The International Court of Justice: An Arbitral Tribunal or a Judicial Body?

By Serena Forlati

The International Court of Justice is the principal judicial organ of the United Nations, and epitomizes the very notion of international judicial institution. Yet, it decides inter-State disputes only with the parties’ consent. This makes it more similar to international arbitral tribunals than other international courts.

However, the permanent nature of the Court, the predetermination of procedural rules by the Statute and the Rules of Court, the public character of proceedings, the opportunity for third States to intervene in a case under Articles 62 and 63 of the Statute and the Court's role as the principal judicial organ of the United Nations mark a structural difference between the ICJ and non-institutionalized international arbitral tribunals.

This book analyses if and to what extent these features have influenced the approach of the ICJ (and of the PCIJ before it) to its own judicial function and have led it to depart from the principles established in international arbitration.

• Language: English
• Publisher: Springer
• Release date: Jun 23, 2014
• ISBN: 9783319061795

Book preview

Serena ForlatiThe International Court of Justice2014An Arbitral Tribunal or a Judicial Body?10.1007/978-3-319-06179-5_1

© Springer International Publishing Switzerland 2014

1. Introduction

Serena Forlati¹ 

(1)

Department of Law, University of Ferrara, Ferrara, Italy

Abstract

The drafters of the Permanent Court of International Justice (PCIJ) Statute envisaged the new Court as an institution structurally different from inter-State arbitral tribunals. However, the Court was not endowed with compulsory contentious jurisdiction—nor did this aspect change when the International Court of Justice (ICJ) replaced the PCIJ. The aim of this book is to assess how the Court’s judicial features and its status as a principal organ of the United Nations mould its contentious jurisdiction and whether they lead it to depart from principles established in international arbitration out of consideration for its judicial function.

1.1 The Research Topic

‘This Permanent Court will not be (…) a Court of Arbitration, but a Court of Justice’.¹ With these words Louis Bourgeois marked the beginning of the process that eventually gave birth to the Permanent Court of International Justice (PCIJ). Despite these intentions, the Committee’s proposal to endow the PCIJ with compulsory jurisdiction over inter-State disputes² was not accepted. Thus, the most significant differences between the PCIJ and its main predecessor, the Permanent Court of Arbitration (PCA), regarded the permanent nature of the new Court, with only very limited options left to the parties as to the choice of the Bench, the public nature of proceedings and the fact that procedural aspects were to be regulated once and for all by the Statute, as supplemented by the Rules of Court.

The situation did not change significantly when the International Court of Justice (ICJ) replaced the PCIJ. Indeed, the ICJ is defined as the ‘principal judicial organ’ of the United Nations by Article 92 of the UN Charter and by Article 1 of its Statute. This distinguishes the ICJ from the PCIJ, which had no formal relationship with the League of Nations and viewed itself as an ‘organ of international law’³—although it was described at times as an organ of the League of Nations (also by its first President, Loder⁴) and was formally dissolved by the Assembly of that organisation.⁵ Also thanks to its organic link to the United Nations—which does not limit the independence of the ICJ as a jurisdictional organ⁶—the Court plays a particularly prominent role among international judicial institutions and has been described as providing the ‘type’ of the ‘juridictions proprement dites, c’est-à-dire institutionnelles et à tendances obligatoires, qui, elles, sont conçues implicitement comme des organes de la société internationale globale’, as opposed to arbitration that, ‘au contraire, demeure encore ce qu’il était dans la procédure romaine primitive: un succédané de la lutte de forces entre les plaideurs’.⁷ Yet, the ICJ’s contentious jurisdiction is still ‘primitive’,⁸ in that it is based on the consent of the parties to the case. Consent may be expressed in various forms, which can also be used to refer disputes to arbitration: i.e. compromis, compromissory clauses and treaties submitting a specific category of disputes to adjudication. Although the attribution of jurisdiction through unilateral declarations, as set forth by Article 36(2) of the Statute, is peculiar to the ICJ (and to the PCIJ before it), these unilateral declarations give, in fact, rise to agreements, and are yet another expression of the consensual principle.⁹ The same applies to the so-called forum prorogatum ¹⁰ (which also has some parallels in the framework of arbitral proceedings¹¹). For these reasons, among others, Gaetano Arangio-Ruiz stressed the difficulty of distinguishing between arbitration and ‘at least some forms’ of ICJ proceedings.¹² More recently, Antonio Cassese suggested that ‘the essential recipe for reviving the Court and bringing it into the twenty-first century is to turn it from a substantially arbitral court, a late nineteenth-century behemoth oriented to unrestricted respect for outmoded conceptions of state sovereignty, into a proper court of law, with all the attributes and trappings of a modern judicial institution’.¹³ The late Judge Cassese proposed a number of changes to the Statute and to the Rules of Court to reach this end. The aim of this book is rather to assess de lege lata if, and to what extent, the contention that the ICJ is arbitral in nature is well founded. While the Court’s¹⁴ approach to its dispute-settlement function has shifted over time,¹⁵ the main focus here is on the current phase of its jurisprudence, with some forward-looking suggestions that could be implemented without amending the Statute.

