Working Methods of the Court Dr
While the working methods of the International Court of Justice have been criticized in the past for their excessive slowness and formalism, the reforms introduced by the Court in the past two decades have led to considerable improvement. Recently, the 'clients' of the Court have expressed paradoxical desires for the Court to be more assertive in the management of the written and oral procedure and, at the same time, more responsive to the procedural views of the parties. Moreover, there are many requests for more interaction between the Bench and the parties and their counsel. If the good administration of justice rests on a careful blend between, on the one hand, formalism and solemnity, and, on the other, flexibility and dynamism, this cannot be achieved at the expense of the equality of the parties or of the procedural predictability. Hence, it may be desirable to amend the Rules in order to improve and modernize the procedure. 1 I N T R O D U C T I O N If there is one area where loyalty to tradition competes with the spirit of reform, it is surely that of the working methods of the International Court of Justice (ICJ) An institution which is celebrating 70 years of experience in dispute resolution, in addition to the 18 years of the Permanent Court of International Justice, can congratulate itself on the fact that its working methods have stood the test of time. But the Court knows it must not rest on its laurels. Thus, it constantly monitors the progress of cases, from the moment they are submitted to the point at which a decision is reached, and it strives to adjust the process when it becomes too prolonged. It is doubly vigilant. First, the Court watches out for poor practice by litigants, which it strives to nip in the bud. This is the main purpose of the Practice Directions and the reason why they are regularly revised. Secondly, it pays close attention to any criticism or suggestions, and endeavours to meet the expectations of its direct subjects (States and international organizations) the international community as a whole and, finally, the small community of lawyers who gravitate around it. The complexity of the task becomes apparent with the realization that these Professor of International Law, University of Angers. E mail: alinamironro@yahoo.com 1 The first Practice Directions were adopted in October 2001. They were revised, or amended, in 2002, 2004, 2006, 2009 and 2013. 2 The present analysis deals only with contentious cases. Some of the topics may also be relevant to advisory proceedings, but overall the latter have their own features, which warrant separate treatment. VC The Author 2016. Published by Oxford University Press. All rights reserved. For permissions, please e mail: journals.permissions@oup.com 371 Journal of International Dispute Settlement, 2016, 7, 371 394 doi: 10.1093/jnlids/idw010 Article by gest on A uust 1, 2016 http:/jidsrdjournals.org/ D ow nladed from expectations may sometimes be contradictory, and that the particular interests of some may clash with those of others, or even with the demands of the sound administration of justice. The Court has, therefore, encouraged regular discussion of its working methods. The 70th anniversary seminar is simply another step in that process, reflecting its belief that the edifice is never complete. The tradition of seminars was instituted at the time of the 50th anniversary, and was continued at the 60th. The focus at that time was on issues of efficiency and on reforms which could enable the Court to save time, without sacrificing the quality of its decision making. The Court has shown itself to be sensitive to criticism regarding the slowness of its proceedings, and has been receptive to some of the proposals put forward. It has thus accepted the need to reduce the time limits for written proceedings and to examine several cases at the same time, thus reducing the waiting time between when a case becomes ready for hearing and the date when it is heard; in short, to better manage the judicial calendar. It has, moreover, shortened deliberations during certain phases, for example, by doing without judges' notes for preliminary objections. These efforts have borne fruit and the Court has now fully cleared its backlog of cases. Furthermore, timescales for processing new cases are generally no longer than those of an arbitral tribunal. As shown in table 2 hereafter, 'Length of proceedings for cases introduced over the past ten years' the average processing time for a decision on the merits of a case is between three and four years, reduced by twothirds for preliminary objections. Any exceptions tend to be attributable to the parties rather than to the Court itself, which has established a very acceptable 'cruising pace' given the complexity of the cases submitted to it and of the issues at stake. This is good news, and should be recognized as such from the outset. The second piece of good news is that the Court now has sufficient financial and human resources to fulfil its mission: in any event, addresses by the President to the UN General Assembly no longer cite significant budget constraints or lack of staff. While additional resources have enabled the Court to be more receptive to certain 3 See C Peck and R Lee, Increasing the Effectiveness of the International Court of Justice: Proceedings of the ICJ/ UNITAR Colloquium to Celebrate the 50th Anniversary of the Court (Kluwer Law International 1997) 101 64, and ICJ/UNITAR, A Dialogue at the Court: Proceedings of the ICJ/UNITAR Colloquium Held on the Occasion of the Sixtieth Anniversary of the International Court of Justice (Peace Palace, 10 and 11 April 2006) 19 36. 