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Recent Developments at the International Court of Justice

Published on February 12, 2009        Author: 

Speedy Despatch of Business at the Court?

In addition to new judges taking up office, and the election of the President and the Vice President (which Marko points out in his post), the Court has also elected a Chamber of Summary Procedure (see here). This is something that the Statute of the Court (Art. 29) requires the Court to do annually, “with a view to the speedy despatch of business.” Despite the Court setting up this Chamber dutifully, the Chamber of Summary Procedure of the ICJ has has never been asked to decide a case. The equivalent Chamber of the Permanent Court of International Justice was resorted to once in the case concerning the Interpretation of the Treaty of Neiully (Bulgaria/Greece) 1924 [or should we say it has been used twice since Greece’s request for an interpretation of that judgment was dealt with by the Chamber of Summary Procedure in 1925]. The Court has been accused in the past of moving at a snails pace and certain cases seem to bear this out. It took the court nearly 14 years (1993-2007) to get from the filing of Application to a Merits judgment in the Bosnian Genocide Convention Case, 11 years in the Oil Platforms case, and 10 years in Qatar v. Bahrain. Could use of the Chamber of Summary Procedure be a way of solving this problem? Perhaps more importantly, is there really a problem of slow justice at the ICJ?

Despite the fact that some cases have taken very lengthy periods to reach a conclusion in the ICJ, there are good reasons to think parties do not consider there to be a significant problem with the speed of proceedings. In fact, it is probably wrong to assume that parties to ICJ cases always or even normally wish to have those cases decided quickly. Punting a case off to the ICJ is probably a good way of appearing to move ahead on dispute settlement while stalling on the processes of such settlement.  If parties wanted their cases to be heard more quickly they can refer the case to the Chamber of Summary Procedure. The fact that parties have not referred cases to the Chamber suggests that they are not too dissatisfied with the pace at which cases proceed in the ICJ. Also, the delay in cases is often caused by parties asking for lenghty periods for the preparating and filing of their pleadings and then requesting extensions of those already lengthy periods. More importantly, perhaps the reason the Chamber hasn’t been used is that when the parties do wish to have the Court move quickly on their case, the Court usually obliges. Both the Arrest Warrant and Avena Cases took just over a year from the date of the filing of the Application to the delivery of the Merits Judgments.

If the slow pace of cases is primarily down to the parties and not the Court, may the Court (rather than the parties) refer a case to the chamber of summary procedure.  Does the Court have the legal power to do this and is there any wisdom in doing so? Although the Statute makes clear that Chambers under Art. 26 of the Statute may hear a case only if the parties so request (Art. 26(3)), the Chamber of Summary Procedure is established under a different provision. So, it is possible that the Court has the power to refer a case to a chamber. But this would not be wise. The parties may then withdraw the case and submit it to arbitration (though this is only a realistic option if the case is based on a special agreement). Also, one would expect that a judgment which is reached under a summary procedure that the parties have not consented to is less likely to be considered authoritative by the parties.

Maritime Delimitation in the Black Sea (Romania/Ukraine) : Law of the Sea Disputes at the ICJ vs. ITLOS vs Arbitration

 On 3 Feb, the Court announced its 100th judgment in the above named case. In the judgment (see here) the Court drew a single maritime boundary delimiting the continental shelf  and exclusive economic zones of Romania and Ukraine in the black sea. It can be difficut to determine winners and losers in maritime delimitation cases but a comparison the parties claims and the line drawn by the Court, suggests that the boundary is much closer to what Romania argued for than what Ukraine had wanted (compare sketch maps 1 and 9 appended to the court’s summary of the judgment).

One of the interesting things about this judgment is that it not only was it unanimous (both ad hoc judges agreed with the rest of the court, no judge wrote an individual separate opinion, not even the ad hoc judges. This is probably the first time in the history of the court (and perhaps that of the PCIJ) that there has not a single separate or dissenting opinion, in a case in which there has been ad hoc judges (or a case with judges of the nationality of the parties). What I wonder is what this tells us about the drafting of the judgment.

The other interesting point about the case is the very choice of the Court as the forum for adjudication. Both parties are parties to the UN Convention on the Law of the Sea (which was the applicable law in the case). Under that Convention parties have three choices for adjudication of disputes” the ICJ, the International Tribunal for the Law of the Sea (ITLOS) and arbitration, with arbitration being the default option. Despite the fact that UNCLOS created ITLOS as a new tribunal for Law of the Sea disputes, the ICJ has continued to be a popular choice for resolution of those disputes. So far, I think 5 cases have gone to arbitration under UNCLOS. Despite the fact that no case has been referred to the ICJ using UNCLOS’ dispute settlement provisions, law of the sea cases like the present one continue to be  referred to the ICJ under Article 36 of the ICJ Statute. ITLOS has, by contrast, hardly had any substantive disputes to deal with. Presumably, States continue to regard resolution of disputes by the ICJ as more authoritative. Also, it may well be that the costs of ICJ litigation are no higher, perhaps even less than recourse to arbitration. Afterall, one doesn’t have to pay the arbitrators, the translators, registry etc. I am sure that interesting lessons can be learned by thinking through what may have motivated parties to choose the ICJ in cases like this when there are other alternatives.

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