Article 38 Icj Essay Contest

By Antônio Augusto Cançado Trindade
Judge of the International Court of Justice
Former President of the Inter-American Court of Human Rights
Emeritus Professor of International Law of the University of Brasília, Brazil

I. Historical Antecedents and Lessons from the Past

The Statute of the International Court of Justice (ICJ) counted on historical antecedents to be kept in mind, in particular in respect of the Statute of its predecessor, the Permanent Court of International Justice (PCIJ). The PCIJ was created under the auspices of the League of Nations pursuant to Article 14 of the Covenant of the League of Nations.1 The Council of the League of Nations had been entrusted with the project for the establishment of the PCIJ. In early 1920, an Advisory Committee of Jurists was appointed, to prepare and submit a report concerning the establishment of the PCIJ. In June-July 1920, a draft scheme was prepared by the Advisory Committee, and then submitted to the Council of the League of Nations, which, upon its examination, laid it before the first Assembly of the League of Nations. The Third Committee of the first Assembly, after studying the matter, submitted, in December 1920, a revised draft to the League’s Assembly, which adopted it unanimously; that revised draft thus became the Statute of the PCIJ.

Although the League of Nations had taken the initiative of the creation of the PCIJ, it was not integrated into the League. The PCIJ operated from 15 February 1922 (when it held its inaugural sitting) until 1940. Many treaties and conventions conferred jurisdiction upon the PCIJ. In that period, the PCIJ settled 29 contentious cases and issued 27 advisory opinions. It was only in 1946 that the new ICJ was established,2 with the adoption of its Statute at the San Francisco Conference on 26 June 1945. The ICJ Statute relied upon the Statute of its predecessor, the PCIJ; even so, a process of redrafting was undertaken − with the necessary adjustments in the light of the historical experience3 − first by the United Nations Committee of Jurists, and then by the Fourth Committee of the United Nations Conference on International Organization (UNCIO) in San Francisco in 1945.

An important innovation introduced by the ICJ Statute was its structural interrelationship with the United Nations Charter. The ICJ was incorporated into the United Nations, its Statute forming an integral part of the United Nations Charter. Distinctly, in the case of the PCIJ, the relationship between the Court and the then existing procedures of other (arbitral) organs of dispute-settlement was stated in Article 1 of the PCIJ Statute, in the following terms: the PCIJ would be “in addition to the Court of Arbitration organized by the Conventions of The Hague of 1899 and 1907, and to the special Tribunals of Arbitration to which States are always at liberty to submit their disputes for settlement”. By contrast, the ICJ Statute is annexed to the United Nations Charter itself. It sets forth the structure of the Court, its powers and competences, and the applicable law; the ICJ’s interrelationship with the United Nations is enhanced, pursuant to Article 92 of the Charter, which states that:

“The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter”.

Thus, while Article 92 of the ICJ Statute makes reference to the PCIJ Statute, the intimate relationship between the ICJ and the United Nations is clearly defined under Article 92 of the Charter, characterizing the ICJ as “the principal judicial organ of the United Nations”. This tight connection is also evidenced by Article 93 of the Charter, which states that all Member States of the United Nations are ipso facto parties to the Statute of the ICJ. Another provision which has a direct bearing on the interrelationship between the ICJ and the United Nations is Article 94 of the Charter, which provides that each Member State of the United Nations “undertakes to comply with the decision of the International Court of Justice in any case to which it is a party”. These provisions show that, although the ICJ Statute relied on the PCIJ Statute, it also included innovations, in particular as to the interrelationship between the World Court and the United Nations. With the establishment of the ICJ, much was learned from the experience of the PCIJ, and also from its jurisprudence (infra). In April 1946, with the formal dissolution of the PCIJ, the ICJ came into operation.

II. Basis of International Jurisdiction

The ICJ Statute secures (Article 9), in the composition of the Court, the due representation of the main juridical systems of the world. The ICJ is composed of 15 judges, elected by the United Nations General Assembly and Security Council. There cannot be two judges of the nationality of the same State. In case there is not, amongst the members (elected judges) of the ICJ, a judge of the nationality of a State as contending party, this State can designate a judge ad hoc, of its choice, for the concrete case, once his or her name is approved by the members of the ICJ.

The ICJ, throughout its history, has defined its role in the judicial settlement of international disputes, as the judicial organ of the legal order of the international community as a whole, and not only of the contending parties appearing before it.4 In recent years, the ICJ has been called to pronounce upon the most diverse areas of international law, in cases originating from all the regions of the world. They have been submitted to the ICJ either through Applications Instituting Proceedings5 – on the basis of the optional clause, or else of compromissory clauses – or through Special Agreements/compromise.6 It is for the ICJ itself to decide on questions regarding its jurisdiction: according to Article 36, paragraph 6, in the event of a dispute as to whether the ICJ has jurisdiction in a given case, the matter shall be settled by a decision of the Court.

A way whereby the ICJ may have jurisdiction is through the declarations recognizing as compulsory the jurisdiction of the Court (optional clause), which take the form of a declaration of its acceptance, deposited by the State concerned with the United Nations Secretary-General. These declarations are provided for in Article 36, paragraph 2, of the Statute.7 At present (beginning of 2014), there are 70 declarations deposited with the United Nations Secretary-General.8 Out of the 70 declarations, 6 of them were made under the Statute of the PCIJ, which have not lapsed or been withdrawn, and thus remain valid, under Article 36, paragraph 5, in relation to the ICJ.

As the ICJ lacks (automatic) compulsory jurisdiction, its Statute provides for the optional clause (Article 36(2)) of acceptance of the Court’s jurisdiction (supra), as well as for compromissory clauses (Article 36(1)). As to the latter, Article 36, paragraph 1, provides the basis for the Court’s contentious jurisdiction on “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 last basis of jurisdiction is thus found in clauses of treaties and conventions that refer to the ICJ for the adjudication of disputes9 (compromissory clauses).10

Much has been written on the basis of jurisdiction of the ICJ. In my extensive Dissenting Opinion (paras. 1-214) in the ICJ’s judgment (of 1 April 2011) in the case of the Application of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), I deemed it fit to point out the difficulties experienced in the long path towards compulsory jurisdiction.11 Throughout the last decades, advances could here have been much greater if State practice would not have undermined the original purpose which inspired the creation of the mechanism of the optional clause of compulsory jurisdiction (of the PCIJ and the ICJ), that is, the submission of political interests to Law, rather than the acceptance of compulsory jurisdiction in the way one freely wishes (with restrictions). Only in this way would one, as originally envisaged, achieve greater development in the realization of justice at the international level on the basis of compulsory jurisdiction.

In my aforementioned Dissenting Opinion in the case concerning the Application of the CERD Convention (2011), I sustained the pressing need of the realization of justice on the basis of the compromissory clause (article 22) of the CERD Convention, discarding any yielding to State voluntarism (cf. supra). The foundation of compulsory jurisdiction lies, ultimately, in the confidence in the rule of law at the international level,12 amidst the awareness that we face a jus necessarium, and no longer an unsatisfactory jus voluntarium.   The very nature of a court of justice (beyond traditional arbitration) calls for compulsory jurisdiction.13 Soon renewed hopes to that effect were expressed in compromissory clauses enshrined into multilateral and bilateral treaties.14

These hopes have grown in recent years, with the increasing recourse to compromissory clauses as basis of jurisdiction.15 This development has been seen as a reassuring one, in the sense of diminishing the probability of procedural incidents, such as the recourse to exceptions or objections of admissibility of applications instituting proceedings, or of the jurisdiction itself of the ICJ. Around 128 multilateral conventions and 166 bilateral treaties contain clauses providing for the recourse to the ICJ for the settlement of disputes on their interpretation or application – the so-called compromissory clauses.

In any case, the ICJ retains at least the power and duty to address motu proprio the issue of jurisdiction.16 The time has come to overcome definitively the regrettable lack of automatism of the international jurisdiction, which, despite all difficulties, has become reality in respect of some international tribunals.17 In sum, there is a diversity of legal bases to submit a contentious case to the knowledge and decision of the ICJ. There are examples, in recent years, of recourse to each of them, fostering the judicial settlement of international disputes. The procedure before the ICJ comprises two phases – the written phase followed by the oral one – conducted in the two official languages of the ICJ (English and French). Since the lodging of the first case with the ICJ (the Corfu Channel case) in May 1947 until now (beginning of 2014), 157 cases have entered the Court’s general list. Contentious cases have, in recent years, concerned States from all continents (the Americas, Europe, Africa, Asia and Oceania), highlighting the role of the ICJ as the principal judicial organ of the whole system of the United Nations.

III. Sources of International Law

The ICJ Statute (like previously that of the PCIJ) lists, in Article 38, the “formal” sources of international law.18 This provision, in referring to the Court’s function to decide “disputes [that] are submitted to it”, gives an incomplete picture of it, in not addressing likewise theadvisory function of the Court(cf. infra). Be that as it may, when the Court exercises its advisory function it likewise takes into account the list of “formal sources” found in Article 38 of its Statute (custom, treaties, general principles of law, jurisprudence, doctrine, equity). Thatlist is not exhaustive, but rather illustrative. Such “formal sources” amount to the ways whereby international law manifests itself,not excluding other ways (e.g., unilateral juridical acts of States,resolutions of international organizations).It may be recalled that the list in Article 38 of the Statute dates originally from 1920, when the Advisory Committee of Jurists of the League of Nations prepared it for the PCIJ (supra). Ever since, international law has much evolved.  

