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The Deliberative Process of the International Court of Justice: A Preliminary Critique and Some Possible Reforms

  • Richard B. Lillich and G. Edward White (a1)

The deliberative process by which the International Court of Justice (ICJ) reaches its decisions, although a matter of public record,1 is largely ignored today even by specialists.2 Several reasons account for this situation: the limited availability and somewhat opaque nature of the Court’s published procedures;3 the lack of practical interest in this aspect of the Court’s task;4 the reluctance of judges in the past to discuss, at least in print, any aspect of the Court’s decisionmaking process;5 and the impression held in some quarters that this process is something of a mystery.6 Consequently, few students of the Court have more than a hazy impression of how it makes its decisions.7

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1 The Resolution Concerning the Internal Judicial Practice of the Court, adopted on July 5, 1968, was published in [1967–1968] ICJ YB 88–91.

2 The leading manual on the Court’s practice devotes just three pages to the deliberative process. S. Rosenne, The World Court: What It Is and How It Works 102–04 (3rd rev. ed. 1973).

3 The resolution cited in note 1 supra has not been published in subsequent editions of the Court’s Yearbook, which merely states that it is available from the Registry on request. See, e.g., [1974–1975] ICJ YB 103.

4 Parties before the Court, as well as their agents and counsel, naturally are interested primarily in the written and oral pleadings and in the Court’s eventual judgment. Their lack of interest in its deliberative process is thus quite understandable. Somewhat less comprehensible, however, is the paucity of scholarly comment. Presumably it is explained by the fact that until recently procedural problems in general have received short shrift from international lawyers. See generally Lillich, The Procedural Aspects of International Law Institute, 4 Int’l Law. 741 (1970).

5 For a recent authoritative glimpse of the Court’s decisionmaking process, see Dillard, The World Court—An Inside View, ASIL Proc. in 67 AJIL (No. 4.) 296, 301–04 (4973).

6 Yet Edvard Hambro noted over twenty years ago that “[t]here is … really no serious reason for ignorance on this point and no excuse for treating the procedure of the Court in this respect as a mystery revealed only to the initiated.” Hambro, The Reasons Behind the Decisions of the International Court of Justice, in 7 Current Legal Problems 212, 220 (G. Keeton & G. Schwarzenberger eds. 1954).

7 Indeed, even specialists occasionally convey misleading impressions. See G. Elian, The International Court of Justice 65 (1971), who overlooks the changes wrought by the resolution cited in note 1 supra, despite the fact that it was adopted three years before his book’s publication.

8 For an earlier and generally overlooked attempt, see Mosler, La Procédure de la Cour Internationale de Justice et de la Cour Européenne des Droits de l’Homme, in René Cassin: Amicorum Discipulorumque Liber 196, 204–09 (K. Vasak ed. 1969). See also notes 5 & 6 supra.

9 “The matter was considered in drafting the 1922 Rules, and it was then decided to include no provision for the appointment of a rapporteur.…” M. Hudson, The Permanent Court of International Justice 512 (1934). On the other hand, the PCIJ “recognised the merits of the system whereby the Court would select a member, in each special case, to draft a judgment embodying the views of the majority, after the general discussion in private by the members of the Court.” Acts and Documents Concerning the Organization of the Court, [1922] PCIJ, ser. D, No. 2, at 305. For at least one use of a juge rapporteur, see text at note 12 infra.

10 Acts and Documents, note 9 supra.

11 From 1922 until 1931. See text at and following note 20 infra.

12 M. Hudson, supra note 9, at 512.

13 Apparently the practice of exchanging written notes just grew like topsy. Manley Hudson recounts this growth:

In the beginning, the Court having declined to adopt a system of rapporteurs, the judges engaged in common verbal deliberations; but written notes were often prepared, read, and later circulated, and “judges who spoke ex tempore often asked the Registry for very full records of their observations and subsequently had them circulated.” Hence the practice grew up by which each judge wrote out his views before the general deliberation.

Hudson, The Tenth Year of the Permanent Court of International Justice, 26 AJIL 1, 3 (1932).

