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Problems and Process - International Law and How We Use It by Higgins, Rosalyn (24th August 1995)

11 Dispute Settlement and the International Court of Justice

From: Problems and Process: International Law and How We Use It

Rosalyn Higgins

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 October 2019

Subject(s):
Jurisdiction — International courts and tribunals, procedure — Advisory opinions — Subject matter of the dispute (and jurisdiction) — Reservations and exceptions

(p. 186) 11  Dispute Settlement and the International Court of Justice

We have seen that, in a decentralized system, a variety of participants invoke international law in advancing claims against each other. They do so with varying degrees of seriousness over the extent to which they really believe that their conduct or claims comply with the requirements of international law. But, at the moment at which the parties to a legal controversy believe that the preferred solution is to have the issue resolved authoritatively by a third party, there arises the possibility for an international tribunal to act. There are really three kinds of data that are particularly interesting to look at: the first is the potential for the International Court of Justice taking jurisdiction over various states; the second is the actual use of the Court by various states; and the third is the subject-matter upon which cases have been brought before the Court. Let us take them one by one.

The Potential for Jurisdiction

The competence of international tribunals is essentially founded on consent, though, as we shall see, it has become increasingly tolerated for that consent to be given in a rather general way, so that it is a consent of principle rather than a consent in relation to a particular dispute with a particular opponent. Standing international courts are themselves established by international treaty. Thus the Inter-American Court on Human Rights, the European Court on Human Rights, the Court of the European Community, and the International Court of Justice each owes its existence to international agreements between states. But to exist is one thing; to have competence in respect of particular states in regard to particular claims is another. It is the founding treaty itself which elaborates how it is that a court may have jurisdiction in a particular dispute. The Inter-American Convention on Human Rights, the European Convention on Human Rights, the Treaty of Rome, and the UN Charter all provide their own different answers.

The Inter-American and European Courts on Human Rights, and the Court of the European Community, are constrained by their founding treaties as to the subject-matter they can determine; and by the restricted (p. 187) parties to those treaties as to the states who may bring claims before them. Two Asian states may not go before the Inter-American Court on Human Rights to resolve a fishing dispute. But the International Court of Justice is properly viewed as the senior of all the International Courts, not only because of its long and distinguished history, but because of the breadth of the possibilities before it. Any state that is a party to the Statute (which means any member of the United Nations and any other state that has made special application to be a party to the Statute) can potentially come before it. And the Court can deal with any question at all of international law.

Article 38 of the Statute of the International Court of Justice stipulates that its function is ‘to decide in accordance with international law such disputes as are submitted to it’, and of course the Article goes on to say exactly what the Court will apply in fulfilling this task: the well-known sources of international law—namely, custom, treaties, general principles, judicial decisions, and the writings of the leading publicists. There is thus an enormous potential for the use of the Court, both as to parties and as to subject-matter. Some forty-eight years after the establishment of the United Nations, and the International Court in continuation of the Permanent Court, a picture begins to emerge.

Actual Use of the Court

Article 36 (1) provides that the jurisdiction of the International Court of Justice comprises cases which the parties refer to it and all matters specially provided for in the UN Charter or in treaties or conventions in force. Every party to the Statute can of course bring, ad hoc and on the basis of agreement, a case with another Statute party before the Court. The joint reference in 1987 by Italy and the United States of the ELSI Case1 to the Court is just such an example. It was simply agreed between the two states that they would avail themselves of the advantage of being parties to the Court, and submit the case to the Court. Although the potential is enormous, relatively few cases have been brought before the Court on this basis. But since the very early 1980s there has been a much greater use of ad hoc agreed reference to the Court. Since 1983 it has been used by the United States and Canada in the Gulf of Maine Case;2 by Libya and Malta in their continental shelf dispute;3 by Burkina Faso and Mali in their frontier dispute;4 by Libya and Tunisia in the latter’s application for (p. 188) revision and interpretation of a judgment;5 by Italy and the United States in the ELSI Case;6 by Denmark and Norway in the problem regarding maritime delimitation;7 and by Finland and Denmark in the passage through the Great Belt.8 It is noticeable that there is an accelerated trend to use the Court on this basis (it is now a high percentage of all references) and that a wide spread of states, from various regions of the world, is taking advantage of the possibility. It is no coincidence that by 1992 the Court had over twelve cases waiting for disposal. This is exactly because states from all over the world are coming to the Court, not reluctantly dragged there by reference to instruments they now wished they had never signed, but voluntarily. This undoubtedly reflects an increasing confidence in the Court, not only as an institution of great competence and impartiality but one perceived as capable of ensuring that its interpretation of international law is at once predictable and responsive to diverse legitimate needs.

