Essays on International Law

Essays on International Law and Practice

Essays on International Law and Practice

by

Shabtai Rosenne

LEIDEN BOSTON2007

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CONTENTS

Preface .............................................................................................. ixAcknowledgments ............................................................................ xiDocumentation ................................................................................ xv

1. Acccepting The Hague Prize 18 June 2004 .......................... 1

INTERNATIONAL LITIGATION AND COURTS

2. The President of the International Court of Justice .................. 173. A Role for the International Court of Justice in

crisis management? .................................................................... 354. Article 95 of the Charter revisited ............................................ 655. Article 27 of the Statute of the International Court of

Justice revisited .......................................................................... 816. International Court of Justice: Practice Direction on Agents,

Counsel and Advocates .............................................................. 977. Article 31 of the Statute of the International Court of

Justice revisited: the Judge ad hoc ............................................ 1058. Article 59 of the Statute of the International Court of

Justice revisited .......................................................................... 1299. The framework agreement as the basis for the

jurisdiction of the International Court of Justice and some problems of language ................................................................ 161

10. Unilateral applications to the International Court of Justice: history revisited ............................................................ 171

11. The General List of the International Court of Justice ........................................................................................ 197

12. The Secretary-General of the United Nations and the International Court of Justice .................................................... 209

13. Visit to the site by the International Court .............................. 22114. Fact-nding before the International Court of Justice ............... 23515. Controlling interlocutory aspects of proceedings in the

International Court of Justice .................................................... 25116. Counter-Claims in the International Court of Justice

Revisited .................................................................................... 26717. The Jaffa-Jerusalem Railway arbitration (1922) ........................ 295

18. Some points of contact between the International Criminal Court and the International Court of Justice ............ 353

19. The jurisdiction of the International Criminal Court .............. 36720. Antecedents of the Rome Statute of the International

Criminal Court .......................................................................... 391

THE LAW OF TREATIES

21. Reections on automatic treaty succession ................................ 42522. What is a treaty? A signatorys intentions

Qatar v Bahrain ........................................................................ 43523. When is a nal clause not a nal clause? .................................. 44524. On multilingual interpretation .................................................. 449

THE LAW OF THE SEA

25. The United Nations Convention on the Law of the Sea, 1982: the Application of Part XI: an element of background ................................................................................ 457

26. The United Nations, the oceans and some geography .................................................................................. 469

27. Historic waters in the third United Nations Conference on the Law of the Sea ............................................ 497

INTERNATIONAL RESPONSIBILITY

28. Breach of treaty in the codication of the law of State responsibility .................................................................... 515

29. State responsibility: festina lente ................................................ 53330. Decisions of the International Court and the law of

State responsibility .................................................................... 543

MISCELLANEOUS

31. The role of controversy in international legal development .............................................................................. 559

32. Codication revisited after fty years ........................................ 59933. Three central elements of modern international law ................ 621

vi CONTENTS

34. Self-defence and the Non-use of Force: Some Random Thoughts .................................................................................. 633

35. Israel: some legal aspects of the transition from Mandate to Independence: December 194715 May 1948 ...... 649

CONTENTS vii

PREFACE

This collection is a continuation of the collection of my essays published in1993 under the title An International Law Miscellany. It consists of a num-ber of my scattered essays published between 1992 and 2005 in various LibriAmicorum and Festschriften, together with a few taken from periodical liter-ature of the period. As before, the essays are mostly reproduced as writtenwith occasional editorial changes designed to include essential up-dating. ThePublishers made it possible to bring in necessary allusions to the judgmentof the International Court of Justice (ICJ) of 26 February 2007 in the Applica-tion of the Genocide Convention case, which was relevant to several of theessays in this volume.

Again it gives me pleasure to express my appreciation to the publishersMartinus Nijhoff of Leiden, the Netherlands, and to their staff for their co-operation, in particular Ms. Annebeth Rosenboom. I also wish to thank theeditors of the various publications and periodicals for permission to repro-duce this material here.

In the title to this collection, Essays on International Law and Practice, theand is conjunctive, not disjunctive. It is designed to indicate the creativeapplication of the law, with special attention to international litigation prac-tice in some of its especial manifestations. By international litigation is meantin particular litigation between States, whether in one of the current stand-ing international tribunals, the ICJ and the International Tribunal for theLaw of the Sea (ITLOS), or in international arbitration proceedings betweenStates before an ad hoc body formed especially to deal with a single case andapplying judicial techniques. Experience goes to show that from the profes-sional point of view there is no real difference between these different forums.We can nd evidence of this in the frequent appointment of serving or for-mer members of the ICJ and of ITLOS as members of an arbitration tribu-nal, and the designation of the President of ITLOS as the residual appointingauthority for arbitrations conducted under Annex VII, article 3, of the Lawof the Sea Convention of 1982. The only apparent difference is that in thestanding courts and tribunals all the principal participants, the judges, theregistrar, and counsel appear garbed in out-dated gowns and jabots servingno obvious purpose while in arbitration proceedings all concerned appear inthe dress that is appropriate for the twenty-rst century. I have thereforebeen free in using both types of litigation as sources for my work.

Beth ha Kerem, Jerusalem Shabtai RosenneFebruary 2007

ACKNOWLEDGMENTS

The articles in this volume were previously published as listed below. Theauthor gratefully acknowledges permission to reprint them here.

2 The President of the International Court of Justice, Fifty Years of theInternational Court of Justice, Essays in honour of Sir Robert Jennings (1995),pp. 406423. Cambridge University Press.

3 A Role for the International Court of Justice in Crisis Management?,State, Sovereignty and International Governance 195219 (2002). OxfordUniversity Press.

4 Article 95 of the Charter Revisited, Studi di Diritto Internazionale inonore di Gaetano Arangio-Ruiz 13871401 (2004). Ed. Scientica.

5 Article 27 of the Statute of the International Court of Justice, 32 VirginiaJournal of International Law 213231 (1991).

6 International Court of Justice: Practice Direction on Agents, Counseland Advocates, 1 LPICT 223245 (2002).

7 Article 31 of the Statute of the International Court of Justice Revisited,Mlanges en honneur de Nicolas Valticos: Droit et justice (1999), pp. 301317.Pdone.

8 Article 59 of the Statute of the International Court of Justice Revisited,El Derecho internacional en un mundo en transformacin; Liber Amicorum enhomenaje al Profesor Eduardo Jimnez de Archaga (M. Rama-Montaldo, ed.1994), pp. 11291158. Fundacin de cultura universitario, Montevideo.

9 The Framework Agreement as the Basis for the Jurisdiction of theInternational Court of Justice, O Direito internacional no tercero Milno:Estudios em Homenagem ao Prof. Vicente Marotta Rangel (1998), pp. 6979.Universidad de Chile, Instituto de Estudios internacionales.

10 Unilateral Applications to the International Court of Justice: HistoryRevisited, Liber amicorum Bengt Broms (ILA, Finnish Branch, 1999), pp.447481. ILA Helsinki.

11 General List of the International Court of Justice, Theory of InternationalLaw at the Threshold of the 21st Century: Essays in honour of KrzysztofSkubiszewski, pp. 805816 (1996). Kluwer Law International.

12 The Secretary-General of the United Nations and the Advisory Procedureof the International Court of Justice, International Law, Theory and Practice,Essays in honour of Eric Suy, pp. 707717 (1998). Kluwer Law International.

13 Visit to the Site by the International Court, Liber Amicorum Judge M.Bedjaoui, pp. 461473 (1999). Kluwer Law International.

14 Fact-nding before the International Court of Justice, InternationalLaw and The Hagues 750th Anniversary (W.P. Heere, ed. 1999), pp. 4559.Asser Institute.

15 Controlling Interlocutory Aspects of Proceedings in the InternationalCourt of Justice, 94 AJIL 307317 (2000).

16 Counter-claims in the International Court of Justice revisited, Liberamicorum In memoriam of Judge Jos Mara Ruda (2000).

17 The Jaffa-Jerusalem Railway Arbitration (1922), The Israel Yearbook onHuman Rights, vol. 28 (1998), pp. 239286.

18 Some Points of Contact between the International Criminal Court andthe International Court of Justice, Liber Amicorum I.P. Blischchenko (in thepress). Martinus Nijhoff Publishers.

19 The Jurisdiction of the International Criminal Court, Yearbook ofInternational Humanitarian Law, vol. 2 (1999), pp. 119141. Asser Press.

20 Antecedents of the International Criminal Court revisited, Interna-tional Law across the Spectrum of Conict: Essays in honour of Professor L.C.Green On the Occasion of his Eightieth Birthday, 387420 (1999). NavalWar College RI.

21 Automatic Treaty Succession, Essays on the Law of Treaties in honour ofR.W. Vierdag 97106 (1997). Kluwer Law International.

