THE LAW AND POLICY OF INTERNATIONAL COURTS
PROFESSOR CHRISTINE CHINKIN, LSE
PROFESSOR PHILIPPE SANDS
PART 2: TERMS 2 AND 3
This Part of the course will consider the role and functioning of international courts and tribunals.İ It will first address various institutional aspects:İ the appointment and role of adjudicators; the role of the registry or secretarial; participants (and non-participants) in proceedings and their representation; applicable law; issues of access, including jurisdiction (contentious and advisory), standing and admissibility; financing of international courts and tribunals and of proceedings before them. Part 2 also addresses various procedural aspects: third party participation, including intervention; preparation and filing of written pleadings and the role of oral argument; provisional measures; evidentiary rules and principles; the powers of the various courts and tribunals; remedies; appeal and review.
In addressing these topics we will not strive to be comprehensive. Rather, we intend to address selected issues within broader topics to identify the political, legal, cultural and other factors that drive decision-making and the life of the various international courts and tribunals. In addressing the various topics you should try to keep in mind some of the broader issues which arise:
Is there a ìsystemî of international courts and tribunals?
Should there be a ìsystemî of international courts and tribunals which differs from that which currently pertains (if indeed it does)?
Are there common principles and themes which cut across the various institutional and procedural aspects of these bodies?
What are the implications of the current proliferation and the ìsystemî for the development of the substantive rules of international law?
In considering these issues we will focus on 6 bodies: ICJ, ECHR, ECJ, ICTY, ITLOS, WTO and ICSID. We will look to the practise of other bodies where appropriate.
You should therefore obtain hard copies (from the relevant web sites, via www.pict-pcti.org or directly as set out below) of the relevant Statutes and Rules of these bodies:
ICJ: İİİ İİİİİİİİİİİ UN Charter, Articles 92-96
İİİİİİİİİİİ İİİİİİİİİİİ Statute of the Court (1945)
İİİİİİİİİİİ İİİİİİİİİİİ Rules of the Court (1978)
Resolution Concerning the Internal Judicial Practise of the Court (1990)
Web site: www.icj-cij.org
ITLOS:İİİİİİİİİİİ UNCLOS (1982)
Statute of the Tribunal (Annex VI to UNCLOS)
Rules of the Tribunal
Guidelines concerning Preparation and Presentation of cases
Resolution on the internal judicial practise of the Tribunal
Web site: www.un.org/Depts/los
WTO AB:İİİİ WTO Agreement (1994), Arts. III-IV
İİİİİİİİİİİ İİİİİİİİİİİ Dispute Settlement Understanding (Annex 2 to WTO Agreement)
İİİİİİİİİİİ İİİİİİİİİİİ Working Procedures for Appellate Review (1997)
İİİİİİİİİİİ İİİİİİİİİİİ Rules of Conduct for the DSU (1996)
İİİİİİİİİİİ İİİİİİİİİİİ Web site: www.wto.org
ICTY:İ İİİİİİİİİİİ Statute (1993, SC Res 827)
İİİİİİİİİİİ İİİİİİİİİİİ Rules of Procedure and Evidence
İİİİİİİİİİİ İİİİİİİİİİİ Web site: www.un.org/icty
ECJ:İİİİ İİİİİİİİİİİ EC Treaty
Statute of the Court of Justice of the EEC
Rules of Procedure of the Court of Justice of the European Communities
ECHR: İİİİİİİİİİİ EHR Convention (as amended by Protocol 11)
İİİİİİİİİİİ İİİİİİİİİİİ Rules of Court (1998)
İİİİİİİİİİİ İİİİİİİİİİİ Web site: www.dhcour.coe.fr
ICSID: İİİİİİİİİİİ ICSID Convention
İİİİİİİİİİİ İİİİİİİİİİİ Rules of Procedure for Arbitration Proceedings
İİİİİİİİİİİ İİİİİİİİİİİ www.worldbank.org/icsid
You can also use the Manual on International Courts and Tribunals to identify the equivalent rules for other bodies which we may refer to.
A. Institutional aspects
1. Overview of the ìsystemî ofİ international courts and tribunals
15 January 2002
Speech of President Guillaume to the Sixth Committee of UN General Assembly, October 2000
New York University Journal of International Law and Politics, Volume 31 Number 4 (1999), Symposium issue on ìThe Proliferation of International Courts and Tribunals: Piecing Together the Puzzleî, especially the articles by Kingsbury (pages 679-696), Charney (pp. 697-708), Romano (709-52) and Abi-Saab (919-934)
You can access these and the other articles in full on the NYU JILP website at: http://www.nyu.edu/pubs/jilp/
Click on Issues, then go to Volume 31.
J. Charney, Is International Law Threatened by Multiple International Tribunals?î, 271 Hague Recueil des Cours 101 (1998)
2. The organisation of the court/tribunal, including appointment and role of judges (including ad hoc judges, and organisation of the Court into Chambers)
İ22nd January 2002
Familiarize yourself with the relevant provisions of :
ICJ (see Manual, paras. 1.5-1.7)
ITLOS: (see Manual, paras. 3.4-3.5)
WTO AB (see Manual, paras. 5.5-5.8)
ICTY (see Manual, paras. 23.6-23.9)
ECJ (see Manual, paras. 8.5-8.9)
ECHR (see Manual, paras. 18.5-18.8)
ICSID (see Manual, paras. 1.5-1.7)
E. Lauterpacht, ìThe International Lawyer as Judgeî, in C. Wickremasinghe, The International Lawyer as Practitioner (BIICL, 2000), 125-144
Issues for discussions:
(1) Process of appointment: What are the different ways in which international judges are ìappointedî? What are the policy and practical differences between the appointment of judges by a State (e.g. ECJ) and the election by an organ of an international organisation where a choice exists (e.g. ECHR)?