There is no attempt to define, in general terms, what an international judicial body is, or should be¹⁶—although, of course, the assessment of the Court’s ‘true nature’ also depends on the theoretical approach used to address this issue. Even without considering the definition in the UN Charter and in the Statute, it seems natural to qualify the Court as a judicial body if the emphasis is placed on its permanent institutional structure, on the public nature of proceedings and on the predetermination of rules of procedure. A different conclusion is often reached by authors who look rather at the consensual basis of the Court’s jurisdiction and at its contentious function.¹⁷ My analysis adopts the latter perspective, focusing on the way the ICJ—and the PCIJ before it—has performed its role in the settlement of international disputes. More specifically, I tried to ascertain whether, and how, the Court has set aside or re-interpreted principles established in international arbitration in consideration of its judicial function. This, in turn, might help shedding some light on the Court’s understanding of this concept: as was noted, reference to the Court’s judicial function is a sort of Leitmotif in its activities,¹⁸ but usually without any comprehensive elaboration of this notion.¹⁹

The Court’s advisory competence is also part of that judicial function,²⁰ and is probably the area where its role as an UN organ emerges more clearly.²¹ However, precisely because this competence is not directly based on the consent of the parties to the proceedings, it will be taken into account only insofar as it is relevant to the main research topic.

When comparing the Court’s contentious jurisdiction to arbitration, one should keep in mind that arbitration is an inherently flexible tool that can take very different forms, including highly institutionalised ones. Examples such as the one of the Iran–United States Claims Tribunal show that it may be difficult at times to assess the nature of a given mechanism of dispute settlement.²² In taking into account this rather complex context, the Court’s role is discussed and compared to the ‘classical’ model that Bourgeois had in mind when making the statement quoted above: namely, a model where the arbitral tribunal is freely chosen by two States and called to decide on a specific international dispute, outside any institutional framework that goes beyond the very loose one of the PCA. This model has not lost its relevance in contemporary international society; rather, it goes hand in hand with the practice of establishing ‘institutionalised’ forms of arbitration and the proliferation of international judicial bodies. This more general trend in international society—whereby States are increasingly ready to submit disputes to adjudication or arbitration even when they involve non-State actors—has influenced purely bilateral, inter-State arbitration and contributed to its ‘jurisdictionalisation’.²³ As we shall see, modern inter-State arbitration has generally lost the conciliatory features that often characterised it in the nineteenth century and early twentieth century and is fully involved in a ‘dialogue’ with judicial bodies, as regards the assessment not only of substantive rules of international law but also of principles of procedure. A factor of some relevance, in this regard, is that present and past ICJ judges are often appointed as arbitrators in inter-State disputes:²⁴ their experience as adjudicators enhances the authority of arbitral tribunals and most probably influences the approach those tribunals take to the management of proceedings and to the settlement of the dispute.²⁵

In analysing the developments of inter-State arbitration, authoritative model rules such as those included in the 1899 and 1907 Hague Conventions on the Peaceful Settlement of International Disputes,²⁶ the ILC Model Rules on Arbitral Procedure²⁷ and the PCA Rules of Procedure (specifically, the Optional Rules for Arbitrating Disputes between Two States²⁸ and the Arbitration Rules 2012²⁹) will often be referred to as exemplifying the usually accepted practice concerning inter-State arbitration in a given historical phase.

