court, and the appointment of special masters and specially trained law clerks.

Justice Breyer referred here to an amicus curiae brief filed by the New England Journal of Medicine. The brief suggested that reputable experts could be

22

General Electric Company et al. v James et al. (1997) Nos. 96–188, 118 S. Ct. 512 (certiorari). This was a toxic tort case, and the action in the Supreme Court related to the lower court’s handling of expert evidence. Copy of the opinions of the Supreme Court received through the courtesy of Mr Peter Bekker of McDermot, Will & Emery of New York.

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recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science. He then quoted a provision in the Rules of Evidence to the effect that the court may, of its own motion or on the motion of any party, appoint an expert on behalf of the court. The parties may agree on this expert, or the Court may make the choice. He concluded: Given this kind of offer of cooperative effort, from the scientific to the legal community, and given the various Rules-authorized methods for facilitating the court’s task, it seems to me that [the Court’s] gatekeeping requirement will not prove inordinately difficult to implement; and that it will help to secure the basic objectives of the Federal Rules of Evidence; which are, to repeat, the ascertainment of truth and the just determination of proceedings.23

The amicus curiae brief filed by the New England Journal of Medicine deserves closer scrutiny.24 Discussing the nature of scientific evidence, the brief made the following remark: Perhaps the most important hall mark of science is its complete reliance on objectively verifiable evidence. That usually means that something must be counted or measured. The reliance on concrete evidence distinguishes science from all other human endeavors (p. 5).

Dealing with medical evidence, the brief explains the scientific method. First the scientist needs to formulate the question he wants to answer and design a study that is capable of answering it. After the study is designed, researchers must collect data. ‘This is the concept that many nonscientists are least comfortable with, because it “reduces everything to numbers”.’ The brief points out (p. 10) that ‘everything’ cannot be reduced to numbers, but some things can and must be; and it continues: To reach a conclusion about the physical world, we need numbers because they are often the only way that evidence can be expressed. What is enumerated depends on the study design. When the data are assembled, they must be analyzed appropriately. Often the analysis consists of comparing one set of data with another set to lead to a logical conclusion (p. 10).

The brief turns to the final step in a research study, drawing the proper conclusions. ‘Interpreting a study is perilous because of the strong temptation to reach conclusions that are more encompassing than the evidence will support’

23 24

LEXIS 7503* at *8. Brief received through the courtesy of Mr Donald Schnabel of New York and the New England Journal of Medicine, Boston, Massachusetts.

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(p. 11). And it goes on: ‘Mistakes in drawing conclusions are particularly likely when researchers have strong preconceptions about the question they are studying. The conclusions of research study must be limited to those – and only those – that follow logically and necessarily from the data’ (ibid.). The brief looks at what it terms ‘Peer review and Publication’. In science, the requirement for verifiable evidence must be met, no matter what the researchers are or what their credentials. Not even Nobel laureates are permitted to base a scientific conclusion on educated speculation. (They can, of course, speculate or hypothesize, but that speculation will not be accepted as evidence unless it is put to the test.) One of the most important protections against unwarranted conclusions is the system of peer review and publication . . . Researchers are expected to write up their study in a standardized way, with sections dealing with the methods, results, and conclusions, and submit the paper to a scientific journal. The editors of the journal then send the paper for evaluation by other scientists working in the same field. This process of peer review is the cornerstone of scientific research. (Note that scientists performing peer review evaluate the researchers’ study design, technical methods, analysis and interpretation, not their principles, theories or hypotheses.) The reason peer review is so important that even the most honest researchers cannot be expected to judge their own work dispassionately. They are likely to be enthusiastic about their ideas and, almost by definition, not aware of flaws in the design of their study or the interpretation of their data. The process of interpretation is seldom clear-cut, and it is easy to be unaware that the data are inadequate to support the conclusions. Without the discipline of organizing and presenting their evidence, and without the criticism and revisions stimulated by the peer-review process, researchers may unconsciously misrepresent their work or exaggerate its importance (pp. 11–12).

Next the brief examines scientific uncertainty. In addition to the reliance on objective evidence collected in properly designed studies, science is also characterized by its tentativeness. ‘This may seem counterintuitive to nonscientists who may think science is “cut-and-dried.” But, in fact, good scientists rarely reach absolute conclusions’ (p. 13). After some further interim discussion, the brief addresses the major question of defining evidence in science and in law. The most important feature of scientific research is its dependence on objective evidence. No scientific conclusion can be accepted without evidence. This is perhaps the only feature of science that it absolute. The law also depends on evidence, but the term has a different meaning in a courtroom. The opinion of a properly qualified expert witness is considered to be ‘evidence.’ Expert witnesses need not, however, produce objectively verifiable data to buttress their opinions, let alone point to a consistent body of research published in peer-reviewed scientific journals. In a sense, this is the reverse of the scientific method. In science, objective evidence leads to an opinion; in the courtroom, the opinion of an expert becomes evidence. A court’s emphasis on the qualifications of expert witnesses is very different from the standards of science, in which

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ad hominem considerations are minimized. Scientists are trained to look at the strength of the data, not the credentials of the researcher. Associated with the law’s emphasis on the credentials of expert-witnesses is a highly individualistic view of science. In the courtroom, the testimony of expert-witnesses may be based on their own research, published or unpublished (p. 17).

Against that background the brief approaches the cardinal issue of how to bring science and the law together. It is this passage that particularly attracted Justice Breyer’s attention. It makes the constructive suggestion that reputable experts could be recommended to courts by established scientific organizations. ‘These experts, representing neither side, could evaluate the expert testimony and generally interpret for the judge the current scientific knowledge about the matter at hand. In essence, the scientific community, by relying on its usual methods of research, peer review and publication, would be helping the judge to fulfill his or her required . . . role of screening testimony for reliability and relevance’ (pp. 18–19). And the conclusion: A scientific question can be answered only through rigorous scientific research. There should not be one standard for scientists and another for the courtroom (p. 19).

This idea of combining the rigour of the scientific community with the requirements of the courtroom is worthy of further consideration in the international context. In a sense, that is what the Court did in the merits phase of the Corfu Channel case when it requested experienced neutral naval officers to assist it in establishing, or perhaps in better understanding, conflicting or inconclusive testimony about the facts. The Court was careful in that case not to allow the experts to decide the case. ‘The Court cannot fail to give great weight to the opinion of the Experts who examined the locality in a manner giving every guarantee of correct and impartial information’ (p. 21). From all the facts and observations which it mentioned, the Court drew its own conclusions (p. 22), and those conclusions formed the basis for the conclusions in law on which the Court decided the case. The concept of enlisting duly qualified scientific bodies in a binding decision-making process has been introduced into modern international law in the United Nations Convention on the Law of the Sea of 1982 (n. 10 above). Article 289 provides that in any dispute involving scientific or technical matters, a court or tribunal exercising jurisdiction under the Convention may, at the request of a party or proprio motu, select in consultation with the parties no fewer than two scientific or technical experts chosen preferably from the relevant list prepared in accordance with Annex VIII of the Convention, to sit with the court or tribunal but without the right to vote. The International Court can (under article 287 of the Convention) exercise jurisdiction under this Convention, so that article 289 could be applicable to it

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provided that the Court is satisfied that it is not incompatible with any provision in the Statute. Annex VIII of the Convention is based on the same conception. It deals with what is there termed ‘Special arbitration’, that is arbitration by a panel not necessarily composed of lawyers. Four types of special arbitration are envisaged there, relating to: (1) fisheries, (2) protection of the marine environment, (3) marine scientific research and (4) navigation, including pollution form vessels and by dumping. For this purpose, lists of experts are to be drawn up by the Food and Agriculture Organization, the United Nations Environment Programme, the Intergovernmental Oceanographic Commission and the International Maritime Organization. While the parties to a special arbitration do have a certain freedom as to whether the panel shall be composed exclusively of persons on the appropriate list, the International Tribunal for the Law of the Sea, established by article 287 and Annex VI of that Convention, will be bound to apply article 289. In article 15 of its Rules of Tribunal it has established a regular procedure for the application of article 289.25 The International Court of Justice is the principal judicial organ of the United Nations,26 and there is a widespread view that this makes it the principal judicial organ of the whole United Nations system. That system includes not only the specialized agencies, two of which (FAO and IMO) only are mentioned in article 289 of the Law of the Sea Convention, but also a vast and perhaps amorphous conglomeration of miscellaneous organs (many of which would defy formal description within the terms of Article 7 of the United Nations Charter),27 embracing virtually every branch of human activity. Alongside the intergovernmental bodies, there are an even larger number of non-governmental organizations, including many scientific bodies meeting the requirements that the New England Journal of Medicine has enumerated. Justice Breyer was speaking as a member of the highest court in the land, in a case that had already gone through appropriate proceedings in the lower courts. He mentioned three ways to help judges overcome the inherent difficulty of making determinations about complicated scientific or otherwise technical evidence: pre-trial conference, pre-trial hearings, and the appointment of special masters and specially trained law clerks.

25

26 27

For the ITLOS Rules of the Tribunal, see ITLOS, Basic Texts 2005, 16 (2005). In fact, the idea is older and is found in art. 9 of the Convention on Fishing and Conservation of the Living Resources of the High Seas of 1958, 559 UNTS 285. That envisages compulsory dispute settlement by a commission consisting of persons ‘specializing in legal, administrative or scientific questions relating to fisheries, depending on the nature of the dispute to be settled’. No dispute has been brought before such a commission for settlement. Charter. Art. 7. Cf. D. Sarooshi, “The Legal Framework Governing United Nations Subsidiary Organs”, 67 British Year Book of International Law 413 (1996).

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All these machineries exist, at least potentially, in the Statute and Rules of the International Court. The concept of pre-trial conference was introduced formally (it has always existed in fact) in Article 40, paragraph 1, of the amended Rules of 1972 (previously Article 37 of the 1946 Rules). It is now retained, in a slightly revised form, as Article 31 of the Rules of 1978. As formulated, and as applied in practice in effect from the establishment of the Permanent Court in 1922, these conferences have been limited to participation of the representatives of the parties and the President (including the Acting President) alone, apart from the all-important Registrar. They are ‘off the record’ in the sense that whatever notes participants may make of them, no formal record is published. No other member of the Court is present. Much of what is discussed at these conferences is not controversial, or not seriously so, such as the fixing of time limits and other aspects of procedure. The time has come for reconsideration of the function and nature of these consultations and of participation in them. For non-controversial matters, there is no need for any change. But in complicated matters, the question may be asked whether there is not room for developing the whole concept of ‘consultation’ into some form of pre-trial conference at which issues in dispute could be narrowed down. Could not other Members of the Court be added to the participants? The Vice-President and perhaps the next senior judge? Judges of the nationality of the parties, whether Members of the Court or ad hoc? Or perhaps the Chamber of Summary Procedure could be converted into a kind of Steering Committee at which pre-trial controversial aspects could be examined and narrowed down? The President and VicePresident are ex officio members of that Chamber and there are provisions for the participation of national or ad hoc judges. There are other possibilities, but this is not the place to detail them. The essential point is that under the current Statute and Rules of Court the possibility of a more developed pre-trial conference than has been encountered hitherto certainly exists, and that consideration should be given to expanding its role in appropriate cases. For instance, should the parties in the Tunisia/Libya case have been obliged to pursue expensive pleadings about plate tectonic theories if the Court was to find them irrelevant? Could not some procedure have been devised for that issue of relevance in those proceedings to be ironed out earlier? Should Hungary and Slovakia have been put to the huge expense of experts’ reports and pleadings, only to be told that the scientific data was irreconcilable, leaving the Court to making some general statements about their duties in regard to the protection of the environment and its reconciliation with economic requirements – problems which in their generality are well known? The possibility of pre-trial hearings where potential experts are subject to examination by the Court is something that needs to be explored. The Statute would certainly permit the introduction of this procedure, through Article 48. What little experience there is of the examination of party-called

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experts by the Court in formal hearings – in the South West Africa (Merits) cases, for instance – leaves the reader with a deep feeling of unease. By temperament, by training, and by experience, very few of the Members of the International Court of Justice are really qualified to assess the credibility of a witness or the reliability of an expert. The diplomatic or academic background of many of them militates against their finding that a witness was not telling the truth, or that an expert was not being objective or even that the person was not qualified, or holding that a document filed was for any reason not authentic or accurate and for that reason inadmissible. In the Corfu Channel (Merits) case the Court simply said what it said ‘[w]ithout deciding as to the personal sincerity of the witness . . . or the truth of what he said’.28 In the South West Africa (Merits) case the Court’s unease at the hearing of a long series of witness-experts and its unhappiness when their expertise was challenged on the voir-dire comes through virtually every page of their long testimony.29 If the authenticity or accuracy of a document is challenged, usually a discreet way is found to dispose of the issue, but occasionally contentions relying on that document have been withdrawn, not requiring any reaction from the Court.30 Finally we come to the idea of special masters. In the Anglo-American legal system, the term Master is applied to court officials with quasi-judicial powers, usually subject to control of a judge or an appeal to a judge. A special master is an officer of the court appointed, after consultation with the parties, to assist the court, for instance by hearing about the facts and reporting to the court before the case comes to trial. This leaves the decision to the court. There is nothing to prevent the International Court from adopting such a procedure when it is faced with complicated facts, and especially with technical facts. Here again, Article 48 of the Statute at least, and together with it Articles 49 and 50, supply a statutory basis for the introduction of this type of proceeding.

28

29

30

Note 13 above at p. 16. Re-reading that witness’s evidence after the passage of nearly 60 years, one is impressed at the diplomatic manner in which the Court then disposed of the issue of his credibility. It is doubtful if a national Court would have been so refined. On this, see K. Highet, “Evidence, the Chamber and the ELSI case”, in R.B. Lillich, ed., Fact-finding before International Tribunals, Eleventh Sokol Colloquium (1997) at p. 54 n. 58. See also D.V. Sandifer, Evidence before International Tribunals, revised edn, 340 (1975). An incident of this character occurred in the Arbitral Award of the King of Spain case, ICJ Rep. 1960 192. It is not mentioned in the judgment, but see the Pleadings in that case, vol. II at pp. 168, 169. In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, one party challenged the authenticity of a large number of documents filed by the other party. After consultation with the President and after deliberation the Court in its order of 30 March 1998 adopted a special procedure for dealing with the matter at the stage of the written proceedings, ICJ Rep. 1998 243.

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At the same time, a word of caution is required. It would be essential that all these procedures, if they become applicable in the International Court and in international litigation generally, should by narrowly focused on an immediately relevant issue, whether of fact or of law, or of both, on which the parties and the Court have agreed. If that is not done, there is always a risk that they would degenerate into what is sometimes called a ‘fishing expedition’. In domestic litigation processes such as ‘discovery’ are sometimes used for this purpose, under the control of the court or tribunal seised of the case, and there is no reason why similar practices should not be introduced into the Court’s procedure. But that is essentially a procedure between the parties. The three procedures suggested in the U.S. Supreme Court which are seen to be appropriate and applicable in the International Court are not purely procedures inter partes, but require the active participation of the Court or its delegated representatives in all phases. * * * The Permanent Court of International Justice adopted the first Rules of Court in 1922. These were amended slightly in 1926, 1927 and 1931. They were thoroughly revised in 1936. The records of the Permanent Court’s discussions on those Rules of Court have been published. Experience has shown those records to be essential for a proper understanding of the Rules. The International Court of Justice adopted those Rules, with minor modifications, in 1946. They were amended in 1972 and thoroughly revised in 1978. No records of those discussions have been published. Yet on closer inspection one can see that basically, the Rules as they exist today do not differ in their fundamentals from those first adopted in 1922, notwithstanding the thick crust of judicial experience deposited on them. The original Rules were in the nature of things heavily influenced by international arbitration practice as it had developed throughout the nineteenth century. The 1978 Rules incorporate modifications and additions for the most part based on accretive judicial experience. Yet in fact the Rules have only been seriously reexamined twice since their initial promulgation, in the revisions of 1936 and of 1978. Neither of those revisions disturbed the fundamental structure or elements of the Rules of Court as first set out by the Permanent Court. It is becoming increasingly realized that international law – all law in fact – is growing daily more interdisciplinary and even multi-disciplinary. This interdisciplinary character has two aspects. In one sense it is becoming more and more difficult to break the law down into independent or semiindependent branches or categories. The classification of a rule or law is a matter of great difficulty, both philosophically and pragmatically. In international law and relations this finds expression in the virtual impossibility of separating substantive and adjectival law – the black letter rules of the law themselves and the rules of procedure for their application. The second sense of this interdisciplinary character serves to indicate that the law cannot be

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successfully developed, understood, or applied, in a world of itself. It is interfused with other disciplines, and with other branches of human activity, of human interest and of human science. The brief quotations from the Nuclear Weapons advisory opinion give an inkling of that is in mind. With these developments rapidly unfolding before our eyes, we have to ask ourselves repeatedly whether the machinery for the application of the law is adequate for the life of the twenty-first century. Can the principal judicial organ of the United Nations continue to be governed and to govern itself and its activities on the basis of rules now over 85 years old? One can go further. In intellectual and academic circles the question is being asked with growing frequency, whether the settlement of disputes through courts composed exclusively of lawyers is the most appropriate form of a dispute settlement organ. That is the challenge. That is where the Court’s procedures for handling evidence and scientific information are urgently in need of aggiornamento, of bringing up to date. We have to be grateful to the New England Journal of Medicine and to Justice Breyer for their showing us some of the ideas that have to have their place in a modern judicial system.

15 CONTROLLING INTERLOCUTORY ASPECTS OF PROCEEDINGS IN THE INTERNATIONAL COURT OF JUSTICE

Profound changes in the structure and composition of today’s international community of states and equally profound changes in the kinds of dispute coming before the International Court of Justice are making essential a thorough review of the Court’s methods of handling contentious cases, and possibly advisory cases as well. Attention has been focused on hearings, where some useful modifications have been introduced. It seems, however, that more is needed than adjustments in the oral proceedings, which nevertheless can serve as the point of departure for further developments. Article 48 of the Statute gives the Court almost unfettered power to “make orders for the conduct of the case . . . and to make all [emphasis supplied] arrangements connected with the taking of evidence”. As will be seen, in 1999 the General Assembly of the United Nations has encouraged the Court to adopt additional measures aimed at expediting its proceedings. This Note has the limited purpose of drawing attention to some recent measures taken by the Court with that end in view, and suggests directions for a more fundamental change in the Court’s procedures. The Court’s former President, Judge S.M. Schwebel, in his statement to the United Nations General Assembly on 27 October 1997, indicated that the Court was adopting a range of alterations to its working practices, as part of its efforts to maximize the Court’s efficiency.1 Not all of these alterations have been announced, but some can be deduced from several of the Court’s recent pronouncements. One of those unannounced alterations has been to dispense with a hearing, even in instances where the Statute or the Rules of Court in their 1978 version would appear prima facie to require hearing the parties.2 Instances of this are found in a judgment, in orders regarding the admissibility of counter-claims, in one order indicating provisional measures of protection, in an order concerning the admission of a request for permission to intervene under Article 62 of the Statute, and decisions under Article 31 of the Statute regarding the appointment of judges

1 2

UN Doc. A/52/PV.36 (provisional), p. 5 (27 October 1997). A linguistic curiosity one sometimes encounters in literature about the Court is the expression “oral hearings”. Are any other kinds of hearings possible? Perhaps yes, cf. note 8 below.

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ad hoc. All these relate to incidental proceedings, and all except the judgment relate to proceedings that were clearly interlocutory. This Note will survey this development and attempt to set it in a larger context. The remarks that follow are critical, for the reason that they suggest that not all the Court’s decisions were compatible with the expectations generated by the Rules of Court. That criticism is not intended to deter the Court from adjusting its Rules to overcome those divergences. I. A judgment It is common ground that proceedings on a request for the interpretation of a judgment are independent proceedings, entered under a new number in the Court’s General List. Article 98, paragraph 4, of the 1978 Rules of Court gives the Court freedom to decide whether, after the other party has filed its written observations on the request for interpretation, to afford the parties the opportunity of furnishing further written or oral explanations. This notwithstanding, whether or not the Court exercises that discretion does not alter the fact that the proceedings introduced by the request are new proceedings, standing on their own. As such, one might think that they would come within the scope of Article 43, paragraph 1, of the Statute, by which the proceedings shall consist of two parts: written and oral (La procédure a deux phases: l’une écrite, l’autre orale). That seems categorical enough and, being in the Statute, it overrides the Rules. Article 98 of the Rules cannot derogate from the Statute, and neither the Statute nor the Rules as they now stand foresee the possibility of dispensing with oral proceedings. In the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections) (Interpretation) case, the Court held a public session for the purpose of enabling the two judges ad hoc to make the required solemn declaration. In that session, the President emphasized that “a request for interpretation, inasmuch as it is submitted in an instrument instituting proceedings, does not fall within the category of incidental proceedings: it gives rise to a new case”. That new case was “procedurally independent” from the principal case in progress between Cameroon and Nigeria following the dismissal of the preliminary objections. At the same time he stated that the Court considered that it had sufficient information on the positions of the parties after the filing of Cameroon’s observations, and accordingly did not consider it necessary to invite the parties to furnish further explanations.3 The Court then proceeded to deliberate and in due course handed down a judgment read at a public session of the Court. That judgment was slightly more explicit. It stated that in light of the dossier submitted to it, the Court,

3

ICJ, CR 99/3, 17 February 1999, p. 3.

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considering that it had sufficient information on the positions of the parties, did not deem it necessary to invite them to “furnish further written or oral explanations” as “Article 98, paragraph 4, of the Rules allows it to do”. In that judgment, the Court declared inadmissible the request for the interpretation of the earlier judgment.4 This is the first time since the Permanent Court of International Justice commenced functioning in 1922 that a judgment of the Court has not been preceded by a hearing (as opposed to judgments of the Chamber of Summary Procedure, where different rules apply). The judgment creates a res judicata, and for that reason alone dispensing with a hearing is a questionable precedent, to be followed only in the most exceptional circumstances. There is no provision in either the Statute or the Rules that requires a decision on the admissibility of a request for the interpretation of a judgment to be in the form of a judgment, but if it is in that form, the judgment normally should follow the two-phased procedure required by the Statute. Furthermore, in this case, where the request related to the interpretation of an interlocutory judgment on preliminary objections, it might be thought that even if “procedurally independent”, the proceedings on the request itself would lead to an interlocutory decision which could be in the form of an order. II. Counter-claims In the 1978 Rules of Court, for unexplained reasons the Court introduced in Article 89, paragraph 3, the requirement that in the event of doubt as to the connection of a claim presented by way of counter-claim and the subject matter of the claim of the other party “the Court shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings”. In that text, the expression “after hearing the parties” replaced “after due examination” in previous texts, and the reader is justified in assuming that it means what it says. The categorical language of that provision led me to write that it means that “in future there will always be some oral proceedings” in the event of doubt.5 When those Rules were promulgated, neither the Permanent Court nor the present Court had had much experience of counter-claims, and none at all of cases where the

4

5

1999 ICJ Rep. 31. On this public session, see Press Communiqué 99/13 (22 March 1999). Judge ad hoc Ajibola’s strong dissenting opinion shows that the question of the application of Art. 98 of the Rules was thoroughly ventilated in the Court’s deliberations. Shabtai Rosenne, Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice 171 (1983); repeated in III The Law and Practice of the International Court 1920–2005, at 1232 (2006): and Counter-claims in the International Court of Justice Revisited, p. 267 below.

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admissibility of a counter-claim was challenged peremptorily immediately on receipt of the counter-memorial – which made it reasonable to assume that should such a case occur, the Court would not diverge from the rule that it had established. This was rudely shattered in 1997, however. When the Court was for the first time confronted with such a challenge to counter-claims presented in the counter-memorial, it reacted in an unexpected way. In the Application of the Convention on the Prevention and Punishment of the Crime of Genocide case, the applicant’s immediate reaction was to challenge the admissibility of those counter-claims and to request a hearing at an early date, in accordance with Article 80, paragraph 3, of the Rules. The President (Judge Schwebel) convened a meeting of the agents, who accepted to submit written observations on the question of the admissibility of the counterclaims, at the same time contemplating hearings on the question. These written observations, recited quite fully in the Court’s Order, also envisaged a hearing. However, after deliberating on the basis of those written observations, the Court thought otherwise: Whereas, having received full and detailed written observations from each of the Parties, the Court is sufficiently well informed of the positions they hold with regard to the admissibility of the claims presented as counter-claims by Yugoslavia in the CounterMemorial; and whereas, accordingly, it does not appear necessary to hear the Parties otherwise on the subject.6

The Court then found that the counter-claims were admissible as such and formed part of the current proceedings.7 A similar scenario was repeated in another case a few months later. There, too, the Court required a set of written observations from the parties, after which, as in the case above, it decided that it had sufficient information, and proceeded to make an order admitting the counter-claim.8 In the last counter-claim case to date, no objection

6

7 8

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Counter-claims), ICJ Rep. 1997, 243, 256 (para. 26). The decision not to hold hearings was heavily criticized by Judge ad hoc Kre)ka (p. 267), Judge Koroma (p. 276) and Judge ad hoc Sir E. Lauterpacht (p. 279), but not by Vice-President Weeramantry in his dissenting opinion (p. 287). Id., passim. Oil Platforms, Counter-claim, ICJ Rep. 1998, 190. Judge Oda in his separate opinion criticized this procedure (at p. 215). On the other hand, Judge Higgins thought that oral submissions are neither required nor excluded by the terms of Art. 80 (3) and that the Court has found sufficient freedom to decide, notwithstanding the apparent limiting terminology of that provision, that the parties may be heard “whether in writing or orally” on the question of jurisdiction as well as on the question of the connection of the counter-claim with the original claim (at p. 223).

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was raised to the inclusion of counter-claims in the counter-memorial, and the Court, acting proprio motu, admitted them without further discussion.9 III. Provisional measures of protection Article 74, paragraph 3, of the Rules of Court provides that on receipt of a request for the indication of provisional measures, the Court shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. There had been no instance of an indication of provisional measures being made without a hearing until March, 1999. An urgent request for the indication of provisional measures relating to a person whose execution was scheduled for the following afternoon at 3 p.m. Arizona time was filed in the Court at 7.30 p.m. (The Hague time) on 2 March 1999. At a meeting with the Acting President (Judge Weeramantry) at 9 a.m. (The Hague time) on 3 March, the applicant requested that the indication should be made without a hearing. The Court acceded to this request on the basis of Article 75, paragraph 1, of the Rules. That allows the Court to decide at any time to examine proprio motu whether the circumstances of the case require the indication of provisional measures.10 The Court has read the word examine as allowing it to make such an order without giving both parties the right to be heard, or at least to submit observations, on the matter. But can a Rule of Court exclude the basic principle Audiatur et altera pars? Examination of a situation proprio motu does not in itself empower the Court to make an order ex parte. IV. Intervention In cases of an application to intervene under Article 62 or 63 of the Statute, in which the admissibility of the intervention is to some extent a matter of discretion, the Court’s practice is vacillating. In some cases it has decided 9

10

Land and Maritime Boundary between Cameroon and Nigeria, ICJ Rep. 1999–II, 985. On the later Armed Activities on the Territory of the Congo (DRC v Uganda) case, see ‘Counterclaims in the International Court of Justice’, Essay 16, fn. 46 below. LaGrand Provisional Measures, ICJ Rep. 1999, 9. Reservations were expressed by President Schwebel in his separate opinion at p. 21. That decision was rendered at 7 p.m. (The Hague time), Press Communiqué 99/8 (3 March 1999). To appreciate the time element in this case, The Hague time is GMT + 1, and Arizona time is GMT – 7. That is, there is an 8-hour time difference between The Hague and Arizona. Given the instantaneity of modern communications, and the fact that the United States Embassy at The Hague maintains a full Legal Section familiar with international litigation experience, there is no obvious reason why a brief hearing could not have been arranged for this case.

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not to deal with or not to admit the intervention without any hearing.11 Those decisions have been expressed in orders. In other cases, it has rejected a request (under Article 62) by a judgment rendered after written and oral proceedings. In those proceedings, one party had opposed the intervention.12 The res judicata thus created bound the Court and determined the geographical parameters of the delimitation that the Court was required to make. In another case being heard by a Chamber, the full Court was asked to determine the preliminary question whether the application for permission to intervene should be heard by the Court or by the Chamber. The Court sat in its current composition at that date. The President of the Chamber was no longer a member of the Court; he did not sit in the Court; and was not invited to be present, which would have been permitted in application of Article 1, paragraph 3, of the Rules.13 The two judges ad hoc also were not present in that deliberation of the Court. Two members of the Chamber who were also members of the Court at that time were present. Here too the Court in this unusual composition which included two members of the five-member Chamber, considered that it was sufficiently informed of the views of the states concerned without there being any need for oral proceedings “which the Rules of Court did not require in this context, and which neither Nicaragua [the state seeking to intervene] nor the Parties had requested”. The Court embodied its decision in an order.14 The Chamber then went on to decide in respect of the request for permission to intervene, its decision being in the form of a judgment.15 In the Land and Maritime Boundary between Cameroon and Nigeria (Application by Equatorial Guinea to intervene) case, although neither of the parties objected to that intervention, there was a difference between them as to the precise nature of the intervention. The Court, acting on the basis of the written observations, found that Equatorial Guinea had sufficiently established that it has an interest of a legal nature which could be affected by any judgment which the Court might hand down for the purpose of

11

12

13

14 15

Nuclear Tests (Application of Fiji to Intervene), ICJ Rep. 1973, 320, 324; 1974, 530, 535; Military and Paramilitary Activities in and against Nicaragua (Application of El Salvador to Intervene), ICJ Rep. 1984, 215. In that case the Court decided by a vote not to hold a hearing. Delimitation of the Continental Shelf between Tunisia and Libya (Application of Malta to Intervene), ICJ Rep. 1981, 3; Delimitation of the Continental Shelf between Libya and Malta (Application of Italy to Intervene), ICJ Rep. 1984, 3. That provision has been applied once, to allow the Canadian judge ad hoc for the Delimitation of the Maritime Boundary in the Gulf of Maine Area case to be present at the meeting of the Court for the purpose of fixing the initial time-limits for the proceedings in the Chamber which determined that case. ICJ Rep. 1982, 15. ICJ Rep. 1990, 3. ICJ Rep. 1990, 92.

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determining the maritime boundary between Cameroon and Nigeria.16 The Court therefore decided to admit the intervention to the extent, in the manner and for the purposes set out in the Application for permission to intervene. The order, which admits Equatorial Guiniea into the case as a non-party intervenor, makes no mention of any question of a hearing. V. Judges ad hoc Article 36 of the Rules provides, with respect to the choice of a judge ad hoc, that certain objections shall be decided by the Court, “if necessary after hearing the parties”. This question has recently arisen twice, and in neither case was it necessary to hear the parties. It first occurred in the preliminary objection phase of the Lockerbie case between Libya and the United Kingdom. The British member of the Court (Judge Higgins) was ineligible to sit in that case, and the United Kingdom appointed Sir Robert Jennings, a previous member and president of the Court, as judge ad hoc. The Court invited the three governments concerned in the two cases (the United Kingdom, United States, and Libya), to submit observations on the application of that provision of the Rules. According to the judgment, “after due deliberation, the Court, by ten votes to three” decided to accept the appointment of the British judge ad hoc for that case. There is no mention of any hearing on the question.17 The second instance arose in connection with Yugoslavia’s ten cases against members of NATO in 1999, entitled by the Court the Legality of the Use of Force cases. Five of the members of the Court had the nationality of five of the respondents. In the other cases, Yugoslavia objected to the choice of a judge ad hoc by the states concerned. Here again the Court, “after due deliberation,” found the appointment of the judges ad hoc justified in the provisional measures phase of the cases.18 * * * Despite this tendency to dispense with hearings if at all possible, there are two cases in which the Court held hearings contrary to what could be expected

16 17

18

Land and Maritime Boundary between Cameroon and Nigeria (Application by Equatorial Guinea for Permission to Intervene), ICJ Rep. 1999–II, 1029 (para. 13). Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. U.K.) (Preliminary Objections), ICJ Rep. 1998, 9, 13 (para. 9). Legality of Use of Force (Yugo v. Belg.) (Provisional Measures) case, ICJ Rep. 1999–I (para. 12), and the corresponding paragraphs in the orders of the same date in the cases against Canada, Italy, and Spain). Portugal did not appoint a judge ad hoc. The Court changed its position in the preliminary objections phase. See the case against Germany, ICJ Rep. 2004 320, 327 (paras. 15, 16).

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from the Rules of Court. That occurred in two of the Legality of Use of Force cases, those brought by Yugoslavia against Spain and against the United States. Article 38, paragraph 5, of the Rules, introduced in 1978, provides that when an applicant state proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the state against which the application is made, the application shall be transmitted to that state. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the state against which such application is made consents to the Court’s jurisdiction. Yugoslavia’s application against the United States referred specifically to Article 38, paragraph 5, of the Rules, and Spain invoked that provision in the oral proceedings. In its application against Spain, Yugoslavia purported to base the jurisdiction on each country’s declaration accepting the jurisdiction of the Court under Article 36, paragraph 2, of the Statute, and on the compromissory clause (article IX) of the Genocide Convention.19 Notwithstanding that by its terms the case did not come within the scope of Spain’s acceptance of the compulsory jurisdiction and that Spain had made a reservation to Article IX of the Genocide Convention, the case was entered in the General List (No. 112). A hearing took place on Yugoslavia’s request for an indication of provisional measures and both parties appointed a judge ad hoc. In the application against the United States, where there was no prima facie jurisdiction either – since the United States had not accepted the compulsory jurisdiction and had also made a reservation to Article IX of the Genocide Convention – Yugoslavia invoked Article 38, paragraph 5, of the Rules specifically. That case too was entered in the General List (No. 114), and a hearing was held. In both cases the Court found that the lack of jurisdiction was manifest, declined to indicate provisional measures, and ordered each case to be removed from the General List.20 No explanation is given as to why those two cases were entered in the Court’s General List which, according to Article 38, paragraph 5, of the Rules, should not have been done in the first place. * * * The Court has justified dispensing with hearings on the ground that it was sufficiently informed of the positions of the parties from the written observations submitted. It has done so even where there had been only one round of written observations, neither party having been given an opportunity to respond to the other’s observations. But ensuring that the Court is adequately 19 20

Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277. Legality of Use of Force (Yugo. v. Sp. and Yugo. v. U.S.), Provisional Measures, 1999 ICJ Rep. 761, 772 (para. 34) and 916, 925 (para. 29). These two cases were removed from the General List.

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informed of the position of each party is only one function of oral proceedings. The hearing is the first direct confrontation of the parties face to face, and that alone can lead to a simplification of the issues. True, if the relations between the parties, and the delegations representing them before the Court, are cool, a hearing may exacerbate feelings, or bring in personal factors the better avoided. That is certainly a factor which the Court is entitled, even obliged, to have in mind. That may be an unarticulated premise of some of the cases noted here. While the Court’s practices regarding hearings have become uncertain, this tendency to limit the oral proceedings, often a repetition of the written proceedings, is not to be discouraged. At the same time, we should note that the Court has formally introduced new practices as part of a broader effort to adapt itself to modern requirements and to reduce the costs of litigation. There was during the 1980s mounting criticism that, after a case had been heavily pleaded in written proceedings, the oral proceedings were much too drawn out. Many suggestions were made that the Court, following the practice in major national courts, including the Supreme Court of the United States, should exercise more control over the time allowed for the oral proceedings. In addition to the financial costs to the Court, lengthy oral proceedings place a heavy financial and logistical burden on the states participating in them and on their counsel.21 The issue had become acute with the growth in the Court’s case-load. In the hearings in November 1995 in the two Nuclear Weapons advisory opinions, the Court laid down strict time limits within which each oral presentation was to be made. This is now regular practice. These time-limits are usually determined by the Court after consultation with the parties. In his concurring opinion in Application of the Genocide Convention (Counterclaims), Sir E. Lauterpacht drew attention to the confused and confusing terminology of the Rules of Court in the matter of how observations are to be presented to the Court, whether in writing or after a hearing, and suggested that when the Rules are next revised, this is a matter that needs clarification.22 He is certainly correct that there is much room for improvement and that litigants would welcome the clarification that he seeks. At present

21

22

No less than 50 public sittings, covering two full months, were required for the oral proceedings before a Chamber in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua intervening) case, and that after three rounds of written pleadings by the principal parties, and further pleadings by the intervening state. 1992 ICJ Rep. 351. Forty-five public sittings were held in the merits phase of the Application of the Genocide Convention case in 2006 after two provisional measures phases in 1993, a preliminary objection phase in 1996 and a revision phase in 2003. For a particulars see ‘Counter-claims in the International Court of Justice’, Essay 16, fn. 33 below. Judgment in the merits phase was delivered after deliberations lasting approximately one year, on 26 February 2007. See supra note 7.

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there is no provision in the Statute requiring a judgment in any particular interlocutory proceeding. Only Article 61, paragraph 2, requires proceedings in revision of a judgment to be opened by a judgment.23 The Rules of Court require the decision to be in the form of a judgment only in Article 79, paragraph 7, concerning the decision on a preliminary objection, and in Article 99, on revision of a judgment (following Article 61 of the Statute). In all other cases in which a decision of the Court may be required, the Rules are indifferent as to the form of the decision, which may be in a judgment, a formal order, or a simple decision duly conveyed to the interested parties. A clarification of the Rules of Court would not be enough, however. As is apparent from the foregoing survey of the Court’s recent treatment of hearings, it is most desirable that the Court provide clearer indications of what its practices will be under whatever Rules are in force. The current situation is a source of difficulty for states and their legal advisers. It is important to try and assess factors that could lead the Court to hesitate today before it applies literally Rules of Court last drawn up in 1978. When the Permanent Court was established (1920), and likewise when the present Court was established (1945), the international community of states that both were designed to serve was small in number – around 50 or so – and relatively compact, and war-weary. Both in 1920 and in 1945, the craft of diplomacy was also relatively “elitist”, and its practitioners reasonably close knit. At the end of the century, the situation is quite different. The international community of states parties to the Statute now reaches the figure of 192, of which one only, Holy See, is not a member of the United Nations. This change is the direct consequence of two processes – in part interrelated, since both can trace their origin to the human rights provisions of the Charter and the evolution of the concept of self-determination. One is the massive decolonization of Africa, Asia and the island states of the Pacific. This process has continued virtually without a break since the General Assembly of the United Nations adopted its decolonization resolution 1514 (XV) of 14 December 1960. In the last decade of the twentieth century, the distant relation of the decolonization process was the dissolution of federal states in Europe following the end of the Cold War, bringing in its train the emancipation of the “mini-States” of Western Europe and their membership in the United Nations. This completely unforeseen increase in the number of

23

There have been three instances in which this provision has been invoked, namely, the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v Libya), ICJ Rep. 1985 192; Application for Revision of the Judgment of 11 July 1996 in the Application of the Genocide Convention case (Yugoslavia v Bosnia & Herzegovina), ICJ Rep. 2003 7; Application for Revision of the Judgment of 11 September 1992 in the Land, Island and Maritime Frontier Dispute (El Salvador v Honduras), ibid. 392.

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states parties to the Statute (to which the Court is therefore open) has in the nature of things swollen the Court’s workload, both actual and potential, beyond all expectations.24 Quite apart from that, often the language of “parliamentary diplomacy” is direct and even shrill, and although this has not yet found a place in Court proceedings, some speeches have come close to the borderline of propriety. A tandem development is the increased bulk of documents often annexed to pleadings. In addition, governments today are much more answerable to their constituencies than they were in 1920 or even in 1945. To withstand public and often hostile scrutiny at home, very full and heavily documented pleadings are required in an international case – one consequence of the democratization of public affairs. Unlike other United Nations organs, the Court does not work on programs to be picked up and dropped at will or at the behest of some other organ. The Court is not free to choose what it will do, and it cannot adjust its work to the happenstances of this or that financial crisis of the United Nations. Nor can it grade disputes like eggs, seeing one dispute as large and another as small, the “small” ones going to a Chamber. For the parties all disputes are major, and States resorting to the Court are entitled to have their case decided by all available judges, regardless of whether the matter involves thousands of square miles of territory, or the location of a few frontier posts, or an island so small that one needs a magnifying glass to see it on all but the largest of charts and maps. The increasing financial stringency of the United Nations is another factor that has affected the Court. Indeed, financial constraints had become so

24

The following contentious cases decided since 1960 have involved at least one decolonized or defederalized party: Northern Cameroons (Cameroon v. U.K.) (1963); ICAO Council Appeal (India v. Pak.) (1972); Pakistani Prisoners of War (Pak. v. India) (1973); Continental Shelf Delimitation (Tunisia/Libya) (1981, 1982, 1985); Continental Shelf Delimitation (Libya/Malta) (1984, 1985); Frontier Dispute (Burk. Faso/Mali) (1987); Certain Phosphate Lands in Nauru (Nauru v. Austl.) (1993); Territorial Dispute (Libya/Chad) (1994); Maritime Delimitation between Guinea-Bissau and Senegal (1995); GabÏcíkovo-Nagymaros Project (Hung./Slovk.) (1997); Kabilu/Sedudu Island (Bots./Namib.) (1999); Application of the Genocide Convention cases (1996, pending); Croatia v Yugo. (pending); the Aerial Incident at Lockerbie case (Libya v United Kingdom, Libya v United States of America, not joined (1998, discontinued); Arbitral Award of 31 July 1989 case (Guinea-Bissau v Senegal) (1990, 1991); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (1994, 1995, 2001); Land and Maritime Boundary between Cameroon and Nigeria (1996, 1998, 1999, 2001, 2002); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia) (2001, 2002); Frontier Dispute (Benin/Niger) (2005); Diallo (Guinea v Congo) (pending); Armed Activities on the Territory of the Congo (Congo v Burundi) (1999) (Congo v Uganda) (2000, 2001, 2005); (Congo v Rwanda) (2002, 2006); Arrest Warrant of 11 April 2000 case (Congo v Belgium); Aerial Incident of 10 August 1999 (Pak. v India) (2000); Certain Criminal Proceedings in France (Congo v France) (pending); Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (pending); Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Lodge (Malaysia/Singapore) (pending).

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grave that in 1997 the General Assembly invited the Court to submit its comments and observations on the consequences that the increase in the volume of cases before the Court had on its operation. The Court’s reply was submitted in 1998 but the two immediate results were little more than palliatives.25 The first was that the matter was discussed in the Sixth (Legal) Committee of the General Assembly before the Fifth (Administrative and Budgetary) Committee dealt with the Court’s budget. The second was a small increase in the Court’s manning table to strengthen the Registry. Annex II to that Report contained the text of a Note relating to reexamination by the Court of its working methods. That Note dealt mainly with the length and content of both written and oral pleadings and contained suggestions which the Court now gives to the parties early in the proceedings. Changes in the internal working methods of the Court related mainly to the Judges Notes, which under the Resolution on the Internal Judicial Practice of the Court appear as an essential element in the Court’s collective deliberation after the hearing.26 But they did not touch the major problems that litigants now face in the International Court. Yet another factor is the huge proliferation of modern-treaty-law, both bilateral and multilateral. Many of these instruments contain dispute settlement provisions involving the Court in one way or another. The continuing expansion of the black-letter texts of treaty law is not, however, accompanied by any comparable refinement in the means for securing enforcement of the law, especially when the instruments establish erga omnes rules.27 The result is a change in the types of case coming before the Court, leading to changes in the Court’s role not only for the management of international law but also in crisis management – including grave political situations of universal concern. The Permanent Court first adopted its Rules of Court in 1922. They were amended slightly in 1926, 1927 and 1931, and revised after thorough review in 1936.28 The International Court adopted those Rules with minor adap-

25

26

27 28

For the Court’s reply to that invitation, see United Nations, Report of the International Court of Justice, 1 August 1997–31 July 1998, 53 GAOR Supp. No. 4 (Doc. A/53/4), Annex I (1998). For that Resolution, see International Court of Justice, Charter of the United Nations, Statute and Rules of Court and Other Documents, 5th ed. (1989); reproduced in Shabtai Rosenne, Documents on the International Court of Justice/Documents relatifs à la Cour internationale de Justice 441 (1991). Cf. John Norton Moore, Enhancing Compliance with International Law, 39 Va. J. Int’l L. 881 (1999). In this period two conferences were convened by the League of Nations, in 1926 and in 1929, to examine certain aspects of the Court’s affairs. Those Conferences are only of historic interest today. The affairs of the International Court of Justice have not been the subject of diplomatic examination since the San Francisco Conference of 1945, when the United Nations was established.

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tations and amendments in 1946, and they remained unchanged until 1972. In 1972 the Court made a few amendments to the Rules, the most important (as far as concerns litigation techniques) relating to preliminary objections. The former well-established and well-understood practice of joining objections (especially to the admissibility) to the merits was abolished. In its place the Court introduced as a possible decision, a declaration that a specific objection “does not possess, in the circumstances, an exclusively preliminary character.” This change has severely confused modern litigation without any appreciable benefits whether for the Court or for states, and has complicated the organization of coherent litigation strategy. In 1978 the Court promulgated a more thorough revision, which comprises the Rules currently in force. Comparison of the Rules of 1978 with those of 1922 will quickly show that they are all cast in the same mold, the mold of the diplomacy of the 1920s. The changes that have been made do not touch fundamentals. The only difference between litigation today and litigation in the 1920s, is that today the proceedings are much more drawn out, the written and oral pleadings are much longer, and the individual opinions of judges more frequent and also more extensive. This suggests that the time is ripe for a more fundamental review of the Court’s procedure than has yet been undertaken. What the Court lacks in comparison with superior national courts is an official process – under judicial oversight – to control the development of a case up to the opening of the oral proceedings, and perhaps to make preliminary determinations where the parties are in dispute over the facts or over a matter of procedure. Neither the Permanent Court nor the present Court has been able to confer on the registrar much more than a duty to ensure the formal compliance of a written pleading with the appropriate rule of Court. What the Court needs is an equivalent to a master or even a special master found in one form or another in national jurisdictions. The Court is now actively pursuing a revision of its Rules,29 and that provides a window of opportunity to strengthen the powers of the presidency to control

29

Three important collective works are useful for this. They are: British Institute of International and Comparative Law, Report of the Study Group on the International Court of Justice, Efficiency of Procedures and Working Methods, first published as a Supplement to the January 1996 issue of the International and Comparative Law Quarterly, and republished, with additions, as D.W. Bowett et al., The International Court of Justice: Process, Practice and Procedure (J.P. Gardner and Ch. Wickremasinghe, eds., 1997); Increasing the Effectiveness of the International Court of Justice: Proceedings of the ICJ/UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (C. Peck and Roy S. Lee, eds., 1997); F. Orrego Vicuña and Ch. Pinto, Report and Revised Report on The Peaceful Settlement of Disputes: Prospects for the Twenty-first Century and a long series of comments by different Governments and individuals, prepared in connection with the celebrations of the Centennial of the First International Peace Conference of 1899, listed in the appendix to UN Doc. A/54/381, 21 September 1999, and at present available on the website of the Netherlands Ministry for Foreign Affairs, .

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the course of proceedings leading up to the hearings and even beyond (subject to occasional consultations with the parties as required under Article 31 of the Rules). One possible approach would be to bring in the Chamber of Summary Procedure as a standing control or supervisory organ for the interlocutory phases. Article 50 of the Statute could provide an opening for that. Functions for this control mechanism could be to investigate the facts if these are not agreed between the parties, to assist the Court and the parties in ironing out difficulties and in determining whether there has been an adequate exchange of observations between them, or whether an interlocutory hearing is necessary, and to make recommendations with regard to the calling and examination of witnesses whenever a party wishes to have recourse to witnesses, on the basis of Article 48 of the Statute mentioned above. Under the current Rules of Court, both the president and the vice-president of the Court are ex officio members of that Chamber, and the Statute makes provision for participation in it of national judges and judges ad hoc. Together with the registrar (who should always be a qualified international lawyer), such a body ought to be able to exercise appropriate control over the contents of written pleadings, especially over the annexed materials (which seem to cause the Court special difficulties). The use of this Chamber as a “Steering Committee” for the Court, leaving the ultimate decision on procedural matters either with the Court itself or with the president, could also assist the president in his efforts to maintain a reasonable balance between the Court’s reasons for its decision, and any individual opinions. It is tempting to see in the Rules of the Tribunal and other related documents adopted by the International Tribunal for the Law of the Sea (ITLOS) a guide for a modern set of cost-effective rules of Court and of practice. No doubt the International Court will take a close look at those documents and even more at their application, and see whether they can be adopted or adapted to its use. But one must be careful not to rush to conclusions, for the two Courts have different constituent instruments, different functions, and different types of parties before them, even when the Rules look the same.30

30

For those Rules, see International Tribunal for the Law of the Sea, Basic Texts/Textes de Base 2005 at 15. In many instances those Rules copy the corresponding Rule of the International Court, differing only where the Statute of ITLOS differs from the Statute of the International Court of Justice. In fact those Rules in some respects fail to learn from the consequences that have followed in the International Court from new provisions introduced in 1978, for instance in connection with preliminary objections (Rules of the Tribunal, Article 97). Other related documents are the Resolution on the Internal Judicial Practice of the Tribunal (at p. 71) and the Guidelines concerning the Preparation and Presentation of Cases before the Tribunal (at p. 78). For my preliminary observations on those Rules and their practical application, see Shabtai Rosenne, International Tribunal for the Law of the Sea: 1996–97 Survey,

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Since 1998, the Sixth Committee of the General Assembly has been taking more interest in the Court’s affairs than previously, but not yet enough. The earlier debates about the Court from 1947 onwards had been held in the confrontational context of the Cold War and did not help the Court as the principal judicial organ of the United Nations.31 Since the Court in 1968 started submitting an annual report to the General Assembly, the General Assembly’s practice has been to do nothing more than take note of the report. No substantive action has been taken until 1999 when, for the first time, the Sixth Committee recommended a resolution, adopted by the General Assembly as resolution 54/108, 9 December 1999, endorsing the Court’s procedural suggestions set out in Annex II of its 1998 Report. One of those suggestions recalled the need for succinctness in the oral proceedings, and all of them called for changes in the practice of states in litigation before the Court. The General Assembly’s resolution also invited the Court to keep its working methods under periodic review and to adopt additional measures aimed at expediting its proceedings.32 This reference to “additional measures” is particularly noteworthy.33 That resolution thus gives political backing to changes in practice which themselves can be seen as a reinterpretation of the Statute. That should encourage the Court not to shrink from needed innovation when reviewing its practice and procedure and bringing them into line with the requirements, the capabilities and the potentialities available to it at the start of the twenty-first century.

31

32

33

13, The International Journal of Marine and Coastal law 487, 501 (1998). A striking feature of the cases heard by that Tribunal in the initial period 1997–1999 is the frequency in which witnesses and experts have been called to testify and be subject to cross-examination and examination on the voir-dire, something not really desirable or necessary in any international court or tribunal. Cf. the debates in the General Assembly leading to resolutions 171 (II), 14 November 1947, 2625 (XXV), 24 October 1970, 3232 (XXIX), 12 November 1974, 37/10, 15 November 1982. The suggestion for this resolution came from the Special Committee on the Charter of the United Nations and on Strengthening the Role of the Organization, following a debate on practical ways and means of strengthening the International Court of Justice while respecting its authority and independence. See its report, GAOR, 54th session, Supp. 33 (A/54/33), paras. 117 to 122 (1999). At a press conference on 15 February 2000, the newly elected President of the the Court, Judge Guillaume, announced further improvements in the Court’s methods of work. These include attempts to reduce the large amount of documentation the parties submit to the Court, ensuring that hearings do not last longer than necessary, and that the Court should spend less time on its own deliberations whenever possible. He also indicated that the Rules Committee (of which Judge Fleischauer is chairman, replacing President Guillaume) will make proposals in the near future as regards witness evidence, counter-claims and preliminary objections. Press Communiqué 2000/5, 16 February 2000.

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On 4 December 2006 the General Assembly adopted without a vote Resolution 61/37, Commemoration of the sixtieth anniversary of the Court – the first resolution on the International Court of Justice adopted in this fashion. In it, the General Assembly 1. Solemnly commends the International Court of Justice for the important rule that it has played as the principal judicial organ of the United Nations over the past sixty years in adjudicating disputes, and recognizes the value of its work; 2. Expresses its appreciation to the Court for the measures adopted to operate an increased workload with maximum efficiency; 3. Stresses the desirability of finding practical ways and means to strengthen the Court, taking into consideration, in particular, the needs resulting from its workload; 4. Encourages States to continue considering recourse to the Court by means available under its Statute, and calls upon States that have not yet done so to consider accepting the jurisdiction of the Court in accordance with its Statute; 5. Calls upon States to consider means of strengthening the Court’s work, including by supporting the Secretary-General’s Trust Fund to Assist States in the Settlement of Disputes through the International Court of Justice on a voluntary basis, in order to enable the Fund to carry on and to strengthen its support to the countries which submit their disputes to the Court; 6. Stresses the importance of promoting the work of the International Court of Justice, and urges that efforts be continued through available means to encourage public awareness in the teaching, study and wider dissemination of the activities of the Court in the peaceful settlement of disputes, in view of both its judiciary and advisory functions.

16 COUNTER-CLAIMS IN THE INTERNATIONAL COURT OF JUSTICE

I. An Introduction The Statute of the Permanent Court of International Justice made no mention of counter-claims, and the matter was not discussed when the Statute was revised in 1945. That has left the development of this aspect of the Court’s law and practice in the hands of the Court and of States engaged in litigation before it. States have accepted the Court’s initiative in the matter. There is no universally accepted definition of the term counter-claim. The Oxford Companion to Law explains it as a cross-claim that can conveniently be disposed of in an action initiated by another party. It is not necessarily a defence, but a substantive claim against the plaintiff that could have grounded an independent action. If the counter-claim is one that can conveniently be disposed of in the pending action, the judge gives judgment both on the original claim and on the counter-claim. If it cannot, it may be struck out. Then the defendant must bring a cross-action.1 The Dictionnaire de la Terminologie du Droit international explains demande reconventionnelle as ‘Demande incidente formée par le défendeur à une action en justice et se rattachant à la demande initiale par un lien de connexité’. It goes on to quote Article 63 of the 1946 Rules of the International Court of Justice and from a report on arbitral procedure by Georges Scelle to the International Law Commission.2 A later dictionary definition is slightly broader: ‘Demande incidente par laquelle une partie à une instance prétend obtenir, en sus du rejet de la demande introduite contre elle,

1 2

The Oxford Companion to Law at 298 (D.M. Walker, ed. 1980). Dictionnaire de la Terminologie du Droit international, s.v. Demande, at 199 (J. Basdevant, ed. 1960). For the Scelle report, see Yearbook of the International Law Commission, 1950, vol. II (A/CN.4/18, para. 78), at p. 137. English text, mimeographed only. Scelle quotes an early illustration of this in the Fishing in the Fur (Behring) Sea arbitration between Great Britain and the United States, award of 15 August 1893, J.B. Moore, History and Digest of International Arbitrations to which the United States has been a Party vol. 1 935 (1898). Further details in A.M. Stuyt, Survey of International Arbitrations 1794–1989 174 (1990). See further article 16 of the Draft Convention on Arbitral Procedure prepared by the International Law Commission in Yearbook of the International Law Commission, 1953, vol. II (A/2456), at 210 and the Commentary, at p. 205 (para. 16); and Commentary on the Draft Convention on Arbitral Procedure adopted by the International Law Commission at its Fifth Session, prepared by the Secretariat (A/CN.4/92) at 63 (Sales No. 1955.V.1, 1955).

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la satisfaction par la partie adverse d’une prétention entretenant un lien de connexité avec l’objet de la demande de cette partie’.3 Despite this absence of any generally accepted definition of the term, the combined experience of the two Courts, including in particular the formulation of the Rules of Court and the considerations that weighed, permit some general assertions, valid for international litigation generally. Little substantive importance attaches to the requirement that the subjectmatter of the counter-claim must come within the jurisdiction of the Court. That is obvious. The Court can only decide claims that come within its jurisdiction, under the general rules governing the jurisdiction of the Court, and there is no reason why a counter-claim should be any different. What is meant is that the counter-claim must come within the jurisdiction of the Court as is established for the particular case. Secondly, since 1936 the Rules of Court have required a counter-claim to have some connection with the originating or principal claim – possibly a misleading rendition of the French expression demande primitive, meaning the claim that lies at the origin of the proceedings.4 That requirement was not in the original Rules of Court of 1922. It was introduced by the Permanent Court in its judgment in the Factory at Chorzów case noted in § II below. The admissibility of the counter-claim depends on its connection with that claim, and the legal question is always, what is meant by connection in the context, and does the counter-claim meet that requirement. In the nature of things, this must depend on the material that is before the Court at the time of the filing of the counter-claim. The third feature to be noted is that after the initial Rule of 1922 which remained unchanged until 1936, the provision on counter-claims has been presented in the subdivision of the Rules relating to what are in the 1978 Rules designated Incidental Proceedings. This means that the Court is already seised of a case, and that the incidental proceeding available to the respondent State of introducing a counter-claim can only be undertaken in respect of a case that is actually pending before the Court and within the parameters of that case. The implication of this is that a claim that would transform the case into something else cannot be admitted as a counter-claim. Fourthly, the requirement, which has existed since the first Rules of Court of 1922, that a counter-claim cannot be filed later than the counter-memorial means that the unilateral factual account given by the applicant alone is not the factual basis for the counter-claim. Article 80 of the current Rules of Court now pinpoints the time-stage in the proceedings at which – and only at which – a counter-claim can be submitted, namely in the respondent’s counter-memorial and in its submissions. That in turn confirms that the facts on which any counter-

3 4

Dictionnaire de Droit International Public s.v. Demande reconventionnelle at 316 (J. Salmon, ed., 2001). For this common meaning of the English principal and the French primitif, cf. the CD-ROM editions of the Oxford English Dictionary (1992) and Le Robert électronique (1994).

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claim must be based are the facts as they have been presented to the Court in all the phases of the case up to and including the counter-memorial on the merits.5 As will be seen, the experience of the Permanent Court and of the present Court until the end of 2006 has established a clear pattern of law and procedure for the institution of counter-claims in the general scheme of inter-State litigation in the International Court of Justice. One may assume that this pattern will guide any other international court or tribunal that might be faced with a counter-claim. To the end of 2005, in quick succession, the International Court has been faced with a series of peremptory challenges by applicant States to the admissibility of counter-claims. In the Permanent Court and early in the International Court of Justice, questions relating to counter-claims had been raised during the pleadings, argued in the oral phase of the merits, and decided in the judgment on the merits. Recent objections to the jurisdiction or to the admissibility of counter-claims, however, have been made immediately on receipt of the counter-memorial on the merits in the cases in question. That has required the Court to organize interlocutory proceedings on the admissibility of the counter-claims and the procedure to be followed. In those cases the Court first assessed the admissibility of the counter-claims to the case file in light of the total factual complex of the case as a whole as it then stood. This was without prejudice to any question with which the Court would have to deal during the remainder of the proceedings, should the counter-claim be admitted to the case in that way.

II. In the Permanent Court of International Justice Article 40 of the initial Rules of Court adopted by the Permanent Court in 1922 contained what looks like a passing reference to counter-claims. Setting out the contents of what was then designated counter-case, the Rule provided that the conclusions [submissions] of the counter-case, to be based on the facts stated, might include counter-claims, in so far as the latter came within the jurisdiction of the Court. That provision was repeated unchanged in the Rules of 1926 and 1931. The first mention of counter-claims in 1922 was in the draft rules of court prepared by the Secretariat.6 Article 33 of that document, dealing with the

5

6

From the structure of the Rule (Article 80), it is clear that when the Rules of Court use the word counter-memorial in this context, the counter-memorial on the merits is intended. This precautionary statement is necessary because of the occasional practice of the Court to require the first pleadings to address questions of jurisdiction and admissibility. Those pleadings are also designated memorial and counter-memorial. PCIJ, Ser. D, Acts and Documents concerning the Organization of the Court, No. 2, Preparation of the Rules of Court, Minutes of Meetings held during the Preliminary Session of the Court, with Annexes (January 30th to March 24th 1922) (1922). Hereafter D 2. It was later stated

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contents of counter-cases, referred to ‘conclusions, which may contain counterclaims, based on the facts quoted. . . ’.7 In a list of questions prepared by the Committee on Procedure that the Court established to deal with the Rules of Court, for discussion at a full meeting of the Court, point 9 raised the question whether in cases when counter-claims are made in the counter-case, a rejoinder is admissible. That question arose out of Article 43 of the Statute which referred only to cases, counter-cases and replies.8 In the draft rules of Court prepared later by the Drafting Committee, this became article 41. It proposed that counter-cases should contain conclusions based on the facts stated, which ‘may include counter-claims’.9 The Court first discussed this at its 25th meeting (9 March 1922).10 Judge Anzilotti suggested deleting the article as, if not superfluous, at all events merely declaratory. He would have replaced it with a statement that the parties should submit their written conclusions in the first documents of procedure. That proposal was later withdrawn. Anzilotti then turned more specifically to the question of counter-claims. He pointed out that in the case of a special agreement, a counter-claim could not be submitted.11 With an application, a counter-claim could only be submitted if it came within the conditions subject to which all the parties had accepted the compulsory jurisdiction of the Court. After a discussion during which stress was laid on the difference between counter-claims essential for the purpose of the defence and counter-claims independent of the case, the Court adopted a proposal by Deputy-judge Beichmann to the effect that the conclusions of a counter-case ‘may, in certain circumstances, include counter-claims’. The draft prepared for the second reading included a new text for article 41. The counter-case was to include conclusions based on the facts stated: ‘these conclusions may include counter-claims, in so far as the latter come within the jurisdiction of the Court’.12 This was adopted without discussion, and appeared as Article 40 of the Rules of Court of 24 March 1922. Clearly, little thought

7 8

9 10 11 12

that this draft, for which Anzilotti as Under Secretary-General of the League in charge of the Permanent Court was responsible, was to a great extent based on the procedure of the Supreme Court of the United States. Statement by the Registrar (Å. Hammarskjöld) on 28 May 1934, PCIJ, Ser. D, No. 2, Add. 3 at 107 (on that document, see note 16 below). Anzilotti himself, in his article cited in note 15 below, does not confirm this, but refers generally to practices in internal courts. D.2 at 262. Ibid. at 290. The Statute of the International Court is unchanged in this respect. Article 49, paragraph 3, of the 1978 Rules enunciates the functions of a rejoinder (and of a reply), and in that way fills the gap in the Statute. Ibid. 453 at 465. The Minutes refer to this as Dist[ribution] 79. Ibid. 139. In fact, States have developed a form of counter-claim proceeding even for cases adjudicated on the basis of an agreement, as will be seen in § V below. Ibid. 481 at 491. That was Distr. 87. For the adoption of this provision, see p. 208.

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was given at that stage to the juridical problems of counter-claims, and more particularly to the question of any connection that should exist between the counter-claim and the originating claim, or as a matter of procedure to the difference between seising the Court of a counter-claim formulated in a countermemorial and the normal rules for the seising of the Court. Those issues were to come up later, in connection with the 1936 revision of the Rules. The Permanent Court had little experience of the application of this Rule. In the Factory at Chorzów (Merits) case (Germany v. Poland), the applicant regarded one of the submissions of the respondent in its counter-case as a counterclaim. The parties agreed that the Court should decide the issue raised in that way, so that, regarding the counter-claim, the Court’s jurisdiction was perfected by the doctrine of the forum prorogatum. Moreover, the Court found that the counter-claim was in reality an objection to the jurisdiction. Nevertheless, the Court took the opportunity to examine the matter of counter-claims. That led to the introduction into the Court’s case-law of the notion of a connection with the originating claim. The Court observed that the counter-claim was based on article 256 of the Treaty of Versailles (1919), that article also forming the basis of the respondent’s objection, and that in consequence it was juridically connected with the principal claim. That article was one of the provisions relevant to the case as a whole. The counter-claim was formulated in the submissions of the counter-case as required by Article 40 of the Rules then in force. Accordingly, the formal requirement of the Rules regarding the counter-claim was met there, and also the material conditions with which the Rule then did not deal. At the same time, regarding the relationship between the applicant’s claims and the respondent’s submission in question, the Court added that although in form a counter-claim, ‘since its object is to obtain judgment against the Applicant for the delivery of certain things to the Respondent – in reality, having regard to the arguments on which it is based, the submission constitutes an objection’ to the claim (p. 38).13 Some see a counter-claim in the Norwegian counter-memorial in the Legal Status of Eastern Greenland case (Denmark v. Norway). Then Denmark claimed that a declaration by Norway of occupation of Eastern Greenland was a violation of the existing legal situation and accordingly was unlawful and without legal effect. In the counter-case Norway, without using the word counter-claim, asked for judgment that Denmark had no sovereignty over the area and that Norway had acquired sovereignty. The Court found in Denmark’s favour and rejected the opposing submissions of Norway. The Court did not treat those submissions as a counter-claim.14 The matter was not discussed during the revisions of the Rules of 1926 and of 1931.

13 14

PCIJ, Ser. A, No. 17 (1928). PCIJ, Ser. A/B, No. 53 (1933).

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The question of counter-claims as it then stood was the subject of a major article published in 1928 by one of the members of the Court, Dionisio Anzilotti.15 His main conclusions were that a counter-claim must do more than merely ask for the claim to be dismissed. It required some positive claim by the respondent against the applicant, that claim arising out of the facts as pleaded in the memorial and the counter-memorial. It must also have a legal link with the case that is before the Court and could not be based on a title of jurisdiction other than the one that is applicable to the case in question. Furthermore, although raising a counter-claim is an exceptional method of introducing a case, once it is validly made all the provisions of the Statute and of the Rules apply to the case as instituted by the counter-claim. This includes the right of third parties to intervene under Articles 62 or 63 of the Statute, the provisions regarding preliminary objections and all other incidental proceedings available under the Statute and the Rules. That article has had an abiding influence on the Permanent Court and on the present Court. In the Permanent Court it was followed by a more thorough discussion during the revision of the Rules, leading to the revised Rules of Court of 1936. The Permanent Court initiated that revision after the Assembly of the League of Nations, on 25 September 1930 had adopted a series of amendments to the Statute, some of which required amendments to the Rules. The Court decided to undertake a general revision of the Rules.16 Its first step was to set up four committees to report on different parts of the existing Rules. The Second Committee (Sir Cecil Hurst, President) examined article 40. Its only mention

15

16

D. Anzilotti, ‘La riconvenzione nella procedura internazionale’, Scritti della Facoltà giuridica di Roma in onore di Antonio Salandra 341 (1928), and in 21 Rivista di Diritto internazionale 309 (1929); reprinted in D. Anzilotti, II Scritti di diritto internazionale pubblico 221 (1952). French translation by M. Barda, ‘La demande reconventionnelle en procédure internationale’, 57 Journal du Droit international (Clunet) 857 (1930). Other articles on counter-claims include the following: R. Genet, ‘Les demandes reconventionnelles et la procédure de la Cour permanente de Justice internationale’, XIX Revue de Droit international 145 (1938); A. Miaja de la Muela, ‘La reconvención ante el Tribunal internacional de Justicia’, VII (N.S.) Boletín mexicano de derecho comparado 737 (1975); B. Larschan and G. Mirfendereski, ‘The Status of Counterclaims in International Law, with Particular Reference to International Arbitration involving a Private Party and a Foreign State’, 15 Denver Journal of International Law and Policy 11 (1986); A.D. Renteln, ‘Encouraging Counterclaims’, ibid. 379; M. Arcani, ‘Demandi reconvenzionali nel processo di fronte alla Corte internazionale di Giustizia, 81 Rivista di diritto internazionale 1042 (1998); O.L. Pegua, ‘Counter-claims and obligations erga omnes before the International Court of Justice’, 9 European Journal of International Law 724 (1998); S.D. Murphy, “Amplifying the World Court’s Jurisdiction through Counter-Claims”, 35 Washington International Law Review 5 (2000). PCIJ, Ser. D, Third Addendum to No. 2, Elaboration of the Rules of Court of March 11th, 1936, contains the full records of the Court’s deliberations leading to the 1936 Rules. Hereafter Add. 3. It is supplemented by Add. 4, a systematic reproduction of those records arranged according to the articles of the Rules as revised.

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of counter-claims is in connection with the silence of the Rules on the contents of replies and rejoinders. The Committee proposed no change, as no mention had been made of any inconvenience arising from that omission. However, the Committee continued that this might be because no counter-claim ‘has ever been made. If in a future case a counter-claim were set up, it is the Reply of the applicant which would constitute the Counter-Memorial to the counterclaim’ (prophetic words, indeed!).17 In May 1933 the Court requested the Registrar (Å. Hammarskjöld) to prepare a detailed report on the Court’s practice to date. On counter-claims, this report showed that the Court had decided to cause the question of counter-claims to be examined. ‘No experience in this respect is as yet available. Nevertheless, the question has arisen – most recently in the Eastern Greenland case; but the Court has refrained from dealing with it’.18 That led to a report from the Co-ordination Committee consisting of the rapporteurs of the four Committees. Its full report only exists in French. On counter-claims it wrote: A propos de l’alinéa 2 [de l’article 40] du texte proposé, la question a été soulevée de savoir si la disposition qu’il contient en ce qui concerne les demandes reconventionnelles est opportune et conforme aux principes généralement admis en matière de procédure. Il a été soutenu à cet égard que, normalement, les demandes reconventionnelles doivent être l’objet d’une demande spéciale faite dans les formes prescrites pour l’introduction d’une nouvelle instance, et que cette règle s’impose avec une force particulière devant la Cour, eu égard au fait qu’aux termes du Statut seules les pièces introductives d’instance sont obligatoirement notifiées aux États admis à ester devant la Cour, afin de leur permettre de décider s’il y a lieu pour eux d’intervenir. Il a été proposé, dans cet ordre d’idées, d’ajouter au Règlement un nouvel article prescrivant que toute demande reconventionnelle doit être introduite par une requête, sous réserve du droit de la Cour, si elle le juge opportun, d’ordonner la jonction de la nouvelle instance ainsi ouverte à une instance déjà ouverte. Il a été expliqué, d’autre part, que l’objet de la disposition de l’article 40 visant les demandes reconventionnelles n’est nullement d’exclure l’introduction de ces demandes par voie de requête, mais seulement d’ouvrir exceptionnellement, en vue d’assurer une bonne administration de la justice, la possibilité de présenter des demandes de ce genre dans les contre-mémoires également. Il a été expliqué, en outre, que les inconvénients résultant de cette faculté ne sauraient être considérables, étant donné qu’elle était prévue seulement dans les limites de la compétence de la Cour telles qu’elles étaient établies pour les besoins de l’instance en cours de laquelle la demande serait faite; dès lors, en effet, la requête introduisant cette instance aurait déjà été notifiée à tous les États admis à ester devant la Cour.

17 18

Ser. D, No. 2, Add. 3 at 768. Ibid. at 821. This and the preceding Report indicate that neither Chorzów nor Eastern Greenland were regarded at the time as ‘precedents’ dealing with counter-claims.

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Having regard for that difference of opinion, the Commission preferred to maintain the existing text, pending fuller consideration by the Court of the question of counter-claims.19 With that preparatory work before it, the Court first examined the substance of the question of counter-claims at its 13th and 14th meetings on 28 and 29 May 1934.20 Judge Schücking asked the meaning of counter-claim. ‘Did it cover only claims arising out of the defence? Or could the respondent always bring a counter-claim in the Counter-Memorial even if the counter-claim had no connection with the principal claim?’ He referred to the 1922 discussion leading to the adoption of the Beichmann proposal, and asked Judge Anzilotti if he could throw some light on the import of that. Anzilotti’s reply, after a vague reference to Chorzów, stated that it was a question of determining the relation between the counter-claim and the principal or originating claim, the counter-claim being considered admissible provided that it was connected with the principal claim. In 1922 the Court’s attention was directed to the fact that sometimes a counterclaim constituted a means of defence, and the Court could not in justice pass upon the principal claim without at the same time passing upon this plea of the defence. Judge Negulesco thought that a counter-claim should be introduced by application. He also observed that if a counter-claim were to be regarded merely as a plea of the defence, the Court could not pass upon it in the operative part of the judgment, but only in the grounds. ‘But there were cases in which the counter-claim might outweigh and nullify the principal claim, so that the Court should be able to give judgment on it against the applicant.’ That discussion led the President (Sir Cecil Hurst) to ask whether all reference to counter-claims should be omitted from Article 40. Judge Negulesco agreed, and was supported by the Vice-President, Judge Guerrero and others. After a long discussion the President put to the vote a question by Anzilotti: ‘Does the Court wish to maintain the principle that counter-claims directly connected with the principal claim may be presented in the Counter-case?’ By eleven votes to one the Court answered in the affirmative. By the same vote the Court decided that it wished to deal with counter-claims presented in the counter-case in a separate article of the Rules. By seven votes to five the Court adopted a proposal by Negulesco to the effect that any other claim that does not fulfil the condition of connection is to be presented in the form of an application. ‘The Court may exercise its power to join this claim to the application to which it refers.’ By those votes the Court accepted that a counter-claim made in the counter-memorial is an exceptional method of seising the Court of a case, provided that the counter-claim meets the conditions laid down and in particular is directly connected with the principal claim. If it does not, a new claim is to

19 20

Ibid. at 871. Ibid. at 104–117; summarized in Add. 4 at 261–266.

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be filed, and that may be joined to the pending case. On that basis the article was referred to the Co-ordination Commission. The Commission’s new text, numbered 41, read: When proceedings have been instituted by means of an application, counter-claims may be presented in the submissions of the Counter-Memorial, provided that such counterclaims are directly connected with the subject of the application and that they come within the jurisdiction of the Court. Any other claim which does not fulfil the first condition mentioned shall be presented in the form of an application. The Court may exercise its power to join the two suits thus lodged.

After a brief discussion the last two sentences were combined to read: ‘Any claim which does not fulfil the former condition shall be presented in the form of an application and be the subject of a separate suit or be joined by the Court to the original suit.’21 In 1935 the Drafting Committee presented this text unchanged as article 63, moving it from the section dealing with the contents of the written pleadings in contentious cases to a new section then entitled Occasional Rules. The Court considered this at its 51st meeting on 8 April 1935. The main issue treated at this stage was whether a counter-claim could be filed at a later stage than the counter-memorial. The Court decided to change the final sentence to read: ‘Any claim which is not directly connected with the subject of the original application must be presented in the form of a separate application and may form the subject of distinct proceedings or be joined by the Court to the original proceedings’.22 The article was then adopted on first reading. At its 29th meeting on 26 February 1936 the Court adopted the provision unchanged.23 During this discussion it was explained that the initial words ‘may be presented’ did not mean that presenting a counter-claim in the counter-memorial was obligatory, but that the counter-memorial was the latest point of time at which a counterclaim in the sense of the Rules could be presented. The result appeared in Article 63 of the Rules of 1936, as follows:24 When proceedings have been instituted by means of an application, a counter-claim may be presented in the submissions of the Counter-Memorial, provided that such counter-claim is directly connected with the subject of the application and that it comes within the jurisdiction of the Court. Any claim which is not directly connected with the subject of the original application [requête originaire] must be put forward by means of a separate application and may form the subject of distinct proceedings or may be joined to the original proceedings [instance primitive].

21 22 23 24

Ibid. Add. 3 at 152, 923; Add. 4 at 267. Ibid. Add. 3 at 441; Add. 4 at 267. Ibid. Add. 3 at 649; Add. 4 at 268. PCIJ, Ser. D, No. 1, 4th ed. (1940). That was in the subdivision of the Rules headed Occasional Rules.

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At the same time, the provision regarding the inclusion of a counter-claim in the counter-memorial was dropped from the new provision (Rule 41) setting out the contents of the counter-memorial (which still did not mention the rejoinder). The Permanent Court twice faced counter-claims made under Article 63 of the 1936 Rules. The first occasion was in the Diversion of Water from the Meuse case.25 The applicant raised no issue regarding the counter-claim, and consequently the jurisdiction was perfected by the doctrine of the forum prorogatum. Nevertheless, the Court pointed out that the counter-claim was directly connected with the principal claim, so that presenting it in the counter-memorial was permissible (p. 34). In the Panevezys-Saldutiskis Railway case (Estonia v Lithuania), Lithuania filed preliminary objections that were joined to the merits. In its counter-memorial on the merits Lithuania included a counter-claim. The Court upheld the objection, and therefore did not have to consider any question relating to that counter-claim.26 In neither of those cases were third States notified of the counter-claim.

III. In the International Court of Justice In 1946 the International Court of Justice adopted a new version for Article 63 of the Rules: When proceedings have been instituted by means of an application, a counter-claim may be presented in the submissions of the Counter-Memorial, provided that such counter-claim is directly connected with the subject-matter of the application and that it comes within the jurisdiction of the Court. In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the application the Court shall, after due examination, direct whether or not the question thus presented shall be joined to the original proceedings [instance primitive].

No authoritative explanation has been given for that change. One major source of difficulty lies in the words ‘in the event of doubt’, since it is not clear whether the Rule had in mind doubt expressed by either of the parties, or doubt experienced by the Court whatever the position of the parties. The provision was retained unchanged as Article 68 of the Rules of 1972.27 Two cases have come before the Court under that provision, the Asylum case (Colombia v Peru) instituted by application on the basis of a framework agreement which provided for

25 26

27

PCIJ, Ser. A/B, No. 70 (1937) (Netherlands v. Belgium). PCIJ, Ser. A/B, Nos. 75 and 76 (1938, 1939). For a procedural decision by the Permanent Court regarding the presentation of new documents relating to the counter-claim, see PCIJ, Ser. E (Annual Report), No. 15 at 114; No. 16 at 183. On this, see G. Guyomar, Commentaire du Règlement de la Cour internationale de Justice: interprétation et pratique 372 (1973).

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the seising of the Court but without defining the dispute, and the U.S. Nationals in Morocco case (France v U.S.A.) instituted by application on the basis of declarations accepting the jurisdiction under Article 36, paragraph 2, of the Statute. In the Asylum case the counter-claim was duly filed in the counter-memorial, and in regular subsequent proceedings, written and oral, Colombia challenged its admissibility. Peru amended the counter-claim in the oral proceedings. The Court, in its judgment, first examined the counter-claim in its original form and found (p. 289) that the applicant had not contested the Court’s jurisdiction in respect of the original formulation. On the other hand, it had disputed the admissibility of the counter-claim which, in its view, lacked all connection with the subject-matter of the application and raised new problems, thus tending to shift the grounds of the dispute. The Court did not accept that view. ‘The connection is so direct that certain conditions which are required to exist before a safe-conduct [for the asylee] can be demanded depend precisely on facts which are raised by the counter-claim. The direct connexion being thus clearly established, the sole objection to the admissibility of the counter-claim in its original form is therefore resolved.’ The Court partly rejected the submissions of the applicant, rejected part of the counter-claim in its original form, and upheld it on another part. That finding made it unnecessary for the Court to consider any aspect of the amendment to the counter-claim submitted during the oral proceedings (p. 288).28 In the U.S. Nationals in Morocco case, the claim related to a series of bilateral treaties between Morocco (before the establishment of the French Protectorate) and the United States and the General Act of the International Conference of Algeciras of 7 April 1906. The counter-claim was based on the same instruments, and the arguments of each party in support of its claims are at one and the same time offensive and defensive. No question or doubt was raised of the Court’s jurisdiction over the counter-claims, nor was their admissibility challenged, so that in a legal sense the Court’s competence to deal with them rests on the doctrine of forum prorogatum. This case therefore adds little to the Court’s general case law on counter-claims.29 In the revised Rules of Court of 1978, the new Article 80 reads:

28

29

ICJ Rep. 1950, 266. This case was introduced by application on the basis of a framework agreement which did not define the dispute, but gave the Court jurisdiction over a dispute to be instituted by means of an application. On this form of framework agreement, see Sh. Rosenne, II The Law and Practice of the International Court 1920–20054 at 652 (2006) and Essay 9 above. Third States were not specially notified of the counter-claim, but the States parties to the conventions invoked in the case had previously been appropriately notified as required by the Rules. ICJ Rep. 1952, 176. Third States were not specially notified of the counter-claim, but most of the States parties to the Act of Algeciras had previously been appropriately informed of the subsistence of these proceedings.

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1. A counter-claim may be presented provided that it is directly connected with the subject matter of the claim of the other party and that it comes within the jurisdiction of the Court. 2. A counter-claim shall be made in the Counter-memorial of the party presenting it, and shall appear as part of the submissions of that party. 3. In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party, the Court shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings. No explanation has been vouchsafed for this new Rule.30 It largely reflects both sentiments expressed by the members of the Permanent Court during the proceedings leading to the 1936 revision of the Rules of that Court, and important developments in the Court’s general law and practice, especially the distinction between jurisdiction, regulated by Article 36 of the Statute, and the seising of the Court, a matter for Article 40. The new Rule contains some significant changes. It omits the formal requirement that a counter-claim can only be filed in a case introduced by application. It is nevertheless unlikely that a counterclaim can be filed in a case submitted to the Court by notification of a special agreement properly so called. In paragraph 2, including the counter-claim in the counter-memorial is now obligatory, ‘shall be made’ replacing ‘may be presented’, thus ensuring the liaison between the defence on the merits and a counterclaim: and a counter-memorial may also exceptionally introduce a preliminary objection. The former expression ‘subject-matter of the application’ is replaced by the broader ‘subject-matter of the claim’. Following the new Article 49, paragraph 4, which distinguishes between the arguments and the submissions in a written pleading, Article 80 also seems to differentiate between the arguments in the body of the counter-memorial and its submissions. In paragraph 3, the expression ‘after hearing the parties’ replaces ‘after due examination’ of the previous Rules, the lack of clarity over the word ‘doubt’ remaining. This, it now appears, was an unwise change which the Court so far has not found possible – or necessary – to apply, at all events in certain types of case as will be seen later. The Court’s first reference to a counter-claim since the adoption of that Rule was an aside in the provisional measures phase of the U.S. Diplomatic and Consular Staff in Tehran case (U.S.A. v Iran).31 Dealing with an Iranian contention that certain alleged illegal activities by the United States had a close connection with the detention of the American personnel in the Embassy in Tehran, the Court showed that it remained open to the Iranian Government under the Court’s Statute and Rules to present its own arguments to the Court regarding

30 31

For commentary, see G. Guyomar, Commentaire du Règlement de la Cour internationale de Justice adopté le 14 avril 1978: Interprétation et pratique 519 (1983). ICJ Rep. 1979, at 15 (para. 24).

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those activities either by way of defence in a counter-memorial or by way of a counter-claim filed under Article 80 of the Rules. By not appearing in those proceedings, Iran had by its own choice deprived itself of the opportunity of developing its own arguments. That passage, which was not repeated in the corresponding passage in the judgment on the merits,32 is probably to be read as an indication to a non-appearing government of the facilities that are open to it and which it renounces by not appearing in the proceedings. Taken by itself it does not add anything to the juridical concept of a counter-claim nor does it contribute to the distinction between a defence and a counter-claim. At most it shows that such a distinction can exist. It does emphasize, however, that a communication sent to the Court by a non-appearing respondent, en dehors the regular written proceedings as such, cannot raise a counter-claim even though, as far as concerns provisional measures, the Court may take such a communication into consideration on the basis of Article 74, paragraph 3, second sentence, of the 1978 Rules of Court. The recent cases in which the admissibility of counter-claims was challenged peremptorily and partly disposed of in interlocutory proceedings are best appreciated with due consideration of their antecedent procedural history. The clarification that they have introduced into the concept and practice of a counterclaim is of the greatest importance. Nevertheless, their significance as precedents cannot be separated from their procedural history, since in those cases the Court’s jurisdiction, and its limits, either were not being contested or had been established judicially in formal closely argued preliminary objection proceedings. How the Court would deal with a counter-claim when its jurisdiction has not been established is an open question. The Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia-Herzegovina v Yugoslavia) was introduced by application in 1993, jurisdiction being based on the compromissory clause, article IX, of the Genocide Convention of 1948.33 In the first set of provisional measures proceedings in 1993 Yugoslavia ‘recommended’ the Court to order provisional measures to be observed by the applicant, and in the further provisional measures phase Yugoslavia itself requested the indication of provisional measures to be observed by the applicant. To some extent those resemble counterclaims in a form appropriate for provisional measures proceedings. In those proceedings, the applicant argued that by those actions the respondent had conferred jurisdiction on the Court over the claims formulated in the application – claims that went beyond the jurisdictional clause of the Genocide Convention. However,

32 33

Ibid. 1980, at 19 (paras. 19, 20). For that Convention, see 78 UNTS 277. For the proceedings in the International Court, see the orders of 8 April and 13 September 1993 on provisional measures and further provisional measures, the judgment of 11 July 1996 on preliminary objections, and the order of 17 December 1997 on Counter-claims. ICJ Rep. 1993, at 3 and 325; 1996, at 595; and 1997, at 243. Judgment on the merits was delivered on 26 February 2007.

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the Court declined to see in the respondent’s actions anything to confer additional jurisdiction on the Court. In its order of 3 April 1993 it indicated three sets of measures, the first two being addressed to the respondent only and the third to both parties. In its second order of 13 September it reaffirmed the previous indication. In its judgment of 1996 on the preliminary objection, the Court confirmed its previous findings on jurisdiction and, rejecting a series of objections by Yugoslavia, found that on the basis of article IX of the Genocide Convention it had jurisdiction to adjudicate upon the dispute. It dismissed additional bases of jurisdiction invoked by the applicant, and found that the application was admissible. Against that background, the proceedings on the merits, suspended on the filing of the preliminary objections, were resumed. Within the time limit laid down Yugoslavia filed its counter-memorial. The arguments fall into two distinct parts, namely the refutation of the applicant’s allegations and case, and the counter-claim. Two of the submissions of that counter-memorial were defences and were directed at the rejection of the claims made against Yugoslavia. These were followed by four further submissions making allegations charging the applicant with violations of the Genocide Convention. Those four submissions were not designated counter-claim but the corresponding argument in the countermemorial carried that title. Immediately on receipt of the counter-memorial the applicant informed the Court of its opinion that the counter-claims did not meet the criterion of Article 80, paragraph 1, of the Rules and should therefore not be joined to the original proceedings. At the meeting with the President to fix the procedure for dealing with this, the two parties agreed that they would submit written observations on the question of the admissibility of the counterclaims, and both contemplated hearings on the question. The lengthy written observations were filed within the time limits laid down.34 The Court found that having received full and detailed written observations from each party, it was sufficiently well informed of their positions regarding the admissibility of the claims presented in the counter-memorial as counter-claims by Yugoslavia. Accordingly, it did not appear necessary to hear the parties on the subject (order, para. 25). This suggests that whatever the positions of the parties, the Court felt no doubt as to the connection of the counter-claims to the original claim. The very heavy pleadings on fact and on law that had taken place up to this stage were no doubt relevant to the Court’s conclusion. The Court then looked at the question whether the Yugoslav claims constituted counter-claims within the meaning of Article 80 of the Rules. The Court stated that it is established that a counter-claim has a dual character in relation to the claim of the other party. A counter-claim is independent of the principal claim in so far as it constitutes a separate ‘claim’, that is to say, an autonomous

34

The proceedings on this issue, including the written observations submitted by the parties, are fully summarized in paras. 6 to 24 of the order of 17 December 1997.

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legal act the object of which is to submit a new claim to the Court.35 At the same time, it is linked to the principal claim in so far as, formulated as a ‘counter’ claim, it reacts to the principal claim. Its thrust is thus to widen [élargir] the original subject-matter of the dispute by pursuing objectives other than the mere dismissal of the applicant’s claim in the main proceedings – for example, that a finding be made against the applicant. That is what distinguishes a counterclaim from a defence on the merits (para. 27). The Court then went on to explain the difference between counter-claims and defences to the merits in the scheme of the Rules of Court. ‘In Article 80 of its Rules, the Court did not confer a different meaning on the expression “counter-claim”.’ However, the inclusion of Article 80 in the section of the Rules devoted to incidental proceedings in contentious cases and its provisions ‘show that the expression does not apply to mere defences on the merits which the Court must hear in the normal exercise of its functions to decide the Applicant’s claims’. The Court saw in the reference to counter-claims in the Tehran case a need to differentiate between counter-claims and defences in the scheme of the Rules of Court (para. 28). The Court recognized that a claim should normally be made before the Court by means of an application instituting proceedings. At the same time, certain types of claim may be set out in incidental proceedings, that is to say, within the context of a case that is already in progress. That is merely to ensure better administration of justice, given the specific nature of the claims in question. The idea of counter-claims is essentially to achieve a procedural economy while enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently. The admissibility of the counter-claims must necessarily also relate to the aims thus pursued and be subject to conditions designed to prevent abuse (para. 30). The respondent cannot use a counterclaim as a means of referring to an international court claims that exceed the limits of its jurisdiction as recognized by the parties – note the generality of the language here. Nor also can the respondent use the counter-claim to impose on the applicant any claim it chooses, at the risk of infringing the applicant’s rights and of compromising the proper administration of justice. That is why Article 80, paragraph 1, requires the counter-claim both to come within the jurisdiction of the Court and to be directly connected with the subject-matter of the claim of the other party (para. 31). The Court then turned to the issue of ‘directly connected’ – that being the core contention of Bosnia-Herzegovina. Since the Rules do not define what is meant by that expression, ‘it is for Court, in its sole discretion, to assess whether the counter-claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case’. Furthermore, ‘as a general rule the degree of connection must be assessed both in fact and in law’ (para. 33). 35

The expression ‘autonomous legal act’ [un acte juridique autonome] echoes Anzilotti’s description of a counter-claim as ‘un acte autonome du défendeur’ in his article cited in note 15 above, at p. 875 of the French translation.

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As for the facts, the Court pointed out that it emerged from the parties’ submissions that their respective claims rested on facts of the same nature; they formed part of the same factual complex since they are alleged to have occurred on the territory of Bosnia and Herzegovina and during the same period. In addition, Yugoslavia intended to rely on certain identical facts both to refute the allegations made against it and to obtain judgment against the applicant (para. 34). The Court also pointed out that the parties were pursuing the same legal aim, the establishment of legal responsibility for violations of the Genocide Convention (para. 35). The Court found support for this in the 1993 proceedings for the indication of provisional measures. In para. 36 it quoted two long passages from its order of 13 September, in which it referred to the duties of both parties. The Court accordingly found that the counter-claims were directly connected with the subject-matter of the applicant’s claims and were, as counter-claims, admissible and formed part of the present proceedings (para. 37). This decision on the admissibility of the counter-claims in no way prejudged any question with which the Court would have to deal during the remainder of the proceedings (para. 38). Having in this way found for the admissibility of the counter-claims, the Court turned to the major procedural aspects.36 The first of these concerned the protection of the rights of third States entitled to appear before the Court. In this case the issue was not a theoretical one since in the arguments of the countermemorial, but not in its submissions, Yugoslavia made allegations possibly involving one of those third States. The Court therefore instructed the Registrar to transmit a copy of the order to third States entitled to appear before the Court (para. 39) – an instruction corresponding to Article 42 of the Rules of Court regarding the transmission of a notification of the institution of proceedings to the members of the United Nations and to other States entitled to appear before the Court. The second procedural issue related to the equality of the parties in the subsequent proceedings.37 The Court stressed the necessity to ensure strict equality between the parties. It accordingly reserved the right of Bosnia-Herzegovina to present its views on the counter-claim in writing a second time in an additional pleading that may be the subject of a subsequent order (para. 42). In the operative clause, therefore, the Court found the counter-claims ‘admissible as such and form part of the current proceedings’. It directed the parties to file a reply

36 37

These procedural aspects were foreseen by Anzilotti in his article cited in note 15 above, particularly at pages 874 and following of the French translation. In the Asylum case the Court had held that as the applicant was the respondent on the counter-claim, it could have the last word in the hearings. International Court of Justice, ICJ Yearbook 1953–1954 at p. 114; Sh. Rosenne, III The Law and Practice of the International Court 1920–20054 at 1301 (2006). Peru made no request for an extra round of the written proceedings to deal with the counter-claim, but exercised that right in the oral proceedings Asylum case, II Pleadings, 13, 178.

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and a rejoinder for which it fixed the dates, and reserved the subsequent procedure. This order was adopted by the impressive majority of 13 votes to 1. Each judge ad hoc voted in favour of the order. On 20 April 2001 Yugoslavia informed the Court of its intention to withdraw the counter-claims. Bosnia-Herzegovina had no objection. On 10 September the President of the Court made an order placing on record the withdrawal of the counter-claims.38 For the withdrawal or discontinuance of counter-claims, it appears that the Court will apply the same procedure as for the withdrawal or discontinuance of any other claim or case. The next case, Oil Platforms (Iran v U.S.A.), arose out of a series of incidents involving naval actions by United States warships against Iranian installations in the Gulf during the Iran-Iraq War of the 1980s. The procedural history of this case differs from the Application of the Genocide Convention case in one important respect. There had been no previous phases of provisional measures in which the whole of the cases of both parties had been presented to the Court in summary form. However, as in the Genocide Convention case, the Court had carefully defined the scope of its jurisdiction before the counter-claim was filed. The case was introduced by application in November 1992, jurisdiction being based on the compromissory clause, article XXI, paragraph 2, of the Treaty of Amity, Economic Relations and Consular Rights between the two countries of 15 August 1955.39 After the memorial was filed, the United States raised a preliminary objection. In a Judgment of 12 December 1996 the Court rejected the preliminary objection to the jurisdiction and found that it had jurisdiction, on the basis of Article XXI of the Treaty of 1955, to entertain the claims made by Iran under Article X, paragraph 1, of that Treaty.40 That was only one aspect of Iran’s original claim. The United States duly filed its counter-memorial containing two sets of submissions. One set asked for the dismissal of Iran’s claims. The second, stated to be a counter-claim according to Article 80 of the Rules, made claims against Iran alleging violations of the 1955 Treaty, mirroring the formulation that Iran had used in the submissions of its memorial. Iran objected to the admissibility of the counter-claim on the ground that it did not come within the Court’s jurisdiction and requested a hearing on the matter. At the meeting with the Vice-President (as Acting President, the President of the Court being a national of the United States), the parties differed over the nature and purport of the interlocutory proceedings. The United States understood that they would be limited to the issue set forth in Article 80, paragraph 3, of the Rules, namely a doubt over the connection of the counter-claim

38 39 40

ICJ Rep. 2001, 572. 284 UNTS 93. ICJ Rep. 1996–II, 803. This was the second case between those two countries arising out of incidents in the Gulf during that war. The other case was the Aerial Incident of 3 July 1988 case, withdrawn, ICJ Rep. 1996, 9.

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to Iran’s claims. This was contested by Iran. The Court set time limits for the filing by the parties of their written observations, which the Court recites at length in its order of 10 March 1998 (paras. 8 to 30).41 As in the Genocide Convention case, the Court found that having received detailed written observation from each of the parties it was sufficiently well informed of the positions they held with regard to the admissibility of the claims presented as counterclaims and accordingly it did not appear necessary to hear them further on the subject (para. 31). On the substance of the matter, the Court followed its earlier approach. It cited paragraph 31 of its previous order as its point of departure. Regarding jurisdiction, it quoted two passages from its judgment of 12 December 1996 in which it had explained with some finesse the extent of its jurisdiction over Iran’s claims. It found that the counter-claim alleged acts ‘capable of falling within the scope’ of its jurisdiction as previously defined, so that the Court had jurisdiction to entertain the counter-claim in so far as the facts alleged may have prejudiced the freedoms guaranteed by article X, paragraph 1, of the 1955 Treaty (para. 36). Repeating verbatim (not as a citation) paragraph 33 of the Genocide Convention order regarding the meaning of ‘directly connected’ and the Court’s discretion in this matter (para. 37), the order goes on to declare that it emerged from the parties’ submissions that their claims rested on facts of the same nature, forming part of the same factual complex, since the facts all occurred in the Gulf in the same period. As in the previous case, the United States indicated that it intended to rely on the same facts and circumstances in order both to refute the allegations of Iran and to obtain judgment against Iran. In addition, the two parties were pursuing the same legal aim, the establishment of legal responsibility for violations of the 1955 Treaty (para. 38). The Court concluded that the counter-claim was directly connected with the subject-matter of Iran’s claims and satisfied the conditions set forth in Article 80, paragraph 1, of the Rules (paras. 39, 40). Finally, the Court repeated its procedural decisions regarding notification of the order to third States entitled to appear before the Court, and regarding the future proceedings in the case (paras. 42 to 45). Again the Court reached its decision that the counter-claim ‘is admissible as such’ by the impressive majority of 15 votes to one (the Judge ad hoc chosen by Iran, Professor F. Rigaux). On the procedure the order directed Iran to submit a reply and the United States to submit a rejoinder relating to the claims of both parties within the time limit laid down (later prolonged), reserving the rest of the procedure. On 28 August 2001, by agreement of the parties the Vice-President of the Court authorized the submission by Iran of an additional written pleading relating solely to the counter-claim and fixed a time limit for that.42 41 42

ICJ Rep. 1998, 190. ICJ Rep. 2001, 568. In the hearings in March 2003 Iran was granted the floor after the oral rejoinder of the United States solely to make an oral rejoinder on the counter-claim.

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The judgment on the merits43 commences by explaining that the Court’s task was ‘to determine whether or not there have been breaches of the 1955 Treaty, and if it finds that such is the case, to draw the appropriate consequences according to the submissions of the Parties’ on both the claim and the counter-claim (para. 21). As regards the counter-claim, the Court recalled the terms of its 1988 order and pointed out that questions had been raised between the parties as to the significance and scope of the 1988 ruling on jurisdiction, to be examined later in the judgment (para. 22). At the same time the Court explained that both the claim and the counter-claim could be upheld only so far as a breach or breaches of Article X, paragraph 1, of the 1955 Treaty may be shown, ‘even though other provisions of the Treaty may be relevant to the interpretation of that paragraph’ (para. 22). In the course of the proceedings it transpired that on the counter-claim Iran was asking the Court to rule generally on its jurisdiction and on the admissibility of the counter-claim. The United States was basing itself solely on Article 80 of the Rules and contended that many of Iran’s objections to jurisdiction and admissibility involved contested matters which the Court could not effectively address particularly in the context of the abbreviated procedure of Article 80, paragraph 3. This gave the Court the opportunity to clarify the scope of the decision on the ‘admissibility as such’ of the counter-claim in a statement which has become a major directive for this aspect of the Court’s practice: The Court considers that it is open to Iran at this stage of the proceedings to raise objections to the jurisdiction of the Court to entertain the counter-claim or to its admissibility, other than those addressed by the Order of 10 March 1998. When in that Order the Court ruled on the “admissibility” of the counter-claim, the task of the Court at that stage was only to verify whether or not the requirements laid down by Article 80 of the Rules were satisfied, namely, that there was a direct connection of the counterclaim with the subject-matter of the Iranian claims, and that, to the extent indicated in paragraph 102 above [summarizing the Court’s finding that their claims rest on facts of the same nature and form part of the same factual complex and that the Parties were pursuing the same legal aim], the counter-claim fell within the jurisdiction of the Court. The Order of 10 March 1998 therefore does not address any other question relating to jurisdiction and admissibility, not directly linked to Article 80 of the Rules. This is clear from the terms of the Order, by which the Court found that the counter-claim was admissible “as such”; and in paragraph 41 of the Order the Court further stated that: “a decision given on the admissibility of a counter-claim taking account of the requirements set out in Article 80 of the Rules in no way prejudges any question which the Court will be called upon to hear during the remainder of the proceedings” . . . The Court will therefore proceed to address the objections now presented by Iran to its jurisdiction to entertain the counter-claim and to the admissibility thereof [para. 105].

43

ICJ Rep. 2003, 161. Paragraphs 101 to 124 deal exclusively with the counter-claim.

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Most of this part of the judgment examines different objections in light of the relevant facts. The fourth objection raised the more general question of whether the counter-claim had broadened the subject-matter of the claim beyond the submissions set out in the original counter-claim, by having added belatedly some other complaints. The Court found that this objection raised the issue of whether the United States was presenting a new claim. In answering this contention the Court took as its starting point the general rule that the parties to a case cannot in the course of the proceedings transform the dispute brought before the Court into a dispute that would be of a different nature.44 This rule applies a fortiori to the case of counter-claims, having regard to the provisions of Article 80 of the Rules, ‘and in particular taking into account the fact that it is on the basis of the counter-claim as originally submitted that the Court determines whether it is “directly connected with the subject-matter of the claim”, and as such admissible under that text’ (para. 117). Reviewing the countermemorial and the counter-claim the Court found that the United States had not transformed the subject of the dispute originally submitted to the Court, ‘which remains the same’ (para. 118). The Court therefore could not uphold Iran’s submission on this score. On the merits the Court rejected the counterclaim (para. 124). An important development occurred in the Land and Maritime Boundary between Cameroon and Nigeria case. In its counter-memorial filed on 31 May 1999, Nigeria referred to Article 80 of the Rules and included a series of counterclaims relating to incidents along the border which Nigeria alleged engaged the international responsibility of Cameroon. Cameroon’s claim alleged a series of incidents alleged to engage the international responsibility of Nigeria, and Nigeria requested the rejection of those claims. Cameroon did not make any objection to the submission of the counter-claims. In the process of fixing the time limits for the reply and rejoinder, and after the usual meeting with the parties about that, the Court made an order on 30 June 1999 fixing those time limits.45 In that order, the Court found that the counter-claims met the requirements of Article 80. They rested on facts of the same nature as the corresponding claims of Cameroon and all those facts were alleged to have occurred along the frontier between the two countries. Echoing but not repeating the orders of 1997 and 1998, the Court found that the claims in question of each of the parties pursued the same legal aim, namely the establishment of legal responsibility and the determination of the reparation due on this account. Accordingly the counter-

44

45

The Court relied here on the Société Commerciale de Belgique case in the Permanent Court and its own ruling in the Certain Phosphate Lands in Nauru case, PCIJ Ser. A/B No. 78 p. 175 and ICJ Rep. 1992, 240, 265 (para. 63). ICJ Rep. 1999–II, 983. This stage had been preceded by phases of provisional measures, preliminary objections, and a request for the interpretation of the preliminary objection judgment, so the Court was well informed of the nature of the case when it came to examine the counter-claims.

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claims were directly connected with the subject-matter of Cameroon’s claims, and were therefore admissible as such and formed part of the proceedings. In order to protect the rights of third States entitled to appear before the Court, the Court instructed the Registrar to transmit a copy of that order to them. As in the previous cases, and to ensure strict equality between the parties, the Court also reserved Cameroon’s right to present its views in writing on the counter-claims a second time in an additional pleading which might be the subject of a subsequent order. In the merits phase no difficulties arose over the counter-claim. The Court treated together Cameroon’s submissions concerning Nigeria’s State responsibility and Nigeria’s counter-claims concerning Cameroon’s State responsibility, dismissing them both (paras. 308 to 324). This case is a major change from the practice of the Permanent Court, and from that of the present Court in the previous cases in which counter-claims had been presented in the counter-memorial – the Asylum case and the U.S. Nationals in Morocco case. In both those cases the Court took no action regarding the counter-claims when dealing with the proceedings after the countermemorials had been filed. In the Asylum case it allowed the applicant an additional speech to deal with the counter-claim only. The order of 30 June 1999 suggests that in future the Court would proprio motu examine the admissibility of a counter-claim presented in the counter-memorial in accordance with Article 80 of the Rules, and make pertinent orders if it finds it admissible. Should the applicant raise any objection to the counter-claims, the Court will arrange for appropriate interlocutory proceedings. The last to date in this cluster of counter-claims is the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo [DRC] v Uganda).46 Here Uganda’s counter-memorial included three counter-claims. At a meeting with the President on 11 June 2001 the DRC raised objections to the admissibility of the counter-claims and the parties agreed that each party would file written observations on the admissibility question. This was done sequentially, the DRC filing first. Having received these detailed written observations the Court considered that it was sufficiently well informed of the respective positions of the parties, and on 29 November 2001 it issued an order holding that two of the counter-claims were admissible as such but that the third was not. To ensure strict equality between the parties the DRC’s right to present its views in writing a second time in an additional pleading was reserved.47 In the hearings the DRC was allowed to make an oral rejoinder to Uganda’s final pleading, linked to the counter-claim.

46 47

ICJ Rep. 2005, 19 December, paras. 266 to 344 address the counter-claims in this case. ICJ Rep. 2001, 660. For the formal authorization for the filing of the additional pleading see ICJ Rep. 2003, 3.

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In its judgment the Court first considered the admissibility of the objections (paras. 266 to 275). Starting from its dictum in paragraph 105 of Oil Platforms, (above p. 285) the Court found that there was nothing in the facts of Armed Activities that compelled a different conclusion. On the contrary: the Court’s order admitting this counter-claim clearly called for the same outcome as the Court had reached in Oil Platforms. The Court explained that the enquiry under Article 80 to admissibility ‘is only in regard to the question whether a counterclaim is directly connected with the subject-matter of the principal claim; it is not an over-arching test of admissibility’ (para. 272). In the order of 29 November 2001 the Court had intended only to settle the question of a direct connection within the meaning of Article 80. Uganda had argued that the objection was inadmissible as failing to conform to Article 79 of the Rules (relating to preliminary objections). Rejecting this contention the Court said that Article 79 concerns the case of an “objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision on which is requested before any further proceedings on the merits”. It is inapplicable to the case of an objection to counter-claims which have been joined to the original proceedings. The Court notes that nonetheless, the DRC raised objections to the counterclaims in its Reply, i.e. the first pleading following the submission of Uganda’s CounterMemorial containing its counter-claims (para. 274).

The effect of this was that the objections came within the category of pleas in bar, on which the Court had to give a decision before deciding on the merits of the objections. In this case the Court went on and formally rejected the objections to the first counter-claim and to the part of the second counter-claim relating to breach of the Vienna Convention on Diplomatic Relations of 1963. It upheld the objection to the admissibility of the part of the second counter-claim relating to the maltreatment of individuals other than Ugandan diplomats at Nidjili International Airport on 20 August 1998 and found that the DRC had violated obligations owing to Uganda under the Vienna Convention and was under an obligation to make reparation to Uganda for the injury caused. It decided that failing agreement, the question of reparation due to Uganda should be settled by the Court, and reserved for this purpose the subsequent procedure in the case (para. 345 sub-paras. (8) to (14)). This matches the conclusions on the DRC’s claim where it found that Uganda was under obligation to make reparation to the DRC and adopted a similar clause regarding the question of reparation. Dealing with the first counter-claim and DRC’s argument that it was partly inadmissible and not founded as to the merits, the Court explained that the 2001 order ‘does not deal with questions of admissibility outside the scope of Article 80 of the Rules, nor does it deal with the merits of the first counterclaim. Neither does the Order prejudge any question as to the possibility of dividing this counter-claim according to specific periods of time.’ The Court

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was therefore not precluded, if it was justified by the circumstances of the case, from considering the first counter-claim following specific time periods. In this case the Court did not see any obstacle to examining the first counter-claim following three periods of time ‘and for practical purposes deems it useful to do so’ (para. 291). In connection with the second counter-claim, the Court noted that certain new claims advanced by Uganda were based on the same factual allegation, i.e. the alleged illegal use of force as the Court had observed in the 2001 order. ‘It was the use of force on Embassy premises that brought this counter-claim within the scope of Article 80 of the Rules, but that does not preclude examination of the special status of the Embassy’. The Court cited its judgment on the preliminary objections in the Cameroon v Nigeria case48 for the proposition that ‘counter-claims do not have to rely on identical instruments to meet the “connection” test of Article 80’ (para. 326). A consequence of this dispositif on the merits of the case was that each party was under obligation to make reparation to the other, further proceedings on the questions of reparation being reserved pending agreement between the parties. The case therefore remains pending on the Court’s General List, relevant to the application of Practice Directions VII and VIII.49

IV. What is not a Counter-claim? A consequential claim by the respondent based on the rejection of the applicant’s claim is not a counter-claim. The present Court furnishes two illustrations of this (one is a consequential claim by the applicant). In the Temple of Preah Vihear (Merits) (Cambodia v Thailand) case, at the end of the hearings Cambodia presented a revised submission asking for the return of certain artefacts that it alleged the Thai authorities had removed from the Temple since the date of the Thai occupation of that area. Commenting on this, the Court said: . . . [T]he Court considers that the request . . . does not represent any extension of Cambodia’s original claim (in which case it would have been irreceivable at the stage at which it was first advanced). Rather it is . . . implicit in, and consequential on, the claim of sovereignty itself.50

The Court made a finding of principle in favour of Cambodia after it had upheld Cambodia’s main claim. Here, the consequential claim was made by the

48 49 50

ICJ Rep. 1998 275, 318 (para. 99). See Essays 6 and 7 above. ICJ Rep. 1962 at 30.

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applicant. However, the same principle would also be applicable to a consequential claim of this nature made by the respondent in similar circumstances. That issue appeared in the Arbitral Award of 31 July 1989 case (Guinea-Bissau v Senegal). Senegal, in its counter-memorial, requested the rejection of the applicant’s submissions. The counter-memorial then went on to ask for a declaration that the arbitral award was valid and binding for the two parties, and that the applicant had the obligation to apply it. The Court made no particular observation on that submission. However, in the operative clause of the Judgment, after rejecting a submission by Guinea-Bissau that Senegal was not justified in seeking to require the application of the arbitral award in question, the Court turned specifically to that submission of Senegal, which it upheld.51 These two cases show that a consequential submission that does not involve any extension or widening of the case or any transformation of the case into another case, is something distinct both from a defence on the merits and from a counter-claim. This is a development that may widen the scope of judicial settlement in the broader context of the pacific settlement of international disputes and the remedies available in the International Court of Justice.

V. Counter-claims by agreement The original assumption of the Permanent Court was that a counter-claim could only be made when the case is begun by application. That was apparently something left over from the original idea of the Advisory Committee of Jurists of 1920. That Committee had envisaged a form of compulsory jurisdiction over legal disputes, an approach that was rejected by the Council of the League of Nations. However, as seen, the condition that the dispute should have been begun by application was dropped by the present Court in the revised Rule 80 of 1978. The reasons for this change are not known. The first instance of the incorporation of a counter-claim in a special agreement was in the Corfu Channel case. Here the proceedings were originally introduced by an application of the United Kingdom against Albania on the basis of the forum prorogatum jurisdiction, but after preliminary objection proceedings the parties concluded a special agreement which formed the basis for subsequent proceedings.52 The second question asked in that special agreement was the counter-claim of Albania, and was treated as such by the United Kingdom. The existence of this as a counter-claim can be determined from a comparison of the two questions that the Court was asked to decide with the initial unilateral application instituting the proceedings filed by the United Kingdom.53

51 52 53

ICJ Rep. 1991, 53. ICJ Rep. 1947–1948, 53 at 55. ICJ Rep. 1949, 3.

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The second example of this is the special agreement of 28 June 1993 that formed the basis for the GabÏcíkovo-Nagymaros Project case (Hungary/Slovakia). Earlier, on 23 October 1992, Hungary had seised the Court of an application against the then Czech and Slovak Federal Republic regarding diversion works on the River Danube. There was no basis for the Court’s jurisdiction. Since the named respondent declined the invitation to accept the unilateral application the Court, following Article 38, paragraph 5, of the 1978 Rules, took no action on it. The diplomatic negotiations that followed led to the special agreement, in which three questions were put to the Court.54 This was a more synallagmatic approach to the Court than Hungary’s initial unilateral application. It is consonant with this practice that in the jurisdictional phase of the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, during the oral proceedings Qatar acknowledged that its application instituting the proceedings corresponded only to part of the dispute, and invited Bahrain ‘to remedy the matter by bringing a separate application or a counter-claim respecting, for example, Zubarah’. The 1994 Judgment goes on to afford the parties the opportunity to submit to the Court ‘the whole of the dispute’, without specifying any particular method for them to do this. In the second (1995) judgment on jurisdiction, after some additional documents had been filed, the Court found that Qatar had introduced the elements that Bahrain wanted, although perhaps not in the form preferred by that country, and held that it had jurisdiction to adjudicate upon the dispute and that Qatar’s application was admissible.55 Common to the first two of those cases is that the special agreement replaced a unilateral approach to the Court in a situation of a unitary factual complex, similar to those found by the Court to have existed in the Application of the Genocide Convention and the Oil Platforms cases. The conclusion of the special agreements widened the scope of the cases to cover the whole of the dispute and introduced an element of mutuality and reciprocity into the litigation. That did not change the nature of the cases, although it did supply a more satisfactory basis for the employment of judicial settlement in the pacific settlement of two difficult disputes. However, it is with the framework agreement type of case – the Asylum case for instance – that the counter-claim has shown its real value in the employment of judicial settlement as a process for the pacific settlement of an international dispute. This is a relatively new diplomatic procedure used when the parties are unable to define the dispute in terms appropriate for a special agreement in the traditional sense but agree that either party may file an application instituting proceedings. As it appeared in the Asylum case, the parties agreed

54 55

ICJ Rep. 25 September 1997 (para. 24). ICJ Rep. 1994, 112 at 124 (para. 36) and 1995, 6. The Court decided that the proceedings would be those usual in a case introduced by notification of a special agreement, with the simultaneous filing of the written proceedings. That case is pending.

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that a dispute about Sr. Haya de la Torre and his asylum existed and that it should be referred to the Court. Since they were unable to define the question to be put to the Court they agreed that a unilateral application by either party would not be regarded as an unfriendly act. The ability to make a counter-claim opens the possibility that each side could present the Court with its conception of what the dispute between them is, thus permitting the Court to give a more balanced decision embracing the whole of the dispute than is frequently encountered in situations of purely unilateral recourse to the Court. It would appear that the potentialities of this procedure for energizing the judicial settlement of disputes are especially relevant in the context of regional attempts at dispute settlement.

