Over the last century, the individual’s participation in the international legal system has considerably expanded. Indeed, they now participate as a party with legal standing (also referred to as locus standi or jus standi) in international adjudication before human rights courts, international criminal tribunals, and investment and mixed claims tribunals. Standing is a one’s entitlement to be a part of judicial proceedings. However, Article 34(1) of the Statute of the International Court of Justice (ICJ) reads that ‘[o]nly States may be parties in cases before the Court.’Footnote ²

Article 34(1) is one of the essential pillars of the Court’s jurisdiction insofar as it is one of the oldest rules, unaltered since the days of its predecessor. This clause illustrates the jurisdictional component of having access to the ICJ – in other words, the right to appear before the Court as a party to proceedings.Footnote ³ Article 34(1) has been described as the ‘entrance door’ to the settlement of its disputesFootnote ⁴ and by the Permanent Court of International Justice (PCIJ, Permanent Court) as ‘one of the essential conditions of procedure before the Court’.Footnote ⁵ Indeed, Article 34 under the PCIJ Statute stipulated almost the same words that we find today in Article 34 of the ICJ Statute: ‘Only States or Members of the League of Nations can be parties in cases before the Court.’Footnote ⁶

Article 34(1) has been criticised for being ‘… if not definitely outdated, at least somewhat disconnected from the contemporary developments characterising the international community at a time when actual participation of active members of the “international civil society” in international cooperation for international law-making and monitoring has become one of the basic features of modern international relations’.Footnote ⁷ Similarly, former ICJ Judge Robert Jennings observed in 1995 that the ‘change in effect and perspectives of Article 34(1)’ had changed in a ‘quiet and gradual (…) generally unremarked’ way due to ‘a very considerable part of international law directly affects individuals, corporations and legal entities other than States’.Footnote ⁸

The Court itself has described the implications of Article 34(1) as follows:

Despite its clear wording, the Court often receives requests from individuals, as encapsulated in the quote that opens this chapter. A proposition of amending Article 34(1) to allow individuals to be parties has been contemplated by the likes of Hersch Lauterpacht, Shabtai Rosenne, and Rosalyn Higgins.Footnote ¹⁰ Indeed, many have penned their concerns about this clause, arguing that efforts should be made to open the Court’s jurisdiction to entities other than states. W. Paul Gormley has even stated that ‘[t]he greatest single innovation required in international law is the liberalization of Article 34(1) of the Court’s Statute in order that private parties may appear before the Hague Tribunal’.Footnote ¹¹

Yet, such propositions are often justified by theoretical observations of individuals’ budding roles in the international legal system, falling short of examining the stakes, issues and procedural technicalities involved. In this chapter, I argue that despite the role of individuals in the international legal order justifying their legal standing at the Court, the practicalities of this endeavour make it an undesirable proposition. I first present how Article 34(1) was drafted, explaining that the principal reason for not granting the individual locus standi was largely due to the primacy of states, characteristic of the traditional positivist doctrine in the nineteenth and the early twentieth centuries (Section 1.1). Second, I speculate on the necessary adjustments to be made for this proposition to go forward – with respect to Statute amendments, workload, jurisdiction, and legal interest – to illustrate its practical infeasibility (Section 1.2). I then conclude (Section 1.3).

1.1 To Be or Not to Be a Party? Discussions within the Advisory Committee of Jurists

Article 34(1) was drafted by the Advisory Committee of Jurists, a group of ten jurists established on 12–13 February 1920 by the Council of the League of Nations, pursuant to Article 14 of the Covenant of the League of Nations.Footnote ¹² To facilitate the debates within the Advisory Committee, several projects from governments and other entities were submitted regarding the broad question of locus standi at the PCIJ. They also submitted separate projects addressing a specific question: whether the Permanent Court may take cognisance of conflicts in which one or two of the parties are private persons.

Regarding the broad question of locus standi at the Court, most projects argued whether Members of the League (contracting parties) should be the only states with locus standi, or if other states that are not Members of the League should as well. Despite the restriction of this topic to the types of states to be granted locus standi, two propositions were made in relation to states’ nationals: the Dutch project stated that ‘[t]he Court is open only to states Members of the League of Nations, and to nationals of such states’,Footnote ¹³ while the Swedish project upheld the principle of diplomatic protection (the focus of Chapter 2): ‘The Court is only to deal with disputes between states. A state can institute proceedings before the Court to establish a claim on behalf of one of its nationals against another.’Footnote ¹⁴

Regarding the specific question of whether the Court may take cognisance of conflicts in which one or two of the parties are private persons, the responses were varied. The International Law Union, Denmark, Norway, Sweden, Switzerland, and Austria all stated in their projects that disputes should only be inter-state.Footnote ¹⁵ On the other hand, the Interparliamentary Union (an international organisation of national parliaments), the Netherlands, and Germany supported that private parties should have direct access to the Permanent Court.Footnote ¹⁶ Both the Five Neutral Powers’ projectFootnote ¹⁷ (proposed by Norway, Denmark, the Netherlands, Sweden, and Switzerland) and the Root–Phillimore planFootnote ¹⁸ (proposed by former US Secretary of State Elihu Root and Lord Walter Phillimore of the UK) supported the concept of diplomatic protection that the state can bring a claim on behalf of one of its citizens.

Following this discussion, the next session of the Advisory Committee’s meetings centred on the following question: ‘Shall the Court constitute essentially a jurisdiction between states, or shall its competence extend to litigation concerning individuals? Under what conditions can the latter eventually occur?’Footnote ¹⁹ This question was raised in the first place mainly because Article 4(2) of the International Prize Court had recently established an international precedent of assuming jurisdiction over claims made by individuals.Footnote ²⁰ Although this was the only precedent explicitly mentioned in the Advisory Committee’s discussions, it is pertinent to note other then-existing international precedents, such as the Central American Court of Justice and the various Post-World War One Mixed Arbitral Tribunals.Footnote ²¹

Two of the ten members of the Advisory Committee argued in favour of granting individuals access to an eventual Permanent Court: Dr. Bernard Loder, former Dutch Supreme Court judge and first president of the PCIJ, and Albert de Lapradelle, French Law Professor at the University of Sorbonne.Footnote ²² The other eight members were in favour of a strictly inter-state court. Despite the evident majority, the proposal was still debated, with several arguments being raised for and against it. I argue that the principal motive underpinning arguments against locus standi of the individual was the predominant positivist perception of the individual as no more than an ‘object’ of international law in the nineteenth and the early twentieth centuries.

There were three main arguments raised in favour of granting the individual locus standi at the Court: denial of justice, double nationality, and commercial relations. The first argument was the denial of justice. Early in the discussion, Albert de Lapradelle stated his concern about cases in which private individuals were faced with a denial of justice from their state. ‘It sometimes happens that a private individual who has made a contract with a State, finds it impossible to obtain justice against it on account of a species of privileged right of sovereignty recognized by the legislation and jurisprudence of some countries, such as France,’ he said.Footnote ²³ Under these circumstances, individual access to the Court would be a worthy exception to make, giving the Court ‘supplementary jurisdiction’ as it was called, ‘provided that the case was not of a political nature’.Footnote ²⁴ It is interesting to note that this argument appears to prioritise the individual’s needs over state sovereignty, placing a limit on what a state can or cannot do to its citizens and adopting consequences, should it surpass its moral obligation to uphold justice.

However, the argument of the denial of justice was refuted by the Committee; it was argued by British lawyer and judge Lord Walter Phillimore that the PCIJ would not be able to do anything about a denial of justice on a national level, as it was not a Court of Appeal over national courts.Footnote ²⁵ Furthermore, if an individual was not authorised to sue the government in a certain nation, ‘the individual [will have] entered into the contract with the State, in full knowledge of this fact’.Footnote ²⁶

In relation to this argument, the question was raised whether the principle of subsidiarity – that an individual must have exhausted domestic judicial avenues and been denied justice from them, in order to seize an international judicial body – should be applicable if individuals were to have access to the Court. The President of the Committee had suggested the ‘possibility of including a special clause demanding that, before a State take up the defense of its subject, national jurisdiction should have been exhausted’.Footnote ²⁷ However, it was argued by former Brazilian delegate to the 1919 Versailles Peace Conference Raoul Fernandes that it would be a difficult principle to sustain in this context, as certain national jurisdictions of the world do not permit individuals to appeal against the government or allow it but not through judicial means stricto sensu, but rather through administrative procedure. This connects to a comment earlier made by Lord Phillimore that ‘municipal law, according to the country, either gives or does not give to individuals the right to sue the State at law. If this right did not exist it was not admissible that it should be introduced by a roundabout method of international jurisdiction’.Footnote ²⁸ Mr. Fernandes thus further considered that adding a clause about the denial of justice may be interpreted in ‘too narrow a sense’, as ‘it might be concluded from this that no suit could be brought when it was not allowed to sue the State at law before the national Courts and, consequently, there would be no degrees of internal jurisdiction to be exhausted’.Footnote ²⁹

The second argument in favour of granting the individual locus standi at the Court was double nationality. In other words, as explained by Albert de Lapradelle,

In response, former Norwegian prime minister Francis Hagerup argued that ‘cases of double nationality could not be taken before a Court, without a previous Convention between the two States concerned’.Footnote ³¹ Another more supported response was by Lord Phillimore who claimed that the individual who was the subject of such a dispute was not considered as a civis mundi, but rather the subject of one or two particular states. Thus, it was not for the Court to decide on the matter, but rather for the national legislations of the respective countries to feature a clause dealing with this situation.Footnote ³²

The third argument in favour of granting the individual locus standi at the Court was that commercial relations between an individual and other governments would create a certain equality between them, despite the doctrine of state sovereignty. In this case, it would be difficult for the individual to find justice on a national level because of the independence of that state. It would therefore be more logical for him to directly appeal to international justice.Footnote ³³ In response, the President considered whether these cases could not be dealt with by national jurisdictions, also citing the principal obstacle of state consent (to be discussed in Section 1.2.1).Footnote ³⁴ It was finally decided that with regard to the two special cases of double nationality and commercial relations, ‘These problems may be interesting, but at the moment they are premature, because they tend to affect the sovereignty, independence and even existence of States.’Footnote ³⁵ This sentence alone perfectly epitomises the influence of the traditional positivist doctrine prevalent at the time.

This influence is further reflected in the three main arguments raised against granting the individual locus standi before the PCIJ: the limits of Article 14 of the League Covenant, the issue of international legal personality, and the issue of state consent. The first argument raised against granting the individual locus standi before the PCIJ was anchored in a restrictive interpretation of Article 14 of the Covenant of the League of Nations. This provision read as follows:

Much reference was made to Article 14 during discussions, the Committee members seeming to have taken the text as indicative of certain restrictions or permissions regarding the Court’s competence. For instance, Dr. Loder stated that the word ‘parties’ was written with a small ‘p’, which showed that ‘the persons who drew up the Covenant had no intention of limiting only to States the right to be a party to a case before the Court’.Footnote ³⁷ However, in the Committee’s final decision, it was stated that ‘parties’ cannot be private individuals. The reasoning of the Committee was based on precedent: ‘This answer, which was given in 1899 and 1907, and which was evidently intended to apply not only to the Court of Arbitration, but also to the Court of Arbitral Justice, was expressly laid down in the Five-Power Plan: “The Court shall take cognisance only of inter-state litigation.”’Footnote ³⁸

The interpretation of the word ‘international’ in Article 14 was also a point of discussion. Elihu Root believed that this term indicated that ‘the Court could deal with private individual interests, but only if the Government of the country of which the individual was the subject made them international by adopting them as its own’.Footnote ³⁹ Lord Phillimore stated that ‘the word “international” must be interpreted as having regard exclusively to relations between States’ and ‘based this interpretation on Articles 18 and 19 of the Covenant, which dealt with engagements between States and relations among States’.Footnote ⁴⁰

There is no clear answer as to whether Article 14 intended to carve the limits of the Court’s competence.Footnote ⁴¹ Renowned PCIJ chronicler Manley O’Hudson interpreted that ‘the terminology in Article 14 intended merely for the Council to give effect to the competence of a court as set forth by the Members of the League; nothing was to preclude them from later establishing a court “of lesser or greater competence”’.Footnote ⁴² However, the types of argument invoked reflect the positivist sentiment of the nineteenth and the early twentieth centuries that the individual does not have a place in the international legal system, reserved exclusively for states. Mr. Root’s comment particularly reflects the doctrine of dualism, a characteristic of positivism at the time: international law was reserved for governments, while municipal law was reserved for individuals. The latter could only acquire international rights if they derived from municipal laws.Footnote ⁴³

The second argument against the individual’s access to the PCIJ was centred on the concept of international legal personality. International legal personality is a concept that serves to distinguish between entities that are relevant to the international legal system and those excluded from it.Footnote ⁴⁴ In and of itself a neutral theoretical concept, the inclusion and exclusion of entities is subject to many interpretations depending on one’s perspective of international law.Footnote ⁴⁵ While it is undisputed that states have international legal personality, the role of other entities has historically ‘given rise to controversy’.Footnote ⁴⁶ The exclusivity of international legal personality to states was long advocated by the traditional positivist doctrine. Indeed, they held that states are the sole ‘subjects’ of international law and, consequently, individuals are ‘objects’ of international law. Certain arguments invoked by Committee members were centred on this premise – for instance, ‘States alone constituted legal persons in international matters’,Footnote ⁴⁷ ‘the State should always be the dominus litis’,Footnote ⁴⁸ or ‘in international affairs the State as always considered as a whole, and in the fullness of its attributes of sovereignty’.Footnote ⁴⁹

Mr. de Lapradelle opined, ‘One must not remain too much in the realm of theories; wrongs done to individuals resulting from the chaotic conditions of international relations must be taken into account.’Footnote ⁵⁰ However, he clearly stood as a minority against the likes of Arturo Ricci-Busatti, legal advisor to the Italian Ministry of Foreign Affairs, who very plainly stated that ‘it is impossible to put States and private individuals on the same footing; private individuals are not subjects of international law and it is entirely within the realm of that law that the Court is called upon to act’.Footnote ⁵¹ Senator, Belgian Minister of State, and President of the Advisory Committee Baron Edouard Descamps also commented that

The third argument raised against granting the individual locus standi before the PCIJ was in relation to state consent. In the discussions of the Advisory Committee, consent was the principal argument against the proposal for individuals to have access to the Court. Indeed, jurisdiction of the Court in contentious cases is always dependent on state consent. Therefore, not only does a state have to fulfil the conditions laid down in Articles 34 and 35 to be eligible, but it must also, as a preliminary condition, accept the jurisdiction of the Court. It is the combination of the eligibility of access and state consent, which will give the Court jurisdiction to entertain a certain dispute.

The principle of consent was already envisaged during the drafting of the PCIJ Statute. It was repeated that due to ‘the principle of sovereignty of States, no State could be summoned before the Court without its previous consent’.Footnote ⁵³ Mr. Root ‘did not think that a private individual would gain any advantage by taking before the International Court a case which his Government did not consider justified’.Footnote ⁵⁴ He also ‘doubted whether the claim of a private individual which was not supported by his Government would carry enough weight before an international Court’.Footnote ⁵⁵ Lord Phillimore went even further in claiming that ‘[a] State would never permit itself to be sued before a Court by a private individual’.Footnote ⁵⁶

To conclude, the issue of locus standi of the individual before the Permanent Court of International Justice was considered and examined from a number of angles. While there were arguments in favour and against granting the individual locus standi before the PCIJ, the majority of the Advisory Committee of Jurists opposed the proposition.

What can also be concluded after examining these exchanges is that no particular circumstance at the time dictated that the Court had to be inter-state in its nature, but for the sovereign sentiment at the time. The idea of creating a Permanent Court of International Justice first appeared in a British Draft Convention presented at the Paris Peace Conference after the First World War.Footnote ⁵⁷ The Commission of the League of Nations, established in January 1919,Footnote ⁵⁸ had before it several similar proposals.Footnote ⁵⁹ Article 14 of the League Covenant ended up making no explicit statement about the competence of the Court. Certain members of the Advisory Committee had their interpretations, but a literary interpretation provided no decisive indication. While Article 13 of the League Covenant read that ‘[t]he Members of the League agree that whenever any dispute shall arise between them (…) they will submit the whole subject-matter to (…) judicial settlement’,Footnote ⁶⁰ the phrasing of Article 14 did not exclude an individual from being part of proceedings before the Permanent Court as well, provided that the individual is a party to a dispute of an international character. The fact that the issue was even debated was testimony that the answer was not clear-cut. Indeed, during that period, various other forms of judicial settlement involving individuals existed in practice. As well as the examples mentioned earlier, the Treaty of Versailles gave nationals of the Allied Powers the right to put forward claims for compensation, in their own name, against Germany.Footnote ⁶¹ From a legal standpoint, there was every possibility for such a Court to be one that was open to individuals as well as states.

