The International Court of Justice at 60: performance and prospects.

The roundtable was convened at 9:00 a.m., Saturday, April 1, by its chair, Stephen Mathias of the Multinational Force and Observers, who introduced the commentator, Bruno Simma of the International Court of Justice, and the participants: Daniel Bethlehem of the Foreign and Commonwealth Office, United Kingdom; Vera Gowlland Debbas of the Graduate Institute of International Studies; and William Howard Taft IV of Fried Frank Harris Shriver & Jacobson LLP *

INTRODUCTORY REMARKS BY STEPHEN MATHIAS ([dagger])

Prefacing the remarks of the participants, Mr. Mathias declared that, in view of the centennial conference's theme of "A Just World Under Law," it was appropriate to consider the role and performance of the International Court of Justice (the Court). The creation of the International Court of Justice and its predecessor institution, the Permanent Court of International Justice, were among the most hopeful and ambitious steps taken during the past one hundred years to achieve the goal of a world under law.

Mr. Mathias stated that an initial question about the role of any court concerns the cases that come before it. In its contentious jurisdiction, the Court can hear only the cases that states agree to bring before it, but those cases may be, and frequently are, cases that touch fundamental interests of states, including boundary disputes and use of force, in its advisory jurisdiction, the Court can issue advisory opinions in matters referred by certain UN organs, as was done in the matter concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Wall opinion).

Setting the stage for an analysis of the Court's contentious jurisdiction, Mr. Mathias queried whether the Court was really the venue of choice for significant cases. Do states and relevant international political bodies refer significant disputes and legal questions to the Court? Mr. Mathias explained that this question has two aspects: (1) whether significant disputes are referred to dispute settlement at all; and (2) if they are, whether the Court is the forum of choice. He then posed the related question of whether there were any steps that could or should be taken to make the Court a more attractive forum for litigants.

Probing further into the Court's advisory' jurisdiction and laying the foundation for discussion by the participants, Mr. Mathias challenged the audience to consider whether the referral of what some view as essentially political disputes, such as the Israeli separation barrier matter, runs the risk of politicizing the Court. He suggested that another means of analyzing the performance and prospects for the Court would be to consider the effects of its judgments and advisory opinions. Do states comply with the judgments directed at them? Are the legal principles set forth in such judgments regarded as declaratory of international law? Do advisory opinions have influence in the resolution of matters they address?

To begin to answer these important questions, Mr. Mathias recommended a study of the Court's jurisprudence. He noted that, even limiting consideration to the past decade, the Court has issued judgments and advisory opinions on fundamental issues of great general significance, including the nature of the fight of self-defense, the legality of the threat or use of nuclear weapons, and head-of-slate immunity under customary international law. The Court has also decided cases that may not be of the same general interest but are of great importance to the litigants, such as the boundary and Vienna Convention cases.

Mr. Mathias noted that yet another means of analyzing the Court's performance and prospects is to analyze the procedure and reasoning behind the Court's judgments. Is it true, as one judge of the Court recently noted, that the Court occasionally reaches a particular conclusion "ex cathedra, and without giving much substantive reasoning"? One might ask whether that observation can be said to have more general relevance, and, if so, whether it affects the quality of the Court's judgments and advisory opinions. Indeed, Mr. Mathias remarked that questions have been raised concerning the manner in which the Court deals with complex factual disputes.

In March 2006 the Court heard witnesses, experts, and witness-experts during the oral proceedings of the Genocide case (Bosnia and Herzegovina v. Serbia and Montenegro) for the first time since 1991. To speak to these issues, Mr. Mathias invited the participants--and particularly Judge Simma--to describe their impressions of the effectiveness of the Court's procedures in dealing with witnesses, and evidentiary issues more generally.

* This report was prepared by Bruce W. Klaw. Remarks made by participants reflect their personal opinions and not those of their respective organizations, offices, or governments.

([dagger]) General Counsel, Multinational Force and Observers.

REMARKS BY WILLIAM HOWARD TAFT IV ([dagger])

Echoing Mr. Mathias' remarks, Mr. Taft noted that, as with all institutions, it was important to review the progress of the Court. He indicated that his remarks would locus on the risk of politicization of the Court.