VI. Some Afterthoughts Whatever the intention when the idea of a counter-claim was introduced into the first rules of the Permanent Court in 1922, today Article 80 of the Rules has to be construed and applied in the context of the Court’s law and practice as a whole. All questions of the Court’s jurisdiction are governed by Article 36 of the Statute (including paragraph 6 of that Article). In some of the recent counter-claim cases, the Court’s jurisdiction, and its parameters in the particular case, had been determined in earlier preliminary objection proceedings, and the Court found that the counter-claims came within the scope of the jurisdiction as it had been determined. The method of seising of the Court is another matter. That is governed by Article 40 of the Statute, which recognizes two methods of seising the Court of the originating claim – by notification of a special agreement or by unilateral application. The jurisdiction of the Court is based exclusively on the consent of the parties, however expressed. That consent may extend specifically to the method of seising the Court, but if not, a party that has consented to the jurisdiction may institute proceedings unilaterally if no special agreement can be or has been concluded. Once a case has been properly brought before the Court, the Rules take over. For reasons of judicial economy Article 80 permits an exceptional method of seising the Court of a claim. That exceptional method, available only to a State that is already a party to a case in the capacity of respondent and participating in the proceedings, is the ability of that State to introduce a new claim by way of counter-claim argued and formulated in its counter-memorial. If that counter-claim comes within the Court’s jurisdiction and meets the material condition of a direct connection with the original claim, it will be joined to and form part of the proceedings already before the Court. Following appropriate procedure to maintain the rights of third States and the equality of the parties, a single judgment will then dispose of the claims and the counter-claims. A State which unilaterally lodges a suit against another State must keep in mind the possibility that the respondent will use its right to make a counter-claim under Article 80 of the Rules.

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The Court has made a major clarification of the concept of ‘directly connected’ as the main material element of a counter-claim in international litigation. The direct connection is determined by relating the counter-claim and the arguments on which it is based to what the Court has termed the factual complex. That factual complex, the cases show, comprises many factors: the title of jurisdiction; the time-span to which the counter-claim relates as compared with the time-span of the originating claim, an aspect of the scope of jurisdiction ratione temporis; the territorial aspect, what might be termed the scope of the jurisdiction ratione territorii; the instruments invoked in the counter-claim in comparison with those originally invoked, jurisdiction ratione pacti; and the aim of restoring legality in the relations of the States litigant, to mention but some that have appeared in the recent cases. The preceding survey well illustrates the difference between a respondent’s counter-claim and its defence, between the respondent’s asking the Court for a positive decision in its favour while rejecting the applicant’s claims as opposed to a purely negative decision rejecting the applicant’s claim. It also indicates the defensive function of a counter-claim in appropriate cases, especially cases of State responsibility arising out of an incident. The presence of a counter-claim compels the Court to look at the facts through two prisms, first that of the applicant and then that of the respondent. This can produce a neutralizing mode, when the Court rejects the claims of both parties as in Oil Platforms, or an equalizing mode as in Armed Activities when the Court accepts the claims of both parties. Another form of equalizing produced through careful use of the counter-claim procedure is when the case is brought before the Court on the basis of a framework agreement which does not define the dispute but regulates the seising of the Court (Asylum). The inclusion of a counter-claim in the submissions of the counter-memorial links the two processes and opens the way to a sophisticated legal strategy. The inclusion of the counter-claim in the submissions introduces an element of symmetry in the dispute and ensures its disposal in the operative clause of the judgment. This case-law leads to the general conclusion that in the law and practice of the International Court, the counter-claim is a purely self-standing institution following its own logic, its own procedure, and its own rules, with its own place in a well conceived litigation strategy. Its development has followed parallel developments in the Court’s general law and practice, particularly as regards its jurisdiction and the seising of the Court. It is immaterial whether it was initially inspired by one or other system of internal law or by theories of abstract jurisprudence. Analogies drawn from internal law and practice are of little relevance for litigation in the International Court.

17 THE JAFFA-JERUSALEM RAILWAY ARBITRATION (1922)1

On 4 October 1922 an Arbitral Tribunal rendered its final award in the case arising out of the purchase by the Government of Palestine of the railway concession between Jerusalem and Jaffa. The concession was owned by a French company. The case goes under the name of the Chemin de Fer ottoman de Jaffa à Jérusalem et Prolongements and His Britannic Majesty’s Government. The arbitral proceedings were arranged between the British and French Governments, but in the proceedings themselves, the Railway Company appeared as claimant and the British Government as respondent. By agreement between the two Governments and accepted by the Company, the arbitration took place in Paris on the basis of article 311 of the Treaty of Sèvres, the Treaty of Peace with Turkey of 10 August 1920, although at the time that treaty had not come into force (later events aborted it).2 No other case of

1

2

The author wishes to thank the following persons for assistance in connection with this article: President S.M. Schwebel of the International Court of Justice and Dr A. Eyffinger, the Court’s Librarian for obtaining copies of the Award; Dr Geoffrey Marston, of Sidney Sussex College, Cambridge, England, for providing him with references to documents preserved in the Public Record Office (PRO) London; Mr David Lerer and Ms Emily Daniel of D.J. Freeman, Solicitors, London, for examining and retrieving copies of documents kept at the PRO; La Direction des Archives du Ministère français des Affaires étrangères (Paris) for relevant information from the French archives; and Mr Jonathan Meidan, First Secretary of the Embassy of Israel in Oslo for undertaking researches in Norwegian Archives relevant to Deputy-judge F.V.N. Beichmann. For this article the author has used the files of the Foreign Office (as it was then known) and of the Treasury Solicitor in the PRO in London, that is files FO 371/5259 (1920), FO 371/6380 and 6381 (1921) and FO 371/7787 and 7788 (1922), Treasury Solicitor files TS/27/143 and TS/27/144, and information received from the Quai d’Orsay in Paris. The original Foreign Office numbers of the dockets and other papers have been inserted in square brackets. Material relating to the arbitral proceedings themselves is contained in the Treasury Solicitor files. Parallel British files exist in the PRO for the Colonial Office, files CO 733/9, 10 and 11 (for 1921), and CO 733/29, 30 and 31 (for 1922). E-mail Marston to the author, 22 April 1998. The Israel State Archives hold microfilms from the PRO of the Foreign Office and Colonial Office files. Letter G. Livneh to the author, 26 February 1998. The author has deposited his files relating to this case in the Library of Tel Aviv University Law School. For the text of the Treaty of Sèvres, see 113 British and Foreign State Papers 652; 15 American Journal of International Law, Supplement, 179 (1920); F.L. Israel (ed.), III Major Peace Treaties of Modern History 1648–1967 2055 (1967). The fact that no treaty of peace with Turkey was

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this nature under that Treaty is recorded in the International Law Reports. That Award and the Preliminary Decision have never been published in full and are reproduced in Appendix I of this article.3 Appendix II reproduces the relevant available diplomatic correspondence exchanged between the British and French Governments. The final award, rendered by consent after a week’s hearings on the merits, had been preceded by a Preliminary Decision of 29 May 1922, which resolved one of the principal legal issues in the case. The Tribunal was composed of F.V.N. Beichmann, Deputy-judge of the Permanent Court of International Justice and President of the Court of Appeal of Trondheim, Norway, as President, together with Lt. Col. H. Osborne Mance, Royal Engineers, an experienced railway engineer nominated by the British Government and Chief Engineer Ferdinand Meyer, nominated by the French Government. The future of another concession in Palestine was also under discussion between the two Governments at the time and some of the diplomatic correspondence refers to it. That was a concession to the Turkish Tobacco Régie. There was a suggestion from the French Government that this concession too should be submitted to the same arbitration, and that in some way the Ottoman Public Debt Commission could be interested in it. The British Government at first was inclined to accept this, while denying any possible interest on the part of the Ottoman Public Debt Commission (Appendix II, No. 2). However, the British Government’s communication of 18 July 1921 (Appendix II, No. 3) only refers to the railway claim. There was no further substantial reference to the Tobacco Régie in the diplomatic correspondence until much later. In its second letter of 13 February 1922 (Appendix II, No. 15b) the British Government formally declined to arbitrate that claim. That matter was settled independently.4

3

4

in force at the time meant that Palestine was still technically Turkish territory under a form of belligerent occupation until the entry into force of the Treaty of Lausanne on 6 August 1924. For that Treaty, see 117 British and Foreign State Papers 543; 18 American Journal of International Law, Supplement, 4; Israel, op. cit., vol. IV at 2301. The Tribunal’s preliminary decision (see Appendix I) notes that the Treaty of Sèvres was ‘not yet ratified’. See A.M. Stuyt, Survey of International Arbitrations 1794–1989 at 477 (Third updated ed. 1990). The text has been made available from the Peace Palace Library at The Hague. The Award does not indicate which language version is authoritative. The only known reference to that Award is in the article by S.M. Schwebel, assisted by Dr. J. Willis Wetter, ‘Some Littleknown Cases on Concessions’, 40 BYIL 183 (1964), and reproduced in S.M. Schwebel, Justice in International Law 436 (1994). There is no mention of it in the leading treatise on the Palestine Mandate, S.J. Stoyanovsky, The Mandate for Palestine (1929). According to Schwebel, op. cit. fns. 36 and 41, the following rate of exchange was used for computing Egyptian pounds into pounds sterling applicable in October 1922 – £1.00 = £E.975, and the rate of exchange for computing French francs was £1.00 = 58 frs. At that time the Egyptian Pound was the currency in use in Palestine. Concerning that concession, on 13 October 1920 the Government of Palestine promulgated Public Notice No. 192, requiring persons holding or claiming concessions in Palestine granted

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I. The Background The background of this arbitration can be reconstructed from the diplomatic documents retrieved from Foreign Office files in the Public Record Office in London, from information that has been furnished from the Archives of the Ministry for Foreign Affairs (the Quai d’Orsay) in Paris, and from the written pleadings in the case, retrieved from the Treasury Solicitor’s files now also in the Public Record Office in London. On 29 October 1888 the Imperial Ottoman Government through its Department of Commerce and Public Works granted to Youssouf [Joseph] Navon Effendi, an Ottoman subject living in Jerusalem, a concession for the construction and exploitation of a railway of approximately 80 kilometres (actually, finally, 87 kms) in length, to pass from Jaffa through Ramleh to Jerusalem. That was the first railway to be built in Palestine itself, and it reduced the time of the journey from approximately 12 hours by diligence (stage coach) to some four hours.5 The duration of the concession was 71 years from the date of the Firman authorizing it, namely 29 October 1888, expiring in 1959. The Ottoman Government retained the right to repurchase the concession on agreed terms after 30 years. On the termination of the concession, the railway was to be handed over to the Turkish authorities in good condition without payment for track and fixed properties, the price for the remainder to be fixed by experts. The rates were to be laid down in what was called the Cahier des Charges, an integral part of the concession arrangements. Following the grant of the original concession, the Company – Société du Chemin de Fer ottoman de Jaffa à Jérusalem et Prolongements – was formed in Paris to exploit the concession. The line was opened for traffic in September 1892.6 Joseph Navon (1858–1934) was a prominent figure in Jewish Jerusalem of the latter part of the nineteenth century. He was a merchant and a banker,

5

6

by the Ottoman Government to forward immediately full particulars to the Department of Commerce and Industry in Jerusalem. Official Gazette of the Government of Palestine No. 31, 15 November 1920, p. 4. Questions relating to that concession, which was not confined to Palestine, arose in the Ottoman Public Debt arbitration of 1925. United Nations, I Reports of International Arbitral Awards 529. Service on this line was suspended by the Israel Railways in August 1998. It had ceased to be economic, although it remained a tourist attraction, passing through some of the most beautiful countryside in Judea. For a partial reproduction of the original concession, see G. Young, IV Corps de droit ottoman 207 (1906). The full text appears in the written pleadings of the arbitration. See General Statement of Claim of the Applicants (undated, [? 19 April 1922]), Appendix C1, and Appendix C2 (Cahier des Charges). Repeated in the Amended General Statement of Claim (undated [? 21 June 1922]). The written pleadings of this case are found in PRO file TS [Treasury Solicitor] 27/144. Other material is in file TS 27/143. See also IV Encyclopedia Hebraica at cols. 955 and 960 (in Hebrew).

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and was active in developing Jewish Palestine at that time. After the railway was opened, the Ottoman Government conferred on him the title of Bey, in recognition of his services in developing Palestine. He moved to Paris in 1894, where he met Herzl. He died in Paris in 1934.7 There is a street named after him in the Mahane Yehuda quarter of Jerusalem, between Jaffa Road and Rashi Street. In April 1914, the French and Ottoman Governments concluded a treaty by which they agreed on the construction of a deep-water port at Jaffa, the prolongation of the railway to that port, and the exercise of the right of repurchase of the railway in accordance with the terms of the concession. The details were worked out directly between the Ottoman authorities and the Company. On 4 August 1914 – the day of the outbreak of the First World War in Western Europe – a Supplementary Agreement on this matter was signed in Constantinople between the Ottoman Minister of Finance and the representative of the Company. In one of the clauses of that Supplementary Agreement, the Ottoman Government renounced its right of repurchase. The Company was allowed to extend the line to the Dead Sea, but was unable to do so.8 The Ottoman Empire entered the War on the side of the Central Powers on 29 October 1914. The Turkish authorities immediately seized the railway, which they held and worked until November 1917. In November 1917, during General Allenby’s advance through Palestine to Syria, the railway came into the hands of the British military authorities. These apparently requisitioned it under the customary law of war. In the course of their retreat, the Turkish forces deliberately damaged the railway so as to prevent its use by the advancing British forces. According to the Company, the costs of reinstating and repairing that damage would form the subject of claims against the Turkish Government under the terms of the Treaty of Sèvres. We shall return to that Treaty. The British undertook then to repair the line, which was in use again by January 1918. During 1919 negotiations took place between the Company and General Allenby’s Headquarters in Cairo regarding payment for this property. On 19 July 1919 the Company sent a formal request to General Allenby asking for a regular requisition of the line according to the usages of war and setting out its view regarding the factors which should govern payment for the requisitioned property. That letter concluded: It is evident that this requisition, which only concerns the deprivation of enjoyment of our enterprise, will not prevent us from settling later on with the Allies the question of material damages caused by them to our installations (destroyed Gases! [Gares ? Sta-

7 8

Encyclopedia Judaica, CD-ROM edition, s.v. Navon; VI Encyclopedia Hebraica col. 816. For this contract, see General Statement of Claim of the Applicants and the Amended General Statement of Claim cited in note 5 above, Appendix D.

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tions], partial replacement of routes substitution of wide for narrow gauge) and these are matters which will be settled by agreement, decidedly realisable I believe, the day on which it will be possible for you to give us back our lines.9

Those proposals were not accepted, and apparently the ‘requisition’ of the railway was never completed.10 In October 1920 the Occupied Enemy Territory Administration (OETA) in Palestine was replaced by the civil administration, with Sir Herbert Samuel (as he then was) as High Commissioner. The railway was handed over to the Palestine authorities. It was operated as part of the general system of the Palestine Government Railways. Article 287 of the Treaty of Sèvres dealt with the property of Allied nationals in the Ottoman Empire as at 1 August 1914 (the date of the outbreak of the War in Central and Eastern Europe). That property was to be restored to its owners or compensation should be paid for it. If the property, rights and interests had been damaged or injured, compensation was to be paid by the Turkish Government, after determination if necessary by an Arbitral Commission to be appointed by the Council of the League of Nations. Article 311 of the Treaty addressed concessions in territories detached from Turkey and placed under the tutelage of one of the Principal Allied Powers – Palestine was one of those territories, placed under League of Nations Mandate administered by Great Britain. If the Allied Power concerned considered that the maintenance of the concession would be contrary to the public interest, it was entitled to buy it out or to propose modifications, subject to the payment of ‘equitable compensation’. If the parties could not agree on the amount of the equitable compensation, the compensation was to be determined by an Arbitral Tribunal. Paragraphs 3, 4 and 5 of article 311 provided: If the parties cannot agree on the amount of such compensation, it will be determined by Arbitral Tribunals composed of three members, one designated by the State of which the concessionaire or the holder of the majority of the capital in the case of a company is or are nationals, one by the Government exercising authority in the territory in question, and the third designated, failing agreement between the parties, by the Council of the League of Nations. The Tribunal shall take into account, from both the legal and equitable standpoints, all relevant matters, on the basis of the maintenance of the contract adapted as indicated in the following paragraph. The holder of a concession which is maintained in force shall have the right, within a period of six months after the period specified in the second paragraph of this article, to demand the adaptation of his contract to the new economic conditions, and in

9 10

The Company to General Allenby, 19 November 1919, translation in the British Reply, 21 July 1922, Appendix E, at pp. 39, 40, cited in note 5 above. Rejoinder on behalf of the Company, 12 August 1922, p. 3 (para. 9), cited in note 5 above.

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the absence of agreement direct with the Government concerned the decision shall be deferred to the Arbitral Commission provided for above.

Almost immediately on its installation the civil administration of Palestine, the Government of Palestine, decided to buy out the concession. On 22 September 1920 the Foreign Office in London informed the French Embassy (Appendix II, No. 1) that the High Commissioner for Palestine wished to take the railway. The British Government thought that the best course to pursue would be for the Company to submit a claim based on the value of the line at the date when it was taken over by the British military authorities. The Palestine Government would make a similar estimate of its value at that date. ‘The case as submitted by the two parties concerned could then, if necessary, be settled by arbitration, due consideration being given to the value of the concession and the expenditure which has been entailed to restore the line to working conditions.’ The Note continued that any claim put forward as suggested ‘would not of course invalidate their claim against the Turkish Government for damage done during the period of Turkish occupation’. No direct reply to that Note has come to hand. Negotiations then took place in Palestine between the Government and the Company from December 1920 to March 1921. In those negotiations, the Company put forward a claim for 25,318,395 francs [£436,524]. For its part, the Palestine Government without prejudice made a counter-offer of 11,000,000 francs [£189,655]. No agreement was reached.11 After this the negotiations were transferred to London and Paris. Most of the diplomatic correspondence took place between the Foreign Office and the French Embassy in London. For its part, the Foreign Office was in close contact with the Colonial Office, and no doubt through that Office with the Government of Palestine. In Paris, the Ministry for Foreign Affairs maintained liaison with the Company. On 24 June 1921 the Foreign Office advised the French Embassy in London [Appendix II, No. 2], in reply to the Embassy’s Notes of 29 March and 1 April [not found] dealing respectively with claims of the Tobacco Régie and the Railway Company against the Administration of Palestine,12 that it accepted the French view that these claims should be submitted to arbitration without waiting for the entry into force of the Treaty of Sèvres, and that one tribunal should be set up to deal with both the claims. Article 311 of

11

12

Affidavits by Norman Bentwich, Attorney General of the Government of Palestine, and of Sir Herbert Samuel (2), all of 22 August 1922, PRO file TS 27/143. Those affidavits were apparently filed in the arbitration proceedings. In the arbitration there was some discussion as to whether the payment was to be in gold francs, and the two affidavits were filed to answer that contention made by the Company. The French Government referred to that offer in its aide mémoire of 10 August 1921 (Appendix II, No. 4). These Notes are not available to the author.

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the Treaty of Sèvres provided a procedure designed to meet cases of that nature. On 20 July 1921 the French Embassy sent its reply to the Foreign Office (Appendix II, No. 4). In that Note the French Government accepted the proposal to submit the two claims to a single arbitral tribunal. It requested an immediate payment to the Company of the sum of 5,600,000 francs [later assessed by agreement as £103,368] in order to enable it to meet its current obligations. The French Foreign Minister, Aristide Briand, thought that the arbitral tribunal should be constituted and should function according to the terms of articles 287 and 311 of the Treaty of Sèvres even though the Treaty had not yet come into force. The tribunal should have the widest powers to settle all questions submitted to it and its decision should fix the amount of compensation to be paid, and the dates and method of payment. It should also have the power to determine the costs of the arbitration and the method of payment of those costs.13 On 10 August, Mr R.G. Vansittart, at the time secretary to Lord Curzon, the Secretary of State for Foreign Affairs, visited the Quai d’Orsay. He was handed an aide mémoire (Appendix II, No. 5) devoted almost exclusively to the payment of that sum. The aide mémoire displays French impatience at what appeared to it to be delaying tactics on the part of some British authorities. On 15 August (Appendix II, No. 6) the Foreign Office, acknowledging the Embassy’s communication of 20 July [Appendix II, No. 4), made a suggestion regarding the president of the tribunal, to be discussed in § II below. It also asked for particulars regarding the French request for the immediate payment of the 5,600,000 francs on account. Replying to the Foreign Office on 25 August 1921 (Appendix II, No. 7), the French Embassy returned with greater emphasis to the question of the immediate payment of the sum of 5,600,000 francs to the Company to enable it to meet current obligations pending the arbitral award.14 In its reply of 9 September (Appendix II, No. 8), the Foreign Office indicated that it was most anxious that the Tribunal should begin its work with the least possible delay. It therefore suggested that the Company should forthwith submit unofficially a copy of its claim so that the British authorities could make a preliminary investigation of it ‘and thus perhaps avoid delays which might be occasioned by the necessity of reference to the Government of Palestine’.15 There followed some interim correspondence relating to the composition of the Tribunal, to be discussed later

13

14 15

PRO file FO 371/6331. That letter dealt equally with the claim of the Tobacco Régie. In its Preliminary Decision, the Arbitral Tribunal seems to have misread that letter as a rejection of the British suggestion to arbitrate the matter. But viewing the diplomatic correspondence as a whole. it is difficult to see why the Tribunal should have thought this. PRO ibid. That Note also dealt with the composition of the tribunal. PRO ibid. [E 10048/40/88]. At the same time the Foreign Office intimated that the question of the advance payment was under consideration.

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(§ II below). On 3 October the Foreign Office notified the French Embassy that it was prepared to make the advance payment requested, the sum in question to be deducted from the total amount of compensation eventually decided upon by the Tribunal (Appendix II, No. 9).16 In a letter of 21 December 1921 to the French Ambassador in London (Appendix II, No. 13), the Foreign Office assumed that there would be no necessity to agree upon specific terms of reference to the tribunal, as it was already mutually understood that the arbitration was taking place with the object of determining the equitable compensation payable to the Company under article 311 of the Treaty of Sèvres. The French side had accepted this proposal (Appendix II, No. 14). On 13 February 1922 (Appendix II, No. 15a), referring to a request for more specific terms of reference from Beichmann, now President of the Arbitral Tribunal, the British Government reiterated its view that no specific terms of reference were necessary. However, at the same time the members of the Tribunal must be supplied with instructions in some form ‘which will specify both the object and the limitations of the proposed arbitration’. The Government accordingly proposed that the Notes of 21 December 1921, 10 January 1922, the present note and the reply to it should be submitted jointly to the arbitral tribunal. It went on to point out that the correspondence did not contain any specific provision for the possibility of the award being other than unanimous. In view of the urgent necessity of reaching a final decision in the matter at issue, the Government considered that an award given by a majority of the members of the Tribunal should be accepted as binding on both parties. On 27 February (Appendix II, No. 16), the French Ambassador accepted those proposals. He also contended that following from article 311 of the Treaty of Sèvres, a decision by a majority of the members of an arbitral tribunal would be sufficient.17

16

17

PRO ibid. [E 10426/40/88]. This was acknowledged by the Embassy in its Note to the Foreign Office of 7 October 1921, Appendix II, No. 10. The text of that British reply given in Appendix II is reconstructed from the drafts also available in the PRO, the second page of the letter having been inadvertently omitted from the copy that was sent to the author. A note in the PRO file dated 8 December 1921 from the British Embassy in Paris states that a communication was sent to the chairman of the Company and that the Count de Vauréal ‘presented himself and took possession of the cheques. Form receipted by this gentleman is transmitted’ [docket E 13520/40/88]. De Vauréal was chairman of the Company. The Treaty of Sèvres does not contain a specific provision that a majority of the Tribunal would be sufficient. But presumably its draftsmen were familiar with article 52 of the Hague Convention No. I of 1899, repeated in article 78, paragraph 2, of The Hague Convention No. I of 1907, for the Pacific Settlement of International Disputes, providing that all questions are decided by a majority of the members of the tribunal, and no doubt that was the normal practice. For those Conventions, see 187 Consolidated Treaty Series 410 and 205 ibid. 233. Those four letters were accordingly transmitted to the Tribunal and formed its terms of reference. They are set out in full in appendix A of the British Reply of 21 July 1921 (see note 5 above). They are mentioned in the opening paragraphs of the Award of 4 October 1922.

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II. The Composition of the Tribunal The first mention of the composition of the Tribunal appears in the British Note of 18 July 1921 (Appendix II, No. 3). The Government was endeavouring to secure as the British arbitrator an expert in railway administration and finance, and hoped that the French Government would choose as its arbitrator an expert with similar qualifications. The Note explained that the Government thought this course to be desirable because the questions with which the Tribunal would have to deal would be largely of a technical and financial nature, and unless the national members possessed the qualifications for dealing with such questions, the Tribunal would probably find it necessary to incur considerable expense in providing itself with expert assistance. The Note went on to state that if one national representative is an expert, it seemed desirable that the other should possess similar qualifications. At the same time, the British Government thought that the President should be a lawyer ‘as some legal questions will no doubt arise, but that one legal member should suffice’. This communication does not mention the claim of the Tobacco Régie. This suggests that the idea of submitting that claim to the same arbitral tribunal was no longer being actively pursued. The French Note of 20 July 1921 (Appendix II, No. 4) did not directly refer to the British proposal regarding the composition of the tribunal. It simply announced the appointment by the French Government, in the terms of article 311 of the Treaty of Sèvres, of Ferdinand Meyer, Ingénieur en chef des ponts et chaussées, ‘pour le représenter’. The Foreign Office, acknowledging that appointment in its Note of 15 August (Appendix II, No. 6), put forward the name of the Chilean jurist Alejandro Alvarez, then living in Paris, as being eminently suitable to preside over the Tribunal. The French Embassy’s Note of 25 August 1921 (Appendix II, No. 7) did not refer to the question of the presidency of the tribunal. It merely complained that the British arbitrator had not yet been designated. The British reply of 9 September (Appendix II, No. 8) announced the appointment of a representative, but that was conditional on his being released from other duties, a contingency that in the event did not occur. The communication went on to state that the British Government was most anxious that the Arbitral Commission should commence its work, but until they learned whether Alvarez was acceptable as President, it was difficult to proceed with preliminary arrangements.18 The Government was also arranging

18

A minute on the draft of this letter on file PRO FO 371/6381 [E 10048/40/88] suggests that there might have been some private correspondence regarding Alvarez. In 1946 Alvarez, despite his advanced years, was elected to the new International Court of Justice on which he served until 1955. His opinions are refreshingly ‘modern’ and highly controversial.

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for the immediate appointment of the British agent. The letter continued by suggesting that the tribunal should meet in Paris, and raised routine questions about the remuneration of its members. The British proposal regarding the designation of the President of the Tribunal led the French Government to look more closely into the question of how the President was to be chosen. The Quai d’Orsay thought that the two national arbitrators should attempt to agree on that person, and forward their recommendation to the two Governments. In a conversation with a representative of the French Embassy in the Foreign Office on 19 September 1921, agreement was reached on this point.19 This meant that the earlier British suggestion regarding the presidency lapsed. On 3 October the Foreign Office informed the Embassy (Appendix II, No. 9) that the original nominee as British arbitrator would not be available. That Note also recalls that at the conversation in the Foreign Office, the French representative had suggested that the two national arbitrators should meet in Paris ‘to decide on a President of the Tribunal, and to settle the exact terms of reference to the [Arbitral] Commission’. On 6 December (Appendix II, No. 11), the Foreign Office announced to the Embassy the appointment of Colonel H.O. Mance, C.B., C.M.G., D.S.O., Royal Engineers, as the British arbitrator, and of Mr Orme B. Clarke, Assistant Treasury Solicitor, as agent. The name of the French agent was requested.20 On 10 January 1922 (Appendix II, No. 14) the Embassy let the Foreign Office know that the Company had accepted the procedure proposed by the British Government to settle the dispute by arbitration. The Company would be represented by the President of its Council and its Director, and by its technical adviser Colonel Barry and such others as might be required (in the hearings it was also represented by Lord Cozens-Hardy as Counsel). At the same time it forwarded a copy of the claim that would be submitted to the Arbitral Tribunal.21 There was nevertheless some question as to the identity of the parties to this arbitration proceeding. At a meeting in the Colonial Office on 20 March 1922 with the two agents present, Col. Barry

19 20

21

This is based on information received from the Quai d’Orsay. No record of this meeting has been found in the PRO in London. Curiously, the handwritten draft of that letter, is clearly dated ‘26 Dec.’ But that is impossible as 26 December is a public holiday in London (Boxing Day). PRO file FO 371/6381 [E 13258/40/88]. That was immediately sent to the Colonial Office. Minute sheet dated 10 January 1922 in PRO file FO 371/7787 [E 388/190/45]. In the Foreign Office it was ‘seen’, amongst others, by Sir Cecil Hurst, at that time the Legal Adviser of the Foreign Office. The total amount claimed, under various heads, in this General Statement of Claim (unsigned and undated) was £E1,888,325 [£1,936,742]. Col. Barry was the Company’s effective agent in the arbitration proceedings.

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stated that the arbitration was between the Company and the British Government and that the French Government was not a party. The British representatives replied that this was not in conformity with their instructions. They asked for clarification of Barry’s status, as they had been official informed otherwise. Barry said that he was the agent.22 On 21 December 1921 (Appendix II, No. 13), the British Government put forward a programme of work. Regarding the composition of the tribunal, it suggested that the two national arbitrators should proceed to the selection of the third arbitrator, the name to be submitted to the Governments for confirmation. This establishes that although the appointment of Alvarez as President was no longer under discussion, a replacement had not yet been chosen. Paragraph 3 of this Note contains an interesting perception of the role of the national arbitrators: His Majesty’s Government also assume that the French Government agree with them that, in accordance with the usual practice in international arbitration cases, Monsieur Mayer and Colonel Mance will be acting in the capacity solely of arbitrators and in no respect as advocates or representatives charged with the duty of advancing the interests of their respective governments.23

O si sic omnes! The two arbitrators met in Paris early in January, 1922. On the basis of article 311 of the Treaty of Sèvres they proceeded to deal with the question of the third arbitrator. They thought that it would be appropriate to look for one from among the Members of the Permanent Court of International Justice at The Hague.24 Their first choice fell upon Judge Max Huber (Switzerland), subject to the approval of the two Governments. In the event of his refusal, they proposed Deputy-judge Beichmann. For reasons that are not available, Huber did not accept the task, and in that way Beichmann’s name was forwarded to the two Governments.25 The first mention of Beichmann in the diplomatic correspondence appears in the letter of the Foreign Office

22

23

24 25

Interview, 20 March 1922, PRO file TS 24/143. Given the terms of article 311 of the Treaty of Sèvres, it seems that in reality both parties to this arbitration were surrogates – the British Government for the Government of Palestine, and the Company for the French Government. Was that passage a gentle reaction to the French note of 20 July (Appendix II, No. 4) that Mayer would ‘represent’ the French Government in the arbitral tribunal? This letter went through several drafts. That paragraph appeared in all of them. The final draft, dated 20 December, was initialed by Hurst. It had also been approved by the Colonial Office. Drafts in PRO file FO 371/6381 [E 13352/40/88]. The Permanent Court had just been established and held its preliminary organizational session in January, 1922. Beichmann formally accepted the position in a latter dated 21 February 1922, written on the letter-head of the Permanent Court.

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to the French Embassy of 18 February 1922 (Appendix II, No. 15a). Here the Foreign Office intimated that it was in receipt of informal information that Beichmann had provisionally agreed to accept the position of President of the Tribunal. The French Government on 27 February 1922 accepted the British proposals, and suggested forwarding the relevant diplomatic papers to Beichmann immediately (Appendix II, No. 16).26 In that way, the composition of the Tribunal was completed. As stated, Beichmann was a Deputy-judge of the Permanent Court of International Justice. Article 16 of the original (unamended) Statute of that Court of 1920 specifically stated that its provision regarding incompatibilities did not apply to the Deputy-judges except when performing their duties on the Court. Beichmann took an active part in the preliminary session of that Court between 30 January and 24 March 1922. It seems that no question of possible incompatibility was raised in this instance. An interesting aspect of the choice of Beichmann as the President of the Tribunal is that neither of the two Governments – at the time the predominant Governments in the League of Nations – regarded the choice of a Member or a Deputymember of the Permanent Court to serve as an arbitrator in this type of dispute – between a commercial concern and a foreign Government – as incompatible with the functions of that person on the Court itself.27 In their January meeting, the two national arbitrators also took note of Clarke’s appointment as British agent. They saw that as an application of article 37 of the Hague Convention No. I of 1899, and requested information as to the person who, if necessary, would represent the French Government.28 III. The Proceedings On 3 March 1922 the Tribunal adopted Rules of Procedure, after hearing the parties. Unfortunately, no trace of these has been found. However, there is no reason to suppose that they contained any unusual provisions. This notwithstanding, the proceedings developed in an unexpected manner. In the General Statement of Claim, formally filed on 2 March 1922, the total amount claimed was £E2,393,324 [£2,454,691]. It included claims for the physical railway line and plant (£E838,370 [£859,857]) – the major single element of the claim. On various grounds connected with the terms

26

27 28

A minute on the file states that the French reply was ‘most satisfactory’. The Colonial Office agreed, in fact preferred, ‘our writing to M. Beichmann’, to whom the papers were sent in Paris on 28 February. PRO file FO 371/7787 [E 2262/190/65]. See further on this, my The Law and Practice of the International Court 1920–2005, vol. I at 403 (2006). For the 1899 Convention, see note 16 above.

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of the concession contracts this was challenged by the British Government. Meetings between the two agents and a representative of the Colonial Office took place on 8 and 20 March 1922 in an attempt to resolve the question, but to no avail.29 On 19 April the British agent filed an application with the Tribunal on this point. By Order of 26 April the Tribunal indicated that it would hear the parties on this issue, and required the respondent to file a memorial in support of its conclusions. That memorial was filed on 6 May, and was followed by an answer filed on 18 May. A hearing took place on 26 May, 30 and on 29 May the Tribunal handed down its Preliminary Decision. On the question of its jurisdiction to do this, the Tribunal was of opinion that it should defer to the unanimous decision of the parties and make this question the object of a preliminary decision. It also observed that the two Governments had decided to apply as between themselves the stipulations of article 311 of the Treaty of Sèvres, notwithstanding that the treaty had not yet been ratified. ‘It is evident that the rights of others who may ultimately be interested are reserved.’ As to the substance of this preliminary question, in that Preliminary Decision the Tribunal made an important interpretation of article 311 of the Treaty of Sèvres and of the diplomatic correspondence that had passed between the two Governments. It said: The Tribunal considers that the text of article 311 of the Treaty of Sèvres leaves it open to the Tribunal to decide freely what are the material elements which should be taken into consideration on the basis of the maintenance of the contract “adapted”. The Tribunal is not therefore bound by the opinions which may have been expressed in the negotiations prior to the agreement. Even if the method of procedure envisaged by the British Government in its letter of 22nd September 1920 [Appendix II, No. 1] had been accepted by the French Government – which does not appear to be the case judging by the note dated 20th July 1921 [Appendix II, No. 4] – the Tribunal can only adhere to the conditions of article 311 of the Treaty of Sèvres which, as a result of the agreement arrived at, is to form the basis of its decision. In accordance with these conditions, account must be taken of the situation in which the Company would have found itself if the British Government had not decided to exercise the option provided for in article 311. On this point there appears to be no doubt that, being obliged by [quoted articles of the concession arrangements] to hand over to the Turkish Government, without payment, at the termination of the concession, the railway line with its fixed properties [as defined in the Cahier des Charges],

29 30

Notes of these two meetings are on PRO file TS 27/143. There is a summary record of the sitting of the Tribunal on 26 May 1922 in PRO file TS 27/144. No similar record has been found of the later sittings in this case. The view has been expressed, by some of those with whom the author has been in correspondence in connection with this article, that at that period it is unlikely that a formal record of a hearing would normally have been made.

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the Company would only have been entitled to the profits which could be earned by the operation of the line for the duration of the concession. If its profits had not been sufficiently high to cover the present value (reproduction cost) of the line with its fixed properties, the Company would not have had any right to be refunded the difference. The Tribunal further considers that the amount of the said profits does not depend on the above value. Consequently, this value cannot, in the opinion of the Tribunal, enter into account in the determination of the compensation to be awarded to the Claimants.

That finding effectively determined in favour of the British Government one of the principal legal issues arising out of the Company’s claims. The Tribunal accordingly made a formal finding that the present value – reproduction cost – of the railway line with those fixed properties which according to the concession arrangements were to be handed over to the Turkish Government on the termination of the period of the concession shall not be taken into account for the determination of the compensation to be paid by the British Government to the Company.31 The Company was to present an amended claim by 21 June, and the British Government was given to 12 July for its answer. In its amended claim, the Company claimed a total of £E1,696,452 [£1,739,951] under various heads together with interest at the rate of five per cent per annum. The claim included the sum of £E97,414 in respect of Turkish occupation and of loss and damage during that occupation, and £E261,010 in respect of the British military occupation and loss and damage during that occupation. The British reply was filed after an agreed extension, on 22 July. After disputing the statements and calculations of the claimants, the British agent expressed willingness to accept by way of equitable compromise the figure of 12,950,000 francs [£223,276] as representing the approximate value of the concession. From that there would be deducted the advance of 5,600,000 francs paid on account during the diplomatic phase; and the cost of repairing the damage caused by the Turks, it being for the claimants to recover compensation for that damage from the Turks. By way of compromise, the amount to be deducted on this account was placed at 5,000,000 francs. The Company’s rejoinder was filed on 10 August. The Company generally maintained its claims and allegations in so far as they had been contested. There was no further British written pleading. Hearings were held for five days between 26 and 30 September 1922. During those hearings the claimants called several witnesses. They were ex-

31

Schwebel points out that this case is of ‘high interest’ because of the holding that the basis of compensation due to a concessionaire for premature termination of contractual rights due to a concessionaire is lost profits, and that, where the concession contains a provision that fixed properties shall be transferred free of charge to the Government at the expiration of the concession term, compensation payable to the concessionaire shall not take account of the physical value of the fixed assets. Loc. cit. in n. 2 above at 230/487.

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amined and cross-examined by the British agent – an early, and perhaps the first, instance of British cross-examination in international judicial proceedings, and it is a matter for regret that no record of these sittings is available. At this stage the parties agreed to ask the Tribunal to settle the whole of the compensation payable by the British Government to the Company, even if article 311 of the Treaty of Sèvres did not confer jurisdiction on the Tribunal. This is an early example of the extension of the jurisdiction of an arbitral tribunal through the doctrine of the forum prorogatum.32 After these hearings and while the Tribunal was deliberating, however, the parties reached agreement on the final settlement. At the sitting of 3 October, their representatives announced the terms of a complete settlement of all the matters in dispute between them. They submitted to the Tribunal the text of the award which by consent they requested the Tribunal to make. That the Tribunal proceeded to do. It formally awarded to the Company a total sum of £565,000 sterling. That was the compensation for the buying out of the concession and in satisfaction of all claims of the Company against the British Government or by the British Government against the Company. The amount paid on account was calculated as the equivalent of £103,368, leaving a balance due of £461,632. Of this, £200,000 was to be paid on or before 22 October 1922, and the remainder was to be paid in three annual installments of £87,210, commencing on 1 October 1923, with interest de die in diem at the rate of 5 per centum per annum payable halfyearly, the first payment of interest to be made on 1 April 1923. The right to any claim for compensation against the Turkish Government passed to the British Government. The Company was to execute any documents that might be necessary to effect that transfer and was to give all assistance that may be reasonably required by the British Government for the prosecution of its claim. The British Government was to indemnify the Company against all expenses necessarily incurred by it in that respect. There was no question as to costs. The parties agreed that the costs of the Tribunal should be shared equally, and that each party should pay its own costs. IV. Loss of Profits – The Future of Palestine In the Amended General Statement of Claim filed following the Preliminary Decision, the Company included the sum of £E816,388 [£837,321] for loss of profits which could have been derived from traffic calculated on normal

32

In its Award the Tribunal stated that in view of the consent award the parties had requested it to make, the Tribunal ‘does not consider it necessary to dwell upon the question of the limits of the jurisdiction conferred by article 311 of the Treaty of Sèvres’.

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pre-war rate increase, plus a further £E289,321 [£296,740] loss of profits which would have been derived from the additional increase in traffic due to more favourable conditions, in all a total of £E1,105,709 [£1,134,061]. In its justification for this claim, the Company argued that direct railway communication had been established with El Kantara and so with the Egyptian railway system, bringing Cairo and Port Said within about 18 hours of Jerusalem. Direct connection had also been made between Jaffa, Jerusalem and Haifa, giving an ‘all rail route’ to Deraa, Damascus and the Hedjaz line. The Company had no actual figures of the traffic carried after 1 October 1922, ‘but there is every reason to anticipate that with the increasing prosperity of the country under stable British government, the traffics estimated previously have been maintained and improved . . . It is reasonable to expect that as development of the country progresses, population increases and new enterprises are introduced, this will be a constantly increasing percentage’.33 This provoked a strong response. The British Government contended that if that prosperity comes to pass, it would be one of the ‘new conditions’ which must be taken into account in adapting the concession contracts. The relevant passages from the Reply deserve lengthy quotation: If the development of Palestine is to result in certain economic conditions which in themselves conduce to the making of larger profits by the Claimants in the operation of their undertaking, this factor must be set off against the other and unfavourable economic factors upon which a claim for a modification of the fares and rates laid down in the Cahier des Charges may be supported. . . . [T]he Respondents will show that even assuming that Palestine as a whole may be considerably more intensively developed than it was before the war, there is no reason to suppose that this development will have any great effect upon the fortunes of the Jaffa-Jerusalem Railway. Palestine is on the whole a poor country, possessing no proved resources of fuel or minerals. None of the essential raw materials for the establishment of great industries are to be found; therefore, even if power can be generated there is no likelihood of its being used by industrial enterprises on a big scale. A considerable part of the country, and especially the country around Jerusalem, is and must remain of low productivity. The traffic on the line in question must remain that of import into Jerusalem of the commodities necessary to meet the needs of the inhabitants. The City and its neighbourhood are not rich and the population is unlikely to increase with any marked rapidity either in numbers or in wealth. Consequently there is no reason to suppose that the present consumption of commodities will increase to any great extent. Nor, so far as can be foreseen will Jerusalem become an industrial centre from which any large volume of traffic will flow Westward. Neither is the port

33

Amended General Statement of Claim on behalf of the Railway Company, at 21. PRO file TS 27/144. See note 5 above.

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of Jaffa likely to develop to any considerable extent. The true port of Palestine is undoubtedly Haifa not Jaffa. The geographical situation of Haifa in relation to the routes along which trade may be expected to flow and the natural features of the place make it quite certain that it must be preferred to Jaffa as a port. And it is abundantly clear that Palestine will not, at any rate within the life of the Claimants’ concession, require more than one port. In as far as the products of the Plain of Sharon, through which the Claimants’ line runs, may be exported by rail they will reach the railway at Ludd [Lydda, Lod] and thence be taken either to Haifa or Egypt without passing over the Claimants’ line. Oranges, and other products of the country, if exported from Jaffa, are brought in on camels.

The Reply pointed out that the very important orange growing area of Palestine at Petach Tikva was by then connected with the main line between Ludd and Haifa at Ras el Ain [Rosh ha Ayin]. None of the oranges grown in this area would therefore reach the Jaffa-Ludd line. The Reply continued: It will be shown that such development as may be expected to take place in Palestine will probably be mainly in the north and will not affect the earnings of the Jaffa-Jerusalem Railway. Water for irrigation on a large scale, and rapidly flowing streams capable of providing power for the production of electrical energy can only be found in the north. Southern Palestine as a whole, except for the Plain of Sharon, is not capable of any great development either agriculturally or industrially. Possibly the most hopeful outlook is in the country between Gaza and Beersheba, where the production of barley might be increased, but any development in this region would not assist the JaffaJerusalem Railway, a[s] such barley as may be exported by rail would be taken directly to Port Said or Haifa for shipment without touching the Claimants’ line.

At that point the Reply explained that at the time of writing Palestine’s productive capacity was less than it had been immediately before the war, and that it would require some years before economic conditions as favourable as those existing in 1914 would prevail. In any case, such development as may take place would proceed slowly and gradually and no abnormally rapid progress could be expected in the immediate future. It is admitted that the Jaffa-Jerusalem Railway may be expected to benefit to some extent owing to tourists coming to Jerusalem from Egypt. It will, however, be some years before there is likely to be any great increase in the number of tourists and the competition of motor cars will prevent tourists from becoming a source of much profit to the railway. If the Claimants were operating a narrow gauge railway which necessitated transshipment at Ludd the bulk of the tourists might be expected to continue their journey by motor car rather than by rail. On the other hand, it will be shown that a substantial proportion of the pre-war passenger traffic passenger receipts of the railway line was due to pilgrims coming from Russia. This source of revenue is closed indefinitely.

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The Reply then argued that the possible extensions to the new port to be constructed at Jaffa, and to the Dead Sea, would be of no value. The extension to the Dead Sea would be ‘prohibitively expensive’, and a railway could never compete with the existing means of transport having regard to the amount of traffic that might be expected. There was no intention to link Jerusalem to the Hedjaz Railway via the Dead Sea. The existing means of transport were sufficient to carry such traffic as existed or was likely to exist, and the route via Jerusalem could never compete with existing routes for the export of the products of Moab.34 This is probably one of the earliest official statements of the British Government (Colonial Office) on how it saw the future development of Palestine. Judging by the agreed award, the claimants found these contentions persuasive. * * * Had Youssouf Navon Effendi not transferred the concession to a French company, the concession would have remained Turkish property and would not have been treated as Allied property after the First World War. These interesting proceedings would not then have taken place.

34

Reply, paras. 17–19. PRO file TS 27/144. See note 5 above.

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THE AWARD

By agreement between the British and French Governments, an Arbitration Tribunal has been constituted in order to determine the equitable compensation which should be paid by the British Government to the « Société du Chemin de Fer Ottoman de Jaffa á Jérusalem et Prolongements », under the terms of Article 311 of the Treaty of Peace with Turkey, signed at Sèvres on the 10th August 1920, the British Government having, on the 22nd September 1920, given notice of their intention to buy out the concession belonging to the above Company. Although the above Treaty has not yet been ratified, the Governments agreed that the above article should be applied in the present case. The following documents relating to the above claim were communicated to the Tribunal: 1. A letter from the British Foreign Office to the French London, dated 21st December 1921. 2. A note from the French Ambassador in London to the Office, dated 10th January 1922. 3. A letter from the British Foreign Office to the French London, dated 13th February 1922. 4. A note from the French Ambassador in London to the Office, dated 27th February 1922.

Ambassador in British Foreign Ambassador in British Foreign

The Tribunal is composed of the undersigned: Lieutenant Colonel H. Osborne MANCE, C.B., C.M.G., D.S.O., arbitrator nominated by the British Government; Chief Engineer Ferdinand MEYER, arbitrator nominated by the French Government; and the President of the Superior Court of Trondhjem (Norway), Deputy Judge of the Permanent Court of International Justice, Member of the Permanent Court of Arbitration, F.V.N. BEICHMANN, arbitrator chosen by the two other arbitrators with the consent of their respective Governments, the last named acting as Chairman of the Tribunal. Rules of procedure were established by the Tribunal on the 3rd March 1922, after hearing the representatives of the parties on this point. The Agents appointed by the parties are: Mr. Orme B. CLARKE, C.B.E., for the British Government, and Colonel A.J. BARRY, C.B.E., for the Société du Chemin de Fer Ottoman de Jaffa A Jérusalem et Prolongements.

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SENTENCE

Les Gouvérnements Britannique et Français se sont mis d’accord pour constituer un Tribunal Arbitral en vue de déterminer la compensation équitable qui, aux termes de l’article 311 du Traité de paix avec la Turquie, signé à Sèvres le 10 août 1920, serait due par le Gouvernement Britannique à la Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements, le Gouvernement Britannique ayant, le 22 septembre 1920, fait savoir son intention de racheter la concession dont bénéficie ladite Société. Bien que le Traité susdit n’ait pas encore été ratifié, les Gouvernements ont convenu que ledit article serait néanmoins appliqué au litige dont il s’agit. Sur l’accord en question, les documents suivants ont été communiqués au Tribunal : 1° Lettre du Foreign Office Britannique à l’Ambassadeur de dres, en date du 21 décembre 1921. 2° Note de l’Ambassadeur de France à Londres au Foreign nique, en date du 10 janvier 1922. 3° Lettre du Foreign Office Britannique à l’Ambassadeur de dres, en date du 13 février 1922. 4° Note de l’Ambassadeur de France à Londres au Foreign nique, en date du 27 février 1922.

France à LonOffice BritanFrance à LonOffice Britan-

Le Tribunal est composé des soussignés : Le Lieutenant-Colonel H. Osborne MANCE, C.B., C.M.G., D.S.O., arbitre nommé par le Gouvernement Britannique, l’Ingénieur en Chef des Ponts-et-Chaussées Ferdinand MEYER, arbitre nommé par le Gouvernement Français, et le Président de la Cour d’Appel de Trondhjem (Norvège), Juge suppléant à la Cour Permanente de Justice Internationale et Membre de la Cour Permanente d’Arbitrage, F.V.N. BEICHMANN, arbitre choisi par les deux autres arbitres avec l’assentiment des Gouvernements respectifs, ce dernier faisant fonctions de Président du Tribunal. Un règlement de procédure a été fixé par le Tribunal, le 3 mars 1922, après avoir entendu à ce sujet les représentants des parties. Les parties ont désigné pour être leurs Agents auprès du Tribunal : Le Gouvernement Britannique, M. Orme B. CLARKE, C.B.E., et la Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements, M. le Colonel A. J. BARRY, C.B.E.

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The Railway Company as claimants formulated their claim in a statement submitted on the 3rd March 1922, accompanied by several annexes, including: 1. Translation of a Convention dated 29th October 1889 establishing the concession, of a «Cahier des Charges» of the same date, and of a Supplementary Convention dated 4th August 1914. 2. Several tables, including two diagrams. A jacket entitled « Privation de jouissance et questions diverses », and the Annual Reports submitted to the General Meetings of the Company in the years 1894 to 1914 were also submitted on the same date. At the request of the British Agent further information was given on the 8th April and the 7th, 9th and 12th May 1922. The claimants having in their statement demanded among other items payment for the physical value of the railway, calculated at the present cost of constructing and equipping the line, the British Agent, who disputed the taking into account of this value by the Tribunal, applied for a preliminary decision on this point, with the consent of the Agent of the claimants. In giving effect to this application, the Tribunal, after having received from the parties a written and an oral explanation of their respective views on this question, gave on the 29 th May the annexed decision, by which it was provided: “1. That the present value – reproduction cost – of the Jaffa-Jerusalem Railway line with these fixed properties which, according to article 20 of the « Cahier des Charges » were to be handed over without payment to the Turkish Government on the termination of the period of the concession, shall not enter into account for the determination of the compensation to be paid by the British Government to the Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements. “2. That the said Company may present an amended claim not later than the 21st June next and that the answer of the British Government must be presented at the latest by the 12th July following. “Five copies of the amended claim and of the answer shall be addressed to the office of the Tribunal and six copies to the agent of the adverse party.” In conformity with this decision, the Agent of the claimants submitted a new statement on the 21st June following, formulating the amended claim of the Company, and accompanied by several annexes including translations of the conventions and of the « Cahier des Charges » referred to above and certain tables. In this statement the claim of the Company was summarised as follows:

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La Société du Chemin de Fer – partie demanderesse – a formulé sa demande par un mémoire déposé le 3 mars 1922, accompagné de plusieurs annexes, entre autres: 1° Les traductions d’une Convention, en date du 29 octobre 1889, établissant la concession d’un Cahier des Charges en même date, et d’une Convention complémentaire en date du 4 août 1914 ; 2° Plusieurs tableaux, dont deux graphiques. Un cahier intitulé « Privation de jouissance et questions diverses » et les rapports annuels aux Assemblées Générales de la Société pour les années de 1894 à 1914 ont été également déposés à la même date. A la demande de l’Agent britannique, des renseignements ultérieurs furent donnés le 8 avril et les 7, 9 et 12 mai. La Société demanderesse ayant, dans son mémoire, réclamé, entre autres, le remboursement de la valeur matérielle de la ligne de chemin de fer, calculée au prix que coûterait actuellement la construction et l’équipement de la ligne, l’Agent Britannique, contestant que le Tribunal pût tenir compte de cette valeur, avait demandé, avec l’assentiment de l’Agent de la Société demanderesse, une décision préliminaire sur cette question. En donnant suite à cette demande, le Tribunal, après avoir reçu des parties l’exposé écrit et oral de leurs vues respectives à ce sujet, a rendu le 29 mai la décision ci-annexée, par laquelle il fut décidé : « 1° Que la valeur actuelle – le coût de reproduction – de la ligne de chemin de fer de Jaffa à Jérusalem avec ses dépendances immobilières qui, selon l’article 20 du Cahier des Charges, devaient être remises sans paiement au Gouvernement Ottoman à l’expiration du terme de la concession, ne doit pas entrer en compte pour la détermination de la compensation à payer par le Gouvernement Britannique à la Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements. « 2° Que ladite Société pourra présenter une demande rectifiée au plus tard le 21 juin prochain et que la réponse de la part du Gouvernement Britannique doit être présentée au plus tard le 12 juillet suivant. « La demande rectifiée et la réponse devront être remises en cinq exemplaires au Bureau du Tribunal et en six exemplaires, directement à l’Agent de la partie adverse. » Conformément à cette décision, l’Agent de la Société demanderesse a, le 21 juin suivant, déposé un nouveau mémoire, formulant la demande rectifiée de la Société, et accompagné der plusieurs annexes, dont les traductions des Conventions et du Cahier des Charges ci-dessus mentionnés et quelques tableaux. Dans ce mémoire, la demande de la Société a été récapitulée comme suit (Traduction) :

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I. Claim in respect of Turkish occupation and of loss and damage during such occupation: a) Compensation for loss of revenue...................... b) Damage done to the railway by the Turks ...... c) Loss of stores, furniture, fixtures, etc. ..............

L.E. 83.950 13.464 97.414

II. Claim in respect of British Military occupation and loss and damage during such occupation: Period from November 1917 to January 1919 ...... 118.363 Period from January 1919 to October 1920 .......... 142.648 261.010 III. Claim in respect of loss of profits which could be earned by the operation of the line during the remainderof the concession: a) Loss of profits which could have been derived from traffic calculated on normal prewar rate increase ............................................................ 816.388 b) Loss of profits which would have been derived from the additional increase in traffic due to more favourable conditions .............................. 289.321 1.105.709 Allowance for compulsory purchase, 10 per cent .... 110.570 1.216.279 IV. Rolling stock, Compensation to staff and miscellaneous: Rolling Stock .......................................................... Special payments made by the Company and cost of winding up ........................................................ TOTAL ............ L.E.

62.648 59.101 121.749 1.696.452

“The Company also claims interest at.the rate of 5 per cent per annum on the above sums from the dates as upon which they respectively became payable until the date of actual payment”. The British Agent having obtained an extension of time with the consent of the Agent of the other party, submitted his reply on the 22nd July following. The reply was accompanied by several appendices including:

319

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I. Demande à raison de l’occupation turque et des pertes et dommages subis durant cette occupation : a) Compensation de perte de bénéfices ................ b) Dégâts causés au chemin de fer par les Turcs .... c) Perte d’approvisionnements, fournitures, installations fixes, etc. ......................................

L.E. 83.950 13.464 97.414

II. Demande à raison de l’occupation militaire britannique et des pertes et dommages subis durant cette occupation : Période s’étendant de novembre 1917 à janvier...... 118.363 1919 Période s’étendant de janvier 1919 à octobre ........ 142.648 1920 261.010 III. Demande à raison de perte de revenus qui eussent pu être obtenus par l’exploitation de la ligne pendant le reste de la concession : a) Perte de bénéfices qui eussent pu résulter du trafic, calculé avec une augmentation conforme à la progression d’avant-guerre ........................ 816.388 b) Perte de bénéfices qui eussent résulté de l’augmentation ultérieure du trafic qui se serait produite à raison des conditions plus favorables 289.321 1.105.709 Allocation à raison d’achat forcé, 10% .................. 110.570 1.216.279 IV. Matériel roulant, indemnités au personnel et divers : Matériel roulant ...................................................... 62.648 Paiements spéciaux faits par la Société et frais de liquidation ........................................................ 59.101 TOTAL ........... L.E.

121.749 1.696.452

« La Société réclame également l’intérêt au taux de 5 pour cent par an sur les sommes ci-dessus à courir des dates auxquelles elles sont respectivement devenues exigibles jusqu’à la date du paiement effectif. » L’Agent britannique ayant obtenu, avec l’assentiment de l’Agent de l’autre partie, un prolongement du délai, a déposé sa réponse le 22 juillet suivant. La réponse est accompagnée de plusieurs annexes, entre autres :

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1. The translation of a report, with annex, by the Manager of the Claimant Company, dated 1st May 1918, showing the damage inflicted by the Turks and the situation of the line. 2. Copy of a memorandum from the Company dated 27th September 1919, with the object of explaining and proving the damage caused by the war. 3. Translation of a letter from the Manager of the Company to the Commander in Chief of the British forces in Egypt, dated 1st July 1919, regarding the eventuality of the line being requisitioned. 4. A large number of tables. Later on there were filed a graph and a supplementary memorandum with annex. Further information was given on the 24th August, and on the 11th, 13th and 19th September at the request of the Agent of the Company. In his reply the British Agent disputed several of the statements and calculations made by the claimants. He declared, however, his willingness to accept by way of equitable compromise the figure of frs. 12.950.000 as representing the approximate value of the concession. From this sum should, however, be deducted the cost of the repairs to the damage caused to the undertaking by the Turks, it being for the claimants to recover compensation for this damage from the Turkish Government. By way of compromise the amount to be deducted on this account could be fixed at frs. 5.000.000. It would also be necessary to give credit to the respondents for the amount of frs. 5.600.000, paid on account by the respondents to the claimants in November 1921. In their rejoinder submitted on the 10th August, the claimants generally maintained their allegations in so far as they were contested. The oral hearing provided for in the rules of procedure commenced on the 25th September and continued on the 26th, 27th, 28th, 29th and 30th September. Counsel for the claimants opened and developed the case for the Company, and in conformity with notification duly given, called several witnesses, who were examined by him and then cross-examined by the British Agent. In the course of the discussion the parties agreed to ask the Tribunal to settle the whole of the compensation payable by the British Government to the Company, even if Article 311 of the Treaty of Sèvres did not confer jurisdiction on the Tribunal. At the sitting on the 3rd October the representatives of the parties announced that they had agreed on a complete settlement of all the matters in dispute between them, and submitted to the Tribunal the text of the award which by consent they requested the Tribunal to make. This text is as follows:

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1° La traduction d’un rapport du Directeur de la Société demanderesse, en date du 1er mai 1918, concernant les dommages faits par les Turcs et l’état de la ligne avec annexe. 2° Copie d’un mémoire de la Société, en date du 27 septembre 1919, contenant un exposé explicatif et justificatif des dommages causés par la guerre. 3° La traduction d’une lettre du Directeur de la Société au Commandant en chef des forces britanniques en Egypte, en date du 1er juillet 1919, concernant la réquisition éventuelle de la ligne. 4° Un grand nombre de tableaux. Plus tard il a été remis un tableau graphique et un mémorandum supplémentaire avec annexe. Des renseignements ultérieurs ont été donnés le 24 août et les 11, 13 et 19 septembre à la demande de l’Agent de la Société. Dans sa réponse, l’Agent britannique a contesté plusieurs des allégations et calculs présentés par la Société demanderesse. Il a cependant déclaré pouvoir accepter à titre de compromis équitable, le chiffre de Francs 12.950.000 comme représentant la valeur approximative de la concession. De cette somme serait, cependant, à déduire le coût de la réparation des dégâts causés à l’entreprise par les Turcs, la Société demanderesse ayant à se faire rembourser par le Gouvernement Ottoman la compensation de ces dégâts. A titre de compromis, la somme à déduire de ce chef pourrait être évaluée à Francs 5.000.000. Il fallait aussi donner crédit au défendeur d’une somme de Francs 5.600.000, payée à titre d’avance sur la compensation, en novembre 1921, à la Société demanderesse. Dans sa réplique, déposée le 10 août, la Société demanderesse a, en général, maintenu ses allégations en tant que contestées. La discussion orale, prévue dans le règlement de procédure, a commencé le 25 septembre et a continué les 26, 27, 28 29 et 30 septembre. L’Avocat de la partie demanderesse a exposé et développé la thèse de la Société et a, conformément à l’avis donné en temps utile, présenté quelques témoins qui ont été examinés par lui et contre-examinés ensuite par l’Agent Britannique. Au cours de la discussion, les parties ont convenu de demander au Tribunal de régler toute compensation à payer par le Gouvernement Britannique à la Société demanderesse, même au cas où l’article 311 du Traité de Sèvres ne lui donnerait pas compétence à cet effet. A la séance du 3 octobre, les représentants des parties ont annoncé qu’elles sont tombées d’accord sur un règlement complet de toutes les questions en litige entre elles et ont soumis au Tribunal le texte de la sentence que, d’un commun accord, ils demandent au Tribunal de rendre. Ce texte est conçu ainsi qu’il suit (Traduction) :

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“By consent, we award, that the amount to be paid to the Claimants as compensation. for the buying out of the Concession and in satisfaction of all claims by the Claimants against the British Government or by the British Government against the Claimants, shall be the sum of five hundred sixty five thousand pounds sterling (£ 565.000 sterling). “The sum of one hundred three thousand three hundred and sixty eight pounds sterling (£ 103.368 sterling), having been already paid on account, the British Government shall pay to the Claimants the sum of two hundred thousand pounds sterling (£ 200.000 sterling) on or before the 22nd October 1922; eighty seven thousand two hundred and ten pounds sterling (£ 87.210 sterling) on the 1st October 1923, eighty seven thousand two hundred and ten pounds sterling (£ 87.210 sterling) on the 1st October 1924 and eighty seven thousand two hundred and ten pounds sterling (£ 87.210 sterling) on the 1st october 1925, together with interest on the last three sums at 5 per centum per annum from the 1st October 1922 until payment. “The right to any claim for compensation against the Turkish Government is to pass to the British Government. “The Claimants shall execute any documents which may be necessary to effect such transfer and shall give all assistance that may be reasonably required by the British Government for the prosecution of the said Claim, provided that the British Government shall indemnify the Claimants against all expenses necessarily incurred by them in respect thereof.” The parties have further agreed on an explanatory addition concerning the payment of interest. The Tribunal places on record the agreement between the parties. It further places on record the agreement previously referred to to the effect that the parties consent that the Tribunal should settle the whole of the compensation due from the British Government to the Company even if article 311 of the Treaty of Sèvres, correctly construed, should not confer on the Tribunal power to determine certain parts of such compensation. The Tribunal therefore does not consider it necessary to dwell upon the question of the limits of the jurisdiction conferred by the above article. No question arises as regards costs, it having been agreed that the costs of the Tribunal shou’d be shared equally by the parties, and that each party should pay its own costs.

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« En vertu d’un accord intervenu entre les parties, nous décidons que le montant qui doit être payé aux demandeurs à titre de compensation pour le rachat de la concession et pour satisfaire à toute réclamation des demandeurs vis-à-vis du Gouvernement Britannique ou du Gouvernement Britannique vis-à-vis des demandeurs, devra s’élever à la somme de : Cinq cent soixante cinq mille livres sterling (565.000 £ sterling). « La somme de cent trois mille trois cent soixante huit livres sterling (103.368 £ sterling) ayant été déjà payée comme à compte, le Gouvernement Britannique devra payer aux demandeurs la somme de : deux cent mille livres sterling (200.000 £ sterling), d’ici au 22 octobre 1922 ; quatre vingt sept mille deux cent dix livres sterling (87.210 £ sterling) au 1er octobre 1923 ; quatre vingt sept mille deux cent dix livres sterling (87.210 £ sterling) au ter octobre 1924 et quatre vingt sept mille deux cent dix livres sterling (87.210 £ sterling) au ler octobre 1925, avec l’intérêt sur les trois dernières sommes au taux de cinq pour cent (5 0 /0) par an à partir du er octobre 1922 jusqu’au paiement. « Le droit à toute réclamation à titre de compensation contre le Gouvernement Ottoman passera au Gouvernement Britannique. « Les demandeurs établiront tous les documents qui pourront être nécessaires pour effectuer ce transfert et donneront tout le concours qui pourra être raisonnablement réclamé par le Gouvernement Britannique, en vue de poursuivre ladite réclamation, pourvu que le Gouvernement Britannique indemnise les demandeurs de toutes les dépenses qui leur incomberont nécessairement aux dites fins. » Les parties se sont également mises d’accord sur une addition interprétative au sujet du paiement des intérêts. Le Tribunal prend acte de l’arrangement intervenu entre les parties. Il prend également acte de l’accord ci-dessus mentionné portant que les parties consentent à ce que le Tribunal détermine toute compensation due par le Gouvernement Britannique à la Société demanderesse, même si l’article 311 du Traité de Sèvres, correctement interprété, ne lui donnait pas compétence pour déterminer certaines parties de cette compensation. Le Tribunal ne croit donc pas nécessaire de s’arrêter à la question des limites de la compétence telles qu’elles résultent dudit article. Quant aux frais de l’arbitrage, il n’y a pas lieu de s’en occuper, étant convenu que les frais du Tribunal seront supportés par moitié par chacune des parties et que chacune des parties supportera ses propres frais.

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For these reasons and by consent of the parties, THE TRIBUNAL DECIDES: That the amount to be paid to the Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements as compensation for the buying out of the Concession and in satisfaction of all claims by the aforesaid Company against the British Government or by the British Government against the aforesaid Company shall be the sum of: five hundred sixty five thousand pounds sterling (£ 565.000 sterling). The sum of one hundred three thousand three hundred and sixty eight pounds sterling (£ 103.368 sterling), having been already paid on account, the British Government shall pay to the Company the sum of two hundred thousand pounds sterling (£ 200.000 sterling) on or before the 22nd October 1922; eighty seven thousand two hundred and ten pounds sterling (£ 87.210 sterling) on the 1st October 1923; eighty seven thousand two hundred and ten pounds sterling (£ 87.210 sterling) on the 1st October 1924 and eighty seven thousand two hundred and ten pounds sterling (£ 87.210 sterling) on the 1st October 1925, with interest on the last three sums at 5 per centum per annum from the 1st October 1922 until payment; interest shall accrue de die in diem and shall be payable half yearly, the first payment to be made on 1st April 1923. The right to any claim for compensation against the Turkish Government is to pass to the British Government. The Company shall execute any documents which may be necessary to effect such transfer and shall give all assistance that may be reasonably required by the British Government for the prosecution of the said Claim, provided that the British Government shall indemnify the Company against all expenses necessarily incurred by it in respect thereof. Paris, the 4th day of October 1922. Signed: BEICHMANN. H.O. MANCE. F. MEYER.

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Par ces motifs et conformément à l’accord intervenu entre les parties, LE TRIBUNAL DÉCIDE : Que le montant qui doit être payé à la Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements à titre de compensation pour le rachat de sa concession et pour satisfaire à toute réclamation de ladite Société vis-à-vis du Gouvernement Britannique ou du Gouvernement Britannique vis-à-vis de ladite Société, devra s’élever à la somme de : cinq cent soixante cinq mille livres sterling (565.000 £ sterling). La somme de cent trois mille trois cent soixante huit livres sterling (103.368 £ sterling) ayant été déjà payée comme à compte, le Gouvernement Britannique devra payer à la Société la somme de deux cent mille livres sterling (200.000 £ sterling), d’ici au 22 octobre 1922 ; quatre vingt sept mille deux cent dix livres sterling (87.210 £ sterling) au 1er octobre 1923, quatre vingt sept mille deux cent dix livres sterling (87.210 £ sterling) au 1er octobre 1924 et quatre vingt sept mille deux cent dix livres sterling (87.210 £ sterling) au ler octobre 1925, avec l’intérêt sur les trois dernières sommes au taux de cinq pour cent (5 0 /0) par an à partir du 1er octobre 1922 jusqu’au paiement ; les intérêts seront calculés de die in diem et seront payables par semestres, le premier paiement devant être effectué le 1er avril 1923. Le droit à toute réclamation à titre de compensation contre le Gouvernement Ottoman passera au Gouvernement Britannique. La Société établira tous les documents qui pourront être nécessaires pour effectuer ce transfert et donnera tout le concours qui pourra être raisonnablement réclamé par le Gouvernement Britannique en vue de poursuivre ladite réclamation, pourvu que le Gouvernement Britannique indemnise la Société de toutes les dépenses qui lui incomberont nécessairement auxdites fins. Fait à Paris, le 4 octobre 1922. Signé : BEICHMANN. H.O. MANCE. F. MEYER.

PRELIMINARY DECISION PARIS, the 29th day of May 1922.

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DÉCISION PRÉLIMINAIRE PARIS, le 29 mai 1922.

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PRELIMINARY DECISION

The British and French Governments have concluded an agreement to constitute an Arbitration Tribunal for the purpose of determining the equitable compensation which would be due from the British Government to the Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements under the terms of article 311 of the Treaty of Peace with Turkey signed at Sèvres on August 10th 1920, but not yet ratified, the British Government having decided, in virtue of the mandate of Palestine to be conferred on them, to buy out the concession enjoyed by the above company. The Tribunal consists of Lieutenant-Colonel H. O. MANCE, C.B. C.M.G., D.S.O., arbitrator nominated by the British Government, Mr. Ferdinand MEYER, Chief Engineer, arbitrator nominated by the French Government, Mr. F.V.N. BEICHMANN, President of the Superior Court of Trondhjem, Deputy-Judge of the Permanent Court of International Justice, arbitrator chosen by the two other arbitrators with the consent of their respective governments, as President of the Tribunal. The parties nominated as their Agents before the Tribunal, Mr. ORME B. CLARKE, C.B.E., in the case of the British Government, and Colonel BARRY in the case of the Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements. The Railway Company, who are the Claimants, in their General Statement of Claim, demanded, among other items, payment for the physical value of the railway calculated at the present cost of constructing and equipping the line. This-price, including the rolling stock and stores, would amount, according to the Claimants, to the sum of L. E. 838.370. Besides this sum, the claim as formulated included, among other items, compensation for the additional value of the rights and powers under the concession, including right and power to earn profits. The British agent, relying on the terms of article 18 of the Concession and of article 20 of the « Cahier des Charges », annexed thereto, in accordance with which on the termination of the period of the concession – 71 years – the railway with its fixed properties was to be handed over in good condition to the Turkish Government without payment, disputed the taking into account by the Tribunal of the physical value of the railway and its fixed properties as set forth in paragraphs 18, 19 and 20 of the General Statement of Claim. With the consent of the agent of the Claimants, the British agent applied to the Tribunal to decide this preliminary question in order to avoid, if possible, the loss of time and the expense which, in his view, would attend the formation of an estimate of the value in question.

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DÉCISION PRÉLIMINAIRE

Les Gouvernements Britannique et Français se sont mis d’accord pour constituer un Tribunal arbitral en vue de déterminer la compensation équitable qui, aux termes de l’article 311 du Traité de Paix avec la Turquie, signé à Sèvres le 10 août 1920, mais non encore ratifié, serait due par le Gouvernement Britannique à la Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements, le Gouvernement Britannique ayant, en vertu du mandat qui lui serait attribué pour la Palestine, décidé de racheter la concession dont bénéficie ladite Société. Le Tribunal est composé de M. le Lieutenant-Colonel H.O. MANCE, C.B., C.M.G., D.S.O., arbitre nommé par le Gouvernement Britannique, de M. l’Ingénieur en chef des Ponts et Chaussées Ferdinand MEYER, arbitre nommé par le Gouvernement Français, et de M.F.V.N. B EICHMANN, Président de la Cour d’Appel de Trondhjem, juge-suppléant à la Cour Permanente de Justice Internationale, arbitre choisi par les deux autres arbitres, avec l’assentiment des Gouvernements respectifs, comme Président du Tribunal. Les parties ont désigné pour être leurs Agents auprès du Tribunal, à savoir : le Gouvernement Britannique, M. ORME B. CLARKE, C.B.E., et la Société du Chemin de Fer Ottoman de Jaffa à’ Jérusalem et Prolongements, M. le Colonel BARRY, C.B.E. La Société du Chemin de Fer – la partie demanderesse – a, dans son mémoire formulant sa demande, réclamé, entre autres, le remboursement de la valeur matérielle de la ligne du chemin de fer calculée au prix que coûterait actuellement la construction et l’équipement de la ligne. Ce prix, y compris le matériel roulant et les approvisionnements, s’élèverait, selon la partie demanderesse, à la somme de 838.370 livres égyptiennes. En dehors de cette somme, la demande formulée comprend, entre autres, la compensation d’une valeur additionnelle des droits résultant de la concession, y compris les droits aux profits de l’exploitation de la ligne. L’Agent britannique, se basant sur les dispositions de l’article 18 de la concession et de l’article 20 du Cahier des Charges y annexé, selon lesquels la ligne du chemin de fer et ses dépendances immobilières (« fixed properties ») doivent à l’expiration du terme de la concession – 71 ans – être remises en bon état au Gouvernement Ottoman sans paiement, a contesté que le Tribunal puisse tenir compte de la valeur matérielle de la ligne du chemin de fer et de ses dépendances immobilières, ainsi qu’il a été exposé dans les paragraphes 18, 19 et 20 du mémoire formulant la demande. Il a, avec l’assentiment de l’Agent de la partie demanderesse, demandé au Tribunal de décider cette question préliminairement, afin d’éviter, si possible, la perte de temps et les dépenses qu’entraînerait, selon lui, une enquête sur la valeur en question.

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The Tribunal deemed it inadvisable to give any decision on this application until it had received from the parties a full expression of their views on the above question, and on the 28th April last, laid down the periods within which these written observations should be filed, as well as the date for the oral hearing of the question. The parties having presented their written observations within the prescribed periods, the oral hearing took place on the 26th May last, the Claimants being represented by their agent, Colonel BARRY, assisted by Lord COZENS-HARDY as Counsel, and the Defendants by their agent, Mr. ORME CLARKE. Mr. ORME CLARKE developed in detail the arguments which he had put forward in his written observations in support of his contention and which were to the effect that if the concession had been maintained, the railway company would not have received any profits beyond those which could be earned by the operation of the line up to the expiry of the period of the concession, and that these profits do not depend orr the present value of the physical railway line and fixed properties which, at the expiry of the period of the concession, would have to be handed over to the Turkish Government without payment. He presented a series of advisory opinions which he had obtained from Sir John SIMON (English law), Maître ED. CLUNET (French law), Mr. NEWTON CRANE (American law), Dr. SIEGFRIED SPIER (German law), and Maître G. DE LEVAL (Belgian law), and explained that the point he was contesting and on which he desired a preliminary decision only referred to the reproduction cost of the line and its fixed properties. On behalf of the Claimants, Lord COZENS-HARDY opposed the contention of Mr. ORME CLARKE. This contention, in the view of the Claimants, was in contradiction to the views expressed in a letter addressed by the British Secretary of State for Foreign Affairs to the French Ambassador in London on 22nd September 1920, containing the first notification of the intention of the British Government to buy out the line. Lord COZENS-HARDY further quoted a letter from the French Government dated the 20th July 1921 and claimed that the Tribunal should take this correspondance into account in interpreting the terms of article 311 of the Treaty of Sèvres. He submitted that the Tribunal is not bound by British or by any other law but that it is perfectly free to take into account any elements which, in its opinion, are material to the determination of fair and equitable compensation. Among these elements there entered, in his opinion, the reproduction cost of the line. As regards the advisory opinions, he considered these to be irrelevant and quoted a decision of the English Privy Council which, in his view, would enjoin compensation for the physical value and, in addition, for profits on the working. The Tribunal is of opinion that it should defer to the unanimous decision of the parties and make the above mentioned question the object of a pre-

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Le Tribunal n’a pas cru pouvoir statuer sur cette demande avant d’avoir reçu des parties l’exposé complet de leurs vues sur la question susmentionnée et a, le 28 avril dernier, fixé les délais dans lesquel ces vues devaient être présentées par écrit, ainsi que la date à laquelle aurait lieu la discussion orale de la question. Les parties ayant, dans les délais fixés, présenté leurs observations écrites, la discussion orale a eu lieu le 26 mai dernier, la partie demanderesse s’étant fait représenter par son agent, M. BARRY, assisté de l’avocat Lord COZENSHARDY, et la partie défenderesse par son agent, M. ORME CLARKE. M. ORME CLARKE a développé et précisé les arguments qu’il avait, dans les observations écrites, présentés à l’appui de sa thèse, et dont la substance est que la Société du Chemin de fer n’aurait eu, si la concession avait été maintenue, d’autres profits que ceux qu’aurait pu donner l’exploitation de la ligne jusqu’à l’expiration du terme de la concession, et que ces profits ne dépendent pas de la valeur actuelle de la ligne. matérielle et de ses dépendances immobilières qui, à l’expiration du terme de concession, auraient dû, sans paiement, être remis au Gouvernement Ottoman. Il a présenté une série d’avis consultatifs donnés sur sa demande par Sir John SIMON (droit anglais), Me ED. CLUNET (droit français), M. NEWTON CRANE (droit américain), Dr Siegfried SPIER (droit allemand) et Me G. DE LEVAL (droit belge), et a précisé que la thèse négative sur laquelle il a demandé une décision préliminaire ne se réfère qu’au coût d’une reproduction de la ligne et de ses dépendances immobilières. Au nom de la partie demanderesse, Lord COZENS HARDY a contesté la thèse de M. ORME CLARKE. Cette-thèse serait, selon la partie demanderesse, en contradiction avec les vues exprimées dans une lettre adressée par le Ministre des Affaires Étrangères britannique à l’Ambassadeur de France à Londres, le 22 septembre 1920, et contenant la première communication de l’intention du Gouvernement Britannique de racheter la ligne. Lord COZENS-H ARDY a aussi invoqué une lettre du Gouvernement Français en date du 20 juillet 1921 et a demandé que le Tribunal tienne compte de cette correspondance en interprétant les dispositions de l’article 311 du Traité de Sèvres. Il a insisté sur ce que le Tribunal n’est lié, ni par le droit anglais, ni par aucune autre loi, mais qu’il est parfaitement libre de tenir compte de tous les éléments qui lui semblent de nature à devoir être pris en considération pour fixer une compensation juste et équitable. Parmi ces éléments rentre, selon lui, le coût de reproduction de la ligne. En ce qui concerne les avis consultatifs, il les a trouvés peu concluants et a cité une décision du Privy Council anglais qui, selon lui, aurait sanctionné la compensation de la valeur matérielle en même temps que des profits d’exploitation. Le Tribunal croit devoir déférer au désir unanime des parties et faire de la question sus-mentionnée l’objet d’une décision préliminaire. Il fait remarquer

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liminary decision. The Tribunal observes that in constituting the Tribunal the British and French Governments decided to apply 6.s between themselves the stipulations of article 311 of the Treaty of Sèvres, notwithstanding that this treaty has not yet been ratified. It is evident that the rights of others who may ultimately be interested are reserved. Article 311 of the Treaty of Sèvres reads as follows: (English text.) “In territories detached from Turkey to be placed under the authority or tutelage of one of the Principal Allied ‘Powers’, Allied nationals and companies controlled by Allied groups or nationals holding concessions granted before October 29th 1914, by the Turkish Government or by any Turkish local authority, shall continue in complete enjoyment of their duly acquired rights, and the Power concerned shall maintain the guarantees granted or shall assign equivalent ones. “Nevertheless, any such Power, if it considers that the maintenance of any of these concessions would be contrary to the public interest, shall be entitled, within a period of six months from the date on which the territory is placed under its authority or tutelage, to buy out such concession or to propose modifications therein ; in that event it shall be bound to pay to the concessionnaire equitable compensation in accordance with the following provisions. “If the parties cannot agree on the amount of such compensation, it will be determined by Arbitral Tribunal composed of three members, one designated by the State of which the concessionnaire or the holder of the majority of the capital in the case of a company is or are nationals, one by the Government exercising authority in the territory in question, and the third designated, failing agreement between the parties, by the Council of the League of Nations. “The Tribunal shall take into account, from both the legal and equitable standpoints, all relevant matters, on the basis of the maintenance of the contract adapted as indicated in the following paragraph. “The holder of a concession which is maintained in force shall have the right, within a period of six months after the expiration of the period specified in the second paragraph of the article, to demand the adaptation of his contract to the new economic conditions, and, in the absence of agreement with the Government concerned, the decision shall be referred to the Arbitral Commission provided for above”. The instruments on which the rights and obligations of the Claimants are based consist of a Convention dated 10th October 1888 concluded between the Turkish Minister of Commerce and of Public Works, acting in the name of the Imperial Government, and Youssouf Navon Effendi, a Turkish subject, a « Cahier des Charges », of the same date and a contract dated 4th August 1914. Article 18 of the Convention reads as follows: (Translation.) “On the termination of the concession the Imperial Government will be substituted for the concessionnaire in all its rights in the rail-

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que, en constituant le Tribunal, les Gouvernements Britannique et Français ont convenu d’appliquer entre eux les dispositions de l’article 311 du Traité de Sèvres, bien que ce traité n’ait pas encore été ratifié. Il va de soi que les droits d’autres intéressés éventuels sont réservés. L’article 311 du Traité de Sèvres est ainsi conçu : (Texte français.) « Dans les territoires détachés de la Turquie pour être soumis à l’autorité ou à la tutelle d’une des principales Puissances alliées, les ressortissants alliés, ainsi que les sociétés contrôlées par des groupes ou ressortissants alliés bénéficiaires de concessions accordées avant le 29 octobre 1914 par le Gouvernement Ottoman ou par toutes autorités locales ottomanes, seront maintenus par la Puissance intéressée dans l’intégralité de leurs droits dûment acquis ; ladite Puissance leur conservera les garanties qui leur avaient été affectées ou leur en attribuera d’équivalentes. « Toutefois, ladite Puissance, si elle juge que le maintien de l’une quelconque de ces concessions est contraire à l’intérêt public, aura la faculté, dans un délai de six mois à dater du moment oû le territoire aura été placé sous son autorité ou sa tutelle, de racheter ladite concession ou d’en proposer la modification ; dans ce cas, elle sera tenue de payer au concessionnaire une équitable compensation en conformité des dispositions suivantes. « A défaut d’un accord amiable entre les parties sur le montant de la compensation prévue ci-dessus, la fixation de ce montant sera confiée à des tribunaux arbitraux composés de trois membres : l’un des membres sera désigné par l’Etat dont est ou sont ressortissants le concessionnaire ou les possesseurs de la majorité du capital, lorsqu’il s’agit d’une Société ; le deuxième membre sera désigné par le Gouvernement exerçant l’autorité sur le territoire intéressé ; et le troisième sera, à défaut d’accord entre les intéressés, désigné par le Conseil de la Société des Nations. « Le Tribunal, jugeant en droit comme en équité, devra prendre en considération tous les éléments d’appréciation, sur la base du maintien avec réadaptation du contrat, comme il est indiqué au paragraphe suivant. « Si la concession est maintenue, le concessionnaire aura le droit, dans un délai de six mois après l’expiration du délai prévu au deuxième alinéa du présent article, de demander la réadaptation de son contrat aux nouvelles conditions économiques et, à défaut d’accord direct avec le Gouvernement intéressé, la décision sera déférée au Tribunal Arbitral ci-dessus visé. » Les actes sur lesquels sont basés les droits et obligations de la Société demanderesse sont une Convention en date du 10 octobre 1888, conclue entre le Ministre Ottoman du Commerce et des Travaux Publics, agissant au nom du Gouvernement Impérial et Youssouf Navon Effendi, sujet ottoman, un Cahier des Charges de la même date et un contrat en date du 4 août 1914. L’article 18 de la Convention est ainsi conçu : « A l’expiration de la conceu,ion, le Gouvernement Impérial sera substitué à tous les droits du concessionnaire sur le chemin de fer et ses dépendances

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way and its fixed properties as well as in the rolling stock and stores, and will enter into enjoyment of the benefits thereof. The line and its fixed properties shall be handed over free of all debt or encumbrance to the Imperial Government and the latter shall purchase the rolling stock and stores in conformity with article 20 of the Cahier des Charges”. Article 20 of the (Cahier des Charges) reads as follows: (Translation.) “On the termination of the concession the concessionnaire must, without any payment, deliver to the Imperial Government, in good condition and free of all debt and encumbrance, the stations and loading and unloading siding and also the buildings necessary for operating the line, such as the huts and houses used by the employees responsible for control, inspection and collection, the fixed machinery and, in short, fixed properties not actually employed as means of transport. As regards engines, waggons and trucks, construction and repair material, fuel, and, in short, all movable properties used for operating purposes, these will be bought on expert valuation by the Imperial Government. The Imperial Government, however, will only be obliged to take over stores necessary for six months’ operation. “If, five years before the termination of the concession, the Imperial Government should establish that the railway is not in a good state of repair, a notification shall be lodged with the concessionnaire and a period shall be allowed to him for putting the line into a good state of maintenance. If this notification does not produce a result, the Government may take in hand the working of the line and of its plant and may cause to be carried out in its own right and at the cost of the concessionnaire the repairs necessary for putting the line in good condition. The cost of the repairs will be deducted from the receipts of the line. Should these receipts not suffice, the concessionnaire will be bound to supplement them”. The Tribunal considers that the text of article 311 of the Treaty of Sèvres leaves it open to the Tribunal to decide freely what are the material elements which sould be taken into consideration “on the basis of the maintenance of the contract “adapted”. The Tribunal is not therefore bound by the opinions which may have been expressed in the negotiations prior to the agreement. Even if the method of procedure envisaged by the British Government in its letter of 22nd September 1920 had been accepted by the French Government – which does not appear to be the case judging by the note dated 20th July 1921 – the Tribunal can only adhere to the conditions of article 311 of the Treaty of Sèvres which, as a result of the agreement arrived at, is to form the basis of its decision. In accordance with these conditions, account must be taken of the situation in which the Company would have found itself if the British Government had not decided to exercise the option provided for in article 311. On this point there appears to be no doubt that, being obliged by the above quoted articles of the Convention and of the “Cahier des Charges” to hand over to the Turkish Government, without payment, at the termination of the concession, the railway line wit hits fixed properties as defined in article

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ainsi que sur le matériel et matériaux, et entrera en jouissance des produits y afférents. « Il sera procédé à la remise de la ligne et de ses dépendances, libres de toute dette et engagement, au Gouvernement Impérial, et à l’achat par ce dernier du matériel et approvisionnements, conformément à l’article 20 du Cahier des Charges. » L’article 20 du Cahier des Charges est ainsi conçu : « A l’expiration de la Concession, le concessionnaire devra, sans aucun paiement, livrer en bon état et libres de toute dette et engagement, au Gouvernement Impérial, les stations et voies de chargement et de déchargement ainsi que les bâtiments d’exploitation tels que baraques et maisons destinées aux agents chargés du contrôle d’inspection et de la perception, les machines fixes et enfin tous les objets immobiliers et ne servant pas au transport. Quant aux machines, wagons, chariots, matériel de construction et de réparation, combustibles, et enfin tous les objets mobiliers servant à l’exploitation, ils seront achetés à dire d’experts par le Gouvernement Impérial. Toutefois, le Gouvernement Impérial ne sera tenu de prendre que les approvisionnements nécessaires à l’exploitation pendant six mois. « Dans le cas où, cinq années avant l’expiration de la Concession, le Gouvernement Impérial constaterait que le chemin de fer ne se trouve pas dans un état de bon entretien, il sera fait une mise en demeure au concessionnaire, et un délai lui sera accordé pour mettre la voie en bon état d’entretien. Si cette mise en demeure n’amène pas de résultat, le Gouvernement prendra en main l’exploitation de la ligne et de ses dépendances et fera exécuter d’office, aux frais du concessionnaire, les réparations nécessaires pour mettre la voie en bon état. Les frais de réparation seront pris sur les recettes de la ligne ; en cas d’insuffisance des recettes, le concessionnaire sera tenu d’y suppléer. Le Tribunal estime que le texte de l’article 311 du Traité de Sèvres laisse au Tribunal de décider librement quels sont les éléments d’appréciation qui, « sur la base du maintien avec réadaptation du contrat » doivent être pris en considération. Le Tribunal n’est donc pas lié par les opinions qui, dans les pourparlers antérieurs à l’accord, auraient été exprimées. Même si la manière de procéder envisagée par le Gouvernement Britannique dans la lettre du 22 septembre 1920 avait été acceptée par le Gouvernement Français – ce qui, d’après la note en date du 20 juillet 1921, ne sembla pas être le cas – le Tribunal n’aura qu’à s’en tenir aux termes de l’article 311 du Traité de Sèvres qui, selon l’accord intervenu, doivent former la base de sa décision. D’après ces termes, il faut se rendre compte de la position où se trouverait la Société si le Gouvernement Britannique n’avait pas décidé d’user de lafaculté prévue dans l’article 311. A ce sujet, il ne semble pas douteux qu’étant obligé, par les articles précités de la Convention et du Cahier des Charges, de remettre, sans paiement, à l’expiration du terme de la concession au Gouvernement Ottoman, la ligne du chemin de fer avec ses dépendances immobilières définies dans l’article 20 du Cahier des Charges, la

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20 of the “Cahier des Charges”, the Company would only have been entitled to the profits which could be earned by the operation of the line for the duration of the concession. If its profits had not been sufficiently high to cover the present value (reproduction cost) of the line with its fixed properties, the Company would not have had any right to be refunded the difference. The Tribunal further considers that the amount of the said profits does not depend on the above value. Consequently, this value cannot, in the opinion of the Tribunal, enter into account in the determination of the compensation to be awarded to the Claimants. The agent of the company requested that, in the event of a decision in the above sense, he might be allowed to present an amended claim within a period which would not exceed one month from the promulgation of the decision of the Tribunal. The agent of the British Government did not oppose this request and stated that a period of two to three weeks would suffice for him to present his reply to the amended claim. The Tribunal is of opinion that the agent of the company should be granted a certain period for amending his claim in the light of the decision of the Tribunal, but considers that this period should not exceed three weeks. The same period should be granted to the agent of the British Government for his reply to the claim. For these reasons, THE TRIBUNAL DECIDES: 1) That the present value – reproduction cost – of the Jaffa-Jérusalem Railway line with those fixed properties which, according to article 20 of the “Cahier des Charges”, were to be handed over without payment to the Turkisk Government on the termination of the period of the concession, shall not enter into account for the determination of the compensation to be paid by the Bristish Government to the Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements. 2) That the said Company may present an amended claim not later than the 21st June next and that the answer of the British Government must be presented at the latest by the 12th July following. Five copies of the amended claim and of the answer shall be addressed to the office of the Tribunal and six copies to the agent of the adverse party. Paris, May 29th 1922. Signed: BEICHMANN. H.O. MANCE. F. MEYER.

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Société n’aurait eu droit qu’aux profits que l’exploitation de la ligne pourrait lui donner pendant la durée de la concession. Si ces profits n’avaient pas été assez élevés pour couvrir la valeur actuelle – le coût de reproduction – de la ligne avec ses dépendances, la Société n’aurait eu aucun droit à être remboursée de la différence. Le Tribunal estime également que le montant desdits profits ne dépend pas de ladite valeur. Par conséquent cette valeur ne pourra pas, de l’avis du Tribunal, entrer en compte pour la détermination de la compensation à attribuer à la Société demanderesse. L’Agent de la Compagnie a demandé que, dans le cas d’une décision dans ce sens, il lui soit donné la faculté de présenter une demande rectifiée dans un délai ne dépassant pas un mois à partir de la communication de la décision du Tribunal. L’Agent du Gouvernement Britannique ne s’est pas opposé à cette demande et a déclaré qu’un délai de deux à trois semaines lui suffirait pour présenter sa réponse à la demande rectifiée. Le Tribunal est d’avis qu’il y a lieu d’accorder à l’Agent de la Société un délai pour rectifier sa demande, en tenant compte de la décision du Tribunal, mais estime que ce délai ne doit pas dépasser trois semaines. Un délai égal sera accordé à l’Agent du Gouvernement Britannique pour sa réponse à la demande. Par ces motifs, LE TRIBUNAL DÉCIDE : 1° Que la valeur actuelle, le coût de reproduction de la ligne de chemin de fer de Jaffa à Jérusalem avec ses dépendances immobilières qui, selon l’article 20 du Cahier des Charges, devaient être remises sans paiement au Gouvernement Ottoman à l’expiration du terme de la concession, ne doit pas entrer en compte pour la détermination de la compensation à payer par le Gouvernement britannique à la Société du Chemin de Fer Ottoman de Jaffa à Jérusalem et Prolongements. 2° Que ladite Société pourra présenter une demande rectifiée au plus tard le 21 juin prochain, et que la réponse de la part du Gouvernement Britannique doit être présentée au plus tard le 12 juillet suivant. La demande rectifiée et la réponse devront être remises en cinq exemplaires au Bureau du Tribunal, et en six exemplaires directement à l’agent de la partie adverse. Fait à Paris, le 29 mai 1922. Signé : BEICHMANN. H.O. MANCE. F. MEYER.

17 – APPENDIX II THE DIPLOMATIC CORRESPONDENCE, 1920–1922

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15a. 15b. 16.

22 September 1920, Foreign Office to French Embassy, PRO ref. FO 371/5259 [E 11256/5706/44] 24 June 1921, Foreign Office to French Embassy, Ministère des affaires étrangères, Série E-Levant 1918–1940 – Turquie – vol. 412, folios 4–5 [FO docket E 6725/40/88] 18 July 1921, Foreign Office to French Embassy, PRO ref. FO 371/6381 [E 8018/40/88] 20 July 1921, French Embassy to Foreign Office, PRO ref. FO 371/6381 10 August 1921, Aide mémoire, French Foreign Ministry, loc. cit., folios 35–36 15 August 1921, Foreign Office to French Embassy, PRO ref. FO 371/6381 [E 9079/40/88] 25 August 1921, French Embassy to Foreign Office, PRO ref. FO 371/6381 9 September 1921, Foreign Office to French Embassy, PRO ref. FO 371/6381 [E 10048/40/88] 3 October 1921, Foreign Office to French Embassy, PRO ref. FO 371/6381 [E 10426/40/88] 7 October 1921, French Embassy to Foreign Office, PRO ref. FO 371/6381 6 December 1921, Foreign Office to French Embassy, PRO ref. FO 371/6381 [E 13258/40/88] 7 December 1921, Foreign Office to French Embassy, PRO ref. FO 371/6381 [E 13351/40/88] 21 December 1921, Foreign Office to French Embassy, PRO ref. FO 371/6381 [E 13352/40/88] 10 January 1922, French Embassy to Foreign Office, PRO ref. FO 371/7787 13 February 1922, Foreign Office to French Embassy, PRO ref. FO 371/7787 [E 1357/190/65] 13 February 1922, Foreign Office to French Embassy, PRO ref. FO 371/7787 [E 1414/190/65] 27 February 1922, French Embassy to Foreign Office, PRO ref. 371/7787

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Note: Docs 13, 14, 15a and 16 were communicated to the Tribunal and are found amongst the written pleadings. The diplomatic documents are in PRO files FO 371/5259, FO 371/6381, FO 371/7787. Other documentation regarding this case is in PRO files TS [Treasury Solicitor] 27/143 and 27/144. The original departmental docket and papers numbers are given in square brackets. Documents 2 and 5 are from the Archives of the French Ministry for Foreign Affairs, Series E-Levant 1918–1940, Turquie, vol. 412.

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No. 1 Foreign Office to the French Embassy, 22 September 1920 I have the honour to invite your attention to my note of the 16th ultimo [not found] on the subject of the Jaffa-Jerusalem Railway. 2. His Majesty’s High Commissioner for Palestine having telegraphed stating that he is desirous of taking over this railway it would seem that the best course to pursue in order to effect the transfer would be that the Compagnie du Chemin de Fer de Jaffa-Jerusalem should submit a claim for compensation based on the value of the line at the date when it was taken over by the British military authorities. The Palestine Administration would similarly cause a statement to be made showing the value according to their estimation of the railway at the time when it was taken over by the military authorities. The case, as submitted by the two parties concerned, could then, if necessary, be settled by arbitration, due consideration being given to the value of the concession and the expenditure which has been entailed to restore the line to working condition. 3. I would add that any claim put forward by the Company, as suggested above, would not of course invalidate their claim against the Turkish Government for damage done during the period of Turkish occupation. I have the honour etc. No. 2 Foreign Office to the French Embassy, 24 June 1921 I have the honour to refer to Your Excellency’s notes of March 29th and April 1st dealing respectively with the claims of the Turkish Régie and of the Jaffa-Jerusalem Railway Company against the Administration of Palestine [not found]. 2. His Majesty’s Government share the view of the French Government that these claims should be submitted to arbitration without waiting for the coming into force of the Treaty of Sèvres, and I beg leave to suggest that one tribunal should be set up for the purpose of dealing with both the claims in question. 3. If the French Government agree to this suggestion they will no doubt apppoint an arbitrator in accordance with the terms of Article 311 of the Treaty of Sèvres, which though not yet in force provides a procedure designed to meet cases of this nature. His Majesty’s Government for their part are meanwhile considering the selection of a suitable arbitrator whose name I will not fail to communicate to you in due course. 4. I have also the honour to suggest that the tribunal so appointed should be granted the power to direct that the expenses of the arbitration be paid in such a manner as they may think just.

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5. I would explain in conclusion with special reference to the claim of the Turkish Régie that since the Administration of Palestine have undertaken to pay to the Ottoman Debt Commission the portion of the revenue of the Ottoman Public Debt Administration which has been assigned to Palestine, His Majesty’s Government do not share the view expressed by you that this matter is one in which the Ottoman Debt Commission are immediately concerned. I have the honour etc. No. 3 Foreign Office to the French Embassy, 18 July 1921 I have the honour to refer to my note of 24th ultimo [No. 2], relative to the settlement by arbitration of the claims of the Jaffa-Jerusalem railway and the Ottoman Tobacco Régie in Palestine. 2. His Majesty’s Government are endeavouring to secure as the British arbitrator an expert in railway administration and finance and I dare to hope that the French Government will think it well to choose as the French arbitrator an expert with similar qualifications, with a view to facilitate an efficient and expeditious handling of the case. I will not fail to communicate to you the name of the British arbitrator as soon as the selection has been made. 3. I desire to explain that His Majesty’s Government think this course desirable because the questions with which the tribunal will have to deal will be largely of a technical and financial nature, and unless the national members of the tribunal possess the qualifications for dealing with such questions the tribunal would probably find it necessary to incur considerable expense in providing itself with expert assistance. It is clearly desirable in the interest of all parties that any unnecessary expense should be avoided. If, however, one national representative is an expert, it seems desirable that the other should possess similar qualifications. His Majesty’s Government are of opinion that the President of the tribunal should be a lawyer, as some legal questions will no doubt arise, but that one legal member should suffice. I have the honour etc. No. 4 French Embassy to the Foreign Office, 20 July 1921 L’Ambassadeur de France a l’honneur de remercier Son Excellence le Principal Secrétaire d’Etat pour les Affaires Etrangères de ses communications des 24 Juin [No. 2 ] et 18 Juillet [No. 3] relatives aux contestations existant entre

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le Gouvernement de la Palestine d’une part et la Compagnie française des chemins de fer de Jaffa-Jerusalem [sic], ainsi que de la Régie cointéressée des Tabacs d’autre part. Le Gouvernement français accepte que ces deux réclamations soient soumises au jugement d’un tribunal arbitral; il estime toutefois que quelle que puisse être la solution du tribunal arbitral, la Société du chemin de fer JaffaJerusalem [sic] devrait recevoir de suite la somme de 5.600.000 francs pour assurer le service de ses obligations. M. Briand estime que le tribunal arbitral devrait être constitué et remplir son mandat dans les termes mêmes du Traité de Sèvres et notamment des articles 287 et 311, bien que le dit traité ne soit pas encore entré en vigueur. Le tribunal arbitral aurait, pour les deux affaires, les pouvoirs les plus larges de trancher toutes les questions qui seraient soumises par l’une ou l’autre partie à sa décision et serait chargé de fixer à la fois le montant des indemnités éventuellement dues ou des compensations ainsi que les dates, termes et modes de paiement des sommes à payer. Le Tribunal serait également chargé, conformément à la proposition du Gouvernement de Sa Majesté de déterminer le montant des frais d’arbitrage ainsi que le mode de paiement de ces frais. Le Gouvernement français désigne pour le représenter, aux termes de l’article 311 du Traité de Sèvres, M. Ferdinand Meyer, Ingénieur en chef des ponts et chaussées. Le Comte de Saint-Aulaire saisit etc. No. 5 Ministry for Foreign Affairs (Paris), Aide mémoire, 10 August 1921 Le Gouvernement français est obligé de revenir à nouveau sur la malheureuse question du chemin de fer JAFFA-JERUSALEM. 1. Sur ses instances réitérées le Gouvernement britannique a bien voulu, au début du mois de Juillet, faire connaître qu’il adhérait au principe de la constitution d’un tribunal arbitral mixte franco-anglais pour juger ce différend. Il a demandé en même temps que le Gouvernement français désigne un juge français de son choix. Dès le 16 Juillet, le Gouvernment français a désigné officiellement pour le représenter comme arbitre, M. Ferdinand MEYER, Ingénieur des Ponts et Chaussées et il a demandé que le Gouvernement britannique veuille bien verser sans retard, à valoir sur le règlement définitif de l’affaire, la somme de 5.600.000 francs nécessaire à la Société pour assurer le service de ses obligations. Il est à remarquer que dans les conversations qui ont eu lieu entre la Société et le Gouvernement de la PALESTINE, ce dernier se déclarait prêt à verser la somme de 11 millions, somme que la Compagnie n’a pas acceptée, comme règlement définitif. Il ne semble donc pas que le Gouvernement britannique courre un risque quelconque en

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faisant verser dès maintenant 5.600.000 francs indispensabless pour arrêter les protestations des porteurs français. Cependant, jusqu’à ce jour, et malgré les démarches de l’Ambassade à LONDRES, le Gouvernement britannique non seulement n’a pas consenti à verser aucun accompte, mais encore n’a pas désigné son arbitre; on craint même que la réunion du tribunal arbitral soit reportée à octobre et que certaines autorités britanniques prétendent en subordonner le commencement à un examen préalable du dossier de la réclamation. Cette solution aurait le plus grand inconvénient, la Compagnie ayant convoqué une Assemblée Générale Extraordinaire pour le premier september, à laquelle il est au moins indispensable de faire connaître que l’arbitrage est en cours. En outre, si le bruit relaté ci-dessus était exact, il paraitrait impliquer une procédure qui n’est pas d’usage. Toutes les questions concernant les litiges étant désormais du ressort du tribunal et non plus des Gouvernements. Le Gouvernement français ne peut qu’insister à nouveau sur la complète injustice dont est victime la Compagnie qui se trouve entièrement dépossédée de ses droits sur sa propre ligne, ainsi que sur l’exploitation de son service, privée des revenue de ses services publics et par desus le marché voyant retarder l’arbitrage auquel ella a droit et acepté déjà par le Gouvernement britannique. No. 6 Foreign Office to the French Embassy, 15 August 1921 I have the honour to refer to the note which you were so good as to address to me on 20th ultimo [No. 4] on the subject of the Jaffa-Jerusalem Railway. 2. I have pleasure in noting the selection of Monsieur Meyer as the French member of the Arbitration Commission and I would suggest for the consideration of Your Excellency’s Government that the qualifications of Don Alejandro Alvarez the well known Chilean international lawyer resident in Paris, would render him eminently suitable to preside over the Tribunal. I hope to be able to communicate the name of the British member of the Tribunal to you at an early date. 3. With regard to the second paragraph of your note I should be grateful if you could furnish me with particulars as to the immediate liabilities to meet which the Jaffa-Jerusalem Railway Company desire an advance of five million six hundred thousand francs and as to how this figure is arrived at. I have the honour etc.

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No. 7 French Embassy to the Foreign Office, 25 August 1921 Par une lettre en date du 15 de ce mois [No. 6], Sa Seigneurie le Marquis Curzon of Kedleston a bien voulu prendre acte de la désignation de M. Ferdinand Mayer [sic] comme arbitre français dans l’affaire du Chemin de Fer de Jaffa à Jérusalem et proposer au Gouvernement français de faire choix, pour remplir les fonctions de surarbitre, d’un jurisconsulte chilien, Don Alexandro [sic] Alvarez. Son Excellence le Principal Secrétaire d’Etat de Sa Majesté aux Affaires Etrangères ajoutait qu’il espérait être bientôt en mesure de donner au Gouvernement français le nom de l’arbitre anglais. Le Comte de Saint-Aulaire a été heureux de donner connaissance de cette communication à son Gouvernement. L’Ambassadeur de France croit devoir attirer l’attention du Gouvernement britannique sur deux points auxquels M. Briand attache une importance particulière. Le premier, est la désignation d’un arbitre anglais. Il semble au Gouvernement français que cette désignation pourrait intervenir dès maintenant. Il ya plus d’un mois que M. Ferdinand Meyer a été désigné alors qu’aucun choix n’a été fait par le Gouvernement britannique. Le second point porte sur les précisions demandées par le Foreign Office au sujet des charges qui obligent la Compagnie à demander un versement immédiat de 5 millions 600 000 francs. Comme le faisait connaître la note de cette Ambassade au Foreign Office, en date du 20 Juillet dernier [No. 4], cette somme est nécessaire à la Société pour remplir les engagements qu’elle a contractés à l’égard de ses obligataires et lui permettre de conserver une situation régulière jusqu’au jour où sera rendue la sentence de l’arbitrage. Le Gouvernement français insiste donc pour que cette somme soit versée sans délai et, à ce point de vue, la demande contenue da la dernière note du Foreign Office ne paraît pas susceptible d’être accueillie au Quai d’Orsay. En retardant le versement de la somme en question, elle exposerait la Société à de graves embarras vis à vis de ses obligataires. Comme le sait Sa Seigneurie le Marquis Curzon of Kedleston, le Ministère des Affaires Etrangères a remis à M. Vansittart, lors de son dernier séjour à Paris, le 10 de ce mois, une note sur la question du Chemin de Fer de Jaffa à Jérusalem [No. 5]. L’Ambassadeur de France croit devoir se référer à ce document à propos de la lettre du Foreign Office, du 15 de ce mois. Le Comte de Saint-Aulaire etc.

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No. 8 Foreign Office to the French Embassy, 9 September 1921 I have the honour to refer to the note which were so good as to address to me on the 25th ultimo [No. 7], regarding arbitration of the claims of the Jaffa-Jerusalem Railway Company. 2. Sir Guy Granet has consented to act as British Representative on the Arbitral Commission but it is regretted that owing to other pressing work on behalf of His Majesty’s Government his acceptance of the post is conditioned upon his being released to take up other duties by October 1st. His Majesty’s Government are also prepared to arrange for the immediate appointment of the British Agent. 3. His Majesty’s Government are therefore most anxious that the Commission should begin its work with the least possible delay, but until they learn whether Monsieur Alvarez would be acceptable to Your Excellency’s Government as President of the Commission it is difficult to proceed with the preliminary arrangements for its meetings which subject to the concurrence of your Government might, I would suggest, be held most conveniently in Paris. 4. The remuneration of the President and of the British and French Representatives must also be considered and though I understand that the British Representative may be prepared to accept the post in return for his out of pocket expenses only, I should be glad to receive your observations both as to the amount of the remuneration to be given to the President and the national representatives and as to how the expenditure for their remuneration and expenses should be borne. 5. In the meanwhile I would suggest that if the Directors of the JaffaJerusalem Railway Company would forthwith submit unofficially a copy of their claim the British Representative and Agent could make a preliminary investigation of it and thus perhaps avoid delays which might be occasioned by the necessity of reference to the Government of Palestine. 6. The question of an advance payment of five million six hundred thousand francs to which you refer has again been taken up by the competent departments and as soon as their decision on the point is communicated to me I shall not fail to inform you. I have the honour etc. No. 9 Foreign Office to the French Embassy, 3 October 1921 With reference to my note of September 9th [No. 8] and to Monsieur Thierry’s conversation at the Foreign Office on September 19th, I have the honour to inform you that it is regretted that Sir Guy Granet will not now be able to

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act on behalf of His Majesty’s Government on the Arbitration Tribunal on the claim for compensation of the Jaffa-Jerusalem Railway Company, as he has, since his selection as British Arbitrator on this Commission, been appointed a member of Sir Eric Geddes’ Committee on National Economy, and will consequently not be available after the 1st of October. The appointment of another arbitrator to act on behalf of His Majesty’s Government in place of Sir Guy Granet is being considered and I hope to inform Your Excellency of the selection made at an early date when, in compliance with the suggestion of Monsieur Thierry, arrangements will be made for the French and British Arbitrators to meet in Paris to decide on a President of the tribunal, and to settle the exact terms of reference to the Commission. 2. Meanwhile His Majesty’s Government are now prepared to pay the sum of five million six hundred thousand francs to the Jaffa-Jerusalem Railway Company in advance of the findings of the Arbitration Tribunal, the sum in question to be deducted from the total amount of compensation eventually decided upon by the said Tribunal. 3. I take this opportunity to reiterate the hope expressed to you in the fifth paragraph of my note of September 9th that the French Government and the Company will see their way to submit unofficially the Company’s claim to the British representative on the Commission, as soon as he shall have been appointed, for a preliminary investigation. 4. Arrangements for the immediate payment in Paris to an accredited representative of the Company of the Frs. 5,600,000 are being made through the Disposals Board. I have the honour etc. No. 10 French Embassy to the Foreign Office, 7 October 1921 Le Chargé d’Affaires de France a l’honneur de remercier Son Excellence le Principal Secrétaire d’Etat de Sa Majesté pour les Affaires Etrangères de sa communication du 3 de ce mois [No. 9] relative au chemin de fer de JaffaJérusalem et de lui faire savoir qu’il a porté à la connaissance de son Gouvernement les décisions du Gouvernement de Sa Majesté de verser immédiatement à la Compagnie du Chemin de fer de Jaffa-Jérusalem la somme de 5.600.000 Francs à valoir sur le prix total du rachat du chemin de fer qui sera fixé par le tribunal arbitral. M. de Montille saisit etc.

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No. 11 Foreign Office to the French Embassy, 6 December 1921 With reference to my note of the 3rd of October [No. 9], regarding the arbitration of the claim of the Jaffa-Jerusalem railway company, I have the honour to inform you that Colonel H.O. Mance, C.B., O.M.G., D.S.O., R.E., has been appointed in the place of Sir Guy Granet to act as British arbitrator on the arbitral tribunal. 2. I hope that it will be possible for Monsieur Meyer to arrange to meet Colonel Mance in Paris in the near future and, if Your Excellency will be so good as to furnish me with the former’s address, I will take steps to place Colonel Mance in direct communication with M. Meyer in order that the nomination of an [sic] neutral president may be discussed between them with the least possible delay. 3. As regards the agents of our respective Governments on the arbitral tribunal, I have the honour to inform Your Excellency that His Majesty’s Government have selected Mr Orme B. Clarke, Assistant Treasury Solicitor for this post and I shall be grateful if Your Excellency will inform me of the name of the French agent. I have the honour etc. No. 12 Foreign Office to the French Embassy, 7 December 1921 With reference to my note of yesterday’s date [No. 11] on the subject of the projected arbitration proceedings in Paris in connection with the claim preferred by the Jaffa-Jerusalem Railway Company, I have the honour to inform Your Excellency that Colonel Mance would be glad if Monsieur Meyer could arrange to receive him on or about the 19th instant. 2. Colonel Mance is anxious to study the claim of the Company before leaving for Paris, and I should be grateful if you would be so good as to send me two copies of the claim, one for communication to Colonel Mance, as requested in the third paragraph of my note of the 3rd October [No. 9], the other being urgently required for the preparation of the British case. I have the honour etc. [On 14 December the French Embassy informed the Foreign Office of M. Meyer’s address in Paris. That note is not included here.]

