The International Court of Justice

The International Court of Justice

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Serena Forlati The International Court of Justice An Arbitral Tribunal or a Judicial Body?

Serena Forlati Department of Law University of Ferrara Ferrara, Italy ISBN 978-3-319-06178-8 ISBN 978-3-319-06179-5 (ebook) DOI 10.1007/978-3-319-06179-5 Springer Cham Heidelberg New York Dordrecht London Library of Congress Control Number: 2014942022 Springer International Publishing Switzerland 2014 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

To Raffaele

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Preface The International Court of Justice is the principal judicial organ of the United Nations, and epitomises the very notion of international judicial institution. Yet, the consensual basis of its contentious jurisdiction makes it more similar to an arbitral tribunal than any other international court. The aim of this book is to assess if, and how, the properly judicial features of the Court its permanent character, the public nature of its proceedings, the non-derogable nature of its Statute, the possibility for third States to intervene in proceedings and its organic link to the United Nations have led it to depart from principles established in international arbitration and if, in the light of this, its role in the settlement of inter-state disputes can be distinguished from that of traditional, non-institutionalised arbitral tribunals. This issue is by no means new: it was debated at length when the Permanent Court of International Justice was established, and again when the International Court of Justice replaced it. However, a reappraisal seems warranted as the centennial of the adoption of the Statute of the Permanent Court of International Justice approaches. The framework in which the International Court of Justice is now operating is very different from that which existed when the Permanent Court began its activities in the 1920s. The growing readiness of States to submit to adjudication disputes involving other States or non-state actors and the ensuing proliferation of institutionalised international tribunals seem to have influenced the Court s reading of its own role although possibly not to the full extent allowed for by the letter of the Statute. Moreover, in its recent practice the Court has taken a number of steps aimed at fostering international peace and security that mark its distance from international arbitration. Whether these developments are all desirable per se, and whether they are sufficient to distinguish the contentious jurisdiction of the Court from the arbitral model as was the intention of the drafters of the Permanent Court s Statute is open to question. Hopefully, this work will provide some useful elements for this discussion. I am grateful to Professor (now Judge) Giorgio Gaja, for his many insightful comments over the years, including those on an earlier draft of this book. I am also indebted to Professor Francesco Salerno, for always finding the time to discuss my vii

viii Preface work and for the support he has given me in many other ways. All remaining shortcomings are, of course, only mine. The book is updated as of 31 December 2013. Unreported judgments and documents of the ICJ are available on the Court s website, www.icj-cij.org. Ferrara, Italy January 2014 Serena Forlati

Abbreviations Ann fr dr int Am J Int Law Am Soc Int Law BIICL Br Year B Int Law CACJ Collected Courses CTS ECHR ECJ ECR ECtHR Eur J Int Law Hum Rights Law Rev IACtHR ICJ ICSID ILA ILC ILC Model Rules ILO ILR Int Comp Law Q Inter-State Optional Rules IOS Optional Rules ITLOS Annuaire français de droit international American Journal of International Law American Society of International Law British Institute of International and Comparative Law British Year Book of International Law Central American Court of Justice Hague Academy of International Law, Collected Courses Consolidated Treaty Series European Convention on Human Rights European Court of Justice European Court Reports European Court of Human Rights European Journal of International Law Human Rights Law Review Inter-American Court of Human Rights International Court of Justice International Centre for Settlement of Investment Disputes International Law Association International Law Commission International Law Commission, Model Rules on Arbitral Procedure International Labour Organization International Law Reports International and Comparative Law Quarterly Permanent Court of Arbitration, Optional Rules for Arbitrating Disputes Between Two States Permanent Court of Arbitration, Optional Rules for Arbitration Involving International Organizations and States International Tribunal for the Law of the Sea ix

x Law Pract Int Courts Tribunals Leiden J Int Law PCA PCIJ Rev gén dr int pub RIAA Riv dir int UN UNCITRAL UNCLOS UNESCO UNTS Zeitschrift Abbreviations The Law and Practice of International Courts and Tribunals Leiden Journal of International Law Permanent Court of Arbitration Permanent Court of International Justice Revue générale de droit international public United Nations Reports of International Arbitral Awards Rivista di diritto internazionale United Nations United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea United Nations Educational, Scientific and Cultural Organization United Nations Treaty Series Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

