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4. See 80 I.L.R., p.244Google Scholar. See also Bowett, , “The Taba Award of 29 09 1988”, 23 Israel Law Review, 1989, p.429Google Scholar; Lagergren, , “The Taba Tribunal 1986–89”. 1 African Journal of International and Comparative Law, 1989, p.525Google Scholar and Weil, , “Some Observations on the Arbitral Award in the Taba Case”, 23 Israel Law Review, 1989, p.1.Google Scholar

5. See infra, p.836.Google Scholar

6. Art. 59 of the Statute of the International Court of Justice.

7. See as to arbitration e.g. Wetter, , The International Arbitral Process Public and Private, 5 vols., 1979Google Scholar; Simpson, and Fox, , International Arbitration, 1959Google Scholar; Caflisch, , “L'Avenir de l'Arbitrage Interétatique”, A.F.D.I., 1979, p.9Google Scholar; Merrills, , International Dispute Settlement, 2nd ed., 1991, Chapter 5Google Scholar; Schwebel, , International Arbitration: Three Salient Problems, 1987Google Scholar; Stuyt, Survey of International Arbitrations (1794–1984), 1990Google Scholar; Coussirat-Coustère, and Eisemann, , Repertory of International Arbitral Jurisprudence, 4 vols., 1989–1991Google Scholar; Gray, and Kingsbury, , “Developments in Dispute Settlement: International Arbitration since 1945”, 63 B.Y.I.L., 1992, p.97Google Scholar; Sohn, , “International Arbitration Today”, 108 H.R., 1976, p.1Google Scholar; Inter national Arbitration (ed. Soons, F.), 1990Google Scholar, and Fox, , “States and the Undertaking to Arbi trate”, 37 I.C.L.Q., 1988, p.1Google Scholar. See also Shaw, , International Law, 4th ed., 1997, p.737et seq.Google Scholar

8. See e.g. the European Court of Human Rights and the Inter-American Court of Human Rights. Note also the proposed international criminal court, see e.g. Crawford, , “The ILC's Draft Statute for an International Criminal Court”, 88 A.J.I.L., 1994, p.140Google Scholar and Shaw, . International Law, op. cit., p. 187et seq.Google Scholar

9. See e.g. the EC Court of Justice, the Benelux Court of Justice created in 1965; the Court of Justice of the Cartagena Agreement created in 1976 for members of the Andean Group.

10. See e.g. the European Nuclear Energy Tribunal created in 1957 and the European Tribunal on State Immunity, created in 1972.

11. See e.g. Charney, , “The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea”, 90 A.J.I.L., 1996, p.69Google Scholar and Boyle, , “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction”, 46 I. C. L. Q., 1997, p.37CrossRefGoogle Scholar. See also Oda, , “The International Court of Justice from the Bench”, 244 H.R., 1993 VII, p.9, 139et seq.Google Scholar; Guillaume, , “The Future of International Judicial Institutions”. 44 I.C.L.Q., 1995, p.848CrossRefGoogle Scholar, cf. Rosenne, , “Establishing the International Tribunal for the Law of the Sea”, 89 A.J.I.L. 1995, p.806.Google Scholar

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13. See Art. 26 of the Statute and Articles 15–8 and 90–3 of the Rules of Court.

14. See e.g. the Gulf of Maine case, I.C.J. Reports, 1982, p.3Google Scholar and I.C.J. Reports, 1984, p.246. See also Merrills, International Dispute Settlement, op. cit., p.126Google Scholar, Singh, . Role and Record, p. 110Google Scholar and Brauer, , “International Conflict Resolution: The I.C.J. Chambers and the Gulf of Maine Dispute”, 23 Va.J.I.L., 1982–1983, p.463.Google Scholar

15. Article 29 of the Statute. See also International Court of Justice, Yearbook 1993–4, 1994, p.17.Google Scholar

16. Ibid., p.18.

17. E.g. the Gabcikovo-Nagymaros case between Hungary and Slovakia, where one of the fundamental matters in issue is whether the case is essentially an environmental law or treaty law one.