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No. 13 Foreign Office to the French Embassy, 21 December 1921 With reference to my notes of the 6th [No. 11] and 7th [No. 12], on the subject of the claim of the Jaffa-Jerusalem Railway Company, I have the honour to suggest that Monsieur Meyer and Colonel Mance should be authorized, when they meet to discuss the following points: – (1) The selection of the third arbitrator, the name or names chosen being referred to each government for confirmation. His Majesty’s Government trust that the French Government share their view that it would be preferable if the third arbitrator were a lawyer. (2) The provisional date on which the Tribunal should meet to consider the pleadings which His Majesty’s Government assume will consist of the French case and the British counter-case (the preparation of the latter to commence immediately on receipt of a copy of the French claim) and to settle any other questions of procedure which should properly be determined by the Court. 2. His Majesty’s Government assume that there will be no necessity to agree upon specific terms of reference to the tribunal as it is already mutually understood that the arbitration is taking place with the object of determining the equitable compensation to be paid to the Jaffa-Jerusalem Railway Company by His Majesty’s Government under the terms of article 311 of the Treaty of Sèvres. 3. His Majesty’s Government also assume that the French Government agree with them that, in accordance with the usual practice in international arbitration cases, Monsieur Meyer and Colonel Mance will be acting in the capacity solely of arbitrators and in no respect as advocates or representatives charged with representing the interests of their respective governments. 4. For the rest, His Majesty’s Government think it advisable that the two governments should agree in advance that the British, the French and the third arbitrator should each receive the same remuneration: that these sums should be regarded as a part of the costs of the tribunal, such costs according to the ordinary rules of international arbitrations, being equally divided between the two parties, and that, according to the same rule, each party should pay its own costs of the arbitration other than those of the tribunal. On the assumption that the French Government share this view, His Majesty’s Government feel that the question of the fees should be settled direct between them and should not properly be left for discussion between Monsieur Meyer and Colonel Mance. For their part they would recommend the sum of three hundred guineas [£315] as the proper total remuneration for each arbitrator. His Majesty’s Government propose as a mater of fact that since British military regulations prescribe the medium of remuneration for Army officers

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in this country, the remuneration of General [sic] Mance should take the form of a daily allowance. 5. As no useful purpose would be served by the proposed meeting between Monsieur Meyer and Colonel Mance taking place before a decision has been arrived at as to the points to be discussed between them, Colonel Mance has been instructed to suggest to Monsieur Meyer, who has been good enough to express his readiness to come to London, that the meeting should be postponed at any rate until December 29th. 6. In order to ensure that the points still requiring settlement will have been disposed of by that date, I would be glad to receive an answer to this note at the earliest convenience of Your Excellency’s Government, and to learn upon what date His Majesty’s Government may expect to receive copies of the company’s claim. I have the honour etc. No. 14 French Embassy to the Foreign Office, 10 January 1922 Se référant à la correspondance échangée au sujet de la Compagnie des Chemins de fer de Jaffa à Jérusalem, l’Ambassadeur de France a l’honneur de faire savoir à Sa Seigneurie le Principal Secrétaire d’Etat aux Affaires Etrangères que cette Société accepte la procédure proposée par le Gouvernement britannique pour le règlement du litige par un tribunal arbitral. Elle se fera représenter par le Président de son Conseil et son Directeur, assistés de leur Ingénieur-Conseil, M. le Colonel Barry, et tous autres experts qui pourraient être nécessaires à la défense de ses intérêts. En vue d’éviter toute perte de temps, l’Ambassadeur de France adresse, cijoint, à Son Excellence le Principal Secrétaire d’Etat aux Affaires Etrangères un exemplaire de la réclamation que la Société du Chemin de Fer de JaffaJerusalem entend soumettre au Tribunal Arbitral. Le Comte de Saint-Aulaire saisit etc. No. 15a Foreign Office to the French Embassy, 13 February 1922 With reference to your note of the 10th ultimo [No. 14], I have the honour to inform Your Excellency that His Majesty’s Government are in receipt of informal information to the effect that Monsieur Beichmann has provisionally agreed to act as third member of the arbitral tribunal which is to consider the claim of the Jaffa-Jerusalem Railway Company and has expressed a desire to be furnished with specific terms of reference. 2. His Majesty’s Government see no reason to abandon the view set forth

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in the second paragraph of my note of the 21st December [No. 13] and accepted by you on behalf of the French Government in your note under reply that specific terms of reference were unnecessary. At the same time the members of the tribunal must clearly be supplied with instructions in some form which will specify both the object and the limitations of the proposed arbitration. 3. His Majesty’s Government accordingly propose with the concurrence of the French Government to submit jointly to the arbitral tribunal copies of my note of the 21st December and of your note of the 10th January, together with the present note and your reply thereto in which it is hoped that the consent of the French Government to the adoption of this course will be signified. 4. I have the honour to point out that the notes hitherto exchanged have contained no specific provision for the possibility of the award of the tribunal being other than unanimous. In view of the urgent necessity of reaching a final decision in the matter at issue, His Majesty’s Government consider that an award given by a majority of the members of the tribunal should be accepted as binding upon both parties, and they would be glad to learn that the French Government share this view. I have the honour etc. No. 15b Foreign Office to the French Embassy, 13 February 1922 With reference to your notes of the 25th ultimo [not found] and the 3rd instant [not found] on the subject of the arbitral tribunal in connection with the Jaffa-Jerusalem Railway claim, I have the honour to inform Your Excellency that as no preliminary statement of claim has as yet been transmitted by the Ottoman Tobacco Régie, His Majesty’s Government are unable to determine whether in fact arbitration on this claim will be necessary, and if so, how long they will require to frame a reply. 2. In the event of arbitration proving necessary for the purpose of fixing the amount of the compensation to be paid to the Tobacco Régie, His Majesty’s Government consider that such arbitration should cover the company’s claim in respect of Irak as well as of Palestine. 3. In any case preparation of the British counter case could not be completed in time to be referred to the tribunal which is to arbitrate on the claim of the Jaffa-Jerusalem Railway Company. 4. Apart however, from the consideration set forth above, I have the honour to point out to you that since your note of July 20th [No. 4], all mention of the claim of the Ottoman Tobacco Régie has been omitted in the communications which have been addressed to me by you on the subject of the setting up of the tribunal to arbitrate in the case of the Jaffa-Jerusalem

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railway claim. In those communications considerable emphasis has been laid upon the importance of reaching an early decision in the case of the JaffaJerusalem Railway Company, and His Majesty’s Government had consequently assumed that the French Government had abandoned the proposal that the two questions should be submitted to joint arbitration. Upon this assumption His Majesty’s Government appointed as British member of the arbitral tribunal Lieutenant-Colonel Mance whose qualities as an expert railway engineer peculiarly fitted him to act as arbitrator in the case of the Jaffa-Jerualem Railway Company, but would not render his appointment appropriate in the case of arbitration on a question of a tobacco monopoly. 5. Consequently, His Majesty’s Government regret that they are unable to accept the proposal put forward in your note under reply, that the question of the Ottoman Tobacco Régie should be referred to the tribunal which is about to arbitrate in the case of the Jaffa-Jerusalem Railway Company. I have the honour etc. No. 16 French Embassy to the Foreign Office, 27 February 1922 L’Ambassadeur de France n’a pas manqué de transmettre à son Gouvernement la communication de Son Excellence le Principal Secrétaire d’Etat de Sa Majesté aux Affaires Etrangères du 13 février No. E 1357/190/65 [No. 15a] concernant le tribunal arbitral chargé de statuer sur le différend entre le Gouvernement britannique et la Société du Jaffa-Jérusalem. Le Gouvernement français s’associe volontiers à la manière de voir du Gouvernement de Sa Majesté quant à la procédure à employer pour déférer le litige à l’appréciation du tribunal arbitral. Il estime quíl y aurait lieu de communiquer à M. Beichmann la copie certifiée des notes du Foreign Office du 21 Décembre 1921 [No. 13] et du 13 Février 1922 [No. 15a], ainsi que des deux réponses de cette Ambassade à ces notes. D’autre part, le jugement devrait être rendu à la majorité des voix, ainsi que cela ressort d’ailleurs nettement de l’article 311 du Traité de Sèvres. Les deux Gouvernements ayant décidé de prendre la procédure indiquée dans cet artricle comme base de celle à employer dans le cas présent, il y aurait donc lieu de communiquer également une copie certifiée conforme de l’article 311 au Président du Tribunal arbitral. M. Beichmann devant être à Paris à partir du 27 Février, l’Ambassadeur de France a été chargé de demander à Son Excellence le Principal Secrétaire d’Etat de Sa Majesté pour les Affaires Etrangères, de vouloir bien lui transmettre le plus tôt possible un exemplaire certifié conforme de celle des pièces indiquée ci-dessus émanant du Gouvernement britannique. Le Comte de Saint-Aulaire saisit etc.

18 SOME POINTS OF CONTACT BETWEEN THE INTERNATIONAL CRIMINAL COURT AND THE INTERNATIONAL COURT OF JUSTICE

Introduction The aim of this article is, without undue speculation, to outline some possible points of contact between the International Court of Justice (ICJ) and the International Criminal Court (ICC), and to indicate some of the difficulties that are likely to be encountered. The ICJ is established as a principal organ of the United Nations by virtue of Article 7, paragraph 1, of the Charter. It is also the principal judicial organ of the Organization following Article 92 of the Charter and Article 1 of the annexed Statute of the International Court of Justice, although there is no adumbration of what that means. The ICC, created by the Rome Statute of the International Criminal Court of 17 July 19981 is, according to the preamble of the Rome Statute, established as an ‘independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole’.2 That relationship has been formally laid down in the Relationship Agreement between the United Nations and the International Criminal Court of 13 September 2004, adopted by the Assembly of States Parties to the Rome Statute on 7 September 2004 and by the General Assembly of the United Nations in resolution 58/318 of 13 September 2004 (hereafter ‘Relationship Agreement’). The basic texts of the ICC contain two direct references to the ICJ. Article 119 of the Rome Statute provides:

1

2

2187 UNTS 3; United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records (hereafter Rome Official Records), vol. I (A.CONF.183/9). All the preparatory work for this Statute was undertaken within the framework of the United Nations, especially the General Assembly and subsidiary organs that the General Assembly established, including the International Law Commission. The Statute is, in every respect, a ‘United Nations Convention’. It is not clear what is meant by ‘United Nations system’ in this context. On this concept, see Sh. Rosenne, The Perplexities of Modern International Law 399 (2004).

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1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. 2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.

Article 5, paragraph (b) (ii), of the Relationship Agreement requires the Registrar of the ICC to Furnish to the United Nations, with the concurrence of the Court and subject to its Statute and Rules, any information relating to the work of the Court requested by the International Court of Justice in accordance with its Statute.

In any consideration of these matters, the entirely different functions performed by each one of these two Courts acting in complete independence of one another, are of cardinal importance. Those differences must form the starting-point of our analysis. The function of the ICJ is ‘to decide in accordance with international law such disputes [between States] as are brought before it’ (Statute of the ICJ, Article 38, paragraph 1), and ‘to give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter . . . to make such a request’ (Statute of the ICJ, Article 65, paragraph 1). Article 1 of the Rome Statute designates the primary purpose of the ICC, which is to be a ‘permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern to the international community as a whole, as referred to in [the] Statute, and [the Court] shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute’ (Rome Statute, Article 1). By Article 2 of the Relationship Agreement: 1. The United Nations recognizes the Court as an independent permanent judicial institution which, in accordance with articles 1 and 4 of the Statute, has international legal personality and such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes. 2. The Court recognizes the responsibilities of the United Nations under the Charter. 3. The United Nations and the Court respect each other’s status and mandate.

One major consequence of these different functions and of the mutual respect for each other’s status and mandate is that should either one be faced with a situation which the other has previously had before it, it is not a necessary consequence that the earlier precedent, whether judicial or otherwise, is in any way binding on the second organ, however persuasive the precedent

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might be. It also follows that having regard to the completely disparate functions of the two Courts, there can be no ‘overlapping jurisdiction’ between them. If a question of general international law should arise before the ICC in the course of the trial of a ‘person’, that Court (like any other duly established international court or tribunal) should no doubt be guided by any relevant pronouncements of the ICJ. Likewise, should a question of international criminal law that is within the jurisdiction of the ICC arise before the ICJ in the course of the trial of a dispute between States, the ICJ would no doubt pay due heed to any relevant pronouncements of the ICC. The ICJ is an organ of the UN and Article 3 of the Relationship Agreement brings the activities of each Court within the scope of that mutual recognition of each organization by the other. As the Statute of the ICC stands at present, the ICC has jurisdiction in accordance with the Statute with respect to the following crimes: the crime of genocide under Article 6, crimes against humanity under Article 7, war crimes under Article 8, and the crime of aggression (awaiting further specification). Of these, the crime of genocide is regulated in detail in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948.3 Crimes against humanity and war crimes, while as 3

78 UNTS 277. It is a curious feature of the drafting of the Rome Statute that it does not refer to the Genocide Convention by name, in contrast to the specific reference to the Geneva Conventions of 1949 in connection with war crimes. The Genocide Convention has been examined by the ICJ in several cases, including: Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide advisory opinion, International Court of Justice Reports, 1951, 15; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia [Serbia and Montenegro]), Provisional Measures and Further Provisional Measures cases, ibid. 1993, 3, 325, Preliminary Objections, ibid. 1996–II 595, Counter-claims and withdrawal, ibid. 1997, 243, 2001, 572, merits Judgment of 26 February 2007; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Yugoslavia), ibid. 1999–II 1015 (pending); ten Legality of Use of Force (Provisional Measures) cases, ibid., I and II ibid. 1999, Yugoslavia v Belgium, 124, Canada, 259, France, 363, Germany, 422, Italy, 481, the Netherlands, 542, Portugal, 656, Spain, 761, United Kingdom, 826, United States of America, 916, (Preliminary Objections), 2004, judgments of 15 December 2004 in the cases against Belgium, Canada. France, Germany, Italy, Netherlands, Portugal, United Kingdom, ibid. 2004; 279–1307; Armed Activities on the Territory of the Congo (New Application) (Rwanda) (Provisional Measures), ibid. 2002, 219 at 244 (para. 68), (Merits) ibid. 2006 3 February; Armed Activities on the Territory of the Congo (Uganda) (Provisional Measures), ibid. 2000, 111, (Merits) ibid. 2005 14 December. These cases concern international responsibility for alleged breaches of the Convention. In addition charges of crime of genocide have been made in the following cases: in ICTY – Jelisi (IT-95-10-T, 14 December 1999 and IT-95-10-A, 5 July 2001) case, Kristi (IT-98-33-T, 2 August 2001 and IT-98-33-A, 19 April 2004), and Staki,c (IT-97-24-T, 31 July 2003) cases; and in ICTR – Akeyasu (ICTR-96-4-T, 2 September 1998, and appeal, 1 June 2001), and others. The Security Council, in resolution 1593, 31 March 2005, acting under Chapter VII of the Charter, decided to refer the situation in Darfur since 1 July 2002 to the ICC. At the time of writing the Office of the Prosecutor of the ICC has opened investigations into three

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elements of what is today called the international humanitarian law they have a treaty basis in the Geneva Conventions of 1949 and the Additional Protocols of 1974, are to a very large extent the product of a long series of judgments which include the Nuremberg and Tokyo Judgements in the immediate aftermath of the Second World War, judgments of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and some judgments of national courts. The principal treaties of today’s international humanitarian law which covers both crimes against humanity and war crimes do not contain any provision conferring jurisdiction on the ICJ. The ICJ could have jurisdiction over disputes arising out of this series of treaties between States that have accepted the compulsory jurisdiction under Article 36, paragraph 2 or 5, of the Statute, the so-called ‘compulsory jurisdiction’.4 I. Rome Statute, Article 119 For the Rome Statute, the issue of the settlement of disputes has two distinct aspects. One is the settlement of disputes between parties to the Statute as to the interpretation and application of the Statute, a routine matter regularly considered in the negotiation of international treaties and embodied in a traditional compromissory clause; occasionally the settlement of disputes is an integral element of the substantive negotiation and that can lead to more complex provisions on the settlement of disputes arising out of the instrument. The second aspect, of particular relevance when the negotiation includes the establishment of any sort of international tribunal, is the resolution of disputes as to that tribunal’s jurisdiction arising in the course of the judicial proceedings under the instrument being negotiated. This is a substantive matter in every case to come before the Court and in the Rome Statute it constitutes the adaptation of the accepted principle of the compétence de la compétence to the requirements of a criminal trial of a person.

4

situations in Africa, in Darfur, in the Congo and in Uganda. ICC website http://www.icccpi.int/cases.html, accessed 8 November 2005. The ICJ has three times been asked to accept jurisdiction said to be grounded in the customary and conventional international laws of war and international humanitarian law, but in the absence of any provision in the texts enumerated conferring jurisdiction on it, has only acted if the impugned acts could be brought within the scope of the title of jurisdiction as invoked. If not, it has declined to act on that basis. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro) (Further Requests for the Indication of Provisional Measures) case, International Court of Justice Reports 1993, 325, 341 (para. 33); Armed Activities on the Territory of the Congo (Congo v Uganda) (Provisional Measures), ibid. 2000, 111, questions of reparation are pending; Armed Activities on the Territory of the Congo (Congo v Rwanda) (New Application) (Provisional Measures), ibid. 2002, 219, jurisdiction declined, 3 February 2006.

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The report of the Preparatory Committee on the Establishment of an International Criminal Court, which constituted the ‘basic proposal’ for consideration by the Rome Conference under Rule 29 of the Rules of Procedure,5 dealt with the settlement of disputes in its article 108 (renumbered 119 in the final engrossment of the text of the Statute), misplaced in Part 13 as one of the final clauses.6 The Committee set out four options. Option 1 proposed that any dispute concerning the interpretation or application of the Statute should be settled by the decision of the Court. Superficially this resembles the traditional compromissory clause, but it would have conferred on the ICC a jurisdiction different from its primary jurisdiction as set out in Article 5, cited above. Option 2 was more complex and read: Without prejudice to the competence of the Court concerning disputes relating to its judicial activities as is established in accordance with this Statute, any dispute between two or more States Parties relating to interpretation or application of this Statute which is not resolved through negotiations [within a reasonable time] [within . . . months] shall be referred to the Assembly of States Parties which shall make recommendations on further means of settlement of the dispute.

This option distinguished between the competence of the Court concerning disputes relating to its judicial activities, concerning which elaborate provisions regarding jurisdiction and admissibility were contained in the body of the Statute as an essential element of the working of the Court, and any dispute between two or more States relating to the interpretation or application of the Statute. The Preparatory Committee’s Option 2 for article 108 was limited to disputes between States Parties relating to the interpretation or application of the Statute, and aimed to leave untouched the issues concerning the Court’s competence in any particular case. Option 3 proposed simply that any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court. In the general context of the Statute as a whole, there would have been little use for a provision along those lines here. Option 4 proposed that there should be no article on dispute settlement as far as concerned disputes between States over the Rome Statute while leaving untouched the provisions regarding the Court’s jurisdiction in

5 6

For that report (A/CONF.183/2) see Rome Official Records, vol. III. For the Rules of Procedure (A/CONF.183/6), see ibid. vol. II. Sh. Rosenne, ‘When is a final clause not a final clause?’ Essay 23 below. The final clauses are the provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters necessarily arising before the entry into force of the treaty. These provisions apply from the time of the adoption of the text of the treaty. In the case of the Rome Statute, the text of the Rome Statute was adopted at the 9th plenary meeting on 17 July 1998, See Rome Official Records, vol. II.

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a particular criminal case. The Rome Conference did not consider the settlement of disputes arising out of the interpretation or application of the Rome Statute as a topic in itself but examined it together with the final clauses (in the proper sense of the term). The implication of this is that the Conference did not consider the settlement of that type of dispute to be a matter inherently linked to the negotiation as a whole. Part 13 of the Preparatory Committee’s text was examined at the 19th, 20th, 33rd and 41st meetings of the Committee of the Whole.7 Opening that discussion at the Committee’s 19th meeting, the Co-ordinator said that there was no consensus in favour of any one of the four options for article 108. He explained that the effect of option 3 would be to make the International Criminal Court judge of its own jurisdiction. Option 2 would not exclude the possibility of reference by the Assembly of States Parties of a dispute over the interpretation or application of the Statute to the International Court of Justice. That is the only element of interpretation to be found in the published Official Records of the Rome Conference. In the course of that discussion, Mexico proposed an amendment to article 108 reading:8 Any dispute between two or more States Parties relating to the interpretation or application of this Statute which is not resolved through negotiations within three months, shall be settled by one of the means of settlement of disputes chosen by the parties to the controversy, and if this is not possible also within three months, it shall be sent to the International Court of Justice for consideration in accordance with the Statute.

The two paragraphs of Article 119 as finally adopted express the two types of dispute that it addresses. Paragraph 1 is the equivalent of Article 36, paragraph 6, of the Statute of the International Court of Justice and protects the compétence de la compétence adapted to the requirements of the Statute of an international criminal court as set out in the body of the Rome Statute. In terms it may be seen as being broader than that, since it seems to address any dispute concerning the Court’s judicial functions, not merely a dispute arising in the course of the judicial proceedings as to whether it has jurisdiction or whether the suit is admissible. However, it is difficult to conceive of any such dispute arising otherwise than in the course of a criminal trial of an indicted person. As stated, the Statute makes provision for disputes as to whether a particular case that is brought before the Court comes within its jurisdiction or is admissible. That would not be a dispute between two

7

8

Id. For the rolling texts and the recommendations of the Co-ordinator (A/CONF.183/ C.1/L54/Rev.2 and L.61 and Corr.1) and the report of the Drafting Committee (A/CONF. 183/DC/R.191–R.194), ibid. vol. III. T.N. Slade of Samoa was the Co-ordinator for Part 13 and the Preamble. There is no public record of the negotiations that he conducted on article 108 and no statement on the record giving any interpretation of the final text of that provision. A/CONF.183/C.1/L.14/Rev.1, Rome Official Records vol. III.

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or more States Parties but an independent issue that the accused person can raise in the course of the proceedings or which the Court itself may raise proprio motu having regard to Article 19, paragraph 1, of the Rome Statute.9 The Statute does not make provision for any other dispute that may arise between States Parties relating to its judicial functions.10 Paragraph 2 is a combination of Option 2 and the Mexican amendment. Although couched in imperative language (‘shall be referred’) it should be read as an optional proceeding chosen either by the States between which the dispute exists or by the Assembly of States Parties as part of its approach to the settlement of the dispute. Paragraph 2 is open to two principal interpretations. It can be read as a conferment of jurisdiction on the International Court of Justice under Article 36, paragraph 1, of the ICJ Statute. If the referral of a dispute to the ICJ is obligatory, it must have a purpose that the ICJ can address, and that means that the other party to the dispute, if it is a State and if it is a member of the United Nations or has otherwise accepted the position of a party to a contentious case before the ICJ, is obliged to accept the jurisdiction of the ICJ. That seems to be the interpretation placed on that provision by Triffterer.11 At the same time he recognizes that a duly authorized body (which might eventually include the Assembly of States Parties) could initiate, directly or indirectly, a request for an advisory opinion.12 The obligation on the parties to any dispute relating to the interpretation or application of the Statute that is not settled by negotiation within three months of the commencement of the negotiations is to refer that dispute to the Assembly of States Parties. For its part, the Assembly of States Parties may make recommendations on further means of settlement ‘including referral to the International Court of Justice’. It cannot do more than that. It cannot itself refer any dispute to the International Court of Justice and it cannot compel any State Party to the Statute to refer any such dispute to that Court. The most it can do is to recommend such referral. Here the provision of Article 119, paragraph 2, would seem to track Article 36, paragraph 3, of the Charter of the United Nations.13 There are three ways in

9

10 11 12 13

Art. 19 (1) of the Rome Statute provides: ‘The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17’. Art. 17 sets out a series of rules governing issues of admissibility. For an interpretation of this expression, see Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court 1243 (1999). Op. cit. at 1248. Ibid. And see Sh. Rosenne, The Law and Practice of the International Court 1920–2005, vol. I, 159 (2006). By that provision (in Chapter VI of the Charter), in making recommendations for the settlement of a dispute the Security Council should also take into consideration that legal

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which a case can be referred to the ICJ. Article 40 of the Statute indicates how a contentious case between States can be referred to the Court, namely either by the notification of a special agreement or by a written (unilateral) application. Article 65, paragraph 2, of the Statute sets out the procedure for initiating advisory cases in the Court; that has to be read together with Article 96 of the Charter regarding the organs authorized to request an advisory opinion. Neither the International Criminal Court nor any of its organs or the Assembly of States Parties has been authorized under Article 96, paragraph 2, of the Charter to request advisory opinions. Article 119, paragraph 2, of the Rome Statute thus keeps open all three methods of referring a dispute to the International Court of Justice, all requiring an appropriate recommendation from the Assembly of States Parties. Since the Assembly of States Parties is only empowered to make recommendations in this respect, there is no element of compulsion in this form of proceeding. Accordingly, if a contentious proceeding is instituted unilaterally by the filing of a written application the Rome Statute does not impose any obligation on the State Party to which that application is addressed to accept the case. This is confirmed by Article 38, paragraph 5, of the Rules of Court of the ICJ. In this connection it is to be noted that although in principle a judgment of the ICJ in a contentious case is final and binding on the parties only and for other States is res inter alios acta, that Court has developed the doctrine of no argument a contrario where a judgment contains a binding interpretation of a provision found in a multilateral convention.14 The obligation imposed on the Registrar of the ICC under the Relationship Agreement to furnish information relating to the work of the Court requested by the ICJ is not matched by any corresponding direct obligation on the Registrar of the ICJ at the request of the ICC. Neither the reasons for this one-sided obligation nor its implications are clear. The chapeau of Article 5, paragraph 1, of the Relationship Agreement lays down a general principle that the United Nations and the ICC shall, to the fullest extent possible and practicable, arrange for the exchange of information and documents of mutual interest. Usually the documents relating to a case in the ICJ become generally accessible on the commencement of the hearings in a case

14

disputes should as a general rule be referred by the parties to the ICJ in accordance with the provisions of its Statute. The Security Council has made use of that provision only once since 1946. That was in connection with the Corfu Channel case, referred to the Court by unilateral application in implementation of the recommendation contained in Security Council resolution 22 (1947), 9 April 1947. Declaration of President Guillaume in the LaGrand case, ICJ Reports 2001, 466 at 517; adopted by the Court in the Avena and other Mexican Nationals case, ibid., 2004, 12, 69 (para. 151). It is also possible that by virtue of the September 2005 amendment to Art. 43 of the Rules of Court, the ICC, as an independent permanent international institution [Relationship Agreement, Article 2, cited] would be enabled to make its views on the interpretation of the Rome Statute known to the ICJ.

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and it does not need a formal agreement for them to be made directly available to the ICC (or any other court or tribunal for that matter).15 At the Rome Conference Mr Corell, at the time the Legal Counsel of the UN, made an important statement regarding the confidentiality of documents and information in the United Nations. Referring more particularly to deliberations of closed meetings of the Security Council, he requested that any provision in the Statute for the protection of sensitive national security information should be made applicable to the United Nations mutatis mutandis. He did not mention the International Court of Justice, which also has arrangements to protect sensitive national information. Furthermore (and this is more important), by the specific provision of Article 54, paragraph 3, of its Statute, ‘The deliberations of the Court shall take place in private and remain secret’, with the consequence that any information regarding its deliberations is and remains secret under all circumstances.16 The Statute of the ICJ like the Rome Statute imposes an important limitation on the mutual exchange of information between the ICC and the UN (and all its organs). II. Questions of evidence and witnesses The two formal links between the two Courts are peripheral. The main problems that sooner or later will have to be faced are substantial and may have a direct bearing on the ability of either one of the two Courts to exercise its primary function. As far as one can foresee, it will be in connection with witnesses and the obtaining of evidence (not its evaluation) in both the ICJ and the ICC that the most serious set of problems is the most likely to occur. International inter-State litigation since 1945 has encountered two groups of problems which hardly ever arose in international arbitrations and litigation before that period, namely disputes over the facts, and the hearing of witnesses. As a result, the law regarding the judicial settlement of international disputes, whether through the ICJ or through any other third-party

15

16

In the Access to Information under Article 9 of the OSPAR Convention arbitration between Ireland and the United Kingdom, the question arose of access to one of the pleadings in the MOX Plant arbitration under Annex VII of the UN Convention on the Law of the Sea, before that pleading became generally available. The parties jointly requested that Arbitral Tribunal to permit disclosure in the OSPAR proceedings of material from Ireland’s memorial in the Annex VII arbitration, to which that Tribunal agreed. See the Final Award of 2 July 2003, 126 ILR 338, 359 (para. 63). For the proceedings in ITLOS see ITLOS Reports 2001, 95, 126 ILR 260, and for the Annex VII arbitration, ibid. 310 (those proceedings are temporarily suspended). Statement at the 8th plenary meeting (para. 94), 18 June 1998, in Rome Official Records, vol. II. Art. 74 (4) of the Rome Statute likewise provides that the deliberations shall remain secret.

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judicial machinery, although fragmentary still, has developed into the field of evidence.17 The developing law on evidence has not yet faced the problems caused by the existence of cases in two (or more) international courts or tribunals arising out of the same disputed sets of facts, one court or tribunal having to deal with a ‘normal’ case of state responsibility for breach of a treaty or other rule of international law (which determines the legal consequences of any alleged violation of any rule of international law, as, for example the Genocide Convention) and the other court or tribunal trying the criminal prosecution of an individual for alleged violations of the law set out in that same treaty, violations that are directly related to and possibly even identical with the acts that gave rise to the inter-State claims based on the general law of international responsibility. On the first issue, disputed facts in cases in different tribunals arising from the same incident, without too much speculation it is submitted that on the international level one court or tribunal cannot take ‘judicial knowledge’ of a finding of facts by another tribunal. This is an immediate and inevitable consequence of the absence on the international level of any systematic hierarchical system of courts and tribunals. The ICJ has been quite specific on this: Nor can it be accepted that once the Court has given judgment in a case involving certain allegations of fact, and made findings in that respect, no new procedure can be commenced in which those, as well as other, facts might have to be considered. In any event, it is for the Parties to establish the facts in the present case taking account of the usual rules of evidence, without it being possible to rely on considerations of res judicata in another case not involving the same parties (see Article 59 of the [ICJ] Statute).18

In the same order of ideas, the Court cannot decline to hear a case simply because its judgment may have implications in another case.19 If that is the position in one court regarding two separate cases between separate sets of parties, but linked in a single factual complex, a fortiori this would be so as regards two separate but factually linked cases in two different courts or tribunals with completely different international jurisdictions ratione personae. Unless the parties have reached agreement on stipulated facts, in every case

17

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In her statement at the 2899th meeting of the ILC on 25 July 2006 President Higgins of the ICJ said: ‘An interesting legal question for us will be to ascertain what types of categories of findings by the ICTY seem to fall within our notion of “safe evidence” for purposes of determinations of particular facts.’ Border and Transborder Armed Actions (Jurisdiction and Admissibility) case, ICJ Reports 1988, 69, 91 (para. 54). Legality of Use of Force cases (n. 3 above), case against Belgium, Preliminary Objections, ICJ Reports 2004, 15 December, para. 40, and equivalent passage in the other preliminary objections judgments of that date.

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the facts have to be properly established to the satisfaction of the court or tribunal trying the case, having regard for the precise nature and function of that court or tribunal and its jurisdiction in the particular case. There may to some degree be an element of general knowledge of widely and accurately reported facts of a general nature and that general knowledge might be sufficient to support a claim of international responsibility based on an alleged breach of a relevant treaty or other violation of international law – for example the case of the American hostages taken from the U.S. Embassy in Tehran, leading to the United States Diplomatic and Consular Staff in Tehran case, before the International Court of Justice between the years 1979 and 1981.20 As Article 69, paragraph 6, of the Rome Statute puts it, the ICC shall not require proof of facts of common knowledge but may take judicial notice of them. Nevertheless, a general picture of that nature is hardly sufficient to support a verdict of guilty in a criminal trial, where the accused’s criminal responsibility has to be established ‘beyond reasonable doubt’ following a presumption of innocence until proved guilty.21 No less important is the question of witnesses, where at least two sets of problems can be foreseen. The first is where the evidence of an individual is required in a case in the International Court of Justice, but that evidence could incriminate that individual in criminal proceedings, whether in that person’s national court (or other domestic court or tribunal with jurisdiction in the case) or in the International Criminal Court or any other international criminal court or tribunal. In the ICC, Rule 74 of the Rules of Procedure and Evidence protects a witness against self-incrimination.22 There is no similar provision in any of the texts at present governing the procedure in the International Court of Justice, nor, so far as is known, is this specifically provided for in the Universal Declaration of Human Rights or any of the Human Rights treaties and conventions. But since it has now been formally incorporated in a major instrument of international criminal law, it would smack of incompatibility if it were not applied equally in other non-criminal international courts and tribunals. In international criminal law this appears as one of the basic rights of any individual called to give evidence in an international criminal court, and it may now be regarded as a basic human right incorporated in international criminal law. As such, it should be given precedence in the International Court of Justice even if doing so could prejudice

20 21 22

International Court of Justice Reports 1979, 7 (Provisional Measures), 1980, 3 (Merits), 1981, 45 (Discontinuance). Rome Statute, Art. 66. For the Rules of Procedure and Evidence adopted by the Assembly of States Parties in accordance with Art. 51 of the Rome Statute, see Assembly of States Parties to the Rome Statute of the International Criminal Court, First Session, Official Records, Part II, A (doc.ICCASP/1/3, 2002).

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one party’s case in that Court, or make it impossible for the Court to satisfy itself that the claim of the party concerned is well founded. In this connection, there is a major difference between the two Statutes in the matter of evidence and witnesses, and this in turn may become a factor, especially for the ICJ. The Statute of the ICJ has very little to say on this element of international litigation, no doubt because in the international arbitrations as they had developed up to the drafting of the Statute of the Permanent Court in 1920 there had been little experience of the handling of disputed facts, of witnesses and even less of the credibility of evidence submitted by one or other of the Governments involved in the litigation.23 Article 48 of the Statute empowers the ICJ to ‘make all arrangements connected with the taking of evidence’. Article 52 sets out the time period within which a party may present oral or written evidence. That is about all.24 In particular, the ICJ Statute contains no provision regarding judicial assistance from national courts such as is frequently regulated for internal litigation, and the ICJ is afforded no protection against what the Rome Statute designates as Offences against the administration of justice (Article 70) and Sanctions for misconduct before the Court (Article 71).25 In both Courts the trials are in principle public.26 Experience will show whether and to what extent in appropriate cases the stricter rules regarding evidence and witnesses of the Rome Statute will have any direct impact on the ICJ, for example in cases involving allegations of breach of the Genocide Convention when there are also past or pending criminal prosecutions in the ICC arising out of the same incident or set of causes. This outline is sufficient to indicate that, given their entirely different functions and jurisdiction, both the formal relations between the International Court of Justice and the International Criminal Court and their more intangible substantive interconnections are likely to prove extremely sensitive and delicate.

23

24 25

26

Cf. G. Marston, ‘Falsification of Documentary Evidence before International Tribunals: An Aspect of the Behring Sea Arbitration, 1892–1893’, British Year Book of International Law, vol. 71, 357 (2000). On the hearing of witnesses in the ICJ, see Sh. Rosenne, n. 12 above, vol. III, 1305 ff. In its judgment on the merits of the Corfu Channel case, the ICJ made a finding ‘[w]ithout deciding as to the personal sincerity of the witness [X], or the truth of what he said’. ICJ Reports 1949, 4, 16. In the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, Bahrain challenged the authenticity of 81 documents filed by Qatar. In due course Qatar abandoned those documents. See the judgment on the merits of that case, ICJ Reports 2001, 40, 46 (paras. 15 to 23). Further on this aspect, see Sh. Rosenne, n. 12 above, vol. III, 1247. ICJ Statute, Art. 46; Rome Statute, Art. 64 (7).

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VIII. Postscript The judgment on the merits in the Application of the Genocide Convention case between Bosnia & Herzegovina and Serbia provided the first opportunity for the International Court of Justice to face head-on major issues of its relations with an international criminal court created by the Security Council – the International Criminal Tribunal for the former Yugoslavia (ICTY).27 About one third of this long and fact-intensive judgment (170 pages) is devoted to analyzing the thousands of pages of documentary evidence and making detailed findings of fact. Paragraphs 202 to 230 explain in general terms the Court’s approach to questions of proof, in particular the burden of proof, the standard of proof and the methods of proof. This involved the Court’s use of proceedings in the ICTY. While the Court reasserted that it must make its own determination of the facts that are relevant to the law which the applicant claimed the respondent had breached, it nevertheless pointed out an unusual feature of the case: ‘Many of the allegations . . . have already been the subject of the processes and decisions of the ICTY’ (paragraph 211). ICTY’s fact-finding process fell within the ICJ’s formulation of evidence obtained by examination of persons directly involved tested by cross-examination, the credibility of which has not been challenged subsequently (paragraph 214). The Court noted that ICTY’s actions and decisions fell into several distinct processes: (1) the Prosecutor’s decision to include or nor certain charges in an indictment; (2) the decision of a judge to confirm the indictment and issue an arrest warrant or not; (3) the issuance of an international arrest warrant; (4) the decision of a Trial Chamber on a motion for acquittal; (5) the judgment of a Trial Chamber after full hearings; (6) the sentencing judgment of a Trial Chamber following a plea of guilty. After explaining the weight to be given to decisions at each of these different stages, the Court reached the general conclusion (paragraph 223) that it should in principle accept as ‘highly persuasive findings of fact made by the Tribunal at trial’, unless upset on appeal. The ICJ took advantage of this judgment to address a finding by the Appeals Chamber of ICTY that had not followed a relevant precedent of the International Court of Justice.28 The Court explained why, in its opinion,

27

28

26 February 2007. The application introducing these proceedings in 1993 alleged violations of the Genocide Convention by the country then known as Yugoslavia in the bitter hostilities that followed the death of President Tito and the dissolution of the Socialist Federal Republic of Yugoslavia. After disposing of relevant preliminary matters and outstanding questions of jurisdiction, the main part of this judgment, paras. 142 to 470, addresses the substance of the applicant’s principal claim. President Higgins has aptly described this case as ‘extremely fact-intensive’. Statement to the Press after delivery of the judgment, available on the Court’s website. Case IT-94-1-A, judgment, 15 July 1999.

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the Appeals Chamber had erred in not following that precedent (paragraphs 403 to 407): . . . [T]he Court . . . finds itself unable to subscribe to the [Appeal] Chamber’s reasoning . . . First, the Court observes that the ICTY was not called upon in the Tadi.c case, nor is it in general called upon, to rule on questions of State responsibility, since its jurisdiction is criminal and extends to persons only. Thus, in that Judgment the Tribunal addressed an issue which was not indispensable for the exercise of its jurisdiction. . . . [T]he Court attaches the utmost importance to the factual and legal findings made by the ICTY in ruling on the criminal liability of the accused before it and, in the present case, the Court takes fullest account of the ICTY’s trial and appellate judgments dealing with the events underlying the dispute. The situation is not the same for positions adopted by the ICTY on issues of general international law which do not lie within the specific purview of its jurisdiction and, moreover, the resolution of which is not always necessary for deciding the criminal cases before it [paragraph 403].

The procedure in the ICC will be broadly similar to the procedure in the ICTY, and we may assume that the International Court of Justice would adopt a similar attitude towards unappealed factual and legal findings by the ICC.

19 THE JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT

This article will review the jurisdiction of the new International Criminal Court under the Rome Statute of 17 July 1998.1 Jurisdiction will be examined ratione personae and ratione materiae, including in each case its scope ratione temporis, concentrating on two separate aspects of jurisdiction as they appear in the Statute. These are jurisdiction to bring charges against an alleged offender and to bring that person to trial, and as a corollary, jurisdiction to detain or arrest an accused or suspected person. Given that this is early in the history of the Rome Statute, some consideration of other issues raised by the Statute is necessary. As a general proposition, the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the TadiÏc case gives a useful working description of what ‘jurisdiction’ means in an international criminal tribunal: [ J]urisdiction is not merely an ambit or sphere (better described in this case as “competence”); it is basically – as is visible from the Latin origin of the word itself – a legal power, hence necessarily a legitimate power, ‘to state the law’ (dire le droit) within this ambit, in an authoritative and final manner . . . A narrow conception of jurisdiction may, perhaps, be warranted in a national context but not in international law. International law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not in others. In international law, every tribunal is a self-contained system (unless otherwise provided).2

In substance and mutatis mutandis this explanation is very close to the general explanation of jurisdiction in the practice of the International Court of Justice. 1

2

2187 UNTS 3. For this author’s critique of the drafting of the Statute, see ‘Poor Drafting and Imperfect Organization’, 41 Virginia J. Int’l L. 164 (2000). For an account of the Rome Conference through the eyes of participants, see Roy S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (1999). Prosecutor v. Tadi,c (Jurisdiction), Case IT-94-I-AR72, Decision of 2 October 1995, ICTY, Judicial Reports, 1994–1995 (I) 343–365 (paras. 10–11); 105 ILR at 457.

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I. The Rome Statute as an International Treaty Recalling first that the Rome Statute is an international treaty, as such it comes within the scope of the Vienna Convention on the Law of Treaties of 23 May 1969.3 It is also the constituent instrument of an international organization of a special type, an autonomous judicial organization.4 As an international treaty coming within the scope of the Vienna Convention, its interpretation is governed by articles 31 to 33. The rules on treaties and third States (articles 34 to 38) are relevant to the position of States not parties to the Statute. Since the Statute is the constituent instrument of an international organization, article 5 of that Convention is also germane.5 However, it is an international treaty of a particular type, and as such it can raise specific problems of interpretation.6 The significance of this is that while no doubt relevant interpretations of their Statutes by the ICTY and by the International Criminal Tribunal for Rwanda (ICTR) may help in interpreting and applying the Rome Statute, and despite the fact that that the Appeals Chamber of ICTY has shown an inclination to find guidance in the Vienna Convention,7 those two Statutes are not embodied in treaties that come within the scope of the Vienna Convention but in resolutions of the Security Council, subject to different canons of interpretation.8 The Security Council which adopted a report from the Secretary-General established ICTY with a fairly wide mate-

3 4

5 6 7

8

1155 UNTS 331. The relationship agreement between the United Nations and the International Tribunal for the Law of the Sea, adopted by the General Assembly of the United Nations in resolution 52/251, 8 September 1998, uses that expression. That was the first relationship agreement between the United Nations and an international judicial organ created by a treaty drawn up under the auspices of the United Nations. The same expression was repeated in the relationship agreement between the United Nations and the International Criminal Court approved by the Assembly of States Parties to the Rome Statute on 7 September 2004 and by the General Assembly in resolution 58/318, 13 September 2004. Art. 5 reads: ‘The present Convention applies to any treaty which is the constituent instrument of an international organization . . . without prejudice to any relevant rules of the organization.’ Legality of the Use by a State of Nuclear Arms in Armed Conflict advisory opinion, ICJ Rep, 1996–I 66, 75 (para. 19). Cf. the joint separate opinion of Judges McDonald and Vohrah in Prosecutor v. Erdemovi,c (Sentencing Appeal, 1997) in the Appeals Chamber of ICTY, Case IT-96-22-A; 111 ILR at 315. Cf. M. Wood, ‘The Interpretation of Security Council Resolutions’, 2 Max Planck Yearbook of United Nations Law 73 (1998). Nevertheless, the view is sometimes expressed that the Statutes of these Tribunals are nonetheless established by treaty – the Charter of the United Nations. J.A. Carrillo-Salcedo, ‘The Inherent Powers of the International Tribunal for the Former Yugoslavia to issue “Subpoena duces tecum” to a Sovereign State’, Mélanges en honneur de Nicolas Valticos: Droit et justice 269, 278 (1999).

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rial jurisdiction whose scope was limited geographically and ratione temporis.9 It also established ICTR for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law and related matters in Rwanda during a fixed period of time.10 The Rome Conference set up three bodies that are competent to interpret the Statute. They are the Preparatory Commission (PrepCom); the Assembly of States Parties established and institutionalized by article 112 of the Statute;11 and the Court itself, established by article 1 and composed of the organs as set out in article 34. In addition, article 119 envisages a possible role for the International Court of Justice in settling disputes between States Parties relating to the interpretation or application of the Statute.12 PrepCom, composed of all the States that have signed the Final Act whether or not they are parties to the Statute, was a transitory body that ceased to exist with the conclusion of the first session of the Assembly of States Parties.13 That Assembly came into being with the entry into force of the Statute on 1 July 2002. It consists of all the States that have expressed their consent to be bound by the Rome Statute and for which the Statute is in force. States that have signed the Statute or the Final Act may be observers. The Court came into existence after the first election of judges on 11 March 2003. The Court comprises, with the 18 judges, also the Office of the Prosecutor and the Registrar. The Prosecutor is to be elected by the Assembly (article 42(4)) 9

10 11

12

13

See Security Council resolutions 808 (1993) and 827 (1993), of 22 February and 25 May 1993 respectively. The Statute of this Tribunal is contained in the report of the SecretaryGeneral submitted in accordance with resolution 808, Official Records of the Security Council, 48th year, Supplement for April, May, June 1993 (doc. S/25704 and Add.1) at 117. This Statute is conveniently reproduced in the Tribunal’s Basic Documents at p. 1 (2nd ed. 1998). The Secretary-General’s report is reproduced at p. 161. The Statute is annexed to Security Council resolution 955 (1994), 8 November 1994. The Assembly of States Parties is probably to be regarded as a ‘treaty body’ as that concept is developing in United Nations practice. Cf. Establishment of the Court and relationship with the United Nations, List of main issues, background paper by the Codification Division, doc. A/AC.249/1998/L.10 (mimeo. 20 December 1998). The Office of Legal Affairs of the UN Secretariat has consistently taken the view that a treaty body established by a treaty concluded under UN auspices is an organ of the UN. See opinions of 15 September 1969 on the privileges and immunities of the members of the Committee on the Elimination of Racial Discrimination, and of 12 August 1976 on the question of whether that Committee is a subsidiary organ of the UN. That Committee is composed of individuals, but it would seem that there is no difference of principle if the treaty organ is composed of the representatives of States. One might hope that the Assembly of States Parties can be authorized under the Charter to request advisory opinions of the International Court. For reasons stated in the previous note, there is no reason why it should not be considered an organ of the United Nations within the meaning of Art. 96(2) of the Charter. There is thus a short overlap when both the PrepCom and the Assembly of States Parties were in existence at the same time. That overlap terminated with the conclusion of the first session of the Assembly.

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and the Registrar by the judges (article 43(4)). Except PrepCom,14 the other institutions all came into existence at various dates within twelve months of the entry into force of the Rome Statute. In consequence, for immediate purposes PrepCom was the first entity qualified to interpret the Statute. However, its interpretations will not be binding for the Court after it has come into existence. For both the Court and the Assembly, the PrepCom makes recommendations. The position of the Court here (and of the Assembly) is similar to that of the International Tribunal for the Law of the Sea and the Meeting of States Parties under the United Nations Convention on the Law of the Sea. Both the Tribunal and the Meeting of States Parties have seen themselves as free to follow or not any relevant recommendations of that Preparatory Commission.15 It follows from the Statute’s being an international treaty that the date of its entry into force for a given State is of direct relevance to the Tribunal’s jurisdiction, both ratione personae and ratione materiae. For the first sixty States required to bring the Statute into force, that date is determined according to article 126(1) of the Statute mentioned above. Para. 2 applies to States that become parties after the Statute’s entry into force. For those States it enters into force on the first day of the month after the 60th day following the deposit of the appropriate instrument with the Secretary-General of the United Nations. By article 12 of the Statute, that date can also be relevant in relation to the place at which the alleged crime was committed. That would refer to the scope of the jurisdiction ratione temporis. II. The Structure of the Statute The general structure of the Statute requires notice.16 As is customary, the Statute commences with a preamble, setting out the general objects and purpose of the Rome Conference in adopting the instrument. The preamble is important for the interpretation of the instrument, 14 15 16

For the PrepCom documents available on line see . See on this Sh. Rosenne, ‘International Tribunal for the Law of the Sea: 1996–97 Survey’, 12 The International Journal of Marine and Coastal Law 487 (1998). The final structure of the Rome Statute differs from the original proposal of the International Law Commission. That was structured as follows: Part I (arts. 1 to 4), the establishment of the Court; Part 2 (arts. 5 to 19), Composition and administration of the Court; Part 3 (arts. 20 to 24), Jurisdiction of the Court; Part 4 (arts. 25 to 31), Investigation and prosecution; Part 5 (arts. 32 to 47), the Trial; Part 6 (arts. 48 to 50), Appeal and review; Part 7 (arts. 51 to 57), International co-operation and judicial assistance; Part 8 (arts. 58 to 60), Enforcement; Annex, Crimes pursuant to [designated] treaties. That proposal did not contain final clauses. However, Appendix I discussed possible clauses of a treaty to accompany the draft statute. Yearbook of the International Law Commission, 1994, II/2, 20.

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following article 31(2) of the Vienna Convention. However, its tenth paragraph is a substantive provision, which is picked up in the body of the Statute. It enunciates the principle of complementarity, a central feature of the Statute described more fully in § IV below. ‘Emphasizing that the International Criminal Court established under this Statute shall be [est] complementary to national criminal jurisdictions’. Complementarity was a major political question throughout the negotiation of the Rome Statute. The tenth paragraph of the preamble is given substantive content both through the English word ‘shall’, a word of obligation in legal drafting,17 and explicitly in article 1 on the establishment of the Court and in article 17, on issues of admissibility. The expression ‘national criminal jurisdictions’ presumably extends to any form of national jurisdiction that is competent to try and punish an offender for the particular act(s) for which he or she could be indicted before the International Criminal Court, including for this purpose military courts acting under the national code of military justice. The topic of Part 1 (articles 1 to 4) is the establishment of the Court. By article 1 the Court is established as a permanent institution with power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in the Statute, ‘and shall be complementary to national criminal jurisdictions’. This general functional jurisdiction is universal in scope. Picking up ideas expressed in the preamble, it stresses the Court’s limitation to ‘the most serious crimes of international concern, as referred to in the Statute’. This is immediately a source of ambiguity. The question that it sets is whether the general definitions contained in the Statute are sufficient as an indication of the most serious crimes of international concern, or whether some expression of international concern, whether general or specific, is to be required for every individual prosecution. This question does not arise for ICTY or ICTR, as the Security Council has already given a general directive to those two bodies. Part 2 (articles 5 to 21) deals with jurisdiction, admissibility and the applicable law. Article 5 is the principal provision setting out the crimes that are within the Court’s jurisdiction – jurisdiction ratione materiae. It lists four crimes – genocide, crimes against humanity, war crimes and the crime of aggression. Articles 6, 7 and 8 follow that bare statement. Those enumerate particulars of genocide, crimes against humanity and war crimes ‘for the purpose of this Statute’. This aspect is examined in § V below. There is no explanation of the crime of aggression or of its elements as a matter of individual criminal responsibility. By the Final Act of the Conference,18

17

18

Cf. the explanation given by Sir Humphrey Waldock, special rapporteur on the law of treaties, at the 872nd meeting of the International Law Commission. Yearbook of the International Law Commission, 1966, vol. I at 199. Annex I, resolution F, para. 7. For the Final Act, see doc. A/CONF.138/10, 17 July 1998.

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the PrepCom was to prepare proposals for a provision on aggression including the definition and the Elements of Crimes of aggression and the conditions under which the Court shall exercise its jurisdiction with regard to this crime. PrepCom was to submit its proposals to the Assembly of States Parties at a Review Conference ‘with a view to arriving at an acceptable provision on the crime of aggression for inclusion in this Statute’.19 This means that the Statute anticipates its own amendment some time after its entry into force. This is an unusual provision, and it might cause difficulties if the definition of aggression to be adopted raises constitutional problems for any of the States parties at the time.20 Article 11 has the title ‘jurisdiction ratione temporis’. The Court has jurisdiction ‘only with respect to crimes committed after the entry into force of this Statute’. By para. 2, for a State which becomes a party to the Statute after its entry into force, the Court may exercise jurisdiction only with respect to crimes committed after the entry into force of the Statute for that State, unless the State has previously made a declaration by which it has, although not a party to the Statute, accepted the jurisdiction with respect to the crime in question. Time is certainly an element of jurisdiction, but it usually relates to the scope of the jurisdiction ratione personae or ratione temporis. It follows that the Court may not exercise jurisdiction in respect of a crime where the relevant State was not a party to the Statute at the relevant date and has not taken other steps to accept the exercise of jurisdiction with respect to that crime. Part 3 (articles 22 to 33) sets out the general principles of criminal law (meaning international criminal law). For present purposes, it is sufficient to note article 25(1) on individual criminal responsibility. That gives the Court jurisdiction ‘over natural persons’. This excludes juridical persons from the scope of the Court’s jurisdiction, but not the individuals composing the juridical person. That provision is misplaced. It deals directly with the Court’s jurisdiction ratione personae, and is not a principle of criminal law as such.

19

20

Having regard for article 5(2) (see § V below), no further consideration will be given here to the crime of aggression, beyond noting that the reference is to individual responsibility for the crime, not the responsibility of the State as such. This follows from article 25(1). The crime of aggression for the purposes of this Statute is connected with the relations to be established between the Court and the Security Council. Article 2 provides for the Court’s being brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties and thereafter concluded by the Court on its behalf. One of the functions of the PrepCom is to prepare a draft of this relationship agreement. The SecretaryGeneral is to convene the first Review Conference seven years after the Statute’s entry into force. Constitutional difficulties have already been raised. See for instance the decision of the French Conseil constitutionnel of 22 January 1999 No. 98–408 DC to the effect that ratification of the Rome Statute will require revision of the French Constitution. , visited 10 May 1999.

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The Nürnberg Tribunal had jurisdiction over entities that were not individuals. By article 26, the Court has no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of the crime. Presumably this refers to the Gregorian calendar. In the form in which this is presented this limitation on the Court’s jurisdiction could lead to difficulties where there is a series of multiple crimes which commenced when the accused was under the age of 18 years. This is an important example of what can be seen as somewhat hasty drafting inappropriate for a criminal statute. Part 4 (articles 34 to 52) treats the composition and administration of the Court. By article 34 the Court is composed of the following organs: the Presidency (article 38), an Appeals Chamber, a Trial Chamber (of which there may be more than one), and a Pre-Trial Chamber (article 39), the Office of the Prosecutor (article 42), and the Registry (article 43). The inclusion of the Office of the Prosecutor as part of the Court is a questionable feature of the Statute. Experience shows that it can produce intolerable tension between an approach to the settlement of disputes based on Fiat justitia, et pereat mundus and one based on the ideal of Seek peace and pursue it (Psalms 34:15), between justice at all costs, and consideration of the political and diplomatic consequences of a particular prosecution at a particular time. It is presumably copied from article 11 of the Statute of ICTY. But the analogy is false. ICTY was established by the Security Council for a specific purpose, and the prosecution is one of the instruments for achieving that purpose. The independence of the ICTY prosecutor is thus relative, and the Security Council has power to control it. The subject of Part 5 (articles 53 to 61) is investigation and prosecution. The trial comes within the scope of Part 6 (articles 62 to 76). Trials in absentia are excluded. Article 63(1) requires that the accused be present during the trial. Part 7 (articles 77 to 80) addresses penalties. The normal maximum penalty is imprisonment for 30 years but a term of life imprisonment may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person (article 77). Appeal and revision of the sentence are governed by Part 8 (arts. 81 to 85). International co-operation and judicial assistance are the matter of Part 9 (articles 86 to 102). This relates to the duties of States parties, but by article 87(5) the Court may invite any State not a party to the Statute to provide assistance under Part 9 based on an ad hoc arrangement, an agreement, or on any other basis. That paragraph goes on to empower the Court to inform the Assembly of States Parties or, where necessary the Security Council, of failure by a nonparty State to co-operate with requests made pursuant to the agreements made. This provision represents a marked extension of the scope of operation of an international treaty, which for non-parties is res inter alios acta. It is therefore a potential source of difficulties. The enforcement of the Court’s judgments and related matters is the substance of Part 10 (articles 103 to 111). Part 11, consisting of article 112 only, establishes the Assembly of

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States Parties. That is the competent political organ for the non-judicial aspects of the Court’s affairs. It corresponds to the General Assembly of the United Nations regarding the non-judicial aspects of the affairs of the International Court of Justice, and the Meeting of States Parties for the International Tribunal for the Law of the Sea. It elects the judges and the prosecutor. Amendments to the Statute are to be adopted either by the Assembly or by a Review Conference. Part 12 (articles 113 to 117) addresses the financing of the Court. The final clauses (articles 119 to 128) form Part 13. III. The Jurisdictional Function of being a Party to the Statute The consequences of a State’s being a party to the Statute after the Statute has entered into force for that State are both institutional and jurisdictional. The institutional functions concern the State’s rights and duties in relation to the Court as an international organ and in relation to the other parties to the Statute. That is not the object here. The jurisdictional consequences affect the jurisdiction of the Court as regards that State in relation to other States whether or not parties to the Convention, and as regards that State’s nationals. It also affects the obligations of that State both to the Court and to the other parties to the Statute. The first element is jurisdiction ratione personae. As stated, this is limited to natural persons over the age of 18 years, and its scope is subject to article 11 ratione temporis. Beyond this, the Statute does not deal directly with jurisdiction ratione personae as an individual matter. It concentrates on obligations of the States concerned in relation to a particular crime and the person suspected as its perpetrator. Thus article 12, entitled ‘Preconditions to the exercise of jurisdiction’, sets out a series of provisions that add up to a statement of the Court’s jurisdiction ratione personae. By para. 1, a State which becomes a party to the Statute ‘thereby’ accepts the Court’s jurisdiction with respect to the crimes referred to in article 5.21 That has to be read with article 13, on the exercise of jurisdiction. The Court may exercise its jurisdiction if (a) a situation in which one or more of such crimes appears to have been referred to the Prosecutor by a State Party in accordance with article 14; (b) a situation in which one or more of such crimes appears to

21

It is to be noted that this automatic assumption of jurisdiction through the act of becoming a party to the Statute is an extension of what has been the practice as regards the International Court of Justice. There, the act of becoming a party to the Statute implies acceptance of the Court’s jurisdiction to render advisory opinions and its so-called incidental jurisdiction, but not its jurisdiction over the merits of a contentious case. This extension is justified in the case of the constituent instrument of a permanent international criminal court. It would be self-defeating were the consent of a State be required for the Court to have jurisdiction in a particular case.

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have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter; or (c) the Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15(1), which authorizes the Prosecutor to initiate investigations proprio motu on the basis of information on crimes within the Court’s jurisdiction. To return to article 12, the Court may exercise jurisdiction in the case of article 13(a) or (c) if one or more of the following States are parties to the Statute or have accepted the Court’s jurisdiction: (a) the State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) the State of which the person accused of the crime is a national. Here the scope of the jurisdiction ratione temporis is limited by the date on which the State concerned became a party to the Statute. Article 12(2) (b) is the only provision in the Statute to mention the nationality of the person accused of a crime. Para. 2(a) opens the possibility that nationals of States that are not parties to the Convention and which therefore have not accepted the Court’s jurisdiction may be the subject of investigation at least, and possibly of prosecution and trial for alleged crimes if the conduct occurred on the territory of a State Party. In the case of nationals of States that are not party to the Statute, jurisdiction ratione personae depends on the locus in quo. If that locus was territory of a State Party, jurisdiction ratione personae exists regardless of the nationality of the person accused, subject to the limitation ratione temporis. There is a temporal question here: does the territory have to be territory of a State party at the time of the Commission of the offence? This provision seems to raise another question which the Statute does not answer clearly. The provisions on complementarity mean that an individual suspected of criminal activities under his or her national law may be tried by the national jurisdictions. Those jurisdictions will apply the regime of the national law. Under the definitions of the crimes in articles 6, 7 and 8, definitions that are specifically limited ‘for the purpose of this Statute’, there are differences (some of them minor, it is true) from the basic definitions contained in the international treaties from which they were taken. One consequence of this could be that an individual suspect will come within the scope of two different regimes, the national and that of the Statute. No doubt the ne bis in idem provision of article 20 is intended to protect an accused person from that. However, the differences introduced in the definitions of the crimes in articles 6, 7 and 8 may leave an opening in which article 20 will not provide protection. The question whether in all cases the accused should be a national of a State Party was considered by the International Law Commission when drafting its proposal for the court, and rejected.22

22

See the Commission’s report in n. 14 above, at p. 42.

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This rejection may not be consistent with the general principle of complementarity which is supposed to lie at the core of the Rome Statute. A decision to prosecute brings into operation Part 9. By article 87(5), the Court may invite any State not a party to the Statute to provide assistance under this part ‘on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis’. No sanction is specifically written into the Statute in the event that a non-party declines any such invitation, but article 112(2)(f ), on the Assembly of States Parties, requires the Assembly ‘to consider, pursuant to article 87, paragraphs 5 and 7, any question relating to non-co-operation’. This is another far-reaching departure from the basic rule of the law of treaties that a treaty does not create either obligations or rights for a third State without its consent. By article 89, the Court may transmit a request for the arrest and surrender23 of a person to any State on the territory of which that person may be found and shall request24 the co-operation of that State in the arrest and surrender of such a person. States parties are obliged to comply with such requests in accordance with their national law and Part 9. By article 34 of the Vienna Convention on the Law of Treaties, no such obligation can be imposed on a State that is not a party to the Statute. Here there may be a difference between cases which the Prosecutor has investigated following a decision by the Security Council acting under Chapter VII of the Charter and other cases. Security Council decisions of that kind may impose obligations on all States members of the United Nations. Those obligations follow directly from the Charter; moreover, by virtue of Article 103 of the Charter, they may have priority over all other treaty obligations. This can lead to an extension of the Court’s jurisdiction ratione personae. In either event, arrest of a person not a national of the arresting State, whether for ‘surrender’ or for ‘extradition’, and certainly for any proceedings before the arresting State’s courts, can bring into operation the rules of diplomatic and consular protection and, if the State of the nationality of the arrested person is a party to the relevant instruments, the Vienna Conventions of 1961 and 1963 on Diplomatic and Consular Relations, and their

23

24

Art. 102 defines ‘surrender’, for the purposes of Part 9, as the ‘delivering up of a person by a State to the Court, pursuant to this Statute’. It distinguishes ‘surrender’ from ‘extradition’ which it defines as meaning the delivering up of a person by one State to another as provided by treaty, convention or national legislation. It is not clear what the word ‘convention’ (Fr. convention) means in this context. Either it is a tautology, or it means custom, but given the French text the tautology is probably the correct meaning here. Cf. on this the report of the International Law Commission on the law of treaties, Commentary on art. 2 of its draft articles of 1966, para. (4), Yearbook of the International Law Commission, 1966, vol. II at 188. The original French text read here peut soliciter. This has been corrected to solicite in the revised text, thus brining it into line with the English version.

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Optional Protocols, respectively, conferring jurisdiction on the International Court of Justice.25 IV. Complementarity An overriding element of the Statute and of the Court’s jurisdiction is the principle of complementarity. This means that the Court is a complement to national criminal judicial systems which therefore have the primary responsibility for trying a case which may come within the Court’s jurisdiction. This is a major difference between the Rome Statute and the Statutes of ICTY and ICTR. Both those Statutes are based on the priority of their jurisdiction over that of national courts, and that gives rise to the procedure of requesting a national court to defer to the international tribunal.26 The tenth paragraph of the preamble and article 1 on the establishment of the Court (see § II above) announce the principle of complementarity in categorical terms. Articles 17 (Issues of admissibility) and 18 (Preliminary rulings regarding admissibility [Décision préliminaire sur la recevabilité]) are the principal sources of the detailed rules for the application of the principle of complementarity, together with article 19 (Challenges to the jurisdiction of the Court or the admissibility of a case) as the machinery of its application. The principle can therefore have a direct impact on the new Court’s jurisdiction, in any sense of the word ‘jurisdiction’. Article 17 indicates where ‘the Court’, that is whatever organ of the Court is competent in the circumstances, shall determine that a case is inadmissible. This is an obligation on the ‘Court’. In the context, it is the anchor for the concept of complementarity in this Statute. Article 17 requires the Court to determine that a case is inadmissible where (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless that State is unwilling or unable genuinely to carry out that investigation or prosecution; (b) the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless

25

26

For those Conventions and Optional Protocols, see 500 UNTS 95 and 223; and 596 ibid. 261 and 487. Four cases have come before the International Court on the basis of those Optional Protocols: the United States Diplomatic Staff in Tehran case (U.S.A. v. Iran) (1980), the Vienna Convention on Consular Relations (Provisional Measures) (Paraguay v. U.S.A.) case, International Court of Justice Reports 1998, 248, subsequently discontinued, the LaGrand (Provisional Measures) (Germany v. U.S.A.) case, ibid. 1999, 9, ibid. 2001 466 and Avena and other Mexican Nationals case, ibid. 2003 77 provisional measures), 2004 12. The last three related to criminal prosecutions of the applicant States’ nationals. ICTY Statute, Art. 9(2); ICTR Statute, Art. XX. For an example of a deferral order, see ICTY Trial Chamber decision of 8 November 1994 in Prosecutor v. TadiÏc, ICTY, Judicial Reports, 1994–1995 (I) 3. That was ICTY’s first decision.

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the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) the person concerned has already been tried for conduct which is the subject of the complaint – the ne bis in idem principle set out more fully in article 20; (d) the case is not of sufficient gravity to justify further action by the Court (this is not directly a matter of complementarity, but reflects the general approach of the Statute, that the Court’s jurisdiction is limited to the most serious crimes of international concern). Given the reference in article 17 to the preamble and article 1, its provisions relate equally to jurisdiction and to admissibility. This provision is certainly obscure, and is a potential source of major conflict with any State seeking itself to exercise jurisdiction and to oust the jurisdiction of the Rome Court. The language used in the provisions is loose and prone to subjective interpretation. This is the kind of provision for which it would be advisable to seek the interpretation of the International Court of Justice, a good reason for enabling the Assembly of States Parties to request advisory opinions. Article 17 goes on to tackle unwillingness. By para. 2, in order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable: (a) the proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5; (b) there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; (c) the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice. Para. 3 deals with the situation of a total or partial collapse of the national judicial system: ‘In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’. Article 17 uses the word ‘State’ without any qualification. It is not therefore limited to States Parties. It may not even be limited to independent States, especially if there is a disturbed and unclear situation resulting from the disintegration of a State. It is by no means clear how the ‘Court’, whatever organ, can determine these things. They are characterized by subjectivities not easily given to judicial identification. For example, what are the ‘principles of due process recognized by international law’? Where are they to be found? Article 10 of the Universal Declaration of Human Rights lays down that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any

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criminal charge against him.27 This is amplified at length in article 14 of the International Covenant on Civil and Political Rights adopted by the General Assembly in resolution 2200 A (XXI), 16 December 1966, which is binding on the parties to it.28 There are fundamental differences between the Anglo-American common law approaches to ‘due process’ and that of the civil law. How can the ‘Court’ reconcile them without further directive in the form of binding rules adopted by the States Parties? Article 18 refers principally to the duties of the prosecutor and an investigation. When the prosecutor has determined that in a situation under article 13(a) or (c) there would be a reasonable basis to commence an investigation or has initiated an investigation, he or she is to notify ‘all States Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned’. The State notified, whether a party or not, may request the prosecutor to defer to that State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the prosecutor, decides to authorize the investigation. In that last circumstance, the State concerned or the prosecutor may appeal the Chamber’s ruling to the Appeals Chamber, according to article 82 of the Statute. A State which has challenged a ruling of the Pre-Trial Chamber under article 18 may also challenge the admissibility of a case under article 19 on the grounds of additional significant facts or significant change of circumstances. There is here an opening for major conflicts between a non-party State and the ‘Court’ over deferral. The effect of articles 17 and 18 is felt throughout the Statute. Article 19(1) requires the Court to satisfy itself that it has jurisdiction in any case brought before it.29 It may of its own motion determine the admissibility of a case in accordance with article 17. Para. 2 indicates who may challenge the jurisdiction or the admissibility: the accused or impugned individual, a State

27 28

29

General Assembly resolution 217 A (III), 10 December 1948. 999 UNTS 171, 1059 UNTS 451, 1131 UNTS 396. The report of the Secretary-General on the basis of which the Security Council adopted the Statute of ICTY makes specific reference to the Convention in para. 101 and elsewhere in dealing the trial itself. For a discussion of the meaning of ‘fair trial’ in the context of the ICTY, see judgment of 15 July 1999 of the Appeals Chamber in Prosecutor v. TadiÏc (Case No. IT-94-1-A), paras. 29–56. The expression that the Court must ‘satisfy itself ’ that it has jurisdiction in any case brought before it requires a positive finding by the competent Chamber that it has jurisdiction in the case. The 1994 draft of the International Law Commission contained, in article 24, a provision along those lines. The Commentary explained that the article ‘is intended to spell out the duty of the court (and of each of its organs, as appropriate) to satisfy itself that it has jurisdiction in a given case’. Yearbook of the International Law Commission, 1994, II/2 at p. 45. The same phrase ‘satisfy itself ’ appears in the Article 53 of the Statute of the International Court of Justice, and has been interpreted in that sense. Cf. Sh. Rosenne, The Law and Practice of the International Court 1920–2005, III, 1351 (2006). No similar provision appears in the Statutes of the ad hoc Tribunals.

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which has jurisdiction over a case or a State from which acceptance of jurisdiction is required under article 12. On the other hand, the State of which the accused is a national is per se not given this right. Para. 8 permits the prosecutor, pending a ruling by the Court, to seek authority from the Court to pursue necessary investigative steps of the kind to which article 18(6) refers. Article 19(10) allows the prosecutor to submit a request for review of a decision that a case is inadmissible under article 17 on the basis of new facts which negate the basis on which the case had previously been found inadmissible under article 17. By para. 11, if the prosecutor, having considered the matters to which article 17 refers, defers an investigation, he or she may nevertheless request the relevant State to make available to the prosecutor information on the proceedings. By article 53, on the initiation of an investigation, one of the prosecutor’s duties in the initial phase is to consider whether the case is or would be admissible under article 17. If the prosecutor decides that the case is inadmissible, he or she is to inform the Pre-Trial Chamber, the State making the referral or the Security Council of the conclusion and the reasons for it. Again there is no mention of the State of the nationality of the suspected person. By article 57(2) (a), on the functions and powers of the Pre-Trial Chamber, the Chamber’s orders and rulings (décisions) issued under article 18 require the concurrence of the majority of its judges. Article 82 permits either party to appeal a decision with respect to jurisdiction or admissibility, in accordance with the Rules of Procedure and Evidence. These Rules were adopted in September 2002.30 They may come to have some effect on the general question of jurisdiction and admissibility. Article 90, on competing requests for the surrender of a person, distinguishes between the obligations of a State Party and those of another State. Where the requesting State is a party, the requested State is obliged to give priority to a request from the Court if the Court has, pursuant to articles 18 and 19, made a determination that the case in respect of which the surrender is sought is admissible and that determination takes into account the investigation or prosecution conducted by the requesting State in respect of its request for extradition. Having regard for the general law of treaties, a requested State that is not a party cannot be obliged to conform to that disposition. By para. 4, if the requesting State is not a party, the requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give priority to the request for surrender from the Court if the Court has determined that the case is admissible. Here again, if the requested State is not a party, it is difficult to see how it can be obliged to surrender the person concerned to the Court.31 30 31

See article 51 on the Rules of Procedure and Evidence. Article 83 governs proceedings on appeal. Further at note 42 below. Another problem will arise if the requested State is not a party. Article 88 of the Statute requires States Parties to ensure that there are procedures available under their national law

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Article 99 deals with the execution of requests for different forms of cooperation with the Court. By para. 4:32 Without prejudice to other articles in this Part, where it is necessary for the successful execution of a request which can be executed without any compulsory measures, including specifically the interview of or taking evidence from a person on a voluntary basis, including doing so without the presence of the authorities of the requested State Party if it is essential for the request to be executed, and the examination without modification of a public site or other public place, the Prosecutor may execute such request directly on the territory of a State as follows:

Sans préjudice des autres articles du présent chapitre, lorsque cela est nécessaire pour exécuter efficacement une demande à laquelle il peut être donné suite sans recourir à des mesures de contrainte, notamment lorsqu’il s’agit d’entendre ou de faire déposer une personne agissant de son plein gré, y compris hors de la présence des autorités de l’État partie requis quand cela est déterminant pour la bonne exécution de la demande, ou lorsqu’il s’agit d’inspecter un site public or un autre lieu public sans le modifier, le Procureur peut réaliser l’objet de la demande directement sur le territoire de l’État, selon les modalités suivantes:

(a) When the State Party requested is a State on the territory of which the crime is alleged to have been committed, and there has been a determination of admissibility pursuant to article 18 or 19, the Prosecutor may directly execute such request following all possible consultations with the requested State Party[.]

(a) Lorsque l’État requis est l’État sur le territoire duquel il est allégué que le crime a été commis et qu’il y a eu une décision sur la recevabilité comme prévu aux articles 18 ou 19, le Procureur peut exécuter directement la demande, après avoir mené avec l’État requis des consultations aussi étendues que possible[.]

V. Jurisdiction Ratione Materiae As indicated, the principal source of jurisdiction ratione materiae is article 5:33 Articles 6, 7 and 8 follow. These successively enumerate actions and behaviour which, for the purpose of this Statute, would constitute ‘genocide’, ‘crimes

32 33

for all forms of co-operation which are specified under Part 9. There is no such obligation for non-Parties. States that are not parties to the Statute are unlikely to have national provisions for the surrender of persons to the Court, as distinct from their national provisions for extradition in the usual sense of the word. For definitions of ‘surrender’ and ‘extradition’ for the purposes of the Statute, see note 23 above. The complicated structure of this provision requires the text to be given here in English and French. Article 5 (Crimes within the jurisdiction of the Court) reads: 1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d ) The

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against humanity’, and ‘war crimes’. Articles 5 to 8 give effect to the principle nullum crimen sine lege. The Statute adopts different techniques when it comes to spell out the particulars of these different criminal activities. The first technique, employed for genocide in article 6 and for crimes against humanity in article 7, is for the Statute to set out its own definition of the crime. The definition of genocide in article 6 follows article II of the Genocide Convention of 194834 but the Statute makes no cross-reference to that Convention. In that Convention article III goes on to make conspiracy, incitement, attempt and complicity in relation to genocide also punishable under that Convention. The Statute, however, treats these ancillary crimes differently. Article 25 (in Part 3), on individual criminal responsibility, brings in criminal liability for those aspects of criminal behaviour. Para. 2 (e) deals specifically with incitement to commit genocide, but the other ancillary aspects of the core crime are swallowed in the more general provisions of that article.35 Article 4 of the ICTY Statute and article 2 of the ICTR Statute follow more closely than the Rome Statute the structure of the Genocide Convention, by including as punishable under the rubric of genocide the ancillary offences of conspiracy to commit, incitement to commit, attempt to commit and complicity in genocide alongside genocide itself.36 Although those two Statutes do not mention the Genocide Convention, the ICTR, in the two judgments it has already given, refers to the Convention and to the standard literature about it.37

34 35

36

37

crime of aggression. 2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations. 78 UNTS 277. It should be noted that the International Court of Justice placed together in a single sentence arts. II and III of the Convention. Application of the Genocide Convention (Preliminary Objections) (Bosnia & Herzegovina v. Yugoslavia) case, ICJ Rep. 1996–II 595, 615 (para. 31). The handling of genocide in the Rome Statute blurs the particular heinousness not only of the crime of genocide, but also of its ancillary crimes. They should be in a category of their own. In the preparatory work for the Rome Conference, much thought was devoted to the question of the placement of the ‘ancillary’ crimes set out in article III of the Genocide Convention. See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, United Nations, General Assembly, Official Records, 50th session, Supplement 22 (A/50/22) paras. 59 to 62; Report of the Preparatory Committee on the Establishment of an International Criminal Court, ibid. 1st session, Supplement 22 (A/51/22), vol. I, paras. 58 to 64 and vol. II at p. 57; Report of the Preparatory Committee, doc A/CONF.183/2/Add.1. The question whether to include article III of the Convention in the definition of the crime of genocide in the Statute was related to the question of whether to include in the appropriate general part of the Statute provisions on ‘ancillary crimes’ related to the ‘core crimes’. The Rome Conference decided on the latter solution. The cases are: Prosecutor v. Akayesu, Judgment of 2 September 1998 , visited 15 September 1998 (the accused pleaded not guilty);

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Article 7 gives the meaning of crimes against humanity. The enumerated acts must have been committed ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. This is a wider, but probably more accurate exposition of what is really involved in this crime. That introductory phrase introduces a specific element of mens rea, something that may only have been implicit in the previous Statutes, and may be difficult to establish in the case of individuals. The Trial Chamber of ICTY has given an important interpretation of the word ‘any’: The inclusion of the word “any” makes it clear that crimes against humanity can be committed against civilians of the same nationality as the perpetrator or those who are stateless, as well as those of a different nationality.38

The function of this crime is to bring within the scope of international criminal law acts committed by a government against its own citizens. That was its purpose in the Nürnberg Tribunal. There, however, owing to a mistake or carelessness in the drafting of the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis of 8 August 1945,39 the crime became limited ratione temporis to acts of that nature committed during the Second World War. Article 7 is the first treaty text to state what are crimes against humanity. It to some extent follows the definition contained in article 5 of the ICTY Statute and article 3 of the ICTR Statute, and the Draft Code of Crimes against the Peace and Security of Mankind of the International Law Commission40 closely influenced those enumerations. Article 7 also includes acts such as enslavement, torture, and the crime of apartheid, all criminalized by international law elsewhere.41 All three Statutes (Rome Statute, article 7(1) (k))

38 39 40

41

Prosecutor v. Kambanda, Judgment of 4 September 1998 , visited 15 September 1998 (the accused pleaded guilty). These cases are excerpted in 37 ILM 1319 and 1411 (1998) respectively, and on the Akayesu case, see 93 AJIL 195 (1999). Prosecutor v. TadiÏc (1997), Case No. IT-94-1-T, 112 ILR 1, 210 (para. 635). 82 UNTS 279. The Draft Code, which has been under consideration virtually throughout the existence of the International Law Commission, was finally adopted in 1996. Report of the International Law Commission on the work of is 48th session, 6 May–26 July 1996, ch. II. GAOR, 51st session, Supplement 10 (A/51/10). The General Assembly in resolution 51/160, 16 December 1996, referred it to the Preparatory Committee of the ICC. See Essay 20 at note 52 below. Different tribunals, including ICTY, are showing an inclination to rely on it when dealing with crimes against humanity. Likewise the House of Lords in its judgment of 24 March 1999 in the Pinochet case (R. v. Bartle and the Commissioner of Police for the Metropolis and others Ex parte Pinochet), 1999 Weekly L.R. 827. A curious omission from the jurisdiction of the International Criminal Court is ‘piracy’, once regarded as the international crime par excellence. Cf. article 105 of the UN Convention on the Law of the Sea of 1982.

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contain a wide ejusdem generis residual provision for other inhumane acts of similar character. Here too none of the Statutes contains a cross-reference to any other treaty. The Statute adopts a different approach for war crimes in article 8. Unlike the other crimes, war crimes are well known in international law and alongside relevant treaty definitions there is a large quantity of national and international jurisprudence about these crimes. There is a question how far the Rome Conference has gone in interfering with all those precedents. Article 8, para. 1 introduces a major limitation on the Court’s jurisdiction: ‘The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’. This affects the issue of mens rea. It goes far beyond the designation of ‘grave breaches’ in the Geneva Conventions of 1949 and the Additional Protocols of 1977.42 After a general provision in para. 2(a) covering grave breaches of the Geneva Conventions, namely specific acts against protected persons or property under the relevant Convention, it goes on to deal separately with the laws and customs applicable in international armed conflict (article 8(2)(b)) and armed conflict not of an international character (paras. 2(c) to (e)). This enumeration contains several far-reaching innovations in comparison with the Geneva Conventions, and this, in the context of the complementary character of the jurisdiction of the Rome Court, may seriously complicate its subject-matter jurisdiction and be a cause of conflict. The enumeration excludes situations of internal disturbances and tensions – doubtless also a fecund source of controversy should occasion arise. There is no clear reason why there should be this major difference in the jurisdiction of the national courts and that of the international court on so fundamental an issue as the trial and punishment of persons charged with war crimes. The Rome Conference probably exceeded its mandate in making those changes. One result of this is, as stated, major obscurity over the regime to which any individual is subject at a given moment, and the possibility of major discrepancies between the national jurisdiction which has initial priority, and the international jurisdiction. In the enumeration there is specific mention of the Geneva Conventions of 1949 for the Protection of War Victims, but not of any other instrument.43 All three Statutes mention those Geneva Conventions, but they do so in different ways, reflecting the different functions of each Tribunal. Article

42

43

75 UNTS 5 (Final Act), 31, 85, 135, 287; 1125 ibid. 3, 609. This is noted by Th. Meron, War Crimes Law Comes of Age 307 (1998). For a detailed account of the sources and relevant case law regarding war crimes set out in article 8, prepared by the International Committee of the Red Cross, see doc. PCNICC/1999/WGEC/INF 2 and Add. 1, 2. In many countries the Conventions, duly ratified, may be part of the law of the land. Crossreferencing to other treaties can be a source of difficulty in the application of one or other of the two instruments, in cases where a State is party to only one of them.

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8(2)(a) of the Rome Statute includes as war crimes grave breaches of the Geneva Conventions, namely ‘any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention’. With some changes of order and of wording, this list follows closely a working paper submitted to the December 1997 session of the Preparatory Committee for the International Criminal Court by the International Committee of the Red Cross.44 Article 8(2) (b) continues with a list of 26 other serious violations of the laws and customs applicable in international armed conflicts, ‘within the established framework of international law’. Space does not permit the necessary detailed examination of these lists of war crimes and their comparison with the corresponding provisions of other relevant international treaties including the Additional Protocols of 1977. However, the Rome Conference did introduce formulations of its own for some of these crimes, without full consideration in the Committee of the Whole or in the Drafting Committee (or both) as required by the Rules of Procedure of the Conference.45 Another provision, which may have an impact on the material jurisdiction of the Court and offset requirements of mens rea, appears in para. 3: ‘Nothing in paragraphs 2 (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.’ Article 8(2) (c), (d ), (e) and ( f ) deal with armed conflict not of an international character. Here there is a distinction between ‘serious violations of article 3 common to the four Geneva Conventions of 1949’ as set out in subpara. (c), and ‘other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law’, the object of subpara. (e). With what is probably a marked increase in the scope of international humanitarian law in such cases, subpara. ( f ) specifically applies to ‘armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups’. However, what ‘protracted armed conflict between governmental authorities and organized armed groups or between such groups’ means, and whether it is really something for a court of law to pronounce upon, is another matter. By article 124, as a transitional provision a State on becoming a party to the Statute may declare that, for a period of seven years after the entry into

44

45

This document does not appear among the relevant series of numbered documents. The reports of the Preparatory Committee present the different proposals without attribution of authorship. The text was furnished to me by the International Committee of the Red Cross. For the Rules of Procedure see doc. A/CONF.183/6, 23 June 1998. The significance and intent of the phrase ‘within the established framework of international law’ [dans le cadre établi du droit international] in this context is far from clear.

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force of the Statute for that State, it does not accept the jurisdiction with respect to the ‘category of crimes’ referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. This is the only provision in the Statute to accept that the national State of the accused may have a say in whether the Rome Court is to exercise jurisdiction over one of its nationals, and then only if that State is a party to the Statute. A third technique for defining jurisdiction ratione materiae has been to leave the matter open and charge other bodies with filling the gap. The treatment of the crime of aggression affords one example of this (see note 19 above). Terrorism and drug trafficking are other examples. Annex I, resolution E, of the Final Act recognizes that ‘terrorist acts, by whomever and wherever perpetrated and whatever their forms, methods or motives, are serious crimes of concern to the international community’. It also recognizes that the ‘international trafficking of illicit drugs is a very serious crime, sometimes destabilizing the political and social and economic order in States’. However, there was no agreement in the Rome Conference on a generally acceptable definition of those crimes. The Conference accordingly decided that a Review Conference pursuant to article 123 of the Statute should ‘consider the crimes of terrorism and drug trafficking with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court’.46 This is another example of anticipatory amendment of the Statute, raising the same problems as have been mentioned earlier. In addition, all the crimes, and hence the jurisdiction of the Court, are affected by what are called ‘Elements of Crimes’.47 Here there was a major discrepancy between article 9 and article 21, certainly due to the unsatisfactory organization of the Rome Conference. Article 9 states that Elements of Crimes shall assist the Court [Les éléments des crimes aident la Cour] in the interpretation and application of arts. 6, 7 and 8. Article 21 on the applicable law (but not the French text as originally circulated) states that the Court shall apply in the first place this Statute, Elements of Crimes and its Rules

46

47

The Secretary-General is required by article 123 to convene the Review Conference seven years after the Statute’s entry into force ‘to consider any amendments to this Statute. Such review may include, but is not limited to, the list of crimes contained in article 5’. The failure of the Rome Conference to agree on a definition of drug trafficking as a crime within the jurisdiction of the Court is ironic. It was General Assembly resolution 44/39, 4 December 1989, dealing with drug trafficking that initiated the renewed consideration by the International Law Commission of the topic of the International Criminal Court. That resolution is even recited in para. 3 of the Final Act. PrepCom had to prepare the Elements of Crimes together with the Rules of Evidence and Procedure by 30 June 2000. They entered into force on adoption by a two-thirds majority of the members of the Assembly of States Parties. This language, which follows Article 108 of the Charter of the United Nations, means a two-thirds majority of all the States Parties, whether or not present and voting at the meeting when the vote is taken. The French text was later corrected.

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of Procedure and Evidence. It is quite clear from the proceedings of PrepCom that the Elements of Crimes will come to have a major impact on the Court’s jurisdiction, but what that will be cannot be said at this stage.48 VI. Jurisdiction to Arrest Different formulations apply to jurisdiction to detain and arrest. That derives from actions of the prosecutor. Article 13 lays down the general rule for the initiation of a criminal process in the Court. The Court may exercise its jurisdiction in three different situations: (a) where a referral to the prosecutor is made by a State Party in accordance with article 14; (b) where the referral is made by the Security Council acting under Chapter VII of Charter; and (c) where the prosecutor has initiated an investigation under article 15 acting proprio motu. By article 14, a State party [Tout État Partie] may refer to the prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed, requesting the prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. Article 15 gives the prosecutor wide powers of investigation, being empowered to seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other ‘reliable’ sources, and may receive written or oral testimony. That is the preliminary. If the prosecutor concludes that there is a reasonable basis to proceed with an investigation, the next step is to refer the matter to the Pre-Trial Chamber. The main functions of the Pre-Trial Chamber are set out in article 57. By article 58, the Pre-Trial Chamber issues the warrant of arrest or summons to appear, and by article 58(5), on the basis of a warrant of arrest the Court may request the provisional arrest or the arrest and surrender of the person under Part 9 of the Statute. This is nevertheless subject to articles 17 and 18, on preliminary issues of admissibility. It is here that there is a difference between the States parties and other States. By article 86, States parties are obliged to co-operate fully with the Court in its investigation and prosecution of crimes within the Court’s jurisdiction. By article 88, they are obliged to ensure that there are procedures available under their national law for all forms of co-operation specified under Part 9. By article 89, the Court may transmit a request for the arrest and surrender of a person ‘to any State on the territory of which that person may be found’. States parties are obliged to comply with such requests ‘in accordance with the provisions of this Part [9] and the procedure under their

48

See doc. PCNICC/1999/L.3/Rev.1, 2 March 1999, Annex III. At the very least they will affect the element of mens rea required for each individual crime.

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national law’. Under the general law of treaties, States that are not parties to the Statute are under no obligation in this respect, unless they have committed themselves aliunde according to article 87(5). This leads to provisional arrest, the subject of article 92. In urgent cases, ‘the Court may request the provisional arrest of the person sought’, pending presentation of the formal request for surrender and the supporting documents. States parties are obliged to comply with any request of this nature. No such obligation can arise for a State that is not a party. VII. Some Conclusions on Jurisdiction In the first place, the Court will only have jurisdiction over natural persons over the age of 18 years. That jurisdiction ratione personae has no necessary connection with the person’s nationality. The scope of that jurisdiction ratione temporis depends on the relationship between the date or place of the conduct alleged to be criminal and the entry into force of the Statute.49 Only acts committed after the entry into force of the Statute are justiciable by this Court (giving effect to the principle nullum crimen sine lege). Subject to that, jurisdiction ratione personae exists with regard to the perpetrator of any act classified by the Statute as a serious crime of international concern, coming within the scope of article 5 of the Statute. Here the emphasis is on the perpetrator of the act. Ratione materiae, and subject to the principle of complementarity, the impugned act must come within the scope of article 5, together with the particularization of criminal conduct set out in articles 6, 7 and 8. The required mens rea is indicated in the introductory words or the introductory paragraph of each of articles 5, 6, 7 and 8. The Court must establish that the case is not inadmissible, a negative proposition. Put in positive terms, the Court – in this respect it is the PreTrial Chamber – has to establish, by a majority (and subject to appeal), that the case is admissible. Here the Rules of Procedure and Evidence will play a major role for what in effect may well become a preliminary mini-trial, presumably without the presence of the suspected person in contradiction to the general rule against trials in absentia. Given the language of the relevant provisions, this means in effect that at

49

The ‘entry into force’ of a multilateral treaty is a complicated matter. There is a distinction between its entry into force generally, and its entry into force for a particular State. See on this the resolution on the intertemporal problem in public international law adopted by the Institute of International Law at its Wiesbaden session in 1975. 56 Annuaire de l’ Institut de Droit international, 536 (1975); reproduced in Institut de Droit international, Tableau des Résolutions adoptées (1957–1991) at 110 (1992). Further in Sh. Rosenne, Developments in the Law of Treaties 1945–1986 76 (1989).

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present the jurisdiction of the International Criminal Court is limited to the most serious crimes of international concern committed during armed conflict whether international or not or, in the case of crimes against humanity, ‘systematic attack’. It does not extend beyond that. Having regard for the requirements for admissibility in most instances, probably the most important feature of the Rome Statute is the possibility it opens for the Security Council acting under Chapter VII of the Charter to initiate international criminal proceedings by referring a case to the prosecutor (article 13 (b)). The standing Court will take the place of ad hoc Tribunals, which always are a source of political and intellectual difficulty. When the Security Council acting under Chapter VII initiates proceedings before the International Criminal Court, for all members of the United Nations differences between the obligations of States parties to the Statute and other States lose their significance, since Article 25 of the Charter will be the governing provision. The two ad hoc criminal tribunals established by the Security Council under Chapter VII during the 1990s have not exhausted the types of situation in which serious crimes of international concern have been alleged.

20 ANTECEDENTS OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT REVISITED

On 17 July 1998 the United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the Rome Statute of the International Criminal Court (hereafter: Rome Statute or Statute).1 This was the culmination of the hopes and dreams of many generations of international lawyers and others who aimed at seeing international law placed on a sounder basis than the voluntarist conceptions so characteristic of it. One hundred and sixty States took part in the Conference, held in Rome between 16 June and 17 July 1998. Thirty-one official organizations and other entities were represented at the Conference by observers. In addition, observers from 134 Non-governmental Organizations participated. The Conference adopted the Rome Statute on a non-recorded vote of 120 in favour, seven against, and 21 abstentions, the remaining States not taking part in the vote. The purpose of this article is to retrace briefly the developments that have led to the Rome Statute, together with some afterthoughts. I. In the beginning (1872–1914) It is common knowledge that in the Middle Ages, knights could be ‘tried’ by their peers of another people or another fiefdom for violation of the accepted canons of knightly behaviour or for allowing particularly vicious acts to be performed by soldiers under their authority. A well-known example of this is the so-called Breisach trial of 1447.2 These however were hardly 1

2

2173 UNTS 3. For an explanation of the process that led to the final adoption of the Statute, see the Comment of Philippe Kirsch, Chairman of the Committee of the Whole at the Rome Conference and President of the ICC, in American Society of International Law, NEWSLETTER, November-December 1998 at p. 1, and his The Rome Conference on an International Criminal Court: The Negotiating Process, 93 AJIL 2 (1999). Cf. L.C. Green, Law of War in Historical Perspective, International Law Studies vol. 72, The Law of Military Operations: Liber Amicorum Professor Jack Grunawalt 39, 48; Howard S. Levie, War Crimes, ibid. 95. And see G. Schwarzenberger, International Law (The Law of Armed Conflict) 462 (1968); J.H.W. Verzijl, International Law in Historical Perspective vol. I 407 (1968); Th. Meron, Henry’s Wars and Shakespeare’s Laws of War in the Later Middle Ages 12, 167 (1993).

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war crimes trials as we understand them today. Rather they were knightly courts of honour deciding on violations, direct or indirect, of knightly codes. Another attempt at quasi-criminal international proceedings encountered during the mid-nineteenth century should be noted. As part of its campaign against the Slave Trade, Great Britain concluded a series of bilateral agreements. These allowed duly commissioned ships of the Royal Navy to visit and search on the high seas flag vessels of the other State, and bring vessels suspected of engaging in illegal slave trade operations into port. Here they would be brought before a mixed commission for adjudication. The mixed commission would decide, without appeal, whether or not a vessel brought before it were a slave ship trading illicitly and legally captured, and would accordingly either condemn it as lawful prize and liberate the slaves it carried, or acquit it and restore both the vessel and the slaves to their owners. These mixed commissions had no jurisdiction over the owners, masters or crews of the condemned vessels. Individuals were to be handed over to their own authorities for trial and punishment in their own courts and according to their own laws. Mixed commissions of this kind sat to the east along the coast from the Cape of Good Hope to the Cape Verde Islands, and in the west from Rio de Janeiro to New York, with the court at Freetown, Sierra Leone, being the most important. It is estimated that over 600 slave vessels were condemned by these commissions, and that some 80,000 slaves were liberated by them. They functioned between 1819 and 1871.3 Credit for the first attempt in modern times to develop a system of an international criminal tribunal goes to Gustave Moynier, of Switzerland. Moynier, together with Henry Dunant, was one of the founders of the International Red Cross, through the Geneva Red Cross Conference of 1863,4 followed by the first Geneva Conference of 1864. That Conference adopted the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864.5 Dismayed at the failure of the belligerents in the Franco-Prussian War of 1870–1871 to observe faithfully the

3

4

5

I am grateful to Mr Ch. Keith Hall for bringing this to my attention. And see L. Bethell, ‘The Mixed Commissions for the Suppression of the Transatlantic Slave Trade in the Nineteenth Century’, Journal of African History, vol. VII 79 (1960). For an example of this type of treaty and the detailed regulations for a mixed commission, see H. La Fontaine, Pasicrisie internationale 1794–1900, Histoire documentaire des arbitrages internationaux 84 (reprint, 1997, with preface by Pierre Michel Eisemann). See Compte rendu de la Conférence internationale réunie à Genève les 26, 27, 28 et 29 Octobre 1853 pour étudier les moyens de pourvoi à l’insuffisance du service sanitaire dans les armées en campagne (2nd edn, 1904). 129 Consolidated Treaty Series (hereafter: CTS) 361; reproduced in D. Schindler and J. Toman, The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (hereafter: Schindler and Toman) 365 (2004), supplemented by the Additional Articles extending the Provisions of the Convention of August 22, 1864, to Naval Warfare, of 20 October

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provisions of the Geneva Convention in its first real test, Moynier conceived the idea of an established standing international machinery to make it possible to try individuals who allegedly violated the provisions of the Convention.6 He was able to persuade his colleagues of what became known as the International Committee of the Red Cross to circulate his proposal to the national committees, for consideration at a future Red Cross Conference.7 The gist of Moynier’s proposal was that as soon as war had been declared, the President of the Swiss Confederation was to choose by lot three Powers party to the Geneva Convention, excluding belligerents. The three governments, together with those of the belligerents, were to be invited to nominate an ‘adjudicator’ [arbitre]. Those five persons would constitute a tribunal. That tribunal, however, would only deal with breaches of the Convention that had been the subject of complaints addressed to it by interested governments. The tribunal was to subject the facts to an adversarial inquiry and then present its decision, for each individual case, as a verdict of guilty or not guilty. If guilt was established, the tribunal was to pronounce a penalty, in accordance with provisions of international law. The latter were to be the ‘subject of a treaty which is complementary’ to the proposed convention on the international judicial body. The tribunal was to notify its judgments to interested governments. These, for their part, were to impose on those found guilty the penalties that had been pronounced against them. Another interesting provision was to the effect that where a complaint was accompanied by a request for damages and interest, the tribunal would be competent to rule on that claim and to fix the amount of the compensation. ‘The government of the offender will be responsible for implementing the decision.’ In this scheme, what was permanent was not the tribunal itself, but the mechanism for the establishment of a tribunal in time of war.

6

7

1868 (never in force), 138 CTS 189; Schindler and Toman 369. Replaced by Hague Convention No. III of 1899, 187 CTS 443; Schindler and Toman at 373. See on this P. Boissier, Histoire du Comité Internationale de la Croix Rouge, de Solférino à Tsouhima 395 (1978); Ch. Keith Hall, ‘The First Proposal for a Permanent International Criminal Court’, 38 International Review of the Red Cross 57 (1998). An English translation of Moynier’s proposal appears at p. 72. Curiously, this initiative is not mentioned in the Historical Survey of the Question of International Criminal Jurisdiction, Memorandum submitted [to the International Law Commission] by the Secretary-General (hereafter: Historical Survey), doc. A/CN.4/7/Rev.1 (Sales No. 1948. V.8) (1949). Circular of 28 January 1872, reproduced in Bulletin international des Sociétés de secours aux militaires blessés publié par le Comité International de la Croix Rouge, No. 11, p. 121 (1872). This circular was signed by General Dufour in Moynier’s absence. The ICRC took that initiative very seriously. A note in the ICRC Archives shows that, with regard to another idea of Moynier’s, the Committee approved it but decided not to insert a reference to it in the upcoming issue of the Bulletin, for fear that it would divert attention from the proposal for the establishment of an international criminal jurisdiction. Email Hans-Peter Gasser to the author, 11 January 1999.

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This proposal did not receive a warm welcome. A longish note by Moynier’s friend and colleague, the Belgian jurist G. Rolin-Jaequemyns, gives the text of replies received from several eminent internationalists of that epoch. These included F. Lieber of the United States of America,8 A. Morin of France, F. de Holtzendorff of Germany, John Westlake of Great Britain, and the Asamblea española de la Asociacion internacional para el secorso de los heridos en campaña of Madrid – apparently the only national society to reply to the circular.9 Moynier’s proposal attacked several of the central problems that the idea of a permanent international criminal court raises. Among these are the selection of the judges, the law to be applied, jurisdiction both ratione personae and ratione materiae and its scope ratione temporis, the enforcement of the decision, and the relation between the criminal responsibility of an individual even though the agent of the State and the international responsibility of the State itself (an aspect now regulated by article 3 of the Hague Convention No. IV of 1907 with respect to the laws and customs of war on land).10 The proposal bears traces showing that it could have been inspired by a combination of factors. These include the general attack on international law as ‘law’ without regular enforcement machinery through standing courts; the influence of the Alabama arbitration taking place in Moynier’s home town and the seat of the Red Cross, Geneva; dismay in Red Cross circles at the relative weakness of the Geneva Convention brought out during the Franco-Prussian war; and perhaps to some extent the experience of the Central Commission of the Rhine that was exercising some civil and criminal jurisdiction, even if of limited and localized scope. However, the proposal was ahead of its time. No international experience had been acquired of any permanent international judicial instance of universal competence. The absence of an agreed international code on the law of war and on the conduct of warfare, and saying what acts, when committed by an individual, could be considered criminal, detracted from the feasibility of any kind of international criminal tribunal at that period. Furthermore,

8

9

10

Letter of 10 April 1872. The English original of this letter has not been found. The French translation given in the article by Rolin-Jaecquemyns (see next note) is reproduced in the Appendix to this article. Many of Lieber’s remarks presage the position adopted by the American delegation regarding the Rome Statute in 1998. For the American position on the Rome Statute, see the statement of Ambassador D. Scheffer at the 9th meeting of the Sixth Committee in the 53rd session of the General Assembly on 21 October 1998, as summarized in Press Release GA/3077, p. 7; and his The United States and the International Criminal Court, 93 AJIL 12 (1999). G. Rolin-Jaequemyns, ‘Note sur le projet de M. Moynier, relatif à l’établissement d’une institution judiciaire internationale, protectrice de la Convention [de Genève]’, 4 Revue de Droit international et de Législation comparée 325 (1872). 203 CTS 227; Schindler and Toman 55.

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the concept of extradition formalized in national legislation and in international treaties was relatively undeveloped and there was – and still is – wellmarked reticence on the part of many influential States to allow the extradition of their nationals, save perhaps in the most exceptional circumstances. The existence of factors such as these was not propitious for the fundamental innovation in international law and practice that the creation of an international judicial instance exercising jurisdiction over an individual acting as agent of the State would entail, even on so limited a scale as Moynier envisaged. In this connection, it is interesting to observe that after the failure of Moynier’s initiative in 1872, the International Committee of the Red Cross did not return to the idea of establishing an international criminal court to try individuals accused of violations of the Geneva Conventions. Instead, it focussed its attention more on securing national legislation criminalizing individuals for such violations. The issue of an international penal jurisdiction does not seem to have been raised in the Geneva Red Cross Conferences of 1929, 1949 and 1974–1977. The most is that in connection with the 1949 Conference the International Committee suggested including in all the Conventions to be adopted at that Conference a provision regarding grave breaches. According to that suggestion, grave breaches were to be punished as crimes against the law of nations by the tribunals of any of the parties to the Convention ‘or by any international jurisdiction’. This proposal, however, was not pursued.11 Nevertheless, Moynier’s initiative was not without practical consequences. His reference to international law that was to be made was followed by a rapid spurt in the development of the jus in bello, the law governing the conduct of warfare. That was prompted, of course, by a combination of many diverse attributes. These included, alongside the intellectual and humanitarian

11

ICRC, Revised and New Draft Conventions for the Protection of War Victims: Remarks and Proposals submitted by the International Committee of the Red Cross, article 40 (1949). H-P. Gasser to the author, 16 November 1998. Common article 49/50/129/148, dealing with penal sanctions in general, obliges a party to bring persons accused of grave breaches before its own courts or, if it prefers, and in accordance with the provisions of its own legislation, to hand such persons over for trial to another party concerned. As far as is known, there has been no experience of that provision in practice. At the Rome Conference, the ICRC changed its position and strongly supported the establishment of the International Criminal Court. See the statements of the President of the ICRC, C. Sommaruga and of its chief Legal Adviser, Y. Sandoz in the 4th (para. 68) and 9th (para. 113) plenary meetings, Official Records of the Conference, vol. II. It also submitted important comments on the jurisdiction of the Court. See docs. A/CONF.183/INF/9, INF/10 and INF/11 (submitted through the delegation of New Zealand). A check of the records of the Hague Conferences of 1899 and 1907 likewise discloses that the idea of an international criminal jurisdiction was not raised on either occasion, when those Conferences were discussing rules for the conduct of warfare. The position of the Institute of International Law was similar. Cf. its resolution of 1895 on penal sanction for breaches of the Geneva Convention, op. cit. in the next note at p. 69.

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activism, rapid technological advances in that period, both generally and in the weapons of war. This development ran on two-parallel and interactive lines. One was a series of intergovernmental treaty-making conferences – at Brussels (1874), The Hague (1899, 1907) and London (1908–1909). The second – activity de lege ferenda on a grand scale by the Institute of International Law (of which Moynier was one of the founders), leading to a series of resolutions on different aspects. The most important of these were the Oxford Manual on the laws of war on land of 1880 and a parallel Manual on the laws of naval war governing the relations between belligerents, also adopted at Oxford (1913).12 Many prominent international lawyers and diplomats were active on both those tracks. At the same time, individual scholars were beginning to look into the question.13 The law embodied in the Geneva Conventions, from 1864 up to and including the Additional Protocols of 1977, used to be termed ‘Geneva law’, and the succession of treaties, declarations and other instruments governing the conduct of warfare was designated as ‘Hague law’. Geneva law was concerned with individuals, victims of war (military and civilian) and with the perpetrators of violations of the laws and customs established for the protection of the victims of war, whether military or civilian personnel. Hague law dealt with the rights and duties of States in their conduct of warfare. Breach of the applicable treaties could lead to a case of State responsibility. The black-letter texts were at this stage couched in the language of rights and duties of States as the subjects of international law. They paid little attention to the actions of individuals, whether individuals in a position of command and authority, or subordinates. They show little signs of recognition of the importance and relevance of military hierarchy. Both sets of treaties and the law that they enunciate have become heavily encrusted with rules and practices of customary international law generated by the black-letter texts. These largely place responsibility for the application of the rules of law on individuals (especially members of the armed forces) as the instrumentalities through which States act or even when an individual is acting sua sponte and not under orders. In addition, the development of the concept of human rights on a universal scale embodied in the Charter of the U.N. and amplified in the Universal Declaration of Human Rights and other instruments has had a direct impact on this branch of the law. One consequence has been that the distinction between Geneva law and Hague law has become increasingly artificial, especially when the law envisages individual criminal responsibility for violations.

12 13

Institut de droit international, Tableau général des Résolutions (1873–1956), 180, 231 (H. Wehberg, ed. 1957); Schindler and Toman at 29 and 1123. See B. Ferencz, An International Criminal Court: A Step toward World Peace (hereafter Ferencz), vol. I p. 5 (1980).

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The two branches of the law are now plaited together as international humanitarian law, which nonetheless maintains the distinction between the international responsibility of the State and the criminal responsibility of an individual. It is not clear when the term ‘international humanitarian law’ was first used. The International Court of Justice has endorsed it.14 Established competence ‘in relevant areas of international law such as international humanitarian law’ is one of the qualifications required for judges of the new Court by article 36, paragraph 3(b)(ii), of the Rome Statute. II. Intermezzo: the Peace Treaties and the League of Nations (1919–1939) A major step forward was taken in the Treaty of Versailles of 1919.15 Article 227 envisaged the trial of the Kaiser Wilhelm II by a special tribunal ‘for a supreme offence against international morality and the sanctity of treaties’. The special tribunal was to be composed of five judges, one appointed by each of the Principal Allied and Associated Powers. The tribunal was to be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. It was to fix the punishment which it thought should be imposed. The Allied and Associated Powers ‘will address a request to the Government of the Netherlands [to which the Kaiser had fled on his abdication as Emperor of Germany] for the surrender [not ‘extradition’] to them of the ex-Emperor in order that he may be put on trial’. As is well known, the Dutch Government refused to ‘surrender’ the Kaiser, and the matter of his trial was quietly dropped. The significance of this provision is its recognition – probably the first instance in modern times – that the Head of State can be criminally liable for violations of international law, not limited to international

14

15

Legality of the Threat or Use of Nuclear Weapons, advisory opinion, ICJ Rep. 1996–I, 226, 259 (para. 86). A partial explanation of the term is given in that advisory opinion, at p. 257 (para. 78). According to the Court, there are two cardinal principles in humanitarian law: ‘The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants . . . According to the second principle, it is prohibited to cause unnecessary suffering to combatants’. The term probably originated in the International Committee of the Red Cross through the works of Jean Pictet. See G. Abi-Saab, ‘The Specifities of Humanitarian Law’, Studies and Essays on International Humanitarian Law and Red Cross Principles in honour of Jean Pictet 265 (Ch. Swinarski, ed., 1984). For a recent assertion of the close tie between the Universal Declaration of Human Rights and the international criminal court, see the letter of the President of the International Tribunal for the former Yugoslavia, Judge Gabrielle McDonald, to the personnel of ICTY distributed on the 50th anniversary of the Universal Declaration, obtained from the ICTY website visited 18 January 1999, . 225 CTS 188. And see Department of State, The Treaty of Versailles and after: Annotations of the Text of the Treaty (Publication 2724, Conference Series 92, 1947).

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humanitarian law or what we would today call ‘war crimes’.16 In addition, article 228 provided that the Allied and Associated Powers could bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war. Article 229 provided for the trial of persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers before the military tribunals of that power. All those provisions, however, came up against the obstacle that German law did not permit the extradition of German nationals, and apparently viewed ‘surrender’ as another word for ‘extradition’. Some Germans accused of war crimes were tried by German Courts. However, on the whole, in practice those provisions of the Treaty of Versailles were not satisfactory.17 Their importance is more conceptual. Thus, the modern process had begun. The next step was taken a year later, in 1920. The Committee of Jurists appointed under Article 14 of the Covenant of the League of Nations to prepare the statute of the Permanent Court of International Justice adopted a resolution for the establishment of a High Court of International Justice, to try crimes constituting a breach of international public order or against the universal law of nations, referred to it by the League Assembly or Council. This Court would have the power to define the nature of the crime, to fix the penalty and to decide the appropriate means of carrying out the sentence. This came before the first session of the League Assembly (1920) which, however, did not adopt it, and the matter was accordingly dropped.18 16

17

18

The treaties which put an end to the Napoleonic Wars contained no provision regarding Napoleon’s fate. Article XVI of the Treaty of Paris of 30 May 1814 provided that no individual of whatever rank or condition should be prosecuted, disturbed, or molested, in his person or property, under any pretext whatsoever, either on account of his conduct or political opinions, his attachment either to any of the Contracting Parties, or to any Government which has ceased to exist, or for any other reason except for debts contracted towards individuals, or acts posterior to the date of the treaty. Major Peace Treaties of Modern History 1648–1967 vol. I, 501, 509 (F.I. Israel, ed., 1967); 63 CTS 171. With regard to Napoleon himself, on 13 March 1815 (before the Battle of Waterloo) the Allies issued the Declaration of Vienna to the effect that he had placed himself beyond the protection of the law. 63 CTS 495. On his later surrender to and custody by the British authorities, see Lord McNair, International Law Opinions, vol. I at 104 (1956). This was unconditional surrender of an individual, not of the State. See the State Department’s annotations in the publication cited in note 15 above. More in J.H.W. Verzijl, op. cit. in note 2 above, vol. IX at 381 (1978). In addition, note article 226 of the Treaty of Sèvres, the Treaty of Peace with Turkey, apparently intended to enable the perpetrators of the genocide of the Armenians in World War I to be brought to trial and punished. That Treaty never entered into force. For that Treaty see 15 AJIL Supplement, 179 (1920). Permanent Court of International Justice, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee, June 18th–July 24th 1920 with Annexes, 748 (1920). Reproduced in I Ferencz at 193, 225, 239. Summarized in Historical Survey at 10. See also M.O. Hudson, The Permanent Court of International Justice 1920–1942 at 85 (1943).

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At this point, nongovernmental organizations began to show interest in the matter. Drafts were prepared by the Inter-Parliamentary Union, the International Law Association, the International Congress of Penal Law and the International Association of Penal Law (this latter adopting a proposal by V.V. Pella, who was to play an important role after the Second World War).19 At that stage there was a widespread feeling – not shared in political circles – that in one way or another appropriate competence should be conferred on the Permanent Court of International Justice, then a new and untried international institution. On the diplomatic front, the Special International Conference on Repression of Terrorism was in session from 1 to 16 November 1937. It adopted a Convention for the Prevention and Punishment of Terrorism and a Convention for the Creation of an International Criminal Court, neither of which, however, entered into force.20 That Court’s jurisdiction was limited to the offences set out in the Convention for the Prevention and Punishment of Terrorism. The judges were to be nominated by States parties, and chosen by the Permanent Court of International Justice. The Convention was quite detailed, 56 articles in all (including the final clauses). Considering the general deterioration of the international situation by 1937, it is quite remarkable that this Conference, attended by 31 States – including the Soviet Union, but not Germany, Italy or Japan – could reach agreement on such complex texts, something that really was to elude the United Nations until 1998. III. Restart in the United Nations (1945–1967) The Declaration on the defeat of Germany and the assumption of supreme authority with respect to Germany, signed at Berlin on 5 June 1945, was the next major advance.21 Article 11 of that instrument required the German authorities to apprehend and surrender to the Allies all persons from time to time named or designated by rank, office or employment by the Allies as having been suspected of having committed, ordered or abetted war crimes or analogous offences. This was followed by the Agreement for the prosecution and punishment of major war criminals of the European Axis, signed

19 20

21

Ferencz at 244, 252; Historical Survey at 12, 14, 15, 61, 70, 74, 75. League of Nations, Proceedings of the International Conference on the Repression of Terrorism, Geneva, November 1st to 16th, 1937, League of Nations doc. C.94.M.47.1938.V (Sales No. 1938.V.3). Reproduced in I Ferencz 355 and Historical Survey 88. This Conference was prompted by the terrorist murder of King Alexander of Yugoslavia together with the French Foreign Minister at Marseilles on 9 September 1934. 68 UNTS 189.

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at London on 8 August 1945.22 The precedent of the Treaty of Versailles was not being followed, and the prohibition of German law on the extradition or surrender of German nationals leading to their trial in a foreign court was made inoperative. The unconditional surrender of Germany made this possible. It is unnecessary here to go over the story of the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis of 8 August 1945 and the Charter of the International Military Tribunal for the Far East, Tokyo, 19 January 1946,23 and of the Nuremberg and Tokyo Tribunals. They set in motion powerful trends for the establishment of a permanent international criminal tribunal to avoid the creation of ad hoc tribunals in the future. The first major move in that direction accompanied the drafting of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948.24 Article VI of that Convention provides: Persons charged with genocide or any of the other acts enumerated in article III [conspiracy, incitement, attempt or complicity regarding genocide] shall be tried by a competent tribunal in the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.25

When the General Assembly adopted that Convention and opened it for signature, it also adopted resolution 230 (II) B. Here it invited the newly formed International Law Commission to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by other international agreements. It requested the International Law Commission to pay attention to the possibility of establishing a Criminal Chamber of the International Court of Justice. That resolution must be regarded as the starting point of the process that led to the Rome Statute of 1998. Its point of departure was the work accomplished during the period

22

23 24 25

82 UNTS 279. Twenty-four states became parties to that Agreement. On this see Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London 1945 (State Department Publication 3080, 1949). Department of State, TIAS No. 1589. 78 UNTS 277. For an authoritative account of the drafting of that provision, see N. Robinson, The Genocide Convention: A Commentary 80 (1960); and see Historical Survey at 30. A similar provision was later included in article 5 of the International Convention on the Suppression and Punishment of the Crime of Apartheid, annexed to General Assembly resolution 3068 (XXVIII), 30 November 1973, 1015 UNTS 243. By articles 5, 6 and 7, paragraph 1( j) of the Rome Statute respectively, genocide and the crime of apartheid are within the jurisdiction of the International Criminal Court.

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of the League of Nations and the 1945 activities of the victorious Allies, but future developments were unrestricted.26 At its first session in 1949 the International Law Commission held a preliminary discussion. It rejected proposals to postpone the matter to the following session and decided to appoint a rapporteur to report to that next session. At its 33rd meeting it appointed two rapporteurs, R.J. Alfaro (Panama) and Judge A.E.F. Sandström (Sweden), to prepare working papers on the topic.27 The two working papers were duly presented. Each examined the two aspects mentioned specifically in the General Assembly’s resolution, namely the general question, and the particular aspect of the employing the International Court of Justice for this purpose. Alfaro28 dealt mainly with the evolution of the idea of an international criminal jurisdiction, without adding much to the Secretariat’s Historical Survey. He was unhesitatingly of opinion that instituting an international criminal was both desirable and feasible ‘for the prevention and punishment of international crimes’.

26

27

28

For the sake of completeness it is recalled that in the Committee on the Question of the Progressive Development and Codification of International Law (the Committee of Seventeen), which proposed the establishment of the International Law Commission, the French representative, Donnedieu de Vabres (who had been the French member of the Nuremberg Tribunal) raised the question of an international criminal court. In its report on plans for the formulation of the principles of the Nuremberg Charter and Judgment, the Committee included a paragraph drawing the attention of the General Assembly to the fact that the implementation of the principles of the Nuremberg Tribunal and its judgment, as well as the punishment of other international crimes which may be recognized as such by international multipartite conventions may render desirable the existence of an international judicial authority to exercise jurisdiction over such crimes. United Nations, General Assembly, Official Records (hereafter: GAOR), second session, Sixth Committee (doc. A/332). And see Historical Survey at 15. It is unusual, to say the least, that the Final Act of the Rome Conference ignores completely this earlier action of the General Assembly and its Committees, and that of the International Law Commission. Doc. A/CONF.183/10, 17 July 1998. Yearbook of the International Law Commission, 1949, pp. 219, 238 (hereafter: YBILC). And see its Report to the General Assembly, GAOR, fourth session, Supplement 10 (A/925), paras. 32–34, ibid. 283. At the same time, and indeed somewhat inconsequentially, the Commission noted that the punishment of war crimes would necessitate a clear statement of those crimes and consequently the establishment of rules which would provide for the case where armed force was used in a criminal manner. The majority of the Commission was opposed to the study of the problem at that stage. ‘It was considered that if the Commission, at the very beginning of its work, were to undertake this study, public opinion might interpret its action as showing lack of confidence in the efficiency of the means at the disposal of the United Nations for maintaining peace.’ Ibid. para. 18. Question of International Criminal Jurisdiction, Report by Ricardo J. Alfaro, special rapporteur (A/CN.4/15), YBILC, 1950, II at 1. Reproduced in II Ferencz 241. Article 34 of the Statute of the International Court of Justice provides that only States may be parties in cases before the Court.