22 The Qatar/Bahrain Case: What is a Treaty? A Framework Agreementand the Seising of the Court, The Leiden Journal of International Law, vol. 8(1995), pp. 161182.

xii ACKNOWLEDGMENTS

23 When is a Final Clause not a Final Clause?, 98 AJIL 546549 (2004).

24 On Multilingual Interpretation 6 Israel Law Review 360366 (1971).

25 The United Nations Convention on the Law of the Sea, 1982: TheApplication of Part XI: An Element of Background, Israel Law Review, vol.29 (1995), pp. 491505.

26 The United Nations, the Oceans and Some Geography The UnitedNations at Work (M. Glassner, ed.), pp. 285311 (1998) Praeger, a revisedand expanded version of Geography in International Maritime-Boundary-Making, Political Geography; vol. 15, pp. 319334 (1996).

27 Historic Waters in the Third United Nations Conference on the Lawof the Sea; Reections on Principles and the Practice of International Law: Essaysin honour of Leo J. Bouchez 191203 (2000). Martinus Nijhoff Publishers.

28 Breach of Treaty in the Codication of the Law of State Responsibility,El derecho international en los albores del siglo XXI: homenaje al profesor JuanManuel Castro-Rial Canosa 583598 (2002). Trotta.

29 State Responsibility Festina Lente, 75 BYIL 363371 (2004).

30 Decisions of the International Court of Justice and the New Law ofState Responsibility, International Responsibility Today 297309 (2005).Martinus Nijhoff Publishers.

31 The Role of Controversy in International Legal Development, TheStructure and Process of International Law (R.St.J. McDonald. ed. 1983), pp.11471183. Martinus Nijhoff Publishers.

32 Codication revisited after 50 Years, Max Planck Yearbook of UnitedNations Law, No. 2 (1998), pp. 122. Kluwer Law International.

33 The Three Central Elements of Modern International Law, HagueYearbook of International Law (2004) 313. Martinus Nijhoff Publishers.

34 Self-defence and the Non-use of Force: Some Random Thoughts, Self-defence in National and International Law: Reections and Materials, AsserPress (forthcoming 2007).

ACKNOWLEDGMENTS xiii

35 Israel: Some Legal Aspects of the Transition from Mandate toIndependence: December 194715 May 1948, Israel among the Nations International and Comparative Law Perspectives on Israels 50th Anniversary(A. Kellerman et al. eds., 1998) pp. 311342. Kluwer Law International.

xiv ACKNOWLEDGMENTS

DOCUMENTATION

As far as possible documents are cited by reference to their printed versionsand ofcial number. Most modern documents are available on an appropri-ate website. Treaties are cited by reference to one of the standard treaty col-lections. Treaties that have been registered with the UN but not yet printedin the UNTS are cited by reference to their registration number. Decisionsof the Permanent Court of International Justice, the International Court ofJustice, and the International Tribunal for the Law of the Sea are cited byreference to their ofcial reports or to their website. Resolutions of standingorgans of international organizations are taken from the Ofcial Records orfrom the website.

The principal websites are as follows, all http//:ICJ www.icj-cij.org (also through the UN home

page)ILC www.un.org/law/ilc/ (also through the UN

home page)ITLOS www.itlos.org (English) www.tidm.org

(French) (also through the UN home page)PCA www.pca-cpa.orgPCIJ through the ICJ home pageUN www.un.org (in all the ofcial languages)UNAT United Nations Administrative Tribunal,

through the UN home pageInstitute of International Law www.idi-iil.org

* * *Law and Practice4 Sh. Rosenne, The Law and Practice of the

International Court 19202005 (MartinusNijhoff Publishers, Leiden, 2006).

1ACCEPTING THE HAGUE PRIZE 18 JUNE 2004

Mr Mayor and Aldermen of the City of The Hague, Mr President andMembers of the International Court of Justice and of other internationalcourts and tribunals represented here, Excellencies members of the diplo-matic corps, members of the Nominating Committee and the Board of theHague Prize Foundation for International Law, members of Academe, ladiesand gentlemen, friends.

I must rst, in all humility, express my deep sense of gratitude at the greathonour done to me by the Nominating Committee of the Stichting HaagsePrijs voor Internationaal Recht under the distinguished chairmanship of HisExcellency Judge Peter Kooijmans of the International Court of Justice, andby the Board of the Hague Prize Foundation under the chairmanship of ProfessorJudge P.J. Kapteyn, formerly a member of the European Court of Justice andnow of the University of Amsterdam. I greatly appreciate the unanimousdecision of the jury and the very kind words it contains in my regard.

My rst duty after that is to place on record my debt to three persons,without whom I do not think I would be here today. The rst is my wife,who unfortunately cannot make the journey to The Hague. She providedand maintained the conditions, the environment, and the atmosphere whichmade it possible for me to do all my work, both ofcial and academic. Isometimes think that she knows more of the practical application of inter-national law and of the workings of diplomacy than many of the studentsthat come to see me. The second two are my mentors, the late Sir HerschLauterpacht of Cambridge, and the late Dr Jacob Robinson of Vilna and,escaping the Holocaust, New York, two unlikes, but with one major char-acteristic in common.1 They were both international lawyers with one footdeeply in the world of practice, including practice in the strenuous condi-tions of the War, and the other foot in the academic side of the law, teach-ing what they learned from practice, and practising what they learned fromteaching. I would also like to take this opportunity to express my deep

1 For my appreciation of these two mentors, see Sir Hersch Lauterpachts Concept of the Taskof the International Judge, and Jacob Robinson, 28 November 188924 October 1977 inSh. Rosenne, An International Law Miscellany 781 and 831 (1993).

appreciation for the two Dutch publishing houses that have published mostof my important works, rst the House of A.W. Sijthoff of Leiden, and morerecently Martinus Nijhoff, now also of Leiden. My rst contact with Sijthoffgoes back to the early 1950s, and I have always been grateful to them forthe encouragement that they gave me then to write and publish my rstmajor book on the International Court of Justice. It has for me been a priv-ilege and pleasure, and very instructive, to work with these two great Houses,and witness rst hand the transformation of printing from monotype andtons of boiling lead to modern clean computerized printing. So I start witha deeply felt Thank you all, and may the Hague Prize Fund continue toprosper and offer encouragement to those who devote their lives and capa-bilities to the advancement of international law.

This has brought me into closer contact with the reality of true Dutchliberalism to which Hugo Grotius gave an early expression in his importantdocument for the newly liberated Dutch States General in 1615. That washis Remonstratie nopende de ordre dije in de Landen van Hollandt endeWestvrieslandt dijent gestelt op de Joden2 laying out the conditions under whichJews, then eeing from the Inquisition in Spain and Portugal, could beallowed to settle in the Netherlands, newly liberated from Spanish rule.Indeed, one of my own ancestors directly beneted from that, and wasinvolved in the establishment of the Jewish community in Amsterdam andthe building of the famous Portuguese Synagogue there (he was also involvedin the excommunication of Spinoza perhaps a more controversial side ofhis activities).3 So I can claim a distant connection with this country.

Early in the days of the present International Court of Justice the BrazilianJudge Carneiro in one of his opinions rightly remarked that it was inevitablethat every one should retain some trace of his legal education and formerlegal activities. That was justied.4 He was speaking about what was expectedof the members of the Court, but I think that his remarks are fully relevantto all who practice as international lawyers. International law is an independ-ent and self-standing branch of law and of jurisprudence, of legal scienceand legal philosophy, but it cannot be, it must not be separated from law asa whole, and the international lawyer cannot throw off his initial training orcultural upbringing, nor is he or she expected to do so. You will therefore,I venture to think, not be surprised if I draw my inspiration for this after-noons remarks from my Jewish upbringing.

2 1. THE HAGUE PRIZE, 2004

2 Edition after the manuscript in the Livrana D. Montezinos, published with an introductionby J. Meijer, Amsterdam, 1949.

3 Spinoza has been quoted at least once in an opinion in the International Court of Justice.That was by Judge ad hoc Rigaux in para. 32 of his individual opinion in the Oil Platformscase, ICJ Rep. 2003, 161, 389.