18. I.C.J. Reports, 1980, pp.7, 20.Google Scholar

19. See e.g. the Aegean Sea Continental Shelf case, I.C.J. Reports, 1978, pp.3, 12Google Scholar; The Iranian Hostages case, I.C.J. Reports, 1980, pp.7, 21–2Google Scholar; the Burkina Faso/Mali case, I.C.J. Reports, 1986, p.10Google Scholar and the Nicaragua case, I.C.J. Reports, 1986, pp.392, 433–5Google Scholar. See also Shaw, , “The Security Council and the I.C.J.” in The International Court of Justice, at p.236et seqGoogle Scholar.; Rosenne, , The World Court, 5th ed., 1995, p.37 and ibid.. The Law and Practice of the International Court, 2nd ed., 1985, p.87.Google Scholar

20. See Art.33(1) UN Charter and the 1970 Declaration on Principles of International Law, General Assembly Resolution 2625 (XXV).

21. See Art.33(1) of the UN Charter and sections I(3) and (10) of the Manila Declaration on the Peaceful Settlement of International Disputes, General Assembly Resolution 37/590.

22. See e.g. the American Treaty on Pacific Settlement (the Pact of Bogotá) 1948 of the Organisation of American States, the European Convention for the Peaceful Settlement of Disputes 1957 and the Helsinki Final Act of the Conference on Security and Co-operation in Europe 1975.

23. A good example of the practical application of a range of methods, including the Court, to the task of peacefully settling a dangerous conflict is afforded by the Libya-Chad boundary dispute. Bilateral negotiations were succeeded by an agreed reference to the Court, while the Court's decision was implemented by a bilateral agreement monitored by UN observers. See the Framework Agreement on the Peaceful Settlement of the Territorial Dispute on 31 August 1989; Reports of the UN Secretary-General. S/1994/512, 27 04 1994, 33 I.L.M., 1994, p.786Google Scholar and S/1994/672, 100 I.L.R., p.111et seq., and Security Council Resolutions 910 (1994), 915 (1994) and 926 (1994)Google Scholar. See generally 100 I.L.R. p.102et seq.; the Libya/Chad case, I.C.J. Reports, 1994, p.6Google Scholar, and Ricciardi, , “Title to the Aozou Strip: A Legal and Historical Analysis”, 17 Yale Journal of International Law, 1992, p.301.Google Scholar

24. See e.g. Rosenne, , World Court, op. cit., p.7Google Scholar and Jennings, , “The Proper Work and Purposes of the International Court of Justice” in The International Court of Justice, op. cit., pp. 33, 37.Google Scholar

25. See e.g. Judge Lachs, in his Separate Opinion in the Aegean Sea Continental Shelf case, I.C.J. Reports, 1978, pp.3, 52Google Scholar and in the Iranian Hostages case. I.C.J. Reports, 1980, pp.3, 49Google Scholar. See also Anand, , “The Role of International Adjudication” in The Future of the International Court of Justice (ed. Gross, ), vol.I, 1976, p.1.Google Scholar

26. I.C.J. Reports, 1974, pp.3, 19.Google Scholar

27. ibid., p.20.

28. See the Aegean Sea Continental Shelf case, I.C.J. Reports, 1978, pp.3, 12Google Scholar and the Nicaragua case, I.C.J. Reports, 1986, pp.392, 440.Google Scholar

29. The Great Belt case, I.C.J. Reports, 1991, pp.12, 20Google Scholar. See also the Free Zones case, P.C.I.J., Series A, No.22, p.13Google Scholar and the Burkina Faso/Mali case, I.C.J. Reports, 1986, pp.554, 577.Google Scholar

30. See e.g. the Great Belt case, I.C.J. Reports, 1992, p.348Google Scholar and the Iranian Airbus case, I.C.J. Reports, 1996, p.9. In the latter case, the parties had asked for the postponement sine die of the opening of scheduled oral hearings because of ongoing negotiations to settle the dispute, ibid. p.10.Google Scholar

31. See e.g. Judge Lachs in the Iranian Hostages case, I.C.J. Reports, 1980, pp.3, 49.Google Scholar

32. See e.g. the second application by Guinea-Bissau against Senegal concerning mari time delimitation introduced on 12 March 1991 and discontinued in 1995 as a result of an agreement between the parties, see I.C.J. Reports, 1991, pp. 53, 75Google Scholar; I.C.J. Reports, 1995, p.423 and Report of the International Court of Justice 1995–6, A/51/4, para35 et seq.Google Scholar

33. Article 38(1)b of the Protocol, which at the date of writing is not yet in force. See also Harris, , O'boyle, and Warbrick, , Law of the European Convention on Human Rights, 1995, Chapter 26.Google Scholar

34. This, of course, is rather a different scenario from the situation where a party might seek subtly to send out hints to the Court as to what it might ultimately be prepared to find politically acceptable in the forthcoming judgment.