Mr. Taft observed that the Court has a judicial function, which is normally distinct from politics. As such, it is important for the Court to maintain credibility and minimize the risk of criticism that its judgments are based on policy considerations rather than a disinterested analysis of what the law actually is.

According to Mr. Taft, a number of factors in the Court's basic structure make it susceptible to being politicized, including (1) the limited tenure of judges with possibility of election to a new term; (2) the custom of reserving seats for certain states and allocating seats to certain geographic regions: (3) the process of "campaigning" for election; (4) the relatively large number of judges on the Court; (5) the Court's responsibility to provide advisory opinions in response to certain requests from political bodies: and (6) the availability of judges for outside engagements.

Mr. Taft added that another (albeit non-structural) risk of politicization has roots in the fact that international law is relatively underdeveloped and, insofur as it depends in its customary form on state practice, not entirely stable. Thus, the temptation, or indeed the necessity, to develop the law (a political function) rather than determine what it is (a judicial one) is another complicating element. The existence of these factors, noted Mr. Taft, imposes a special burden on the Court's judges to avoid discretionary conduct that invites further criticism of politicization.

Setting the foundation for further discussion, Mr. Taft set forth three contentions for the Court to consider when attempting to reduce the risk of politicization.

I. THE COURT SHOULD HAVE A SOUND METHOD OF RESOLVING FACTUAL ISSUES IN CASES

The practice of submitting facts through submissions of counsel not subject to cross-examination has some advantages, Mr. Taft stated, but where there are significant differences to be resolved, it leaves something to be desired. He noted that Arena and Oil Platforms both contained significant issues of fact which the Court resolved in a rather abbreviated fashion--by allocating the burden of proof and indicating that it had not been met by one side or the other. The opportunity to submit evidence and rebut it was circumscribed in each case. According to Mr. Taft, the procedure in the Wall opinion suffered from the same defect.

Mr. Taft noted that the benefit of having a solid fact-finding process lies not only in the development of an accurate understanding of the facts of the case, but also in the fact that an accurate understanding of the facts provides the foundation for the proper application of legal principles. It serves the same purpose as the "case or controversy" requirement by focusing the Court on its ,judicial function and preventing the decision-maker from undertaking excursions into legal discussions and determinations that, released from the discipline of a concrete factual situation, can too easily become abstract, and take on the character of an advisory opinion.

II. THE COURT SHOULD BE CIRCUMSPECT IN ACCEPTING INVITATIONS FOR ADVISORY OPINIONS

According to Mr. Taft, the Court should be circumspect in accepting invitations for advisory opinions for two reasons. First, the absence of a case involving specific parties deprives the Court of a fact-finding structure that should underlie and focus the exercise of the judicial function. Second, and more importantly, the Court should be cautious because the context in which advisory opinions (such as the Wall opinion) are sought tends to be highly political, and the Court's involvement is sought, typically, with intention of influencing policy choices.

III. THE COURT SHOULD REDUCE THE NUMBER OF SEPARATE OPINIONS IN ITS JUDGMENTS

In his third contention, Mr. Taft argued that the Court should try to reduce the number of separate opinions in its judgments. On this point, Mr. Taft clarified that he was not referring to the number of -dissents" issued by the Court but, rather, "concurring" opinions, which he believed were "proliferating at an alarming rate." He noted that concurrences offer occasion for judges to go beyond the issues necessary to the Court's decision and, as such, tend to be inherently advisory and potentially political.

According to Mr. Taft, the proliferation of concurring opinions has been "a real problem" in a number of important cases, particularly recent ones. In the Case Concerning the Arrest Warrant of 11 April 2000, seventeen judges produced eight separate concurrences and three separate dissents. In the Oil Platforms case, sixteen judges produced nine concurrences and two dissents. In the Court's Wall opinion, six separate opinions and one dissent were issued. In the Rwanda case, the Court issued seven separate opinions and two dissents. In Uganda, there were seven separate opinions and one dissent. In fact, the author of one of the separate opinions in the Uganda case noted that he was writing separately to "take the opportunity ... to clarify the state of the law." (1) Mr. Taft doubted, however, that an opinion in which a majority of the Court did not join could have this character or achieve this consequence.