Contents 1 Introduction... 1 1.1 The Research Topic...... 1 1.2 Some Preliminary Remarks.......................... 5 1.3 The Thesis.......................... 10 1.4 Outline of the Book... 14 References........................................... 14 Part I Arbitral and Judicial Features of ICJ Contentious Proceedings 2 Introduction to Part I... 19 References........................................... 21 3 The ICJ s Power to Adopt Rules of Court and Practice Directions... 23 3.1 The Interaction Between Arbitral Model and Judicial Function in the Rules of Court... 23 3.2 The Court s Practice Directions....................... 26 References........................................... 29 4 The Composition of the Bench in Particular Cases... 31 4.1 Introduction... 31 4.2 The Appointment of Judges ad hoc... 32 4.2.1 The Current Role of the Judge ad hoc in ICJ Proceedings............................... 33 4.2.2 The Selection of the Judge ad hoc... 35 4.2.3 Judges ad hoc in Advisory Proceedings.... 38 4.2.4 Judges ad hoc in Contentious Proceedings... 40 4.2.5 Participation of Judges ad hoc in Specific Phases of the Proceedings.......................... 42 4.3 Chambers for Particular Cases... 45 References........................................... 49 xi

xii Contents 5 The Representation of the Parties Before the ICJ... 53 References........................................... 57 6 The Organisation of Contentious Proceedings... 59 6.1 Introduction... 59 6.2 Counter-Claims...... 61 6.3 Joinder... 68 6.4 The Power to Conduct Particular Cases: Specifically, the Taking of Evidence.... 71 6.5 The Court s Residual Discretion in Matters of Procedure... 77 References........................................... 82 7 The Adoption of Provisional Measures Under Article 41 of the Statute... 85 7.1 The Conditions for Granting Interim Relief.............. 85 7.2 The Binding Nature of Provisional Measures.......... 88 7.3 The Adoption of Provisional Measures Proprio Motu and the Modification of Provisional Measures... 90 7.4 The Function of Provisional Measures.................. 93 References........................................... 98 8 Conclusions to Part I... 101 Part II The Court s Role in the Identification of the Subject-Matter of a Judgment 9 Introduction to Part II... 107 References........................................... 111 10 Judgments Infra Petita... 113 10.1 The Amendment of Submissions...................... 113 10.2 The Interpretation of the Submissions.................. 115 10.3 The Preservation of the Court s Judicial Function: The Requirement Relating to the Existence of an Actual Dispute.. 121 10.4 The Requirement to Respect the Statute and the Rules ofcourt... 123 10.5 The Safeguard of the Rights of Third Parties.......... 130 10.5.1 The Safeguard of Third Parties in the Framework of Arbitral Proceedings........................ 130 10.5.2 The Safeguard of Third Parties in ICJ Contentious Proceedings............................... 136 10.5.3 Consideration for Third Parties Interests Without Direct Bearing on the Subject-Matter of the Dispute... 137 10.5.4 Consideration for Third Parties Interests That Directly Concern the Subject-Matter of the Dispute... 144 References........................................... 152

Contents xiii 11 Judgments Ultra Petita?... 155 11.1 Extensive Interpretation of the Parties Submissions........ 155 11.2 The ICJ s Inherent Power to Raise Issues Proprio Motu... 158 11.3 Issues Raised ex Officio and the Scope of Res Judicata... 162 11.4 Statements Ultra Vires and the Court s Role as a Principal Organ of the United Nations....... 165 References........................................... 171 12 Conclusions to Part II... 173 Part III Intervention 13 Introduction to Part III... 177 References........................................... 181 14 Intervention Under Article 63 of the Statute... 183 References........................................... 186 15 Intervention Under Article 62... 189 15.1 The Object of Intervention...... 189 15.2 The Requirement of a Jurisdictional Link... 192 15.3 The Interest of a Legal Nature Required by Article 62 of the Statute.................................... 193 15.4 Intervention As a Party... 196 15.5 Intervention As a Non-Party........................ 199 References........................................... 204 16 Conclusions to Part III... 207 17 Conclusions... 209 Table of Cases... 213 Bibliography... 223