4 See, in particular, the report by D Bowett and others (eds) The International Court of Justice: Process, Practice and Procedure, British Institute of International and Comparative Law (1997) see also CN Brower and others, 'Process, Practice and Procedure of the International Court of Justice' (1998) 92 Proceedings of the Annual Meeting (American Society of International Law) 278 90. 5 See K Keith, 'Challenges to the Independence of the International Judiciary' (Chatham House, Transcript, 26 November 2014) 9 <https:/www.chathamhouse.org/event/challenges independence international ju diciary> accessed 15 March 2016. 6 R Higgins, 'Respecting Sovereign States and Running a Tight Courtroom' (2001) 50(1) Intl Comp LQ 123. 7 See General Assembly, Official Records, 65th Session, ICJ Rep (2009 2010) Suppl No 4, A/65/4, 7, para 22; Speech by HE Judge Peter Tomka, President of the ICJ, to the 68th Session of the General Assembly of the United Nations (31 October 2013) 372 Working Methods of the Court by gest on A uust 1, 2016 http:/jidsrdjournals.org/ D ow nladed from suggestions from litigants, and to step up its information campaigns, the funds allocated by the General Assembly, although they remain modest in comparison to those of other international jurisdictions, have enabled it to adopt a relatively relaxed attitude to internal 'housekeeping' This good news, however, does not mean that the Court can afford to become complacent. And it appears to have no intention of doing so, judging from the topics chosen for this seminar. But updating working methods is like maintaining a house: there are some years when the very structure of the building needs work, while in others it is just a question of patching up the cracks. The experience of the past 10 years has not revealed any alarming systemic weaknesses: we can, therefore, conclude that the basic structure remains sound. Recent cases have, however, revealed sensitive areas at each stage of the passage through the Peace Palace of contentious proceedings, from filing of the application to delivery of the judgment. They include removal of the case from the List at the provisional measures stage, reduction in the number of written pleadings, management of the oral proceedings and dealing with incidental proceedings. Some of these issues are not new, and their persistence gives rise to doubts over the effectiveness of measures adopted in the past to resolve them. Thus, the Court has long striven, unsuccessfully, to limit the volume of written proceedings and to better manage the oral proceedings. Despite several Practice Directions, little progress has been made in these areas. These are potential cracks that require attention, and a number of proposals have been made in this regard. They almost all advocate for bolder use of the Court's decision making power over the conduct of the proceedings. In the past, the Court has refrained from opposing the wishes of States, particularly when both parties were of the same view. But this deference to State sovereignty appears to be lessening. The feeling of amazement previously described by President Mohammed Bedjaoui in terms of 'the astonishment of being judges invested with the power to judge States, these untouchable monsters crowned with sacrosanct sovereignty' is gradually giving way to a more pragmatic approach, heralded by Dame Rosalyn Higgins in the 2000s: 'One must focus on desired outcomes and one must be transparent in all decision making. There is no intangible "valueadded" to be built in to decisions, whether procedural or substantive, by virtue of the fact that they concern sovereign States. 8 One should not underestimate the importance of information campaigns, given that [in] a global community, reluctance to have recourse to judicial settlement can only be overcome if States are familiar with the activities of international jurisdictions' [Author's translation] (P Couvreur, 'Apercu du statut et des fonctions du greffier de la Cour internationale de Justice' in C Apostolidis (ed) Les arrets de la Cour internationale de Justice (Dijon 2005) 78. 9 Speech by HE Judge Peter Tomka, President of the International Court of Justice, to the 67th Session of the General Assembly (1 November 2012) 'the Member St