Article 36 (1) speaks not only of cases that are simply referred to the Court, but of treaties as a basis of its jurisdiction. Any treaty, whether bilateral or multilateral, can include a clause which stipulates that disputes that arise about the interpretation and application of the treaty are to be referred for judicial resolution. (Whether such a clause allows of reservations depends, as the Court explained in the famous Reservations Case9 about just such a clause, upon whether that would be compatible with the objects and purposes of the treaty concerned.) There are over 260 treaties, multilateral and bilateral, which envisage such a possibility. Again, the range of parties thereto in multilateral treaties is enormous. Such multilateral treaties include the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries and the 1980 Convention on the Conservation of Antarctic Marine Living Resources. There is such a clause also, for example, in the 1961 Vienna Convention on Diplomatic Relations, which is a very widely ratified treaty. As for the bilateral treaties, again they reveal a rather wide spread of states potentially prepared to go to the International Court over any dispute that might arise regarding the treaty. They include Canada and the United States, several European countries (France, Italy, the United Kingdom, Norway, Switzerland); Brazil and Venezuela; Sudan and Saudi Arabia; and Togo, Guinea, and Liberia. It is noticeable that the African countries (p. 189) have been prepared to accept this reference to the Court in bilateral treaties with developed countries—but there is no evidence of any such potential reference to the Court in their bilateral treaties with each other. It seems that, in inter-African bilateral relations, judicial settlement procedures are not the norm, and reference ad hoc, should the parties agree, is preferred. Other things are noticeable too. There is a total absence of any interest by Asian states in referring bilateral treaty matters (no matter who the other party is) to the Court. Further, the tendency to include jurisdiction clauses in either multilateral or bilateral treaties is markedly declining. In the early years the Soviet Union and Eastern European states used to refuse any such reference to the Court, insisting on entering reservations to multilateral treaties that contained such clauses. Now all such objections have been withdrawn, but, ironically, the general interest in including such clauses has greatly diminished. In 1951 there were thirteen such treaties; since 1980 there have been two, more usually one, a year. This trend may partly reflect a growing variety of alternative dispute-settlement procedures on offer. Parties to multilateral treaties often envisage entirely different ways of working out their disputes and ensuring compliance with treaty obligations.

Article 36 (2) of the Statute provides for what is known as ‘Optional Clause’ jurisdiction, stipulating that a state party to the Statute may at any time declare that it recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in legal dispute. In this acceptance, a state effectively signs a blank cheque, as it does not know what will be the subject-matter of a future dispute that will be submitted under it to the Court, nor does it know the other party to the dispute—only that it will have accepted the same obligations as to jurisdiction. Acceptance of the Optional Clause may be indefinite, or upon notification of termination, or for a fixed period of years. It used to be the case that Western members of the United Nations were disproportionately represented among those who had accepted the Optional Clause, and that relatively few Third World countries had accepted it. Socialist countries, who until very recently have not accepted the idea of third-party judicial settlement, have never accepted the Optional Clause. The position now is significantly changed. The United Kingdom is alone among the Permanent Members of the Security Council in accepting the Optional Clause. The acceptances of France and the United States have both been withdrawn upon notice. France had found itself subject to Orders for Interim Measures in the Nuclear Tests Case10 and was also concerned at the possibility of jurisdiction being established over it in the future in respect of comparable issues. The United States deeply resented the way in which jurisdictional (p. 190) issues were handled by the Court in the Nicaragua v. United States Case.11 China and the USSR never had accepted the jurisdiction of the Court, under the Optional Clause or otherwise.

Although in 1991 there were fifty states parties to the Optional Clause, only eleven out of the fifty were from European countries. Australia and Japan, however, add to the number of industrialized countries party to the Optional Clause. But virtually all of the rest are Third World countries, including fourteen African states and seven central and southern American states. Asia is still under-represented in this form of jurisdiction-giving, as in others, with only Japan, India, Pakistan, and the Philippines (and Cyprus).

The evidence seems clear that, although the commitment to the Optional Clause has declined, the Third World commitment relative to that of the West has advanced. After a difficult period in the mid-1960s to mid-1970s—in part the legacy of the South West Africa Cases12—the Court today clearly commands the confidence of a very wide spread of countries. Of course, while this is an expression of confidence in the impartiality of the Court, and its ability to assist in resolving today’s problems, it is also a vote of confidence in international law. For it is international law that the Court has to apply, and there seems no remnant of the view often expressed in the 1960s that, no matter how impartial the Court may be, it would have to apply a corpus of law that was biased in favour of those who had formed it and had little to offer the newer states. There is now a wide appreciation that international law, with its in-built procedures for evolution and development, can assist all nations in resolving their disputes.

Clearly, in the last decade such countries as Libya, Tunisia, Malta, Nicaragua, El Salvador, Honduras, Guinea Bissau, Senegal, Chad—as well as Canada, the United States, Denmark, Norway, Australia, and Finland—have all felt the advantage of litigating before the Court. About half of the last twenty cases have been on the basis of agreed referrals, and the other half have been cases brought against reluctant defendants. Of course, the more reluctant the defendants—as the cases brought on the basis of the Optional Clause will often be—the more will such defendants seek to avail themselves of opportunities to argue that the Court in fact has no jurisdiction to proceed. The Optional Clause, as we will shortly see, (p. 191) offers many such opportunities, and in the past a substantial proportion of the Court’s hearings and judgments were directed not towards the substantive issues of international law at the heart of a case, but at issues concerning its own jurisdiction. With the declining emphasis on the Optional Clause and an increased use of ad hoc referrals to the Court, this necessary preoccupation with jurisdictional issues is receding somewhat—another healthy trend. (At the same time, to any international lawyer, some of the jurisdictional issues are of the very keenest interest and make absorbing study: we may cite the jurisdictional phase of the South West Africa Cases,13 the Nicaragua—United States Case,14 and Nauru v. Australia,15 as examples.

