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- Preliminary Material
- Preface
- Excerpts from the Preface to the First Edition
- Contents
- Abbreviations
- List of Authors
- General Bibliography
- Table of Cases I International Court of Justice
- Table of Cases II Permanent Court of International Justice
- Table of Cases III Other Bodies
- International Criminal Court
- International Criminal Tribunal for the former Yugoslavia
- International Tribunal for the Law of the Sea
- European Court of Human Rights
- European Commission of Human Rights
- Inter-American Court of Human Rights
- Central American Court of Justice
- European Court of Justice/General Court
- International Centre for the Settlement of Investment Disputes
- WTO, Panels and Appellate Body
- Arbitral Awards
- United Nations Human Rights Committee
- United Nations Committee against Torture
- National Cases
- Main Text
- Part One Introduction
- General Introduction
- Preliminary Material
- A Introduction
- B General Issues
- I The Relation between the Present Court and the PCIJ
- II The Court and the Charter of the United Nations
- III Contentious Jurisdiction
- IV Advisory Jurisdiction
- V Admissibility
- VI The Size of the Court
- VII The Court’s Adversarial Process
- VIII The Reporting of Cases and the Accessibility of the Court’s work
- IX Separate and Dissenting Opinions
- X Judges ad hoc
- XI Chambers of the Court
- C Activity of the Court
- 45
- 46
- 47
- 48
- 49
- 50
- 51
- I The First Decade: 1946–1956
- II The Second Decade: 1956–1966
- III The Third Decade: 1966–1976
- IV 1976 to 2003
- V 2004 to the Present Time
- D Outlook
- Historical Introduction
- Preliminary Material
- A The PCIJ Statute: Seeking the Future in the Past
- B The PCIJ and the PCA Compared: From Arbitration to Adjudication
- C Drafting of the PCIJ Statute in 1920
- D First Decade of the PCIJ, 1922–1930
- E Revising the PCIJ Statute, 1929–1936
- F Second Decade of the PCIJ, 1931–1940
- G From the PCIJ to the ICJ
- General Introduction
- Part Two Relevant Provisions of the UN Charter
- Article 2, para. 3 UN Charter
- Article 7 UN Charter
- Preliminary Material
- A The Function of Art. 7, para. 1 UN Charter in Respect of the Court
- B Historical Development
- C The ICJ as an Organ of the United Nations
- D Relations of the ICJ with Other Organs
- 20
- I The ICJ as ‘Principal Organ’
- II The ICJ as ‘Judicial Organ’
- III The ICJ as ‘Principal Judicial Organ’
- E The Relationship between the ICJ as an Organ of the United Nations and the ICJ as a World Court
- F Evaluation
- Article 33 UN Charter
- Article 36 UN Charter
- Article 92 UN Charter
- Article 93 UN Charter
- Article 94 UN Charter
- Article 95 UN Charter
- Article 96 UN Charter
- Part Three Statute of the International Court of Justice
- Article 1
- Ch.I Organization of the Court
- Article 2
- Article 3
- Article 4
- Article 5
- Article 6
- Article 7
- Article 8
- Article 9
- Article 10
- Article 11
- Article 12
- Article 13
- Article 14
- Article 15
- Article 16
- Article 17
- Article 18
- Article 19
- Article 20
- Article 21
- Article 22
- Article 23
- Preliminary Material
- A Historical Development
- B Analysis
- C Evaluation
- Article 24
- Article 25
- Article 26
- Preliminary Material
- A Introduction
- B Chambers Dealing with Particular Categories of Cases
- C Chambers Dealing with a Particular Case
- Article 27
- Article 28
- Article 29
- Article 30
- Article 31
- Article 32
- Preliminary Material
- A Introduction