However, it appears that the reasons for opposition were anchored in the need to preserve state sovereignty. The aforementioned arguments reflect this common theme: favourable arguments about double nationality and commercial relations were refuted as they would affect the sovereignty of states. Arguments against the proposition were explicitly about the international legal personality of individuals and the absence of state consent. Even the interpretation of Article 14 of the League Covenant was informed by positivist perceptions about states being the principal litigators on the international plane.

Astrid Kjeldgaard-Pedersen argues that the specific concept of international legal personality did not influence the outcome of Article 34(1) as much as would be expected, given the positivist sentiment at the time. In her view, the concept mostly held no more than academic value.Footnote ⁶² This might be true – but the understanding of international legal personality through the state-dominant lens and in the wider context of other state-dominant arguments indicate that the need to preserve state sovereignty was the overriding factor barring individuals from locus standi before the Permanent Court. Indeed, the overarching traditional positivist doctrine, wherein international legal personality dwells as a defining feature, was a driving force behind the deliberations, underpinning their outcome and largely explaining Article 34 still embedded in the ICJ Statute today.

Following this decision made by the Advisory Committee of Jurists, the PCIJ was closed off to litigating individuals, despite issuing a host of decisions stemming from conflicts between states and minority groups. Indeed, due to the remapping of borders, birth of new states, and movement of self-determination after the First World War, certain groups found themselves as minorities of a state with significant ethnic, linguistic, or cultural differences than their own.Footnote ⁶³ Woodrow Wilson, founder of the League of Nations, had originally intended to incorporate minority rights into the League Covenant, but this was rejected by the Council of the League.Footnote ⁶⁴ Therefore, the issue was left to be implemented in a piecemeal fashion, through numerous bilateral treaties. These treaties were the legal basis upon which the League of Nations could get involved in establishing a minorities’ petition system, as the League Council could be seized if any obligation therein was breached. These treaties also provided that any conflict of opinion regarding them would be submitted to the PCIJ.Footnote ⁶⁵ The PCIJ therefore dealt with a number of cases in which it was requested to interpret bilateral treaty clauses related to minority rights.

Minority groups would submit their petitions to the League Secretariat, and a lengthy procedural process would ensue until the petitions arrived at the Permanent Court’s docket. However, this was different than an individual party seizing an international court or tribunal, as minority groups were not granted locus standi. It was in fact the Council of the League requesting the Permanent Court to give an advisory opinion, and not the minority group itself making this request. The possibility for minority groups to have any formal international legal standing had been strongly refuted.Footnote ⁶⁶ The League Council itself affirmed that ‘the minorities treaties did not create organisations possessing the right to speak and act on behalf of the “minorities”, but placed their protection in the hands of the members of the Council’.Footnote ⁶⁷ The minorities were not considered to be organised entities with international legal personality. Furthermore, the petition itself had no legal value. As stipulated in a report detailing the League’s connection with minorities entitled the Tittoni Report:Footnote ⁶⁸ ‘this act [of minorities seizing the League Secretariat] must retain the nature of a petition (…) pure and simple; it cannot have the legal effect of putting the matter before the Council and calling upon it to intervene’.Footnote ⁶⁹ Furthermore, the Members of the Council had no obligation to use the information sent to them in the form of a petition from a minority group; they could ignore it or use it, as they pleased.Footnote ⁷⁰ Still, this was the closest that private persons came to having locus standi before the Court’s predecessor.

1.2 Practical Considerations when Contemplating Locus Standi of the Individual before the Court

As the necessity to preserve state sovereignty appeared to be the main reason in refusing locus standi to individuals under Article 34(1), it is no surprise that relatively recent scholarship has argued for Article 34(1)’s amendment. Indeed, arguments that the Court’s jurisdiction should be open to entities other than states are based on the rationale that non-state actors have played an increasingly important role during the course of the twentieth century. While I agree with the latter claim, a closer examination of the practical considerations indicates that such a proposal lacks in feasibility. Four issues will be considered in turn: consent and jurisdiction, legal interest, treaty amendment and implications for the Court’s workload.

1.3 Conclusions

To conclude, the legal standing of individuals before the World Court’s predecessor – and, consequently, the Court itself – was motivated by concerns about state sovereignty informed by dominant positivist legal thought. Today, Higgins has opined that were the individual to have access to the gates of the Peace Palace, the international legal system would conceptually survive.Footnote ¹³⁶ This explains literature from abovementioned eminent scholars seeing no reason why the Court could not accommodate individuals as parties, at par with states, in proceedings.

There are many sound reasons to plead for this. Nonetheless, having discussed and explored the possibility of individuals acquiring locus standi at the Court, it has been noted that many difficulties would arise with regards to treaty law and, more specifically, amendments to be made to the Court’s Statute. The hypotheses regarding treaty-based and consensual jurisdiction are also fraught with problems. As for compulsory jurisdiction, states would likely not be willing to bind themselves to claims brought by individuals. Beyond additional problems raised by the requirement of legal interest, one must consider the inevitable floodgates that the Court would open if individuals had locus standi. While there have been scholarly suggestions to establish filtering mechanisms, this would entail a high bureaucratic and financial investment from the UN and most certainly increase the Court’s workload, already high at the time of writing.

The somewhat audacious proposal of locus standi of the individual before the ICJ is one that suggests the carnage of the roots that ground the Court. Certain proposals here would imply an overhaul of the budget, financing and staffing of the Court. The fundamental structure of the Court would have to be dismantled, to accommodate the changes necessary for the individual’s locus standi to come to fruition. While this would still be feasible, it is a jurisdictional amendment that would reflect a deeper shift in the Court’s character and role in the international legal system as the unique venue for inter-state disputes. This would therefore transmute the World Court into, in essence, another tribunal altogether.Footnote ¹³⁷

Inasmuch as this proposal remains implausible, the Court is a master of its own procedure with all of the freedom to create and amend its own rules and reinterpret its powers through the Rules of the Court and the Practice Directions, so long as they do not contradict the Statute. Thus, the remainder of Part I explores how the Court may adjust its procedural mechanisms in a variety of contexts to circumvent its Article 34(1) and allow for the integration of concerned individuals in its proceedings to the best of its ability, where necessary or desirable.

As early as 1920, when the Permanent Court of International Justice (PCIJ, Permanent Court) was being created by the Advisory Committee of Jurists, Mr. Albert de Lapradelle from France questioned the extent to which the state should protect its citizens, from a procedural standpoint. ‘Should the State leave to the individual the task of pleading his own case before the Court to which he has gained access by the aid of his Government, or should the State, having taken up the case for its subject, conduct the case alone before the Court?’Footnote ² By quoting examples, he advocated that individuals wished to take part themselves in the proceedings.Footnote ³ Later in discussions, Mr. Francis Hagerup from Norway claimed that the individual could plead before the future Permanent Court, since arbitration accepts this practice.Footnote ⁴

When contemplating the role of the individual in inter-state cases before the International Court of Justice (ICJ), diplomatic protection is perhaps the first example that comes to mind. Scholarship has focused considerably on the ‘humanisation’ of the practice of diplomatic protection in the Court’s jurisprudence, which has made great strides over the last two decades.Footnote ⁵ In contrast, scholarship has overlooked how the individual has been procedurally involved in diplomatic protection proceedings. Through exploring the nature and jurisprudential evolution of diplomatic protection, I argue in this chapter that while great strides have been made to humanise the law of diplomatic protection, its practice in the courtroom is not in alignment with this as the relevant individual does not participate in proceedings. This non-alignment impacts the procedural legitimacy of the Court in two ways: democratic standards are not upheld due to the absence of injured individuals in proceedings, and technocratic expertise is harmed where their non-participation results in the absence of significant evidence.

Diplomatic protection is an avenue of redress made available to a natural or legal person who has been injured by a foreign state, carried out by that individual’s state of nationality, on his or her behalf. The International Law Commission’s 2006 Draft Articles on Diplomatic Protection define it as ‘The invocation by a State, through diplomatic action or other means of peaceful settlement, of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility’.Footnote ⁶ The ICJ specified in its very first advisory opinion that an international organisation may also claim reparations from a government that injured one of the organisation’s agents.Footnote ⁷ However, this chapter will focus on inter-state diplomatic protection cases involving individuals who are not agents of international organisations.

While this chapter focuses on diplomatic protection in the context of judicial settlement at the ICJ, diplomatic protection may be exercised by the state using any means of pacific settlement of disputes stipulated in Article 33 of the United Nations Charter: ‘negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’.Footnote ⁸ Given the jurisdictional hurdles before the ICJ, diplomatic protection is largely non-contentious in state practice.Footnote ⁹

The practice of diplomatic protection existed years before its development by the World Court and its predecessor – in fact, “ever since the existence of international relations between [states].”Footnote ¹⁰ Although the concept of governments protecting their nationals can be traced back to much earlier,Footnote ¹¹ diplomatic protection in the modern sense of the term finds its origins in the eighteenth century through the practice of letters of reprisal.Footnote ¹² It was also seen in practice through many arbitral awards, such as the 1794 Jay Treaty (United States of America vs. United Kingdom), the 1795 Spanish–United States of America (US) Commission, and a number of arbitrations.Footnote ¹³ However, “the basic premise of diplomatic protection is traced to Vattel”,Footnote ¹⁴ who wrote in 1797:

Diplomatic protection was also practised in certain mixed claims commissions following the First World War.Footnote ¹⁶ It is therefore no surprise that this practice was consequently concretised in the judgments of the PCIJ; it was already anticipated by the Advisory Committee when it decided to reject the locus standi of individuals, as examined in Chapter 1.Footnote ¹⁷ Thus, in its lifetime of seventeen years, the PCIJ produced numerous judgments on contentious cases which were related to the diplomatic protection of individuals.Footnote ¹⁸ Others were exercised in favour of corporations (legal persons).Footnote ¹⁹ Diplomatic protection was also indirectly invoked in other judgments.Footnote ²⁰ In comparison, the ICJ has dealt with fewer diplomatic protection cases.Footnote ²¹ Although this chapter focuses on diplomatic protection of the individual, certain examples of cases involving corporations will be mentioned where pertinent.

There is a manifest reason why the practice of diplomatic protection seemingly occupies more of a residual role as opposed to its principal one of the past.Footnote ²² During the Permanent Court’s lifetime, the practice of diplomatic protection filled somewhat of a void in the international legal system by allowing individuals to participate in it. Indeed, the practice implied, in its very essence, that the individual did not possess a legal personality of his or her own,Footnote ²³ and was an object of international law or a good on which the state had a right (jus in rem).Footnote ²⁴ Today, however, there are many different avenues of judicial redress for individuals directly on the international plane. Before the World Court, state litigants increasingly evade the formal channels of diplomatic protection but do claim to be acting as parens patriae: on behalf of their people to assert their putative private rights.Footnote ²⁵

This evolution may cause some to question the relevance or added value of diplomatic protection, which has arguably become gradually unbefitting with the rise of the individual as a bearer of obligations and rights under international law.Footnote ²⁶ Despite this decline in popularity within the context of international adjudication, diplomatic protection remains one of many avenues for the individual. Further, given its rich history within the practice of the World Court, any study of this kind would be incomplete without it.

An undeniable dichotomy exists between the legal framework of diplomatic protection, unpacked in the first part of this chapter (Section 2.1), and its procedural enactment, explained in the second part (Section 2.2). To effectively describe the legal framework of diplomatic protection, I first dismantle the famous Mavrommatis fiction’s claim that the state is the sole injured party (Section 2.1.1). I then argue that other conditions for diplomatic protection (such as nationality and the exhaustion of local remedies) and its features (such as state discretion and state responsibility), have been increasingly humanised to place emphasis on the individual. Nonetheless, the second part of this chapter points to the dichotomy: this directly injured individual does not participate in proceedings at the Peace Palace and does no more than occasionally provide written testimony in the government’s pleadings. The third and final part of this chapter will therefore provide suggestions to advocate for stronger procedural participation for the injured individual in cases of diplomatic protection at the ICJ (Section 2.3). Section 2.4 concludes.

2.1 The Mavrommatis Fiction: Fabrication and Humanisation

The practice of diplomatic protection at the Court hinges upon the fulfilment of three conditions: the individual must be a national of the protecting state, the individual must have exhausted domestic remedies, and an international legal norm must have been violated. This aside, diplomatic protection is governed by three features: first, diplomatic protection is the discretionary right of the state; second, it can lead to reparations under the law of state responsibility, and third (and most importantly), there is a legal fiction upon which diplomatic protection rests. Collectively, these comprise the legal framework of diplomatic protection, at the heart of which lies the Mavrommatis fiction.

The concept of legal fiction was born with the very idea of diplomatic protection. The Mavrommatis Palestine Concessions (Greece v. Britain) PCIJ judgment of 30 August 1924 was the first judgment to not only consolidate the Vattelian premise (mentioned earlier) and the concept of the legal fiction but also to lay the groundwork for the development of the doctrine of diplomatic protection.Footnote ²⁷ This judgment was centred on a dispute between a Greek national, Euripide Mavrommatis, and the British government. Before the First World War, when Palestine was part of the Ottoman Empire, the Ottoman authorities concluded certain contracts with Mr. Mavrommatis, which granted him concessions for certain public works to be constructed in Palestine. Some years later, after the collapse of the Ottoman Empire with its defeat in 1918, the British government, acting as the Mandatory for Palestine under a Mandate negotiated with the League, granted various concessions to a third party (the Rotenberg concessions), partly overlapping those of Mr. Mavrommatis. Mr. Mavrommatis believed that the British Government and Palestine did not recognise the full extent of his rights; they had violated certain international legal obligations, namely, Protocol XII of the Lausanne Peace Treaty between Turkey and the Allied Powers. Eventually, the Greek government intervened and submitted the case to the PCIJ under Article 26 of the Mandate for Palestine.Footnote ²⁸

As Article 34 of the PCIJ Statute limited disputes before it to states alone, or members of the League, the Permanent Court explained that

It then wrote the following cardinal passage:

This cemented the concept in diplomatic protection today known as a legal fiction – which is also referred to as the Mavrommatis fiction (both terms are used interchangeably in this chapter). This fiction stipulates that the injury to the individual as a national is an injury to the state itself, and thus, the state of nationality is seizing the Court on its own behalf.Footnote ³¹ The Mavrommatis fiction was affirmed by the PCIJ in other cases; for example, the Chorzów Factory case and the Serbian Loans case.Footnote ³² The consequence of this Mavrommatis fiction is that the concerned private party is completely invisible to the Court. For instance, the Permanent Court stated in Société Commerciale de Belgique that it was not entitled to oblige the Belgian government to enter into negotiations with the Greek government ‘and still less the company which is not before it’.Footnote ³³ In brief, the Mavrommatis fiction tells us two crucial things: first, the state is defending its own right, and not the individual’s right. Second, the state is the injured party in the eyes of the Court.Footnote ³⁴

This section argues that the legal fiction upon which the practice of diplomatic protection rests is at odds with the reality in which the individual is at the centre of the practice. It first argues that the fiction itself inaccurately portrays whose right is being invoked and whose injury is at the root of the dispute (Section 2.1.1). It then argues that the two individual-focused conditions of diplomatic protection – nationality of the individual and their exhaustion of local remedies – indicate that the individual is at the centre of the practice (Section 2.1.2). Furthermore, the more state-centred features of diplomatic protection – reparations to the state under the law of state responsibility, and state discretion – have both been recently challenged by human rights perspectives (Section 2.1.3). Both the conditions and features of diplomatic protection therefore serve to further weaken the Mavrommatis fiction.