1.2 Some Preliminary Remarks

As a premise, it should be recalled that the principle of the free choice of means of settlement of international disputes is deeply entrenched in international law, and consent underlies the activities of most international judicial bodies, not only the ICJ. International tribunals are usually instituted by treaty—either as part of a broader institutional framework (as is the case with the ICJ) or as independent international organisations (such as the International Criminal Court).

There are some exceptions in this regard: for instance, the International Criminal Tribunals for the Former Yugoslavia and Rwanda were established by resolutions of the UN Security Council. Even in this case, however, an admittedly more remote consensual basis could be found in the UN Charter itself—in Article 41 thereof, to be precise.³⁰ Yet, the Security Council’s powers under Chapter VII are not without limitations: it is doubtful that the Council may directly decide on the rights and obligations of States when acting on that basis, or that it may establish subsidiary bodies entrusted with such tasks.³¹

To return to the more usual context of judicial bodies established through international agreements, even if the jurisdiction of these tribunals is compulsory under the relevant instruments individual contracting parties may be entitled to withdraw from such instruments. This was the case, for instance, when Trinidad and Tobago or Venezuela denounced the American Convention on Human Rights.³² Moreover, a decision by the contracting parties jointly to reform or dismantle the relevant tribunal cannot be ruled out and this can happen not only to take into account major changes within the international society, as was the case with the abolition of the PCIJ:³³ for instance, the Summit of the Heads of State and Government of the Southern African Development Community virtually abolished that Organisation’s Tribunal out of discomfort with some of its judgments.³⁴

Nonetheless, the role of consent is not as prominent in other international judicial institutions as it is in the context of the ICJ. Several international tribunals now have compulsory jurisdiction over classes of disputes involving States without any need for the parties to the instituting treaty to specifically express their consent in this regard. For instance, the jurisdiction of the Court of Justice of the European Union usually finds its sole basis in the founding treaties, with the exception of what is now Article 273 TFUE.³⁵ Other international courts’ contentious jurisdiction is in whole or in part conditional upon the parties’ specific consent: examples include the ITLOS, the European Court of Human Rights before the entry into force of Protocol 11, the Inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights (as regards its competence to hear applications submitted by individuals or non-governmental organisations³⁶). However, in those cases the tribunal’s competence is accepted once and for all and thus for a potentially indefinite number of disputes. The possibility to withdraw the acceptance of jurisdiction is often limited and there is usually no opportunity for ‘cherry picking’, or rather, deciding whether to submit specific disputes to adjudication or not.

The ICJ’s situation is different: the submission of cases by special agreement is still frequent, although not as much as it used to be.³⁷ Many unilateral applications are submitted by relying on compromissory clauses; respondent States who are not satisfied with the outcome of specific proceedings may react by withdrawing from the relevant treaty instruments, as was the case in the denunciation by the United States of the Optional Protocol to the Vienna Convention on Consular Relations on 7 March 2005,³⁸ or by Colombia of the Pact of Bogotà on 27 November 2012.³⁹ Also unilateral declarations made under Article 36(2) of the Statute are often limited in scope, and may be withdrawn or modified over time so as to avoid the risk of particularly sensitive disputes being submitted unilaterally to the Court by the other party (or parties). Examples include the replacement of the declarations under Article 36(2) made by Canada on 10 May 1994—so as to exclude disputes concerning measures of conservation and management of fish stocks⁴⁰—and by Australia on 22 March 2002—excluding disputes relating to the delimitation of maritime zones.⁴¹ Finally, the prevailing view is that Article 36(3) of the Charter does not provide a legal basis for the seisin of the Court without both parties’ consent,⁴² although the ICJ reserved the issue in Corfu Channel Case.⁴³ While the Council might be entitled to enjoin the parties to a dispute to submit it to the ICJ under Chapter VII of the Charter, this has never happened so far.⁴⁴

With this in mind, it is difficult to disagree with the stance that, specifically for the ICJ, the principle of consent is a sort of ‘judicial dogma’.⁴⁵ Moreover, the arbitral basis of the Court’s jurisdictional competence is reflected in the ‘transactional’ character of some of its pronouncements⁴⁶ and in various rules governing contentious proceedings. Two obvious examples of this regard the possibility for the parties to appoint judges ad hoc under Article 31 of the Statute and for them to request that particular disputes be submitted to a Chamber under Article 26 thereof.

