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Procedural Normative System of the International Court of Justice

Abstract
Abstract

On the basis of a thorough empirical analysis, the article comes to a number of theoretical conclusions which have never previously been discussed in the literature. In particular, it demonstrates that the Court's procedure is governed not only by ‘procedural law’ but also by norms which are non-legal. Moreover, it clearly circumscribes which norms in the documents relating to the functioning of the Court are procedural and which lack this character. In their entirety, provisions governing the Court's procedure form a ‘normative system’, with the law being only one of its elements. The Court's procedural norms originate both from the traditional sources of international law as well as from sources which, according to the usual classification, do not necessarily belong to that category. The procedural norms that are derived from all of these sources, while not tending towards uniformity in terms of their characteristics and effect, nevertheless form a system which operates as a whole. The procedure of the International Court of Justice does not fit neatly within the general scheme of ‘legal versus non-legal norms’; neither can one readily apply the theory of traditional sources of international law to a procedural system which brings together heterogeneous elements and must therefore be explained keeping in mind its own logic and nature.

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1 Also called adjective or adjectival law.

2 Procedural Law, Britannica Online Encyclopedia, available at academic.eb.com/EBchecked/topic/477661/procedural-law.

3 International procedural law should be differentiated from the procedural rules regulating activities of international organizations and conferences (see Lauterpacht E., ‘Principles of Procedure in International Litigation’, in Académie de droit international. Recueil des cours, Vol. 345 (2009), (2011), at 403), which in general terms form part of the internal law of international organizations and are not related to international adjudication.

4 Shaw M., Rosenne's Law and Practice of the International Court. 1920–2015 (2016), 1047.

5 Ibid., at 1026.

6 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment of 3 February 2012, [2012] ICJ Rep. 2012, 99, at 140, para. 93.

7 Thirlway H.W.A., ‘Procedure of International Courts and Tribunals’, in Encyclopedia of Public International Law (under the direction of R. Bernhardt) (1997), Vol. 3, at 1128.

8 Brown C., A Common Law of International Adjudication (2007), 3.

9 Ibid., at 234–37.

10 See Guinchard S. et al., Droit processuel: Droit fondamentaux du procès (2015), 55–7.

11 Ibid., 1153–7.

12 Mavrommatis Palestine Concessions, Objection to the Jurisdiction of the Court, Judgment No. 2, 30 August 1924, PCIJ Rep., Series A, No. 2, at 34.

13 Ibid., at 10; Certain German Interests in Polish Upper Silesia, Jurisdiction, Preliminary Objections, Judgment No. 6, 25 August 1925, PCIJ Rep. Series A, No. 6, at 19.

14 De Visscher C., Aspects récents du droit procédural de la Cour internationale de Justice (1966), 7.

15 For the purposes of the present article, the word ‘norm’ will be used as a generic term denominating any kind of a standard of behaviour while the word ‘rule’ will denominate a legally binding norm.

16 This charter contains provisions regarding the position of the Court within the Organization, its principal function and normative basis (Art. 92); the participation of states in the Statute of the Court (Art. 93); rights and obligations of states in the post-adjudicative phase (Art. 94); the right of member states to use any tribunal in order to settle their disputes (Art. 95) and the advisory function of the Court (Art. 96).

17 Zimmermann A. et al., The Statute of the International Court of Justice. A Commentary (2012), 164

18 Ibid., at 168.

19 Kolb R., The International Court of Justice (2013), 82–3.

20 Shaw, supra note 4, at 103–4.

21 Ibid., at 108.

22 It should be noted that the Preamble to the Rules refers both to Chapter XIV of the Charter and to the Statute.

23 Shaw, supra note 4, at 1055–6. The relevant text of the advisory opinion reads as follows: ‘Unless a contrary intention has been expressed, the interested Parties are in such cases [i.e. “where the Parties have had recourse to a body already constituted and having its own rules of organization and procedure”] held to have accepted such rules’ (Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne 1925, Advisory Opinion of 21 November 1925, PCIJ Rep. Series B, No. 12, at 31)

24 This is the reason why Kolb states that the Rules are binding on the Court ‘to some extent’ (Kolb, supra note 19, at 101). However, the power of a body to amend a rule and its obligation to abide by this rule are distinct categories which are not interdependent. This power does not mean that the rule in question is less- or non-binding on this body.

