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The 2003 Judicial Activity of the International Court of Justice

Published online by Cambridge University Press:  27 February 2017

John R. Crook
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Extract

The International Court of Justice again completed a substantial program of work during 2003, with old and new cases involving the United States figuring prominendy. In a decision that will find Hide favor in official Washington, the Court dismissed Iran's 1992 Oil Platforms case against the United States, but in doing so firmly rejected U.S. positions regarding the scope of self-defense. Libya withdrew its venerable Lockerbie cases against the United States and the United Kingdom, in parallel with its acceptance of responsibility for the Lockerbie bombing and the final lifting of UN sanctions. And Mexico sued the United States, claiming failures of consular notification for fifty-four Mexican nationals sentenced to death in U.S. proceedings, the third such ICJ case against the United States.

In other significant developments, the General Assembly in December asked die Court for an urgent advisory opinion on die legal consequences of the Israeli construction of a wall in occupied Palestinian territory. Malaysia and Singapore brought a new territorial dispute by special agreement; France consented to jurisdiction over a suit by the Republic of the Congo; and the Court rejected requests by Yugoslavia and El Salvador to revise earlier judgments. Finally, the Court elected Judge Shijiuyong of China as its president and Judge Raymond Ranjeva as vice president.

Type
Current Developments
Information
American Journal of International Law , Volume 98 , Issue 2 , April 2004 , pp. 309 - 317
Copyright
Copyright © American Society of International Law 2004

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References

1 This is the fourth of several annual reports by the author regarding the Court’s work. For previous reports, see 95 AJIL 685 (2001) (for the year 2000); 96 AJIL 397 (2002) (for 2001) [hereinafter 2001 Report]; and 97 AJIL 352 (2003) (for 2002) [hereinafter 2002 Report]. The author has again made heavy use of the extensive materials available on the Court’s invaluable Web site, <http://www.icj-cij.org>.

2 ICJ Press Releases 2003/3 (Jan. 20, 2003), 2003/13 (Mar. 7, 2003).

3 Oil Platforms (Iran v. U.S.) (Int’l Ct. Justice Nov. 6, 2003), 42 ILM 1334 (2003).

4 Aug. 15, 1955, 8 UST 899, 284 UNTS 93 (entered into force June 16, 1957).

5 Article XX(l)(d) provides that “[t] he present Treaty shall not preclude the application of measures: . . . (d) necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security, or necessary to protect its essential security interests.” Id., quoted in Oil Platforms, supra note 3, para. 32.

6 See separate opinions of Judges Buergenthal, Higgins, Kooijmans, Owada, and Parra-Aranguren. Under the non ultra petita rule, “it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in diose submissions.” Oil Platforms, supra note 3, Separate Opinion of Judge Buergenthal, para. 7 (quoting Arrest Warrant (Dem. Rep. Congo v. Belg.), para. 43 (Int’l Ct. Justice Feb. 14, 2002); Request for Interpretation of the Judgment of November 20th, 1950, in the Asylum Case, 1950 ICJ Rep. 395, 403 (Nov. 27)). Iran’s final submissions to the Court did not ask the Court to rule on Article XX(1) (d).

7 Oil Platforms, supra note 3, para. 79.

8 Id., para. 8.

9 2002 Report, supra note 1, at 355. The Court’s recent rule changes, particularly the 2001 change requiring early filing of preliminary objections to jurisdiction and admissibility, should help to lessen the time required for such cases. See 2001 Report, supra note 1, at 410.

10 Some of these are addressed in the separate opinions, inter alia, of Judges Buergenthal (paras. 33-46), Higgins (paras. 30-39), and Kooijmans (paras. 54-59). Oil Platforms, supra note 3.

11 See Pierre-Marie, Dupuy, Fact-finding in the Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali) , in Fact-Finding Before International Tribunals 81 (Richard, B. Lillich ed., 1991)Google Scholar. Other recent illustrations include the central role of the evidence in the Court’s decision in Qatar v. Bahrain, 2001 Report, supra note 1, at 398-99, and the weighing of competing effectivités in Malaysia/Indonesia, 2002 Report, supra note 1, at 403-04. One can hypothesize that the ICJ’s usual practice of carefully and transparently assessing the evidence in boundary cases has contributed to states’ willingness to refer such cases to the Court.

12 Oil Platforms, supra note 3, paras. 50-64.

13 Id., paras. 69-72. Judge Kooijmans concluded that this evidence showed that Iran was responsible for the mine attack, but that the subsequent U.S. attacks were not a necessary and proportionate response. Id., Separate Opinion of Judge Kooijmans, paras. 56-63.