Mr. Taft explained that he did not believe that judges should always refrain from writing separate opinions. However, he noted that the Court's judicial function is to decide the cases that come before it. That done, but with the pen still in hand, there is an added risk that a judge's policy preferences, unconstrained by the need to obtain agreement from his colleagues, will find their way into an opinion. And, according to Mr. Taft, this has frequently happened.

Mr. Taft (who served as Agent for the United States in the Arena case) stated that he believed Arena was an instance in which the Court exercised considerable restraint in the issuance of separate opinions. He noted that although the Court was invited by Mexico to develop the law in a number of respects--and in the context of a death penalty case, such an invitation could have been highly tempting--the Court stuck closely to its judicial task and issued only four brief concurrences. Accordingly, Mr. Taft noted, the Avena decision thus stands as a solid interpretation of the obligations of the parties to the Convention and will likely command respect.

([dagger]) Former Legal Adviser. U.S. Department of State: currently Of Counsel at Fried Frank Harris Shriver & Jacobson LLP.

(1) See Separate Opinion of Judge Simma, para. 8.

REMARKS BY VERA GOWLLAND-DEBBAS *

I. THE SIGNIFICANCE OF BEING THE "PRINCIPAL JUDICIAL ORGAN OF THE UNITED NATIONS"

Professor Gowlland-Debbas noted that, on its sixtieth anniversary, the Court's general role and responsibilities (including the way it exercised its functions in the recent Wall opinion) should be assessed from the perspective of the Court's status as the principal judicial organ of the United Nations.

Professor Gowlland-Debbas argued that the incorporation of the Court into the United Nations is significant. Since the Statute forms an integral part of the Charter, the two instruments must be read together as "a single instrument forming an integral whole." (1) Thus, the Court must always bear in mind the Charter's general purposes and principles. Additionally, by virtue of the explicit reference to the Court within Chapter VI of the UN Charter, the Court was clearly intended to (and does, in fact) occupy an important place in the Charter's scheme for maintenance of international peace and security. Finally, although the Court is an autonomous adjudicative body with its own Statute--and is thus both the principal judicial organ of the United Nations and a World Court--its dual roles should increasingly come together as the United Nations becomes synonymous with the international community. In time, this should reduce the tensions and ambiguities inherent in this dedoublement fonctionnel.

As a principal organ, the Court's relationship with the other principal organs of the United Nations is based on the principle of "coordination and functional cooperation" in the attainment of the common goals of the Organization. The Court has stated that only "compelling reasons" would lead it to refuse a request for an Advisory Opinion, and it has thus declined to look into the political motivations underlying the request. (2) In this regard, its opinions are directed to giving effect to the decisions of the other principal organs, not to render them nugatory. It has also contributed to the expansion of the powers of the organization, endorsing in the process a teleological and dynamic view of Charter interpretation.

As a judicial organ, on the other hand, the Court is careful to safeguard its autonomy from the other, political, organs, and is subject to limitations based on judicial propriety. Nevertheless, the Court has rejected the traditional distinction between intrinsically legal and intrinsically political disputes, as opposed to functional distinction between legal and political methods of' settlement. The Court has underlined that there can be no hierarchy between the Court and the Security Council, that it can act concurrently on the basis of "functional parallelism," and that neither body need defer to the other, even when the Council is exercising its functions under Chapter VII.

Finally, as principal judicial organ, the Court is not the exclusive court either within the UN system, or within the world community. In this new era of proliferating dispute resolution bodies, the Court's future success lies in strengthening its specific and unique role as the only court that was conceived to be a World Court of general competence serving the world community. Even in its contentious jurisdiction, the Court simultaneously services the litigants, United Nations, and--through the United Nations--the international community as a whole. While the Court is obviously hampered by the fact that its structure and processes have been embedded in an older era which initially slowed down its adaptation to the contemporary and dynamic trends in the Charter, it has not remained on the periphery of these changes. It is regularly being enlisted in the process of shaping a constitutional law of the international community, as is evident from both the quantity and quality of the Court's current docket.