25 Footnote 1 to the title of the Rules reads as follows: ‘Any amendments to the Rules of Court, following their adoption by the Court, are now posted on the Court's website, with an indication of the date of their entry into force and a note of any temporal reservations relating to their applicability (for example, whether the application of the amended rule is limited to cases instituted after the date of entry into force of the amendment); they are also published in the Court's Yearbook.’

26 See Press Release 2001/1 of 12 January 2001, available at www.icj-cij.org/presscom/index.php?pr=611&pt=&p1=6&p2=1.

27 See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counter-Claims, Order of 29 November 2001, [2001] ICJ Rep. 660, at 676, para. 27; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Order of 14 November 2002, [2002] ICJ Rep. 610, at 611; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Preliminary Objections, Judgment of 24 May 2007, [2007] ICJ Rep. 582, at 587, para. 5; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment of 18 November 2008, [2008] ICJ Rep. 412, at 415–16, para. 9; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 3 February 2015, at 15, para. 7; Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment of 10 February 2005, [2005] ICJ Rep. 6, at 10, para. 3; Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment of 13 December 2007, [2007] ICJ Rep. 832, at 837, para. 6; Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment of 1 April 2011, [2011] ICJ Rep. 70, at 77, para. 11.

28 The Croatia v. Serbia case was instituted on 2 July 1999.

29 Press Release 2001/32 of 31 October 2001, available at www.icj-cij.org/presscom/index.php?pr=110&pt=&p1=6&p2=1.

30 Press Release 1998/14 of 6 April 1998, available at www.icj-cij.org/presscom/index.php?pr=618&pt=&p1=6&p2=1.

31 They were both announced in the same Press Release 2001/1.

32 From ‘within the time-limit fixed for the delivery of the Counter-Memorial’ to ‘not later than three months after the delivery of the Memorial’.

33 It was subsequently further specified that ‘this period runs from the date of the filing of the preliminary objections’ (see Press Release 2004/30 of 30 July 2004, available at www.icj-cij.org/presscom/index.php?pr=94&pt=1&p1=6&p2=1&PHPSESSID=5c407).

34 Only Practice Directions VII and VIII (both relating to certain situations of incompatibility regarding judges ad hoc and agents, counsel or advocates) contain such reservations.

35 Namely ‘the practice of simultaneous deposit of pleadings in cases brought by special agreement’.

36 H.W.A. Thirlway, ‘The Law and Procedure of the International Court of Justice. 1960–1989. Supplement, 2011’, (2011) 82 BYIL, at 8; see also Thirlway H.W.A., The Sources of International Law (2014), 123.

37 Or ‘derivative’, following the terminology of R. Kolb (see Kolb, supra note 19, at 96).

38 Kolb notes that ‘the Court does have the legislative powers necessary for the effective carrying out of the judicial functions assigned to it. Those legislative powers arise both under Article 30 of the Statute, and from the general principle applicable to all international bodies, namely the principle of implied powers’. And further: ‘Given the purpose of the Practice Directions, the Court's authority to issue them is directly derived from Article 30 of the Statute as well as from its implied powers’, see Kolb, supra note 19, at 103–4.

39 Watts A., ‘New Practice Directions of the International Court of Justice’, (2002) 1 The Law and Practice of International Courts and Tribunals 247 , at 255.

40 Pellet A., ‘Remarks on Proceedings before the International Court of Justice’, (2006) 5 The Law and Practice of International Courts and Tribunals 163 , at 178.

