ICJ RoP-1

International Court of Justice Rules of Procedure

The International Court of Justice

The International Court of Justice is the principal judicial organ of the United Nations. Its seat is at the Peace Palace in The Hague (Netherlands). It began work in 1946, when it replaced the Permanent Court of International Justice that had functioned in the Peace Palace since 1922. It operates under a Statute largely similar to that of its predecessor, which is an integral part of the Charter of the United Nations.

Functions of the Court

The Court has a dual role: to settle the legal disputes submitted to it by States in accordance with international law, and to give advisory opinions on legal questions referred to it by duly authorized international organs and agencies.

Composition

The Court is composed of 15 judges elected to nine-­‐year terms of office by the United Nations General Assembly and Security Council sitting independently of each other. It may not include more than one judge of any nationality. Elections are held every three years for one third of the seats, and retiring judges may be re elected. The Members of the Court do not represent their governments but are independent magistrates. The judges must possess the qualifications required in their respective countries for appointment to the highest judicial offices, or be jurists of recognized competence in international law. The composition of the Court has also to reflect the main forms of civilization and the principal legal systems of the world. When the Court does not include a judge possessing the nationality of a State party to a dispute that State may appoint a person to sit as an ad hoc judge in the proceedings.

The present composition of the Court is as follows:

President: Hisashi Owada (Japan); Vice President: Peter Tomka (Slovakia); Judges: Xue Hangin (China); Abdul G. Koroma (Sierra Leone); Awn Shawkat Al-­‐Khasawneh (Jordan); Joan Donogue (United States of America); Bruno Simma (Germany); Ronny Abraham (France); Kenneth Keith (New Zealand); Bernardo Sepúlveda Amor (Mexico); Mohamed Bennouna (Morocco); Leonid Skotnikov (Russian Federation Antônio Augusto Cançado Trindade (Brazil); Abdulqawi Ahmed Yusuf (Somalia) and Christopher John Greenwood (United Kingdom). The Registrar of the Court is Mr. Philippe Couvreur, of Belgian nationality.

Contentious cases between States

The Parties

Only States may apply to and appear before the Court. The Member States of the United Nations (at present numbering 191) are so entitled.

Jurisdiction

The Court is competent to entertain a dispute only if the States concerned have accepted its jurisdiction in one or more of the following ways:

(1) By the conclusion between them of a special agreement to submit the dispute to the Court;

(2) By virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty containing a provision whereby, in the event of a disagreement over its interpretation or application, one of them may refer the dispute to the Court. Several hundred treaties or conventions contain a clause to such effect;

(3) Through the reciprocal effect of declarations made by them under the Statute whereby each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with another State having made a similar declaration. The declarations of sixty-­‐six States are in force at present, a number of them having been made subject to reservations from certain categories of dispute. In cases of doubt as to whether the Court has jurisdiction, it is the Court itself that decides.

Procedure

The procedure followed by the Court in contentious cases is defined in its Statute, and in the Rules of Court adopted by it under the Statute. The latest version of the Rules dates from 5 December 2000. The Statute of the ICJ elaborates certain general principles laid down in Chapter XIV of the Charter. Whilst it forms an integral part of the Charter, it is not incorporated into it, but is simply annexed. The articles of the Statute are divided into five chapters: "Organization of the Court" (Arts. 2-­‐33), "Competence of the Court" (Arts. 34-­‐38), "Procedure" (Arts. 39-­‐64), "Advisory Opinions" (Arts. 65-­‐68) and "Amendment" (Arts. 69-­‐70). It can be amended only in the same way as the Charter, i.e., by a two-­‐thirds majority vote in the General Assembly and ratification by two-­‐thirds of the States, including the permanent members of the Security Council — the only difference being that States parties to the Statute without being members of the United Nations are allowed to participate in the vote in the General Assembly. The proceedings include a written phase, in which the parties file and exchange pleadings, and an oral phase consisting of public hearings at which agents and counsel address the Court. As the Court has two official languages (English and French) everything written or said in one language is translated into the other. For the purposes of TEIMUN, the Court will conduct all of the proceedings in English.

Proceedings are instituted by the parties to the case or by a single party

A distinction must be drawn according to whether proceedings are instituted through the notification of a special agreement or by means of an application:

• A special agreement is of a bilateral nature and can be lodged with the Court by either of the States parties to the proceedings or by both of them. A special agreement must indicate the subject of the dispute and the parties thereto. Since there is neither an "applicant" State nor a "respondent" State, in the Court's publications their names are separated by an oblique stroke at the end of the official title of the case, e.g., Colombia/Peru.