2.2 Procedural status quo of Individual Participation

The traditional concept of the Mavrommatis fiction examined here concretely manifests itself in the Peace Palace whenever a case of diplomatic protection comes before the Court. Indeed, the state has taken up the case for its subject and thus conducts the case alone before it, as the ‘sole claimant’. There is therefore a clear answer to Mr. Lapradelle’s question from 1920 evoked in the opening of this chapter: the state does not authorise the individual to plead his or her own case at the ICJ. This would contradict the very essence of the Mavrommatis formula: that only the state may be seen. In the words of one commentator, ‘I]l semble que ce soit par son absence, plutôt que par sa présence, que l’individu se distingue’.Footnote ⁸⁵

Yet, in light of the above analysis (Section 2.1), the procedural role of the state before a court could benefit from re-evaluation. The state is, in reality, mainly acting as an agent or representative for the individual’s case, in response to the latter’s injury and in defence of the latter’s rights.Footnote ⁸⁶ As one author has put it, ‘[L]’état ne ferait qu’exercer un droit procédural ou dit secondaire, compte tenu du fait qu’aucune violation de ses droits substantiels n’a eu lieu’.Footnote ⁸⁷ The idea of the state as the individual’s representative in diplomatic protection cases is not new. It has been confirmed in a number of past arbitral awards,Footnote ⁸⁸ such as William A. Parker (US) v. Mexico (1926),Footnote ⁸⁹ Affaire Junghans (1939),Footnote ⁹⁰ and the Grant-Smith Case (the Gin and Angostura) (1952). In the latter case, the arbitral tribunal described the defending government of the injured national as ‘only taking a part in the international dispute as the representative ad litem of its national’.Footnote ⁹¹ This seems to best describe what occurs at the Peace Palace in diplomatic protection proceedings. A clear acknowledgement of this would be an evolution from the practice that Mavrommatis sought to establish, where states act in substitution of individuals, the latter seen as mere commodities.Footnote ⁹²

As it stands, however, the procedural participation of the individual has been limited to providing documentary evidence or written testimony in the form of affidavits in the state’s written pleadings. There is therefore an undeniable dichotomy between the legal nature of diplomatic protection and its procedural implications for the state, on the one hand (Section 2.1), and the procedural practice of diplomatic protection, on the other hand.

First, the individual has often collaborated with the protecting state to provide documentary evidence,Footnote ⁹³ such as annexes to one of the written pleadings,Footnote ⁹⁴ additional documents (produced after the delivery of a pleading but prior to the closure of the written stage of proceedings), supplemental documents (filed at any moment under authorisation of the Court), or new documents (produced after the closure of the written stage, under the special procedure governed by Article 56 of the Rules and Practice Direction IX).

For example, under the PCIJ, Oscar Chinn provided the UK government with instrumental documents to make its case in a dispute named after him.Footnote ⁹⁵ Before the ICJ, Greek shipowner Nicolas Ambatielos provided the state of Greece with documents in Ambatielos (Greece v. United Kingdom).Footnote ⁹⁶ The Diallo case indicated that an absence of such documentation by the individual could be detrimental to the outcome of the case. In that case, Guinea was representing Guinean businessman Ahmadou Sadio Diallo against the Democratic Republic of Congo (DRC), accusing the DRC of violating Diallo’s human rights. Yet, Guinea was only compensated with a sum of 95,000 US dollars; 85,000 US dollars for non-material injury and 10,000 US dollars for material injury, in staggering contrast to the astronomical amount that Guinea had originally claimed: over 35 billion US dollars (reduced to 12 million dollars in the compensation phase) and 15 billion ZRZ (Zairean zaire).Footnote ⁹⁷ The main reason for this is that Guinea was unable to provide any evidence for its claims in the compensation phase, with the Court noting this stood in ‘stark contrast’ to evidence brought by Guinea at an earlier stage of the case.Footnote ⁹⁸ While many reasons could explain this – such as the change of legal representation in the compensation phase or a lack of resources to collect the necessary evidence – it is possible that Mr. Diallo did not cooperate in providing the necessary documentary evidence beyond what the Court already had. While unsatisfactory as a form of participation, such cooperation is significant and may have led to higher compensation to the Guinean government. This example demonstrates how the individual’s participation can contribute to the Court’s technocratic expertise, thereby upholding its procedural legitimacy (Section I.1.2).

The second form of procedural participation of the individual in diplomatic protection proceedings is providing affidavits as valuable annexes in the protecting state’s memorial (written pleadings). This was seen in the Avena (Mexico v. United States of America) case where Mexico had the burden of proof to prove that individuals were Mexican and not American. It met this, inter alia,Footnote ⁹⁹ by providing forty-two declarations – in the form of affidavits – confirming that they had not acquired US nationality.Footnote ¹⁰⁰ Some of these individuals were still claimed by the US to be US citizens – the Court therefore asked the United States to provide evidence for its claim, but it could not.Footnote ¹⁰¹ The Court stated that the United States could have obtained this information from Mexico, but in the absence of this, it had failed to meet its own burden of proof.Footnote ¹⁰² The Court had also been provided with declarations from a number of the Mexican nationals concerned who attested to their never having been informed of their rights under Article 36(1)(b) of the VCCR.Footnote ¹⁰³ Avena provides us with an example in which the individual played a strong indirect role in the litigation. To borrow from one commentator, ‘As reflected in Mexico’s inclusion in its submissions to the Court in the Avena case of information collected from the affected individuals, there are concrete possibilities to involve the individual rights-holders in the proceedings of the Court’.Footnote ¹⁰⁴

To conclude this section, the aforementioned cases illustrate the modest procedural prerogatives of injured individuals in the practice of diplomatic protection cases: they do no more than to provide documentary evidence or affidavits where required. This must be considered against the backdrop of the development of diplomatic protection in the Court’s jurisprudence. There appears to be a disproportionate contrast between diplomatic protection in theory and in practice. Diplomatic protection in theory (Section 2.1), placing the individual at the centre of the practice, and diplomatic protection in practice (Section 2.2), where the individual is virtually excluded from a case that is essentially his or her own. Is it possible to bridge the gap?

2.3 ‘Bridging the Gap’: Means to Procedurally Integrate the Injured Individual in Diplomatic Protection Proceedings

The final section of this chapter is dedicated to a discussion on how the individual may be further procedurally integrated in diplomatic protection cases at the Court. When Mr. de Lapradelle advocated that individuals wished to take part themselves in the proceedings,Footnote ¹⁰⁵ which form could he have envisaged this participation taking?

The existence of an individual’s substantive right has not always equated to a procedural prerogative to defend that right as a party in the international legal system.Footnote ¹⁰⁶ It was also established in Chapter 1 that locus standi of the individual before the Court was not a reasonable option. Nonetheless, two conceivable solutions within the constraints of the Statute and the Rules of the Court come to mind.

The first is the government protecting the concerned individual to allow him or her to make a statement as part of the government’s delegation during its speaking time in oral proceedings. This was excellently executed in the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 advisory proceedings of September 2018. While these were advisory proceedings (see Chapter 3), this measure may also be carried out in contentious proceedings, including (but not limited to) diplomatic protection cases. The Chagossians, whose rights to self-determination were at the heart of the Chagos advisory opinion, not only contributed to the written pleadings of the government of MauritiusFootnote ¹⁰⁷ but were also physically present at the Peace Palace and participated in the oral pleadings within the speaking time of the delegation of Mauritius. According to Mauritius, ‘We think it is appropriate that the Court should hear the voice of the Chagossians directly’.Footnote ¹⁰⁸ A group of Chagossians thus attended the oral hearings as representatives of the Chagossian community.Footnote ¹⁰⁹ One of them, Ms. Marie Liseby Elysé, made a statement during the speaking time of the government of Mauritius via video.Footnote ¹¹⁰ One of the counsels specified that ‘[t]he words of Madame Elysé, who sits in this Courtroom, are not offered as testimonial evidence, but simply as a member of the delegation of Mauritius – if you like – a statement of impact, what the continuation of colonialism really means for real people’.Footnote ¹¹¹ The same practice was exercised in the reparation phase of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), where a video testimony from numerous victims of atrocities committed by the Ugandan army was displayed.Footnote ¹¹²

Another solution within the constraints of the Statute and the Rules of the Court is the participation of the injured individual in oral proceedings as a witness. The Diallo case indicated that hearing directly from the witness may be valuable to the case – a report of Mr. Diallo’s private hearing in October 2008 in the presence of Mr. Boubacar Télimélé Sylla and Mr. Aboubacar Camara was annexed to the Reply of the Republic of Guinea of 19 November 2008.Footnote ¹¹³ The report of his hearing was referred to in Guinea’s 2008 Reply 12 times.Footnote ¹¹⁴ In its compensation judgment, the Court references a statement made by Mr. Diallo during this hearing.Footnote ¹¹⁵

In certain diplomatic protection cases, the individual’s participation would be impossible due to death (seen, for example, in Vienna Convention on Consular Relations and LaGrand), or challenging due to the individual’s status on death row (seen in Avena)Footnote ¹¹⁶ or detention (seen in Tehran HostagesFootnote ¹¹⁷ or JadhavFootnote ¹¹⁸). While playing a video in oral hearings might circumvent the latter challenges, the ICJ denied permission to Pakistan to play a confessional video of Kulbhushan Sudhir Jadhav during the oral hearings in the provisional measures phase of Jadhav (India v. Pakistan).Footnote ¹¹⁹ However, there may still be added value to an individual’s oral testimony in terms of democratic participation and/or technocratic expertise.

A key example of such added value can be seen in Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden). Although not formally brought to the Court under the header of diplomatic protection, the Netherlands sued Sweden for allegedly violating the 1902 Convention on the guardianship of infants by placing a Dutch child living in Sweden under a Swedish regime of protecting upbringing. Despite the Court’s warning that it would not address “the proper appreciation of the grounds on which the challenged decisions are based”,Footnote ¹²⁰ the child’s testimony could have provided insight into whether her treatment violated the Convention. Leading ICJ scholar Shabtai Rosenne opines that nothing in the pleadings indicated that the child was incapable of participating and stressed the importance of her preferences and welfare being considered in such a case.Footnote ¹²¹ In other words, standards of democracy demanded that the child partake in proceedings.

Other similar examples formally brought to the Court under the header of diplomatic protection can also be identified: Nottebohm (Liechtenstein v. Guatemala), Vienna Convention on Consular Relations (Paraguay v. United States of America), and Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo).

The first diplomatic protection case in which the participation of the injured individual as a witness would have been valuable was the Nottebohm case. Friedrich Nottebohm, a German national, was born in Germany in 1881 and moved to Guatemala in 1905, at the age of 24, where he resided and set up a business. In 1939, at the age of 58, he applied for naturalisation in Liechtenstein, where he had gone a few times to visit his brother who resided there. After having received Liechtenstein nationality in 1940, he went back to Guatemala to continue business until he was expelled as a result of war measures in 1943, at the age of 62. In 1946, he moved to Liechtenstein, and in 1951, he filed a claim at the ICJ against Guatemala through the government of Liechtenstein. One of Guatemala’s two preliminary objections related to Friedrich Nottebohm’s nationality: could it be relied upon to justify diplomatic protection before the Court? The Court defined nationality as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. (…) The individual upon whom nationality is conferred is in fact more closely connected with the population of the state conferring nationality than with that of any other state’.Footnote ¹²² It ultimately concluded that this was not the case between Mr. Nottebohm and Liechtenstein and therefore judged Liechtenstein’s claim as inadmissible.Footnote ¹²³

The difficulty comes with the assumptions made about the motives behind Mr. Nottebohm’s decision to acquire Liechtensteinian nationality. The legal reasoning in this judgment is based on psychological motives that the Court did not objectively prove in at least two instances. First, the Court stated that ‘there is nothing to indicate that the application for naturalisation then made by Nottebohm was motivated by any desire to dissociate himself from the Government of his country [Germany]’.Footnote ¹²⁴ Judge John Read in his dissenting opinion disagrees, ‘I am unable to agree that there is nothing to indicate that Mr. Nottebohm’s naturalisation was motivated by a desire to break his ties with Germany. There are three facts which prove that he was determined to break his ties with Germany. The first is the fact of his application for naturalisation, the second is the taking of his oath of allegiance to Liechtenstein, and the third is his obtaining a certificate of naturalisation and a Liechtenstein passport’.Footnote ¹²⁵ This is a motive that is difficult to assert without further inquiry to Mr. Nottebohm himself.

A second instance where Mr. Nottebohm’s psychological motives were not objectively proven is where the Court assumed that he had no intention of residing in Liechtenstein. This was based on the fact that he moved back to Guatemala after having been naturalised in Liechtenstein and only left Guatemala because he was expelled. Although at face value, one may rapidly conclude that he had no intention to live in Liechtenstein, this is difficult to assert with confidence without inquiring the person in question. In line with this reasoning, Judge Read states, ‘To begin with, Mr. Nottebohm was 58 years of age at the time-or within two years of the normal retirement age in the type of business activity in which he was engaged. The evidence shows that he was actually contemplating retirement. In October 1939 he was largely occupied with plans to save the business, but I find it hard to believe that he was not also thinking in terms of retirement and that Vaduz was in his mind’.Footnote ¹²⁶ Judge Read also provides another reason as to why Mr. Nottebohm might have moved back to Guatemala: to clear his name and confront the multiple lawsuits open against him.Footnote ¹²⁷ Again, these assumptions are difficult to sustain without interrogating Mr. Nottebohm.

I find myself in agreement with the dissenting opinions arguing that the Court should have stuck to an objective approach laid down by international law, as the subjective elements are difficult to prove without questioning the individual in focus. Judge ad hoc Paul Guggenheim, for instance, dissented that, ‘In order to judge as to the bond between the State and its national, that is to say, in order to ascertain whether this bond is real and effective and not merely fictitious, international law only has regard to the external elements of legal facts to which it attaches certain consequences, without concerning itself with the mental attitude of the legal person responsible for a juridical act such as the act of naturalisation, and without considering the motives (which it is very difficult to determine), which have led the individual to apply for naturalisation’.Footnote ¹²⁸ Judge Read made the same comment in his dissenting opinion.Footnote ¹²⁹ Judge ad hoc Guggenheim added that it was sought to substitute legal considerations with ‘subjective considerations such as the “genuineness of the application”, “loyalty to the new State”, “creation of a centre of economic interests in the new State”, “the intention to become integrated in the national community”; or, again, rules (…) which are in no way in accordance with present international practice, or vague principles (…) which would open the door to arbitrary decisions’.Footnote ¹³⁰

Ideally, however, Mr. Nottebohm’s motives could have been more credibly clarified with his participation in oral proceedings in the form of a witness, questioned by the judges and counsel. This would have demonstrated the Court’s technocratic expertise – its specialised understanding of the complex facts at hand and its efforts to address them carefully. The impact would have enhanced the Court’s procedural legitimacy in this instance. Rosenne supported this view, arguing that ‘[t]his case required some – indeed considerable – investigation not merely of the actions of the individual concerned, but more significantly of his motives, that is of psychological factors to necessarily present in the record…’Footnote ¹³¹ There are indications that this may have indeed occured: although this is not evidenced by archives, the Court mentioned that ‘other members of his family have asserted Nottebohm’s desire to spend his old age in Guatemala’,Footnote ¹³² and Rosenne observed that ‘the ICJ accurately evaluated those actions and motives so that no practical injustice issues from the fact that in this case the individual was not able to present himself before the Court’.Footnote ¹³³

The second case in which the participation of the relevant individual as a witness would have been valuable is Vienna Convention on Consular Relations (Paraguay v. United States of America). In a separate document that Paraguay filed along with its Memorial on the merits, entitled ‘Conditional request of Paraguay for an order Conclusively established facts’ (9 October 1998), Paraguay argued that the United States’s disregard for the Court’s provisional measures order cost Paraguay its ‘principal source of evidence (…) Mr. Breard himself’, causing it to suffer ‘evidentiary prejudice’.Footnote ¹³⁴ This was reiterated in Paraguay’s Memorial as well.Footnote ¹³⁵ Through this ‘Conditional request’, Paraguay appealed to the Court to declare that any disputed issues of fact that are material to Paraguay’s claims as to which Mr. Breard’s testimony would have been relevant, be established in Paraguay’s favour.Footnote ¹³⁶ More significantly, Paraguay claimed reparation from the United States, requesting the Court to issue an order protecting Paraguay from evidentiary prejudice suffered from the absence of Mr. Breard’s testimony.Footnote ¹³⁷ As the proceedings were discontinued, the Court was not able to act on this request. However, it demonstrates the importance of the injured individual’s participation and testimony in cases that directly concern him or her. Beard’s participation would have allowed Paraguay to provide more accurate information to better address the legal matters under consideration and thereby evidence the Court’s legitimacy through its technocratic expertise.

