CHAPTER 22 International Adjudication Intemational law knows no system of compulsory adjudication. The Intemational Court of Justice and other international courts—such as the International Tribunal for the Law of the Sea—have jurisdiction only where the parties to the dispute have consented to the Court’s jurisdiction, The same applies to arbitration tribunals they, too, are dependent on the consent of states for the exercise of jurisdiction Inevitably, therefore, the settlement of international disputes by judicial means is the exception and not the rule. Alternative methods of dispute resolution, such as mediation, conciliation and negotiation, are generally more attractive to states. International adjudication! is, however, on the increase: the International Court of Justice is busier today than it has been in its entire history, and more frequent use is made of arbitration tribunals than in past years. This chapter will focus largely on the International Court of Justice as an institution; and upon its jurisprudence, Astudy of the International Court of Justice (IC)) and its judgments is essential for an understanding of the limitations of international law and of the prospects for an expanded role for international law in the contemporary world order. South Africa has appeared before the ICJ on more occasions than most states, as a result of the legal obligations it assumed in respect of its administration of South West Africa/ Namibia. The four opinions and two judgments of the ICJ in this dispute comprise a substantial part of the Court's jurisprudence, and provide a clear illustration of the nature of the international judicial process. A legal chronology of this dispute, which will feature prominently in this chapter, appears as an appendix to this chapter. A BRIEF HISTORY OF INTERNATIONAL ADJUDICATION Before a permanent intsernational court was established in 1920, arbitration was the only method for the judicial settlement of disputes. States Parties to a dispute would, typically, select suitable arbitrators, who would then choose an umpire. For wh ie hr) See G Schwarzenberger International Law as Applied by International Courts and Tribunals vol IV (International Judicial Law) (1986); JG Merrills International Dispute Settlemer ELauterpacht Aspects of the Administration of International Justice (1991); K Oeller: Zimmermann Dispute Settlement in Public International Law (2001); | Collier and V Lowe The Settlement of Disputes in International Law (1999); ¥ Orrego Vicuna International Dispute Settlement in an Evolving Global Society (2004); D French, M Saul and N White (eds) lnternational Law and Dispute Settlement (2010). 4ed (2005); ‘rahm and 451INTERNATIONAL LAW; A SOUTH AFRICAN PERSPECTIVE instance, in the famous Alabama Claims? Arbitration of 1872, between the y, States and Britain arising out of the latter’s violation of its duties of neutrality da the American Civil War, a panel of five arbitrators was constituted, comprising jy from the United States, Britain, Italy, Switzerland, and Br he British atbitrare was the sole dissentient on the finding that Britain had violated its obligations ms was obliged to pay $15 500 000 to the United States as compensation, nd In 1899 and 1907 a Permanent Court of Arbitration (PCA) was created} ) reality this institution was not a court, but simply an arrangement to facilitate PS appointment of arbitrators. States party to the arrangement appointed jurists tg y panel from which parties to a dispute might select arbitrators. This machinery in frequently invoked before the establishment of an international court in 1920. It has survived the creation of a permanent international court, and may still be utilize by some 100 states (including South Africa) that are parties to the conventions establishing the Permanent Court of Arbitration. In the past decade the PCA has enjoyed a revival and it has been responsible for facilitating a number of important arbitrations, such as those involving disputes between Eritrea and Ethiopia, and the boundary dispute between Sudan and South Sudan over the Abyei region. In 2007 the PCA established regional branches in Asia, Latin America and Africa. The African branch has been established in South Africa and provides an opportunity for promoting an African identity in the settlement of African disputes. The Covenant of the League of Nations contemplated the establishment of a genuine world court,® but left it to a later multilateral treaty—the Statute of the Permanent Court of International Justice—to implement this goal. In the result, the Permanent Court of International Justice (PCIJ) was not institutionally linked to the League of Nations, unlike its successor, the International Court of Justice, which was established by the Charter of the United Nations and which forms an integral part of the United Nations system. The PCIJ was one of the most successful international institutions of the inter-war years. South Africa was a party to the Statute of the Court but did not appear before it in legal proceedings. In 1945 the PCIJ was replaced by the present International Court of Justice (IC). ‘As neither the United States nor the Soviet Union, the two superpowers in the post-World War II order, had been signatories to the Statute of the PCI), there were sound political reasons for creating a new Court of which they could claim original B Moore International Arbitrations to which the US has been a Party vol 1 (1898) 653. The an interesting South African link. The Alabama, a confederate warship, was allowed to put into British colonial ports in the Course of its marauding aimed at the federal merchant navy. Its arrival at Cape Town was such a major event that it produced one of South Africa's best known songs, ‘Daar kom die ‘Alabama’. The arbitration tribunal found that both the building and the refuelling of the ‘Alabama were in violation of Britain's obligations as a neutral during the American Civil War See further, JP van NieKerk ‘The story of the CSS (“Daar Kom Die ..") Alabama: some lex3l aspects of her visit to the Cape of s Good Hope’ (2007) Fundamina: A Journal of Legal History By the Hague Conventions for the Pacific Settle ment of International Disputes. The 1907 Convention was largely a revision of the earlier convention of 1899. See B MacMahon and F Smith The Permanent Court of Arbitration (2010); M Bockentorde be iden Journal 0 “Abyei Award: Fitting a diplomatic square peg into a legal round hole’ (2010) 23 Leide ‘International Law 85; B Daly ‘The Abyei Arbitration; procedural aspects of an intra-state Done! arbitration’ ibid 801. 5 Article 14. 2 iJ Alabama Claims ha: which was built in British shipyards, 4523 ae i" oe ah INTERNATIONAL ADJUDICATION membership. Also the framers of the| Charter considered it desirable to integrate the new Court into the United Nations system, This was done by designating the 1CJ as the principal judicial organ of the United Nations,° and by incorporating the Statute of the International Court of Justice into the Charter. In reality the ICJ is not a successor to the PCY, but a Continuation of the old Court. It retains its seat at The Hague, under a largely unchanged Statute, and the ICJ has relied on the jurisprudence of the PCIJ as if it were the same Court. The principal difference between the two Courts is that whereas only states committed to international adjudication became signatories to the Statute of the PCIJ, all member states of the United Nations automatically become parties to the ICJ's Statute on the signing of the Charter.” The increased interest in the judicial settlement of disputes between states has led to the establishment of several international courts with specialized jurisdiction— such as the International Tribunal for the Law of the Sea, the European Court of Human Rights, the Court of Justice of the European Union, the Inter-American Court of Human Rights, the African Court of Human and People’s Rights, the African Court of Justice, the Community Court of Justice of the Economic Community of West African States (ECOWAS) and the Southern African Development Community Tribunal. The Iran-United States Claims Tribunal has been in existence for 30 years; there are special dispute settlement mechanisms for the World Trade Organization (WTO) and the North American Free Trade Agreement (NAFTA); and the International Centre for the Settlement of Investment Disputes (ICSID) provides machinery for the settlement of investment disputes. To this list, must be added the ad hoc International Criminal Law Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), and the International Criminal Court, which apply principles of international law although they are concerned with the prosecution of individuals, and not the resolution of disputes between states. The proliferation of international tribunals without any recognized hierarchy of authority has given rise to concerns that different tribunals will interpret international law rules in different ways and thereby undermine the unity and universality of international law.8 These concerns are probably exaggerated ‘provided the various tribunals stay within their respective spheres of competence, apply traditional international legal reasoning, show judicial restraint by seeking to avoid unnecessary conflicts, and remain open to reconsider their prior legal pronouncements in order to take account of the case law of other international courts’. 6 Articles 92-6 of the UN Charter. 7 Article 93(1) of the UN Charter. Non-members of the United Nations may become parties to the Statute of the Court in terms of article 93(2). 8 The most frequently cited conflict is that between the judgment of the IC} in the Nicaragua Case 1986 IC) Reports 13 at 64-5 (para 115) and that of the ICTY in the Tadic Case (1999) 38 ILM 1518 at 1546 (para 145) on the subject of the responsibility of a state for the action of groups under its control. See Chapter 13. 