Provisional Measures and Joinder of Cases at the International Court of Justice – The Answers

Earlier this month I asked four trivia questions about the International Court of Justice’s (ICJ) practice on provisional measures and joinder of cases. The questions were prompted by the ICJ’s recent Judgment in the joined cases concerning Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). I also stated that the first person to provide the most correct answers would win a year’s free subscription to the European Journal of International Law prize. Within minutes of my piece being posted, Niccolò Ridi (right, who is doctoral candidate at the Dickson Poon School of Law,  King’s College London and Research Assistant at the Graduate Institute of International and Development Studies in Geneva) had provided comprehensive answers to all four questions. His quickness off the mark hardly gave anybody else a chance! He later added to his answers with subsequent comments, and is very deserving of the prize!

My first question was “1) In what other case has the Court made a finding in the dispositif of a judgment that a party has breached a provisional measures order made by the Court?” Niccolò is absolutely right to note that the use of the singular – ‘case’ – in my formulation is incorrect. The Court has made such a finding in the dispositif of a judgment in a few cases. The first case in which the Court did so was the La Grand case (Germany v the US) 2001. That was the first case in which the Court held that provisional measures orders were legally binding, and it is only since that judgment that the Court has included declarations of non-compliance with provisional measures in the dispositifs of judgments. Massimo Lando and Niccolò are also right that the Request for Interpretation of the Avena Judgment (Mexico v US); the Armed Activities case (DRC v Uganda); and the Bosnia Genocide (Bosnia and Herzegovina v Serbia and Montenegro) case are other cases where the Court has found non-compliance with provisional measures. Indeed, it seems to be the case that, since LaGrand, in the majority of judgments dealing with cases where the Court has ordered provisional measures, it has subsequently made findings of violations of its interim orders. Two cases where the ICJ has not, in that time period since LaGrand, made such findings are the Land and Maritime Boundary (Cameroon v Nigeria) case (2002) and the Request for Interpretation of the Judgment in the Temple of Preah Vihear (Cambodia v. Thailand) case (2013). By my count that makes it 5 cases of findings of non-compliance with 2 cases of no such finding. These are not encouraging statistics regarding compliance with provisional measures!

Which Cases have been Joined?

Question 2 asked “In which proceedings have cases before the International Court been joined?” Niccolò was correct in referring to the South West Africa cases (Liberia & Ethiopia v South Africa) and the North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands). Those were indeed the two cases where the ICJ has formally joined proceedings (I later realized that I had made a gaffe in my earlier post in referring to this press release as the answer to the question was made plain there).  Unlike the Nicaragua v. Costa Rica; Costa Rica v. Nicaragua case(s), those earlier cases of joinder involved cases brought by different parties meaning that there were 3 parties in the same proceedings. Niccolò then added a list  of cases in which the Permanent Court of International Justice had also joined proceedings, which surely must earn him bonus points!  All three of these PCIJ cases involved the same two parties. In two, the separate proceedings were issued by the same state (Certain German interests in Polish Upper Silesia, Germany v Poland, (1926) PCIJ Series A no 7 (Decision Concerning the Joinder) 94-95; Appeals from certain judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal, PCIJ Rep Series C No 68, (Order of October 26th 1932), 290-91). The third case – the Legal status of South Eastern Greenland (Norway v Denmark; Denmark v. Norway) – was somewhat similar to the Nicaragua v. Costa Rica; Costa Rica v. Nicaragua case in that both parties had filed applications against each other (indeed on the same day!)

Apart from cases where proceedings in separate cases are joined together by an order of the Court, there are other cases where a state brings proceedings against a number of other states by filing a single application against a group of respondent states. Or alternatively, a group of states may bring a single case against another state, in the sense that the group of applicants file a joint application against the respondent. The  Monetary Gold Case is an example of the former. Italy filed a single application against France, the UK, and the US . By contrast, in the Wimbledon case it was a group of states (the Great Britain, France, Italy and Japan) that brought a case against a single state – Germany – in the PCIJ by means of a single application.

It is not clear to me if these joint cases just described are to be regarded as cases of joinder. There is no joinder by the Court but rather a form of joinder by the parties themselves. There is nothing in the Statute or the Rules that suggests that it is improper for the parties to join cases in this way. The fact that Art. 38 of the Rules of Court speaks of the application being issued by or against a “party” or “state” (in the singular) should not be regarded as precluding an application by or against states in the plural. Where there is a Monetary Gold type case brought against a group of states, I wonder whether one respondent state can apply for the cases to be separated! Even though there is no formal joinder by the Court in the cases being discussed, all the consequences of joinder (on which see below) must surely be applicable.