- B The Conditions of Service and Compensation of the Members of the Court
- C Compensation of the Judges ad hoc
- D The Salaries and Pensions of the Registrar and the Registry Staff
- E Travel and Subsistence Allowance
- F Exemption from All Taxation
- G Evaluation
- Article 33
- Relationship of the ICJ with Other International Courts and Tribunals
- Preliminary Material
- A The Jurisdiction of the PCIJ in the Context of the Parties’ Preference for Other Methods for the Settlement of Disputes
- B The Relationship between Acceptance of the ICJ’s Jurisdiction and Agreements Providing for the Settlement of Disputes by Other International Courts and Tribunals
- C Issues of Judicial Propriety
- D The Review by the ICJ of Final Arbitral Awards
- E The Risk of Fragmentation of International Law because of the Proliferation of International Courts and Tribunals
- Ch.II Competence of the Court
- Article 34
- Preliminary Material
- A Introduction: Meaning and Scope of Art. 34
- B Historical Development
- C Criticism Addressed to Art. 34
- D Alternative Means Offered to International Organizations: Compulsory Advisory Opinions and Others
- E Evaluation
- Article 35
- Preliminary Material
- A Function of Art. 35
- B Historical Development
- C General Questions of Art. 35
- D Access to the Court under Art. 35, para. 1
- E Access to the Court under Art. 35, para. 2
- I General Questions
- II Scope of Application ratione personae of Art. 35, para. 2
- III Conditions for Access to the Court under SC Res. 9 (1946)
- IV ‘… Subject to the Special Provisions Contained in Treaties In Force…’
- V ‘… But In No Case Shall Such Conditions Place The Parties In a Position of Inequality Before the Court’
- F Contribution to the Expenses of the Court Under Art. 35, para. 3
- G Evaluation
- Article 36
- Preliminary Material
- A Historical Development
- B Main Features of the Jurisdictional Scheme under Art. 36
- I Jurisdiction
- II Disputes
- III Difference of Opinion
- IV Legal Disputes
- V Political Disputes
- VI The ICJ and the Security Council
- VII Disputes Unsuitable For Judicial Settlement
- VIII Consent
- IX Indispensable Third Party
- X Jus cogens
- XI Reciprocity
- XII Issues to be Raised ex officio or proprio motu by the Court
- XIII Incidental Jurisdiction
- C Detailed Analysis of Art. 36
- I Article 36, paras. 1 and 2—Common Characteristics
- II Article 36, para. 1
- 38
- 1 Special Agreement (Compromis)
- 2 Charter of the United Nations
- 3 Treaties and Conventions in Force
- 48
- a) General Treaties and Conventions Providing for Dispute Settlement by the ICJ
- b) Specialized Multilateral Treaties and Conventions with Compromissory Clauses
- c) Gaps in the Network of Compromissory Clauses
- d) Determination of Scope of Compromissory Clauses
- e) Challenges to the Validity of Treaties and Conventions
- f) Appropriate Wording of Compromissory Clauses
- g) Compromissory Clauses Referring to Substance of Dispute
- h) Reservations to Compromissory Clauses
- III Article 36, para. 2
- IV Exceptional Title of Jurisdiction outside Art. 36,paras. 1 and 2?
- V Article 36, para. 3
- VI Article 36, para. 4
- VII Article 36, para. 5
- VIII Article 36, para. 6
- 1 The Principle of Kompetenz-Kompetenz
- 2 The Applicable Regime under the Rules of Court
- 110
- 111
- 112
- 113
- a) Concept of ‘Application’
- b) Scope ratione personae of Right to Raise Preliminary Objections
- c) Meaning of 90-Day Time-Limit
- d) Raising of Preliminary Objections ahead of Receipt of Memorial?