General principles of law, enlisted inter alia in Article 38 of the ICJ Statute,  encompass those found in all national legal systems (thus ineluctably linked with the very foundations of Law), and likewise the general principles of international law itself. Such principles inform and conform the norms and rules of international law, being – in my own conception – a manifestation of the universal juridical conscience, the ultimate material source of all Law. In the jus gentium in evolution, basic considerations of humanity play a role of the utmost importance. Reaffirmed time and time again, those principles give expression to the idea of an objective justice, paving the way to the application of the universal international law, the new jus gentium of our times.19

IV. Contentious Cases: Shortcomings of the Strict Inter-State Dimension

From the start, the jurisdiction of the ICJ (and of its predecessor, the PCIJ) has been faced with a limitation ratione personae: only States may submit contentious cases to it (Article 34(1) of its Statute). At the time of the drafting and adoption, in 1920, of the PCIJ Statute, a choice was made for a strictly inter-State dimension for its exercise of the international judicial function in contentious matters. Yet, as I have pointed out in my Separate Opinion (paras. 76-81) in the ICJ’s Advisory Opinion (of 1 February 2012) on a Judgment of the ILO Administrative Tribunal upon a Complaint Filed against the IFAD, the fact that neither the Advisory Committee of Jurists in 1920, nor the draftsmen of the ICJ Statute in 1945, found that the time was ripe to grant access to the PCIJ, and later to the ICJ, to subjects of rights other than States (such as individuals), did not mean that a definitive answer had been found to the question at issue. It should not pass unnoticed that the very advent of permanent international jurisdiction at the beginning of the twentieth century, before the creation of the PCIJ, was not marked by a purely inter-State outlook of the international contentieux.20

From 1945 until the present time, the ICJ has been facing the aforementioned limitation, imposed by Article 34, paragraph 1, of its Statute, whereby “only States may be parties in cases before the Court”. Looking back in time, the question of access of individuals to international justice,21 with procedural equality, already drew the attention of legal doctrine ever since the adoption of the PCIJ Statute in 1920, and has continued to do so, throughout more than nine decades. Individuals and groups of individuals began to have access to other international judicial instances, reserving the PCIJ, and later the ICJ, only for disputes between States. Yet, the dogmatic position taken originally in 1920, on the occasion of the preparation and adoption of its Statute, did not hinder the PCIJ to occupy itself promptly of cases pertaining to the treatment of minorities and inhabitants of cities or territories with a juridical statute of their own.

In considerations developed in the examination of such matters, the PCIJ went well beyond the inter-State dimension, taking into account the position of individuals themselves (as in, inter alia, the Advisory Opinions on German Settlers in Poland, 1923; theJurisdiction of the Courts of Danzig, 1928; the Greco-Bulgarian “Communities”, 1930; Access to German Minority Schools in Upper Silesia, 1931; Treatment of Polish Nationals in Danzig, 1932; Minority Schools in Albania, 1935).22 Ever since, the artificiality of that dimension became noticeable and acknowledged, already at an early stage of the case-law of the PCIJ. The option in 1920 (endorsed in 1945) for an inter-State mechanism for judicial settlement of contentious cases, was made, as I have recalled,

“(...) not by an intrinsic necessity, nor because it was the sole manner to proceed, but rather and only to give expression to the prevailing viewpoint amongst the members of the Advisory Committee of Jurists in charge of drafting the Statute of the PCIJ. Nevertheless, already at that time, some 90 years ago, international law was not reduced to a purely inter-State paradigm, and already knew of concrete experiments of access to international instances, in search of justice, on the part of not only States but also of individuals.

The fact that the Advisory Committee of Jurists did not consider that the time was ripe for granting access, to the PCIJ, to subjects of law other than the States (e.g., individuals) did not mean a definitive answer to the question. (...). (...) Already in the travaux préparatoires of the Statute of the PCIJ, the minority position marked presence, of those who favoured the access to the old Hague Court not only of States, but also of other subjects of law, including individuals. This was not the position which prevailed, but the ideal already marked presence, in that epoch, almost one century ago”.23

The dogmatic position of the PCIJ Statute passed on to the ICJ Statute. Once again, the exclusively inter-State character of the contentieux before the ICJ has not appeared satisfactory at all. At least in some cases (cf. infra), pertaining to the condition of individuals, the presence of these individuals (or of their legal representatives), in order to submit, themselves, their positions, would have enriched the proceedings and facilitated the work of the Court. The artificiality of the exclusively inter-State outlook has been criticised, time and time again, in expert writing, which has recalled that “nowadays a very considerable part of international law” (e.g., law-making treaties) “directly affects individuals”, and the effect of Article 34, paragraph 1, of the ICJ Statute has been “to insulate” the Court, by remaining attached to “notions about international law structure of the 1920s”.24

For example, the strictly inter-State mechanism appeared manifestly inadequate in the handling of the case of the Application of the Convention of 1902 Governing the Guardianship of Infants (1958).25 There has also been sharp criticism of the Court’s handling of the East Timor case (1995), where the East Timorese people had no locus standi to request intervention in the proceedings, not even to present an amicus curiae, although the crucial point under consideration was that of sovereignty over their territory. Worse still, the interests of a third State (which had not even accepted the Court’s jurisdiction) were taken for granted for the purpose of protection, and promptly safeguarded by the Court, at no cost to itself, by means of the application of the so-called Monetary Gold “principle”.26 The aforementioned examples are far from being the only ones; they in fact abound in the history of the ICJ.

In respect of situations concerning individuals or groups of individuals, reference can further be made, for example, to the Nottebohm case (1955) pertaining to double nationality; the Trial of Pakistani Prisoners of War case (1973), the Hostages (U.S. Diplomatic and Consular Staff) in Teheran case (1980); the Frontier Dispute between Burkina Faso and Mali case (1986); the Application of the Convention against Genocide case (1996 and 2007);  and the triad of cases concerning consular assistance,  namely, the Breard case (Paraguay versus United States of America, 1998), the LaGrand case (Germany versus United States of America, 2001), the Avena and Others case (Mexico versus United States of America, 2004).

In respect of those cases, one cannot fail to reckon that one of their predominant elements was precisely the concrete situation of the individuals directly affected, and not merely abstract issues of exclusive interest of the litigating States in their relations inter se. Moreover, one may further recall that, in the case of Armed Activities in the Territory of the Congo (Democratic Republic of the Congo versus Uganda, 2005), the ICJ was concerned with grave violations of human rights and of International Humanitarian Law; and in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (1996) the Court was likewise concerned with the victims of armed clashes.

More recently, examples wherein the Court’s concerns have had to go beyond the inter-State outlook have further increased in frequency. They include, for example, the case on Questions Relating to the Obligation to Prosecute or Extradite (2009-2013) pertaining to the principle of universal jurisdiction under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the case of A.S. Diallo (2010) on the detention and expulsion of a foreigner, the case of the Jurisdictional Immunities of the State (2010-2012), the case of the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (2011), and the case of the Temple of Preah Vihear (provisional measures, 2011).

The same can be said of the two last advisory opinions of the Court, on the Declaration of Independence of Kosovo (2010), and on a Judgment of the ILO Administrative Tribunal upon a Complaint Filed against the IFAD (2012), respectively. The artificiality of the exclusively inter-State outlook has thus been made often manifest, and increasingly so; that outlook rests on a longstanding dogma of the past. Those more recent contentious cases, and requests for advisory opinions, lodged with the Court, have asked it, by reason of their subject-matter, to overcome that outlook.

Fortunately, in the last decades, States themselves seem to have been acknowledging this, in lodging with the ICJ successive cases and matters which clearly transcend the inter-State level. And the Court has been lately responding, at the height of these new challenges and expectations, in taking into account, in its decisions, the situation not only of States, but also of peoples, of individuals or groups of individuals alike (supra). Even if the mechanism of dispute-settlement by the ICJ remains strictly or exclusively inter-State, the substance of those disputes or issues brought before the Court pertains also to the human person, as the aforementioned contentious cases and advisory opinions, and the Court’s reasoning therein, clearly show. The truth is that the strictly inter-State outlook has an ideological content, is a product of its time, a time long past. In these more recent decisions (1999-2014), the ICJ has at times rightly endeavoured to overcome that outlook, so as to face the new challenges of our times, brought before it in the contentious cases and requests for advisory opinions it has been seized of (cf. infra).27

V. Other Jurisdictional and Procedural Issues in Contentious Cases

1. Intervention

Another issue to be singled out, also in respect of the exercise of jurisdiction by the ICJ in contentious cases, pertains to the intervention of States in cases before the Court. Articles 62 and 63 of the Statute provide the framework for such interventions of States in the legal process. While both provisions concern those interventions of States, there are differences between the two. Under Article 62, there is a requirement that the requesting State must consider that it “has an interest of a legal nature which may be affected by the decision in the case”. Thus, the State willing to intervene in a contentious case must submit a request for permission to intervene upon which the Court decides. There have been few applications for permission to intervene under Article 62 before the ICJ, and only one before the PCIJ.28

Lately, the Court has dealt with almost subsequent applications for permission to intervene in the case concerning Territorial and Maritime Dispute (Nicaragua versus Colombia, 2011)29 and in the case concerning Jurisdictional Immunities of the State (Germany versus Italy: Greece intervening, 2010-2012).30 In the latter case, for the first time in its history, the ICJ, in its order of 4 July 2011, granted the faculty of intervention to a third intervenor (as non-party, Greece), thus transcending the traditional tendency to a bilateralization of the contentieux, proper  to the arbitral experience of the past.

