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!