4 Dissenting opinion in the Anglo-Iranian Oil Co, case, ICJ Rep. 1952 at 161 (para. 14).

My prime inspiration, ever since I rst became interested in the Interna-tional Court during a dark period of the Second World War and its trau-matic impact on all who had anything to do with it, is the little text, onlythree words in the original Hebrew, in the Book of Deuteronomy whichreads in translation: Justice, justice, shalt thou pursue (Deut. 16:20). Manycommentators have asked why Holy Writ repeats the word Justice and asmany replies as commentators have been given. I like the explanation thatis quoted in the Commentary of the thirteenth century Catalonian RabbiMoses the son of Nahman (Nahmanides) (11941270). He gave as his opin-ion that the intention behind the repetition of the word Justice is to teachthat one should pursue justice always, whether one stands to win as muchas whether one stands to lose. If that is an ideal for human beings, it shouldequally be an ideal for those human beings who are responsible for conduct-ing public affairs, including the affairs of state. International law, like all law,is addressed rst and foremost to human beings who are in the special posi-tion of directing the affairs of state and being responsible for them. I do nothave to say here that the world is still far from that. However, the ideal isthere, and the different courts and tribunals that have come into existencearound the world, especially during the twentieth century with all its calami-ties, for different purposes and for different sections of humanity, several ofthose courts and tribunals with their seat here in The Hague, are evidencethat somewhere in the human conscience this idea is taking root.

I owe my introduction to the international court to a bookseller friend inwhat was once a famous law bookshop in Chancery Lane in London, Sweetand Maxwells. He knew my tastes. I visited him during a leave, shortly beforeD-Day, and he showed me what had just arrived somehow in London,Hudsons masterly work on the Permanent Court of International Justice. Itwas under that inspiration and, I might add, with Hudsons encouragement,that I devoted a great part of my studies to the International Court of Justiceand more generally to the problems of international litigation. Likewise, itis from that short passage in Deuteronomy that I have reached the conclu-sion, and the challenge, that I am shortly going to lay before you.

The second area in which I have devoted a great part of my life, both asa matter of practice and in an academic sense, is the law of treaties. Hereagain the Book of Deuteronomy (23:24) supplies some inspiration when ittells us: That which is gone out of thy lips thou should observe and do,four words in the original Hebrew, and three in the equally lapidary com-mon Latin expression which you all know, Pacta sunt servanda. Here along-side practice in my ofcial duties, my membership in the International LawCommission was the driving force. It was a great privilege to have been a member of that Commission when it completed its work on the law of treaties, the central element of all modern international law. This too will link up with the challenge that I am shortly going allow myself to laybefore you.

1. THE HAGUE PRIZE, 2004 3

Thirdly, I come to the law of the sea. One of the rst problems to crossmy desk early in 1949, and never to leave it, was the question of freedomof passage through what at that time was an unknown strait, the Strait ofTiran and the Gulf of Aqaba incidentally today a major waterway givingaccess to an important part of the Arab world from the Indian Ocean andelsewhere. That strait and that Gulf are together an arm of the Red Sea, andthe crossing of the Red Sea has always been of special signicance in Jewishtradition, consummated in the Ode to the Sea in Exodus, chapter 15, whichis recited every day of the year in the Jewish liturgy. This led to my partic-ipation in all the major United Nations Conferences on the Law of the Sea,ve in number, between 1955 and 1995. They are the Rome Conference of1955, largely overlooked but perhaps one of the most important, the threeUN Conferences on the Law of the Sea covering the whole period from 1958to 1982, and the Straddling Stocks Conference of 1992 to 1995. This par-ticipation was one of my professional duties, very hard work but pleasantand rewarding, and leading to many personal friendships the world over, and to a much deeper understanding of the law, how to draft it and how toapply it.

I am mentioning this because if in appearance my contribution to inter-national law is measured only in terms of books and articles and other writ-ings covering a wide range of topics, these in their turn are not theoreticalexaminations of topics that at times might seem esoteric and removed fromday to day realities, but to the contrary, they are closely related to my dailypractice as an international lawyer. This is what is leading me to what I thinkshould be seen as the central issue in this speech, the place of internationallaw in the daily life of the average human being.

It is not sufciently realized by the general public or indeed by the aver-age practitioner of law in any country just to what extent international lawregulates the daily activities of every man, woman and child, mostly todaythrough the operation of an international treaty and of national legislationbased on and deriving from an international treaty. In todays internationallaw the treaty is from a quantitative point of view the primary source ofmost of the day-to-day rules of international law. When you wake up in themorning and spray yourself with some toiletry, the chemical which movesthat spray is governed by international law. When you take a cup of coffeewith your breakfast, international law more than one branch of it laysdown how that coffee reaches your table. When you drive your car to work,the road signs on which the discipline of the road and your personal safetydepend are governed by a major international treaty. At the same time, theexhaust which your car may emit is also regulated by international law, theprotection of the environment being now a major international preoccupa-tion involving serious conicts of interest reconciled only with difculty. Icould go on repeating this indenitely, for almost every activity that youundertake during the following twenty-four hours. International law even


has something to say to help you to sleep peacefully, the international pro-tection of the environment now extending to the prevention of pollution bythe noise of aircraft. My journey from my home to here involved regulationsand agreements laid down by a series of international organizations and bilat-eral agreements between governments, together with at least one non-gov-ernmental organization. Let me name them: the International Civil AviationOrganization regulating civil aviation generally, including the requirementsfor an international airport, for trafc separation, for the maintenance andregulation of air corridors, for overying national territory and for ying overthe high seas (overight being one of the freedoms of the seas regulated bythe new law of the sea), the International Telecommunication Union ensur-ing safe radio communications to guide the aircraft throughout the ight,the International Labour Organization governing the working conditions of the aircrew, the World Meteorological Organization consolidating theavailability and diffusion of weather information essential for a safe ight,the World Health Organization which lays down the regulations essential toprevent the transmission of dangerous diseases by insects inside aircraft ortransmitted through passengers and crew, bilateral agreements allowing thescheduled ights point to point from one country to the other, and as a NonGovernmental Organization the International Air Trafc Association (IATA),a body that has been incorporated by a Statute of the Canadian Parliament,concerning itself with the mutual relations of commercial airlines. And ifyou take the trouble to read the small print on your ticket, you will ndthat by contract with the carrier, you have voluntarily subjected yourself toa major international treaty, the famous (or perhaps infamous) WarsawConvention of 1929, now to be replaced by the Montreal Convention of1999. True, you will not come into direct contact with most of these, exceptHeaven forbid in the event of an accident, in which case the Warsaw/ MontrealConvention will become of direct relevance and may involve difcult litiga-tion in national courts. This illustrates how globalization is affecting the law,like much else.

I could go on like this indenitely, but I want to mention one very specicsituation that of a person who runs foul of the law when in a foreign coun-try. Criminals, like all human beings, have rights under international law,and here I am not speaking of that broad area usually known as human rightslaw, or about the difculties involved in extradition. It is not always knownby attorneys dealing with a case that a criminal abroad has very specic rightsunder international law to consular protection and how to obtain it. Thishas been the subject of three major cases recently in the International Courtof Justice, and an earlier case in the regional Latin American Human Rights organs. The International Court has been quite specic in explaininghow these rights, set out in an international treaty, are to be applied on the level of an individual criminal case. When I read the pleadings in thosecases I have been struck by the fact that frequently the accused person was


represented by a court-appointed attorney, who in many of these cases did notknow of these treaty rights given to the person he was supposed to representin the judicial proceedings. In some of those cases the prosecution team wasequally unaware of this. As a result those treaty rights were not invoked whenthey should have been. That was to lead to a series of international disputesdiscussed at the highest level in one of these cases even at head of state level before being sent to the International Court for a binding decision andfor general clarication of the legal position in this type of case.

That is one example. Now let us look somewhere else.I have followed fairly closely the work of the International Criminal Tribunal

for the Former Yugoslavia. Some senior members of the Dutch Bar haveappeared in one or two of the important cases that have come before thatTribunal. I am not going to talk about its substantive work. That is a mat-ter for experts in international criminal law. What has struck me about thecases that have come before that Tribunal is how ordinary people, with ordi-nary jobs, suddenly found themselves, in circumstances over which they hadno control, in a position in which they could perform horrible acts of vio-lence and misconduct on other human beings. Those actions were so seri-ous that the international community, represented through the SecurityCouncil, could not let them go unrequited. At considerable expense it setup an ad hoc international criminal tribunal to which these people wouldhave to answer for their deeds. We have seen similar happenings in otherparts of the world. There too, except for the terrible genocide in Rwandawhere also the Security Council established a special international criminal tri-bunal, novel but appropriate arrangements have been made for criminal pro-ceedings to be brought in specially created criminal jurisdictions involvinga carefully controlled intermixture of national and international elements totry persons charged with responsibility for criminal acts, regardless of theirofcial position in the organization of the State or other entity to which theybelonged the special court in Sierra Leone for example. Now we have thepermanent International Criminal Court, also with its seat here in The Hague.Whatever criticisms may be made at this or that provision of the RomeStatute and with respect I for one think that it is open to serious criti-cism the fact remains that this Court is in existence and is working andalready has had cases referred to its institutions. One of its special featuresis the principle of complementarity, that the national courts come rst. Thatmeans that any attorney who might be faced with a possible internationalcriminal case must be alert to this if the client is to receive proper legal advice.So must the national judges and the national prosecution.