As to intervention under Article 63 of the Statute,31 in contrast with the intervention under Article 62, it happens as of right (and the ICJ should thus have no discretion in deciding whether or not to allow intervention, if the criteria are met), whenever the construction of a Convention (to which the intervening State is also a Party) is at issue. All States that have been notified have “the right to intervene in the proceedings”, and, if a State does so, the construction given by the judgment will also be binding upon it. Unlike interventions under Article 62, the intervening party does not need to have an “interest of a legal nature” in the proceedings.

Intervention under Article 63 occurs in contentious proceedings through the filing of a “declaration of intervention”. There have been very few declarations of intervention under Article 63 of the Statute. Recently, in the case concerning Whaling in the Antarctic (Australia versus Japan: New Zealand intervening), New Zealand made a declaration of intervention (concerning the construction of article VIII of the 1946 International Convention for the Regulation of Whaling at issue) and thus intervened in the case.32

2. Interpretation and Revision

At this juncture, another relevant issue relating to the Court’s jurisdiction lies in the possibilities of reopening  a case either for interpretation (as in the aforementioned case of the Temple of Preah Vihear), or for revision. Interpretation and revision are provided for in Articles 60 and 61 of the ICJ Statute. According to Article 60, in case of a disagreement as to the meaning and scope of a judgment, the Parties may request the Court to construe it. The request for interpretation may be submitted either by application of one or more of the Parties or by a special agreement.33 Before the Court can entertain a request for interpretation, there must be a dispute (“une contestation”) as to the meaning and scope of the judgment. The PCIJ, in its landmark judgment on the matter, in the Chorzów Factory case (1927), stated that, under that provision, “it should be sufficient if the two Governments have in fact shown themselves as holding opposite views in regard to the meaning or scope of a judgment of the Court”.34 The interpretation to be rendered by the Court must be kept within the confines of the judgment which is the object of the requested interpretation.35

Another way whereby the Court may be seized of a reopened case is through a request for revision of a judgment, as provided in Article 61 of the Court’s Statute. An application for revision of a judgment may be filed only when it is based on the discovery of a fact, taken as decisive, that, when the judgment was delivered, was unknown to the Court and also to the party claiming revision, and such lack of knowledge was not due to negligence. As distinct from requests for interpretation, there is a time-limit for filing the request, that is, the application for revision36 must be made within six months of discovering the new fact.37

It is clear that the notion of revision of judgments may encroach on the concept of res judicata, and thus the terms of Article 61 of the Statute make it clear that revision procedures are of an exceptional nature, especially in the light of the principle stated in Article 60 that the judgments of the Court are final and without appeal. The revision procedure has been used in very limited instances throughout the history of the ICJ: there have been only three judgments addressing revision, and all found the respective applications inadmissible.38

VI. Provisional Measures of Protection

In situations of gravity and urgency, the ICJ can indicate or order provisional measures of protection, pursuant to Article 41 of its Statute, so as to prevent or avoid irreparable harm. Such provisional measures, thus endowed with a preventive dimension, have a binding character. Along the last decades, in its orders of provisional measures the ICJ has in fact to a large extent based its reasoning either on the need to avoid or prevent an imminent and irreparable harm to the rights of the contending parties (including the rights of the human person), or, more comprehensively, on the need to avoid or prevent the aggravation of the situation which would be bound to affect or harm irreparably the rights of the parties. Yet, in my understanding, the rationale of such orders of the ICJ does not need to limit or exhaust itself in a reasoning of the kind.

In the case concerning Questions Relating to the Obligation to Prosecute or to Extradite (Belgium versus Senegal, order of 28 May 2009) − where the Court decided not to indicate provisional measures − I warned, in my dissenting opinion (para. 97), that the basic right at issue pertained to the realization of justice, and the fact that the binding character of provisional measures of protection is nowadays beyond question, on the basis of the res interpretata of the ICJ itself, does not mean that we have reached a culminating point in the evolution of the ICJ case-law on this matter.

In its order of 18 July 2011, in the case (reopened after half a century) of the Temple of Preah Vihear (Cambodia versus Thailand), the ICJ,in the provisional measures of protection it ordered, determined, for the first time in its history, the creation of a demilitarized zone in the region, which from then onwards put an end to the armed hostilities therein. The determination of urgency and the probability of irreparable damage are exercises to which the ICJ is nowadays used to; yet, although the identification of the legal nature and the material content of the right(s) to be preserved seem not to present great difficulties, the same cannot be said of the consideration of the legal effects and consequences of the right(s) at issue. In sum, the construction of the whole legal regime, proper for provisional measures of protection, still lies ahead of us.

VII. The Expanded Advisory Jurisdiction

It was with the PCIJ that, for the first time, an international tribunal was attributed the advisory function − surrounded as it was by much discussion. Originally conceived to assist the Assembly and the Council of the League of Nations, the PCIJ, making good use of it, ended up assisting not only those organs, but States as well: among the 27 advisory opinions it delivered, 17 of them addressed then existing aspects of disputes between States. It thus contributed to the avoidance of full-blown contentious proceedings, and exercised a preventive function, to the benefit of judicial settlement itself of international disputes.39 The advisory function, as exercised by the PCIJ, thus contributed also to the progressive development of international law.

The same can be said of the exercise of the advisory function by the ICJ (pursuant to Article 65 of its Statute and Article 96 of the United Nations Charter). Upon the filing of a request for an advisory opinion, the Court makes up a list of States and international organizations which could furnish information on the question before the Court. The ICJ has discretion to decide whether to give a requested advisory opinion, and it has regularly issued the requested opinions. Ever since the advent of the ICJ, the advisory jurisdiction has kept on expanding. While the PCIJ Statute enabled only the League Council and Assembly to request advisory opinions, the ICJ Statute has enabled the United Nations main organs (General Assembly, Security Council and Economic and Social Council) and specialized agencies (such as ILO, FAO, UNESCO,ICAO,IMO,WMO, WHO,WIPO,UNIDO,ITU, IBRD, IMF,IFC, IFAD)  to do so. In effect, the exercise of the advisory function by the ICJ is another aspect that highlights the interconnectedness between the United Nations and the Court itself.

Suchinterrelationship is demonstrated, at first, by the combined reading of Article 65 of the ICJ Statute and Article 96 of the United Nations Charter.Secondly, United Nations main organs, such as the General Assembly and the Security Council, are entitled to request an advisory opinion from the ICJ on any legal question.40 Other United Nations organs or specialized agencies may request an advisory opinion, upon authorization by the General Assembly, on legal questions falling within the scope of their operation or activities (Article 96 of the United Nations Charter).

Advisory opinions of the ICJ, on their part, can also contribute, and have indeed done so, to the prevalence of the rule of law at national and international levels. Some of them have, likewise, contributed to the progressive development of international law (e.g., the ones on Reparation for Injuries, 1949; on Namibia, 1971; on Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, 1999; among others). The ICJ has issued 27 advisory opinions to date (beginning of 2014). Other contemporary international tribunals have been endowed with the advisory jurisdiction, and there are examples of frequent use made of it.41 Although distinct from the judgments,given their consultative nature, the advisory opinions of the ICJ are endowed with validity, and no State (or other subjects of international law) can in good faith ignore or minimize them.

VIII. The ICJ in the Era of International Tribunals

The gradual realization − that we witness, and have the privilege to contribute to, nowadays − of the old ideal of justice at the international level42 has been revitalizing itself, in recent years, with the reassuring creation and operation of the multiple contemporary international tribunals. This is a theme which has definitively assumed a prominent place on the international agenda of this second decade of the twenty-first century. It was necessary to wait for some decades for the current developments in the realization of international justice to take place, not without difficulties,43 now enriching and enhancing contemporary international law. International legal personality and capacity (not only of States, but also of international organizations and individuals) have indeed been enhanced, and international jurisdiction and responsibility have likewise expanded.

The ICJ, together with other international tribunals, assert and confirm nowadays the aptitude of contemporary international law to resolve the most distinct types of international controversies, at inter-State and intra-State levels. It should not pass unnoticed that the cases that reach the international tribunals constitute a minimal portion ofthemultiple injustices and abuses perpetrated daily against human beings and peoples all over the world. This is what should be of concern to international legal doctrine, and not false problems of delimitation of competences or inter-institutional competition. The coordination and dialogue among contemporary international tribunals are quite important, as their respective works are complementary and they have the common mission of imparting justice.