II. THE COURT'S ADVISORY OPINION ON THE LEGAL CONSEQUENCES OF THE CONSTRUCTION OF A WALL IN THE OCCUPIED PALESTINIAN TERRITORY

According to Professor Gowlland-Debbas, the Court's Wall opinion is an excellent illustration of the way in which the Court may exercise and reconcile its roles as both principal and judicial organ of the United Nations.

The Purported Politicization of the Court

Professor Gowlland-Debbas observed that questions of occupation, self-determination, respect for human rights and humanitarian law, and the use of force are quintessential problems of international law. Referring to its long-standing jurisprudence, the Court in the Wall opinion recognized that the mere fact that a legal question also has political aspects is not enough to deprive the issue of its character as a "legal question" or deprive the Court of its competence. Consequently, a refusal to render the opinion would have equally posed the risk of politicizing the Court--a lesson learned from the Court's 1966 judgment in the Ethiopia/Liberia v. South Africa case.

Palestine as a UN Responsibility

In the Wall opinion, the Court rejected the contention that it was interfering in a bilateral dispute by underlining the continuing and special responsibility of the United Nations for the question of Palestine. This conclusion follows from the international status of Palestine first as former mandate, to be safeguarded under the principles of non-annexation and "sacred trust"; second, as a self-determination unit entitled to territorial integrity and unity within its 1967 borders: and third, as occupied territory. The Court thus demonstrated that the United Nations "Roadmap"--the edifice of legal rules and principles created as early as of 1948-was to serve as the legal foundation for any negotiated settlement leading the territory to statehood. Consequently, the construction of the Wall (which would cut the Palestinian territories into five barely contiguous territorial units deprived of international borders) threatened the potential of any future viable Palestinian state and, if it became permanent, "would be tantamount to de facto annexation." (3)

The Strengthening of UN Institutions

The Court's Wall opinion also reaffirmed the role of the United Nations" political organs. It confirmed the series of Security Council resolutions calling for, inter alia, the withdrawal of Israeli armed forces from the territory, reiterating the principle of the inadmissibility of the acquisition of territory by force, and declaring that all legislative and administrative measures taken by Israel purporting to alter the character and stares of the Occupied Palestinian Territory, including East Jerusalem, are null and void. (4) Upholding the legal effects of these resolutions, the Court concluded unanimously that Israeli settlements in the Occupied Palestinian Territories were illegal.

In addition, the Court confirmed the secondary and concurrent responsibility of the General Assembly in the field of peace maintenance, on the basis, inter alia, of the evolution through practice of Article 12 of the Charter. It confirmed the Uniting for Peace resolution, as well as the legality of the "rolling" nature of the General Assembly's 10th Extraordinary Session. Far from upsetting the Charter's delicate balance between the General Assembly and the Security Council, the Court Opinion has served to right it. In the light of current discussions on UN reform and of the Security Council's assumption of vast, quasi-legislative powers while under the preponderant influence of a single superpower, the Court's reaffirmation of the powers and competences of the most representative of the UN political organs--the General Assembly--is of major significance.

The Strengthening of the UN Normative Framework

The advisory opinion, in addressing major contemporary challenges to international law, also serves as a reaffirmation of the norms which lie at the heart of the UN system. Through its restrictive interpretation of Article 51 of the Charter and Security Council Resolutions 1368 and 1373, the Court refused to endorse the unilateral development of norms aiming at the unraveling of the normative structure of the United Nations.

At the same time, it endorsed contemporary developments in human rights law by confirming the continuing applicability of certain non-derogable human rights obligations in time of armed conflict. It emphasized that the rights framework under international law is an indivisible whole, encompassing both civil and political rights on the one hand, and economic, social and cultural rights on the other. These pronouncements are rendered at a time when it is more important than ever to underline the unity of the international protection system for the individual laid down in the Charter.

The Protection of the Collective Interest

The Wall opinion also underscores the Court's role in the protection of the collective interest. The opinion upheld the erga omnes nature of the obligations in question, declaring that all states were obliged "not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction" (5) and to ensure compliance by Israel with international humanitarian law. Moreover, since the norms at stake in the Palestinian-Israeli conflict were found to constitute core norms of international law, the international community as a whole bears an obligation to realize and protect them.

