(2000J Australian International Law Journal

THE INTERNATIONAL COURT OF JUSTICE

THE COURT IN 2000 Snapshot

At present, the Court is composed as follows: Gilbert Guillaume P; Shi Jiuyong V-P; Shigeru Oda, Mohammed Bedjaoui, Raymond Ranjeva, GCza Herczegh, Carl-August Fleischhauer, Abdul G. Koroma, Vladlen S Vereshchetin, Rosalyn Higgins, Gonzalo Parra-Aranguren, Pieter H Kooijmans, Francisco Rezek, Awn Shawkat Al-Khasawneh and Thomas Buergenthal JJ. On 7 February 2000, the Court elected Guillaume J as President and Shi J as Vice-President for a three-year term. Following the resignation of Stephen M Schwebel J effective from 29 February 2000, the General Assembly and Security Council on 2 March 2000 elected Mr Thomas Buergenthal for the remainder of Schwebel J's term, which will expire on 5 February 2006. On 10 February 2000, the Court elected Mr Philippe Couvreur as Registrar of the Court for a seven-year term following the resignation of Mr Eduardo Valencia-Ospina. The Deputy-Registrar is Mr Jean- Jacques Arnaldez. From January - November 2000, the Court held 29 public sessions and a large number of private, administrative and judicial meetings. During the same period as above, the Court inter alia rendered a Judgment on the merits in Case Concerning Kasikili/Sedudu Island (BotswandNamibia) and a Judgment on its jurisdiction in the Case Concerning Aerial Incident of 10 August 1999 (Pakistan v India). It made an Order indicating provisional measures in the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda). On 31 July 2000, 23 cases remained on the Court's docket and they come fiom all over the world. Five of them are between African States, two between Asian States, ten between European States, one between Latin American States, and five are of an intercontinental character. The hearings for Qatar v Bahrain, the longest running case in the Court, began in 1991 and were finalised in June 2000 after five weeks of oral argument. The Court has retired to prepare its judgment in accordance with its internal judicial practice. The Court's budget for 2000 is approximately US$10 million, which [2000/ Australian International Law Journal

represents in terms of the overall United Nations budget a percentage lower than that of 1946, whilst the Court's activities have increased exponentially since then. ' On 3 1 July 2000, there were 188 Parties to the Court's Statute, made up of the Member States of the United Nations and Switzerland. Sixty-two States have now made declarations (many with reservations) recognising the compulsory jurisdiction of the Court under Article 36(2) and (5) of the Court's Statute. They are Australia, Austria, Barbados, Belgium, Botswana, Bulgaria, Cambodia, Cameroon, Canada, Colombia, Costa Rica, Cyprus, the Congo, Denmark, Dominican Republic, Egypt, Estonia, Finland, Gambia, Georgia, Greece, Guinea, Guinea-Bissau, Haiti, Honduras, Hungary, India, Japan, Kenya, Liberia, Liechtenstein, Luxembourg, Madagascar, Malawi, Malta, Mauritius, Mexico, Nauru, Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Panama, Paraguay, the Philippines, Poland, Portugal, Senegal, Somalia, Spain, Sudan, Suriname, Swaziland, Sweden, Switzerland, Togo, Uganda, United Kingdom, Uruguay and ~u~oslavia.~ Currently, about 100 such multilateral conventions and 160 such bilateral conventions are in force. In addition, the Court's jurisdiction extends to treaties or conventions in force providing for reference to the Permanent Court of International ~ustice.~ In addition to the United Nations (General Assembly, Security Council, Economic and Social Council, Trusteeship Council, Interim Committee of the General Assembly), the following organisations are at present authorised to request advisory opinions of the Court on legal questions arising within the scope of their activities: International Labour Organisation; Food and Agriculture Organisation; United Nations Educational, Scientific and Cultural Organisation; International Civil Aviation Organisation; World Health Organisation; World Bank; International Finance Corporation; International Development Associa- tion; International Monetary Fund; International Telecommunication Union; World Meteorological Organisation; International Maritime

I Contrast the 2000 budget for the Criminal Tribunal for the former Yugoslavia, which is almost US$100 million. "he texts of the declarations filed by the above States will appear in the next edition of the International Court of Justice Yearbook in Chapter IV, Section I1 and the lists of treaties and conventions that provide for the jurisdiction of the Court will appear in Section 111. ' See Article 37 of the Statute of the International Court of Justice. [2000] Australian International Law Journal

Organisation; World Intellectual Property Organisation; International Fund for Agricultural Development; United Nations Industrial Development Organisation; and International Atomic Energy Agency.