Nowadays, the international community fortunately counts on a wide range of international tribunals, adjudicating cases that take place not only at the inter-State level, but also at the intra-State level. This is reassuring, and was foreseen in the United Nations Charter itself, which provides, in Article 95, that United Nations Member States may entrust the settlement of their differences “to other tribunals by virtue of agreements already in existence or which may be concluded in the future”. Such reassuring coexistence of international tribunals nowadays invites us to approach their work from the correct perspective of the justiciables themselves,44 and brings us closer to their common mission of securing the realization of international justice, either at the inter-State or at the intra-State level.45Access to international justice has reassuringly been enlarged.

From the standpoint of the needs of protection of the justiciables, each international tribunal has its importance, in a wider framework encompassing the most distinct situations to be adjudicated, in each respective domain of operation.46 In sum, the present era of international tribunals has brought about remarkable advances, and the expansion of international jurisdiction has been accompanied by the considerable increase in the number of the justiciables, granted access to justice, in distinct domains of international law, and in the most diverse situations, including in circumstances of the utmost adversity, and even defenselessness. Yet, there still remains a long way to go.

IX. Concluding Observations

Last but not least, the issue of compliance with judgments and decisions of the ICJ and other contemporary international tribunals is a legitimate concern of all of them. The issue encompasses two complementary aspects: measures of domestic law for the execution of international sentences, and mechanisms of monitoring and follow-up, for the supervision of compliance with those judgments and decisions. As to the former, very few States have so far taken concrete initiatives to secure, on a permanent basis, the faithful execution of international judgments concerning them. As to the latter, each international tribunal counts on a mechanism of its own; yet, all of them are susceptible of improvement. The ICJ itself can address this issue during the presentation of itsannual reportsto the United Nations General Assembly as well as the visit of the President to its Sixth Committee and the Security Council. That compliance ought to be integral, rather than partial or selective. This is a position of principle, in relation to an issue which pertains to the international ordre public, and to the rule of law (préeminence du droit) at international and national levels. There is still much to be done in this respect, to secure the continuing advances in the quest for the realization of international justice.

With the continuing operation of the ICJ together with other international tribunals, two basic distinct conceptions of the exercise of the international judicial function have gradually emerged: one − a strict one − whereby the tribunal has to limit itself to settle the dispute at issue and to handle its resolution of it to the contending parties (a form of transactional justice), addressing only what the parties have put before it; the other, a larger one − the one I sustain − whereby the tribunal has to go beyond that, and say what the Law is (jurisdictio), thus contributing to the settlement of other like situations as well, and to the progressive development of international law. In the interpretation itself − or even in the search − of the applicable law, there is space for judicial creativity; each international tribunal is free to find the applicable law, independently of the arguments of the contending parties47 (juria novit curia).

It should not pass unnoticed that there has lately been a wide thematic diversity in cases lodged with the ICJ, as never before. Among very recent cases resolved by the ICJ, there are some that have raised questions of the utmost relevance, pertaining to International Humanitarian Law, to the International Law of Human Rights, to International Environmental Law, among other themes.48 The outlook of the ICJ could hardly be a strict one (proper for transactional justice): in my understanding, in solving such issues, the ICJ is bound to say what the Law is (juris dictio).

Furthermore, there are circumstances when the judgments of international tribunals may have repercussions beyond the States parties to a case. Such repercussions tend to occur when the judgments succeed to give expression to the idea of an objective justice. In this way, they contribute to the evolution of international law itself, and to the rule of law at the national and international levels in democratic societies. The more international tribunals devote themselves to explaining clearly the foundations of their decisions, the greater their contribution to justice and peace is bound to be.49 In my conception, in judgments of international tribunals (also at the regional level), the motifs and the dispositif go together: one cannot separate the decision itself from its foundations, from the reasoning which upholds it. Reason and persuasion permeate the operation of justice, and this goes back to the historical origins of its conception.

The ICJ has an important role in the peaceful settlement of international disputes and the progressive development of international law.50 A unique feature of the ICJ Statute is the Court’s role as the principal judicial organ of the United Nations and its close relationship with the Organization (cf. supra). While much has been developed in the jurisprudence of the Court to date, there is still some room for improvement. The ICJ needs to remain attentive to the evolution of international law itself, which is not static, is not the same as when the ICJ was first established. While the Court, in contentious cases, remains open only to States, its judgments and decisions, and advisory opinions as well, have wide implications for other subjects of international law (international organizations, individuals and groups of individuals). In this regard, a continuing expansion of the advisory function of the Court and a broader conception of its jurisdiction in contentious matters can be envisaged, as the ICJ has a prominent role for the development of international law at the service of the international community as a whole.


Related Material

A. Legal Instruments

Treaty of Peace between the Allied and Associated Powers and Germany, Part I: Covenant of the League of Nations, Versailles, 28 June 1919, League of Nations, Treaty Series, vol. 1, p. 403 (registered but not reproduced), reproduced in League of Nations, Official Journal, 1st year, No. 1, February 1920, p. 3.

Statute of the Permanent Court of International Justice, Geneva, 13 December 1920, League of Nations, Treaty Series, vol. 6, p. 390.

Charter of the United Nations, San Francisco, 26 June 1945.


B. Jurisprudence


Permanent Court of International Justice

Permanent Court of International Justice, German Settlers in Poland, Advisory Opinion of 10 September 1923, P.C.I.J., Series B, No. 6.

Permanent Court of International Justice, Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment of 16 December 1927, P.C.I.J., Series A, No. 13.

Permanent Court of International Justice, Jurisdiction of the Courts of Danzig, Advisory Opinion of 3 March 1928, P.C.I.J., Series B, No. 15.

Permanent Court of International Justice, Greco-Bulgarian “Communities”, Advisory Opinion of 31 July 1930, P.C.I.J, Series B, No. 17.

Permanent Court of International Justice, Access to German Minority Schools in Upper Silesia, Advisory Opinion of 15 May 1931, P.C.I.J, Series A/B, No. 40.

Permanent Court of International Justice, Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion of 4 February 1932, P.C.I.J, Series A/B, No. 44.

Permanent Court of International Justice, Minority Schools in Albania, Advisory Opinion of 6 April 1935, P.C.I.J, Series A/B, No. 64.

See also, Summaries of Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice.

International Court of Justice

International Court of Justice, Nottebohm Case (second phase), Judgment of April 6th, 1955, I.C.J. Reports 1955, p. 4.

International Court of Justice, Case concerning the Application of the Convention of 1902 governing the Guardianship of Infants (Netherlands v. Sweden), Judgment of November 28th, 1958, I.C.J. Reports 1958, p. 55.

International Court of Justice, Trial of Pakistani Prisoners of War, Interim Protection, Orders of 13 July, 29 September and 15 December 1973, I.C.J. Reports 1973, p. 328, 344 and 347.

International Court of Justice, United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3.

International Court of Justice, Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports1985, p. 192.

International Court of Justice, Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 554.

International Court of Justice, East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90.

International Court of Justice, Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996, p. 13.

International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996, p. 595.

International Court of Justice, Vienna Convention on Consular Relations (Paraguay v. United States of America), Provisional Measures, Order of 9 April 1998, I.C.J. Reports 1998, p. 248.

International Court of Justice, LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 466.

International Court of Justice, Application for Revision of the Judgment of 11 July 1996 in the case concerning the Application of the Convention for the Prevention and Punishment of the Crimes of Genocide (Bosnia Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina), Judgment, I.C.J. Reports2003, p. 7.

International Court of Justice, 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) (El Salvador v. Honduras), Judgment, I.C.J. Reports2003, p. 392.

International Court of Justice, Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 12.

International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43.

International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 139.

International Court of Justice, Jurisdictional Immunities of the State (Germany v. Italy), Counter-Claim, Order of 6 July 2010, I.C.J. Reports 2010, p. 310.

International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403.

International Court of Justice, Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, p. 639.

International Court of Justice, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70, and Dissenting opinion of Judge Cançado Trindade.

International Court of Justice, Jurisdictional Immunities of the State (Germany v. Italy), Application for Permission to Intervene, Order of 4 July 2011, I.C.J. Reports 2011, p. 494, and Separate opinion of Judge Cançado Trindade.

International Court of Justice, Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011, p. 537.

International Court of Justice, Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, I.C.J. Reports 2012, p. 10.

International Court of Justice, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p. 99.

International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422.

International Court of Justice, Whaling in the Antarctic (Australia v. Japan), Declaration of Intervention of New Zealand, Order of 06 February 2013, and Separate opinion of Judge Cançado Trindade.

International Court of Justice, Request for Interpretation of the Judgment of 15 June1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), Judgment of 11 November 2013.

See also, Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice.


C. Documents

International Court of Justice, Rules of Court, 14 April 1978.


D. Doctrine

G. Abi-Saab, “The International Court as a World Court”, in Fifty Years of the International Court of Justice - Essays in Honour of R. Jennings (eds. V. Lowe and M. Fitzmaurice), Cambridge, CUP, 1996, p. 7.

J. A. Allain, A Century of International Adjudication: The Rule of Law and Its Limits, T.M.C. Asser Press, The Hague, 2000.

R.P. Anand, Compulsory Jurisdiction of the International Court of Justice, Asia Publishing House, New Delhi/Bombay, 1961.