While solidifying its role in the protection of the collective interest, the Court also recognized that it was up to the political organs to consider, on the basis of its opinion, what further collective action is required to bring to an end the illegal situation resulting from the construction of the wall and preserve the fundamental norms at stake. Thus, the Wall opinion provides an authoritative platform upon which the political organs of the United Nations may act. Indeed, it places on them an obligation to do so since the opinion was not only rendered by the United Nations' principal judicial organ, but also formally accepted and endorsed by the organ which requested it.

* Professor, Graduate Institute of International Studies. Geneva.

(1) Electronica Sicula, S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ REP. 96-97, Dissenting Opinion of Judge Schwebel.

(2) See WHO/Egypt Advisory Opinion, 1980 ICJ REP. 73; Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, 1948 ICJ REP. 57.

(3) Legal Consequences of the Construction of a Wall in the Occupied Palestian Territory, 2004 ICT REP. [paragraph] 121.

(4) See, e.g., SC Res. 242 (1967), 338 (1973) 478 (1980), and 1322 (2000).

(5) Wall Opinion, 2004 ICJ REP. Dispositif para. 163(3) D.

REMARKS BY DANIEL BETHLEHEM *

According to Mr. Bethlehem, the Court is as strong as its ever been. Its judges possess significant experience, especially in the areas of arbitration, human rights and diplomacy, and will enable the Court to solve the difficult legal challenges that lie ahead.

Mr. Bethlehem noted that the Court's current docket represents somewhat of a high-water mark in terms of both subject matter breadth and case significance. Of the ten cases pending on the Court's docket, five pertain to territorial disputes, one to universal jurisdiction, one to diplomatic protection, one to environmental protection and two to genocide. Indeed, the Court has never had more important cases.

To maintain its rich docket and possibly improve upon it, however, it is important for the Court--as with all international judicial bodies--to establish trust amongst its constituency. To do so, the Court must balance the interests of the litigant with wider interests.

On its sixtieth anniversary, the Court still faces many of the challenges of newly established courts. Indeed, it is far from achieving the routine acceptance that is enjoyed by the European Court of Human Rights and the European Court of Justice.

While the Court's existence is not precarious, its docket may be. Although the Court has unrestricted substantive competence, its jurisdiction is based on consent. And the Court's jurisdiction has been challenged in at least fifty cases. Thus, in assessing the performance and prospects for the Court on its sixtieth anniversary, questions of jurisdiction loom large. In a recent count, only sixty-six states have made compulsory jurisdiction acceptance declarations under Article 36(2) of the Court's Statute. Even those states that have signed optional clause declarations may not accept jurisdiction in every case due to lack of reciprocity.

So, why do states resist the jurisdiction of the Court? According to Mr. Bethlehem, it natural for states to want to keep their disputes away from the Court. There is also, in some quarters, a sense that the Court's judgments are informed by political considerations rather than only considerations of law. While it is appropriate that the Court is sensitive to the wider dimension of the case, the question is whether that sensitivity drives the Court's decision in the matter.

According to Mr. Bethlehem, the issue of the Court's jurisdiction is the elephant in the room that cannot be ignored since it lies at the heart of the Court's role and has deep roots in questions of legitimacy and justice. States must have the comfort of knowing that the Court will accurately and fairly apply the law, especially in increasingly complex situations where the Court is often expected to decide whether a particular action is unforeseen or illegal.

Mr. Bethlehem suggested that several small steps may be taken to bolster the Court's appearance as a trusted part of established international dispute settlement machinery. Among these he listed: (1) the Court's issuance of practice directions; (2) the efficient and timely management of the Court's docket; (3) circumspection in the issuance of separate opinions; (4) the adoption of Article 61 procedure; and (5) greater engagement by judges in oral proceedings before the Court.

* Legal Advisor (designate), Foreign and Commonwealth Office of the United Kingdom.

REMARKS BY BRUNO SIMMA *

Judge Simma began by acknowledging and responding to Mr. Taft's list of factors that risk politicizing the Court. As an initial matter, Judge Simma agreed that each of the identified factors--from judicial campaigning to seat allocation--posed a relevant consideration for an analysis of the Court's performance and prospects on its sixtieth anniversary.