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If the rule of law is to govern the community of States and protect it against the violations of the international public order, it can only be satisfactorily established by the promulgation of an international penal code and by the permanent functioning of an international criminal jurisdiction (para. 136).

Regarding the International Court of Justice, he pointed out that an amendment to Article 34 of the Statute would be required to establish a chamber of the Court with power to try States and individuals. With that proviso, he would answer that question in the affirmative (para. 134). Sandström29 concentrated more on the possibility of establishing an international criminal judicial organ, carefully weighing the pros and cons. His conclusions were negative: 39. In my opinion the cons outweigh by far the pros. A permanent judicial criminal organ established in the actual organization of the international community would be impaired by very serious defects and would do more harm than good. The time cannot as yet be considered ripe for the establishment of such an organ. 40. If such a judicial organ is to be established, it is submitted that, in view of the defects with which it would be impaired, it would be preferable to provide for the possibility of establishing a Criminal Chamber of the International Court of Justice in case of need. The defects would then be less noticeable, and such a possibility could perhaps in a given case meet the criticism voiced against the Nürnberg trial.

The Commission dealt with the matter at its 41st to 44th meetings during its second session (1950). After votes the Commission decided that the establishment of an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon it by international convention was desirable. It went on to decide that the establishment of such an international judicial organ was possible. Finally, it reported that it had paid attention to the possibility of establishing a criminal chamber of the International Court of Justice and that, though it was possible to do so by amendment of the Court’s Statute, the Commission did not recommend it.30 The General Assembly discussed this at its fifth session in 1950. The Cold War was dominating all activities in the United Nations then, not a promising moment for dispassionate consideration of so delicate a matter as the

29 30

Report, doc. A/CN.4/20, YBILC, ibid. 18. Reproduced in II Ferencz 259. Report of the commission on the work of its second session, GAOR, fifth session, Supplement 12 (A/1316), YBILC, 1950–II 378. Reproduced in II Ferencz at 265. The formal reference is to article 34 of the Statute of the International Court of Justice. But in fact more is required than that. Compare the qualifications required of a member of the International Court of Justice as set out in articles 2 and 9 of its Statute with those required of a member of the International Criminal Court as set out in article 36, paragraph 3, of the Rome Statute.

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establishment of an international criminal court. In resolution 489 (V), 12 December 1950, the General Assembly showed that a final decision regarding the setting up of an international penal tribunal could not be taken except on the basis of concrete proposals. It accordingly established a Committee composed of 17 Member States ‘to prepare one or more preliminary draft conventions and proposals relating to the establishment and the statute of an international criminal court’.31 The Committee was in session from 1 to 31 August 1951.32 It produced a draft statute for an international criminal court in 55 articles (excluding the preamble and the final clauses). It also adopted a vœu in which, referring to the Genocide Convention, it expressed the wish that along with the instrument establishing the International Criminal Court a provision should be drawn up conferring jurisdiction on that Court in respect of the crime of genocide. That report is important. It set out the first general outline of the structure of the proposed tribunal. The draft statute was divided into several chapters, on general principles (articles 1–3), the organization of the Court (articles 4–24), the competence of the Court (articles 25–32), the committing authority and prosecuting authority (articles 33–34), procedure (articles 35–53), clemency (article 54) and final provisions (article 55). That has remained the basic structure for the international criminal court. Among the deficiencies of that draft was article 2, on the law to be applied. That was partly similar to Moynier’s suggestion in 1872, and partly reflected the change of direction of the ICRC, aiming at incorporating the relevant provisions in national criminal law: ‘The Court shall apply international law, including international criminal law, and where appropriate, national law’. There were other deficiencies. The draft was subjected to a series of critical written observations by several governments, including some that had been represented on the Committee, and even more serious criticism in the debate in the Sixth Committee that year.33 The General Assembly then adopted resolution 687 (VII), 5 December 1952.34 Here it decided to appoint another committee of 17 Member States

31

32 33

34

That resolution is reproduced in II Ferencz at 312. The 17 Members of that Committee were Australia, Brazil, China (ROC), Cuba, Denmark, Egypt, France, India, Iran, Israel, the Netherlands, Pakistan, Peru, Syria, United Kingdom, United States of America and Uruguay. Committee on International Criminal Jurisdiction, Report to the General Assembly, GAOR, seventh session, Supplement 11 (A/2136), reproduced in II Ferencz at 337. For the comments of Governments, see doc. A/2186 and Add.1, GAOR, seventh session, Annexes, Agenda item 52, reproduced in II Ferencz 365. For the debate in the Sixth Committee, see GAOR, seventh session, Sixth Committee, 321st to 328th meetings, reproduced in II Ferencz 382. That debate is summarized in the report of the Sixth Committee on that agenda item (A/2275). This resolution is reproduced in para. 3 of the report of the 1953 Committee see next note.

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to be designated by the President of the General Assembly (Leaster Pearson of Canada). Its mandate was more complicated. The new Committee was, in the light of the comments and suggestions of governments, (i) to explore the implications and consequences of establishing an international criminal court and of the various methods by which this might be done; (ii) to study the relationship between such a court and the United Nations and its organs; and (iii) to re-examine the draft statute. This resolution brought out the more general complexities of the subject, something that before had not been clear. The 1953 Committee was in session between 27 July and 20 August 1953. In its report it in effect followed what the earlier Committee had reported, suggesting only some minor changes in the Statute as previously drafted. On the central issue of the law to be applied, article 2 merely repeated unchanged article 2 of the earlier draft.35 In resolution 898 (IX), 4 December 1954, the General Assembly did not really accept this. It noted the connection between the question of defining aggression, the draft Code of Offences against the Peace and Security of Mankind, and the question of an international criminal jurisdiction. It decided to postpone consideration of the international criminal court until the General Assembly had taken up again the questions of the definition of aggression and the draft Code of Offences. This well brings out that at that time the question of the applicable law continued to be the central issue of interest on the political level. Simultaneously, in resolution 895 (IX) of the same date, the General Assembly established a new special committee to submit in 1956 a detailed report with a draft definition of aggression. At the same time the International Law Commission submitted a report on the draft Code of Offences against the Peace and Security of Mankind.36 In resolution 897 (IX), also of 4 December 1954, the General Assembly, referring to its decision regarding the definition of aggression, decided to postpone further consideration of the Code until the Committee on the definition of aggression had submitted its report. The three items in that way became bound together, a triad. The decision to postpone these items sine die was a direct consequence of the Cold War. The Special Committee on the Definition of Aggression submitted its report in 1956.37 Meanwhile the early crisis of the United Nations on the

35

36 37

Report of the 1953 Committee on International Criminal Jurisdiction, GAOR, ninth session, Supplement 12 (A/2645) (1954), reproduced in II Ferencz 429. This Committee was composed of Australia, Brazil, China (ROC), Cuba, Denmark, Egypt, France, India, Iran, Israel, the Netherlands, Pakistan, Peru, Syria, United Kingdom, United States and Uruguay – the same States that had participated in the previous Committee. Report of the Commission on the work of its sixth session, GAOR, tenth session, Supplement 9 (doc. A/2693), YBILC, 1954–II at 140, 149; reproduced in II Ferencz 460. Report of the Committee on the Definition of Aggression, GAOR 12th session, Supplement 16 (A/3574); reproduced in B. Ferencz, Defining International Aggression: The Search for World Peace – A Documentary History and Analysis, vol. I p. 215 (1975).

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admission of new members had been resolved and the beginnings of the decolonization process were taking place. Those two processes produced profound changes in the composition and in the institutional character of the United Nations, and especially the General Assembly. In resolution 1181 (XII), 29 November 1957, the General Assembly noted that 22 additional States had recently joined the United Nations. It requested the SecretaryGeneral to take the view of the new member States and to place the question of defining aggression on the provisional agenda of the General Assembly not earlier than its 14th session (1959), after another special committee had advised him that it considered the time appropriate. That resolution was adopted on a roll-call vote, something rare on draft resolutions coming from the Sixth Committee, and was adopted by a vote of 42:24:15 with one State absent. The negative votes were cast by the Soviet Bloc together with some Latin American, Arab and other States, and the abstentions were similarly scattered. That vote shows the impact of the Cold War and the changing composition of the General Assembly on what was nothing more than a procedural decision, in effect deferring consideration of the matter for another two years at least. However, no recommendation to renew discussion of the definition of aggression was ever made. Meanwhile, the Cold War continued, the decolonization process produced an enormous increase in the membership of the United Nations and completely changed all voting patterns in the General Assembly and in diplomatic conferences, enhancing the role of ‘consensus’ in decision making, as opposed to a majority vote. On top of that, the Six Days War (1967) led to a major international crisis. That was to generate a new phase in the development of each of these three interlocked items. To widespread surprise, the Soviet Union took the initiative. Before the exercise was completed, the Soviet Union and with it the Soviet Bloc in the United Nations had also collapsed, leading to further profound changes in the composition and character of the United Nations overall, and the General Assembly in particular. This first United Nations phase had brought out two aspects in particular: (i) the close connection that exists between the establishment of an International Criminal Court and the law to be applied, quite apart from any question arising out of the Genocide Convention; and (ii) the question of the relationship to exist between the criminal court and the United Nations, and in particular the Security Council. It also showed that on the political level, the question of the law to be applied contained at least two separate elements, namely the definition of aggression, and the code of offences against the peace and security of mankind, that item itself being more directly the offshoot of the Nürnberg Judgment. Further developments regarding the court would therefore depend on the progress in those two other matters.

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IV. The Definition of Aggression, the Code of Crimes and the Geneva Red Cross Conference (1967–1991) On 22 September 1967 the USSR requested the inclusion in the agenda of the 22nd session of the General Assembly of a tendentiously worded additional item entitled: ‘Need to expedite the drafting of a definition of aggression in the light of the present international situation.’ The item was taken on the agenda after a bitter procedural debate. In an unusual procedure it was allocated to plenary meetings for a general debate, and then, in light of that debate and the results achieved, to the Sixth Committee. The General Assembly decided in resolution 2330 (XXII), 18 December 1967, to establish a Special Committee on the Question of Defining Aggression to consider all aspects of the question and to report back to the General Assembly. Retracing the subsequent developments is not necessary here. It is sufficient to say that in resolution 3314 (XXIX), 14 December 1974, the General Assembly without a vote adopted a definition of aggression.38 That definition does not, however, deal with the crime of aggression as a matter of the criminal responsibility of an individual. Article 5 of the Rome Statute includes ‘the crime of aggression’ among the crimes over which the new International Criminal Court will have jurisdiction. As it is, it does not explain what that means for individual criminal responsibility. In resolution F annexed to its Final Act the Conference requested the Preparatory Commission established by that resolution inter alia to prepare proposals for a provision on aggression for submission to the Assembly of States Parties at a Review Conference.39 Although the Nuremberg and Tokyo Tribunals had little difficulty in dealing with charges of crimes against peace by the planning, preparation, initiation and waging of wars of aggression against the accused before them – all senior officers of the State – the problem today is complicated because of the existence of the Security Council with primary responsibility for the maintenance of international peace and security. The problem to be faced is whether the International Criminal Court can have jurisdiction over a case of aggression regardless of whether the Security Council has formally determined that an act of aggression has taken place (Charter, Article 39). In 1968 the Special Committee on the Definition of Aggression drew the General Assembly’s attention to the question of the Draft Code of Offences

38

39

All the documentation relative to this phase is contained in B. Ferencz, op. cit. in previous note, from page 272. The International Court of Justice seems to have regarded that definition as addressing the ‘civil’ responsibility of a State. Military and Paramilitary Activities in and against Nicaragua (Merits), ICJ Rep. 1986, 14, 103 (para. 195). Article 112 of the Statute regulates the Assembly of States Parties. Article 123 deals with the Review Conference, which the Secretary-General is obliged to convene seven years after the entry into force of the Statute. By article 126, the Statute entered into force on 1 July 2002.

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against the Peace and Security of Mankind, but no action was taken then. When the General Assembly adopted the definition of aggression, it again took note of observations by the Secretary-General regarding the Draft Code and the international criminal court, without adopting then any operative decision.40 In 1977 the International Law Commission raised the question of renewing consideration of the Draft Code. In resolution 33/97, 16 December 1978, the General Assembly requested the Secretary-General to ascertain views of Member States and relevant intergovernmental organizations, a request that was reiterated in resolution 35/97, 4 December 1980. In resolution 36/106, 10 December 1981 the General Assembly invited the International Law Commission to resume its work on that topic. The International Law Commission recommenced its work in 1982. In 1996 it adopted what is now named the Draft Code of Crimes against the Peace and Security of Mankind, and submitted it to the General Assembly.41 In resolution 44/39, 4 December 1989, dealing with trafficking in narcotics across national frontiers, the General Assembly invited the International Law Commission, when considering the Draft Code, to address the question of establishing an international criminal court or other international criminal trial mechanism with jurisdiction over persons alleged to have committed crimes that may be covered under such a code, including persons engaged in illicit trafficking in narcotic drugs across national frontiers. This showed that political thinking was beginning to envisage a wider role for the proposed international criminal jurisdiction than for the Genocide or Apartheid Conventions or to enforce the law applicable in times of armed conflict. In 1992 the Commission included a detailed survey of the question in its examination of the Draft Code.42 40 41

42

Ferencz, op. cit. in note 37 at 599. For that final text, see Report of the International Law Commission on the work of its 48th session, GAOR, 51st session, Supplement 10 (A/51/10), Chapter II. At the same time, the Commission adopted on first reading its draft articles on State Responsibility. Ibid. Chapter III. The change in the title of this item from Draft Code of Offences to Draft Code of Crimes was suggested by the Commission and accepted by the General Assembly in resolution 42/151, 7 December 1987. We shall return to that topic later in this article. See text to note 52 below. Outside the framework of the Sixth Committee, in 1981 a working group submitted to the Commission on Human Rights a draft convention on the establishment of an international criminal panel for the suppression and punishment of the crime of apartheid and other international crimes. See Study on the ways and means of ensuring the implementation of international instruments such as the International Convention on the Suppression and Punishment of the Crime of Apartheid including the establishment of an international criminal jurisdiction envisaged in the Convention. Doc. E/CN.4/1926 (1981). For the Convention of 30 November 1973, see 1015 UNTS 243. Report of the International Law Commission on the work of its 42nd session, GAOR, 45th session, Supplement 10 (A/45/10), reproduced in YBILC, 1992, II/2, Chapter II, paras. 93–157. This was prepared by a Working Group composed of Doudou Thiam as chairman (he was special rapporteur for the topic of the Draft Code), H. Al-Baharna, J.A. Beesley,

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One other major event of this period, formally outside the United Nations, was the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. That Conference, in session from 1974 to 1977, was, as is traditional for the Geneva Conventions, convened and organized by the Swiss Government to examine and adopt texts based on preparatory work undertaken by the International Committee of the Red Cross. That Conference completed its work with the adoption of two instruments, formally entitled Protocols Additional to the Geneva Conventions of 12 August 1949. One related to the Protection of Victims of International Armed Conflicts (Protocol I) and the second to the Protection of Victims of Non-international Armed Conflicts (Protocol II).43 Those two instruments are important additions to and updates of the 1949 Geneva Conventions. They include very carefully drafted and reasonably comprehensive listings of what those instruments classify as breaches or grave breaches, although some of them are controversial and not universally accepted. Together with the Geneva Conventions of 1949 on the protection of war victims, they completed the process of establishing the rules of international humanitarian law as a self-standing branch of the law, not dependent on the existence of a formal state of war. In that way they bring the Geneva law into line with the fundamental rule of Article 2, paragraph 4, of the U.N. Charter, prohibiting the use of force against the territorial integrity or political independence of any State or in any manner inconsistent with the Purposes of the United Nations. It is to be noted that the detailing of war crimes in

43

M. Benouna, L.D. González, B. Graefrath, J. Illueca, A.G. Koroma, S. Pawlak, P.S. Rao and E. Racounas, with G. Eiriksson, Rapporteur of the Commission, ex officio. See also Topical Summary of the discussion held in the Sixth Committee of the General Assembly during its 45th session, prepared by the Secretariat (A/CN.4/L.456, mimeographed, 1991); D. Thiam, Tenth Report on the Draft Code of Crimes against the Peace and Security of Mankind, YBILC, 1992, II/1 (A/CN.4/442). Given this historical background, it is ironic that the Rome Statute does not include drug trafficking amongst the crimes over which the new International Criminal Court at present has jurisdiction. The Rome Conference annexed to the Final Act resolution E which, inter alia, recognized that international trafficking of illicit drugs is a very serious crime, sometimes destabilizing the political, social, and economic order in States. The Conference regretted that no generally acceptable definition of drug crimes could be agreed upon for inclusion within the jurisdiction of the Court and recommended that a Review Conference (see note 39 above) consider drug crimes with a view to arriving at an acceptable definition and its inclusion in the list of crimes within the jurisdiction of the Court. This may well put the question off ad calendas Graecas. For that Final Act, see note 26 above. See Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, Geneva, 1974–1977, 17 volumes (1978). The major commentaries on those instruments are: International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Y. Sandoz et al. eds., 1987); M. Bothe et al., New Rules for Victims of Armed Conflicts (1982). For the text of Protocol I, see 1125 UNTS 3, and for that of Protocol II, see ibid. 609. They are reproduced in Schindler and Toman at 711, 775.

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article 8 of the Rome Statute does not always follow exactly the language of the Geneva Conventions and the Additional Protocols as regards breaches and grave beaches. This is a possible cause of difficulty for the new Court. The Rome Conference may have exceeded its formal mandate when it made those changes. V. To Rome (1992–1998) In resolution 47/33, 25 November 1992, the General Assembly requested the Secretary-General to seek written comments of States on that section of the report of the International Law Commission in which the Commission, as requested, addressed the issue of the proposed criminal court. At the same time, in a marked change from its attitude in the 1950s, it invited the Commission to continue its work on the question by undertaking to prepare a draft statute for the proposed court as a matter of priority. Accordingly, in 1993 the Commission reconvened the Working Group, which prepared what it termed a preliminary version of the draft statute for an international criminal tribunal and commentaries thereto.44 In resolution 48/31, 4 December 1993, the General Assembly requested the Commission to continue its work as a matter of priority, and if possible to submit a draft statute in 1994. This the Commission did. It re-established a new Working Group, and went on to draw up a complete Statute in 60 articles with commentaries, together with an Annex and three Appendices. The Commission recommended to the General Assembly to convene an international conference of plenipotentiaries to study the draft statute and to conclude a convention on the establishment of an international criminal court.45

44

45

Report of the International Law Commission on the work of its 44th session, GAOR, 47th session, Supplement 10 (A/48/10), YBILC, 1993, II/2, Annex. For the written comments of Governments, see YBILC, 1993, II/1 (A/CN.4/452 and Add.1). See also Topical Summary of the discussion held in the Sixth Committee of the General Assembly during its 47th session, prepared by the Secretariat (A/CN.4/446, mimeographed, 1993), paras. 17–134. Report of the International Law Commission on the work of its 46th session, GAOR. 49th session, Supplement 10 (A/49/10), Chapter II, paras. 30–91, YBILC, 1994, II/2 at 19. The Working Group was composed of J. Crawford (Chairman), H. Al-Baharna, A. Al-Khasawneh, G. Arangio-Ruiz, M. Bennouna, D. Bowett, C. Rodriguez, J. de Saram, G. Eiriksson, S. Fomba, M. Güney, Q. He, K. Idris, P.S. Rao, E. Razafindralambo, P.L. Robinson, R. Rosenstock, Ch. Tomuschat, V. Vereschchetin, F.V. Kramer, and A. Yankov. In addition Doudou Thiam as special rapporteur on the Draft Code, and P. Kabatsi as rapporteur of the Commission, took part in the work of the Group, which was open to every member of the Commission who wished to participate. And see Topical Summary of the discussion held in the Sixth Committee of the General Assembly during its 48th session, prepared by the Secretariat (A/CN.4/457, mimeographed, 1994), paras. 8–206; Topical Summary of the discussion held in the Sixth Committee of the General Assembly during its 49th session, prepared by the Secretariat (A/CN.4/464/

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In that condition the question reverted to the political organs for the final decisions to be taken. The discussion in the General Assembly soon showed that the International Law Commission’s draft was not widely accepted and could not as it stood form the basic text for an international plenipotentiary conference. Accordingly, the first step of the General Assembly was to establish an Ad hoc Committee open to all States members of the United Nations or of specialized agencies. In resolution 49/53, 9 December 1994, the General Assembly set out the function of this new Committee requiring it to review the major substantive and administrative issues arising out of the draft prepared by the International Law Commission. The report of that Ad hoc Committee came before the next session of the General Assembly.46 In resolution 50/46, 11 December 1995, the General Assembly decided to establish a Preparatory Committee to continue preparing a widely acceptable consolidated text of a convention on an international criminal court as a next step towards consideration by a conference of plenipotentiaries. It also decided to include the item in the provisional agenda of the 52nd session in order to study the report of the Preparatory Committee ‘and, in the light of that report, to decide on the convening of a conference of plenipotentiaries to finalize and adopt a convention on the establishment of an international criminal court, including on the timing and duration of the Conference’. Composition of the Committee was slightly adjusted and included States members of the International Atomic Energy Agency, a technical modification. Some 90 States took part in the work of the Preparatory Committee at one stage or another. Comprising approximately one half of the total membership of the organized international community, the Preparatory Committee was broadly representative of all trends that had to be taken into consideration. That Preparatory Committee was in session throughout 1996 and 1997. It reported to the 51st session of the General Assembly. In resolution 51/ 207, 17 December 1996, the General Assembly noted that major substantive and administrative issues remained to be resolved. These included, apart from the definition of different crimes, such issues as the relationship between the international court and national jurisdictions (the problem of complementarity), the so-called trigger mechanism, and the relationship of the court to the United Nations, to mention but a few. At the same time it noted that despite this, the Preparatory Committee considered that it was realistic to regard the holding of a diplomatic conference of plenipotentiaries

46

Add.1, mimeographed, 1995), paras. 1–188. And see the statement of Professor Crawford, representing the International Law Commission, at the second plenary meeting of the Rome Conference. Report of the Ad hoc Committee on the Establishment of an International Criminal Court, GAOR, 50th session, Supplement 22 (A/50/22) (1995). The Chairman of this Committee was Adriaan Bos (the Netherlands).

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in 1998 as feasible. The General Assembly accordingly decided that the Preparatory Committee should continue its work, that the diplomatic conference should be held in 1998, and postponed to the next session decisions on ‘the necessary arrangements made for the diplomatic conference . . . to be held in 1998, unless the General Assembly decides otherwise in view of relevant circumstances’.47 In resolution 52/160, 15 December 1997, the General Assembly again authorized the Preparatory Committee to continue its work early in 1998 and to transmit the text of its final report directly to the Conference.48 It also decided to hold the Conference in Rome between 15 June and 17 July 1998, and adopted relevant ancillary decisions. Three other major events falling into this period of the prehistory of the establishment of the International Criminal Court occurred in this period. On 22 February 1993 the Security Council adopted resolution 808 (1993). In that resolution it decided that an international tribunal should be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. It requested the Secretary-General to submit for consideration by the Council, at the earliest possible date and if possible no later than 60 days after the adoption of the resolution, a report on all the aspects of this matter, including specific proposals and where appropriate options for the effective and expeditious implementation of the decision, taking into account suggestions put forward by Member States. On 3 May the Secretary-General submitted his report.49 It is a lengthy document, and it draws on the 1953 Report on International Criminal Jurisdiction (see note 35 above) as one of the sources consulted. On 23 May the Security Council adopted resolution 827 (1993). In that resolution, acting under Chapter VII of the Charter, it approved the Secretary-General’s report and decided to establish an international tribunal ‘for the sole purpose of 47

48

49

Report of the Preparatory Committee on the Establishment of an International Criminal Court, vols. I and II, GAOR, 51st session, Supplements 22 and 22A (A/51/22) (1996). The Chairman of this Committee was Adriaan Bos. Ill-health prevented him from being Chairman of the Committee of the Whole at the Rome Conference, where his place was taken by Philippe Kirsch (Canada). For the Preparatory Committee’s final report, see doc. A/CONF.183/2 and Add. 1 (1998), the latter constituting the basic proposal before the Conference. Available on the UN Internet site . For accounts of its progress, see C. Hall, on the successive sessions of the Committee, in 91 AJIL 177 (1997), vol. 92 124, 391, 548 (1998). S/25704. Reproduced in International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia sine 1991 (hereafter: ICTY), Basic Documents 161 (1998). See also on Internet site . For the Statute of ICTY and other relevant constituent documents, see that publication and Internet site. The question of the legality of the Security Council’s action in establishing that tribunal was raised by the defence in the Tadi,c case, and upheld in the Appeals Chamber. ICTY Judicial Reports 1994–1995(I) 63, 353; 105 ILR 427, 453.

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prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above-mentioned report’. The Tribunal was formed in November 1993 and is still in operation. This was followed in 1994 by the adoption of resolution 955 (1994) on 8 November 1994. Here, again acting under Chapter VII of the Charter, the Security Council adopted the Statute for the International Tribunal for Rwanda (ICTR). The Government of Rwanda asked for this tribunal to be established for the sole purpose of prosecuting persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994. Subject to that major difference over jurisdiction, the Statute of ICTR follows closely the Statute of ICTY, and a single Appeals Chamber acts for both Tribunals. Unfortunately little is known about the activities of ICTR. Nevertheless, it is the first international tribunal to have convicted and sentenced persons accused of the crime of genocide.50 The third major event was the completion in 1996 by the International Law Commission of the Draft Code of Crimes against the Peace and Security of Mankind.51 The General Assembly, in resolution 51/160, 15 December 1996, drew the attention of States participating in the preparatory committee on the establishment of the International Criminal Court to the relevance of the Code to their work. However, although the Preparatory Committee had the draft Code before it, it made no relevant recommendation and there is no reference to the Code as such in the Rome Statute.52

50

51 52

Prosecutor v. Akayesu, Judgment of 2 September 1998 (, visited 15 September 1998) (the accused pleaded not guilty); Prosecutor v. Kambanda, judgment of 4 September 1998, (, visited 15 September 1998) (the accused pleaded guilty). Relevant materials are available on Internet site . These judgments are excerpted in 37 I.L.M. 1399 (1998). See note 41 above. In the discussion in the International Law Commission on the law to be applied in the proposed court, some members considered that the problem could be resolved by completing the draft Code of Crimes. The other view was that the Court should apply existing law, but that the Statute should be drafted in such a way as not to foreclose the future application of the Code. Report for 1994, note 45 above, para. 56. To some extent article 10 of the Rome Statute, to the effect that nothing in Part 2 should be interpreted as limiting or prejudicing existing or developing rules of international law for purposes other than the Statute, may reflect that point of view. When the International Law Commission adopted the Draft Code of Crimes, one of its recommendations was that the Code could be incorporated in the Statute

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That is the background against which the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court worked. VI. Some Afterthoughts This historical recital of the complicated events leading up to the Rome Conference goes a long way in explaining the difficulties encountered by that Conference, its unfinished business, and the defects, both of form (lack of concordance in the language versions and many presumed typographical errors in the original ‘authentic’ text) and of substance. In the 1950s, the General Assembly, correctly, requested the International Law Commission for its opinion on the feasibility and advisability of establishing a permanent international criminal court. Equally correctly, it entrusted the work of preparing the statute of such a court to Ad hoc intersessional committees composed of the representatives of States. The work of those Ad hoc committees formed the basis for the report of the Secretary-General leading to the establishment by the Security Council of the Yugoslav Tribunal, and indirectly also to that of the Rwanda Tribunal. Preparing the constituent instrument of an international organization is neither progressive development of the law nor its progressive codification. It is a highly political act, requiring, of course, both political and legal inputs. In the case of an international criminal court, at least three branches of law are relevant – international law, criminal law, and military law, this latter both from the aspect of the internal discipline of the armed forces (chain of command) and from the point of view of military criminal law as such. The application of a rule of the International Criminal Court. The General Assembly took no direct action on that recommendation. See the Commission’s Report for 1996 (note 41 above). The Report of the Ad hoc Committee (note 46 above) at para. 57 indicates reservations at using the Draft Code as a basis for defining the crimes, and the Report of the Preparatory Committee (note 47 above) confirms that there was little support for using the Draft Code, the general preference being to define each crime separately, as is done in articles 6 to 8 of the Statute. In Prosecutor v. FurundÏzija, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) considered the Draft Code as an authoritative international instrument which, depending on the specific question at issue, may (i) constitute evidence of customary law, or (ii) shed light on customary rules which are of uncertain content or are in process of formation, or, at the very least, (iii) be indicative of legal views of eminently qualified publicists representing the major legal systems of the world. Judgement of 10 December 1998, para. 227. The Trial Chamber also made use of the Commission’s commentary on the Draft Code. Later the Trial Chamber used the Draft Code in examining the accused’s mens rea (para. 242). Case No. IT-95–17/1–T 10, Judgement of 10 December 1998. Excerpted in (1999) 38 I.L.M. 317. In using the work of the International Law Commission in this way the Trial Chamber has followed the usage of the International Court of Justice in the GabÏcíkovo-Nagymaros Project case, ICJ Rep. 1997, 7, 54 (para. 79).

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of criminal law by a court-martial can be very different from the application of that same rule by a civil criminal court. In 1948 the General Assembly also correctly linked the Convention on the Prevention and Punishment of the Crime of Genocide with the eventual establishment of an international criminal court, without prejudice to the general international responsibility of a State in the event of breach by the State of its obligations under that Convention, and without prejudice to the obligation imposed by article V on all parties to enact appropriate legislation to give effect to the provisions of the Convention and in particular to provide effective penalties for persons guilty of genocide.53 At the same time it placed States under the obligation to enact the necessary legislation to give effect to the provisions of the Convention, and in particular to provide effective penalties for persons guilty of genocide or other offences enumerated in the Convention (article V). The International Law Commission continued along those lines by linking its proposed court to the Draft Code of Crimes. Again, in the 1980s, the General Assembly seems to have invited the International Law Commission to ‘address’ the question of establishing an international criminal court, answered by the Commission in its report of 1992 (note 41 above). In 1992 the General Assembly, in a complete reversal of its earlier position, and possibly without fully considering the implications, requested the Commission to prepare the draft statute, which the Commission did in 1994 (note 45 above). It is to be observed that the International Law Commission, hurried by the General Assembly, did not follow its customary practice of giving its text two readings, the second taking place after an interval of two years on the basis of the observations, written and oral, of governments on the first draft. The result was that the Commission’s final text did not take sufficient account of the political attitudes of the different governments and comment on them in its final report on the topic. The General Assembly accordingly had to establish two intersessional committees to study the text in light of political considerations, and yet the final report of the Preparatory Committee (note 48 above), which

53

Article IX of the Convention provides that disputes between the contracting parties relating to the interpretation, application or fulfilment of the Convention, including those relating to the responsibility of a State for genocide or any of the other acts enumerated in article III (see text to note 25 above), shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. Interpreting that provision in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (preliminary objections) case, the International Court said that the reference in article IX to the responsibility of a State for genocide or for the other acts enumerated in article III does not exclude any form of State responsibility. ICJ Rep 1996–II, 595, 616 (para. 32). The drafting history of that provision, and indeed its own terms, indicate that this refers to what is sometimes loosely called ‘civil responsibility’ as opposed to criminal responsibility. For my account and interpretation of the drafting history of that provision see my article cited in note 58 below.

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became the basic proposal for consideration by the Conference, contained a large number of square brackets, footnotes and options, pinpointing the absence of agreement on major issues.54 It was not a true basic text as that term is commonly understood in conference practice.55 What is more, it was completed and circulated to States only a short while before the opening of the Conference, allowing Governments little time or opportunity to give it the full consideration that it deserved and required, or to undertake the usual diplomatic consultations with other participants in the Conference. If the Rome Statute has defects, without doubt one explanation lies in the haste with which the Conference was convened, without adequate or completed preparatory work. Given this slow progress in the preparatory work and its incompleteness, it is difficult to understand how in resolution 52/160, 15 December 1997, the General Assembly decided to convene a diplomatic conference of plenipotentiaries a bare six months later to complete and adopt the convention, and allowed only for five working weeks in all, that is thirty-five working days for that Conference to complete its work. This final rush contrasts strangely with the slow and careful work that had been undertaken before 1992. It also seems that the organization of the Conference itself was atypical. Rule 48 of the Rules of Procedure required the Conference to establish a Committee of the Whole. Normal Conference practice is for the Committee of the Whole to examine the basic text article by article and to submit its conclusions to the plenary conference. It is not clear that this was done in all cases. From some of the statements made at the concluding session of the Conference on 17 July 1998, it appears that delegations had not been given a proper opportunity to express their views on portions of the text before it was put to the final vote in the Conference. In addition, the long list of corrigenda submitted by the Secretariat, itself incomplete as mentioned, confirms that the arrangements for verification of the concordance of the six authentic language versions of the Convention were unsatisfactory. The extraordinarily large number of typographical corrigenda suggested by the Secretariat shows that the Drafting Committee (Rules of Procedure, article 49) and the Secretariat were not given sufficient time to complete their work properly. This adds up to a sorry story. * * * In 1996 the International Law Commission completed the first reading of its draft articles on the topic of State responsibility. Article 24, paragraph 5, 54

55

Rules of Procedure for the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, doc. A/CONF.183/6, 23 June 1998, Rule 29. Cf. R. Sabel, Procedure at International Conferences: A Study of the Rules of Procedure of Conferences and Assemblies of International Inter-governmental Oganizations 149 (1997).

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of the Rome Statute lays down that no provision in the Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.56 Likewise, article 4 of the draft Code of Crimes against the Peace and Security of Mankind also states that the fact that the Code provides for the responsibility of individuals for crimes against the peace and security of mankind is without prejudice to any question of the responsibility of States under international law. The Commentary to that article suggests that it is possible, indeed likely, that an individual may commit a crime against the peace and security of mankind as an ‘agent of the State’, ‘on behalf of the State’, ‘in the name of the State’ or even in a de facto relationship with the State, without being invested with legal power. The State may remain responsible and be unable to exonerate itself from responsibility by invoking the prosecution or punishment of the individuals who committed the crime.57 This is pointing the way to a complicated set of legal relationships between States, and perhaps also between courts and tribunals. Article 19 of the draft articles on State responsibility as adopted on first reading has a direct bearing on this. Article 19 in that form is headed: International crimes and international delicts. It is, however, a confused article, not differentiating clearly between acts of State of particular gravity, and acts of the individual that are themselves violations of rules of international law to which an individual is subjected, such as genocide.58 It is interesting to note that throughout the prehistory of the Rome Statute, in which the applicable law was a central issue, little thought appears to have been given to the relationship of the general law of State responsibility and the international criminal law to be applied by the International

56

57 58

That provision did not appear in the original draft statute prepared by the International Law Commission (see note 45 above). The Preparatory Committee reported that an essential question which should be addressed was whether some kind of safeguard provision was needed to ensure that individual criminal responsibility did not absolve the State of any of its responsibility in a given case, and it suggested texts to meet this problem (A/51/22, para. 192 and vol. II, Part 3 bis, article B, Proposal 1, paragraph 3; Proposal 2, paragraph 3; A/CONF. 183/2/Add.1, article 23, paragraph 4). Report of the-International Law Commission, note 41 above at 30. For my criticism of article 19, see Sh. Rosenne, ‘State Responsibility and International Crimes: Further Reflections on Article 19 of the Draft Articles on State Responsibility’, 30 NY University J. Int’l Law and Politics 145 (1998). In 1998 the new special rapporteur of the International Law Commission, Professor James Crawford, recommended deleting article 19 as such and related provisions. J. Crawford, First Report on the Law of State Responsibility (A/CN.4/490/ Add.3), para. 100. This gave rise to a difficult discussion at the Commission’s 50th session. See Report of the International Law Commission on the work of its 50th Session, GAOR, 53rd session, Supplement 10 (A/53/10), Chapter VII, paras. 241–331. And see Topical Summary of the Debate held in the Sixth Committee of the General Assembly during its 53rd session, prepared by the Secretariat (A/CN.4/496, 16 February 1999), paras. 110–115. The article was dropped in the final version of the draft articles (2001).

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Criminal Court. So far, the International Law Commission does not appear to have faced this issue until 1998, when it was raised for the first time.59 This issue was apparent during the drafting of the Genocide Convention, as appears from the combination of articles VI and IX of that Convention, discussed earlier. Article 19 was introduced into the draft articles on State responsibility in 1976, and therefore has been present throughout the greater part of the renewed discussions on the establishment of an international criminal court. This interrelationship is a matter to which further thought should be given, especially in connection with the provisions in the articles on State responsibility regarding the discharge of the international responsibility, and in regard to the settlement of disputes. Trial and punishment of the individual responsible for the crime coming within the jurisdiction of the International Criminal Court, and that in fact includes all the crimes listed in article 19 as it then stood that can be committed by an individual, may well be included as an element of satisfaction for the directly injured State. For this reason the question arises whether the completed codification of the law of State responsibility should not contain a parallel provision, to the effect that nothing in that codification affects any question of criminal responsibility coming within the jurisdiction of the International Criminal Court. With the Rome Statute in force, the international community now has three standing international tribunals at its disposal – the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), and the International Criminal Court (ICC). There is very little overlap between them as to jurisdiction, and the risk of the fragmentation of the law is slight. The case-law of the two ad hoc criminal tribunals. ICTY and ICTR, established by the Security Council, shows a marked tendency to seek guidance from the jurisprudence of the International Court. The limited experience to date of ITLOS shows a similar inclination, and one must presume that the new International Criminal Court will act similarly if it is to gain general confidence. However, the existence of the ICJ and ITLOS alongside the ICC is likely to give rise to an unsuspected conflict, not of jurisdiction but of propriety, of whether one or other of these ‘civil’ tribunals, the ICJ and ITLOS, can determine a case before it without causing detriment to the criminal tribunal. The difference has been pithily explained by the Trial Chamber of ICTY in the Celebici case: ‘The International Tribunal [ICTY] is a criminal judicial body, established to prosecute and punish crimes for

59

Report cited in previous note, paras. 275–277. Issues of the relationship between the law of State responsibility and international criminal law have arisen in ICTY in the opinion and judgment of the Trial Chamber in Prosecutor v. DuÏs ko Tadi,c case. Case No. IT-94-1-T l, 112 ILR 1, and on appeal Case No. IT-94-1-A. 124 ILR 61.

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violations of international humanitarian law and not to determine State responsibility for acts of aggression or unlawful intervention’.60 The is demonstrated by the Application of the Genocide Convention case in the International Court of Justice between Bosnia and Herzegovina on the one side, and Yugoslavia on the other. In that case the applicant’s claims were met by the respondent’s counter-claims, later. . . .61 Both parties are alleging violations of the Genocide Convention by the other. The Crime of Genocide when committed by an individual comes within the jurisdiction of ICTY, and in due course of that of the International Criminal Court also (but that aspect can be ignored for present purposes). The Rwanda Tribunal has, as mentioned, already tried two cases of individuals accused of the crime of genocide (see note 50 above). The dispute between States over the interpretation, application or fulfilment of the Genocide Convention comes within the exclusive jurisdiction of the International Court of Justice. Although it is clear that the International Court itself is dealing with the ‘civil’ responsibility of the parties, in the pleadings the allegations and the defences rest upon the actions of individuals. Should those individuals be called to testify in the International Court, they may be forced either not to reply to questions, or to incriminate themselves. In that way the question arises how to reconcile the claims of States parties to reparation for alleged violations of the Genocide Convention as a matter of State responsibility, with the claims of the international community for criminal trials before a competent international tribunal of those individuals accused of committing acts of genocide. The matter can be put the other way round. How, in such circumstances, can the right of an individual accused of genocide to a fair trial, required by article 14 of the International Covenant on Civil and Political Rights of 16 December 1966,62 with the possibility of an acquittal, be reconciled with the right of the States parties to the litigation in the International Court to have their claims decided by the principal judicial organ of the United Nations? In such circumstances, the human rights law, many elements of which are regarded as possessing the quality of jus cogens, should have priority over the law of State responsibility. It has been seen how in the intermediate stage of this history, the General Assembly found a close connection to exist between three separate topics on a shared agenda with the International Law Commission: the definition of aggression, the Draft Code of Crimes, and the international criminal court.

60 61 62

Prosecutor v. Delali,c, Musi,c, Deli,c and LandÏzo, judgement of 16 November 1998, Case No. IT-96-21-T, para. 230. International Court of Justice, Application of the Convention for the Prevention and Punishment of the Crime of Genocide case, Counter-claims ICJ Rep. 1997 243, 2001 572. 999 UNTS 171; 1057 ibid. 407; 1137 ibid. 396 (rectification).

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For a certain period the General Assembly attempted to keep them in step. To that triad there has also to be added the codification of the law of State responsibility, which the International Law Commission completed in the year 2001. Events, however, have unravelled the initial triad, which never, until now, has considered the law of State responsibility to belong to this complex. Under a series of resolutions annexed to the Final Act of the Rome Conference (note 42 above) unfinished business of the Conference to be considered in due course by the Review Conference envisaged in article 123 of the Statute includes an acceptable definition of terrorism and drug trafficking and their inclusion in the list of crimes within the Court’s jurisdiction. In addition, the Preparatory Commission was required to prepare draft texts for what is termed ‘Elements of Crimes’ addressed in articles 9 and 21 of the Statute, this to be done before the year 2000 (which it did). It was also to prepare proposals for a provision on aggression, including the definition and Elements of Crimes of aggression and the conditions under which the International Criminal Court shall exercise its jurisdiction with regard to that crime. It was unable to complete this work which is being continued through the Assembly of States Parties. This wide remit to the Preparatory Commission, far beyond what is usual for a preparatory commission, coinciding in time with the second reading of the draft articles on State responsibility in the International Law Commission, and during the process of the final decision on the draft Code of Offences provided the opportunity to put together a complete and properly co-ordinated set of black letter texts embracing the whole law of international responsibility, including the ‘civil responsibility’ of States, international organizations, and other actors on the international scene capable of sustaining a claim of international responsibility, and the international criminal responsibility of individuals charged with breaching the basic rules of international humanitarian law and other rules of international law laying down international crimes. In 2001 the International Law Commission completed its draft articles on the international wrongful acts of States and commenced its study of the international responsibility of international organizations. But a comprehensive code of interlocked responsibility and criminal liability of individuals is still elusive.

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Appendix French translation of letter of F. Lieber to General G.H. Dufour, New York, 10 April 1872 (See note 8) Monsieur, J’ai reçu il y a quelques jours votre honorée lettre du 1 février . . . Je m’empresse de vous donner mon opinion, malgré la divergence qui peut exister entre nos vues concernant l’application des principes sur lesquels nous sommes complètement d’accord. Je suis un des juristes qui se sont déclarés, de la manière la plus claire et la plus expresse, en faveur de l’expansion et de la multiplication constante de l’arbitrage et de la conciliation entre nations. J’ai même fortement recommandé de retourner à la coutume de moyenâge, et de prendre pour arbitres internationaux les facultés de droit des universités en renom ; mais je me suis prononcé déjà dans mes Political Ethics contre l’idée d’une Haute-Cour internationale, par laquelle tous les différends entre nations seraient décidés. J’ai cru que la réalisation de cette idée, quand même elle serait possible, ne serait ni souhaitable ni efficace. Je n’ai pas changé d’opinion. Qui serait le sheriff (l’exécuteur des décisions) d’une haute Cour des nations? Et quel est même le tribunal ordinaire dont les jugements feraient quelque impression, si l’on ne savait que ses arrêts seront appliqués par le pouvoir public? Il est vrai que Hugo Grotius fut cité comme autorité au Congrès des nations Européennes à Vienne. Mais s’il fut cité ainsi au-dessus des monarques, des ministres et des nations, c’est précisément parce qu’il n’était qu’un simple particulier, absent de la lutte et ayant écrit son ouvrage sur la paix et la guerre, sous la dictée de la raison et de la justice, sans se préoccuper aucunement des cas en question, qui appelaient les lumières de la raison et de la justice. Des nations libres seraient toujours dans une position désavantageuse devant un pareil tribunal : car les gouvernements plus ou moins despotiques sont toujours mieux placés que les nations libres pour cabaler et intriguer, et les nations libres ont spécialement besoin d’autonomie. Ce besoin, sans équivaloir à l’isolement, croîtra avec les progrès de la liberté et le développement du self-government. Je suis parfaitement certain que peu des citoyens américains consentiraient à confier une affaire litigieuse dans laquelle leur république serait intéressée, à une Haute-Cour internationale permanente, quelque favorable qu’il puisse être à des tribunaux d’arbitrage établis par des traités spéciaux. Le pouvoir de ces derniers tribunaux et l’autorité de leurs décisions sont dûs précisément à la raison qu’ils sont constitués par consentement mutuel, et pour l’occasion spéciale dont il s’agit. Ce n’est pas une jalousie puérile, mais le besoin de l’autonomie qui empêcherait une nation libre de quelqu’importance de se rallier à une Haute-Cour internationale permanente.

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Toutes ces raisons s’appliquent avec beaucoup plus grande force au tribunal international que vous proposez pour juger les infractions à la convention de Genève en cas de guerre. Vous dites, art. 6 ; les jugements du tribunal seront notifiés par lui aux gouvernements intéressés et ceux ci seront tenus d’infliger aux coupables les peines prononcées contre eux. Tenus? Par qui les gouvernements respectifs seront-ils tenus de punir ceux qui ont violé les règles de la Convention de Genève, si les belligérants ne le font par leur propre volonté? Les temps récents nous ont fourni deux exemples de peuples, – l’un en Europe, l’autre en Amérique, – succombant l’un et l’autre parce qu’ils étaient énervés par la vanité. Les infractions aux principes protecteurs de la Convention de Genève ont été fréquentes ; peut-on imaginer la soumission aux jugements du tribunal international de la part de ceux qui fréquemment ont méconnu les lois les plus élémentaires de la guerre? Et quand je parle de la Convention de Genève ne vous méprenez pas, je vous prie, sur mes sentiments à son égard. Rien n’est plus sacré à mes yeux que ce spectacle de la charité se mettant au pas du tambour et marchant en avant, non pour se battre, mais pour relever les blessés or pour succomber ellemême dans l’accomplissement de cette tâche. Mais je m’occupe seulement ici de ce qu’il y a de praticable ou de désirable dans l’exécution de votre plan. Si la Confédération suisse doit être à perpétuité la gardienne de ce tribunal international, qu’arrivera-t-il au cas où la Suisse elle-même serait enveloppée dans une guerre? Elle l’a été, pourquoi ne le serait-elle pas de nouveau? Il ya des moments où les nations ne peuvent s’empêcher de faire ce que Solon exigeait de chaque citoyen en temps de discorde civile. Vous voyez par ce que j’ai dit que, quant à moi, je ne suis pas partisan de l’établissement permanent de tribunaux chargés de statuer entre belligérants. Cependant j’applaudis à tout ce qui, à quelque degré que ce soit, tend à faire planer la raison, la justice et la charité, comme une nuée bienfaisante, sur la plus ardente chaleur du combat. C’est ce que savent tous ceux qui ont connaissance du Code des lois de la guerre sur terre, que j’ai conçu et écrit, et que le Président Lincoln a publié comme ordre général pour la conduite des armées américaines, en 1863. Je ne voudrais donc pas vous conseiller d’arrêter brusquement tous vos efforts pour donner une efficacité de plus en plus grande à la Convention de Genève. Poursuivez-les avec zèle et ne regardez les contrariétés que comme au stimulant à des nouvelles tentatives. Car votre cause est sacrée. Comme remarque générale, je me permets de répéter à cette occasion qu’une des choses les plus efficaces et les plus utiles que l’on puisse faire, en cette matière, pour améliorer les rapports entre nations dans la paix ou dans la guerre (et il y a des rapports mutuels [intercourse] dans la guerre, attendu que l’homme ne peut se rencontrer avec l’homme sans qu’il en résulte un échange de rapports), – une des choses dont il y aurait le plus à attendre dans l’intérêt de l’internationalisme, serait la réunion des plus éminents jurisconsultes du droit des gens que possède notre race cis-caucasienne, – un de chaque

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pays, – en leur capacité individuelle et non en vertu de quelque mandat public, pour régler entre eux certaines grandes questions du droit des nations, qui sont encore indécises, – telles que la neutralité, l’emploi de troupes barbares comme auxiliaires, la durée des droits ou des obligations fondées sur la qualité de citoyen. J’entends régler comme Grotius réglait ce dont il s’occupait, par le grand argument de la justice. Ce qui émanerait d’un pareil corps, code ou proclamation, serait certain d’acquérir bientôt une autorité supérieure au livre du plus grand juriste isolé. J’espère qu’une pareille réunion pourra avoir lieu en 1873 ou 1874. Avec la plus haute considération, etc.

THE LAW OF TREATIES

21 REFLECTIONS ON AUTOMATIC TREATY SUCCESSION

The judgment of the International Court of Justice of 11 July 1996 in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections) case (hereafter Judgment), and more particularly the separate opinions of Judges Shahabuddeen and Weeramantry, have brought to the fore once again the issue of the automatic succession by new States to certain multilateral conventions previously binding on their territory through the action of the predecessor State before the State attained independence.1 That case and the individual opinions were concerned only with the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, although the general issue is wider. Regarding the Genocide Convention, the former Socialist Federal Republic of Yugoslavia had been a party to it since 29 August 1950. With the proclamation of the Federal Republic of Yugoslavia on 27 April 1992, a formal declaration was adopted on its behalf to the effect that the Federal Republic, ‘continuing the State, international legal and political personality of the Socialist Federal Republic of Yugoslavia, shall strictly abide by all the commitments that the Socialist Federal Republic of Yugoslavia assumed internationally’. For its part, Bosnia-Herzegovina, part of the territory of the former Yugoslavia, proclaimed its independence on 6 March 1992. On 29 December 1992 that Government transmitted to the Secretary-General of the United Nations as depositary a ‘Notice of Succession’ to that Convention with effect from 6 March 1992.2 There was a difference between the parties inter alia as to the legal consequences to be drawn from the occurrence of State succession in

1

2

ICJ. Rep. 1996–II, 595. For Judge Shahabuddeen’s separate opinion, see p. 634; for Judge Weeramantry’s, see p. 640. This article is only concerned with multilateral treaties open to wide participation. It is with diffidence that I find myself in disagreement with those two distinguished judges. I have to disclose an interest in this case, having been one of Yugoslavia’s counsel in an early phase of this case. Judgment, para. 18. The Secretary-General regarded this as a ‘notification of succession’, a technical designation under the Vienna Convention on Succession in respect of Treaties of 23 August 1987, not yet in force. Yugoslavia ratified that Convention on 28 April 1980. On 8 July 1993 Bosnia-Herzegovina notified the Secretary-General that it considered itself bound by that Convention. Ibid. For text, see United Nations Conference on Succession of States in respect of Treaties, Official Records, vol. III (A/CONF.80/31*) at p. 185.

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these circumstances. One of the contentions of Bosnia-Herzegovina was that the Genocide Convention falls within the category of instruments for the protection of human rights so that the rule of ‘automatic succession’ necessarily applied. Another was that as Bosnia-Herzegovina became independent in a process of secession on the dissolution of an existing State, automatic succession on the basis of the rule stated in article 34 of the Vienna Convention on Succession in respect of Treaties applied.3 The consequence was that Bosnia-Herzegovina became a party to the Convention with effect from its accession to independence. Yugoslavia disputed on several grounds the view that there was any ‘automatic succession’ to the Convention on this or any other basis. The Court did not find it necessary to decide that particular issue. ‘Without prejudice as to whether or not the principle of “automatic succession” applies in the case of certain types of international treaties or conventions, the Court does not consider it necessary, in order to decide on its jurisdiction in this case, to make a determination on the legal issues concerning State succession which have been raised by the Parties.’ Bosnia-Herzegovina was a party to the Convention on the date it filed the application instituting these proceedings, and these matters ‘might, at the most, possess a certain relevance with respect to the determination of the scope ratione temporis of the jurisdiction of the Court . . .’4 On this issue, as mentioned, Judge Weeramantry appended a major separate opinion, dealing with the particular problem of automatic succession to the Genocide Convention. He reached the conclusion that there is a principle of contemporary international law that there is automatic State succession to so vital a human rights convention as the Genocide Convention. ‘Nowhere is the protection of the quintessential human right – the right to life – more heavily concentrated than in that Convention.’ He emphasized that without automatic succession to such a Convention, there would be a situation where the worldwide system of human rights protections continually generates gaps in the most vital part of its framework, ‘which open and close, depending on the break up of the old political authorities and the emergence of the new’.

3

4

Under art. 34, para. 1: ‘When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist: (a) any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed[.]’ Judgment, paras. 17 to 23. On the latter issue, the Court later found that the scope of its jurisdiction ratione temporis was governed by the terms of article IX of the Genocide Convention, and extended back to the date of independence, but that is not a matter of State succession.

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The examination conducted by the International Law Commission [ILC] on the question of the succession of States in respect of treaties, and indeed on the question of State succession more generally, found that there was in fact no way of reconciling any concept of automatic succession to treaty rights and obligations with the fundamental principle of the self-determination of peoples, regarded by many as one of the concepts of jus cogens. The nearest the Commission could get in effecting that reconciliation for multilateral treaties was through the modified ‘clean slate’ principle. While on the one hand a ‘new’ State is not by the mere fact of its coming into existence bound by the multilateral treaty obligations previously binding on that territory, it may become a party to all those multilateral treaties through the simplified procedure of notification of succession, bringing into force formal treaty obligations between itself and all the other existing and future parties to the treaties so affected.5 A notification of succession, at least in theory, can be retroactive to the date of independence. Such a notice can only be made by a successor State in respect of treaties of the predecessor State applicable to the territory of the successor as at the date of independence. The ILC considered whether any automatic succession could apply to multilateral treaties of universal character, including in particular humanitarian treaties concluded under the auspices of the International Committee of the Red Cross and other types of multilateral treaties which are on a worldwide scale, but was unable to find a solution to that problem.6 Part IV of the Convention (articles 31 to 38), entitled Uniting and Separation of States, is also oriented on the treatment of dependent territories in the Charter.7 Article 34 (n. 3 above) appears in this Part. Whether that reflects customary law or the current practice of States and of international secretariats acting as depositary is open to serious question. In 1994 the Human Rights Committee, considering the implementation of the Covenant on Civil and Political Rights in a State that constituted parts of former States parties to that Covenant, recommended that Bosnia-Herzegovina ‘formulate its succession to the Covenant by submitting the appropriate notification to the Secretary-General’, which it did.8 In the same year, the Commission on Human

5

6 7 8

This is now embodied in art. 17 of the Vienna Convention on Succession in respect of Treaties, n. 2 above. For the Commission’s justification of that compromise, see its report in ILCYB 1974/2/1, Report of the Commission to the General Assembly (A/9610/Rev.1) at 168 (paras. 57 ff.). Art. 17 of the Convention corresponds to art. 16 of the Commission’s draft. Special rules apply to treaties concluded between a small number of States and to bilateral treaties, but this article is not concerned with that aspect. Report, n. 5 above, at 172 (para. 76). Ibid. para. 71 at p. 172 (corresponding to arts. 30 to 37 of the ILC’s draft). Report of the Human Rights Committee (A/48/40 Part I) para. 332 (1993). Official Records of the General Assembly, 48th session, Supplement No. 40. And cf. Z. Meriboute, La codification de la succession d’Etats aux traités: décolonisation, sécession, unification 162 (1984).

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Rights reiterated its call to successor States which have not yet done so ‘to confirm to appropriate depositaries that they continue to be bound by obligations under human rights treaties’.9 Even the 1994 meeting of persons chairing the human rights treaty bodies noted with concern that a number of successor States to former States parties to the human rights treaties had not yet formally [italics supplied] confirmed their succession to the SecretaryGeneral. Accordingly it urged that those that had not yet done so to confirm as soon as possible their succession to those treaties.10 Operative provisions of that character are not compatible with any concept of ‘automatic succession’ since they all require some positive action by the successor State through the depositary or some other appropriate organ. There is one major exception, and its existence raises the question whether in principle other exceptions can be accepted. That exception relates to treaties establishing a boundary. By article 62, paragraph 2, of the Vienna Convention on the Law of Treaties of 1969,11 repeated in slightly different terms as article 62, paragraph 2 of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986 [hereafter ‘1986 Convention’],12 the rule of fundamental change of circumstances (rebus sic stantibus) does not apply to treaties establishing a boundary. In the Convention on Succession of States in respect of Treaties, this is amplified (article 11): A succession of States does not as such affect: (a) a boundary established by a treaty; or (b) obligations and rights established by a treaty and relating to the regime of a boundary.

In one sense this reflects the doctrine of uti possidetis juris, not so much in its original Latin-American usage as in its application to the African Continent, where many of the boundaries are international boundaries established by treaties between the former colonial powers. This too does not sit easily with the principle of self-determination, but as a Chamber of the International Court has stated, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop

9 10 11 12

Commission on Human Rights, resolution 1994/16, 25 February 1994. This repeated a clause first adopted in resolution 1993/23, 5 March 1993. Commission on Human Rights, Succession of States in respect of international human rights treaties, Report of the Secretary-General (A/CN.4/80 para. 10). 1155 UNTS 331. United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Official Records vol. II, (A/CONF.129/15) at 93.

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and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples.13

This indicates that the law can accept automatic succession to treaties if that meets superior requirements of the international community. Since the 1978 Conference the Secretary-General has published an account of his practice as depositary in circumstances of State succession. Although this is an administrative matter, it is of major practical significance for the problem under discussion. It is only through the proper application of the established and well-known administrative procedures that the States parties to a given Convention, including the Genocide Convention, can know with what States they have formal legal relations arising under that Convention. The Secretary-General has explained that in the absence of provisions which set specific conditions for succession or which otherwise restrict succession, he is guided by the participation clauses of the treaties as well as by the general principles governing the participation of States. The independence of the new successor State, which then exercises its sovereignty on its territory, is without effect as concerns the treaty rights and obligations of the predecessor State in its own (remaining) territory.14 In the corrected version of that publication there is no mention of Yugoslavia or of the new States which seceded from the former Socialist Federal Republic. The implication is that as depositary the Secretary-General does not rely on any theory of automatic succession, but requires a formal statement, which may be a notification of succession, from the State concerned. There is no doubt that the break-up of the former federal Socialist States of Eastern Europe – in one instance accompanied by bitter hostilities – has produced a problem which was not fully foreseen or considered in the codification of the law of treaties, including the Vienna Convention on the Succession of States in respect of Treaties. Both the ILC and the United Nations Conference on Succession of States in respect of Treaties were primarily concerned with problems arising out of decolonization, especially in the light of the ‘devolution agreements’ which were developed in that context. The ILC’s final report contains the following passage:

13 14

Case concerning the Frontier Dispute (Burkina Faso/Mali), ICJ Rep. 1986, 334, 567 (para. 25). Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, prepared by the Treaty Section of the Office of Legal Affairs (ST/LEG/8, 1994), with corrigenda circulated under cover of note LA41TR/220 (Summary), 9 April 1996, paras. 297, 298. That corrigendum in part derived from protests at the original formulation of parts of those two paragraphs. See letter dated 10 April 1996 from Germany, and identical letters of the same date from the Organization of the Islamic Conference to the Secretary-General and the President of the Security Council, docs. A/50/928 – S/1996/263 and A/50/930 – S/1996/260. For judicial consideration of this Summary, see Legality of Use of Force case, (Yugoslavia v. Belgium), ICJ Rep. 2004, 279, 307 (para. 71).

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At its present [1974] session the Commission . . . considered the question whether or not to include any form of social revolution among the circumstances giving rise to a succession of States for the purposes of the articles on succession of States in respect of treaties. The Commission concluded that it was appropriate to exclude from the scope of the draft articles problems of succession arising as a result of changes of regime brought about by social or other forms of revolution. In its view, in the majority of cases, a revolution or coup d’état of whatever kind brings about a change of government while the identity of the State remains the same. The problem of the effect of a revolution . . . then falls within the scope of “succession of governments” rather than within that of “succession of States”. It might be argued that a distinction should be drawn between different kinds of revolution, but such a course would involve very difficult questions of definition which would not be solved simply by describing a particular kind of change of regime as a “social revolution”. Moreover, such questions go beyond the realm of succession and relate to the very conception of what a State is, and are, therefore, inevitably charged with overtones of a political and social character which make them more appropriate to be dealt with by other bodies.15

That revolutionary change of regime to which the ILC alluded is precisely what has occurred in Central and Eastern Europe, with the break up of the USSR, the Socialist Federal Republic of Yugoslavia, and Czechoslovakia. There has been a combination of changes of the structure of the State, changes of government, and the dissolution of federal States leading to the creation of new States, not the re-independence of States that had been incorporated in the dissolved federal State – something to be distinguished from the unification and separation of existing States which has been a feature of the decolonization process, and which is addressed in the 1978 Convention on Succession in respect of Treaties. The Court’s decision on this aspect of the preliminary objections in the Application of the Genocide Convention case settled the matter in respect of the jurisdiction of the Court and the admissibility of the application in that case. The issue of the scope of the jurisdiction ratione temporis is left to the merits, which are pending at the time of writing. The Court noted the practice of the Secretary-General as depositary of multilateral conventions, including the Genocide Convention, and that disposed of the administrative aspects of the matter. However, the substance of the issue remains outstanding. The problem of automatic succession is complicated by several other disparate factors. These include the sheer quantity of modern multilateral treaties and their very different subject-matter; the reluctance of State practice and of the law to categorize treaties according to their object and purpose, partly on the basis that all definitions are hazardous and partly because many of these multilateral treaties are not limited in their object and purpose but are ‘multi-purpose’; and partly because many multilateral treaties, alongside their

15

Report cited in n. 5 above, para. 66 at 170.

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normative provisions as such, also contain procedural provisions applicable as between their parties – for example, in the case of the Genocide Convention itself, the provision conferring jurisdiction on the International Court. There is also the question whether, in the absence of specific provisions in the treaty, any depositary has the power to make a determination that a new State is automatically a party to a treaty merely because the predecessor State was a party to it in respect of the territory of the new State. The powers and functions of a depositary, as set out in article 77 of the 1969 Vienna Convention and article 78 of the 1986 Convention, do not appear to go so far, being purely administrative in character.16 In one respect, the question arises whether there is truly any need for a concept of the automatic succession to treaty rights and obligations, at least in so far as concerns the black-letter texts of the norms enunciated in a treaty. Article 38 of the Vienna Convention on the Law of Treaties of 1969 on treaties and third States provides: Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding on a third State as a customary rule of international law, recognized as such.

This is followed by article 43, repeated as article 43 of the 1986 Vienna Convention, which reads: The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any legal obligations embodied in the treaty to which it would be subject under international law independently of the treaty.17

Those two provisions are positivist recognition of the possibility of the parallel existence of a rule of international law at one and the same time as a rule of treaty law and as a rule of customary law. They supply an answer to the continued application of the substantive rules of international law embodied in a treaty of the predecessor State formerly applicable to the territory of the successor State. At the same time it is open to question whether

16

17

See my ‘The Depositary of International Treaties’ and ‘More on the Depositary of International Treaties’, 61 AJIL (1967) and 64 ibid. 858 (1970). The depositary may nevertheless enquire of the new international entity that regards itself as a State and which has been recognized by some States what its attitude towards given treaties is, and if that entity sends an appropriate communication on a treaty matter to the depositary, the latter is obliged to exercise the normal depositary functions without prejudice to the position of any individual State concerned. Substantially repeated, mutatis mutandis, as art. 5 of the Vienna Convention on Succession in respect of Treaties, n. 2 above.

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they extend to procedural methods for the interpretation and application of the treaty in which the rules are embodied. Other considerations may apply in that aspect, including, if any international judicial organ is involved, the practical application in the circumstances of the fundamental principle of the consensual basis of the jurisdiction of international courts and tribunals. Alongside this we have the approach first advanced by the International Court in the North Sea Continental Shelf cases, that treaty provisions can be regarded as reflecting, or as crystallizing, received or at least emergent rules of customary international law.18 In the merits phase of the Military and Paramilitary Activities in and against Nicaragua case the Court started giving substance to this principle. Accepting the possibility that rules of law of identical content may exist as a rule of treaty law and as a rule of customary rule, the Court held that rules which are identical in treaty law and in customary law are distinguishable by reference to the methods of interpretation and application. ‘Thus, if the treaty rule parallels a rule of customary international law, two rules of the same content are subject to separate treatment as regards the organs competent to verify their implementation, depending on whether they are customary rules or treaty rules.’19 It is in this aspect that any concept of automatic succession to any treaty obligations, to which the people or the territory of the predecessor State were subject before the creation of the successor State, comes up against serious obstacles. Judges Shahabuddeen and Weeramantry would have applied that concept to the methods of interpretation and application of the Genocide Convention. The Court declined to pronounce itself on the matter, by finding that its jurisdiction over the dispute before it was established aliunde. That case-law accordingly leaves open the question whether the automatic application of a treaty rule as also a customary rule extends to the methods for the interpretation and the application of the rule. General principle would suggest a negative answer to that question. There is no denying the desirability of some sort of perpetuatio juris for erga omnes treaties such as the Genocide Convention or the humanitarian law conventions. Indeed, the rapidity with which on the whole new States ensure that they are or become parties to the more important of these instruments attests to that desirability. The question is: how is that perpetuatio to be attained as a practical matter, given the realities of contemporary international life. Can an exception be made to the clean slate principle parallel to the exception for treaties establishing a boundary? Those realities include on the one hand the vitality of modern nationalism enhanced by the concept of the self-determination of peoples; the complexity, unschematic character, quantity and variety of today’s multilateral treaty system; the sometimes

18 19

ICJ Rep. 1969, 3, 39 (para. 63). ICJ Rep. 1986, 14, 95 (para. 178).

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exaggerated notions of national sovereignty accompanied at the same time by equally exaggerated notions of democratic control – in a voting sense – in modern international organizations; and on the other hand the requirements, very pressing, very real, and very unexciting, of orderly international and national administration. States and individuals, and their legal advisers, need to know as a matter of established fact, not as a matter of legal theory (which might or might not be subject to controversy) whether a given State is legally bound by a given international treaty and not merely by the treaty’s substantive norms which also have an independent existence as customary norms, and where the authentic text of that treaty can be found. The State needs to know this as a matter of sound national administration. The national courts need to know this as a matter of sound application of the law. Likewise the individual needs to know this, so that he or she can be certain as to the rights and obligations due to society, including international society, especially if, as is the case of the Genocide Convention and the humanitarian conventions, an individual’s criminal responsibility is also in issue. The Human Rights Committee, faced with a concrete situation, has supplied one answer: the new State cannot rely only on theories of automatic succession but must manifest its undertaking to be bound by a given treaty in some formal way. The easiest method is by an official intimation to the depositary. That is not the only way, however, and indeed as occurred in the Human Rights Committee itself, formal participation in its deliberations that are relevant to the issue can suffice. That kind of participation would create something in the nature of what is sometimes called ‘estoppel’ and bring that State’s actions within the framework of the principle Allegans contraria non audiendus est. Another method, to which the Secretary-General’s publication mentioned in n. 14 above alludes, is the inclusion of an appropriate provision in the ‘final clauses’, and more particularly the participation clause, of a treaty. Relatively minor precedents for this type of clause are occasionally found in commodity agreements which also establish a special institution for dealing with that commodity.20 The rapid expansion of the multilateral treaty which is characteristic of the organized international community today has brought to the fore problems which were not encountered in a more traditional international society. One of these is certainly the issue of the perpetuation of erga omnes legal rights and duties and of the machinery for their interpretation and application. Experience shows that the requirements of certainty and clarity have to be placed alongside the general desideratum for continuity in this type of treaty-obligation. Inclusion of appropriate provisions in a given treaty, giving the depositary the necessary authority, seems to be one, and perhaps the surest, means by which that result can be attained.

20

See my Developments in the Law of Treaties 1945–1986 at 216 n. 38 (1989).

22 WHAT IS A TREATY? – A SIGNATORY’S INTENTIONS – QATAR V BAHRAIN

On 8 July 1991 Qatar filed an application instituting proceedings against Bahrain in respect of certain existing disputes between them relating to sovereignty over the Hawar islands, sovereign rights over the shoals of Dibai and Qit’at Jaradah, and the delimitation of the maritime areas of the two States. The Court gave this case the title the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case. The application is in four sections: I. Geographical and Historical Background; II. The Subject of the Disputes; III. Efforts to settle the Disputes; and IV. Jurisdiction. On this latter aspect, paragraph 40 of the Application states: Both Qatar and Bahrain have made express commitments in the agreements of December 1987 [annexed] and December 1990 [annexed] to refer their disputes to the International Court of Justice. By virtue of Qatar’s acceptance of the Bahraini Formula [annexed], the parties are now also agreed upon the subject and scope of the disputes to be referred to the Court. The disputes between the State of Qatar and the State of Bahrain described above are therefore submitted to the Court in accordance with Article 36 (1) of the Statute of the Court on the basis that both parties have given their requisite consent through the international agreements referred to above, thereby enabling the Court to exercise jurisdiction to adjudicate upon those disputes.

The Bahraini formula was in English and in Arabic.1 Its English text reads: The Parties request the Court to decide any matter of territorial right or other title or interest which may be a matter of difference between them; and to draw a single maritime boundary between their respective maritime areas of seabed, subsoil and superjacent waters.

Bahrain immediately, on 14 July and again on 18 August, contested the basis of jurisdiction invoked by Qatar. The meeting with the President ( Jennings) required under Article 31 of the Rules to reach agreement on the procedure took place on 2 October 1991. At that meeting the parties agreed that the 1

Application, Annex 5; Qatari Memorial, Annex II.29; Bahraini Counter-Memorial, Annex I.14; Judgment, ICJ Rep. 1994, 112, 118 (para. 18); Judge Oda, p. 146 (para. 29).

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questions of jurisdiction and admissibility should be separately determined before any proceedings on the merits. They also agreed on time-limits for the written pleadings on this question, Qatar’s Memorial to be the first pleading. In his order on the procedure, the President added that it was necessary for the Court to be informed of all the contentions and evidence of fact and law on which the parties relied in that connection.2 After the first round of written pleadings the full Court, after deliberation, unusually for this type of case found a further round of written pleadings to be necessary, and so ordered.3 Before the hearings began, the parties agreed that neither of them would call any witnesses or experts at the hearings, which took place between 28 February and 11 March 1994. Judgment was delivered on 1 July. By a series of votes of 15 (including the two Judges ad hoc) to one (Judge Oda), the Court decided: (1) that certain exchanges of letters between the parties and the King of Saudi Arabia of December 1987 and a document headed ‘Minutes’ of 1990 are international agreements creating rights and obligations for the parties; (2) that by the terms of those agreements the parties had undertaken to submit to the Court the whole of the dispute between them as circumscribed by the text proposed by Bahrain to Qatar and accepted by Qatar, the so-called ‘Bahraini Formula’; (3) to afford the parties the opportunity to submit to the Court ‘the whole of the dispute’; (4) to fix 30 November 1994 as the time-limit within which they were ‘jointly or severally to take action’ to that end; and (5) reserved ‘any other matters for subsequent decision’. Vice-President Schwebel and Judge ad hoc Valticos appended separate opinions, Judge Shahabuddeen a declaration, and Judge Oda, who voted against each one of the operative clauses of this judgment, a dissenting opinion.4 Qatar’s final submission requested the Court to hold that it had jurisdiction to entertain the dispute referred to in the application of 1991, and that the application was admissible. Bahrain’s final submission was that the Court was without jurisdiction over the dispute brought before it by the Qatari application. The judgment of 1994, called by Vice-President Schwebel ‘novel – and disquieting’,5 addressed neither of those submissions. On 30 November 1994, the Court received from Qatar a letter transmitting an Act to comply with paragraphs (3) and (4) of the operative para2

3 4 5

ICJ Rep. 1991, 50. From the proceedings it appears that admissibility in this context refers to the method of seising the Court. This highly technical word ‘seising’ denotes the act by which a court or other tribunal is put in possession of a case. See further on this, G.G. Fitzmaurice, The Law and Procedure of the International Court of Justice, vol. II, 440 (1986). Fitzmaurice has explained that ‘The term “seising” denotes the act or process of seising a tribunal, and is best not employed for the state or condition of being or having been seised (seisin, saisine).’ ICJ Rep. 1992, 237. ICJ Rep. 1994, 112. Ibid. 130.

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graph of the judgment. On the same day it received from Bahrain a report on the attempt by the parties to implement that judgment. In view of those replies, the Court resumed dealing with the case, and a judgment of 1995 found that it had jurisdiction and that the application was admissible.6 The principal issues examined in the 1995 judgment related to the question whether the two sets of documents invoked as the basis of jurisdiction were binding agreements to submit the dispute(s) to the Court, and if so, whether the Court had been properly seised of the case. The fundamental rule regarding the jurisdiction of the International Court of Justice is recalled, to assist in appreciating the significance of this case. That fundamental rule is enunciated in Article 36, paragraph 1, of the Statute of the Court as follows: ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.’ The case turned on two questions, (1) whether there was a treaty or convention in force between the parties referring the case to the Court; and (2) whether the reference to the Court was made in conformity with the requirements of that treaty or convention. In 1994 the Court answered the first question in the affirmative, and the second in the negative. However, instead of deciding the questions of jurisdiction and admissibility at that stage, it decided to afford the parties, either jointly or severally, the opportunity to correct the remit to the Court. The first question related to the general law of treaties in an age of increasing peripatetic diplomacy at a high level of political responsibility – in the present case the level of Heads of State and Ministers for Foreign Affairs. The second related to the subject of the dispute within the context of what has come to be known as a ‘Framework Agreement’ and the correct manner of seising the Court of a dispute under that title of jurisdiction.7 Hence the novelty of the case. Hence the disquiet felt by Judge Schwebel and, it would appear, by others of his colleagues. In fact the judgment bears the hall-marks of a compromise decision covering a deep division in the Court that the few individual opinions suggest. The Treaty Basis of the Jurisdiction The first issue examined by the Court related to the documents of 1987. Those documents consist of identical letters sent by the King of Saudi Arabia, exercising his good offices and acting as mediator, to the two parties, putting forward proposals. Those proposals were accepted by the two Heads of

6 7

ICJ Rep. 1995, 6. On framework agreements as the basis for the jurisdiction of the International Court of Justice, see Essay 9 above.

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State. For present purposes it is sufficient to cite the first of those proposals (in the translation of Qatar and in the translation prepared by the Translation Division of the United Nations Secretariat and submitted by Bahrain):8 Qatar Translation

UN Translation

All the disputed matters shall be referred to the International Court of Justice, at The Hague, for a final ruling binding upon both parties, who shall have to execute its terms.

The issues subject to dispute shall be referred to the International Court of Justice at The Hague for the issuance of a final and binding judgement whose provisions must be applied by the two parties.

The remainder of the letters consisted of various stipulations for maintaining the status quo in the interim period, and for the establishment of a tripartite committee, consisting of representatives of the two parties and of Saudi Arabia, to make arrangements for the approach to the Court. This was followed by what the Court termed ‘an announcement’ issued by Saudi Arabia in terms approved by the parties, stating that Qatar and Bahrain accepted that the matter be submitted for arbitration in pursuance of the principles of the framework for settlement which had been agreed by them.9 Both parties concurred in the Court that this was an agreement, and the Court recited that ‘the Parties agree that the exchanges of letters of December 1987 constitute an international agreement with binding force in their mutual relations’.10 This agreement, formed through the separate acceptance by each party of proposals made by an agreed intermediary together with the public announcement, were included in the material submitted by Qatar for registration under Article 102 of the Charter of the United Nations on 28 June 1991.11 With the increasing complexity of international relations today and the continuing need for new forms of expressing the political agreements reached by States and other entities, the use of commitments in writing made to third parties accepted as intermediaries between disputing States is becoming more frequent. It is a useful tool of diplomacy. Its recognition as a ‘treaty’ within the meaning of Article 102 of the Charter and article 2, paragraph 1(a), of the Vienna Convention on the Law of Treaties corresponds to a growing international practice.12 It places all its weight on the substance, not on the form. 8 9 10 11 12

Qatari Memorial, annex II.15; Bahraini Counter-Memorial, annex I.3. The Court quoted the Qatari translation at p. 117 (para. 17); likewise Judge Oda at p. 141 (para. 21). P. 117 (para. 17). P. 120 (para. 23). Qatari memorial, Annex II.37. 1155 UNTS 331. That provision of the Vienna Convention reads: ‘For the purposes of the present Convention: (a) “treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.’ The terms ‘treaty’ and ‘convention’ in this context are now synonymous.

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The second matter concerned the Minutes of 1990. That document was in Arabic, and presented more complicated issues. In the first place, there was disagreement between the parties as to its meaning. That disagreement found expression in the three different translations presented by the parties, one by Qatar and two by Bahrain, one a translation prepared by the Translation Division of the United Nations Secretariat and another by an expert advising Bahrain.13 This led to a long argument in the hearings on a fine point of Arabic grammar (on which there was probably no real issue). The two translations are as follows:

13

Qatar Translation

UN Translation

The following was agreed:

Agreement was reached as follows:

(1) to reaffirm what was agreed previously between the two parties;

1. That which had previously been agreed between the two parties was reaffirmed.

(2) to continue the good offices of the Custodian of the Two Holy Mosques, King Fahd Ben Abdul Aziz, between the two countries of the month of Shawwal, 1411 H, corresponding to May of the next year 1991. After the end of this period, the parties may submit the matter to the International Court of Justice in accordance with the Bahraini formula, which has been accepted by Qatar, and the proceedings arising therefrom. Saudi Arabia’s good offices will continue during the submission of the matter to arbitration;

2. The good offices of the Custodian of the Two Holy Mosques, King Fahd Bin AbdulAziz, in addressing the dispute between the two countries shall continue until the month of Shawwal A.H. 1411 (May A.D. 1991). Once that period has elapsed, the two parties may submit the case to the International Court of Justice, in accordance with the Bahraini formula accepted by the State of Qatar and the arrangements relating thereto. The good offices of the King-dom of Saudi Arabia may continue during the period in which the case is referred to arbitration.

(3) should a brotherly solution acceptable to the two parties be reached, the case will be withdrawn from arbitration.

3. If a fraternal agreement acceptable to both parties is attained, the case shall be withdrawn from arbitration.

Qatari Memorial, Annex II.32; Bahraini Counter-Memorial, Annex I.19. Annex I.20 contains the translation prepared by one of its experts. The critical paragraph 2, in the Bahraini expert’s translation reads: ‘The good offices of [Saudi Arabia] will continue between the two countries until [May 1991]. The two parties may, at the end of this period, submit the matter to the International Court of Justice in accordance with the Bahraini formula, which the State of Qatar has accepted, and with the procedures consequent on it. The good offices of the Kingdom of Saudi Arabia will continue during the period when the matter is under arbitration.’ At page 119 (para. 19) of the judgment the Court cited the Qatari version and the version prepared by the Bahraini expert, not the UN translation. In his dissenting opinion (p. 148 para. 32), Judge Oda cited the Qatari and the UN translations. There is no explanation in the judgment why the Court preferred the Bahraini version to that prepared by the Translation Division of the United Nations Secretariat.

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The Court recited these two translations without dealing directly with the point of Arabic grammar, although the implication of the whole judgment is that the proper seising of the Court required action by both parties, even if not necessarily joint action.14 The issue of the correct interpretation of an agreement referring a case to the Court, whether a special agreement or a framework agreement, in one of the official languages of the United Nations but not in one of the official languages of the Court, has arisen in other cases, notably in the Land, Island and Maritime Frontier Delimitation case (Spanish),15 but the issue is too broad for examination here. The Minutes were signed by the two Foreign Ministers, in the presence of the Foreign Minister of Saudi Arabia. The ensuing negotiations did not lead to agreement on how to approach the Court, and Qatar unilaterally instituted the proceedings, as indicated, on 8 July 1991, some two months after the expiry of the period laid down in the Minutes. The treaty-law question for the Court was whether the Minutes were a simple record of a meeting, or whether they were a commitment to refer the dispute(s) to the Court. Qatar registered the Minutes with the UN Secretariat under Article 102 of the Charter on 28 June 1991. On 9 August 1991 – after the proceedings had been instituted – Bahrain objected to that registration.16 In addition, on 21 May 1992 the Foreign Minister of Bahrain made a statement that ‘at no time did I consider that in signing the Minutes I was committing Bahrain to a legally binding agreement’. That statement also invoked provisions of the Bahraini constitution regarding treaties concerning the territory of the State. Bahrain contended that this showed that the signatories of the Minutes did not intend to conclude an agreement of this kind.17 The Court did not accept that contention. It was blunt and to the point: ‘The Court does not find it necessary to consider what might have been the intentions of the Foreign Minister of Bahrain or, for that matter, those of the Foreign Minister of Qatar.’ The Court stressed that the two Ministers signed a text recording commitments accepted by their Governments. Having signed such a text, the Foreign Minister of Bahrain was not in a position subsequently to say that he intended to subscribe only to a statement record-

14

15 16

17

The point at issue was whether the Arabic word translated parties, in the Arabic dual and not the plural form, means either party, or both parties jointly. The word in question, altaraf:an, certainly means the two parties, but that does not answer the legal question of interpretation, which, as is normal, depends on the intention of the parties and not on pure grammar. Grammatici certant et adhuc sub judice est! ICJ Rep. 1992, 351. Registration number: 28207. See also the Monthly Statement of Treaties Registered during the month of June 1991 (ST/LEG/SER.A/532) at 219. Particulars of the registration and related correspondence with the Secretariat are contained in the Qatari Memorial, Annex II.37. The Bahraini protest is included there and in the Bahraini Counter-Memorial, Annex I.21. Counter-Memorial, Annex I.25.

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ing a political understanding and not to an international agreement. The Court did not refer to Bahrain’s objection to the registration of the Minutes. The Court did not find it necessary to mention the general rule that no full powers are required by the Head of State, Head of Government and Minister for Foreign Affairs for purposes of treaty-making, although that in fact is the rule which was applied here. On that basis, the Court examined the text of what the Foreign Ministers had signed, and in that text it found an agreement regarding the referral to the Court. This part of the judgment is an important warning. In an age when Heads of State, Prime Ministers and Ministers for Foreign Affairs are incessantly flying around from country to country and concluding their journeys with the adoption of some sort of formal statement, texts adopted at such a high political level can embody engagements legally binding on their State. In one sense this follows a line of case-law which commenced with the Eastern Greenland case in 193318 regarding a commitment made in the name of his Government by a resident Ambassador, through the Aegean Sea case19 regarding the possibility that an agreement to refer a case to the Court could be concluded in the form of a joint communiqué issued after a meeting of the Heads of Government. This conforms to article 2, paragraph 1 (a), of the Vienna Convention on the Law of Treaties, which was adopted very deliberately both by the International Law Commission in its draft articles on the law of treaties of 1966, and by the United Nations Conference on the Law of Treaties of 1968–1969. The Court has since confirmed and extended the scope of this rule and the implied warning to high officials of a State. In the Armed Activities on the Territory of the Congo (Congo v Rwanda) (New Application: 2002) (Jurisdiction of the Court and Admissibility of the Application) case the issue arose of the legal effect of a statement by the Minister of Justice before the United Nations Commission on Human Rights. The statement was made in relation to the protection of human rights, a matter falling ‘within the purview of a Minister of Justice’. On this the Court said: The Court notes . . . that with the increasing frequency in modern international relations of other persons [than the Head of State or of Government or the Foreign Minister] representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview. This may be true, for example, of holders of technical ministerial portfolios exercising their powers in their field of competence in the area of foreign relations, and even of certain officials.20

18 19 20

Legal Status of Eastern Greenland, PCIJ Ser. A/B 53, p. 22 (1933). Aegean Sea Continental Shelf case, ICJ Rep. 1978, 3. ICJ Rep. 2006, 3 February (para. 47).

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The Court also confirmed the irrelevance, for purposes of interpretation, of a later statement by one of the signatories of the intentions of the signatories of a treaty. This too is timely. In my experience, while I might have known in signing an agreement what my intentions were, and what my instructions were, I could never really be sure of the intentions of those who gave me my instructions.21 The interpretation of an international agreement is not concerned with the intentions of the signatories, whatever their rank and style. It is concerned with the intentions of the parties to the agreement, the Governments. That is why those intentions are to be ascertained in the first place from the text itself, and secondarily if necessary with assistance from the travaux préparatoires, but not from a statement made some 12 months later by one of the signatories. A second contention of Bahrain was that the subsequent conduct of the parties also showed that they never considered the 1990 Minutes to be a binding agreement. This argument was based on the fact that Qatar waited until June 1991 before ‘it applied to the United Nations Secretariat to register the Minutes of December 1990’ under Article 102 of the Charter.22 In addition Qatar did not file the Minutes with the General Secretariat of the League of Arab States or follow the provisions of the Qatari constitution for the conclusion of treaties. On this, the Court said: The Court would observe that an international agreement or treaty that has not been registered with the Secretariat of the United Nations may not, according to the provisions of Article 102 of the Charter, be invoked by the parties before any organ of the United Nations. Non-registration or late registration, on the other hand, does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties. The Court therefore cannot infer from the fact that Qatar did not apply for registration of the 1990 Minutes until six months after they were signed that Qatar considered, in December 1990, that those Minutes did not constitute an international agreement. The same conclusion follows as regards the non-registration of the text with the General Secretariat of the Arab League. Nor is there anything in the material before the Court which would justify deducing from any disregard by Qatar of its constitutional rules relating to the conclusion of treaties that it did no intend to conclude, and did not consider that it had concluded, an instrument of that kind; nor

21 22

Cf. my remarks at the 678th meeting of the International Law Commission. YBILC 1963/1 at 32. The expression ‘applied to the United Nations Secretariat to register the Minutes’ is not understood. The decision whether to register a treaty under Art. 102 of the Charter rests with the States: registration is not a discretionary matter for the Secretariat after a State has ‘applied’ for registration. Since 1955, both the volumes of the Treaty Series and the Monthly Statement have included a disclaimer to the effect that registration does not imply a judgment by the Secretariat on the nature of the instrument. See my Developments in the Law of Treaties 1945–1986 414 (1989).

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could any such intention, even if shown to exist, prevail over the actual terms of the instrument in question.23

This statement regarding the effect of non-registration or late registration24 conforms to the intention of the San Francisco Conference (1945). This can be seen from a comparison of Article 102, paragraph 2, of the Charter with Article 18 of the Covenant of the League of Nations, which provided that no agreement requiring registration which was not registered ‘shall be binding until so registered’. That provision caused difficulties, and in the Pablo Nájero arbitration before the France/Mexico Mixed Claims Commission the Commission interpreted it away, at least in so far as concerned a treaty between a Member of the League of Nations and a non-Member State.25 Although occasionally suggestions are found in the literature to link the validity of a treaty to its registration, no trace of this idea appears in the Vienna Convention on the Law of Treaties. In this respect, therefore, the Court’s statement is a useful reassertion of the rule which is sanctioned also by the general practice of States and of other international organizations concerned.

23 24

25

P. 122, para. 29. In fact, registration within six months of the conclusion of the instrument is hardly ‘late registration’. There is no time-limit within which registration must be effected, and many States allow their registrable agreements to accumulate and send them to the Secretariat once or twice a year. Very frequently, this is a matter of routine and convenience in the Treaty Sections of Ministries for Foreign Affairs, although one must assume that in this case the registration was effected in order to avoid the sanction of Art. 102 of the Charter after the proceedings had been instituted. Pablo Nájera case, 19 October 1928, United Nations, Reports of International Arbitral Awards, vol. V, 466, 468 (Verzijl, President, Ayguesparse and González Roa, Commissioners). The Commission seems to have been unanimous on this point.

23 WHEN IS A FINAL CLAUSE NOT A FINAL CLAUSE?

The Report of the Ad Hoc Committee on the Jurisdictional Immunities of States and their Property submitted to the Fifty-ninth Session of the United Nations General Assembly (2004) contains the following statement: The Working Group proceeded with the formulation of a preamble and final clauses . . . settlement of disputes, signature, ratification etc.1

The Draft United Nations Convention on Jurisdictional Immunities of States and Their Property, which is Annex I to that Report contains a Part VI, entitled Final Clauses. This consists of articles 25 to 33. Article 25 deals with the Annex to the Convention, and simply states that it forms an integral part of the Convention (following Article 31, paragraph 2, of the Vienna Convention on the Law of Treaties).2 Article 26 deals with other international agreements, Article 37 deals with the settlement of disputes, and articles 28 to 33 deal with various technical aspects connected with the entry into force of the Convention and the like. This presentation of those provisions calls for comment. The Vienna Convention contains a full description of the final clauses and their peculiarity. Article 24, paragraph 4 (a happy amendment proposed at the Conference by the British delegation) provides: 4. The provisions of a treaty regulating the authentication of its text, the establishment of the consent of States to be bound by the treaty, the manner or date of its entry into force, reservations, the functions of the depositary and other matters arising necessarily before the entry into force of the treaty, apply from the time of the adoption of its text.3

That is a list of what are commonly designated as ‘final clauses’. Their common feature is that taken together, each one deals with the application of the rules of the law of treaties to the treaty in question. They owe their designation as final clauses to the fact that they cannot be negotiated until the 1 2 3

GAOR, 59th session, Supp. No. 22 (A/59/22), para. 9. 1155 UNTS 331; 63 AJIL 875 (1979). See United Nations Conference on the Law of Treaties, First Session, Vienna, 26 March – 14 May 1968, Official Records, 138 (Committee of the Whole, 26th meeting). On final clauses see F. Poirat, Le Traité, acte juridique international: Recherche sur le traité comme mode de production et comme produit 393 (Martinus Nijhoff, Leiden, 2004).

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negotiation on the substantive text of the treaty itself is completed, not merely because they are normally placed at the end of a treaty. Moreover, that is why they enter into force immediately on the adoption of the text of the treaty, a matter itself regulated in article 9 of the Vienna Convention. Provisions of a treaty that do not necessarily arise before its entry into force are not final clauses, but are in fact matters relating to the substance of the treaty. The Vienna Convention has greatly simplified the text of many final clauses, and the Secretariat normally has easily available drafts which it submits to the relevant conference or other negotiating body when the time comes for that. Of the two draft clauses mentioned above, article 26, on the relation of the draft convention to other existing international agreements which relate to matters dealt with in the draft convention, is a substantive matter. Article 30 of the Vienna Convention supplies a general residual rule for that contingency, but in many cases the relationship between the treaty under negotiation and existing multilateral and bilateral treaties dealing with the same matter is itself an issue for the substantive negotiations. It is therefore quite common for a multilateral treaty that deals with a matter already dealt with in some other multilateral or bilateral agreement to contain a specific provision on the matter, and not to rely on article 30 of the Vienna Convention. However, the provision is not one that necessarily arises before the entry into force of the convention. It is not a final clause. As for the settlement of disputes, this is always a matter of substance. In fact, the League of Nations Committee of Experts for the Progressive Codification of International Law decided this issue in its communication of 30 January 1926.4 The Committee reported as follows: In some of the conclusions proposed to the Committee in the reports of its SubCommittees, submission of disputes to the jurisdiction of the Permanent Court of International Justice was suggested. It is, of course, to be understood that in any case such suggestions would have constituted merely questions submitted by the Committee for examination by the Governments and, eventually, by such conferences as may be called. Even in this form the Committee has not felt that it should deal with the general question whether a clause providing for the obligatory submission of disputes to the Permanent Court of International Justice, of which examples are to be found in various treaties, would or would not be desirable in the instruments which will fall to be drawn up by the contemplated conferences. That course, moreover, would not prejudice the possibility of obtaining advisory opinions at the request of the Council of the League of Nations.

4

League of Nations doc. C.96.M.47.1926.V [C.P.D.I. 63], reproduced in Sh. Rosenne (ed.), League of Nations, Committee of Experts for the Progressive Codification of International Law [1925–1928], vol. 2, 1 (Dobbs Ferry, NY: 1972). For the discussion of this matter, see vol. 1, p. 179.

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The Committee has felt that the above question may always be examined as and when it arises, without being particularly mentioned in the questionnaires.

That practice has always been followed since. Proposals for the settlement of disputes have never been regarded as final clauses and can never come into force before the treaty itself has entered into force. It is a matter for surprise that the Ad Hoc Committee on the Jurisdictional Immunities of States and their Property, with a draft prepared by the International Law Commission in 1991 as its starting point, made such an error.5 The Commission realized that the settlement of disputes was an issue that arose in connection with the final consummation of this codification project. After it had recommended that an international conference of plenipotentiaries should examine the draft articles and conclude a convention on the subject, it continued: 26. The Commission was of the view that the question of the settlement of disputes on which draft articles were proposed by a former Special Rapporteur could be dealt with by the . . . international conference, if it considered that a legal mechanism on the settlement of disputes should be provided in connection with the draft articles.6

Clearly, article 27 is not a final clause.

5 6

Report of the Commission on the work of its forty-third session (A/46/10*), YBILC 1991/II/2, Chapter II. Ibid. para. 26.

24 ON MULTILINGUAL INTERPRETATION

Security Council resolution 242 (1967), adopted on 22 November 1967, contains the following phrase: “Withdrawal of Israel armed forces from territories occupied in the recent conflict”.

In the other languages used by the Security Council (except Chinese), that phrase is framed as follows: “Retrait des forces armées israéliennes des territoires occupés lors du récent conflit.” “Vyvod israilkich voruzhennykh sit s territorii, okkupirovannykh vo vremya n’edavnego konflikta.” “Retiro de las fuerzas armadas israelís de los territorios que ocuparon durante el reciente conflicto.”

That phrase has produced considerable controversy inside Israel, but within that controversy a secondary issue has arisen, of some juridical interest, since some of the protagonists of one point of view or another have purported to see a fundamental difference between one and others of these language versions of this phrase. We have no intention of taking sides in that particular controversy. The aim of this note is more limited, namely, to indicate certain factors relevant to the interpretation of a multilingual resolution of an organ of the United Nations. The above quoted phrase in resolution 242 (1967) is identical with the draft submitted by the United Kingdom on 16 November 1967, in Security Council document S/8247; similarly the French and Russian versions of the resolution are identical with the translations into those languages, prepared by the United Nations Secretariat. On the other hand, there is a not insignificant difference between the Spanish translation of the draft resolution and the official Spanish version of the resolution itself, the draft reading: “Retiro de todas las fuerzas armadas israelís de territorios que ocuparon durante el reciente conflicto.”1 Of these four languages, two, the English and the French, had, under the Provisional Rules of Procedure of the Security Council in force in November 1

The change in the Spanish text was probably the result of renewed scrutiny following the intervention of the only Spanish-speaking member of the Security Council at that time, the representative of Argentina. S/PV.1382 at 78 (Provisional English version).

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1967, the status of working languages, and the others the status of official languages. The regulatory texts – in this case the Charter of the United Nations and the Provisional Rules of Procedure of the Security Council – do nothing to refine the concept of the status of the working languages as compared with the official languages. The distinction was even more blurred in fact, since on the one hand the procedure of simultaneous interpretation (as distinguished from consecutive interpretation, and translation) was employed in the meetings of the Security Council. On the other hand the Secretariat is expeditious in the issuing the documents simultaneously in all the languages. By Rule 45 of the Provisional Rules of Procedure, verbatim records of the meetings of the Security Council shall be drawn up in the working languages; and by Rule 46 as in force in 1967, “All resolutions and other important documents shall forthwith be made available in the official languages. . . .”2 To some extent one may assume for practical purposes that the working languages had a standing roughly equivalent to that of authentic texts of an international treaty, although the analogy must be treated with considerable caution, bearing in mind that in the law of treaties the status of “authentic text” derives from the agreement of the parties negotiating the text. It is not imposed by mere procedure. That standing itself will when necessary relate back to the language in which the negotiation and the drafting took place, there being all the difference in the world between a negotiated language version and one produced mechanically by some translation service, however competent. Here it must also be recalled that the function performed by interpretation, when the object of the exercise is a treaty being interpreted by its parties for the purposes of its own application by them, in the nature of things differs from that of interpretation of a resolution of an international organ, especially when the interpretation is being undertaken not by a party for the purposes of application by it, but by a State which was not even a member of the organ when the resolution in question was adopted. A close study of the rules for the interpretation of a multilingual treaty, embodied in articles 31 to 33 of the Vienna Convention on the Law of Treaties3 suggests that what the International Law Commission wanted to stress, when it put forward the draft of those rules, was, in case of doubt, the importance of determining the history of the multilingual texts concerned in order to establish their interrelationship as a matter of fact. That would be the

2

3

Document S/96/Rev.4. Following Security Council resolution 263, adopted on 24 January 1969, Russian and Spanish now have the status of working languages, consequential amendments being made in the Rules of Procedure in force since then, soc. S/96/Rev.5. Sh. Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (1970). For the draft articles on the law of treaties and commentary submitted by the International Law Commission, see its Reports on the work of the second part of its seventeenth session and on its eighteenth session, ILC Yearbook 1966, vol. II (A/6309/Rev.1).

24. ON MULTILINGUAL INTERPRETATION

451

point of departure for an operation designed to establish the intention of the parties to the treaty in question. Already in 1964, the Commission indicated that it would not be content to rely on purely doctrinal studies, and requested the Secretariat to furnish further information regarding the practice of the United Nations in drawing up the texts of multilingual instruments.4 The practical considerations which prompted that attitude in relation to the interpretation of a multilingual treaty obviously apply with even greater force when what is being interpreted is a resolution which exists in a number of language versions, the precise status of which differs. As stated, the United Kingdom delegate submitted the original draft of resolution 242 (1927) and naturally the original text is English. It is an historical fact, which nobody has ever attempted to deny, that the negotiations between the members of the Security Council and with the other interested parties which preceded the adoption of that resolution were conducted on the basis of English texts, ultimately consolidated in Security Council document S/8247. Investigations that have since been made establish that at some stage the question was raised whether the translations prepared by the Secretariat (and especially the French translation) were adequate and accurate renderings of that original. This question was answered in the affirmative. The translations were prepared in the usual way by the appropriate language services of the Secretariat. It appears that these translations were checked by the substantive Secretariat officials in the Secretariat’s Department of Political and Security Council Affairs assigned to the Security Council, and later by members of the Security Council themselves in informal meetings. Those checks supplied the necessary political controls over the technical work. There is also some evidence that different Foreign Ministries made contemporary independent checks.5 The upshot was at the time a general understanding that, in the same way that the English and Russian languages can get by without use of the definite (or indefinite) article, the genius of the French and Spanish languages requires use of definite articles to a degree which a non-Latinist may find excessive and misleading, or at least confusing. A suggestion that the translation may have been faulty (although in what respect is not clear) has only been advanced recently, but even so the question is, and will remain, an open one. Many experts in the French language, including academics with no political axe to grind, have advised that the

4

5

Report of the International Law Commission on the work of its sixteenth session, footnote 170, YBILC, 1964/II (A/5809). See also the discussion at the Commission’s 767th meeting, ibid. vol. I. For the memorandum of the Secretariat (in the preparation of which the present writer assisted) see doc. A/CN.4/187, YBILC 1966/II. Eugene Rostow, “The United Nations and Legal Aspects of the Search for Peace in the Middle East”, (1970) Proceedings of the American Society of International Law 69. In 1970 Dean Rostow occupied a responsible position in the State Department during the administration of President Johnson, and his remarks were made with personal knowledge and authority.

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French translation is an accurate and diplomatic rendering of the original English text, and possibly even the only acceptable rendering into French. As an independent scholar of the law has recently written: “the expression ‘des territoires’ [in the French translation] may be viewed merely as an idiomatic rendering into French, not intended to depart . . . from the English.”6 This contention is further supported by the proceedings in the Security Council itself. In its composition on the date in question, ten representatives used the English language (Brazil, Canada, China, Denmark, Ethiopia, India, Japan, Nigeria, United Kingdom and the United States of America). French was used by three representatives (Bulgaria, France, Mali), and Russian and Spanish by one each, the USSR and Argentina (it will be noted that the French-speaking delegations were then favourable to the Arab cause). Furthermore, of the non-members invited to take part in those meetings – the UAR (as Egypt was then known), Israel, Jordan and Syria – all were habitually using the English language, both in the formal meetings of the Security Council and in the private negotiations. The United Kingdom introduced the draft resolution at the 1379th meeting of the Security Council on 16 November 1967. In subsequent meetings there was sporadic mention – without particular stress on linguistic problems – of the meaning to be given to the phrase under consideration here. On the question of concordance, the French representative was explicit in stating that the French text was “identical” with the English text.7 The Israel representative intervened at the end of the debate to state that he was communicating to his Government nothing else except the original English text of the draft resolution as presented by the original sponsor on 16 November.8 It is known from an outside source that the sponsors resisted all attempts to insert words such as “all” or “the” in the text of this phrase in the English text of the resolution.9 It will not be overlooked that when that very word 6

7

8 9

Julius Stone, “The ‘November Resolution’ and Middles East Peace: Pitfall of Guidance” in A Collection of Essays in honor of Josef L. Kunz (reprinted from Toledo Law Review (1970) footnote 7. S/PV 1382 at 58 (Provisional English Version). Note also the remark of the representative of France at the 1385th plenary meeting of the General Assembly on 3 November 1970, insisting “in order to avoid reviving an old quarrel” that this part of resolution 242 must be quoted in exactly the same terms as those that were adopted, the English text in the original English, the French text in the original French version, the Russian version in the original Russian version, and so on. A/PV.1835 at 53 (Provisional English version). This is probably the most authoritative confirmation one could have that the French text was intended to convey exactly the same meaning as the English, and not vice versa. S/PV.1382 at 96 (Provisional English version). Arthur Lall, The UN and the Middle East Crisis at 253–34 (1968). Ambassador Lall had earlier been Deputy Permanent Representative of India to the United Nations, and although in 1967 he held a teaching post at Columbia University in the City of New York, he is widely regarded as reflecting the views of the Indian delegation which, at that time, was a member of the Security Council.

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453

“all” erroneously crept into the Spanish translation of the draft, it was subsequently removed. It is submitted that when resolution 242 is closely examined in the light of the practice and procedure of the Security Council and the Secretariat and of its own legislative history, the supposition of any real or assumed lack of concordance between some of the language versions of the official text of that resolution is not helpful in resolving any interpretation problems which that resolution may present. One reason for this is that in order to remove such lack of concordance, it would be necessary to rewrite one or other of the language versions. However, that process would in the nature of things introduce arbitrariness and subjectivities into the matter. For instance, it is said that the indefinite quality of the English and Russian versions – which was a matter of political determinism – ought to be met by the introduction of a word such as certains into the French version (and its equivalent in the Spanish). However, in such a context, certains would need some equivalent in English, for instance some, a word that does not appear in the English text and which, moreover, it is unlikely that a draftsman with any command of the English language, from either side of the Atlantic, would have willingly or wittingly inserted. If on this score there is any ambiguity in resolution 242 as it stands (which we do not think to be the case), it is rendered neither greater nor less by comparison of the different language versions but is inherent in the text as adopted, in all its language versions. In this connection, it may be observed that categorical assertions that the resolution obliges Israel to withdraw its armed forces from all the occupied territories are not based on preference for one or other of the language versions of the resolution, but on the resolution in its integrity, in each one of its language versions. The pro-Arab representatives using the English, French and Russian languages in the Security Council debate in November 1967 made that clear. However, the real problem of what the resolution means on this cardinal question or, to put it differently, what the Security Council intended, arises whatever the language in which the resolution be read or a given contention expressed. Curiously, there is remarkably little international jurisprudence on the interpretation of multilingual resolutions of international organs. In the Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South-West Africa advisory opinion the International Court of Justice noted that there was a slight difference between the English and French texts of a resolution of the General Assembly. From its examination of the debates in the General Assembly it reached the conclusion that the French version seemed to express more precisely the intention of the General Assembly.10 Applying that test to resolution 242, it would follow that in order to reach

10

ICJ Rep. 1955, 67 at 72.

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viable conclusions as to the intention of the Security Council (assuming that to be the aim of the process of interpretation), account must be taken of all the antecedent discussions in the Security Council (from May, 1967) and in the Fifth Emergency Special Session of the General Assembly.11 That includes the rejection of all resolutions calling for the complete withdrawal of all Israeli armed forces from all the occupied territories. It also includes the predominant position in fact occupied by the English language in all the formal and informal meetings and negotiations that preceded the adoption of resolution 242. It is a commonplace to say that interpretation is an art, not an exact science. Likewise, translation is an art, not an exact science. The most the law can do in such circumstances is to indicate in general terms, as we have done here, the nature of the rules governing the process by which this art is applied in a particular case, the kind of intellectual discipline with which the interpreter must gird himself. In this connection, we should recall the wise counsel furnished by the greatest of Jewish jurists to the translator: Any translator who intends to render a work from one language to another merely by rendering word for word, and slavishly following the order of the chapters and sentences in the original, will come to grief. The product of his labor will be unintelligible and ludicrous. That method is utterly incorrect. The first step is to read the original until the translator is fully at home in it and has complete understanding of what the author has written. Then he should render the contents clearly and idiomatically. However, this can be done only if he grasps syntax by the neck and vigorously shakes it, changing the order paragraphs and words, substituting many words for one when necessary and vice versa, and altering punctuation until the translation reads clearly, gracefully and meaningfully.12

The critics of the different language versions of Security Council resolution 242 would do well to keep this in mind.

11

12

See for instance document S/8235, circulating a Security Council document the text of a raft resolution (which was not adopted) submitted by a group of delegations at the emergency meetings of the General Assembly. That circulation was undertaken at the request of India at the 1373rd meeting of the Security Council on 9 November 1967. Maimonides to Shmuel Ibn Tibbon in 1199. Translation from Leo. W. Schwarz, Memoirs of My People (1943) at p. x.

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25 THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982 THE APPLICATION OF PART XI: AN ELEMENT OF BACKGROUND

Part XI of the United Nations Convention on the Law of the Sea, 1982,1 articles 133 to 191, with its related annexes III and IV, deals with the seabed and ocean floor and its subsoil beyond the limits of national jurisdiction and the exploitation of their natural resources. Through the combination of articles 76 on the definition of the continental shelf, 83 on the delimitation of the continental shelf between States with opposite or adjacent coasts, article 84 on charts and lists of geographical co-ordinates, and 134, paragraph 3, on the scope of Part XI of the Convention, the outer limits of the continental shelf constitute the landward limit of the international sea-bed area beyond the limits of the national jurisdiction. The Convention, conceived as a “package deal’, was adopted despite the opposition of the principal maritime and industrialized States, who objected principally to the provisions of Part XI. The Conference adopted the Convention as a whole together with some ancillary instruments at its 182nd meeting on 30 April 1982 by a recorded vote of 130 to 4, with 17 abstentions.2 Israel, Turkey, the United States of America and Venezuela cast negative votes. Israel explained its negative vote as due to the standing that the Convention gave to the Palestine Liberation Organization, and to certain other difficulties which it then had.3 The negative votes of Turkey and Venezuela were explained by reference to maritime delimitation disputes with neighbouring States. The United States explained its negative vote as due to its firm opposition to certain aspects of Part XI. In this, the United States was joined by the abstaining States: Belgium, Bulgaria, Byelorussian SSR, Czechoslovakia, German Democratic Republic, Federal Republic of Germany, Hungary, Italy, Luxembourg, Mongolia, the Netherlands, Poland, Spain, Thailand, Ukrainian SSR, USSR, and the United Kingdom. This includes all the industrialized States of both Western and Eastern Europe (except Canada, France and Japan), three of the permanent members of the Security Council, and all 1 2 3

Third United Nations Conference on the Law of the Sea, Official Records, vol. XVII (A/CONF.62/122 & Corrs.); 1833 UNTS 3. Third United Nations Conference on the Law of the Sea. Official Records, vol. XVI, 155. Ibid. at 158. Fuller in the concluding statement by the representative of Israel at the 190th meeting on 8 December 1982, ibid. vol. XVII at 84.

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(except the three mentioned) of the leading maritime powers, including those with the longest coastline, the USSR (as it then was) and the United States of America. The reason given by the USSR and its Allies was different from that of the Western States, but the impact on the future of the Convention was the same. This boded ill for a major international convention intended to be universal in time and in space. The Convention establishes two new indispensable international institutions. One is the International Sea-Bed Authority (ISBA) to administer the sea-bed and its subsoil beyond the limits of national jurisdiction, which the Convention in article 136 designates as the “common heritage of mankind”. The second is the International Tribunal for the Law of the Sea (ITLOS), partly to settle disputes arising out of the exploration and exploitation of the international sea-bed area and its resources. Article 308, paragraph 1, of the Convention, on entry into force, provides that the Convention shall enter into force twelve months after the date of deposit of the sixtieth instrument of ratification or accession, a wise provision as things turned out inserted on the insistence of the President of the Conference at the time, Ambassador Shirley Amerasinghe of Sri Lanka.4 Instruments of ratification or accession were slow in coming in. Furthermore, not one of those States that abstained or voted negatively showed any change of position and few of the Western States that had voted for the Convention in 1982 went to the next step of signing it subject to ratification, except Iceland, which is in a special position due to its complete dependence on the living resources of the sea. All the industrialized States which had voted for the Convention at the Conference held back on its ratification. However, by the end of 1992 it was clear that the sixtieth instrument would soon arrive. The Secretary-General received the sixtieth instrument on 16 November 1993 and formally announced that the Convention would enter into force on 16 November 1994.5

4

5

On art. 308, see University of Virginia, Center for Oceans Law and Policy, The United Nations Convention on the Law of the Sea: A Commentary, vol. V at 203 (1989, Sh. Rosenne and L.B. Sohn, volume editors). Circular letter C.N. 418.1993.TREATIES-7 (Depositary Notification), dated 14 January 1994. The deposit of the 60th instrument – that of Guyana – had been notified through the normal publication services of the United Nations in November 1993. The following States made up the quorum of sixty: Angola, Antigua and Barbuda, Bahamas, Bahrain, Barbados, Belize, Botswana, Brazil, Cameroon, Cape Verde, Costa Rica, Côte d’Ivoire, Cuba, Cyprus, Djibouti, Dominica, Egypt, Fiji, Gambia, Ghana, Grenada, Guinea, Guinea-Bissau, Guyana, Honduras, Iceland, Indonesia, Iraq, Jamaica, Kenya, Kuwait, Mali, Malta, Marshall Islands, Mexico, Micronesia, Namibia, Nigeria, Oman, Paraguay, Philippines, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Sao Tome and Principe, Senegal, Seychelles, Somalia, Sudan, Togo, Trinidad and Tobago, Tunisia, Uganda, United Republic of Tanzania, Uruguay, Yemen, Yugoslavia, Zaire, Zambia, and Zimbabwe.

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The Conference had anticipated that the quorum of 60 States required to bring the Convention into force might not be adequate to ensure proper representation of the different interests and of the different regional groups recognized by the United Nations in the most important of the organs which the Convention set up. These are the Council of ISBA, the composition of which is regulated by article 161 of the Convention, and ITLOS, the composition of which is regulated by Annex VI, article 2, of the Convention. Accordingly, article 308, paragraph 3, included the curiously worded provision that the first Council shall be constituted in a manner consistent with the purpose of article 161 if the provisions of that article cannot be strictly applied.6 There was no corresponding provision in Annex VI regarding the Tribunal, but there was no need for one as its members are elected by a special electoral college going under the name of Meeting of the States Parties whoever those States are at the time, with a certain implied discretion as to the holding of the first election.7 Since the Convention was intended, as stated, to be universal in time and in space, the situation that was unrolling, that the principal maritime, industrialized and economic Powers and the permanent members of the Security Council showed no sign of becoming parties to the Convention as it stood, became a cause of growing concern. Feeling developed that dissatisfaction with Part XI could bring about the collapse of the Convention unless its implementation was adjusted. That would have potentially very grave consequences for the two primary matters with which the Convention deals – the freedom of global maritime and aerial navigation and communications generally, and the protection of the resources of the sea both from overexploitation and from pollution.8 This concern was expressed discreetly through diplomatic channels and the annual debates on the law of the sea that took place in the General Assembly of the United Nations reflected it. In 1990 the Secretary-General of the day, Mr Pérez de Cuéllar was sufficiently

6

7

8

Although the Assembly of the ISBA held its first meeting, according to the Convention, in 1994, by the time of the original writing of this article (November 1995) it had not succeeded in electing the first Council. See United Nations, Division for Ocean Affairs and the Law of the Sea, Law of the Sea Bulletin No. 29, p. 83 (1995). The first election of the members of the Council took place in March 1996. On the establishment of ITLOS, see T. Treves, “The Law of the Sea Tribunal: Its Status and Scope of Jurisdiction after November 16, 1994”, 55 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 421 (1995); and my “Establishing the International Tribunal for the Law of the Sea”, 89 AJIL 810 (1995). This latter aspect has since been examined in the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, in session between 1993 and 1995, and leading to the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1992, relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, opened for signature in New York on 4 December 1995, 2167 UNTS 3.