R.P. Anand, “Enhancing the Acceptability of Compulsory Procedures of International Dispute Settlement”, Max Planck Yearbook of United Nations Law, vol. 5, 2001, pp. 1-20. 

J. Beauté, Le droit de pétition dans les territoires sous tutelle, LGDJ, Paris, 1962.

C. Brölmann, “The PCIJ and International Rights of Groups and Individuals”, in C.J. Tams, M. Fitzmaurice and P. Merkouris (eds.), Legacies of the Permanent Court of International Justice, Nijhoff, Leiden, 2013, pp. 123-143.

L. Caflisch, “Cent ans de règlement pacifique des différends interétatiques”, Recueil des Cours de l´Académie de Droit International de La Haye, vol. 288 (2001), pp. 365-449.

A.A. Cançado Trindade, “Exhaustion of Local Remedies in International Law Experiments Granting Procedural Status to Individuals in the First Half of the Twentieth Century”, Netherlands International Law Review, vol. 24, 1977, pp. 373-392.

A.A. Cançado Trindade, “La jurisprudence de la Cour Internationale de Justice sur les droits intangibles / The Case-Law of the International Court of Justice on Non-Derogable Rights”, in Droits intangibles et états d'exception / Non-Derogable Rights and States of Emergency (eds. D. Prémont, C. Stenersen and I. Oseredczuk), Bruylant, Bruxelles, 1996, pp. 69 et seq..

A.A. Cançado Trindade, A Humanização do Direito Internacional, Edit. Del Rey, Belo Horizonte/Brazil, 2006.

A.A. Cançado Trindade, Évolution du Droit international au droit des gens - L'accès des particuliers à la justice internationale: le regard d'un juge, Pédone, Paris, 2008.

A.A. Cançado Trindade, Évolution du Droit international au droit des gens - L'accès des particuliers à la justice internationale: le regard d'un juge, Pédone, Paris, 2008, pp. 1-187.

A.A. Cançado Trindade, “Towards Compulsory Jurisdiction: Contemporary International Tribunals and Developments in the International Rule of Law - Part I”, inXXXVII Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano - 2010, OAS General Secretariat, Washington  D.C., 2011, pp. 233-259.

A.A. Cançado Trindade, The Access of Individuals to International Justice, Oxford University Press, Oxford, 2011.

A.A. Cançado Trindade, “Towards Compulsory Jurisdiction: Contemporary International Tribunals and Developments in the International Rule of Law - Part II”, in XXXVIII Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano - 2011, OAS General Secretariat, Washington D.C., 2012, pp. 285-366.

A.A. Cançado Trindade, “Contemporary International Tribunals: Their Continuing Jurisprudential Cross-Fertilization, with Special Attention to the International Safeguard of Human Rights”, in The Global Community - Yearbook of International Law and Jurisprudence (2012) vol. I, p. 188.

A.A. Cançado Trindade, “A Century of International Justice and Prospects for the Future”, in A.A. Cançado Trindade and Dean Spielmann, A Century of International Justice and Prospects for the Future / Rétrospective d´un siècle de justice internationale et perspectives d´avenir, Oisterwijk, Wolf Legal Publs., 2013, pp. 1-28, esp. pp. 13-16.

A.A. Cançado Trindade, Os Tribunais Internacionais Contemporâneos, FUNAG, Brasília, 2013.

A.A. Cançado Trindade, Los Tribunales Internacionales Contemporáneos y la Humanización del Derecho Internacional, Ed. Ad-Hoc, Buenos Aires, 2013.

A.A. Cançado Trindade, International Law for Humankind - Towards a New Jus Gentium, 2nd rev. ed., Nijhoff, Leiden/The Hague, 2013.

M. Cappelletti, Juízes Legisladores?, S.A. Fabris Ed., Porto Alegre/Brazil, 1993.

C. Chinkin, “Increasing the Use and Appeal of the Court - Presentation”, in: C. Peck and R.S. Lee, eds.), Increasingthe Effectiveness of the International Court of Justice (1996 Colloquy), Nijhoff, The Hague, 1997.

C. Chinkin, “Article 62”, in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary, Oxford University Press, Oxford, 2006, pp. 1336-1337.

L. Delbez, Les principes généraux du contentieuxinternational, LGDJ, Paris,1962.

G. Fouda, “La justice internationale et le consentement des États”, in K. Koufa (ed.), International Justice - Thesaurus Acroasium, vol. XXVI, Sakkoulas Publs., Thessaloniki, 1997, pp. 887 et seq..

R. Geiss, “Revision Proceedings before the International Court of Justice”, Zeitschrift fur ausländishes öffentliches Recht und Völkerrecht, vol. 63, 2003, pp. 167-194.

R. Goy, La Cour Internationale de Justice et les droits de l´homme, Nemesis/Bruylant, Bruxelles, 2002.

G. Guyomar, Commentaire du Règlement de la Cour Internationale de Justice, Pédone, Paris, 1973.

E., Hambro, “Some Observations on the Compulsory Jurisdiction of the International Court of Justice”, British Year Book of International Law, vol. 25, 1948, pp. 153 et seq..

M.O. Hudson, International Tribunals - Past and Future, Carnegie Endowment for International Peace/Brookings Inst., Washington D.C., 1944.

C.W. Jenks, The Prospects of International Adjudication, Stevens, London, 1964.

R.Y. Jennings, “The International Court of Justice after Fifty Years”, American Journal of International Law, vol. 89, 1995, p. 504.

T. Koopmans, “Judicialization”, in Une communauté de droit - Festschrift für G.C. Rodríguez Iglesias (eds. N. Colneric et alii), Berliner Wissenschafts-Verlag (BWV), Berlin, 2003, pp. 51-57.

M. St. Korowicz, Une expérience en Droit international - La protection des minorités de Haute-Silésie, Pédone, Paris, 1946, esp. pp. 81-174.

H. Lauterpacht, The Development of International Law by the International Court, Stevens, London, 1958.

R.C. Lawson, “The Problem of the Compulsory Jurisdiction of the World Court”, AmericanJournal of International Law, vol. 46, 1952, pp. 219-238.

B.C.J. Loder, “The Permanent Court of International Justice and Compulsory Jurisdiction”, BritishYear Book of International Law, vol. 2, 1921-1922, pp. 11-12.

C.A. Norgaard, The Position of the Individual in International Law, Munksgaard, Copenhagen, 1962, esp. pp. 109-128.

N. Politis, La justice internationale, Hachette, Paris, 1924, esp. pp. 193-194 and 249-250.

S.Rosenne, The Law and Practice of the International Court, 4th. ed., vols. I-IV, Nijhoff, Leiden/The Hague, 2006.

S. Rosenne, The World Court - What It Is and How It Works, 6th. ed., Nijhoff, Leiden/The Hague, 2003. 

S. Rosenne, “Reflections on the Position of the Individual in Inter-State Litigation in the International Court of Justice”, in P. Sanders (ed.), International Arbitration - Liber Amicorum for M. Domke

RULES OF
COURT (1978)
ADOPTED ON 14 APRIL 1978 AND ENTERED
INTO FORCE ON 1 JULY 1978 1


Preamble*

The Court,
Having regard to Chapter XIV of the Charter of the United Nations;
Having regard to the Statute of the Court annexed thereto;
Acting in pursuance of Article 30 of the Statute;
Adopts the following Rules.

Part I

THE COURT

section a. judges and assessors

Subsection 1. The Members of the Court

Article 1

1. The Members of the Court are the judges elected in accordance with Articles 2 to 15 of the Statute.

2. For the purposes of a particular case, the Court may also include upon the Bench one or more persons chosen under Article 31 of the Statute to sit as judges ad hoc.

3. In the following Rules, the term “Member of the Court” denotes any elected judge; the term “judge” denotes any Member of the Court, and any judge ad hoc.

Article 2

1. The term of office of Members of the Court elected at a triennial election shall begin to run from the sixth of February1 in the year in which the vacancies to which they are elected occur.

2. The term of office of a Member of the Court elected to replace a Member whose term of office has not expired shall begin to run from the date of the election.

Article 3

1. The Members of the Court, in the exercise of their functions, are of equal status, irrespective of age, priority of election or length of service.

2. The Members of the Court shall, except as provided in paragraphs 4 and 5 of this Article, take precedence according to the date on which their terms of office respectively began, as provided for by Article 2 of these Rules.

3. Members of the Court whose terms of office began on the same date shall take precedence in relation to one another according to seniority of age.

4. A Member of the Court who is re-elected to a new term of office which is continuous with his previous term shall retain his precedence.

5. The President and the Vice-President of the Court, while holding these offices, shall take precedence before all other Members of the Court.

6. The Member of the Court who, in accordance with the foregoing paragraphs, takes precedence next after the President and the Vice-President is in these Rules designated the “senior judge”. If that Member is unable to act, the Member of the Court who is next after him in precedence and able to act is considered as senior judge.

Article 4

1. The declaration to be made by every Member of the Court in accordance with Article 20 of the Statute shall be as follows:

“I solemnly declare that I will perform my duties and exercise my powers as judge honourably, faithfully, impartially and conscientiously.”