35. See e.g. Judge Broms's Separate Opinion in the Great Belt case, I.C.J. Reports, 1991, pp.12, 39.Google Scholar

36. See e.g. the Court's Order of 15 March. 1996 in Cameroon v Nigeria, I.C.J. Reports, 1996, pp.13, 24.Google Scholar

37. Ibid., p.25. The Court here called upon the parties to lend every assistance to the fact-finding mission which the UN Secretary-General had proposed to send to the Bakassi Peninsula.

38. Article 62 of the Statute of the Court In which case, it is the Court that will decide upon the request.

39. Article 63 of the Statute. In this situation, states have the right to intervene.

40. Note that under Art34(3) of the Statute of the Court, where the construction of the constituent instrument of a public international organisation or of an international conven tion adopted thereunder is in question, the Registrar is to inform the organisation concerned and communicate to it copies of all the written proceedings.

41. See e.g. the Legality of the Threat of Use of Nuclear Weapons case, I.C.J. Reports, 1996.Google Scholar

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43. But see e.g. Gray, , Judicial Remedies in International Law, 1990Google Scholar and Brownlie, , “Remedies in the International Court of Justice” in Fifty Years of the International Court of Justice, op. cit, p.557.Google Scholar

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45. I.C.J. Reports, 1993, pp.3, 7.Google Scholar

46. See the Chorzow Factory case, P.C.I.J., Series A, No.13, and the Iranian Hostages case, I.C.J. Reports, 1980, p.4Google Scholar for possible authority for such a power. See also Gray, , op. cit., pp.95–6.Google Scholar

47. I.C.J. Reports. 1991, pp.12, 19.Google Scholar

48. This very point is likely to arise in connection with the Gabcikovo-Nagymaros (Hungary/Slovakia) case, see e.g. 32 I.L.M., 1993, p.1247et seqGoogle Scholar. and I.C.J., Yearbook 1993–4, p.204.Google Scholar

49. See e.g. the Oil Platforms (Iran v US) case, I.C.J., Yearbook 1993–4, p.190et seq.Google Scholar

50. One should also note here the effect of Art.292 of the Convention on the Law of the Sea 1982, which provides that the question of the prompt release from detention of a vessel or its crew by another state party to the Convention “may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining state under Art.287 …” which shall without delay deal with the matter. This would include the International Court of Jus tice by virtue of Art.287(1)b. It is unclear how the International Court may deal with such a situation.

51. I.C.J. Reports. 1992, pp.240, 253–4.Google Scholar

52. Ibid., at p.255.

53. I.C.J. Reports, 1963, pp.15, 33–4.Google Scholar

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57. Ibid., p. 15.

58. Note that it has been argued that the timing of the judgment of the Court itself may have political repercussions, see McWhinney, , op. cit., pp.137–9.Google Scholar

59. Compare the Great Belt case, I.C.J. Reports, 1991, pp.12, 17, where there was held to be no such urgency, and the Cameroons v Nigeria, I.C.J. Reports, 1996, pp.13, 22, where there was held to be such urgency.Google Scholar

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61. This provides that where a state considers that it has an interest of a legal nature which may be affected by the decision in the case in question, it may submit a request to the Court to be permitted to intervene. It is for the Court itself to decide upon the request. Note that under Art.63 where the construction of a convention to which states other than those con cerned in the case are parties is in question, the registrar of the Court shall notify all such states forthwith. Every state so notified has the right to intervene in the proceedings. See here the SS Wimbledon case, P.C.I J., Series A, No. 1 (1923)Google Scholar; the Haya de la Torre case, I.C J. Reports, 1951, pp.71, 76–7Google Scholar; and the Nicaragua case, I.C.J. Reports, 1984, pp.215–6.Google Scholar

62. See also Art.81 of the Rules of Court.

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64. Concerning interventions under Arts.62 and 63 of the Statute respectively.