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confident to take the initiative to convene informal consultations in a very small group of directly interested States aimed at achieving universal participation in the Convention. He recognized that several aspects of Part XI had inhibited some States from participating in the Convention. Referring to the collapse of the communist systems in Central and Eastern Europe, he also noted that in the eight years that had elapsed since the Convention was adopted, many important political and economic changes had taken place, some directly affecting deep sea-bed mining, others affecting international relations in general. Those factors had to be taken into account. The SecretaryGeneral was encouraged by the positive and constructive response from States in those consultations.9 Stimulated by the reaction, the Secretary-General, through the Director of what was then the Office for Ocean Affairs and the Law of the Sea, UnderSecretary-General Satya N. Nandan of Fiji, continued these consultations. The first stage was to identify the issues that were at the heart of the blockage. These related to the regime of planned international economy as the approach to the management of the resources of the international sea-bed area and its resources embodied in Part XI of the Convention, as opposed to the market-economy approach of the United States and its allies. On the basis of the Secretariat’s preparatory work, this process was completed during 1991. The next step was to try and establish acceptable conclusions for the implementation of Part XI, based on the market-economy approach and express them in treaty language for inclusion in an appropriate formal agreement.10 In 1992 those consultations were made open-ended and by their finish approximately 50 delegations were taking part in them. In 1993, when it was apparent that the quorum of 60 States would be reached during the year, the new Secretary-General, Boutros Boutros-Ghali, hastened the pace of the consultations which were turned to concrete and in-depth discussions of specific issues.11 Because of the amendment provisions of articles 312 to 316 of the Convention, applicable when the Convention is in force, it became necessary to finish these consultations, either way, before the entry into force of the Convention on 14 November 1994. This accelerated the tempo of the consultations, which were concluded in the middle of the year. On 28 July 1994 the General Assembly adopted resolution 48/263 entitled Agreement

9

10 11

Report of the Secretary-General on the Law of the Sea, doc. A/45/721 (1990 mimeo.), para. 14. Reproduced in Netherlands Institute for the Law of the Sea (NILOS), International Organizations and the Law of the Sea, Documentary Yearbook 1990 at 74. Report of the Secretary-General on the Law of the Sea, doc. A/46/724 (1991, mimeo.), paras. 15–20. Reproduced in NILOS, Documentary Yearbook 1991 at 137. Report of the Secretary-General on the Law of the Sea, doc. A/48/527 (1993 mimeo.), paras. 8–15. Reproduced in NILOS, Documentary Yearbook 1993 at 31; Report of the SecretaryGeneral on the Law of the Sea, doc. A/49/631 (1994, mimeo.) paras. 9–15, reproduced in NILOS, Documentary Yearbook 1994.

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relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982.12 The vote on that resolution was 121 to none with seven abstentions, to which have to be added four States which were absent when the vote was called and which intended to vote in favour.13 In that resolution the General Assembly reaffirmed its desire to achieve universal participation in the Convention and “to promote appropriate representation in the institutions established by it”. At the same time the General Assembly affirmed that the Agreement shall be interpreted and applied together with Part XI “as a single instrument” and included several ancillary, technical and transitional provisions designed to ease the entry into force of the combined Convention and Agreement by 16 November 1998. The Agreement, which was annexed to the resolution, is short but complicated, relating as it does both to delicate areas of the modern law of treaties and to complicated provisions of the Convention. The provisions on the implementation of Part XI, designed to direct the mining operations into a cost-effective operation consistent with a market-oriented economy, are themselves an Annex to the Agreement, and are not considered in this Note. The word amendment was carefully avoided in this complex and sensitive diplomatic exercise. The reasons were partly diplomatic, to avoid confrontation with States that had adopted and continued to maintain a strongly ideological approach to the problem of deep sea-bed mining as part of the common heritage of mankind, and partly technical. The Vienna Convention on the Law of Treaties of 1969 deals with amendment and modification of a treaty after it has entered into force.14 This was quite correct. Before a treaty has entered into force the States concerned are free to do with it what they like.15 At the same time it was necessary to protect the rights and position of States that had done all that is required of them to become parties to the treaty, but the stipulated quorum of participants to bring the treaty into force

12

13 14 15

The Law of the Sea: UN Convention on the Law of the Sea, Agreement relating to the Implementation of Part XI, Sales No. E.97 V.10. For a convenient reprint of the Convention with the changes incorporated in the text, see International Seabed Authority, The Law of the Sea: Compendium of Basic Documents (2001). On the legislative history of this Agreement, see International Seabed Authority, Secretary-General’s Informal Consultations on Outstanding Issues Relating to the Deep Seabed Mining Provision of the United Nations Convention on the Law of the Sea: Collected Documents (2002). The debate lasted over three meetings of the General Assembly, the 99th to 101st on 27 and 28 July 1994. Part IV, articles 39–41. 1155 UNTS 331. This is not the first occasion on which it was found necessary to effect changes in a treaty because of the unwillingness of important States to become a party to it as originally drafted. Indeed, in the law of the sea itself this has occurred with the International Convention for the Prevention of Pollution from Ships of 1973, which was amended by a Protocol of 1978, and now goes under the acronym of MARPOL 73/78. 12 ILM 1319 (1973), 17 ibid. 541 (1978).

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has not yet been reached. That was part of the problem that faced the “consultations” before 14 November 1994. Article 1, paragraph 1, of the Agreement sets out the basic stipulation that the States parties to it undertake to implement Part XI in accordance with the Agreement. Article 2 deals with the relationship of the Agreement with Part XI of the Convention. It lays down that the provisions of the Agreement and Part XI shall be interpreted and applied together “as a single instrument”, and that in the event of any inconsistency between the Agreement and Part XI, “the provisions of this Agreement shall prevail”. The remainder of the Agreement deals with the treaty-law aspects of the matter. Article 3 opens the Agreement for signature for a period of twelve months by all the States and entities16 entitled to sign the Convention under article 305. By article 4, after the adoption of the Agreement (on 28 July 1994),17 any instrument of ratification or formal confirmation of or accession to the Convention shall also represent consent to be bound by the Agreement, and no State or entity may establish its consent to be bound by the Agreement unless it has previously established or establishes at the same time its consent to be bound by the Convention. This corresponds to the general rule of the law of treaties regarding the relationship between an amendment and the basic treaty, as expressed in article 40, paragraph 5, of the Vienna Convention on the Law of Treaties and as repeated in article 316, paragraph 4, of the Convention. Article 4 goes on to provide in usual terms how a signatory may express its consent to be bound by the Agreement, signature followed by ratification, accession (by a State that did not sign the Agreement), or through the simplified procedure of article 5. Article 5, entitled Simplified procedure, addresses the situation of States signatories of the Agreement that had completed the process of participation in the Convention before 28 July 1994. It employs the established doctrine of “tacit consent”. It provides that such a State shall be considered to have established its consent to be bound by this Agreement 12 months after the date of its adoption, unless that State or entity notifies the depositary in writing before that date that it is not availing itself of the simplified procedure set out in this article.

16

17

By art. 305 (1) ( f ), read together with Annex IX, art. 1, of the Convention, international intergovernmental organizations constituted by States to which its member States have transferred competence over matters governed by the Convention, including the competence to enter into treaties in respect of those matters, may become parties to the Convention. In the Agreement, the word entities refers to those intergovernmental organizations. At the Conference, the only organization that came into consideration was the European Community, but the language of the Annex IX, art. 1, does not close the door to other similar organizations that might come into existence in the future. On the “adoption” of a treaty, see art. 9 of the Vienna Convention on the Law of Treaties.

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This provision is especially designed to protect the position of a State that has completed the process of ratification of the original Convention, and may need to have recourse to its internal ratification processes before it can formally become a party to the Agreement. Its sweep, however, is not limited to those signatory States but is available to all of them. For this purpose it invokes the concept of “provisional application”, covered in article 25 of the Vienna Convention on the Law of Treaties. The Agreement enters into force 30 days after 40 States have established their consent to be bound by it (article 6). That article sets out intricate provisions as to the composition of those 40 States, requiring that at least seven of the major industrialized States of the world are included in that number of 40. This is designed to correct any imbalance in the general make-up of the States parties to the Convention. Had those conditions been fulfilled before 16 November 1994, the Agreement would have entered into force on that date (with the entry into force of the Convention). However, that did not occur and by virtue of article 7 the Agreement was applied provisionally as from that date, the provisional application to continue until 16 November 1998 if the requirements for the balanced composition of the States parties to the Convention have not been met. Article 7 also is intricate. It is to be applied (a) by States which had consented to the adoption of the Agreement by the General Assembly, except that any such State was entitled to notify the Secretary-General before 16 November 1994 that it would not provisionally apply the Agreement or that it would consent to the provisional application only upon subsequent signature or in writing; (b) by States and entities which sign the Agreement, unless such State notifies the depositary at the time of signature in writing that it will not apply the Agreement provisionally; (c) by States and entities which consent in writing to the provisional application of the Agreement; and (d) by States which accede to the Agreement. This provision too protects the position of the States which had completed the process of becoming a party to the Convention. The Agreement therefore entered into force provisionally on 16 November 1994. This arrangement for the adaptation of Part XI has had the desired effect. On 38 June 1996 the requirements for the entry into force of the Agreement were fulfilled and the Agreement entered into force definitively on 28 July 1996. The technique adopted for this instrument is squarely based on accepted concepts of the general law of treaties. In addition it follows as closely as possible the provisions of the Convention itself regarding amendment. It furnishes an important illustration for a method of adapting an existing treaty to new conditions – initial feasibility study to identify what needs adaptation, consultations first in a small group followed by consultations in expanding groups until finally the total international community (now represented by the General Assembly of the United Nations) to negotiate and adopt the changes in an acceptable form. This is especially valid when the changes relate to the manner of implementation of an intricate and highly technical treaty.

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ITLOS was treated differently, as it was only indirectly affected. Among the functions of the Preparatory Commission that the Conference created to prepare for the institutions established by the Convention was preparatory work for the establishment of the Tribunal. In September 1994, after the General Assembly had adopted the Agreement, the Preparatory Commission recommended a one-time deferment of the election of the members of the Tribunal, which according to the Convention should take place within six months of the entry into force of the Convention. In November 1994 the SecretaryGeneral convened an ad hoc Meeting of States Parties – the organ that elects the members of the Tribunal. This Meeting adopted the suggestion of the Preparatory Commission and decided to hold the first election on 1 August 1996, with consequential adaptation of the dates for the nomination of candidates. In effect, that too was a change in the implementation of the Convention, parallel to the formal agreement annexed to the General Assembly’s resolution.18 It meets the wish contained in that resolution for “appropriate representation” in the institutions established by the Convention. Its administrative and financial arrangements are also to meet the general requirement of costeffectiveness on which General Assembly resolution 48/263 insists. While these consultations were going on, I was a Visiting Scholar and Adjunct Faculty at the University of Virginia School of Law in Charlottesville, Virginia, a general editor of the Law of the Sea Project of the Center for Oceans Law and Policy of that Law School, and volume co-editor of volumes II to V of the Commentary on the Convention produced at that Center, covering all of the Convention except Part XI. In that capacity I was in regular contact with members of the Secretariat who were engaged in those consultations, and with several delegations. In 1991 the Secretariat asked if I could render assistance with regard to some of the technical legal problems that were coming to the fore, especially the problem of how to effect changes in Part XI without convening a special diplomatic conference for that purpose.19 18

19

For documentation on this, see the report of the Preparatory Commission submitted to the Meeting of the States Parties, doc. LOS/PCN/152, vol. IV at 221 (1995 mimeo); and the reports of the Meeting of States Parties, docs. SPLOS/3 and SPLOS/4 (1995 mimeo). By a coincidence, I had been asked to assist the legal service of the United Nations High Commissioner for Refugees in 1966 on a similar problem relating to a change in the 1951 Convention relating to the Status of Refugees. 189 UNTS 137. Together with the late Dr Paul Weis the Protocol relating to the Status of Refugees of 31 January 1967 was conceived and adopted, 606 ibid. 267. The problem there was different, as the Convention was in force at the time, but for political reasons it was desired to effect the change without going through a formal amendment process. See on this the memorandum of 16 November 1966 of the Office of Legal Affairs to the UN High Commissioner for Refugees, on the question of the adoption by the General Assembly of an instrument amending or extending an international instrument concluded previously at a conference of States. United Nations Juridical Yearbook 1966, p. 242. I had been a member of the International Law Commission during the period 1962 to 1966 when it prepared the draft on the law of treaties, and Chairman of the Delegation of Israel to the Conference on the Law of Treaties of 1968–1969.

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In July 1991 I sent to Under Secretary-General Nandan the paper that appears as an appendix to this Note. I have since learned from the Division of Ocean Affairs and the Law of the Sea of the Office of Legal Affairs of the United Nations Secretariat that this paper, after due examination, formed one of the elements on which the 1994 Agreement was based. It has a certain historical value, and I am grateful to the editors of the Israel Law Review for reproducing it here. Appendix Preliminary Note Regarding Possible Procedure for Changes in the United Nations Convention on the Law of the Sea, 1982 1. The assumption is that if agreement is reached which would enable the Convention to be brought into force with general participation, it would be preferable to have that agreement duly accepted without recourse to another UNCLOS [Conference on the Law of the Sea]. As a point of departure, it is to be noted that the Vienna Convention on the Law of Treaties (1155 UNTS 331) does not deal with the amendment or revision of a treaty before it has entered into force. Likewise, the negotiation of the final clauses of the 1982 Convention [on the Law of the Sea] was expressly limited to the amendment of the Convention after it has entered into force. The practical consequence of this is that any method of treaty-making which is found to be appropriate can be used for adjustments (under any name) to the 1982 Convention before it enters into force. By “treaty-making” in this context is meant a method by which a State or other entity entitled to become a party to the Convention under article 305 expresses on the international plane its consent to any adjustments that may be made to the 1982 Convention. At the same time, it might be found to be politically appropriate to seek guidance in the amendment clauses of the Convention, particularly articles 312–314, although caution is needed on this aspect, since article 314 on amendments to the provisions of the Convention relating exclusively to activities in the Area contains strict requirements for the amendment to those provisions – precisely the object of the exercise in question.a For this purpose, three categories of State and other entities entitled to become parties to the Convention under article 305 (hereafter “States”) have to be considered: (a) States which have signed and ratified (or acceded to) the Convention; (b) States which have signed the Convention but have not a

[In the Convention, Area (with an upper case A) means the sea-bed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. Activities in the Area means “all activities of exploration for, and exploitation of, the resources of the Area”. Art. 1, paras. 1(1) and 1(3). Resources means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules. Article 133(a) – Sh. R.]

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ratified it; and (c) States which have taken no international action with regard to the Convention. 2. The essential legal requirement is that any change in the 1982 Convention should be properly “adopted” in accordance with article 9 of the Vienna Convention and “authenticated” in accordance with article 10 of the Vienna Convention (of significance for the six authentic texts). On the other hand, there are no formal requirements as to how these two processes have to be completed, those provisions of the Vienna Convention being themselves residual rules. While in most cases these steps are undertaken in a duly convened international conference of plenipotentiaries (as was the case at UNCLOS III), or in an organ of an international organization, this is not an absolute requirement of modern treaty-making. 3. A significant illustration of a procedure for this kind of operation not involving the convening of an international conference of plenipotentiaries or formal drafting, adopting and authenticating processes in the General Assembly is furnished by the manner in which the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (606 UNTS 267) was completed. In effect this Protocol amends the 1951 Convention relating to the Status of Refugees (189 UNTS 137) – a Convention which had already entered into force and therefore is in a different situation from the Law of the Sea Convention. The text of that Protocol had been negotiated through the Office of the High Commissioner for Refugees with the interested States. On the recommendation of the Executive Committee of the Programme of UNHCR, the High Commissioner submitted the draft of the Protocol to the General Assembly through ECOSOC as an addendum to his annual report. GAOR, 21st session, supplement 11A, doc. A/6311/Rev.1/Add.1. ECOSOC in resolution 1186 (XLI) of 18 November 1966 took note of the draft Protocol with approval (ECOSOC OR, 41st session, Supp. 1A (E/4264/Add.1) and transmitted it to the General Assembly. The General Assembly, in resolution 2198 (XXI) of 16 December 1966, took note of the Protocol, indicated the UN document in which it could be found (A/6311/Rev.1/Add.1), and requested the Secretary-General to “transmit the text of the Protocol to the States mentioned in article V thereof, with a view to enabling them to accede to the Protocol”. This resolution thus simultaneously adopted the text of the Protocol and authenticated it in all the relevant languages, and the reference to accession ensured that application of domestic treaty-making procedures where necessary. The Protocol itself provided that it would come into force on deposit of the 6th instrument of accession, a process which was completed by 4 October 1967, that is to say within a period of approximately eight months. See also the statement on this procedure by the Legal Counsel (Stavropoulos) at the 1149th meeting of the Third Committee, GAOR, 21st session, 3rd Committee 638. 4. As the 1961 Convention had already entered into force, article V of the Protocol provided that the Protocol would be open for accession on

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behalf of “all States Parties to the [1951] Convention and of any other State Member of the United Nations or member of any of the specialized agencies to which an invitation to accede may have been addressed” by the General Assembly – the type of participation clause then in common use in United Nations practice and now superseded by the “all States” formula found in article 305 of the 1982 Convention. 5. While this procedure (which may have been followed in other instances) can certainly serve as a model, it would require some adjustment for it to be applicable to the 1982 Convention which has not yet entered into force, and in that connection it is suggested that the formula and procedure adopted by IMO in respect of the MARPOL Convention (and others) would be convenient. 6. On the basis of the foregoing, a tentative suggestion for dealing with the problem would run along the following lines: (a) Once the adjustments have been negotiated by the interested States and groups, the text duly drawn up could be included in some appropriate form in a report on the Law of the Sea which the Secretary-General would submit to the General Assembly. This will ensure that the text is available in all six official languages of the General Assembly, corresponding to the six authentic language versions of the Convention itself. (b) In that connection, if it is desired that States entitled to become parties to the Convention under Article 305 which are not members of the United Nations should participate in the adoption and authentication processes to the extent that they did in UNCLOS III (where the two processes were in fact coalesced), no doubt special arrangements could be made to enable them to participate in the plenary General Assembly (cf. the participation in items relating to the International Court of Justice of States parties to the Statute of the ICJ which are not members of the United Nations), or a special meeting could be held in one of the Main Committees of the General Assembly at which such States could be invited to be present and participate [with or without a vote].b There are precedents for the participation of Switzerland in meetings of the Sixth Committee on items of interest to that country, and no doubt there are others. (In fact, not all the States and entities mentioned in article 305 were full participants, with the right to vote, in UNCLOS III.) (c) The participation clause of the adjustment protocol should refer to all the States entitled to become parties to the Convention under article 305. (d) A carefully drafted resolution of the General Assembly “taking note” of the report in question would serve both to adopt the text(s) of the adjustments and to authenticate them in all languages.

b

[In fact no such arrangements were made in 1994 – Sh. R.]

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(e) The Secretary-General should be invited to transmit the text of the adjustment document to all the States entitled to become parties to the Convention under article 305. However, different formulas will be required according as the addressee has already ratified (or acceded to) the Convention, has merely signed it, or has taken no international action. ( f ) For States which have already ratified or acceded to the Convention, it is suggested that the doctrine of tacit consent (accepted in article 313 of the Convention) could be invoked. Acceptance of the adjustments within a given period of time would be presumed in the absence of any objection by a given State. Article 313 adopts a period of 12 months for what are termed “amendments by simplified procedure” and that could be the period within which the States concerned could indicate their unwillingness to accept the adjustments and thus not be counted in the quorum of 60 States needed to being the adjusted Convention into force. The customary period for tacit consent varies in the Vienna Convention itself from 90 days to 12 months, depending on the type of transaction involved. As in the matter under consideration here the treaty-making power of the individual States is directly involved, the question whether some form of internal parliamentary approval to the revised text is required will have to be taken into account, and this would justify the longer period in this case. The adoption of the concept of tacit consent would not prejudice a more formal form of acceptance by those States so desiring, following Mr Stavropoulos’ statement on procedure of 1966. ( g) For States which have signed but not yet ratified the Convention, the provision of article 40, paragraph 5, of the Vienna Convention, in effect repeated in article 316, paragraph 4, of the Convention, should be applied. Ratification subsequent to the General Assembly resolution should be taken as ratification of the Convention as modified. (h) For States which have not yet signed the Convention, and which can only become parties to it by accession in accordance with article 307, it would have to be made clear that only accession to the modified Convention would be possible. Charlottesville, Virginia, 2 July 1991

Shabtai Rosenne

26 THE UNITED NATIONS, THE OCEANS AND SOME GEOGRAPHY

I. Introduction Through all the bitterness, bloodshed, strife and crises of the twentieth century, one topic has been continuously on the international agenda in one form or another. That is the law of the sea; and since the sea covers over seventy per cent of the earth’s surface, anything to do with the sea is of immediate and general international and human concern, not the plaything of lawyers and diplomats, not lawyers’ law. The conclusion on 10 December 1982 – Human Rights Day – of the Third United Nations Conference on the Law of the Sea, and the entry into force on 16 November 1994 of the United Nations Convention on the Law of the Sea – the dominant international legal instrument regulating all matters connected with the sea – did not mean the end of international political interest in the sea.1 The General Assembly of the United Nations has required an annual report by the Secretary-General on the Law of the Sea since the Conference commenced in 1973.2 The General Assembly’s instruction was revised in resolution 49/23, 5 December 1994. By this, the SecretaryGeneral of the United Nations is now required to submit an annual report not only on developments pertaining to the implementation of the Convention, but more broadly on other developments relating to ocean affairs and the law of the sea. The first of those wider reports was submitted in 1996, in doc. A/51/645. This reporting – frequently supplemented by special reports on particular topics – ensures that ocean affairs in the broad sense remain on the international agenda. This action by the General Assembly is in addition to the requirements of the Convention. Article 319, paragraph 2(a), the Convention requires the Secretary-General to report to all States parties, the International Sea-Bed Authority (ISBA), and competent international

1 2

1183 UNTS 3. It is to be regretted that these documents only exist in some impermanent mimeographed form. They were, however, reproduced annually by the Netherlands Institute for the Law of the Sea in its series entitled International Organizations and the Law of the Sea: A Documentary Yearbook (annual since 1984, now discontinued).

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organizations on issues of a general nature that have arisen with respect to the Convention. The first of such reports was also issued in 1996.3 By mid-1997 all of the institutions established by the Convention had been set up and had commenced functioning. This includes first the International Sea-Bed Authority (ISBA), of which all States parties to the Convention are ipso facto members. That held its first session at Kingston, Jamaica (its seat), between 16 November 1994 and 16 August 1995, devoted primarily to organizational matters. By article 166, paragraph 4, of the Convention the SecretaryGeneral of ISBA is to make an annual report to the ISBA Assembly on the work of the Authority. Secondly, the International Tribunal for the Law of the Sea (ITLOS) has been set up. Its judges were elected in August, 1996, and the Court held its first two organizational sessions in Hamburg (its seat) in October 1996 and February 1997. The Meeting of the States Parties – a formal and institutionalized meeting of the States that are parties to the Convention – is the parent body so-to-speak of ITLOS. It has encouraged the Tribunal to present a report directly to the Meeting of the States Parties.4 The Meeting of States Parties has continuing functions in relation to ITLOS, especially for the election of the judges and for administrative and budgetary matters. It performs similar functions for the Commission on the Limits of the Continental Shelf (CLCS) established under Annex II of the Convention in accordance with article 79, on the definition of the continental shelf. The election of this organ took place on 13 March 1997. Both ISBA and ITLOS have been granted observer status in the United Nations General Assembly.5 In addition to the United Nations General Assembly, two of the specialized agencies, the International Maritime Organization (IMO) and the United Nations Food and Agriculture Organization (FAO), are continuously involved 3

4

5

Doc. SPLOS/6, 11 April 1996. The Secretary-General explained to the Conference how he understood that reporting function in a note submitted to the 37th session of the General Assembly on the responsibilities of the Secretary-General as a consequence of the adoption of the Convention. Official Records of the 37th session of the General Assembly, annexes, agenda item 28 (doc. A/37/561, 1982). The General Assembly gave the necessary approvals to the assumption by the Secretary-General of responsibilities under the Convention in resolution 37/66, 3 December 1982. This is discussed more fully in University of Virginia, United Nations Convention on the Law of the Sea: A Commentary, vol. V, at 291 (Sh. Rosenne and L.B. Sohn, eds., 1989), hereafter Virginia Commentary. That Center’s Commentary on the whole of the Convention appeared in six volumes between 1985 and 2002. On the election of the members of ITLOS, see the report of the fifth meeting of States Parties (SPLOS/14, 20 September 1996). On the first organizational meetings of ITLOS, see ITLOS/PRESS.1, 2, 3 and 4 between 5 October and 1 November 1996 and 5, 3 March 1997. And see my ‘Establishing the International Tribunal for the Law of the Sea’, 89 AJIL 806 (1995); ‘The International Tribunal for the Law of the Sea and the International Court of Justice: Some Points of Difference’, The Baltic Sea: New Developments in National Policies and International Cooperation 200 (R. Platzöder and Ph. Verlaan. eds., 1996). See General Assembly resolutions 51/6, 24 October 1996 (ISBA) and 51/204, 17 December 1996 (ITLOS).

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in the two major aspects of oceans affairs of general interest – maritime communications and the protection of the marine environment, and the seas as a source of food, including universal aspects of fisheries management. The protection of the marine environment, which includes also its biological resources and their environment, assumed an important place in the United Nations Conference on Environment and Development – the Rio Conference – of 1992. Chapter 17 of Agenda 21 dealt with the protection of the oceans and the protection, rational use and development of their living resources.6 It led to the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. That held six sessions between 1993 and 4 August 1995, when it adopted the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.7 Natural biogeography does not easily accommodate itself to artificial man-made lines of delimitation and jurisdiction, nor does the geomorphology of the sea-bed, as will be seen later. Formal and to some extent esoteric though those elements might seem, they signify perhaps more than anything else how ocean affairs have now become a major element of present-day international affairs. If the annual reporting feeds the political dimension of the international interest, it also reflects that virtually every branch of human knowledge and experience is enmeshed in its performance. II. Historical Synopsis of the Law of the Sea in the Twentieth Century The international treatment of the law of the sea during the twentieth century falls into four fairly clearly defined periods. From the beginning of the century to the First World War (1914–1918), it was concerned with warfare at sea and the rights and duties of neutrals, and defining what would legitimately be a theater of military operations at sea, at least for the purposes of exercising the right of prize – pitting belligerents against neutrals.8 For that purpose, the various Hague Conventions of 1899 and 1907, to this day

6 7 8

See Report of the United Nations Conference on Environment and Development (A/CONF.151/ 26/Rev.1 (Vol. I)) at 238, Sales No. E.93.I.8; 2167 UNTS 3; J.-P. Lévy and G.G. Schram, United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (1996). For an overview of this problem in relation to the 3–mile rule for the breadth of the territorial sea, see J.H.W. Verzijl, Le droit des prises de la grande guerre 270 (1924); J.W. Garner, Prize Law during the World War 224 (1927); S.W.D. Rowson (Shabtai Rosenne), “Prize Law during the Second World War”, 14 BYIL 160, 174 (1947); C. John Colombos, A Treatise on the Law of Prize 121 (3rd ed., 1949). For an earlier account of this problem during the Napoleonic Wars, see A. de Pistoye & Ch. Duverdy, Traité des prises maritimes, vol. I, 92 (1859).

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anchors of the customary international law on the topic, somewhat oversimplified matters (as we were to learn later) by merely dividing the sea into territorial waters and high seas. In doing this, a warning uttered by a representative of Norway was swept under the carpet: “In the first place, the boundaries of territorial waters are very uncertain and are determined along very different lines by different States.”9 Prophetic words! The second phase began in 1924 and ended in apparent failure in 1930. In this period the League of Nations embarked upon an ambitious project of codifying international law, and chose the law of territorial waters as one of the topics for immediate action. It was widely thought that it would be a relatively easy matter to secure universal acceptance of a breadth of three nautical miles (nm) for the band of territorial sea along the coast of each coastal State, and agreement on the concept of “innocent passage” through the territorial waters, including straits of up to six nms in width between two States.10 In 1930 the League of Nations convened the Conference for the Codification of International Law, with the law of territorial waters on its agenda. That topic was allocated to the Second Committee of the Conference. It was not long before the Conference became aware that there was no general agreement on the breadth of the territorial waters. Although the Second Committee was able to make some technical progress on various aspects of the determination of the baselines from which the territorial waters would be measured and on the general question of the right of innocent passage through territorial waters, the absence of agreement on this fundamental question meant that the work of the Second Committee was incomplete and left in the form of drafts. The deteriorating international situation of the 1930s prevented any further action by the League of Nations. The Second World War (1939–1945) again brought out questions of the exercise of belligerent rights against neutrals at sea, a repetition on a grander scale of what had occurred a generation earlier. The experience of economic warfare at sea has since been mobilized to enforce economic sanctions ordered by the Security Council under Chapter

9

10

The Proceedings of the Hague Peace Conferences: The Conference of 1907, vol. III, 580 (J.B. Scott, ed., 1921). The speaker was Ambassador Hagerup, at the 3rd meeting of the Second Subcommission of the Third Commission, on 27 July 1907. There has been no official international interest in the law of war at sea since 1907, and all the conferences on the law of the sea steered clear of it. Nevertheless, highly qualified informal bodies have turned their attention to these matters. See, for instance, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (L. Doswald-Beck, ed., 1995). More aspects were discussed at the International Colloquium on Air and Missile Warfare in Tel Aviv University in March, 1997. The proceedings of that Colloquium are published in the Israel Yearbook on Human Rights, vol. 27. Although a nautical mile is technically one per degree of latitude at the equator, the international nm has a conventional value of 1,852 metres (6,080 feet). See Virginia Commentary, vol. II 44 (S.N. Nandan and Sh. Rosenne, eds., 1993).

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VII of the Charter against Iraq following its invasion of Kuwait, and against Yugoslavia. The third phase began shortly after the establishment of the United Nations. Article 13 of the Charter confers specific duties on the General Assembly regarding the codification of international law. To assist it in performing those duties, the General Assembly established the International Law Commission which commenced work in 1949. One of the first topics it chose was the law of the high seas, shortly to be joined by the law of the territorial sea (as it is now called), and later combined as a unified law of the sea. The International Law Commission submitted its report on the law of the sea in 1956. This led to the United Nations Conference on the Law of the Sea of 1958. That Conference shattered the unified law of the sea prepared by the International Law Commission. In its place it produced four independent Conventions, all of which are still in force: on the territorial sea; on the high seas; on fishing and protection of the resources of the high seas; and on the new legal concept of the continental shelf, together with an optional protocol concerning the compulsory settlement of disputes and a series of resolutions.11 However, agreement on the breadth of the territorial sea eluded the international community. This notwithstanding, the Conference was able to make a major contribution to the technical aspects of the delimitation of the territorial sea in different geographical formations, as well as on many other general aspects of the international law of the sea, particularly in the sphere of international communications (including communication by air – free over the high seas – and by cables and pipe-lines. It also produced the first attempt to establish a legal regime for the continental shelf, with its vast and at the time largely untapped mineral resources, especially hydrocarbons. The absence of agreement on the breadth of the territorial sea, however, punched a hole through the heart of the work of this Conference, although it laid the foundations for later agreement that the breadth of the territorial sea should not extend beyond twelve nms from the baselines. The United Nations convened a second conference in 1960. It was to deal more specifically with that topic and with what was coming to be realized at least as ancillary to if not part and parcel of the concept of the territorial sea, namely the rights of the coastal State over natural resources (and particularly the living resources) adjacent to but beyond the outer limits of the territorial sea. That Conference too failed, by a very narrow majority, to reach agreement on the topic confided to it.12 11 12

For those instruments see 516 UNTS 205, 450 UNTS 11, 559 UNTS 285, 499 UNTS 311, and 450 UNTS 169. The relevant documentation is conveniently assembled in the Virginia Commentary, vol. III at 461 (Report of the Second Committee of the 1930 Conference), 491 to 532 (Final Act, Conventions and Optional Protocol, Resolutions and related documents of the First United Nations Conference on the Law of the Sea [1958]); 535 to 538 (Final Act of the Second

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These Conferences demonstrated that in dealing with these issues, the problems were essentially political in the widest sense of the term, not legal, and could only be resolved through a political approach. This came from an unexpected source. In 1967 the representative of Malta to the United Nations, Ambassador A. Pardo, in a memorable address to the General Assembly, raised the issue of the internationalization of the sea’s mineral resources, especially polymetallic nodules in the sea-bed beyond the outer limits of national jurisdiction. That meant the resources lying beyond the outer limits of the continental shelf as defined in the Convention on the Continental Shelf of 1958. Technological advances, had shown that the definition of continental shelf in that Convention, based on criteria of depth and exploitability, was inadequate (see § V below).13 With much less publicity, the two Super-Powers, the United States of America and the Soviet Union, had been trying through more discreet diplomatic channels to see if was possible to negotiate an acceptable agreement on the breadth of the territorial sea and what now had come to the forefront in that context, freedom of navigation and of overflight for military and civilian ships and aircraft through and over straits used for international navigation which would become territorial sea with any agreed extension of the territorial sea beyond what was traditionally (but not universally) accepted as three nms. The preliminary investigations in the United Nations brought out – what many had regarded as obvious – that a regime for the resources of the seabed beyond the limits of national jurisdiction (which the General Assembly somewhat impulsively called “the common heritage of mankind”) could not be isolated from the law of the sea as a whole.14 That led to the conclusion that a major Third United Nations Conference on the Law of the Sea would be

13

14

Conference [1960], (S.N. Nandan and Sh. Rosenne, eds., 1995). For the full documentation, see the following: on the work of the League of Nations, my editions of Committee of Experts for the Progressive Codification of International Law [1925–1928], 2 vols. (1972); Conference for the Codification of International Law [1930], 4 vols. 1975; United Nations Conference on the Law of the Sea, Official Records, 7 vols. (1958); Second United Nations Conference on the Law of the Sea, Official Records (1960); Third United Nations Conference on the Law of the Sea, Official Records, 17 vols. (1973–1982). That definition, in art. 1 of the Convention, reads: ‘For the purposes of these articles, the term “continental shelf ” is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.’ On the concept of the common heritage of mankind as applied to the law of the sea, see M.C.W. Pinto, ‘“Common Heritage of Mankind”: From Metaphor to Myth, and the Consequences of Constructive Ambiguity’, Theory of International Law at the Threshold of the 21st Century: Essays in honour of Krzysztof Skubiszewski 249 ( J. Malanczuk, ed., 1996).

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required, to deal much more comprehensively than ever before with all the major aspects of the sea and its living and mineral resources. After preparatory work which lasted from 1968 to 1973, that Conference was convened in December of 1973, and completed its work with the adoption of the United Nations Convention on the Law of the Sea on 10 December 1982 – a treaty of 320 articles and nine annexes. With the conclusion of this Conference the fourth and current phase of the modern history of the law of the sea began. The Convention requires 60 ratifications or accessions for its entry into force one year later. That figure was reached on 16 November 1993, and triggered a whole series of international activities required for the smooth entry into force of the Convention on 16 November 1994. This is outlined in Essay 25 of this collection. In 1994 negotiations to render Part XI, on deep sea mining, more acceptable were hastened both by the Convention’s imminent entry into force and by the collapse of the strict Communist regimes of Eastern Europe. Agreement relating to the Implementation of Part XI of the Convention was reached in the middle of 1994.15 This in turn has greatly accelerated the ratification process in virtually all the countries which had held reservations to the Convention in its original form.16 The conclusion of the Third United Nations Conference on the Law of the Sea also spurred widespread activity for delimiting the different maritime zones, both unilaterally in the form of legislation, and where necessary through the conclusion of appropriate delimitation agreements17 or through judicial proceedings or arbitration.

15 16

17

This agreement is annexed to General Assembly resolution 48/263, 28 July 1994, reproduced in United Nations, Law of the Sea Bulletin, Special Issue IV, 16 November 1994, p. 8. In the United States, see 103d Congress, 2d Session, Senate, Treaty Doc. 103–39, Message from the President of the United States transmitting United Nations Convention on the Law of the Sea, with Annexes, done at Montego Bay, December 10, 1982 (The “Convention”), and the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1984 (the “Agreement”), and signed by the United States, subject to ratification, on July 29, 1994. At the time of writing this matter is still pending in the U.S. Senate. The legislation is now conveniently reproduced in publications of the Division [previously Office] of Ocean Affairs and the Law of the Sea of the United Nations Secretariat: The Law of the Sea: National Legislation on the Exclusive Economic Zone, the Economic Zone and the Exclusive Fishery Zone (1986, 1993); National Legislation on the Territorial Sea, the Right of Innocent Passage and the Contiguous Zone (1995), and National Legislation on the Continental Shelf (1989). UN Sales Nos. E.85 V.10, E.93.V.10, E.95.V.7, and E.89 V.5 respectively. The agreements are likewise conveniently reproduced in United Nations Publications, The Law of the Sea, Maritime Boundary Agreements (1942–1969), Maritime Boundary Agreements (1970–1984) and Maritime Boundary Agreements (1985–1991), Sales Nos. E.91.V.11, E.87 V.12 and E.92 V.2 respectively. See also the important multivolume publication sponsored by the American Society of International Law, International Maritime Boundaries (hereafter International Maritime Boundaries).

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At the same time, throughout the century questions relating to the law of the sea have come before major international arbitral tribunals and before the International Court of Justice. There has been a constant interplay between the diplomatic actions in the different conferences and other diplomatic procedures, and the judicial activities of these tribunals and the Court. Three elements of the modern law of the sea particularly affected by this judicial activity concern the determination of the baselines from which the territorial sea is to be measured and related questions, passage through straits used for international navigation, and the definition of the continental shelf and the delimitation of overlapping claims, of both areas of continental shelf and areas of exclusive economic zone or fisheries zones. A new development has seen the increasing use of single multipurpose delimitation lines defining all the national jurisdiction of a coastal State or a single delimitation line in the sea, on the sea-bed, and for some purposes in the superjacent airspace. As an arbitral award has recently explained, the trend toward harmonization of legal regimes inevitably led to one other development, the establishment for considerations of convenience of a single maritime boundary between States whose entitlements overlap.18 This in turn has led the law, and lawyers, into the intricacies of the arcs of circle method of drawing the outer limits of the territorial sea and into the complexities and esoterica of loxodromes and geodesics for drawing other maritime boundaries over vast distances. Doubtless before long they will have to enter the even more obtuse field of defining fixed positions and their distances in the atmosphere and in outer space. The 1930 Conference is notable for seeing the first attempts to define in treaty language the method of determining the outer limits of the territorial sea. The primary objective was the protection of national fishery interests, and the methods suggested were suitable for the relatively unsophisticated navigational equipment which fishing vessels would normally then have had. There were two approaches. One, submitted by Norway and Sweden (and designed to protect the special features of the Scandinavian coastline), approached the matter on the basis of a definition of the baseline: The breadth of territorial waters shall be measured from straight lines drawn along the coast from one landmark to another . . . Marine charts, intended for vessels navigating off the coasts and showing the external limit of the territorial waters shall be placed at the disposal of the public in each country.

The second was advanced by the United States, under the inspiration of the Geographer of the State Department, S.W. Boggs: 18

Barbados and Trinidad & Tobago Maritime Delimitation award of 11 April 2006, para. 227, available on the website of the Permanent Court of Arbitration, www.cpa-pac.org. It is to be stressed that notwithstanding the single boundary line, the two legal regimes, one for the exclusive economic zone and the other for the continental shelf, remain distinct.

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Except as otherwise provided in this Convention, the seaward limit of the territorial waters is the envelope of all arcs of circles having a radius of three nautical miles drawn from all points on the coast (at whatever line of sea level is adopted in the charts of the coastal State) or from the seaward limit of those inland waters which are contiguous with the territorial waters.19

Neither of these proposals was discussed in the Second Committee and no mention of them appears in that Committee’s report. This question lay dormant until 1951, when the International Court of Justice, in deciding the Fisheries dispute between the United Kingdom and Norway, included in its judgment the following passage: The arcs of circle method, which is constantly used for determining the position of a point or object at sea, is a new technique in so far as it is a method for delimiting the territorial sea . . . It is not obligatory by law.20

However, that was not the end of the matter, and it seems that States were not content with that negative ruling. In 1953, when the International Law Commission was working on the law of the sea, a Committee of Technical Experts was convened to advise the Commission on some questions of a technical nature raised during its discussions. One of the questions was how should the outer limit of the territorial sea be drawn, when the width of the territorial sea is T miles. The Committee’s answer was to the point: The outer limit of the territorial sea is the line, every point of which is at a distance of T miles from the nearest point of the base-line. It constitutes a continuous series of intersecting arcs of circles drawn with a radius of T miles from all points on the baseline. The limit of the territorial sea is formed by the most seaward arcs (this method had been used prior to 1930, but the terms which were sometimes used to convey the same connotation, namely “envelopes of arcs of circles” appear to have been not infrequently misunderstood).21

That was adopted by the Commission and accepted by the States represented at the 1958 Conference, where it appears as article 6 of the Convention on the Territorial Sea of 1958. That rule is now repeated unchanged as article 4 of the United Nations Convention on the Law of the Sea of 1982, reading: 19

20 21

League of Nations, Acts of the Conference for the Codification of International Law, Minutes of the Committees, vol. III, Minutes of the Second Committee 191 (Norway and Sweden), 195, 197 (U.S.A.). Reproduced in my edition of League of Nations Conference for the Codification of International Law [1930], vol. IV at 1393, 1397, 1399. Further articulated in S.W. Boggs, “Delimitation of the Territorial Sea”, 24 AJIL 541 (1930). ICJ Rep. 1951, 116, 129. YBILC 1953/II (UN doc. A/CN.4/61/Add.1) 77 (in French). English text reproduced in the Commentary cited in note 10 above, vol. II, at 59, 62. Boggs was a member of that Committee of Technical Experts.

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Outer limit of the territorial sea The outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.

It is complemented by article 16 regarding charts and lists of geographical coordinates for the baselines for measuring the breadth of the territorial sea, to be discussed later.22 When originally proposed by the United States in 1930, the arcs of circle method for delimiting the outer limit of the territorial sea was based on the assumption that the agreed maximum breadth of the territorial sea would be three nms measured from the low-water line along the coast. When the International Law Commission adopted that method in its report on the law of the sea, that assumption no longer held good, but it was widely felt that the breadth would still be narrow, probably up to six nautical miles. That assumption also underlay the 1958 Convention. In the 1982 Convention, however, this breadth is now established at a maximum of twelve nms. However, the existence of exceptions to the normal coastline rule for the baseline, to account for different geographical formations, may lead to instances where the baseline is far removed from the coast. It therefore remains to be seen how practice will apply the arcs of circle method to the determination of the outer limit of the territorial sea of twelve nms in different physical circumstances. At the same time, the existence of the exclusive economic zone in many parts of the oceans has the direct consequence that foreign fishing vessels, for which the simple arcs of circle method was originally designed, must now be able to plot their position at a distance of at least 200 nms from the coastline – a different matter altogether. Modern electronic science is developing appropriate equipment for this. III. Loxodromes and Geodesics The baseline from which the territorial sea is measured also serves as the baseline from which other maritime zones within the national jurisdiction of the coastal State are measured, namely the exclusive economic zone extending a further 188 nms, or in all 200 nms from the baseline, and the continental shelf extending at least to that limit, and in certain circumstances to a distance of up to 350 nms from the baseline.23 The exclusive economic zone 22 23

Ibid. at 83 (art. 4) and 144 (art. 16). A usage has grown up of referring to the ‘outer continental shelf ’ meaning the extension beyond the 200 nm line under art. 76 of the 1982 Convention. This can be misleading. As the Arbitral Tribunal that decided the delimitation between Barbados and Trinidad & Tobago put it, ‘. . . there is in law only a single “continental shelf ” rather than in inner continental

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has to be claimed by some formal act of the coastal State. The continental shelf accrues to the coastal State ipso facto and without further action on its part. The 1982 Convention contains no provision regarding the method of depicting those outer limits.24 This has brought out another problem, namely whether, when the relevant text is silent on the matter, those lines of delimitation should be loxodromes or geodesics, whether when an international court or arbitral tribunal has to delimit maritime zones, it should lay down loxodromes or geodesics. Many of these treaties limit themselves to establishing the turning points of the delimitation line, leaving it to experts to draw the line on appropriate charts. The International Court has explained the role of experts in such circumstances in the following passage: The role of the Parties’ experts . . . was . . . limited to establishing with accuracy, and according to an appropriate geodetic system of reference, the . . . points defined . . ., and drawing a straight line between them, which involves agreement between the experts as to whether such a line is to be orthodromic or loxodromic.25

Several earlier treaties and legislation had started to specify whether the lines were to be geodesics or loxodromes (mostly the former), but this was not widespread.26 The issue first arose in litigation in the arbitration between France and the United Kingdom over the delimitation of the continental shelf in the English Channel and the South-Western Approaches. The agreement for arbitration

24 25

26

shelf and a separate extended or outer continental shelf ’, award of 11 April 2006 (note 18 above), para. 213. On the charting of the outer limits of the exclusive economic zone and the continental shelf, see arts. 75 and 84, discussed below. Application for Revision and Interpretation of the Judgment of 24 February 1972 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Rep. 1985, 192, 209 (para. 33). For example the delimitation of the continental shelf agreement between Canada and Denmark of 17 December 1973, 950 UNTS 147; the Maritime Boundary Agreement between Cuba and the United States of 16 December 1977, 17 ILM 1978; the U.S.A./Venezuela Maritime Boundary Agreement of 28 March 1978, TIAS No 9890, 32 UST 3100 (1986); Australia (Papua New Guinea)/Indonesia Agreement, 12 February 1973, 975 UNTS 4; the Iran/Oman Continental Shelf Agreement of 25 July 1974, 972 UNTS 265; the Iran/Qatar Agreement of 20 September 1969, 787 UNTS 165; the Iran/Dubai Continental Shelf Agreement, 31 August 1974, State Department, Limits in the Seas No. 63 (1975); the FrancoSpanish Agreements of 29 January 1974 regarding delimitations in the Bay of Biscay, UN Legislative Series, ST/ LEG/Ser.B/19, 395 (territorial sea), 445 (continental shelf); Portugal/Spain Delimitation Agreements, 12 February 1976, etc. These texts were all widely published at the time. They are conveniently reproduced in International Maritime Boundaries. In addition. there was at least one piece of legislation which used the term “geodesic lines” – the Canadian Fishing Zones of Canada (Zones 4 and 5) Order, 1 January 1977.

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and the initial award of 30 June 1977 were silent on this aspect. The United Kingdom then asked the Arbitration Court for an interpretation of relevant parts of the award.27 However, the law regarding the judicial interpretation of a previous decision by the same tribunal is highly technical, and this prevented the Arbitration Court from facing the issue head-on (or enabled it to avoid doing so). In its decision of 14 March 1978, the Arbitration Court made the following statement, after analyzing a series of replies to some taxing questions, mostly of a technical nature, which it put to the parties: That the use of marine charts on Mercator projection is very general is common ground between the Parties; and although the United Kingdom’s original proposals regarding the boundary were illustrated on Transverse Mercator projection, it does not call in question the adoption by the Court of British navigational charts on Mercator projection as the basis for the construction of the Boundary-Line Chart. It is also common ground between the Parties that, the earth being spherical, some scale distortion – scale error – is inherent in Mercator projection, depicting as it does the spheroid earth by plane geometry. Similarly, it is common ground that a proper use of charts requires that account should be taken of the fact that they represent only imperfectly the sphere depicted on them, and that any calculation on a chart needs to be suitably corrected in order to arrive at a value correct on the earth’s surface. The Parties differ radically, however, as to what inferences may properly be drawn from these cartographical considerations in interpreting the relevant findings of the Court in its Decision of 30 June 1977 (para. 87).

And later: The information available to the Court . . . does not appear to establish that the delimitation of maritime boundaries by a loxodrome line on a standard navigational chart based on Mercator projection without correction for scale error is either inadmissible in law or as yet so outmoded in practice as to make its use open, in general, to challenge. The Court, therefore, finds itself bound to conclude that the techniques used in the calculation of the half-effect boundary may not be considered as incompatible with the method for its delimitation laid down in [relevant passages of the decision of 30 June 1977] (para. 111).

In this context there is some interest in the dissenting opinion of the American member of the Court of Arbitration, Professor H.W. Briggs: [T]he Court did not appreciate that the boundary line [the Court’s Expert] depicted on a Mercator chart was a loxodrome which, over its course of about 170 nautical miles, disregarded the sphericity of the earth, instead of a geodesic conforming to the earth’s

27

United Nations, Reports of International Arbitral Awards, vol. XVIII 3 (Decision of 30 June 1977), 271 (Decision of 14 March 1978).

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curvature – a divergence not readily detectable to international lawyers from examination of the chart on which he drew the line.28

This award has had major influence on all the delimitations in the English Channel and the North Sea. Although from the latitude one would have expected geodesics, later agreements between the United Kingdom and France for delimitation eastward of the line determined by the arbitration were expressly stated to be loxodromes as well as delimitation in the Straits of Dover. Likewise the maritime boundary between France and Belgium is expressed in a loxodrome joining coordinates of points expressed on the European Datum (1950); and the same technique was used for determining the maritime boundary between Belgium and the United Kingdom. The agreement between Ireland and the United Kingdom of 7 November 1988 avoids this by a pragmatic approach based on a series of 132 steps creating a line composed of parallels of latitude and meridians of longitude joining the points set out in the sequence given.29 If, as Professor Briggs stated, the international lawyers did not, or could not, detect the difference then, the decision in the Anglo-French Continental Shelf arbitration has certainly alerted them to the problem since. It is now standard practice for judgments and arbitral awards on maritime delimitation, as well as maritime delimitation treaties, to indicate whether the lines are loxodromes or geodesics or alternatively, after designating the turning points, to leave the delimitation to experts. On the whole, the further from the equator the greater the use of geodesics, although this is not universal or a necessary requirement. For example, in arbitration between Guinea and Guinea-Bissau, the arbitral Tribunal made the following comment: Where drawing of the line on this chart is concerned, the Tribunal has chosen the loxodromic system inasmuch as a small part of the line concerned is a segment of parallel, and therefore a loxodromic course, while the major parts concern a line perpendicular to a general direction which is defined by its orientation on a Mercator projection and is itself loxodromic. It will therefore be more logical to use loxodromic curves which, in regions close to the equator, show very little difference from geodesic arcs. Furthermore, the coordinates will be indicated using the world geodesic ellipsoid WGS72.30

28

29

30

Ibid. at 336. It is not clear why Professor Briggs should have made so sweeping a statement, given the fact that treaties before the date of that arbitration had begun specifying that the lines were geodesic. See note 26 above. For all these boundaries, see International Maritime Boundaries, vol. II, 1735, (France/U.K.); 1767 (Ireland/U.K.); 1859 (The Netherlands/U.K.); 1891 (Belgium/France); and 1901 (Belgium/U.K.). Guinea/Guinea-Bissau Maritime Delimitation arbitration, award of 18 February 1983, 77 ILR 636, 690 (para. 128).

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A later arbitral award between Guinea-Bissau and Senegal has explained this in the following terms when it had to apply the expression “a straight line at 240°” contained in a maritime boundary agreement concluded between the metropolitan Powers before decolonization: It is clear that the words “straight line” can relate to a line which could be drawn just as well on a map employing the Mercator projection as on a map using another system. Nor can there be any doubt that a straight line drawn on a Mercator projection map becomes curved when it is transferred on to a different nautical chart, just as a straight line drawn on a map which uses a projection other than the Mercator projection becomes curved when transposed to a map prepared according to the latter system. The 1960 Agreement, however, does not refer only to a “straight line”; it also mentions a “line . . . drawn at 240°”. This makes it possible to rule out any geodesic line, because such a line would not satisfy the condition of following a direction of 240°, since it has the peculiarity of not intersecting the meridians and parallels at a constant angle. The only line which could fulfil that condition would be a loxodromic line. Moreover, on the sketch included in the preparatory work of the 1960 Agreement, the line at 240° appears as a loxodromic line. It can therefore be concluded that the “straight line drawn at 240°” mentioned by the 1960 Agreement is a loxodromic line.31

It is far from certain that in 1960, when the metropolitan powers concluded an agreement relating to the boundaries of their African possessions, including territorial sea and continental shelf boundaries between adjacent coasts, they could have had in mind the problems of drawing delimitation lines to a distance of 200 nms from the baseline. On the other hand, the area is near enough to the equator to justify loxodromes. At northern latitudes the International Court simply stated without giving reasons that all straight lines which it established “are geodesic lines”.32

31

32

Guinea-Bissau/Senegal Maritime Delimitation arbitration, award of 31 July 1989, 83 ILR 1 at 46 (para. 86). The reference is to an agreement of 26 April 1960 between France and Portugal, applicable by virtue of the rules of state succession to the new decolonized States of Guinea-Bissau and Senegal. The validity of this award was challenged in the International Court by Guinea-Bissau and upheld. ICJ Rep. 1991, 53. Guinea-Bissau has also introduced separate delimitation proceedings against Senegal in the International Court but they were suspended to enable negotiations to take place between the two countries, and on their successful completion the case was withdrawn, ICJ Rep. 1995, 423. Maritime Delimitation in the Area between Greenland and Jan Mayen case, ICJ Rep. 1993, 38, 81 (para. 93). Likewise, all agreements for judicial settlement or arbitration in northern latitudes have specified that the lines were to be geodesic. Thus, the Gulf of Maine case between Canada and the United States, ibid. 1994, 246; and the St Pierre and Miquelon arbitration between Canada and France (1992), 95 ILR 645.

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IV. Charting Maritime Boundaries The 1958 Conventions on the Territorial Sea and Contiguous Zone and on the Continental Shelf also introduced into diplomatic practice the problem of charting,33 and the 1982 Convention has taken this much further. An obligation of charting now appears in several forms. Article 5 prescribes that the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast “as marked on large-scale charts officially recognized by the coastal State”. Article 6 on reefs and the baseline requires the reef to be shown by an appropriate symbol on charts officially recognized by the coastal State. Article 16, regarding the territorial sea, requires either the baselines or the outer limits, as well as delimitation of roadsteads and delimitation lines between States with opposite or adjacent coasts, to be shown on charts of a scale or scales adequate for ascertaining their position: alternatively, a list of geographical coordinates of points, specifying the geodetic datum, may be substituted. Article 47 on archipelagic baselines (an innovation in the 1982 Convention) requires these baselines to be shown on charts of a scale adequate for ascertaining their position, alternatively a list of geographical coordinates of points, specifying their geodetic datum, may be substituted. Article 75, regarding the exclusive economic zone, requires that the outer limit of the zone and lines of delimitation of overlapping claims shall be shown on charts of a scale or scales adequate for ascertaining their position, with the same alternative of lists of geographical coordinates. A similar rule appears in article 85 on the outer limits of the continental shelf. Furthermore, and this too is a major innovation, all these charts or lists are to be deposited with the Secretary-General of the United Nations. The Secretary-General has reported that the Division for Ocean Affairs and the Law of the Sea (DOALOS) of the Office of Legal Affairs has established facilities for the custody of charts and lists of geographical coordinates deposited. The Division has also adopted a system for their recording and publicity: an internal computerized ‘data record’ summarizes the information contained in the

33

In the 1958 Convention on the Territorial Sea, art. 3 requires the normal baseline to be marked on large-scale charts, art. 4 on straight baselines, para. 6 requires the straight baselines to be indicated clearly on charts. By art. 9 on roadsteads, the coastal State is to clearly demarcate the roadsteads and indicate them on charts together with their boundaries, and by art. 12 delimitation lines between States the coasts of which are opposite or adjacent to each other are to be marked on large-scale charts. With regard to the continental shelf, the Convention on the Continental Shelf contains no general rule requiring the outer limits of the continental shelf to be charted. Art. 6 (3) requires delimitation lines to be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed identifiable points on land. In the 1982 Convention, all the provisions regarding charting in connection with the territorial sea are concentrated in art. 16, those on the EEZ in art. 75 and those on the continental shelf in arts. 76 (9) and art. 84. On those provisions, see the Commentary cited in note 10 above, at 144, 817, 837 and 986.

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charts submitted, and to ensure publicity the Division also informs States Parties of their deposit through a ‘Maritime Zone Information’. The information is also included in the Law of the Sea Information Circular, issued periodically.34 In the case of the continental shelf, the material also should be deposited with the Secretary-General of ISBA (on the special problems of charting the outer limit of the continental shelf, see § V below). As far as the territorial sea is concerned, it has hitherto been unusual for nautical charts to indicate their outer limit, and it is striking that a publication such as the Admiralty Pilot does not give particulars of the breadth of the territorial sea claimed by coastal States. Article 16 of the Convention is therefore an innovation. These charts more commonly indicate the low or mean tide lines, which is the normal baseline. There is no indication what scale is appropriate, the test being a functional one – “adequate for ascertaining their position”. But adequate for whom? It cannot be excluded that what is adequate for the coastal State may not be adequate for a fishing vessel, or for a well-equipped super-tanker, or for a submarine, or for that matter a modern high-speed aircraft. The United Nations Secretariat advised the Conference, with regard to the expression “large-scale charts”, that – Since the scale of a chart is an expression of the relationship between a distance measured on the earth’s surface and the length that represents it on the chart . . . the larger scales allow greater detail and are more usually kept up-to-date for small changes than the smaller scales. Nevertheless, it may not always be convenient or necessary to refer to the largest scale for adequate details of the low-water line. Because of the wide variety of scales employed depending on navigational needs and the detail with which an area has been surveyed it is not possible to state what may be the smallest scale. Where circumstances permit, the range may lie between 1:50,000 and 1:200,000.35

The Study continued that with regard to the depiction of a line (referring to articles 16, 75 and 84): It is possible to define a limit with far greater precision by reference to geographic coordinates although such precision may not be necessary; neither need such a list be at all a convenient method of defining a sinuous line or a complex line. In fact, a list of co-ordinates and charts may both be used – perhaps the first for formal definition and

34

35

General Assembly, Official Records, 51st Sess. agenda item 29 (Doc. A/51/645, para. 29). The Secretariat is working with a cartographical firm which possesses modern advanced technology and is following all the technological developments to ensure that it will be in a position to use them when it becomes technologically, financially and politically feasible. From the author’s conversations with members of the Division. Study of the future functions of the Secretary-General [of the United Nations] under the draft convention and on the needs of countries, especially developing countries, for information, advice and assistance under the new legal regime, Third United Nations Conference on the Law of the Sea, Official Records, vol. XV (doc. A/CONF.62/L.62) 153.

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the second for illustrative convenience. In such circumstances, it would be necessary to make clear which is the definitive document and which merely illustrative.

With regard to scales and their adequacy, the Study indicated that: [T]he accuracy with which a vessel may be able to determine its position depends on its equipment, weather conditions, distance from land, etc. Many fishing vessels working 200 miles from land would be unable to determine their position better than to within 5 nautical miles.

The Study points out that the lines or limits required by those three articles are features not necessarily shown on the ordinary nautical chart which is specifically designed to meet the requirements of marine navigation. Therefore a choice will arise for the coastal State between using nautical charts and relying on lists of co-ordinates (or using the latter supplemented by the former). If charts are used, there will be a choice of overprinting the lines on all copies of the standard navigational chart, or of making a separate overprinted edition, or of producing a special chart solely to show baselines. With regard to straight lines on the surface of the earth, the Study points out that this would be the line of sight between two objects. In mapping terms that is the geodesic, the shortest distance between two points on an ellipsoid (or on any regular surface). An equidistance line generated by two basepoints is very nearly the same as a geodesic. The geodesic appears practically as a straight line on certain types of map projection, but in the Mercator projection (widely used for nautical charts) the geodesic is a curved line except where it runs along the equator or due north and south. The difference between the loxodrome and the geodesic joining two points can be very considerable, particularly at high latitudes, and if the lines are long, the difference in area involved by using the different types of line may be very significant (as occurred in the English Channel case). The Study concludes this part with a warning: The precise nature of what a “straight line” should be is generally of less importance than that its nature be agreed between States when boundaries are determined, and that it be specified by States claiming straight baselines of a length that would make differences significant.

Trite, perhaps, and commonplace: but essential for a proper understanding of what the Conference was doing. Since the Conference, the Secretariat has done further work on this matter. It prepared a draft and invited a Group of Technical Experts on Baselines to review it. Commenting on the alternative of list of coordinates, that publication states:

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97. If lists of co-ordinates are provided, then a geodetic datum must be provided so that the basis on which the co-ordinates were determined is not in doubt. Such lists are only a substitute for the chart where the co-ordinates are linked by “straight” lines, or where the lines joining the co-ordinates are otherwise precisely described e.g. as arcs of circles centered on specified points. It is unusual to use lists of co-ordinates in the latter circumstances. ......... 99. If a list of co-ordinates linked by “straight” lines is used, uncertainties may arise unless the true nature of the lines linking the individual positions is described . . . If the baselines are shown only on a chart, and any straight lines are not otherwise defined, it will generally be assumed that they are straight in relation to the chart projection used.36

V. The Continental Shelf When the Convention on the Continental Shelf was adopted in 1958, there were some who thought that the definition of the continental shelf contained in article 1 (see note 13 above) was incorrect and would not stand the test of time. Its deficiencies became apparent in 1969 in the North Sea Continental Shelf cases before the International Court of Justice, where for technical reasons the 1958 Continental Shelf Convention was not applicable and the Court had to apply the general rules of international law. In brief, the Court insisted on treating the continental shelf of the countries bordering the North Sea as the natural prolongation of their land territory, disregarding the formal criteria of depth and exploitability as well as physical features such as the Norwegian Trough. On that basis the Court laid down the principles for delimitation of the shelf between the Netherlands, Germany and Denmark.37 This led the General Assembly to adopt resolution 2574 (XXIV), 15 December 1969, in which it expressed its view that the definition of continental shelf contained in the 1958 Convention “does not define with sufficient precision the limits of the area over which a coastal State exercises sovereign rights . . . and that customary international law on the subject is inconclusive”. The Conference was thus faced with an extremely difficult task of producing a new definition of the continental shelf and of a method of determining its outer limit, which would be the landward limit of the international sea-bed area designated as the common heritage of mankind.

36

37

United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea 40 (1989, Sales No. E.88.V.5.). ICJ Rep. 1969, 3. These were two joined cases, Federal Republic of Germany/Denmark, and Federal Republic of Germany/Netherlands.

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Article 76 of the Convention is the outcome of those negotiations, read together with article 134 defining the international area, and Annex II on the Commission on the Limits of the Continental Shelf. The new legal definition of the continental shelf replaces the depth and exploitability criteria of the 1958 Convention with two more objective elements: distance from the baseline, and the natural prolongation of the coastal State’s territory to the outer edge of the continental margin. As a result, the legal definition of continental shelf stands on its own, and does not resemble the formal definitions used in other disciplines. The fixed distance is 200 nautical miles from the baselines, regardless of the geomorphologic formation of the sea-bed. That distance coincides with the maximum breadth of the exclusive economic zone. Practice, however, shows that the two outer limits need not necessarily coincide, although most frequently they do, and both the International Court and different arbitral tribunals have been requested to define a single all-purpose line for the outer limit of the continental shelf and the exclusive economic zone. The reason that they need not coincide is that the requirements of the coastal State for proper conservation and management of the fishery resources in the exclusive economic zone are not always the same as its requirements in respect of the mineral resources of the continental shelf. For the continental shelf, a higher degree of precision in delimitation is possible and moreover the presence of straddling mineral resources can lead to special arrangements for their exploitation and adjustments to what would otherwise be a tidy delimitation.38 The Third Conference however had to face the problem of broad shelves and vested rights under the depth and exploitability definition of the 1958 Convention, and it was this that caused the real difficulty at the Conference. In addition, the designation of the areas beyond the limits of national jurisdiction of the coastal State as the common heritage of mankind led to a demand that any extension of the continental shelf beyond 200 nms should be accompanied by some form of payment to the International Sea-Bed Authority. The first problem requiring solution was the definition of the continental margin. Article 76, paragraph 3, of the Convention provides: The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

Then came the problem of establishing the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the

38

See on this B. Kwiatkowska, ‘Economic and Environmental Considerations in Maritime Boundary Delimitation’, International Maritime Boundaries vol. I at 86.

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baselines. Article 76, paragraphs 4 to 6, among the most difficult parts of the Convention, give the answer: 4 (a) For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: (i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. (b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base. 5. The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed, drawn in accordance with paragraph 4 (a) (i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres. 6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.

Paragraph 7 requires the coastal State to delineate the outer limits of its continental shelf where the shelf extends beyond 200 nms from the baselines “by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by co-ordinates of latitude and longitude”. By paragraph 8, the coastal State is to submit information on the limits of the continental shelf beyond 200 nms to the Commission on the Limits of the Continental Shelf. For its part, that Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. Those limits, established by a coastal State on the basis of those recommendations, shall be final and binding. Annex II of the Convention sets out the arrangements for the CLCS. It consists of 21 members “who shall be experts in the field of geology, geophysics or hydrography”, elected by the States Parties to the Convention from among their nationals, having due regard to the need to ensure equitable geographical representation. They serve in their personal capacities for a period of five years, and are eligible for re-election. The initial election was to be held within 18 months of the entry into force of the Convention, 16 November 1994, and by agreement it was postponed to 13 March 1997. The functions of the Commission are to consider the data and other mate-

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rial submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nms and to make recommendations in accordance with article 76. The Commission may also provide scientific and technical advice, if requested by the coastal State concerned during the preparation of those data. The coastal State is to submit the necessary particulars to the Commission as soon as possible, but in any case within 10 years of the entry into force of the Convention for that State, that is by 14 November 2004. The Commission is to work through subcommissions reporting to the Commission, which is to approve the subcommission’s recommendations by a majority of two thirds of CLCS members present and voting. The coastal States are to establish the outer limits of the continental shelf in conformity with the provisions of article 76, paragraph 8, and in accordance with the appropriate national procedures.39 The charting provisions regarding the continental shelf are, in consequence, more complicated than the other charting provisions. Article 76, paragraph 8, requires the coastal State to deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf; and requires the Secretary-General to give due publicity to that. Although worded in general terms, given its context in article 76 it is possible that this provision relates primarily to States with a broad continental shelf extending beyond the 200-mile limit. Article 84 requires the outer limit lines of the continental shelf and delimitation lines where there are overlapping claims to be shown on charts of a scale or scales adequate for ascertaining their position. As in other cases, where appropriate lists of geographical co-ordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation. The coastal State is to give due publicity to the charts or lists and deposit a copy with the Secretary-General and, in the case of those showing the outer limit lines of the continental shelf, with the Secretary-General of the International Sea-Bed Authority. Finally, in Part XI on the International Sea-Bed Area, article 134, paragraph 3, prescribes that the requirements concerning deposit of and publicity to be given to the charts or lists of

39

On these provisions see the Commentary cited in note 2 above at 837 (article 76) and 1000 (Annex II). The question of payments and contributions with respect to the exploitation of the continental shelf beyond 200 nms is regulated by art. 82 of the Convention, ibid. 930. Negotiation of these difficult provisions was greatly assisted by the Lamont-Doherty Geological Observatory of Columbia University in the City of New York, and by the Intergovernmental Oceanographic Commission and the International Hydrographic Organization. See Preliminary study illustrating various formulae for the definition of the continental shelf, Third United Nations Conference on the Law of the Sea, Official Records, vol. IX (A/CONF. 62/C.2/L.98 and Add.1–3) 189; Study of the implications of preparing large-scale maps for the Third United Nations Conference on the Law of the Sea, ibid. vol. XI (A/CONF.62/C.2/L.99) 121.

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geographical co-ordinates showing the limits of the sea-bed and ocean floor and subsoil beyond the limits of national jurisdiction are those set forth in articles 76 and 84. The upshot of all these scattered charting provisions is that charts will become cluttered with various symbols and lines, including the baseline and the outer limit of territorial sea, archipelagic baselines and the outer limit of territorial sea, the outer limit of the exclusive economic zone and the outer limit of the continental shelf which is the landward limit of the international sea-bed area. The scale or scales of these charts vary, but essentially they are to be adequate for the purposes for which they are made. These purposes are as varied as the vessels that ply the seas, from humble fishing vessels which might stray across some invisible line which they are unequipped to identify, to highly sophisticated ships and other sea-going vessels outfitted with computerized and other high-tech facilities, enabling them to plot their position to within a few metres of a given point. These charting provisions, on their face useful and simple, may well become a fecund source of difficulty. There is no doubt that the application of these complicated provisions is going to be difficult and protracted, and that major controversies are likely to ensue between the coastal States and the International Sea-Bed Authority. VI. Human Geography in Maritime Delimitation Matters In connection with the delimitation of maritime zones, both the landward delimitation line (the baseline) and the outer delimitation line, the International Court has referred to what it calls “human geography” as a circumstance which it should take into consideration in determining the line. The first inkling of this was in 1951, in the case between the United Kingdom and Norway concerning the validity in international law of the Norwegian legislation of 1935 establishing straight baselines as the landward delimitation of its fishery ones – an innovation at the time. The lines related to that part of Norway’s coast situated northward of 66°28'8"N, that is above the Arctic Circle. In its judgment upholding the validity of that legislation, the Court remarked: ‘In these barren regions the inhabitants of the coastal State derive their livelihood essentially from fishing.’ And later in the same judgment: ‘there is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by long usage.’40 When the Court indicated provisional measures of protec-

40

ICJ Rep. 1951, 116 at 128, 133. But for the outbreak of the Second World War in September, 1939, this dispute would probably have been referred to the previous Permanent Court of International Justice.

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tion in the cases brought by the Federal Republic of Germany and by the United Kingdom against Iceland in the 1970s, regarding the validity of Icelandic fisheries legislation of 1972, it was careful to point out that ‘it is necessary to bear in mind the exceptional dependence of the Icelandic nation upon coastal fisheries for its livelihood and economic development’, and that ‘from this point of view account must be taken of the need for the conservation of fish stocks in the Iceland area’.41 In its judgments on the question of its own jurisdiction the Court reiterated that statement, adding that the point was not disputed.42 A year later, in its judgments on the merits of the disputes, the Court took that statement as its point of departure for a deep analysis of the concept of the coastal State’s preferential rights in fishery matters. That part of the judgments is today of historic interest: its importance at the time, as the Third Conference was getting down to negotiating the details of the concept of the exclusive economic zone, was however considerable.43 In the Gulf of Maine case geography in general played an important role, as the parties had not fully defined the area which they required the Chamber of the Court formed to deal with the case to delimit. It concerned one of the world’s richest fishing grounds at that time – Georges Bank. The parties had indicated a starting point for the delimitation, out to sea, by its coordinates, but left the seaward terminal to the decision of the Court to fall within a series of co-ordinates in the shape of a triangle, which the Court was to determine. The Court applied elements of geography (including political geography), biogeography, geology, geomorphology, and geometry to determine that triangle, before it could proceed to the actual delimitation. On the other hand, in dealing with the delimitation itself, the Court stated: What the Chamber would regard as a legitimate scruple lies . . . in concern lest the overall result, even though achieved through the application of equitable criteria and the use of appropriate methods for giving them concrete effect, should unexpectedly be revealed as radically inequitable, that is to say, as likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned.

Applying its criteria to one of the segments of the line it was establishing the Chamber took into account other circumstances produced by the Parties. Those other circumstances included data provided by ‘human and economic geography’ – probably the first time that the expression ‘human geography’

41

42 43

ICJ Rep 1972, 12 at 16 (paras. 23, 24) (U.K.), and 30 at 34 (paras. 24, 25) (F.R.G.). The Regulations in dispute were the Reglugerä um Fiskveiäilandhelgi Islands promulgated on 14 July 1972. ICJ Rep. 1973, 3 at 20 (para. 41) (U.K.) and 49 at 64 (para. 41) (F.R.G.). ICJ Rep. 1974, 3 (U.K.) and 175 (F.R.G.).

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has been used in international litigation. On that basis the Chamber proceeded to make its delimitation of Georges Bank. It explained that by and large, an examination of the statistics produced by each side, ‘which are sometimes difficult to compare’, leads the Chamber to the conclusion that nothing less than a decision which would have assigned the whole of Georges Bank to one of the Parties might possibly have entailed serious economic repercussions for the other.44 This concept of “catastrophic repercussions” has had an impact on later maritime delimitation cases in which, even when a single delimitation line for the sea-bed and for the superjacent waters and their resources was in issue, fishery rights and practices were a factor. The next case in which human geography was a factor was the Jan Mayen case between Norway and Denmark.45 This was delimitation between opposite coasts, the distance between them being some 250 nm. The whole area lies north of the Arctic: part of it is permanently covered by compact ice and the whole area is much affected by drift ice, making this the first case before any international tribunal in which ice-covered sea was the object of the litigation. The Court noted that the presence of drift ice had a ‘substantial impact on human activity’.46 The total population of Greenland was estimated at 55,000, of whom about 6 per cent live in Eastern Greenland. The fisheries sector in Greenland employs about one quarter of the labour force, and accounts for approximately 80 per cent of total export earnings. The sea area under dispute comprised an important fishing ground for summer capelin, the only fish which is commercially exploited in the area. Jan Mayen, on the other hand, has no settled population, being inhabited solely by technical and other staff, some 25 persons in all. They run the island’s meteorological and radio stations. Norwegian activities in the seas have included whaling, sealing and fishing for capelin and other species, the vessels being based in mainland Norway (from paragraphs 14 and 15 of the Judgment). The Court also applied the previously cited dictum in the Gulf of Maine case ( Judgment, paragraph. 75), and to avoid catastrophic repercussions found that it had to consider whether any shifting or adjustment of the median line, as fishery zone boundary, would be required to ensure equitable access to the capelin fishery resources for the vulnerable fishing resources. In the circumstances of that case, the Court answered that question in the affirmative.47

44 45

46 47

Judgment, paras. 235, 237–238, ICJ Rep. 1984, 246. ICJ Rep. 1993. 38. Delimitation between Norway and Iceland in the Jan Mayen area had been completed in 1982 through a Conciliation Commission followed by an Agreement. 20 ILM 797 (1981); 21 ibid. 1222 (1982). The delimitation between Norway and Denmark ended at the tripoint with Iceland. ICJ Rep. 1993, 38, 73 (para. 78). On ice covered areas, note art. 234 of the Convention on the Law of the Sea. Ibid. at 71 (para. 75).

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Arbitral tribunals incline to follow that approach. In the delimitation between Canada and France (St. Pierre and Miquelon) arbitration of 1992, it was evident that access to and control of fisheries in the disputed areas were central to the dispute over delimitation. Both parties emphasized the economic dependence of their nationals on fishing in the area and both considered that delimitation was a critical factor in safeguarding the legitimate interests of their fishing communities. Basing itself on the ‘catastrophic repercussions’ doctrine the Arbitral Court satisfied itself that the demarcation it was proposing would not have a radical impact on the existing pattern of fishing in the area.48 Once human geography had come into the picture for maritime delimitation cases it was probably inevitable that a population’s dietary customs – particularly fish consumption – would find a place, especially in the median line/special circumstances approach to maritime delimitation. This issue came to the fore in the Eritrea/Yemen Phase Two Maritime Delimitation in 1999. The award states that each party made much of various fishing activities in the past and the present. These arguments were advanced to demonstrate that the delimitation line that each was proposing would not alter the existing situation and that the line proposed by its opponent would have a catastrophic effect, or at least a severely adverse effect on the local fisherman or on the party’s regional economy. It was also contended that a given delimitation would have a negative effect on the diet of that party’s population. In its award the Arbitral Tribunal devoted a couple of paragraphs to the issue of the consumption of fish: The Tribunal can readily conclude, without having to weigh intangible and elusive points of proof or without having to indulge in nice calculations of nutritional theory, that fish as a present and future potential resource is important for the general and local population of each Party on each side of the Red Sea. The Tribunal can also conclude, as a matter of common sense and judicial notice, that interest in and development of fish as a food source is an important and meritorious objective. Based on these two conclusions, however, the Tribunal can find no significant reason on these grounds for accepting – or rejecting – the arguments of either Part as to the line of delimitation proposed by itself or the other Party.49

Similar issues arose in the Barbados/Trinidad & Tobago Maritime Delimitation arbitration. One of Barbados’ contentions was that Barbados fisherfolk have

48 49

Delimitation of Maritime Areas between Canada and the French Republic (St. Pierre and Miquelon), arbitration of 10 June 1992, 95 ILR 645. 119 ILR 417, 442 (para. 71). For a discussion of the nature of pearl-fishing rights, see the Maritime Delimitation and Territorial Questions between Qatar and Bahrain case, ICJ Rep. 2001, 40, 112 (para. 236).

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traditionally fished by artisanal methods in some waters off Tobago, principally for flyingfish, a species of pelagic fish that moves occasionally to the waters off Tobago. This is a staple component of the Barbados diet and an important part of the history, economy, and culture of Barbados. The Arbitral Tribunal devoted a large part of its award to the general question of fisheries and the role of fisheries in maritime delimitation. On the specific issue examined here the Tribunal said: Barbados has not succeeded in demonstrating that the results of past or continuing lack of access by Barbados fisherfolk to the waters in issue will be catastrophic. The Tribunal accepts that communities in Barbados are heavily dependent upon fishing, and that the flyingfish fishery is central to that dependence. The Tribunal recognizes that some 190 ice boats owned and manned by Barbados nationals currently cannot fish off Tobago as they had done previously, that this deprivation is profoundly significant for them, their families, and their livelihoods, and that its deleterious effects are felt in the economy of Barbados. But injury does not equate with catastrophe. Nor is injury in the course of international economic relations treated as sufficient legal grounds for border adjustment.50

These cases are all concerned with disputes in areas of sea – before the 1982 Convention they were high seas – exploited for fishing. Delimitation for mineral resources of the continental shelf does not possess the same direct human interest, notwithstanding that very frequently the superjacent waters are important fishing grounds (the North Sea, for instance), and the law regarding the continental shelf has implications for the superjacent waters (and air space). There is thus no mention of human considerations in the first of the cases dealing with delimitation of the continental shelf, the North Sea Continental Shelf cases.51 This problem arose in the Tunisia/Libya Continental Shelf case, where Tunisia partly based its claims on legislation for the protection of its fishing interests and on historic rights relating to different forms of fishing, especially in its Gulf of Gabes coast. VI. Conclusion In retrospect the failure of the Conferences of 1930 and 1958/1960 is nevertheless seen as relative, not absolute. They must not be judged by their for50

51

Award, para. 267. For this award, see note 18 above. Elsewhere in this award the Tribunal addressed the issue of Barbados access to the Exclusive Economic Zone of Trinidad & Tobago; and in the operative provision stated that the parties were under the duty to agree upon the measures necessary to co-ordinate and ensure the development of flyingfish stocks, and to negotiate in good faith and conclude an agreement that will accord fisherfolk of Barbados access to fisheries within the EEZ of Trinidad & Tobago. See note 32 above.

26. THE UNITED NATIONS, THE OCEANS AND SOME GEOGRAPHY

495

mal results. The first six decades of this century were dominated by the few major imperial and colonialist powers centered in Europe, and international law was to a very great extent moulded by their requirements including their anticipated requirements as belligerents vis-a-vis neutrals – at which the representative of Norway at the 1907 Conference vaguely, and perhaps unknowingly, hinted. The 1930 Conference cleared away several technical issues and highlighted others, and the Conferences of 1958 and 1960 continued this process. Their work made it possible for the Third United Nations Conference to reach agreement on the major instrument which it produced, the United Nations Convention on the Law of the Sea, 1982. The entry into force of that Convention is the culmination of an international effort which began as far back as 1924 under the auspices of the League of Nations, and has been continued ceaselessly since then despite the Second World War largely fought at sea, and the later tensions that came in its wake. What started as a purely legal operation, with perhaps some technical advice from other disciplines, including geography and ichthyology, ended by becoming an all-embracing transaction in which virtually every branch of human activity, academic discipline, knowledge, and science has been brought in. Given the enormous human effort that has been put into the law of the sea for a period of over seventy years, the conclusion and the entry into force of the 1982 Convention, virtually coinciding with the 50th anniversary of the United Nations, may legitimately be regarded as one of the outstanding achievements of the organized international community. Untrumpeted and virtually without publicity, considering the tensions generated throughout the century (and the previous century) by conflicts of interests and other disputes on the seas, this may come to be seen, in the course of time, as a major contribution of the United Nations to the fulfillment of its primary purpose, to maintain international peace and security and to save succeeding generations from the scourge of war. So be it.52

52

At the time of writing three delimitation cases are pending in the International Court: the Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea case, the Territorial and Maritime Dispute between Nicaragua and Colombia case and the Maritime Delimitation in the Black Sea case.

27 HISTORIC WATERS IN THE THIRD UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA

I. Background In his book The Régime of Bays in International Law, Professor Bouchez devotes an important chapter to historic bays in the codification of the law of the sea.1 That carried the story from the Hague Conference for the Codification of International Law (1930) through the first two United Nations Conferences on the Law of the Sea (1958, 1960). Those two Conferences and the instruments that they adopted had left the law regarding historic waters in an unsettled state, as they had in many other aspects. While most of their provisions, cast as clauses in multilateral treaties, were seen as adequate codifications of the topics that they addressed, the absence of agreement on the breadth of the territorial sea and the fragmentation of the law into four individualized conventions together with an optional protocol regarding the settlement of disputes became seen as a major omission. That defect ran into every other branch of the law. It was a major factor that led to the Third United Nations Conference on the Law of the Sea. In session from 1973 to 1982, that Conference produced the United Nations Convention on the Law of the Sea, opened for signature at Montego Bay, Jamaica, on 10 December 1982. and in force from 16 November 1994.2 This article will draw attention to the principal developments regarding historic waters and historic titles to marine spaces that took place in that Third Conference, and explain the fuller treatment of the matter in the 1982 Convention. By way of introduction, as has recently been recalled, historic titles are of two kinds: The notion of an historic title is well known in international law, not least in respect of “historic bays”, which are governed by rules exceptional to the normal rules about bays.

1

2

L.J. Bouchez, The Régime of Bays in International Law 203 (1964). This book was published after the second United Nations Conference on the Law of the Sea and before preparations commenced for the third Conference. 1833 UNTS 3.

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Historic bays . . . rely upon a kind of “ancient title”: a title that has so long been established by common repute that this common knowledge is itself a sufficient title. But an historic title has also another and different meaning in international law as a title that has been created, or consolidated, by a process of prescription, or acquiescence, or by possession so long continued as to have become accepted by the law as a title. These titles too are historic in the sense that continuity and the lapse of a period of time is of the essence.3

In one sense, historic titles are not a peculiarity of the law of the sea. They exist in relation to a State’s rights over land and, especially regarding titles based on continuity and the lapse of a period of time, there is no difference of substance between titles to land territory and titles to maritime spaces. The same kind of historical evidence has to be adduced for both types of historic titles. State practice, as expressed above all in pleadings in international litigation, is the best evidence of this. With more particular reference to the ocean spaces, however, it should be noted that in all the Conferences, from 1930 onwards, the matter has been considered from the point of view of title to waters of the maritime space, the territorial sea. It does not relate to any other traditional or long-established usage or practice in relation to any part of what might now be the maritime domain of the coastal State (or, for that matter, of the adjacent waters seawards, formerly the high seas but today a more complicated construction). As the International Court said in 1951, when the modern codification was just beginning: ‘By “historic waters” are usually meant waters that are treated as internal waters but which would not have had that character were it not for the existence of an historic title.’4 An historic title can influence both the outer limit of the territorial sea in a case of delimitation between States having opposite or adjacent coasts, and the landward limit of the territorial sea, the baseline. In that way the term applies to the maritime space itself and not to the living and mineral resources of that maritime space. Furthermore, the reconstruction of the law of the sea embodied in the United Nations Convention on the Law of the Sea has established different areas of maritime space accruing in different ways to the coastal State – territorial sea, contiguous zone, exclusive economic zone, and continental shelf. Each of these has as its landward limit the outer limit of the territorial sea, although each is also part of the territorial sea in the sense that the seaward limit of each zone is measured from the baseline from which the territorial sea is drawn. This has greatly increased the practical 3

4

Eritrea/Yemen Part One: Territorial Sovereignty and Scope of the Dispute award, 9 October 1998, Permanent Court of Arbitration, Award Series, The Eritrea-Yemen Arbitration Awards 1998 and 1999 at 17, 49 and 279, 316 (French version), Introduction by J.-P. Queneudec (2005). 114 ILR 1, 35 (para. 106). Fisheries case, ICJ Rep. 1951, 116, 130. For the reinterpretation of that passage after the 1982 Convention had entered into force, see the passage from the decision of the Chamber that determined the case concerning the Land, Island and Maritime Frontier Dispute, below.

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significance of historic titles, above all due to their potential effect on the outer limit of those different areas. Where the continental shelf is concerned, their potential effects can also impinge on the international sea-bed area within the competence of the International Sea-Bed Authority, subject to article 134 of the 1982 Convention. However, some of the major problems facing all the Conferences, but especially after the first United Nations Conference of 1958, have related to the phasing out of alleged historic rights of other States based on long usage or traditional fishing practices of their nationals in relation to the resources of sea areas, and more particularly the living resources of the sea, now coming under the sovereign rights or jurisdiction of the coastal States. This problem became acute in the Third Conference after it had adopted the concept of the exclusive economic zone alongside the continental shelf and faced the necessity to phase out what are known as distant fishing States. That is a separate problem altogether, and is not considered in this article.5 This does not mean, however, that long and traditional exploitation of the living resources of a given area of maritime space or of a given species, or other traditional uses of a particular maritime space, cannot be adduced to support a claim to an historic title. In the Tunisia/Libya Continental Shelf case, Tunisia claimed as an important element for the delimitation of the continental shelf historic rights deriving from long-established fishing activities by Tunisian nationals. The International Court examined this aspect very carefully before finding that for the purposes of delimitation of the continental shelf between those two States it was not necessary to consider these historic claims.6 We shall have more to say about that part of this judgment later. The First Conference recognized that its treatment of historic waters may not have been adequate. The only mentions of historic title appear in article 7, on bays and in article 12, paragraph 1, on delimitation of the territorial sea, both in the Convention on the Territorial Sea and the Contiguous Zone of 1958.7 Following the text proposed by the International Law Commission, paragraph 6 of article 7 provides that the provisions of the article should not apply to ‘so-called “historic” bays or in any case where the straight baseline system [for the landward limit of the territorial sea] provided for in article 4

5 6

7

This is well brought out in the judgment of the Chamber that decided the Gulf of Maine case, ICJ Rep. 1984, 246, 341 (para. 235). ICJ Rep. 1982, 18, 73 (para. 100). For a contrary indication, see the Arbitral Court which decided the first phase of the Eritrea/Yemen dispute (note 3 above), where, in allocating sovereignty over certain islands to Yemen, it formally stated that that entails the perpetuation of the traditional fishing regime in the region, including free access and enjoyment for the fishermen of both Eritrea and Yemen, 114 ILR 1, 137 (paras. 526 and 527 vi). 516 UNTS 205.

500

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is applied’. Concerning delimitation, article 12, paragraph 1, lays down that its provisions should not apply where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in some other way. In that provision, the words ‘of historic title’ were added at the Conference: they did not appear in the text proposed by the International Law Commission.8 That was all. In a resolution annexed to the Final Act, the Conference noted that the International Law Commission had not provided for the regime of historic waters, including historic bays. Recognising the importance of the juridical status of such areas, it requested the General Assembly to arrange for a study of the matter, and for the communication of the results of the study to all States members of the United Nations.9 In resolution 1453 (XIV), 7 December 1959, the General Assembly requested the International Law Commission, as soon as it considered it advisable, to undertake the study and to make such recommendations regarding the matter is it deemed advisable. At its 12th session in 1960, the Commission asked the Secretariat to study the topic, and to extend the scope of a preliminary study prepared by the Secretariat for the 1958 Conference on the law of the sea. Apart from that, the Commission deferred further consideration of the subject to a future session.10 The Secretariat submitted its Study in 1962. Two of the conclusions of that Study are important: 183. [W]hile “historic bays” present the classic example of historic title to maritime areas, there seems to be no doubt that, in principle, a historic title may exist also to

8

9

10

In its 1956 report on the law of the sea the International Law Commission had proposed two separate articles on delimitation of the territorial sea. Art. 12 addressed delimitation in straits and off other opposite coasts, and art. 14 dealt with delimitation between two adjacent States. There was no mention of historic waters in either of those two provisions, each of which did, however, use the expression ‘special circumstances’. Report of the International Law Commission on the work of its 8th session (doc. A/3159*), YBILC, 1956/ II. In the Conference Norway proposed combining the two provisions and adding the reference to historic titles. See doc. A/CONF.13/C.1/L.97, introduced at the 60th meeting of the First Committee, paras. 14, 18. UN Conference on the Law of the Sea, Official Records vol. III (hereafter Official Records). UN Conference on the Law of the Sea, Official Records (doc. A/CONF.13/L.56) vol. II. India and Panama sponsored that proposal (doc. A/CONF.13/C.1/L.158/Rev.1). Panama introduced it at the 63rd meeting of the First Committee, para. 2, ibid. vol. III. The resolution is reproduced in University of Virginia, Center of Oceans Law and Policy, The United Nations Convention on the Law of the Sea: A Commentary, vol. III at 530 (S. Nandan and Sh. Rosenne, eds. 1995). Report of the International Law Commission on the work of its 12th session (A/4425*, para. 40), YBILC 1959/II. And see the Note of the Secretariat (A/CN.4/126), ibid. For the document prepared for the 1958 Conference, see United Nations Conference on the Law of the Sea, Official Records, vol. I (doc. A/CONF.13/1).

27. HISTORIC WATERS IN THE THIRD UNITED NATIONS CONFERENCE

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other waters than bays, such as straits or archipelagos, or in general to all those waters that can form part of the maritime domain of a State. 184. On the other hand, the widely held opinion that the régime of “historic waters” constitutes an exception to the general rules of international law regarding the delimitation of the maritime domain of the State is debatable. The realistic view would seem to be not to relate “historic waters” to such rules as an exception or not an exception, but to consider the title to “historic waters” independently, on its own merits. As a consequence one should avoid, in discussing the theory of “historic waters”, to base any proposed principles or rules on the alleged exceptional character of such waters.

The Study explained that the existence of an historic title was to a large extent a matter of judgment, and that a large element of appreciation seemed unavoidable. It went on to present several conclusions regarding the establishment and proof of an historic title, and on the establishment of machinery for the settlement of disputes regarding historic titles. The Commission decided at that session to include the topic in its future programme, but without fixing anything definite.11 It did not appoint a special rapporteur and took no further action on this topic. In 1967 it reported that most members doubted whether the time had come to proceed actively with it: it was of considerable scope and raised some political problems.12 In resolution 2272 (XXII), 1 December 1967, the General Assembly took note of that part of the Commission’s report. Although the International Law Commission took no action on the question, the Secretariat’s Study remains an important document, and there is little doubt that its influence was felt in the Third United Nations Conference on the Law of the Sea, which introduced several important provisions relating to historic titles. II. The Third United Nations Conference on the Law of the Sea Meanwhile, also at its 22nd session in 1967, the General Assembly commenced its examination of the problems of ocean space. That examination continued into 1973, when the Third United Nations Conference on the Law of the Sea commenced its work. The first stage took place in the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (the ‘Sea-bed Committee’) established by General Assembly resolution 2467A (XXIII), 21 December 1968. One of that Committee’s functions was to establish a list of subjects and issues relating to

11 12

For the Secretariat’s Study (doc. A/CN.4/143) see YBILC 1962/II; and for the Commis-sion’s decision, see its report on its 14th session (doc. A/5209*, para. 60), ibid. Report of the Commission on the work of its 19th session (A/6709/Rev.1 and Rev.1/Corr.1, para. 45), YBILC 1967/II.

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the law of the sea, for the proposed Third Conference. In 1972 the Committee approved the list.13 Item 2 was headed ‘Territorial Sea’, and it included subitem 2.2, ‘Historic Waters’. That list became the agenda of the Conference, and item 2 was allocated to the Second Committee.14 The Second Committee, sitting under the chairmanship of Ambassador (later Judge) Andrés Aguilar of Venezuela, held a series of ‘general debates’ on the items allocated to it. At the same time the plenary meetings were also devoted to a general debate. The general debate in the Second Committee on the territorial sea took place in the Committee’s 2nd to 7th meetings during the second session of the Conference in 1974, and in the 48th meeting during the third session in 1975. In that debate, several statements were made relating to historic waters, and some formal proposals were submitted. Naturally, as far as concerns bays the debate concentrated on the text of article 7, paragraph 6, of the 1958 Convention, and for the delimitation of the territorial sea on article 12. In the final text of the Convention, references to historic titles in one form or another now appear in article 10 on bays (an unchanged repetition of the 1958 text), article 15 on the delimitation of the territorial sea between States with opposite or adjacent coasts (also a repetition unchanged of the corresponding article 12, paragraph 1 of the 1958 Convention), article 46, giving the meaning of the expression ‘archipelago’ as referring to a group of islands and the like ‘which historically have been regarded’ as forming an ‘intrinsic whole’,15 and article 298, paragraph 1(a), optional exceptions to the applicability of Part XV, section 2, compulsory procedures entailing binding decisions for the settlement of disputes. This shows two additions to the historic waters issue in the 1982 Convention, in comparison with the instruments adopted in 1958. In the Second Committee there was general agreement that the detailed provisions concerning the territorial sea of the 1958 Convention should be followed. A major proposal regarding historic waters was advanced by the Philippines, as follows: 1. The territorial sea may include waters pertaining to a State by reason of an historic right or title and actually held by it in its territorial sea; 2. The maximum limit provided for in this Convention for the breadth of the territorial sea shall not apply in historic waters held by any State as its territorial sea.

13

14 15

See the report of the Sea-Bed Committee, General Assembly, 27th session, Official Records, Supplement 21 (A/3721). That list is reproduced in University of Virginia, op. cit. in note 9 above, vol. I at 32 (M. Nordquist, ed. 1985). Third UN Conference on the Law of the Sea, Official Records (doc. A/CONF.62/28) vol. III. This formula was originally introduced in a joint proposal by Fiji, Indonesia, Mauritius and the Philippines in doc A/CONF.62/C.2/L.59, and repeated by Bahamas in doc. A/CONF.62/ C.2/L.70, Official Records vol. III. These were introduced by the representatives of Indonesia at the 36th meeting, para. 1 and of Bahamas at the same meeting, para. 76, ibid. vol. II.

27. HISTORIC WATERS IN THE THIRD UNITED NATIONS CONFERENCE

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3. Any State which, prior to the approval of this Convention, shall have already established a territorial sea with a breadth more than the maximum provided in this article shall not be subject to the limit provided herein.16

Another proposal, put forward by Indonesia, read: ‘No claim to historic waters shall include land territory or waters under the established sovereignty of jurisdiction of another State.’17 The Second Committee completed its work at the second session of the Conference with the adoption of what was termed Working paper of the Second Committee: main trends.18 Section 2 of Main Trends was headed Historic waters and contained two provisions: Provision 2 The territorial sea may include waters pertaining to a State by reason of an historic right or title and actually held by its territorial sea.

Provision 3 No claim to historic waters shall include land territory or waters under the established sovereignty, sovereign rights or jurisdiction of another State.

As for straight baselines, Provision 7, formula B, referred to the situation where States have historically and consistently applied low-tide elevations for the purpose of drawing straight baselines. On bays, Provision 17 dealt with historic bays or other historic waters. Formula A followed paragraph 6 of article 8 of the 1958 Convention. Formula B provided that in the absence of other applicable rules the baselines of the territorial sea are measured from the outer limits of historic bays or other historic waters. On delimitation, Provision 21, formula A, followed the corresponding provision (article 12, paragraph 1) of the 1958 Convention. On the breadth of the territorial sea, Provision 22, formula C, suggested that the maximum limit provided in that article ‘shall not apply to historic waters held by any State in its territorial sea’.

16 17 18

Ibid. (doc. A/CONF.62/C.2/L.24/Rev.1) vol. III. That was introduced by the representative of the Philippines at the Committee’s 45th meeting, para. 13, ibid. vol. II. Doc. A/CONF.62/C.2/L.67, ibid. vol. III. This was introduced by the representative of Indonesia at the Committee’s 43rd meeting, para. 25, ibid. vol. II. In its final form this appeared as Annex II (Statement of the activities of the Second Committee), Appendix I, in the Statement of the activities of the Conference during its first and second sessions, prepared by the Rapporteur-general, Mr K.O. Rattray (Jamaica), doc. A/CONF.62/L.8/Rev.1, ibid. vol. III. It is reproduced in vol. III of the Commentary cited in note 9 above, at 539.

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THE LAW OF THE SEA

On archipelagos, Provision 203, Formula A, on the definition of an archipelagic State, incorporated the ‘which historically have been regarded as such’ language that had originally appeared in the proposals submitted by Fiji, Indonesia, Mauritius, and the Philippines, and by the Bahamas. However, in the negotiations that followed, mostly informal, few of these provisions were retained – those relating to historic bays (article 10, paragraph 6), the delimitation of the territorial sea between States with opposite or adjacent coasts (article 15), and the definition of an archipelagic State (article 46(b)). No further discussion of historic waters took place in the formal meetings of the Second Committee. The optional exclusion of historic titles from the provisions requiring settlement of the dispute through a binding decision goes back to the earliest stages of the Conference. The item ‘Settlement of disputes’, which was No. 21 of the list of subjects and issues prepared by the Sea-bed Committee, and adopted as the agenda of the Conference, was not allocated to any one Main Committee. It was allocated to each of the Main Committees in as far as was relevant to its mandate. In addition, the Plenary, converted into an Informal Plenary, acted as a Main Committee for completing the detailed work on the settlement of disputes, in light of the substantive decisions taken by the Main Committees. For the items coming within its Mandate, the Second Committee did not adopt any general decisions regarding the settlement of disputes, being content to rely at that stage on the general provisions being negotiated elsewhere for the settlement of disputes arising out of the interpretation or application of the convention. There is no mention of the matter in the Main Trends working paper. At the seventh session (1978) the Conference established seven negotiating groups to deal with outstanding hard-core issues and two of those groups dealt with the settlement of disputes arising out of the work of the Second Committee. The question of the settlement of disputes concerning historic waters and historic titles in one form or another came within the scope of Negotiating Group 7. The Sea-bed Committee had left open all matters relating to the settlement of disputes. At the second (Caracas) session of the Conference in 1974, the heads of the delegations of Australia and El Salvador, Ambassadors Harry and Galindo Pohl, with Professor Louis B. Sohn (United States of America) as rapporteur, initiated an informal working group to look into that question. Some thirty delegations took part in that Working Group then. At the end of the session the representative of El Salvador presented its conclusions as a working paper on the settlement of disputes.19 Section 11 of that document,

19

Australia, Belgium, Bolivia, Colombia, El Salvador, Luxembourg, Netherlands, Singapore and the United States of America, doc A/CONF.62/L.7, Official Records, vol. III (cited). Introduced by the representative of El Salvador at the 51st plenary meeting, para. 7, ibid. vol. I.

27. HISTORIC WATERS IN THE THIRD UNITED NATIONS CONFERENCE

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entitled exceptions and reservations to the dispute settlement provisions, included as Alternative B1 an exclusion of disputes concerning historic bays or limits of territorial sea; and as Alternative B2, disputes concerning sea boundary delimitations between adjacent and opposite States, including those involving historic bays and the delimitation of adjacent territorial sea. These were both repeated with a different formulation of the chapeau as Alternatives C1 and C2. Introducing the working paper, Ambassador Galindo Pohl stressed that the working group had based itself on several points which included that the system of the settlement of disputes must be an integral part of the new Convention. Furthermore, ‘even if the principle of strict legality were adopted, certain insurmountable obstacles, particularly with regard to constitutional and fundamental elements in the structure of States would remain. It was for that reason that among the exceptions to which obligatory jurisdiction did not apply were the questions directly related to the territorial integrity of States’.20 That suggestion was controversial, and went through several modifications before its text was finally settled. The matter became more pressing as the Conference progressed and it became apparent that no reservations would be permitted to the Convention (now article 309). One consequence of this was that agreed reservations would have to be negotiated and incorporated in the text of the Convention itself. The Working Group, now expanded to some sixty delegations, continued its activities during the third session of the Conference (1975). On the question of the exclusion of historic bays from the compulsory settlement provisions, it proposed quite a substantial revision in what became article 17 of its working paper: (b) Disputes concerning sea boundary delimitations between adjacent States, or those involving historic bays or titles, provided that the State making such a declaration [to exclude the dispute from the compulsory settlement] shall indicate therein a regional or other third party procedure, [whether or not] entailing a binding decision, which it accepts for the settlement of these disputes.21

The Conference held a general debate on the settlement of disputes at its fourth session (1976). There was criticism of article 17(b), and in a text which

20 21

That working group continued functioning in later sessions of the Conference and laid the basis for what became Part XV (arts. 279–299) and Annexes V, VI, VII and VIII of the Convention. See further on this, A.O. Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987); N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea 228 (2005). Loc. cit. in previous note, para. 10. Doc. A/CONF.62/Background Paper 1 (1976, mimeo). Reproduced in R. Platzöder, Third United Nations Conference on the Law of the Sea: Documents, vol. XII, 108 and 194 (1982–1988).

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THE LAW OF THE SEA

President Amerasinghe prepared after that debate, he omitted this paragraph.22 That too was criticised in informal meetings of the plenary held during the fifth session (1976), and that led to the reinstatement of the provision in its earlier form.23 This still produced controversy. In preparation for the sixth session of the Conference, informal consultations were held early in 1977. The opposing positions were on the one hand that the words ‘entailing a binding decision’ should be deleted, and on the other that boundary delimitations should be brought totally within the compass of the section on the settlement of disputes through binding decision.24 After further discussion at the sixth session (1977) the President prepared the Informal Consolidated Negotiating Text, on which the Conference based all its future work, and which in fact became a preliminary draft of the Convention subject to the resolution of outstanding major issues.25 In a report on the preparation of that text, the President explained that the provision had been retained in substance as article 297 due to the fact that there was a nearly equal division of views as to the need or otherwise for completely binding procedures.26 The new text of what became article 297 provided for exemptions from the requirement of a binding decision. On historic titles it read: (a) Disputes concerning sea boundary delimitations between adjacent or opposite States, or those involving historic bays or titles, provided that the State making such a declaration shall, when such dispute arises, indicate, and for the settlement of such disputes accept a regional or other third-party procedure entailing a binding decision, to which all parties to the dispute have access; and provided further that such procedure or decision shall exclude the determination of any claim to sovereignty or other rights with respect to continental or insular land territory.

At this point, the issue was recognized as one of the hard core issues, and was referred to the new Negotiating Group 7, under the chairmanship of Judge E. Manner of Finland. A sub-group chaired by Professor Sohn considered the problem of the settlement of maritime boundary disputes.27 That Negotiating Group produced the final text of what became article 298, paragraph 1(a) which, after examination by the Drafting Committee, reads:

22 23 24 25 26 27

Informal Single Negotiating Text (ISNT), Part IV, art. 18 (a) (doc. A/CONF.62/ WP.9/Rev.1), Official Records, vol. V. Revised Single Negotiating Text (RSNT), Part IV (doc. A/CONF.62/WP.9/Rev.2), Official Records, art. 18(b) vol. VI. Note by the President to all delegations of 25 March 1977. Partly reproduced in the Commentary cited in note 9 above, vol. V at 112 (Sh. Rosenne and L.B. Sohn, eds. 1989). For the ICNT, see doc. A/CONF.62/WP.10, Official Records, vol. VIII. A/CONF.62/WP.10/Add.1, ibid. Summarised in the Commentary cited in note 24 above, at 112. See Adede, op. cit. in note 19 above, at 175.

27. HISTORIC WATERS IN THE THIRD UNITED NATIONS CONFERENCE

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1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1 [general provisions for the settlement of disputes], declare in writing that it does not accept any one or more of the procedures provided for in section 2 [compulsory procedures entailing binding decisions] with respect to one or more of the following categories of disputes: (a) (i) disputes concerning the interpretation of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles [baies ou titres historiques], provided that a State having made such a declaration shall, when such a dispute arises subsequent to the entry into force of this Convention [16 November 1994] and where no agreement within a reasonable period of time is reached in negotiations between the parties, at the request of any party to the dispute, accept submission of the matter to conciliation under Annex V, section 2 [compulsory submission to conciliation procedure pursuant to section 3 of Part XV]; and provided further that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission; (ii) after the conciliation commission has presented its report, which shall state the reasons on which it is based, the parties shall negotiate an agreement on the basis of that report; if these negotiations do not result in an agreement, the parties shall, by mutual consent, submit the question to one of the procedures provided for in section 2, unless the parties otherwise agree; (iii) this subparagraph does not apply to any sea boundary dispute finally settled by an arrangement between the parties, or to any such dispute which is to be settled in accordance with a bilateral or multilateral agreement binding upon the parties. By 31 December 2006, declarations relating to article 298, paragraph 1(a) had been made by Argentina, Australia, Canada, Chile, Cuba, Denmark, Equatorial Guinea, France, Guinea-Bissau, Iceland, Italy, Mexico, Nicaragua, Norway, Portugal, Republic of Korea, Russian Federation, Slovenia, Spain, Tunisia, Ukraine and Uruguay.28

28

International Tribunal for the Law of the Sea, Yearbook 2005, 147.

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III. Pronouncements of the International Court of Justice The question of the relation of claims based on historic titles to areas of continental shelf arose in the Tunisia/Libya Continental Shelf case mentioned earlier. This is really one of the new elements introduced by the reconstruction of the law of the sea. Although that judgment was rendered before the 1982 Convention was formally adopted, the Court had before it all the documents, including the final draft of the Convention. Its pronouncement on this issue is therefore directly relevant to the application and interpretation of the relevant provisions of the Convention. The issue was one of the special circumstances to be taken into consideration in connection with the delimitation of the continental shelf between the two countries. Their coasts are partly adjacent and partly opposite, but that is not directly relevant to this issue. Tunisia’s claimed historic rights derived from long-established interests and activities of its population in exploiting the fisheries of the bed and waters of the Mediterranean off its coasts, the exploitation of shallow inshore banks for fixed fisheries for the catching of swimming species and of the deeper banks for the collection of sedentary species, namely sponges. The Court’s view of this was that although parts of the area in question are not part of the continental shelf in the legal sense, which starts beyond the territorial sea, the sea-bed of the region of internal waters within the Tunisian baselines and of the territorial sea is the natural prolongation of the land territory in the physical sense. For that reason, and in light of other findings by the Court regarding natural prolongation, those historic rights no longer fell for consideration. This notwithstanding, the Court continued with the following: Historic titles must enjoy respect and be preserved as they have always been by long usage. In this connection, it may be recalled that, when the 1958 Conference on the Law of the Sea had occasion to consider the matter, it adopted a resolution entitled “Régime of historic waters”, which was annexed to the Final Act, requesting the General Assembly to arrange for a study of the topic. In 1959, the Assembly adopted a resolution requesting the International Law Commission to take up the study of the “juridical régime” of historic waters, including historic bays. The International Law Commission has not yet [in 1982] done so. Nor does the draft convention of the Third Conference on the Law of the Sea contain any detailed provisions on the “régime” of historic waters: there is neither a definition of the concept nor an elaboration of the juridical régime of “historic waters” or “historic bays”. There are, however, references to “historic bays” or “historic titles” or historic reasons in a way amounting to a reservation to the rules set forth therein. It seems clear that the matter continues to be governed by general international law which does not provide for a single [italics in original] “régime” for “historic waters” or “historic bays”, but only for a particular régime for each of the concrete, recognized cases of “historic waters” or “historic bays”. It is clearly the case that, basically, the notion of historic rights or waters and that of the continental shelf are governed by distinct legal régimes in customary international law. The first régime is based

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on acquisition and occupation, while the second is based on the existence of rights “ipso facto and ab initio”. No doubt both may sometimes coincide in part or in whole, but such coincidence can only be fortuitous, as in the case of Tunisia where the fishing areas cover the access to its continental shelf, though only as far as they go. While it may be that Tunisia’s historic rights and titles are more nearly related to the concept of the exclusive economic zone, which may be regarded as part of modern international law, Tunisia has not chosen to base its claims upon that concept.29

In the Land, Island and Maritime Frontier dispute, the Chamber that decided the case referred both to the Court’s 1951 dictum and to that passage from its 1982 judgment, and stated: ‘It is clearly necessary . . . to investigate the particular history of the Gulf of Fonseca to discover what is the “régime” of that Gulf resulting therefrom . . . Moreover, the particular historical régime established by practice must be especially important in a pluri-State bay; a kind of bay for which there are notoriously no agreed and codified rules of the kind so well established for single-State bays.’30 IV. Some concluding thoughts Following the complete reconstruction of the law of the sea achieved in 1982, there is little doubt that issues of ‘historic waters’ and ‘historic titles’ and the like have probably lost much of the acerbity that they attracted in earlier times. The problem still exists, as indeed the arbitration between Eritrea and Yemen has well brought out. But it is not, as stated, a peculiarity of the law of the sea. Several factors are responsible for this evolution. For example, comparison of the 1958 Conference with that of that 1970s, shows that in 1958 one of the principal driving forces behind the demands for a clearer statement of the law governing historic waters in the sense suggested by the International Court in the Fisheries case was the aim of countries like Indonesia and the Philippines for recognition of their special status as archipelagos. This explains the somewhat curious wording: ‘régime of historic waters’ – an almost self-contradictory expression. That element was rapidly taken out of consideration in the Third Conference with the general recognition of the concept of the archipelagic State (Part IV, articles 46 to 54).

29

30

ICJ Rep. 1982, 18, 73 (para. 100). The draft Convention to which the Court referred in that passage is doc. A/CONF.62/L.78, Official Records vol. XV. In respect of the matters discussed in that passage, there is no change in the final text of the Convention. Apparently the Court had not been properly informed of the actions concerning historic waters of the General Assembly, the Secretariat and the International Law Commission since the 1958 Conference. This mistaken account of what occurred is quite remarkable here. ICJ Rep. 1992, 351 at 588 (para. 384).

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Straits used for international navigation, too, were a factor that was overriding in the 1958 Conference. This was so in its own right, since the topic was connected with the issue of the breadth of the territorial sea and its delimitation. It was aggravated in 1958 by the general situation in the Middle East and the issue of the Strait of Tiran and the Gulf of Aqaba, claimed by Saudi Arabia as Arab historic waters.31 That claim was opposed not only by Israel, but by many other States despite the fact that then the strait and gulf were not well known to the outside world (a situation that has changed radically since the Iran-Iraq war of the 1980s). This political problem also did not trouble the Third Conference, having been settled in the Peace Treaty between Egypt and Israel of 26 March 1979.32 The question of maintaining free passage through and overflight over straits used for international navigation has been resolved by separating it from questions of innocent passage and creating a special legal regime of transit passage for those straits (Part III, articles 34 to 45, and Part XII, article 233). The atmosphere in which those matters were examined and settled in the Third Conference was not one of vicious competition and confrontation: it was more one of co-operation in search of an agreed common end-result. The pragmatic conclusions of the Third Conference have had another consequence. In the early stages of the codification (going back to 1930) suggestions have repeatedly been made for lists of historic waters and more particularly historic bays to be maintained by some neutral international authority. In the same order of ideas, at the First Conference there was a strong move to include in one of the instruments a definition of historic waters.33 No conference has ever come near to adopting any such idea. In the international community as it existed up to the decolonization period, most of the so-called historic bays were well-known, and with them the controversies that they engendered (usually between a limited number of States). With the rapid expansion of the international community since 1960, new claims for historic rights of one kind or another are coming to the fore. Again, some of these do not arouse controversy, and in other instances the controversy is between a pair or a limited number of States. The international community today has at its disposal many procedures for the pacific settlement of these disputes. Experience shows that empirical solutions of disputes as they arise is preferable to a priori arbitrary predeterminations such as would have resulted from the compilation of such lists, assuming indeed that such compilations would have been possible, or from definitions – omnis definitio periculosa est.

31 32 33

For that claim, cf. UN doc. A/3575, letter of 12 April 1957 (mimeo). 1136 UNTS 100 and 1138 ibid. 59. See art. V, paragraph 2. See the proposal of Japan in doc. A/CONF.13/C.1/L.104, in Official Records vol. III.

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Historic titles to maritime spaces and other claims to historic rights in different parts of the sea certainly exist, and one must anticipate new claims of this nature in the future. However, the codification of the law of the sea leads to the general conclusion that no special legal regime is required or is indeed feasible within the broader context of the law of the sea to deal with them, beyond what is already included in the United Nations Convention on the Law of the Sea of 1982. General international law is adequate to provide for third-party disposition of these claims if a negotiated settlement eludes the parties.

INTERNATIONAL RESPONSIBILITY

28 BREACH OF TREATY IN THE CODIFICATION OF THE LAW OF STATE RESPONSIBILITY

In 2001 the International Law Commission completed its draft articles on the responsibility of States for internationally wrongful acts.1 That invites a new look at breach of treaty in light of the double codification now effected, of that aspect of State responsibility and of the law of treaties in the Vienna Convention on the Law of Treaties of 1969.2 Both under the Vienna Convention and under the responsibility articles, the claimant or injured State has to ‘invoke’ the breach or the responsibility of the respondent/ defaulting/responsible State in a prescribed way to restore legality in the mutual relations of the States concerned. Neither instrument envisages unilateral action to terminate a treaty on ground of alleged breach of its terms. The law of treaties (including breach) and the law of international responsibility are two sides of the same coin, the coin of international obligations. I. Absolute Responsibility and Breach of Treaty Article 73 of the Vienna Convention deliberately provides that its provisions shall not prejudge any question that may arise in regard to a treaty inter alia from the international responsibility of a State. The Commission gave the following reasons for this: The draft articles do not contain provisions concerning the question of the international responsibility of a State with respect to a failure to perform a treaty obligation. The question would involve not only the general principles governing the reparation to be

1

2

For those articles see the Report of the International Law Commission on the work of its fiftythird session (2001), UN General Assembly Official Records, 56th session, Supplement No. 10 (A/56/10), Ch. IV (“responsibility articles”). More on this in Essay 29 note 11 below. Vienna Convention on the Law of Treaties of 23 May 1969, in force from 27 January 1980, 1155 UNTS 331 (“Vienna Convention”). Since the International Law Commission has not yet completed its consideration of the topic of responsibility of international organizations, the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986 (not yet in force) is not

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made for a breach of a treaty, but also the grounds which may be invoked in justification for the non-performance of a treaty. As these matters form part of the general topic of the international responsibility of States, which is to be the subject of separate examination by the Commission, it decided to exclude them from its codification of the law of treaties and to take them up in connexion with its study of the international responsibility of States.3

More directly with reference to article 73, the Commission went on to explain in its Commentary that an express reservation of the international responsibility of a State was desirable in order to prevent any misconception from arising as to the interrelation between the rules governing that matter and the law of treaties. International responsibility ‘may have an impact on the operation of certain parts of the law of treaties in conditions of entirely normal international relations, and the Commission felt that considerations of logic and of the completeness of the draft articles indicated the desirability of inserting a general reservation’ covering cases of responsibility.4 Article 30 of the Vienna Convention, on the application of successive treaties relating to the same subject-matter, contains another reservation regarding responsibility. Paragraph 4 of that article deals with the situation where the parties to the later treaty do not include all the parties to the earlier one. Paragraph 5 states that paragraph 4 is without prejudice inter alia to any question of responsibility which may arise for a State from the conclusion or application of a treaty the provisions of which are incompatible with its obligations towards another State under another treaty. In its Commentary, the Commission explained on this point that the rules in paragraph 4 determine the mutual rights and obligations of the particular parties in each situation merely as between themselves. They do not relieve any party to a treaty of any international responsibilities it may incur by concluding or by applying a treaty the provisions of which are incompatible with its obligations towards another State under another treaty. If the conclusion or the application of the treaty constitutes an infringement of the rights of parties to another treaty, all the normal consequences of the breach of a treaty follow with respect to that other treaty.