14 “The Court does not have to attribute responsibility for firing the missile that struck the Sea Isle City, on the basis of a balance of evidence, either to Iran or to Iraq . . . .” Oil Platforms, supra note 3, para. 57.

15 Id., para. 71. Paragraphs 58, 59, 60, and 64 also suggest that items of evidence were assessed individually, not cumulatively.

16 Sandifer notes “the propensity of tribunals for stating conclusions without elucidating the principles by which they were guided in testing the credibility of witnesses and weighing their testimony.” Durward, V. Sandifer, Evidence Before International Tribunals 323 (rev. ed. 1975)Google Scholar. Lillich viewed fact-finding as “one of the major ‘soft spots’ in the international legal order.” Richard B. Lillich, Preface to Fact-Finding Before International Tribunals, supra note 11, at vii, x.

17 Tunisia made the other unsuccessful request. Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunis, v. Libya), 1985 ICJ Rep. 192 (Dec. 10).

18 Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) (El. Sal. v. Hond.), para. 18 (Int’l Ct. Justice Dec. 18, 2003) (quoting Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Yugo. v. Bosn. & Herz.), Preliminary Objections, para. 15 (Int’l Ct. Justice Feb. 3, 2003); Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), supra note 17, paras. 8, 10).

19 ICJ Press Release 2003/8 (Feb. 3, 2003).

20 Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, supra note 18, para. 11. This was a dramatic reversal from positions the Federal Republic of Yugoslavia had zealously defended during the Milošević years. 2001 Report, supra note 1, at 405-06; 2002 Report, supra note 1, at 363.

21 Three judges recused themselves; Judges Fleischhauer, Higgins, and Kooijmans were all active in their previous positions in matters related to the Balkan conflicts of the 1990s. 2002 Report, supra note 1, at 363.

22 The Chamber was composed of Judges Guillaume (Chamber president), Rezek, and Buergenthal, and Judges ad hoc Torres Bernárdez and Paolillo.

23 Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), supra note 18; ICJ Press Release 2003/43 (Dec. 18, 2003). The Chamber held a five-day hearing in July. ICJ Press Release 2003/23 (July 25, 2003).

24 The number of Mexican nationals in question varied at different stages of the proceedings.

25 ICJ Press Release 2003/1 (Jan. 10, 2003); see Vienna Convention on Consular Relations, Apr. 24, 1963, Art. 36, 21 UST 77, 596 UNTS 261.

26 ICJ Press Release 2003/25 (July 25, 2003).

27 2002 Report, supra note 1, at 353.

28 ICJ Press Releases 2003/2 (Jan. 15, 2003), 2003/4 (Jan. 22, 2003).

29 ICJ Press Release 2003/9 (Feb. 5, 2003) (announcing Court’s Order of Feb. 5, 2003).

30 ICJ Doc. CR 2003/28, at 55 (Dec. 18, 2003).

31 2002 Report, supra note 1, at 400-03; see LaGrand (Ger. v. U.S.), Merits (Int’l Ct. Justice June 27, 2001), 40 ILM 1069 (2001).

32 ICJ Doc. CR 2003/29, at 44-45 (Dec. 19, 2003).

33 ICJ Press Release 2003/14 (Apr. 11, 2003) (citing Rules of Court, Apr. 14, 1978, Rule 38(5), reprinted in 73 AJIL 748 (1979)). Under Article 38(5) of the Court’s Rules, an applicant state can attempt to initiate a case with Jurisdiction to be based on future consent by the other party. The case is not entered in the Court’s General List and proceedings do not begin unless the other party communicates its consent to Jurisdiction.

34 President Shi described France’s acceptance of jurisdiction as “an encouraging tribute to the value of judicial proceedings as a means of pacific settlement of disputes.” Speech by H.E. Judge Shi Jiuyong, President of the International Court of Justice, to the General Assembly of the United Nations (Oct 31, 2003), available at <http://www.icj-cij.org>.

35 ICJ Press Release 2003/14, supra note 33.

36 ICJ Press Releases 2003/15 (Apr. 23, 2003), 2003/16 (Apr. 29, 2003).

37 ICJ Press Release 2003/20 (June 17, 2003) (citing Certain Criminal Proceedings in France (Rep. Congo v. Fr.), Request for a Provisional Measure (June 17)).