Other aspects of the relevant legal framework and of the Court’s practice point in the opposite direction: for instance, its judicial role was clearly enhanced when the Rules of Court established the possibility of hearing counter-claims and joining proceedings, which has no basis in the Statute; or when, in LaGrand, the Court held that provisional measures adopted under Article 41 of the Statute are binding upon the Parties.⁴⁷

The question of which of these aspects prevails over the other can be discussed at length; the fact is, however, that the Court clearly perceives itself as a judicial body. It has stated as much on a number of occasions, and not simply in terms of a reminder of Article 92 of the UN Charter (this being—interestingly—a provision that is more often mentioned in the exercise of the ICJ’s advisory function than in the framework of contentious proceedings⁴⁸). One of the clearest stances to this effect can be found in Northern Cameroons:

There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character. The Court itself, and not the parties, must be the guardian of the Court’s judicial integrity.⁴⁹

Specific consequences have derived from this assumption, as the Court deemed it impossible to decide on the merits a dispute that had become moot.⁵⁰ In other instances, the Court has considered that ‘discretion whether or not to respond to a request for an advisory opinion exists so as to protect the integrity of the Court’s judicial function’.⁵¹ A recent example of the same approach can be taken from the Burkina Faso/Niger case: although it is possible both for the Court⁵² and for international arbitral tribunals⁵³ to issue ‘judgments by consent’ whenever the parties agree pendente lite on a settlement of the dispute, the ICJ has refused to place on record, in the operative part of the judgment, the existence of a similar agreement concerning part of a dispute that was submitted to the Court later, since ‘such a pronouncement would lie outside its judicial function, which is to decide disputes’.⁵⁴

If the essence of the Court’s judicial function lies in deciding specific international disputes, a more radical question arises as to whether, in the absence of any form of compulsory jurisdiction, other structural elements allow to qualify the ICJ as a properly judicial, rather than an arbitral, body.⁵⁵ This is the issue that we seek to address.

As we shall see, many elements of the Court’s practice that enhance its judicial function regard issues of procedure,⁵⁶ an area where its case law is at times influenced by the practice of other international tribunals, notably the ITLOS,⁵⁷ in the context of which, however, arbitral features are not as prominent. Moreover, the idea that arbitral bodies too exercise a jurisdictional function, as had already been advocated in the 1899 Hague Peace Conference,⁵⁸ is reflected in arbitral practice concerning procedural matters: arbitral bodies have held, for example, to be subject to the ‘rules applying to, and practice of, inter-State tribunals’ as regards qualification and challenge of arbitrators;⁵⁹ they also consider to have inherent jurisdiction to stay proceedings⁶⁰ and to revise their own judgments,⁶¹ even when this is not expressly set forth in the relevant legal rules. Thus, the emerging ‘common law of international adjudication’ fully encompasses the practice of arbitral bodies.⁶² Nor is there any significant difference as regards the substantive parameters referred to in the settlement of disputes: both international arbitral tribunals and the ICJ usually adjudicate disputes according to international law, although it is open to the parties to ask that their case be settled ex aequo ex bono.⁶³ Article 38(2) of the ICJ Statute has never been invoked so far; and although arbitration has often been blurred by conciliation in the past, this does not usually occur nowadays. The arbitration currently pending between the Republic of Croatia and the Republic of Slovenia concerning their land and maritime boundary is a rare contemporary case where the Arbitral Tribunal is required to decide part of a dispute by applying ‘international law, equity and the principle of good neighbourly relations in order to achieve a fair and just result by taking into account all relevant circumstances’.⁶⁴

1.3 The Thesis

Notwithstanding the many similarities mentioned above, the permanent character of the ICJ, the public nature of proceedings and its link to the United Nations Organization do influence the Court’s perception of its own role. The situations where this influence emerges and the effects it has is analysed hereinafter. It may however be useful, in this preliminary stage, to outline the perspective adopted in this analysis.