All this has far reaching implications. It means that in one way or anotherany person whether a regular member of an armed force, or a conscript,or a member of an irregular armed force, or in any other capacity whoperforms acts that can be considered prima facie as violations of what is now frequently called international humanitarian law, mainly the specic


international crimes enumerated in the Rome Statute and its related docu-ments, can be charged with criminal responsibility under international law.From this, it would appear that any attorney chosen by that person will befaced with difcult problems of international law. The least that can beexpected of a practising attorney in that sort of position is that the interna-tional law aspects of the case are properly identied, and a competent inter-national lawyer is brought into the case in a proper professional way.

However, one need not go as far as that. Perusal of the last twenty orthirty volumes of the International Law Reports will show an extraordinarynumber of miscellaneous cases in which important and less important issuesof international law arose. Two cases involving the criminal law of a coun-try, one of Belgium and one of France, have come before the InternationalCourt of Justice. This is different from the three capital punishment casesinvolving the criminal justice system of the United States of America, wherealready the court of one of the states concerned has adapted its decision towhat the ICJ has formulated.5 The International Court wisely refuses to actas a court of criminal appeal. However, I do have an impression that it mightin some way see itself as a kind of court of cassation and return the case tothe national authorities for them to deal with by means of the own choice,in light of the Courts statement of the legal position. The new law of thesea gives ship-owners and cargo-owners rights against a State other than theag State, a matter of particular importance to the shing community, andthe International Tribunal for the Law of the Sea has been established espe-cially to enable the individuals concerned to vindicate their rights in anappropriate international court. Here the French Court in the Island ofReunion, far away in the Pacic, has set an excellent example by adjustingits decisions to the rulings of ITLOS. The internal courts of every countrycan be faced in routine disputes with questions of diplomatic or consularimmunity or what is new, the immunity of international organizations andtheir staff, for instance in connection with the lease of a building for anembassy or for the residence of the diplomatic staff, or in connection withsome forms of taxation. France has had cases of whether the pensions ofretired international civil servants (including, I might add, one former Registrarof the International Court of Justice) who have chosen to spend their declin-ing years in France, are subject to any form of taxation. One of these caseswas decided in a competent French court,6 while others went to an interna-tional arbitration in a form of class action.7 In New York, issues of parkingproblems have become so serious that a suggestion has been oated that the


5 New York Times (electronic edition), 13 May 2004.6 Case of Aquarone, summarized in 92 AJIL 764 (1998).7 Summarized in 98 AJIL 163 (2004).

International Court should be asked for an advisory opinion on the consis-tency of the Citys municipal parking laws with international law.8 From whatI can see, I would not be surprised if one day a similar problem could arisehere (if it has not already) and in other headquarters cities. One simply neverknows when a given situation in which an individual may nd himself orherself will involve questions of international law.

All this leads to only one conclusion. Any individual, and any attorney,can suddenly nd himself or herself confronted with international law andinternational justice, whether that is known or not. This raises a very fun-damental question: Is the legal profession as a whole, in any country of theworld, qualied today to deal competently with this type of question? Is theaverage attorney qualied even to identify the existence of an internationallaw problem in the circumstances in which professional advice and action isrequired? In my experience this goes not only for public international lawbut just as much for private international law, important aspects of whichare regulated by international treaty today under the auspices of the Conferenceon Private International Law, also with its seat here in The Hague. Aftermuch thinking about the matter and reading through the International LawReports and the reports of other courts and tribunals, I have to say that Ihave come to a negative conclusion. On the whole, the legal profession, invirtually every country of the world, is not properly equipped to deal withinternational law problems with which an individual client may be con-fronted, and the public is entitled to protection against that. I do not thinkthat an attorney can be fully qualied if he or she is unable to identify aninternational law element in a clients problem. I do not expect every attor-ney to be able to solve that international law problem. That would certainlybe asking too much. But the least that can be expected is that the attorneywill identify that the international law problem is part of the complex to beresolved, be it a civil case or a criminal case.

One of the early resolutions of the United Nations General Assembly, res-olution 176 (II) of 21 November 1947, invited member States to encour-age the teaching of international law. This has not had much effect as therewas no real follow up until 1993 when the General Assembly started to con-cern itself with assistance in the teaching, study and dissemination and widerappreciation of international law. This item is now regularly on the agendaof the Sixth (Legal) Committee of the General Assembly. At the same timethe two premier organizations devoted to international law, the Institute ofInternational Law and the International Law Association, have concernedthemselves with this. In 1979 the Institute of International Law, with the


8 Report of the Committee on Relations with the Host Country, GAOR, Fifty-eighth SessionSup. No. 26 (A/58/26) para. 43 (2003).

Czech professor Zourek assisted by Professor Pierre Lalive of Geneva as rap-porteurs, at its Athens Session adopted its rst major resolution on the teach-ing of international law.9 It took the matter up again in the 1990s under theguidance of our friend and a main inspiration for the inauguration of theHague Prize, Professor Ronald Macdonald of Halifax, Nova Scotia. This ledto the Strasbourg resolution of 1997, to which I will return.10 For its partthe International Law Association has not yet completed its study of thetopic. A preliminary report was presented to its New Delhi Session in 2002,11and I believe that a further report is to be submitted to the AssociationsBerlin Session this coming August. It is probably too late for the competentinternational commission to deal adequately with this suggestion of mine,but I do express the hope that the Commission will nd an opportunity tobring this suggestion to public notice for further detailed examination andthat the ILA will give proper consideration to the ideas that I am express-ing here.

The resolutions of the General Assembly have to be read in the contextof the Charter and they are based on an assumption that wider knowledgeof international law would come to constitute a contribution to the main-tenance of international peace and security. To some extent the Athens res-olution of the Institute of International Law follows along the same track.At the same time it commenced the process of broadening the purposes forwhich the teaching of international law is important, and I suppose bring-ing it down from that lofty pedestal and drawing it closer to the realities ofhuman life. The second recital of the resolution adopted at Athens reads:

Mindful of the expanding internationalization of social relationships and the growingimpact of international factors on the most diverse aspects of the lies of individuals,peoples and States[.]

The Strasbourg resolution of 1997 carries this further:

Emphasizing that international law increasingly affects the content of municipal law andthat knowledge of international law is necessary to discharge a wide range of profes-sional responsibilities at the national level and the responsibilities of individuals in anincreasingly cohesive international society:

Reafrming that, in the conditions prevailing in the present world, legal education isincomplete if it does not cover the basic elements of public and private internationallaw[.]


9 58II Annuaire de lInstitut de Droit international 204 (1979).10 67I ibid., 126, 67II ibid., 83, 466 (1997).11 ILA, Report of the Seventieth Conference 687 (2002).

Both those resolutions, and so far the work of the competent committee ofthe International Law Association, seem to be addressed primarily to theteaching of law at university level. I think that the matter should be takenfurther. The broad aim should be shifted from academic law to practical andapplied law, from the idea of producing specialists in international law tothat of ensuring that every practising attorney knows enough about interna-tional law so as to be able to identify it when a problem crops up, and han-dle it accordingly. In brief, I think that the time is coming, if it has notalready arrived, when both public international law and private internationallaw should be compulsory subjects for entry into the profession, for mem-bership in every bar. Both public and private international law are as muchpart of daily bread-and-butter law as the law of contracts, the law of prop-erty, of civil wrongs, of criminal law, of commercial law, of family law andany form of public law. The members of the public who for whatever rea-son require the services of a qualied attorney are entitled and should beable to rely on the attorneys competence to deal with the matter if it involvesa question of international law.