• An application, which is of a unilateral nature, is submitted by an applicant State against a respondent State. It is intended for communication to the latter State and the Rules of Court contain stricter requirements with respect to its content. In addition to the name of the party against which the claim is brought and the subject of the dispute, the applicant State must, as far as possible, indicate briefly on what basis — a treaty or a declaration of acceptance of compulsory jurisdiction — it claims the Court has jurisdiction, and must succinctly state the fact and grounds on which it founds its claim. At the end of the official title of the case the names of the two parties are separated by the abbreviation v. (for the Latin versus), e.g., Cambodia v.

Thailand.

The proceedings are first written and then oral

Combining the two types of procedure that are used to varying degrees in all countries, the Statute of the Court provides that proceedings before the Court shall be in two stages: a written stage and an oral stage. This method provides both the parties and the Court with the safeguards required for the sound administration of international justice.

Written proceedings

The first or written stage of the proceedings involves the submission to the Court of pleadings containing a detailed statement of the points of fact and of law on which each party relies and an answer to any previous pleading of the other side. The parties are free in their choice of the form they give their pleadings. Supporting documents must be annexed. The Court may itself call for documents or explanations during the written proceedings. The pleadings are confidential pending final judgment, the practice of arbitral tribunals being herein followed as conducive to an equable presentation of the issues. The pleadings and their annexes may be filed in either English or French, at the choice of the party concerned. They may be in a combination of these two languages and may even be wholly or partly in a third language, provided that a translation into English or French is attached. The Registry

makes an unofficial translation into the other official language of the Court for the convenience of its Members.

In each of the pleadings it files, a party indicates its 'submissions' (French: conclusions) at that stage of the case. 'Submissions' is a concept borrowed by international arbitral and judicial practice from the legal systems of Civil Law countries and one unknown in this form in Common Law countries. These contain a concise statement of what precisely the party in question is asking the Court to adjudge and declare on the basis of the facts it has alleged and the legal grounds it has adduced, in respect not only of the original claim but also of any counter-­‐claim. In principle they do not include any recital, however brief, of the aforesaid facts and arguments. They define the scope of the claim and the framework within which the Court will have to reach its decision. As the Court once observed, it is its duty "not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions."

Oral proceedings

Once all the pleadings have been filed, the case is ready for hearing. In principle there is an interval of a few months before the oral proceedings begin. The Court, taking into account other constraints upon its time, decides the date for their opening. Unlike arbitral tribunals, the sittings of the International Court of Justice are open to the public unless the parties ask for the proceedings to be in camera or the Court so decides of its own motion. The parties address the Court in the order in which they have filed their pleadings or, in cases submitted under a special agreement, in the order fixed by the Court after consulting the agents of the parties. Normally each party has two turns. The Court may be addressed in either of its official languages; it is not required that all argument be in a single language nor that all a party's representatives use the same language. Everything spoken in English is interpreted into French and vice versa. Hearings generally last for two or three weeks. Although the Rules authorize the Court to put forward questions on points that seem to it to require explanation, and to call for further information or documents, it has not done this very frequently.

So far as the taking of evidence is concerned, the ICJ, which is empowered by the Statute to make all necessary arrangements for this, has tried to avoid a formalistic approach, co-­‐ operating with the parties and taking account of the different concepts they may have in this matter. It has consequently shown itself more flexible in the admission of evidence than the courts of certain countries, though reserving its right to reconsider the issue during its deliberations in the case.

After the conclusion of oral argument on behalf of each party, counsels complete their replies to questions put by the Court or by individual judges and each agent reads his country's final submission, handing a signed text thereof to the Registrar. At the end of the last public sitting, the President asks the agents to hold themselves at the disposal of the Court. Sometimes replies to certain questions may subsequently be forwarded in writing to the Court and further written questions may still be put forward. Such questions and answers are duly communicated to each Member of the Court and to each party.

After the oral proceedings the Court deliberates in camera and then delivers its judgment at a public sitting. The judgment is final and without appeal. Should one of the States involved fail to comply with it, the other party may have recourse to the Security Council of the United Nations.

The Court discharges its duties as a full court but, at the request of the parties, it may also establish a special chamber.

Since 1946 the Court has delivered 102 Judgments on disputes concerning inter alia land frontiers and maritime boundaries, territorial sovereignty, the non use of force, non interference in the internal affairs of States, diplomatic relations, hostage taking, the right of asylum, nationality, guardianship, rights of passage and economic rights.