In Nottebohm, it was emphasised by the ICJ that the principle according to which an international tribunal may adjudicate on its own jurisdiction ‘assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation and is, in the present case, the principal judicial organ of the United Nations’.⁶⁵ The ICJ was using this argument to reinforce the conclusion reached as to the interpretation of Article 36(6) of the Statute, which should be read broadly also because it reflected a principle consistently accepted in international arbitration.

Yet, the judicial nature of the Court would seem to have a bearing also on other aspects of its case law, aspects which reflect a tension between the task of settling a specific dispute according to international law and an awareness of the ‘systemic’ effects of judgments over a range of interests much broader than those of the parties to that dispute.⁶⁶ Precisely this tension, which is common to other international courts as well⁶⁷ and cannot be addressed simply by referring to Article 59 of the Statute, expresses the ICJ’s ‘truly judicial’ nature and would seem to distinguish it from inter-State arbitral bodies.⁶⁸ This structural difference is due to a number of different factors. A first relevant element is that it is impossible for the parties to any specific dispute to modify the Statute bilaterally, even if for the very limited purpose of the decision on their case.⁶⁹ This is at variance with classical arbitral practice and has led the Court to act, on a number of occasions, as a ‘guardian’ of that instrument (and, contextually, of its own judicial function) in ways that are unfamiliar to international arbitral tribunals.⁷⁰

Another factor distinguishing the Court from traditional arbitral tribunals, which were usually set up by special agreement, is the possibility of seising it by unilateral application, on the basis either of Article 36(2) of the Statute or of another consensual bond: Gabriele Salvioli, in particular, considered such possibility as the ‘punctum pruriens of the well-known problem of the nature of the Court: arbitral or judicial body?’⁷¹ More specifically, the Court is endowed with ex officio powers to assess its own jurisdiction and the admissibility of the claim (as expressly stated, in particular, by Article 53 of the Statute). Although arbitral tribunals also exercise similar powers and, of course, unilateral seisin is not unusual in contemporary international arbitration either,⁷² unilateral applications endow the Court with a broad power of appreciation of the subject-matter of the case (which is identified by the interplay of two separate sets of submissions rather than by a single document)⁷³ and of the applicable law. Rather than conveying a distinct treatment of the two kinds of cases, this mechanism has influenced and expanded the Court’s powers of autonomous appreciation also in proceedings begun on the basis of a special agreement.⁷⁴

Moreover, these powers are amplified by the Court’s permanent nature and by the ensuing need to develop consistency in its case law, further marking its distance from arbitration. This aspect is particularly important since the Court’s assessment of the existence and content of international legal rules has an impact that goes well beyond the limits of the decided case. Arbitral precedents also play an important role in the assessment and development of international legal rules, due to the peculiar structure of international society where impartial statements of the law are relatively rare; in this sense, the effects of pronouncements of arbitral tribunals are also broader than those of practice stemming from the litigating parties. However, this aspect is significantly enhanced with respect to permanent judicial bodies, since

la norme relevée et appliqué par le juge (si elle est générale ou multilatérale) ne va pas changer en principe d’un cas à l’autre portant sur la même matière: dans ce sens, le poids du précédent n’est nullement amoindri pour les tiers, même si ceux-ci pourront ensuite faire valoir le cas échéant que d’autres circonstances spéciales doivent amener à établir une application différente de la même norme.⁷⁵

Specifically, the Court’s precedents often bear a decisive influence on the development of the international legal order as such,⁷⁶ because of the ICJ’s special position as the principal judicial organ of the United Nations and of the potentially broad scope of its jurisdiction—indeed, the PCIJ was originally established also with this aim in mind.⁷⁷