New President - Gilbert Guillaume

Guillaume J became the new President of the International Court on 7 February 2000. He has been a Member of the Court since 14 September 1987 and was re-elected for another term beginning on 6 February 1991. He was born in Bois-Colombes, France on 4 December 1930 and his legal education began with a Licence in Law from the University of Paris. He has held the position of Councillor of State from 1981-1 996 and several other distinguished positions including membership of the Permanent Court of Arbitration (since 1980). He is President of the French Branch of the International Law Association and Vice-President of the French Society for International Law. He is author of numerous works and articles and has delivered a course on "Terrorism and International Law" at The Hague Academy of International Law.

At a press conference on 15 February 2000, Guillaume P stated:

It is now one week since I was elected President of the International Court of Justice and it has been my wish to make contact with you rapidly in order to talk to you about the Court. It seemed to me both appropriate and agreeable to do so in the very chamber in which the Court holds its deliberations. International justice needs to be transparent and our meeting here does, I think, bear witness to that.

As you know, the Court, the principal judicial organ of the United Nations, is composed of 15 judges elected for nine years, one third of whom are eligible for re-election every three years. A partial re-election of this kind has just taken place and it has been our pleasure to welcome among our number a new judge, our Jordanian colleague Mr. Al-Khasawneh. The new Court took ofice on 6 February, the anniversary of the date on which our now distant predecessors did so in 1946.

The Court elected me President on 7 February for three years and on the same day it elected our Chinese colleague, Judge Shi, as Vice- President. It then appointed a new Registrar, Mr. Philippe Couvreur. [2000] Australian International Law Journal

And finally, it elected its chambers and committees. These in turn appointed their presidents and chairpersons. The Court is therefore ready now to start work afresh.

In the years to come it will be faced with a formidable task: whereas in the 1970s the floor of the Court was almost empty, today its docket contains 24 cases. At first sight this figure seems negligible when compared with the number of cases pending in national courts or even in the European Court of Human Rights and the Court of Justice of the European Communities.

However, we must remember that the International Court of Justice is an institution of a completely different kind. It gives advisory opinions to certain international organizations. It is the forum of first and last resort for such disputes as States agree to bring before it - disputes to which generally they attach great importance. Very often they wish to demonstrate to public opinion in their countries that they have done everyhng in their power to win their case, and have presented every possible argument. The documentation submitted to the Court is therefore complex and voluminous; in the year 2000, for example, we are required to decide a territorial and maritime dispute between Qatar and Bahrain after an exchange of written pleadings amounting to several thousand pages and five weeks of hearings.

The 24 cases at present on our docket come from every continent. They also differ enormously in content. In some cases - those between Cameroon and Nigeria, Indonesia and Malaysia, and Qatar and Bahrain - the disputes to be settled are territorial and maritime. In others the disputes have a totally different dimension. Bosnia-Herzegovina and Croatia, for example, accuse Yugoslavia of having violated the United Nations Genocide Convention. Yugoslavia in turn makes comparable charges against Bosnia-Herzegovina. And it also accuses eight member countries of NATO of using unlawful force in Kosovo. Likewise the Democratic Republic of the Congo has brought charges of aggression against Burundi, Uganda and Rwanda.

In the past the Court has sometimes been reproached for acting slowly. This complaint, and I wish to stress this, seems unjustified today. The Court can act speedily and often has ruled within days on applications for provisional measures submitted by States. It is true that in other [2000] Australian International Law Journal circumstances several years of preparation have been necessary before judgment could be handed down. But these delays have not been caused by excessively lengthy deliberations; in most if not all cases they have resulted from the parties' wishes. In some cases the parties have asked the Court for long time limits in which to file their memorials, as in the Lockerbie proceedings brought by Libya against the United States and the United Kingdom. Parties have even asked the Court to suspend proceedings while they pursue parallel negotiations.

It is clearly for the Court to determine time limits for filing memorials. But it cannot treat the States parties before it in the same way as national courts treat their parties and in particular it cannot impose short time limits on parties where they agree in requesting longer ones.

The unfortunate fact remains that whereas hold-ups were few in the past, there is a risk of many more in the future. That is the foremost challenge I shall face during my term of office as President, since 12 cases will probably be ready for hearing by the end of 2000, with at least two more in the spring of 2001. In order to handle these cases within a reasonable time the Court will need to have greater resources and to adapt its methods of work and procedures.

At present the Court's budget is approximately US$10 million per annum and its Registry employs a total of 62 persons (in all staff categories). These are modest figures by comparison, for example, with those of the Criminal Tribunal for the Former Yugoslavia, with its prosecution service and registry, where the annual budget is in the region of US$100 million and which has a staff of more than 900 (nearly 500 of whom are in the registry itself). The Court cannot therefore operate in the future with such limited resources. It may need to seek additional resources next year. In any event it will need to submit a greatly increased budget to the General Assembly in 2001.