The third diplomatic protection case whereby the injured individual’s participation in proceedings as a witness would have been desirable is the Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) case. As aforementioned (Section 2.1.3), very little compensation was received in the compensation phase due to a lack of evidence concerning the material injury incurred by the victim. Although the Republic of Guinea advocated that ‘Mr. Diallo suffered moral and mental harm, including emotional pain, suffering and shock, as well as the loss of his position in society and injury to his reputation as a result of his arrests, detentions and expulsion by the DRC’,Footnote ¹³⁸ the Court noted that no evidence for this had been provided by the Applicant.Footnote ¹³⁹ It therefore resorted to ‘equitable considerations’ to make its decision on Mr. Diallo’s non-material injury, without the need for proof. Many human rights courts take this approach (as many forms of non-pecuniary damage are, by their nature, not amenable to proof).Footnote ¹⁴⁰ Therefore, Mr. Diallo’s testimony would not have impacted the Court’s determination of his non-material injury. However, in the merits phase, testimony from Mr. Diallo under the procedural guise of a witness may have been useful in the ascertainment of certain facts with regard to the violations of his human rights. Greater accuracy would have underscored the Court’s technocratic expertise in this respect and, therefore, the procedural legitimacy in this dispute. While Rosenne suggested that in some instances, the presence of a concerned individual may be redundant,Footnote ¹⁴¹ an appearance in person would have allowed him to clarify certain potentially abstruse elements in the written pleadings, allowed him to provide his version of events, allowed counsel to cross-examine him for truthfulness, and allowed for judges to ask him questions. Furthermore, the idea of a case surrounding an individual to be decided in his or her absence is somewhat disquieting, harming democratic standards of procedural legitimacy supported by social idealism.

2.4 Conclusion

Professor Rosenne has accurately written as follows:

Diplomatic protection cases are prima facie inter-state cases like any other at the World Court. But a closer look demonstrates that they are, in fact, disguised disputes between an individual and a foreign state. Indeed, the individual is no longer invisible on the international plane – they have recognised rights and injuries and must fulfil certain conditions in order for the Court to take up the case, through the façade of their government. This reality is coupled with an increasing humanisation of the practice of diplomatic protection in state practice and doctrine and at the Court itself. Scholarship has gone as far as saying that the Mavrommatis fiction has not only been undermined as a result of these developments but has also ceased to exist all together.Footnote ¹⁴³ However, this state of affairs strongly contrasts with the absence of procedural prerogatives granted to the injured individual, who solely cooperates with the state to provide documentary evidence or, at the most, a written testimony in the form of an affidavit, attached to the government’s written pleadings.

This contrast compromises the Court’s procedural legitimacy in at least two ways. First, standards of democracy used to measure legitimacy are not met where injured individuals are absent in proceedings where they are directly impacted. Second, technocratic expertise is compromised where the individual’s enhanced participation may have allowed for more evidence that could have facilitated the Court’s tasks.

This dichotomic gap could be bridged by state litigants making space for injured individuals to make statements in their delegation or as witnesses, where feasible and relevant. Indeed, governments should consider the importance of inclusion in an increasingly interconnected international legal order with a number of actors beyond the state.

Conforming to its role as the principal judicial organ of the United Nations,Footnote ² the International Court of Justice (ICJ, the Court) is competent not only to resolve conflicts between states but also to provide its opinion on any legal questions from authorised United Nations (UN) organs and specialised agencies – not from states and much less from individuals.

In this chapter, I observe that individuals are no more procedurally integrated in advisory proceedings than they are in the contentious cases examined in other chapters of this book. One would imagine that in advisory proceedings where the dichotomy of ‘parties versus non-parties’ is absent and everybody – governments and non-state actors alike – is technically a ‘non-party’, that individuals may play a more prominent role. I observe in this chapter that this is not the case.

The Court’s ratione personae jurisdiction in the advisory realm excludes states, although it has been subject to debate in the past. The rationale for excluding both states and individuals remains the same. Under the League of Nations, Article 14 of the League Covenant authorised the Permanent Court of International Justice (PCIJ, Permanent Court) to ‘give an advisory opinion upon any dispute or question referred to it by the Council or the Assembly’.Footnote ³ Following the Second World War, however, the Informal Inter-Allied Committee wished to expand this to ‘all international associations of an inter-State or inter-governmental character possessing the necessary status’,Footnote ⁴ and even to ‘any two or more States acting in concert’ upon certain conditions.Footnote ⁵ The 1944 Dumbarton Oaks Conference, on the other hand, adopted proposals to restrict the capacity to request advisory opinions to the Security Council alone.Footnote ⁶ Later, the Washington Committee of Jurists struck a balance between these two extremes, by extending jurisdiction to the UN General AssemblyFootnote ⁷ and specialised agencies within the context of the General Assembly’s powers.Footnote ⁸ As for the proposal to allow states to request advisory opinions, this was rejected to avoid the Court becoming ‘overloaded with individual applications, thus detracting from the Court’s more important duties’.Footnote ⁹ The same concern holds true for the inclusion of individuals.

Despite this, advisory opinions have often and increasingly been requested for matters directly related to individuals. Requests in the form of abstract legal questions have been filed for matters of public interest related to the wellbeing of individuals – such as the legality of nuclear weapons or climate change obligations of states.Footnote ¹⁰ Such questions have also concerned human rights obligations of direct application to individuals, as seen in the Reservations to the Genocide Convention (1951) advisory opinion.Footnote ¹¹ The Court has also been asked legal questions ‘actually pending between two or more States’, according to Rules 102(3) and 106 of the Rules of the Court. Such requests have often related to the rights of identified communities (for instance, the Kosovars, Palestinians, Namibians, Western Saharans or Chagossians).Footnote ¹² Certain rights of UN staff members have also been the subject of other requests.Footnote ¹³ Individuals have therefore been at the heart of most advisory requests. Thus, their participation in advisory proceedings is not an absurd proposition.

In this chapter, I argue that the Court’s procedural rules enable individuals’ participation in advisory proceedings despite its reluctance to facilitate this. In the advisory context, procedural flexibility is encouraged to meet standards of democracy, a yardstick by which to measure legitimacy of the judicial process (Section I.1.2). Their participation is also relevant for the Court’s effectiveness, given one of its aims to support the UN regime and its protection of human beings through its advisory function.

I first dispel the myth that witnesses are limited to the confines of contentious proceedings (Section 3.1). I then discuss the Court’s sparse engagement with amici curiae in the advisory context (Section 3.2). Finally, I explore the potential of the analogous extension of Article 66(2) of the Court’s Statute, authorising the furnishing of information by entities beyond states and international organisations (Section 3.3). Section 3.4 concludes.

3.1 Witnesses in Advisory Proceedings?

There are two main ways for individuals to have their voices heard in relevant advisory proceedings. The first is by the government participating in oral proceedings and allowing an affected individual to make a statement as part of the government’s delegation during its speaking time, as discussed in Chapter 2. Such authorisation was first granted to Professor Rotblat as part of the delegation of the Solomon Islands in the Nuclear Weapons advisory proceedings,Footnote ¹⁴ though he was an expert as opposed to an affected individual. The Chagos advisory opinion stands as the only example in practice at the time of writing whereby an affected individual made a statement to shed light on the human dimensions of the (Section 2.3).Footnote ¹⁵ This option is procedurally straightforward and relies entirely on the initiative of the government concerned, which must either recognize the value of the individual’s oral contribution in terms of democratic standards for measuring legitimacy or view it as advantageous to its litigation strategy.

The alternative option, which will be the focus of this section, is for the individual to provide oral witness testimony. The participation of concerned witnesses can generally assist the Court in the elucidation of facts necessary to resolve the matter, while also giving a platform to individuals to contribute to a case that will bear consequences for them. However, the Court has not been receptive to individuals’ requests to give oral testimony. One of the reasons for this is that it does not wish to deal with fact-finding in advisory proceedings, believing that its Statute and Rules do not equip it with fact-finding capacity in the advisory context.

The role of evidence varies between contentious and advisory proceedings, influencing the degree of involvement an individual may have. The term ‘evidence’ is not even employed in the context of advisory proceedings, but rather the terms ‘information’Footnote ¹⁶ or ‘written statements’Footnote ¹⁷ are used. Evidence, stricto sensu, is a more appropriate term for contentious proceedings where alleged facts are established or disproved. Conversely, Article 65 limits the competence of the Court to give advisory opinions on legal questions only, and the Court has specified that ‘[i]f a question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested’.Footnote ¹⁸ The Court therefore does not wish to deal with fact-finding in advisory proceedings.

However, it is quite commonplace to be presented with an advisory request on a matter that, while legal in its nature, does require some probe into facts. According to the Court, the inclusion of factual enquiries does not obliterate the question’s legal quality. Indeed, in its advisory opinion on the Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1971), it stated, ‘[T]he contingency that there may be factual issues underlying the question posed does not alter its character as a “legal question” as envisaged in Article 96 of the Charter. The reference in this provision to legal questions cannot be interpreted as opposing legal to factual issues’.Footnote ¹⁹ It is therefore possible for the Court to receive a request for an advisory opinion on a legal question in which facts play a role.

Should this be the case, it can be envisaged to call witnesses to speak on such facts. This can be presumed as the Court refused a request for oral witness testimony in a case where it considered that no factual component existed. In the 1950 advisory opinion on the International Status of South West Africa, the then-Registrar received a request from Mr. R.H. Swale, chief of the Zulus in South Africa, offering his services as a witness in the case. Mr. Swale justified this request to represent the native population of South West Africa by asserting that he is highly competent, given his unique experience and qualifications that relate to the facts of the case.Footnote ²⁰ The proposal was refuted by the Court’s President at the time, on the basis that the advisory opinion ‘involves only legal questions. It is therefore believed that it will not be necessary to call witnesses during the hearings.’Footnote ²¹

One can imagine that witnesses would be particularly valuable if the facts of the case were controversial and needed elucidation. However, in such instances, the Court takes the more firm approach of declining to give the advisory opinion altogether. This approach was established by the Court’s predecessor. The Informal Inter-Allied Committee on the future of the PCIJ insisted that an advisory question ‘must be based on an agreed and stated set of facts’Footnote ²² and that advisory questions with diverging facts should be refused.Footnote ²³ Furthermore, the PCIJ had once declined giving an advisory opinion because the particular question ‘raised a question of fact which could not be elucidated without hearing both parties’.Footnote ²⁴ Indeed, it stated in Eastern Carelia that ‘there is [not] an absolute rule that the request for an advisory opinion may not involve some enquiry as to the facts, but, under ordinary circumstances, it is certainly expedient that the facts upon which the opinion of the Court is desired should not be in controversy, and it should not be left to the Court itself to ascertain what they are’.Footnote ²⁵ It then deemed itself ‘unable to pursue the investigation’ due to a lack of consent from the Russian government, as well as ‘other considerations already averted to in this opinion, which point to the same conclusion’.Footnote ²⁶

Over half a century later, in the Western Sahara advisory opinion, the Court reflected on the PCIJ’s Eastern Carelia judgment and concluded that while the refusal of a state to take part in the proceedings certainly played a role, it was in fact the ‘actual lack of “materials sufficient to enable it to arrive at any judicial conclusion upon the question of fact”’Footnote ²⁷ that prevented the PCIJ from rendering an advisory opinion.Footnote ²⁸ Indeed, the Court deems itself toothless when it comes to establishing evidence in advisory proceedings. This is because while Articles 48–52 of the ICJ Statute cover matters pertaining to evidence on contentious cases, no similar provisions were drafted in the context of advisory proceedings. The Court believes that it must depend on the underlying facts of the advisory request being sufficient and uncontested.

For this reason, the government of Spain was against the Court pronouncing an advisory opinion on the question of Western Sahara in 1974, as it considered the Court unequipped to ‘fulfil the requirements of good administration of justice as regards the determination of the facts’.Footnote ²⁹ Judge Federico de Castro agreed, pronouncing in a separate opinion that ‘Today, it would seem certain that, when the fact on the existence of which an advisory opinion is requested is disputed or in controversy, the Court has no competence to decide upon its existence’.Footnote ³⁰ He discussed that this would require the Court to adopt a more active fact-finding role in order to establish the disputed facts but that its Statute and Rules do not equip the Court with the powers to do so.Footnote ³¹ However, the Court considered that it had sufficient evidence before it to provide an advisory opinion in this affairFootnote ³² and came to the same conclusion in the Wall advisory opinion.Footnote ³³ Therefore, the Court has made clear that it does not wish to deal with fact-finding in advisory proceedings, only accepting advisory questions with a factual component only when uncontroversial.

Practice has demonstrated that the Court does not believe the Statute and the Rules provide it with the procedural tools needed to clarify potentially contentious facts. In the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the mayors of Hiroshima and Nagasaki wished to give witness oral testimony about the devastating damage caused in their respective cities, even though they had originally requested the Court to be experts. Given that neither the practice of inviting witnesses nor that of inviting experts was commonplace in the Court’s advisory context, it suggested that – similarly to the Chagossians in the Mauritian delegation in the Chagos advisory proceedings – the mayors be included within the delegation of Japan, even though they were not pleading any point of law.Footnote ³⁴ According to former ICJ President Rosalyn Higgins, ‘not only was this sensible in the particular circumstances of these mayors; but it also for the time being put to one side [a] complex issue: can the usual procedures regarding witnesses applicable in contentious cases be applied also in advisory proceedings?’Footnote ³⁵

I believe that the Court has every right to analogously apply Articles 48–52 of its Statute where it considers it necessary to acquire relevant information from relevant private persons. This would enhance the Court’s technocratic expertise and therefore the procedural legitimacy attached to the opinion. This is possible through Article 68 of the ICJ Statute, which reads that ‘In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognises them to be applicable’.Footnote ³⁶ Article 68 is an umbrella provision and a residual rule that allows the entire body of rules regarding contentious cases to be applied by analogy in advisory proceedings.Footnote ³⁷ It is therefore an appropriate path to apply the rules of evidence to advisory proceedings. It is reinforced by Rule 102(2) of the Court’s Rules: ‘The Court shall also be guided by the provisions of the Statute and of these Rules which apply in contentious cases to the extent to which it recognises them to be applicable. For this purpose, it shall above all consider whether the request for the advisory opinion relates to a legal question actually pending between two or more states’.Footnote ³⁸

The term ‘to the extent to which it recognises them to be applicable’ in Article 68 must be emphasised. It indicates that the Court has the power and the discretion to determine if certain articles of the Statute pertaining to contentious cases may be applicable to the advisory context.Footnote ³⁹ This has been confirmed on two occasions. The first was in the 1950 Advisory Opinion Concerning the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, in which the Court explained that ‘[i]t is (…) clear that [Article 68’s] application depends on the particular circumstances of each case and that the Court possesses a large amount of discretion in the matter’.Footnote ⁴⁰ In another instance, in the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide advisory opinion of 1951, the Court restated that ‘[A]rticle 68 of the Statute recognises that the Court has the power to decide to what extent the circumstances of each case must lead it to apply to advisory proceedings the provisions of the Statute which apply in contentious cases’.Footnote ⁴¹ Finally, the Court, in the 1971 South West Africa advisory opinion, described the advisory procedure as ‘relatively unschematic’.Footnote ⁴² Article 68 is therefore a ‘permissive rule’Footnote ⁴³ that enables the Court to ‘pick and choose from the toolbox of its contentious procedure when dealing with advisory matters’.Footnote ⁴⁴

It is important to note that not every article in the Statute that is applicable to contentious proceedings is applicable to advisory proceedings. Certain procedural institutions would not be applicable because they are too dependent on certain core factors that define contentious proceedings and that distinguish them from advisory proceedings. For instance, advisory proceedings do not have parties, whereas contentious proceedings are governed by this feature, seeking to resolve disputes between two state litigants. Thus, there are some procedural aspects that are logically applicable to contentious proceedings because parties are involved – but could not apply in advisory proceedings. For instance, third-party intervention (governed by Articles 62 and 63 of the ICJ Statute) finds no place in advisory proceedings where parties do not exist. Another example is Article 53 of the ICJ Statute, explaining the consequences of the non-appearance of a party.Footnote ⁴⁵

Nonetheless, the rules that govern witness participation do not fall under this caveat as they are not dependent on the feature of parties in contentious cases. Although it could be argued that these issues are closely tied to questions of evidence, which are not present in advisory proceedings, the absence of the term ‘evidence’ in the context of advisory proceedings does not mean that evidence is either unnecessary or undesirable. In reality, there are certain fact-intensive advisory questions – for example, Wall, Obligations of States in respect of climate change or Policies and Practices of Israel – in which certain procedural tools, such as witness testimony, would be useful.