3

4

considered in this article. For that Convention, see United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, Official Records vol. III (A/CONF.129/15). Art. 74 of that Convention corresponds to art. 73 of the Vienna Convention. Report of the International Law Commission on the work of its eighteenth session (1966), Ch. II, para. 21 (A/6309/Rev.1, Part II), YBILC 1966/II. Art. 73 of the Vienna Convention was art. 69 of the draft articles. Ibid. art. 69, Commentary, para. (1). The reservation was formulated in entirely general terms as the Commission considered it essential that the reservation should not appear to prejudge any question of principle arising in connection with the codification of responsibility (para. (3)).

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The International Court of Justice has demonstrated the close interconnection between State responsibility and the law of treaties and the functional differences between them in a classic statement that follows from the assertion that the law of treaties and the law of State responsibility ‘obviously have a scope that is distinct’: A determination of whether a convention [treaty] is or is not in force, and whether it has or has not been properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the responsibility of the State which proceeded to it, is to be made under the law of State responsibility.

The Court went on to explain that the Vienna Convention confined itself to defining, in a limitative manner, the conditions in which a treaty may lawfully be denounced or suspended, while the effects of a denunciation or suspension seen as not meeting those conditions are, on the contrary, expressly excluded from the scope of that Convention by operation of article 73.5 The responsibility articles do not deal directly with breach of treaty as a discrete aspect of the law of responsibility. It became unnecessary to do so after the International Law Commission had decided to base its codification on the concept of absolute responsibility. What this means is set out in the first two of the responsibility articles. Article 1 states categorically that every internationally wrongful act of a State entails the international responsibility of that State. Article 2 follows on this by saying that there is an internationally wrongful act of a State when conduct consisting of an action or omission is attributable to that State under international law and constitutes a breach of an international obligation of the State. In line with that approach, there is breach of an international obligation when an act of that State is not in conformity with what is required of it by that obligation regardless of the origin or character of the obligation (article 12).6 ‘Act’ in that sense is obviously an act of commission as much as an act of omission. Failure to apply an obligation arising from a treaty is a breach within the scope of the responsibility articles. There is no argument that an established unjustifiable breach

5 6

Gab‘íkovo-Nagymaros Project case, ICJ Rep. 1997, 7, 38 (para. 47). Ibid. 38 (para. 45), where the Court confirmed this by reference to art. 17 of the draft articles on state responsibility adopted by the International Law Commission in 1976 on first reading. Report of the International Law Commission on the work of its 28th session (A/31/10*), YBILC 1976/II/2, Ch. III. Draft art. 17 is substantially identical to art. 12 of the responsibility articles of 2001. For a consolidated version of Part I of the articles on State responsibility adopted on first reading, see Sh. Rosenne (ed.), The International Law Commission’s Draft Articles on State Responsibility, Part I, Articles 1–35 (1991).

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of a treaty attributable to a State would be an internationally wrongful act within the meaning of the responsibility articles. The law of treaties determines the existence and extent of an obligation arising out of a treaty. The Vienna Convention enunciates this in lapidary terms: ‘Every treaty that is in force is binding upon the parties to it and must be performed by them in good faith’, the rule of pacta sunt servanda.7 Clearly, then, any unjustified non-performance by a State of a provision of a treaty to which it is a party comes within the concept of ‘internationally wrongful act’ as formulated by the International Law Commission and is sufficient to create a relationship of international responsibility between that State and any other State a party to that treaty. There is no formal definition of breach of a treaty. Article 60 of the Vienna Convention carries the title Termination or suspension of the operation of a treaty as a consequence of its breach. The Commission based its approach to breach on the proposition that a breach of a treaty, however grave or however minor, does not ipso facto put an end to the treaty and that it is not open to a State simply to allege a violation of a treaty and pronounce the treaty at an end.8 From that point of departure, article 60 only deals with what it terms a ‘material breach’, breaches not so treated coming within the scope of the general international law of responsibility. A material breach is either a repudiation of the treaty not sanctioned by the Vienna Convention, or the violation of a provision essential to the accomplishment of the object or purpose of the treaty. Material breach in that sense may be invoked as a ground for terminating the treaty or suspending its operation in whole or in part, subject to the observance of the required procedure. Article 60 differentiates those entitled to invoke the material breach according to whether the treaty is multilateral or bilateral. In the case of a multilateral treaty, a party specially affected by the breach may invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State (l’Etat auteur de la violation). The other parties may by unanimous agreement suspend the operation of the treaty in whole or in part or terminate it either in the relations between themselves and the defaulting State or as between all the parties. In addition, any party other than the defaulting State may invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

7 8

Vienna Convention, art. 26. Taken from para. (5) of the Commentary on what was art. 57 of the draft articles on the law of treaties adopted by the ILC in 1966, note 3 above.

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The meaning of the word invoke in that context is obtained from section 4 (articles 65 to 68) of the Vienna Convention, on the procedure to be followed.9 In brief, as between States that are parties to the Vienna Convention the procedure requires normal diplomatic action by the injured State of notifying the other parties of its ‘claim’ and giving the defaulting State an opportunity to put things right, with the option of resort to the different means for the settlement of disputes set out in Article 33 of the Charter and with residuary compulsory recourse to a conciliation procedure as set out in the Annex to the Convention. There has been no known instance of the employment of this procedure since the entry into force of the Vienna Convention, although three major cases involving breach pure and simple of a multilateral treaty have come before the International Court of Justice – the, U.S. Diplomatic and Consular Staff in Tehran case (the Hostages case)10 the LaGrand case (2001),11 and the Avena and other Mexican Nationals case (2004),12 discussed below. It is possible that the Hostages case involved a material breach of the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963, although it was not treated as such.13 Indeed, there was no interest or incentive for the United States to treat the unlawful acts imputed to Iran as entitling it to invoke the provisions of the Vienna Convention regarding material breach in relation to either of those Conventions. The alleged breach in LaGrand and the same alleged breach in Avena was not a material breach. While article 60 may be regarded as a codification of international law,14 and as such of general application, the invocation procedure of section 4 of

9

10

11 12 13 14

The word invoke did not appear in the 1966 draft articles of the International Law Commission and was inserted into what is now art. 65, in place of claim. Given Part V, section 4 (now arts. 56 to 69) of the Vienna Convention, the word clearly refers to a formal diplomatic procedure. In the responsibility articles of 2001, the Commentary to art. 42 (para. (2)) clarifies that the word is to be understood as taking measures of a relatively formal character. On the invocation of a State’s responsibility as an act of diplomatic protection, see art. 1 of the draft articles on Diplomatic Protection adopted by the ILC in 2006. Report of the ILC on the work of its 58th session, GAOR, 61st Session, Official Records Supplement 10 (A/61/10) Ch. IV. ICJ Rep. 1979 7, 1980, 3; 1981, 45; Aerial Incident of 3 July 1988 case, ICJ Rep. 1996, 9; Oil Platforms case, ICJ Rep. 1996, 803, 1998, 190, 2001, 568, 2003, 161. The bilateral Treaty of Amity, Economic Relations and Consular Rights alleged to have been breached in all these cases but there was no desire on either side to abandon it. ICJ Rep. 2001, 466. I have to disclose an interest, having been a member of the United States delegation to the Court in that case. ICJ Rep. 2004, 12. For those Conventions, see 500 UNTS 95 and 596 ibid. 261. As early as 1971 the International Court of Justice stated that the rules laid down in the Vienna Convention concerning termination of a treaty relationship on account of breach may in many respects be considered as a codification of existing customary law on the subject. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) advisory opinion, ICJ Rep.

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the Vienna Convention is only binding on the parties to that Convention. For a State that is not a party to it, recourse to Article 33 of the Charter is technically only obligatory if the consequential dispute is one the continuance of which is ‘likely to endanger the maintenance of international peace and security’ – unlikely in most instances of breach of a treaty. Given the concentration of the Vienna Convention on ‘material breach’, we can deduce the meaning of ‘breach’ pure and simple from other provisions of that Convention, notably article 26, the pacta sunt servanda rule. A State must perform the treaty in good faith, that is the obligation which it assumes on becoming a party to the treaty. What article 60 defines as ‘material breach’ is a particularized concept of breach: the injured State is not obliged to treat any non-performance in good faith of another party’s treaty obligations as a material breach and set in motion the full procedure of the Vienna Convention. It may treat that non-performance simply as a breach and deal with it within the framework of the responsibility articles. Here we should note that the International Court has confirmed that a dispute between two States party to a treaty as to whether there has been a breach of that treaty is a dispute relating to the interpretation and application of the treaty in question, at least for the purposes of establishing the Court’s jurisdiction to deal with it.15 Likewise, a dispute regarding the appropriate remedies for the breach is also a dispute that arises out of the interpretation or application of the Convention in question, at least for the purpose of establishing the Court’s jurisdiction or the admissibility of the case.16 Now, with the completion of the articles on responsibility for unlawful acts, this kind of dispute also comes within the scope of the law of responsibility, blurring the distinction between the scope of the two topics. II. The Establishment of Responsibility for Breach of Treaty The responsibility articles do not address the issue of how that responsibility is to be established. Part Three (articles 42 to 54) deals with what is termed the ‘implementation’ of the international responsibility of a State.17 From the point of view of the law of treaties, the provisions regarding injured States entitled to invoke a material breach under article 60 of the Vienna Conven-

15 16 17

1971, 16, 47 (para. 94). The treaty there was the League of Nations Mandate over South West Africa, technically not a treaty between States to which that Vienna Convention applied. This dictum has been followed since in relation to treaties between States. LaGrand case, note 12 above, para. 42. Ibid. para. 48. Implementation of responsibility is the established English translation of the expression Mis en œuvre of the responsibility. I would have preferred something like ‘discharge of the responsibility’.

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tion are directly relevant. The approach of the responsibility articles to this aspect is likewise to specify what State, as an injured State, may invoke the responsibility of another State. However, the use of the expressions ‘injured State’ and ‘responsible State’ in this context calls for comment, and is possibly incorrect. The reason for saying this is that the articles as they stand contain no provision, not even a residual one as in the Vienna Convention on the Law of Treaties, for the establishment of the responsibility. This is in contrast to the language of the Vienna Convention – ‘defaulting State’. The International Law Commission experienced great difficulties over the question of whether any form of compulsory settlement procedure should be introduced into the articles on responsibility. 18 Indeed, so great were the Commission’s difficulties on this issue that in submitting the final text to the General Assembly in 2001, it made the unusual recommendation that the General Assembly take note of the draft and that at a later stage, and in light of the importance of the topic, consider the possibility of convening an international conference of plenipotentiaries to examine the draft with a view to concluding a convention on the topic. The recommendation continued: ‘The Commission was of the view that the question of the settlement of disputes could be dealt with’ at that conference ‘if it [the conference] considered that a legal mechanism on the settlement of disputes should be provided in connection with the draft articles’.19 It is possible that this recommendation may not fully present the problem, which is not whether there should be any procedure for resolving disputes as to the interpretation or application of the responsibility articles should a diplomatic conference decide to transform them into a convention. The central issue here is rather whether any form of compulsory recourse to a third-party procedure, whether leading to a binding decision or not, is needed to establish the responsibility of the defaulting State for the internationally wrongful act, a different matter altogether. The answer to the question what State as an injured State may invoke the responsibility is based on the State to which the obligation is owed, and is given in article 42:

18

19

Its negative decision on that issue during the second reading led to the resignation of ArangioRuiz as special rapporteur in 1996. Report of the ILC on the work of its forty-eighth session (A/51/10*), YBILC/1996/II/2, para. 62. In the articles adopted on first reading the ILC included provisions regarding optional recourse to processes of conciliation and arbitration, in articles 59 and 60 and Annexes I and II. These were dropped in the final text of 2001. For the final text of all the articles adopted on first reading, see the Report of the International Law Commission on the work of its forty-eighth session (cited), Ch. III. Report of the ILC on the work of its fifty-third session, note 1 above, para. 73. The General Assembly adopted this in resolution 56/83, 12 December 2001. The 2004 discussion ending with resolution A/59/35, 2 December 2004, did not take the matter any further, see Essay 28 above.

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A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: (a) that State individually; or (b) a group of States including that State, or the international community as a whole, and the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of that obligation.

It will be noted that paragraph (b) (ii) mirrors article 60 (2) (c) of the Vienna Convention. However, the responsibility articles go further. Article 46 deals with a plurality of injured States (which would be normal in the case of a multilateral treaty, where, following article 60 of the Vienna Convention, a distinction is made between a party specially affected by the breach and all the other parties to the treaty). When several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act. That could be the case where breach of a multilateral treaty is in question, with the consequence that the discharge of the responsibility may vary according to the degree to which the injured State is affected by the breach of the treaty. In that respect article 46 picks up the theme of article 30, paragraph 4, of the Vienna Convention, when the conclusion of a later treaty between different parties may be a violation of an earlier treaty with other parties, dealing with the same subject-matter. The responsibility articles also deal with the issue of a plurality of responsible States, or as I would prefer, defaulting States, again relating to article 30 of the Vienna Convention. Article 47 provides that when several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act. That reflects the position taken by the International Court of Justice in the Certain Phosphate Lands in Nauru case in relation to the preliminary objection to the admissibility raised by Australia. The objection here was that New Zealand and the United Kingdom, the States to which jointly with Australia the League of Nations had entrusted the mandate over Nauru and later jointly the Trusteeship Agreement with the United Nations, were not parties to the litigation.20 The Court refused to declare the claim inadmissible on that ground, without prejudice to the mutual relations of Australia, New Zealand and the United

20

ICJ Rep. 1992, 240. For the League of Nations mandate, see United Nations doc. A/70 (1946). For the United Nations Trusteeship Agreement, see Australian Treaty Series 1947 No. 8.

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Kingdom should breach of the Trusteeship Agreement be established in proceedings on the merits (the case was settled before that stage was reached). For the purposes of the law of responsibility, every State that comes within the category of injured State for the purposes of the law of treaties certainly comes within the same category for the purposes of the responsibility articles. However, the responsibility articles go further and open the way to the invocation of responsibility by a State which is not an injured State under the Vienna Convention. Article 48, on the invocation of responsibility by a State other than an injured State, provides: 1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. 2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State (a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in accordance with article 30; and (b) performance of the obligation of reparation . . . in the interest of the injured State or of the beneficiaries of the obligation breached. 3. The requirements for the invocation of responsibility by an injured State under articles 44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

This is different from the relationship of responsability caused by an unlawful act and affecting the injured State or States in relation to the defaulting State. However, despite its wide terms, article 49 would seem to be applicable only to international obligations originating in a treaty. If that is so, there would appear to be an element of redundancy in that provision, at all events as regards responsibility arising out of breach of a treaty. If the obligation that is owed to a group of States, for whatever purpose, originates in a treaty, all members of the group that are parties to the treaty would certainly be embraced within the normal definition of injured State appearing in article 43. They would also come within the scope of article 60 of the Vienna Convention if there is a material breach. On the other hand, the reference to the ‘beneficiaries’ of the obligation breached reflects the Court’s decision in LaGrand to the effect that the United States had breached not only its obligations to Germany under the Consular Relations Convention, but also its obligations to two German nationals under that same provision of that Convention. This is important for ‘human rights’ treaties which accord rights to individuals, but is not limited to any particular category of treaty. Whether the obligation breached is ‘owed’ to the international community as a whole is quite another matter. There is a difference between a treaty

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obligation owed to the international community as a whole and a treaty obligation addressed to the international community as a whole but applied on an individual or bilateral basis. It does not follow that an obligation originating in a multilateral treaty is ‘owed’ to the international community as a whole – whatever meaning is given to the expression common in the literature but so far encountered in a black letter international text only in article 53 of the Vienna Convention, dealing with treaties conflicting with a norm of jus cogens, where the expression is ‘the international community of States as a whole’. Although copied and modified from the law of treaties, in the responsibility articles the expression has its origin in article 19 adopted on first reading in 1976 on international crimes and international delicts.21 With regard to procedure, article 43 of the responsibility articles envisages only a single diplomatic stage of the giving of notice by an injured State of the claim, stating what the conduct of the responsible State should be in order to cease the wrongful act, if it is continuing, and what form reparation should take. What follows such a notice remains action on the diplomatic level. If the injured State or States intend to take countermeasures, article 49 requires a secondary procedure. In accordance with article 49 an injured State is to call on the responsible State to fulfil its obligations and to notify the responsible State of any decision to take countermeasures and to offer to negotiate with that State, with a proviso regarding urgent countermeasures as are necessary to preserve the rights of the injured State. III. Remedies for Breach of Treaty Given their basic approach, the responsibility articles likewise do not address specifically the remedies for breach of treaty. Under the heading of Reparation for injury, Part Two (Content of the international responsibility of a State, Chapter II (articles 34 to 39, Reparation for injury)), amplifies the basic rule set out in article 34, that full reparation for injury caused by the internationally wrongful act shall take the form of restitution, compensation

21

Report of the ILC on the work of its twenty-eighth session, note 7 above, para. (61) of the Commentary to the original art. 19 does not explain the divergence from art. 53 of the Vienna Convention. The concept of the ‘international community as a whole’, which is broader than ‘the international community of States as a whole’, first appeared in a black letter text in art. 5 (1) of the Rome Statute of the International Criminal Court, on the crimes coming within the jurisdiction of the Court. 2187 UNTS 3. For a useful summary of the discussion in the International Law Commission on the second reading of the responsibility articles, see the Commission’s Report on the work of its 52nd session in YBILC 2000/II/2/Rev.1 (A/55/10*) paras. 124 ff. And see, on responsibility, para. (16) of the Commentary on art. 25 of the responsibility articles note 1 above.

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and satisfaction, either singly or in combination. Those are not likely to be appropriate remedies for breach of treaty, where more often either the termination of the treaty (perhaps coupled with renegotiation) or something like ‘specific performance’ of the breached obligation would be appropriate, together with financial reparation if the breach has produced quantifiable harm and appropriate assurances against non-repetition of the breach. In Part Two, Chapter I (articles 28 to 33) setting out general principles, by article 29 the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligations breached. In a case of breach of treaty, that expression can be understood as referring to the performance of the obligation as the treaty has been interpreted in any proceedings, judicial or other, arising out of the breach. By article 30, that State is under an obligation to cease the wrongful act, if it is continuing, and to offer appropriate assurances and guarantees of non-repetition, if circumstances so require. This is presented as a rule per se, and not as a form of reparation or satisfaction to discharge the responsibility. To that extent, the responsibility articles respond to the primary rule of the law of treaties as indicated above, that a breach of a treaty, however grave, does not ipso facto put an end to the treaty or give to the injured parties the right to terminate it unilaterally, and that it is not open to a State simply to allege a violation of a treaty and pronounce the treaty at an end. A problem could arise, however, should the injured State decide to take countermeasures following Part Three, Chapter III (articles 49 to 54, Countermeasures), of the responsibility articles. Article 49 lays down the point of departure: an injured State may only take countermeasures against a State which is responsible for an internationally wrongful act ‘in order to induce that State to comply with its obligations’ under Part Two. What are countermeasures? Article 49, paragraph 2, gives a wide answer: ‘Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State’. In addition, by article 51, countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question. That could include the suspension of the operation of the treaty in whole or in part without regard for the provisions of the Vienna Convention on the separability of treaty provisions (article 44). But it does not open the door to termination of the breached treaty in the guise of a countermeasure, and to that extent the premise of the law of treaties is preserved. Article 72 of the Vienna Convention explains the consequences of the suspension of the operation of a treaty. It releases the parties between which the operation of the treaty is suspended from the obligation to perform the treaty in their mutual relations during the period of the suspension, but does not otherwise affect the legal relations between them established by the treaty. During the period of the suspension, the parties are to refrain from acts tending to obstruct the resumption of the operation of the treaty.

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Provided the other conditions are met, under the responsibility articles it is possible for the suspension of the operation of a treaty, in whole or in part, to be presented as a countermeasure, keeping in mind that a breach of a treaty, however grave, does not ipso facto put an end to the treaty and also that it is not open to a State simply to allege a violation of a treaty and pronounce the treaty at an end. Article 55 in Part Four, General provisions (articles 55 to 59), entitled lex specialis, provides that the responsibility articles do not apply where and to the extent that the conditions for the existence of an internationally wrongful act or the content or implementation of the international responsibility of a State are governed by ‘special rules of international law’. Together with this, article 56, on questions of State responsibility not regulated by the responsibility articles, provides that the applicable rules of international law continue to govern questions concerning the responsibility of a State for an internationally wrongful act to the extent that they are not regulated by these articles. Those two articles taken together would appear to leave untouched the provisions of the Vienna Convention concerning breach of a treaty. IV. Breach of Norms of Jus Cogens In one respect there is a major difference between the two sets of provisions, and that is in their treatment of norms of jus cogens. In the Vienna Convention, a treaty is void if it conflicts with a norm of jus cogens or becomes void and terminates in the event of the emergence of a new norm of jus cogens. It is difficult to see how there can be a breach of a treaty that is void ab initio, since in that case there is no treaty to be breached (the impugned act may be internationally wrongful, but not as a breach of the treaty). Article 65 prescribes the procedure to be followed with respect to the invalidity, termination, withdrawal from or suspension of the operation of a treaty, and article 66 introduces procedures for judicial settlement, arbitration and conciliation if no solution has been reached within a period of 12 months. That procedure requires a formal notification to the other party which can object and then seek a solution through any one of the means indicated in Article 33 of the Charter. By article 66 (1), if no solution has been reached through the procedure of article 65, any one of the parties to a dispute concerning the application or the interpretation of article 53 [ jus cogens] or article 64 [ jus cogens superveniens] may, by written application, submit it to the International Court of Justice for decision unless the parties by common consent agree to submit the dispute to arbitration.

Article 65 of the Vienna Convention has been the subject of major judicial interpretations in connection with the argument that it endows the Court

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with jurisdiction in any case involving alleged breach of a rule of jus cogens embodied in a treaty. Equating a rule of jus cogens with an erga omnes norm, the Court held in the East Timor case that whatever the nature of the obligations invoked, it cannot rule on the lawfulness of a State’s conduct when the judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case. ‘When this is so, the Court cannot act, even if the right in question is a right erga omnes.’22 The Court has clarified this more particularly in regard to a rule of jus cogens in its judgment in the Armed Activities on the Territory of the Congo (New Application: 2002) (Jurisdiction of the Court and Admissibility of the Application) case. One of Rwanda’s arguments was that Article 66 of the Vienna Convention established the Court’s jurisdiction to settle disputes arising from the violation of peremptory norms ( jus cogens) in the area of human rights, as those norms are reflected in a number of international instruments that Rwanda had invoked. Dismissing this argument, the Court referred to the cited passage from East Timor and added: The same applies to the relationship between peremptory norms of general international law ( jus cogens) and the establishment of the Court’s jurisdiction: the fact that a dispute relates to compliance with a norm having such a character . . . cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court’s Statute that jurisdiction is always based on the consent of the parties.

The Court concluded this part of its judgment by noting that there was no peremptory norm of general international law requiring a State to consent to the jurisdiction of the Court in order to settle a dispute relating to the Genocide Convention23 or a dispute relating to the Convention on Racial Discrimination.24 There is no equivalent in the responsibility articles. Articles 40 and 41 address serious breaches of obligations under peremptory norms of general international law (norms of jus cogens). Article 40, paragraph 2, explains the term ‘serious breach’ of such an obligation as a breach which ‘involves a gross or systematic failure by the responsible State to fulfil the obligation’. The Com-mentary (para. (8)) carries this further: To be regarded as systematic, a violation would have to be carried out in an organized and deliberate way. In contrast, the term “gross” refers to the intensity of the violation or its effects; it denotes violations of a flagrant nature, amounting to a direct and outright

22

23 24

ICJ Rep. 1995, 90, 102 (para. 29). This is an application of the standard ‘essential parties’ rule in international litigation. On that, see Sh. Rosenne, The Law and Practice of the International Court 1920–20054, vol. II 539. 78 UNTS 277. 660 UNTS 195; ICJ Rep. 2006 (paras. 64, 69, 78).

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assault on the values protected by the rule. The terms are not of course mutually exclusive; serious breaches will usually be both systematic and gross. Factors which may establish the seriousness of the violation would include the intent to violate the norm; the scope and number of individual violations, and the gravity of their consequences or their victims. It must also be borne in mind that some of the peremptory norms in question, most notably the prohibitions of aggression and genocide, by their very nature require an intentional violation on a large scale.

The absence from the responsibility articles of any hint of how these conditions are to be established would appear to be a major omission. ‘Gross’ and ‘systematic’ as qualifications of an act are both eminently appropriate for third-party determination, whether political such as through the Security Council or judicial such as through the International Court of Justice. It is not clear how the ‘intent’ of a State is to be established. Related is the second difference. The responsibility articles contain nothing similar to the requirement of judicial settlement of disputes relating to the jus cogens provisions of the Vienna Convention. The two examples given in the Commentary, aggression and genocide, suggest that something like a decision of the Security Council would be appropriate to ‘trigger’ the application of articles 40 and 41. Furthermore, if there should be an instance of genocide and the States concerned are parties to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, article IX of that Convention also confers compulsory jurisdiction on the International Court of Justice subject to any valid reservation that may have been made to that provision. The real difficulty with both those provisions is the absence of any clear and agreed indication or enumeration in a black letter text of what norms of general international law are ‘peremptory’ in the sense of requiring a State to perform or not perform an act that otherwise would be a violation of international law. The presence of these provisions in this form in the responsibility articles may open the way to far-fetched excuses to interfere with the continued application of a treaty, although as far as concerns treaties and breaches of treaties, the hypothesis of these provisions of the responsibility articles is unlikely to be encountered. As seen,25 the International Court of Justice has determined that a dispute as to whether a treaty provision has been breached does relate to the interpretation or application of the treaty in question. That statement referred to the words ‘interpretation or application’ appearing in the title of jurisdiction, and they are not necessarily limited to the processes of interpretation and application as customarily used in the law of treaties. Clearly, the law of responsibility is also closely related to the interpretation or application of the

25

Text to note 14 above.

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relevant rule of international law that is allegedly violated. The determination of the responsibility will usually require an interpretation of the rule in light of the impugned conduct (or the reverse, an assessment of the lawfulness of the impugned conduct in light of the alleged violated rule). There is therefore not complete concordance between the jus cogens provisions of article 66 of the Vienna Convention and articles 41 and 42 of the responsibility articles. V. Three Cases of Breach of Treaty As mentioned, three contentious cases involving breach pure and simple of a multilateral treaty have come before the International Court of Justice. The Hostages case between the United States and Iran, arising out of the seizure of the U.S. Embassy in Tehran and consular premises elsewhere in the country and the taking of their staff as hostages, was strictly a bilateral dispute in any sense of that term. The United States claimed a declaration of the violation of different provisions of a number of treaties, bilateral and multilateral, in force between the two countries, the return to it of the seised premises and the release of the hostages, and reparation. In its judgment, the Court found that Iran by its conduct had violated in several respects and was still violating obligations owed by it to the United States under international conventions in force between the two countries, as well as under long-established rules of international law and that those violations engaged the international responsibility of Iran towards the United States. It decided on different steps that Iran must take to redress that situation, and that Iran was under an obligation to make reparation to the United States, the form and amount of such reparation, failing agreement between the parties, to be settled by the Court. Agreement was reached between the parties and the case was discontinued.26 It will be noted that the claim of the United States was limited to matters directly connected with the incidents themselves, and no mention was made of any of the other forms of reparation and of the other consequences of the international responsibility of Iran, such as are set out in Part Two, Chapter I, of the responsibility articles. The LaGrand case between Germany and the United States was quite different. The case was bilateral in substance in the sense that it related to the

26

ICJ Rep. 1981, p. 45. In its 1980 judgment (note 11 above) the Court noted without comment that the United States had taken what it termed ‘certain unilateral actions in response to the actions for which it holds the Government of Iran responsible’ (p. 16 (para. 30), p. 25 (para. 53)). These are examples of countermeasures. The rules on countermeasures in the responsibility articles largely follow what the Court decided in that case. Iran did not take part in these proceedings, so no further pronouncement was made by the Court regarding the American countermeasures.

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rights of Germany and of German citizens under the Consular Relations Convention of 1963. The dispute arose out of alleged breach of article 36, concerning consular notification of the arrest of those German nationals. Germany’s claims in this case were that the non-notification to the arrested German nationals of their rights under article 36 of the 1963 Convention violated the international legal obligations owed to Germany ‘in its own right and in its right of diplomatic protection of its nationals’ under certain provisions of that Convention and a number of related matters. Germany also required the United States to provide Germany with an assurance that it would not repeat its unlawful acts. In its judgment the Court found that in the circumstances the United States had breached its obligations to Germany and to the LaGrand brothers under the relevant provisions of the Consular Convention. It took note of the commitment undertaken by the United States to ensure implementation of the specific measures adopted in performance of its obligations under the relevant provision of the Consular Convention, and found that this commitment must be regarded as meeting Germany’s request for a general assurance of non-repetition. However, at the same time it went on to find that should German nationals nonetheless be sentenced to severe penalties without their rights under the Consular Convention having been respected, the United States, by means of its own choosing, should allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention. In an important declaration appended to that Judgment, the President, Judge Guillaume, explained that this last finding ‘does not address the position of nationals of other countries or that of individuals sentenced to penalties that are not of a severe nature. However, in order to avoid any ambiguity, it should be made clear that there can be no question of applying an a contrario interpretation to this paragraph.’27 Clearly, all States parties to the Consular Convention should follow the interpretation of article 36 contained in that judgment. In a statement to the press on the same day, President Guillaume explained that because the judgment had been given in a case brought by Germany against the United States, the Court’s finding ruled only on the obligations of the United States in cases of severe penalties imposed upon German nationals, and the judgment did not address the position of individuals who are nationals of other States parties to the Consular Convention or the position

27

In LaGrand (note 12 above) the individuals had been sentenced to death and the sentences had been duly carried out, notwithstanding a long series of legal processes of appeal and review in state and federal courts. The question of consular notification had not been raised in the proceedings in the state courts, and the federal courts, applying a federal rule of ‘procedural default’, had held that the plea could not be raised in different review proceedings in the federal courts. That is what the Court has asked the United States to re-examine.

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of individuals sentenced to penalties that are not of a severe nature. ‘It should however be made clear that the Judgment cannot be understood as making any ruling at all, one way or the other, on the position of such other individuals.’28 Avena was in all essentials similar. However the judgment was more detailed and it incorporated the essence of the President’s declaration in LaGrand.29 This gives an erga omnes partes quality to a judicial interpretation of a multilateral treaty in an instance of bilateral litigation. The absence from the responsibility articles of anything like the procedure of the Vienna Convention for establishing the existence of a breach engendering the responsibility of a State is the principal point of difference between the two sets of articles. In some respects this is overcome as regards breach of treaty by the inclusion of appropriate provisions in the treaty allegedly breached, including the attribution of jurisdiction to the International Court of Justice or to the International Tribunal for the Law of the Sea or to some other standing body with either powers of decision or powers of recommendation (conciliation) to settle a dispute arising out of the interpretation or application of the treaty. In that sense, those who negotiate the treaty decide whether a dispute settlement procedure would be an essential element of the negotiation or an optional matter, and essential, how to express it. Nevertheless, there are many treaties, especially multilateral treaties concluded during the Cold War period, where either there is no such provision, or what provision there is may be illusory. It is for that kind of case that the introduction of some form of residuary third-party procedure available in cases of alleged breach of a treaty as a case of international responsibility could be appropriate. With that reservation, it appears that the codified law of responsibility for an internationally wrongful act now fits in nicely with the codified law of treaties and takes account of modern developments in the law of treaties.

28 29

Statement by Judge Guillaume, President of the International Court of Justice, The Hague, 27 June 2001, taken from the Court’s website www.icj-cij.org. ICJ Rep. 2004, 12.

29 STATE RESPONSIBILITY – FESTINA LENTE

Of all the topics chosen for official codification, by the League of Nations and by the United Nations (through the International Law Commission), State responsibility has been dogged the most by inarticulate political pressures. In the League these pressures prevented the Codification Conference of 1930 from reaching any effective conclusion on the matter. In the United Nations, they have led to a double conclusion, a full set of draft articles with commentaries adopted by the International Law Commission following its usual procedure of two readings with consultations with Governments, and two procrastinating resolutions by the United Nations General Assembly drawing the draft articles to the attention of governments. This is slow progress. When in the middle 1920s the League of Nations decided to work on the codification of international law, one of the subjects chosen was Responsibility of States for Damage done in their Territory to the Persons or Property of Foreigners.1 At the League of Nations Conference for the Codification of International Law (1930), the topic was allocated to the Third Committee, under the chairmanship of Jules Basdevant with Charles De Visscher as rapporteur.2 The Final Act of the Conference simply reports as follows: The Responsibility Committee was unable to complete its study of the question of the responsibility of States for damage cause on their territory to the person or property of foreigners, and accordingly was unable to make any report to the Conference.3

That statement in the Final Act does not give a complete picture of what occurred in the Third Committee. The Committee did manage to produce 1

2

3

For this purpose the League established a Committee of Experts for the Progressive Codification of International Law, in some respects the predecessor of the International Law Commission. That Committee held four sessions between 1925 and 1928. For a reproduction of its records, see Sh. Rosenne (ed.), League of Nations: Committee of Experts for the Progressive Codification of International Law [1925–1928] (1972). The records of this Conference are reproduced in Sh. Rosenne (ed.), League of Nations, Conference for the Codification of International Law [1930] (1975). For the records of the Third Com-mittee, see vol. IV 1425 of that reproduction. Ibid. vol. III 871. The International Law Commission made good use of those draft articles in its work on the topic.

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a set of ten draft articles, which were adopted in first reading and revised by the Committee’s Drafting Committee.4 It then went on to produce a draft report drawn up by De Visscher. That was circulated to the Committee, but there was no further discussion on it.5 There is no question that the Committee was heavily pressed for time having regard to the large number of amendments and proposals submitted to it, in what in retrospect is seen as a badly organized codification conference. However, the debates and the amendments show strong political hesitation if not opposition to embodying this branch of the codified law in an international convention. That political reserve has roots to what was conceived as misuse of the law by former colonial and imperial powers, to maintain their political and economic predominance in what became the first decolonized area of the world (to use current terminology) – Latin America. At its first session in 1949, the International Law Commission chose State responsibility as a topic for codification, but did not include it in its list of priority topics.6 The basis for the Commission’s discussion was a memorandum submitted by the Secretary-General, later known to have been written by Hersch Lauterpacht, entitled Survey of International Law in relation to the Work of Codification of the International Law Commission: Preparatory Work within the purview of article 18, paragraph 1, of the Statute of the International Law Commission.7 That memorandum contained a long paragraph (para. 98) on State responsibility. Its principal emphasis was that it was that this branch of international law transcends the question of responsibility for the treatment of aliens, and its codification must take into account the problems that have arisen in connection with recent developments. In the discussion in the Commission, Georges Scelle did not consider that the failure of the 1930 Conference was an adequate reason for not undertaking codification of the topic. He warned, however, that the Commission should be cautious and should approach the subject in such a way as to avoid any very great difficulties, at least in the early stages.8 The Commission was slow in taking the topic up. In 1955, at the urging of the General Assembly after a difficult discussion and a divisive vote of sixteen to five, with twenty-four abstentions, the Commission appointed its first Special Rapporteur, F.V. García-Amador of (pre-Castro) Cuba, without giving him any clear directive. At first he seems to have tried to pick up where

4 5 6 7 8

Ibid. vol. IV 1659. Ibid. 1660. The main reason for the lack of success of the Third Committee was given as insufficient time. Perusal of the records shows that this was indeed the case. For a brief survey, see United Nations, The Work of the International Law Commission, 6th edn. Vol. I 194 (2004). Doc. A/CN.4/Rev.1 (1949). Reproduced in H. Lauterpacht, International Law, vol. I 445 (1970). YBILC 1949, 5th meeting.

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the 1930 Conference had left off. Towards the end of his term of office (1961) he showed signs of realizing that this would not be adequate in the regime of the Charter. In 1961 the General Assembly asked the newly elected Commission to review its work in light of discussions in the Sixth Commitee. In 1962 the Commission appointed a subcommittee chaired by Roberto Ago. This subcommittee recommended that the Commission give priority to the definition of general rules governing the international responsibility of the State, without neglecting the experience and material gained in the past and paying special attention to the possible repercussions which new developments in international law might have on responsibility, and it set out a detailed outline on how the Commission should deal with the topic. The Commission adopted this approach, which the General Assembly approved.9 On that basis, the Committee appointed Ago as special rapporteur, a position that he held until his election to the International Court of Justice in 1979. He was followed as special rapporteur by Willem Riphagen from 1979 to the end of his term of office in 1986, and by Gaetano ArangioRuiz from 1987 to 1996, when he resigned just before his term of office came to an end. In that year the Commission completed its first reading. The draft then consisted of 60 articles with two annexes, a further 13 articles.10 In 1997 the Commission appointed James Crawford as special rapporteur, the first jurist of common-law formation to hold this position for this topic, and determined to complete its examination of the topic before the end of the current term of office of its members, that is by 2001. It achieved that aim, and in 2001 submitted its final report to the General Assembly.11 In that report the draft articles, renamed draft articles on the responsibility of States 9 10 11

YBILC 1963/II (doc. A/5509* Annex I [A/CN.4/152]): General Assembly resolution 1902 (XVIII), 18 November 1963. YBILC 1996/II/2 (doc. A/51/10* ch. III). Arts. 54 to 60 and the two annexes related to the settlement of disputes. At present only available in the unedited version in the Official Records of the 56th session of the General Assembly, (A/56/10), ch. IV. This chapter has been reproduced by J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (2002), The Commission changed the title of the draft articles to Draft articles on the Responsibility of States for Internationally wrongful acts. In the United Nations documents, an unusual style for capitalization of the subsidiary clauses of the articles has been introduced – termed by Crawford a ‘stylistic barbarism’ (p. xi). This is corrected in Crawford’s book, and that is followed here. The UN’s version is marred by incorrect capitalization of subparagraphs of the articles. The Drafting Committee of the Vienna Conference on the Law of Treaties examined this aspect closely. It recommended that subparagraphs of an article which did not form a grammatically complete sentence should, for grammatical reasons, commence with a lower case letter. UN Conference on the Law of Treaties, Official Records, vol. I, Committee of the Whole, 28th meeting para. 3 and the report of its work at the first session of the Conference, ibid. vol. I A/CONF.39/14, para. 16 (c). It is not known why the UN editors have decided to ignore this decision of a competent diplomatic conference.

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for internationally wrongful acts, consist of 58 articles with commentaries and no annexes. The Commission’s report does not contain the customary statement that the draft articles are both codification and progressive development as those terms are understood in the Commission’s Statute (Article 15). The Commission accompanied its draft articles with a recommendation that the General Assembly consider, at a later stage and in light of the importance of the topic, the possibility of convening an international conference of plenipotentiaries to examine the draft article on responsibility of States for internationally wrongful acts with a view to concluding a convention on the topic. The Commission was of the view that the question of the settlement of disputes could be dealt with by the above-mentioned conference, if it considered that a legal mechanism on the settlement of disputes should be provided in connection with the draft articles.12 * * * That summarizes developments in the period 1924–2001, and constitutes the background for the actions of the General Assembly. Here it is necessary to recall that there is a major difference in the composition of the international community at the beginning of the twenty-first century from what it was in 1930. Many decolonized States replace the vast world-wide empires of that period, and with modern voting rules these States can easily constitute the majority in deliberative bodies such as the General Assembly or a diplomatic conference, especially when, as is modern practice, every effort is made to reach a consensus and to vote only as a last resort. With these new States, new major legal systems have found a place in the international legal order and its organs, including the International Court of Justice and the International Law Commission. The fundamental elements of the common law and of Roman law are no longer predominant. Inarticulate political features which prevailed in the 1930 Conference continue to influence the attitude of many States when they come to examine this topic. The Sixth Committee held its first debate on the draft articles during the 59th session of the General Assembly (2001), leading to A/RES/56/83 of 12 December 2001.13 The main thrust of that resolution is in paragraph 3: The General Assembly ... Takes note of the articles on responsibility of States for internationally wrongful acts presented by the International Law Commission, the text of which is annexed to the present resolution, and commends them to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.

12 13

Report (previous note), para. 73. For the report of the Sixth Committee, see doc. A/56/589 and Corr.1).

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The General Assembly decided to include the item in the provisional agenda of its 59th session (2004). The debate in the 59th session disclosed the usual division of opinion about the future of these draft articles. It brought little that was new. There was hardly any enthusiasm for a conference of plenipotentiaries and there was anxiety lest such a conference would unravel the carefully woven set of draft articles. It was also felt that the chances of any convention receiving sufficient ratifications to bring it into force were under present circumstances not strong. That view prevailed, and in A/RES/59/35, 2 December 2004, the General Assembly ‘once again’ commended the draft articles to the attention of Governments without prejudice to their future adoption or other appropriate action, and decided to include the topic in the provisional agenda of its 62nd session (2007).14 Paragraph 3 of that resolution requested the SecretaryGeneral to prepare an initial compilation of decisions of international courts, tribunals and other bodies referring to the articles and to invite Governments to submit information on their practice in this regard. It further requested the Secretary-General to submit that material ‘well in advance’ of the 62nd session. * * * Against that background, the purpose of this Note is to address in a preliminary way the question: What is the status of the draft articles today? As in the case of much of modern international law, the question cannot be answered by a facile resort to Article 38 of the Statute of the International Court of Justice, a text coloured by the situation existing when it was adopted, in the aftermath of the Great War and at the dawn of the era of the major international organization for the preservation of peace. The final report of the International Law Commission on a topic, with a set of draft articles and their commentaries, cannot be regarded as a subsidiary means for the determination of rules of law, any less than can judicial decisions of the International Court of Justice or any other competent international court or tribunal (including arbitral tribunals). The reason is that the International Law Commission was created by the General Assembly to enable it to carry out its obligation under Article 13 (1) (a) of the Charter, that is for the very purpose of the promotion of the progressive development of international law and its codification. The Commission does not work in the abstract or in the tranquillity of a university professor’s study or of counsel’s chambers but in close contact with States, and its work is subject to continuous governmental scrutiny and public discussion in the annual debates in the Sixth Committee, apart from academic commentaries removed from the realities and asperities of international life. The International Law Commission is not

14

For the report of the Sixth Committee, see doc. A/59/505. For the Secretary-General’s reports of 2007, see A/62/62 (Compilation of decisions of international courts, tribunals and other bodies) and A/62/63 (Comments and information received from Governments).

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a legislature nor does it claim to be. It formulates for the General Assembly in written form what it considers are the relevant rules of international law on a particular topic, and it justifies its conclusions reached after deliberation with commentaries that are no less carefully worked out than the draft articles themselves. The General Assembly has twice commended this set of draft articles to the attention of Governments, has taken the unusual step of annexing their text to the first of its resolutions, and has acted in this way ‘without prejudice to the question of their future adoption or other appropriate action’. There is no explanation of what that last phrase means, but clearly, in light of the general history of the topic (buttressed by the commentaries of the International Law Commission) this can refer, inter alia, to State practice and to judicial and arbitral decisions. Resolution 59/35 partly recognizes this when it invites Governments to submit information on their practice ‘in this regard’. This is unlikely to produce much worthwhile information, as the test of the acceptability of the draft articles will reside not so much in published information as in the internal papers prepared for a Government or other entity or individual when it comes to take what are political decisions in relation to an incident involving international responsibility. It is hard to imagine responsible legal advisers and counsel not having regard to the draft articles and not relying on them in any case with which they are dealing. Such internal papers are rarely made public until the archives in which they are deposited are open to the general public. There are at least three significant features in the draft articles. The first is the firm statement of the law of international responsibility on the basis that a State has committed an act that is in breach of its obligations under international law. This is balanced by Part One, Chapter V (articles 20 to 27), a series of carefully crafted provisions on ‘circumstances precluding wrongfulness’. At first sight that is a curious allusion to a series of norms which in practice serve as a defence to a claim based on an alleged internationally wrongful act. Those circumstances may well blunt the sharpness of absolute responsibility as set out in Chapter One (articles 1 to 3) of the draft articles. In fact, the Commission has not broken new ground in formulating the rules of responsibility in this way. So long as the law of international responsibility was interred in the artificial framework of injuries to aliens and confused with the law of diplomatic protection, elements such as intent and damage could be relevant.15 They lose their relevancy when the

15

In 1997 the Commission commenced its study of the topic of diplomatic protection. In 2004 it completed the first reading of its draft articles and circulated them to Governments. It hoped to be able to complete its work by the end of the current term of office of its members (2006), and it succeeded in that: Report of the International Law Commission on the work of its 58th session, General Assembly, 61st session, Official Records Supplement No. 10 (A/61/10) ch. IV.

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law of responsibility is placed on a straight State to State basis. There can be no doubt that, whatever the ultimate action on these draft articles (if any), the concept of absolute responsibility balanced by circumstances precluding wrongfulness is now firmly implanted in international law. In fact, the International Court of Justice has already directly or indirectly applied this double-barrelled approach to issues of responsibility, in the Gab‘íkovoNagymaros Project case,16 and to some extent, although in a more roundabout way, in the Oil Platforms case,17 and others.18 The second significant feature of these draft articles is their facing up to the issue of breaches of norms of jus cogens and what seems to be related to it, the issue of obligations erga omnes. The International Law Commission introduced the concept of norms of jus cogens in its draft articles on the law of treaties, now article 53 of the Vienna Convention on the Law of Treaties of 1969,19 and repeated in article 53 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986.20 The provisions of those two instruments are in fact limited and unlikely to be encountered in modern diplomatic practice. They simply provide that a treaty that conflicts with a norm of jus cogens is void. If it is void, no breach of it giving rise to an instance of State responsibility is possible. More than that. If there is a dispute over the application of the jus cogens articles of those Conventions, the International Court of Justice has compulsory jurisdiction under article 66 (a) of the 1969 Convention and an appropriate adaptation under the 1986 Convention. Article 66 was not in the draft proposed by the ILC. It was added very deliberately by the Vienna Conference on the Law of Treaties, the only instance of compulsory jurisdiction in relation to the codified international law of treaties. In the responsibility articles, Part One, Chapter V, article 26, provides that nothing in Chapter V ‘precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law’. The Commission may have realized that this eventuality is unlikely to be met in practice: in paragraph (3) of its commentary on article 26,

16 17

18

19 20

ICJ Rep. 1997, 3. The parties based themselves in part on the Commission’s draft articles as adopted on first reading, and the Court proceeded on the same basis. ICJ Rep. 2003, 161. The ILC’s articles were directly before the Court. See the statements by Professor Weil on behalf of the United States in CR 2003/11, 25 February 2003 p. 18 and in CR 2003/12, 26 February 2003, p. 15. Judge Kooijmans referred to one of Ago’s earlier reports, at p. 265 and Judge Simma to the 2001 draft articles, at p. 332. Arrest Warrant of 11 April 2000 case, ICJ Rep. 2002, 3, Joint Dissenting Opinion of Judges Higgins, Kooijmans, and Buergenthal at 89, Judge ad hoc Van den Wyngaert at 183; Avena and other Mexican Nationals case, ICJ Rep. 2004, 12, Judge ad hoc Sepúlveda at 124. 1155 UNTS 331. Not yet in force. See UN Conference on the Law of Treaties between States and Inter-national Organizations or between International Organizations, Official Records vol. II. (A/CONF.129/15).

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it included the pointed statement that peremptory norms of international law generate strong interpretative principles which will resolve all or most apparent conflicts. Chapter VIII (articles 40 and 41) deal with serious breaches of obligations under peremptory norms of general international law. The third feature of the draft articles is that unlike those adopted on first reading, they now say nothing about the settlement of disputes, the Commission deciding to leave that to a conference of plenipotentiaries should there be one. This contrasts with the position adopted in the League of Nations. The Committee of Experts suggested a commission of enquiry to examine the facts, and if that did not lead to a settlement of the dispute, then arbitration or some other means of pacific settlement.21 The draft report of the Third Committee at the 1930 Conference went further and specified recourse to the Permanent Court, pointing out that the development of international case law would contribute most effectively to the gradual definition of the scope and limits of the principle of international responsibility.22 The inclusion in a codification project, as indeed in any other treaty negotiation, of specific provisions for dispute settlement depends on whether as a matter of political determination the pacific settlement of disputes is an integral part of the matter under negotiation (as was the case in the Third UN Conference on the Law of the Sea), or whether specific provision for dispute settlement is to be a voluntary addition. If the decision is in favour of the first alternative, the problem of drafting appropriate provisions becomes exceedingly complicated, owing to the freedom of choice provisions of Articles 33 and 95 of the Charter, as the Conference on the Law of the Sea demonstrated.23 Here the Commission has not provided sufficient guidance to the General Assembly. This could be rectified by the conclusion of an appropriate instrument to indicate whether compulsory pacific settlement of disputes is to be part of the codified law on international responsibility. If it were felt that dispute settlement is an integral part of this branch of the law, an appropriate formula, following in broad outline Part XV of the Convention on the Law of the Sea, would be required. It should make due provision, as the Committee of Experts did in 1926 and as was tentatively followed by the Third Committee in 1930, for distinguishing between disputed facts, and the settlement of the dispute after the facts have been established, through appropriate means. * * *

21 22

23

Rosenne, above n. 1, vol. II at 131. Rosenne, above n. 2, vol. III at 1661. It is a matter of common knowledge that the law of responsibility has been developed by case law more than any other branch of international law, as even a cursory perusal of the ILC’s commentaries shows. On Art. 95, the significance of which is often overlooked, see No. 4 in this collection above.

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Annexed to resolution 56/83 is the full text of draft articles.24 This is a major advance on what was achieved at the 1930 Conference, and it shows that for some questions, time, not speed, has predominance. State Responsibility is not the only topic to demonstrate this. Aspects of the Law of the Sea were also discussed in the League’s codification process, and it took from 1926 to 1982 to complete that work. Resolution 56/83 gives the draft articles on the responsibility of States for internationally wrongful acts a firmer standing than they would have had had they not been so annexed, and this standing is increased by resolution 59/35. The General Assembly in fact is inviting law applying organs, and that includes individual States attempting to resolve a dispute in which issues of State responsibility are relevant, to look to the draft articles of the ILC as a statement of the law on the matter. Time will tell how effective this new method of codifying a difficult branch of the law will be.

24

This is the second time that the GA has annexed the ILC’s draft articles to a resolution: see A/RES/55/153, 12 December 2000, on the nationality of natural persons in relation to the succession of States. Another precedent is A/RES/1262 (XIII), 14 November 1958, by which the General Assembly brought to the attention of Governments the Model Rules on Arbitral Procedure adopted by the ILC that year. The Model Rules were not annexed to the resolution, and apparently they lay dormant after that. They came to life in the Conference on the Law of the Sea, where they formed the starting point for the negotiation of Annex VII of that Convention, on arbitration recourse to which can be compulsory. See University of Virginia, Center for Oceans Law and Policy, The United Nations Convention on the Law of the Sea 1982: A Commentary, vol. V 421 (1989).

30 DECISIONS OF THE INTERNATIONAL COURT AND THE LAW OF STATE RESPONSIBILITY

I. Introduction The purpose of this essay, dedicated to the memory of my friend of long standing, Oscar Schachter, is to draw attention to what may become a central feature of the impact on the decisions of the International Court of Justice of the new law of State responsibility. The draft articles on the international responsibility of States for internationally wrongful acts adopted by the International Law Commission in 2001 embody that new statement of the law.1 The governing provision on the obligation of compliance with decisions of the International Court is Article 94(1) of the Charter of the United Nations. According to that, ‘Each Member of the United Nations undertakes to comply with the decision [“s’engage à se conformer à la décision”] of the International Court of Justice in any case to which it is a party’. This is extended by other arrangements to all States appearing before the Court in a contentious case, except perhaps that curiosity, the non-party intervener. It will not escape the reader that Article 94, paragraph (1), is couched in very broad language. The undertaking to comply with the decision of the Court is very general. To whom is it addressed? To the other party or parties to the case? To the other members of the United Nations or, more fully,

1

For those articles see the Report of the International Law Commission on the work of its fifty-third session (2001), UN General Assembly Official Records, 56th session, Supplement No. 10 (A/56/10), Ch. IV (“responsibility articles”). More in Essay 29 note 11 above. These articles only refer to the international responsibility of a State, not to that of any other entity that is an actor on the international plane. The Commission currently has under study the international responsibility of international intergovernmental organizations. On compliance with decisions of the International Court, see in particular M. Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards (1971); M.K. Bulterman and M. Kuijer (eds.), Compliance with Judgments of the International Court of Justice and the Law of the United Nations, (1996); A. Azar, L’Exécution des décisions de la Cour Internationale de Justice (2003); C. Paulson, “Compliance with Final Judgments of the International Court of Justice since 1987”, 98 AJIL 434 (2004); C. Schulte, Compliance with Judgments of International Courts (2004).

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to the other States that are party to the Statute under Article 93, paragraph 2, of the Charter? Or even to the United Nations itself? Article 59 of the Court’s Statute (annexed to the Charter) has to be added. By that provision, ‘[t]he decision of the Court has no binding force except between the parties and in respect of that particular case’. By the Statute, the final and binding quality of a judgment is relative. Article 60, after laying down that the judgment is final and without appeal, goes on to provide that, in the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.2 Anticipating the possibility that the implementation of the decision may encounter unexpected obstacles, the very provision that lays down that the judgment is final and without appeal goes on to accept that this finality and unappealableness can be subject to further judicial consideration. Article 61 immediately follows this and provides for the revision of a judgment in the circumstances there laid down. That procedure is available for a period of ten years from the date of the judgment.3 The new approach to responsibility adopted by the International Law Commission replaces the traditional notions of fault and damage with a concept of absolute responsibility arising from any breach of an international obligation of the responsible State. This includes deliberate non-compliance with such a rule. Chapter I (articles 1 and 2) of those draft articles formulates this approach, as follows: Article 1 Responsibility of a State for its internationally wrongful acts Every internationally wrongful act of a State entails the international responsibility of that State.

2

3

For examples, see, in the Permanent Court of International Justice, Interpretation of Judgment No. 3, PCIJ, Ser. A4 (Chamber of Summary Procedure) (1925) and, in the International Court of Justice, Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case, ICJ Rep. 1950, 395; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), ICJ Rep. 1985, 192; Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, ICJ Rep. 1999, 31. For examples, see Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), ICJ Rep. 1985, 192; Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, ICJ Rep. 2003, 7; Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), ICJ Rep. 2003, 392 (before a Chamber).

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Article 2 Elements of an internationally wrongful act of a State There is an internationally wrongful act of a State when conduct consisting of an action or omission (a) Is attributable to the State under international law; and (b) Constitutes a breach of an international obligation of the State.

Those articles express the essence of what is hoped will be accepted as the modern law of the international responsibility of States, based on the objective criterion that the act (or omission) of a State per se constitutes an internationally wrongful act if it is a breach of an international obligation of that State. At the time of writing, however, there is no certainty that this concept of absolute responsibility, independent of fault and of damage caused by the act (or omission), will be accepted as today’s lex lata. The Commission’s 2001 report omits the customary phrase that its work on the topic constitutes both codification and progressive development of international law in the sense in which those words are defined in article 15 of the Commission’s statute. The Commission recommended that in due course the General Assembly consider convening a diplomatic conference to examine the matter. The General Assembly accepted that recommendation. In resolution 56/83, 12 December 2001, adopted without a vote, it commended the articles, which were annexed to the resolution, to the attention of Governments ‘without prejudice to their future adoption or other appropriate action’. A debate on the topic took place at the fifty-ninth session of the General Assembly in 2004. It showed little enthusiasm for further action in a conference of plenipotentiaries.4 However, should such a conference be convened, it will also have to consider whether a system of compulsory settlement of disputes is to be included in any final text that it adopts.5 Whatever the future of the draft articles, with or without change, there is no doubt that the concept of absolute responsibility, at all events for certain types of unlawful acts, is now implanted in international law. Whatever the attitude of Governments – and in the final resort only a widely accepted international convention, State practice, or judicial decisions, can consolidate this new conception of international responsibility – it is certain that this approach will enjoy powerful

4 5

See on this Essay 28 above and General Assembly resolution A/RES/59/35, 2 December 2004. In that connection it might be noted that, when this question was discussed in the 1930 Codification Conference of the League of Nations, the Third Committee (responsibility of States for damage done in their territory to the persons or property of foreigners) in its draft report seemed to recognize the importance of judicial settlement of disputes in claims of that type. League of Nations, Doc. C.351(c).M.145(c).1930.V, reproduced in Sh. Rosenne (ed.), League of Nations Conference for the Codification of International Law (1930), vol. I at 249.

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backing from the most qualified publicists of the various nations (in the words of Article 38 (1) (d ) of the Statute of the International Court).6 For that reason, this essay will examine the relation that can exist between compliance or non-compliance with a binding decision of the International Court and those draft articles as they were adopted in 2001. II. Compliance with Court Decisions By article 12, a breach of an international obligation occurs when an act of the State is not in conformity with what is required of it by that obligation, regardless of its [the obligation’s] origin or character. Paragraph (3) of the Commentary on Article 12 specifically mentions a judgment of the Court or of some other tribunal as such an obligation. The time from which a decision of the Court is binding is not clearly set out in the governing texts. This could be a matter of significance since, by Article 13 of the draft articles, for an act to be internationally wrongful, the State concerned must have been bound by the international obligation in question at the time the act occurs. Article 94, paragraph 1, of the Rules of Court requires notice to be given to the parties of the date of the reading of the judgment. By paragraph 2 of that article, a judgment has to be read at a public session of the Court ‘and shall become binding on the parties on the day of the reading’. Although not specifically laid down, we can presume that the same practice applies to orders indicating provisional measures (not necessarily to orders dismissing such requests). Clearly, the assumption is that the notification to the parties of the date of the reading of the decision (a process that might take an hour or more) is sufficient to give the decision binding force as between the parties. This notwithstanding, it would appear that reasonable allowance must be made for the full text of the decision to reach each of the capitals during working hours in order to determine the terminus a quo it becomes binding, and when the process of compliance should commence.7 6 7

See for instance Th. Meron. ‘International Law in the Age of Human Rights: General Course on Public International Law’, 301 Hague Collected Courses 9–490 at 249 (2003). For my observations on the requirement of the Rules and the imprecision of the term ‘day’ see Sh. Rosenne, Provisional Measures in International Law: the International Court of Justice and the International Tribunal for the Law of the Sea 153 (2005). For the interpretation of a special agreement in light of Art. 94 and the relevant provisions of the Statute and Rules, see the Continental Shelf (Tunisia/Libya) case, ICJ Rep. 1982, 18, 39 (para. 29). In a piece of circular reasoning, the Court said that the judgment to be given ‘will have . . . the effect and the force attributed to it under Article 94 of the Charter . . . and the said provisions of the Statute and Rules of Court’. However, the substantive question today is: What is that effect and force? If the non-compliance is continuing, it would come within the scope of art. 14 of the draft articles, on the extension in time of the breach of an international obligation.

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The time at which the decision becomes binding is not necessarily the same as the time from which it can be established that a party is not acting in compliance with its obligations under the decision, so as to bring the law of responsibility into play. That is clearly a question of fact and of appreciation. While it could be said that Albania was not acting in accordance with the final judgment in the Corfu Channel case so long as it had not made any serious attempt to pay the sum awarded to the United Kingdom or at least part of it, the United Kingdom took no serious action to secure payment of the judgment debt until the general relations between the two countries made it possible to reach a mutual settlement of all outstanding claims and counter-claims.8 The Court has held that in a case of alleged non-compliance with an order indicating provisional measures of protection (as in other cases), it is the litigant who is seeking to establish a fact who bears the burden of proving it and, where evidence may not be forthcoming, a submission may be rejected as unproved.9 The decisions of the International Court relevant to this essay fall into three categories: (1) decisions, usually in the form of an order made under Article 48 of the Statute, relating to the organization of the proceedings; (2) decisions, which may be in the form of an order or a judgment (creating a res judicata) dealing with different interlocutory or derivative matters, such as an indication of provisional measures of protection under Article 41 of the Statute,10 or with the Court’s jurisdiction under Article 36(6), or on the

8

9 10

For the final settlement of this claim on 8 May 1992, by way of set-off against an Albanian claim against the United Kingdom, see G. Marston (ed.), ‘United Kingdom Materials on International Law 1992’, 63 BYIL 615 at 781 (1992). The United Kingdom, as a member of the Tripartite Commission on the Restitution of Monetary Gold under the Final Act of the Paris Conference on Reparations of 1946, retained in a vault in London a quantity of monetary gold, to which Albania had a claim. The final settlement required the consent of the other States members of the Tripartite Commission, France and the United States of America. Both Albania and Italy had independent claims to that gold, while the claim of the United Kingdom was against Albania’s share (if any) of that gold. Before the final settlement of the Corfu Channel case, there had been one arbitration and one judgment of the International Court of Justice dealing with those claims, an indication of possible complications in what would superficially appear as a simple case of non-compliance with a decision. On Albania’s claim to a portion of that gold, see the Gold belonging to the National Bank of Albania arbitration, XII RIAA 35 (Sauser-Hall, arbitrator, 20 February 1953), and, in the International Court, see Monetary Gold Removed from Rome in 1943 case, ICJ Rep. 1954, 19. In the Wimbledon case PCIJ, Ser. A1 1923, Germany was required to pay a sum of money to France. However, the Reparations Commission, of which France was a member, forbad that payment, which was never made. Germany was not in default on that judgment, or, if it was, the case came within the concept of circumstances precluding wrongfulness. Land and Maritime Boundary between Cameroon and Nigeria case, ICJ Rep. 2002, 303, 453 (para. 321). LaGrand case, ICJ Rep. 2001, 466; confirmed in Land and Maritime Boundary between Cameroon and Nigeria case, see previous note, para. 321. That settled a controversy that had

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admissibility of a request for the revision of a judgment under Article 61, or on a request for permission to intervene under Article 63 of the Statute, and on the admissibility of a counter-claim under Article 80 of the Rules of Court (as revised in 2000); and (3) the decision on the merits of the claim brought before the Court, including a subsidiary decision determining the reparation due in an appropriate case.11 Of these decisions, only those indicating provisional measures of protection and final judgments on the merits (including the determination of reparation due) create obligations on the judgment debtor and are considered here. The scope of all other decisions, whatever their form, is limited to the constitution and organization of the proceedings and does not go beyond that. Consequently, there are two forms of decision that have an effect going beyond the organization of the proceedings and related matters and for which an obligation of compliance can arise – a decision indicating (in the words of the Statute) provisional measures of protection and a judgment on the merits including a derivative decision determining the reparation due in the circumstances. An indication of provisional measures has a built-in clausula rebus sic stantibus, emphasized by the statement now common in those orders, that the Court remains seised of the matter. What is meant by ‘comply’ and ‘compliance’ with a decision? This is not as simple as it looks. Based on the Oxford English Dictionary, compliance implies acting in accordance with a direction, in specie acting in accordance with what is required under the decision of the Court. Paulson goes further, and for the purpose of his article, compliance with ICJ final judgments consists of acceptance of the judgment as final and reasonable performance in good faith of any binding obligation. Compliance in good faith includes a duty to give effect to the judgment with a view to avoiding its superficial implementation or otherwise circumventing it.12

However, that must be taken with care. Although a judgment is final and binding (on both parties), often some measure of mutual agreement (or acquiescence) as to the method of compliance will be required, that agreement linking compliance with the decision to the initial agreement to have

11

12

raged since the establishment of the Permanent Court, whether an indication of provisional measures created binding obligations for the parties. Since the establishment of the Permanent Court of International Justice in 1921, two judgments have awarded a liquidated sum of money to the applicant: the Wimbledon case and the Corfu Channel case (Assessment of Amount of Compensation), ICJ Rep. 1949, 244. As was seen in footnote 8, above, in both cases there were difficulties over payment, and the judgment creditor was a member of the competent international organ, which had to authorize the payment out of relevant funds. Paulson, ‘Compliance’, 454.

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recourse to the Court. In this respect, there is nothing to prevent the parties from agreeing to settle the dispute otherwise than by what is laid down in the binding judgment. The Maritime Delimitation in the Area between Greenland and Jan Mayen case furnishes a striking illustration of this.13 In that judgment, the Court decided how the delimitation line was to be drawn and ‘for the information of the parties’ included in paragraph 93 the coordinates of the various points mentioned in the judgment. The final and binding judgment constituted the point of departure for further negotiations between the parties leading to a formal agreement on the delimitation line, different from that calculated by the Court.14 That agreement finally settled the dispute. This illustrates the impossibility of treating all judgments as automatically laying down the conduct of the States concerned without further ado. Compliance must refer to action in which both parties concur, in that way set-tling the dispute. This in turn calls for care before applying the abstract law of State responsibility as set out in the draft articles. Against that background, the question arises: what is binding in a decision of the International Court, whether an order indicating provisional measures or a judgment on the merits? Article 95 of the Rules lays down what a judgment should contain. This includes a statement of the facts, the reasons in point of law, and the operative provisions (dispositif ) of the judgment. There is thus a differentiation between the reasons in point of law and the operative provisions of a judgment. While the reasons may well set out the conditions of international legality that should exist in the relations between the parties, as such they do not directly call for further action, although failure of a State to conduct itself in accordance with the authoritative statement of the law in a judgment creating a res judicata may give rise to an instance of international responsibility. The dispositif is the executory part of the judgment, if compliance with it requires some action or inaction. The dispositif states in peremptory language what (if anything) each party is required to do, how it is to act, so that the obligation of compliance prescribed in Article 94 of the Charter relates essentially to the actions required by the dispositif. As has been recently explained: ‘The obligation to comply with a decision relates to the operative part of the decision. The reasons which point out the ratio decidendi support, explain, and interpret the operative part of the decision and are, to that extent, part of the decision’.15 In the words of the Court, the reasons ‘constitute the necessary steps to the dispositif ’.16 Although there

13 14 15 16

ICJ Rep. 1993, 38. Agreement of 18 December 1995, 31 Law of the Sea Bulletin 59 (1996). B. Simma (ed.), The Charter of the United Nations: A Commentary (2nd edn. 2002), 1175 (commentary by Mosler and Oellers-Frahm). Sovereignty over Pulau Ligitan and Pulau Sipadan (Application of the Philippines to Intervene) case, ICJ Rep. 2001, 575, 596 (para. 47).

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are no positive texts regulating the matter when what is involved is an order indicating provisional measures of protection, it is assumed, in the absence of further decision, that the same principles apply. III. Obligation of Compliance and Invocation of State Responsibility It is here that the draft articles on the responsibility of States for internationally wrongful acts may have introduced major complications. The principal questions relating to the obligations of compliance arise today out of the structure of the International Law Commission’s articles, in particular Part Three, Chapter I, Articles 42 to 48, on the invocation of the responsibility of a State. While the dispute as brought before the Court may be a bilateral one, that does not necessarily mean that the judgment is without consequence for other States, apart from the possible impact of Article 94, paragraph 1, of the Charter. If the case is a dispute over the interpretation and application of a multilateral treaty, and leaving aside the entitlement of any third State a party to that treaty to intervene under Article 63 of the Statute, the Court has made it plain that its interpretation of a provision in a multilateral treaty in a bilateral dispute without any intervention creates an obligation on one of the parties to the case, yet at the same time ‘there can be no question of applying an a contrario interpretation to that paragraph’.17 The problem arises out of Articles 42 and 48 of the draft articles. Article 42, entitled ‘Invocation of responsibility by an injured State’, includes as an injured State entitled to invoke the responsibility of another State not only the individual State directly harmed by the violation, but also a group of States, including that State, or the international community as a whole, if the breach of the obligation: (i) specially affects that State; or (ii) is of such a character as radically to change the position of all the States or all the other States to which the obligation is owed with respect to the further performance of that obligation. Article 48 on the ‘Invocation of responsibility by a State other than an injured State’ completes that provision. It allows any State other than an injured State to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole. By paragraph 2: Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:

17

Declaration of President Guillaume in LaGrand, ICJ Rep. 2001, 466 at 517; repeated by the Court in Avena and Other Mexican Nationals case, ICJ Rep. 2004, 12, 69 (para. 151).

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(a) Cessation of the internationally wrongful act, and assurances and guarantees of nonrepetition in accordance with article 30; and (b) Performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached.

The expression ‘the international community as a whole’ is not a term of art. Apparently, it is designed to embrace two by no means identical types of international obligation: an obligation arising out of a jus cogens norm; and an obligation arising out of a rule that is addressed erga omnes to all States, but which is not itself a norm of jus cogens such as was encountered in the LaGrand and Avena and other Mexican Nationals cases. It appears several times in the draft articles, in Article 25, paragraph 1, on necessity as a circumstance precluding wrongfulness, in Article 33 on the scope of international obligations set out in Part One on the internationally wrongful act of a State, in Article 42(b) on the invocation of responsibility by an injured State and in article 48, paragraph (1) (b), on the invocation of responsibility by a State other than the injured State. It owes its origin to the Court’s much quoted obiter dictum in the Barcelona Traction case (assuming that an obiter dictum is possible in a judgment of the International Court). [A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.18

The Court went on to explain that such obligations derive for example in contemporary international law from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights

18

Barcelona Traction, Light and Power Company, Limited (New Application) (Second Phase) case, ICJ Rep. 1970, 3, 32 (para. 33). That passage was not essential to the Court’s reasoning, and it has been authoritatively stated that the passage ‘was not necessary in the judgment, but it was a good opportunity to nail down certain provisions of the law and to indicate where states are obliged to act vis-à-vis the international community as a whole’. Judge Lachs, who was a member of the Court in 1970, quoted in M. Shahabuddeen, Precedent in the World Court 159 (1996). On the background and circumstances of the Court’s obiter dictum, see M. Ragazzi, The Concept of International Obligations Erga Omnes 7–12 (1993). It is not within the Court’s functions to ‘nail down’ propositions of law, and certainly not in a passage that was unnecessary in a judgment. The passage itself is confused, and its confusion has led to endless difficulties since. The expression ‘the entire international community’ was also used by the Court in United States Diplomatic and Consular Staff in Tehran case, ICJ Rep. 1980, 3, 43 (para. 92), cited by the International Law Commission in para. (9) of its Commentary on draft art. 42. ‘Legal interest’ in that sense is not necessarily the same as locus standi in judicio. See further K. Mbaye, ‘L’intérêt pour agir devant la Cour internationale de Justice’, 209 Hague Collected Courses 223–36, at 231 (1988).

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of the human person, including protection from slavery and racial discrimination. ‘Some of the corresponding rights of protection have entered into the body of general international law . . . others are conferred by international instruments of a universal or quasi-universal character’.19 Since that case, the Court has added the right of peoples to self-determination to that list of obligations erga omnes.20 The expression ‘international community as a whole’ differs significantly from the language of Article 53 of the Vienna Convention on the Law of Treaties21 on jus cogens. After difficult negotiations, the Vienna Conference on the Law of Treaties accepted the expression ‘the international community of States as a whole’. It is not clear why the Court, in ‘nailing down’ something which some judges thought required ‘nailing down’ in the Barcelona Traction judgment, departed from the carefully negotiated language of the Vienna Convention, and thereby instead of nailing anything down only served to increase unnecessary confusion. The Commission gave a rather lame explanation for this in paragraph (18) of the Commentary on Article 25, begging the question by basing itself on the dictum of the Court in Barcelona Traction and its use in a number of treaties. Those provisions also have to be read in conjunction with Article 60 of the Convention on the Law of Treaties, with which they do not entirely coincide. Article 60, on breach of treaty, only deals with what it terms a ‘material breach’, the more general questions of the international responsibility of a State being reserved by Article 75.22 For the purposes of this essay, it is assumed that deliberate refusal of a party to comply with a decision of the International Court (if proved) would be a material breach of Article 94 of the Charter as well as of any other relevant treaty or treaties, since deliberate non-compliance would strike at the major object and purpose both of Article 94 and of any treaty conferring jurisdiction on the Court in respect of that particular dispute. Article 60 of the Convention on the Law of Treaties reads: 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:

19

20

21 22

United States Diplomatic and Consular Staff in Tehran case, cited, at 32 (para. 34); and see para. 35 for limits on the extent of diplomatic protection in relation to the performance of such obligations. East Timor case, ICJ Rep. 1995, 90, 102 (para. 29); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Rep. 2004, 136, 199 (para. 156). 1155 UNTS 331. Sh. Rosenne, Breach of Treaty (1983).

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(i) in the relations between themselves and the defaulting State, or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object and purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.

The real seat of the potential difficulties is found in Article 42, paragraph (b) (ii), and in Article 48, paragraph 1(b), of the Commission’s draft articles. They raise the question whether any State other than the parties to the judgment in question have any cause of action in the event that non-compliance with the terms of the judgment is established. However, at this stage, and before the question of the settlement of disputes arising out of the Commission’s draft articles is resolved, any attempt to answer those questions would be purely speculative. It is accordingly sufficient here to draw attention to this matter. In addition to that, Part One, Chapter V (Articles 20 to 27) sets out at length the circumstances precluding wrongfulness, and they would be applicable in any case of alleged non-compliance with a decision of the Court. It is more productive to look at the position of the other party in a straight instance of bilateral litigation. Here there is a difference between a claim arising from non-compliance with an indication of provisional measures, and a claim arising from non-compliance with a judgment on the merits. In a claim arising out of non-compliance with provisional measures, the first requirement is that the Court’s jurisdiction over the merits is fully established. Very frequently, the Court indicates provisional measures after finding that it has prima facie jurisdiction over the merits – a provisional finding requiring confirmation in the merits phase.23 In LaGrand, the Court first explained that, where it has jurisdiction to decide a case, it also has jurisdiction

23

Sh. Rosenne, Provisional Measures, 85.

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to deal with submissions requesting it to determine that an order indicating measures which seeks to preserve the rights of the parties to the dispute had not been complied with and the applicant was entitled to challenge the alleged failure of the respondent to comply with the order.24 After it had established that it had jurisdiction over the case and that the indication of provisional measures was ‘not a mere exhortation’, the Court went on to say very specifically: ‘The Order was consequently binding in character and created a legal obligation for the United States’.25 From this it follows that if the State considers that it has been injured by the other State’s failure to comply with the order on provisional measures, it may in the next appropriate pleading, whether written or oral, include an appropriate submission. That would not lead to a change in the nature of the case. In LaGrand the Court included in the dispositif of its judgment a finding that the respondent had ‘breached the obligation incumbent upon it’ under the provisional measures order.26 Under the new law of responsibility, non-compliance with a judgment on the merits, if established, could be a cause of action. The subject matter of that case would not be identical with the subject matter of the case in which the relevant judgment was delivered, but would be a new case altogether. Accordingly, possible questions of jurisdiction and admissibility would have to be resolved following the normal procedure. The Court has had experience of dealing with a claim itself relating to another court or tribunal. For example, in the Ambatielos case, which concerned the arbitrability of a dispute, the Court was careful to limit its decisions to that question alone without entering on the merits of the dispute, which later went to arbitration.27 No less to the point is the Arbitral Award of 31 July 1989 case.28 Here the claim concerned the existence and the validity of an arbitral award between the two countries. The request for provisional measures concerned the rights of the parties in the ‘disputed areas’, namely the area of ocean space to which the arbitral award referred. In its decision on the request for provisional measures, reached after the Court had found that it might have prima facie jurisdiction over the merits, the Court found that the request did not relate to the claim before the Court, but to claims in respect of the disputed maritime delimitation, and it therefore dismissed the request for provisional

24 25 26 27 28

LaGrand case, ICJ Rep. 2001, 466,484 (para. 45), 487 (para. 56). For the provisional measures order in that case, see ICJ Rep. 1999–I, 9. LaGrand case, previous note at 506 (para. 110). Ibid. 516 (para. 128(5)). Ambatielos case (Preliminary Objection), ICJ Rep. 1952, 28; Ambatielos (Merits) case, ICJ Rep. 1953, 10. For the arbitral award, see XII RIAA 91. Arbitral Award of 31 July 1989 (Provisional Measures) case, ICJ Rep. 1990, 64; Arbitral Award of 31 July 1989 (Merits) case, ICJ Rep. 1991, 53. For the arbitral award, see XX RIAA 119.

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measures. On the merits, it found that the impugned arbitral award was valid and binding on both parties, ‘which have the obligation to apply it’. These cases show that, when the claim relates to something done or to be done by another tribunal, the Court will be careful to limit its actions to the case actually before it, and not prejudice the actions of that other tribunal in another case. I submit that, as the law now stands, the same principle would apply to a claim arising out of non-compliance with a judgment between the two parties. However, if in the future it is decided to include without reservation provisions for the settlement of dispute in the articles on State responsibility for internationally wrongful acts, that could open up new possibilities for judicial control over compliance with final judgments on the merits of a case. IV. Conclusion It is clear that, whatever be the ultimate disposition of the International Law Commission’s draft articles, by bringing compliance with a binding decision of the International Court clearly within the scope of international responsibility they will enhance the general standing of the judicial settlement of international disputes, and perhaps open the way to stronger judicial control over the process of compliance.

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31 THE ROLE OF CONTROVERSY IN INTERNATIONAL LEGAL DEVELOPMENT

As a rule – and this rule is inherent in the very nature of the declines and falls of civilizations – the demand for codification reaches its climax in the penultimate age before a social catastrophe, long after the peak of achievement in jurisprudence has been passed, and when the legislators of the day are irretrievably on the run in a losing battle with the ungovernable forces of destruction. A. Toynbee, A Study of History (London, 1954), VII, 279. Human history has from its beginning been a spectacle of turbulence, war, appalling problems rarely resolved but gradually receding into the background as new ones overshadowed them. Charles W. Yost, History and Memory (New York and London, 1980), 281.

I. Introduction Our purpose is to present an examination, and a re-evaluation, of some fundamental issues relative to the discipline of public international law taken in its generality, during the last quarter of the unprecedently violent twentieth century. What we have in mind to try and do is to explore the role of political and economic controversy within the diplomatic arena as it impinges upon the formulation and the application of international legal responses to current demands at the global level. For this purpose, we are not especially interested or concerned with the disposition of concrete or current ‘disputes,’ ‘situations’ or other forms of political confrontation, save to the extent that they may serve as illustrations for a more general theme. Nor are we especially concerned with the role of international law and its organs in the political evolution of a given political situation, even one of crisis, although doubtless much could and should be learned from the attitudes of the powers, in this and preceding generations, starting with the use, or abuse, made of the League of Nations and the Permanent Court of International Justice in the implementation of the peace settlements, or parts of them, of 1919 and, to date, ending with the use made of the present International Court

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of Justice by the governments concerned in the crisis symptomized by the unlawful (and inexcusable) detention of the United States diplomatic and consular staff and others in the United States Embassy in Teheran.1 We have to turn our attention to international law as an institution. We have to see it as part of the process and procedures available to the statesman, the political decision-maker and the diplomatic services in their efforts for the preservation of international peace, for the reducing of international tensions if they cannot be exorcized entirely, for the maintenance and betterment of the standards of living (including health, food, education and recreation) for all peoples in all parts of the world, for the removal of economic inequalities, whether God-given or man-made, as well as for the furtherance of national aims, of which the preservation of national security, in the broadest sense, is always the primary objective. Those aims also embrace the essential focal points of the controversies and crises of international law today. Their combined weight is enough to twist and distort the law, if not to crush it entirely, until the nineteenth century thesis and the twentieth century antithesis succeed in producing the new, sorely needed synthesis for the new century. Our focus will be on the nature of current fundamental international controversies themselves, and on the pressures which those controversies place upon international law today conceived as a conduct-regulating system for all ‘persons’ operating or aiming to operate on the international sphere, with particular reference to multilateral diplomacy and its relation to international law-making, above all as centred in the United Nations. We must, therefore, first define our terms, especially the central theme of ‘controversy.’ For present purposes its current dictionary definition (Shorter Oxford English Dictionary) as a dispute, a contention, especially a discussion of contrary opinions (our emphasis), none of these words being used with any technical meaning they might have in current international law, is adequate. The topic we are discussing demands certain assumptions, two of which require special mention. No truly useful purpose would be served by questioning their existence, and the reader is accordingly invited to accept them mentally for what they are – assumptions. The first, obviously, is that as a practical matter international law does exist as law, not perhaps in the Austinian sense, but at least as a discipline which aims at controlling a certain aspect of human conduct with a role in the undertaking of international affairs. International law is a factor which the decision-maker ( politician or functionary) ought to have in his mind 1

However, note the interesting use of the codification process to defuse a difficult international situation caused by Yugoslavia’s decision to leave the formal bloc of Eastern European Socialist States. See the debate which led to GA Res. 685 (VII), 5 December 1952, out of which all the codification of modern diplomatic and consular law emerged when it did. For the Tehran case, see [1979] ICJ Reports, 7, 23; 1980, 3; 1981, 45. And see Security Council Res. 457 and 461, 4 & 31 December 1979.

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when he comes to take political decisions of international implication, whether he is engaged in the immediacies of the day-to-day handling of foreign affairs, conducting litigation of international import, or acting as an international judge or arbitrator, on whether he is engaged in the difficult task of treatymaking – of laying down, after a process of negotiation, agreed points of reference for the future conduct of states in general, through a multilateral treaty or in particular, on a bilateral basis. Incidentally, it might be observed that this international law engages a large number of people all over the world, and not only the staffs of the legal advisers of foreign ministries, of international organizations, of trades unions or of multinational corporations or enterprises, and at times it can be very expensive, so much so that the International Court has initiated steps which it would hope would help reduce the cost of international litigation.2 This money would not be spent if those who pay for these services thought that international law did not exist or was unimportant. The second assumption – which hardly needs proving – is that this international law is going through a very deep crisis. This is essentially a crisis of confidence flowing from the law’s obvious inability to meet its commitment to limit if not to prevent entirely the unlawful threat or use of armed force in international relations. This promise was first made to a war-weary and revolution-prone world in 1919, and repeated in 1928 and again in 1945. But the roots of that crisis really lie much deeper and are more elusive. They are to be found in the widely held view of many new states (and they are the majority of states in the world) that they are not bound to acknowledge the relevance of customary international law bequeathed by nineteenth century Europe, on grounds that it is the law of European imperialism, colonialism and aggression. Such an approach to the European-oriented international law is not itself new. Its intellectual and political and social origins can be traced to the independence movements of the American Continent (which perhaps explains why this idea did not make much headway in the secessionist states of Central and Eastern Europe itself in the inter-war period, although traces of it can be found, here and there, in the codification work undertaken by the League of Nations after 1925). What is new is the intensity with which this view is expressed, coupled as it is with a highly volatile mixture of rampant nationalism and radical militant Marxist-Leninism or other revolutionary dogma in different parts of the world. It must also be noted here that, while we are concentrating on formal diplomatic forums, such as the United Nations and major universal diplomatic conferences, there is a considerable amount of parallel work being conducted in non-formal organizations, commonly known as the non-governmental organizations, many of which possess a recognized consultative status with 2

See art. 55 of the amended Rules of Court of 1972 and art. 57 of the revised Rules of Court of 1978. But considering the use that is being made of the International Court, this is a minor palliative of little practical significance in reducing the ‘cost’ of international law.

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one or other organ of the United Nations and the specialized agencies. Very frequently diplomats and other public officials are as active in those types of organizations as they are in official organs: the difference, however, is that they are then acting in an unofficial and personal capacity and not in a representative one. While what they say may serve as an indication of the official attitudes of their governments, in no sense can they bind their governments, save in very exceptional circumstances when governments have chosen this kind of channel through which to conduct some specific activity. Here it may be remarked that international organs composed exclusively of individuals elected in their personal capacity also exist and the same observation regarding the relations between the formal position of governments and attitudes adopted in such organs, even by individuals holding official positions, also applies. This form of organ is common in the legal field, notably the International Court of Justice and the International Law Commission. Nevertheless, it is more usual even for the legal organs to be composed of representatives of states, an observation particularly relevant to the Sixth (Legal) Committee of the General Assembly and the United Nations Commission on International Trade Law. In the legal sphere, the best known of these unofficial organizations are the Institute of International Law and the International Law Association. Resolutions adopted by these bodies, the travaux préparatoires of which are regularly published, carry considerable weight in the complicated process of international law-making and in the ascertainment of a rule of customary international law, and the discussions in these organizations are also important indications of the trend of thinking in informed international legal circles. Unlike most diplomatic organs, their debates are characterized by a refreshing spontaneity, virtually impossible on the formal level. There are also national bodies – we may mention the Canadian Council on International Law or the American Society of International Law (to take but two) – which perform similar functions, and have an ‘international’ participation in their work. In this sense, what is sometimes known as ‘classic’ international law – although we ourselves would utter strong reservations at the use of that term since what is meant by it is the Euro-centred law which at one time condescendingly distinguished between civilized nations and others (Statute of the International Court of Justice, article 38, paragraph 1(c)) – emerged from the science and the faculties of theology after the Reformation and the cataclysm of the religious wars of the seventeenth century, which destroyed European civilization as it had then existed. That international law then survived the intellectual, political and social turmoil of the French Revolution and Napoleonic Wars as nineteenth century Euro-centred public law, called in the Treaty of Paris of 1856 the ‘public law and system of Europe’ (article VII). It follows that it can now be said that we are in a post-classical period, something like what musicologists might call ‘romantic’ and others ‘baroque,’ characterized by an emphasis on subjective emotional factors and freedom of form rather than on the theme itself.

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At the same time, one finds elements of the grotesque distorting the true function of international law, to preserve international order and to provide some guide to the anticipated conduct of states in given circumstances. All this is marked off today by a certain lack of inner discipline and self-control, as well as of unity of purpose. It is this which is leading to extravagences and other unexpectednesses, in effect to a virtually complete bouleversement of the law which was thought to exist in 1945 and which the founders of the United Nations believed – some of them at least although perhaps not all – that they might be reconstructing after the cataclysms of the twentieth century. There is a widely held view among the Euro-centred international lawyers of the West that the major challenge to that ‘classic’ nineteenth century, international law, of which the foundation was the European nation-state, was a consequence of the Bolshevik Revolution. Indeed, there is a great deal in the early Bolshevik literature on international law (as on law in general) which could lend support to such a view, so long as it is not forgotten that much of the Russian Communist literature of the period between the two world wars was written at a time when the Bolshevik Revolution had not yet run its full cycle.3 This view is an unacceptable over-simplification of a much more complicated situation which now prevails. This notwithstanding, having regard to the impact of the Soviet doctrines of international law on the West, and the curious fascination which they hold for many western jurists (witness the microscopic examinations which appear time and time again in western periodical literature of successive editions of standard Soviet textbooks on international law or analyses of annotated Soviet translations of western legal literature), and its undoubtedly important place in the international arena today, it is necessary to devote a few pages to this topic, mainly to underscore the more fundamental elements which follow. II. The Political Challenge to Received Law On the impact of the Bolshevik Revolution and the emergence of the Soviet Union as a super-power on present-day international law, more than forty years ago Professor Oliver J. Lissitzyn wrote: Some observers have sought to trace the limiting and distorting effects of the cold war on international law to ‘bipolarity’ in the structure of world politics. However, the Soviet estrangement from the outside world and from traditional concepts of international law did not begin with the rise of the USSR to its present power position. It began with the establishment of the Communist regime in Russia and was evident in

3

See D.I. Feldman, M’ezhdunarodnoye Pravo: Bibliografiya 1917–1972 (Moscow, 1976), for a most useful classified bibliography of Soviet literature on public international law during the period in question.

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the inter-war period when the Soviet state was relatively weak. The growth of Soviet power and ‘bipolarity’ has accentuated a pre-existing challenge to world public order. In such a situation, the interest in strict observance of the law is particularly likely to be subordinated to considerations of national security. Nor is the Soviet challenge a product of the ‘Russian’ tradition. The Russian Empire, like other great powers, played the game of world politics and imperialism. At times, like other states, it violated or misused international law. But its existence and policies created no sense of ‘crisis’ in international law: its economic and social institutions, though somewhat backward and marred by religious discrimination, were basically similar to those of the West. Russia had no distinctive doctrine of international law and participated freely in the legal life of the international community.4

Whether Lissitzyn would repeat those words today, and how, is a matter of speculation. Be that as it may, their underlying lesson remains sound. One sentence is outstanding: ‘The interest in the strict observance of the law is particularly likely to be subordinated to considerations of national security.’ That is the key in a universal situation of unwonted complexity, composed of an unprecedented number of ostensibly independent nation-states, in which the weight of the political challenge to received concepts of international law does not originate with the socialist states of Eastern Europe (to use current United Nations terminology) whose social and economic institutions are not so unique as some would like to believe, but is aggravated by the unscrupulous political use made by the spokesmen of those states of the challenge to received international law propounded by others.5 From the ideological point of view, we may accept the position that certainly in the period between the two world wars, and possibly in the first decade after the second, before the western welfare state was well established, 4

5

Oliver J. Lissitzyn, International Law Today and Tomorrow 67 (New York, 1965). This is a repetition of remarks appearing first in his International Law in a Divided World, International Conciliation No. 542, March 1963, at p. 33. Lissitzyn’s observation about the continuity between Communist doctrine and earlier Russian internationalism is easily substantiated. Although infrequent, references are found in modern Russian legal literature to pre-Revolutionary writers, notably Feodor de Martens (see his Traité de droit international, trans. A. Léo, 3 vols., Paris, 1883–1887), the 5th ed. of whose Sovremennoye m’ezhdunarodnoye pravo tsivilizovannykh gosudarstv was published in Saint Petersburg in 1904–1905 (such a title would be taboo today, in all parts of the world!). The Czar and his advisers occasionally acted as arbitrators in international cases, and this practice was renewed in 1946 with Soviet and Eastern European Socialist participation in the International Court of Justice. An Eastern European Socialist jurist (E. Ustor) was a member of the Arbitration Court which determined the Anglo-French Continental Shelf case (1977, 1978, 18 Reports of International Arbitral Awards 3, reproduced in 54 International Law Reports) 6. Imperial Russia was also itself directly involved in a few international arbitrations, something which the Soviet Union seems to have avoided on the whole. A Russian jurist, Besobrazov, was among the founders of the Institute of International Law in 1873 (at the last count it had ten members or associates from Socialist States [59 Yearbook, Part II, 301–315, Paris, 1982]). In the Great Soviet Encyclopaedia he is described as an economist and a geographer. 3 A Translation

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the little that was known to the outside world about the communist approach to the basic tenets of international law did or could pose something of a challenge to inherited western nineteenth century concepts of what international law is and what its function is in the international community. In particular, the rather rigid insistence of the communist approach on a form of legal positivism – inherited from earlier Russian legal traditions – did not sit easily with the less rigid natural law concepts which had, and have, a wide following in the west, and even less with the newer social-function-oriented concepts of law now evolving. The fact that it is a Russian jurist of international repute – Grigory I. Tunkin – who has written one of the principal studies on the ideological straggle and international law,6 is itself fascinating and instructive, even for those who cannot accept the qualifications which he himself poses as to the nature of that ideological struggle and the elements of which it is composed. But that philosophical challenge, never entirely rejected outside the Soviet Union at any time, is of little significance in comparison with the broader challenge posed today by militant revolutionary radicalism, in which the struggle against ‘imperialism’ and ‘aggression’ have replaced an earlier conception of the class struggle in one country only. This having been said, let us recall, and let it be firmly emphasized, that in its day the nazi challenge to international legality was far more dangerous, far more insidious, and far more powerful than the communist theoretical challenge has ever been, and the world can be grateful that it has not left much of a mark on basic doctrines of international law – except perhaps in the drive for strengthening the international criminal law in its application to political and military actions (and thus supplies its own, justification for the war crimes trials after the second world war) – unlike its communist counterpart, which now influences us all, perhaps to a greater extent than is often realized.7

6 7

of the Third Edition (New York and London, 1973), 262. The same description appears in R. Yakemtchouk, ‘Les origines de l’Institut du Droit international,’ 77 Revue générale de droit international (1973), 373, at p. 407, note 81. However, a recent evaluation of the man by V.M. Koretsky shows that he was also trained as an international lawyer and wrote some important works especially concerned with the maintenance of international peace, preceding the Russian initiative that led to the convening of the first so-called Peace Conference of 1899 at The Hague. V.M. Koretsky, ‘Vladimir P. Bésobrasof ,’ Institut du droit international, Livre du centenaire: évolution et perspectives du droit international (Basle, 1973), 32. See also J. Robinson, International Law and Organization (Leyden, 1967), 229. G.I. Tunkin, Ideolicheskaya bor’bai m’ezhdunarodnoye provo (Moscow, 1967). In the International Law Commission, during the period 1962–1966, when the Commission was engaged in the final phase of its work on the law of treaties, frequent references were made to what was called Hitler’s Sportpalast diplomacy, and what became art. 65 of the Vienna Convention on the Law of Treaties, on the procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty, was partly designed to prevent a repetition of that. United Nations Conference on the Law of Treaties,

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As stated, the first challenge to the law handed down by the fathers of international law, that is, for the most part, those early writers (ending with Vattel and Wheaton) whose principal works have been collected in the Classics of International Law, and their contemporaries and antagonists, came from South America, from writers like Andrés Bello8 and his followers after their countries had liberated themselves from the Spanish and Portuguese Empires. It is to them that we owe the theory, once regarded as revolutionary and indecent but today widely accepted, though perhaps not to extremes, that new states cannot be bound automatically by an international law, whether customary or conventional (witness the Vienna Convention of 1975 on the Succession of States in respect of Treaties)9 in the making of which they had no share and which was designed to serve imperialist and colonialist objectives. Innovations in the early part of this century like the Calvo clause, the Drago doctrine, and the development of the so-called exhaustion of local remedies rule are examples of what that challenge was capable of producing on a universal scale; and the Hague Convention No. II of 1907 respecting the limitation of the employment of force for the recovery of contract debts10 is an early instance of the reaction of the established Eurocentred political order of the day to that challenge. Indeed, the question might well be asked whether the very concept of jus cogens as formulated by the International Law Commission in 1966,11 for which one of the most ardent

8

9 10

11

Official Records, Documents of the Conference 287, 298 (A/CONF.39/27). There is very little literature on the impact of nazi ideology on the peacetime international law, possibly because the régime had not been in power long enough before the outbreak of the Second World War in September 1939. But see K. Wilk, ‘International Law and Global International Conflict,’ 45 AJIL (1951), 648, especially at pp. 666 ff., where nazi doctrine is examined. A. Bello, Principios de derecho internacional. Originally published in Santiago de Chile (1832) under the title Principios de derecho de sentes (sic, before a reform in orthography). The present title was given to the 2nd ed., also published in Chile in 1844. United Nations Conference on Succession of States in Respect of Treaties, Official Records, III, 185 (A/CONF.80/31). For text, see 100 British and Foreign State Papers, 314; United Kingdom Treaty Series, No. 7 (1910). For consideration by the International Court of Justice, see Norwegian Loans case, ICJ Reports 1957, 9, 24. Draft articles on the Law of Treaties, art. 50, in Yearbook of the International Law Commission (1966), II, at p. 247. In a modified form this became art. 53 of the Vienna Convention on the Law of Treaties. A/CONF.39/27, note 7 above. For a later attempt to extend this concept to the general law of international responsibility, see art. 19 of the draft articles on state responsibility adopted in 1976. Yearbook of the International Law Commission (1976), II, Part Two, at p. 95. This proposal has attracted considerable criticism in the Sixth Committee of the General Assembly, and was dropped in the second reading in the Commission. For a partially successful attempt to extend the concept to that part of the new law of the sea which relates to the sea-bed and subsoil beyond the limits of national jurisdiction, see UN Convention on the Law of the Sea art. 311, para. 6 (A/CONF.62/122), 10 December 1982, 1833 UNTS 3.

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proponents in the Commission was Professor Tunkin himself, does not have as one of its underlying purposes to preserve that absolute minimum of international conduct-regulating norms or principles which are essential to prevent the complete collapse of the disturbed international legal order of today. We hear the main challenge being constantly repeated in the United Nations and in other gatherings of international lawyers. Its nature can be illustrated in a concrete way by two quotations from statements made by representatives of ‘new’ states in the course of the Caracas Session (1974) of the Third United Nations Conference on the Law of the Sea – the only session devoted almost exclusively to a long series of ‘general debates’ (in the United Nations sense) on the record. Thus, a representative of Equatorial Guinea is reported to have said the following: The great maritime powers had built up their colonial empires on the principle of free navigation and had established as a natural law a limit of three nautical miles for the territorial sea. As a result of pressure and rebellion on the part of the former colonies, that limit had been extended to 12 nautical miles. Today the problem was no longer a matter of freedom of navigation – which no one disputed – but concerned exclusively the sovereign rights of states to protect and conserve the natural resources of their territorial seas. The Conference would have to establish a rule which would prevent piracy and would protect the just aspirations of countries which lacked the maritime and industrial power to exploit the wealth of the open seas and had to use their limited resources in exploiting and defending their territorial sea.12

In somewhat similar vein the representative of Morocco – not exactly a new state (witness the advisory opinion in the Western Sahara case13 and the interesting pleadings of Morocco in the International Court), but one which has only recently emerged from a European ‘protectorate’ – is reported to have said the following: ‘Many delegations had referred to ancient writers such as Grotius. His delegation agreed with the speaker who had said that Grotius should be left to rest in peace. The ancient principles had been so distorted and no longer served their purpose. The new law of the sea must take account of present realities, and of the present ethical concepts of the United Nations. The Conference was taking place in a new context: it would succeed only if it took due account of the problems of the developing world.’14 That illustrates the theme being repeated endlessly in every conceivable context, official and unofficial, political, economic, social and legal (as even a cursory perusal of the records of the non-political Main Committees of the

12 13 14

Third United Nations Conference on the Law of the Sea, Official Records, I, 145 (35th plenary meeting). [1975] ICJ 6, 12. Loc. cit. in note 12, 178 (41st Plenary meeting).

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General Assembly will show) by one or other representative of the so-called Third World, of the many new states which came into existence since 1945. III. The Order of Priorities At least three important lessons can be learnt from this. The first is that the order of priorities on which the international law of the nineteenth century had developed – the sphere of application of the law being limited to the political relations between independent states, the only ‘persons’ with recognized standing and ‘capacity’ in international law with an in-built superiority for the Great Powers loosely organized in the Concert of Europe – is not taken for granted today. The infrastructure of that order of priorities was the minimum of interference by governments in the life and activities of the individual (except those activities which earned for the individual the status of hostis humani generis) and a corresponding lack of the responsibility of the state for the individual and his well-being. This embraced such concepts as laissez-faire economic liberalism, individual liberties (originally very limited, but gradually and inexorably expanding) for the human person divorced from his internal responsibility towards his state and international responsibility (not in the technical sense) towards the international community as a whole, and above all a competitive international law based on the axiomatic assumption of the shareability of much of the world’s natural resources which did not fall within the national jurisdiction of the state, notably the air and the seas, deemed inexhaustible, and avoiding any sense of international or social responsibility for a fair system of conservation and allocation of those resources or any sense of distributive justice.15 Today, under the impact of current conceptions of human rights (themselves in 1981 different from what they were when the Universal Declaration of Human Rights was adopted in 1948), not limited to political and civil rights, all those ideas are quite outmoded. The individual feels himself entitled to look to the community to which he belongs, whatever its political construction, and through that community to the international community itself, for the fulfilment of a growing number of basic needs. Some of these, such as the maintenance of a healthy environment or an adequate supply of food and health services, can today only be vouchsafed on a planetary scale. The state is no longer the only ‘subject’ of international law: alongside it there are international organizations with recognized international legal personality and capacity valid in both international and national law, and on some interpretations

15

See O. Schachter, Sharing the World’s Resources (New York, 1977). For an entirely different view of an economist, see E. Kedourie, ‘A New International Disorder,’ 70 Commentary, December 1980, 50. For a ‘Third World’ view, see M. Bedjaoui, Towards a New Economic Order (Paris, 1979).

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(not unchallenged) identifiable peoples who have not yet completed their process of self-determination (regarded in some circles as one of the ‘human rights’) are also possessed of some inchoate international personality. All this is giving new dimensions to international law which can no longer only be limited to the political relations between independent states. This alone is enough to throw the whole of international law off balance. The second lesson is that priority must still and naturally be given to the requirements of national security, requirements themselves compatible with the continuous advances in military technology. All attempts so far to establish a satisfactory and workable system of collective security have not started to approach even the minimum desirable level of efficiency. Furthermore, if in the Covenant of the League of Nations and in the Charter of the United Nations collective security is conceived primarily in military and political terms, it is now daily becoming clearer that, where attainable, mere political independence and political and military security, itself assuming new forms in the wake of the development of new weaponry and the strategic and tactical changes they are inducing, are insufficient and will remain insufficient until accompanied by a reasonable and generally acceptable level of social and economic independence and security, including freedom of economic opportunity (with adequate international assistance in terms of at least finance and the making available of requisite technology and the ability to use it). This is one of the motivating forces underlying the growing demands for a new economic order and a corresponding reconstruction of the relevant parts of international law to meet the new requirements and conditions: and by the same token it explains the slow progress in this field. The Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties adopted in connection with article 52 of the Vienna Convention on the Law of Treaties of 196916 or the work being done on the question of sovereignty over natural resources are important indications of the trends of thought on this kind of matter, and the work of the United Nations Conference on Trade and Development is largely directed towards meeting these objectives. This factor, the element of national security of ever broadening dimensions, applies both when one is dealing with the formulation of new agreed international law, especially modern treaty law, and when what is involved is the application of existing law, whether customary or conventional. Its existence appears clearly from the communications addressed to the International Court of Justice by the Islamic Republic of Iran on 9 December 1979 and 17 March 1980,17 and which are to be read not so much as an attempt to

16 17

United Nations Conference on the Law of Treaties, Official Records, First and Second Sessions, Documents of the Conference, at p. 285 (A/CONF.39/26, an.). [1979] ICJ 7, 10; [1980] ibid., 3, 8. A hint of this appears in Ph. Bretton, “L’affaire des ‘otages’ américains devant la Cour internationale de Justice,” 107 Journal du droit international (1980), [Clunet], 787.

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defend the indefensible18 as an effort to justify the general political position being adopted by the revolutionary authorities in Iran, and which could, therefore, have had an impact had that case ever come to trial on the outstanding issues of responsibility and reparation, left open by the judgment of 24 May 1980. Furthermore, a factor of continuity with an earlier revolutionary movement in that country can be seen from a comparison of those communications with that of 29 June 1951 in connection with the AngloIranian Oil Co., case and the appearance of the then Prime Minister of Iran (Mossadegh) himself before the International Court19 and later before the Security Council. The third lesson, and probably the most important, to be learnt from these attitudes of the new states, and in all likelihood the one that has been the most successful in undermining the comprehensiveness of international law and deflecting it from one of its main functions of protecting weak states against the strong (through what is now one of its basic doctrines, that of the equality of all states, stressed in article 2, paragraph 1, of the Charter) is the novel idea that special, simpler, and less stringent rules of international law should and do apply to what are disengagingly called ‘developing states’ (a term which defies interpretation), and the attempts to extend that notion to territories which might be called states or territory in statu nascendi, and thence to other so-called ‘national liberation movements’ whether or not it is self-evident that they can claim to represent a state in statu nascendi. We shall return to this aspect and see some concrete examples of its effect on contemporary international law-making. This combination of disparate factors converging on received international law and the controversies which they are engendering or which are engendered through the reaction to them, supplies one of the explanations (though not the only one) for the powerful drive to replace customary international law with new law codified and progressively developed in treaty form. This is occurring even though not every state and not every cultural system holds an identical concept of ‘treaty’ and of the sanctity of the pledged word ( pacta servanda sunt). It has become characteristic of the work of the International Law Commission and of many other activities being undertaken by the General Assembly of the United Nations acting under article 13, paragraph 1 (a), of the Charter. It also offers one explanation for the relative lack of use of established law-applying organs, especially the International Court of Justice – a phenomenon which first appeared already in the thirties – and the difficulties experienced when that court has been confronted with new types

18 19

See, C.M. Bassiouni, ‘Protection of Diplomats under Islamic Law,’ 74 AJIL (1980), 609. [1951] ICJ 89, 91; [1952] ibid., 90. For the statement before the Court of the Prime Minister, see Anglo-Iranian Oil Co. case, ICJ Pleadings 437. And see ibid., 672 for the original communication.

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of problems which were remote from the thinking of those who conceived it in the first half of the present century and who revived it in 1945, as well as from the legal training of many of its members hitherto. Who, for instance, could have conceived the International Court of Justice being asked to determine an international dispute about a civilian air-liner being shot down in time of peace, when not even all of the facts of the incident were entirely clear?20 Or one involving the pollution of the atmosphere and other ecological damage through atomic tests being conducted thousands of miles away?21 Or to divide up areas of continental shelf among different claimants?22 There are other examples in the jurisprudence of the court since 1947, but these cases are striking. However, it is not necessary to look at such esoteric matters. The court’s unwillingness to deal with other ‘new’ international problems should not pass unnoticed: for instance the international protection of human rights, whether as a matter of substance as in the second phase of the Peace Treaties case 23 or in the South West Africa cases,24 or as a matter of procedure, where the court has not been able to go as far as the European Court of Human Rights, operating under a provision in its constituent instrument (article 44 of the original European Convention on Human Rights) virtually identical with article 34, paragraph 1, of the Statute of the International Court of Justice, in giving an individual an opportunity to present his version of the case in court, even when the state exercising its right of diplomatic protection or some other established international organ remains the dominus litis.25 It is a matter for sombre speculation how far the decision in the second phase of the Peace Treaties case, coupled with the refusal of competent organs of the United Nations to test the application of the rebus sic stantibus doctrine to effect the termination of the Minorities Treaties

20

21 22

23 24 25

Aerial Incident of 27 July 1955 case, ICJ Reports 1959, 127. This case affords a good example of the avoiding of a decision by the International Court, and it is interesting that it is not mentioned in the otherwise perceptive article by L.V. Prott, ‘Avoiding a Decision on the Merits in the International Court of Justice,’ 7 The Sydney Law Review (1976), 433. Nuclear Tests cases, [1973] ICJ 99, 135; [1974] ibid., 253, 457. North Sea Continental Shelf Cases, [1969] ibid., 3; Aegean Sea Continental Shelf case, [1976] ibid., 3, [1978] ibid., 3; Tunisia/Libya Continental Shelf case, [1981] ibid., 3; [1982] ibid., 18; Gulf of Maine (delimitation) case [1982] ibid., 3, 15 (pending); Libya/Malta Continental Shelf case, ibid., 554 (pending). [1950] ibid., 221. [1962] ibid., 319; [1966] ibid., 6. Lawless case, European Court of Human Rights, Ser. A., no. 2, judgment of 7 April 1961. And see S. Rosenne, ‘Reflections on the Position of the Individual in Inter-State Litigation in the International Court of Justice,’ International Arbitration, Liber Amicorum for Martin Domke (P. Sanders ed., The Hague, 1967) 240; Sh. Rosenne, An International Law Miscellany (1993). See Rule 29, second sentence, of the Rules of Court of the European Court of Human Rights, Council of Europe, Collected Texts, European Convention on Human Rights (Strasbourg, 1979), 401, 410.

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concluded after the First World War,26 is responsible for the parlous state of human rights in Central and Eastern Europe and parts of the Middle East, while the less said about South West Africa as a ‘contribution’ to the cause of the judicial settlement of international disputes the better. This admittedly incomplete survey is adequate to permit the conclusion that the crisis now facing international law as an institution, and in consequence the ability of international law and the law-applying organs to play an important, let alone decisive role in the resolution of international disputes – even legal disputes – does not have its roots in this or that theory of political science or state organization or legal philosophy. Those are not without relevance, but to them must be added a combination of circumstances which include (a) the fact that in the United Nations (and hence in any universal international conference even if not convened under the auspices of the United Nations, such as the Geneva Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts [1974–1977]), the majority of the 192 members of the United Nations,27 including some Great Powers and some important groupings of powers, reject the established order of priorities inherited from the nineteenth century, and have not yet succeeded in reaching agreement on any alternative new order of priorities on the one hand; and (b) on the other hand, the law, and more especially the law-applying organs, have not yet demonstrated a marked ability to cope satisfactorily with many of the new types of problems that have

26

27

See on this the virtually unnoticed Study on the Legal Validity of the Undertakings Concerning Minorities (1950), Doc E/CN.4/367 & Add. 1. In fact the Economic and Social Council refused to request an advisory opinion of the International Court on this question. M. Pomerance, The Advisory Function of the International Court in the League and UN Eras (Baltimore and London, 1973), 221, note 218. It is an interesting side-line that no mention of this appears in United Nations Action in the Field of Human Rights (ST/HR/2, 1974), originally prepared for the twenty-fifth anniversary of the Universal Declaration on Human Rights. On that Study, see N. Feinberg, ‘The Legal Validity of the Undertakings Concerning Minorities and the Clausula Rebus sic Stantibus,’ originally published in Studies in Law, Scripta Hiersolymitana, V. (Jerusalem, 1958), 95, and reproduced in his Studies in International Law (Jerusalem, 1979), 17. It is not often known that the International Law Commission adopted an extremely cautious attitude towards that Study and was unwilling to endorse the conclusions reached by the Secretariat in it. Compare the original reference to that Study in Sir Humphrey Waldock’s Second Report on the Law of Treaties, art. 22, Commentary, para. 5, with para. (5) of the Commission’s Commentary on what was then adopted as art. 44 on the law of treaties, repeated virtually unchanged as para. (5) of the Commentary on art. 59 of its final draft articles on that topic (now art. 62 of the Vienna Convention on the Law of Treaties). Yearbook of the International Law Commission (1963), II, 82 (A/CN.4/156 & Add. 1–3) and 209 (A/5509), and 1966, II, 258 (A/6309/Rev 1). See our ‘Rebus sic Stantibus and the Minorities Treaties: An Afterword’ in 12 Isreal Yearbook on Human Rights (1982), 330. For the current list of members of the United Nations, see .

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been brought before them. At the same time, the basic and hitherto unchallenged proposition that the general corpus of public international law applies indifferently and equally to all members of the international community of independent states (and a fortiori to aspirants to that standing) is coming under heavy attack. In that state of affairs, the former socialist states of Eastern Europe often bring their political weight to bear in support of ‘advanced’ legal causes. This is another factor for disequilibrium (one often wonders what their attitude would be should there grow strong international support for national liberation movements of the non-Russian peoples of Russia). Some may regard as worthy of note the tendency of some Russian publicists to look upon international law, when it is not merely an arm of convenience to support or ‘justify’ political or even military action, as being concerned more with the determination of the rights and duties of states – with heavy emphasis on their duties – rather than with the place of law in the complex process of the peaceful adjustment of international disputes and situations of tension and even more serious, of conflicts of interests among states – which should be the primary preoccupation of international lawyers and one which is much closer to the realities and necessities of international life. For the differences between disputes over rights and duties, and disputes over clashing interests, are fundamental to the operation of legal techniques in all systems of law. International law is no exception, despite the inexplicable tendency today, stressed above all by the socialist states, in modern treatydrafting to emphasize the formulation of the substantive rules and to leave aside issues of procedures for assuring the implementation in good faith of those rules, relying only on the inadequate provision of article 33 of the Charter. In this respect, the attitude of the Soviet judge in each phase of the US Diplomatic and Consular Staff in Tehran case is fascinating and instructive. Twice he voted in favour of decisions requiring the immediate release of the hostages and their relief from any form of intimidation, thus enabling the court to reach unanimous decisions on those central issues; but for the rest he voted against other operative clauses of the 1980 judgment, in that way offering a parallel to the political attitude of the USSR in the Security Council, and which prevented all effective action by that body, and indeed by the United Nations at all, in that crisis.28 In this redistribution of priorities, there is no room for doubt, as already mentioned, that considerations of national security remain where they always were, at the top. What that means may be another matter, depending upon

28

For references to this case, see note 1 above. And see W.M. Reisman, ‘The Legal Effect of Vetoed Resolutions,’ 74 AJIL (1980), 904. For an illustration of the Soviet tendency to emphasize the duties of states, and to underplay their rights, see G.I. Tunkin, ‘Alcuni nuovi problemi della responsibilità dello Stato nel diritto intemazionale,’ 11 Comunicazioni e Studi (1963), 16.