41 Rosenne S., ‘International Court of Justice: Practice Directions on Judges Ad Hoc; Agents, Counsel and Advocates; and Submission of New Documents’, (2002) 1 The Law and Practice of International Courts and Tribunals 223 , at 224; Quintana J.J., Litigation at the International Court of Justice (2015), 174 .

42 Thirlway, supra note 36(a), at 9.

43 Quintana, supra note 41 at 174.

44 As can be seen by looking at the application in practice of Practice Direction V (‘With the aim of accelerating proceedings on preliminary objections made by one party under Article 79, paragraph 1, of the Rules of Court, the time-limit for the presentation by the other party of a written statement of its observations and submissions under Article 79, paragraph 5, shall generally not exceed four months from the date of the filing of the preliminary objections’), the Court's position in this regard has evolved with time. Initially, following the adoption of this Practice Direction (which had ‘immediate effect’), there were no references to it in the respective Orders for the fixing of time limits for the filing of written observations on preliminary objections. Moreover, the time limits fixed in 2002 varied and were not always in conformity with the requirements of Practice Direction V (the relevant time limits, from the date of the filing of preliminary objections, were as follows: Certain Property (Liechtenstein v. Germany) – 4.5 months; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) – 9 months; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) – 7.5 months. In the 2003 Order in the Territorial and Maritime Dispute (Nicaragua v. Colombia) case, the time limit was six months (although four months from the date of the Order). The next time preliminary objections were raised was in 2009 in the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) case. The relevant time limit in this case was four months from date of the filing of the objections (however, still without reference to Practice Direction V and with a mention of the agreement of the parties). Finally, it appears that in 2014 the Court decided to affirm the need for strict compliance with Practice Direction V, and a modern practice which is in full conformity with that provision began with the Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) case. In this case, the Order of 15 July 2014 fixing the time limit specifically relied on Practice Direction V and fixed a time limit of four months. The same approach was followed in similar Orders in the cases Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) (19 December 2014), Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom) (19 June 2015), and Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) (9 October 2015). There is only one exception in the recent case law. In the case concerning the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), the relevant time limit was four months from the date of the Order. However, this deviation is explained by an unusual procedural situation in the case wherein preliminary objections were raised by the respondent before the filing of a Memorial by the applicant.

45 This is explicitly stated in Art. 10 of the Resolution.

46 A confirmation of this can be found in an address of President Bedjaoui given to the meeting of Legal Advisers to the Ministries of Foreign Affairs of States Members of the United Nations on 4 November 1996 ( Bedjaoui M., ‘The “Manufacture” of Judgments at the International Court of Justice’ (1991) I.C.J. Yearbook 1996–1997, 238–40).

47 See supra note 30 and Press Release 2002/12 of 4 April 2002, available at www.icj-cij.org/presscom/index.php?pr=1026&pt=&p1=6&p2=1.

48 For example, Art. 44, para. 4 (filing of written pleadings); Art. 79, para. 5 (time limits); Art. 88, para. 3; Art. 89, para. 3 (discontinuance); and Art. 105, para. 2 (organization of advisory procedure).

49 Shaw, supra note 4, at 1057.

50 Mavrommatis Palestine Concessions, supra note 12, at 16.

51 De Visscher, supra note 14, at 7.

52 Fisheries Jurisdiction, Nuclear Tests, Trial of Pakistani Prisoners of War and Aegean Sea Continental Shelf.

53 Military and Paramilitary Activities in and against Nicaragua, Border and Transborder Armed Actions, Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Fisheries Jurisdiction, Aerial Incident of 10 August 1999 and Armed Activities on the Territory of the Congo.

54 A provision (new para. 2) was added to Art. 79 to the effect that ‘following the submission of the application and after the President has met and consulted with the parties, the Court may decide that any questions of jurisdiction and admissibility shall be determined separately’.

55 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Declaration of Intervention by New Zealand, Order of 6 February 2013, [2013] ICJ Rep. 3, at 9–10, paras. 22, 23.