I am not thinking of anything elaborate. I am not thinking that qualica-tion for the national or local bar is in itself qualication as an internationallawyer, any more than the bare professional qualication is in itself an indi-cation of specialization in any particular branch of the law. For qualicationas a member of the bar, the candidate should have some knowledge of theinternational law of treaties, alongside knowledge (one would hope) of thenational law of treaties probably acquired as part of acquaintance with con-stitutional or public law more generally. Here, the Vienna Convention onthe Law of Treaties of 1969 provides a useful general guide. That Conventioncan be regarded as a template for anything to do with the international lawof treaties. Here I must utter a word of caution. It is often overlooked thatthe Vienna Convention is only concerned with the international law of treaties.It leaves untouched the internal law of every country. The International LawCommission made this perfectly clear in paragraph (15) of its commentaryon Article 2 of its draft articles on the law of treaties of 1966, and nothinghas occurred since to change this.12 The practising attorney does not requirea detailed knowledge of the international law of treaties. But some knowl-edge of its basic elements, and in particular of the problems of interpretationof a treaty (alongside national rules for the interpretation of a national lawgiving effect to a treaty) is, I believe, today essential. Every practising lawyershould be required to demonstrate a basic knowledge of the internationaltreaty, where to nd it in a national or an international collection of treaties,


12 Report of the International Law Commission on the work of its eighteenth session,(A/6309/Rev.1), Part II, Yearbook of the International Law Commission 1966, vol. II.

how to interpret and apply an international treaty; a basic knowledge of theinternational system of courts and arbitration insofar as an individual per-son may require recourse to it, including, for instance, the ICSID system ifthe attorney is going to become involved in international investments, thehuman rights systems which can arise for any attorney at any time and atany place, and basic elements of international criminal law and jurisdiction.I was very impressed when I read in a recent publication on human rightsof the Council of Europe that in the four months of November, December2003, January and February 2004, the European Court of Human Rightsdealt with no less than 7,315 cases (of which, however, 6,255 were declaredinadmissible and a further 177 applications were struck off the list).13 Thisreally is a formidable number of cases in a part of the world which is reallythe parent of the conception of individual human rights against the all-powerful State, where national systems of administration and of criminal jus-tice contain many safeguards to ensure the protection and the application ofthe rights of the individual.

It also shows how all attorneys should be able to read properly any inter-national text, both a treaty or a resolution, and an international judgment.It is not enough to pick out nice turns of phrase without some knowledgeof their proper place not only in the document in question, but in interna-tional law as a whole. Here I should add that the attorney should be alertto the language problem in reading any international text, especially a judg-ment and a treaty written in more than one language. I am not asking thatthe attorney should be an accomplished linguist, although a generation agomost competent international lawyers were at home in two or three lan-guages, especially those of neighbouring States and above all French. Sadly,this is not so common today.

I also think that every qualied attorney should have a basic knowledgeof where to nd international law, the main textbooks in the language of theBar to which he or she aspires, the principal websites and how to use themand the main collections of international judgments and arbitral awards. Ido not expect the average attorney to be concerned with the details of thelaw and the procedure. That is for the specialist in international law, in thesame way that one goes to a specialist for any intricate question of any branchof the national law. I also think that a practising attorney should have gen-eral familiarity with the United Nations system as a whole, and if he or sheintends to work in a specic sphere of human activity, knowledge of theinternational organizations operating in that sphere should be included. WhenI was at Amsterdam University giving an advanced course in international


13 Council of Europe, Human Rights Information Bulletin No. 61, November 2003February2004 p. 2.

law, I was struck by the aspirations of some of the students (all post-gradu-ate students). Some wanted to work in their national civil service, some inan international civil service, but two or three in competent and powerfulidealistic non-governmental organizations, especially Greenpeace. This cameas a surprise to me, I must admit.

In short, I am making a plea that a broad swath of international law should be required not only in any university legal education, which is themain thrust of the different resolutions that I have mentioned, but in par-allel to that should also be required as part of the legal training in appliedlaw of every qualied attorney. The general public, which may need to haverecourse to an attorney for whatever reason, is entitled to reasonable protec-tion should the question also be one in which international law has some-thing to say. That would be the professions response to the globalization ofthe law.

Here is the challenge that I am throwing out. If the City of The Hagueis the legal capital of the world, with its ne library and the encouragementof the Hague Prize in International Law, I would like to see it throw itsweight behind any move to make this kind of general knowledge and appre-ciation of international law a requirement for admission to the national bar.I go further. As I mentioned, the international committee of the InternationalLaw Association on the Teaching of International Law has not yet completedits work and I would like to suggest that the Dutch representatives look intothis suggestion of mine and bring it up. I would like to urge the distin-guished and learned members of the Nominating Committee of the HaguePrize to think about my suggestion, and no doubt improve on it, and tryand push it forward in their own circles. I would like to urge the Board ofthe Foundation, with its eminent Dutch personalities, to see if they canundertake at least two propositions. One is to see if there is any chance ofthe Dutch legal profession assuming a leading role, by insisting on someinternational law, public and private, as part of the professional qualicationfor all members of the Dutch Bar (if that is not the case already). The sec-ond is to urge the Dutch authorities to pursue this idea in different interna-tional organizations, governmental and non-governmental, concerned in anyway with education, and especially legal education, that they should thinkalong these lines. I have in mind particularly UNESCO and the UN, andthe International Bar Association. The annual discussion in the legal com-mittee of the General Assembly on the United Nations Programme of Assistancein the Teaching, Study, Dissemination and Wider Appreciation of InternationalLaw provides an excellent forum at least for trying this idea out, if not lead-ing to a formal resolution of the General Assembly calling for what I amsuggesting. The previous Legal Adviser of the United Nations introduced thepractice of convening a meeting of all legal advisers of Foreign Ministriesduring the session of the General Assembly, and I hope that his newlyappointed successor will continue this practice and give it a more positive


content. I believe that the Legal Adviser of the Dutch Ministry for ForeignAffairs usually attends this. I wonder if he could be prevailed upon to pur-sue this idea of mine with his colleagues.

There will, of course, be resistance and strong opposition to this sug-gestion. I detect in the world of today swelling tides of isolationism and nation-alism not conducive to any proposal to spread concepts of enlightenedinternationalism, of international social solidarity. Reasons of State are occu-pying a superior place in national decision making, and international politi-cal organs are over zealous in making one-sided pronouncements about whataction is and what action is not lawful, although the Charter only empow-ers the International Court to make such pronouncements. This is bringinginternational law into disrepute. That must be resisted. If as I am convincedinternational law must become a compulsory subject for membership in everynational Bar, sufcient pressures must be built up and maintained to keep itso, and to ensure that a good faith application of international law becomespart of decision making of States and of international organizations.

Mr Mayor and distinguished friends,In making this suggestion, in daring to put this challenge forward today,

I am not allowing any idealism to blind me to the realities which surroundus all. I am not making any wild claims that international law is a cure forthe worlds ills and misfortunes. While I believe in the completeness of inter-national law, in the sense that the so-called non liquet is not an acceptableanswer for any international lawyer to give, I am very aware of the lawslimitations. It is relatively static. Always a matter of international compro-mise, all its black letter texts, often in several languages, possess an in-builtambiguity which only practice or an authoritative international judicial opin-ion can resolve. A recent judgment of the International Court devoted noless than seven paragraphs to a discussion of what you might think is a sim-ple English expression, without delay, and its equivalent in ve other lan-guages. That very question could, and perhaps should, have been raised verymuch earlier in the domestic legal proceedings that preceded the interna-tional litigation.

I must repeat that I am not here making any extravagant claims for inter-national law as the cure for all the worlds ills, and sometimes the lawyer,like Admiral Nelson is reputed to have done, must put his telescope to hisblind eye. But before doing that the lawyer, like the admiral, must knowwhat he or she is doing and be able to justify that in a convincing way. Mysuggestion is motivated exclusively by a series of practical considerations relat-ing, above all, to human welfare and what the average man or woman isentitled to expect when approaching a duly qualied attorney for legal advice.In my line of thought, an attorney who has not reached the required stan-dard of the Bar is not, today, duly qualied, considering how modern inter-national law penetrates into every nook and cranny of everyday life, as I haveendeavoured to show.


Mr Mayor and distinguished members of the Board and of the Nomin-ating Committee of the Hague Prize Fund, it is time for me to concludethese remarks. I would like to nish with a sentence from the Talmud, whichteaches us to be not like servants who work for the sake of receiving a reward,but like those who work not for the sake of receiving a reward.14 That hasalways been my attitude when serving the law, studying, and writing aboutthe law. Before I sit down I would simply to express once again my very sin-cere gratitude for the great honour you have bestowed on me, and as thisweek draws to its end may I wish you all here a very pleasant week end.

Thank you.


14 Pirkei Avoth, The Ethics of the Fathers I:3 (my translation). See H. Danby, The Mishnah446 (Oxford: Clarendon Press, 1933).

INTERNATIONAL LITIGATION AND COURTS

2THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE

Like all collegiate organs, the International Court of Justice is headed by aPresident. In current practice, there are two patterns for the presidency ofcollegiate international organs. In most large organs composed of States,such as the General Assembly of the United Nations or a major plenipoten-tiary conference, the President is normally a member of a delegation fromwhich, however, the Rules of Procedure will exclude him/her. In small bod-ies, including for this purpose the Security Council (composed of the rep-resentatives of States) or the International Law Commission (composed ofindividuals), the presiding ofcer is chosen according to the stipulations ofthe constituent instrument (including the Rules of Procedure), but remainsa full member of his delegation or a full participant in the body to whichhe/she belongs, retaining the right to vote. In those circumstances, it is cus-tomary for the presiding ofcer to speak last: voting is usually, in this typeof organ (but not in the International Court), conducted instantaneously,and today frequently through electronic means. The President of the Inter-national Court belongs to this second category.

