On 21 October 2019 the International Court of Justice released a series of amendments to its Rules of Court. This is the first substantive change to the Rules since 2005 and marks the fifth time the Rules have been amended since the creation of the Court (discounting the PCIJ years, on which more will be said in a moment).
The 2019 amendments are of interest because they come at a time when practical and academic interest in the Court’s procedure is at an all-time high. I say this not only because it is the focus of my own PhD research. Questions of International Law hosted a conference on procedure in May of this year; the International Law Association Committee on the Procedure of International Courts and Tribunals is in its final year and will be reporting in 2020; and the Max Planck Institute released last month a new encyclopedia dedicated to matters of procedure.
This post will set out a brief history of the Court’s Rules, speculate on the driving forces behind the 2019 amendments, and consider the implications of the new Article 79 on preliminary matters.
The Rules of Court: A Potted History
The Court is the master of its procedure and internal management. Article 30(1) Statute provides that ‘the Court shall frame rules for carrying out its functions. In particular, it shall lay down rules of procedure.’ The Court’s predecessor, the Permanent Court of International Justice, first promulgated its Rules of Court in 1922. These underwent amendments in 1925, 1926, 1927 and 1931 as the Court grew in experience. A major overhaul of the Rules took place in 1936, and these in turn provided the template for the first set of ICJ Rules in 1946. The 1946 Rules operated until the Court adopted a set of amendments in 1972, followed by a wholesale revision in 1978 prompted not only by concerns that procedures of the Court were slow, cumbersome and expensive but also by the political impetus of the Court’s mid-20th Century (post South-West Africa) nadir. The Court needed a to make itself a more attractive destination for States.
Since 1978, the Court appears to have been cognizant of the need for ongoing procedural reform. The Court established a Committee for the Revision of the Rules of Court in May 1967, which is now a standing committee. Two further sets of amendments have followed; in 2001 to Articles 79 and 80 of the Rules on preliminary objections and counter-claims, and in 2005 to Articles 43 and 52 on the filing of written pleadings. This is alongside the Court’s issuance of Practice Directions in 2001, 2004, and 2009 which are largely directed to matters of economy in the preparation of written pleadings and oral argument. Subsequently, the Court undertook a counsel survey in 2016, in which the dominant response concerned the Court procedure and its rules. It may be that the 2019 amendments herald that further changes are on the horizon.
The 2019 Amendments
So, what has the Court seen fit to change this time? The Rules implicated by the 2019 amendments are Articles 22, 23, 29, 76 and 79. In respect of Articles 22, 23, and 29 all three were made gender-neutral in their language and the requirement that a candidate for the post of Registrar be proposed by a Member of the Court has been eliminated and replace with an open and transparent appointment process. This accords with the mode of appointment of the present Registrar, Philippe Gautier, earlier this year, and the latest advertisement for the post of Deputy Registrar.
Article 76 concerns provisional measures. It has been amended to add the words ‘or proprio motu’ to the first paragraph but remains otherwise unchanged. This amendment clarifies that modifications to provisional measures orders may arise on the application of a party or at the instigation of the Court. Given that two reasonably recent cases – Questions relating to the Seizure and Detention of Certain Documents and Data and Certain Activities Carried Out by Nicaragua in the Border Area – raised the question of modification of provisional measures orders, this clarification is welcome. Indeed, it is something of a return to the past insofar as Article 61 of the 1946 Rules and Article 66 of the 1972 Rules had left it open to the Court to modify or revoke interim relief proprio motu.
Article 79, concerning preliminary objections, has received the most radical overhaul, at least in terms of appearance. What was once a single Article has been separated into four parts and a new procedure adopted. This is not the first time the Court has grappled with the most appropriate procedure for preliminary objections. The first set of PCIJ Rules 1922 contained no procedure for preliminary objections. It was included for the first time in the 1926 revision; the issue having arisen in Mavrommatis and Certain German Interests in Polish Upper Silesia.
The 1972 rules provided that the preliminary objections should be made within the time limit fixed for the delivery of the Counter-Memorial. This led to a practice of States waiting until the last possible moment to file their objections. As such, the 2001 amendment imposed a requirement that the objection be filed ‘as soon as possible, and not later than 3 months after the delivery of the Memorial – the purpose being to accelerate proceedings.
It appears that the new changes are also directed to the acceleration or at least streamlining of preliminary procedures; and while some problems have been fixed others remain and potentially new ones have been created.
The creation of Articles 79bis and 79ter may seem superfluous, merely a matter of appearance, but it incorporates a change of substance. The emphasis is now placed on the primary role of the Court in deciding on whether questions of jurisdiction and admissibility should be determined separately. This adopts a more explicit case management approach, as the decision will be taken following the parties first conference with the President.
The ILA has advocated for abolishing preliminary objections; and for replacing it with a procedure in which the Court will direct the parties to make submissions on jurisdiction and admissibility in their initial pleadings if required. The current amendment to the Rules is something of a compromise: it has not abolished the preliminary objections procedure but it has made clear that the primary decision rests with the Court. The Court may be seen to be taking back some control over its procedure and timetable. This is emphasized by the start of 79bis, which states only if the Court hasn’t taken such a decision, objections to jurisdiction, admissibility or other objections may be raised.
Articles 79, 79bis and 79ter now also draw a distinction between preliminary questions and preliminary objections; questions are those raised by the Court in 79, objections are those raised by the party in 79bis. Quite what this means in practice not clear; it may well not have any impact beyond clarifying by the use of clear language which procedure is being acted under.
Despite the redrafting, some of the potential inconsistencies in the preliminary objections procedure remain. The possibility of declaring an objection not to possess in circumstances of the case an exclusively preliminary character remains. Where this occurs, there may still be a duplication of pleading and argument, but the Court appears to have preferred to retain the flexibility of this formulation.
The need to regulate the handling of preliminary objections in a more efficient and rational way is one of the most frequent recommendations made by users of the Court. The Court has responded accordingly, but whether these amendments will have the desired impact, or whether yet more changes to the preliminary objections procedures will be required, remains to be seen.