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Of Judgments at the International Court of Justice

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Of Judgments at the International Court of Justice Pace International Law Review Volume 3 Issue 1 Article 2 September 1991 The "Manufacture" of Judgments at the International Court of Justice Mohammed Bedjaoui Follow this and additional works at: https://digitalcommons.pace.edu/pilr Recommended Citation Mohammed Bedjaoui, The "Manufacture" of Judgments at the International Court of Justice, 3 Pace Y.B. Int'l L. 29 (1991) Available at: https://digitalcommons.pace.edu/pilr/vol3/iss1/2 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace International Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. THE "MANUFACTURE" OF JUDGMENTS AT THE INTERNATIONAL COURT OF JUSTICEt Mohammed Bedjaouitt INTRODUCTION The functions of a Judge at the International Court of Jus- tice may be summed up in four verbs: to read, to listen, to delib- erate and to decide. It is, you see, not too complicated a profes- sion and yet it may be simplified still more by casting some light upon the most mysterious of the four verbs: deliberate. The res- ervation of this word to just one of the four functions should not however mislead the reader into considering that there is any- thing less than deliberate in the others. On the contrary, con- scious care attends every stage in the impressively lengthy pe- riod of gestation through which any judgment (or advisory opinion) of the Court must pass, and the deliberation properly so-called comes only towards the end. Hence, before describing the various phases of that deliberation, I shall have to perform a lengthy prelude on the theme of the adversary procedure. Some idea has to be given of the mass of materials which, in the course of the proceedings, accumulate in the depot known as the case file, pending their transfer into the processing plant, i.e. the de- liberation. These materials derive from various sources and ar- t The author wishes warmly to thank Mr. B. Noble, Deputy Registrar of the International Court of Justice, for his precious assistance in the preparation of this article. EDITOR'S NOTE: At the request of the author, the text of this article remains unedited. With great deference to the esteemed author, we respect and preserve the delicate shades of meaning entrusted to translation by Mr. Noble. tt Member of the International Court of Justice, 1982-present; President of the Chamber formed to deal with the case concerning the Frontier Dispute (Burkina Fasol Republic of Mali). Doctor of Law. Diploma of the Institute of Political Studies, Univer- sity of Grenoble, France. Minister of Justice and Keeper of the Seals (1964-1970). Alge- rian Ambassador to France (1970-1979). Permanent delegate of Algeria to Unesco (1971- 1979). Ambassador and Permanent Representative of Algeria to the United Nations in New York (1979-1982). Member of the International Law Commission (1965-1982). 1 PACE Y.B. INT'L L. [Vol. 3:29 rive by stages. I. THE FIRST STAGE: INSTITUTING THE PROCEEDING The first stage consists in the institution of the contentious proceedings,1 whether through an application by one state against another state or states, or through the filing of a "special agreement"2 concluded between two or more states for the pur- pose of seising the Court of a dispute between them. The equivalent document in an advisory case, namely the letter by which certain organs of the United Nations or international or- ganizations (mostly specialized agencies) may seek the opinion of the Court on legal questions, is known as a "request." How- ever, in order to avoid overloading this article, the advisory pro- cedure will here be left on one side save for the following two remarks: First, with a few exceptions (notably the Namibia3 case of 1970-71 and the Western Sahara4 case of 1974-75), advisory proceedings do not feature as great a volume of documentation as contentious cases; second, whatever differences between con- tentious and advisory procedure exist during the written and oral presentation of the contentions to be examined, the deliber- ation itself follows a similar pattern. The meaning of the term "special agreement" in conten- tious proceedings may require a word of comment. Known as a "compromis" in French, a special agreement is a treaty con- cluded between the states concerned and as such must, in accor- dance with the Charter of the United Nations, be registered with the Secretary-General in order to qualify for invocation before the Court.5 Under such a treaty the states concerned agree to ' CONTENTIOUS PROCEEDING, "A judicial proceeding not merely ex parte in its char- acter, but comprising attack and defense as between opposing parties. BLACK'S LAW DICTIONARY 319 (6th Ed. 1990). ' See infra p. 3. ' Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16. ' Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (1974-75). U.N. CHARTER, Art. 102. This article specifically provides: 1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it. 2. No party to any such treaty or international agreement which has not been https://digitalcommons.pace.edu/pilr/vol3/iss1/2 2 1991] "MANUFACTURE" OF JUDGMENTS submit a legal dispute to the Court. Such a special agreement bears a close resemblance to the sort of compromis which pro- vides a basis for arbitration,6 but there is an important differ- ence in that the parties, unless they explicitly state otherwise, pledge their acceptance of a settlement entirely based upon the rules of international law whose sources are listed in Article 38 of the Statute of the Court:7 conventional or customary law, gen- eral principles of law and, where necessary, case-law and learned authority. In theory, signatories may number more than two, and in this respect one may instance the North Sea Continental Shelp cases, referred to the Court under a tripartite protocol between Denmark, the Federal Republic of Germany and the Netherlands which, in effect, unified two similar special agree- ments concluded between the Federal Republic of Germany and each of its respective North Sea neighbours. By the way, ever since those celebrated cases the institution of proceedings by special agreement has become the most fre- quent method of submitting cases to the Court.' This welcome registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations. Id. , LEGAL SETTLEMENT: Compromis A preliminary agreement by the parties to a dispute which establishes the terms under which the dispute will be arbitrated. The compromis specifies the jurisdic- tional limits of the arbitral tribunal by (1) defining the subject of the dispute; (2) setting forth the principles that are to guide the tribunal; and (3) establishing the rules of procedure to be followed in deciding the case. J.C. PLANO & R. OLTON, THE INTERNATIONAL RELATIONS DICTIONARY 297 (4th ed. 1988). Statute of' the International Court of Justice, Art. 38 (1945); 59 Stat. 1055, 1066; T.S. 993 (1945). Article 38 specifically provides: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions in the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto. Id. , North Sea Continental Shelf Cases, (F.R.G./Den.; F.R.G./Neth.), 1969 I.C.J. 4. ' Article 36 delineates the jurisdiction of the Court and provides: 1. The jurisdiction of the Court comprises all cases which the parties refer to it 3 PACE Y.B. INT'L L. [Vol. 3:29 development has to a large extent made up for the disappointing performance of the "optional clause" system"0 that had been de- vised with a view to encouraging states to accept the Court's ju- risdiction in advance in all cases where they were proceeded against, or in all those of a particular category or categories. It is no secret that this system has not lived up to expecta- tions and has given rise to many controversies as to the Court's jurisdiction, whereas no challenge can arise when a dispute is referred to the Court by special agreement. The document instituting proceedings, whether an applica- tion, a special agreement or a request for advisory opinion, is normally a short one and, in the case of an application, is gener- ally confined to an outline of the acts complained of and a re- quest that they be condemned accompanied by calls for restitu- tion or compensation. In such a case, the Court terms the plaintiff the Applicant and the defendant state the Respondent; and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a.
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