- e) Invocation of New Grounds of Jurisdiction by Applicant
- f) Jurisdiction and Admissibility
- g) In particular: Admissibility
- 3 No Forfeiture of Right to Seise the Court
- 4 Critical Date
- 5 Decision on Preliminary Objections
- 6 Applications Lacking any Jurisdictional Basis
- IX Jurisdiction in Instances of Provisional Measures under Art. 41
- D Evaluation
- Article 37
- Article 38
- Preliminary Material
- A Introduction—The Function of the Court and Applicable Law
- B Historical Development
- C The Function of the Court
- 55
- I The Function of the Court ‘is to decide …’
- II ‘… in accordance with international law’
- D The Sources of International Law in Art. 38
- 176
- I The Particular Sources Listed in Art. 38
- II The Relationships between the Sources Listed in Art. 38
- E The Subsidiary Means for the Determination of Rules of Law
- General Principles of Procedural Law
- Article 34
- Ch.III Procedure
- Article 39
- Article 40
- Preliminary Material
- A Purposes of Art. 40
- B Historical Development
- C Several Salient Features of Art. 40
- I Introduction
- II Main Issues in a Normal Contentious Case
- 1 Methods of Instituting Proceedings; Instruments Used to Institute Proceedings
- 17
- a) The Basic Methods and Instruments: Notification of Special Agreement and Application
- b) The Permutations
- 20
- aa) Notification of Special Agreement
- bb) Application
- cc) Application Based on a Special Agreement or ‘Framework Agreement’
- dd) Application in a Naked Attempt to Employ forum prorogatum as the Sole Basis of Jurisdiction
- ee) Application in an Attempt to Employ forum prorogatum as an Alternative Basis of Jurisdiction
- 2 Content of the Instrument Instituting Proceedings
- 32
- 33
- a) Instrument ‘Addressed to the Registrar’
- b) Indication of the Parties and the Declaration Accepting Conditions for Accessing the Court under Art. 35, para. 2
- c) ‘Subject of the Dispute’ in General
- d) ‘Subject of the Dispute’ in Special Agreements
- e) ‘Subject of the Dispute’ and Further Requirements in Applications
- 48
- aa) The Development of Art. 38, para. 2 of the Rules
- bb) Scope of Application of the Phrase ‘as Far as Possible’
- cc) Jurisdictional Bases and Problems with Subsequent Additions
- dd) ‘Subject of the Dispute’; ‘Precise Nature of the Claim’ and ‘Succinct Statement of the Facts and Grounds on which the Claim is Based’
- ee) ‘Subject of the Dispute’ and the Expansion of Proceedings
- f) Evidence of Authority to Act before the Court
- 3 The Internal Processing of the Instrument Instituting Proceedings Within the Court
- 67
- a) Receipt of the Instrument Instituting Proceedings and Date of the Institution of Proceedings
- b) Initial Control by the Registrar
- c) Communication of the Instrument Instituting Proceedings to the Members of the Court
- d) General List
- e) Titles of Cases
- f) Treatment of Applications in an Attempt to Employ forum prorogatum as the Sole Jurisdictional Basis or as an Alternative Jurisdictional Basis
- g) The Control over the General List and a Call for Formalizing the ‘No Case Exists Objections’ Procedure
- h) A ‘Case List’ for All Documents Filed in a Case?
- 4 Communication of the Instrument Instituting Proceedings to the Outside World
- 87
- a) Same Treatment for Applications and Notification of Special Agreement
- b) Communication to ‘All Concerned’—Parties and Potential Interveners
- c) Communication to ‘Members of the United Nations through the Secretary-General’
- d) Communication to ‘any Other States Entitled to Appear before the Court’
- e) Practical Implementation: Channel and Means of Communication; Time; Language and Urgent Notification
- f) Treatment of Applications in a Naked Attempt to Employ forum prorogatum as the Sole Jurisdictional Basis and Applications in an Attempt to Employ forum prorogatum as an Alternative Jurisdictional Basis
- g) Press Releases
- 5 Competent Act of State in Further Proceedings
- 6 Further Complications in the Proceedings: Modification of Claims, New Claims, ‘Subject of the Dispute’ or ‘Subject of the Application’?