9 TBuergenthal ‘Proliferation of international courts and tribunals: Is it good or bad?’ 2001) Leiden Journal of International Law 267. 453‘ INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE | ‘THE INTERNATIONAL COURT OF JUSTICE” The International Court of Justice (ICJ), situated at the Peace Palace in The Hague, comprises 15 judges ‘of recognized competence in international law’!! who together represent ‘the main forms of civilization’ and ‘the principal legal systems of the world’? They are elected by the General Assembly and Security Council’ and hold office for nine years.!4 When the Court was first constituted in 1946, five judges were elected for three years, five for six years, and five for nine years. Consequently elections to the Court are now held every three years for five judges. The President, who holds office for three years, is elected by the Court.!5 Nine judges constitute a quorum.'¢ All questions are decided by a majority of the judges present. In the event of an equality of votes, the President has a casting vote.!” In 1966, Sir Percy Spender of Australia, the President of the Court, secured a ‘technical victory’ for South Africa in its dispute with Ethiopia and Liberia over South West Africa/ Namibia when he exercised both a deliberative and a casting vote in favour of a finding that the applicants lacked the necessary standing to bring the complaint.!* Although judges are required to recuse themselves from cases in which they have been personally involved as counsel, or in some other capacity,!° they are not required to recuse themselves when their own national state is a party to a dispute. Moreover, if a party to a dispute has no national on the Court, it may appoint a judge ad hoc to sit on the Court for that particular case.2° In the 1960-66 South West Africa Cases, South Africa appointed Mr Justice JT van Wyk, Judge President of the Cape Provincial Division, as its judge ad hoc. In 2002, the author was appointed as judge ad hoc by Rwanda, in a dispute with the Democratic Republic 10S Rosenne The Law and Practice of the International Court 1920-2005 (4 vols) 4 ed (2006); L Damrosch (ed) The International Court of Justice at a Crossroads (1987); V Lowe and M Fitzmaurice (eds) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (1996); RY Jennings ‘The role of the International Court of Justice’ (1997) 58 BYIL 1; AS Muller, D Raic and JM Thuranszky (eds) The ICJ: Its Future Role after 50 Years (1997); H Meyer The World Court in Action: Judging Among Nations (2002); M Amr The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (2003); A Zimmermann, C Tomuschat and K Oellers-Frahm (eds) The Statute of the International Court of Justice: A Commentary (2006). 11 Articles 2 and 3 of the Statute of the International Court of Justice. 12 Article 9 of the Statute. The present practice is for the Court to comprise five judges from Western states, three from Africa, three from Asia, two from Bastern Europe, and two from Latin America. Although not required by the Statute, nationals of the five permanent members of the Security Council are in practice represented on the Court. 13 Articles 4~12 of the Statute, On the process of selection of judges, see R Mackenzie, K Malleson, D Martin and P Sands Selecting International Judges: Principle, Process and Politics (2010) 14 Article 13. 15 Article 21. 16 Article 25(3). 17 Article 55. 18 saute Mt Alte Second Phase 1966 IC} Reports 6; J Dugard The South West Africa/Namibia 19 Articles 17 and 24. See the controversy surrounding the recusal of Judge Si ammad Zafrulla Khan of Pakistan in the 1966 South West Africa Cases: Dae is) 201. ‘ 20 Article 31.INTERNATIONAL aDjupic ATION of Congo over armed activities in the te; Malaysia in in 2010 he was appointed as judge ad hoc Nicaragua.’ The non-recusal of nationa ad hoc are practices, rooted in tl to some extent undermine the hoc and national jud; appointed them,24 tritory of the Congo,21 in 2004, he 4 territorial dispute with Singapore; by Costa Rica ina bou ti | judges and the he Composition of early ar| character of the Court ‘es seldom find gainst their own s was 22 and ndary dispute with appointment of judges bitration tribunals, that Particularly as judges ad tate or the state that has CONTENTIOUS PROCEEDINGS Only states may be parties to disputes before the ICJ, in terms of artich the Statute. The exclusion of international or organizations, multinational corporations, and individuals from access to the Court in contentious proceedings may be explained on the ground that states were the only actors in the international legal arena when the Statute was drafted in 1920. This is no longer the case, and today there are calls for an expansion of access to the Court. The weakness of the present rule is illustrated by the South West Africa Cases of 1960-66.75 Here, a dispute developed between the United Nations and South Africa, over the status of South West Africa, after South Africa had refused to accept the United Nations as the successor to the League of Nations in respect of the international supervision of the mandated territory. The United Nations ined three advisory opinions from the IC}, holding that South Africa was ea it to the United Nations for its administration of the territory, but aoe ee aartal Be SOUTH IA rica VasicHie UAKEa NaTIORE ERTS prevented from these aoc proceedings against South Africa because of article 34 of the institutin; le 34 of ‘ganizations, non-governmental aie ed Activities on the Territory of the Congo (DRC v Rwanda), Provisional Cree CE 219; (2002) 41 ILM 1175; 2006 IC] Reports 6. Meas aver Redra Brinca/Pulau Bate Ruteh, Migle Rods and Southiodee lela Singapore) 22. Sovereignty over Pedra ZO sper prt Dt a Nicaragua) 2011 1C) in Activities Carried out by Nicarag i 23. Certain Ad Bera i cl judges ad hoc of the International Court of Justice’ (1999) 48 ‘National judges and judges a 24 S SET et al The Statute of the ICJ (n 10) 498. 1CLQ.889 ese ee Dugard (n 18) at 210-15, 239-375, pistory of these pr e 2s Fora hist 21INTERNATIONAL LAW: A SOUTH AP THE INTERNATIONAL COURT OF JUSTICE!? The International Court of Justice (ICJ), situated at the Peace Palace in The Hagy comprises 15 judges ‘of recognized competence in international law’! who togethe, represent ‘the main forms of civilization’ and ‘the principal legal systems of the world’.!? They are elected by the General Assembly and Security Council! ang hold office for nine years.' When the Court was first constituted in 1946, fiye judges were elected for three years, five for six years, and five for nine years. Consequent, elections to the Court are now held every three years for five judges. The President who holds office for three years, is elected by the Court.!5 Nine judges Constitute a quorum.'¢ All questions are decided by a majority of the judges present. In the event of an equality of votes, the President has a casting vote.” In 1966, Sir Percy Spender of Australia, the President of the Court, secured a ‘technical victory’ fop South Africa in its dispute with Ethiopia and Liberia over South West Africa) Namibia when he exercised both a deliberative and a casting vote in favour of 4 finding that the applicants lacked the necessary standing to bring the complaint,!8 Although judges are required to recuse themselves from cases in which they have been personally involved as counsel, or in some other capacity,! they are not required to recuse themselves when their own national state is a Party to a dispute, Moreover, if a party to a dispute has no national on the Court, it may appoint a judge ad hoc to sit on the Court for that particular case.2° In the 1960-66 South West Africa Cases, South Africa appointed Mr Justice JT van Wyk, Judge President of the Cape Provincial Division, as its judge ad hoc. In 2002, the author was appointed as judge ad hoc by Rwanda, in a dispute with the Democratic Republic 10 $ Rosenne The Law and Practice of the International Court 1920-2005 (4 vols) 4 ed (2006); L Damrosch (ed) The International Court of Justice at a Crossroads (1987); V Lowe and M Fitzmaurice (eds) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (1996); RY Jennings ‘The role of the International Court of Justice’ (1997) 58 BYIL 1; AS Muller, D Rai and JM Thuranszky (eds) The IC): Its Future Role after 50 Years (1997); H Meyer The World Court in Action: Judging Among Nations (2002); M Amr The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (2003); A Zimmermann, C Tomuschat and K Oellers-Frahm (eds) The Statute of the International Court of Justice: A Commentary (2006) 11 Articles 2 and 3 of the Statute of the International Court of Justice. 12 Article 9 of the Statute. The present practice is for the Court to comprise five judges from Western states, three from Africa, three from Asia, two from Eastern Europe, and two from Latin America, Although not required by the Statute, nationals of the five permanent members of the Security Council are in practice represented on the Court. 13. Articles 4-12 of the Statute. On the process of selection of judges, see R Mackenzie, K Malleson, D Martin and P Sands Selecting International Judges: Principle, Process and Politics (2010). 14 Article 13. 15 Article 21. 16 Article 25(3). 17 Article 55. 18 South West Africa, Second Phase 1966 IC] Re ; oS est Africa/Namibia poe eA J Reports 6; | Dugard The South West Africa/N 19 Articles 17 and 24. See the controversy surrounding the recusal of Judge Sir Muhammad Zafrulla Khan of Pakistan in the 1966 South West Africa Cases: Dugard (n 18) at 291. 20 Article 31.INTERNATIONAL ADJUDICATION of Congo over armed activities in the territory of the Congo;?! in 2004, he was appointed as judge ad hoc by Malaysia in a territorial dispute with singapore;?2 and in 2010 Bowes appointed as judge ad hoc by Costa Rica in a boundary dispute with Nicaragua.’ The non-recusal of national judges and the appointment of judges ad hoc are practices, rooted in the composition of early arbitration tribunals, that to some extent undermine the character of the Court—particularly as judges ad hoc and national judges seldom find against their own state or the state that has appointed them.?4 Article 26 of the Court’s Statute permits the creation of Chambers composed of three or more judges for dealing with particular categories of cases. The composition of a Chamber is determined by the Court itself after consultation with the parties to the dispute. The ICJ exercises two jurisdictions. First, it hears disputes between states and gives binding judgments on such disputes. Such proceedings are described as contentious proceedings. Secondly, the Court may give advisory opinions at the request of designated organs of the United Nations and specialized agencies of the United Nations. The composition of the Court is unaffected by the nature of the proceedings and the same rules of international law are applied in both cases. However, different procedural and jurisdictional rules govern the two proceedings and this makes it necessary to consider these two jurisdictions or competences separately. CONTENTIOUS PROCEEDINGS Only states may be parties to disputes before the ICJ, in terms of article 34 of the Statute. The exclusion of international organizations, non-governmental organizations, multinational corporations, and individuals from access to the Court in contentious proceedings may be explained on the ground that states were the only actors in the international legal arena when the Statute was drafted in 1920. This is no longer the case, and today there are calls for an expansion of access to the Court. The weakness of the present rule is illustrated by the South West Africa Cases of 1960-66.25 Here, a dispute developed between the United Nations and South Africa, over the status of South West Africa, after South Africa had refused to accept the United Nations as the successor to the League of Nations in respect of the international supervision of the mandated territory. The United Nations obtained three advisory opinions from the ICJ, holding that South Africa was obliged to account to the United Nations for its administration of the territory, but these were ignored by South Africa. As the United Nations was itself prevented from instituting contentious proceedings against South Africa because of article 34 of the i itory of the Congo (DRC v Rwanda), Provisional 21 Case Concerning Armed Activities on the Territory ; Measures 2002 ICJ Reports 219; (2002) 41 LM 1175; 2006 ICJ Reports 6. 22. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) 2008 ICJ Reports 12 ane 33. Certain Activities Carried out by Nicaragua on the Border Area (Costa Rica v Nicaragua) 2011 1G} cai \dges ad hoc of the International Court of Justice’ (1999) 48 24. § Schwebel ‘National judges and judges ad hoc of the ational Court of Justice’ ( ICLQ 889, Zimmermann et al The Statute of the IC} (0.10) 498. 25 Fora history of these proceedings, see Dugard (n 18) at 210-15, 239-375, 455INTERNATIONAL LAW: A. SOUTH AFRICAN PERSPECTIVE t ight proceedings, in effect on behalf of the en in Order to obtain a binding judgment confirming the advisory .. Ui This Strategy failed when the ICJ, in 1966, held that the two. applicany, 2 no legal interest in the matter,”° essentially on the ground that the dj between South Africa and the United Nations, Ong, States hag spute Was 1 Jurisdiction ; 1ese ly T those states which consent to the Court’s jurisdiction and only in Tespect of those disputes which such states consent to be heard by the Court. Consent, the basis of the Court's jurisdiction, may be given in a number Of ways which are provided for in article 36 of the Statute. This Provision reads: () The jurisdiction of the Court comprises all cases which the patties refer to it and all matters specially Provided for in the Charter of the United Nations or in treaties and conventions in force. (2) The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other states accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (@) the interpretation of a treaty; (b) any question of international law; (© the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the Teparation to be made for the breach of an international obligation. (3) The declarations referred to above may be made unconditionally or on Condition of reciprocity on the part of several or certain states, ot for a certain time. (4) Such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court. (5) Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptance of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms. (6) In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court 26 South West Africa, Second Phase 1966 IC] Reports 6, daa 27, Article 35. In proceedings brought by Serbia and Montenegro against NATO member st arising out of the Kosovo conflict, the IC} held that Serbia and Montenegro was not iar of the United Nations and, consequently, was not a state party to the Statute of the te time it initiated proceedings against NATO members. It followed that the Court ee to Serbia and Montenegro under article 35 of the Statute. See, for example Ca Legality of Use of Force (Serbia and Montenegro v Portugal) 2004 IC} Reports; (2005) 4 456: eal ms a ce INTERNATIONAL ADJUDICATION A distinction is drawn between the existence of the Court's jurisdiction over a dispute and the compatibility with international law of th of the dispute.”* Thus the fact that the Subject of the dis; of norms of jus cogens, ie acts which are the subject pute concerns the violation or of obligations erga omnes, does not confer jurisdiction on the Court. ‘Jurisdiction is always based on the consent of the parties’ said the Court in Armed Activities on the Territory of the Congo (DRC v Rwanda)29 Because much of the Court's jurisprudence is devoted to the interpretation of article 36, it is necessary to examine the various ways in which the Court may obtain jurisdiction. (a) Cases which parties refer to the Court (special agreement) The ICJ has jurisdiction over a dispute referred to it by states in a special agreement or compromis. For example, in 1996, Botswana and Namibia signed a special agreement requesting the Court to resolve a dispute between them concerning the boundary around Kasikili/Sedudu Island, and the legal status of the island.30 If one state unilaterally applies to the Court to hear a dispute, and the respondent state conducts itself in such a manner that an agreement to accept jurisdiction may be implied, the Court may exercise jurisdiction in terms of the doctrine of forum prorogatum. It was on this basis that the Court held that it had jurisdiction to hear a dispute between the United Kingdom and Albania, arising out of the sinking of British destroyers in the Corfu Channel in 1946. Here the Court inferred consent from an ill-considered letter to the registrar of the ICJ from the Albanian government in which it protested its innocence for the sinking of the destroyers and accepted the jurisdiction of the Court (which it later sought to withdraw) in response to a unilateral application by the United Kingdom.3! The refusal of Albania to comply with the adverse finding by the Court (ordering it to compensate the United Kingdom for the loss of the destroyers?) raised doubts about the wisdom of exercising jurisdiction on the ground of implied consent. Despite this, states continue to make unilateral applications to the Court with the hope that the respondent state will consent to the Court's jurisdiction. In 2008 the International Court exercised jurisdiction in a dispute between Djibouti and France that had been initiated by a unilateral application by Djibouti to which France had consented. Here the Court stated: ‘The Court has also interpreted Article 36, paragraph 1, of the Statute as enabling consent to be deduced from certain acts, thus accepting the possibility of forum prorogatum. This modality is applied when a respondent State has, through its 28 Serbia and Montenegro v United Kingdom 2004 1CJ Reports 1307, 1351, 29 2006 IC} Reports 6, 32 (para 64). 30. Kasikili/Sedudu Island Case 1999 IC) Reports 1045. 31 Corfu Channel Case, Preliminary Objection 1948 IC] Reports 15. 32. The IC]'s order was complied with in 1992! 457INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIV! conduct before the Court or in relation to the applicant party, acted in such g way as to have consented to the jurisdiction of the Court. (b) Cases provided for in treaties or conventions in force (compromissory clause) Frequently, bilateral or multilateral treaties contain a clause in which parties acce the Court’s jurisdiction for any dispute that might in the future arise Telating to the treaty in question. Such a clause is known as a compromissory clause. Jn, this respect article 37 of the Statute plays an important role as it provides that a Teference in a pre-1946 compromissory clause to the PCIJ shall be construed as a reference ig the ICJ. There are nearly 300 bilateral and multilateral treaties with compromisso clauses conferring jurisdiction on the ICJ and many of the cases brought before the Court have invoked such a clause as a basis for jurisdiction.