2. This declaration shall be made at the first public sitting at which the Member of the Court is present. Such sitting shall be held as soon as practicable after his term of office begins and, if necessary, a special sitting shall be held for the purpose.

3. A Member of the Court who is re-elected shall make a new declaration only if his new term is not continuous with his previous one.

Article 5

1. A Member of the Court deciding to resign shall communicate his decision to the President, and the resignation shall take effect as provided in Article 13, paragraph 4, of the Statute.

2. If the Member of the Court deciding to resign from the Court is the President, he shall communicate his decision to the Court, and the resignation shall take effect as provided in Article 13, paragraph 4, of the Statute.

Article 6

In any case in which the application of Article 18 of the Statute is under consideration, the Member of the Court concerned shall be so informed by the President or, if the circumstances so require, by the Vice-President, in a written statement which shall include the grounds therefor and any relevant evidence. He shall subsequently, at a private meeting of the Court specially convened for the purpose, be afforded an opportunity of making a statement, of furnishing any information or explanations he wishes to give, and of supplying answers, orally or in writing, to any questions put to him. At a further private meeting, at which the Member of the Court concerned shall not be present, the matter shall be discussed; each Member of the Court shall state his opinion, and if requested a vote shall be taken.

Subsection 2. Judges ad hoc

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.

Subsection 3. Assessors

Article 9

1. The Court may, either proprio motu or upon a request made not later than the closure of the written proceedings, decide, for the purpose of a contentious case or request for advisory opinion, to appoint assessors to sit with it without the right to vote.

2. When the Court so decides, the President shall take steps to obtain all the information relevant to the choice of the assessors.

3. The assessors shall be appointed by secret ballot and by a majority of the votes of the judges composing the Court for the case.

4. The same powers shall belong to the chambers provided for by Articles 26 and 29 of the Statute and to the presidents thereof, and may be exercised in the same manner.

5. Before entering upon their duties, assessors shall make the following declaration at a public sitting:

“I solemnly declare that I will perform my duties as an assessor honourably, impartially and conscientiously, and that I will faithfully observe all the provisions of the Statute and of the Rules of the Court.”

Section B. The Presidency

Article 10

1. The term of office of the President and that of the Vice-President shall begin to run from the date on which the terms of office of the Members of the Court elected at a triennial election begin in accordance with Article 2 of these Rules.

2. The elections to the presidency and vice-presidency shall be held on that date or shortly thereafter. The former President, if still a Member of the Court, shall continue to exercise his functions until the election to the presidency has taken place.

Article 11

1. If, on the date of the election to the presidency, the former President is still a Member of the Court, he shall conduct the election. If he has ceased to be a Member of the Court, or is unable to act, the election shall be conducted by the Member of the Court exercising the functions of the presidency by virtue of Article 13, paragraph 1, of these Rules.

2. The election shall take place by secret ballot, after the presiding Member of the Court has declared the number of affirmative votes necessary for election; there shall be no nominations. The Member of the Court obtaining the votes of a majority of the Members composing it at the time of the election shall be declared elected, and shall enter forthwith upon his functions.

3. The new President shall conduct the election of the Vice-President either at the same or at the following meeting. The provisions of paragraph 2 of this Article shall apply equally to this election.

Article 12

The President shall preside at all meetings of the Court; he shall direct the work and supervise the administration of the Court.

Article 13

1. In the event of a vacancy in the presidency or of the inability of the President to exercise the functions of the presidency, these shall be exercised by the Vice-President, or failing him, by the senior judge.

2. When the President is precluded by a provision of the Statute or of these 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.

3. The President shall take the measures necessary in order to ensure the continuous exercise of the functions of the presidency at the seat of the Court. In the event of his absence, he may, so far as is compatible with the Statute and these Rules, arrange for these functions to be exercised by the Vice-President, or failing him, by the senior judge.

4. If the President decides to resign the presidency, he shall communicate his decision in writing to the Court through the Vice-President, or failing him, the senior judge. If the Vice-President decides to resign his office, he shall communicate his decision to the President.

Article 14

If a vacancy in the presidency or the vice-presidency occurs before the date when the current term is due to expire under Article 21, paragraph 1, of the Statute and Article 10, paragraph 1, of these Rules, the Court shall decide whether or not the vacancy shall be filled during the remainder of the term.

Section c. The Chambers

Article 15

1. The Chamber of Summary Procedure to be formed annually under Article 29 of the Statute shall be composed of five Members of the Court, comprising the President and Vice-President of the Court, acting ex officio, and three other members elected in accordance with Article 18, paragraph 1, of these Rules. In addition, two Members of the Court shall be elected annually to act as substitutes.

2. The election referred to in paragraph 1 of this Article shall be held as soon as possible after the sixth of February in each year. The members of the Chamber shall enter upon their functions on election and continue to serve until the next election; they may be re-elected.

3. If a member of the Chamber is unable, for whatever reason, to sit in a given case, he shall be replaced for the purposes of that case by the senior in precedence of the two substitutes.

4. If a member of the Chamber resigns or otherwise ceases to be a member, his place shall be taken by the senior in precedence of the two substitutes, who shall thereupon become a full member of the Chamber and be replaced by the election of another substitute. Should vacancies exceed the number of available substitutes, elections shall be held as soon as possible in respect of the vacancies still existing after the substitutes have assumed full membership and in respect of the vacancies in the substitutes.

Article 16

1. When the Court decides to form one or more of the Chambers provided for in Article 26, paragraph 1, of the Statute, it shall determine the particular category of cases for which each Chamber is formed, the number of its members, the period for which they will serve, and the date at which they will enter upon their duties.

2. The members of the Chamber shall be elected in accordance with Article 18, paragraph 1, of these Rules from among the Members of the Court, having regard to any special knowledge, expertise or previous experience which any of the Members of the Court may have in relation to the category of case the Chamber is being formed to deal with.

3. The Court may decide upon the dissolution of a Chamber, but without prejudice to the duty of the Chamber concerned to finish any cases pending before it.

Article 17

1. 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, 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.

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.

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.

Article 18

1. 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.

2. If a Chamber when formed includes the President or Vice-President of the Court, or both of them, the President or Vice-President, as the case may be, shall preside over that Chamber. In any other event, the Chamber shall elect its own president by secret ballot and by a majority of votes of its members. The Member of the Court who, under this paragraph, presides over the Chamber at the time of its formation shall continue to preside so long as he remains a member of that Chamber.

3. The president of a Chamber shall exercise, in relation to cases being dealt with by that Chamber, all the functions of the President of the Court in relation to cases before the Court.

4. If the president of a Chamber is prevented from sitting or from acting as president, the functions of the presidency shall be assumed by the member of the Chamber who is the senior in precedence and able to act.

Section D. Internal Functioning of the Court

Article 19

The internal judicial practice of the Court shall, subject to the provisions of the Statute and these Rules, be governed by any resolutions on the subject adopted by the Court1.

Article 20

1. The quorum specified by Article 25, paragraph 3, of the Statute applies to all meetings of the Court

2. The obligation of Members of the Court under Article 23, paragraph 3, of the Statute, to hold themselves permanently at the disposal of the Court, entails attendance at all such meetings, unless they are prevented from attending by illness or for other serious reasons duly explained to the President, who shall inform the Court.

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.

4. The Court shall fix the dates and duration of the judicial vacations and the periods and conditions of leave to be accorded to individual Members of the Court under Article 23, paragraph 2, of the Statute, having regard in both cases to the state of its General List and to the requirements of its current work.

5. Subject to the same considerations, the Court shall observe the public holidays customary at the place where the Court is sitting.

6. In case of urgency the President may convene the Court at any time.

Article 21

1. The deliberations of the Court shall take place in private and remain secret. The Court may however at any time decide in respect of its deliberations on other than judicial matters to publish or allow publication of any part of them.

2. Only judges, and the assessors, if any, take part in the Court’s judicial deliberations. The Registrar, or his deputy, and other members of the staff of the Registry as may be required shall be present. No other person shall be present except by permission of the Court.

3. The minutes of the Court’s judicial deliberations shall record only the title or nature of the subjects or matters discussed, and the results of any vote taken. They shall not record any details of the discussions nor the views expressed, provided however that any judge is entitled to require that a statement made by him be inserted in the minutes.

Part II

THE REGISTRY

Article 22

1. The Court shall elect its Registrar by secret ballot from amongst candidates proposed by Members of the Court. The Registrar shall be elected for a term of seven years. He may be re-elected.

2. The President shall give notice of a vacancy or impending vacancy to Members of the Court, either forthwith upon the vacancy arising, or, where the vacancy will arise on the expiration of the term of office of the Registrar, not less than three months prior thereto. The President shall fix a date for the closure of the list of candidates so as to enable nominations and information concerning the candidates to be received in sufficient time.

3. Nominations shall indicate the relevant information concerning the candidate, and in particular information as to his age, nationality, and present occupation, university qualifications, knowledge of languages, and any previous experience in law, diplomacy or the work of international organizations.

4. The candidate obtaining the votes of the majority of the Members of the Court composing it at the time of the election shall be declared elected.

