Anthony Aust. Handbook of International Law
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not find that the interests of non-parties (New Zealand and the United Kingdom), that might well be
affected by its judgment, were the ‘very subject matter’ of the case. In that event, a third party has
the option of intervening.
Intervention by third parties
Article 62 gives the Court discretion to allow a third state to intervene in proceedings if it has ‘an
interest of a legal nature which may be affected by the decision in the case’. Article 81(2) of the
Rules of Court requires the third state to specify the interest, the precise object of the intervention,
and any basis of jurisdiction that is claimed to exist between the third state and the parties, even
though this last stipulation is not required by Article 62. The legal interest must be specific to the
applicant, not merely general. So far, the Court has agreed to an intervention only twice. In 1990, in
the Land, Island and Maritime Frontiers case,
121
a Chamber allowed Nicaragua to intervene on one
of the five matters it had raised in respect of which it had demonstrated a legal interest that might be
affected by the judgment. In particular, and despite what the Rule says, the Chamber did not require
the applicant to show any jurisdictional link with the parties, such a link not being necessary since an
intervener does not become a party to the case. It has only the right to be heard, and in any event
decisions of the Court bind only the parties and in respect of the particular case (res judicata)
(Article 59). In 1999, the Court authorised Equatorial Guinea to intervene in the Land and Maritime
Boundary between Cameroon and Nigeria case,
122
but in 2001 it refused the request by the
Philippines to intervene in Sovereignty over Pulau Litigan and Pulau Sipadan (Indonesia/Malaysia),
as it had not demonstrated a legal interest.
123
The applicable law
Article 38(1) requires the Court to decide cases in accordance with international law, and lists the
sources.
124
Article 38(2) allows the Court to decide a case ex aequo et bono, if the parties agree.
This is not the same as
121. ICJ Reports (1990), p. 92; 97 ILR 154.
122. ICJ Reports (1999), p. 1029.
123. ICJ Reports (2001), p. 579.
124. See p. 5 above.
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following equitable principles, but involves compromise and conciliation. So far, the Court has not
been asked to decide on this basis.
125
Non-appearance
If one of the parties fails to appear before the Court,
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or to defend its case, the other party may call
upon the Court to decide in its favour (Article 53). When this has happened – five times so far – the
Court has always given judgment. But it must first be satisfied that it has jurisdiction (or not merely
prima facie jurisdiction), and that the claim is well founded in fact and law.
127
Provisional measures/interim measures of protection
128
The Statute uses the term ‘provisional measures’, but the two expressions are interchangeable. The
purpose of such measures is similar to an injunction in domestic law: to prevent the respondent from
doing something that might render any eventual judgment futile. Article 41 gives the Court power
‘to indicate any provisional measures which ought to be taken to preserve the respective rights of
either party’. The applicant may seek such measures urgently at the start of the proceedings, and they
can be granted so long as the Court considers that prima facie it has jurisdiction.
129
Even when there
is no clear need for such measures, given that the hearing of the next stage could be two or more
years away an applicant may find it a useful way of publicising its complaint early. Requests for
provisional measures have proliferated in recent years. In the ten years between 1974 and 1983, only
one request was made; in the twenty years between 1984 and 2004, there were fourteen, although
this partly reflects the increasing number of cases before the Court.
The Court is willing to order provisional measures if there is a real possibility that without them
the rights of the applicant would be affected. In Genocide Convention (Bosnia v. Serbia and
Montenegro), the Court ordered the respondent to take all measures within its power to prevent
125. See Brownlie, pp. 25–6 and 690.
126. ‘Appearance’ is the term for a formal act acknowledging the application made to the Court. The party
can still challenge the jurisdiction of the Court.
127. See further Collier and Lowe, Settlement of Disputes in International Law, Oxford, 1999, pp. 180–2.
128. See S. Rosenne, Provisional Measures in International Law, Oxford, 2004.
129. See Cameroon v. Nigeria, ICJ Reports (1996), p. 13 at p. 21, paras. 30–1.
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genocide.
130
In contrast, in Lockerbie, the Court (by eleven to five) declined to order provisional
measures. Libya had asked for them in order to prevent the United Kingdom and the United States
from seeking a Security Council resolution requiring Libya to surrender the two accused of the
sabotage and imposing sanctions until it did. Three days after the hearing of the application, and
before the Court could give its decision, the Security Council adopted just such a resolution
(Resolution 748 (1992)). The Court found that, in view of Articles 25 and 103 of the UN Charter, all
the parties were bound by the resolution and that prima facie it prevailed over the parties’
obligations under the Montreal Convention (the subject of the case), and so the rights claimed by
Libya under the Convention could not now be regarded as appropriate for protection.
131
Previously, it was not clear if the Court’s indication of interim measures was legally binding,
several having been ignored. In the La Grand case, the Court declared that it is binding.
132
This is
particularly important since Article 41(2) requires the Court to inform the Security Council of the
measures. Now that it is clear that they are binding, the Council may wish in suitable cases to adopt
its own measures to reinforce those ordered by the Court.
Judicial review?
The two Lockerbie cases
133
raised the issue of whether the Court could judicially review the
substance of decisions of the UN Security Council, in particular legally binding measures adopted
under Chapter , and hold them ultra vires the Charter. Although the cases had begun in February
1992, they were discontinued by consent in September 2003, and so the matter was never decided.
