The International Court of Justice

1362 Pages·2013·9.677 MB·English

by  Robert Kolb

THE INTERNATIONAL COURT OF JUSTICE
The International Court of Justice (in French, the Cour internationale de justice), also
commonly known as the World Court or ICJ, is the oldest, most important and most
famous judicial arm of the United Nations. Established by the United Nations Charter in
1945 and based in the Peace Palace in the Hague, the primary function of the Court is to
adjudicate in disputes brought before it by states, and to provide authoritative, influential
advisory opinions on matters referred to it by various international organisations, agencies
and the UN General Assembly.
This new work, by a leading academic authority on international law who also appears as
an advocate before the Court, examines the Statute of the Court, its procedures, conventions
and practices, in a way that will provide invaluable assistance to all international lawyers.
The book covers matters such as: the composition of the Court and elections, the office
and role of ad hoc judges, the significance of the occasional use of smaller Chambers,
jurisdiction, the law applied, preliminary objections, the range of contentious disputes
which may be submitted to the Court, the status of advisory opinions, relationship to the
Security Council, applications to intervene, the status of judgments and remedies. Referring
to a wealth of primary and secondary sources, this work provides international lawyers with
a readable, comprehensive and authoritative work of reference which will greatly enhance
understanding and knowledge of the ICJ.
The book has been translated and lightly updated from the French original, R Kolb, La
Cour international de Justice (Paris, Pedone, 2013), by Alan Perry, Solicitor of the Senior
Courts of England and Wales.

The International
Court of Justice
Robert Kolb
OXFORD AND PORTLAND, OREGON
2013
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Preface
My decision to write the present book on the International Court of Justice perhaps needs
no justification, but a word of explanation does seem to be in order. The decision came at
the confluence of three streams of my work, each of which contributed, in its own way, to
making the book an entirely natural outcome, even if not perhaps an inevitable one. First,
those considering any major question of international law are, all too frequently, forced to
realise that hardly any monographs have been published in recent times dealing in the
round with the particular subject in which they happen to be interested. This is even more
true of French language publications than of those in English. The dearth of comprehen-
sive texts on particular issues even extends to the International Court of Justice (ICJ) itself.
In this context, little need be said here about the Court’s existence and activities. It is surely
enough to note that the ICJ is the oldest permanent international jurisdiction to which
States can turn for the resolution of inter-State legal disputes. For decades, the Court has
been the principal international jurisdiction, the main judicial organ not only of the United
Nations but of public international law itself. Its jurisdiction is general rather than specific,
in the sense that it extends to all inter-State disputes that are to be decided according to the
norms of public international law. No other international tribunal has so general a juris-
diction: all of them are confined to one or more particular fields, such as the law of the sea,
financial claims resulting from particular events, human rights and so on. Nowadays, the
International Court is ever more frequently in the international spotlight. It is the subject
of considerable media comment, by no means all of it accurate. Consequently, it is often
the case that people have vaguely heard of the Court, while knowing very little about it. The
increasing interest in the Court is in large measure due to the fact that, in recent years, a
series of important and highly political questions have been argued before the judges at
The Hague. These questions have been wide-ranging, including the request for an opinion
on the legality of the threat or use of nuclear weapons; the Genocide case (Bosnia-
Herzegovina v Serbia and Montenegro); the Serbian bombing case (Serbia v ten NATO
States); the case between the Democratic Republic of the Congo and Uganda (military
activities and occupation); and requests for consultative opinions on the Israeli wall and
Kosovo.
The Court’s importance can be assessed in both quantitative and qualitative terms. As the
principal judicial organ of the United Nations available for the peaceful resolution of legal
disputes, both to UN Member States and to non-Members, and thus playing its part in
strengthening understanding between States and peaceful international relations, the Court
has never been as busy as it is today. This is so despite the fact that public international law
is currently going through a period of crisis. The importance of public international law can
be assessed by reflecting that the material rules of international law applicable to dispute
resolution are only marginally stronger than the mechanisms for dispute resolution existing
to give effect to those rules.1 At the end of the day, it is only through the peaceful resolution
1 Rightly, this maxim of equal strength was strongly highlighted by L Caflisch, ‘Cent ans de règlement pacifique
des différends interétatiques’ CCHAIL, vol 288 (2001) 261, 270.
vi PREFACE
of disputes – as to which the Court plays a pivotal part through its central role in interpret-
ing and applying the relevant rules – that international peace, the international order, and a
reasonable degree of mutual confidence between States (all obvious preconditions for
civilised international relations) can be safeguarded and developed. For this reason, the
settlement of disputes is not just a bilateral concern: it is truly a collective interest of the
international community. If one takes a medium- or long-term view, unless peaceful dis-
pute resolution is progressively reinforced, the danger is that, sooner or later, international
relations may decline into a kind of primitive anarchy. That grim prospect is the exact oppo-
site of the soothing image presented by the Court. Like the two faces of Janus, anarchy and
private ‘justice’ present a flaming contrast to the cool orderliness of institutional interna-
tional law. The implications for our world, if one thinks them through, are deeply sobering.