56 See also Arts. 43(5) and 51 of the Statute.

57 See, for example, Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Merits, Judgment of 16 December 2015, at 14, para. 34; and Verbatim Record of the Public Sitting in these cases held on 14 April 2015 (CR 2015/3, at 20–21).

58 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment of 23 May 2008, [2008] ICJ Rep. 12, at 20, para. 9.

59 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 18 November 2008, supra note 27, at 428, para. 53.

60 Shaw, supra note 4, at 1031.

61 Resolutions 91(I) of 11 December 1946 (Switzerland), 363(IV) of 1 December 1949 (Liechtenstein), 805(VIII) of 9 December 1953 (Japan), 806(VIII) of 9 December 1953 (San Marino), and 42/41 of 18 November 1987 (Nauru).

62 Declarations under this resolution were made by Albania (1947), Cambodia (1952), Ceylon (1952), Finland (1953, 1954), the Federal Republic of Germany (1955, 1956, 1961, 1965, 1971), Italy (1953, 1955), Japan (1951), Laos (1952), and the Republic of Vietnam (1952).

63 Rule 151 of the Rules of Procedure of the General Assembly; Rule 61 of the Provisional Rules of Procedure of the Security Council.

64 See B. Fassbender, ‘Article 11’, in Zimmermann et al., supra note 17, 330, at 331; Shaw, supra note 4, at 385.

65 Supra note 47.

66 Supra note 30.

67 Thirlway, supra note 7, at 1128.

68 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment of 13 September 1990, [1990] ICJ Rep. 92 at 136, para. 102.

69 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966, [1966] ICJ Rep. 6, at 39, para. 64.

70 Ibid., para. 65.

71 For the overview see R. Kolb, ‘General Principles of Procedural Law’, in Zimmermann et al., supra note 17, 871, at 876 et seq.

72 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, [1986] ICJ Rep. 14, at 24, para. 29 (referring to The Case of the S.S. Lotus (France v. Turkey), Judgment of 7 September 1927, PCIJ Rep., Series A, No. 10, at 31 and Fisheries Jurisdiction (United Kingdom v. Iceland) (Federal Republic of Germany v. Iceland), Merits, Judgments of 25 July 1974, [1974] ICJ Rep. 175, at 9, para. 17; at 181, para. 18).

73 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 11 November 2013, [2013] ICJ Rep. 281, at 307, para. 71 (referring to the previous case law); Frontier Dispute (Burkina Faso/Niger), Judgment of 16 April 2013, [2013] ICJ Rep. 44, at 78, para. 74. On this principle, see also: Kolb, supra note 71, at 893–903.

74 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, [2010] ICJ Rep. 14, at 71, para. 162 (referring to the previous case law); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment of 3 February 2015, at 73, paras. 172–3.

75 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment of 21 October 1999, [1999] ICJ Rep. 31, at 38, para. 15. See also Nuclear Tests (Australia v. France) (New Zealand v. France), Judgments, [1974] ICJ Rep., at 265, para. 33; at 469, para. 34. On this principle, see also Kolb, supra note 71, at 877–84.

77 Ibid.

78 2326 UNTS 89–93.

79 2368 UNTS 325–31.

80 It is recalled that the distinction between ‘rules’ and ‘norms’, made for the purposes of the present article, has been explained in supra note 15.

81 Kolb, supra note 71, at 873.

82 Ibid., at 874.

83 Brown, supra note 8.

84 Quintana, supra note 41, at 40.

85 In 2004 Judgments, the Court made a distinction between access to the Court and jurisdiction (Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment of 15 December 2004, [2004] ICJ Rep. 279, at 295, para. 36; at 299, para. 46). However, in its 2007 and 2008 Judgments, its position became more nuanced. In particular, the Court stated that the question of access to the Court ‘can be regarded either as an issue relating to the Court's jurisdiction ratione personae or as an issue preliminary to the examination of jurisdiction’ (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment of 18 November 2008, [2008] ICJ Rep. 412, at 432, para. 66; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, [2007] ICJ Rep. 43, at 94, para. 122; at 100, para. 136).