Therefore, Judge de Castro adopted a very restrictive reading of Article 68 in the Western Sahara advisory opinion, when he concluded that the Court is unable to apply fact-finding tools to advisory proceedings. To him, ‘even if article 68 of the Statute is interpreted in the broadest manner, it would not seem that in advisory proceedings the Court is entitled’.Footnote ⁴⁶ Under a more open interpretation of Article 68, there is no reason why this would not be possible; the matter is within the Court’s discretion, and the only obvious obstacle would be clauses that could not practically apply.

The Court has, in the past, analogously applied Articles 48–52 in advisory proceedings. In the Judgment No.2867 of the Administrative Tribunal of the International Labour Organisation upon a Complaint Filed against the International Fund for Agricultural Development (IFAD) advisory opinion, the Court resorted to Article 49 of the Statute and called upon one of the organisations involved to produce certain documents.Footnote ⁴⁷ This advisory opinion was requested by IFAD and concerned the validity of a judgment rendered by the International Labour Organisation Administrative Tribunal (ILOAT). The ILOAT judgment was the outcome of a dispute between IFAD and its employee of Venezuelan nationality, Ana Teresa Saez García. In 2011, the Court’s Registrar requested the IFAD to produce copies of its employment contract with Ms. García for the years 2005 and 2006, and the IFAD responded accordingly. It provided the contract, as well as other subsequent employment contracts. It also requested the Court to authorise it to present additional observations and documents to the Court in relation to the employment contracts.Footnote ⁴⁸ The judgment specifies that the request of the Court was an application of its powers under Article 49 of the Statute. This article is part of the group of articles – between Articles 48 and 52 – addressing the gathering of evidence by the Court. It reads that ‘[t]he Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations’.Footnote ⁴⁹

It is perhaps more understandable that the Court would apply articles on acquiring evidence in advisory proceedings reviewing the validity of the decisions of administrative tribunals; such cases were in fact contentious cases brought under the heading of advisory opinions, as the parties concerned were an individual and an international organisation, neither of whom had locus standi at the World Court (see Chapter 4). But the application of fact-finding tools in the Statute has been considered in other advisory proceedings by the Court’s predecessor. In certain cases, the PCIJ considered the appointment of experts, pursuant to its Statute’s Article 50. The advisory opinion on the Jurisdiction of the European Commission of the Danube between Galatz and BrailaFootnote ⁵⁰ is an example. This case stemmed from a conflict between France, Great Britain, and Italy against Romania with regards to the competence of the European Commission of the Danube. Romania denied that the European Commission had jurisdiction in the sector from Braila to Galatz.Footnote ⁵¹ Here, the Permanent Court acknowledged that the facts that needed examination had already been investigated by the Special Committee appointed by the League of Nations. For this reason, it was not necessary to make new investigations and enquiries.Footnote ⁵² This means that it deemed itself competent to use the fact-finding tools at its disposal, if necessary.

In the light of the above, the articles related to witness testimony can be applied in advisory proceedings.Footnote ⁵³ Indeed, although advisory opinions are not as high in number as judgments on contentious matters, it is still important for the Court to integrate relevant individuals in advisory proceedings on matters that concern them to meet standards of both technocracy and democracy that are used to measure its legitimacy.

3.2 Individuals as amici curiae

This section will examine the instances in which the Court has been confronted with requests for amicus curiae participation from individuals. To do so, it will explore the Court’s more elaborate confrontations with amicus curiae from non-governmental organisations (NGOs), who often defend, inter alia, vulnerable individuals. It argues that while the Court’s increased openness to civil society in theory is noteworthy, it raises numerous questions about its actual engagement with such entities in practice.

Non-state actors have made attempts to be amici curiae before the Court in contentious proceedings such as Asylum (Colombia v. Peru),Footnote ⁵⁴ Gabčikovo-Nagymaros Project (Hungary/Slovakia),Footnote ⁵⁵ and Jurisdictional Immunities (Germany v. Italy).Footnote ⁵⁶ However, certain similar incidents in advisory proceedings are the focus of this section.

As aforementioned, there are no parties per se in advisory proceedings. However, when facing a request for an advisory opinion, the Court will decide which states or international organisations are permitted to provide information on the question. Indeed, Article 66(2) of the ICJ Statute reads as follows:

The priority accorded to states’ interests is palpable in this clause, which confirms that states are entitled to appear before the Court – whereas international organisations are limited to those that the Court deems as capable of providing useful information.Footnote ⁵⁸ Regardless, Article 66(2) – also confirmed in Article 105 of the Rules of Procedure – prohibits individuals from providing information. This was confirmed by former Registrar Stanislas Aquarone, who stated when describing the wording in Article 66(2) that expressio unius est exclusio alterius.Footnote ⁵⁹ This famous adage, signifying that the express mention of one thing excludes all others, confirms that this clause had every intention to exclude entities that are neither states nor certain international organisations. Indeed, as the Court confirmed in the Admissibility of Hearings of Petitioners by the Committee of South West Africa (1956) advisory opinion, “unless individuals and other non-state bodies have been explicitly granted procedural rights before an international forum they will not be accorded.”Footnote ⁶⁰ Regardless, the Court has been confronted by requests for amicus curiae participation, a well-known practice in international litigation. It has also arguably been unreceptive to amicus curiae briefs from non-state actors – NGOs and individuals alike.

While no universal definition of amicus curiae participation exists, it is a practice whereby an entity that is not a party to the case submits a brief or makes an oral statement with respect to the law or the facts, upon its initiative, in order to assist the court or tribunal to conduct a better proceeding and conclude a better judgment. Whether an entity will be allowed to participate as amicus curiae depends, on the whole, on the interest of the court of tribunal – rather than the interest of the requesting entity.Footnote ⁶¹ While amici curiae were traditionally understood to be neutral bystanders providing information as independent experts,Footnote ⁶² the practice has evolved to accommodate amici strategically advocating for causes in the public interest.Footnote ⁶³

While unsurprising that amicus curiae intervention is a welcome practice before criminal and human rights bodies,Footnote ⁶⁴ and various reform proposals in investor–state dispute settlement (ISDS) have advocated for it,Footnote ⁶⁵ it has been met with hesitance before inter-state courts and tribunals.Footnote ⁶⁶ The practice was initially accepted at the International Tribunal for the Law of the Sea (ITLOS)Footnote ⁶⁷ but subsequently refused in one instance.Footnote ⁶⁸ Conversely, the subject has been controversial at the World Trade Organisation (WTO), with the Appellate Body accepting the procedure despite WTO Member States strongly opposing it.Footnote ⁶⁹ It is therefore perhaps no surprise that the same reluctance has been noted by the World Court.

The Court has granted amicus curiae rights to an NGO on one occasion: in a 1950 advisory opinion entitled International Status of South West Africa. The UN General Assembly requested the Court to advise on the legal status of the territory named South West Africa when under colonial rule by the German Empire and subsequently South Africa, and known today as Namibia. Following the First World War, this territory was part of the League of Nations mandate system. However, after the League’s dissolution after the Second World War, it was unclear what would become of this territory, as it did not automatically fall under the UN trusteeship system. Therefore, the question was posed to the Court, which, as per Article 66(2) of its Statute, set a deadline (20 March 1950) to receive written statements from states.Footnote ⁷⁰

On 7 March 1950, a request to provide information, in accordance with Article 66(2), was received by the Court from the International League of Human Rights. This was an NGO that later, in 1976, became the International League for the Rights of Man and that had been heavily involved in colonial questions since its establishment.Footnote ⁷¹ As well as asking for the simple right to provide information, this organisation also requested a deadline extension to do so.Footnote ⁷²

The International League of Human Rights was an NGO as opposed to an international organisation. The latter is generally understood to be an organisation of states established by a treaty, governed by international law and with a legal personality distinct from that of its members.Footnote ⁷³ The International League of Human Rights did not objectively fulfil these criteria. In the Court’s eyes, however, it was deemed an international organisation and authorised to submit an amicus curiae brief.Footnote ⁷⁴ The then-Registrar thus responded favourably:

Despite this, the International League of Human Rights failed to meet the deadlineFootnote ⁷⁶ missing the ideal opportunity to ‘impress the Court upon the advantages of such participation’.Footnote ⁷⁷ In fact, its statement that it prepared to submit to the Court included many arguments as to why the Court should be more open to NGO participation in advisory proceedings.Footnote ⁷⁸

Despite this one authorisation, the Court rejected subsequent requests to submit amicus curiae briefs by the Federation of International Civil Servants’ Associations in Awards of United Nations Administrative Tribunal (1954) upon the grounds that it was ‘not authorised to receive written or oral statements (…) from a body such as your Federation’.Footnote ⁷⁹ Shapiro, Rabinowitz & Boudin Attorneys at Law, motivated by the short-lived success of the International League for the Rights of Man, also made a request, justifying that the Rules of the Court ‘are more flexible’ and that the Court’s predecessor heard private organisations.Footnote ⁸⁰ The Court, however, declined receiving both written and oral statements, explaining that it was ‘bound by the limitations set forth in [Article 66, paragraph 2, of its Statute]’.Footnote ⁸¹ Even in these unique types of advisory proceedings reviewing decisions of certain administrative tribunals, and directly impacting individuals (see Chapter 4), non-state actors were personae non gratae. The International League of Human Rights tried its luck a second time twenty years later, when the Court was requested to provide an advisory opinion on the Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1971). Here, South Africa had not respected a Security Council resolution that had called upon it to withdraw its administration from the territory of South West Africa (today known as Namibia). The latter’s mandate had terminated, and South Africa no longer had a right to administer it. The Court, in its advisory opinion, declared that South Africa’s continued presence in the territory was illegal. The International League of Human Rights NGO sent its request on 10 November 1970Footnote ⁸² – requesting not only to provide a written statement but also to participate in oral proceedings – to which the Registrar responded one week later, stating that the Court would have to make a decision that the NGO should not expect before January 1971.Footnote ⁸³ Eventually, the Court responded, stating that the judges were not willing to allow the NGO to participate.Footnote ⁸⁴ Even when it reiterated and narrowed its request to the Registrar, the latter firmly clarified that the matter was closed.Footnote ⁸⁵

If the International League of Human Rights, confident in having a precedent that supported its participation in advisory proceedings, was rejected, then other organisations making the same request had little hope of success. One organisation that learned this lesson the hard way was the American Committee on Africa, affiliated with the International League of Human Rights. The Court rejected its request in the Namibia proceedings on the grounds that the American Committee on Africa was not an international organisation.Footnote ⁸⁶ The Committee starkly addressed the President of the Court concerning this rejection, claiming that ‘the refusal to accept its statement was unwarranted in law, inconsistent with prior practice, and incompatible with the best interests of the Court and of the people of Namibia’.Footnote ⁸⁷ Despite this, the Registrar reaffirmed the Court’s refusal.Footnote ⁸⁸

The Court’s stance on amicus curiae briefs by NGOs defending individuals’ interests was affirmed in another advisory opinion, the Legality of the Use by a State of Nuclear Weapons in an Armed Conflict (1996), where the World Health Organisation sought to establish whether the use of nuclear weapons in an armed conflict would breach a state’s international legal obligations.Footnote ⁸⁹ Here, the Court refused a request by the International Physicians for the prevention of Nuclear War to submit information,Footnote ⁹⁰ and the International Committee of the Red Cross – despite its unique status in international law – only had its views referenced in and annexed to Costa Rica’s oral statement.Footnote ⁹¹

However, during the Legality of the Threat or Use of Nuclear Weapons advisory proceedings of the same year, the Court became more receptive to amicus curiae briefs. The ICJ Registrar is said to have received a ‘myriad of [amicus curiae] briefs and memoranda’Footnote ⁹² from NGOs. This is because the General Assembly’s request for an advisory opinion was a result of their ‘heavy and well organised lobbying’.Footnote ⁹³ While it did not admit such briefs as part of the record in these cases, they were made available to members of the Court in their library.Footnote ⁹⁴ Higgins explained that ‘[e]very judge knew from week to week what was coming in, and it was up to each judge to decide if he wished to go beyond the already voluminous official pleadings and to read these other materials’.Footnote ⁹⁵ Certain judges commented on this phenomenon in their separate opinions, Judge Oda having the impression that the request ‘originated in ideas developed by some NGOs’,Footnote ⁹⁶ while Judge Guillaume confirmed that the Court received ‘thousands of letters inspired by these groups, appealing both to the Members’ conscience and to the public conscience’.Footnote ⁹⁷

The confrontations with amicus curiae briefs in Nuclear Weapons arguably influenced the adoption of Practice Direction XII in July 2004,Footnote ⁹⁸ as ‘many non-governmental organisations advocated their inclusion – with some success, not in their own right, but via sympathetic governments’.Footnote ⁹⁹ Practice Direction XII indicates that NGOs may submit written statements, which are treated as separate publications – as opposed to elements of the case file – that may be referred to by states and international organisations presenting written and oral statements. It reads as follows:

This Practice Direction acknowledges that NGOs may fulfil a useful role by providing the Court with information that it would not otherwise receive from states (pursuant to Article 66) or from the Secretary-General (pursuant to Article 65(2)).Footnote ¹⁰⁰ However, there seems to be a contradiction in that this information, treated as ‘publications readily available’ and ‘in the public domain’ (paragraph 2), is ‘placed in a designated location in the Peace Palace’ that few are aware of (paragraph 3). Furthermore, no reference is made to the Court itself using the information for the purposes of its deliberations.Footnote ¹⁰¹ See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) (Judgment) [1986] ICJ Rep 14, 40–41 [63].

Indeed, despite the welcome engagement with civil society through the adoption of Practice Direction XII, there is no published evidence that the Court has consulted such briefs in practice. Former Registrar Eduardo Valencia-Ospina stated that ‘all such documents are given consistent treatment’, but the details of such treatment in practice are unknown.Footnote ¹⁰² Conversely, international criminal tribunals or human rights courts have been noted to openly engage with such briefs.Footnote ¹⁰³ However, the Court’s approach is presumably due to a mindfulness towards likely disapproving states.

The same approach of the Court holds true for individuals who have made attempts to act as amici themselves. This was demonstrated in the same context of the South West Africa cases. In the 1950 advisory proceedings (for the International Status of South West Africa advisory opinion), Mr. Gordon F. Muirhead submitted a statement of fact and a statement of law, which he asserted that he was forwarding on behalf of the advisor of the International League for the Rights of Man. However, the Registrar responded that the Court had no evidence from the organisation that this was the case and requested that this information emanate from the organisation itself.Footnote ¹⁰⁴ Court was not willing to receive a document from an individual.

In the Namibia advisory proceedings, the Court received two requests from individuals. The first was from Professor Michael Reisman from Yale University Law School, who felt ‘deeply concerned’ and asserted that ‘critical issues are raised’.Footnote ¹⁰⁵ For these reasons, his request to the Court was twofold: if the Court would accept a memorial from an individual, and if the Court would consider a document discussing the legality and admissibility of amicus curiae briefs.Footnote ¹⁰⁶ The Registrar responded in a lengthy letter that seemed to be a personal correspondence as opposed to one in his official capacity. In his carefully justified response of rejection, he claimed – referring to the 1950 advisory opinion – that the Court had already rejected several individuals’ amicus curiae requests in the past. He also used the context of the Court’s jurisprudence in reviewing certain decisions from administrative tribunals to justify the extent to which the Court was not favourable to having individuals present oral statements.Footnote ¹⁰⁷ The Registrar concluded by stating his belief that the Court would be ‘unwilling to open the floodgates to what might be a vast amount of proffered assistance’.Footnote ¹⁰⁸

The second request in the 1970 advisory proceedings was from Reverend Michael Scott. While he had originally contacted the Court to deliver a statement on behalf of the American Committee on Africa, he seized the opportunity of liaison with the Registrar to also inquire if he could personally deliver an oral or written statement, due to his strong credentials and involvement in the subject matter.Footnote ¹⁰⁹ The Registrar candidly responded that Article 66(2) of the Statute does not allow such information from individuals.Footnote ¹¹⁰

In sum, the Court does not wish to involve NGOs and even less individuals. NGOs also can, pursuant to Practice Direction XII, submit such briefs – although their precise utility for the judges is unknown. NGOs could also theoretically be considered by the Court as international organisations for the purposes of Article 66(2), as was the International League of Human Rights. This would be an indirect way for concerned individuals to have their thoughts heard and to provide certain information that could be of use in the proceedings, related to the impact of the Opinion on civil society. The Court has seemingly expanded its understanding of ‘international organisation’ in the Obligations of States in respect of climate change proceedings by authorising certain entities whose status as a traditional international organisation can be questioned.Footnote ¹¹¹ However, no literal interpretation of Article 66(2) nor of Practice Direction XII could invite the formal participation of individuals – as opposed to NGOs – appeasing its fear of the floodgates of their anticipated excessive unwarranted participation.