The Court must also continue to modernize. It has done a great deal in regard to computerization, including the creation of a bilingual website on the Internet. This and the mirror sites opened in Glasgow, New York and Paris receive 2,400 to 2,600 visits daily. An average of 18,000 documents are downloaded every day, ranging from the parties' memorials and the Court's judgments to press communiqu&s.The Court will continue its work in this area, since this is a particularly useful tool [2000] Australian International Law Journal

for providing information and taking action; and we were gratified at the recent tributes to our site, among them that of the Encyclopaedia Britannica.

Even though the length of a case depends largely on States, we shall need to improve our methods of work and in particular to invite parties to reduce the huge amount of documentation they submit to the Court. We shall also need to ensure that hearings do not last longer than necessary. We shall need to spend less time on our own deliberations wherever possible. As far as the Court's procedures are concerned, these are already under review by the Rules Committee, which will make proposals to the Court in the near future as regards witness evidence, counter-claims and preliminary objections.

Obviously I cannot, just eight days after my election, go into further details about the action I intend to take in the next few years, with the Court's agreement. I can assure you, however, that I shall begin this action and pursue it with full determination. In anticipation of doing so, I am ready to answer any questions which may come to your mind today and I shall endeavour to enlighten you in every possible way on the Court and its organization and operations.

On 26 October 2000, when Guillawne P addressed the General Assembly in New York to present the 1999-2000 Report of the Court, he launched a vigorous appeal to the United Nations General Assembly. He appealed for additional resources for the Court, a forum that is currently in greater demand than ever before. He warned:

I am thus obliged to sound the alarm before you today. In many countries, the judiciary presides in sumptuous historic monuments but at times lacks the financial resources necessary for its mission. That is the case of the International Court of Justice. It is for you to decide whether the Court, the principal judicial organ of the United Nations, is to die a slow death or whether you will give it the wherewithal to live. .. . The Court's financial and human resources are no longer sufficient for it to fulfil its task properly. If it does not receive the necessary resources, it will find itself obliged, beginning in 2001, to delay passing judgment in a number of cases that will be ready for decision. From 2002, those delays may well last several years in some cases. [2000] Australian International Law Journal

Guillaurne P stated that the Court planned to seek supplementary credits and a budget increase of about US$3 million per year for the next biennial period (2002-2003). This would increase its budget fiom US$20 million to slightly more than US$26 million and its staff fiom 61 to 99. He said:

The Court is well aware of the financial difficulties encountered by the United Nations. It has taken these into account in the past in limiting its requests. ...The current growth in litigation will however require much greater increases in staff. Unlike other United Nations organs, the Court cannot adapt its programs to its available resources. Its resources must be adjusted to meet the legitimate expectations of the States that turn to it.

He noted that during the period under review (1 August 1999 to 3 1 July 2000) the Court worked at a sustained pace and:

ruled in a dispute that had been submitted to it in May 1996 by Botswana and Namibia concerning the island of KasikiliISedudu; delivered a Judgment on its jurisdiction in a case filed in September 1999 by Pakistan against India as a result of the destruction of a Pakistani aircraft; indicated various provisional measures in a dispute opposing the Democratic Republic of the Congo to Uganda; and heard five weeks of oral argument in the case between Qatar and Bahrain.

He stated that the Court has been able to consider or commence its consideration of all cases that were ready for hearing. However, he added that the future appeared bleak:

Unfortunately, the coming months promise to be more difficult. Thus, while ten cases appeared on the Court's List in 1994 and 12 in 1998, we saw an increase to 25 at the end of 1999, a new record in the annals of international justice, and 24 remain on the docket today.

On the maintaining of cohesion in international law, he warned the General Assembly against the risks to the cohesiveness of international law raised by the proliferation of courts. He explained that this phenomenon led to: [2000] Australian International Law Journal

cases of overlapping jurisdiction, opening the way for applicant States to seek out those courts which they believe, rightly or wrongly, to be more amenable to their arguments ("forurn shopping"). [It] exacerbates the risk of conflicting judgments, as a given issue may be submitted to two courts at the same time and they may hand down inconsistent judgments. Finally, [it] gives rise to a serious risk of conflicting jurisprudence, as the same rule of law might be given different interpretations in different cases.

Anxious to uphold the cohesiveness of international law, Guillaume P made some proposals. First, he stated that: "the international legislator should, before creating a new court. ..ask itself whether the functions it intends to entrust to the court could not properly be fulfilled by an existing court". Secondly, he insisted on the need to create a dialogue among judicial bodies in order to help judges "realise the danger of fragmentation in the law". Thirdly, he pleaded in favour of more structured relations between international tribunals that could be encouraged to seek advisory opinions from the Court by way of the Security Council or the General Assembly.

On 3 1 October 2000, he addressed the Security Council at a private session on the relations between the Court and the Council, both principal organs of the United Nations. It was the first time ever that a President of the Court had addressed the Security Council.