65. Although under Art53 of the Rules, the Court may furnish copies of the pleadings and documents to a state “entitled to appear before it which has asked to be furnished with such copies”.

66. I.C.J. Reports, 1990, p.92.Google Scholar

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69. Art.59 of the Statute of the Court. Art.60 states that such decision will be final and without appeal. Note that by virtue of Art.38(1)c judicial decisions are deemed to be “sub sidiary means for the determination of rules of law”.

70. Note that Judge Azevedo in his Dissenting Opinion in the Asylum case, I.C.J. Reports, 1950, p.332Google Scholar, referred to the “quasilegislative value” of such decisions See also Judge Tanaka in his Separate Opinion in the Barcelona Traction case I.C.J. Reports, 1964, p.67Google Scholar, who referring to the Aerial Incident case, I.C.J. Reports 1951, p.145, emphasised its “tremendous influence upon the subsequent course of the Court's jurisprudence and the attitude of parties vis-à-vis the jurisdiction issues relative to this Court”. See also Shahabuddeen, op. cit, p.209et seq.Google Scholar

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72. I.C.J. Reports, 1951, p.116Google Scholar. See the view expressed by Fitzmaurice that following this case, “neither the United Kingdom nor any other country could now successfully contest the general principle of straight baselines”, “Some Problems Regarding the Formal Sources of Law” in Symbolae Verzijl, 1958, pp.153, 170.Google Scholar

73. I.C.J. Reports, 1949, p.4.Google Scholar

74. I.C.J. Reports, 1986, p.14.Google Scholar

75. I.C.J. Reports, 1949, p.174.Google Scholar

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78. Art.92 of the UN Charter.

79. In particular, under Art.36(3) it is expressly provided that the Security Council should take into consideration that “legal disputes should as a general rule be referred by the parties to the International Court of Justice” and under Art.94(2) the Council may, after application by a party to a judgment of the Court, make recommendations or decide upon measures to be taken to give effect to the particular judgment in question. Under Art.96 the Court may be asked to give an advisory opinion on any legal question by the General Assembly or the Security Council or by other organs of the UN and specialised agencies on legal questions arising within the scope of their activities. The Court submits an annual report to the General Assembly pursuant to Art.15(2). See e.g. Shaw, , “The Security Council and the International Court of Justice: Judicial Drift and Judicial Function” in The International Court of Justice, op. cit. pp.219, 236et seq.Google Scholar

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85. “No member may participate in the decision of any case in which he has previously taken part as agent, counsel or advocate for one of the parties, or as a member of a national or international court, or of a commission of enquiry, or in any other capacity”. Note that any doubt on this point is to be settled by the decision of the Court, Art.17(3). Note also that under Art.24(l) of the Statute, if for some special reason, a member of the Court considers that he should not take part in the decision of a particular case, the President should be informed, while under Art.24(2) “if the President considers that for some special reason one of the members of the Court should not sit in a particular case, he shall give him notice accordingly”. Where the President and the member concerned disagree, the matter shall be settled by the decision of the Court (Art.24(3)).

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87. See e.g. McWhinney, , op. cit., p.92Google Scholar. See also the cases of Judge Sir Senegal Rau, who recused himself in the Anglo-Iranian Oil case on the basis that he had represented India on the Security Council when it had dealt with the UK complaint against Iran for failure to comply with the interim measures indicated by the Court, see Franck, , op. cit, p.323Google Scholar and I.C.J. Yearbook 1951–2, pp.89–90Google Scholar, and Judge, Bedjaoui, who recused himself from the Guinea-Bissau v Senegal case, I.C.J. Reports, 1991, p.53, on the grounds of having been one of the arbitrators in the award that was the subject of the case before the Court.Google Scholar

88. I.C.J. Reports, 1971, pp.16, 18–9.Google Scholar

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93. See e.g. the Report of the International Court for 1995–6, A/51/4, para. 193.