The Subject-Matter of Litigation before the Court

In contentious litigation, the Court has been called upon to deal with a wide subject-matter. Delimitation disputes (whether of zones or international frontiers, both maritime and territorial, take up a large amount of the Court’s workload. Thus there have been important cases concerning the width of territorial seas and the method for drawing baselines for this purpose.16 Vital issues relating either to the allocation of land, or to the more precise problems of drawing a boundary, have arisen in such cases as the Frontier Lands dispute between Belgium and the Netherlands;17 the Minquiers and Ecrehos Islands (between Britain and France)18 and the frontier dispute between Mali and Burkina Faso.19 In June 1993 the Court commenced hearings of the case that deals with a frontier dispute between Chad and Libya.20

The Court has also had to deal with other issues falling within the broad area of law of the sea—passage through straits in the particular factual circumstances of the Corfu Channel Case21 and the Great Belt Case22 (p. 192) providing fascinating and contrasting examples. And from time to time the Court has cases involving peace and security issues, conflicts relating to the use of force between states whose relations are generally hostile. The dispute over the shooting down by the United States of an Iran Airways plane,23 which concerns interesting questions about responsibility for mistake in the absence of culpa, and the Nicaragua—US litigation24 are cases in point, along with the cases concerning transboundary armed actions in South America (Nicaragua v. Honduras; Nicaragua v. Costa Rica).25

In principle, as we have seen, the Court can in its contentious litigation deal with any legal dispute: the subject-matter is potentially enormous. An interesting question arises from this. There is nothing in the Statute that requires the Court not to accept jurisdiction if the parties have in fact agreed to use alternative dispute-resolution procedures. The Soviet Union and its allies, until recently opposed to any form of third-party settlement, recently indicated, in a series of virtually identical statements, that they would like to see the International Court of Justice resolve a variety of legal issues, including those in the area of human rights. Reservations to treaties referring disputes to the United Nations would be withdrawn.26 While the general sentiment in these statements—formally issued as documents of state—is welcome, the precise meaning to be attached to them is a puzzle. This is because these countries are all parties to the International Covenant on Human Rights, which treaty has its own quasi-judicial procedures for the settlement of legal disputes concerning human rights. It seems that the intention is not to ignore these, as Estonia, Mongolia, Hungary, Lithuania, Poland, Russia, and the Ukraine have accepted further optional possibilities for human-rights litigation in the framework of the Covenant procedures.27 A suggestion has also been explored, in private meetings, that the Permanent Members of the Security Council should agree inter se to resolve a range of pre-identified categories of disputes by reference to the Court. It is not clear whether this would be done by acceptance of the Optional Clause, making use of the permitted reservations as to subject-matter and parties, or otherwise. If a separate mechanism is envisaged, it would be a form of consent-based advance jurisdiction, existing in parallel to the Optional Clause. If it were done under the Optional Clause, presumably it would be done by the Soviet (p. 193) Union, France, the United Kingdom, China, and the United States each agreeing that, in relation to each other and in respect of defined categories of dispute, there will be reference to the Court. But further progress on this issue seems to be at a standstill.

The Question of Reservations

It is well known that the reservations permitted under the Optional Clause have meant that jurisdiction nominally given under Article 36 (2) of the Statute can in fact be a very limited grant of jurisdiction indeed. Article 36 (3) simply states that declarations of acceptance under the Optional Clause—by which a state recognizes the jurisdiction of the Court in relation to any other party making the same obligation—may be made unconditionally or on condition of reciprocity, on the part of several or certain states, or for a certain time. This seemingly simple clause, when coupled with the conditions in Article 36 (2) itself—that acceptance is in respect of the state accepting the same obligation—has caused endless complications. The condition mentioned in Article 36 (3) is that of reciprocity on the part of certain or several states (‘I accept, on condition States A and B accept also to settle disputes with me’). In addition, an acceptance may be made for a certain time (‘I accept, for the next five years’). But the Optional Clause has also been treated as a treaty engagement, and that in turn has led to the possibility of reservations as a matter of general treaty law, over and above what is specifically permitted as conditions of acceptance under Article 36 (3). The contractual, treaty element (between the various parties to the Optional Protocol) was emphasized by the Court in the Rights of Passage Case.28 In the Nicaragua v. United States Case the Court stated that, if the declarations of acceptance under the Optional Clause were to be treated as treaties, a declaration of acceptance could not be withdrawn without reasonable notice of termination. It found that the purported modification by the United States of its declaration of acceptance was in effect a termination vis-à-vis certain named states, and was done without reasonable notice. It did not therefore succeed in withdrawing jurisdiction from the Court.29

But reservations are permitted too and sometimes these are ingeniously directed—thus the Portuguese reservation in the Rights of Passage Case exactly reserved the possibility of terminating acceptance immediately on notification. (The US acceptance of the Optional Clause had no such (p. 194) reservation, so the ‘due-notice’ treaty rule30 was held to apply.) Normally a reservation to a treaty can only be made upon ratification of or accession to a treaty. Thus, if the Optional Clause is accepted for an indefinite period, it is at the moment of acceptance that any reservations must be made. Or, if the Optional Clause is accepted for a five-year period, then no new reservations can be made until the beginning of the next period for which an acceptance is made. But some states, such as Malta, have made a reservation which purports exactly to allow them to make further reservations. The legality of such a reservation has yet to be tested before the Court.