Nevertheless, despite the enormous amount of academic speculation,
134
all the indications are
against the Court having this power. Neither the Charter nor the Statute suggests that it has such a
power, and the San Francisco Conference rejected a Belgian proposal
130. ICJ Reports (1993), p. 3; ILM (1993) 888; 95 ILR 1.
131. ICJ Reports (1992), p. 3, at paras. 30–43; ILM (1992) 662; 94 ILR 478. The decision in the parallel
proceedings brought against the US was identical.
132. ICJ Reports (2001), p. 9, para. 101–2; ILM (2001) 1069; 118 ILR 37. See also (2002) ICLQ 449 and
(2002) Law Quarterly Review 35. Under Article 290 of the UN Convention on the Law of the Sea 1982,
provisional measures prescribed by ITLOS are clearly binding (see p. 325 above).
133. See n. 37 above.
134. See the references in Shaw, p. 1148, n. 322.
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to give such a power to the Court.
135
The Court has already denied that it has such a power.
136
If it
had the power, it could severely hamper the effectiveness of the Security Council; one would never
know if and when the substance of a resolution might be questioned before the Court.
Procedure and practice
The Registrar of the Court is the source of all knowledge on procedure and practice and should be
consulted at all important stages of the proceedings. But any state contemplating proceedings should
also study carefully the Court’s Statute, Rules of Court (which set out the procedure in detail) and,
most importantly, the current Practice Directions.
137
In recent years, the Court has tightened its
procedure and practice to deal with the inordinate length of many written and oral pleading, and so
speed up its work.
The applicant must lodge with the Registrar a concise written application outlining the facts and
the legal basis for the proceedings. A joint application is made if the case comes by means of a
compromis. The parties must each appoint Agents. In practice, the Agent is often more of a formal
figure, the day-to-day running of the case being done by the deputy-agent, and the pleadings often
being drafted by outside counsel.
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(The international bar has a coterie of mainly Anglophone and
Francophone international jurists who appear in most of the cases.) The applicant will then submit a
memorial, to which the respondent responds with a counter-memorial. These are followed by a reply
and a rejoinder. But, preliminary objections to the jurisdiction or admissibility are frequently raised
by the respondent following receipt of the applicant’s memorial, and can be lodged at any time
before the filing of the counter-memorial. After receiving the response of the applicant, the Court
will
135. France, the Soviet Union, the UK and the US were all opposed. See Doc. 2, G/7(k)(l), 3 UNCIO
Doc. 335, 336 (1945); Doc. 433, /2/15, 12 UNCIO, Docs. 47 (1945), at p. 49 and Doc. 498, /2/19, 12
UNCIO, Docs. 65 (1945), at pp. 65–6.
136. Certain Expenses, ICJ Reports (1962), p. 5; 34 ILR 281; and Namibia, ICJ Reports (1971), p. 6; 49
ILR 2. Both were advisory proceedings where an UNSC resolution was in issue, so suggesting that there
would be no grounds for a power of judicial review in contentious proceedings.
137. All this material, judgments, and much else about the Tribunal, are on the Court’s excellent website,
www.icj-cij.org, under ‘Basic Documents’. On working methods, see D. Bowett (ed.), The International
Court of Justice: Process, Practice and Procedure, London, 1997; and R. Higgins, ‘Running a Tight
Courtroom’ (2001) ICLQ 123–32.
138. See also D. Bowett, ibid., pp. 12–18.
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hear oral arguments on the preliminary objections and take a decision, although sometimes it will
leave those oral arguments for the merits stage. Although simultaneous written pleadings may
appear to save time, the procedure is generally not efficient, as each side has to anticipate as best it
can the arguments of the other, and so another round of pleadings is usually necessary anyway.
Although simultaneous written pleadings have been used in proceedings brought under a
compromis, the Court strongly discourages them in all cases.
Oral pleadings will be held on the merits. Unless there is oral evidence (not usual), the hearings
consist of set speeches. It is very rare for any of the judges to ask a question during the oral
pleadings. Any questions are generally read out by the judges only at the completion of oral
arguments, the parties being then given a couple of weeks to reply in writing. Judgment is given at a
further public hearing. Each judge can, and often does, also make a separate declaration or give a
separate concurring or dissenting opinion.
The official languages of the Court are English and French, and each party can use whichever
language it prefers. The Court can, at the request of a party, authorise the use of another language
(Article 39), but any text in that language must be accompanied by a translation into English or
French. If oral pleadings or evidence are given in an unofficial language, the party concerned must
arrange, at its own expense, for interpretation into one of the two official languages.
Judgments
Effect, interpretation and revision
Article 60 provides that a judgment of the Court is ‘final and without appeal’. If there is a dispute
between the parties as to its meaning, either can ask the Court to construe it, but it will only do so in
respect of questions decided in the judgment.
139
It will revise the judgment only if there is a new
fact that was not discoverable at the time of the case, and is of such a nature as to be a decisive
factor that would mean revision of at least part of the judgment.
140
The Court has been criticised for not providing sufficiently reasoned arguments for its
decisions.
141
This has been due mainly to the civil law
139. Asylum, ICJ Reports (1950), p. 395, at p. 402; 17 ILR 339.
140. Tunisia/Libya Continental Shelf, ICJ Reports (1985), p. 192. paras. 11–40; 84 ILR 419.
141. A. Aust, ‘The Future of the Judicial Function’ (1998) Finnish YB of International Law 81.