94. See e.g. the description provided in Woodward, and Armstrong, , The Brethren: Inside the Supreme Court, 1979Google Scholar. See also Richman, and Reynolds, , “Do Not Let the Law Clerks Take Over”, The Lawyer, 20 May 1997, p.14, who criticise in particular the risks in this system of over-delegation to and lack of supervision of law clerks in the US system.Google ScholarPubMed

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96. Dissenting Opinion, East Timor case, I.C.J. Reports, 1995, pp.90, 159.Google Scholar

97. See Art.95 of the Rules of the Court. Dispositifis translated as “the operative provisions of the judgment”, ibid.

98. The Development of International Law By the International Court, 1958, p.61.Google Scholar

99. Ibid., at p.37.

100. The Law and Practice of the International Court, op. cit., p.614.Google Scholar

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106. Ibid., at p.36.

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109. Application for Permission to Intervene, I.C.J. Reports, 1984, p.25.Google Scholar

110. I.C.J. Reports, 1993, pp.37, 87.Google Scholar

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112. Ibid., at p.39.

113. Fairness op. cit., 1995, p.318.Google Scholar

114. I.C.J. Reports, 1976, pp.3, 20.Google Scholar

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117. I.C.J. Reports, 1957, pp.36.Google Scholar

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121. Ibid., at pp.94–5.

122. I.e. the negotiation, conclusion and implementation of the Agreement of 11 December 1989 with Indonesia and consequential activities, id. p.94.

123. Submissions 3, 4 and 5 dealt with certain consequential issues.

124. Ibid., at p.95.

125. Ibid., at p.103.

126. I.C.J. Reports, 1954, p.32.Google Scholar

127. I.C.J. Reports. 1995, p.104.Google Scholar

128. Ibid., at p.102. See e.g. the Namibia, I.C.J. Reports, 1971, p.16Google Scholar and Western Sahara, I.C.J. Reports, 1975, p.12, cases.Google Scholar

129. Id, at p.103.Google Scholar

130. In an act termed one of “constructive diplomacy” by Eli Lauterpacht, see “‘Partial’ Judgments and the Inherent Jurisdiction of the International Court of Justice” in Fifty Years of the International Court of Justice, op. cit., pp.465, 473.Google Scholar

131. I.C.J. Reports, 1994, pp.112, 127.Google Scholar

132. This concerned disputes between the two parties with regard to sovereignty over the Hawar islands, sovereign rights over the shoals of Dibal and Qit'at Jaradah, and the delimi tation of the maritime areas of the two states, ibid., at p.114.

133. Ibid.

134. See also the Qatar v. Bahrain (jurisdiction and admissibility) judgment of 15 02 1995, I.C.J. Reports, 1995, p.6.Google Scholar

135. Supra.

136. “The Judiciary”, loc. cit., p.3.Google Scholar

137. See the Haya de la Torre case, I.C.J. Reports, 1951, pp.71, 79Google Scholar. See also the Free Zones case, P.C.I J., Series A/B, No.46 at p.162.Google Scholar

138. See the Northern Cameroons case, I.C.J. Reports, 1963, pp.15, 29.Google Scholar

139. See e.g. Shahabuddeen, , “The World Court at the Turn of the Century”, loc. cit., p.4.Google Scholar

140. See Art.38(l) of the Statute. Note that the parties may specifically request that the Court take into account particular factors. In the Tunisia/Libya case, I.C.J. Reports, 1982, pp.18, 21Google Scholar, the compromis specifically asked the Court to take into account “the recent trends admitted at the Third Conference on the Law of the Sea”.

141. The Fisheries Jurisdiction cases, I.C.J. Reports, 1974, pp.3, 19, 23–4.Google Scholar

142. Seee.g. Hudson, , The Permanent Court of Intemational Justice 1920–1942, 1943, p.194Google Scholar; Stone, , Of Law and Nations, 1974, Chapter III; Lauterpacht, “Some Observations on the Prohibition of Non Liquet and the Completeness of the Legal Order”, Symbolae Verzijl, 1958, p.196Google Scholar, and Thirlway, , “The Law and Procedure of the International Court of Justice”, B. Y.I.L., 1988, p.76Google Scholar. See also the North Sea Continental Shelf cases, I.C.J. Reports, 1969, p.46Google Scholar, and the Nicaragua case, I.C.J. Reports, 1986, p.135.Google Scholar