Article 23

The Court shall elect a Deputy-Registrar: the provisions of Article 22 of these Rules shall apply to his election and term of office.

Article 24

1. Before taking up his duties, the Registrar shall make the following declaration at a meeting of the Court:

“I solemnly declare that I will perform the duties incumbent upon me as Registrar of the International Court of Justice in all loyalty, discretion and good conscience, and that I will faithfully observe all the provisions of the Statute and of the Rules of the Court.”

2. The Deputy-Registrar shall make a similar declaration at a meeting of the Court before taking up his duties.

Article 25

1. The staff-members of the Registry shall be appointed by the Court on proposals submitted by the Registrar. Appointments to such posts as the Court shall determine may however be made by the Registrar with the approval of the President.

2. Before taking up his duties, every staff-member shall make the following declaration before the President, the Registrar being present:

“I solemnly declare that I will perform the duties incumbent upon me as an official of the International Court of Justice in all loyalty, discretion and good conscience, and that I will faithfully observe all the provisions of the Statute and of the Rules of the Court.”

Article 26

1. The Registrar, in the discharge of his functions, shall:

(a) be the regular channel of communications to and from the Court, and in particular shall effect all communications, notifications and transmission of documents required by the Statute or by these Rules and ensure that the date of despatch and receipt thereof may be readily verified;

(b) 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;

(c) have the custody of the declarations accepting the jurisdiction of the Court made by States not parties to the Statute in accordance with any resolution adopted by the Security Council under Article 35, paragraph 2, of the Statute, and transmit certified copies thereof to all States parties to the Statute, to such other States as shall have deposited declarations, and to the Secretary-General of the United Nations;

(d) transmit to the parties copies of all pleadings and documents annexed upon receipt thereof in the Registry;

(e) communicate to the government of the country in which the Court or a Chamber is sitting, and any other governments which may be concerned, the necessary information as to the persons from time to time entitled, under the Statute and relevant agreements, to privileges, immunities, or facilities;

(f) be present, in person or by his deputy, at meetings of the Court, and of the Chambers, and be responsible for the preparation of minutes of such meetings;

(g) make arrangements for such provision or verification of translations and interpretations into the Court’s official languages as the Court may require;

(h) sign all judgments, advisory opinions and orders of the Court, and the minutes referred to in subparagraph (f);

(i) be responsible for the printing and publication of the Court’s judgments, advisory opinions and orders, the pleadings and statements, and minutes of public sittings in cases, and of such other documents as the Court may direct to be published;

(j) be responsible for all administrative work and in particular for the accounts and financial administration in accordance with the financial procedures of the United Nations;

(k) deal with enquiries concerning the Court and its work;

(l) assist in maintaining relations between the Court and other organs of the United Nations, the specialized agencies, and international bodies and conferences concerned with the codification and progressive development of international law;

(m) ensure that information concerning the Court and its activities is made accessible to governments, the highest national courts of justice, professional and learned societies, legal faculties and schools of law, and public information media;

(n) have custody of the seals and stamps of the Court, of the archives of the Court, and of such other archives as may be entrusted to the Court1.

2. The Court may at any time entrust additional functions to the Registrar.

3. In the discharge of his functions the Registrar shall be responsible to the Court.

Article 27

1. The Deputy-Registrar shall assist the Registrar, act as Registrar in the latter’s absence and, in the event of the office becoming vacant, exercise the functions of Registrar until the office has been filled.

2. If both the Registrar and the Deputy-Registrar are unable to carry out the duties of Registrar, the President shall appoint an official of the Registry to discharge those duties for such time as may be necessary. If both offices are vacant at the same time, the President, after consulting the Members of the Court, shall appoint an official of the Registry to discharge the duties of Registrar pending an election to that office.

Article 28

1. The Registry shall comprise the Registrar, the Deputy-Registrar, and such other staff as the Registrar shall require for the efficient discharge of his functions.

2. The Court shall prescribe the organization of the Registry, and shall for this purpose request the Registrar to make proposals.

3. Instructions for the Registry shall be drawn up by the Registrar and approved by the Court.

4. The staff of the Registry shall be subject to Staff Regulations drawn up by the Registrar, so far as possible in conformity with the United Nations Staff Regulations and Staff Rules, and approved by the Court.

Article 29

1. The Registrar may be removed from office only if, in the opinion of two-thirds of the Members of the Court, he has either become permanently incapacitated from exercising his functions, or has committed a serious breach of his duties.

2. Before a decision is taken under this Article, the Registrar shall be informed by the President of the action contemplated, in a written statement which shall include the grounds therefor and any relevant evidence. He shall subsequently, at a private meeting of the Court, be afforded an opportunity of making a statement, of furnishing any information or explanations he wishes to give, and of supplying answers, orally or in writing, to any questions put to him.

3. The Deputy-Registrar may be removed from office only on the same grounds and by the same procedure.

Part III

PROCEEDINGS IN CONTENTIOUS CASES

Section A. Communications to the Court and Consultations

Article 30

All communications to the Court under these Rules shall be addressed to the Registrar unless otherwise stated. Any request made by a party shall likewise be addressed to the Registrar unless made in open court in the course of the oral proceedings.

Article 31

In every case submitted to the Court, the President shall ascertain the views of the parties with regard to questions of procedure. For this purpose he shall summon the agents of the parties to meet him as soon as possible after their appointment, and whenever necessary thereafter.

Section B. The Composition of the Court
for Particular Cases

Article 32

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 to the senior judge, when called on to act as President.

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 in that case until completion of the current phase of the case, notwithstanding the election in the meantime of a new President or Vice-President. If he should become unable to act, the presidency for the case shall be determined in accordance with Article 13 of these Rules, and on the basis of the composition of the Court on the date on which it convened for the oral proceedings.

Article 33

Except as provided in Article 17 of these Rules, Members of the Court who have been replaced, in accordance with Article 13, paragraph 3, of the Statute following the expiration of their terms of office, shall discharge the duty imposed upon them by that paragraph by continuing to sit until the completion of any phase of a case in respect of which the Court convenes for the oral proceedings prior to the date of such replacement.

Article 34

1. In case of any doubt arising as to the application of Article 17, paragraph 2, of the Statute or in case of a disagreement as to the application of Article 24 of the Statute, the President shall inform the Members of the Court, with whom the decision lies.

2. If a party desires to bring to the attention of the Court facts which it considers to be of possible relevance to the application of the provisions of the Statute mentioned in the previous paragraph, but which it believes may not be known to the Court, that party shall communicate confidentially such facts to the President in writing.

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.

Section c. Proceedings before the Court

Subsection 1. Institution of Proceedings

Article 38

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

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.

3. The original of the application shall be signed either by the agent of the party submitting it, or by the diplomatic representative of that party in the country in which the Court has its seat, or by some other duly authorized person. If the application bears the signature of someone other than such diplomatic representative, the signature must be authenticated by the latter or by the competent authority of the applicant’s foreign ministry.

4. The Registrar shall forthwith transmit to the respondent a certified copy of the application.

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.

Article 39

1. When proceedings are brought before the Court by the notification of a special agreement, in conformity with Article 40, paragraph 1, of the Statute, the notification may be effected by the parties jointly or by any one or more of them. If the notification is not a joint one, a certified copy of it shall forthwith be communicated by the Registrar to the other party.

2. In each case the notification shall be accompanied by an original or certified copy of the special agreement. The notification shall also, in so far as this is not already apparent from the agreement, indicate the precise subject of the dispute and identify the parties to it.

Article 40

1. Except in the circumstances contemplated by Article 38, paragraph 5, of these Rules, all steps on behalf of the parties after proceedings have been instituted shall be taken by agents. Agents shall have an address for service at the seat of the Court to which all communications concerning the case are to be sent. Communications addressed to the agents of the parties shall be considered as having been addressed to the parties themselves.

2. When proceedings are instituted by means of an application, the name of the agent for the applicant shall be stated. The respondent, upon receipt of the certified copy of the application, or as soon as possible thereafter, shall inform the Court of the name of its agent.

3. When proceedings are brought by notification of a special agreement, the party making the notification shall state the name of its agent. Any other party to the special agreement, upon receiving from the Registrar a certified copy of such notification, or as soon as possible thereafter, shall inform the Court of the name of its agent if it has not already done so.

Article 41

The institution of proceedings by a State which is not a party to the Statute but which, under Article 35, paragraph 2, thereof, has accepted the jurisdiction of the Court by a declaration made in accordance with any resolution adopted by the Security Council under that Article1, shall be accompanied by a deposit of the declaration in question, unless the latter has previously been deposited with the Registrar. If any question of the validity or effect of such declaration arises, the Court shall decide.

Article 42

The Registrar shall transmit copies of any application or notification of a special agreement instituting proceedings before the Court to: (a) the Secretary-General of the United Nations; (b) the Members of the United Nations; (c) other States entitled to appear before the Court.

Article 43*1

1. Whenever the construction of a convention to which States other than those concerned in the case are parties may be in question within the meaning of Article 63, paragraph 1, of the Statute, the Court shall consider what directions shall be given to the Registrar in the matter.