*4 It was a compromissory clause that gave the IC] jurisdiction in the South Wey Africa Cases. Article 7(2) of the Mandate for South West Africa** provided that; The Mandatory [that is, South Africa] agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice. The claim of Ethiopia and Liberia, ex-members of the League of Nations, that there was a dispute between them and South Africa that could not be settled by negotiation, was upheld by the Court in 1962, when it found that it had jurisdiction, under article 7(2) of the Mandate and article 37 of the Statute, to hear the dispute involving the international status of South West Africa and the compatibility of apartheid with the provision in the Mandate obliging South Africa to ‘promote to the utmost’ the well-being of the inhabitants of the territory. In so ruling, the Court dismissed a number of preliminary objections raised by South Africa against the continued validity of article 7(2).36 (© Matters specially provided for in UN Charter Article 36(1) suggests that the Charter of the United Nations provides for compulsory jurisdiction in certain cases. In fact the only provision in the Charter on this subject is article 36(3), which authorizes the Security Council to recommend t0 states that legal disputes should be referred to the ICJ. In 1948 in the Corfu Channel 33 Certain Questions of Mutual Assistance in Criminal Matters (Djlbouti v France) 2008 IC} Repot's Para 61, See too the dispute between the Republic of Congo (Brazzaville) and France which also involved the doctrine of forum prorogatum: Certain Criminal Proceedings in France Cast 20 IC) Reports. 102; (2003) 42 ILM 852. See $ Yee ‘Forum prorogatum returns to the Internatio Court of Justice’ (2003) 16 Leiden Journal of International Law 701. 34 Pe for example, the US Diplomatic and Consular Staff in Tehran (Hos deeeats 3, Nicaragua v US 1984 ICJ Reports 392; La Grand (Germany v and Avena (Mexico v US) 2004 IC} Reports 12; (2004) 42 ILM 581 ied 35 peices ae pdenaty tock fhe form of a resolution of the League of Nations, It was a, ‘hav le character of a treaty or convention’ Jases, Prelit Objections 1962 IC] Reports 318 at 331), Tala ae MRE 36 Ibid. See too Dugard (n 18) at 243-60, 4s Case) 1980 10 ) 2001 1G} Repor® 458INTERNATIONAL ADJUDICATION Case Britain argued that such a recommendation of the Security Council conferred compulsory jurisdiction on the Court. Although the Court found it unnecessary to consider this argument (as it found that it had jurisdiction on the basis of forum prorogatum), seven judges submitted a joint separate opinion denying that such a recommendation could give the Court compulsory jurisdiction.” Although the Court itself has yet to decide on this issue, no further attempt has been made to establish the jurisdiction of the Court in this manner. (@ Optional clause Article 36(2) of the Statute, known as the ‘optional clause’, is the most important, and controversial, mechanism for conferring jurisdiction upon the Court. Essentially it represents a compromise between those states which favour compulsory jurisdiction and those which oppose it, as it allows states to ‘opt in’ for compulsory jurisdiction by accepting the compulsory jurisdiction of the Court in relation to any other state that likewise accepts such jurisdiction.2® During the League of Nations*? period and the first decade of the United Nations," (ie before the expansion of the membership of the United Nations) a substantial majority of states had made declarations under article 36(2) accepting the Court's compulsory jurisdiction. Since then the number of acceptances has greatly diminished and today a third of the states party to the Statute (66 in 2010) have made declarations under article 36(2).41 Equally disturbing is the fact that Britain is the only permanent member of the Security Council to have done so. South Africa made declarations of acceptance under the Statute of both the PCIJ‘? and the ICJ.43 In 196744 the South African declaration was withdrawn as the government feared that South Africa might be brought to Court over apartheid and no acceptance has since been made. It is difficult to understand why post-apartheid South Africa has failed to accept the compulsory jurisdiction of the ICJ. Its failure to do so may be construed as a lack of commitment to the rule of law in international relations. 37 Corfu Channel Case, Preliminary Objection 1948 IC] Reports 15 at 31-2. 38 In Cameroon v Nigeria (Preliminary Objections) the CJ described a declaration under article 36(2) as follows: ‘Any state party to the Statute, in adhering to the jurisdiction of the Court in accordance with article 36(2), accepts jurisdiction in its relations with states having previously adhered to that clause. At the same time, it makes a standing offer to the other states parties to the Statute which have not yet deposited a declaration of acceptance. The day one of those states accepts that offer by depositing in its turn its declaration of acceptance, the consensual bond is established and no further condition needs to be met’ (1998 IC} Reports 275, 291 para 25). 39. In 1934, 42 out of 60 states entitled to use the facilities of the Court had accepted compulsory jurisdiction ie 70 per cent. i 40. In 1955, 33 out of 60 states had made declarations under article 36(2) ie $5 per cent. 41 These declarations appear in the Yearbook of the International Court of Justice and on the website of the IC): http:/www.icj-cij.or8. : 42. South Africa made a declaration of acceptance in 1929 for a ten-year period and thereatter until notice of termination was given. In 1940 it was terminated and replaced with a new declaration, See further $ Pienaar South Africa and International Relations between the Two World Wars (1987) 25-9. 43 The 1940 declaration was allowed to remain in force until it way terminated and replaced with a new declaration in 1955. 44 595 UNTS 363 (1967); 1966-7 Yearbook of the International Court of Justice 44, 459The obvious explanation for the decline in the acceptances of the optional Clause is that, unlike the position that pertained under the League of Nations, all membe, states of the United Nations are automatically parties to the Court's Statute, whethe, they approve of the judicial settlement of disputes or not. Consequently a number of states which are ideologically opposed to international adjudication are parties to the Statute. Another reason that has been advanced for this decline is that the manner in which states attach reservations to their declarations of acceptance has effectively undermined the value of the system of compulsory jurisdiction.4° Article 36(3) contemplates that reservations may be made on grounds of reciprocity or time. The latter permits a state to limit its acceptance to a specified period. The former ensures that ‘jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it’,4° which ‘enables a Party to invoke a reservation to that acceptance, which it has not expressed in its own Declaration, but which the other Party has expressed in its Declaration’.” Thus, in the Norwegian Loans Case (France v Norway).!8 Norway, the respondent, successfully invoked a reservation excluding the Court's jurisdiction in domestic disputes as determined by France, contained in France's declaration of acceptance, against France (the applicant state), despite the fact that it had made no such reservation itself. States have gone beyond the limits of article 36(3) in the reservations attached to their declarations. A common reservation, which was contained in South Africa's 1940-1955 declaration, excludes ‘disputes with regard to questions which by international law fall exclusively within the jurisdiction’ of the reserving state. No real objection can be raised to such a reservation as it allows the Court, acting under article 36(6), to determine whether the dispute is domestic or not. Some states, inspired by the United States, have gone further and excluded domestic disputes as determined by the reserving state. Thus South Africa's 1955 Declaration under article 36(2) excluded from the compulsory jurisdiction of the Court: INTERNATIONAL LAW: A SOUTH AFRICAN disputes with regard to matters which are essentially within the jurisdiction of the Government of the Union of South Africa as determined by the Government of the Union of South Africa.5° The principal objection to such a reservation, known as the automatic reservation or Connally Amendment (named after the United States Senator responsible for proposing such a reservation), is that it violates article 36(6) by denying the 45 H Waldock ‘Decline of the optional clause’ (1955/6) 32 BYIL 244. See, too, $ Oda ‘Reservations in the Declarations of Acceptance of the Optional Clause’ (1988) 59 BYIL 1; JP Kelly ‘The IC}: Crisis and reformation’ (1987) 12 Yale Journal of International Law 342, Sed contra, See S Alexandrov ‘Accepting the compulsory jurisdiction of the International Court of Justice with reservations: An overview of practice with a focus on recent trends and cases’ (2001) 14 Leiden Journal of International Law 89; Zimmermann et al The Statute of the IC] (@ 10) 632- 46. Anglo-Iranian Oil Co Case (Jurisdiction) (UK v Iran) 1952 IC} Reports 93 at 103. 47 Interhandel Case (Switzerland y USA) 1959 IC} Reports 6 at 23. 48 1957 ICJ Reports 9 at 23-7. 49 1946-7 Yearbook of the International Court of Justice 215. 1955-6 Yearbook of the International Court of Justice 184. 460INTERNATIONAL ADJUDICATION competence of the Court to make such a determination. Despite a number of strong individual judicial opinions, particularly b y Judge Lauterpacht,5! holding that such reservations are invalid, the Court has failed to make such a finding.