14 M. Hudson, supra note 9, at 512.

15 See, e.g., 3 PCIJ Ann. R. (ser. E) 214–15 (1927).

16 “In the Chorzów Factory Case, it was agreed at the preliminary discussion that the President should prepare a list of preliminary questions to be considered, to guide the members in drafting their notes; two series of notes, one on questions of principle and one on questions of application, were then presented and a second preliminary discussion was held. In 1928, in connection with the advisory opinion on the Greco-Turkish Agreement, no preliminary discussion was held.” M. Hudson, supra note 9, at 513, citing 5 PCIJ Ann. R. (ser. E) 259 (1929). Actually, not only was the preliminary discussion omitted in the latter case, but also the preparation of individual notes. “Allowing two days for study of the documents, a day was fixed for the discussion of the question and adoption of final conclusions. At the termination of this discussion a Drafting Committee was appointed.” Id. Compare text accompanying note 25 infra.

17 See text at notes 27–32, 36–38 & 68–69 infra.

18 Hammarskjöld, Sidelights on the Permanent Court of International Justice, 25 Mich. L. Rev. 327, 331 (1927) (emphasis added).

19 Hughes, The World Court as a Going Concern, 16 A.B.A.J. 151, 155 (1930).

20 7 PCIJ Ann. R. (ser. E) 297 (1931).

21 [1931] PCIJ, ser. D, No. 2 (2d add.), at 300–01, reprinted in Hudson, supra note 13, at 5.

22 Id.

23 Id.

24 Id. at 5–6.

25 Hudson observed three years after its adoption that the Court had not “followed the formulation strictly, though complete information on this point has not been published.” M. Hudson, supra note 9, at 514. From published sources, it appears that on at least two occasions, the first concerning a preliminary objection and the second involving interim measures of protection, the PCIJ dispensed with notes entirely. 8 PCIJ Ann. R. (ser. E) 269 (1932); 10 PCIJ Ann. R. (ser. E) 162–63 (1934). Compare text accompaning note 16 supra.

26 12 PCIJ Ann. R. (ser. E) 196–97 (1936), reprinted in Hudson, The Fifteenth Year of the Permanent Court of International Justice, 31 AJIL 1, 3–4 (1937).

27 See text at note 22 supra.

28 The third paragraph of the 1936 resolution states that this deliberation is held for the purpose of collectively examining the case as it presents itself after the hearing, bringing out the questions to be solved and discussing them severally. The President ensures that all questions called to notice either by himself or by the judges have been discussed and that each judge has made known his impressions in regard to them.

Hudson, supra note 26, at 4.

29 An exception proves the general rule. “For the purposes of the preliminary discussion of an advisory case taken at the 23rd Session, the Court decided to follow the old practice according to which judges, at this stage of the deliberation, confined themselves to explaining the points on which they wished to have the views of their colleagues.” 8 PCIJ Ann. R. (ser. E) 269 (1932) (emphasis added).

30 See, e.g., M. Hudson, The Permanent Court of International Justice 1920–1942, at 580 (1943).

31 See text at notes 17–19 supra.

32 Cf. Hambro, supra note 6, at 221 (emphasis added):

The judges then meet in the Council Chamber and discuss the case fully but provisionally. The President makes sure that all questions raised have been discussed and that each judge has made known his views in regard to them. After this full debate, each judge sets down his views in writing in an individual note.

33 2 S. Rosenne, The Law and Practice of the International Court 598 (1965). See [1967–1968] ICJ YB 87.

34 During 1964–1968 a committee of three judges (Sir Gerald Fitzmaurice, André Gros, and Philip Jessup) presented various reports on the revision of the Court’s deliberative process. Id. at 87–88.

35 See note 1 supra.

36 Art. 3(i).

37 Art. 3(ii).

38 Id.

39 Article 4(i) makes no mention of anonymity, but initially all notes actually are distributed anonymously, “in order, presumably, to minimize the potential influence of one judge on another.” Dillard, supra note 5, at 302. Before substantive deliberations begin, however, the Registry provides a key which makes the author of each note known to his colleagues.

40 Art. 4(ii).

41 Art. 5.

42 Art. 6.

43 Id.

44 Comparisons between specific features of the deliberative process of the ICJ and the Supreme Court are made throughout this section. For accounts of the Supreme Court’s deliberative process, see generally A. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (1957) and Hart, The Time Chart of the Justices, 73 Harv. L. Rev. 84 (1959).