Sources of applicable law

The Court decides in accordance with international treaties and conventions in force, international custom, general principles of law, and, as subsidiary means, judicial decisions and the teachings of the most highly qualified publicists.

The Court is an organ of international law

The Court, the principal judicial organ of the United Nations, has described itself as an organ of international law; it is neither a legislative body nor an academic institution. It dispenses justice within the limits that have been assigned to it. The disputes that have come before it have covered the most varied aspects of public and private law, have concerned all parts of the globe and have necessitated an examination of various legal systems and of wide-­‐ranging State practice, as well as the internal law of international organizations.

The Court applies international law

Article 38, paragraph 1, of the Statute of the Court declares that the Court's "function is to decide in accordance with international law such disputes as are submitted to it". In every case, after having determined which rules of international law are applicable to the case before it, it is the Court's duty to give its decision essentially by basing itself on those rules. Article 38, paragraph 1, goes on to provide that the international law to be applied by the Court is to be derived from the following sources:

"a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

b. International custom, as evidence of a general practice accepted as law;

c. The general principles of law recognized by civilized nations;

d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law."

The above is not an exhaustive statement of the foundations on which the Court can construct its decision. Some are listed, but not all. For instance, the paragraph does not mention unilateral acts of international law, nor does it make reference to the decisions and resolutions of international organs, which very often contribute to the development of international law. It makes no mention of such principles or considerations as those of equity and justice, to which the Court is always entitled to have recourse, since this is implicit in the functions of a world tribunal. Nor is there any specific reference to the normal processes of judicial reasoning, to which the Court, as a judicial body, can always have recourse.

Treaties and conventions

The expression "international conventions" in Article 38, paragraph 1, is a broad one, and covers not only bilateral and multilateral treaties and conventions formally so called, but also all other international understandings and agreements, even of an informal nature, provided that they establish rules expressly recognized by the States parties to the dispute. The ICJ has emphasized that manifest acceptance or recognition by a State of a convention is necessary before the convention can be applied to that State.

Custom

The Court's decisions show that a State that relies on an alleged international custom practiced by States must, generally speaking, demonstrate to the Court's satisfaction that this custom has become so established as to be legally binding on the other party. Customary principles of international law continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated.

Judicial decisions and the teachings of the most highly qualified publicists

Judicial decisions and the teachings of publicists do not stand on the same footing as the Court's other sources of law. They merely constitute a "subsidiary means for the determination of rules of law". Their application is made subject to the provisions of Article 59 of the Statute, which stipulates that a decision of the Court has no binding force except between the parties and in respect of that particular case. It is thus clear that, subject to this reservation, the expression "judicial decisions" covers not only the decisions of municipal or international courts, but also those of the ICJ and the PCIJ. Both make frequent reference, in the reasoning of their decisions, to their own jurisprudence. Moreover, the ICJ often cites its predecessor. Both refer only rarely to awards made by arbitral tribunals.

Ex aequo et bono

Paragraph 2 of Article 38 of the Statute provides that paragraph 1 of that Article "shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto". Although this provision has never been applied, it calls for comment. Its effect is that, by consent of the States parties, the Court may proceed to settle a dispute without strict regard for the existing rules of international law, but in the light of the justice and merits of the case. In the absence of the consent of the contesting States, the Court cannot follow this course, but must apply the law, in accordance with the provisions of paragraph 1 of Article 38. Nevertheless, the exercise of the ex aequo et bono power is subject to certain limits. Firstly, the Court remains under a duty to act judicially, and, secondly, the Court would, in the absence of special circumstances, be careful not to infringe the standards of justice or other accepted norms of equity and reasonableness prevailing in the international community.

Whether the Court is deciding a case of a contentious nature, i.e., one concerning a dispute between States, or is engaged in advisory proceedings, i.e., giving an opinion in response to a request from an international organization, it applies the same sources of international law.

Advisory Opinions

The advisory procedure of the Court is open solely to international organizations. The only bodies at present authorized to request advisory opinions of the Court are five organs of the United Nations and 16 specialized agencies of the United Nations family.