143. Oppenheim's International Law (eds. Jennings, and Watts, ), 1992, p.13.Google Scholar

144. I.C.J. Reports 1996, paras.36–40:35 I.L.M., 1996, pp.809, 830 and 831.Google Scholar

145. Para.2E of the dispositif. See also para.97.

146. 35 I.L.M., p.934et seq.Google Scholar

147. In the Barcelona Traction case, I.C.J. Reports, 1970, pp.3, 31.Google Scholar

148. See e.g. Judge Lachs in his Separate Opinion in the Nicaragua case, I.C.J. Reports, 1986, pp.14, 171.Google Scholar

149. See further infra, p.855.Google Scholar

150. Infra, p.856.Google Scholar

151. See e.g. the Iranian Airbus case, I.C.J. Reports, 1996, p.9.Google Scholar

152. See e.g. the Barcelona Traction case, I.C.J. Reports, 1970, pp.3, 30–1.Google Scholar

153. Note Thirlway's view that procedure is “no more than a way of getting somewhere”, “Procedural Law and the International Court of Justice” in Fifty Years of the International Court of Justice, op. cit, p.389.Google Scholar

154. See e.g. Judge, Weeramantry's Dissenting Opinion in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Nuclear Tests Case, I.C.J. Reports, 1995, pp.288, 320, where he noted that this power enabled it to devise a procedure sui generis.Google Scholar

155. See Art.101 of the Rules of Court.

156. An example of this was the additional application submitted by the Cameroon in the Cameroon v. Nigeria case on 6 June 1994 to the original application of 29 March 1994 which had the effect of extending the dispute before the Court. The Agent of Nigeria stated that he had no objection to the additional application being treated as an amendment to the original application, see e.g. I.C.J. Reports, 1994, p.105Google Scholar and I.C.J. Reports, 1996, p.13Google Scholar. Neither the Statute nor the Rules of the Court provide for the amendment of applications, although Rule 47 does permit the joinder of two or more cases. See also Lauterpacht, E., “Partial Judg ment”, loc. cit, pp.475–6.Google Scholar

157. See e.g. the Mavrommatis Palestine Concessions case, P.C.I J., Series A, No.2, p.34 and the Polish Upper Silesia case, P.C.I J., Series A, No.6, p.14.Google Scholar

158. Arts.49(l) and (2) of the Rules.

159. Art.49(3) of the Rules.

160. See e.g. Highet, “Increasing the Effectiveness of the Court”, paper delivered to the I.CJ/UNITAR Colloquum, 16 April 1996.Google Scholar

161. Note the concern of the Court expressed in its annual report to the General Assembly covering 1995/1996, A/51/4, para.188 et seq.Google Scholar

162. See e.g. Highet, , loc. cit.Google Scholar

163. Supra p.856.Google Scholar

164. See e.g. Bowett, et al. , loc. cit., p.S7el seq.Google Scholar

165. Note that Art.60(l) of the Rules of the Court provide that “the oral statements made on behalf of each party shall be as succinct as possible within the limits of what is requisite for the adequate presentation of that party's contentions at the hearing. Accordingly, they shall be directed to the issues that still divide the parties, and shall not go over the whole ground covered by the pleadings, or merely repeat the facts and arguments these contain“. See also Jiménez de Aréchaga, loc. tit, p.6.Google Scholar

166. See e.g. Alford, , “Fact-Finding by the World Court”, 4 Vill. L.R., 1958, p.37Google Scholar; Schwebel, , “Three Cases of Fact-Finding by the International Court of Justice” in Justice in International Law, op. cit., p.125Google Scholar; Highet, “Evidence, the Court and the Nicaragua Case”, 81 A.J.l.L., 1987, p.l; ibid., “Evidence and Proof of Facts” in The International Court of Justice at a Crossroads, op. til, p.355Google Scholar; Pact-Finding Before International Tribunals, ed. Lillich, , 1991Google Scholar, and Sandifer, , Evidence Before International Tribunals, rev. ed., 1975.Google Scholar

167. Art.48 of the Statute.

168. Art.49 of the Statute.

169. Art.50 of the Statute. By Art.43(5), the Court may hear witnesses and experts, as well as agents, counsel and advocates.