- 7 Special issue: forum prorogatum
- 1 Methods of Instituting Proceedings; Instruments Used to Institute Proceedings
- III Institution of Other Types of Proceedings
- 134
- 1 Incidental Proceedings: Preliminary Objections; Requests for Provisional Measures
- 2 Incidental Proceedings: Counter-Claims
- 3 Incidental Proceedings: Intervention under Arts. 62 or 63
- 4 Special Reference to the Court (Under Art. 87 of the Rules of Court)
- 5 Interpretation of Judgments under Art. 60
- 6 Revision of Judgments under Art. 61
- 7 Abnormal Special Proceedings (Nuclear Tests [Request for Examination])
- 8 Chamber Proceedings
- 9 Advisory Proceedings
- 10 Applications by Private Persons or Non-State Entities
- D Evaluation
- Counter-Claims Article 80 of the Rules
- Preliminary Material
- A Introduction
- B Historical Development of the Rule Dealing with Counter-Claims
- C Issues of Interpretation
- 12
- I Two Requirements in Order to Entertain the Counter-Claim
- II Jurisdiction Over the Counter-Claim ‘As Such’
- III Direct Connection with the Subject-Matter of the Claim
- IV Filing the Counter-Claim with the Counter-Memorial
- V Counter-Claim as an Independent Claim and Not a Defence
- VI Other Party’s Right to an Additional Pleading
- VII Procedure for Deciding the Admissibility of the Counter-Claim
- VIII Withdrawal of the Counter-Claim
- IX Objections to the Counter-Claim at the Merits Phase
- X Disposition of the Counter-Claim on the Merits
- D Evaluation
- Article 41
- Preliminary Material
- A Historical Development
- B Substantive Aspects of Art. 41
- C Conditions for the Indication of Provisional Measures
- D Procedure
- I General Remarks
- II Filing a Request
- III Action of the Court proprio motu
- IV Powers of the President
- V Participation of a Judge ad hoc
- VI Proceedings
- E Provisional Measures and Advisory Opinions
- F Binding Effect of Provisional Measures
- G The Role of the Security Council
- H Evaluation
- [No Title]
- I Annex: Requests for Provisional Measures 1926–2011
- [No Title]
- Article 42
- Article 43
- Preliminary Material
- A Introduction: Procedure Before the Court
- B Historical Development
- C Procedure in the Principal Proceedings on the Merits
- I The Written Proceedings
- 1 Obligatory Nature
- 2 The Pleadings
- 3 Documents in Support of the Contentions Contained in the Pleadings
- 4 Confidentiality of Pleadings and Documents
- 5 Closure of the Written Proceedings
- II The Oral Proceedings
- 93
- 94
- 95
- 96
- 1 Obligatory Nature
- 2 Organization of the Oral Proceedings
- 3 Oral Argument by Representatives of the Parties
- 4 Oral Evidence by Witnesses and Experts
- a) Right of the Parties to Produce Oral Evidence
- b) Persons Giving Oral Evidence
- c) Information on the Oral Evidence to Be Produced
- d) Procedure for the Obtaining of Oral Evidence
- e) Languages Used for Oral Evidence
- f) Transcripts of Oral Evidence
- g) Code of Conduct Regarding the Disclosure of Oral Evidence
- 5 Documents Part of the Oral Proceedings
- 6 Closure of the Oral Proceedings
- I The Written Proceedings
- D Procedure in Incidental Proceedings on Preliminary Objections
- E Evaluation
- Article 44
- Preliminary Material
- A Historical Development
- B Function of the Provision
- C Article 44, para. 1
- D Article 44, para. 2
- E Site Visits and Advisory Opinions
- F Evaluation
- Article 45
- Article 46
- Article 47
- Article 48
- Preliminary Material
- A Historical Development
- B Analysis
- I General Considerations
- II The Subject-Matter of Orders
- 1 General Questions
- 2 Composition of the Court
- 3 Formation, Composition and Mandate of ad hoc Chambers
- 4 Number and Order of Written Pleadings and Fixing of Time-Limits
- 5 Non-Appearance
- 6 Joinder of Proceedings
- 7 Objections against Evidence Submitted
- 8 Incidental Proceedings
- 9 Appointment of Experts to Assist the Parties in Giving Effect to a Judgment
- 10 Requests for Interpretation and Revision of Judgments
- 11 Advisory Proceedings
- III Orders Concerning Arrangements Connected with the Taking of Evidence
- C Evaluation
- Evidentiary Issues
- Preliminary Material
- A Introduction
- B Sources of the Law of Evidence to be Applied by the Court
- C Analysis
- I Principles and Rules Governing the Procurement of Evidence