Organs and agencies entitled to ask the ICJ for an advisory opinion:

United Nations (UN) organs

• *General Assembly • *Security Council • *Economic and Social Council • Trusteeship Council • Interim Committee of the General Assembly • *Committee on Applications for Review of Administrative Tribunal Judgements

Other agencies

• International Labour Organisation (ILO) • Food and Agriculture Organization of the United Nations (FAO) • *United Nations Educational, Scientific and Cultural Organization (Unesco)

• • • • • • • • • • • • •

*World Health Organization (WHO) International Bank for Reconstruction and Development (IBRD) International Finance Corporation (IFC) International Development Association (IDA) International Monetary Fund (IMF) International Civil Aviation Organization (ICAO) International Telecommunication Union (ITU) World Meteorological Organization (WMO) *International Maritime Organization (IMO) (Previously known as the Inter-­‐Governmental Maritime Consultative Organization (IMCO).

World Intellectual Property Organization (WIPO) International Fund for Agricultural Development (IFAD) United Nations Industrial Development Organization (UNIDO) International Atomic Energy Agency (IAEA)

*Those organs and agencies that have asked for advisory opinions since 1946 are indicated by an asterisk.

Procedure in respect of advisory opinions is based on that in contentious proceedings

The Court's procedure in advisory proceedings, although having distinctive features resulting from the special nature and object of the Court's advisory function, as just described, is based on the provisions in the Statute and Rules relating to contentious proceedings, to the extent that it recognizes them to be applicable. In the exercise of its advisory function, the ICJ has to remain faithful to the requirements of its judicial character and cannot depart from the essential rules that guide its activity as a court. It has the power to decline to give an advisory opinion where to do so would conflict with such requirements and rules.

On receiving a request, the Court decides which States and organizations might provide useful information and gives them an opportunity of presenting written or oral statements. The Court's advisory procedure is otherwise modelled on that of contentious proceedings, and the same sources of applicable law are. In principle the Court's advisory opinions are consultative in character and are therefore not binding as such on the requesting bodies. Certain instruments or regulations can, however, provide in advance that the advisory opinion shall be binding.

Since 1946 the Court has given 25 Advisory Opinions, concerning inter alia the legal consequences of the construction of a wall in the occupied Palestinian territory, admission to the United Nations, reparation for injuries suffered in the service of the United Nations, territorial status of South West Africa (Namibia) and Western Sahara, judgments rendered by international administrative tribunals, expenses of certain United Nations operations, applicability of the United Nations Headquarters Agreement, the status of human rights rapporteurs, and the legality of the threat or use of nuclear weapons.

The ICJ at TEIMUN 2010:

The Role of the participants in the ICJ council in TEIMUN 2010 will be similar to the real ICJ sessions.

Please find below a short description of the TEIMUN 2010 session procedure;

General Procedure:

The participants will be provided with a short case detailing the factual aspects both parties agreed upon regarding the dispute.

The session will begin with oral pleadings held by advocates representing the parties at dispute. The judges will be permitted to ask a limited number of questions concerning the pleadings. The court will only be allowed to discuss the matters raised in the factual case and presented by the advocates.

Speaking Procedure:

• Prior to the substantive discussions of the legal matters, the court will elect a President and Vice-­‐President.

• The role of the President of the Court is to allocate each judge the right to speak. The Vice president allocates the President the right to speak.

• The permission to speak is provided in the following manner: The judge wishing to comment on the topic should raise his hand and when possible, will be addressed by the president who will allow him to have the floor and speak. (For example: "The Honourable Judge from Brazil, you have the floor").

• The judge should thank the president for the permission to speak.

• In order to observe effective discussions, judges may not speak unless received permission.

• Judges are required to act politely and with respect towards their fellow judges.

Voting Procedure:

• The Vice-­‐President is responsible for recording all votes during the session.

• When a judge wishes to hold a vote it must obtain permission to speak by the President. The judge needs to present his "motion to vote" as a YES or NO question. [For Example: "I, honourable judge from Morocco wish call a Motion to Vote whether India's presence in the Kashmir area is a violation of international law?"].

• In order for the motion to crystallize as a vote, a fellow judge must second the vote by calling "Seconded".

• Once a vote has been seconded, all members of the court must vote on the matter with no further deliberations.

• • •

The voting begins once the president calls out: "All those in favour may raise their hands…", "All those against may raise their hands…", All those who abstain may raise their hands.."

Judges may decide what quorum is necessary to carry out a vote and if a minimum number of votes in favour is necessary in order for the vote to pass.

Judges may revote on the matter discussed. Previous votes are not binding upon the judges. The last vote conduced will be considered as the final decision of the court.

Bibliography: The Statute of the International Court of Justice: a Commentary (Ed. By Zimmerman et al, 2006) Rosenne, The World Court: What It Is and How It Works (6th Rev. Ed., 2003) www.icj-­‐cij.org