170. Art.44(2) of the Statute and Art.66 of the Rules of Court.

171. See Highet, , “Evidence, the Court and the Nicaragua Case”, loc. cit., p.10.Google Scholar

172. But see the Corfu Channel case, I.C.J. Reports, 1949, p.4.Google Scholar

173. But see e.g. the Corfu Channel case, I.C.J. Reports, 1949, p.4Google Scholar; the Tunisia/Libya case, I.C.J. Reports, 1989, p.18Google Scholar; the Libya/Malta case, I.C.J. Reports, 1985, p.13Google Scholar, and the Nicaragua case, I.C.J. Reports, 1986, p.14.Google Scholar

174. First, in the Diversion of the River Meuse case, P.C.I.J, Series A/B, No.70, and sec ondly in the Gabcikovo-Nagymaros case, I.C.J. Communiqué No.97/3, 17 February 1997, by Order of the Court of 5 February 1997.Google Scholar

175. See e.g. the Nicaragua case, I.C.J. Reports, 1986, p.14. The difficulties of proving facts in this case were, of course, exacerbated by the absence of the respondent state during the proceedings on the merits.Google Scholar

176. Ibid.

177. See e.g. the Corfu Channel case, I.C.J. Reports, 1949, pp.4, 32–6Google Scholar. See also Thirlway, , “Dilemma or Chimera?—Admissibility of Illegally Obtained Evidence in International Adjudication”, 78 A J.I. L., 1984, p.622.Google Scholar

178. I.C.J. Reports, 1993, pp.325, 336–7.Google Scholar

179. Art.56 of the Rules provides that after the closure of written proceedings, no further documents may be submitted to the Court by either party except with the consent of the other party or in the absence of consent where the Court, after hearing the parties, authorises production where it is felt that the documents are necessary.

180. See e.g. the Nicaragua case, I.C.J. Reports, 1984, pp.392, 437.Google Scholar

181. Of particular interest here is the view taken by the Arbitral Tribunal for Dispute over Inter-Entity Boundary in Brcko Area in its Award of 14 February 1997. The Appendix to the Order lays down the Principles Applicable to the Admissibility of Evidence and notes inter alia that each party bears the burden of proving its own case and in particular facts alleged by it. The party having the burden of proof must not only bring evidence in support of its alle gations, but must also convince the Tribunal of their truth. The Tribunal is not bound to adhere to strict judicial rules of evidence, the probative force of evidence being for the Tri bunal to determine. Where proof of a fact presents extreme difficulty, the Tribunal may be satisfied with less conclusive, i.e. prima facie evidence. See 36 I.L.M., 1997 pp.396, 402–3.Google Scholar

182. Note that under Art.54(2) of the Rules, the Court, in fixing the date for oral hearings, “shall have regard … to any other special circumstances, including the urgency of a particular case”. This would permit the Court to enable hearings on jurisdiction to have a certain priority.

183. See also articles 73–8 of the Rules of Court. See e.g. Oda, , “Provisional Measures” in Fifty Years of the International Court of Justice, op. cit., p.541Google Scholar; Oxman, , “Jurisdiction and the Power to Indicate Provisional Measures” in The International Court of Justice at the Cross roads, op. cit, p.323Google Scholar; Merrills, , “Interim Measures of Protection and the Substantive Jurisdiction of the International Court”, 36 Cambridge Law Journal, 1977, p.86; ibid., “Interim Measures of Protection in the Recent Jurisdiction of the International Court of Justice”, 44 I.C.L.Q., 1995, p.90CrossRefGoogle Scholar; Rosenne, , Law and Practice, op. cit., Vol.I, pp.224–28Google Scholar; Gross, , “The Case Concerning United States Diplomatic and Consular Staff in Tehran: Phase of Provisional Measures”, 74 A.J.l.L., 1980, p.395CrossRefGoogle Scholar; Gray, , Judicial Remedies in International Law, 1987, pp.69–74Google Scholar and Mendelson, , “Interim Measures of Protection in Cases of Contested Jurisdiction”, 46 B.Y.I.L., 1972–1973, p.259.Google Scholar

184. See the request by Guinea-Bissau for the indication of provisional measures in the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) case, I.C.J. Reports, 1990, pp.64, 68Google Scholar. See also the Great Belt case, I.C.J. Reports, 1991, pp.12, 15Google Scholar, where jurisdiction was not at issue and Cameroons v. Nigeria, I.C.J. Reports, 1996, pp.13, 21Google Scholar, where it was. The Court in the Genocide Convention (Bosnia v. Yugoslavia) case, I.C.J. Reports, 1993 pp.3, 12; noted that jurisdiction included both jurisdiction rationae personae and ratione materiae. Note that Jiminez de Aréchaga, a former President of the Court, has written that “interim measures will not be granted unless a majority of judges believes at the time that there will be jurisdiction over the merits”, “International Law in the Past Third of a Century”, 159 H.R., 1978 l, pp.1, 161.Google Scholar