- II Burden of Proof
- III Means of Proof
- IV Assessment and Evaluation of Evidence, Standard of Proof, Probative Value
- 1 Assessment and Evaluation of Evidence
- 2 Standard of Proof
- 3 Probative Value
- 113
- 114
- a) Witness Testimony and Statements Made by Persons out of Court
- b) Affidavits
- c) Experts
- d) Reports of International Organizations
- e) Reports of National Official Agencies and Bodies
- f) Reports of Non-Governmental Organizations
- g) Judgments and other Documents from International Courts and Tribunals
- h) Maps
- i) Media Reports
- V Evidence in Advisory Proceedings
- D Evaluation and Outlook
- Article 49
- Article 50
- Article 51
- Article 52
- Article 53
- Preliminary Material
- A Function and Scope of the Procedure in Default of Appearance under Art. 53
- B Historical Development
- C The Scope of Application of Art. 53 in Contentious Cases
- D Party Status of Non-appearing States
- E Obligations of the Court under Art. 53, para. 2
- F Procedural Questions
- G Non-appearance in Advisory Proceedings
- H Evaluation
- Article 54
- Article 55
- Article 56
- Preliminary Material
- A The Requirement to State the Reasons on which the Judgment is Based
- B The Requirement to State the Names of the Judges who Have Taken Part in the Decision
- C Evaluation
- Article 57
- Article 58
- Article 59
- Discontinuance and Withdrawal
- Preliminary Material
- A Introduction
- B Historical Development of the Rules of Court Dealing with Discontinuance
- C Distinguishing Discontinuance from Similar Procedural Institutes or Situations
- D The Relationship between Arts. 88 and 89 of the Rules
- E The Requirements of Art. 88 of the Rules
- F The Requirements of Art. 89 of the Rules
- G Modification of Arts. 88 and 89 of the Rules ad casum
- H The Decision of the Court
- I Discontinuance of Preliminary Objection Proceedings and of Provisional Measures Proceedings
- J Discontinuance and Advisory Proceedings
- K Evaluation
- Article 60
- Preliminary Material
- A Article 60 and the Principle of res judicata
- B Historical Development of Interpretation Proceedings in International Judicial Proceedings
- C Distinguishing Interpretation Proceedings from Revision Proceedings
- D Specific Procedural Situations
- E Jurisdictional Prerequisites for Interpretation Proceedings
- F Participation of Third Parties in Interpretation Proceedings
- G Substantive Requirements for a Request under Art. 60 to be Admissible
- H Composition of the Bench in Interpretation Proceedings
- I Procedural Issues
- J Evaluation
- Article 61
- Preliminary Material
- A Function and Scope of Application of Revision Proceedings Under Art. 61
- B Historical Development
- C Distinguishing Revision Proceedings from Similar Proceedings
- D Specific Procedural Situations
- E Jurisdictional Prerequisites for Revision Proceedings
- F Participation of Third States in Revision Proceedings
- G Procedure
- H Substantive Requirements for a Request Under Art. 61 to be Admissible
- I ‘Discovery of Some Fact’
- II Existence of the Fact Prior to the Judgment to be Revised
- III ‘… of Such a Nature as to be a Decisive Factor …’
- IV ‘… Unknown to the Court and Also to the Party Claiming Revision …’
- V Time-limits for Revision under Art. 61, paras. 4 and 5
- VI Inadmissibility of Revision Proceedings by Virtue of General International Law?
- I Effects of a Judgment Declaring a Request for Revision Admissible
- J Composition of the Bench in Revision Proceedings
- K Evaluation
- Article 62
- Preliminary Material
- A Introduction
- B Historical Development
- C Characteristics of Intervention
- D Requests to Intervene under Art. 62
- E Procedural Matters
- F Requirements for Intervention
- G The Status of an Intervening State
- H Relationship between Arts. 62 and 59
- I Intervention under Other Conventions
- J Evaluation
- Article 63
- Preliminary Material
- A Introduction
- B Historical Development
- C Comparison between Arts. 62 and 63
- D Declarations of Intervention under Art. 63
- E The Terms of Art. 63
- F Procedural Issues of Intervention
- G Consequences of a Declaration of Intervention
- H Relationship between Arts. 63 and 59
- I Intervention under Other Conventions
- J Evaluation
- Article 64
- Ch.IV Advisory Opinions
- Part One Introduction