New Vice-President - Shi Jiuyong

Shi J became Vice-President of the International Court on 7 February 2000, having been a Member since 6 February 1994. He was born in Zhejiang, China on 9 October 1926. He has an Arts degree in Government and Public Law fiom St John's University (Shanghai) and a Master's degree in International Law from Columbia University. He has held numerous distinguished positions in government and academia, including Professor of International Law, Foreign Affairs College, Beijing (1984-1993). He has acted as Legal Adviser to the Ministry of Foreign Affairs, People's Republic of China (1980-1993) and Chairman of the International Law Commission (1990). He has lectured widely on international law, on a range of topics that include the new international economic order, the protection of private foreign investment, the return of Hong Kong by Great Britain and international trade regulation. [2000] Australian International Law Journal

New Member - Thomas Buergenthal

On 2 March 2000, the United Nations elected Mr Thomas Buergenthal (United States) a Member of the Court with immediate effect. He succeeded Schwebel J, also from the United States, who resigned his position effective from 29 February 2000. Pursuant to Article 14 of the Court's Statute, Buerganthal J will hold office for the remainder of Schwebel J's term that expires on 5 February 2006. Buerganthal J is an internationally renowned human rights scholar and professor of international law. A prolific author, he has lectured widely including at The Hague Academy of International Law (1992). A Member of the Bar of New York, District of Columbia and the United States Supreme Court, he has held many distinguished positions and acted as Judge, Vice-President and President of the Inter-American Court of Human Rights (1979-1991). He has received numerous awards, the latest being the 1997 Goler T Butcher Medal for Excellence in Human Rights, American Society of International Law.

Chambers and Committees

The Judges of the Court elected the members of the Court's Chambers and Committees on 8 February 2000 in a private meeting.

(i) Chamber of Summary Procedure

Article 29 of the Court's Statute provides that to ensure a speedy dispatch of business the Court shall form annually a Chamber composed of five judges who, at the request of the parties, may hear and determine cases by summary procedure. Also, the Court elects two judges to this Chamber to replace judges who find it impossible to sit. Under the Rules of Court, the President and Vice-President are members of this Chamber ex oficio, while the other members and substitutes are elected. The Chamber of Summary Procedure is composed as follows:

Members Gilbert Guillaume P Shi Jiuyong VP Geza Herczegh J Abdul G Koroma J Gonzalo Parra-Aranguren J [2000] Australian International Law Journal

Substitute Members Rosalyn Higgins J Awn Shawkat Al-Khasawneh J

(ii) Chamber for Environmental Matters

Article 26(1) of the Court's Statute authorises the Court:

to form one or more chambers, composed of three or more judges as the Court may determine, for dealing with particular categories of cases; for example, labour cases and cases relating to transit and communications.

Cases are heard and determined by Chambers if the parties so request. The Chamber for Environmental Matters is the only Chamber established by the Court pursuant to this Article and demonstrates the Court's particular interest in environmental issues. The Chamber is currently composed of the following members elected for three years:

Gilbert Guillaume P Shi Jiuyong VP Mohammed Bedjaoui J Raymond Ranjeva J Geza Herczegh J Francisco Rezek J Awn Shawkat Al-Khasawneh J

(iii) Committees

The Court has six Committees to assist with committee matters. They held their first meetings in February 2000 and appointed the following Chairs:

Budgetary and Administrative Committee: Gilbert Guillaume P Rules Committee: Carl-August Fleischhauer J Relations Committee: Gonzalo Parra-Aranguren J Library Committee: Abdul G. Koroma J Committee on Computerization: Rosalyn Higgins J Committee on the Court's Museum: Pieter Kooijmans J [2000] Australian International Law Journal

Internal Judicial Practice of the Court

Pursuant to the Resolution on the Internal Judicial Practice of the Court in relation to a case before it, the following procedure on the Court's deliberations, except where otherwise provided, has been established:

Shortly after the oral hearings on the merits of the case, the Court holds a preliminary discussion, at which the President outlines the issues that require discussion and a decision by the Court. Each judge then prepares a written Note setting out hisher views on the case. Each Note is distributed to the other judges. A full deliberation is held afterwards, at the end of which, on the basis of the views expressed, a drafting committee is chosen by secret ballot. This committee consists of two judges holding the majority view of the Court, together with the President, if helshe shares that view. The draft text goes through two readings during which amendments submitted by the judges are considered. Meanwhile, judges who wish to do so may prepare a separate or dissenting opinion. The final vote is taken after adoption of the final text of the Judgment in the second reading.

Further, pursuant to a recent decision of the Court, declarations and separate and dissenting opinions appended to Orders of the Court are no longer presented sequentially, but feature for the first time in the order of precedence of their authors.