Three types of reservations have been usual, and broadly acceptable: (1) reservations relating to other parties (‘I accept the jurisdiction of the Court, save that I will not agree to litigation of disputes with States Y and Z’: reservations ratione personae); (2) reservations relating to time (‘I accept in 1990 the jurisdiction of the Court in respect to all disputes save those concerning events that occurred in 1985’: reservations ratione temporis); and (3) reservations as to subject-matter (‘I accept the jurisdiction of the Court, but not for the settlement of aviation disputes’: reservations ratione materiae). Under this last category there have been attempts at reservations which preclude subject-matter within a state’s domestic jurisdiction—sometimes ’as determined by itself’. This type of reservation, adopted initially by the United States but embraced by other states also, is of doubtful legal status, because it is the Court that must determine its own jurisdiction. Judge Lauterpacht took the view that an Optional Clause with this type of reservation was no real acceptance of the Court’s jurisdiction at all.31 The result of that view, ironically, is not that that state has not accepted the Court’s jurisdiction, albeit with a regrettably wide reservation, but has not accepted the jurisdiction at all. This matter has received some attention from the Court in the International Norwegian Loans32 and Rights of Passage Case,33 without ever being determinatively resolved.

Because under the Optional Clause a state accepts the Court’s jurisdiction only in respect of another state who accepts the same obligation, the jurisdiction of the Court exists only in respect of what is common between them. Put differently, State A accepts the jurisdiction of the Court over itself, only in respect of what State B has accepted after its reservations and any conditions have been taken into account. Thus every (p. 195) party to the Optional Clause can rely to escape jurisdiction when the prospect of litigation actually looms on the horizon, on every limitation by the other party as if it were its own. It is not surprising that controversy as to the actual scope of the Court’s jurisdiction in a given case has taken up much of its time, often requiring lengthy preliminary hearings. The increased tendency to ad hoc reference to the Court, often by agreed compromise, will hopefully reduce the proportion of the Court’s time determining litigation about its own jurisdiction.

Legal Disputes

Article 36 (2) contains one further requirement—that the matter brought before it is a ‘legal dispute’. The Court, before it accepts jurisdiction, has thus to be satisfied both that the matter before it is ‘legal’ and that it constitutes a ‘dispute’. Generally speaking, the Court has taken a robust attitude as to what is a ‘legal’ matter. It has said (in the context of its advisory jurisdiction in the Admissions Case34) that it matters not that the motive in coming to the Court is political. All that is required is that there are issues that involve any of the matters listed in Article 36 (2), which speaks of legal disputes that concern: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation. It is irrelevant if any of these matters arise in a politically charged context (as often they do). The Court still has a legal task to perform. Again, as early as 1932 in the Free Zones Case,35 the Permanent Court of International Justice (the predecessor of the International Court) had made clear that it was prepared also to address matters of great economic importance, provided always that they arose in the context of legal questions to be answered. The views expressed by the Court in 1966, in the South West Africa affair, that the issues brought to it were ‘really’ political, and better left for determination by the Security Council,36 were out of line with the otherwise consistent attitude of the Court that neither motive nor context matters: all that matters is that it is required to interpret a treaty, or determine a question of international law, or pronounce upon a breach of obligation, or deal with the nature and extent of reparation. So, even such highly charged cases as Nicaragua v. United States,37 and the cases brought (p. 196) by Iran against the United States,38 will not be struck out as being ‘political’ rather than ‘legal’.

The Court has jurisdiction over legal disputes and from time to time it has had to deal with the situation where one party endeavours to start litigation under the Optional Clause, and the other party insists that there is no ‘dispute’ between them. This is usually put in the form that, while for the moment the two sides have expressed different points of view, the relationship has not deteriorated to a ‘dispute’, that there is still a good possibility that the matter could be resolved by negotiation, and that it is therefore premature to speak of a ‘dispute’; or that the prospective defendant does not believe that there is a ‘dispute’. The International Court of Justice has adhered to the definition first provided by the Permanent Court in the Mavrommatis Case39 that ‘A dispute is a disagreement on a point of law or fact, a conflict of legal views or interests between two persons.’ Neither the fact that one party insists there is a dispute, nor the fact that the other party insists there is not, will be determinative of the issue. The Court has made it clear that it is an objective question for the Court to determine on the facts of a given case. The question of a ‘dispute’ has in fact had some importance in a variety of situations, going beyond the strict confines of jurisdiction under Articles 36 (2) and 38 (1). Sometimes, when an organ of the United Nations or a specialized agency has asked the International Court of Justice for an advisory opinion on a point of law, a state will urge the Court not to give the advice, saying that the request marks the existence of a ‘dispute’ on the matter, to which it itself is a party. I will return to this aspect shortly. So the matter arises as an objection to the assertion of competence by the Court, whether in contentious litigation or in its advisory functions. In contentious litigation a potential defendant insists there is no ‘dispute‘. And in advisory jurisdiction a state may claim that the advice should not be given because there actually exists a ‘dispute’, and that it is not appropriate to give advice to a UN body that would entail the determination of a dispute between states. And sometimes a particular clause, whether founding the Court’s jurisdiction or whether a substantive matter before the Court, may make it necessary to decide if there exists a dispute. Let me give an example. The claimed jurisdictional basis of the action brought against South Africa in 1960 by Ethiopia and Liberia was the old League of Nations Mandate. This authorized reference to the Permanent Court by the parties to the Mandate Treaty when there was a dispute. South Africa, in a preliminary objection, (p. 197) insisted that it had no dispute with Ethiopia or Liberia. But the Court, applying the test in the Mavrommatis Case, found a dispute did exist. That is an example of the requirement of a ‘dispute’ to found the Court’s jurisdiction under a treaty providing for reference to the Court. The recent UN Headquarters Case40 provides an interesting example of the existence of a ‘dispute’ forming part of the substantive issue upon which the Court was called to decide. The United States of America was party to an agreement with the United Nations—the Headquarters Agreement of 1947—which provided in s. 21 that ‘any dispute between the United States and the United Nations concerning the interpretation or application of this Agreement … shall be referred for final decision to a tribunal of arbitrators’. In 1974 the Palestine Liberation Organization (PLO) had been given observer status by the General Assembly.41 It had consequently established an observer mission in New York City. In May 1987 a bill was introduced into the US Senate, the purpose of which was ‘to make unlawful the establishment and maintenance within the United States of an office of the PLO’. In due course this bill (which had not been the wish of the Administration) became law, and the Attorney-General of the United States indicated that he would feel obliged to act to support the law and ordered the mission to be closed. The State Department, for its part, acknowledged to the United Nations that the closing of the mission would violate the obligations of the United States as the host state to the United Nations. Given the dispute between the various branches of the US government, the Secretary-General was unable to get an assurance that the mission would in fact not be closed. He concluded that a dispute had arisen between the United Nations and the United States concerning the interpretation and application of the Headquarters Agreement and proceeded to the dispute-settlement procedure envisaged under the treaty. The United States took the view that, while there was undoubtedly a problem, no ‘dispute’ existed. The mission had not yet been ordered closed. The General Assembly requested an advisory opinion from the International Court of Justice—not on the merits of the issue, but on exactly whether a dispute existed, requiring the arbitration procedures of the Headquarters Agreement to be put into effect. The Court found that neither the fact that different views existed within the US administration, nor the fact that the PLO office had not actually been closed down, meant that a dispute did not exist. A dispute was objectively held to exist, with the consequence that the settlement procedures of the Headquarters Agreement came into play.