*? Its decision in the Norwegian Loans Case, however, has discouraged states from persisting with such reservations. If a state that does not include an ‘automatic reservation’ in its declaration may nevertheless tely on such a reservation in the applicant's declaration because of the Principle of teciprocity, it follows that a state with an automatic reservation will seldom be able to bring proceedings against another state.5$ Consequently, most states which maintained such reservations have terminated their declarations of acceptance of the Court's jurisdiction. South Africa did so in 1967, while the United St: ‘ates withdrew its declaration of acceptance in 1985,°4 after the ICJ had exercised jurisdiction over the claims of Nicaragua against the United States arising out of the latter's support for covert military groups (the Contras) operating against the Nicaraguan government.5> Areservation to a declaration under article 36(2) may be contrary to international Jaw. Thus, in a dispute between Spain and Canada over the arrest of a Spanish fishing vessel on the high seas, the ICJ upheld the validity of a Canadian reservation excluding from the Court's compulsory jurisdiction, disputes over measures taken by Canada against foreign fishing vessels on the high seas. The ICJ stated that there is no rule which requires ‘that reservations be interpreted so as to cover only acts compatible with international law . .. this is to confuse the legality of the acts with consent to jurisdiction’S® The ICJ has acknowledged that a declaration under the optional clause constitutes a standing offer by a state to other states that have not yet made such a declaration to do so and to seize the jurisdiction of the Court in Tespect of that state.57 As article 36(2) does not require that a period of time must elapse between the deposit of a declaration and the filing of an application, a state may deposit a declaration, immediately file an application against a state that has accepted the optional clause, and then, soon afterwards, terminate its declaration. ‘Trial by ambush’, as Norwegian Loans Case 1957 IC] Reports 9 at 34; Interhandel Case 1959 IC} Reports 6 at 95, See, 00, the separate opinions of Judges Spender (at 54), Klaested (at 75), and Atmand-Ugon (at 8s) in the Interhandel Case. The majority of the Court in the Norwegian Loans Case by implication upheld the validity of the French automatic reservation by allowing Norway to rely on it: 1987 IC} Reports at 2 This is illustrated by the Aerial Incident of July 27, 1955 1960 IC) Reports 146, in which the United States was compelled to abandon a claim against Bulgaria arising out of the shooting down of an EI Al aircraft, with US nationals on board, over Bulgarian territory when Bulgari invoked the United States’ automatic reservation on domestic jurisdiction, 54 (1986) 80 AJIL 163-5. 5S 53 The United States did not invoke its automatic reservation in this case because the issue— support for military groups in Nicaragua—could not possibly have been deser The United States did, however, raise objections to the validity of Nicaragua's declaration under article 36(2), and it was the Court's rejection of this argument that prompted the United States to withdraw its declaration. Nicaragua Case, Jurisdiction and Admissibility Lose IC) Reports 392. 56. Fisheries Jurisdiction Case 1998 IC) Reports 432 para 79, $7 Supra (n 38). 461 ip,INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE this practice is known, has, unfortunately, been allowed by the ICJ.** 4 state th, accepts the optional clause may, however, protect itself against such a Strategy j, requiring in a reservation, as Britain has done, that the declaration of the gy, party should be deposited no less than a year prior to the filing of an application $ (© Third parties Strict adherence to the principle of consent to the jurisdiction of the Court has resulted in the ICJ’s refusing to pronounce on a dispute between two states which will affect the rights of a third state not party to the proceedings. In the fay Timor Case® there was a dispute between Portugal and Australia about Australia exploitation of the continental shelf of the ‘Timor Gap’, which lies between Australia and East Timor, an island within the Indonesian archipelago. In a treaty of co-operation with Indonesia over the exploitation of the continental shelf of the Gap, Australia had recognized Indonesia's jurisdiction over East Timor, a former Portuguese colony forcibly annexed by Indonesia. When the dispute came before the ICJ, the Court held that it could not pronounce on Australia’s recognition of Indonesia’s jurisdiction on the ground that this would require a ruling on the lawfulness of Indonesia's occupation of East Timor. Indonesia was not a party to the proceedings before the Court. Portugal’s argument, that an obligation erga omnes— the right to self-determination—was involved, and that this took precedence over strict observance of the requirement of consent, was dismissed by the Court. The Court held: Whatever the nature of the obligation involved, the Court could not rule on the lawfulness of the conduct of a state when its judgment would imply an evaluation of the lawfulness of the conduct of another state which is not a party to the case. Where this is so, the Court cannot act, even if the right in question is a right erga omnes.®! Article 62 of the Court’s Statute permits a state that considers that ‘it has an interest of a legal nature which may be affected by the decision in the case’ between two other states, to request that it be allowed to intervene in the proceedings. In practice the Court has adopted a strict approach to the granting of intervention to third parties. In 1990 the Court permitted Nicaragua to intervene in a dispule between Honduras and El Salvador over the legal regime of the waters of the Gull of Fonseca. 58 Right of Passage over Indian Territory, Preliminary Objections (Portugal v India) 1957 1C} Repoets 125 at 146-7; Land and Maritime Boundary (Cameroon v Nigeria), Preliminary Objections, 19°S ICJ Reports 275, 291 (para 25), 295 (para 34) and 297 (para 39). 59. See Alexandrov (n 45) 108, 60 1995 ICJ Reports 90. 61 Ibid at 102. The ICJ reached this decision on the basis of its earlier decision in the Cast Monetary Gold Removed from Rome in 1943 (Preliminary Question) 1954 IC} Reports 19. FO! criticism of the Court's judgment in East Timor, see | Dugard ‘1966 and all that: Th uit West Africa judgment revisited in the East Timor Case’ (1996) 8 African Journal of Internation and Comparative Law 549. Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) (Nicarasa? Application for Permission to Intervene) 1990 IC} Reports 92. This was confirmed in Land 4” Maritime Boundary (Cameroon v Nigeria) 1999 IC} Reports 1029. 62 462ae INTERNATIONAL ADJUDICATION 2 Admissibility Preliminary objections® that suspend a hearing on the merits are of two kinds first, pleas to jurisdiction in which the respondent disputes the competence of the Court to hear the case, principally on the ground of some fault in the instrument of consent; secondly, pleas to admissibility in which the respondent objects to the claim on the basis of some defect in the applicant’s claim or standing that is unrelated to the competence of the Court. Examples of such pleas are the failure to exhaust local remedies, absence of a legal interest in the issue, and a defective nationality where the applicant state seeks to protect a national.®+ Both types of pleas are generally raised as ‘preliminary objections’ with no clear attempt made to distinguish between the two. However, after the Court has satisfied itself that it has jurisdiction or competence to hear the dispute it may either dispose of the pleas of admissibility at the preliminary stage or join them to the issues to be considered at the hearing on the merits. Normally the Court will indicate clearly its decision to defer a finding touching on admissibility to the hearing on the merits. The controversy surrounding the decision of the ICJ in the South West Africa Cases of 1966 essentially involved the question of the categorization of one of South Africa's preliminary objections. In 1962, at the commencement of the proceedings in the South West Africa Cases, South Africa raised several preliminary objections to the claims of Ethiopia and Liberia arising out of the Mandate for South West Africa. Some, which concerned the interpretation of article 7(2) of the Mandate and the competence of the Court to hear the dispute, were clearly pleas to jurisdiction. The third objection, that the dispute did not affect the material interests of the applicants or their nationals, was dismissed by the Court in 1962,67 without any attempt to categorize it as a plea to jurisdiction or to admissibility. Although this objection certainly had features of admissibility and could have been deferred to the hearing on the merits, the Court declined to do so and rejected it. In 1966, after the Court had heard lengthy argument on the merits of the case—ie on the status of South West Africa and the compatibility of apartheid with the Mandate agreement—it returned to this preliminary issue and, without pronouncing on the merits of the case at all, held that the applicant states had failed to establish any legal interest in the subject matter of their claims.® It accordingly dismissed the claims which, in both legal and political terms, constituted a major victory for the apartheid state. The extraordinary reversal of the 1962 judgment can only be explained by changes in the composition of the Court, which saw the thin majority of eight to seven of 196279 disappear as a result of the death, recusal, and illness of three judges believed to be well disposed to the applicants.’! This transformed the 63. See J Dugard ‘South West Africa Cases, second phase 1966' (1966) 83 SAL) 429 at 438-47; and Dugard (n 18) at 335-42; See further, Zimmermann et al The Statute of the IC] (n 10) 648 64. See Nottebohm Case (Second Phase) 1955 IC} Reports 4. Above, Chapter 13. 65 Barcelona Traction Case (Preliminary Objections) (Belgium v Spain) 1964 IC} Reports 6 at 43-2. 66 Above, nn 35-6. 67 South West Africa Cases, Preliminary Objections 1962 IC) Reports 328 at 343. 68 South West Africa Cases, Second Phase 1966 IC} Reports 6, 51; Dugara (n 18) at 293-325, 69 See Dugard (n 18) at 376. 70 Ibid 243. 71 Ibid 291-2. 463INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE minority of 1962 into an eight-to-seven majority in 1966, consisting of th seven judges and the additional casting vote of the President, Sir Percy spect Ausaalial The new majority, in effect, reversed the 1962. finding on thelial the applicants, which most students of the Court believed had been finalh a feiigeo.72 This decision which undoubtedly bought time for the policy oteyaamaal seriously undermined the reputation of the Court, as the unwarranted aa the Court's earlier judgment was construed by developing states as a colonials z racist act. Although the 1971 Namibia Opinion”’ went some way towards ree the reputation of the Court in the eyes of developing states, it was not until Court ruled in favour of Nicaragua’# against the United States some 20 years rc that the judgment in the 1966 South West Africa Cases was at last forgotten. 4 3 Proceedings’> The proceedings before the Court, which are governed by the Statute” and Rules adopted by the Court,77 broadly resemble the proceedings before municipal courts, There are written and oral proceedings, but judges intervene less than do common-law judges in the oral hearings. On site visits are possible but rare. The burden of proof lies on the party seeking to establish a fact.’6 Although evidence is usually documentary, it is possible for parties to call witnesses. Indeed in the South West Africa Cases South Africa called 14 expert witnesses to testify on the ‘positive’ features of apartheid. In recent years the Court has been called upon to resolve disputes with complex factual issues—such as the dispute between the DRC and Uganda over armed activities in the Congo;79 and that between Bosnia and Serbia over whether Serbia was responsible for acts of genocide committed against Bosnians.®° Serious misgivings have been raised about the manner in which the Court has approached its fact-finding role and about whether it is institutionally equipped to deal with such matters. In the Genocide Case (Bosnia v Serbia) the Court was criticized for both the methods it employed in fact-finding and for its failure to compel Serbia to disclose important evidence in its possession.*! English and French are the Court’s two official languages. 32. See Dugard (n 18) at 332-74 for a selection of academic writings on this subject 73. 1971 ICJ Reports 16, discussed below. 74 Case Concerning Military and Paramilitary Activities in and Against Nicaragua 1986 ICJ Reports 14 75. See S Rosenne (n 10). For a criticism of the IC)'s practices and procedures, see Dw Bowett ea! ‘The International Court of Justice: efficiency of procedures and working methods’ (1996) #8 ICLQ Supplement. 76 Articles 39-64. oy Interms of article 30 of the Statute, The rules appear as Appendix 2 in Zimmerman? etal Statute of the ICJ supra (n 10). 38 Nicaragua Case 1984 IC] Reports 437 para 101. In the Genocide Case (Bosnia v Serbia) Reports 43 at 129 para 209 the Court required a higher standard of proof in cases 1" charges of exceptional gravity. Here the evidence must be ‘fully conclusive’ 79 2005 IC] Reports 168. 80 2007 IC] Reports 43. jude 81 See Genocide Case (Bosnia v Serbia) 2007 IC} Reports 43, 127-37; dissenting opinion OH om ‘AL-Khasawneh ibid 241, 254-5; RJ Goldstone and RJ Hamilton ‘Bosnia v Serbia: Lessons the encounter of the ICJ with the ICTY’ (2008) 21 Leiden Journal of International Law °° The 2007 Ic) avolvingi? INTERNATIONAL ADJUDICATION ‘All questions are decided by a majorit osite majority judgment containin, eid judges are permitted to subi In opinions. Y of judges present. The Court delivers a 8 the names of those judges who endorse it. mit either concurring or dissenting separate 4 Non-appearance In a number of controversial cases, the defe Court. France refused to appear in Court when its nuclear tests programme in the south Pacific was challenged by Australia and New Zealand in 1974;82 [ran adopted a similar approach in respect of the United States’ claim for the release of hostages in Iran in 1980;8% and the United States itself withdrew from proceedings in the Nicaragua Case®4 after the Court had ruled that it had jurisdiction. In such a case, the Court may decide in favour of the plaintiff State, after it has satisfied itself that it has jurisdiction and that the claim is well-founded in fact and law.85 ndant state has refused to appear in 5 Judgment and its enforcement Pending its final judgment, the Court may ‘indicate, so require, any provisional measures which ou; respective rights of either party’.85In deciding whe the Court does not have to be satisfied that it has jurisdiction to hear the case: it is sufficient if there is a prima facie basis for the exercise of jurisdiction.8? Before 2001, there was no certainty as to whether an order for provisional measures was legally binding. Certainly, states behaved as if such orders were not legally binding, as there were many instances in which states refused to carry out provisional measures.88 In 2001, in the La Grand Case, the Court finally held that provisional measures are legally binding.* Although this decision is to be welcomed, it provides a new incentive to states ‘to commence proceedings on a shaky jurisdictional foundation in the hope of getting at least the short-term benefit of an order for provisional Measures, and this is all the more attractive if the order is immediately binding’.9° This requires the Court to adopt a strict approach to ‘shaky jurisdictional arguments’ ee 82 Nuclear Tests Cases 1974 ICJ Reports 253. 83, US Diplomatic and Consular Staff in Tehran 1980 IC} Reports 3. 84 Nicaragua v US (Merits) 1986 ICJ Reports 14. 85. See article $3 of the Court's Statute. 86 Article 41. For the principles to be applied in such cases, see the Application of the Genocide Convention Case 1993 ICJ Reports 3. See, further, on this case, A Wiebalck ‘Genocide in Bosnia and Herzegovina? Exploring the parameters of interim measures of protection at the Icy’ (1995) 28 CILSA 83. Legality of the Use of Force (Yugoslavia v Belgium) Provisional Measures 1999 IC} Reports 132 21), if it considers the circumstances ight to be taken to preserve the ‘ther to grant provisional measures, 8) (para Interim measures were not complied with in the Nuclear Tests Cases (Interim Protection) Australia and New Zealand v France) 1973 ICJ Reports 99, 135; US Diplomatic and Consul, Staff in Tehran Case (US v Iran) 1979 1CJ Reports 7; and the Nicaragua Case (Nicaragua v US), Povisional Measures 1984 ICJ Reports 169. J Setucki Interim Measures in the Hague Court (1983 JG Merrills ‘Interim measures of protection in the recent jurisprudence of the Internation’ Court of Justice’ (1995) 44 ICLQ 90. La Grand (Germany v US) 2001 IC} Reports 32-41 (particularly para 102), 1 Thirlway ‘The International Court of Justice’ in M Evans (ed) International Law (2008) S86, 8 465INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIV in requests for provisional measures, Where there is no reasonable PoOssibilit the applicant state will establish jurisdiction in future, the Court Should st Case from its roll in order to discourage futile requests for provisional me, The final judgment of the Court, which may take the form of a declarato, judgment, reparation, assurances of non-repetition or other forms of Satisfaction is binding. 3 at TIKe the ASUres 9) Although no appeal is allowed, provision is made for the revision of a iudgmen, if decisive new facts later become available. Article 94 of the Charter empower, the Security Council to enforce the judgment in the event of non-compliance presumably by economic sanctions in the final resort. This power is subject to the veto of the permanent members, which explains why in thi e few instances of non. compliance no decision on enforcement has been sought from the Security Counciy These has been a high level of compliance with decisions of the ICJ,95 there are notable exceptions: the Corfu Channel Case°® in which the j debt of 1949 was only paid in 1992; the Hostages Case; immediately to release American diplomats held hostag, which the United States was found to have unlawfully used force against Nicaragua; the La Grand Case, in which the United States failed to provide foreign prisoners in US gaols with consular assistance; and the Avena Case,! in which the United States failed to prevent the execution of a Mexican national by the State of Texas in defiance of the Court’s decision.!°! In recent years the ICJ has been busier than ever and has heard more cases of high political importance than previously. In these circumstances one might have expected non-compliance to increase. But the contrary is true. Even judgments in controversial land claims cases—such as those although judgment °7 in which Iran refused e; the Nicaragua Case,% in or See the author's separate opinion in the Case Concerning Armed Activities on the Territory of the Congo (DRC v Rwanda) 2002,1CJ Reports at 265; (2002) 41 ILM 1175 at 1204, See, too, the Ssbarate opinion of Judge Buergenthal ibid 1201 (para 9) and the note by Chester Brown in (2003) 52 1CLQ 782. 92 See Chapter 13. 93 Articles 59 of the Statute and 94(1) of the Charter, 94 Articles 60-1 of the Statute. See Land, Island and Maritime Frontier Dispute (Application for Revision) El Salvador/Honduras 2003 IC} Reports 392, 9 See J Charney ‘Disputes implicating the institutional credibility of the Court problems of non-appearance, non-participation, and non-performance’ in L Damrosch (ed) The International Court of Justice at a Crossroads (1987) 288; C Paulson ‘Compliance with final judgments of the International Court of Justice since 1987’ (2004) 98 AJIL 434 96 1949 ICJ Reports 4, 244. 