Trivia Competition: Provisional Measures and Joinder of Cases at the International Court of Justice

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A few years ago I began the practice of asking on this blog – every now and again – trivia question relating to international law, with the questions focusing mainly on the practice of the International Court of Justice (ICJ) and other international tribunals. Unfortunately, I have not done this in quite a while. You can find previous questions (and answers) here or by viewing the EJIL:Trivia category in the list of categories on the right hand column of the blog. Last month, the International Court of Justice delivered its 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). This judgment and the cases provide me with an opportunity to ask a set of trivia questions relating to the ICJ.

On this occasion, we will offer a prize to one respondent. The person who provides the most correct answers will win a free subscription to the European Journal of International Law for 2016. In the case of a tie, the first person to provide their answers will be the winner.

In the Costa Rica v. Nicaragua case, the Court found that “Nicaragua has breached the obligations incumbent upon it under the Order indicating provisional measures issued by the Court on 8 March 2011”. This is a relatively rare finding by the Court that a party has breached a provisional measures Order indicated by the Court earlier in that case. This finding was not merely made in passing but was recorded in the dispositif of the judgment. My first question is a perhaps an easy one:

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?

The rest of my questions relate to joinder of cases at the ICJ. The Costa Rica v Nicaragua and Nicaragua v Costa Rica cases began as separate proceedings which were joined together by the Court in 2013 (see this press release). Under Article 47 of the Rules of the ICJ,

The Court may at any time direct that the proceedings in two or more cases be joined. It may also direct that the written or oral proceedings, including the calling of witnesses, be in common;  or the Court may, without effecting any formal joinder, direct common action in any of these respects.”

There are not too many cases that have been joined by the Court and my second question is this:

2) In which proceedings have cases before the International Court been joined?

The Rules do not specify the considerations the Court is to take into account in ordering joinder. However, the Court stated, in the Order joining Costa Rica v. Nicaragua; Nicaragua v. Costa Rica cases that:

“Where the Court, or its predecessor, has exercised its power to join proceedings, it has done so in circumstances where joinder was consonant not only with the principle of the sound administration of justice but also with the need for judicial economy.” (para. 18)

There, the Court took into account the fact that the two cases involved the same parties, involved consideration of the same set of facts, and discussion of the same legal instruments. According to the Court, “A decision to join the proceedings will allow the Court to address simultaneously the totality of the various interrelated and contested issues raised by the Parties, including any questions of fact or law that are common to the disputes presented.” (para. 23)

The Rules are also not crystal clear about the consequences of joining two (or more) cases. Rule 47 provides that the Court “may also direct that the written or oral proceedings, including the calling of witnesses, be in common”. Although the word “may” is used one suspects that joinder is only really worth it where written and oral proceedings will be joined and this will probably be the most significant consequence of joinder. However, as Rule 47 indicates, and as has frequently happened in practice, there can be common oral hearings without the cases being formally joined. This leads me to my third and fourth questions :

3) Apart from the fact of common written or oral proceedings, what are the implications of joinder for proceedings before the Court?

4) In which separate cases has the Court held oral hearings in common though the cases have not been formally joined?

Answers in the comments box please!

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Niccolò Ridi says

January 8, 2016

Hoping I am not making a fool of myself...

1) I am fairly sure the other case is Request for Interpretation – Avena and Other Mexican Nationals (Mexico v United States) 2009 ICJ Rep 3, 21. ("The Court... Unanimously [f]inds that the United States of America has breached the obligation incumbent upon it under the Order indicating provisional measures of 16 July 2008".)

2) Formal joinder of proceedings: the South West Africa cases and the North Sea Continental Shelf cases.

3) Well, the main implication is—of course—that the questions, while separate, may be treated as one and that a single decision is given on the two (or more) cases. (North Sea Continental Shelf Cases) There may be other implications for the Article 31(5) determination of which parties are in the same interest (with consequences for the selection of a judge ad hoc).

4) Common hearings were held in the Legality of Use of Force cases, which were not formally joined. I believe the Fisheries Jurisdiction cases the Nuclear Test cases may make the list too.

Niccolò Ridi says

January 8, 2016

In the hope that I am not too late to amend the original posting, and relying on the very weak defence that the use of the singular form "case" in the question made me overconfident, I will add that LaGrand (Germany v USA) 2001 ICJ Rep 466, 516. should be included as an answer to question 1.

Niccolò Ridi says

January 8, 2016

As a final edit:

1) Question 4: the Lockerbie cases should be included, as there were common proceedings in the provisional measure and the preliminary objection phases.

2) As a desperate attempt to score bonus points, the question did not include any references to the PCIJ, which did, however, join a fair number of cases. For instance: German Interests in Polish Upper Silesia; Legal Status of the South-Eastern Territory of Greenland (interesting because the parties had filed their applications the same day, with the same petitum and causa petendi, and the Court found the situation to resemble that of a special agreement); Appeals from the Hungaro-Czechoslovak Mixed Arbitral Tribunal.

Massimo Lando says

January 8, 2016

I would like to subscribe to everything Niccolò Ridi said in his posts. I would like to make one addition, however. The Court formally made a finding that a party had not complied with a provisional measures order in LaGrand and Avena, but it also did so in the dispositifs of two other judgments: Armed Activities on the Territory of the Congo (DRC v Uganda), ICJ Reports 2005, paragraph 345(7); and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), ICJ Reports 2007, paragraph 471(7).

Niccolò Ridi says

January 8, 2016

Thank you Massimo, you are entirely correct. I had thought of Armed Activities (the Genocide case completely escaped me): and yet, for some reason, I was positive that the finding did not appear in the dispositif—on second thoughts, an odd conclusion indeed.