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time and circumstance. It is not something on which the law can have much say, and it will vary from state to state and from generation to generation. Today it is a far more expansive conception than it was in 1945 when the Charter was drafted, and we have seen how it extends far into the economic and social fields, themselves taken in a very broad sense. That national security is the nerve centre for all modern international law is something which nobody can or should contest. There is nothing new in that basic idea, best expressed in Cicero’s pithy phrase Salus populi est suprema lex.29 But what is new, and here the law is seriously in arrear in comparison with today’s requirements, is that in nineteenth century law and politics, the use or threat of force, be it armed force or political and economic force, was not regarded as illegal or as unusual. Today it is supposed to be outlawed save when used in accordance with the Charter, including in exercise of the inherent right of self-defence, but international society has not yet shown much ability to make this theoretical doctrine current political reality. The enormous distance travelled from the typical nineteenth century pose of disinterest in the welfare of the weak in their relations with the strong to modern conceptions (widely but not yet universally accepted) is well illustrated in a recent statement by a member of the International Court of Justice: ‘In the last decades great changes have taken place in the political, social, economic and technical fields. The need to strike a fair balance between strong and weak nations, between industrial countries and those in the course of development, is each day more urgent.’30 Even more striking is the following passage at the end of his opinion just cited: A big power can use force and pressure against a small nation in many ways, even by the very fact of diplomatically insisting in having its view recognized and accepted. It is well known by professors, jurists and diplomats acquainted with international relations and foreign policies, that certain ‘Notes’ delivered by the government of a strong power to the government of a small nation, may have the same purpose and the same effect as the use or threat of force. There are moral and political pressures which cannot be proved by the so-called documentary evidence, but which are in fact indisputably real and which have, in history, given rise to treaties and conventions claimed to be freely negotiated and subjected to the principle of pacta sunt servanda.31

29 30

31

De legibus, III, iii, 8. Judge Padilla Nervo in the Fisheries Jurisdiction cases, ICJ Reports 1973, 3, 43 & 49, 88. Padilla Nervo, a product of the Mexican Revolution, was extremely experienced in modern international affairs, having served inter alia as his country’s Permanent Representative at the United Nations in New York and as Minister for Foreign Affairs, as well as having been a member of the International Law Commission before his election to the International Court. He was President of the Sixth Session of the General Assembly (1951). Ibid., 47, 91.

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Indeed, as late as 1919 social security and betterment, as matters of international concern, were relegated to the end of the Paris Peace Treaties (establishment of the International Labour Organization). Towards the end of the thirties the League began to realize that this was not satisfactory, and in the well known Bruce Report on the reform of the League of 1938, written at a time when the League had temporarily abandoned its anti-Bolshevik line in face of the greater nazi danger then looming before it, are to be found the seeds of articles 55–72 of the United Nations Charter.32 In the Charter, these elements, greatly expanded, appear as an integral factor with high priority in the international organization which bears the primary responsibility for the maintenance of international peace and security, and in the course of time its role has become more enhanced, as the pressures became greater and many new agencies and institutions became established to accomodate them. IV. Precedents and Pressures There is an element of melancholy in the two quotations chosen to head this essay. In each case that melancholy is the product of much practice and study and personal experience of the intricacies of modern international relations. Intersticed in those intricacies is a fine webbing of international law. No serious writing on international law can ignore the more general framework of international relations in which it operates. International litigation is not prominent in the general evolution of international relations, and expositions of the law, however learned, which base themselves excessively on the pronouncements of international courts and international arbitrations are liable to give a misleading picture of what the law really is and why it is what it is. The general run of international relations is always a matter of disputes and situations – large or small, of primordial, vital (to use correctly an overworked word) importance to at least one of the parties – in whatever guise they may take (political, military, economic, ideological, social and what you will), and whatever technical definition may be ascribed to them. The Charter of the United Nations, for instance, the basic constituent instrument of the presentday international society or organized community, uses many words for this phenomenon: ‘dispute’ pur et simple (articles 1, 2, 12, 32, 34, 35, 37, 38, 52, Statute of the International Court of Justice [an integral part of the Charter under article 92 of the Charter], articles 36, paragraph 6, 38, 60), ‘dispute the continuation of which is likely to endanger the maintenance of international

32

See, F.P. Walters, A History of the League of Nations (1960 reprint in one volume), 749 ff. For the Bruce Report itself, entitled Committee on the Development of International Co-operation in Technical, Social and Humanitarian Fields, see League of Nations, Docs. A. 23, 1939 & A. 47, 1939.

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peace and security (article 33), ‘legal dispute’ (article 36, Statute of the Court, article 36, paragraph 2).33 In the resolution of those controversies, however effected, there is a double role for international law. In the tension accruing phase which precedes the denouement, it is one of the elements to be taken into consideration by those trying to resolve the dispute or at least to head off the crisis, whether simply the parties themselves or some third parties – states, competent international organs, or judicial or arbitral organs operating despite the political context exclusively on the basis of the law. After the dispute has been resolved as a political matter, it becomes a ‘precedent’ which the international lawyer, and to a considerable extent the diplomat, without any commitment to any form of doctrine regarding the binding force of precedents in international law (some persuasive value they will always have, though not necessarily as precedents to be blindly followed), will ignore at his own risk. In that way the law develops, from generation to generation, and in that sense, therefore, ‘dispute’ and ‘controversy’ are the life-blood of international law (as of all law) without which international law would degenerate simply into an abstraction, unrelated to what is happening in the world. Some would say that this is what it is now, but that is a narrow and mistaken view. In this context, the ideological controversies of present-day international law also have their place. In this respect, international law is no different from any other law. The law always develops in response to some established needs of the community which created it and which it serves. If those needs are general, the law will probably be developed in a politically determined direction by the legislature in a generalized form, for practical application by others. Its shape will be moulded by the political complexion of the legislature, and the nature of the political alignments needed in the legislature for the proposed piece of legislation to be passed – much like the way a multilateral international conference works. If those needs are particular, in most instances the law will develop in response to some form of litigation, not really of general application per se even in those legal systems which recognize some form of the doctrine of stare decisis, or in some standardized form approved by the profession or other competent authorities. What is more important, in those instances the dispute will essentially be one of crisis – for at least one of the parties. This can best be illustrated by referring to matrimonial disputes as the prototype on the purely individual level, and labour disputes as the prototype on 33

With certain technical refinements, such as a dispute as to whether the Court has jurisdiction under art. 36, para. 6, of the Statute, or a dispute as to the scope and meaning of a judgment under art. 60 of the Statute, or even a legal question actually pending between two or more states under art. 102, para. 2, of the Rules of the International Court (1978). These technical differentiations do not concern us here since they do not displace the political element of every international dispute.

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a more collective level. In their detailed make-up, physiognomy if you like, this element of crisis, the embrace of which may extend beyond the parties immediately concerned and in some cases may even come to involve the entire community as a collective (major strike action upon failure to resolve a grave labour dispute, for instance) gives those controversies some objective affinity with major international disputes. But the parallel must not be pushed too far: at most it might, if carefully used, supply intellectual generalities upon which a policy assessment, involving a choice between various courses of action open to the party or parties concerned, could be made or followed through. In this sense, national experience may supply guidance for the creation of a new international legal regime for a particular topic. At this point, an examination is needed of some of the major pressures which cumulatively impinge upon present-day international law directly, and on its very ability to withstand them. This examination must be undertaken without attempting to place those pressures in any hierarchical order, for each state has its own order of national priorities, and it is one of the major functions of diplomacy, bilateral and multilateral alike, to find mutual accomodation between them all. One of the greatest and most controversial elements of pressure on presentday international law is the urgent need for it to adjust itself to the new social environment and trends characteristic of the international community now existing, and reflecting trends prevalent to varying degrees in the national communities. This task would be difficult under the most ideal of conditions. It is made a thousand times more difficult in the unsettled political situation (including in some aspects something abhorred by all politics, namely, power vacuums in some parts of the world, unstable internal conditions in many countries, and unsettled relations between the world’s major Powers generally) bequeathed by the two world wars and the complete revolution and redistribution of political and economic power that have come in their wake – further aggravated by the overriding energy and economic crisis. If the rearrangement of the order of international priorities is the first element of crisis facing international law today, the second is the change in the function of diplomacy through established international organs. This is now very different from what it was in the days of the League of Nations which, viewed in restrospect, started as a nineteenth century institution, almost a continuation in the new circumstances of the nineteenth century aristocratic and secretive profession, often with family ties of varying degrees of cohesiveness between its principal actors. The results of that diplomacy might be made public, but not the processes by which they were reached.34 A hint of

34

Is it not a curious illustration of the lengths to which diplomatic secrecy could go, that the records of the Committee of Experts for the Progressive Codification of International Law of the League of Nations were originally classified ‘confidential’ and not given to general release,

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that concept is written into the Charter of the United Nations, in article 1, paragraph 4, in which it is stated that one of the purposes of the United Nations is to be a ‘centre for harmonizing the actions of nations . . .’ That is almost a classic definition of the role of diplomacy. Today, with the increasing (and welcome) democratization of the diplomatic services, and whether we like it or not and whatever be the underlying reasons, the United Nations and with it most of the specialized agencies have in course of time become much more a centre for what is sometimes called the ‘diplomacy of confrontation,’ almost a contradiction in terms. In that play, ceaseless, restless, all-pervading, everything is grist to the speaker’s mill, and international law, as it is or as the speaker would like it to be, is thrown in regardless of its accuracy or its relevance to the matter under discussion, simply to score points in the interminable sparring of confrontational diplomacy and to throw the other side into a false position of being on the defensive against unreal and often malicious and mendacious attacks. Frequently this is done in terms, in language and in posture, which are anything but ‘diplomatic’, resembling more those of the marketplace. This brings little credit to the very concept of international law and diplomacy, the general standing of which today is lower than it has ever been. Another element of pressure and crisis, experienced by all of us throughout our lives, is the technological and electronic revolution. This is all-pervading and is setting its mark upon the whole of human existence in the latter half of the twentieth century. Among its direct contributions to the conduct of international affairs is the virtual instantaneity of modern communications, both private and governmental, the rapidity with which large quantities of information can be analysed and projected, and the speed with which contemporary tensions can evolve both qualitatively and quantitatively from something local, which in earlier times could well have passed unnoticed, to something of far wider implications. Since there is no branch of human existence which is not touched by this, there is no branch of law – any law – that escapes its pressures. A relatively trite, but typical, illustration can be seen in the extraordinary efforts made by a small group of interested individuals since 1973, under the overriding direction of the Sixth Committee of the General Assembly, to wrestle with the problems connected with the computerization of the treaty section of the United Nations Secretariat. Certainly this is a miniscule matter before the enormous problems which the international community faces. Its mention here is simply to illustrate that the law, and its associate public administration, need time, often much time, to reach acceptable solutions to problems which, if the man-in-the-street

not even to states members of the League, a state of affairs which was only changed in 1927 after the Committee’s 3rd session. S. Rosenne (ed.), League of Nations, Committee of Experts for the Progressive Codification of International Law [1925–1928], (Dobbs Ferry, 1972), I, xxxix.

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thinks about them at all, he may well believe that they do not affect him and are not worth the time spent on them. If that is so with matters of minor importance, how much the more is it so when major international and national interests are at stake? For the advent and all-pervading character of modern technological developments is presenting the decision-maker with a quantity of information and a multiplicity of options which even a generation ago were unthinkable, and the choice between the options, to achieve optimal results, requires time.35 But time today is one of the commodities in short supply, and the slowness of the law-making process, save in response to some exceptional and great emergency, constitutes a large entry in the debit side of the ledger. V. An Unbalancing Factor We may now turn to the unbalancing element introduced by the general challenge to the equality of the application of the rules of general international law to all members of the international community, the natural consequence of the principle of the equality of states. At the outset, it should be stressed that so long as the principle of the equal application of the law to all members of the international community is accepted, there can be no objection to agreed and controlled exceptions in favour of states under some particular disadvantage. As an illustration, the United Nations Convention of the Law of the Sea adopted by the Third United Nations Conference on the Law of the Sea can be invoked.36 Modern treaty law is full of examples of this, and it would be otiose to attempt to list them. The essential condition is that these exceptions are the product of general agreement, of consensus to take a widely used term the precise implications of which are not always clear, and not the product of unilateral action,

35

36

The computerization of the treaty section of the United Nations Secretariat first came before the Sixth Committee on 6 December 1973 (1456th meeting). The Committee accepted the view that the computerization itself did not raise any legal questions of substance as regards the law of treaties or the application of Art. 102 of the Charter on the registration of treaties. Subsequent discussions have led to a series of resolutions of the General Assembly completed by RES/A/51/158, 16 December 1997, on the electronic treaty database, and a thorough modernization of the performance of the functions imposed on the Secretary-General by Art. 102 and as depositary of many multilateral treaties. This is also a by-product of the entry into force of the Vienna Convention of 1969 on the Law of treaties. The proverbial manin-the-street may well not attach any importance to this. He might show more interest if he were aware of the extent to which his daily life is now regulated, directly or indirectly, by a web of international treaties, and the enormous practical difficulties of keeping track of the treaty relations of a given state. See note 11 above, arts. 69, 70, 71, 144, 148, 150, 152, 160, 161, 164, 202, 203, 254, 268, 269, 272, 273, 274, 275, 276, an. III, arts. 5, 9, 15. Res. I, paras. 5, 9; Res. II, para. 1.

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however named, of the state concerned. But that is not where the real challenge lies. What one hears is the view that as a legal proposition, a less stringent standard is to be expected from certain states in the application of even agreed rules of international law to them, say in the matter of diplomatic privileges and immunities (but not limited to that chapter of the law). The effect of this challenge is very far-reaching, for its aim is to transfer what may well be, in that type of case (again taken only as an illustration), a factor diminishing state responsibility for breach of a rule of international law – such as, in the example given, a lack of adequate internal organization for assuring the normal degree of protection to which diplomats en poste are entitled – into a substantive rule relieving the respondent state of any responsibility whatsoever, something entirely different. This idea is being canvassed in many different circumstances in the General Assembly, and it is particularly in evidence in the annual debate on the report of the International Law Commission. Needless to say, it is strongly opposed by a number of important states, inelegantly known in the United Nations as ‘Western Europe and Others’ (WEO), a numerical minority. It is certainly a factor influencing the evolution of the law as far as concerns the textual expression of the law: on the other hand, it has not yet found much support in the decisions of law-applying organs or in the doctrine of customary law itself, and where it is introduced, for instance in ‘codifying’ conventions (whether or not prepared by the International Law Commission) it is more commonly regarded as an element of ‘progressive development’ of the law, not of ‘codification.’ This, and the controversy surrounding it, is leading to another even more questionable development, namely, the attribution of some degree of international personality, in the sense of having a legal standing on the international level, to certain movements generically known as ‘national liberation movements,’ without subjecting them to general international law at all (so far as relevant). To unbalance matters even more, this is so far limited to those movements recognized in their respective regions by the Union where this is probably no more than a transient phenomenon pending the completion of the agreed decolonization of the continent, and the League of Arab States, where it is so far limited to the Palestine Liberation Organization and is therefore related to the general situation in the Middle East. These phenomena have nevertheless led to important developments in the law, even if they have ridden on the crest of a wave of political expediency, and being thus generalized in law-making instruments are potentially not subject to the current regional limitations. The most important exception from the general international law for which the national liberation movements are contending is probably the exception from the rigors of the law relating to both the jus ad bellum and the jus in bello. The former is projected in the guise that the said movements are acting in exercise of the inherent right of self-defence in implementation

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of the right of self-determination.37 This line of thought has found its most significant expression in various provisions of Additional Protocol No. I of 1977 to the Geneva Conventions of 1949 on the Protection of War Victims.38 The current geographical limitation of the sphere of action of the national liberation movements is not reflected in those texts, but it must be only a matter of time and of more political expediency before that limitation will become weakened. There is no international consensus about this development in the law – an important factor to set it on a course the outcome of which cannot be foreseen. There are two other main areas of law into which the national liberation movements are attempting to gain a footing, again meeting with the same opposition and lack of consensus. The first is the law of diplomatic relations. On the bilateral level, different movements have made strong efforts, not without success, to obtain a quasidiplomatic status for their representatives in friendly capitals. Here the question is more one of political expediency and national law, not of international law, since there is nothing to prevent a state from according what it calls diplomatic status to representatives of such movements if it is so minded (although it might be an unfriendly act towards other states) without prejudice of course to the status of other diplomats en poste there (including precedence) and the relations, governed by international law, of the host state with the diplomatic corps or any section thereof. On the multilateral level things are different. As far as the United Nations and the specialized agencies are concerned, the issue of the status of representatives of national liberation movements that have been granted some official standing in the organization is governed by the relevant headquarters agreement or its equivalent.39 The Vienna Conference on the Representation of States in their Relations with International Organizations (1975) included no substantive provisions in the 37

38 39

See on this, for instance, out of a growing literature, Keith D. Suter, The Laws of Armed Conflict and Apartheid, United Nations, Centre against Apartheid, Notes & Doc. 24/80, August 1980 (mimeographed). For text see Official Records of that Conference, I, 115. Reproduced in UN Doc. A/34/144 & Add. 1, an. I (mimeographed, 1977). E. Suy, ‘The Status of Observers in International Organizations,’ Academy of International Law, 160 Receuil des Cours (1978–II), 79. Both the General Assembly and the Security Council have granted a special observer status to the Palestine Liberation Organization. General Assembly resolutions 3237 (XXIX), 22 November 1974 and 51/250, 7 July 1998. In the Security Council, commencing with a decision adopted at the 1859th meeting on 4 December 1975, the Organization has been invited to participated in meetings ‘with the same rights of participation as are conferred when a Member State is invited to participate under rule 37’ of the Council’s Provisional Rules of Procedure. The International Court of Justice has designated this ‘a special status of observer’ and entitled the Organization to participate in the written and oral proceedings in connection with the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. ICJ Reports 2003, 428.

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convention there adopted, and contented itself with a resolution requesting the General Assembly to examine the question of the status and the facilities, privileges and immunities necessary for the performance of their tasks by these movements.40 On the basis of that resolution, and without undertaking any such study, the General Assembly later adopted resolutions 35/167, 15 December 1980, and 37/104, 16 December 1982, which in effect leave it to the individual host states to decide on the matter on the basis of their international obligations. The second area in which these movements have been trying to gain a foothold is in that of participation in multilateral treaties. An unsuccessful attempt was first made at the Geneva Humanitarian Law Conference to open up the Additional Protocols (and by implication the 1949 Conventions) to participation by these movements as of right. The conference was not willing to go so far, and adopted article 96, paragraph 3, of Additional Protocol No. I, according to which the authority representing a people engaged in armed. conflict against colonial domination and alien occupation and against racist regimes in exercise of their right of self-determination could undertake to apply that Protocol and the 1949 Conventions ‘in relation to that conflict.’41 That provision, in the context of the Additional Protocol as a whole, is proving one of the obstacles to the complete acceptance of the Protocol itself. A further effort was made in the Third United Nations Conference on the Law of the Sea to open the new convention to participation by existing and future national liberation movements. That claim was found to be excessively divisive and was in effect rejected, being replaced as a political compromise by the perpetuation of the observer status of the national liberation movements actually invited to participate in the conference.42 There is one sphere, however, in which the efforts of the supporters of the national liberation movements and the concept of the war of national liberation as a modern equivalent of the ‘just war’ have been able to make some headway and that is in the field of international cooperation in the struggle against terrorism, at all events when the discussion was generalized and politico-philosophical, as opposed to a treaty-drafting exercise. The outstanding 40 41

42

United Nations Conference on the Representation of States in their Relations with International Organizations, Official Records, II, 204 (A/CONF.67/15, an.). On that provision, see the discussion at the 67th and 68th meetings of Committee I and at the 40th plenary meeting of that Conference. Official Records, VI, 352 and X, 364 (art. then numbered 84). See discussion at the 95th–98th Plenary meetings and the proposal in Doc. A/CONF.62/ L.26, Official Records, IX, 28–46, 182 (1978). On the divisiveness of this, see B. Oxman, ‘The Third United Nations Conference on the Law of the Sea: The Eighth Session (1979),’ 74 AJIL 1, 40–45 (1980); same, ‘–The Ninth Session (1980),’ 75 AJIL, (1981), 244, 253. For the final compromise see Doc. A/CONF.62/L.101 and Res. IV annexed to the Final Act (A/CONF.62/121). It finds expression in arts. 156 & 319, perpetuating observer status. This was partly remedied in the Final Act of the Diplomatic Conference of December 2005, on the adoption of an additional emblem (Protocol III). See 88 International Red Cross Review 187 (2006).

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illustration of this is the debate which was initiated by the Secretary-General of the United Nations himself in 1972 and, after having been thoroughly derailed by the protagonists of the national liberation movements, terminated by the anodyne resolutions 34/145, 17 December 1979 and 36/109, 10 December 1981. The net consequence was to prevent any general effective action by the United Nations to eradicate this scourge, whether in the matter of establishing new rules of international law and practices for international cooperation, or in any other aspect. On the other hand, those movements have enjoyed much less success when the object of the discussion was something concrete, such as the prevention of the hijacking of civil aircraft,43 the protection of diplomats and other internationally protected persons against wanton terrorist attacks,44 and international action directed against the taking of hostages.45 These show the existence of important limitations on the extent to which the organized international community is prepared to exempt those movements from new general rules of international law partly designed themselves to ensure that those movements should conform to what international law requires of civilized entities in situations of armed conflict. The delicacy of this topic is fully recognized, and the existence of some superficially facile historical analogies is also known. As Suy has stated, the non-state entities have been ‘demonstrating potentials for influencing decisions’ and this, in his view, is a justification for the international organizations attempting to regularize their procedural standing within the organization. Be that as it may, the fact remains that in some very serious instances these non-state entities have been attempting to come within the framework of

43

44

45

See, Security Council Res. 286 (1970), 9 September 1970, and the consensus decision of 20 June 1972, Security Council, twenty-seventh year, Offical Records, suppl. for April, May and June 1972, at p. 128 (S/10705). Reproduced in Resolutions and Decisions of the Security Council 1972. 18 (S/INF/28); GA Res. 2551 (XXIV), 12 December 1969, 2645 (XXV), 25 November 1970, 32/8, 3 November 1977. See also the Tokyo, Hague and Montréal Conventions of 1963, 1970 & 1971 regarding various aspects of the protection of civil aircraft against hijacking, 704 UNTS 219, 860 ibid., 105 and UN registration number 14118 (not yet published in UNTS). GA Res. 3166 (XXVIII), 14 December 1973. On that Convention, see A.B. Green, ‘Convention on the Prevention and Punishment of Crimes against Diplomatic Agents and Other Internationally Protected Persons: An Analysis,’ 14 Virginia Journal of International Law (1974), 703; M. Wood, ‘The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents,’ 23 International and Comparative Law Quarterly (1974), 791. GA Res. 34/146, 17 December 1979. On that Convention, see K.W. Platz, ‘Internationale Konvention gegen Geiselnahme,’ 40 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1980), 276; R. Rosenstock, ‘International Convention against the Taking of Hostages: Another International Community Step against Terrorism,’ 9 Denver Journal of International Law and Policy (1980), 169; S. Rosenne, ‘The International Convention against the Taking of Hostages, 1979,’ 10 Israel Yearbook on Human Rights (1980), 109; W.D. Verwey, ‘The International Hostages Convention and National Liberation Movements,’ 75 AJIL (1981), 60.

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general international law itself, without their possessing any possible capability of supplying that cardinal element of reciprocity upon which the effective application of all general international law depends. It is in that sense that the national liberation movements – without any consideration of their respective merits or political aspirations – are becoming a major distorting factor in the development of international law, a divisive element hindering the slow working out of the new international consensus needed to replace the outworn international law of the nineteenth century. While this was being written, the following passage appeared in a report to the International Law Commission, submitted for its 1981 session: International law is based upon the sovereign equality of States, and, as such, however progressively developed, can never reach a structure comparable to that of national, internal law. Surely, modern international law (particularly in its conventional form) has introduced other entities than states, as possessing interests, protected by rules of international law, and even sometimes as ‘actors’ on the international plane. At the same time, the emergence of concepts such as ‘the general principles of law’ (as mentioned in Article 38 of the Statute of the International Court of Justice) and of jus cogens in various contexts, testifies a progressive development, tending, at least at first sight, towards ‘bodies of rules’ similar to those we can find in internal law systems. However, those developments do not destroy the original basis of international law, and the new entities and concepts remain in a way something like a corpus alienum, requiring a mutual adaptation in respect of the principle of the sovereign equality of states.46

VI. United Nations Resolutions It is not our intention by the foregoing to imply that in the contemporary international arena, whether within the framework of some international organization such as the Untied Nations or not, international law in the institutional sense, not in its nineteenth century content and context but adaptable and alert to current needs and developments, has no role to play. Far from it. There is little doubt that the good politician and diplomat engaged in negotiation with another country or with the secretariat of an international organization of any kind, while knowing that the final decisions will be politically motivated, must be in a position to deploy carefully marshalled legal arguments, even if he will try to avoid doing this (governments must be very cautious before committing themselves to any given legal doctrine, especially in some transient situation). We are leaving out of consideration here the use, or abuse, of ‘law’ as a factor in the public relations

46

W. Riphagen, Second Report on the Content, Forms and Degrees of State Responsibility (Part Two of the Draft articles) paragraph 29. Yearbook of the International Law Commission (1981), II (A/CN.4/344, May 1981).

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exercises in which all states and some international organizations engage, and the ‘instant’ law which their protagonists sometimes have to produce: that is better left to public relations specialists than to serious international lawyers. But it has to be remembered that the political arena, and above all the organs of the United Nations (including especially but not exclusively the Security Council and the General Assembly with all its Main Committees, as well as the Economic and Social Council with its Committees, Councils and Functional Commissions) is not a court of law and its decisions, whether or not based on arguable legal tenets (as often as not they are not, nor do they pretend to be) are political decisions. No doubt they can influence the development of the law for, as we have seen, all international law flows out of political events, and the good practitioner of international law will ignore them at his peril (and that of his client). But he must not fall into the error of regarding them ipso facto, and without close examination of all the substratum of real agreement underlying them, as statements of the law, neither de lege lata nor de lege ferenda. They must never be read in isolation from their political and factual context.47 Only exceptionally will states embody their agreements in the form of a resolution of an international organ; but when that is done, the rule pacta sunt servanda will apply as between the parties to that agreement.48 Even resolutions adopted unanimously or without vote, or by consensus (none of these highly technical expressions mean exactly the same thing), each implying subtle gradations of underlying accord, must be treated with care before they are placed in the thesaurus of legal sourcematerial: the reader must be particularly alert to the question whether the underlying accord is substantive or merely procedural, the main objective then being to bring a particular discussion to an end on reasonably neutral terms. In this respect, the international community today is faced with a highly controversial question of the legal standing of resolutions of international organs, especially the General Assembly. This question exists both on the theoretical level and as a matter of practical politics, and its very existence appears as a factor working against the reduction of international tensions through the Security Council and the General Assembly, especially as article 12 of the 47

48

A good illustration of the dangers of this is seen in the so-called Declaration of London of 17 January 1871 regarding the unilateral denunciation of a treaty, following the Russian denunciation of the 1856 Treaty regarding the Black Sea. 61 British and Foreign State Papers, 1198. This was immediately followed by the Treaty of London of 13 March 1871, substantially giving the Russians what they wanted. Somewhat similar is the resolution adopted by the Council of the League of Nations on 17 April 1935, after nazi Germany’s unilateral denunciation of the Treaty of Versailles of 1919. 16 League of Nations, Official Journal, May 1935, 551–564. Unless the statement of principle is followed by action compatible with it, its value as a statement of legal principle, de lege lata, is greatly limited, without prejudice to its status de lege ferenda. See, in the Permanent Court of International Justice, the Railway Traffic between Lithuania and Poland case, (1931), Ser. A/B, no. 42, 108, 116.

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Charter seems to have lost much of its significance and the formal interrelationships between those two principal organs have become blurred. This controversy has recently become important in the light of two tendencies that have become apparent in the General Assembly. The first is its attempt to impose ‘sanctions’ on states, such as the former South Africa, which have exercised their right not to accept resolutions of the General Assembly as the basis for their policies. This is a matter of considerable delicacy, which does not really belong here. The second is a tendency to denominate certain resolutions as ‘Declarations,’ the object being to give those resolutions some enhanced status, on which we will have more to say. As is well known, the San Francisco Conference (1945) deliberately decided not to authorize the General Assembly to enact rules of international law which would become binding on members after approval by the Security Council.49 One consequence of this is that most resolutions of the General Assembly, under the Charter, are to be qualified as ‘recommendations’ (in the diplomatic sense) and however often repeated, cannot by mere repetition become evidence of customary international law or indeed have any other general legal effect outside the limits of the organization itself. Loud voices contesting this view are ubiquitous, both in international conferences and in individual opinions of judges in international tribunals, and a growing body of opinion is building up in favour of recognizing in the legal standing of those resolutions something more definite. The Secretariat of the United Nations itself has adopted a cautious attitude on this matter, and while it might regard all resolutions as containing binding instructions for itself, except in rare cases when it is inclined to regard them as contrary to internatational law, it does not show much intention to go beyond that. This view came out in particular when it was asked whether there is any legal difference between a resolution entitled ‘Declaration’ and any other resolution (up to the end of September 2005 some 75 proclamation resolutions had titles embodying some such word as ‘Declaration,’ ‘Code,’ ‘Definition,’ or even ‘Charter’).50 In 1962 the Office of Legal Affairs (as it was then known) submitted to the Commission on Human Rights a memorandum containing the following paragraphs: In the United Nations practice, a ‘declaration’ is a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated, such as the Declaration on Human Rights. A recommendation is less formal. Apart from the distinction just indicated, there is probably no difference between a ‘recommendation’ and a ‘declaration’ in United Nations practice as far as strict legal principle is concerned. A ‘declaration’ or ‘recommendation’ is adopted by resolution of a United Nations organ. As such it cannot be made binding upon Member states, in the sense that a treaty or convention is binding upon the parties to it, purely by the device

49 50

9 UNCIO Docs. 69, 346. Official Records of the General Assembly, 36th session, Suppl. no. 51, 273 (A/36/51).

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of terming it a ‘declaration’ rather than a ‘recommendation.’ However, in view of the greater solemnity and significance of a ‘declaration,’ it may be considered to impart, on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it. Consequently, in so far as the expectation is gradually justified by state practice, a declaration may by custom become recognized as laying down rules binding upon states.51

This controversy has become acute, again not as a theoretical matter, in the Third United Nations Conference on the Law of the Sea, in relation to General Assembly resolution 2749 (XXV), 17 December 1970, entitled Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof Beyond the Limits of National Jurisdiction. That has found expression on at least two occasions. The first concerned the acceptable manner of referring to that Declaration in the preamble of the new convention. It was finally agreed to use the expression ‘develop the principles embodied in’ that declaration rather than ‘give effect to’ them. The formal explanation is that the former expression would not affect the question of the juridical status of those principles.52 The second concerns the controversy surrounding the enactment by the United States and some other countries of legislation governing the exploitation of the resources of the sea-bed beyond the limits of the national jurisdictional before the conference concluded its deliberations, a step regarded by important elements in the conference as violating the declaration of principles of 1970.53 If we have mentioned these incidents, it is because of their long-term implications which should not pass unnoticed. If the matter is examined from the purely formal point of view, it is clear that, even without reference to the records of the San Francisco Conference, the Charter is careful to avoid language (save in very special cases, regarded as internal ‘housekeeping’ matters of the Organization) which could imply that resolutions of the General Assembly have in general binding force for members of the Organization. Resolution 2749 (XXV) was adopted by 108 votes with 14 absentions. As a ‘declaration’, it comes within the doctrine enunciated by the secretariat in the memorandum already quoted, so that if there is no state practice based on it and conforming to it – and that can only mean practice by states capable of

51 52 53

Official Records of the Economic and Social Council, 34th session, Suppl. no. 8, para. 105 (E/CN.4/L.610); reproduced in the publication cited in note 26 above, at p. 163. Official Records (1980), XIII, 79, (A/CONF.62/L.49/Add.l). Official Records, IX, 103 (109th plenary meeting, 1978); XI, 77, 80, (A/CONF.62/72, A/CONF.62/77, 1979); XII, 56, 70, 71, 111 (A/CONF.62/81, A/CONF.62/89, A/CONF.62/90, A/CONF.62/92, 1979); XIV, 107, 109, 111, (A/CONF.62/100, A/CONF.62/101, A/CONF.62/103, A/CONF.62/106, 1980). This controversy was only finally settled by the Agreement of 28 July 1994 on the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982. On that Agreement, see Essay 25 above.

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undertaking the activities to which the declaration refers – no rule of customary international law can emerge from it. Underlying the controversy, therefore, can be seen an attempt by a numerical majority not merely to rewrite the Charter via facti in a manner favourable to that majority, but what is more serious, to rearrange the accepted procedures by which a new rule of international law is brought into existence. This is indicative of the fundamental difference of approach between the numerical majority of the new states in the United Nations and the minority of its founder members. Put in that light, the controversy strikes at the roots of the stability of the existing international legal system. For by trying to attribute binding force to instruments to which it was never intended to attribute such force, and for which no authority is to be found in the constituent instrument of the organization itself, the glove is thrown at the whole process of international law-making, precisely at a time when those very procedures themselves are the object of critical scrutiny, and from which the only viable outcome must be one based on general acceptance. VII. Voting and ‘Algebraic’ Drafting This kind of development is the direct consequence of the abolition in 1945 of the unanimity rule previously accepted in principle in international meetings as the guiding rule for the adoption of decisions. In the Charter, this abolition of the unanimity rule is accompanied by certain other guarantees against what President Ford once called the ‘tyranny of the majority,’54 notably in the General Assembly, and following it in most international conferences including those for the codification and progressive development of international law, the requirement of a two-thirds majority for the adoption of decisions on important matters or, in the conferences, for the adoption of treaty texts, both article-by-article (including amendments) and on the whole.55 In the various rules of procedure this has been interpreted to mean two thirds of those present and voting aye or nay, excluding those abstaining or not participating in the vote. With the enormous qualitative change in the composition of the General Assembly and in the right to participate in most international conferences that has occurred since 1960, this protection of the minority has been consistently eroded; and both in the General Assembly, and in many international conferences, one finds important decisions being forced through by sheer numbers over politically significant opposition, or frequently what is even more curious, decisions, including the texts of treaty

54 55

Address to the General Assembly on 18 September 1974, 71 Department of State Bulletin (1974), 465, 466. In the Committees a simple majority normally suffices.

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articles, being adopted simply on a mathematical basis, when the number of absentions alone exceeds the number of those voting for or against. A vote of two to one, with one hundred absentions, is a two-thirds majority. The so-called ‘blocking third’ which once existed in the General Assembly and afforded some protection to the minority, and other requirements of the Rules of Procedure for a two-thirds majority, have long lost all practical significance. The impact of this voting procedure on the treaty-making activities of modern international diplomatic conferences has on the whole been harmful. This, indeed, is demonstrated by the large number of treaties, especially those concluded under the auspices of the United Nations, which have either remained unratified and thus not entered into force, or have been ratified by only a few states, often on a regional bloc-basis, and not by the most important of them. This form of treaty-drafting has had another related consequence, that the treaty texts are often formulated and adopted without adequate consideration, or indeed without any consideration at all, being given to the problems of parliamentary ratification in those countries in which, before the state can give its consent to be bound by the treaty on the international plane, the consent of the legislature is required. The Third United Nations Conference on the Law of the Sea is one of the first recent major international conferences which has had this factor in mind, and therein lies one of the explanations for the slow progress of that conference.56 It is still far from clear, at the time of writing, that those difficulties have been satisfactorily met. This evolution has had an unsatisfactory influence on the development of international law, and is one of the factors detracting from the credibility and acceptability of modern treaty-making process. It has the direct consequence of substituting a vote, or the threat of a vote, for genuine negotiation. The voting system of the Charter and its application in practice notwithstanding, the legal organs of the United Nations have long come to realize that majority voting is not the most effective way to produce legally meaningful or acceptable international legal texts; as in the early years, the processes of voting were used both for establishing the texts through the disposal of amendments and for the adoption of texts thus settled. For this reason the practice has developed of making every effort to reach conclusions without the necessity for a vote, or at all events without the necessity for premature voting before it is clear that there is no other way to reach an acceptable outcome. This kind of procedure has been in use in the International Law Commission at least since 1962, and in the Vienna Conference on the Law of 56

In order to overcome these problems special rules of procedure for decision-making have been worked out, not without difficulty (because of the underlying political implications), for the Third United Nations Conference on the Law of the Sea. See its Rules of Procedure, Rules 37–49 (A/CONF.62/30/Rev.3 [UN Sales no. E 81, I, 5]).

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Treaties it became coupled with another procedural innovation, according to which the conference would conclude its examination of each draft article with a vote on any amendments presented only, referring the consequences to the Drafting Committee and postponing the final vote until after the Drafting Committee had completed its study of the matter. This avoided difficult procedural problems connected with the order of voting and the concept of ‘re-consideration’ (requiring a two-thirds majority), such as those which plagued the First United Nations Conference on the Law of the Sea, and may have been one of the factors contributing to the breakdown of the 1958 system. Recently, this has become partnered with another useful innovation: the clarification of issues and the elaboration of texts through ‘working groups’ under various captions, some of agreed limited membership but representative of all the usual regional groupings in the United Nations, and others consisting of an agreed nucleus membership similarly constructed to ensure proper geographical distribution, but at the same time ‘open-ended’ allowing every other interested delegation to participate in the group’s deliberation, thus overcoming extraneous political difficulties. In the latter type of case especially, but often also in the former, there is no voting, every effort being made to reach generally accepted agreement. The critical feature of this working method is that the groups work ‘off the record,’ submitting their conclusions usually in sparely written reports indicating majority and minority views without attribution of remarks or positions to any given delegation but of course including any papers formally submitted by a given delegation. This has had the great advantage that it has depressed to the lowest level if not removed entirely current political emotions, another aspect which plagued the 1958 Conference on the Law of the Sea. This ‘algebraic’ system of treaty-drafting (and sometimes of resolution-drafting also), which has evolved as a reaction to the confrontational diplomacy of so many international organs, implies the absence of travaux préparatoires in the accepted sense and makes it difficult (though not impossible) to reconstruct the legislative history of a given text. In that sense it is breathing new – and perhaps unexpected – life into the dictum of Judge Alvarez, when he compared multilateral conventions ‘to ships which leave the yards in which they have been built, and sail away independently, no longer attached to the dockyard.’ 57 It is also considered that this system of treaty-drafting will reinforce the tendency, evident in the Vienna Conference on the Law of Treaties (articles 31–33 of the Convention), to give preference to what is sometimes called ‘literal’ interpretation over ‘teleological’ interpretation which, in the hands of some of its exponents (including Judge Alvarez himself), was leading to results far from what the negotiating states ever intended.

57

Dissenting opinion in Reservations to the Genocide Convention case, [1951] ICJ 15, at p. 53.

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It is believed that in the General Assembly itself, the first treaty to be produced entirely by this method was the 1979 Convention against the Taking of Hostages (note 45 above), although this kind of procedure had been used to work out some of the earlier resolutions. On a far greater scale, the Third United Nations Conference on the Law of the Sea has been working on this system virtually throughout, after the long series of ‘general debates’ (in the United Nations sense) held mainly during the second session at Caracas (1974). In this instance, the quantity of ‘unofficial’ and ‘informal’ papers originating with delegations or with the secretariat, sometimes even presented anonymously, exceeds by far the quantity of official documentation (by which is meant documentation which has found its way into the Official Records or is listed therein, or, if it exists only in mimeographed form, has been reproduced under the conference logo and carries the document symbol number of the conference (A/CONF. 62/-). However, in this case the problem is partly alleviated by reliable private collections of this ‘unofficial’ and ‘informal’ documentation, mostly with a limited circulation but nevertheless available, although difficulties can be foreseen in the use of this material for instance in international litigation, where its ‘opposability’ to one or other party might become an issue.58 On the whole, this obstinate search after agreed texts may slow up the process of text-drafting: it is certainly one of the factors accounting for the excessive length of the Third United Nations Conference on the Law of the Sea. But the 1979 Hostages Convention shows that this need not be necessarily so, especially if the text is not over-long. This notwithstanding, that kind of technical development can be regarded as a salutary diplomatic evolution in the sense that, despite possible drafting defects and problems of language concordance (which it should be the responsibility of the drafting committee, with the assistance of the competent services of the secretariat, to try and remedy), the outcome of this process will be acceptable to a larger number of states than a text produced by mere majority voting. Another complication in modern text-drafting is caused by the multiplicity of official and working languages in the United Nations and the specialized agencies, and the multiplicity of authentic texts of modern international multilateral treaties. This has led the Chairman of the Drafting Committee of the Third United Nations Conference on the Law of the Sea to refer to the concept of ‘linguistic concordance to the extent possible, and juridical concordance in all cases.’59 It remains to be seen how this will operate in practice. 58

59

See the present writer’s ‘Note on Travaux Préparatoires,’ 12 International and Comparative Law Quarterly (1963), 1378. The most important private collection of this character in progress of publication is R. Platzöder (ed.), Third United Nations Conference on the law of the sea: Documents (18 vols., 1982–1988, Dobbs Ferry). See the report of the Chairman of the Drafting Committee on the Committee’s intersessional winter meeting of March 1981, A/CONF.62/L.67/Rev.1, para. 8. In the United Nations, six

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This combination of new factors does not make for easily read texts, and jurists may deplore what are often regarded as lower standards of drafting and reporting than were prevalent during the early part of the 20th century. There is little point in entering into that argument, with its heavy element of value judgment, here. The current practices, controversial and open to criticism though they may be, reflect current international realities; and if the law is to continue to play a useful role it, and those responsible for its application, must adapt themselves to those realities and, where necessary, seek to improve the practices which they have originated. These new techniques of treaty-drafting are not intended to replace the traditional technique of article-by-article examination on the record of a basic text carefully prepared and accompanied with an adequate explanation, such as is usual in the conferences called to complete the work of the International Law Commission on a given topic. They are exceptional techniques, reached pragmatically and to some extent empirically, to make it easier for the international community to overcome known obstacles to fruitful work. They are, however, useful indications of the self-adaptability of diplomatic and legal procedures, and of the international civil service, to political requirements. VIII. Meeting the Challenge It is against such a set of diverse factors and pressures that we now review the capabilities shown, or developed by present-day international law and organization to cope with them. The first thing to be kept in mind is that even with the best will in the world, law, and especially international law, cannot be made in a hurry, although one must be careful not to exaggerate its unhurried attitude. For instance, objectively speaking there is little justification for the international community to have spent something like fifty years to produce a meaningless ‘definition’ of ‘aggression,’ without its having any worthwhile effect of increasing the efficacy of the system of collective security set forth in the Charter.60

60

authentic texts are now usual: Arabic, Chinese, English, French, Russian and Spanish. On this problem in general, see M. Tabory, Multilingualism in International Law and Institutions (Alphen aan den Rijn, 1980). See also our “The Meaning of ‘Authentic Text’ in Modern Treaty Law” in Festschrift für Hermann Mosler (Berlin, Heidelberg, New York, 1983), 759. In fact, the ‘authenticity’ of some of the ‘authentic texts’ may be a fiction, and simply a concession to political susceptibilities. GA Res. 3314 (XXIX), 14 December 1974. And see our ‘On Defining Aggression – An Exercise in Futility,’ 12 Israel Law Review (1977), 401 – a review of B.B. Ferencz, Defining International Aggression: The Search for World Peace (New York, 1975). In its judgment on the merits of the Armed Activities on the Territory of the Congo (Uganda) case, the International Court of Justice tested a claim by Uganda that it had undertaken certain military action

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There is the greatest difficulty in finding a satisfactory and convincing explanation for the fact that the International Court of Justice took from 10 August 1976 to 19 December 1978 to find that it was without jurisdiction to entertain the Aegean Sea Continental Shelf case,61 especially after the furore caused by what most people, though perhaps with less justification, regard as undue procrastination and the unfair raising of expectations in the South West Africa cases.62 Indeed, that incident, placed in some sort of historical perspective, may be seen to have closed one chapter in the history of international law and international judicial settlement, and made it necessary for the international community to set about a major reconstruction of the court in terms of its composition, which it accomplished painfully in the elections held in the twentieth session of the General Assembly (1966) and for the court itself to set about remodelling its procedure – a task in which it is proceeding with perhaps excessive caution.63 It has even provoked attempts to reposition the court, named in the Charter (Article 92) the ‘principal judicial organ of the United Nations,’ among the international organs for the settlement of international legal disputes. The outstanding instance of this is seen in article 287 of the United Nations Convention on the Law of the Sea.64 This is not an encouraging background. One can point to many other urgent problems to which the law has reacted with characteristic slowness: over thirty years (in the United Nations alone) to deal comprehensively with the general law of treaties, and the work still continuing after the Vienna Conventions of 1969 and 1978 – a topic now covered by two multilateral conventions and a third in the making, and that after preliminary work in the League of Nations; four conventions, concluded between 1961 and 1975, and in many respects repetitious, to deal with various aspects of diplomatic and consular relations and this too after preliminary work in the League of Nations; work on state succession proceeding slowly and being completely

61 62

63

64

in self-defence by reference to the General Assembly’s definition of aggression. Judgment of 19 December 2005, para. 146. Judge Elaraby went to some length to describe that definition as ‘an invaluable guide to the scope of aggression’. Separate opinion, para. 13. [1976] ICJ 3; [1978] ibid., 3. This case was before the Court from 4 November 1960 to 18 July 1966, when the Court finally declined jurisdiction after lengthy written and oral proceedings. For its judgments see [1962] ibid., 319 & [1966] ibid., 6. S. Rosenne, ‘Some Reflections on the 1978 Revised Rules of the International Court of Justice,’ 19 Columbia Journal of Transnational Law (1981), 235; same, Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice (The Hague, Boston, London, 1983). Note 11 above. A proposal by the Netherlands and Switzerland to reorder the list of disputesettlement organs in that article, to place the International Court first, aroused considerable opposition and was withdrawn. For that informal suggestion, see SD/1 (mimeographed: reproduced in R. Platzöder (ed.), op cit. in note 58 above, vol XII, 234 (doc. SD/1, 1987). For the withdrawal of the proposal, see Official Records, XIII, 87 (A/CONF.62/L.52 & Corr. 1, para. 6, 1980).

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overtaken by the decolonization process and thus wearing the appearance of a completely abstract exercise with no contact with reality after diplomatic conferences in 1975 and 1983; draft on state responsibility of 2001, a topic actually discussed at the 1930 Codification Conference and which the United Nations General Assembly requested the International Law Commission to take up in resolution 799 (VIII), 7 December 1953; and what is more serious, while the International Law Commission and the Secretariat of the United Nations repeatedly publish catalogues of the formal achievements of the Commission – and those achievements are impressive65 – they have never engaged in close study of the status of the conventions in terms of ratifications and entry into force, where quite a different picture is disclosed. Indeed, in 1968, when a proposal was put forward by Professor Ago (as he then was) for a study of the final stage of codification of international law, the Commission concluded by refusing to discuss this important issue.66 But there is another side to the picture. It is highly satisfactory that the Sixth Committee, both directly and through UNCITRAL at least, has at last decided to try and take in hand some aspects of the legal issues of the so-called new economic order, and while this will undoubtedly take some time, and be pitted with crises, one may express the hope that out of it will emerge a more equitable international legal framework for the conduct of international economic relations than, in the view of many, can exist under the ‘classical’ legal order based on competition rather than on distributive justice and co-operation. In this respect, the widely-held view that political co-existence in some sort of pacific state must be accompanied with economic and social co-existence – a view which has already found partial expression in the fact that two covenants were needed to deal comprehensively with the question of fundamental human rights67 – will be of undoubted inspiration in the evolution of this new branch of the law.68 The hope may be expressed that the industrialized

65

66 67

68

The latest at these is found in Doc. A/35/312/Add.2 (1980), entitled Review of the Mul-tilateral Treaty-Making Process: Report of the Secretary-General [of the United Nations]. This document was prepared by a working group and considered by the Commission, in an unusual procedure, in a closed session. Yearbook of the International Law Commission (1979), I. 69, 236 (1546th & 1580th meetings): For the original report of that working group see ibid., II, Part One (A/CN.4/325), 183; see also United Nations, The Work of the International Law Commission, 6th ed. (2004, in English, French, Russian and Spanish). Memorandum by Mr. Ago, Yearbook of the International Law Commission (1968); II, 171 (A/CN.4/205/Rev 1). The matter was in effect dropped. The International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, both of 19 December 1966, adopted and opened for signature by GA Res. 2200 (XXI), 16 December 1966. See GA Res. 34/143 on the report of UNCITRAL & 34/150 on Consolidation and progressive development of the principles and norms of international economic law relating in particular to the legal aspects of the new international economic order, both of 17 December 1979; 35/166 of 15 December 1980, 36/107 of 10 December 1981 and 37/103 of 16 December 1982 on the same topic. At present work is limited to preliminary studies.

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world will be able to overcome its hesitations and participate actively in this work. On the technological level, no doubt it was a feat that the International Law Commission was able to produce by 1956 draft articles on the continental shelf, only ten years after the Truman Proclamation, leading to the 1958 Convention on the Continental Shelf.69 It may well be true that subsequent developments have shown that text to have been over-optimistic and too simplicistic, and that the Third Conference faced greater difficulties over the continental shelf, and even more so over the sea-bed beyond the limits of national jurisdiction. But that is precisely because more is known about the physical aspects than before, and the social and political pressures are all the greater. Nevertheless, the conference has been building upon foundations laid nearly a generation earlier. Legal developments concerning outer space, a subject which even fifty years ago would have been regarded as fit only for science fiction, where a particularly harmonious relationship has been created between the legal organs and the technical and non-governmental bodies interested in it, demonstrate that, faced with brand new and urgent areas of human activity, the law is capable, whether through the employment of unorthodox machinery or through the unorthodox employment of existing techniques, to face the problem head-on and produce satisfactory results. No doubt, the fact that in that particular instance at the critical period only two powers were capable of putting persons into outer space and exploring it facilitated the negotiations that led to the basic text of the sixties, unlike some other matters greatly affected by modern technology, and that there were elements of common interest between those powers then, made the law-making task easier. But that does not detract one jot from the significance of the way in which the questions of outer space are being handled – discreetly, competently, highly professionally, and in a proper interdisciplinary manner.70 The Third United Nations Conference on the Law of the Sea has brought together all these intertwined strands of controversy. The challenge to the inexhaustibleness and shareability of the sea’s natural resources, living and mineral – one of the elements on which the pre-conference concepts of the freedom of the seas rested – has been successful in producing the whole new concept of the exclusive economic zone in the vast ocean spaces, and this,

69

70

Presidential proclamation no. 2667 Concerning the Policy of the United States with respect to the Natural Resources of the Subsoil and Sea-Bed of the Continental Shelf, 28 September 1945, 10 Federal Register (1945), 12303; 54 US Statures at Large (1945), 884. Reproduced in UN Legislative Series, Laws and Regulations on the Regime of the High Seas (ST/LEG/SER.B/1, 1951), 38. For the draft articles of the International Law Commission, see its Yearbook (1956), II, at p. 295. For the 1958 Convention, see [First] United Nations Conference on the Law of the Sea, Official Records, II, 142 (A/CONF.13/L.55). An unexpected demonstration of this interdisciplinary professionalism can be seen in the greetings sent by Soviet cosmonauts to the Soviet expert on space law, Korovine, on his seventieth birthday. G.P. Zhukov, Kosmos i m’ezhdunarodnoye sostrud’ichestvo (Moscow, 1963), 4.

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while it does not do away entirely with the shareability notion, shifts the focus of the law’s interest away from mere exploitation to the conservation and rational use of the sea’s resources and gives the coastal state particular responsibilities alongside its privileges in that regard. The concept of the exclusive economic zone in the context of the new law of the sea as a whole is a prime illustration of the subordination of the sea to the nearest land and the coastal state. Contemporary ideas of sovereignty and national security, coupled with rampant nationalism, have led to a reformulation of the timehonoured rules of innocent passage through the territorial sea, with another definite tilt in favour of the coastal state.71 The pressures for a more equitable distribution of the world’s natural resources coupled with the provisions to protect land-based producers of minerals also to be extracted from the deep seabed – some of which are numbered among the poorest states in the world – have led to the complicated and still controversial provisions regarding the deep sea-bed and subsoil thereof beyond the limits of national jurisdiction. These are among the central provisions of the 1982 Convention, and constitute a practical attempt to reconcile the earlier law based on free competition with a new legal régime centred on the approach of distributive justice as agreed between the different factors involved. The pressures for a general improvement in the quality of life, for maintaining balanced ecological systems, for ensuring the maximum availability of the resources of the sea for food and recreation, have led to elaborate provisions for the protection of the marine environment, the conference here following and amplifying general policy directives elaborated by the international community in the Stockholm Conference on the Human Environment of 1972.72 The world-wide interest in maintaining freedom of navigation and over flight, probably the only unchallenged element of the so-called ‘classic’ concept for the freedom of the seas, has also been completely reformulated, not in generalities as was done in 1958, but in direct relationship with the geographical formations of the land areas of the world. This has led to the creation of distinct régimes of passage (including overflight) for straits used for interna-

71

72

In this connection, it is interesting to compare the evolution as expressed in a string of relevant texts: International Law Commission, articles concerning the law of the sea, arts. 19–25, Yearbook of the International Law Commission (1956), II, 272; Geneva Convention of 1958 on the Territorial Sea and Contiguous Zone, arts. 14–23, [First] United Nations Conference on the Law of the Sea, Official Records, II, 132, 134 (A/CONF.13/L.52), Third United Nations Conference on the Law of the Sea, UN Convention on the Law of the Sea, arts. 17–32, note 11 above. For a comparison of the International Law Commission’ proposals of 1956 with the corresponding results of the Hague Codification Conference of 1930, see articles concerning the Law of the Sea: Reference Guide prepared by the Secretariat [of the United Nations], Official Records of the General Assembly, 11th Session, annex agenda item 53, 17 (A/C.6/L.378, 1956–1957). For the Final Act of that Conference, see Doc. A/CONF.48/114/Rev.1.

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tional navigation and for archipelagic states and freedom of navigation through their navigable waters (technically a new notion, which it became necessary to regulate after those states achieved their independence, although archipelagic states have existed since the beginning of time), and for stronger affirmation of the standing of land-locked states in relation to the sea, thus continuing a process which began with the Geneva Convention of 1923 on the international régime of maritime ports.73 What is more, the provisions regarding freedom of navigation and the jus communicationis in general are deliberately being made subject to particular guarantees in the form of compulsory dispute settlement procedures to which no reservations will be permitted – a marked innovation in current international practice. This reconstruction of the law of the sea, slow though it is (the work commenced in 1967, when the General Assembly adopted resolution 2340 (XXII), 18 December 1967, and that phase was only terminated in December 1982 with important issues still outstanding) shows that despite the fundamental controversies – political, legal, economic, social, philosophical, scientific and what you will – characterizing the contemporary national and international societies, when sufficient common interest can be shown to exist, and given time and patience, the law can be reformulated in widely acceptable terms. As for the law of the sea, the difficulties are now gradually moving from the international to the domestic arena, and many obstacles are being encountered in the course of the ratification process. In that sense, this conference is the test-bench for the ability of international law to adapt itself to the new political, social and economic conditions now existing in the world. If in the end the work is crowned with success, the way will have been opened to the reconstruction of international law in general, to meet the needs of the completely reformed international society. If it fails, the ability of international law to meet future (and present) needs will be placed in doubt. We can now conclude. Perhaps the real crisis lies not in international law itself, which has always, given strong and independent leadership such as Grotius gave it,74 shown an inherent ability to adapt itself to changed political and social conditions and concepts, as in the manner in which the real business of states is being conducted, less by professional diplomats and more by Heads of State or Government directly, answerable to extremely complex domestic power structures, and hotly pursued all the time by the news media which have developed a theory – with a large measure of public backing in some parts of the world (though not in others) – that they have as much right to know and publish the most

73 74

58 League of Nations, Treaty Series, 285. See, A Bozeman, ‘On the Relevance of Hugo Grotius and De Jure Belli ac Pacis for Our Times,’ 1 Grotiana 65 (1980).

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intimate secrets of states and of statesmen and . . . diplomats as the governments themselves. In this kind of situation, the leisure within which most nineteenth century diplomacy and international law were conducted is a thing of the past, and speed, getting things done, is the watchword. ‘Let’s kill all the lawyers’ said Dick the Butcher,75 and Napoleon too is reputed to have wanted to follow that pearl of wisdom. Yet within a few years he had mobilized the great Portalis to his work of reviving and revolutionizing French law, something from which we all benefit today. It is commonplace to say that in the revolutionary times through which we are living, it is asking too much to expect detailed attention to be paid to legal niceties and finesses: the stakes are too high and the dangers too great. Yet perhaps a rather longish quotation from one of the greatest and most prescient international lawyers of the twentieth century would form a fitting answer. This is what the late Sir Hersch Lauterpacht once wrote in what is possibly his most important single volume: The problem of adjusting the functioning of the law to the perpetual antimony of change and stability, and of justice and security, is not one peculiar to international law. It is a general legal phenomenon common to every political society. It is one of the central problems of legal philosophy. Experience teaches that in this struggle the element of change is not always victorious, for the simple reason that stability and security are in themselves a powerful element of justice. There is, as Montesquieu already pointed out, a limit to the possible sacrifice of security to progress. The same experience teaches that there is ultimately no more effective challenge to the maintenance of law than an immutability impervious to the needs of life and progress. As Ihering said: ‘A concrete law, which, because it has once existed, claims absolute and accordingly perpetual existence, is like a child who strikes his own mother; it derides the idea of law even in invoking it, for the idea of law is perpetual becoming . . .76

Stability and change – thesis and antithesis – with the synthesis to be found in justice for all, as the Hebrew Scriptures proclaim: ‘Justice, justice shalt thou persue’ (Deuteronomy, 16:22).

75 76

Shakespeare, King Henry VI, Part II, iv, ii, 76. ii. 76. H. Lauterpacht, The Function of Law in the International Community (Oxford, 1933) 248. Quoted in Sir Gerald Fitzmaurice, ‘The Future of Public International Law and of the International Legal System in the Circumstances of Today,’ in: Institut du droit international, Livre du centenaire, 1873–1973 (Basle, 1973), 196, 207. The references to Montesquieu and Ihering are to the Esprit des lois, VI, ch. iii, and Der Kampf ums Recht, 1906 ed., 9.

32 CODIFICATION REVISITED AFTER FIFTY YEARS

I In a remarkable passage in his A Study of History Arnold Toynbee has written: As a rule – and this rule is inherent in the very nature of the declines and falls of civilizations – the demand for codification reaches its climax in the penultimate age before a social catastrophe, long after the peak of achievement in jurisprudence has passed, and when the legislators of the day are irretrievably on the run in a losing battle with the ungovernable forces of destruction.1

This essay will examine that proposition in relation to the codification of international law during the last seventy years, since the League of Nations first adopted a project for the codification of international law in 1924 (leading to the Hague Conference of 1930), and more particularly during the last sixty years, since the establishment of the International Law Commission. At first glance one might find confirmation of Toynbee’s thesis in the codification effort of the League of Nations. As is well known, after inadequate preparation but amidst high hopes, the Conference for the Codification of International Law of 1930 – superficially at any rate – achieved very little. And a social catastrophe did follow it. The Covenant of the League of Nations made no mention of the codification of international law. In fact, it contained very few references to international law which seems to have been taken for granted. In its preamble it referred to the firm establishment of the understandings of international law as the actual rule of conduct among Governments; in Article 13 it contained a description of disputes which were generally suitable for submission to arbitration, and that included disputes as to the existence of any fact which if established would constitute a breach of international law – later taken into Article 36 of the Statute of the Permanent Court of International Justice and then of the present Court; and in Article 15 it referred to a matter which,

1

A. Toynbee, 7 A Study of History 279 (1954); cited in Sh. Rosenne, ‘Codification of International Law’, in R.B. Bernhardt (ed.), I Encyclopedia of Public International Law 632, 638 (1992).

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by international law, is solely within the domestic jurisdiction of a State. That is all. The League of Nations took the initiative for intergovernmental codification of international law – a major innovation as up to that time the work had always been the exclusive province of learned societies and eminent publicists – as part of its more general strategy of establishing a broad legal – some would say legalistic – basis for the maintenance of international peace and security.2 That legal basis related both to the procedural aspects, through League machinery, through the Permanent Court of International Justice (itself a new venture in international affairs), and through the other established methods for third-party dispute settlement as embodied for example in the Hague Convention No. I of 1907. That initiative for the codification of international law thus went hand in hand with others such as the General Act for the Pacific Settlement of Disputes of 1928.3 What is more, from the papers of the period one can gain an impression that there was a widespread feeling that the task would not be unduly difficult, and could be accomplished rapidly and without a great expenditure of time, money and workhours. The basic resolution adopted by the League Assembly on 22 September 1924 commenced with the following preamble: Considering that the experience of five years has demonstrated the valuable services which the League of Nations can render towards rapidly meeting the legislative needs of international relations, and recalling particularly the important Conventions already drawn up with respect to communications and transit, the simplification of Customs formalities, the recognition of arbitration clauses in commercial contracts, international labour relations, the suppression of traffic in women and children, the protection of minorities, as well as the recent resolutions concerning legal assistance for the poor[.]

2

3

On the codification work of the League of Nations, see my two compilations, League of Nations, The Committee of Experts for the Progressive Codification of International Law [1925–1928] (2 volumes, 1972) and League of Nations, Conference on the Codification of International Law (1930) (4 volumes, 1975). In fact hints that the codification of international law might be undertaken by Governments were first bruited in a resolution embodied in the Final Act of the 1907 Peace Conference, calling for the third conference due to be held in 1915 but cancelled owing to the First World War. See Sh. Rosenne (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration; Reports and Documents 411 (2001). The same idea was taken up again in a resolution adopted by the Committee of Jurists who prepared the Statute of the Permanent Court of International Justice. Impressed by the argument that recourse to that Court would be impeded by the absence of a clear statement of what the rules of international law are, that Committee adopted a long resolution on the topic Its central feature was the suggestion to resume the work of the Peace Conferences of 1899 and 1907 under the auspices of the League. Permanent Court of International Justice, Advisory Committee of Jurists, Procès-verbaux of the Proceedings of the Committee 747 (1920, reprint 2006). 93 LNTS 343.

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601

The resolution went on to recite that the Assembly was desirous of increasing the contribution of the League to the progressive codification of international law. The Assembly established the Committee of Experts for the Progressive Codification of International Law, a body of 17 members. That led to the 1930 Codification Conference, which could hardly have come at a worse time. Already the relaxation of tension following the Locarno Treaties of 1925 was showing signs of strain; and the grave financial crisis that swept through Europe and the United States of America, in fact the whole world, was not conducive to effective official action for the codification of international law. The Permanent Court of International Justice was still in its infancy. It was only in 1929, as the economic crisis began, that States had started to take some interest in that new institution. Politicians and diplomats had not yet learned to reconcile themselves to the idea that the judicial settlement of international disputes, at all events of certain types of international dispute, was a viable diplomatic possibility. II The Charter of the United Nations introduced fundamental changes. In the first place, it contains a general prohibition on the threat or use of armed force except in conformity with the provisions of the Charter. One immediate effect of this is that in the Charter regime, the pacific settlement of an international dispute does not appear as an alternative to a settlement imposed through the use of force, as had previously been the case. From this it is natural to take a much closer look at the state of the law itself, not asan alternative to the use of force in the settlement of disputes but as one of the primary methods to achieve the broad aims of the United Nations – the maintenance of international peace and security, and today also peace-making. It is therefore not surprising to find Article 13, paragraph 1, of the Charter imposing on the General Assembly the duty to make studies and recommendations for encouraging the progressive development of international law and its codification. That comes within the framework of the general purposes and objects for which the United Nations exists. To that end, in 1947 the General Assembly adopted the Statute of the International Law Commission, as its principal standing instrument for carrying out this provision of Article 13.4

4

Resolution 174 (II), 21 November 1947. See United Nations, The Work of the International Law Commission, Sixth edition (2004), Sales No. E.04.V.6. And see Sh. Rosenne, ‘The International Law Commission 1949–1959’, 36 BYIL 104 (1960); H. Briggs, The International Law Commission (1965); R.G. Ramcharan, The International Law Commission: Its Approaches to the Codification and Progressive Development of International Law (1977); I. Sinclair, The International Law Commission (1987); C.-A. Fleischhauer in B. Simma (ed.), The Charter

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It conducted the first election of the members of the Commission – who since 1950 serve for a period of five years (previously three) – in 1948. The Commission held its first session in 1949, and has met annually since. After each session it reports to the General Assembly. Here its work is examined in the Sixth (Legal) Committee which submits appropriate resolutions to the General Assembly for adoption. The Commission was originally composed of 15 members – two less than the League’s Committee of Experts for the Progressive Codification of International Law. With 15 members it was a relatively compact body, which met in the intimacy of Salle IX in the old building of the Palais des Nations in Geneva. By stages this was increased, in 1956 to 21 (still intimate) and in 1961 to 25 (also intimate). Twenty years later, in 1981 the General Assembly enlarged it to the present 34, relatively large and unwieldy body.5 Furthermore the Commission has developed a work pattern requiring it to deal simultaneously with quite a large number of disparate topics, in contrast to its earlier practice of limiting its current programme to one major topic on which it would concentrate and one or at the most two ‘minor’ topics (in the quantitative sense). That is leading to what looks like a serious fragmentation of the Commission. For instance, in its 2005 session, apart from the normal Bureau of five members, it set up an enlarged Bureau of 21 members, a Planning Group of 19 members, two drafting committees, one of 12 and the second of 13 members, a Study Group, three Working Groups for different topics and a Working Group on long-term programme of work. On top of that, since 1996 the Commission has envisaged standing consultative groups for each special rapporteur. In the past the Commission has established small occasional working groups for a defined purpose. In 1962 it set up two Subcommissions to meet between two annual sessions of the Commission. This was to settle programmes for the treatment of two major

5

of the United Nations: A Commentary2 on Article 13, vol. I at p. 299 (2002); and generally the literature cited at p. 639 of the Encyclopedia cited in note 1 above. On 28 and 29 October 1997 the United Nations Colloquium on Progressive Development and Codification of International Law took place in New York, in commemoration of the 50th anniversary of the establishment of the International Law Commission. The keynote address was given by a former member of the Commission and now the President of the International Court, S.M. Schwebel, on the influence of the International Court of Justice on the work of the International Law Commission, and the influence of the Commission on the work of the Court. The proceedings of this Colloquium are published in The International Law Commission Fifty Years after: an Evaluation (Sales No. 00.V.3). For a useful compilation of the Commission’s final proposals and the formal instruments that followed them, see A. Watts, The International Law Commission 1949–1998 (1999). On the increases, see General Assembly resolutions 1103 (XI), 18 December 1956, 1647 (XVI), 6 November 1961, and 36/39, 18 November 1981. The General Assembly adopted each of those increases immediately preceding a quinquennial election of members of the Commission.

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topics on which the General Assembly was insisting. The profusion of groups, and above all two drafting committees, all working during the session, must give cause for a pause and a question: will this lead to a fragmentation of the work, all of which originally was intended to be the product of the collectivity as a whole? III A word is required about the Sixth (Legal) Committee of the General Assembly and its role, since this is frequently misunderstood. The Sixth Committee is not a detached scientific body. It is a purely political organ, with responsibility for the political side of those of the legal items on the agenda of the General Assembly as are referred to it, and that is by no means all of them. It is one of the six Main Committees of the General Assembly under Article 98 of the Rules of Procedure (A/520/Rev.15 + Amend. 1, 2). As such, it is identical in nature and exists on a par with the other Main Committees of the General Assembly, dealing in political terms with the items allocated to it. The persons who sit in it are representatives of their countries, as opposed to the Commission whose members – even if responsible officers of their governments – sit in their individual capacity with the formal status of experts, and not as official representatives.6 While in most cases the representatives in the Sixth Committee are trained lawyers (although not necessarily serving in their government’s regular legal or diplomatic service), there is no professional qualification required for participation in that Committee’s work. The representatives’ statements express their government’s position, and give to other States, to the Secretariat, and to the ILC, indications of what the national position is on any given matter. The Sixth Committee, no more than the International Law Commission, is not the general legal adviser of the General Assembly or of any other organ of the United Nations. This does not prevent their advice being sought in appropriate cases, and both have responded to requests for advice from the General Assembly.

6

Nevertheless, since 1979, in Switzerland, where the Commission normally meets at the United Nations European Headquarters in Geneva, the members of the Commission are accorded, ‘by analogy . . . the privileges and immunities enjoyed by the heads of mission to which the Judges of the International Court of Justice are entitled while in Switzerland. These are the privileges and immunities enjoyed by the heads of mission accredited to the international organizations in Geneva. The members of the International Law Commission will be entitled to a special red identity card.’ As far as is known, no other experts members of United Nations subsidiary organs in their individual capacity are granted such extensive privileges and immunities. For the text, see the UN publication mentioned in previous note, vol. I at 261.

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There have always been in the Sixth Committee delegates who were or had been members of the Commission and the Commission’s Chairperson always introduces the annual report and is present for the discussion in the Sixth Committee. When an election of members of the Commission and, to some extent, an election of members of the International Court of Justice (and perhaps other legal bodies) is taking place, the Sixth Committee often becomes a stomping ground for candidates. Many members of the International Law Commission had been representatives in the Sixth Committee both before their election and during their service on the Commission. However, for a very long time there was a distance between the Committee and the Commission, in the sense that, unless the Commission specially requested otherwise, the Sixth Committee was only concerned with the decisions reached by the Commission at its session and not with any partial account of its ongoing work beyond what was included in the report. However, this has changed very radically, especially in the last twenty years or so. Some of the more recent reports have contained long summary accounts of the Commission’s discussions as something distinct from its formal conclusions which it has to report to the General Assembly. Its reports also contain a chapter on specific issues on which comments would be of particular interest to the Commission. All this in turn leads to excessively lengthy reports. In 1988 the Commission raised the question of enabling its special rapporteurs to attend the Sixth Committee’s debate on the Commission’s report so as to give them the opportunity to acquire a more comprehensive view of existing positions, to take note of the observations made and to begin preparing their reports at an early stage. It later added that their presence could facilitate useful informal contacts, exchanges of views and consultations between them and representatives of Governments. The General Assembly accepted that idea.7 This has considerably reduced any distance that might have existed between the Commission and the Sixth Committee, has increased the Commission’s direct influence on the Committee rather than the reverse, and in fact may even have transformed the Commission into a kind of sub-committee of the Sixth Committee. This is being pursued without any notable input into the Commission’s scientific work, which indeed it may even have impaired. But it has also weakened in some major respects the proper type of informed political control which the Sixth Committee should exercise over the Commission. The presence in the Sixth Committee’s debates of many members, including the Commission’s Chairperson and special rapporteurs, has had as one of its consequences a tendency of the Sixth Committee to do

7

Resolution 44/35, 4 December 1989. And see the Report of the Commission on the work of its fortieth session, para. 582, in YBILC 1988/II/2 at 112; and its report on the work of its forty-first session, para. 742, id., 1989/II/2 at 138.

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little more than endorse the Commission’s proposals and not to question their political implications and viability. This in turn has led to a consequent waste of time and money and intellectual effort, not only on the part of the Commission and the Sixth Committee, but also on the part of governments called upon to answer the many questionnaires and other requests for information emanating from the Commission. IV The Commission’s output in terms of completed projects of codification is impressive. For a long time these projects are in the form of draft treaty articles, which become the basic text for a conference of plenipotentiaries or for the Sixth Committee of the General Assembly, and in that way transformed into a convention (treaty) or other formal instrument. In the last decade or so, while the Commission is inclined to maintain this form of presenting its work, it also contemplates other method of consummating the treatment of a topic, for instance the incorporation of the Commission’s proposals in some form of decision by the General Assembly. This retains the essential factor of political approval as the final step in the treatment of a topic by the International Law Commission without necessarily incurring the vast expenditure of time and effort involved in sending the matter to a specially convened diplomatic conference. The type of General Assembly decision which the Commission now contemplates includes a set of guidelines adopted by the General Assembly. One of the significant consequences of the political consummation of a topic is that the Commission does not normally suggest a preamble for the final instrument, but leaves that to the diplomatic action. The most it might do is to suggest elements which, in its opinion, the preamble should include. This emphasizes that the final product is not a detached scientific work but a full-fledged diplomatic instrument, to be treated as such. Furthermore, the Commission’s preferred method of presenting its conclusion in the form of draft treaty articles (a form that is also suitable for guidelines) requires a high level of drafting skill in current multilingual drafting practices of the United Nations (the Commission habitually drafts its texts in English, French and Spanish). That leads to language patterns that are general, often axiomatic, in form. In addition, the Commission usually refrains from indicating whether a given proposal is ‘codification’ or ‘progressive development’ within the meaning of its Statute. Currently it is the International Court of Justice or less frequently an arbitral tribunal that applies a rule prepared by the Commission, and in doing so it might state or imply that it sees the formula as a codification. Following this, it has become a standard practice for the diplomatic conference to include in the preamble a provision to the effect that the rules of customary international law will continue to govern questions not regulated

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by the provisions of the convention.8 These factors have had as one effect a noticeable, and welcome, tendency of averting any petrifaction of the law or of State practice resulting from the codification – frequently adduced as an argument against the codification of the law. The United Nations publication on the Commission cited in note 4 above contains the texts of no less than 22 multilateral conventions and other instruments produced through the Commission’s work up to the end of 2003. These include • the 1958 Geneva Conventions relating to the Law of the Sea (5 instruments)9 since largely embodied in the much broader United Nations Convention on the Law of the Sea of 1982;10 • the 1961 New York Convention on the Reduction of Statelessness,11 • the 1961 Vienna Convention on Diplomatic Relations (3 instruments),12 • the 1963 Vienna Convention on Consular Relations (3 instruments),13 • the 1969 New York Convention on Special Missions (2 instruments),14 • the Vienna Convention on the Law of Treaties (1969),15 • the 1973 New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents,16 • the 1975 Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character,17 • the 1978 Vienna Convention on Succession of States in respect of Treaties,18 • the 1983 Vienna Convention on Succession of States in respect of State Property, Archives and Debts,19

8 9 10

11 12 13 14 15 16 17

18 19

On this, see Sh. Rosenne, Developments in the Law of Treaties 1945–1986 at 7 (1989). 516 UNTS 205; 450 ibid. 11; 559 ibid. 285; 499 ibid. 311; 450 ibid. 169. 1833 UNTS 3; UN, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, The Law of the Sea: United Nations Convention on the Law of the Sea; Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea with Index and excerpts from the Final Act of the Third United Nations Conference on the Law of the Sea (1997); Sales No. E.97.V.10. 989 UNTS 175. 500 UNTS 95, 223, 241. 596 UNTS 261, 469, 487. 1400 UNTS 231, 339. 1155 UNTS 331. 1035 UNTS 167. Not yet in force. See United Nations Conference on the Representation of States in their Relations with International Organizations of a Universal Character, II Official Records (doc. A/CONF.67/16). 1946 UNTS 3. Not yet in force. See United Nations Conference on Succession of States in respect of State Property, Archives and Debts, II Official Records (doc. A/CONF.117/14).

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• the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations,20 and • the 1997 New York Convention on the Law of the Non-navigational Uses of International Watercourses.21 • In 2004 the General Assembly adopted the New York Convention on the Jurisdictional Immunities of States and their Property (A/RES/59/38). In addition the Commission has prepared a draft declaration on the rights and duties of States which was not adopted by the General Assembly (1949), a formulation of the Nurnberg principles (1950) since absorbed into the Draft Code of Crimes against the Peace and Security of Mankind (1954, 1996), drafts on statelessness (1954), Model Rules on Arbitral Procedure adopted by the General Assembly in resolution 1262 (XIII), 14 November 1958, draft articles on the most-favoured-nation clause (1978), a topic which arose out of the Commission’s examination of the law of treaties but which has led to no conclusive action by the General Assembly, draft articles on the status of the diplomatic courier and the diplomatic bag not accompanied by a diplomatic courier (1989), which also did not lead to any conclusive action by the General Assembly, and a draft statute for the international criminal court (1994), a predecessor to the Rome Statute of the International Criminal Court (1998), and draft articles on the nationality of natural persons in relation to the succession of States (1999).22 The Commission has twice rendered an opinion to the General Assembly, in the form of a report: in 1951 on reservations to multilateral conventions parallel to the advisory opinion of the International Court on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,23 and in 1963 on extended participation in general multilateral treaties concluded under the auspices of the League of Nations, opening up to accession certain of those treaties which remain of international interest.24 Both reports

20

21 22 23

24

Not yet in force. See United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations, II Official Records (doc. A/CONF.129/15). In resolution 52/153, 15 December 1997, adopted on the agenda item concerned with the decade of international law, the General Assembly recalled that Convention and its impact on the practice of treaties concluded between States and international organizations or between international organizations, and encouraged States and relevant international organizations to consider ratifying or acceding to the Convention at an early date. General Assembly resolution 51/229, 21 May 1997. Not yet in force. 2178 UNTS 3. ICJ Rep. 1951, 15. The Commission in 1993 decided to include in its agenda, subject to the approval of the General Assembly, the topic of the law and practice of reservations to treaties. This has resulted in a long set of guidelines, and the work is still continuing. For details, see my work cited in note 8 above at 363 note 20 (1989); and M. Hardy, ‘The United Nations and General Multilateral Treaties concluded under the Auspices of the League of Nations’, 39 BYIL 26 (1963).

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related to aspects of the law of treaties, then on the Commission’s agenda. The Commission has also once directly drafted a convention at the specific request of the General Assembly, the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents – part of the reaction of the United Nations to international terrorism (cf. General Assembly resolution 2780 (XXVI), 3 December 1971). The Commission adopted an accelerated procedure for dealing with this. For later completed topics see the Postscript to this essay. V All the instruments concluded up to that 1973 Convention have entered into force. Only some of the conventions concluded after that date have entered into force. This is an aspect to be examined. A striking feature of this work is that much of it was accomplished during the period of high international tension, the Cold War, and that more recently there has been a marked slowing-down of the Commission’s output and in its acceptance. All the instruments which were adopted in the Cold War period on the basis of drafts put forward by the ILC have entered into force. Later instruments, established as that level of tension began to subside, are slower in entering into force. Can any explanation be offered for this? The important instruments adopted in the first twenty-five years of the United Nations codification effort are the Geneva Conventions on the law of the sea (still in force as between their parties who are not parties to the 1982 Convention), the series of Vienna and New York instruments on diplomatic and consular relations, and the 1969 Vienna Convention on the law of treaties. These had all entered into force with significant participation by 1980. In terms of international relations, they all have one thing in common. Each concerns aspects of international relations in which the Super-Powers in the very nature of international relations come into direct almost daily physical contact with each other, and not always on amicable terms. Those instruments therefore all supply a basic agreed code for their mutual contacts in periods of high tension and suspicion. True, that code was very minimal and its rules, sometimes couched in language of studied ambiguity, could not always prevail over what one or other of those Powers regarded as its higher interests of national security – witness the famous ‘bumping’ of warships in the Black Sea.25 That codification met a pressing international need. It is an 25

That in the end led to the Jackson Hole Agreement of 1989 on the meaning of innocent passage in the law of the sea. For the Jackson Hole Agreement, officially entitled Uniform Interpretation of Rules of International Law Governing Innocent Passage, see 89 Department of State Bulletin 25 (1989); and ÇÂÒÚÌËÍ åËÌËcÚÂÒÚ‚‡ àÌoÒÚ‡ÌÌ˚ı ÑÂÎ CCCP No. 21 at (15 November 1989). It is difficult to imagine a more land-locked place for the conclusion of an agreement relating to the law of the sea than Jackson Hole, Wyoming. On that ambiguity, see

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interesting commentary on that aspect of codification that when the Russian Permanent Mission in New York complains to the American authorities about some violation of its rights and privileges, it very frequently refers to the Vienna Convention on Diplomatic Relations alongside the Headquarters Agreement, although of course official approaches to the United Nations itself have to be based also on the Headquarters Agreement. In this temporal context, at the height of the Cold War, some other major international instruments were concluded primarily between the two SuperPowers and their NATO and Warsaw Pact allies. For the control of nuclear weapons – probably the most dangerous sector of their relations and possible direct contacts, especially after the Cuban missile crisis of 1962 – we find a series of major treaties, including the Partial Test-Ban Treaty of 1963, banning nuclear weapon tests in the atmosphere, in outer space, and under water,26 followed in 1968 by the Treaty on the Non-Proliferation of Nuclear Weapons.27 In the same period the major treaties relating to Outer Space were concluded and entered into force – another area of direct contact, fortunately pacific.28 There is also a series of what are technically non-binding instruments of a similar character, in the sense that they deal with aspects of international relations where the two major military and ideological groupings come into direct contact. These include the Declaration on Principles of International Law governing Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted in General Assembly

26 27 28

W.J. Aceves, ‘Ambiguities in Plurilingual Treaties: A Case Study of Article 22 of the 1982 Law of the Sea Convention’, 27 Ocean Development and International Law (1966). In fact the ambiguity – which in that article partly results from formal translations made by the Division of Language Services of the U.S. Department of State – may be less than the author suggests. As literal translations, that may be so. As substantive translations, expressing the same thought in appropriate terms, often requiring some rewriting of the original text, this is less obvious. The real; ambiguity derives from the unexplained presence in the Russian text of the little word Ë [and ] between the equivalents of the English ‘when necessary/having regard to’. There is no equivalent in any other of the six authentic texts of that Convention. Although the Conference Drafting Committee was cautious in dealing with sensitive consensus texts which were presented to it (including those on straits used for international navigation), it drew attention to what it considered to be major discrepancies. It is not clear how this discrepancy over the word Ë remained. 480 UNTS 43. 729 UNTS 161. These are conveniently collected in the United Nations publication United Nations Treaties and Principles on Outer Space (1994), doc. A/AC.105/572. These include the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of 1966, 610 UNTS 205; the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space of 1967, 672 UNTS 119; the Convention on International Liability for Damage Caused by Space Objects of 1971, 961 ibid., 187; the Convention on the Registration of Objects Launched into Outer Space of 1974, 1023 ibid., 15; and the Agreement Governing the Activities of States on

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resolution 2625 (XXV), 24 October 1970 – of Soviet initiative; and the socalled Helsinki Final Act – the Final Act of the Conference on Security and Co-operation in Europe of 1975, also, it is believed, of Soviet initiative.29 It is difficult to square all this prodigious and creative legal output with presaging any social catastrophe. More down to earth than anything attempted by the League of Nations, even when dealing with the symbiosis of ideologies it aimed precisely at avoiding any social catastrophe, an aim which to all appearances it has achieved. I have noted elsewhere that the tensions of the Cold War do not appear to have had an adverse effect on the working of the International Court (they may have had an effect on the willingness of States to have recourse to the Court, but that is another matter).30 The same observation would apply to the work of the International Law Commission. So long as the major tensions were between the two Super-Powers and their allies, the Commission – along with other organs and bodies – performed valuable low-profile services in creating an agreed legal infrastructure for their points of contact. That is legal diplomacy at its best. VI There is one major difference requiring notice between the instruments produced after treatment by the ILC and instruments produced in some other way. The Statute of the ILC requires its drafts to be accompanied by a commentary. The Commission has consistently interpreted this as meaning a commentary article by article, an exposé des motifs, much the same as is required by national legislatures to accompany draft legislation. This commentary is an invaluable aid, in fact indispensable aid to understanding the thrust and the purport of any given provision. No such requirement exists for instruments produced through other organs of the United Nations or, indeed, of other international public or scientific organisations. It is frequently said that when the ILC’s draft articles become transformed into a convention, the commentaries ‘disappear’, leaving only the black letter texts. This is misleading. There is an important illustration of this in the North Sea Continental Shelf cases, where the Court examined at length the work of the International Law Commission on the continental shelf during its early work on the law of the sea.31 The judgment on the merits of the Military and Paramilitary Activities in and against Nicaragua case supplies an even more

29 30 31

the Moon and other Celestial Bodies of 1979, 1363 ibid., 3. Together these are virtually a codification of the law governing activities in outer space. See the Encyclopedia cited in note 1 above, vol. II at 693. ‘The Cold War and the International Court of Justice: A Review Essay of Stephen M. Schwebel’s Justice in International Law’, 35 Virginia J.Int’l L. 669 (1995). ICJ Rep. 1969, passim.

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outstanding instance of reliance by the Court on the ILC’s commentary in its final report on the law of treaties.32 It is clear, for instance from Judge Schwebel’s dissenting opinion in the 1995 judgment concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility) that in its deliberations where a text originating in the ILC has been relevant, the Court has not overlooked the commentaries.33 The same can be said of paragraph 123 of the Court’s judgment of 25 September 1997 in the Gab‘íkovo-Nagymaros Project case, where the Court relied on the ILC’s Commentary to its draft articles on the succession of States in respect of treaties.34 A question that has long puzzled me is why the conventions produced through the ILC are always accompanied by an authoritative commentary – not necessarily part of the travaux préparatoires – while other conventions, of no less general importance, are not. As for the ILC’s commentaries, true, it is customary for the United Nations Secretariat to include them in the Official Records of the Conference, and to that extent they are easily available to the researcher who makes use of those Official Records, and today they are available on the ILC’s website accessible through the UN home page. But is that enough? If the negotiators of a convention do not wish for the records of the negotiations to be made public, as was the case, for example, at the time for much of the Third United Nations Conference on the Law of the Sea, all they have to do is not to hold formal meetings. In that particular case, many of the papers and suggestions advanced in informal meetings have been published through private enterprise, and at least one University has produced what it terms a Commentary, making full use of those informal documents.35 Actually that Commentary is more what is sometimes called a legislative history, which becomes indispensable for those who have to interpret the instrument itself. This is a matter which deserves more attention than it has been given. True, there is a doctrinal controversy over the significance of the preparatory works for purposes of interpretation of the instrument. Many people think that

32 33 34

35

ICJ Rep. 1986, 14, 100 (para. 190). ICJ Rep. 1995, 6, 28. ICJ Rep. 1997, 7; see also the Land and Maritime Boundary between Cameroon and Nigeria case, ICS Rep. 2002, 303, 430 (para. 265); and the judgment of 19 December 2005 in the Armed Activities on the Territory of the Congo (Uganda) case (para. 293). For the collection of formal and informal documents, see R. Platzöder, Third United Nations Conference on the Law of the Sea: Documents, 18 volumes (1982–1988). And see University of Virginia, Center for Oceans Law and Policy, The United Nations Convention on the Law of the Sea: A Commentary, six volumes (1985–2003). In the meantime the Department of Oceans Affairs and the Law of the Sea of the Office of Legal Affairs of the United Nations Secretariat has produced a series of brochures assembling the legislative history of selected parts of the Convention, based for the most part only on what appears in the Official Records of the Conference. The same occurred at the United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks, which held six sessions between 1993 and 1995. See J.-P.

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this controversy is more theoretical than real, because of the ambivalent attitude towards this material of international tribunals, especially the International Court. Be that as it may, adequate knowledge of this material performs other functions and meets other needs than resolving problems of interpretation. It is virtually indispensable for governments when they have to take a position on the text, for instance in the internal ratificationprocess. The Secretariat has shown that it is can produce excellent dispassionate commentaries when requested to do so.36 I venture to suggest that it should become part of routine conference procedure, at all events when the conference has taken place in formal sessions, to request the Conference Secretariat to produce this kind of commentary, really as a matter of form. Where for political reasons the negotiating States do not wish for an officially produced commentary to be made, universities and other research institutes should be encouraged to take the matter in hand. VII I would like now to return to the question, why the later conventions produced on the basis of the work of the ILC have not entered into force and, indeed, why for some of them the political decision was taken not to proceed further with them. Two explanations can be advanced for this, one a matter of legal technique, and one more clearly political. Some of the instruments that have been produced have been found to be unnecessary, at all events in the form in which the topic emerged from the codification process through a diplomatic conference. The outstanding example of this is the 1986 Convention on the Law of Treaties between States and International Organizations or between International Organizations. Much of this is unchanged repetition of provisions already included in the major Vienna Convention on the Law of Treaties of 1969. The ILC correctly set about examining each one of those provisions to determine its applicability, changed or unchanged, to international treaties to which an international intergovernmental organization is at least one party. Indeed, the special procedure adopted for that Conference, by which the discussion was limited to those provisions which

36

Lévy and G.G. Schramm, United Nations Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks: Selected Documents (1996). Examples of this are the Secretariat’s Commentary on the Draft Convention on Arbitral Procedure adopted by the International Law Commission at its Fifth Session, UN doc. A/CN.4/92, Sales No.: 1955.V.1 (1955); its Convention on the Nationality of Married Women: Historical Background and Commentary, doc. E/CN.6/389, Sales No. 62.IV.3 (1962) and its Commentary on the Single Convention on Narcotic Drugs 1961 prepared by the Secretary-General in accordance with paragraph 1 of ECOSOC resolution 914 D (XXXIV) of 3 August 1962, Sales No. E.73.XI.1 (1973).

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differed from the 1969 Convention, confirms this.37 The project could easily have been consummated in a short protocol, or even a non-binding instrument, setting out necessary changes. It did not require a full-blown diplomatic conference leading to a treaty requiring ratification. In most countries ratification means a decision by the government followed by some parliamentary action. A topic like the law of treaties, lawyers’ law if ever there was one, is an unlikely matter for a cabinet and a legislature to examine and decide – and this is no doubt one explanation of why it took so long for the 1969 Convention to enter into force. Likewise, the matter of the diplomatic courier and the unaccompanied diplomatic bag certainly needs an agreed arrangement to keep pace with the major changes in civil aviation and the introduction of unaccompanied diplomatic mail in sealed lockers under the control of the captain on long-flying national airlines with the possibility of their unanticipated landing in a third country. But did this require a draft convention running to 32 articles together with two protocols, adopted by the Commission in 1989, only to be buried by the General Assembly as recently as 1995?38 Was it really necessary to consume so much time and energy on this topic in the Commission and later in the Sixth Committee, leaving out of consideration the expense involved? Is it really necessary, from the point of view of States, for the Commission, for the third if not fourth time in the fifty years of its existence, to take up again, and in isolation, the topic of reservations to treaties, merely because of dissatisfaction, at least in some academic and non-governmental circles, at reservations made by one State to a given convention? In the late 1950s an attempt was made to refer to a single conference the two closely related topics of diplomatic and consular relations. That attempt failed after the special rapporteur on consular relations, Professor ¥ourek, was appointed judge ad hoc for a case in the International Court heard in 1959. It was accepted at the time that it was not really necessary to have two conferences on those topics, one in 1961 and the second so shortly after, in 1963.39 There has been no repeat of this reticence to avoid unnecessary duplication of effort.

37 38

39

See on this my work cited in note 8 above at 384 (1989). In decision 50/415, 11 December 1995, the General Assembly ‘wishing to pay tribute to the valuable work done by the International Law Commission on the draft articles on the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier and of the draft protocols thereto, decided to bring the draft articles prepared by the Commission to the attention of Member States, together with the observations made by Member States in written form or orally during the debates in the Sixth Committee, including the report of the Vice-Chairman of the Sixth Committee at the forty-seventh session of the General Assembly, and to remind Member States of the possibility that this field of international law and any further developments within it may be subject to codification at an appropriate time in the future’. Cf. the Report of the Commission covering the work of its eleventh session, 20 April–26 June 1959, paras. 27, 39, YBILC 1959/II at 109, 111.

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The question that arises is whether the Sixth Committee exercised the proper political control over these codification efforts. How does it come about that the General Assembly endorses projects such as these emanating from the Commission? To some extent an answer can be found in an element of administrative inertia. It may also be due to the fact that for many years now the Commission’s report becomes available only after the annual session of the General Assembly has begun, so that delegations do not, and cannot, receive adequate and properly considered instructions from their home authorities. The Commission is a well qualified body and if it considers that a given topic requires its attention, why should delegations think otherwise? It is here that the Sixth Committee should step in and look more critically at what the Commission is proposing, how its work on a given topic is taking shape, and how it should proceed. The examination in the Sixth Committee of the first draft of the ILC’s draft articles on a given topic should provide the proper point for this type of critical examination and control. At the same time, one can observe that neither the Commission’s special rapporteurs, nor the Commission itself, always pay sufficient attention to the debates which lead up to the decisions of the General Assembly. For example, the reports on the thorny topic of international liability for injurious consequences arising out of acts not prohibited by international law, which the General Assembly at its 28th session in 1973 thought it desirable that the Commission should study at an appropriate time, and on which the Commission commenced work in 1978, do not mention the close vote in the Sixth Committee on that issue, or even attempt to draw any conclusions from that.40 The second reason for the rallentendo in the acceptance of the Commission’s proposals – the political reason – is to be sought in the changing pattern of international relations. While the Commission’s early work attacked topics the regulation of which was a matter of interest to the protagonists in the Cold War, later work reflects the more latent and less dangerous polarities of North/South tensions, where the ‘South’ holds the numerical majority in the General Assembly and in a diplomatic conference, all now generally operating by consensus as the process for adopting decisions. The texts pro-

40

The Sixth Committee, at its 1415th meeting on 15 October 1973, on a roll-call vote of 42:40:21 adopted that proposal. Since the Commission commenced work on the topic, R. Quentin-Baxter was the first special rapporteur. He submitted five reports between 1980 and 1984. He was succeeded by J. Barboza who submitted 12 reports between 1985 and 1996. In 1997 the Commission appointed P.S. Rao as special rapporteur. In a period of 20 years and after receiving 17 reports the Commission has adopted some scattered articles on part of the topic, but no comprehensive first draft. Under Rao’s guidance it adopted in 2001 a set of draft principles on the allocation of loss in case of transboundary harm arising out of hazardous activities. It recommended that the General Assembly endorse those draft principles by a resolution and urged States to take national and international action to implement them.

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duced by the Commission and the Conferences on the whole did not meet the requirements of many States of the northern hemisphere. The Convention on the Relations of States with International Organizations of a Uni-versal Character, for example, goes beyond what has been accepted by several important States, the United Nations, and other international intergovernmental organizations which have concluded host agreements with each other, in particular the specialized agencies of the United Nations system. VIII The existence of these codifications has had one unanticipated effect, which some regard in a negative light: the teaching of international law is undergoing a very radical change. For example, it is no longer necessary, in many universities, for students to spend much time on such a core topic as the law of treaties. It is enough if they know that the Vienna Conventions exist, and to some extent exceptional if they know how to read them, with their commentaries. The same goes for other major branches of the law, including diplomatic and consular relations (perhaps the main topic which the general practising attorney is likely to encounter in his general work), and even the law of the sea. And what will happen to the law of international responsibility, on which so much of the specialized branches of the law rests? The details of these codified topics are being left to specialists. This leaves the average student – and many professors – free to put their minds and talents to the newer topics that are coming to the fore: human rights, the environment, globalization, the very idea of the rule of law in national and in international affairs, the modern business law for worldwide market economy – to mention but a few. From one point of view this is not good. A legal adviser of a major European Ministry for Foreign Affairs once told me that he had encountered difficulties in finding for his office new recruits who were familiar with the ins and outs of the law of treaties, the very heart of the work of a Foreign Ministry’s legal department and the rock bottom foundation for every other branch of general and specialist international law. The Institute of International Law, which at Strasbourg in 1997 adopted a major resolution on the teaching of international law, had great difficulty in having the law of treaties included in what it called ‘the foundation course on public international law’, and nothing like it in the parallel course for private international law.41 Recently a prominent professor of international law in the United States, specializing in human rights law, told me that he did not require any knowledge of the law of treaties from his students, yet at the same time they could handle the problem of reservations to human rights conventions. I wonder how!

41

Annuaire de l’Institut de Droit international, vol. 68–II.

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There are signs that this lack of basic theoretical knowledge of the law of treaties may even have reached into the International Law Commission. In its draft resolution on reservations to multilateral treaties which it adopted in 1997, and on which the General Assembly is seeking the views of Governments, it refers to ‘normative multilateral treaties’. This is an almost unintelligible expression for the practitioner, and in fact, even if it was in vogue at the beginning of the century in the distinction made by Triepel between the Vertrag (traité-loi) and the Vereinbarung (traité-contrat), has long ceased to have practical value for the codification of the law of treaties, and in particular was rejected by the International Law Commission as a possible element in the codification of the topic. Another example: the 1982 Convention on the Law of the Sea is sometimes described as a ‘normative treaty’.42 Is it? Part of it is certainly codification. Part of it is certainly progressive development, for instance the introduction of the concept of the archipelagic State or the exclusive economic zone, or the new definition of the continental shelf for juridical purposes. It is the constituent instrument of at least two major international organizations, the International Sea-Bed Authority and the International Tribunal for the Law of the Sea. It imposes charges on its States Parties, partly directly and partly indirectly, through the United Nations budget and those of the ISBA and the Tribunal. It sets up new administrative bodies, notably the Meeting of States Parties. It is an umbrella instrument for a whole series of what can only be regarded as administrative measures, for instance in relation to certain major aspects of navigation, of charting and mapping, for the enforcement of measures for the protection of the marine environment, and regarding jurisdiction over ships at sea. In some respects even the codification of the law of the sea as embodied in the 1958 Conventions and thence transcribed into the 1982 Convention can be seen as a commodity agreement, regulating the supply of fresh fish, or the resources of the continental shelf or now the mineral nodules of the deep ocean floor. No less an authority than Charles de Visscher saw a likeness between the Geneva Conventions on the Law of the Sea of 1958 and commodity agreements.43 In short, the Law of the Sea Convention defies all theoretical classification of treaties.

42

43

A. de Marffy-Mantuano, ‘The Procedural Framework of the Agreement Implementing the 1982 United Nations Convention on the Law of the Sea’, 89 AJIL 814 (1995). The International Court has recognized that the ‘character’ of a treaty can raise specific problems of interpretation. Legality of the Use by a State of Nuclear Weapons in Armed Conflict advisory opinion, ICJ Rep. 1996–I, 66, 75 (para. 19). But that is another matter altogether. Ch. De Visscher, Théories et réalités en droit international public 182 (3rd ed., 1960).

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IX In one sense it can now be said that the International Law Commission has practically covered the whole ground of accepted general international law, and has done its work well. It appears to be moving out of the realm of codification, concentrating essentially on the lex lata, into that of progressive development, working de lege ferenda. Here it comes up against two obstacles. One is serious competition from ad hoc bodies which the General Assembly usually establishes when it wants to work de lege ferenda. The second is that much of the work on new law today must be interdisciplinary, involving different branches of law, and even ‘multi-interdisciplinary’, involving other branches of science and human activity. In that context the question even arises whether the Commission is the proper body to concentrate on the progressive development of the law, apart from elements of progressive development as arise naturally in the course of a codification process, where there is a real desire and need to introduce corrections into the received law. The Commission is not alone in facing this dilemma. The two non-governmental organizations specifically created to deal with the codification and development of the law – the Institute of International Law and the International Law Association – also face it and are looking for new ways of approaching these topics. The Institute, for example, at its session in Strasbourg 1997 has asked its Commission des Travaux, its Programme Committee, to conduct feasibility studies on two new branches of law which are interdisciplinary par excellence, genetic engineering44 and telecommunication. In 2006 the Commission decided to include in its long-term programme of work the topic of Protection of personal data in the transborder flow of information.45 It will be interesting to see how the Commission will handle the technicalities of the modern flow of information. X Let us now return to the doctrine advanced by Toynbee which heads this essay. Taking a look at the major codifications of national law, at first sight support for his pessimism can be found both in international and in national experiences. The first great national codification is the Code Napoléon, completed in 1807. Seven years later Napoleon’s France finally collapsed in the Battle of Waterloo (1814) and Europe was reorganized in the Congress of Vienna

44 45

Cf. the Universal Declaration on the Human Genome and Human Rights, adopted by the 29th session of the General Conference of UNESCO on 11 November 1997. Report of the International Law Commission, 58th session (A/61/10) Ch. IV (2006).

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(1815). Yet can it seriously be said that in producing that work France was in the penultimate age before a social catastrophe, long after the peak of achievement in jurisprudence had passed? If anything, France reached its peak in the century between the Congress of Vienna and the catastrophe of 1914. And what about the other side of the Rhine? The Bürgerliches Gesetzbuch was completed in 1900 – between the so-called Peace Conferences of 1899 and 1907. In a sense one could say that this did presage a social catastrophe, not only for Germany but for Europe and for the world as a whole, in the cataclysm of 1914 and the ruinous collapse of aristocratic European civilization of legitimate monarchies as it had developed in the age of European imperialism. But it can hardly be said that its replacement half a century later by the modern technological revolution accompanied by increasing independence and democratization all over the world (although to different degrees and at different paces) puts that great codification ‘on the run in a losing battle with the ungovernable forces of destruction’, in Toynbee’s words. We can say the same about the attempts at codification of the AngloAmerican common law – codification which, not on the whole being in statutory form easily to be reproduced in pocket books, is not so well known as the European civil law codifications. In the United States this is achieved largely in a more informal way through the Restatements of the American Law Institute and the uniform laws adopted by the different states of the Union. In the British Empire this was largely achieved through the India Office with the great codes of India, and through the Colonial Office with the great codes produced for the colonial and other overseas territories, but not accompanied by anything similar in the United Kingdom itself. As in the civil law countries, the greatest jurists of the day have worked on producing these instruments, which in many instances have survived the break up of the British Empire and Commonwealth, and form the core of the law of many of the new States that have arisen since 1945. The codification of international law, whether through the International Law Commission or through other mechanisms, is showing similar results. It has withstood the buffeting of history. Some of the Hague Conventions of 1907, progressive development in their day, are now regarded as rules of customary international law, and that after two world wars. The 1930 Conference did not produce much in the way of treaties, but what it did produce, in the sphere of nationality still retains some general interest, while its work on the law of territorial waters was in fact for the most part incorporated in the later work of the ILC and the Geneva Conventions of 1958 and thence in the Convention of 1982. Even in the sphere of state responsibility, where the 1930 Conference was at its weakest, the negative results, at first continued by the United Nations, paved the way for the more correct orientation adopted by the ILC in 1963, leading to the draft articles on internationally wrongful acts of States adopted in 2001. Is that really a sign of decadence?

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I do not know what led Toynbee to make his pessimistic remark. I do not see that it has any relevance for the codification of international law. In fact there is another way of looking at codification. In the Oxford Companion to Law we can read: Two major factors have operated in favour of codification, the desire to rationalize a more or less chaotic volume of pre-existing law and to provide a legal system with a fresh basis for development, and the desire to provide a unifying element for a newly created or developing state by creating a unified legal system.46

That is the correct way of looking at the codification of international law as it has evolved during the last fifty years. Codification, rationalizing a chaotic volume of pre-existing law, is creating a unified legal infrastructure for the new international community of nations slowly taking shape. At the same time a word of warning: ‘Good codes are useful, but the relationships between laws and society are too complex for codification to spark the enthusiasm and rallying cries of earlier eras.’47 Postscript Since this was written, the International Law Commission has completed its study of several other topics, as follows: Responsibility of States for Internationally Wrongful Acts.48 Prevention of Transboundary Harm from Hazardous Activities.49 Diplomatic Protection.50 International liability for injurious consequences arising out of acts not prohibited by international law (International liability in case of loss from transboundary harm arising out of hazardous activities).51 • Unilateral Acts of States.52 • • • •

46 47 48 49 50

51

52

The Oxford Companion to Law 237 (D. Walker, ed., 1980). The Oxford Companion to American Law 121 (K.M. Hall, ed., 2002). Report of the International Law Commission, 53rd session (A/58/10) (2001) Ch. IV. Ibid. Ch. V. Report of the International Law Commission, 58th session (A/61/10) Ch. IV (2006). These draft articles are aligned on those on the Responsibility of States for Internationally Wrongful Acts. In resolution A/61/35, 4 December 2006, the General Assembly noted the importance of the topic and decided to include it in the provisional agenda of the 62nd session (2007). Ibid. Ch. V. In resolution A/61/36, 4 December 2006, the General Assembly took note of the principles adopted by the International Law Commission on the topic, which it annexed to the resolution, and decided to include the topic in the provisional agenda of the 62nd session (2007). Ibid. Ch. IX. The Commission did not give the customary two readings to these ‘Guiding Principles’, and did not request Governments to comment on them. Governments were twice asked for information on their practice in connection with unilateral acts. In resolution

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• Fragmentation of International Law; difficulties arising from the diversification and expansion of international law.53 In the course of this work, the Commission has adopted new forms for its final draft articles. For the topic of Unilateral Acts of States it adopted a set of ten guiding principles with commentaries relating to unilateral declarations of States capable of creating legal obligations and commended those guiding principles to the attention of the General Assembly. For the Fragmentation of International Law the Commission took note of 42 conclusions reached by its Study Group and commended them to the attention of the General Assembly. These conclusions were based on an analytical study prepared by the Study Group’s Chairman, summarizing and analysing the phenomenon of ‘fragmentation’, taking into account a series of studies prepared by different members of the Study Group and the Group’s discussions over a period commencing in the year 2000. Work of this nature does not come within either the codification of international law or its progressive development as those terms are defined in the Commission’s Statute, and there are doubts whether a topic of that nature, which some might find to be excessively doctrinal, are appropriate for study by a practice oriented body such as the International Law Commission. The Commission reported regularly on the progress of this work in its relevant Reports to the General Assembly.

53

A/61/34, 4 December 2006, the General Assembly took note of the Guiding Principles and commended their dissemination. Ibid. Ch. XII. And see the remarkable Analyticial Study prepared by the Chairman of the Study Group, M. Koskenniemi, Doc. A/CN.4/L.682, to be included in the appropriate volume of the Commission’s Yearbook for 2006. The Commission did not give the customary two readings to these Conclusions, and did not request Governments to comment on them. In resolution A/61/34, the General Assembly took note of the forty-two conclusions together with the analytical study on which they were based.

33 THREE CENTRAL ELEMENTS OF MODERN INTERNATIONAL LAW

Wherever I turn in today’s international law I find perplexity, and the more I try to rid myself of that perplexity, the greater it grows. The distance between what received law postulates, what is taught, and what one might expect, and how international law is applied in practice is enormous, almost unbridgeable. We frequently see glib statements in the press and other media, that this or that action of this or that State or other entity is or is not a violation of international law, but when you probe more closely, when you have got hold of the facts, can you be so sure? I doubt it. The Romans taught us: Da mihi factum, dabo tibi jus. It is well to keep this in mind. In my General Course in the Academy of International Law in 2001,1 I attempted to present a broad survey of international law today as a full time practitioner sees it. The perplexities are many, in fact they are everywhere. There is hardly a rule that is clear cut and not open to discussion, whether as to its existence, or as to its scope, or as to its applicability. There are two main reasons for this. A major cause for perplexity, and probably the more important, is that the enforcement machinery of international law lags far behind the substantive rules. In the nineteenth century many people thought that some features of the internal organization of the state could be adapted for the international society, and indeed in some peripheral matters this has been done. But the major features of the modern State, the central position of the legislature enabling reasonably quick enactment of new laws if urgently required, binding on all within the jurisdiction, coupled with the centralized control of all the armed forces in the State and the compulsory jurisdiction of the courts, still eludes the international community. Three times in the twentieth century, in 1907, in 1920, and in 1945, the international community rejected proposals for the compulsory jurisdiction of certain types of international disputes – roughly defined as ‘legal disputes’. The first was at the Second Hague Conference of 1907 when efforts were made to strengthen the powers of the Permanent Court of Arbitration over legal disputes and to establish a standing Court of Arbitral Justice. The second was when the

1

‘The Perplexities of Modern International Law: General Course on Public International Law’, 291 Hague Collected Courses 13 (2001), revised and republished as The Perplexities of Modern International Law (2004).

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Permanent Court of International Justice was established in 1920, and the third was in 1945 when the present International Court of Justice was established as a principal organ and the principal judicial organ of the United Nations. In all those instances, the international community decided to maintain the traditional system of international arbitration requiring specific consent of the parties before any arbitral or judicial settlement of a dispute could be undertaken. This meant that the compulsory settlement of disputes was not to be a condition of membership in the political organization of the international community – first the League of Nations, and now the United Nations. We must note, however, a significant change that is taking place now. Sometimes major international treaties insist on compulsory judicial settlement of disputes arising out of them, and do not permit any reservations. The outstanding illustrations are the 1982 Convention on the Law of the Sea, and the basic instruments of the World Trade Organization, where too a form of compulsory judicial settlement is required. These are significant innovations, and I think it can safely be said that they have proved their worth and are now firmly established in international practice. The treaty is today the main international vehicle for stating what the law is and for introducing changes in accepted rules of international law. Treaties are always the fruit of negotiation and embody compromises. They differ from legislation, which also usually embodies compromises but which ultimately is imposed by the legislature and becomes binding on all, since a treaty is binding only through the individual consent of each of its parties. A new rule of treaty law might in the course of time become also a rule of customary law if there is sufficient State practice to satisfy the requirements for the emergence of a rule of customary law, but care is needed before asserting that the customary rule has become binding on a State that has refused to become a party to that treaty – the persistent objector. Much written international law, what I like to call the black letter texts of the law, being the fruit of political compromises, is frequently couched in ambiguous language, with the deliberate intention of letting the future take care of itself. I have seen a conference nearly break up over the difficulty of translating a carefully negotiated compromise using the ambiguous English word ‘should’ which in its context could not be translated into Spanish and satisfy the Latin American delegations. This is accentuated by the contemporary requirement that the documents have to be drafted and adopted in a plurality of languages. In the founding conference of the United Nations at San Francisco in 1945, it was deliberately decided that the United Nations was not to have legislative powers, least of all the General Assembly and all other organs, principal and subsidiary, whose powers are limited to making recommendations.2

2

See for instance the refusal of Committee IV/2 to discuss a Philippines proposal to vest legislative authority in the General Assembly 13 UNCIO 1078. See generally the discussion

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The making of new law remains the prerogative of States and of States alone, through appropriate diplomatic action. Against that background, I would like to devote the rest of this talk to what I regard as the triad that I see as the central element of the international law of today. That triad, an outcome of the Second World War, consists in (1) the relative prohibition on the use of armed force in a State’s international relations, (2) in what is today called international humanitarian law (the former jus in bello), and (3) in the promotion and protection of human rights. All three are rooted in the UN Charter. All three are a direct consequence of European history, especially since the French and American revolutions and the introduction of representative government subject to the rule of law (a difficult and elusive topic in itself ) – the core of western democracy as we know it – in different parts of the world. I have used the expression ‘the relative prohibition on the use of armed force in a State’s international relations’. That requires an explanation. Read carefully Article 2, paragraph 4, of the Charter: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

A more ambiguous formulation of a central precept of the Charter is difficult to imagine. What is more, it does not stand alone. Immediately preceding it, and closely linked to it, is paragraph 3 of that Article, which reads: All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

What does all that add up to? We must keep in mind that the Charter is above all a political document, drawn up in a war-weary world in which the European War had finished, but the other, the Pacific War, was still being waged in all its bitterness. It is not a highly polished instrument in which every word in every language was carefully examined, and in 1945 multilingual drafting of treaties, a very sophisticated process, had not reached the high level of professionalism that we know today in a well-organized international conference. The Charter is a poor reflection of what the principal victorious Allies considered could be a satisfactory basis for the political reorganization of the international community, and provide it with adequate resources to prevent any recurrence of

on the role and competence of the General Assembly in M.M. Whiteman, 13 Digest of International Law 527 (1968). Modern commentators retain this view. Cf. R. Jennings and A. Watts (eds.), Oppenheim’s International Law. 9th ed., vol. I, 46n (1992); B. Simma (ed.), The Charter of the United Nations: A Commentary, 2nd ed., vol. I, 271 (2002).

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the disasters characteristic of the first half of the century. The world then turned its back on the discredited League of Nations, throwing out the good along with the bad. Let me go back to those two paragraphs, and more especially paragraph 4. What is meant by the expression ‘All members – that is of the United Nations – shall refrain in their international relations from the threat or use of force’? ‘International relations’ is certainly not a term of art. Are Russia’s relations with Chechnya international relations? Are Spain’s relations with the Basques, or with Catalonia, international relations? Or France’s with Corsica? Then again, what is the meaning of the limitation ‘against the territorial integrity or political independence of any State’? Does that mean that force, armed force, may be used for some other purpose, for instance for maintaining the territorial integrity and political independence of a State? Or for purposes of crisis management aiming at containing the use of force or of preventing it in the future? When in 1956 two permanent members of the Security Council used armed force against Egypt to protect their interests in the Suez Canal, but not against Egypt’s territorial integrity or political independence, was that a violation of Article 2, paragraph 4, of the Charter? And what is ‘force’? This Article does not use the expression ‘armed force’ which might have more meaning and which is common elsewhere in the Charter. The Vienna Conference on the Law of Treaties had a long debate about that, without reaching any meaningful conclusion. What does the final phrase of subparagraph 4 mean, ‘in any other manner inconsistent with the Purposes of the United Nations’ (emphasis added)? What are the Purposes of the United Nations? Are they limited by what is set out in Article 1 of the Charter, or are they something else? I cannot answer these questions, certainly not in the abstract and as a general proposition, not can anyone else. Small wonder that the Secretary-General of the United Nations, Mr Kofi Annan, in a major speech a few years ago here in The Hague repeated an observation that he had made earlier in the Security Council to the effect that the rejection of a political settlement by a party to a dispute made enforcement action necessary and that there are ‘times when the use of force may be legitimate in the pursuit of peace’.3 The enforcement action to which he was referring was not enforcement action through the Security Council but was taken by the interested States acting individually and collectively. Here is one of the major consequences of the Cold War, which has destroyed the whole concept of collective security on which the original 3

Speech of Mr Kofi Annan at the opening ceremony of the Centennial of the First International Peace Conference (1899), Speech of 18 May 1999, UN Press Release SG/SM/6997, 19 May 1999, also available in CD-ROM annexed to F. Kalshoven (ed.), The Centennial of the First Peace Conference: Reports and Conclusions (2000).