Article 21 of the Statute requires the Court to elect its President and Vice-President for three years; they may be re-elected. A contemporary interpre-tation for this three-year term explains:

It was felt that, given the immense prestige of the position of president of the court,the power which he might exercise and the inuence which he might bring to bearupon his colleagues, it was inadvisable to elect him for the full term of his ofce, thatis, nine years. One year, on the contrary, seemed too short, inasmuch as the presidentis to reside at the seat of the court. A period of three years was adopted as a compro-mise, as an inducement to merit continuance in ofce at the expiration of his term,and of a further term, inasmuch as it is expressly provided that the president and vice-president may be reelected.1

1 J.B. Scott, The Project of a Permanent Court of International Justice and Resolutions of theAdvisory Committee of Jurists: Report and Commentary 78 (1920). To be President had beena male prerogative until the year 2006, when the Court elected as President Judge DameRosalyn Higgins, who was the rst woman to be elected a Member of the Court. Over theyears the practice has developed of rotating the presidency among the principal legal systemsrepresented on the Court.

Since 1945, this three-year term of ofce of the President and Vice-Presidentcoincides with the recurrent election of one third of the Members of theCourt every third year.

Article 22 requires the President (and the Registrar) to reside at the seat ofthe Court (The Hague). The President presides at all meetings of the Court,directs its work and supervises its administration (Rules of Court, Article 12).By Article 13, paragraph 3, of the Rules, he has to take the measures neces-sary to ensure the continuous exercise of the functions of the presidency atthe seat of the Court. In case of his absence he may, so far as is compatiblewith the Statute and Rules, arrange for the Vice-President or failing him, thenext senior judge, to exercise these functions.2 Article 20 of the Rules giveshim the power in case of urgency to convene the Court at any time.

By Article 3, paragraph 5, of the Rules, while holding their ofces thePresident and Vice-President take precedence before all other Members ofthe Court. When that term of ofce ends, each resumes his place among theMembers of the Court according to the general rule of precedence.3 If thePresident decides to resign from the Court, his decision is to be communi-cated to the Court (Article 5, paragraph 2).4 Article 6 deals with the pow-ers of the President to apply Article 18 of the Statute, concerning the dismissalof a Member of the Court. The Presidents powers and duties in relation tothe Registrar and staff are set out in Articles 22 to 29 of the Rules.

Apart from the standard literature on the Court, there is remarkably lit-tle writing devoted exclusively to the status and role of the President.5 A briefdiscussion on the powers of the President when the Court is not sitting took

18 INTERNATIONAL LITIGATION AND COURTS

2 As an illustration, note the order of Vice-President Oda xing new time limits in the caseconcerning the Application of the Convention on the Prevention and Punishment of the Crimeof Genocide, ICJ Rep. 1993 470.

3 Under the Rules of 1926 (Art. 2), the retiring President, whatever his seniority under thegeneral rules, took his seat to the right of the President and the retiring Vice-President to hisleft. This was abolished in Art. 2 of the Rules of 1931.

4 Art. 13 (4) deals with the resignation of the presidency. See S. Torres-Bernrdez, Resigna-tions at the World Court, International Law at a Time of Perplexity 953 (Y. Dinstein and M. Tabory, eds., 1989).

5 On the President of the Permanent Court of International Justice, see R.A. Lienau, Stellungund Befugnisse des Prsidenten des Stndigen Internationalen Gerichtshofes (1938). For a com-parison between the President of that Court and the President of the Council of the Leagueof Nations, see D. Avramoff, Le Prsident du Conseil de la Socit des Nations 110 (1932). Onthe President of the present International Court of Justice, see C. Sirat, Le Prsident de laCour internationale de Justice, 62 Revue gnrale de Droit international Public 193 (1958);P.C. Spender, The Ofce of President of the International Court of Justice, 1 The AustralianYear Book of International Law 9 (1965); M. Zafrulla Khan, The Appointment of Arbitratorsby the President of the International Court of Justice, XIV Comunicazioni e Studi: Il ProcessoInternazionale, Studi in onore de Gaetano Morelli 1021 (1975). Bibliographical informationkindly supplied by the Registry of the Court.

place early during the Preliminary Session of the Permanent Court in 1922.That was before there had been any experience, and before the Court hadadopted any of the Rules of Court. The Court decided to treat each partic-ular case as it arose during the drafting of the Rules. It also adopted a deci-sion of principle to the effect that it could confer on the President the rightto take interlocutory decisions.6

The Permanent Court established the basic rule that it elects its Presidentby secret ballot. That, the normal rule of international organizations unlessthe President is chosen by acclamation, now appears in Article 11, paragraph2, of the Rules. A majority of the Members of the Court composing it atthe time, that is 50 per cent plus one, or eight votes if the full complementof Members exists then, is required for the election of the President, a pos-itive requirement introduced in 1978.7 The previous Rules required a major-ity of the Members of the Court present.8 The reasons for this change, whichenhances the general standing of a President elected under these conditions,have not been made public. The election should take place on or as near aspossible after 6 February of each three-year cadence of the Court followingthe triennial election of one third of the Members of the Court (Rules, Article10). The term of ofce begins on 6 February or on the date of the electionif later, and ends when the new President is elected. If a vacancy in the pres-idency occurs before the expiration of the current term, the Court is to decidewhether to ll it for the remainder of the term (Rules, Article 14).9

2. THE PRESIDENT OF THE INTERNATIONAL COURT OF JUSTICE 19

6 PCIJ, Ser. D No. 2, 28.7 The Advisory Committee of Jurists of 1920 rejected a proposal that the President should be

elected by absolute majority. Procs-Verbaux of the Proceedings of the Committee 459 (1920).The Secretariat of the League of Nations advised the Permanent Court that it was free toadopt any method for the election of the President and Vice-President, and thought that elec-tion by simple majority would seem to be in conformity with the intentions of the framersof the original Statute. PCIJ, Ser. D No. 2, 242 (1922). In addition, see article 3 of the draftrules of Court prepared by the Secretariat. Ibid. 253. The Permanent Court in its PreliminarySession, after a brief discussion at the 6th meeting, decided that the election should takeplace by secret ballot and by an absolute majority of the judges present. Rules of1922/1936/1946/1972, Art. 9. The change to the present wording was made in Art. 11 ofthe Rules of 1978. See also Sh. Rosenne, Procedure in the International Court 35 (1983).

8 The only other cases requiring an absolute majority of the Members of the Court are Art.18 of the Rules, on the election of Chambers under Arts. 26 or 29 of the Statute, and theelection of the Registrar and Deputy Registrar under Arts. 22 and 23 of the Rules. By Art.18 of the Statute, the unanimous opinion of the other Members of the Court is required forthe dismissal of a Member on the ground that he has ceased to full the required conditions(there has been no instance of this). By Art. 29 the Registrar and Deputy Registrar can beremoved from ofce on the opinion of two thirds of the Members of the Court.

9 On this, the terms of ofce as President and as a Member of the Court of Sir HumphreyWaldock were due to come to an end on 6 February 1982. After Sir Humphreys death on 15 August 1981, the Security Council considered that as the vacancy would be lled throughthe regular election to be held in the General Assembly of 1981, no purpose would be served

* * *The President operates in two distinct capacities. He is President of the Court,namely the fteen elected Members of that body designated in the Charteras the principal judicial organ of the United Nations. He is also Presidentof the Bench whenever he sits for a particular case, unless disqualied to actas President, or to sit as a judge, under specic provisions of the Statute andRules. In those circumstances Article 13, paragraph 2, of the Rules providesthat when he is precluded by a provision of the Statute or of the Rules eitherfrom sitting or from presiding in a particular case, he shall continue to exer-cise the functions of the presidency for all purposes save in respect of thatcase.10

However, the Statute and the Rules do not clearly distinguish betweenthese two functions. In two instances a single formal rule is applicable toboth capacities. By Article 13 of the Rules, if the President is unable to exer-cise the functions of the Presidency, the Vice-President or failing him thesenior judge shall exercise them. By Article 55 of the Statute, all questionsshall be decided by a majority of the judges present, and in case of an equal-ity of votes, the President shall have a casting vote (voix prpondrante).

As President of the Court, he has general powers and responsibilities in directing the work of the Court as a whole. The President and Vice-President are ex ofcio members of the Courts Budgetary and AdministrativeCommittee. Alongside the administrative duties, which can be demanding,he also has burdensome responsibilities in his representative capacity, bothtoward the different international organizations and above all the GeneralAssembly, and in relation to the Host State and generally. He is the ofcialhost of the Court when Dutch and foreign dignitaries visit it. In the orderof diplomatic precedence at The Hague, he takes precedence over the Deanof the Diplomatic Corps. In his absence, the Vice-President takes his placebefore the Dean. Although most correspondence with the Court is conductedthrough the Registrar, following Article 26, paragraph 1(a), of the Rules, inexceptional instances the President himself will conduct the correspondence.