2. Whenever the construction of a convention to which a public international organization is a party may be in question in a case before the Court, the Court shall consider whether the Registrar shall so notify the public international organization concerned. Every public international organization notified by the Registrar may submit its observations on the particular provisions of the convention the construction of which is in question in the case.

3. If a public international organization sees fit to furnish its observations under paragraph 2 of this Article, the procedure to be followed shall be that provided for in Article 69, paragraph 2, of these Rules.

Subsection 2. The Written Proceedings

Article 44

1. In the light of the information obtained by the President under Article 31 of these Rules, the Court shall make the necessary orders to determine, inter alia, the number and the order of filing of the pleadings and the time-limits within which they must be filed.

2. In making an order under paragraph 1 of this Article, any agreement between the parties which does not cause unjustified delay shall be taken into account.

3. The Court may, at the request of the party concerned, extend any time-limit, or decide that any step taken after the expiration of the time-limit fixed therefor shall be considered as valid, if it is satisfied that there is adequate justification for the request. In either case the other party shall be given an opportunity to state its views.

4. If the Court is not sitting, its powers under this Article shall be exercised by the President, but without prejudice to any subsequent decision of the Court. If the consultation referred to in Article 31 reveals persistent disagreement between the parties as to the application of Article 45, paragraph 2, or Article 46, paragraph 2, of these Rules, the Court shall be convened to decide the matter.

Article 45

1. The pleadings in a case begun by means of an application shall consist, in the following order, of: a Memorial by the applicant; a Counter-Memorial by the respondent.

2. The Court may authorize or direct that there shall be a Reply by the applicant and a Rejoinder by the respondent if the parties are so agreed, or if the Court decides, proprio motu or at the request of one of the parties, that these pleadings are necessary.

Article 46

1. In a case begun by the notification of a special agreement, the number and order of the pleadings shall be governed by the provisions of the agreement, unless the Court, after ascertaining the views of the parties, decides otherwise.

2. If the special agreement contains no such provision, and if the parties have not subsequently agreed on the number and order of pleadings, they shall each file a Memorial and Counter-Memorial, within the same time-limits. The Court shall not authorize the presentation of Replies unless it finds them to be necessary.

Article 47

The Court may at any time direct that the proceedings in two or more cases be joined. It may also direct that the written or oral proceedings, including the calling of witnesses, be in common; or the Court may, without effecting any formal joinder, direct common action in any of these respects.

Article 48

Time-limits for the completion of steps in the proceedings may be fixed by assigning a specified period but shall always indicate definite dates. Such time-limits shall be as short as the character of the case permits.

Article 49

1. A Memorial shall contain a statement of the relevant facts, a statement of law, and the submissions.

2. A Counter-Memorial shall contain: an admission or denial of the facts stated in the Memorial; any additional facts, if necessary; observations concerning the statement of law in the Memorial; a statement of law in answer thereto; and the submissions.

3. The Reply and Rejoinder, whenever authorized by the Court, shall not merely repeat the parties’ contentions, but shall be directed to bringing out the issues that still divide them.

4. Every pleading shall set out the party’s submissions at the relevant stage of the case, distinctly from the arguments presented, or shall confirm the submissions previously made.

Article 50

1. There shall be annexed to the original of every pleading certified copies of any relevant documents adduced in support of the contentions contained in the pleading.

2. If only parts of a document are relevant, only such extracts as are necessary for the purpose of the pleading in question need be annexed. A copy of the whole document shall be deposited in the Registry, unless it has been published and is readily available.

3. A list of all documents annexed to a pleading shall be furnished at the time the pleading is filed.

Article 51

1. If the parties are agreed that the written proceedings shall be conducted wholly in one of the two official languages of the Court, the pleadings shall be submitted only in that language. If the parties are not so agreed, any pleading or any part of a pleading shall be submitted in one or other of the official languages.

2. If in pursuance of Article 39, paragraph 3, of the Statute a language other than French or English is used, a translation into French or English certified as accurate by the party submitting it, shall be attached to the original of each pleading.

3. When a document annexed to a pleading is not in one of the official languages of the Court, it shall be accompanied by a translation into one of these languages certified by the party submitting it as accurate. The translation may be confined to part of an annex, or to extracts therefrom, but in this case it must be accompanied by an explanatory note indicating what passages are translated. The Court may however require a more extensive or a complete translation to be furnished.

Article 52*1 2

1. The original of every pleading shall be signed by the agent and filed in the Registry. It shall be accompanied by a certified copy of the pleading, documents annexed, and any translations, for communication to the other party in accordance with Article 43, paragraph 4, of the Statute, and by the number of additional copies required by the Registry, but without prejudice to an increase in that number should the need arise later.

2. All pleadings shall be dated. When a pleading has to be filed by a certain date, it is the date of the receipt of the pleading in the Registry which will be regarded by the Court as the material date.

3. The correction of a slip or error in any document which has been filed may be made at any time with the consent of the other party or by leave of the President. Any correction so effected shall be notified to the other party in the same manner as the pleading to which it relates.

Article 53

1. The Court, or the President if the Court is not sitting, may at any time decide, after ascertaining the views of the parties, that copies of the pleadings and documents annexed shall be made available to a State entitled to appear before it which has asked to be furnished with such copies.

2. The Court may, after ascertaining the views of the parties, decide that copies of the pleadings and documents annexed shall be made accessible to the public on or after the opening of the oral proceedings.

Subsection 3. The Oral Proceedings

Article 54

1. Upon the closure of the written proceedings, the case is ready for hearing. The date for the opening of the oral proceedings shall be fixed by the Court, which may also decide, if occasion should arise, that the opening or the continuance of the oral proceedings be postponed.

2. When fixing the date for, or postponing, the opening of the oral proceedings the Court shall have regard to the priority required by Article 74 of these Rules and to any other special circumstances, including the urgency of a particular case.

3. When the Court is not sitting, its powers under this Article shall be exercised by the President.

Article 55

The Court may, if it considers it desirable, decide pursuant to Article 22, paragraph 1, of the Statute that all or part of the further proceedings in a case shall be held at a place other than the seat of the Court. Before so deciding, it shall ascertain the views of the parties.

Article 56

1. After the closure of the written proceedings, no further documents may be submitted to the Court by either party except with the consent of the other party or as provided in paragraph 2 of this Article. The party desiring to produce a new document shall file the original or a certified copy thereof, together with the number of copies required by the Registry, which shall be responsible for communicating it to the other party and shall inform the Court. The other party shall be held to have given its consent if it does not lodge an objection to the production of the document.

2. In the absence of consent, the Court, after hearing the parties, may, if it considers the document necessary, authorize its production.

3. If a new document is produced under paragraph 1 or paragraph 2 of this Article, the other party shall have an opportunity of commenting upon it and of submitting documents in support of its comments.

4. No reference may be made during the oral proceedings to the contents of any document which has not been produced in accordance with Article 43 of the Statute or this Article, unless the document is part of a publication readily available.

5. The application of the provisions of this Article shall not in itself constitute a ground for delaying the opening or the course of the oral proceedings.

Article 57

Without prejudice to the provisions of the Rules concerning the production of documents, each party shall communicate to the Registrar, in sufficient time before the opening of the oral proceedings, information regarding any evidence which it intends to produce or which it intends to request the Court to obtain. This communication shall contain a list of the surnames, first names, nationalities, descriptions and places of residence of the witnesses and experts whom the party intends to call, with indications in general terms of the point or points to which their evidence will be directed. A copy of the communication shall also be furnished for transmission to the other party.

Article 58

1. The Court shall determine whether the parties should present their arguments before or after the production of the evidence; the parties shall, however, retain the right to comment on the evidence given.

2. The order in which the parties will be heard, the method of handling the evidence and of examining any witnesses and experts, and the number of counsel and advocates to be heard on behalf of each party, shall be settled by the Court after the views of the parties have been ascertained in accordance with Article 31 of these Rules.

Article 59

The hearing in Court shall be public, unless the Court shall decide otherwise, or unless the parties demand that the public be not admitted. Such a decision or demand may concern either the whole or part of the hearing, and may be made at any time.

Article 60

1. The oral statements made on behalf of each party shall be as succinct as possible within the limits of what is requisite for the adequate presentation of that party’s contentions at the hearing. Accordingly, they shall be directed to the issues that still divide the parties, and shall not go over the whole ground covered by the pleadings, or merely repeat the facts and arguments these contain.

2. At the conclusion of the last statement made by a party at the hearing, its agent, without recapitulation of the arguments, shall read that party’s final submissions. A copy of the written text of these, signed by the agent, shall be communicated to the Court and transmitted to the other party.

Article 61

1. The Court may at any time prior to or during the hearing indicate any points or issues to which it would like the parties specially to address themselves, or on which it considers that there has been sufficient argument.

2. The Court may, during the hearing, put questions to the agents, counsel and advocates, and may ask them for explanations.

3. Each judge has a similar right to put questions, but before exercising it he should make his intention known to the President, who is made responsible by Article 45 of the Statute for the control of the hearing.

4. The agents, counsel and advocates may answer either immediately or within a time-limit fixed by the President.

Article 62

0 Thoughts to “Article 38 Icj Essay Contest

Leave a comment

L'indirizzo email non verrà pubblicato. I campi obbligatori sono contrassegnati *