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Charter was centred. Under the Charter as written, the maintenance of international peace and security was to be based on the centralized control of the use of force through the Security Council. We must assume that when the San Francisco Conference of 1945 inserted Articles 43 to 49 into the Charter the delegates meant what they wrote. Yet those provisions have never been invoked and the Military Staff Committee established in Article 47 has never been asked for any constructive input into the working of the Security Council. It is a Charter body and as such it is technically still in existence and it meets once a month probably for lunch. However, there is no collective security under the centralized control of the Security Council, and I do not think that it is likely ever to come into being. That means that every country which is under armed attack, from whatever source, is thrown back on its inherent and natural right of self-defence, something that cannot really be controlled, at least not in the way the draftsmen of the Charter thought. As the International Court has put it: The Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake.4

Who but the authorities of the State under attack can decide whether its survival is at stake? Article 2, paragraph 4, refers to members of the United Nations. But States are impersonal entities, and the real addressees of that rule are those responsible up to the highest level for directing the affairs of the State or other entity in the name of which they act. International law does not know the concept of the criminal responsibility of a State. If sanctions are imposed on a State, it is because the individuals responsible for its policies and actions have undertaken actions that are in violation of the international obligations which the competent authorities of the State have assumed. Those actions may also involve the international criminal responsibility of individuals, even of the head of the state, as the special court for Sierra Leone has decided.5 The current concept of the law relating to the use of force suffers from two major apparent defects. One is the absence of any definition of aggression in terms appropriate to international criminal law, that is an act or acts performed by an individual in the name of the State or other entity, and the second is the appearance, world wide, of what is commonly known as terrorism. I have sat through endless hours of frustrating debate 4 5

Legality of the Threat or Use of Nuclear Weapons advisory opinion, ICJ Rep. 1996–I, 226, 263 (para. 96) (emphasis added). The Taylor case, Press release of 1 June 2004, available on UN Home Page, UN News Centre/Africa.

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in the UN on both these topics. I sometimes wonder if either is given to legal definition, and even whether legal definition, whether in criminal law terms or in any other formulation, is really necessary. They both seem to refer to a state of mind, a political decision, or in criminal law terms to mens rea, leading to certain action. I know that the General Assembly adopted a general definition of aggression in its resolution 1314 (XXIX) of 14 December 1974. I was there when it was adopted. It was adopted without a vote, and anyone familiar with UN practice knows that a resolution of that kind that is adopted without a vote is a fig leaf covering deeply rooted differences of opinion, of understanding, written in deliberately ambivalent terms giving satisfaction to all – or to none. The Security Council is the only organ competent to deal effectively with what the Charter in the title to Chapter VII calls Acts of Aggression, and if its permanent members are in agreement that certain behaviour of a State or other entity constitutes an act of aggression, that is sufficient without any formal definition. All definitions are hazardous, and I do not think it at all likely that a suitable definition of the crime of aggression, appropriate for insertion in the Rome Statute of the International Criminal Court, will ever be achieved. The criminal acts have to be enumerated, not the label under which they are incorporated into the Rome Statute. It is here that ‘terrorism’ – I put the word in quotation marks – plays havoc with all accepted notions of the law relating to the use of force and to the international humanitarian law and much else. Here again the Rome Conference on the International Criminal Court, while recognizing that terrorist acts, by whomever and wherever perpetrated and whatever their forms, methods or motives, are serious crimes of international concern to the international community, could do nothing except express the hope that in due course terrorism would be included in the list of crimes within the jurisdiction of the International Criminal Court. The different debates in the United Nations and in other organs have brought out, what really is a matter of common knowledge, that what one person sees as terrorism, as a terrorist act, another person sees as a legitimate act justified by its perpetrator’s political aims, especially when said to be committed in exercise of the right of self-determination. This is quite ironical, and it has produced a serious asymmetry in the legal side of the war against terrorism, wherever conducted. Terrorism is terrorism – indiscriminate killing usually by persons posing as civilians, justified in one case by a specious invocation of a fundamental right of international law, and castigated in another case, indistinguishable on its facts, by some curiously phrased mens rea. These two points of view are absolutely irreconcilable. However, here again, what we have to look to are the acts and the facts. When I come to study closely the acts that are criminalized in articles 6, 7 and 8 of the Rome Statute, I ask myself if anything more is really needed. The acts are already criminalized. Murder is murder, in article 7 (1) (a) of the Rome

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Statute with one type of mens rea to make it a crime against humanity, changed to ‘wilful killing’ in article 8 (2) (a) (i) of the Statute, with another kind of mens rea to make it a war crime. The act is the same in both cases, but the mens rea is different. The Yugoslav Tribunal was correct when it decided that there is in law no distinction between the seriousness of a crime against humanity and that of a war crime.6 But to many a charge of crime against humanity is more eye-catching in a newspaper headline. This leads me to the humanitarian law. This is frequently identified with the Geneva Conventions and, today, also with the Rome Statute of the International Criminal Court, although the Rome Statute does not always conform to the letter of the Conventions, major breaches of which by individuals it is supposed to criminalize. Here let me explain what I see today as a fundamental weakness of the Geneva Conventions, commonly regarded as the core of international humanitarian law, a weakness that is actually impairing the ability of the ICRC to be an effective actor on the international plane. The Geneva Conventions are treaties between States and they express the mutually agreed adjustment of the relations between States and their organs (the armed forces) or their populations (civilian personnel) in the circumstances contemplated by each Convention. This poses a question, whether in the interpretation and application of the Geneva law the relations of States are to have priority, or whether the protection of the individual protected person comes first, or indeed how to balance the two. In the nature of things the ICRC puts its weight on the side of the individual protected person, and I do not want to criticize it for that. But one may expect a much more balanced approach by organs of the United Nations that are assuming responsibility on the political level for the observance of the basic rules of humanitarian law – especially the former Commission on Human Rights and the other organs active in this field – by whatever State or entity is involved in armed conflict. The question does not permit of an easy answer. The balance lies in a careful appreciation of all the circumstances in which the interpretation and application of a given precept of the humanitarian law are required. Furthermore, that balance has to be made on the basis of the information available to the State’s decisionmaking authorities at the time, not weeks or even days later, with the advantage of 20/20 hindsight. The real problem of humanitarian law, the real source of perplexity, is its apparent remoteness from much modern armed conflict, its distance from the realities of modern asymmetrical armed conflict. The Geneva Conventions (the first was concluded in 1864) were conceived in the days

6

Prosecutor v Tadi´c , Judgment in Sentencing Appeals, 26 January 2000, Case No. IT–94–1–A and IT–94–1–A bis, para. 69.

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of standing armies, disciplined and directed by a responsible government or other identifiable authority. But the way the use of armed force has developed since 1945 is different. While one side might possess those traditional characteristics, it is rarely true of the other side, and sometimes neither side possesses them. In this type of situation, the asymmetry of modern conflicts, the formal Geneva rules lose much of their relevance. The guiding principle remains the Martens declaration which, in its modern form reads: In cases not covered by [the Geneva rules] or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience.7

It is the unbridled and indiscriminate terrorism, symbolized but not limited to the 9/11 incidents in New York and Washington, that is playing havoc with all the rules of humanitarian law and all attempts to avoid collateral damage to civilian objectives. Yet the acts of indiscriminate killing, whether on the scale of the Twin Towers of New York or a block of apartments in Moscow or a pizzeria in Jerusalem or the railway system of Madrid, are certainly crimes under international law, under the Rome Statute of the ICC, and they certainly justify the use of force in selfdefence. No amount of sophistry can get away from that. The Security Council unhesitatingly recognized this in the series of resolutions adopted after the incident of 9/11, resolutions 1373 (2001) of 28 September and 1377 (201) of 12 November. Those strong resolutions were adopted under Chapter VII of the Charter, and while they recognize the right of the victim State to take appropriate action in self defence, they do not mention Article 51 of the Charter. They place heavy emphasis on the acts of terrorism, not on the motives of their perpetrators or their legal status. Being decisions of the Security Council under Chapter VII of the Charter, they come within the scope of Article 25 of the Charter, by which all members of the UN agree ‘to accept and carry out the decisions of the Security Council’ in accordance with the Charter as amplified in Chapter VII and to that extent are binding for all States. They are the first serious international effort to get to grips with the major factors that enable international terrorism to flourish and become a recognized danger (not merely a threat) to international peace and security. Their recognition that the victim State may exercise its inherent right of self-defence against these attacks is an important application of the Charter. The central question that all this poses is a simple one: are national freedom fighters exempt from observing the basic principles of international humanitarian law? How far is reciprocity to be observed in the applica7

Additional Protocol I of 1977, art. 1 (2), 112 UNTS 1, 1226 UNTS 208.

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tion of humanitarian law? Here again I find an answer in a judgment of the Appeals Chamber of the Yugoslav International Criminal Tribunal: This body of law [international humanitarian law] is not grounded on formalistic postulates. It is not based on the notion that only those who have the formal status of State organs, i.e. are members of the armed forces of a State, are duty bound to refrain from engaging in violations of humanitarian law as well as – if they are in a position of authority – to prevent or punish the commission of such crimes. Rather, it is a realistic body of law, grounded on the notion of effectiveness and inspired by the aim of deterring deviation from its standards to the maximum extent possible. It follows, among other things, that humanitarian law holds accountable not only those having formal positions of authority but also those who wield de facto power as well as those who exercise control over the perpetrators of serious violations of international humanitarian law.8

That is a clear statement of the legal position. Properly applied, it will be an important step forward in removing the asymmetry of so much of the modern law of armed conflict. That would be reduced if not removed entirely. The perplexity comes from the fact that organs of the United Nations claiming to be responsible for the general observance of international humanitarian law and confusing it with human rights do not enforce it in this even handed way. This brings me to the third leg of my triad, human rights. I think you will find that the term ‘human rights’ is mentioned more times in the Charter than the maintenance of international peace and security, the primary purpose of the United Nations. The expression, as we now know it, owes its origin to the Atlantic Charter of 1941 and the Washington Declaration of 1942, which included in the Allied war aims ‘to defend life, liberty and religious freedom and to preserve human rights’. Actually it is much older and was used by the Institute of International Law as far back as 1929. In that context ‘human rights’ had a west European connotation, as enunciated in the main instruments of that area of the world, the British and the American Bills of Rights of 1688 and 1791 respectively, and the French Declaration of the Rights of Man and Citizen of 1789. That is as far as the basic instruments of 1945 could go. While the fundamental concept that respect is due to the human person as such probably has its origin in religious thought, at a time when international law itself was closely influenced by religious teachings, the modern laic quality of the law is inclined to overlook any possible religious element that affects national attitudes to human rights. Form was given to the modern secular conception of human rights in the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in resolution 8

Prosecutor v. Tadi´c, Judgment, 15 July 1999, Case No. IT–94–I–A, para. 96.

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217 A (III), 10 December 1948, by forty-eight votes in favour, no negative votes, and eight abstentions. That was a remarkable vote, and it indicates that the language of the Declaration was acceptable to different religious, philosophical, spiritual, political and secular trends prevalent in the UN in 1948. Nevertheless, the compromises embodied in it conceal the very fundamental differences of approach to the basic question of what are the human rights requiring promotion and protection, and how that is best secured. Since 1948 those fundamental differences of approach find expression in reservations to the relevant treaties and in objections to those reservations. Indeed, it has only been by allowing reservations and by including some matters in optional protocols that it has been possible to conclude many of these treaties. Leaving aside the former South Africa with its policy of apartheid, the remaining seven abstentions of 1948 fall into two main classes, the Marxist and the Muslim. Marxist political thought, represented by the Communist countries of Eastern Europe, has an entirely different concept of the relations that should exist between the State and its subjects, the principal theme of the concept of human rights. Islam too has its own conception of human rights in the context of the Shari’a, the holy law of Islam, which an earthly legislator cannot change. The delegation of Saudi Arabia explained its abstention on the final vote on the Universal Declaration that in parts it could not be reconciled with fundamental tenets of Islam. The Cairo Declaration on Human Rights in Islam specifically states that all the rights and freedoms stipulated in the Declaration are subject to the Islamic Shari’a (article 24), which is the only source of reference for the explanation or clarification of any of the articles of the Declaration (article 25).9 Given those major reservations, I am not sure that the Universal Declaration truly expresses a universal concept of human rights, and I think, with all respect, that care is needed before declaring it to be part of universal international customary law, and jus cogens at that. At the same time we must note that the Universal Declaration has probably had more influence on the general development of legal thinking throughout the world than any other single instrument adopted under the auspices of the United Nations. Indeed, after its work for the maintenance of international peace and security, primarily the responsibility of the Security Council, and some aspects of disarmament, for which the General

9

For the International Law Association, see the Report of its New Delhi Session (2002) at p. 118. On Islam and human rights, see the Organization of the Islamic Conference, resolution 49/19 P, on the Cairo Declaration on Human Rights in Islam of 1990, United Nations, Human Rights, A Compilation of International Instruments (ST/HR/1/Rev.5) vol. II at 477 (1999).

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Assembly may make recommendations, human rights, and the many-sided organs dealing with human rights, has become the most significant of the many activities undertaken by the United Nations or under its auspices. Yet we must not overlook or ignore the fact that this has been accompanied with serious politicization of the management of the system. All too often broader and largely irrelevant political considerations have placed obstacles in the way of objective and professional treatment of a given situation. Condemnations of States for alleged violations of human rights all too often take the place of slow and less publicized efforts to remedy the situation. This came to mark the work of the Commission on Human Rights and the treatment of its recommendations by the ECOSOC and the General Assembly acting through its Third Committee and led to the establishment of the Human Rights Council in 2006. The Universal Declaration has become a starting point of a complex long drawn out series of actions designed to convert the statement of general principle into binding legal obligations, through a series of conventions concentrating on specific objectives of human rights. The United Nations has had the task of finding middle ground between these different, and to some extent opposing, approaches. In this, its success is limited. At first glance, the number of States that are parties to the major human rights conventions is impressive. However, if one looks closer, one finds that a large number of ratifications are accompanied by reservations, followed by objections to reservations. At the same time, and indeed curiously (although I know that some people think otherwise), what to me is one of the most important of human rights is missing from the Universal Declaration and from later instruments. That is the right of all peoples to live in peace and security. Not until 1984 did the General Assembly act partly to repair this omission, when it adopted resolution 39/11 of 12 November 1984, approving a Declaration on the Right of Peoples to Peace. The General Assembly was convinced that life without war serves as the primary international prerequisite to material well-being, development, and progress of countries, and for the full implementation of the rights and fundamental freedoms proclaimed by the United Nations. In its substantive provisions the Declaration did little more than reiterate Charter doctrines of the renunciation of the use of force in international relations. That may be a platitude, but it is nevertheless proper that the right of all to peace and security should be recognized as a fundamental human right, and we may hope that one day it will become a binding and applied precept of international law and a norm of jus cogens. Human rights are not like traditional rights in national legal systems, and their enforcement mechanisms are weak, and not built-in. They are promulgated in the relevant texts in axiomatic terms addressed to the world at large. The beneficiaries of these rights are not indicated. In the form in which they are usually couched, they are rights without a direct remedy,

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unless the State concerned has agreed to apply one. They are frequently so widely drawn as to be indeterminate. Nevertheless, they are rights and when embodied in treaties, the parties to those treaties are under an obligation to apply them. Their full implementation requires their complete integration into the different systems of national law, and that is where serious difficulties lie. The international system is slowly moving towards greater concentration of human rights, their protection, their realization in practice and, at least where they coincide with rules of humanitarian law, installing procedures for the apprehension and punishment of individuals who deliberately violate human rights of others. But progress is slow, and it is a matter for regret that the crimes listed in the Rome Statute of the International Criminal Court do not include serious violations of human rights as such. I do not want to end on a note of pessimism. I firmly believe that my triad, alongside the sovereignty of the independent State (no longer absolute sovereignty as conceived before 1914), contains the germs for a new and healthier international legal order. However, it is premature to think that this new international legal order is with us. The world has a long way to go before it will become a universal reality. But I firmly believe that before this century is out, this new legal order will be firmly in place, that all human beings will enjoy the fundamental rights to which all human beings are entitled, that armed force will only be used in a controlled way to ensure the maintenance or restoration of international peace and security, and that humanitarian law will be applied by all without let or hindrance. The instruments for this are available. Their use has to be brought into line with these ideals.

34 SELF-DEFENCE AND THE NON-USE OF FORCE: SOME RANDOM THOUGHTS

Let me start with a word of thanks, and congratulations, to all those who have laboured to organize this colloquium, particularly Mr Alan Stephens who conceived the idea of the Hague colloquia and who, with the other distinguished sponsors, has been instrumental in bringing this, the first of its kind, into being. This Colloquium is devoted to the concept of self-defence, within and between societies, and is of an interdisciplinary character, as indeed is much of modern international law. Being the first such gathering, this session will have all the frailties of a newly-born. As the first winner of The Hague Prize for International Law, which I understand is what has prompted this initiative, I welcome this opportunity to make some small return to the City which has honoured me, and help it to maintain its proud role as the capital of international law. This is the first Colloquium of this character: I hope that it will not be the last. I will begin my random thoughts by recalling that when we talk about self-defence, we are really addressing the use of armed force in self-defence. Under the regime of the United Nations Charter, use of armed force in selfdefence has to be reconciled with the fundamental precept of Article 2, paragraph 4, of the Charter, the modern reincarnation of the Briand-Kellog Pact of 1928.1 That provision, which the International Court of Justice has termed ‘a cornerstone of the United Nations Charter’,2 requires all members of the United Nations to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations. The principle of the non-use of force enunciated in this way runs in tandem with the right of self-defence, a right which exists independently of the Charter and which for the purposes of the Charter is formulated in Article 51.3

1 2 3

General Treaty for the Renunciation of War as an Instrument of National Policy, the Pact of Paris, 27 August 1927, 94 LNTS 57. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo) case [hereafter Armed Activities (Uganda)] ICJ Rep. 2005, 19 December, para. 148. The principal pronouncements of the International Court of Justice on the use of armed force in self-defence and the relationship between Article 2 (4) and Article 51 of the Charter

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However, the use of armed force is not the only way in which a State can exercise its right to defend itself as a reaction to an unexpected illegal situation that contains elements of risk and danger to persons or property and which requires remedial or preventive action involving the use of armed force, frequently, in fact usually, as a matter of urgency. In international law these remedial actions, which now go under the generic name of circumstances precluding wrongfulness in the recently codified law of the responsibility of States for internationally wrongful acts, are given designations such as force majeure, distress, necessity, and the like.4 These remedial acts are often, though not invariably, acts that are themselves unlawful or bordering on the unlawful and certainly unfriendly – reprisals and retorsion. There is also the vast area, so far as I know largely unexplored in legal scholarship, of economic self-defence, that is the use of economic measures in self-defence against other illegal acts of whatever kind, such as the United States acts of economic compulsion directed against the illegal detention of American nationals in the U.S. Embassy in Tehran. Recent events seem to be pointing to the emergence of another situation which may force States and other societies to act in self-defence – cybercrime, daily becoming more urgent and possibly even potentially a threat to world peace. In international law and relations, self-defence in the sense just described is often treated as though today Article 51 of the United Nations Charter is the end-all and be-all of the matter. There is high authority for looking at the topic in this way. In so far as the International Court of Justice has had to consider issues of self-defence it seems to have approached the matter through the prism of Article 51. Even a cursory glance at today’s programme shows how incomplete and distorting this approach can be. Before going further into the substance of the matter, we should note a short remark on one of the practical implications of the Charter prohibition on the use of force recently made by the United Nations Secretariat in a communication to the International Law Commission in its fifty-seventh session in 2005:

4

are: Military and Paramilitary Activities in and against Nicaragua (Merits) case (Nicaragua v U.S.A.), ICJ Reports 1986, 14, 98 (paras. 187 ff.), Oil Platforms case (Iran v U.S.A.), ICJ Reports 2001, 161, 183 (paras. 43 ff.); Legality of the Threat or Use of Nuclear Weapons advistory opinion, ICJ Rep. 1996-I 226, 244 (paras. 37 ff.); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion, ICJ Reports 2004, 136, 194 (paras. 138 ff.); Armed Activities (Uganda) case, paras. 106 ff. There is sharp criticism of some of these passages in different opinions attached to those judicial pronouncements. International Law Commission, Report for 2001, GAOR, 56th session, Official Records, Sup. 10 (A/56/10) ch. V. And see General Assembly resolutions 56/83, 12 December 2001 and 59/35, 2 December 2004. For the current status of those draft articles, frequently cited by the International Court, see ‘State Responsibility – Festina Lente’, Essay 29 above.

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As a result of the prohibition on the use of force in Article 2, paragraph 4, of the Charter of the United Nations, States have moved away from formalized war in the traditional sense towards armed conflicts under the guise of police actions, limited acts of self-defence or humanitarian intervention.5

This is something which should be kept in mind in any consideration of selfdefence in modern international law. The Charter has engendered new forms of violence for the attainment of political aims, especially the use of armed force by non-State entities claiming to be exercising the right of self-determination, those new forms of violence requiring new forms of self-protection. On the one hand, that passage gives expression to the reality of contemporary globalization of interests, of the individual and equally of the State. On the other hand it is a warning to be alert to possible false claims to be acting in self-defence. This means that we must look more closely at the conception of self-defence in any legal order, as a general principle of law within the meaning of Article 38, paragraph 1, of the Statute of the International Court of Justice, before pursuing more closely the nature of the concept of selfdefence, this rule and this exception all in one in today’s international law. So I start by asking: What is self-defence? Human societies, however organized, have been faced with the problem of self-protection since the earliest of all times, and as far as concerns international law the evolution of the modern sovereign nation-State has passed the problem on to the State. Furthermore, the matter has become more complicated since the Charter was negotiated in 1945, sixty years ago. New types of hostile and aggressive action involving the illegal use of armed force and requiring a given society to react in self-defence have come to the fore, classed under the general name of terrorism. This is almost invariably performed by what can be known generically as ‘non-State actors’ or, as the Armed Activities (Uganda) Judgment repeatedly calls them in the circumstances of that case, ‘irregulars’. Whatever term is used, it carries the implication that the acts cannot be attributed to any State, normally an essential element of an internationally wrongful act and the only kind of internationally wrongful act that comes within the scope of the International Law Commission’s draft articles of 2001. One of the principal characteristics of terrorism is its indiscriminate acts of violence with weapons (such as nail-filled bombs or booby traps set off by remote control devices such as a cellular phone) banned in the jus in bello or to give it its current designation, the international humanitarian law, directed against the society at large and not against any specific identified and genuine military objective. One of the most deadly forms of terrorism

5

The effect of armed conflict on treaties: an examination of practice and doctrine: Memorandum by the Secretariat (A/CN.4/550 + Corr.1) para. 3 (2005).

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is the appearance of the ‘suicide bomber’, a man, a woman, or even a child – civilians who under the normal rules of international humanitarian law are protected persons supposedly themselves immune from direct attack and harm. These kinds of acts often – indeed usually – require quick and effective riposte in circumstances in which calm and careful assessment of the legalities of the situation, including such over-generalized matters as necessity, reasonableness or proportionality in the scope of the reaction, is neither possible nor practical. In that respect there is a certain naivety in what the International Committee of the Red Cross (ICRC) calls Rule 141 in its rules of customary international humanitarian law, taken from Additional Protocol I of 1974. Under that rule, each State must make legal advisers available, when necessary, to advise military commanders at the appropriate level on the application of international humanitarian law.6 Desirable – certainly. Feasible – doubtful. Self-defence, in its very nature, operates in a general situation of illegality. It is a legal consequence of an illegal act, and its urgency is to be taken for granted. It is worthy of notice that the Security Council, after the tragic outrages of the attacks on American cities on 11 September 2001, acting under Chapter VII of the Charter (that is, finding itself faced with the necessity of taking action with respect to threats to the peace, breaches of the peace, and acts of aggression), adopted a series of binding resolutions directed against acts of terrorism and their perpetrators in its efforts to deal with them. Chapter VII (which includes Article 51) sets out the powers and duties of the Security Council regarding action with respect to threats to the peace, breaches of the peace and acts of aggression. It empowers the Security Council to prescribe measures to deal with the situation, including measures involving the use of armed force. Decisions taken under Chapter VII are binding on all members of the United Nations and indeed, given the changing structure of the international society I would say, following Article 2, paragraph 6, of the Charter, on all entities active on the international scene so far as may be necessary for the maintenance of international peace and security. This would include non-State entities. In resolution 1373 (2001) of 28 September 2001 on threats to international peace and security caused by terrorist acts, the Security Council reaffirmed the inherent right of individ-ual or collective self-defence ‘as recognized by the Charter’, but without any reference to Article 51. A little later, in resolution 1377 (2001) of 12 November 2001, the Security Council adopted another resolution on the matter. Here

6

J.-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law: Volume I: Rules 500 (2005). The authors state that this is a norm of customary international law for State armed forces. This is doubtful. The rule is copied from Article 82 of Additional Protocol I of 1974. 1125 UNTS 3.

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it declared that acts of terrorism constitute one of the most serious threats to international peace and security and a challenge to all States and to humanity. Once more the Security Council made no allusion to Article 51 of the Charter. The Security Council is continuing its efforts to concentrate a universal response to the growing threats of terrorism, notably through specialized working groups and committees, for instance under resolution 1540 (2004), 25 April 2004 and later in the same year, resolution 1566 (2004), 8 October 2004. This shows even if, as the International Court has said, Article 51 recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State, but apparently not when the attack is not imputable to a foreign State,7 the Security Council has gone further and accepts the position that the Charter does not in any way limit the concept of self-defence to attacks organized by a foreign State. In that respect, when the attack is not attributable to a State the right of selfdefence becomes separated from the principle of the non-use of force, which has little if any relevance in that type of situation. The Court has left open the qualification of an armed attack that does not meet that requirement.8 In those and other resolutions the Security Council placed heavy emphasis on acts of terrorism, not on the motives of those who perpetrate them or their legal status. This approach is characteristic of all the prolonged negotiations that have taken place and are still taking place within a United Nations context, and which has so far prevented a general definition of the term ‘terrorism’. What is notable is that not one of those resolutions (each one of which was carefully negotiated in the modern practice of conducting those negotiations in ‘informal’ meetings not open to the public) did the Security Council make any mention of Article 51. Their recognition that a State that is the victim of indiscriminate acts of terrorism may exercise its inherent right of self-defence without recourse to the Security Council is an important application of the Charter by the organ that bears the primary responsibility for the maintenance of international peace and security. It is to be presumed that the International Court of Justice was aware of the series of Security Council resolutions when it formulated its recent pronouncements on self-defence and that its refusal to refer to them was deliberate. Nevertheless, many see in the Court’s unwillingness to take them directly into consideration in formulating its observations on self-defence, and in forcing its pronouncements on self-defence into the confines of a narrow interpretation of Article 51, an unhelpful input to the international society’s ongoing work, under the auspices of the Security Council, to contain

7

8

Construction of a Wall advisory opinion (note 3 above) at 194, para. 139. See on this the separate opinion of Judge Higgins at p. 215 (para. 33), of Judge Kooijmans at p. 230 (para. 35), of Judge Buergenthal at p. 242 (para. 6). Armed Activities (Uganda) case, para. 147.

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and suppress international terrorism as a factor so disturbing to the maintenance of international peace and security. The general rule on self-defence is now paralleled by Article 21 of the draft articles on the international responsibility of States for internationally wrongful acts adopted by the International Law Commission in 2001. That reads: The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence in conformity with the Charter of the United Nations.9

We can note the general formulation of this principle without any direct reference to Article 51 of the Charter. In its commentary on that draft article the Commission saw the existence of a general principle admitting self-defence as an exception to the prohibition against the use of force in international relations, and regarded Article 51 of the Charter as ‘part of the obligation to refrain from the use of force laid down in Article 2 (4)’.10 However, this is not enough. The concept of self-defence has to be given a much wider scope than a bare exception to another provision of the Charter. This takes me back to some words of that great Roman philosopher and orator Cicero. In his defence on behalf of Milo he wrote: And if there is any occasion (and there are many such) when homicide is justifiable, it is surely not merely justifiable but even inevitable when the offer of violence is repelled by violence . . . There does exist therefore, gentlemen, a law which is a law not of the statute-book, but of nature; a law which we possess not by instruction, tradition or reading, but which we have caught, imbibed, and sucked in at Nature’s own breast; a law which comes to us not by education but by constitution, not by training but by intuition – the law, I mean, that, should our life have fallen into a snare, into the violence and the weapons of robbers or foes, every method of winning a way to safety would be morally justifiable. When arms speak, the laws are silent; – that is the famous inter enim arma silent leges – they bid none to await their word, since he who chooses to await it must pay an undeserved penalty ere he can exact a deserved one. And yet most wisely, and, in a way, tacitly, the law itself authorizes self-defence. . . .11

It seems that this is what the authors of the UN Charter had in mind when they spoke in Article 51 about the ‘inherent right of self-defence if an armed attack occurs’; when the sages of the Talmud told us: ‘if one is coming to

9 10 11

See note 1 above. Commentary to draft article 21, para. (1). Cicero, Pro T. Annio Milone iv: 11; Cicero: The Speeches with an English Translation by N.H. Watts. 15 (1931). For comment by Grotius, see De jure belli ac pacis ii.1.7: ‘The killing of a man under such circumstances is . . . a justifiable defence. . . .’ Kelsey translation in the Classics of International Law at 175.

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kill you, get in first and kill him.’12 Maimonides codified this more clearly and more emphatically in his Laws of Kings and their Wars, when he defined a war for religious duty (Milhemet mitzvah) as a war ‘to deliver Israel from the enemy attacking him’.13 To this we may add the Quran which proclaims that if any does help and defend himself after a wrong is done to him, against such there is no cause of blame.14 Self-defence is a natural inherent right of every human being, and of every human society. Indeed I would say that self-defence is the rule because the threat or use of force or any act of violence otherwise than when permitted by the law is itself unlawful. That is equally the position in international law under the Charter of the United Nations and under general international law independently of the Charter. The right of self-defence is a natural and inherent right recognized under any legal, religious or philosophical approach to international law. There is one further aspect of the Court’s approach to the principle of the non-use of force that should be noted, since if a claim that force was used in self-defence is not accepted, that use of force may be found to be illegal. The Court has demonstrated a tendency to measure the legality of a use of force by reference either to the definition of aggression adopted by the General Assembly in its resolution 3314 (XXIX), 14 December 1974, or to the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the General Assembly in its resolution 2625 (XXV), 24 October 1970.15 Grading an instance of the use of force in that way has led the Court to find in a particular case that the use of force reached the level of a ‘grave breach’ of the principle expressed in Article 2, paragraph 4, of the Charter. The international law of State responsibility for breach of a treaty as it stands at present does not include the concept of punitive damages, and accordingly this qualification of the breach as ‘grave’ does not have practical consequences for the legal relations of the two States concerned. The Court has recognized that in any later proceedings for the determination of the reparation due for that breach, the injured State has to ‘demonstrate and prove the exact injury that was suffered as a result of specific actions’ of the other State ‘constituting internationally wrongful acts for which that State was responsible’.16

12 13

14 15 16

Babylonian Talmud, Sanhedrin 72A. Maimonides, Code, Book xiv, The Book of Judges, Treatise Five, Kings and their Wars ch. 5 (trans. M. Hershman, Yale Judaica Series, vol. III, 1949). Further on this see Sh. Rosenne, ‘The Influence of Judaism on the Development of International Law’, An International Law Miscellany 509, 538 fn. 60 (1993). Surat al-Shura (42), 39. 41. Armed Acitivities (Uganda), case, note 2 above, paras. 146, 162. Ibid., para. 260. The qualification of the internationally wrongful acts as constituting a ‘grave breach’ of the Charter may have implications should international criminal charges be

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Since this colloquium is devoted to fundamental principles of the concept and not to detailed consideration of the particular rules of self-defence in the international law of today, I would like to say more about what Grotius expounded on the philosophical level concerning the right to self-defence. Grotius devotes a large part of Book II of De jure belli ac pacis to explaining the significance of self-defence in his conception of the law of nations and the law of nature. One major reference to what he wrote neatly sums it all up: The right of self-defence . . . has its origin directly, and chiefly, in the fact that nature commits to each his own protection . . . it is enough that I am not under obligation to suffer what . . . an assailant attempts, any more than I should be if attacked by an animal belonging to another.17

This I submit was fully recognized by the International Court of Justice in its advisory opinion on the construction of Israel’s defensive fence in the light of the repeated Palestinian attacks on Israeli civilian objections. In that advisory opinion the Court said: The fact remains that Israel has to face numerous indiscriminate and deadly acts of violence against its civilian population. It has the right, and indeed the duty, to respond in order to protect the life of its citizens.18

Let me repeat: the right, and indeed even the duty, to respond in order to protect the life of its citizens. What is this, if not self-defence merely reworded? All States have that right. All States have that duty. Here the International Court has used language that is much stronger and much more to the point than the vague reference to an inherent right of self-defence which appears

17 18

preferred against the nationals of that State in the International Criminal Court. In the particular case, the Prosecutor of the International Criminal Court has opened proceedings in that Court in connection with actions of Uganda, a fact which was considered by the International Court in its deliberations in the Armed Activities (Uganda) case; see the Separate Opinion of Judge Parra-Aranguren at para. 22 and the Dissenting Opinion of Judge ad hoc Kateka at para. 29. Another instance of the grading of the use of force appears in the decisions of the Ethiopia-Eritrea Claims Commission. In para. 11 of its Partial Award of 19 December 2005 in the Jus ad Bellum – Ethiopia’s Claims 1–8 case, that Commission stated: ‘As the text of Article 51 of the Charter makes clear, the predicate for a valid claim of selfdefense under the Charter is that the party resorting to force has been subjected to armed attack. Localized border encounters between small infantry units, even those involving loss of life, do not constitute armed attack for the purposes of the Charter.’ This passage must be treated with reserve: at most it only applies where the attack is attributed to a foreign State, following the interpretation of Article 51 given by the International Court. De jure belli ac pacis, II.1.3; Kelsey translation 172. Legal Consequences advisory opinion, note 3 above at 195 (para. 142).

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in Article 51 of the Charter of the United Nations. A few years earlier the Court itself in a rather curious passage reaffirmed ‘the fundamental right of every State to survival, and thus to resort to self-defence when its survival is at stake’.19 Does the State’s right to survival require any judicial reaffirmation? Is it not THE one fundamental precept of all international law? Before going further into the field of international law I want to dispose of an argument about Article 51 of the Charter that sometimes befuddles clear thinking since 1945 on the right of self-defence both generally and particularly under the regime of the UN Charter. Current international legal thinking on this cardinal aspect of the law has become confused by two quite separate matters which collide when the natural and inherent right of selfdefence is invoked – on the assumption that there is some difference between a natural right and an inherent right, although I am not sure that there is and I am not sure that in this respect there is any difference of substance between the English and the French texts of Article 51 of the United Nations Charter. The English text speaks of ‘the inherent right of . . . self-defence if an armed attack occurs’, and the French text speaks of ‘droit naturel de légitime défense . . . dans le cas où un Membre des Nations Unies est l’objet d’une agression armée’.20 I believe that there is no difference of substance between the English and French versions of the Charter. There may be shades of superficial difference in appearance. These are due to the genius of each language, not to any other reason, and they do not lead to any difference of meaning or require any intellectual effort to reconcile them. Here I allow myself to recall the wise observation of Maimonides to his translator Samuel Ibn Tibbon: The translator should first try to grasp the sense of the subject thoroughly and then state the theme with perfect clearness in the other language. This, however, cannot be done without changing the order of the words, putting many words for one word or vice versa, and adding or taking away words, so that the subject be perfectly intelligible in the language into which he translates.21

That is what was done here. That is why the French may look and sound different from the English. There is no difference in substance and both texts say the same thing.

19 20

21

Legality of the Threat or Use of Nuclear Weapons advisory opinion, International Court of Justice Reports 1996-II, 226, 263 (para. 96). The French word agression means both attaque non provoquée and attaque violente contre une personne. Micro-Robert ad. loc. In the Armed Activities (Uganda) judgment (para. 142), of which the English text is authoritative, the Court found no difference between the two language versions of Article 51. Taken from http://www.sacred-texts.com/jud.mhl/mhl19/htm accessed on 16 June 2005.

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The implication of the Charter rule is that if an armed attack constitutes a violation of the principle of the non-use of force it is inherently an illegal act, and the use of force to ward off that inherently unlawful act is completely legitimate and is the inevitable legal consequence. I would go further – and here is where the collision which I just mentioned begins to come in. In the same way that an individual always has a right of self-defence whenever that individual with reason suspects that he or she is under a threat of actual or impending illegal assault on person or property, so does the State in international law have the right to take whatever remedial or preventive action it finds appropriate, whether or not involving the use of armed force in its reaction to such threats. Here it is quite immaterial who or what is at the origin of the impending illegal act. If the threat comes from a State, Article 51 of the Charter applies and the use of force in exercise of the right of self-defence is later to be integrated in whatever action the Security Council decides to adopt. If that other party is not a State – and let me recall that the United Nations has its own conception of what is a state – then, in the words of the International Court, Article 51 of the Charter has no relevance.22 And if the State has that right, then every individual within the State is entitled to expect the State to exercise that right and to afford him or her all necessary protection if anyone outside the State (and inside it too) comes to inflict some irreparable harm on that individual, and the State that acts in that way suffers no cause to blame. This means that in international law, for a State self-defence is something more than a right. It also has elements of a duty owed to all persons within its borders or otherwise under its protection and which the State is obliged to observe in appropriate cases. I shall be coming back to that. It may even owe that duty to the international community at large. During the twentieth century major developments have taken place in the concept of the State, in its rights and duties, and in the rights and duties of the State towards its individuals and of the individuals towards the State. The nineteenth century concepts of the State, derived directly from the aristocratic societies of that period and a laissez-faire approach to social and economic issues, has given way to a democratic approach by which all of the citizens have – or should have – some sort of say in the solution of the society’s internal problems and an increasing say in its foreign policy also, accompanied by increasing State interest in and interference in social and economic issues broadly conceived. These developments are marked in the evolution of what in the West is called the ‘welfare State’, largely inspired by President Roosevelt’s New Deal to take the United States out of the depression of the 1930s. In a different social and political form it exists also in the evolution

22

Note 7 above, at 194 (para. 139).

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of the Marxist workers’ State under the influence of the Russian Revolution, although in many respects that evolution came about independently of Soviet Communism. Both these approaches imply that the State as such has obligations to ensure a minimum standard of life, a minimum quality of life, for all its citizens and that every citizen has corresponding rights against the State. They differ both in their conceptions of what that minimum standard is or should be and on how to achieve it. The State accordingly also has the obligation to do its utmost to preserve the security and welfare of its citizens and all others within its borders and under its protection. That explains why the International Court of Justice, in the passage from the Fence case quoted earlier, recalled the duty of the State to respond in order to protect the life – that includes the quality of life – of its citizens. The Universal Declaration of Human Rights proclaims the right to life in broad terms – ‘Everyone has the right to life, liberty and security of person’ (Article 2). Nevertheless, there is an extraordinary and unexplained omission from the Universal Declaration which contains no mention of the right of every individual to live in peace and security. Yet the right of the individual to live in peace and security must be the most fundamental of all human rights. In the Mishna we are told: ‘The world stands on three things: truth, law, and peace.23 As Rashi said in commenting on the verse in Leviticus xxvi:6: ‘And I will give peace in the land’ – ‘Peace outweighs all else’. The Court has interpreted Article 1 of the Charter as pointing to the goal of international peace and security and friendly relations . . . The primary place ascribed to international peace and security is natural, since the fulfilment of the other purposes will be dependent upon the attainment of that basic condition.24

The right to live in peace and security is implicit in the concept of the right of self-defence as it has developed in the different legal systems of the world. The right of self-defence is the other side of the coin of the right to live in peace. However, it was not until 1984 that the General Assembly remedied that omission from the Universal Declaration. In its 39th session the General Assembly adopted a Declaration on the Right of Peoples to Peace.25 That Declaration commences with a preamble in which the General Assembly affirmed its conviction that life without war serves as the primary international prerequisite for the material well-being, development and progress of

23 24 25

The Mishna (trans. H. Danby), Ethics of the Fathers, i:18 (1933). Certain Expenses of the United Nations advisory opinion, International Court of Justice Reports [1962], 151, 168. General Assembly Resolution 39/11, 12 November 1984.

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countries, and for the full implementation of the rights and fundamental human freedoms proclaimed by the United Nations. The Declaration then continues: The peoples of our planet have a sacred right to peace – [a sacred right]. The preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each State – [here the Declaration gives expression to the duty of the State]. Ensuring the exercise of the right of peoples to peace demands that the policies of States be directed towards the renunciation of the use of force in international relations and the settlement of international disputes by peaceful means on the basis of the Charter of the United Nations.

True, this does little more than reiterate the Charter doctrine of the renunciation of the use of force in international relations. It does not give adequate recognition to the Charter principle of the promotion and encouragement of respect for human rights and fundamental freedoms, including freedom from fear which, as President Roosevelt once said, was the only thing we have to fear. In the present state of international relations with the virtual bankruptcy and marginalization of the United Nations General Assembly as a significant factor in international relations this may be seen as a platitude. Nevertheless, it is proper that the right of all peoples to peace should be recognized, and we may express the hope that one day the major precept of that Declaration will become not merely a binding and applied precept of international law, but be accepted as a norm of jus cogens protecting a right of jus cogens. What this means in our context is that the right of self-defence through the right to peace and security is inextricably linked to basic human rights, and has to be interpreted and applied in that framework. The cardinal feature of the exercise of the right of self-defence and the performance of the duty of self-defence, using armed force in exercise of the right and in performance of the duty of self-defence, is that the occasion for it is always that it is provoked by an act that is itself illegal, whether by internal law or by international law, or indeed by both. The different passages quoted above, from the Roman Stoic philosopher Cicero, from the Talmud, from Maimonides, from the Quran, and from the father of European international law Hugo Grotius, all mention this, each in its own way. What is more, the illustrations such as those given by Cicero and Grotius (and no doubt by many others that I do not have time to name here) all carry with them an element of urgency, of the need for an immediate reaction to an actual or impending illegal act of serious consequences leaving little time for any cold examination of the overall situation. Many commentators on the UN Charter appear to have lost sight of this double element of the right of self-defence. How else can one explain the Court’s approach in the Nicaragua case of 1986, that under customary

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international law appraisal of the actions taken in purported exercise of the right of self-defence must be made in relation to the criteria of necessity and proportionality?26 If there is urgency in the situation, who at the time is capable of calmly weighing delicate issues of proportionality or of reasonableness or of necessity? The necessity is certainly present, otherwise the requirement to act in self-defence would not have arisen. And if issues such as proportionality and reasonableness are relevant criteria and can be evaluated in legal terms or through legal mechanisms, the decision to use force in self-defence and the acts of self-defence have to be assessed in light of the information available to the decision maker at the time, not months or even years later in light of other and fuller information that has become available in the meantime and which is being appraised in the relative distance and tranquillity of a deliberating chamber and not in a military command post or in an emergency session of a Government.27 Another question is: To what does the right and duty of self-defence extend? What is it that the State is under the duty to defend? The answer is quite simple: the national way of life as embodied and personified in the State and its institutions. Given the provision of Article 2, paragraph 4, of the Charter, obviously first and foremost it is the State itself as it is, its territorial integrity and political independence that has pride of place. There is no question about that. The modern concept of a state embraces its ideological hue, whether we like it or not and whether we agree with it or not. The capitalist state is entitled to exercise its right of self-defence to preserve its character as a capitalist state. Likewise the socialist state and the communist state. The same applies to the Muslim State28 and to the Jewish State and so on. Not merely the United Nations but the whole of modern international law has as its basic element the sovereign equality of States regardless of their political or economic inequality or in different international organizations including the United Nations, their procedural inequality. But developments since 1945 show us that there is much more to it than that. We have to take into account the modern practices involving the improper use of armed force by entities that are not states in any sense of the word. The passage from the Fence advisory opinion cited earlier mentions in a general way the State’s duty ‘to protect the life of its citizens’. It does not matter where those citizens are. If they are threatened because they

26 27

28

Military and Paramilitary Activities in and against Nicaragua (Merits) case, International Court of Justice Reports [1986], 14, 122 (para. 237). The Court’s interpretations have all been adopted after a considerable lapse of time and following pleadings and careful deliberation, unlike the decisions to use armed force in selfdefence, taken under the impact of a sense of immediate danger. Note the official name of Iran – the Islamic Republic of Iran.

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are citizens of the State, that State is entitled, and may be under a duty, to exercise its right of self-defence to protect them. As an official publication of the British Government has put it: ‘Self-defence may include the rescue of nationals where the territorial state is unable or unwilling to do so’.29 That publication says nothing about where those nationals might be or how they got there. If they have been hijacked they simply have the right to be rescued if that is possible, and their State has the right to attempt their rescue should the territorial state be unable or unwilling to do so itself. This is obviously a conclusion drawn from the Entebbe rescue of Israelis from a hijacked foreign aircraft in 1976 and the proceedings in the Security Council that followed it.30 Another, quite different use of the right of self-defence is the right of any organ of the state that is abroad to defend itself from any form of unlawful attack. In that type of situation (all too common today) Article 51 of the Charter has no relevance. Let me give two examples. A national warship on the high seas which in good faith has reason to believe that it is being attacked or is about to be attacked may certainly take all measures at its disposal to defend itself and to ward off any suspected attack.31 Likewise an Embassy or a Consulate is certainly entitled to take all measures in its defence should it become clear or should it have good reason to suspect that it is going to be attacked. Then we have the individual acting as an organ of the State or whose actions can be attributed to a State, where that person’s personal safety may be at stake. As an individual that person is certainly entitled to take whatever action is appropriate and possible in self-defence, regardless of whether the act attributed to the State in which that individual took part was lawful or not. Personal self-defence is always an individual and independent right. The Rome Statute of the International Criminal Court recognizes this type of self-defence of the individual.32 Article 31, on grounds for excluding criminal responsibility, in paragraph 1 (c) removes the criminality from a person

29 30

31

32

Ministry of Defence, The Manual of the Law of Armed Conflict at 2 (Rule 1.5) (2004). See Security Council, S/PV.1939 to S/PV.1943 and relevant documentation, 31 SCOR, Sup. For July, August and September 1976; and L.C. Green, ‘Rescue at Entebbe – Legal Aspects’, 6 Israel Yearbook on Human Rights 312 (1976). This was the central issue in the Aerial Incident of 3 July 1988 case brought by Iran against the United States following the shooting down by an American warship of an Iranian civil air liner during the time of the war between Iran and Iraq in the 1980s. The warship and its competent personnel, with only a few seconds within which to reach any decision on the matter, thought that the airliner was a military plane about to attack it, and shot it down with heavy loss of life. Only afterwards was the mistake discovered. This case was settled out of court, but what there is of the pleadings is a useful illustration of this aspect of self-defence. Although made in a specific context, that remark is of general application. 2187 UNTS 3.

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who acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected. Such a person shall not be criminally responsible if at the time of that person’s conduct the person was acting in self-defence in that manner. It remains to be seen how the International Criminal Court will apply this difficult provision. * * * My conclusion is relatively short. Self-defence is an independent, self-standing, principle of law and as such also a general principle of international law. It is applicable in many different circumstances and takes many different forms, some involving the use of armed force and others involving some other action but without the use of armed force by the victim State. Under the regime of the Charter of the United Nations, if the self-defence against another State involves the use of armed force, the conditions of Article 51 apply, and the use of armed force in an act of self-defence may be seen as an exception to the general prohibition on the use of force laid down in Article 2, paragaph 4, of the Charter. If the situation requiring the urgent use of armed force is not in response to an attack from another State on the territorial integrity or the political independence of the victim State, as is frequently the position in present-day instances of indiscriminate terrorism, Article 51, in the words of the International Court of Justice and following the practice of the Security Council, is not relevant, leaving untouched the inherent or natural right of self-defence of the victim State.

35 ISRAEL: SOME LEGAL ASPECTS OF THE TRANSITION FROM MANDATE TO INDEPENDENCE: DECEMBER 1947–15 MAY 1948

On 5 Iyar 5708 corresponding to 14/15 May 1948 Israel proclaimed its independence with the termination of the Mandate for Palestine at midnight local time on 14/15 May 1948.1 In the period between 30 November 1947 (the day following the adoption by the United Nations General Assembly of its resolution 181 (II) of the future government of Palestine) and 15 May 1948 four interactive factors impinged on the assumption by Israel of legal power and authority from the Mandatory Power. They were the United Nations, the British/Palestine Governments, the autonomous Jewish authorities in the country, and the early phase of Israel’s War of Independence, first between the Arabs and Jews of Palestine, and after 15 May 1948 with the armed intervention of the armies of the Arab States – a war which in its first phase concentrated on the country’s lines of communications, eventually cutting Jerusalem off from the rest of the country. This article will revisit the interaction of these factors on the assumption of power and authority by the new State of Israel. I. The United Nations On 29 November 1947 the General Assembly of the United Nations adopted its well-known resolution 181 (II) concerning the future government of Palestine, the Plan of Partition with Economic Union. Briefly, that Plan envisaged the establishment of two new States in Palestine, a Jewish State and an Arab State, with the City of Jerusalem (as there defined) constituting a corpus separatum which for the immediate future would be under United Nations control, and an economic union between these three entities to be operated

1

Since 15 May 1948 was a Saturday, the Sabbath, the essential Jewish steps for this transfer and the immediate assumption of authority by the Jewish representatives were completed on the afternoon of Friday, 14 May, to take effect at midnight. At that time the Jewish population of Palestine numbered 600,000 souls, of whom 60,000 were in Jerusalem.

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through a Joint Economic Board. By that Plan, the Mandate for Palestine was to terminate not later than 1 August 1948. The period between the adoption of that resolution and the establishment of the two States was a transitional period. For the transition, the basic idea was that as the British armed forces would be progressively withdrawn the administration of Palestine would be transferred in an orderly fashion to the Palestine Commission, and from the Commission to the provisional governments of the new States. The Palestine Commission consisted of five representatives, from Bolivia, Czechoslovakia (before that country joined the East European Group of Socialist States), Denmark, Panama and the Philippines and an appropriate Secretariat. The Chairman was Dr C. Lisicky of Czechoslovakia, and the Chief Secretary was Dr Ralph Bunche, Head of the Trusteeship Division of the United Nations Secretariat in New York.2 It was to be sent to Palestine to co-ordinate plans for the withdrawal of the British forces and administration and their take over by the new authorities. The full text of Part B of the Plan – Steps Preparatory to Independence – is reproduced as Appendix I to this article. It is not necessary to trace all the intricacies of this part of the Plan. It is sufficient for present purposes to mention two primary factors. The first was that the British Government decided, for reasons of its own, to relinquish the Mandate on 15 May 1948, and that neither the Government in London nor the Palestine Government would co-operate in the implementation of the Plan and, in particular, would not progressively turn over authority to the Palestine Commission as the Plan required. The second was the Arab armed opposition to the Plan. That opposition commenced on 30 November 1947, the date commonly taken as the commencement of Israel’s War of Independence, with outbreaks of mob violence in the mixed cities, especially Jerusalem, and evolved into full-scale war between the two communities. In consequence, the Plan was never put into effect in its terms. However, its significance for the present article is that initially the Jewish authorities made their preparations on the basis that the transfer of authority would be effected more or less according to that Plan. All the early preparations for the Jewish State and the assumption by it of sovereign authority were based on that. It was only around the middle of 1948, after the termination of the Mandate, that any inclination towards the Plan was dropped. The Commission itself never came to Palestine. The most that it did was to send a few members of its Secretariat, who were in the country for a short period in March–April 1948. They were known as the ‘Five Lonely Pilgrims’. The Political Department of the Jewish Agency for Palestine maintained contact through its New York delegation with the Commission in New York,

2

For my personal appreciation of Dr Bunche, see ‘Bunche at Rhodes: Diplomatic Negotiator’, in An International Law Miscellany 713 (1993).

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and together with representatives of the Jewish armed forces (the Hagana) with its Secretariat in Jerusalem.3 II. The British Authorities The Mandate for Palestine was confirmed by the Council of the League of Nations and entered into force on 24 July 1922.4 The basic ‘constitution’ of Palestine was the Palestine Order in Council of 10 August 1922 and its amendments, made in London on the basis of the British Foreign Jurisdiction Act of 1890.5 The High Commissioner, appointed by the Government in London, was the senior British official and head of the administration in the country. He was assisted by his Council, consisting of the heads of the different government departments, corresponding to the government of the country. In London, the affairs of Palestine, including its daily running, were the responsibility of the Colonial Secretary and the Colonial Office. The Foreign Secretary and the Foreign Office were responsible for the major international political aspects, including the termination of the Mandate. The events described in this article took place during the Attlee Administration in London, with Ernest Bevin as Foreign Secretary and Arthur Creech Jones as Colonial Secretary. The High Commissioner was Sir Alan Cunningham.

3

4

5

See Israel State Archives and Central Zionist Archives, Political and Diplomatic Documents December 1947–May 1948 and Companion Volume (Jerusalem, 1979) passim (hereafter Documents); P. de Azcárate, Mission in Palestine, 1948–1952 (1996). The author was head of the advance party of the Secretariat of the Palestine Commission. Other members of the advance party included Colonel Roscher Lund (Norway) for military matters, Dr Dwarkanath Ghos (India) for economic affairs and Constantin Stavropoulos (Greece) for legal affairs – later Under Secretary-General and Legal Counsel of the United Nations (he had nothing to do with the matters discussed here). For the Committee’s final report, see General Assembly, Second Special Session, Official Records, Supplement No. 1 (A/532). The Commission also submitted interim reports to the Security Council on the security and the food situation in Palestine. Security Council, Third Year, Official Records, Special Supplement No. 2 (S/663, S/676, S/695 and S/720). The General Assembly relieved the Palestine Commission from the further exercise of its responsibilities in resolution 186 (S–2), 14 May 1948. The principal Jewish source for this period, apart from biographies, autobiographies and that collection of documents, is Z. Sharef, Shlosha Yamim (1959), English translation by J.L. Meltzer under the title of Three Days (1962). See Terms of League of Nations Mandates (UN doc. A/70, 1946). Conveniently reproduced in J.N. Moore, The Arab-Israeli Conflict, volume III, Documents (1974) (hereafter Moore, Documents) at 74. And see J. Stoyanovsky, The Mandate for Palestine: A Contribution to the Theory and Practice of International Mandates (1929). The author became a member of the Legal Council (see note 15 below). For text, see R.H. Drayton, III The Laws of Palestine 2569 (1934). Conveniently reproduced in Moore, Documents at 85. It was amended by the Palestine (Amendment) Order in Council, 1923 and the Palestine (Amendment) Order in Council, 1933, Drayton, cited, at 2590 and 2593.

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On 26 January 1948 the Palestine Order in Council, making provision for the government of Palestine pending the termination of the Mandate, was made and entered into force.6 It granted extensive powers to the High Commissioner in his sole discretion to make such provision as appeared to him to be expedient for the government of Palestine until the withdrawal of His Majesty from the Government of Palestine, or in contemplation of or preparation for that withdrawal. In particular, and without prejudice to that provision, the High Commissioner was empowered to repeal, add to, amend, apply with modification, or suspend the operation of any existing law. On 29 April 1948 the London Parliament passed the Palestine Act, 1948.7 That Act confirmed – what had in fact been announced much earlier – that on 15 May 1948 (or such earlier date as may be prescribed [none was, in fact]) the Mandate for Palestine would be ‘relinquished’ and ‘all jurisdiction of His Majesty in Palestine shall determine, and His Majesty’s Government in the United Kingdom shall cease to be responsible for the government of Palestine’. Miscellaneous consequential provisions were set out and extensive powers were granted to the British Government to make provision by Order in Council, inter alia ‘for any . . . purpose which appears to His Majesty to be necessary or expedient in consequence of the termination of his jurisdiction in Palestine’. On the same day the High Commissioner promulgated an order which in effect made it unnecessary for legislative enactments to be published in the Palestine Gazette, but could be made public ‘in such manner as the High Commissioner may deem practicable’.8 Those legislative actions of the British and Palestine Governments were of direct relevance to the legal transition from mandate to independence. The British Government did not do what was required of it in the transitional period by Part B of the General Assembly’s resolution. It refused to allow the Palestine Commission to perform the specific functions it was required to perform as the British armed forces were progressively withdrawn from different areas of the country and the civil administration disintegrated. Dr Ralph Bunche, Principal Secretary of the Palestine Commission, reported the following exchange with the British delegation in New York. The Commission had enquired in what manner the mandatory power was prepared, prior to the termination of the Mandate, to facilitate the work of the Commission respecting measures it must take to establish the Provisional Councils of Government. In reply the British authorities informed the Commission,

6 7 8

This, and the following British legislative documents, are reproduced in 150 British and Foreign State Papers (1948, Part I, 1956) (hereafter BFSP) at p. 28. 150 BFSP at p. 278. For text see Government of Palestine, Legislation enacted and Notices issued which have not been Gazetted 1 (1948). The last issue of the Palestine Gazette was No. 1666 of 28 April 1948. Shortly afterwards the Jewish forces in Jerusalem (Hagana) blew up the Government Printing Office.

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somewhat backhandedly, that subject to its overriding responsibility for the maintenance of law and order, the mandatory Power would not impede any preliminary steps taken by the Commission with this object in view, although such Councils could not exercise any authority prior to the date of the termination of the Mandate.9 There was no orderly transfer of authority or hand-over. In the opening words of the Book of Genesis, all was in utter confusion, tohu-bohu as the Oxford English Dictionary would put it. By April the Mandatory Government began phasing out its services and evacuating British citizens, including British Jews in the service of the Palestine Government, and in the Jewish areas Jewish authorities took over such matters as the mobilization of man-power, supply and rationing of food, water and fuel and control of prices, general police and security activities, voluntary taxation and in some respects the internal postal services (the restoration of international postal services had to await until the new State was established). III. The Jewish Authorities As an essential element of the Mandate regarding the establishment in Palestine of the Jewish National Home, the Jewish Community in Palestine (commonly known as the Yishuv) had established a comprehensive system of autonomy. This was accomplished partly under the aegis of the Jewish Agency for Palestine established and operating under articles 4 and 11 of the Mandate10 in respect of matters of general Jewish concern, including the major political issues between the Jews and the British authorities and with the League of Nations, and partly under the aegis of the Jewish Community itself, through its principal organ the Vaad Leumi (National Council), for matters of purely local concern. In consequence, for nearly every government department there was a parallel Jewish organism, and often in 1948 the formal transition from the one to the other did not present insurmountable difficulties. The Jewish personnel of those departments of the Palestine Government were initially expected and indeed ordered by the pre-State Jewish authorities

9

10

R. Bunche to M. Shertok, Member of the Executive of the Jewish Agency for Palestine and Head of its Political Department, then in New York, 28 March 1948, Documents 531 at 534. That was in reply to Shertok’s letter of 25 March, see note 23 below. On the international legal status of the Jewish Agency for Palestine under the Mandate, see the Mavrommatis Palestine Concessions case in the Permanent Court of International Justice, Ser. A2 (1924), especially at p. 21. With the termination of the Mandate the Jewish Agency for Palestine lost its international status, which was assumed by the Provisional Government of Israel. See my ‘Recognition of Israel by the Security Council’, 13 Israel Yearbook on Human Rights 295 (1983).

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to continue to perform their duties as officials of the new Jewish State.11 The reality of this was well brought out in a conversation between W. Eytan, then of the Political Department of the Jewish Agency for Palestine, with de Azcárate on 24 March 1948. Eytan reported: I took him through all the details of our planned government organization, dealing with the various ministries, and showing their relationship to present departments of the Jewish Agency and the Palestine Government. The general impression I tried to convey to him was that the bulk of our administrative machinery existed in one form or another, and that the transition from our present status to the status of a Jewish Government would be effected rapidly and smoothly.12

The principal exception to this was the Palestine Government’s Legal Department (including the offices of the Attorney-General and the Solicitor-General), that is the whole administration of the law, including legislation, the courts and their administration, the public prosecution, the legal advisory services, and the different registries maintained by the Government of Palestine, now embraced by the Ministry of Justice, and the Prisons Service. Here there was no Jewish national parallel. Yet in the event the major problems posed by the termination of the Mandate, from the legal point of view, related to the law and the legal basis for the administration of the country. In October 1947, shortly after publication of the report of the United Nations Special Committee on Palestine (UNSCOP), the Jewish Agency for Palestine and the Vaad Leumi established the Vaadat ha Matzav, generally translated as ‘Emergency Committee’ but better rendered as ‘Preparatory Commission’.13 After the adoption by the General Assembly of resolution 181 (II), the Committee began to perform an increasing number of executive and administrative functions pending the establishment of the Jewish State and to undertake preparatory work towards the establishment of the new State’s administrative machinery.14 It worked through a series of professional Committees, which do not concern us here, except to mention that initially there was no Committee to deal with legal and administrative matters generally. Only questions of foreign affairs – relations with the British and

11

12 13

14

According to Edwin Samuel, the second Viscount Samuel, the Palestine Civil Service in 1948 numbered 10,000 persons plus 250 who were British (some of them Jewish). One third of the civil service was Jewish. Encyclopedia Judaica CD-ROM ed. 1997, s.v. Israel, State of: Governance. Meeting, W. Eytan – P. de Azcárate (Jerusalem, 24 March 1948), Documents 508, 509. Eytan was to become the first Director-General of Israel’s Ministry for Foreign Affairs on 15 May. On this Committee, see P. Alsberg, ‘The “Emergency Committee” (Va’adat Hamatzav), October 1947–May 1948: Preparing for Statehood’, 10 Studies in Zionism 49 (1959). There is more extensive literature on this in Hebrew. See Documents at p. 194 note 3 and Companion Volume at p. 66.

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Palestine Governments, with the United Nations, and with all other friendly governments, including the Governments of the United States and then of the Soviet Union – and defence remained within the exclusive competence of the Jewish Agency for Palestine, with Mr David Ben Gurion assuming the portfolios of Chairman of the Executive, responsible also for defence, and Mr Shertok (Sharett) as Head of the Political Department. On 15 May, they became Prime Minister and Minister of Defence, and Minister for Foreign Affairs, respectively. Issues relating to the law – legislation in general, the transition to the new State, the work of the courts (including the disposal of civil and criminal litigation pending on the termination of the Mandate) and the initial organization of the Ministry of Justice – to mention some of the principal legal matters, required different treatment, above all because, as mentioned, there was no Jewish parallel for those branches of government and state-organization. Shortly after the establishment of the Emergency Committee the question was raised, first in the Vaad Leumi and later in the Committee itself, of the establishment of a Legal Council. That was created early in January 1948 with no less than 31 members. It had nominally two joint chairmen, Dr Dov [Bernard] Joseph, a member of the Jewish Agency Executive and its legal adviser, and Dr Mordechai Eliash, the legal adviser of the Vaad Leumi. Eliash, however, was in New York as a member of the Jewish delegation there with particular responsibilities for the affairs of Jerusalem, so that the main charge fell on Joseph. This ‘large and unwieldy body was virtually inactive – in the words of Alsberg – with most of the work being done by a limited staff of subcommittee co-ordinators who spent several months preparing the legal infrastructure for the state and its institutions, and organizing the transfer of rule’.15 Excluded from the competence of the Legal Council was anything to

15

Loc. cit. in n. 13 above, at 61, The staff sub-committee co-ordinators were: Haim Cohn, later State Attorney (corresponding to the former Solicitor-General, a term not easily translated into Hebrew), Attorney-General, Minister of Justice and a Justice, and Deputy President, of the Supreme Court; Uri Yadin (Heinsheimer), to become Director of the Department of Legislation, and Chief of the Legislative Planning Branch of the Ministry of Justice; Professor Eduardo Vitta, an eminent professor specializing in the intricacies of the interreligious law of personal status which existed under the Mandate, a relic of the millet system, a characteristic feature of the Ottoman Empire; Yehuda Gaulan, who retired from the Foreign Service with the rank of Ambassador and entered private practice in Jerusalem; and the present author, seconded from the Political Department of the Jewish Agency for Palestine, who became the legal adviser of the Israel Foreign Ministry (1948–1967) and retired with the rank of Ambassador. All were trained practising lawyers with experience in public law and administration. The secretary was Ms Hanna Even-Tov, Chief Archivist of the Jewish Agency for Palestine. For the allocation of work among the members of that Secretariat, see Yehudit Karp, ‘Ha Moetsa ha Mishpatit: Reshit Alilot Hakika [The Legal Council – The Beginnings of the Adventures of Israeli Legislation], Sefer Uri Yadin vol. II [Liber Amicorum Uri Yadin] 222 n. 54 (5940–1990). In this article they are referred to as the Jerusalem Secretariat.

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do with the constitution of the new State: that was a political matter for the constituent assembly envisaged by the General Assembly’s resolution. The work of the Legal Council, as indeed the work of the Emergency Committee in general, was at first hampered, and subsequently in effect brought to a standstill, owing to the difficulty and later practical impossibility of communication between the three main Jewish urban centres, Jerusalem, Tel Aviv and Haifa. In fact the Legal Council itself never was able to hold a plenary meeting with all or even a majority of its members present. The War of Independence in that phase had developed above all into a bitter struggle for control of the lines of communication in Palestine and, for the Jews, to obtain and maintain control over the areas allocated to the Jewish State under the United Nations Plan. Jewish Jerusalem came under a close siege, and its main land communications with Tel Aviv and the rest of the country were severed. There was almost no internal air communication in those days. Telephonic communications from Jerusalem were cut completely; and only with difficulty could radio communication be maintained for high priority matters, which did not include the legal work. That is part of the background against which the initial legislation for the assumption of authority by the Jewish State was conceived and prepared. The work of the Legal Secretariat falls into two principal phases. During the first three months of 1948 it undertook a minute examination of all the statute book of Palestine. That examination enabled it to grasp the nature of the legislative measures which would be needed to regulate the immediate assumption of the major aspects by the Jewish authorities and to ensure that the new State would have a workable and working legal and administrative system from the first day of its existence, and that its legislative enactments, whatever form they might take, would not be challenged. It might be thought that this would be an easy matter – the law in force in Palestine would simply continue to be in force with necessary mutatis mutandis adjustments until replaced by legislation by duly enacted legislation of the new authorities.16 However, in the conditions then existing in Palestine, that solution was not possible or feasible for the Jewish State. The main reason was that the law in force in Palestine – both statute law and judicial precedents – 16

On this, see my ‘The Effect of Change of Sovereignty on Municipal Law’, 27 BYIL 267 (1950). The British authorities apparently also assumed that this would be the case. Section 3 of the Palestine Act, 1948, provided for the repeal of a number of enactments of the British Parliament which had been extended to Palestine, but subsection (2) contained a provision to the effect that nothing in that subsection should be construed as preventing the continuance in force of any such enactment after the relinquishment of the Mandate as part of the law of Palestine. If, as Kelsen would have it, time is an element of the State, how could a foreign Parliament lay down anything about the law to be in force in a given territory after it had ceased to have any responsibility for it? For this view of Kelsen, see his Principles of Inter-national Law 381 (2nd ed., by R.W. Tucker, 1966).

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included legislation and precedents that the Jewish side regarded as grave violations of the Mandate for Palestine and therefore as void and illegal ab initio. That included the legislation to give effect to the White Paper of 193917 regarding the prohibition of land sales to Jews,18 and the prohibition of Jewish immigration into the country.19 Complications existed in both these respects. As for land sales, notwithstanding the legal prohibitions transactions for the transfer of ownership of land to Jews in the prohibited areas had taken place, and the legal validity of those transactions had to be preserved. Here the decision was to repeal the land transfer regulations retroactively not to the day of their promulgation, but even earlier, to the day of the White Paper, 18 May 1939. More serious was the question of the status of persons and ships declared by the Palestine Government to be ‘illegal’. As for persons, owing to the complicated system of interreligious law in force in Palestine, inherited from the millet system of the Ottoman regime, questions of personal status were frequently connected in one way or another to nationality, and statelessness (im-plicit in the concept of illegal immigrant) was an additional complication. Although the legislation itself was repealed as from 15 May 1948, it was decided that Jews classified by the mandatory authorities as ‘illegal immigrants’ should be deemed to have been legal immigrants as from the date of their entry into Palestine. Under the Palestine legislation ships engaged in transporting ‘illegal’ immigrants could be forfeit to the Palestine Government. That problem too had to be resolved and the vessels restored to their rightful owners (although at one time the Israel Government attempted to argue that as these vessels had become the property of the Government of

17 18

19

Palestine: Statement of Policy, Parliamentary Papers, Cmd. 6019 (1939); reproduced in Moore, op. cit. in n. 4 above at 210. Land Transfer Regulations, 1940, Palestine Gazette Extraordinary No. 988, 28 February 1940, Supplement II 327. Reduced to basics, those Regulations prohibited purchases of land by Jews in the districts of Judea and Samaria, and in the Negev (including the Gaza strip), and presaged later issues regarding those areas, including the so-called Oslo Agreement – the Declaration of Principles on Interim Self-Government Arrangements, U.N. doc. A/48/486 – S/26560 (September 1993). Immigration Ordinance No 5 of 1941, Palestine Gazette No. 1082, Supplement I, Laws of Palestine (1941) 6; Defence (Emergency) Regulations, 1945, ibid., No. 1422, Supplement II, Regulations (1945) 1055, articles 102 to 107C. That legislation was repealed as from 15 May 1948. The questions of nationality were deferred for fuller consideration in light of the complicated political and legal problems involved, and were settled by the Law of Return, 5710–1950 and the Israel Nationality Law, 5712–1952. Authorized Translation in Laws of the State of Israel, vol. 4 (1950) at 118 and vol. 6 (1952) at 50. And see my Israel Nationality Law 5712–1952 and the Law of Return 5710–1950’, 81 Journal de Droit international [Clunet] (1954). (Those Laws have since been amended several times.) On the question of the nationality of persons before the enactment of the Israel Nationality Law, the note State succession – Effect upon nationality – Law of Israel, 17 ILR at 110.

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Palestine, they automatically became the property of the Government of Israel – an argument given short shrift by the Courts).20 It is sometimes said that the retention in force of the law in force on the eve of the termination of the Mandate by-passed at that stage the difficult and ideologically charged question of the place of Jewish law in the legal system of Israel, so that it could be examined later in greater calm – as in fact it was. That may be so. During the interim period there had been some discussion and controversy over this question. However, such considerations carried little weight at the time, when all attention was concentrated on finding and establishing workable solutions for the anticipated situation of unsettled administrative conditions and warfare which it was assumed – correctly – would face the Jewish authorities immediately on the termination of the Mandate. The Jerusalem phase of the Legal Secretariat accordingly commenced with an analysis in highly pragmatic terms of the make-up of the Government of Palestine, its relationship to the British Government in London (this was necessary in order to establish what ties would be cut and what should come in their place), and the structure, membership and working methods of the High Commissioner and his Council. That was essential as the point of departure. It brought into focus the immediate governmental needs on the first day of independence (including taxation). In turn it enabled the responsible Jewish authorities to separate that requirement off from all other matters that would more properly be left for the future legislative organs of the new State. The important thing was to ensure a proper legal basis for the essential minimum of effective government and for Jewish administrative efficiency in the anticipated conditions of disintegrating government and of warfare (including the possibility that Arab forces would succeed in reaching the sea at one point or another thereby cutting off one part of the country from another), and to set out with requisite clarity the contents of the initial legal system to be put into place simultaneously with the declaration of independence. The Secretariat also made a preliminary examination of the fundamental legal, as distinct from to the political and ideological, structure of the declaration of independence itself.21 The Legal Secretariat then had to transform the results of its analyses into appropriate texts. In this phase the Secretariat could only make a start on

20

21

For the effect of the retroactive repeal of the mandatory legislation regarding the confiscation of ships engaged in ‘illegal’ immigration, cf. Tyre Shipping Co. Ltd v. Attorney-General (1950), 17 ILR 107. By chance, the American Declaration of Independence played a certain role in this. A wellwisher in London sent me a new edition of Jefferson’s Parliamentary Manual then recently published, and this happily had found its way into besieged Jerusalem. It made pleasant, and useful, reading in the conditions of the times. It will be noted that unlike the American Declaration of Independence, the Israel Declaration contains no criticism of the activities of the British Government.

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that, especially as several significant political features were not known to its personnel working in Jerusalem. Among these was the name of the new State (not really essential at that time for legislative proposals), and the new State’s boundaries – this last being left open in light of the unsettled political situation.22 Another undetermined issue was the relationship that should exist with the transition mechanism established by the General Assembly for the period of transition, and more particularly with the Palestine Commission, contained in the General Assembly resolution, notwithstanding the attitudes of the British and Arab parties. On 25 March 1948 Shertok (Sharett), then in New York, wrote to the Chairman of the Palestine Commission in New York (Lisicky) requesting the immediate establishment of the Provisional Council of Government for the Jewish State as envisaged in Part B of the Plan of Partition with Economic Union. That request was not met.23 At that point of time it was still hoped that the Arabs of Palestine would accept the compromise, that the British authorities would reconsider their position and co-operate with the Palestine Commission as their forces were withdrawn, and that the Economic Union of the two new States together with the corpus separatum of Jerusalem would come into existence. In consequence, the then current planning, as opposed to contingency planning, was sited within that framework. The references in the Declaration of Independence to an ‘Elected Constituent Assembly’ and ‘Provisional Council of State’ reflect that. On 12 April 1948 the Zionist Actions Committee, the supreme body of the World Zionist Organization, formally established two new bodies as envisaged in Part B of the United Nations Plan, namely the People’s Administration (Minhelet ha Am) and the People’s Council (Moetset ha Am) – an executive and a deliberative organ respectively. These, together with the Jewish Agency for Palestine (which retained its formal and official status while the Mandate remained in force) were to assume or receive governmental powers. With the establishment of the People’s Administration and the People’s Council, the Emergency Committee as such ceased to function and it was officially disbanded with the establishment of the Provisional Government. Part of its Secretariat, however, was retained and constituted the nucleus for the new Government’s Secretariat. On 15 May those two bodies were renamed the

22

23

See the debate in the Provisional Administration on 12 and 13 May 1948. Protokolim shel Minhelet ha Am (Protocols of the People’s Administration) at 114 (published by the State Archives in 1978). By the narrow vote of five to four the proposal by the future Minister of Justice to include a reference to the boundaries in the Declaration of Independence was defeated. The major issue in this respect, however, was not the general physical boundaries of the new State, but the relationship of Jerusalem to it, having regard for the provisions relating to Jerusalem in the United Nations Plan. Documents (n. 3 above) at 506. For the reply, by Bunche of 29 March 1948, see p. 531; and for a further reaction by Shertok on 30 March, ibid. at 537. See also doc. 330 at p. 540. See further the meeting with Lisicky of 12 April 1948, ibid. doc. 375, p. 621.

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Provisional Government of Israel and the Provisional Council of State respectively, terminology taken from the United Nations Plan. They continued as such until the Constituent Assembly – also a term taken from the United Nations Plan – was convened on 14 February 1949, after general elections held on 25 January 1949, when they became the Government of Israel and the Knesset. The Legal Secretariat, both in Jerusalem and in Tel Aviv, however, continued to exist and function, first as representative of the People’s Administration, and (in Jerusalem) as representative of the Provisional Government (so long as the status of the City was unclear).24 On 21 April 1948, the Legal Secretariat in Jerusalem was in a position to submit to Joseph its first set of proposals, seven texts in all, covering those aspects. That was done under cover of a letter signed by all five members of the Legal Secretariat.25 At the same time the Secretariat appreciated that the proposals would have to be consolidated and shortened, especially since the security situation grew increasingly threatening as the date for the termination of the Mandate approached. Yadin was able to take these drafts to Tel Aviv on the last convoy to leave Jerusalem before the siege was complete. In Tel Aviv the work was continued and brought to completion under the direct responsibility of Felix Rosenblueth, later known as Pinhas Rosen, who was to become the first Minister of Justice of Israel, through the corresponding organs working within the context of the Emergency Committee and its successor bodies.

24

25

This was due to the continued hope that the United Nation’s plan would be put into effect. Jerusalem itself was placed under Jewish military administration, with Dr Joseph as the civilian Military Governor. The position of Jerusalem as part of Israel was regularized later. On 28 June 1948 the Prime Minister (D. Ben Gurion) announced that there was no legal distinction between Jerusalem (except the Old City, then occupied by Jordan) and the rest of Israel, and a Proclamation to that effect was promulgated on 2 August. Provisional State Council, Protocols (in Hebrew), 6th meeting, 621; 7th meeting, 9; Iton Rishmi [Official Gazette] No. 12, 2 August 1948. The Jewish military administration of Jerusalem was formally abolished on 2 February 1949. Iton Rishmi No. 48, 4 February 1949, at 376. The Hebrew date of 14 February 1949 was 15 Shevat 5709, a minor Jewish holiday (Tu bi Shvat) or the New Year for Trees, Arbour Day. According to Talmudic sources, that was the date from which the tithe due on fruit trees was calculated – an appropriate birthday for the supreme legislative organ responsible for the annual budget of the country, and taxation. Israel State Archives, Record Group 41, No. 41/135. This included some draft laws and two proclamations. The text of those two proclamations is not found in that Record Group. My personal recollection is that one proclamation related to the law to be in force as from the moment of independence and was drafted in such a way as to exclude the obnoxious ‘White Paper’ legislation; and the second gave the new Government the power to rule by decree if military circumstances made this necessary. In the event, that second proclamation was not adopted. On 19 May 1948 the Provisional Council of State, acting by virtue of section 9 (c) of the Law and Administration Ordinance, proclaimed a general state of emergency in the country. Iton Rishmi (Official Gazette), No 2, 21 May 1948 at 6.

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The Jerusalem Secretariat (without Yadin) continued to work on the drafts with a view to improving, consolidating and shortening them. It was, however, unable to bring its conclusions to the knowledge of its colleagues in Tel Aviv. The law did not attract a sufficiently high degree of priority in the fragile and intermittent communications system operating in Jerusalem under siege. Nevertheless, Yadin was familiar with its thinking, and was able to carry out similar work with his colleagues in Tel Aviv. In one of its drafts, as might be expected, the Jerusalem Secretariat had included a provision that (subject to the abolition of the White Paper laws) the law in force in Palestine on 14 May 1948 should continue to be in force on 15 May with appropriate changes, as Israeli statute law. Towards the end of April the Jerusalem Secretariat became aware of some projected legislation by the Mandatory Government that would have been contrary to the new State’s foreign policy interests, and appropriate steps were taken to prevent that legislation from being gazetted.26 That led to the British/Palestine Government’s legislation mentioned above, abolishing the requirement for legislation to be published in the Palestine Gazette before its entry into force. In a revision of its draft, the Jerusalem Secretariat therefore proposed that the relevant provision should read that the law in force in Palestine on 10 April 1948 should continue in force on 15 May.27 However, it was unable to transmit that redraft, or the reasons for it, to Tel Aviv. The result was that the original text appeared in the instruments that accompanied the independence of Israel. It was only a year later that this was corrected, with retroactive effect. In the Law and Administration Ordinance (Amendment) Law of 5709–1949 it was enacted that ‘an unpublished law has no effect and never had any effect’. An ‘unpublished law’ was defined as a law which purported to have been enacted during the period between 29 November 1947 and 15 May 1948 and which was not published in the Palestine Gazette despite its being a law of a category publication of which in the Gazette was, immediately prior to that period, obligatory or customary.28 Another activity of the Jerusalem Secretariat was to ensure that the Jerusalem Courts – given Jerusalem’s place in the United Nations Plan – staffed by their Jewish personnel, would resume their activities on Sunday, 16 May 1948, at the point at which they had broken off earlier, as Israeli courts working in the name of the Provisional Government of Israel.29 One of the texts proposed envisaged a provision to the effect that the courts existing in the territory of the new state should continue functioning within the scope

26 27 28 29

See n. 8 above. Israel State Archives, file cited in n. 25 above. Appendix II, No. 6 below. Cf. the Palestine Post, 17 May 1948, p. 3. The Jerusalem District Court was opened by Haim Cohen, the senior member of the Jerusalem Secretariat.

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of their authority according to the law in force. This was limited to the Magistrates and District Courts and did not include anything corresponding to the Supreme Court of Palestine. The Supreme Court of Israel was a political matter, to be settled by the State organs after independence. The Jerusalem Secretariat, with the assistance of the Jewish armed forces, also ensured protection for the valuable library of over 10,000 books of the Supreme Court of Palestine and its retention in Jewish hands. That Court was housed in the Russian Compound, an area closed off by the British authorities during the disturbances which preceded the end of the Mandate. On their withdrawal a heavy battle took place between the Jewish and Arab forces for possession of the area, a strategic point in the very heart of Jerusalem.30 The library was retrieved with difficulty under fire. The final major work of this Secretariat was to formulate a basic plan for the new Ministry of Justice, which in effect was the only Ministry of the Provisional Government to start from scratch, employing trained Jewish personnel from the mandatory administration. The general conclusion of this phase of the preparatory work was that four documents of legiferic implications would be required: (1) the Declaration of Independence itself; (2) a proclamation to be issued simultaneously regarding the law in force as at the time of independence; (3) another proclamation by which the Provisional Government would assume power to rule by emergency decree should circumstances warrant – a reflection of the assumption that full scale war was imminent; and (4) a formal enactment providing for the transfer of power and authority and its assumption by the authorities of the new State, including the replacement of the former ties of the legal system of Palestine to London (appeals to the Judicial Committee of the Privy Council, for example). The first three of these would have to be adopted on the Sabbath eve, 14 May, while the Mandate was still technically in force, to take effect at midnight. The fourth could be the first formal enactment of the new legislature. The final text of the first two of these was prepared and adopted by the People’s Administration and the People’s Council before 14 May 1948 and are included in Appendix II, No. 1 below. The third was found to be unnecessary: the emergency powers of the Government of Palestine were automatically assumed by the Provisional Government of Israel as part of the law in force on the termination of the Mandate. The Provisional State Council approved and adopted them all in the afternoon of Friday, 14 May 1948, ‘effective from the moment of the termination of the Mandate’. The fourth, the more comprehensive Law and Administration Ordinance, 5708–1949, was adopted after scrutiny by the Provisional State Council on 19 May as duly enacted legislation. It was signed by David Ben

30

That battle goes under the name of Operation Kilshon (Pitchfork), between 12 and 14 May 1947.

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Gurion as Prime Minister and Felix Rosenblueth (later Pinhas Rosen) as Minister of Justice.31 Apart from the work of the Legal Secretariat in Jerusalem and in Tel Aviv, the Jewish authorities had assumed full control, and had issued different kinds of orders of quasi-legislative effect, as the British forces were progressively withdrawn from the Jewish parts of the country in the areas designated as the Jewish State in the United Nations Plan. This process commenced as early as 15 December 1947, when the British withdrew completely from the Tel Aviv area (while maintaining their sea blockade of the coast to prevent ‘illegal’ immigration). The transitional legislation adopted by Israel therefore included retroactive validating provisions for all those actions.32 The General Assembly’s Plan required the new States to make a formal declaration, one provision of which required each new State to accept international agreements and conventions to which Palestine had become a party.33 Accordingly, one of the tasks which the Jerusalem Secretariat was required to undertake was to prepare a full list of the international treaties by which Palestine was bound. This list, which Eduardo Vitta compiled, came into use later. In 1950 negotiations took place between the Israel and British Governments regarding matters outstanding at the end of the Mandate. One of the items on the agenda for those negotiations was the future of the international treaty obligations binding on Palestine, particularly the multilateral treaties. Israel was at the time willing to assume those obligations as were

31

32

33

For the Law and Administration Ordinance, 5708–1948, and its immediate amendments, see Appendix II, Nos. 2, 3 and 4 below. That Ordinance, as amended, is still in force and together with the Transition Law, 5109–1949 (Appendix II, No. 5 below) constituted for a long time the basic law of the country. On the recommendation of the Legal Secretariat, it was decided to continue with the mandatory designation of ‘Ordinance’ for legislation enacted by the provisional authorities, reserving the current term ‘Law’ for legislation enacted by the permanent legislative organ, originally designated as the Constituent Assembly (following the United Nations suggestion), and renamed Knesset. On the word provisional in the nomenclature used at that time, see Shertok to Ben Gurion, 6 May 1948, summarizing opinion of Jacob Robinson. Documents at 743. In this context, when in 1951 Israel accepted the so-called compulsory jurisdiction of the International Court of Justice, it excluded from the scope of its acceptance disputes concerning situations or facts ‘which do not involve a legal title created or conferred by a Government or authority other than the Government of the State of Israel or an authority under the jurisdiction of that Government’. See my Documents on the International Court of Justice 697 (1st bilingual edition, 1991). That was chapter 3 of the Declaration contained in Part I, section C, of the Plan of Partition with Economic Union. In his telegram to Mr Trygve Lie, Secretary-General of the United Nations, of 15 May 1948, Mr Shertok, now signing as ‘Foreign Secretary’ of the Provisional Government of Israel, intimated his willingness to sign that Declaration. Israel State Archives, Documents on the Foreign Policy of Israel, vol. 1, 14 May–30 September 1948 at 6 (1981). That Declaration was never made, and Israel was admitted into the United Nations without being required to make it.

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still in force and relevant. However, comparison of the list prepared by the Legal Secretariat with a corresponding list prepared by the British authorities disclosed several discrepancies, for which no explanation was vouchsafed. In those circumstances, the Governments agreed to drop the matter, and instead Israel had to adopt the so-called tabula rasa approach to the problem of the succession of treaties. That required that Israel accede afresh to those of the treaties formerly binding Palestine which it required. This related in practice to multilateral treaties. For the most part Israel was able to do this retroactively to 15 May 1948 (subject to the absence of objection from any of the other parties). In one or two instances there was objection not, it is believed, on political grounds but on legal grounds connected with the relation of international treaties to the internal law of one or other country.34 * * * This instance of ‘State succession’ presented unique features virtually unprecedented at the time. The transitional provisions of the partition plan, in many respects a text-book diagram of legal perfectionism, were seen as unworkable almost from the day of their adoption. The fact is that on 15 May 1948, at the height of a most bitter war which dragged on for several months and led to heavy casualties all round, and without any co-operation from the predecessor authorities, the State of Israel emerged fully fledged and operational, almost Athena-like. Its authorities, civil and military, were able to conduct war-time public affairs on a sound legal basis. That was not State succession as expounded in the books. It was State succession as can be found in practice when the predecessor State does not co-operate in the change of sovereignty or authority.

34

For Israel’s position regarding the treaties to which Palestine was a party, see its reply to the Secretary-General of the United Nations in International Law Commission, Yearbook, 1950, vol. II (A/CN.4/19) at 206; United Nations Legislative Series, Materials on the Succession of States 38 (Sales No. E/F.68/V.5, 1967); and my ‘Israel and the International Treaties of Palestine’, 77 Journal de Droit international [Clunet] 1140 (1950).

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Appendix I Extract from General Assembly Resolution 191 (II) B. Steps Preparatory to Independence 1. A Commission shall be set up consisting of one representation of each of five member States. The Members represented on the Commission shall be elected by the General Assembly on as broad a basis, geographically and otherwise, as possible. 2. The administration of Palestine shall, as the mandatory Power withdraws its armed forces, be progressively turned over to the Commission; which shall act in conformity with the recommendations of the General Assembly, under the guidance of the Security Council. The mandatory Power shall to the fullest possible extent co-ordinate its plans for withdrawal with the plans of the Commission to take over and administer areas which have been evacuated. In the discharge of this administrative responsibility the Commission shall have authority to issue necessary regulations and take other measures as required. The mandatory Power shall not take any action to prevent, obstruct or delay the implementation by the Commission of the measures recommended by the General Assembly. 3. On its arrival in Palestine the Commission shall proceed to carry out such measures for the establishment of the frontiers of the Arab and Jewish States and the City of Jerusalem in accordance with the general lines of the recommendations of the General Assembly on the partition of Palestine. Nevertheless, the boundaries as described in part II of this plan are to be modified in such a way that village areas as a rule will not be divided by state boundaries unless pressing reasons make that necessary. 4. The Commission, after consultation with the democratic parties and other public organizations of the Arab and Jewish States, shall select and establish in each State as rapidly as possible a Provisional Council of Government. The activities of both the Arab and Jewish Provisional Councils of Government shall be carried out under the general direction of the Commission. 5. Subject to the provisions of these recommendations, during the transitional period the Provisional Councils of Government, acting under the Commission, shall have full authority in the areas under their control, including authority over matters of immigration and land regulation. 6. The Provisional Council of Government of each State, acting under the Commission, shall progressively receive from the Commission full

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responsibility for the administration of that State in the period between the termination of the Mandate and the establishment of that State’s independence. 7. The Commission shall instruct the Provisional Councils of Government of both the Arab and Jewish States, after their formation, to proceed to the establishment of administrative organs of government, central and local. 8. The Provisional Council of Government of each State shall, within the shortest time possible, recruit an armed militia from the residents of that State, sufficient in number to maintain internal order and to prevent frontier clashes. This armed militia in each State shall, for operational purposes, be under the command of Jewish or Arab officers resident in that State, but general political and military control, including the choice of the militia’s high command, shall be exercised by the Commission. 9. The Provisional Council of Government of each State shall, not later than two months after the withdrawal of the armed forces of the mandatory Power, hold elections to the Constituent Assembly which shall be conducted on democratic lines. The election regulations in each State shall be drawn up by the Provisional Council of Government and approved by the Commission. Qualified voters for each State for this election shall be persons over eighteen years of age who are: (a) Palestinian citizens residing in that State and (b) Arabs and Jews residing in that State, although not Palestinian citizens, who, before voting, have signed a notice of intention to become citizens of such State. Arabs and Jews residing in the City of Jerusalem who have signed a notice of intention to become citizens, the Arabs of the Arab State and the Jews of the Jewish State, shall be entitled to vote in the Arab and Jewish States respectively. Women may vote and be elected to the Constituent Assemblies. During the transitional period no Jew shall be permitted to establish residence in the area of the proposed Arab State, and no Arab shall be permitted to establish residence in the area of the proposed Jewish State, except by special leave of the Commission. 10. The Constituent Assembly of each State shall draft a democratic constitution for its State and choose a provisional government to succeed the Provisional Council of Government appointed by the Commission. The constitution of the States shall embody chapters 1 and 2 of the Declaration provided for in section C below and include inter alia provisions for: (a) Establishing in each State a legislative body elected by universal suffrage and by secret ballot on the basis of proportional representation, and an executive body responsible to the legislature;

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(b) Settling all international disputes in which the State may be involved by peaceful means in such a manner that international peace and security, and justice, are not endangered; (c) Accepting the obligation of the State to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; (d ) Guaranteeing to all persons equal and non-discriminatory rights in civil, political, economic and religious matters and the enjoyment of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly and association; (e) Preserving freedom of transit and visit for all residents and citizens of the other State in Palestine and the City of Jerusalem, subject to considerations of national security, provided that each State shall control residence within its borders. 11. The Commission shall appoint a preparatory economic commission of three members to make whatever arrangements are possible for economic co-operation, with a view to establishing, as soon as possible, the Economic Union and the Joint Economic Board, as provided in section D below. 12. During the period between the adoption of the recommendations on the question of Palestine by the General Assembly and the termination of the Mandate, the mandatory Power in Palestine shall maintain full responsibility for administration in areas from which it has not withdrawn its armed forces. The Commission shall assist the mandatory Power in the carrying out of these functions. Similarly the mandatory Power shall cooperate with the Commission in the execution of its functions. 13. With a view to ensuring that there shall be continuity in the functioning of administrative services and that, on the withdrawal of the armed forces of the mandatory Power, the whole administration shall be in the charge of the Provisional Councils and the Joint Economic Board, respectively, acting under the Commission, there shall be a progressive transfer, from the mandatory Power to the Commission, of responsibility for all the functions of government, including that of maintaining law and order in the areas from which the forces of the mandatory Power have been withdrawn. 14. The Commission shall be guided in its activities by the recommendations of the General Assembly and by such instructions as the Security Council may consider necessary to issue. The measures taken by the Commission, within the recommendations of the General Assembly, shall become immediately effective unless the Commission has previously received contrary instructions from the Security Council.

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The Commission shall render periodic monthly progress reports, or more frequently if desirable, to the Security Council. 15. The Commission shall make its final report to the next regular session of the General Assembly and to the Security Council simultaneously. Appendix II Relevant Israeli Legislation, 1948–1949 1. The Declaration of Independence and the accompanying Proclamation. Laws of the State of Israel, authorized translation from the Hebrew, vol. 1, Ordinances, 5708–1948, 3. 2. The Law and Administration Ordinance No. 1 of 5708–194835 Ibid. 7. 3. The Law and Administration (Amendment) Ordinance No. 5 of 5708–1948 Ibid. 17. 4. The Law and Administration (Further Provisions) Ordinance No. 13 of 5708–1948 Ibid. 26 5. Transition Law, 5709–1949 Ibid. vol. 3, 5709–1949, 3 6. The Law and Administration Ordinance (Amendment) Law, 5709–1949 Ibid. 73 No. 1 DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL

ERETZ-ISRAEL36 was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped. Here they first attained to statehood, created cultural values of national and universal significance and gave to the world the book of books. After being forcibly exiled from their land, the people kept faith with it throughout their Dispersion and never ceased to pray and hope for their return to it and for the restoration in it of their political freedom. Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland.

35 36

Israeli legislation is dated by reference to the Jewish and Gregorian years. Eretz-Israel (Hebrew) – the Land of Israel, Palestine

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In recent decades they returned in their masses, Pioneers, ma’apilim,37 defenders, they made deserts bloom, revived the Hebrew language, built villages and towns, created a thriving community, controlling its own economy and culture, loving peace but knowing how to defend itself, bringing the blessings of progress to all the country’s inhabitants, and aspiring towards independent nationhood. In the year 5657 (1897), at the summons of the spiritual father of the Jewish State, Theodor Herzl, the First Zionist Congress convened and proclaimed the right of the Jewish people to national rebirth in its own country. This right was recognized in the Balfour Declaration of the 2nd November, 1917, and re-affirmed in the Mandate of the League of Nations which, in particular, gave international sanction to the historic connection of the Jewish people and Eretz-Israel and to the right of the Jewish people to rebuild its National Home. The catastrophe which recently befell the Jewish people – the massacre of millions of Jews in Europe – was another clear demonstration of the urgency of solving the problem of its homelessness by re-establishing in Eretz-Israel the Jewish State, which would open the gates of the homeland to every Jew and confer upon the Jewish people the status of a fully-privileged member of the comity of nations. Survivors of the Nazi holocaust in Europe, as well as Jews from other parts of the world, continued to migrate to Eretz-Israel, undaunted by difficulties, restrictions and dangers, and never ceased to assert their right to a life of dignity, freedom and honest toil in their national homeland. In the Second World War, the Jewish community of this country contributed its full share in the struggle of the freedom- and peace-loving nations against the forces of Nazi wickedness and, by the blood of its soldiers and its war effort, gained the right to be reckoned among the peoples who founded the United Nations. On the 29th November 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish State in Eretz-Israel; the General Assembly required the inhabitants of Eretz-Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable. This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State. ACCORDINGLY WE, MEMBERS OF THE PEOPLE’S COUNCIL, REPRESENTATIVES OF THE JEWISH COMMUNITY OF ERETZISRAEL AND OF THE ZIONIST MOVEMENT, ARE HERE ASSEMBLED ON THE DAY OF THE TERMINATION OF THE BRITISH

37

Ma’apilim (Hebrew) – immigrants coming to Eretz-Israel in defiance of restrictive legislation.

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MANDATE OVER ERETZ-ISRAEL AND, BY VIRTUE OF OUR NATURAL AND HISTORIC RIGHT AND ON THE STRENGTH OF THE RESOLUTION OF THE UNITED NATIONS GENERAL ASSEMBLY HEREBY DECLARE THE ESTBLISHMENT OF A JEWISH STATE IN ERETZ ISRAEL, TO BE KNOWN AS THE STATE OF ISRAEL. WE DECLARE that, with effect from the moment of the termination of the Mandate, being tonight, the eve of Sabbath, the 6th Iyar 5708 (15th May 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called ‘Israel’. THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants, irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations. THE STATE OF ISRAEL is prepared to cooperate with the agencies and representatives of the United Nations in implementing the resolution of the General Assembly of the 29th November 1947, and will take steps to bring about the economic union of the whole of Eretz-Israel. WE APPEAL to the United Nations to assist the Jewish people in the building-up of its State and to receive the State of Israel into the comity of nations. WE APPEAL – in the very midst of the onslaught launched against us now for months – to the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions. WE EXTEND our hand to all neighbouring States and their peoples in an offer of peace and good neighbourliness, and appeal to them to establish bonds of co-operation and mutual help with the sovereign Jewish people settled in its own land. The State of Israel is prepared to do its share in a common effort for the advancement of the entire Middle East.

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WE APPEAL to the Jewish people throughout the Diaspora to rally round the Jews of Eretz-Israel in the tasks of immigration and upbuilding and to stand by them in the great struggle for the realization of the age-old dream – the redemption of Israel. PLACING OUR TRUST IN THE ALMIGHTY, WE AFFIX OUR SIGNATURES TO THIS PROCLAMATION AT THIS SESSION OF THE PROVISIONAL COUNCIL OF STATE, ON THE SOIL OF THE HOMELAND, IN THE CITY OF TEL-AVIV, ON THIS SABBATHJ EVE, THE 5TH DAY OF IYAR 5708 (14TH MAY 1948). [Here follow the signatures] No. 1 continued PROCLAMATION

In virtue of the Declaration of Independence published this day, the fifth of Iyar, five thousand seven hundred and eight (14 May 1948), under which the Provisional Council of State and the Provisional Government of the State of Israel have been constituted, the Provisional Council of State hereby declares as follows: 1. The Provisional Council of State is the legislative authority. The Provisional Council of State is entitled to delegate some of its legislative power to the Provisional Government for the purpose of urgent legislation. 2. Such provisions of the law as arise from the White Paper of 1939 are hereby declared null and void. Sections 13 to 15 of the Immigration Ordinance, 1941, and Regulations 102 to 107C of the Defence (Emergency) Regulations, 1945, are hereby repealed, The Land Transfers Regulations, 1940, are hereby repealed retroactively as from 29 Iyar 5699 (18 May 1939). 3. So long as no laws have been enacted by or on behalf of the Provisional Council of State, the law which existed in Palestine on 5 Iyar 5708 (14 May 1948) shall continue in force in the State of Israel, in so far as such continuance in force is consistent with this Proclamation, with the future laws and with the changes arising from the State and its authorities. Given this day, 5 Iyar 5709 (14 May 1948) THE PROVISIONAL COUNCIL OF STATE

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No. 2 THE LAW AND ADMINISTRATION ORDINANCE

No. 1 of 5708–1948 By virtue of the power conferred upon the Provisional Council of State by the Declaration of the Establishment of the State of Israel of 5 Iyar 5708 (14 May 1948) and by the Proclamation of that date, the Provisional Council of State hereby enacts as follows: Chapter One: The Administration 1. The Provisional Council of State (a) The Provisional Council of State consists of the persons whose names are set out in the Schedule to this Ordinance. Representatives of Arabs being residents of the State who recognize the State of Israel will be co-opted on the Provisional Council of State, as may be decided by the Council; their non-participation shall not derogate from its power. (b) The Provisional Council of State itself prescribes the procedure for its meetings. 2. The Provisional Government (a) The Provisional Government consists of the persons whose names are set out in the Schedule to this Ordinance. Representatives of the Arabs being residents of the State of Israel who recognize the State of Israel will be co-opted on the Provisional Government, as may be decided by the Provisional Council of State; their non-participation in the Provisional Government shall not derogate from its power. (b) The Provisional Government shall act in accordance with the policy laid down by the Provisional Council of State, shall carry out its decisions, shall report to it on its activities and shall be answerable to it for its activities. (c) The Provisional Government shall elect one of its members to be Prime Minister, and shall prescribe the functions of each of its members. A member of the Provisional Council shall be called “Minister”. (d) The Provisional Government may confer any of its powers upon the Prime Minister and upon any of the Ministers, in so far as this is not repugnant to any of the Ordinances of the Provisional State Council. (e) Decisions of the Provisional Government in respect of the functions of its members in respect of the division of powers among the Ministers shall be published in the Official Gazette. ( f )The Provisional Government itself prescribes the procedure for its meetings and business.

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3. District administration The Provisional Government may divide the area of the State into districts and sub-districts and shall demarcate their boundaries. 4. Local authorities The municipal corporations, local councils and other local authorities shall continue to act within the areas of their jurisdiction and scope of their authority. Chapter Two: Budget and Taxes 5. Budget The budget of the Provisional Government shall be fixed by an Ordinance of the Provisional Council of State. 6. Taxes etc. No Government taxes or other obligatory payments to Government the imposition whereof has not yet been authorized by the law may be imposed, and no Government taxes or obligatory payments to Government the imposition whereof is authorized by law may be increased, save in accordance with an Ordinance of the Provisional Council of State. Chapter Three: Legislation 7. Ordinances (a) The Provisional Council of State is the legislative authority. The laws shall be entitled “Ordinances”. (b) Every Ordinance shall be signed by the Prime Minister, the Minister of Justice and the Minister or Ministers charged with the implementation of the Ordinance. 8. Regulations Each Minister may make regulations for the implementation of the Ordinances which are within the scope of his authority, insofar as such Ordinances confer power to make regulations. 9. Emergency Regulations (a) If the Provisional Council of State deems it expedient to do so, it may declare that a state of emergency exists in the State, and upon such declaration being published in the Official Gazette, the Provisional Government may authorize the Prime Minister or any other Minister to make such emergency regulations as may seem to him expedient in the interests of the defence of the State, public security and the maintenance of supplies and essential services.

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(b) An emergency regulation may alter any law, suspend its effect or modify it, and may also impose or increase taxes or other obligatory payments. (c) An emergency regulation shall expire three months after it is made, unless it is extended, or revoked at an earlier date, by an Ordinance of the Provisional Council of State, or revoked by the regulationmaking authority. (d) Whenever the Provisional Council of State thinks fit, it shall declare that the state of emergency has ceased to exist, and upon such declaration being published in the Official Gazette, the emergency regulations shall expire on the date or dates prescribed in the declaration. 10. Official Gazette (a) Every Ordinance shall come into force on the date of its publication in the Official Gazette, unless it has been provided therein that it shall come into force on an earlier or later date than the date of publication. The date of the Official Gazette is deemed to be the date of publication (b) The publication of an Ordinance in the Official Gazette shall be evidence that such Ordinance has been duly enacted and signed. (c) The provisions of this section apply also to regulations and emergency regulations. 11. Existing law The law which existed in Palestine on 5 Iyar 5708 (14 May 1948) shall remain in force, insofar as there is nothing therein repugnant to this Ordinance of to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities. 12. Termination of dependence on Britain (a) Any privilege granted by law to the British Crown, British officials or British subjects is hereby declared to be null and void. (b) Any provision in any law whereunder approval or consent of any of the Secretaries of State of the King of England is required or which imposes a duty to do anything in pursuance of his directions is hereby declared to be null and void. (c) Any power assigned by law to judges, officers or members of the Police Force by reason of their being British, shall henceforth vest in judges, officers or members of the Police Force who are holders of the same office or rank in the State of Israel.

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13. Repeal of enactments of the White Paper of 1939 (a) Sections 13 to 15 of the Immigration Ordinance, 1941, and regulations 102 to 107C of the Defence (Emergency) Regulations, 1945, are hereby repealed. Any Jew who at any time entered Palestine in contravention of the laws of the Mandatory Government shall, for all intents and purposes, be deemed to be a legal immigrant retroactively from the date of his entry into Palestine. (b) The Land Transfers Regulations, 1940, are hereby repealed retroactively from the 19 Iyar 5699 (16 May 1939). No judgment given on the basis of such Regulations shall be a bar to the lodging of a new claim in the same matter. 14. Devolution of powers (a) Any power vested under the law in the King of England or any of his Secretaries of State, and any power vested under the law in the High Commissioner, the High Commissioner in Council, or the Government of Palestine, shall henceforth vest in the Provisional Government, unless such power has been vested in the Provisional Council of State by any of its Ordinances. (b) Any power vested under the law in British consuls, British consular officers or British passport control officers, shall henceforth vest in consuls and officers to be appointed for that purpose by the Provisional Government. 15. Further adaptations of law (a) “Palestine” wherever appearing in the law, shall henceforth be read as “Israel”. (b) Any provision in the law requiring the use of the English language is repealed. 16. Authorized text The Minister of Justice may issue a new text of any law which existed in Palestine on the 5 Iyar 5708 (14 May 1948) and which is still in force in the State. Such text shall contain all the modifications resulting from the establishment of the State and its authorities, and upon its publication in the Official Gazette no other text of such law shall have effect. Chapter Five: Law Courts 17. Law Courts So long as no new law concerning law courts has been enacted, the law courts existing in the territory of the State shall continue to function within the scope of the powers conferred upon them by law.

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Chapter Six: Armed Forces 18. Armed forces The Provisional Government may establish armed forces on land, on the sea and in the air, which shall have authority to do all lawful and necessary acts for the defence of the State. Chapter Seven: Transitional Provisions 19. Saving of orders, etc. (a) Any order, direction, notice, demand, certificate, instrument, authorization, licence, patent, design, trade mark and other right or concession, or any debt, obligation or liability made, given or imposed by the High Commissioner, the High Commissioner in Council, the Government of Palestine or its authorities or officers, and which was in force in the territory of the State on 5 Iyar 5708 (14 May 1948), shall continue in force until varied, amended or revoked, unless otherwise provided in any of the Ordinances of the Provisional Council of State. (b) Regulations, orders, notices and directions published between 16 Kislev 5708 (29 November 1947) and the date of the publication of this Ordinance by the Jewish Agency for Palestine, the General Council (Vaad Leumi) of the Jewish Community in Palestine, the People’s Administration, or by any of their departments in order to secure the maintenance of supplies and essential services or other economic objects, shall continue in force until varied, amended or revoked by or on behalf of the Provisional Council of State. 20. Companies, etc. (a) Any company, partnership or co-operative society which on 5 Iyar 5708 (14 May 1948) was registered in Palestine and which had on that date a registered office or place of business in the territory of the State, shall henceforth be deemed to be registered in the State. (b) Any company, partnership or co-operative society which on 5 Iyar 5708 (14 May 1948) was registered in Palestine but did not have on that date a registered office or place of business in the territory of the State, may apply for registration in the State without payment of fees within three months from the date of publication of this Ordinance. (c) This section applies mutatis mutandis to societies under the Ottoman Law of Societies, registered business names and registered ships. (d) The Minister of Justice shall make regulations for the implementation of this section.

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21. Payment of taxes, etc. The taxes and payments of every kind whatsoever which had not been paid to the Government of Palestine by 5 Iyar 5708 (14 May 1948) shall be paid to the Provisional Government. 22. Title This Ordinance may be cited as the Law and Administration Ordinance, 5708–1948. 23. Commencement This Ordinance shall have effect retroactively as from the eve of the Sabbath, 6 Iyar 5708 (15 May 1948) and its provisions amplify and interpret the provisions of the Proclamation of the Provisional Council of State of 5 Iyar 5708 (14 May 1948) SCHEDULE Members of the Provisional Council of State [Here follow the names] Members of the Provisional Government [Here follow the names] 10 Iyar 5708 (19 May 1948)

DAVID BEN-GURION Prime Minister FELIX ROSENBLUETH Minister of Justice No. 3

THE LAW AND ADMINISTRATION (AMENDMENT) ORDINANCE

No. 5 of 5708–1948 THE PROVISIONAL COUNCIL OF STATE hereby enacts as follows – 1. Amendment of Principal Ordinance The following two subsections shall be added to section 1 of the Law and Administration Ordinance, 5708–1948: – (c) Where a member of the Provisional Council of State resigns or for some other reason vacates his seat, the Provisional Council of State may appoint any other person to fill the vacancy. The name of such person shall be published in the Official Gazette as an amendment of the Schedule to this Ordinance.

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(d ) Where a state of emergency is declared under section 9(a) of this Ordinance, and as a result thereof a member of the Provisional Council of State is prevented from attending a particular meeting of the Council, the Provisional Council of State may elect any other person to fill the place of the absent member. The person so elected shall at that moment enjoy all the rights of a member of the Provisional Council of State. 2. Commencement This Ordinance shall come into force on 25 Iyar 5708 (3 June 1948) 3. Title This Ordinance may be cited as the Law and Administration (Amendment) Ordinance, 5708–1948 25 Iyar 5708

[Signatures] No. 4

THE LAW AND ADMINISTRATION (FURTHER PROVISIONS) ORDINANCE

No. 13 of 5708–1948 THE PROVISIONAL COUNCIL OF STATE enacts as follows – 1. Additional powers of Prime Minister and Ministers The Prime Minister or any Minister may assume any power which the laws within his scope of authority vest in certain officers for the purposes of their implementation. 2. Construction of laws For the removal of doubts it is hereby declared: (a) where any law enacted by or on behalf of the Provisional Council of State is repugnant to any law which was in force in Palestine on 5 Iyar 5708 (14 May 1948), or is in any way related to such a law, the earlier law shall be deemed to be repealed or amended even if the new law contains no express repeal or amendment of the earlier law. (b) Where any law enacted by or on behalf of the Provisional State Council amends a law which was in force in Palestine on 5 Iyar 5708 (14 May 1948), or is in any way related to such a law, the new law shall be construed as one with the earlier law, even where the earlier law and the new law use different expressions for the same concept.

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3. Validation of Ordinances Ordinances of the Provisional Council of State signed by the Prime Minister prior to his election and by a Minister prior to the determination of his functions are hereby validated retroactively. 4. Validation of Defence Army Ordinance The Defence Army of Israel Ordinance, 5708–1948, is hereby validated retroactively as if it were an Ordinance of the Provisional Council of State. 5. Validation of acts of Prime Minister and Ministers Acts done by the Prime Minister and by Ministers prior to the conferment of their powers by the Provisional Government are hereby given effect retroactively. 6. Acts of officers No act done by any judge, police officer, government officer or competent authority shall be invalidated on the ground that it was done by him before he was appointed in accordance with the law or before he received authority for such act. 7. Application of Ordinance Sections 3, 5 and 6 of this Ordinance apply to Ordinances signed and acts done between the 6 Iyar 5708 (15 May 1948) and date of the coming into force of this Ordinance. 8. Title This Ordinance may be cited as the Law and Administration (Further Provisions) Ordinance, 5708–1958 24 Sivan 5708 (1 July 1948) No. 5 TRANSITION LAW,

5709–1949

CHAPTER ONE: THE KNESSET 1. Designation of legislative body and members of legislative body The legislative body of the State of Israel shall be called the Knesset. The Constituent Assembly shall be called “The First Knesset”. A delegate to the Constituent Assembly shall be called a “member of the Knesset”. 2. Laws (a) An enactment of the Knesset shall be called a Law.

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(b) Every Law shall be signed by the Prime Minister and by the Minister or Ministers charged with its implementation. (c) The President of the State shall sign every Law, except Laws concerning his powers. (d ) Every Law shall be published in Reshumot within ten days from the date of its being passed by the Knesset. CHAPTER TWO: THE PRESIDENT OF THE STATE 3. Election of the President (a) The President of the State shall be elected by the Knesset by secret ballot. (b) The candidate who obtains the votes of more than half of all the members of the Knesset shall be considered as elected. (c) If no candidate obtains a majority as aforesaid, there shall be a second ballot. If no such majority is obtained in the second ballot, voting shall continue and in the third and any further ballot, the candidate who obtained the smallest number of votes in the preceding ballot shall not stand again for election. The candidate who in the third or any further ballot obtains the vote of more than half of the members of the Knesset taking part in the ballot shall be considered as elected. 4. Declaration by the President Within seven days of his election, the President shall make and sign a declaration in the Knesset, or before the Chairman of the Knesset, the following declaration: “I, (name), pledge myself as President of the State to be loyal to the State of Israel and to its laws”.

5. President’s term of office The President of the State shall hold office for the duration of the term of office of the First Knesset and until the expiration of three months from the convening of the new Knesset. 6. Functions of the President The President of the State shall sign treaties with foreign states which have been ratified by the Knesset, appoint, upon the recommendation of the competent Minister, the diplomatic representatives of the State, receive diplomatic representatives of foreign states who have been sent to Israel, and approve the appointment of consuls of foreign states; he shall also be empowered to pardon offenders and to reduce punishments.

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7. Signature of the President Every official document signed by the President of the State shall be countersigned by the Prime Minister or by such other Minister as may be designated in that behalf by the Government. CHAPTER THREE: THE GOVERNMENT 8. Resignation of the Provisional Government Immediately upon the election of the President of the State, the Provisional Government shall tender to him its resignation, but it shall continue to exercise its functions pending the constitution of a new Government. 9. Mandate to form Government After consultation with representatives of the party groups within the Knesset, the President of the State shall entrust a member of the Knesset with the task of forming a Government. 10. Composition of the Government The Government shall consist of the Prime Minister and of a number of Ministers, who may or may not be members of the Knesset. 11. Constitution of the Government (a) As soon as the Government has been formed, it shall present itself to the Knesset, and after having obtained a vote of confidence, it shall be considered as constituted. (b) Within seven days of the date on which the Government obtains a vote of confidence, the Prime Minister and the other Ministers shall read and sign before the Knesset the following declaration: “I, (name), as a member of the Government, pledge myself to be loyal to the State of Israel and to its laws, and to comply with the decisions of the Knesset”.

(c) The Government shall be jointly responsible for its activities to the Knesset, shall report to it on its activities, and shall hold office as long as it enjoys the confidence of the Knesset. (d ) The Government which receives a vote of non-confidence from the Knesset, or which has decided to resign, shall immediately tender its resignation to the President of the State, but it shall continue to function pending the constitution of a new Government in accordance with the provisions of this Law.

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CHAPTER FOUR: FURTHER PROVISIONS 12. Powers of the Government The Government shall have all the powers vested by law in the Provisional Government. 13. Reshumot Everything required by law to be published in the Iton Rishmi shall henceforward be published in Reshumot: every reference in the law to Iton Rishmi shall henceforward be deemed to be a reference to Reshumot. 14. Repeal Section 1(c) and (d), section 2(b) and (c), the second sentence of section 7(a), ands section 7(b) of the Law and Administration Ordinance, 5708 = 1948, are hereby repealed. 15. Commencement This Law shall have effect from the date of its being passed by the Knesset. No. 6 THE LAW AND ADMINISTRATION ORDINANCE (AMENDMENT) LAW,

5709–1949 Amendment of Ordinance For the removal of doubts regarding section 11 of the Law and Administration Ordinance, 5708–1948, the Ordinance shall be amended by the addition of the following section after section 11: 11A. Unpublished laws (a) An unpublished law has no effect and never had any effect. (b) “Unpublished law” in this section means a law within the meaning of the Interpretation Ordinance, 1945, which purported to have been enacted during the period between 16 Kislev 5708 (29 November 1947) and 6 Iyar 5708 (15 May 1948) and which was not published in the Palestine Gazette despite its being a law of a category publication of which in the Palestine Gazette was, immediately prior to the period, obligatory or customary. [Signatures]