Under the Instructions for the Registry the nancial administration of theCourt is the primary responsibility of the Registrar. He is accountable in therst instance to the Court in these matters, but if the Court is not sitting,


by invoking the procedures for lling the occasional vacancy. Doc. A/36/451S/14645, GeneralAssembly, Ofcial Records, 36th Session, Annexes, agenda item 15, p. 4. In addition, see[1981] United Nations Juridical Yearbook 145. The Vice-President thereupon became ActingPresident, and no action was taken by the Court to ll the ofce of President. [19811982]ICJ Yearbook 8.

10 On the distinction between the Court and the Bench, see the letter of 18 March 1983 fromthe Registrar to the agent of Canada. Gulf of Maine case, VII Pleadings 297 (doc. 23).

the supervisory functions are delegated to the President.11 Under the sameInstructions, the President has to approve the agenda of administrative ques-tions for the Court (Article 6). Every member of the Staff must make a dec-laration before the President under Article 25 of the Rules of Court andArticle 40 of the Instructions for the Registry. In the current Staff Regula-tions (Annex VI), provision is made for an appeal by a staff member from an administrative decision of the Registrar the Judge for staff appeals withinspecied time limits. The ling of such an appeal does not have the effect of suspending action on the administrative decision: unless the President, in consultation with the judge for staff appeals, directs otherwise.12 By Article23, paragraph 3, of the Rules of Court of 1946, the Instructions for theRegistry were to be drawn up by the Registrar and approved by the Pres-ident. The Rules of 1978 (Article 28), however, now require the approval ofthe Court. The reasons for this curtailment of the powers of the Presidentin what is a purely administrative matter have not been made public.

Although the Registrar issues the press communiqus, where necessary hewill consult with the President before issue. Similarly, the naming of a casecan be a delicate matter. Whenever the parties have not themselves suggestedthe name of the case, consultation with the President will be needed.13

Previous commentators have noted the possible discrepancy between theEnglish and French versions of the Statute regarding the Presidents casting


11 Instructions for the Registry, Arts. 26 to 38. Yearbook of the International Court of Justice194647 82; Sh. Rosenne, Documents on the International Court of Justice 453 (1991). Hereit may be noted that the meaning of the expression when the Court is not sitting haschanged over the years. In 1922 it was envisaged that the Court would meet in judicial ses-sions, of which there could be more than one in a year. This was changed in the Rules of1936, when, in Art. 25, a system of judicial vacations was introduced in lieu of sessions. Thishas been retained since. The whole system was reorganized in Art. 20 of the current Rules.Essential elements of these Rules are that all Members of the Court and judges ad hoc areexpected to attend all meetings of the Court in cases in which they are participating, thatthe system of judicial vacations and period and conditions of leave for Members of the Courtare xed by the Court having regard . . . to the state of its General List and to the require-ment of its current work, and that in cases of urgency the President may convene the Courtat any time. With the Courts increased work-load, the Court is today virtually in perma-nent session subject to normal vacations. The ease of modern communications also alters theconception of session.

12 For the 1979 Staff Regulations, see ICJ Yearbook 19781979 127; and for Annex VI, nototherwise published, Sh. Rosenne, Procedure in the International Court 68 (1983).

13 For a discussion of a communiqu issued on the authority of the President alone, see theseparate opinion of Judge Oda and the Dissenting Opinion of Judge Schwebel in the Militaryand Paramilitary Activities in and against Nicaragua (Declaration of Intervention) case, ICJRep. 1984 215, 221, 232, respectively. For an illustration of the naming of a case, comparethe original name Case concerning the Guardianship of an Infant (Order of the President, ibid.1957 102) with the name given to the case by the Court after pleading, Case concerning theApplication of the Convention of 1902 Governing the Guardianship of Infants, ibid. 1958 55.

vote. They have also pointed out that the English conception is the one fol-lowed by the Court. This means that if there is an equality of votes, thePresident casts a second vote. As far as concerns general administrative mat-ters, there is no real need for a casting vote: the motion put simply has notreceived a majority and is therefore not adopted or is rejected. Here the cast-ing vote may be a complicating factor. The practice of the Permanent Courtwas mixed. On occasion the President left matters as they were, the proposalnot being adopted. In other circumstances he voted a second time, some-times to maintain the status quo and sometimes to change it. There was noclear-cut practice that the Presidents second vote had to be the same as hisrst vote.14 Nothing is known of the practice of the present Court in admin-istrative matters.

In contentious judicial matters, a casting vote is essential to create adecision.

* * *The more important functions of the President are those that he exercises as a member of the Bench (the expression here including also the Acting President under conditions described later). If the President is unable to pre-side, the Vice-President assumes this position. If neither can preside, the sen-ior judge present shall assume this function. That person is designated ActingPresident. By Article 45 of the Statute the hearing shall be under the controlof the President. Minutes of the hearings are to be signed by the Presidentand the Registrar (Article 47). The President and the Registrar sign everyjudgment, advisory opinion and order (Article 58). This is for purposes ofauthentication, and commits neither of the signatories to the contents. Thatis all! In particular, the Statute does not mention the delegation of the Courtspowers to the President. As mentioned, the Permanent Court very earlyassumed this power, and no objection has ever been taken to it.

As for the Rules of Court, there have been many changes since the initialRules of 1922. This article will concentrate on the current Rules, those of1978 as amended since.

By Article 9, paragraph 2, if the Court decides to appoint assessors to sitwith it, the President has to take steps to obtain all the information relevantto their choice. There is as yet no practice on this.

Articles 32 to 37 deal with the composition of the Court for a particularcase (the Bench). They contain several provisions regarding the presidencyof a Bench. After Article 12, noted above, the primary norm is in Article 32,


14 For information regarding the casting vote of the President in the Permanent Court, see PCIJ,Ser. E, No. 3, 216 (1927), No. 6, 299 (1930), No. 7, 299 (1931), No. 9 (1933), 174, No.10 (1934), 163, No. 11 (1935), 150, No. 12 (1936) 197, No. 13 (1937), 153, No. 14 (1938),159, No. 15 (1939), 198. No similar information has been published by the present Court.

paragraph 1. If the President of the Court is a national of one of the partiesin a case, he shall not exercise the functions of the presidency in respect ofthat case. The same rule applies to the Vice-President or the senior judgewhen called upon to act as President. In 1992, President Sir Robert Jenningscorrectly extended this rule to the second of paired cases being partly heard in common under Article 47 of the Rules. Before the hearings wereopened in the provisional measures phase of the two cases concerning theInterpretation and Application of the 1971 Montreal Convention arising fromthe Aerial Incident at Lockerbie cases (Libya v United Kingdom; Libya vUnited States of America), Sir Robert decided that it would be inappropri-ate as well as inconvenient for all concerned if he were to preside, as in the-ory he supposed he might, in the case against the United States. In bothcases, therefore, the Vice-President acted as President.15 In addition, the othergeneral disqualications are applicable to the President who will recuse him-self if necessary.16

Article 31 requires the President to ascertain the views of the parties regarding questions of procedure. For this purpose he shall summon theagents to meet him (il convoque les agents) as soon as possible after theirappointment, and subsequently whenever necessary. The failure of an agent


15 ICJ Yearbook 19911992 198. The rule is applied strictly. Sir Robert was President in theCertain Phosphate Lands in Nauru (Preliminary Objections) case, notwithstanding that oneof the preliminary objections was that the United Kingdom ought to have been named as arespondent. No objection appears to have been taken to this. ICJ Rep. 1992 240. The pres-ent Court has encountered paired cases in two forms. One is where a single applicant bringsidentical or interlinked cases against two respondents. These include: Treatment in Hungaryof Aircraft and Crew of United States of America cases (U.S. v Hungary; U.S. v USSR), ibid.1954 99, 103; the Antarctica cases (United Kingdom v Argentina; United Kingdom v Chile),ibid. 1956 12, 15; Border and Transborder Armed Actions (Nicaragua v Costa Rica; Nicaraguav Honduras), ibid. 1987 182, ibid. 1998 69; Questions of Interpretation and Application of the1971 Montreal Convention arising out of the Aerial Incident at Lockerbie (Libya v UnitedKingdom; Libya v United States of America), ibid. 1992 4. The second is where two (ormore) applicants bring virtually identical cases against a single respondent. These include theAerial Incident of 27 July 1955 cases (Israel v Bulgaria; United Kingdom v Bulgaria; UnitedStates of America v Bulgaria), ibid. 1959 276, ibid. 1960 146; Fisheries Jurisdiction cases(Federal Republic of Germany v Iceland; United Kingdom v Iceland) ibid. 1972 12, 30, ibid.1973 3, 49 and 302, 313, ibid. 1974 3, 175; Nuclear Tests cases (Australia v France; NewZealand v France) ibid. 1974 253, 457. These have to be distinguished from joined casesleading to a single decision. Art. 47 introduced into the Rules in 1978 deals with both typesof case. The paired cases can pose delicate problems for the Court and for its President,especially as regards the composition of the Bench.