97, US Diplomatic and Consular Staff in Tehran 1980 IC} Reports 7, 98 1986 ICJ Reports 14, 99 2001 ICJ Reports 466. See Paulson (n 95) 443-8 100 2004 IC} Reports 12, Roneerasteiz ts anternational Court held that Mekicai nationals sentenced to deatti Were Entitled to have their convictions and sentences reviewed. In Medellin y Teas 128 § Ct LH® the US Supreme Court accepted that the United States was under international law obliged to comply with the International Court's decision but that this ob gation did not constitute federal law binding on US State courts. In 2008 Texas executed Mece tng. 466INTERNATIONAL ADJUDICATION petween Libya and Chadi02 and Cameroon and Nigeria!9}—have largely been followed. The explanation for the high level of compliance can be explained by the consensual nature of the Court 8 jurisdiction. States generally only consent to the Court's jurisdiction in cases in which they are Prepared to accept the Court’s decision. A good example of this is the recent boundary dispute between Namibia and Botswana over Kasikili/Sedudu Island,104 The dispute was referred to the Court by special agreement and, although Namibia did not hide its disappointment over the adverse decision, it did not hesitate to comply with the Court's decision 195 The isolated cases of non-compliance have not affected the popularity of the ICJ as an institution for the settlement of disputes. Whereas in the early years of the Court, it was predominantly used for the settlement of disputes between European states, it is today most frequently used by non-European states, 6 The limits of international adjudication!06 International adjudication is of relativel aes ly recent origin. Many states still refuse to accept adjudication as a method for resolving disputes between states, while those that do, are mostly opposed to the extension of the Court’s compulsory jurisdiction. In some quarters, the view that legal disputes with serious political implications affecting the ‘vital interests’ of states are not appropriate for judicial resolution prevails—they are non-justiciable. Thus, in 1984, in the Nicaragua Case, the United States argued that issues relating to the use of force should be dealt with by the political organs of the United Nations and not by the Court” This view is contradicted by the increased use of the ICJ to pronounce on highly political disputes—such as the NATO bombing of Yugoslavia;!8 the military intervention of Uganda’? and Rwanda! in the Democratic Republic of the Congo; allegations of genocide against Serbia;!"!and Russia’s intervention in Georgia.112 No court, municipal or international, can avoid pronouncing on a legal dispute simply because it has political implications. The International Court was correct, therefore, when it dismissed the United States’ arguments of non-justiciability in the 102 Territorial Dispute 1994 IC) Reports 6, Paulson (n 95). 103 Land and Maritime Boundary between Cameroon and Nigeria 2002 CJ Reports 303; Paulson (a 95) 449-54. 104 1999 IC] Reports 1045. 105 Paulson (n 95) 455. ur ae ane 106 R Hi ‘Policy considerations and the international judicial process’ ( 17 ICLQ 88; L Gree: "Underutiligation of the IC)’ (1986) 27 Harvard Journal of International Law S7\y A Rogoff ‘International politics and the rule of law: the US and the ICJ’ (1989) 7 Boston University: International Law Journal 267. * 107 1984 ICJ Reports 392 at 432-8. 108 Case Concerning the Legality of the Use of Force 2004 IC} Reports; (2005) 44 ILM 299, 109 Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda) 2005 IC} Reports 168. ae 110 Case Concerning Armed Activities on the Territory of the Congo, Preliminary Objections (ORC y Rwanda) 2006 IC} Reports 6. eg fr 11 Case Concerning the Application of the Convention on Genocide (Bosnia 4B eat ional Convention ” mination U2 Application of the International C eration) 2008 IC} Reports 353, and 2011 1c} Reporte, Provisional Measures (Georgia v Russian Fed bia) 2007 IC} Reports on the Elimination of All Forms of Racial Dis: 467INTERNATIONAL LAW: A SOUTH AFRICAN PERS! Nicaragua Case.!!3 On the other hand, courts are inevitably sensitive to the politica) realities surrounding a dispute and this may prompt them to avoid pronouncing on the merits of a politically contentious dispute by upholding the respondent state’s preliminary objections. The International Court chose this escape route in 1966 in the South West Africa Cases,! in 1974 in the Nuclear Tests Cases,!'® in which Australia and New Zealand sought to restrain France from conducting nuclear tests in the South Pacific, and again in 1995 in the East Timor Case,1!6 in which Portugal challenged the lawfulness of Indonesia’s occupation of East Timor. However, it refused to adopt this course in the Nicaragua Case in 1986; and found that the United States had violated international law by attacking Nicaraguan territory and by giving military support to rebels operating against the government of Nicaragua!” Not surprisingly the judgments in the South West Africa Cases, the Nuclear Tests Cases and East Timor were criticized for showing too much caution, while the judgment in the Nicaragua Case was condemned for displaying too little caution. The International Court faces the same challenge as any other court. If it is to survive as a judicial institution, it must temper courage with caution. On the other hand, if it is to maintain its credibility, it must on occasion be bold, even at the expense of the major powers. ADVISORY OPINIONS!'® The Charter!!? and the Statute!2° authorize the Court to give advisory opinions at the request of the General Assembly, the Security Council, and other organs of the United Nations and specialized agencies that have been so authorized by the General Assembly.!! The Secretary-General has not been empowered to request an advisory opinion. Neither states nor individuals may request an opinion. The Court will refuse to give an opinion if answering the question put to it would amount to deciding a dispute between states, as this would undermine the requirement of consent to adjudication. Thus in the Status of Eastern Carelia Case,!? the PCIJ refused to give an opinion in a dispute between Finland and Russia over the status of Eastern Carelia at a time when Russia was not a member of the League 113 1984 IC] Reports 392. See the writings on the decision in (1985) 79 AJIL at 373-404; 652-63, 992-1004; (1986) 80 AIL 128-34 114 Dugard (n 18) at 374-5. lus 1974 ICJ Reports 253; J Dugard ‘The Nuclear Tests Cases and the South West Africa Cas realism about the International Judicial Decision’ (1976) 16 Virginia Journal of International Law 463, especially at 485-9. 116 1995 ICJ Reports 90. 117 1986 ICJ Reports 14. For a discussion of this decision, see (1987) 81 AJIL 1-183. is See generally on this subject, K Keith The Extent of the Advisory Jurisdiction ofthe International Court of Justice (1971); M Pomerance The Advisory Function of the International Court in the League and UN Eras (1973). Zimmermann et al Statute of the IC] (n 10) 1401; } Dugard ‘Advisory opinions and the Secretary-General with special reference to the 2004 Advisory Opinion 0” the Wall’ in L Boisson de Chazournes and M Kohen (eds) International Law and the Quest for its Implementation Liber Amicorum Vera Gowlland-Debbas (2010) 403. 119 Article 96. 120 Article 65. 121 At present, 22 international bodies are entitled to request advisory opinions. 22. PCIJ Reports Series B No 5 (1923). ome 468eee RIN reine INTERNATIONAL ADJUDICATION | Nations. The ICJ has distinguished this case in several opinions,'?* including ee 1971 Namibia Opinion,!4 in which the Security Council asked the Court for an ie jon on ‘the legal consequences for states of the continued presence of South Frca in Namibia’. In deciding to give an opinion, the Court held. feat that, unlike Fie South Africa was a member of the body requesting the opinion (the United Nations) and had participated in the Court's Proceedings; and, secondly, that the purpose of the request was not to settle a dispute between States, but to assist the United Nations in respect of its own decisions on Namibia,!25 The Court will not give an opinion at the tequest of a specialized agency unless it relates to the activities of the agency. Thus, the Court refused to give an advisory opinion to the World Health Organization on the le; gality of nuclear weapons.!2° ‘The Court did, however, give an opinion to the General Assembly on this subject, dismissing suggestions that it would go beyond its judicial role in giving its opinion ‘on so controversial a topic.!27 Although an advisory opinion is given by the same Court that gives judgment in contentious proceedings, and it therefore commands the same judicial authority, it isnot binding, and consequently is not enforceable under article 94 of the Charter. This does not mean that it is without legal consequences. In practice, advisory opinions requested by the General Assembly and Security Council are approved by the political organ requesting the opinion, and thus should become the law that guides the United Nations.!28 The history of the South West Africa (Namibia) dispute before the United Nations illustrates how an advisory opinion may achieve such a Purpose. On the other hand, the treatment of the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory'° raises serious doubts about the influence an advisory opinion may have upon the political process in the United Nations. In 1950, the International Court gave an advisory opinion on the International Status of South-West Africa’? at the request of the General Assembly, in which it tejected South Africa's claim that the Mandate for South West Africa had lapsed on the demise of the League of Nations, and held that the Mandate continued in force, and that South Africa was obliged to account to the United Nations for its administration of the territory. This opinion was endorsed by two further Opinions, dealing with the manner in whi ich the United Nations might exercise its Supervisory role. In 1955, the Court held that the General Assembly, in exercising its Supervisory role over South West Africa, was not required to follow the unanimity ental ain 125 Interpretation of Peace Treaties Case 1950 ICJ Reports 65 at 71; Western Sahara Case 1975 Ic} Reports 12 at 23-9; Legal Consequences of the Construction of a Wall in the Occ upied Palestinian Territory 2004 IC] Reports paras 46-50. 