Despite this, the Court has surpassed the wording of Article 66(2) in the past to enable entities other than states and international organisations to furnish information in advisory proceedings. This stands in stark contrast to its hesitation to authorise witnesses (Section 3.1) and individuals as amici curiae in advisory proceedings (Section 3.2). The next section therefore explores the potential of the analogous extension of Article 66(2) to allow for individual participation.

3.3 The Analogous Extension of Article 66(2) of the ICJ Statute?

It has been thus far established that individuals could participate in advisory proceedings as witnesses, through the application of Articles 48–52 of its Statute via the umbrella clause of Article 68, allowing for the analogous application of rules from contentious proceedings (Section 3.1). Alternatively, while neither a Practice Direction nor Article 66(2) of the Court’s Statute can authorise amicus curiae briefs from individuals (Section 3.2), I argue in this section that the analogous extension of Article 66(2) could theoretically allow individuals to furnish information if the circumstances so required.

There are two categories of states entitled to appear before the Court. Firstly, all members of the UN are ipso facto parties to the ICJ Statute, and are thus entitled to appear before it.Footnote ¹¹² Secondly, states who are not members of the UN may become parties to the ICJ Statute, if the General Assembly and the Security Council so decide.Footnote ¹¹³ As for international organisations, the Court has the discretion to decide which ones would qualify and fruitfully contribute to the advisory proceedings.

However, in both the Accordance with international law of the unilateral declaration of independence in respect of Kosovo advisory opinion, and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion, the Court extended the framework of Article 66(2) to allow another type of entity to participate, who was neither a state nor an international organisation.

The Kosovo advisory opinion was the outcome after failed negotiations between the people of Kosovo, who wished to be an independent sovereign nation, and the government of Serbia. The latter sponsored a UN General Assembly resolution asking the ICJ whether the declaration of independence from the Kosovar people, claiming that Kosovo is an independent and sovereign state, was in accordance with international law.

At the stage of proceedings, the legal status of Kosovo was unclear. It was administered by the United Nations Interim Administration Mission in Kosovo (‘UNMIK’), which was created via Security Council resolution 1244 (1999). While this resolution also temporarily suspended Serbia’s exercise of sovereign authority over Kosovo,Footnote ¹¹⁴ it did not provide Kosovo’s final status, which was left to be negotiated by the parties. Further, Kosovo was not a Member State of the UN nor a party to the ICJ Statute via a decision by the UN General Assembly and Security Council.Footnote ¹¹⁵ Therefore, it was not a ‘state entitled to appear before the Court’, as per Article 66(2) of the ICJ Statute.

When advisory proceedings began, the Court considered that the unilateral declaration of independence was the subject of the question submitted before it. Hence, the authors of this declaration were ‘likely to be able to furnish information on the question’, pursuant to Article 66(2). The Court therefore invited the authors of the declaration to make written contributions via its Order of 17 October 2008.Footnote ¹¹⁶ The authors of the unilateral declaration were democratically elected leaders of Kosovo who were members of the Kosovo Assembly.Footnote ¹¹⁷ Leaders of any country whose sovereignty is not in question would be regarded as state officials, whose furnishing of information to the Court would thus conform to Article 66(2). However, when the sovereignty and independence of the relevant entity are questioned and when the entity in question does not qualify as a ‘State entitled to appear before the Court’ in the sense of Article 66(2), then the leaders cannot be considered as state officials in the same manner. They may simply be considered as, at the very least, individuals.

Serbia was clearly opposed to the Court’s invitation extended to the authors of the Kosovar declaration. It argued in its written statement that the information requested by the Court should be furnished by the UNMIK, as opposed to the authors themselves. Such permission by the Court ‘constitutes a considerable departure from the previous practice of the Court, and raises significant issues under (…) Articles 34, 35, and 66, paragraph 2, of the Statute of the Court’.Footnote ¹¹⁸ While I agree with Serbia that this approach raised a significant issue under Article 66(2), it was not a considerable departure from the previous practice of the Court as it was not the first time that the Court applied an analogous extension of Article 66(2) to the benefit of individuals.

The first instance in which such an analogous extension of Article 66(2) was applied was in the Wall advisory opinion. In this case, the Israeli government decided to construct a security fence as a measure of self-defence against terrorist attacks coming from the West Bank.Footnote ¹¹⁹ The UN General Assembly, concerned that this wall would result in permanent annexation and thus encumber Palestinian self-determination, asked the ICJ what legal consequences would arise from its construction, considering rules and principles of international law, the Fourth Geneva Convention of 1949 and relevant UN resolutions.Footnote ¹²⁰

During the advisory proceedings, the Court invited Palestine to furnish information under Article 66(2), ‘referring to its somewhat special character as an observer to the UN General Assembly and as a co-sponsor of the resolution requesting the opinion’.Footnote ¹²¹ Today, Palestine would qualify as a ‘State entitled to appear before the Court’ under the meaning of Article 66(2). This is because although it is not a UN member, Palestine could become a party to the ICJ Statute pursuant to Article 93(2) of the Statute, following the adoption of UN General Assembly Resolution 67/19 of November 2012.Footnote ¹²² It was therefore eligible to furnish information as any other state entitled to appear before the Court in the Policies and Practices of Israel advisory opinion of 2024.

Therefore, the Kosovo and Wall advisory proceedings indicate that the Court is not restricted by the wording of Article 66(2) and can analogously extend it, if it so wishes. The basis on which these decisions were made remains in question. The Orders where these decisions were declared offer brief explanations that make no reference to any legal norms or general principles of law. Rather, the Court justifies its decision by citing the unique circumstances of each case, including the role of the entity in question and its potential to assist the Court. It is the latter element that seems to have been particularly seminal.Footnote ¹²³ The equality of parties, studied in Chapter 4, may also justify their participation.Footnote ¹²⁴ In brief, the broad discretion of the Court in advisory proceedings to apply an analogous extension of Article 66(2) may go beyond the letter of the law.

I see no issue with the Court’s chosen course of action in these two instances. Indeed, the good administration of justice (Section 4.2) begs us to consider the involvement of non-state entities should the advisory question revolve around them.Footnote ¹²⁵ The Court’s decision was made to guarantee procedural fairness and meet standards of democracy, thereby ensuring procedural legitimacy.

Former Principal Legal Secretary of the ICJ, Hugh Thirlway, points out that the Court’s approach in the aforementioned two advisory proceedings would only be problematic if we considered that Article 66(2) were a limitative clause that debarred it from obtaining information from any other entity.Footnote ¹²⁶ According to former Registrar Stanislas Aquarone (Section 3.2), Article 66(2) is limitative (expressio unius est exclusio alterius).Footnote ¹²⁷ This tells us that the Kosovo and Wall cases must have been considered exceptional circumstances.

Yet, Thirlway also asks himself if the Court’s discretionary practice was the ‘thin end of the wedge’, opening the door for individuals to be granted the same privilege, through an analogous extension of Article 66(2).Footnote ¹²⁸ It is only natural that if this practice has been allowed twice, it may lead to claims for more openness in other relevant instances. However, the Court has consistently shown reluctance towards receiving such information from private persons – even where warranted. It had opportunities to do this in the five advisory proceedings where it was requested to judicially review the decisions of administrative tribunals, as examined in Chapter 4. Here, individuals – staff members of certain international organisations – were at the focal point of the dispute and had crucial information to provide to the Court. However, the Court did not apply an analogous extension of Article 66(2) in their favour. Instead, it requested for other actors permitted to furnish information – such as international organisations – to do so on their behalf. If it could not do so for such individuals with undisputed interest, involvement, and relevance in the proceedings before it, then it should come as no surprise that it would reject amici curiae from less implicated individuals, as examined in Section 3.2.

Furthermore, the measures in the Kosovo and Palestine proceedings were not taken in other cases where a population at the heart of a dispute undoubtedly could have provided useful information. For example, in Obligations of States in respect of Climate Change, the Court was asked about the legal consequences for states who have caused climate harm to ‘peoples and individuals of the present and future generations affected by the adverse effects of climate change’.Footnote ¹²⁹ It is well known that this request was initiated by young students in the Pacific.Footnote ¹³⁰ Their participation to offer information on the nature of their harm as a result of states’ failed climate obligations would have assisted the Court in more acutely answering the question. Similarly, in the International Status of South West Africa advisory opinion (1950) where the UN General Assembly requested the Court to advise on the legal status of the territory, certain inhabitants of the territory certainly could have furnished pertinent information. A final example is in Western Sahara, where the Court was tasked with determining if Western Sahara was a territory belonging to no one at the time of colonisation by Spain and what the legal ties were between this territory and the Kingdom of Morocco and the Mauritanian entity. Such an investigation, particularly to answer the latter question, surely warranted participation from the people of the Western Saharan territory.

The Court’s approach to individuals in this context indicates that it perceived Kosovo and Palestine not as a collective of individuals, but rather as territories whose status under international law had not been determined, who had made declarations of statehood, and who considered themselves as sovereign and independent states. These were sui generis cases unlikely to reoccur, reassuring the Court’s fear of opening floodgates through its discretionary decision.

In sum, while it remains implausible in practice, the Court’s wide discretion surpassing the letter of the law would allow it to – in theory – analogously apply Article 66(2) to relevant individuals. This would be a gateway for them to furnish information in such proceedings. But how compatible would this be with the spirit of Article 34(1) of the ICJ Statute?Footnote ¹³¹ It is recalled from Chapter 1 of this study that Article 34(1) is one of three pillars of the ICJ’s jurisdiction, precasting the parameters of the Court and determining a number of other Articles in the Statute that were drafted upon its underlying logic.Footnote ¹³² The structure of the Court is largely based upon the assumption that only states can be parties in cases before it.Footnote ¹³³ However, it is debatable whether this holds true for advisory proceedings, which carry distinct features from contentious proceedings. It can be argued that the state-centric constraints of Article 34(1) are pertinent only in the context of contentious proceedings, wherein the disputes are between actual parties. The context of advisory proceedings – where there are no parties, no binding decisions, and broader legal questions often of public interest – is too distinct for such a clause to have bearing.

3.4 Conclusion

Advisory proceedings are theoretically more accommodating to individuals than contentious proceedings. Not only are there fewer governing rules, but the Court has large discretion as to the procedure when it is requested to produce an advisory opinion. This discretion may enable the Court to include individuals as witnesses, through the application of Articles 48–52 of its Statute via the umbrella clause of Article 68 (Section 3.1). While amicus curiae participation is limited to NGOs (Section 3.2), the Court could potentially allow individuals to furnish information through an analogous extension of Article 66(2) of the Statute (Section 3.3).

But would the Court exercise such prerogatives? The ICJ is generally much more restrictive towards non-state entities than its predecessor. The PCIJ showed considerable flexibility with regards to the types of entities from which it received documents or enabled to provide oral arguments. These non-state entities ranged from labour unions and trade union federations to political parties and minority groups.Footnote ¹³⁴ The Permanent Court allowed many organisations that would not qualify today as ‘international organisation[s]’ in the sense of Article 66(2) to participate in proceedings. For instance, in its advisory opinion on Designation of the Workers’ Delegate for the Netherlands at the Third Session of the International Labor Conference in 1922, the Permanent Court welcomed any international organisation that expressed a desire to be heard, receiving a memorandum from the Netherlands General Confederation of Trades Unions and allowing for other trade unions to participate.Footnote ¹³⁵ The ICJ, in comparison, has been far more restrictive.Footnote ¹³⁶

The Court’s hesitation regarding the inclusion of witnesses can be attributed to two main reasons. First, the Court has not faced many requests for advisory opinions, much less any that would require probing into facts. In situations where this has arisen, the practice has not been applied, in favour of a more cautious and non-controversial approach. This can be understood from Judge Higgins’ expression of relief that the question of using witness procedures in advisory proceedings was avoided by the Court in the Legality of the Threat or Use of Nuclear Weapons advisory opinion.Footnote ¹³⁷ Second, the Court has demonstrated a general hesitation to exercise proper fact-finding mechanisms in contentious proceedings and would therefore be no different in advisory proceedings.

Regarding the analogous extension of Article 66(2) of the Statute, the Court has refrained from extending amicus curiae status to individuals, fearing it would open the floodgates. Good reasons plead for such an approach: in both Professor Reisman’s and the American Committee on Africa’s requests, they made reference to the ‘precedent’ established by the ICJ in accepting the International League of Human Rights to submit information in 1950. This reflects the ‘thin end of the wedge’ argument: on the one hand, it demonstrates the eagerness for non-state actors to rely on precedent to get their foot in the door and, on the other hand, may explain the Court’s reluctance to establish any precedent that could open the floodgates. However, this fear is potentially unwarranted. Author Ruth Mackenzie opines that “the assumption of opening floodgates remains unproven in the face of the practice of international courts”.Footnote ¹³⁸ Indeed, there have been no public reports on an abundant number of NGOs submitting amicus curiae briefs since Practice Direction XII was published in 2004. Another related concern regarding the analogous extension of Article 66(2) of the Statute in favour of relevant individuals capable of providing pertinent information is that states may become more reluctant to turn to the Court to resolve their disputes as a result.Footnote ¹³⁹ I am not fully convinced by this. As there are no parties in advisory proceedings, the spirit of antagonism feared by states (Section 1.2.4) would be absent. Furthermore, all states continue to be entitled to appear before the Court in advisory proceedings, unlike other actors, whose participation would depend on the Court's assessment of their ability to provide useful information. Finally, the Court is by no means bound to use all information presented to it.

More frequently and openly receiving the views of private persons, who are concerned and affected by the outcome of advisory opinions, increasingly matters. The value of such participation lies in the democratic standards used to measure the Court’s legitimacy in such proceedings. Such input is especially important for advisory opinions, which often impact a broad community of states and individuals.

Until June 2016, the International Court of Justice (ICJ, the Court) occasionally dealt with distinct types of requests for advisory opinions in which individuals, working for certain international organisations, were directly involved as unofficial parties. These international civil servants, unsatisfied with the decisions rendered by the administrative tribunal dealing with their matters, were able to have these decisions re-examined by the Court. The reason for the failure of this type of advisory proceeding before the Court was primarily due to its inability to adequately adapt its procedural mechanisms to fully uphold the principle of equality between the parties.

Despite this practice being abolished, it drew much attention to the access and procedural inclusion of individuals before the World Court, testing the degree to which the latter could accommodate the needs of people at the centre of such disputes. For this reason, revisiting the practice and its challenges is valuable for this study. I argue in this chapter that the Court was indeed the incorrect forum for such concerned individuals seeking redress, due to its own Statute barring access to individuals and therefore entailing a permanent inequality of the parties. However, while the Court was handling such disputes, there were overlooked ways to adjust its procedural mechanisms to enable the concerned staff member to be even further integrated in proceedings and stand as an equal party to its employer. This was to be achieved through a wider interpretation of the principle of the good administration of justice.

The chapter will first expound three features of this unique type of advisory proceeding reviewing decisions of certain administrative tribunals (Section 4.1). It will then explain the notion of the equality of parties (Section 4.2), before assessing the Court’s procedural adjustments in light of the two subtypes of the principle of the equality of parties: equality of access (Section 4.3) and equality of arms (Section 4.4). Section 4.5 concludes.

4.1 Features of Advisory Proceedings Reviewing Decisions of Certain Administrative Tribunals

Three features of this type of advisory proceeding must be understood: the choice of the advisory function, the concept of judicial review, and the types of administrative tribunals involved in such proceedings.

The first feature is the existence of an underlying contentious dispute between an international organisation and its concerned staff member. While the Court was arguably tasked with reviewing a decision as opposed to settling a dispute between two parties,Footnote ² this dispute was still unavoidably at the core of the proceedings. The reason why such contentious cases were brought to the Court in the form of requests for advisory opinions is that Article 34(1) of the Court’s Statute denies individuals and international organisations locus standi in contentious cases (see Chapter 1). Advisory proceedings, on the other hand, do not formally have parties (see Chapter 3).Footnote ³ However, this effectively turns an obviously contentious case into a non-contentious proceeding.Footnote ⁴

While it has been argued in proceedings before the Court that the individual is not one of the ‘parties’ to the proceedings,Footnote ⁵ the procedure of recourse to the ICJ is a ‘second instance’ of sorts – a protraction of the original dispute between an individual and an international organisation.Footnote ⁶ Therefore, the Court has acknowledged the rights of the individuals concerned in its case law,Footnote ⁷ and has categorically stated that the dispute is one between the individual and the international organisation, in its 2012 IFAD advisory opinion.Footnote ⁸ This acknowledgment of the underlying dispute in the advisory context is due to the importance of the principle of the equality of parties in this context, as will be seen in Section 4.2.