(p. 198) Some Issues Relating to Advisory Opinions

I have spoken so far about the contentious jurisdiction of the International Court of Justice, though I have explained that some issues—the requirement that the matter be a legal one, and the issue of whether a dispute exists—can arise also in advisory opinions. Some further comments may be made about the Court’s advisory jurisdiction. Article 65 of the Statute provides that the Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the UN Charter to make such a request. In fact, quite a substantial number of UN organs and specialized agencies have been authorized to make such a request, though a relatively small number of such authorized bodies have availed themselves of the opportunity.

But such requests for advisory opinions have from time to time been made. The Court regards its role as the provision of advice so that the requesting organ may proceed with its work in the knowledge that it is acting in accordance with international law. At one level, the advisory jurisdiction of the Court is very different from its contentious jurisdiction—there are no adversarial proceedings and there will be no judgment binding on the parties, but only advice as to the state of the law. But Article 68 of the Statute provides that in the exercise of its advisory functions the Court shall apply the same procedures as in contentious cases ‘to the extent to which it recognises them to be applicable’.

Broadly speaking, similar procedures are in fact followed. Further, states parties to the Statute get notified under Article 66 of the request for an advisory opinion and have the opportunity of presenting their views on the legal issues—even though they are not parties to the case and even though no action is being brought against them. Indeed, there are no parties in advisory proceedings, and, at the end of the day, the Opinion is rendered to the requesting organ.

What application to advisory opinions can the principle have that the Court will not determine in their absence upon the rights of third parties? That principle—audiatur et altera pars—underlies consent as the basis for the Court’s jurisdiction and has been reaffirmed in respect of contentious litigation by the Court in the Monetary Gold Case.42 Its scope and application has recently been elaborated in the judgment of the Court in the preliminary phase of the Phosphates Case.

In the Phosphates Case Nauru brought a legal action against Australia, claiming, inter alia, violation by Australia of obligations owed under the Trusteeship Agreement for Nauru of 1947. New Zealand and the United (p. 199) Kingdom—who were not defendants in this action—were co-trustees under that Agreement. Australia contended that to proceed with the case would entail the Court pronouncing on the legal obligations of states not before the Court, and would offend against the Monetary Gold principle.

The Court, noting that it had had to address this problem in other recent cases,43 took as its test whether the legal interests of the third party that was not before the Court was ‘the very subject matter of the decision’. It found that the interests of New Zealand and the United Kingdom did not constitute ‘the very subject matter’ of the judgment to be rendered.44 The situation was therefore not the same as that in the Monetary Gold situation. The Court will have an opportunity to refine this further in the East Timor Case.