38 ICJ Press Release 2003/22 (July 24, 2003).

39 2002 Report, supra note 1, at 355-56; see Sovereignty over Pulau Ligitan and Pulau Sipadan (Indon. v. Malay.) (Int’l Ct. Justice Dec. 17, 2002).

40 ICJ Press Release 2003/26 (Aug. 5, 2003).

41 Sengupta, Somini, Taylor Resigns and Quits Liberia, Int’l Herald Trib., Aug. 12, 2003, at 1 Google Scholar.

42 GA Res. ES-10/14 (Dec. 8,2003), in UN Doc. A/ES-10/L.16(2003);see ICJ Press Release 2003/42 (Dec. 10,2003).

43 ICJ Press Release 2003/44 (Dec. 19, 2003).

44 ICJ Press Release 2003/29 (Sept. 10, 2003). After the Court issued its Judgments, Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. UK) (Libya v. U.S.), Preliminary Objections (Feb. 27,1998), 37 ILM 587 (1998), the written procedure on the merits had been resumed.

45 For Libya’s statement, see UN Doc. S/2003/818; Sanctions were lifted by Security Council Resolution 1506 (Sept. 12, 2003), 43 ILM 251 (2004)Google ScholarPubMed.

46 ICJ Press Release 2003/24 (July 25, 2003).

47 ICJ Press Release 2003/39 (Nov. 7, 2003).

48 “It is regrettable that the present unexpected situation will make it necessary for the Court to re-examine its schedule of work in order to make the most efficient and economic use of its judicial time.” Id.

49 ICJ Press Release 2003/10 (Feb. 6, 2003).

50 2002 Report, supra note 1, at 361-62.

51 ICJ Press Release 2003/36 (Oct. 31, 2003).

52 ICJ Press Release 2003/39, supra note 47 (noting that “the Court’s judicial calendar for the period from now until well into 2004 had been adopted some time ago . . .”).

53 Legality of Use of Force (Serb. & Mont. v. Belg.), (Serb. & Mont. v. Can.), (Serb. & Mont. v. Fr.), (Serb. & Mont. v. Ger.), (Serb. & Mont. v. Italy), (Serb.& Mont v. Neth.), (Serb. & Mont. v. Port), (Serb. & Mont. v. UK) [hereinafter NATO bombing cases]; see 2001 Report, supra note 1, at 405; 2002 Report, supra note 1, at 363.

54 ICJ Press Release 2004/13 (Mar. 16, 2004).

55 ICJ Press Release 2004/14 (Mar. 16, 2004). The objections were filed in June 2002; Liechtenstein replied in November 2002.

56 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.).

57 Report of the International Court of Justice, 1 August 2002-31 July 2003, at 36, para. 134 [hereinafter ICJ 2003 Report).

58 M a t 55, para. 201.

59 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat, v. Serb. & Mont.). Croatia answered the objections in April 2003. ICJ 2003 Report, supra note 57, at 54, para. 193.

60 Congo’s response was due in May 2003. Press Release 2002/22 (Sept. 20, 2002).

61 Guinea answered in July 2003. ICJ 2003 REPORT, supra note 57, at 48, para. 172.

62 Territorial and Maritime Dispute (Nicar. v. Colom.); see 2001 Report, supra note 1, at 408-09. Nicaragua’s response was due in January 2004. ICJ Press Release 2003/32 (Sept. 29, 2003) (citing the Court’s Order of Sept. 24, 2003).

63 Congo’s memorial was due in December 2003, France’s Countermemorial in May 2004. ICJ Press Release 2003/21 (July 16, 2003)Google Scholar (citing the Court’s Order of July 11, 2003).

64 Both countermemorials are due by May 2004. ICJ Press Release 2003/31 (Sept. 16, 2003) (citing the Court’s Order of Sept. 11, 2003). (The Court discourages such simultaneous filings but allows them in cases submitted by special agreement 2001 Report, supra note 1, at 411.) The Chamber’s ad hoc members Judge Mohammed Bennouna (chosen by Benin) and former ICJ president Mohammed Bedjaoui (chosen by Niger), were seated in November. ICJ Press Release 2003/35 (Oct. 27, 2003).

65 Memorials are due by March 2004, and countermemorials by January 2005. ICJ Press Release 2003/28 (Sept 9, 2003) (citing the Court’s Order of Sept. 1, 2003). This is another case brought by special agreement where the parties elected simultaneous written pleadings.

66 ICJ 2003 REPORT, supra note 57, at 38, para. 145.

67 2003 Report, supra note 1, at 359-60.