124 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) 1971 1C) Reports 16; Dugard (n 18) at 446-84, 128 1971 IC] Reports 16 at 23-4 126 Legality of the Use by a State of Nuclear Weapons in Armes 127 Legality of the Threat or Use of Nuclear Weapons 1996 128 See the separate opinion of Judge Lauterpacht in Admissibility Of Hearings of Petitioners dy: the Committee on South West Africa 1956 IG} Repotts 23 at 40-7, 129 2004 Ic} Reports 136, 15 1950 IcJ Reports 128; Dugard (n 18) at 131-56, 'd Conflict 1996 IC} Reports 66. IC} Reports 228, para 18. 469z voting rule of the League of Nations when it adopted resolutions, but might insteg apply the two-thirds majority voting rule laid down in the Charter of the Une Nations.!3! In 1956, it held that in order to obtain information on South Africa’ administration of South West Africa, the General Assembly’s Committee on South West Africa might grant oral hearings to petitioners!”—a practice not followed by the supervisory body of the League of Nations. These opinions were approved by the General Assembly, but rejected by South Africa—not because they were merely advisory, but on the ground that, in 1950, the Court had failed to consider certain information concerning debates in tha League of Nations in 1946 over the future of mandated territories.!33 This deceptive argument, which was simply a pretext for refusing to comply with the advisory opinions, led to a confrontation with the United Nations which finally turned to contentious proceedings through two nominee states—Ethiopia and Liberia—in order to secure a binding judgment enforceable under article 94 of the Charter. When the Court put an end to this strategy in 1966, by finding that the applicant states lacked the necessary interest in their claims, the United Nations returned to the advisory opinion route. In 1971, the Court gave an opinion at the request of the Security Council in which it held that the Mandate for South West Africa had been lawfully terminated by the United Nations, that South Africa’s presence in Namibia (as South West Africa became known in 1968) was illegal, and that South Africa was obliged to withdraw its administration from Namibia immediately.!54 This opinion was repudiated by South Africa,!35 but approved by the Security Council.!8¢ As such, it became the basic law of the United Nations on Namibia, culminating in Security Council Resolution 435 (1978) which provided for the establishment of the United Nations Transition Assistance Group (UNTAG) to implement the independence of Namibia ‘through free and fair elections under the supervision and control of the United Nations’. In 1990, full effect was given to the 1971 Namibia Opinion when South Africa withdrew its administration and Namibia became independent.!5” The fact that the 1971 Advisory Opinion had been requested by the Security Council, and not the General Assembly, was probably the crucial factor in its enforcement. Although the Security Council could not compel South Africa to comply with the Opinion in terms of article 94 of the UN Charter, it succeeded in securing its enforcement, albeit 20 years later, by means of action under its general powers in the Charter. In 2004, the ICJ gave an advisory opinion at the request of the General Assemb! Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE 131 Voting Procedure Case 1955 IC} Reports 67; Dugard (n 18) at 176-91. 132 Admissibility of Hearings of Petitioners by the Committee on South West Africa 1956 1C] Repet's 23; Dugard (n 18) at 191-7. 133 See Dugard (n 18) at 164-6, 134 Supra (n 124) 135 Prime Minister BJ Vorster dismissed the Court's opini i ased: Dugard (1 18) pace pinion as politically biased: Dug 136 Resolution 301 of 1971; Dugard (n 18) at S02. ise pane on Namibian independence (1989-90) 15 SAYIL 1-166; 1989 Annual Survey 138 2004 ICJ Reports 136; (2004) 43 ILM 1009. Agh,INTERNATIONAL ADJUDICATION __ which it held that the wall or barrier being built by Israel, the occupying power, ip te occupied Palestinian Territory, is contrary to international law; that Israel in Wider an obligation to cease forthwith the construction of the wall and to * smantle sections of the wall that had already been built; that Israel is under an pafeaion to make reparation for all damage caused by the construction of the wall; that all states are obliged to withhold recognition of the illegal situation resulting from the construction of the wall; and that the United Nations ‘should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall’.'5? In the Wall Opinion the ICJ also pronounced on a number of other legal issues. It found that the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949, is applicable to the occupation of Palestine;!° that, as a consequence, Israeli settlements in the Palestinian territory are unlawful;!4! and that Israel is obliged to comply with international human rights conventions to which it is a party, in its treatment of the people of Palestine.!4? Not unexpectedly, the opinion has been subjected to serious criticism.143 Although the Wall Opinion has been accepted by the General Assembly,’ it has not been approved by the Security Council, largely because of opposition to it on the part of the United States. This has resulted in the Opinion being ignored by the Security Council, the Secretary-General and, in effect, by the General Assembly.!45 Moreover it has been completely overlooked by the Quartet, comprising the United Nations, European Union, United States and Russian Federation, which is the body the Security Council has mandated to further the peace process in the region. This tesponse has undermined the authority of the International Court and brought into question the importance of advisory opinions as a guide to United Nations political decision-making. The 2010 Advisory Opinion on Kosovo" has done little to reinstate the importance of advisory opinions. By restricting its Opinion to the question whether Kosovo’s unilateral declaration of independence had violated international law and by avoiding an examination of the consequences of Kosovo's unilateral declaration of independence—particularly the question whether international law Tecognizes secession—the Court gave an opinion that will probably prove to be of little value. It is not unlikely that the Court has learned from the response to the Betis 14, 139 Ibid para 163. 140 Ibid paras 90-101, 141 Ibid para 120. M2 Thid paras 102-13, 1% Tor a critical examination of the Opinion, see ‘Agora: IC} Advisory Opinion on Construction of (Wall in the Occupied Palestinian Territory’ (2005) 99 AJIL 1-141. M Cowling “The relationship between the Security Council and the General Assembly with particular reference to the IC} Advisory Opinion in the “Israeli Wall” Case’ (2005) 30 SAYIL $0; A Mangu ‘Legal consequences of the construction by Israel of a Wall in the OPT: South Africa's contribution to the Advisory Opinion of the ICJ’ (2005) 20 SA Public Law 86, 144 ES-10/15 (2 August 2004). M45 See Dugard (n 118). 146 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo 2010 IC} Reports. 471a Wall Opinion that it is unwise to pronounce on a contested issue of internat; unless absolutely necessary.!47 INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE lonal lay APPENDIX: NAMIBIA (SOUTH WEST AFRICA): A BRIEF LEGAL CHRONOLOGY 1884 Germany declares a protectorate over South West Africa. 1915 South Africa invades and occupies German South West Africa. 1920 South West Africa entrusted to South Africa by the League of Nations terms of the Mandate for South West Africa. a 1946 League of Nations dissolved. 1949 South Africa refuses to account to the United Nations on its administration of South West Africa. 1950 ICJ delivers advisory opinion on the International Status of South Wes Africa 1950 ICJ Reports 128, holding that the Mandate continues in force and that South Africa is obliged to account to the United Nations on its administration of the territory. 1955 ICJ delivers advisory opinion on the Voting Procedure to be followed by General Assembly in matters affecting South West Africa, 1955 IC] Reports 67. 1956 CJ delivers advisory opinion on the Admissibility of Hearings of Petitioners by the Committee on South West Africa 1956 ICJ Reports 23. 1960 Ethiopia and Liberia institute legal proceedings against South Africa in which they ask the IC] to find that the Mandate for South West Africa remains in force, that South Africa is obliged to account to the United Nations on its administration of the territory, and that the policy of apartheid violates the Mandate. 1962 South Africa’s preliminary objections to the jurisdiction of the IC] and the admissibility of the applicants’ claims are dismissed by Court: South West Africa Cases, Preliminary Objections 1962 ICJ Reports 318. 1966 ICJ refuses to pronounce on the merits of the applicants’ claims on the ground that the applicants have no legal interest in the subject matter of their claims: South West Africa, Second Phase 1966 ICJ Reports 6. 1966 General Assembly of the United Nations revokes the Mandate for South West Africa in Resolution 2145 (XXI). 1968 General Assembly changes the name of South West Africa to Namibia. 1970 Security Council Resolution 276 declares South Africa to be in illegal occupation of Namibia. 4971 CJ delivers advisory opinion on the Legal Consequences for States 4 the Continued Presence of South Africa in Namibia (South West Africa notwithstanding Security Council Resolution 276 (1970) 1971 IC) Reports 16, nm which it finds that South Africa is in illegal occupation of Namibia and Is obliged to withdraw its administration immediately. 2 ‘U7 In the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion 1996 IC) Repor 2 the Court avoided pronouncing on the legality or illegality of the use of nuclear weapons ite! state ‘in an extreme circumstance of self-defence, in which its very survival would be a a on (para 105). See GN Barrie and K Reddy ‘The International Court of Justice's Advisory P| on the Threat or Use of Nuclear Weapons’ (1998) 115 SAL] 457. Y 472 ig g