As early as 1923 the Permanent Court had stated, in the Eastern Carelia Case,45 that it will not in its advisory jurisdiction depart from essential rules guiding its activity as a Court. Consent to jurisdiction for the determination of disputes would be an essential practice guiding its activity. In that case the Permanent Court declined to give an advisory opinion when it found that the question put to it related to the main point of a dispute actually pending between two states, so that answering the question put to it for an Advisory Opinion would be the equivalent to deciding the dispute between the parties. Of course, at the formal level it can be said that, just as a judgment is only determinative for the parties before it, so an advisory opinion cannot be determinative in respect of a dispute between two states which would definitionally not be bound by an advisory opinion. In fact, the trend has been for the Court to take a somewhat robust attitude to the rights of third parties. So far as contentious litigation is concerned, Article 62 of the Statute allows a state not party to the litigation in the Court to intervene should it consider that ‘it has an interest of a legal nature which may be affected by the decision in the case’. Article 63 refers to a case which entails the construction of a Convention to which other states are parties. These states are to be notified about the case, and ‘every state so notified has the right to intervene in the proceedings‘. There has been a tendency by the Court (at least until the late 1980s) to make it very hard for a state to intervene46—even under Article 63, the wording of which (p. 200) appears to give a clear right to states falling within its scope to do so. The Court has been apt to point to Article 59 whereby a judgment only binds the parties to a case, to deny that an applicant state can have an interest of a legal nature which could be affected by the case. That attitude is hard to reconcile with the reasoning in Eastern Carelia, even if we might think the Permanent Court in that opinion perhaps went too far in the other direction. Undoubtedly, the possibility of intervention under Articles 62 and 63 of the Statute presents new problems—it introduces elements outside what the parties who have brought the case want considered. It upsets their timetable. It raises difficult issues about whether a state can intervene under these articles if it itself has no jurisdictional nexus to the subject-matter of the case and to the other parties thereto. There are many other problems also: is the appropriate stage for an intervention at the jurisdictional stage (to stop a judgment or opinion from occurring on the grounds that it would essentially entail a determination upon its legal position, which it has not consented to put before the Court)? Or at the stage of the merits (so that its views on the substance may be heard)? Logic would seem to direct one to the jurisdictional phase as the moment for an Article 62 intervention—but the Court has found such an application ‘premature’. The question of intervention by legally interested third parties remains very much a live issue before the Court. The increasing interdependency of the international community is likely to make this a growing problem. And the endless factual variables that are possible mean that the Court will surely have to refine its practice in this area. The rationale for its decision-making in this area seems to me at the moment uncertain and there is a resultant substantial unpredictability.

The position of third parties has arisen not just in relation to intervention in a case, but in relation to advisory opinions that—on the Eastern Carelia formula—states have perceived as being potentially tantamount to pronouncing upon their legal rights in a dispute. The Soviet Union claimed that the Court should have declined the request of the Assembly to give an advisory opinion in the case of Certain Expenses of the UN,47 because it was in dispute with other states, and with the UN, in respect of this. The Court gave the opinion none the less. South Africa claimed that for the Court to give the requested advisory opinion in the Namibia Case48 would mean that the Court was pronouncing upon South Africa’s legal rights in respect of that territory, when it had not submitted to the jurisdiction of the Court. The Court gave the opinion none the less. And the matter was graphically illustrated by the Western Sahara Case.49 In that case the Court (p. 201) was asked by the General Assembly to advise on whether Western Sahara was, at the time of colonization by Spain, a terra nullius? And, if not, what was the nature of the legal ties between it and Morocco and Mauritania? Morocco insisted that it was a party to a legal dispute with Spain actually pending on this issue;50 and the same claim was made by Mauritania. Spain too insisted that an Advisory Opinion would have implications for an existing dispute. The Court found that there did exist between Morocco and Spain, at the time of the request for an advisory opinion, a legal dispute. But, instead of concluding that, on the basis of the old Eastern Carelia principle, it would not proceed with an advisory opinion, it instead proceeded with the opinion—but allowed Morocco an ad hoc judge on the Bench, as there was already a Spanish judge. But in principle ad hoc judges are available only to the ‘parties in a case’ (Article 31 of the Statute) and there should be no ‘parties’ in an advisory opinion. One may wonder whether, given this very basic and important difference, the matter of provision of ad hoc judges in advisory opinions is really satisfactorily dealt with as an application of the principle, purportedly under Article 68 of the Statute, that advisory procedures should also follow those of contentious procedure.

In any event, the Court in the Western Sahara Case distinguished the Eastern Carelia Case, noting that in that case one of the key states was neither a party to the Statute, nor indeed a member of the League. Spain and Morocco, by contrast, were members of the United Nations and had accepted the Charter provision whereby the Assembly has responsibilities for decolonizing. They could not prevent the Assembly seeking legal advice on that function.

What is critical, in this very complicated question of third-party rights, and underlying disputes, in relation to advisory opinions, is that the issue has arisen not bilaterally but in the context of the work of the requesting organ. The United States would not have been able to request an advisory opinion on Soviet arguments on expenses for peace-keeping; Ethiopia and Liberia could not have requested an advisory opinion on Southern Africa’s duties under the mandate for Namibia; and neither Spain nor Morocco could have requested an advisory opinion on the issues in the Western Sahara Case. But in each of these cases an organ had important tasks to perform, in relation to assigning the budget, seeking compliance with the mandate, and decolonization. The International Court of Justice has shown that it will rather robustly preserve its right to provide advice to authorized requesting organs in these circumstances.

(p. 202) Dispute Settlement and Law Development

The Court’s function is to settle disputes between states and to provide advice to authorized organs. It is not to develop international law in the abstract. But, of course, the very determination of specific disputes, and the provision of specific advice, does develop international law. This is because the judicial function is not simply the application of existing rules to facts. The circumstances to which it will be said to apply, the elaboration of the content of a norm, the expansion upon uncertain matters, all contribute enormously to the development of international law. It is, in fact, hard to point to a case in which all the Court has done is to apply clear, existing law to the facts. Through a series of maritime cases the Court has developed a corpus of law about maritime delimitation. It has clarified contentious topics in the use of force, including self-help (Corfu Channel)51 and use of force in response to low level unlawful military activity (Nicaragua v. United States). It has, in various cases on territorial title, built on the classic law to clarify further the legal role of effectivités in establishing title. It has developed the law on the stability and finality of boundaries and explained the place of uti possidetis in current international law. In the field of international organization, its advisory function has entailed the development of the concept of implied powers, and of vires. It has confirmed the existence of self-determination as a legal norm and very much else besides.