Consequences of Joinder

Niccolò Ridi’s answer to my third  – “3) Apart from the fact of common written or oral proceedings, what are the implications of joinder for proceedings before the Court?” – was again spot on. The main consequence as evident from the Nicaragua v Costa Rica case is that the Court delivers a single judgment. Also in cases of joinder of cases such that there are now more than two parties to the case, it is almost certain that two of the parties will be regarded as being in the same interest such that under Art. 31(5) of the Statute which deals with appointment of ad hoc judges, they are treated as one party. This will mean that if there is a judge of the nationality of one of those parties in the same interest on the Court, the other does not get an ad hoc judge and if neither has a judge of its nationality on the Court, they can only appoint a single ad hoc judge. In the North Sea Continental Shelf cases, Denmark and the Netherlands had agreed that they were to be treated as parties in the same interest and agreed on the choice of a single judge ad hoc (and the Court confirmed these points in an Order). In the South West Africa cases, Liberia and Ethiopia “acting in concert” chose the same judge ad hoc.

Common Hearings

My last question was “4) In which separate cases has the Court held oral hearings in common though the cases have not been formally joined?” Here again Niccolò supplied a comprehensive answer mentioning the Legality of Use of Force cases; Fisheries Jurisdiction cases; the Nuclear Test cases and later adding the Lockerbie cases. The correct answer to this question depends on what one means by hearings in common. There are some cases where the Court has held hearings back to back, in the sense that hearings in one case have been followed immediately – the next day or after a weekend – by hearings in another case. The most recent such example are the latest hearings by the ICJ in the Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) and Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia). These cases have not been joined by the Court but the hearings dealing with Preliminary Objections in both cases were held in September/October 2015 in consecutive weeks.

In the Fisheries Jurisdiction cases brought by the Federal Republic of Germany and by the UK against Iceland, the Court made a decision not to join the two cases (see I.C.J. Reports 1974, p. 177). However, hearings were held on different days in each case. Unlike the Nicaragua v. Colombia cases, the hearings were held on alternate days such that the period of hearings in both cases overlapped.  In the Nuclear Test cases brought by Australia and New Zealand against France, the hearings were also held on different days and back to back. Interestingly, hearings in the Australia case were spread across 6 days and hearings in the case brought by New Zealand took place only over 2 days! However, the last session of hearings in both cases were on the same day. The only reason this occurred was because Judge Sir Humphrey Waldock had asked questions of both parties and Australia chose to reply orally with its reply given immediately after the end of the last session of the case brought New Zealand (who, incidentally, chose to reply in writing).

In both Fisheries Jurisdiction and Nuclear Tests the respondent state chose not to appear. This undoubtedly had an impact on the hearing schedule as it was easy to separate the days or sessions when pleadings where made by each of the applicant states. Had the respondent appeared then it might have wished to respond to both applicant states at the same time and perhaps even in the same sessions. This is precisely what happened in the Lockerbie cases where separate sessions were devoted to the arguments by the UK and the US but where Libya used its sessions to address arguments in both cases. So that was a case where the hearings were truly heard in common, as there sessions in which the Court was listening to arguments in both cases.

Something similar happened in the Legality of the Use of Force cases brought by Yugoslavia against 10 NATO countries. Those cases where not joined, with the effect that different ad hoc judges were appointed by those states entitled to appoint one. Those judges all sat at the provisional measures phase, but the Court decided pursuant to Art. 31(5) of the Statute that they were not entitled to sit in the preliminary objections phase, presumably taking the view that all the respondent States were in the same interest, even though they all argued otherwise (see here). In the oral hearings at both the provisional measures and preliminary objections stage, some of the sessions (those in which Yugoslavia was addressing the Court) dealt with all the cases, while other sessions were devoted to a particular case. As four of the respondents had nominated ad hoc judges (as did Yugoslavia), who all sat at the provisional measures stage, there was a bit of musical chairs as the Court had to be reconstituted as appropriate for each session.

In conclusion, strictly speaking it is only in the Lockerbie and the Legality of Use of Force cases that there were hearings in common. This view would be right if one applies a strict definition, which would be that in a single session of the oral hearings, the Court was dealing with two or more cases. In the other cases, hearings were held back to back, or alternately, rather than in common.

Once again, congratulations to Niccolò Ridi for his comprehensive answers!