45 See text at note 37 supra. In preparing this list, the President receives assistance from the Registry.

46 The Chief Justice prepares the agenda for a conference with the assistance of the Clerk’s office. In deliberating matters the Chief Justice speaks first and votes last. A well-prepared Chief, if he is inclined, has an opportunity to influence the attitudes of his colleagues through a forceful presentation of issues. Chief Justice Hughes took full advantages of this opportunity. See generally D. Danelski & J. Tulchin, The Autobiographical Notes of Charles Evans Hughes (1973).

47 See text at note 23 supra.

48 See text at notes 39 & 40 supra.

49 This complaint is not a new one. According to Hudson, “Sir Cecil Hurst and Judge Anzilotti thought that ‘the danger of the notes was that once ideas had become fixed by being committed to writing, it was often difficult to change them.’ “ Hudson, supra note 13, at 3–4. See also M. Hudson, supra note 9, at 513.

50 [1975] ICJ Rep. 12.

51 See text at note 41 supra.

52 See text at and accompanying note 49 supra. A senior judge could not remember any judge changing his vote after taking a stand in a note. As another judge graphically remarked, “a gunpowder keg would be needed to cause a judge to shift his views after completing his note.”

53 Two judges making this point stated that in their opinion the Court engaged in “no real deliberation.”

54 Among the many factors hindering informal discussion is the language problem. Several judges can converse only in English or in French, making informal communication with colleagues literally impossible.

55 See text at notes 42 & 43 supra.

56 The Chief Justice of the Supreme Court has the power to assign opinions if he is in the majority. The President’s role in the drafting committee, while not clear cut, presumably is less influential.

57 Art. 7(i).

58 Id.

59 Art. 7(ii) & (iii).

60 Art. 8.

61 See H. Lauterpacht, The Development of International. Law by the International Court 66–70 (1958).

62 See, e.g., the Declaration of Judge Louis Ignacio-Pinto in the Fisheries Jurisdiction Case (Great Britain v. Iceland), Merits, [1974] ICJ Rep. 3, 35.

63 In the Advisory Opinion on Namibia, [1971] ICJ Rep. 16, for instance, the majority opinion does not rely upon the dissenting opinions in the South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, [1966] ICJ Rep. 6. Separate opinions, however, do refer to the dissenting opinions in the earlier case. See, e.g., the Separate Opinion of Judge Dillard, [1971] ICJ Rep. 16, 138, 160 n.1.

64 ICJ Stat. Art. 59.

65 See, e.g., the Joint Dissenting Opinion of Judges Charles Onyeama, Hardy Dillard, Jiménez de Aréchaga, and Sir Humphrey Waldock in the Nuclear Test Case (Australia v. France), [1974] ICJ Rep. 253, 311.

66 The discussion of reforms in this section is confined primarily to those reforms which engendered immediate enthusiasm among the judges interviewed. The authors will consider reforms of the Court’s procedure in much greater detail in a forthcoming study of the decisionmaking process of the ICJ.

67 ICJ Stat. Art. 30, para. 1.

68 See text at notes 31 & 32 supra.

69 See text at notes 33–35 supra.

70 See note 19 supra.

71 Cf. M. Hudson, supra note 30, at 581:

Frequent criticism of the details of the procedure is made by the judges themselves, and it must be admitted that the procedure as a whole is time-consuming. Yet it gains in thoroughness precisely because it is not expeditious, though changes might have to be made if the cases before the Court should become more numerous.

It is worth recalling that upon occasion the PCIJ dispensed with written notes entirely. See text accompanying note 25 supra.

With the 1968 resolution not applying specifically to interim measures of protection, the ICJ also has skipped the note stage in such situations. See, e.g., the Fisheries Jurisdiction Case (Great Britain v. Iceland), Jurisdiction, [1973] ICJ Rep. 3. The fact that, in the words of one judge, “a real deliberation” leading to a satisfactory result occurred in the above case lends support for the conclusion that streamlined procedures are not necessarily incompatible with thorough deliberation of the issues.

* Of the Board of Editors.

** The authors prepared this article for the research project on The Decisionmaking Process of the International Court of Justice conducted under the auspices of The Procedural Aspects of International Law Institute, Inc. Funds to support the project were contributed by the Doherty Foundation, the American Philosophical Society, the University of Virginia School of Law, and the Institute itself.

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