Of course, at the formalistic level this is of limited consequence, because the decisions of the Court are said to be a subsidiary source of international law (Article 38 (1) (c) of the Statute) and because any judicial determination is subject to Article 59, whereby it is only binding upon the parties before it. But it is a commonplace that the reality is otherwise. Far from being treated as a subsidiary source of international law, the judgments and opinions of the Court are treated as authoritative pronouncements upon the current state of international law. And the Court itself knows that intellectual coherence and consistency is the cornerstone of continuing respect for its jurisprudence. Thus, even though a particular determination of law will be binding only upon the parties before it, it will invariably, in the course of making such a determination, invoke previous jurisprudence and dicta pertinent to the present facts. States which have no dispute before the Court follow the judgments of the Court with the greatest interest, because they know that every judgment is at once an authoritative pronouncement on the law, and also that, should they become involved in a dispute in which the same legal issues arise, the Court, which will always (p. 203) seek to act consistently and build on its own jurisprudence, will reach the same conclusions. Although at the formal level the judgment of the Court in the case of State A v. State B will not bind State Z, State Z is bound by the relevant rule of international law, which has been articulated by the Court, and which would no doubt be directly applicable to it also, if the occasion arose.

Even advisory opinions have a role of great importance. Of course, there are no parties to a request for an advisory opinion, and an opinion is not technically binding on any state. But Judge Lauterpacht early said that there is a duty upon each state seriously to consider in good faith whether it should not accept what the Court has pronounced in an advisory opinion. The stakes have to be rather high for a state visibly to reject the arguments upon which an advisory opinion was based (although the United Kingdom did so in respect of part of the Court’s reasoning in the Namibia advisory opinion of 1972).52 Very often, the organ requesting an advisory opinion will then pass a resolution ‘appreciating’ or ‘accepting’ that opinion. This was done, for example, in the Reservations Case53 and in the case concerning Legal Expenses of the United Nations. Of course, that will not convert an opinion into a legal obligation, either for the organisation or for members. But it is a public affirmation of the authoritative quality of the advice that has been rendered. As we have seen, behind many advisory opinions are disputes between states in relation to the activities of the United Nations. In some cases, though it must be said not many, the advice of the Court has assisted in a resolution of the underlying conflict. One could point to that connection, for example, in the case concerning the regional office of the WHO in Egypt,54 or in the Admissions Cases,55 or in the Mazilu Case56 on the applicability of Article VI, s. 22, of the Convention on the Privileges and Immunities of the United Nations. The outcomes to the underlying problem were undoubtedly facilitated by the advice given.

In other cases the causal link has been more tenuous. It is only now that the advice given by the Court in the Western Sahara Case is beginning to be followed. States have in large numbers ignored the finding of the Court in the Expenses Case that they are under a legal obligation to pay for certain peace-keeping operations (and thus, by implication, for other comparable ones). In yet other cases the importance has been in legal seeds that were sown. It is hard to exaggerate the operational importance, from the point of (p. 204) view of practice of various international organizations, of the Court’s findings on implied powers in the Reparation for Injuries Case. And, while an amalgam of factors has contributed to the ultimately successful outcome to the Namibian situation, who would doubt the importance of the constant stream of legal reasoning that underpinned the political and diplomatic efforts to secure independence?

Of course, the fact that the Court does have such a role in the development of international law leads one to wonder how overt the Court should be about this function. In particular, should it merely say as much as it has to say to decide the issue before it, or should it consciously contribute to the development of norms by offering views on a wider and less restrictive basis? My own opinion is that the judicial function is more than an allegedly mere application of rules to facts—the Court is necessarily choosing, explaining, and refining. But it should still do so in respect of the particular issue it is required to decide or upon which it is asked to advise. This discipline—the discipline of relevance and pertinence—is part of the authoritativeness which commands international respect.

Footnotes:

Elettronica Sicula Case, ICJ Reports (1989) 15.

Delimitation of the Maritime Boundary in the Gulf of Maine Area, ICJ Reports (1984) 246.

Libya—Malta Case, ICJ Reports (1985) 13.

Burkina Faso—Mali Frontier Dispute, ICJ Reports (1986) 554.

Tunisia—Libya Continental Shelf Case. Application for Revision and Interpretation of the Judgment of 24 February 1982, ICJ Reports (1985) 192.

Elettronica Sicula Case, ICJ Reports (1986).

Jan Mayen Continental Shelf Delimitation Case, ICJ Reports (1993).

Passage through the Great Belt (Finland v. Denmark), Provisional Measures, ICJ Reports (1991) 12. This case was later settled and withdrawn from the lists.

Reservations to the Genocide Convention Case, ICJ Reports (1951) 23.

10  Nuclear Tests Case, ICJ Reports (1974) 253.

11  Military and Paramilitary Activities in and against Nicaragua, Jurisdiction and Admissibility, ICJ Reports (1984) 392. For US debate, see Editorial Comments (1985) 79 AJIL: H. Briggs, ibid. 373; T. Franck, ibid. 379; A. d’Amato, ibid. 385; E. Highet, ibid. 992; M. Reisman (1986) 80 AJIL 128.

12  South West Africa Cases (Second Phase), ICJ Reports (1966) 3. See R. Higgins, ‘The International Court and South West Africa: The Implications of the Judgment’ (1966) International Affairs 573.