185. I.C.J. Reports, 1991, pp.12, 18.Google Scholar

186. Ibid., pp.37, 38.

187. I.C.J. Reports, 1991, p.12.Google Scholar

188. Ibid., p.18. See also CR91/ll, p.11, 2 July 1991.Google Scholar

189. Ibid.

190. See also Merrills, loc. cit., 1995, p.112.Google Scholar

191. This was sought by Denmark in the Great belt case, I.C.J.Reports, 1991, pp.12, 15, but was not decided upon since Finland's application for the indication of provisional measures failed. See also Merrills, loc. cit., 1995, p.117.Google Scholar

192. See also the two Orders of the Court in the Genocide Convention (Bosnia v. Yugosla via) case, I.C.J. Reports, 1993, pp.3 and 325.Google Scholar

193. The Aegean Sea Continental Shelf case, I.C.J. Reports, 1976, pp.3, 9Google Scholar and the Iranian Hostages case, I.C.J. Reports, 1979, pp.7, 19Google Scholar. See also the Arbitral Award of 31 July 1989 case, I.C.J. Reports, 1990, pp.64, 69.Google Scholar

194. See e.g. Merrills, , loc. cit., 1995, p.106et seq.Google Scholar

195. See the Great Belt case, I.C.J. Reports, 1991, pp.12, 17, cf. Cameroons v. Nigeria, I.C.J. Reports, 1996, pp.13, 22.Google Scholar

196. See e.g. the Fisheries Jurisdiction case, I.C.J. Reports, 1974, pp.3, 17.Google Scholar

197. I.C.J. Reports, 1980, pp.3, 43.Google Scholar

198. I.C.J. Reports, 1979, p.7.Google Scholar

199. Since under Art.74(l) of the Rules of the Court, a request for the indication of provisional measures has priority over all other cases.

200. See Bowett, et al. , loc. cit., p.S19, where the six and a half month period between close of oral hearings and delivery of judgment in the Libya/Chad case is cited, a judgment which was not complex, relying on one critical ground and taking some 17 pages only of reasoning.Google Scholar

201. In brief and simple terms, the following constitutes the usual methodology A meeting of the Court is held before oral arguments begin for an exchange of views on the written pleadings and to identify points on which explanations need to be solicited from the parties. After the close of oral hearings, a meeting is held to discuss the case at which the President will present an Outline of Issues, prepared by the Registry and approved by him. Judges will then prepare written notes on the case if they wish. After a period, a meeting will be held at which the judges will present their opinions orally in reverse order of seniority. A Drafting Committee will be established from amongst those representing the majority opinion. A preliminary draft will be circulated, which will be revised by the Committee in the light of any amendments and then discussed. Drafts of separate and dissenting opinions will also be circulated. An amended draft of the judgment will be discussed and the final versions of judgment and opinions prepared. See the 1976 Resolution on Practice, International Court of Justice, Acts and Documents Concerning the Organisation of the Court, 1989, p.165. See also e.g. Jennings, “Internal Judicial Practice”, loc citGoogle Scholar; Bedjaoui, , “La ‘Fabrication’ des Arrêts de la Cour International Internationale de Justice” in Mélanges Virally, 1991, p.87Google Scholar; Oda, , “The International Court of Justice Viewed from the Bench”, 244 H.R., 1993–VII, p.13Google Scholar and Bowett, et al. , loc. cit., p.S13et seq.Google Scholar

202. Note the view of Judge Oda that in order for more cases to be dealt with by the Court, “reform of the deliberation procedure will become inevitable”, loc. cit, p. 126.Google Scholar

203. This would operate under the overall direction of the President as per Art.12 of the Rules.

204. Which should themselves, be scheduled soon after the completion of the written pro ceedings. See, for example, the call by Bowett, et al. for an indicative six months maximum between closure of pleadings and commencement of oral argument, loc. tit, p.S8.Google Scholar

205. See supra note 201.Google Scholar