Fourthly, both international arbitral tribunals and the ICJ are endowed not only with express powers, but also with powers that are inherent to international jurisdiction⁷⁸; however, the implied powers of the ICJ are arguably broader than the ones of international arbitral tribunals, in that they have to be identified and exercised in the light not only of the specific dispute submitted to it in any given case, but also of the general aims of the United Nations: as was observed, ‘the ICJ was expressly conceived (…) to be fully integrated into the new Organization and to share its original concerns and purposes. (…) [T]he Court is clearly an essential part, not just of the machinery set up by the Charter for the peaceful settlement of disputes, but also of the general system for the maintenance of international peace and security that it introduced’.⁷⁹ The ICJ’s organic link to the UN has always shaped the ICJ’s advisory function, but it also moulds contentious proceedings. This is apparent not only in the ICJ’s restrictive approach to the ius standi of States that are not Members of the Organization—notwithstanding the existence of a consensual bond—that may be seen as enhancing the ICJ’s status as UN organ⁸⁰—but also in other aspects of its case law.⁸¹

Finally, contentious proceedings before the ICJ are still marked by a bilateralist approach inherited from arbitration; however, Articles 62 and 63 of the Statute allow for third-party intervention, which is in principle alien to classical international arbitration. Although intervention is at times admitted in arbitral proceedings (this is the case, for instance, under Article 56 of the 1899 Hague Convention for the Pacific Settlement of International Disputes or Article 84 of the 1907 Hague Convention⁸²) it inherently presupposes that the relevant judicial body is instituted by (and, in a way, ‘speaks to’) a group of entities that is broader than the parties in dispute.⁸³ It would thus seem that the ICJ’s contentious jurisdiction and inter-State arbitration, while having a shared function as a means of ‘settlement of differences between States (…) on the basis of respect for law’,⁸⁴ are not ‘identical twins’ but have a structurally different nature, as the success currently being enjoyed by both these means of dispute settlement also confirms. The soundness of this assumption is tested by analysing the relevant PCIJ and ICJ case law and comparing it, insofar as possible, with the approach of international arbitral tribunals to the same issues.

1.4 Outline of the Book

Part I provides an overview of the interplay between the Court’s arbitral and strictly judicial features in the framework of contentious proceedings, namely, with reference to the Court’s power to regulate the exercise of its functions, to the composition of the Bench in particular cases, to the parties’ representation before the Court, to the organisation of contentious proceedings and to provisional measures.

Parts II and III then specifically address the two aspects of the ICJ’s case law where the tension between the ‘bilateral’ and the ‘systemic’ role of the Court emerges more clearly. The first crucial aspect concerns the relationship between the power of the parties to define the subject-matter of the dispute through their submissions and the possibility for the Court, on the one hand, to refuse to decide—wholly or partly—the merits of those submissions and, on the other hand, to address proprio motu issues that the Parties did not themselves raise or that do not fall under its jurisdiction.

The second core aspect concerns the possibility for third parties to intervene in contentious proceedings under Articles 62 and 63 of the Statute. The interpretation of these articles remains problematic, precisely because of their impact on the principle of consent that lies at the basis of the Courts’ jurisdiction. Recent case law on the issue interprets Article 62 of the Statute rather liberally, although this case law is not fully coherent and tends to ‘downgrade’ intervention to a form of amicus curiae participation in proceedings, which seems not completely in keeping with the provisions of the Statute. As argued below, a different interpretation of Article 62 would enhance the Court’s role as the ‘principal judicial organ’ of the United Nations and, more generally, in the international legal order as a whole.

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Footnotes

1

PCIJ, Advisory Committee of Jurists, procés verbal of the first meeting, Annex No. 2 (1920), Procés Verbaux of the Meetings of the Committee. van Langenhuysen Brothers, The Hague, p. 8. Bourgeois was delegate of the Council of the League of Nations to the Advisory Committee of Jurists.

2

See Article 33 of the Draft-Scheme adopted by the Committee at its 32nd meeting, ibid., p. 679.

3

Certain German Interests in Polish Upper Silesia, judgment of 25 May 1926, Series A, No. 7, p. 19. See also ICJ, Corfu Channel (United Kingdom v. Albania), judgment of 9 April 1948, ICJ Reports 1948, p.