86 ‘The Court shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure.’ This distinction is even clearer in French: ‘La Cour détermine par un règlement le mode suivant lequel elle exerce ses attributions. Elle règle notamment sa procédure.’

87 In the Judgment of 14 February 2002 in the case concerning Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), [2002] ICJ Rep. 3, at 25, para. 60, the Court stated that ‘jurisdictional immunity is procedural in nature’.

88 There are exceptions as far as civil and administrative jurisdiction is concerned but they are without consequence for the present analysis.

89 Thirlway H.W.A., ‘Procedural Law and the International Court of Justice’, in Lowe V. and Fitzmaurice M. (eds.), Fifty years of the International Court of Justice: essays in honour of Sir Robert Jennings (1996), at 389 ; Thirlway, supra note 7, at 1128.

90 Brown, supra note 8, at 36–7; Quintana, supra note 41, at 139

91 Although in the doctrine, with reference to scholarly opinions and international jurisprudence, it has been argued that ‘customary international law can represent a source of procedural law, even though it is usually thought to be generated by the practice of states and their expressions of opinion juris, and not the practice of international courts and tribunals’ (Brown, supra note 8, at 53). However, from the three examples given by that author in support of this proposition, one does not refer to actual procedural law (obligation to make full reparation) and the two others simply refer to the practice of various international courts and tribunals – so, overall, the evidence clearly falls short of demonstrating the existence of a customary rule of law in the absence of opinio juris of states.

92 Watts, supra note 39, at 255; Brown, supra note 8 at, 41.

93 See, for example, Mavrommatis Palestine Concessions, supra note 12, at 16; Nuclear Tests (Australia v. France) (New Zealand v. France), Judgments, supra note 75, at 259–60, para. 23; at 463, para. 23.

94 It is noted in the literature that, for instance, the Court ‘cannot derogate from the Statute, as well as from the Rules whose content reflects a provision in the Statute’. However, it can derogate from the other provisions in the Rules, provided that this derogation is not ‘at variance with the fundamental principles of procedural law’ and can be ‘justified in the light of the need to ensure the proper conduct of case’ ( Amoroso D., ‘The Judicial Activity of the International Court of Justice in 2013: Procedural Law Issues before the ICJ’, (2013) XXIII The Italian Yearbook of International law, at 328 ).

Kolb observes, however, that the normative structure regulating the Court's functioning ‘does correspond, at all points, to a strict legal hierarchy’. While ‘[t]he Charter and the Statute are placed on a footing of equality’ and therefore their ‘relative juridical ranking . . . is thus very clear’, ‘[t]he relative ranking of Rules and Practice Directions is somewhat more nuanced’. He explains this nuance as follows: ‘The Rules have to conform to the Statute . . . Practice Directions, in turn, have to be kept within the framework permitted by the Rules . . . Nevertheless, contrary to the position as regards the Statute, as regards the Rules, the Court is in exclusive control. At any time, it can modify the Rules in order to enable a Practice Direction to be issued or subsist’. He also adds that ‘[t]he Rules of Court are subordinate to the Statute . . . [t]here is a clear hierarchy between the two texts’. In spite of all these nuances, Kolb finally concludes that ‘[t]here is a triple hierarchy of sources: Statute – Rules – Practice Directions. The Rules themselves, however, can be modified by the Court unilaterally. So, if the Court wished to issue a Practice direction that was incompatible with the Rules, it could alter them first’ (Kolb, supra note 19, at 78, 101, 105).

* First Secretary and Senior Legal Officer at the Registry of the International Court of Justice; PhD, Moscow State University []. The views and opinions expressed are solely those of the author and do not necessarily represent the views and opinions of the above institution. The author wishes to thank Vladlen S. Vereshchetin, Judge at the International Court of Justice (1995–2006), and Nathalie Wiles, First Secretary of the Court, for their comments on the draft of this article.

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