Addressing the issues surrounding the structure of the Court, Judge Simma expressed doubt whether the relatively large number of seats on the Court ran the risk of politicizing it. On the custom of reserving seats on the Court for the permanent members of the Security Council, Judge Simma acknowledged the risk posed and noted that a similar practice appeared to be making its way into the structure of the future UN Human Rights Council. Then, seizing on Mr. Taft's critique of the practice of allocating seats on the Court by geographic region, Judge Simma observed that, absent regional allocation, the membership of the Court might become prey to the numerical majorities above all in the UN General Assembly.

Speaking to the issues of evidence and fact-gathering facing the Court, Judge Simma noted that the Court has explored the possibility of direct and cross-examination of witnesses by counsel of the parties but, thus far, has found it to be relatively unhelpful. On one occasion, such examinations appeared to be a bit of a fatigued exercise.

Discussing the Court's reference to issues of fact and law decided by other international courts, Judge Simma noted that Court' s first comprehensive consideration of the jurisprudence of other international courts will have to be effected in the context of the Genocide cases, provided that the Court will accept jurisdiction. He added that it will be a new and interesting experience to handle evidence gathered by the ICTY.

On the issue of advisory opinions, Judge Simma recognized the need for circumspection, but added that the Court cannot lightly reject--and indeed has never rejected--a request for an advisory opinion.

Responding to concerns about the proliferation of separate and concurring opinions, Judge Simma observed that concurring opinions serve the function of letting judges voice their views. In principle, however, he agreed with calls for circumspection. Judge Simma added that he, too, thought the Court did relatively well to speak with one voice in the Avena case (on which he did not sit), and added that agreed-upon and consistent interpretations of international law were important in an era prone to the "domestication of international law."

Addressing the Court's Wall opinion, Judge Simma said that he thought the decision could be criticized for what it does not say. He explained that, in his personal opinion, the discussion on self-defense is too brief. Moreover, he added that the opinion might not adequately address Israel's security concerns but indicated that the Court felt constrained to base its decision on the dossier of facts prepared by the Secretary-General of the United Nations rather than on outside facts.

Judge Simma concluded by highlighting his agreement with the participants' observation that the issues of the Court's jurisdiction and its ability to garner the trust of its constituents are critically important. In this regard, Judge Simma observed that the application of judicial restraint--especially when assessing the sources of international law--is important.

QUESTIONS AND ANSWERS

Following the participants' remarks, attendees posed questions and comments to the roundtable. Thought-provoking questions were asked concerning the use of precedent by the Court, the standard of proof applicable in contentious cases, and the enforcement of Court judgments. Members in attendance, including former UN Under Secretary-General of Legal Affairs and UN Legal Counsel Hans Corell, also offered general comments to the participants. Responding to Judge Simma's remark that, in the Wall opinion, the Court felt constrained to base its decision on the dossier of facts prepared by the UN Secretary-General rather than on outside facts, Mr. Corell explained the difficulties inherent in preparing a complete factual dossier for an advisory opinion and added that the he hoped the Court would not feel limited to the dossier. Another comment came from John Crook, who commended the Court on its handling of evidence in the Congo v. Uganda decision and supported the Court's transparency-bolstering effort to identify the sources of evidence it relied upon.

Responding directly to audience questions and to the other roundtable participants, the participants issued closing remarks. Mr. Taft clarified his position on successes and failures of the Court in the Avena case and emphasized the critical importance of fact-finding to the proper exercise of the judicial function. Professor Gowlland-Debbas highlighted the role of the Court in a changing world, adding that since UN membership is now universal, the Court is uniquely placed to handle issues of collective interest. Mr. Bethlehem agreed that consistency in the Court's jurisprudence is important, but that this must turn on whether the Court got it right the first time. On the issue of enforcement, Mr. Bethlehem recognized the role of the UN Security Council, but also drew attention to the fact that the Court regularly permits states to carry out its judgments by the means of their own choosing. Finally, Judge Simma noted that, with respect to the issue of the standard-of-proof, there exists a tension between common-law and civil-law judges on the Court. On the issue of enforcement, Judge Simma highlighted the Cameroon matter as a case where gradual compliance has become visible.

* Judge, International Court of Justice.