Efforts to strengthen any social order always involve working to develop appropriate law
and institutions. This in turn involves improving the mechanisms for the peaceful settle-
ment of disputes, including, where appropriate, by judicial decisions. In all these respects,
the international community is no different from a national one.
The most important existing studies of the ICJ are indicated in the Select Bibliography.
Amongst general treatises on the Court, particularly noteworthy are A Zimmermann,
C Tomuschat, K Oellers-Frahm and CJ Tams, The Statute of the International Court of
Justice: A Commentary 2nd edn (Oxford, Oxford University Press, 2012); S Rosenne, The
Law and Practice of the International Court, 4th edn (2006; 1st edn 1965, 3rd edn 1997);
M Dubisson, La Cour internationale de Justice (1964); G Guyomar, Commentaire du
Règlement de la Cour internationale de Justice (1983); and, for the Permanent Court of
International Justice (PCIJ), which was the ICJ’s predecessor, MO Hudson, The Permanent
Court of International Justice, 1920–1942 (1943); AP Fachiri, The Permanent Court of
International Justice, 2nd edn (1932); and AS de Bustamante, The World Court (1925).
Mention should also be made of the superbly written and highly influential little book by
N Politis entitled La justice internationale (1924). In light of the foregoing, it seems appro-
priate to try to bring together the law on the Court in a single up-to-date study.
Second, to speak personally for a moment, I have always had a strong interest in the
Court, to the point where, after my doctoral thesis, I made the Court an offer of my ser-
vices. My interest has not declined with the passing years. After decades of poring over the
relevant materials, it seems only natural to draw the threads together in the present study.
It is, of course, easy to admit to an interest in the Court as an institution. It is slightly
harder to confess also, especially to English-speaking readers, to a taste for legal subtleties.
Perhaps the taste is slightly self-indulgent, but at least it is not (at least I hope it is not)
carping or quarrelsome. Indeed, it was already there in a favourite thought-game with
which I used, in my student days, to entertain myself while rambling in the countryside. I
would act out – quite strenuously – the imagined roles of the various players in a five-judge
court responsible for deciding disputes. The disputes were invented ones, derived from my
personal activities. The game involved applying a sort of personalised law code. I had to
think up five different lines of argument, one for each of the five judges; the overall objec-
tive was for each judge to shed his own distinctive light on the issues. The game often threw
up subtle procedural and substantive issues. And these were no ordinary judges; each
represented one of the nobler (or at least more mentionable) organs of the human body.
The personalised law code prohibited, amongst other things, any decision prejudicial
to the legal position of a third party, recognising, as it did, their equal status and indepen-
dent standing. Between them, the members of the court ended up developing quite a dense
PREFACE vii
body of jurisprudence on the inadmissibility of questions affecting such third parties.
Subsequently, I came across unexpected traces of many of the same ideas in ICJ rulings on
cases such as Monetary Gold (1954) and Nicaragua (1984). The five-judge court also devel-
oped some rather subtle doctrines on competence and jurisdiction, on the admissibility or
rejection of substantive applications, and especially on the relationships between these
concepts. Here too, when I subsequently came to study the ICJ’s judgments, I was often
reminded of those adolescent country rambles. The sheer richness and complexity of the
Court’s procedural law struck chords right away, and although, over time, I have tended to
focus increasingly on substantive issues, the music has never entirely died away. In the end,
therefore, it seemed entirely reasonable to write a book about the Court.
Third, in order to write about the interpretative function in public international law, I
needed to re-read, annotate and categorise the whole corpus of international court judg-
ments since 1923, starting with the Wimbledon case at the PCIJ. This overall review of the
two world courts’ jurisprudence was an intense and systematic exercise, carried out just a
few short years ago. Helpfully, it prepared me for the task now in hand, and has to a con-
siderable extent lightened my load. In a sense, the writing of this book provided a means
of profiting from that still fairly recent work, before its form and shape faded across the
horizon of time.
Three points remain to be made, one on style, one on the way the material is presented,
and one the expression of gratitude.
In writing this book I have found it impossible to make any real concession about the
use of the necessary technical vocabulary, both procedural and substantive. To that extent,
the book is aimed, not at interested members of the general public, but at lawyers (or those
aiming to become lawyers), especially international lawyers. Nevertheless, of course I have
tried to use the most simple and direct language and grammar possible, avoiding obscurity
wherever I can. It is all too easy to forget that unnecessarily complex or luxuriant language
is bound to be harmful, not only to style, but also to the substantive thinking itself. There
is more than a grain of truth in the saying that the wise think like lawyers, but speak like
peasants.