16 Thus, President Sir Zafrulla Khan recused himself when the Court considered an objectionby South Africa to his presence on the Bench in connection with the advisory opinion onLegal Consequences of the Continued Presence of South Africa in Namibia (South West Africa)Notwithstanding Security Council Resolution 276 (1970), Order No. 1, ICJ Rep. 1971 3. Afterwards he resumed his functions as President, ibid. 6.

to appear before the President when so summoned may bring into operationArticle 53 of the Statute, concerning the non-appearance of a party. This isnot an invariable rule, and the matter depends on all the circumstances.17

By Article 32, paragraph 2, the Member of the Court who is presiding ina case on the date on which the Court convenes for the oral proceedingsshall continue to preside until completion of the current phase of the case,despite the election meanwhile of a new President or Vice-President. Thatis one of the provisions of the Rules to perpetuate the notion that, for thepurposes of the composition of the Court, each phase of a case is separatefrom earlier or later phases and may therefore be heard by a different Bench.This is a change from the practice of the Permanent Court, and is open tocriticism.18 Article 34 sets out how the President is to control the applica-tion of Articles 17 and 24 of the Statute. Those provisions address the inel-igibility of a judge to sit in a particular case. They are designed to avoidconicts of interest. Article 35 of the Rules deals with the judge ad hoc inapplication of Article 31 of the Statute. It gives the President powers con-cerning the time limits within which notications or observations by one orother party have to be made. This is a general power, not limited to whenthe Court is not sitting as are most of the delegated powers of the President.

Article 37 delegates to the President, when the Court is not sitting, thepower to x the time limit within which a party may choose a new judge ad hoc if this becomes necessary. By Article 44, when the Court is not sit-ting the President may exercise the powers of the Court to make ordersregarding the number and order of ling written pleadings, and their timelimits. The President sometimes exercises this power even when the Courtis sitting, for instance when it is deliberating on a case and the time-limitsto be xed are not controversial.19 The Presidents powers in this respect are,however, specically without prejudice to any subsequent decision of the


17 Cf. the Nottebohm case, ICJ Rep. 1952 10, ibid. 1953 8, 111. Effect will always be given toan agreement concerning procedure reached through the application of Art. 31. MaritimeDelimitation and Territorial Questions between Qatar and Bahrain case, ibid. 1991 50, 51.

18 In the Free Zones case, the Permanent Court decided in 1930 that if the case should comebefore it again, it should continue to deal with it in the same composition; and that theduties of President were also to continue to be exercised by the judge who had presided overthe Court during the previous phases, and whose term of ofce was to expire on 31 December1930. PCIJ, Ser. E, No. 8, 246 (1932). In the Corfu Channel case, the President in the pre-liminary objection phase (Guerrero), who was also President at the commencement of thehearings on the merits, continued as Acting President also in the compensation phase sev-eral months later, despite that his term of ofce as President came to an end before the mer-its phase was concluded. ICJ Rep. 1948 15, ibid. 1949 4, 244.

19 Thus the President made orders regarding time limits in the East Timor and the Oil Platformscases during the Courts deliberating on another case. ICJ Rep. 1993 32, 35.

Court. That reservation does not confer any right of appeal from these inter-locutory decisions of the President. In this respect the present Court, it isunderstood, follows the practice established by the Permanent Court in appli-cation of Article 48 of the Statute (concerning the general conduct of a case).The Permanent Court has reported as follows:

It was understood (February 18th, 1922) that the Courts right to make orders differ-ing from those already made by the President would not involve a right on the part ofthe Parties to appeal to the Court against the orders of the President.

During the revision of the Rules at the ordinary session in 1926, an amendment toRule 33 [of the Rules of 1922] providing that there was no right of appeal for theParties against a decisions of the President, was proposed. This amendment was notadopted, as it was held that it was unnecessary, because the President was simply exer-cising powers delegated to him by the Court, and consequently there could be no appealagainst his decisions.20

By Article 52, paragraph 1, the President may authorize the correction ofany slip or error in any document already led, if the other party does notconsent. By Article 53, paragraph 1, the President, if the Court is not sit-ting, may, after ascertaining the views of the parties, decide to make the writ-ten pleadings available to any State entitled to appear before the Court thathas asked for them something that could be important in cases of con-templated intervention. The decision to make the pleadings public, however,rests with the Court itself.

Article 54 empowers the President, if the Court is not sitting, to x thedate for the opening of the oral proceedings or their postponement. Thiswas once a matter of routine, since in principle cases were heard in the orderin which they became ready for hearing. The Rules of 1978 abolish that pro-vision, replacing it by Article 54. This substitutes for the formal criterionthe idea of special circumstances, including the urgency of a particular caseas a factor to decide the date of the hearing in a particular case. That placesincreased responsibility on the President.

Article 61, paragraph 3, gives every judge the right to put questions tothe parties and to ask for explanations. Before exercising that right, the judgeshould make his intention known to the President, who is made responsi-ble by Article 45 of the Statute for the control of the hearing. There is lit-tle known practice about this. In 1937 a member of the Court asked one of


20 PCIJ, Ser. E, No. 3, 210 (1927). For the discussions of this question in the Permanent Court,see PCIJ, Ser. D, No. 2, 66 (1922); No. 2, Add. 68 (1926). In the Rules of 1922, 1926 and1931 this reservation was worded subject to any subsequent decision of the Court. In 1936(Art. 37 (5)), the present wording was adopted and has remained unchanged.

the agents to produce two documents. No difculty was made regarding oneof those documents: as for the other, the agent objected on the ground thatit was condential. The Permanent Court continues:

It was held that, while the Court could always insist on the production of any docu-ment under Article 49 of the Statute, it was preferable in this case not to do so; accord-ingly, the President at the next hearing announced that he considered the productionin question unnecessary and asked the agent concerned not to produce it.21

In Article 63 the Court has delegated to the President, if it is not sitting,the power, at the request of a party or proprio motu, to take the necessarysteps for the examination of witnesses otherwise than before the Court itself.Although witnesses have been called in several cases before the present Courtor one of its Chambers, there has been no need yet to apply that provision.Article 65 lays down that the examination of witnesses and experts shall beunder the control of the President, who, together with the other judges, mayhimself also put questions to them. A curious incident involving this Ruleoccurred in the Elettronica Sicula S.p.A. (ELSI) case (before a Chamber). Thejudgment dryly records this in the following passage:

Mr X [listed as an adviser to the United States delegation] addressed the Court for theUnited States; since he had occasion to refer to matters of fact within his knowledgeas a lawyer acting for Raytheon Company, the President of the Chamber acceded to arequest by the Agent of Italy that Mr X be treated pro tanto as a witness. Mr X, whoinformed the Chamber that both Raytheon Company and Mr X himself waived anyrelevant privilege, was cross-examined. . . .22

Article 69, paragraph 3, deals with the application of Article 34, paragraph3, of the Statute, a new provision inserted in 1945. By that, whenever theconstruction of the constituent instrument of a public international organ-ization or of an international convention adopted thereunder is in questionin a case before the Court, the Registrar shall so notify the organization con-cerned and shall communicate to it copies of all the written proceedings.Article 69, paragraph 3, of the Rules provides that in the circumstances con-templated by Article 34, paragraph 3, of the Statute, the Registrar, on theinstructions of the Court, or of the President if the Court is not sitting, shallproceed as prescribed in that paragraph. Paragraph 3 continues:


21 PCIJ, Ser. E, No. 12, 151. The view of the present Court regarding Art. 49 of the Statuteis different. It will take note of a refusal of a party to produce a document. Corfu Channelcase, ICJ Rep. 1949 4, 32.

22 ICJ Rep. 1989 15, 19. The proceedings themselves were more dramatic. See C.3/CR.89/9,52 and CR.89/10, 8, 27 February 1989.

The Court, or the President if the Court is not sitting, may, as from the date on whichthe Registrar has communicated copies of the written proceedings and after consultingthe chief administrative ofcer of the public international organization concerned, xa time-limit within which the organization may submit to the Court its observationsin writing. . . .

This is a new power delegated to the President. It comes within the scopeof the principle that there is

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