13  South West Africa Cases (Preliminary Objections), ICJ Reports (1962) 319.

14  Military and Paramilitary Activities Case (Jurisdiction), ICJ Reports (1984) 392.

15  Certain Phosphate Lands in Nauru, ICJ Reports (1992) 240 at para. 55.

16  Anglo—Norwegian Fisheries Case, ICJ Reports (1951) 139; North Sea Continental Shelf Cases, ICJ Reports (1969) 1; Tunisia—Libya Continental Shelf Case, ICJ Reports (1982) 1; Continental Shelf (Libyan Arab Jamahiriya/Malta Case), ICJ Reports (1985) 13; Delimitation of the Maritime Boundary in the Gulf of Maine Area, ICJ Reports (1984) 246; Fisheries Jurisdiction Case, ICJ Reports (1974) 1; and Land, Island and Maritime Frontier Dispute, ICJ Reports (1992) 351.

17  Sovereignty over Certain Frontier Lands Case, ICJ Reports (1959) 225.

18  Minquiers and Ecrehos Islands Case, ICJ Reports (1953) 47.

19  Burkina Faso v. Mali, ICJ Reports (1986) 554.

20  Territorial Dispute (Libyan Arab Jamahiriya v. Chad).

21  Corfu Channel Case, ICJ Reports (1949) 5.

22  For an Order by the Court in this case, see Case Concerning Passage through the Great Belt, Order of 10 September 1992, ICJ Reports (1992) 348.

23  The Case Aerial Incident of 3 July 1988 is pending. For an Order by the Court in this case, see Aerial Incident of 3 July 1988, Order of 13 December 1989, ICJ Reports (1989) 132.

24  Military and Paramilitary Activities (Merits), ICJ Reports (1986) 3.

25  Border and Transborder Armed Actions (Admissibility), ICJ Reports (1988) 69.

26  See Letter of 28 Feb. 1989 from Soviet Minister for Foreign Affairs Schevardnadze to the Secretary-General, reproduced in (1989) 83 AJIL 457.

27  Annual Report of the Human Rights Committee 1992, A/47/40, GAOR 47th sess.

28  Rights of Passage Case (Preliminary Objections), ICJ Reports (1957) 125 at 145–7.

29  Military and Paramilitary Activities Case (Jurisdiction), ICJ Reports (1984) 392 at para. 14.

30  Rosenne rejects the full treaty analysis: Documents on the International Court of Justice (2nd edn., 1979), 358–61. See also the discussion by L. Gross, ‘Compulsory Jurisdiction under the Optional Clause: History and Practice’, in L. Damrosch (ed.), The International Court of Justice at a Crossroad (1987) 19 at 30.

31  See Norwegian Loans Case, ICJ Reports (1957) 9; sep. op. at 34–66.

32  The Court felt no need to consider the validity of the French reservation as it was not an issue between the parties (ibid. 27).

33  ICJ Reports (1957) 125.

34  Conditions of Admission of a State to Membership in the United Nations, ICJ Reports (1948) 57.

35  (1932) PCIJ Ser. A/B, no. 46, p. 167.

36  ICJ Reports, (1966) 6 at paras. 49, 64, 89–98.

37  Military and Paramilitary Activities Case (Jurisdiction), ICJ Reports (1984) 392.

38  For an Order by the Court in the Aerial Incident of 3 July 1988 Case, see Aerial Incident of 3 July 1988, Order of 13 December 1989, ICJ Reports (1989) 132. The Oil Platforms Case is pending. For an Order by the Court in this case, see ICJ Reports (1992) 763.

39  (1924) PCIJ Ser. A, no. 2, p. 11.

40  Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, ICJ Reports (1988) 12.

41  GA Res. 3237 (XXIX).

42  Monetary Gold Case, ICJ Reports (1954) 19.

43  Paramilitary Activities in and Against Nicaragua, ICJ Reports (1984) 392 at 431; Land, Island and Maritime Frontier Dispute, ICJ Reports (1990) 92 at 116.

44  Certain Phosphate Lands in Nauru, ICJ Reports (1992) 240 at para. 55.

45  Eastern Carelia Case (1923) PCIJ Ser. B, no. 5, p. 2.

46  See especially Nuclear Tests Case, Application by Fiji for Permission to Intervene, ICJ Reports (1973) 334; Continental Shelf Case (Libyan Arab Jamahiriya v. Malta), Application by Italy for Permission to Intervene, ICJ Reports (1984) 3; Military and Paramilitary Activities in and against Nicaragua, Declaration of Intervention by El Salvador, ICJ Reports (1984) 215. Cf. Law, Island and Maritime Frontier Dispute (Nicaragua Intervening), ICJ Reports (1990) 92.

47  ICJ Reports (1962) 151.

48  Legal Consequences for States of the Continued Presence of South Africa in Namibia, ICJ Reports (1971) 16.

49  ICJ Reports (1975) 12.

50  A claim which led in turn to a demand for an ad hoc judge should the case proceed—a request also made by Mauritania. Mauritania did not succeed in its application.

51  ICJ Reports (1949) 4.

52  See R. Higgins, ‘The Advisory Opinion on Namibia: Which UN Resolutions are Binding under Article 25 of the Charter?’ (1992) 21 ICLQ 270.

53  Reservations to the Genocide Convention Case, ICJ Reports (1951) 15.

54  Interpretation of the Agreement between the WHO and Egypt, ICJ Reports (1980) 73.

55  Conditions of Admission of a State to Membership in the United Nations, ICJ Reports (1948) 57.

56  ICJ Reports (1989) 314.