As to the presentation, I decided, from the outset, not to load the text with too many
footnotes. They would be out of place, and, given the work’s overall length, it is essential to
eliminate anything that would make it longer still. To compensate for this, I have included
a fairly extensive bibliography, designed to facilitate reference to the legal literature on the
Court. And of course the books and articles in the bibliography, in their turn, contain a
plethora of general and specific bilbliographical information. I have deliberately adopted a
selective approach to the handling of material, trying to be fairly comprehensive in at least
a relative sense, but not attempting to cover all possible questions. This approach has inevi-
table dangers, but was unavoidable if the book was to be kept within reasonable bounds.
However the detailed studies cited above, and in particular the Commentary on the Statute
of the International Court of Justice, supply much of the material omitted here. The topics
this book deals with are the ones which seem to me to be important in debate and in prac-
tice. At the same time, I have managed to make space for a number of topics that are rarely
discussed, each an interesting legal question and a pioneering exploration of which seems
likely to be useful, even if, at least for the time being, the practical applications are limited.
Here and there, I have also included occasional digressions into, or developments of, work
I had done previously. Sometimes, where it seems helpful, readers are cross-referred to
other passages in this book, but on other occasions (I confess that their number is fairly
viii PREFACE
large, perhaps too large), it has seemed preferable to repeat the substance of a point already
made. Of course repetition can be inherently undesirable. But in a book as long and
detailed as this, which the overwhelming majority of readers will be using as a reference
work to consult as and when a specific problem arises (rather than to read uninterruptedly
from start to finish), it is often helpful to repeat particular elements, so that all the relevant
arguments are immediately before the reader. If any hardy soul is prepared to read the
book from end to end, he will, I hope, excuse the seemingly redundant repetitions.
My particular thanks are due to Sandra Krähenmann, who did most of the work on the
bibliography, and to Marianne von Senger, whom I cannot thank adequately for having,
once again, taken on the heavy burden of re-reading the whole text with a view to eliminat-
ing the numerous errors that had escaped me. My particular thanks are also due to Alan
Perry, a practising English lawyer with considerable experience of boundary delimitation
by the Court, who has translated this extensive work into English. I can easily imagine the
many painstaking hours spent seeking the most apposite ways to translate subtle shades of
meaning and a wide range of complex concepts from French, which is so different in
expression, character and historical development, into the characteristic sobrieties of
English legal prose. However, time having passed since the writing of the French text of this
treatise, the author took the opportunity to make some additions in the present English
text.
Finally, two technical points of explanation. Where the bound version of the ICJ Reports
has already been published, citations of the Court’s judgments indicate the relevant page
numbers. Where the bound version has not yet come out, references are to the relevant
paragraphs. I have done this because nowadays it seems unlikely that, prior to the publica-
tion of the bound texts, readers will have before them the individual fascicules published
by the Court as it goes along; they are much more likely to have accessed the report via the
Court’s website. Finally, as to the timing of publication, this book takes account of the
Court’s jurisprudence up to the Diallo decision of 30 November 2010. Some subsequent
pronouncements of the Court are nevertheless included, on a limited basis, where this has
been possible.
Robert Kolb
Geneva
16th April 2013
Table of Contents
Preface v
List of Abbreviations xix
Table of Cases xxi
Table of Legislative and Related Acts xxxi
I) Initial Observations on the Peaceful Resolution of International Disputes 1
1. Importance and Context 1
a) Disputes are Normal, but Give Rise to Various Dangers 1
b) Ways of Containing Disputes within the Margins of Internationally
Acceptable Behaviour 2
c) Nineteenth-Century Mechanisms for Dealing with Disputes 3
d) The Emergence of International Law on the Peaceful Settlement of Disputes 7
e) The Peaceful Settlement of Disputes as a Collective Interest 9
f) Relative Weakness of the Law on the Peaceful Settlement of Disputes 11
g) Consent as a Governing Principle of Dispute Resolution 14
h) Procedures for the Peaceful Settlement of Disputes 17
2. Chapter VI of the United Nations Charter 19
a) Links between the Peaceful Settlement of Disputes and Non-recourse
to the Use of Force Further Examination) 19
b) Types of Dispute Envisaged by the Charter 21
c) A Duty to Seek a Solution to the Dispute? 23
d) The Field to which Chapter VI Applies (Articles 33 et seq) 24
e) Seising the Organs of the UN 28
f) Action by the Security Council or the General Assembly 30
g) Overall Summary 35
II) Origins and Environment of the International Court of Justice at The Hague 39
1. Arbitration and Organised Justice: Creation of the Permanent Court of
International Justice in 1920 39
a) From Arbitration to International Justice 39
b) Difference between Arbitration and International Justice 45
2. The Transition in 1945 from the Permanent Court of International Justice
to the International Court of Justice 51
a) Reasons for Dissolving the PCIJ 51
b) The Process of Creating the ICJ 53
c) Establishment of the ICJ 58