This shoehorning of a dispute between an individual and an international organisation into the confines of an advisory proceeding raises other questions. Advisory opinions are traditionally not binding but – given the nature of the dispute – would the opinion be automatically binding on the relevant actors?Footnote ⁹ Another question raised is the impact that the advisory opinion would have on the original procedure of the administrative tribunal. To what degree would it override the original decision?Footnote ¹⁰ Addressing such questions lies beyond the scope of this study, but they nonetheless highlight the unique nature of these proceedings.

The second unique feature characterising advisory proceedings reviewing decisions of certain administrative tribunals is the existence of a decision by an administrative tribunal. UN tribunals are designed to resolve disputes between an institution and its staff members. In the lifespan of the ICJ, it has reviewed only five decisions from administrative tribunals: three from the United Nations Administrative Tribunal (UNAT)Footnote ¹¹ and two from the Administrative Tribunal of the International Labour Organization (ILOAT).Footnote ¹² Both had jurisdiction over a broad range of UN Specialized Agencies and other international organisations.Footnote ¹³

The UNAT was established on 24 November 1949 through General Assembly Resolution 351(IV)A. The original UNAT Statute within this resolution did not provide for judicial review, its Article 10(2) stating that UNAT decisions were ‘final and without appeal’.Footnote ¹⁴ But between 1952 and 1953, several UN Secretariat staff members were terminated by the Secretary-General without their consent, and they appealed to the UNAT against their dismissal. The UNAT upheld their appeal and required that they be compensated, but certain Member States of the General Assembly refused, arguing that there was no obligation to do so. The General Assembly therefore requested an advisory opinion from the ICJ on whether the Assembly was legally entitled to refuse to give effect to the awards of compensation made by the UNAT.Footnote ¹⁵ In its 1954 advisory opinion entitled Effect of Awards of Compensation made by the United Nations Administrative Tribunal Advisory Opinion, the Court stated that since UNAT decisions cannot be reviewed, its decisions were binding on the General Assembly. However, its Article 11 could be amended to ‘provide for a means of redress by another organ’.Footnote ¹⁶ Following this advisory opinion, the UNAT Statute was amended in 1955 through General Assembly Resolution 957(X) to allow an unsatisfied party to seize the ICJ for review.Footnote ¹⁷ The UNAT was abolished by the General Assembly in 1995Footnote ¹⁸ and replaced by two tribunals: the United Nations Dispute Tribunal (UNDT), which hears claims in the first instance, and the United Nations Appeals Tribunals (UNApT), which acts as an appellate instance instead of the ICJ.Footnote ¹⁹

As for the ILOAT, it was created in 1927 as the successor of the Administrative Tribunal of the League of Nations.Footnote ²⁰ Just like the UNAT, its creation has its origins in a dispute over competence,Footnote ²¹ based on the ‘theory of the excess power of the international judge’.Footnote ²² The League Administrative Tribunal decided to give compensation to a staff member in a case (Zoppino v. International Labour Office), justifying its behaviour under Article II paragraph 1 of its Statute, providing for jurisdiction relating to contracts of employment of International Labour Organization (ILO) officials.Footnote ²³ But the question was raised whether it had that competence or rather, whether it was the role of the Assembly of the League to take such measures. It was concluded by the League’s Finance & Sub-Committee that the Tribunal did not have that competence and that it had ‘exceeded its jurisdictional powers in trying to overrule the League’.Footnote ²⁴

Therefore, the ILOAT replaced the Administrative Tribunal of the League of Nations in 1927. Following this incident, it was believed that some modifications to the Administrative Tribunal’s Statute should be made. The Chairman of the ILO’s Governing Body suggested that ‘[p]rovision might perhaps be made for a “court of appeal”, for example, the International Court of Justice’.Footnote ²⁵ Therefore, after discussions by the Committee on Staff Questions and the Governing Body, the amendment to include Article XII was recommended to the ILO Labour Conference, which adopted it in October 1946:Footnote ²⁶

Article XII of the ILOAT Statute was abolished in June 2016,Footnote ²⁸ thus stripping the ICJ of its function of reviewing decisions of administrative tribunals.Footnote ²⁹ While other administrative tribunals do exist, no other makes recourse to the ICJ. This is largely due to the significant challenges the Court faced in attempting to ensure procedural equality between the staff member concerned and the international organisation, which presented their dispute under the guise of advisory proceedings.

An understanding of the features explained in this section enables us to assess why the Court could not successfully ensure the procedural equality and inclusion of the individual in such proceedings (Sections 4.3 and 4.4). But before answering this question, this principle of the equality of parties must first be understood (Section 4.2).

4.2 The Principle of Equality of Parties

This chapter argues that a wider interpretation of the principle of the good administration of justice would have allowed for further measures to be taken to guarantee the principle of the equality of parties in these advisory proceedings. The principle of equality of parties (audi alteram partem) is a fundamental principle of judicial procedure.Footnote ³⁰ The Court’s Statute features this principle in its Article 35(2), where it states (in the context of locus standi of states) that ‘in no case shall such conditions place the parties in a position of inequality before the Court’.Footnote ³¹ The principle of equality of parties has been enshrined in a number of international human rights conventionsFootnote ³² and is considered a ‘key element of human rights protection’, according to the UN Human Rights Committee.Footnote ³³ At the crux of this principle is the idea that a judicial settlement that does not prevent procedural arbitrariness vis-à-vis the parties’ rights cannot be legitimate.Footnote ³⁴ Upholding this principle is therefore key to meet standards of fairness used to assess the procedural legitimacy of the Court. It is considered to be a ‘cardinal characteristic of a judicial process’,Footnote ³⁵ and an element within the wider notion of ‘international due process’.

In the words of the Court, the principle of equality of parties forms part of ‘the requirements of good administration of justice’.Footnote ³⁶ This is one of the general principles governing the Court’s procedural law employed by the latter to ensure effectiveness and efficiency in its decision-making.Footnote ³⁷ The good administration of justice empowers the latter with a large breadth of discretion to make the necessary adjustments in order to carry out its procedural functions in the most optimal conditions.Footnote ³⁸ It finds application in diverse circumstancesFootnote ³⁹ but has been observed as applying to preserve a variety of interests such as time, cost, judicial economy, and judicial integrity – and the equality of the disputing parties.Footnote ⁴⁰

It is understood by the Court that procedural unfairness is detrimental to the good administration of justice.Footnote ⁴¹ However, a historical understanding of the good administration of justice is appropriate in the context of this study. The good administration of justice finds its origins in the notion of the denial of justice,Footnote ⁴² which was first developed in the Middle Ages to advocate for the rights of individuals to justice. It was historically applied in the context of an individual whose rights had been violated by a sovereign state who had then failed to uphold the individual’s right to justice. For instance, both an 836 treaty between Sicard and the Neapolitans and another in 840 between Italian Emperor Lotar I and Doge Petris Tradenicus of Venice affirmed the rights of a private person who had suffered in the territory of a foreign state, and the foreign state failed to do justice. The exercise of reprisals was therefore limited by the notion of the denial of justice.Footnote ⁴³ The good administration of justice was born to describe the antithesis of the denial of justice for individuals.Footnote ⁴⁴

A human-centred understanding of the good administration of justice has been adopted by the European Court of Human Rights, which authorises amicus curiae submissions ‘in the interest of the proper administration of justice’.Footnote ⁴⁵ While such standards are expected of a human rights court, it can be argued that a similar approach should be applied in proceedings before the World Court that focus on an individual staff member’s rights against their employer.

The human-centred understanding of the good administration of justice may have led to more creative procedural efforts to uphold the principle of the equality of parties. This chapter proceeds to illustrate the ways in which this was not successfully achieved.

In the context of the Court’s advisory opinions reviewing decisions of certain administrative tribunals, equality of the parties comes into consideration at two different stages. The first stage is within the international organisation (the employer). Typically, such organisations have a Review Committee composed of Member States that decide if applications for a request for a review of the judgment of the Administrative Tribunal should be taken to the ICJ in the first place.Footnote ⁴⁶ The latter has recognised inequality of the parties with regard to the Review Committee’s procedure within the international organisation.Footnote ⁴⁷ The second stage in which the equality of parties plays a role is before the Court itself, which is the focus of this chapter.

The issue of equality of the parties is one that the PCIJ had already dealt with in the past, in its 1935 advisory opinion entitled Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City.Footnote ⁴⁸ This was a case between the Free City of Danzig and individuals representing three minority political parties. The latter submitted a petition to the Council of the League of Nations concerning certain legislative decrees of the Danzig state. The PCIJ decided that it would receive written statements from the Government of the Free City of Danzig, as well as from the individuals. However, it did not allow the individuals to participate in oral proceedings because this practice was uncommon in its advisory cases.Footnote ⁴⁹ Judge Dionisio Anzilotti strongly dissented to this decisionFootnote ⁵⁰ and the then-Vice President Guerrero suggested removing ‘any inequality between the parties, whoever they might be’.Footnote ⁵¹ In another instance in 1939, former officials of the Governing Commission of the Saar Territory complained to the League of Nations of the ‘prejudice occasioned to them by the expiry of the powers of the Governing Commission’ and that their right to be heard had not been respected.Footnote ⁵² During preparations to seize the PCIJ with the matter, the right to present written and oral statements to the Court was withheld, since the same possibility could not be given to the petitioners as well. The PCIJ presumably did not wish to grant the government officials greater opportunities of furnishing information to the Court than the petitioners themselves.Footnote ⁵³

In these unique types of advisory proceedings, the Court was challenged with upholding the principle of the equality of the parties: the individual (staff member), on the one hand, and the international organisation (employer), on the other hand. Now that the equality of parties has been understood, its two constituents – equality of access (Section 4.3) and equality of arms (Section 4.4) – will be assessed, in order to determine to what extent they were respected by the procedural mechanisms employed by the Court in these types of advisory proceedings, and if any other measures could have been innovated or considered.

4.3 Equality of Access: The Permanent Obstacle of the Statute

The first constituent of the principle of the equality of parties is the equality of access. The Court defined the concept of equality of access as follows: ‘According to generally accepted practice, legal remedies against a judgment are equally open to either party. In this respect each possesses equal rights for the submission of its case to the tribunal called upon to examine the matter’.Footnote ⁵⁴

While the UNAT allowed both the wronged staff member and the international organisation to seize the Court,Footnote ⁵⁵ the ILOAT Statute only allowed the international organisation to do so.Footnote ⁵⁶ Judge Roberto Córdova dissented in 1956 that in not respecting the equality of access of the parties, it was impossible for the Court to administer justice in strict compliance with its basic principles.Footnote ⁵⁷ On this issue, the Court stated in 2012 that ‘questions may (…) properly be asked whether the system established in 1946 meets the present-day principle of equality of access to courts and tribunals’ but that it is ‘not in a position to reform this system’.Footnote ⁵⁸

The equality of access stems from two legal sources: the ILOAT Statute and the ICJ Statute. The problem with the equality of access is twofold: on the one hand, certain international organisations may not allow their staff members to seize the ICJ to review the organisation’s decision, allowing only the organisation to do so. On the other hand, even if the organisation does allow the individual to seize the ICJ, the Court’s own Statute does not allow this. There is therefore a dual problem, each of which shall be addressed in turn.

4.4 Equality of Arms: New Procedural Mechanisms in Favour of the Injured Staff Member

The Court has made clear that while it is ‘not in a position to reform this system [creating the inequality of access], it can attempt to ensure, so far as possible, that there is equality in the proceedings before it’.”Footnote ⁷⁶ Indeed, while the Court could not change the equality of access, it could – and did attempt to – change the equality of arms. However, it will be argued in this section that the Court did not fully exhaust the procedural mechanisms at its disposal to try and close the gap of inequality between the parties.

The principle of equality of arms means that parties must be treated equally from a procedural standpoint, having equal opportunity to present their case without being at a disadvantage to their opponent. This principle has been developed in the jurisprudence of international human rights courts.Footnote ⁷⁷ It represents another aspect of the principle of equality of the parties, emphasizing that true equality requires more than merely door to the courthouse.

The issue regarding equality of arms arises from the fact that wronged staff members, who were originally parties to the proceedings before the administrative tribunals, were barred from appearing in a similar capacity at the Peace Palace. As a result, they were excluded from these proceedings despite having a clear and justified legal interest in the case. Indeed, Article 66(2) of the ICJ StatuteFootnote ⁷⁸ states the following:

As examined in Chapter 3, this provision permits governments and international organisations to participate in advisory proceedings, but not private parties (Section 3.3). In these proceedings reviewing decisions of certain administrative tribunals, however, the Court took it upon itself to tweak and contrive procedures in order to uphold the principle of the equality of arms,Footnote ⁸⁰ reassuring private parties that ‘[a]ny absence of equality (…) inherent in the terms of Article 66 of the Statute of the Court is capable of being cured by the adoption of appropriate procedures which ensure actual equality in the particular proceedings’.Footnote ⁸¹ In so doing, the Court has always been guided by its duty to remain faithful to the requirements of its judicial character.Footnote ⁸²

The Court took two principal measures to preserve and guarantee the equality of arms: first, an actor with access to the Court in advisory proceedings would arrange to transmit the views of the concerned staff members to the Court (Section 4.4.1). Second, since only states or international organisations could participate in oral proceedings, but not individuals, oral proceedings were barred from proceedings altogether, in order to equalise the parties in the procedure before the Court (Section 4.4.2). Both measures are examined more closely here.

4.5 Conclusion

There are several reasons why the Court was an initially seen as an attractive forum for reviewing the decisions of administrative tribunals on disputes between certain international organisations and their staff members. First, its predecessor (the PCIJ) required to perform judicial review.Footnote ¹³⁴ Second, these unique types of requests for advisory opinions nourished the Court’s position as the principal judicial organ of the UN. Indeed, in reviewing the decisions of administrative tribunals, the Court was tasked with giving judicial advice on legal questions related to international institutional law,Footnote ¹³⁵ particularly on activities of importance in the UN system of which it is part.Footnote ¹³⁶ An indication that the Court placed importance on this task is that it never declined to deal with such requests, although it had the discretion to do so.Footnote ¹³⁷ While the reasons for refusal include it not wishing to compromise ‘the requirements of its judicial character”,Footnote ¹³⁸ or “compelling reasons’,Footnote ¹³⁹ the Court has stated that ‘[i]t is equally well established that the reply of the Court to a request for opinion represents its participation in the activities of the United Nations and, in principle, should not be refused’.Footnote ¹⁴⁰ Indeed, rejecting such an advisory opinion would ‘imperil the working of the regime established by the Statute of the Administrative Tribunal for the judicial protection of officials’,Footnote ¹⁴¹ according to the Court. The ICJ has thus considered all judicial review requests, even the Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal advisory opinion of 1982, in which the Court admitted that there were indeed compelling reasons to decline giving an advisory opinion.Footnote ¹⁴²

Another benefit was the ability of this system to uphold fundamental principles of due process such as that of the faculty to ‘appeal’. Although the principle of finality – stipulating that the decision rendered by a court is final – is paramount in international adjudication, it is limited by the faculty of appeal.Footnote ¹⁴³ While ICJ has made clear that it is not a court of appeal, nor are such processes appeals,Footnote ¹⁴⁴ the general idea of the injured party having the option to recourse to a sort of ‘second instance’ is still relevant in this context. In the words of one author, ‘[I]t is generally in the interests of international justice for the party aggrieved by an erroneous decision to have the means of correcting it. Otherwise, the finality of proceedings might lead to “perpetuating judicial errors” and may in fact hinder the proper administration of justice’.Footnote ¹⁴⁵ In casu, the natural outcome of abolishing the practice of requesting the ICJ to review the ILOAT’s decision is that the latter’s judgments are final, and there is no procedure allowing the parties to challenge its judgments,Footnote ¹⁴⁶ as stipulated in Article VI(1) of the ILOAT Statute.Footnote ¹⁴⁷ They are thus binding on the parties, pursuant to the principle of res judicata.

Requesting to have the administrative tribunal’s decision reviewed by the ICJ had seemingly been well-sought by staff members: while the ILOAT does not have clear statistics, it was reported in 1994 that 92 applications had been made from staff members to UNAT.Footnote ¹⁴⁸ However, the Committee on Applications for Review of Administrative Tribunal Judgments provided for a filtering mechanism, resulting in only three being referred to by the Court.Footnote ¹⁴⁹ As the Court had made clear that its task was that of a judicial review and not an appeal, it could be argued that judicial review is typically discretionary in its nature and not a right of the individual, contrary to an appeal. Despite this, removing this possibility for staff members could arguably interfere with certain general principles of law and procedural guarantees to which they are entitled, such as the right to effective remedy and the guarantee of due process.Footnote ¹⁵⁰

Notwithstanding these reasons in support of maintaining this procedure of review of administrative decisions by the Court, the structural and internal adversities that arose when the Court was faced with such cases were manifest. The structural adversities included the management of what were fundamentally contentious cases under the auspices of the advisory function between two non-state actors, and the ensuing complications. The internal adversities included whether it was appropriate to rule on questions of international administrative law, whether to review the merits of the administrative tribunal’s decision, and most importantly, the multiple ramifications from the inequality between the parties, in written and oral proceedings.Footnote ¹⁵¹ The problems with respect to the inequality of the parties fundamentally stemmed from the fact that individuals have no locus standi to the Court. This was the source of inherent inequality of the parties in the entire review system.Footnote ¹⁵²

It seems unwarranted to dismantle the Court’s Statute for a type of case that only reached the Court’s docket on five occasions. The Court was ultimately not intended to address matters between individuals and staff members. History supports this: during the meeting of the Washington Committee of Jurists in 1945, the Venezuelan delegation proposed that the Court ‘should be able to set itself up as a court of appeal for questions coming in first instance under the jurisdiction of other international administrative courts which may be created’.Footnote ¹⁵³ This amendment was ultimately rejected,Footnote ¹⁵⁴ and Judge Córdova argued in his dissenting opinion of 1956 that this stands as clear evidence that the drafters of the Statute did not envision this function for the Court.Footnote ¹⁵⁵ Venezuela’s vision nonetheless came to fruition, due to international organisations delegating the Court with a function that went beyond the parameters of its own Statute. Fortunately, the terms of the Statute were broad enough to permit the Court to give advisory opinions akin to judicial review.Footnote ¹⁵⁶ However, the Court made it clear in 2012 that it was uncomfortable with such a procedure, prompting the ILO to discontinue it.Footnote ¹⁵⁷

The Court was correct to question ‘whether the system established in 1946 meets the present‑day principle of equality of access to courts and tribunals’; it most certainly did not. The Court was also right in stating that it was ‘not in a position to reform this system’.

But did the Court ‘attempt to ensure, so far as possible, that there is equality in the proceedings before it’?Footnote ¹⁵⁸ This chapter has argued that it did not. Articles 34(1) and 66(2) carry the unfortunate promise that the parties would have never truly been equal in an absolute sense. Due to the wording of the Statute, the equality of access will persist, despite any adaptations made with regard to the equality of arms. Yet, this chapter aimed to demonstrate that there were other potential solutions the Court did not consider to address the inequality of arms. Beyond the measures already taken, additional possibilities existed to adapt to the circumstances and narrow the inequality gap as much as possible. The Court, master of its own procedure, had the ability to implement these measures, which would have reflected a wider interpretation of the good administration of justice.

The short-lived practice of reviewing administrative tribunals’ decisions was a robust and remarkable reminder that the Court is consistently faced with issues concerning individuals. Through challenges such as this one, it was invited to question whether the modest degree to which individuals participate in proceedings before it is appropriate. The system of reviewing decisions of UN administrative tribunals, according to a former UN Secretary-General, was ‘not established primarily for the purpose of giving applications, or even executive heads, another level of appeal (…) its purpose was to enable States to challenge judgments which they considered were for some reason as unacceptable (…)’.Footnote ¹⁵⁹ The entire procedure was designed to grant more rights to states, rather than to individuals. Regardless of why this system was established, it was ultimately dismantled due to the consistent violation of the individual’s procedural rights as a key stakeholder in the process.Footnote ¹⁶⁰ This alone highlights the discrepancy between the increasing presence, relevance, and needs of individuals in international law and the Court’s infrastructure. Through these types of advisory proceedings, it was proven that the Court’s exercise of its procedural mechanisms does not copiously live up to required standards in today’s international legal system.

Part I explored the extent to which individuals are integrated in the proceedings of the Court. It looked beyond contentious disputes concerning a state litigant’s compliance with a multilateral human rights treaty, focusing instead on other thematic contexts in contentious and advisory proceedings where individuals are at the centre of the case. Explaining how historically the individual fell short of being granted locus standi (Chapter 1), it turned to diplomatic protection proceedings (Chapter 2), advisory proceedings (Chapter 3) and the involvement of individuals in advisory proceedings regarding the review of the decisions of administrative tribunals (Chapter 4). Each chapter emphasised the gap between the degree to which the individual is in focus, on the one hand, and the degree to which they are procedurally included, on the other hand. In brief, the individual is procedurally involved in such contexts to a minor extent. I offer some reflections on the reasons for this.

5.1 A Culture of State-Centrism

The key reason explaining this approach is the culture of state-centrism developed by both state litigants and the Court. Professor Susan Marks has argued that the term ‘state-centrism’ may take three forms. First, it is the technique by, and reason for which, international law is disregarded by states.Footnote ¹ Second, it may reflect an undue preoccupation with states as opposed to non-state actors.Footnote ² Third, a state-centric approach is one that places ‘too much emphasis on state sovereignty in the validation and application of international legal norms’.Footnote ³

The preoccupation with states as opposed to non-state actors – such as individuals – is visible through the observations made in Part I. Indeed, states and non-state actors are classically distinguished by their legal status, capabilities, and resources on the international plane. The drafting of Article 34(1) would unknowingly define the milieu of the Peace Palace as one exclusively reserved for sovereign states and suggest that individuals have no place within those walls. At least partially because of this, the attitude of states has been set in stone: they are attached to their sovereignty and quite resistant to any type of potential interference with it.Footnote ⁴

Although two viable options recurring in Part I were oral witness testimony or the inclusion of an individual in a government’s delegation, these are far from being exploited by state litigants. For instance, in the context of diplomatic protection, despite the individual’s central role in reality, state litigants limit their involvement to providing evidence for written pleadings. Yet, in such instances, the injured individuals could stand as witnesses or make statements as part of the states’ delegation.

The relationship between states and non-state actors is more intertwined than the dichotomy at the World Court would suggest. Indeed, Marks reflects that there is a tendency to consider the state as if they ‘had a reality and an agency all of their own’, failing to acknowledge the extent to which states are already present within the other, and vice versa.Footnote ⁵ However, this dichotomy is maintained in the Court’s culture not only due to state litigants’ choices but also due to the Court’s approach to its procedural mechanisms (Section 5.2) and fears (Section 5.3).

5.2 A Passive Approach to Procedural Mechanisms

Article 30 of the ICJ Statute confirms that it ‘shall frame rules of carrying out its functions. In particular, it shall lay down rules of procedure’.Footnote ⁶ The freedom to determine its own procedural mechanisms was deliberately left to the Court by its Statute’s drafters.Footnote ⁷ Furthermore, it has confirmed that state litigants are ‘under a duty to comply with all decisions as to procedure, which [it] is specifically empowered to make’.Footnote ⁸

The Court therefore has ample power to manage evidence, in particular oral witness evidence in contentious proceedings involving individuals – whether it is one key injured individual in the context of diplomatic protection or an entire community. Indeed, both the state litigants and the Court are empowered to request witnesses. Furthermore, the Court has the power to analogously apply Articles 48–52 of its Statute where it feels that this is necessary to acquire evidence from private persons in advisory proceedings. In such proceedings, where the Court reviewed decisions of certain administrative tribunals on disputes between certain international organisations and their injured staff members, the Court had the power to guarantee the equality of parties and place the staff member on par with the international organisation in a number of innovative ways that were not fully exploited. The Court is also responsible for allowing amicus curiae submissions in advisory proceedings, and even in contentious ones.

Yet, in a myriad of contexts, the Court does not sufficiently exploit the procedural mechanisms at its disposal. It has very rarely used its powers to request additional documents, appoint experts or witnesses, or make site visits.Footnote ⁹ This has been criticised by many judges in their dissenting opinions.Footnote ¹⁰ The Court’s ‘hands-off’ attitude is likely due to its underlying belief that its primary function is the respect of states’ wishes and that its own powers to manage its procedural mechanisms are secondary. This finds its roots in the principle of sovereignty: states that have chosen the Court as a means to resolve their disputes have the prerogatives to frame the case as they wish, to present the evidence that they wish to present, and to decide how they aspire to have the proceedings handled. They may have perhaps even chosen the Court as the appropriate venue to settle their dispute because of their satisfaction with the Court’s procedural framework and their ability to ‘steer the wheel’ in this sense, during proceedings. This approach therefore contributes to the culture of state-centrism. The Court’s deference to states finds grounds in states’ roles as the sole clients and funders of the Court (through the General Assembly).

However, a more proactive Court that still yields to states’ demands is a viable prospect. Typically, the consultations held between governments and the President and the Registry before the course of proceedings – and the ‘Notes for Parties’ sent from the Registrar with any particular instructions and information – are opportune moments for the Court to prompt states to consider involving individuals through witness testimony. This is more straightforward than amending Practice Directions, which may easily be ignored.Footnote ¹¹ Furthermore, in the scope of communication between parties and the Court, the latter may organise communication with the parties at the initiation of proceedings before written pleadings have been submitted. This approach allows the Court to better prepare itself if it anticipates that witnesses will be summoned.Footnote ¹²

The Court has taken great strides to adapt its procedural mechanisms to its needs since its inception.Footnote ¹³ Anything done in favour of integrating individuals would merely be a continuation of the procedural adaptations in other areas that it has seamlessly made over the years.Footnote ¹⁴ In the words of international lawyer Wilfred Jenks, ‘[W]e must not underestimate the procedural resources specifically provided for in the Statute and already used, the procedural innovations and developments not specifically provided for in the Statute which have proved possible within its terms. Nor must we belittle the extent or effectiveness of the remedies available by the existing procedures’.Footnote ¹⁵

5.3 Fears

The Court’s culture of state-centrism can also be attributed to several concerns it holds. Firstly, it fears being overwhelmed with evidence and information if individuals were more fully integrated into its procedures. Indeed, initiating the inclusion of witnesses, accepting states’ demands for potentially large amounts of witnesses or accepting amicus curiae briefs could strain the Court’s judicial economy, the ‘efficient management of the judicial office as regards human, financial or instrumental resources’.Footnote ¹⁶ This reflects the Court’s concern to avoid unnecessary effort or expense.Footnote ¹⁷ This fear of floodgates is amplified by the ‘thin end of the wedge’ phenomenon, where one seemingly insignificant procedural action will set a precedent with potentially negative repercussions. However, this can be controlled with a more active approach to procedural mechanisms, as discussed earlier.

A second fear that the Court may have is the fear of favour. Chapter 2 discussed the growing practice of evidenced videotaped statements from victims, seen in Chagos and DRC v Uganda and attempted in Jadhav. The procedural inclusion of individuals may be perceived as a tool of courtroom persuasion. Indeed, Professor Philippe Sands described Elysé’s intervention as a statement of impactFootnote ¹⁸ and that she was there to ‘tell her story (…) in the hope that her account might encourage the fourteen judges in a direction that could allow her to return to the place of her birth’.Footnote ¹⁹ Courtroom persuasion stems from the common law tradition, where the Aristotelian pathos device is employed to engage sympathy and therefore persuade decision-makers. Judges – particularly those from a civil law background – may fear that considering such statements would detract from their task of applying the law without concern for other non-legal considerations, which will be discussed in more depth in Part II.

This culture of state-centrism has been reinforced by two key concerns: preserving both the Court’s uniqueness and its tradition. First, the Court is distinguished on the international stage by its procedural exclusion of individuals. Elsewhere, individuals have infiltrated international judicial fora in several ways. They are parties before human rights and international criminal courts, and may be parties in investor–state arbitration,Footnote ²⁰ before the Iran–US Claims TribunalFootnote ²¹ or before the International Tribunal for the Law of the Sea (ITLOS)’s Seabed Disputes Chamber.Footnote ²² Thus, the exclusion of individuals may stem from a desire to preserve the Court’s unique character. Second, the Court’s adherence to its traditions has upheld its state-centric approach. Like any court, whether domestic or international, the World Court is deeply rooted in its traditions. One ICJ judge has described that there is ‘almost a pride in maintaining the rigidity and maintaining the way things were done 70 years ago’.Footnote ²³

However, procedural inclusion of individuals through the avenues discussed in Part I would not affect the Court’s unique character, as its restriction of standing to states would remain unchanged. In some contexts, such as when reviewing decisions of certain administrative tribunals (Chapter 4), ensuring the equality of parties would reflect an application of the good administration of justice. In this sense, tradition cannot always be said to be helpful and, in the words of a judge, ‘if [the Court] changed or modernised a bit, that wouldn’t hurt really’.Footnote ²⁴

However, the culture of state-centrism may be challenged by a subtle shift in recent practice, where state litigants have arranged for relevant individuals to attend hearings, even if they did not actively participate. For example, a delegation of Chagossians were present during the Chagos oral hearings.Footnote ²⁵ Similarly, during the oral hearings in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) provisional measures phase,Footnote ²⁶ H.E. Mr. Abubacarr Tambadou, then Attorney General and Minister of Justice of The Gambia, addressed the Court, stating, ‘I am also pleased that The Gambia’s delegation today includes members of the Rohingya community, including those who have travelled from the refugee camps in Bangladesh’.Footnote ²⁷ Should this practice continue by state litigants, it might encourage more inclusion taking other forms in future.

Beyond state litigants, the Court could also take proactive measures to procedurally integrate individuals, as this would enhance its legitimacy from the perspective of social idealism. Each chapter in Part I demonstrated that the absence of individuals in proceedings where they are directly impacted may have repercussions on the Court’s legitimacy, insofar as one or a combination of these standards are strained.

The Court’s legitimacy may also stem from an ability to adapt to developments in the environment in which it operates. As discussed in the Introduction, the international legal order is now characterised by its multiplicity of actors. An inability to adapt to this reinforces a perception that the Court is isolated and disconnected from reality. It can be argued that legitimacy is only in the eyes of the Court’s constituencies: UN organs, state litigants, and the wider international community with an ‘interest in the proper application and development of international law’.Footnote ²⁸ From the perspective of social idealism, the wider international community includes not only states but also individuals.

5.4 A Word on Transparency

Part I focused on the integration of individuals in certain proceedings before the Court. However, another means to complement – or compensate for the lack of – such practices is by enhancing transparency. Transparency and participation should not be confused; an institution may be transparent without enabling or enhancing participation of actors other than states. Transparency has become an increasing concern in international adjudication due to the interpenetration of human rights and the growing role of the individual in the international legal system.

Overall, the Court has good practices in transparency – especially compared to other inter-state adjudicatory bodies, such as at the World Trade Organisation (WTO).Footnote ²⁹ Written parties’ submissions are not disclosed while the case is pending,Footnote ³⁰ meaning that neither state litigant may disclose pleadings to their citizens during proceedings.Footnote ³¹ However, they are made public on or after oral proceedings with the parties’ consent.Footnote ³² Oral hearings are made open to the public unless the Court or both parties decide otherwiseFootnote ³³ and are streamed live on the internet, thereby allowing concerned individuals to follow them wherever they are in the world.Footnote ³⁴ External media crews may not record the entire hearings but are permitted during the first minutes of oral hearings.Footnote ³⁵ Deliberations at the Court are highly confidential, as is the composition of the drafting committee, which is a common feature in all national and international courts.Footnote ³⁶

Yet, in view of further enhancing transparency towards procedurally excluded individuals, the Court could enhance its public relations efforts by explaining its judgments to broader audiences. For example, the Registrar could answer questions of the press after the public delivery of a judgment.Footnote ³⁷ Former Registrar Eduardo Valencia-Ospina, however, opposed this suggestion, arguing in 1997 that more emphasis should be put on the needs and interests of the parties and that public interest cases are less intense than criminal cases brought before other courts.Footnote ³⁸

This statement does seem accurate or reflective of the Court’s current docket. Communities have been known to organise separate events alongside oral hearings to explain the significance of the dispute for their lives.Footnote ³⁹ There are notable public interest dimensions in many cases on the Court’s docket, and it has been documented that many cases are instigated by non-state actors.Footnote ⁴⁰ Enhancing transparency practices in this direction could compensate for the absence of the individual in certain proceedings before the Court.

Bringing Part I to a close, the monograph turns to Part II, which addresses the degree to which the individual is considered in the practice of the World Court.