(2) Term of office: What are the implications of allowing a judge to stand for re-election (see e.g. ICJ), as opposed to permitting only a single non-renewable term (see e.g. ICC Statute, Art. 36(1), (6) and (9))?
(3) Nationality of judges: Compare and contrast the national composition of the members of the ICJ and ITLOS and the WTO Appellate Body ñ what are the implications, if any, for (a) the willingness of different states to have recourse to these bodies, and (b) the substantive outcome (on the merits) of a case?
(4) Gender of judges: According to a recent study 13 out of 208 judges are women. Is this an issue?
(5) Ad hoc judges: What is their proper function?
3. The ìindependenceî and ìimpartialityî of the international judiciary: the case of Prosecutor v Furundzija (ICTY Appellate Chamber, July 2000)
29 January 2002
İİİİİİİİİİİİİİİ Issues for discussion
(1) What is intended by the distinction between ìindependenceî and ìimpartialityî? What other criteria do the various international courts and tribunals require of their judges? What criteria should be required?
(2) In what circumstances should an international judge recuse him/her-self from a case?İ
(3) Does the Furundzija decision indicate an emerging ìcommon lawî of international courts, in the sense that the same minimum standards for ìimpartialityî might be said to apply in respect of all international courts and tribunals?
4. The representation of the parties
İ5th February 2002
A. Pellet, ìThe role of the international lawyer in international litigationî, in C. Wickremasinghe, The International Lawyer as Practitioner (BIICL, 2000), 147-162
D. Bowett, ìThe Conduct of International Litigationî, in D. Bowett and others, International Court of Justice: Process, Practise and Procedure (BIICL, 1997), 1-20.
WTO Appellate Body, European Communities Regime for the Importation, Sale and Distribution of Bananas, 2 August 1997, WT/DS27/AB/R, 9 September 1997, at paras. 11 and 12
ICJ (Manual, para. 1.35)
ITLOS: (Manual, para. 3.30)
WTO AB: (Manual, para. 5.25)
ICTY: (Manual, para. 23.28)
ECJ: (Manual, para. 8.34)
ECHR: (Manual, para. 18.27)
ICSID: (Manual, para. 6.26)
Issues for discussion:
(1) Some international courts have rules restricting who may appear as counsel before them (ECJ, ECHR), others allow anyone to appear (ICJ), and yet others have previously allowed only government employees to appear (WTO). On what policy grounds can these differences be justified?
(2) What is your reaction to the article by Alain Pellet, positing the thesis that ìacting as Counsel before the World Court is a profession Ö and one that is not regulated by any legal rulesî (p. 148/9)?
(3) What are the implications of the decision by the WTO Appellate Body in the EU Bananas Case to open up access to its procedures to any counsel the Member State wishes to use?
(4) The 1993 Resolution establishing the World Bank Inspection Panel provides at para. 12 that
ìThe Panel shall receive requests for inspection presented to it by an affected party in the territory of the borrower which is not a single individual (i.e., a community of persons such as an organization, association, society or other grouping of individuals), or by the local representative of such party or by another representative in the exceptional cases where the party submitting the request contends that appropriate representation is not locally available and the Executive Directors so agree at the time they consider the request for inspection.î
What is the reason for restricting the role of ìanother representativeî (e.g. Washington DC law firms or NGOís)?
5. Applicable law (procedural and substantive)
12th February 2002
ICJ (Manual, para. 1.4)
ITLOS (Manual, para. 3.3)
WTO AB (Manual, para. 5.4)
ICTY ((Manual, para. 23.4)
ECJ ((Manual, para. 8.4)
ECHR: (Manual, para. 18.4)
ICSID: (Manual, para. 6.4)
P. Sands, ìTreaty, Custom and the Cross-fertilization of International Lawî, 1 Yale Hum. Rts. Dev. L.J. 3 (1998) (http://diana.law.yale.edu/yhrdlj/vol01iss01/sands_philippe_toc.htm)
WTO Report of the Appellate Body on United States Standards for Reformulated and Conventional Gasoline, 35 I.L.M. 603, at page 621 (1996) (also available at www.wto.org)
Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), 1997 ICJ Reps (especially Article 2(1) of 1993 Agreement and paras. 112 and 140 of Judgment (See also Separate Opinion of Judge Weeramantry) (http://www.icj-cij.org/icjwww/idocket/ihs/ihsjudgement/ihs_ijudgment_970925_frame.htm)
Human Rights Committee, General Comment 24(52) on issues relating to reservations etc, UN Doc. CCPR/C/21/Rev.q/Add.6 (1994) (Distributed)
Observations by the United Kingdom on General comment Number 24 (Distributed)
Observations by the United States on General Comment Number 24 (Distributed)
R. Higgins, ìIntroductionî, in C. Chinkin and others, Human Rights as general Norms and a Stateís Right to Opt Out (1997, BIICL), xv-xxviii (Distributed)
Issues for discussion
(1) What are the practical consequences of different ìapplicable lawî provisions? Should we assume that international courts are inherently required to apply rules of generalİ international law, or is it better to assume that in the absence of any such direction by the founders of the institution it should apply only those rules to which it is directed?
(2) What is the relationship between the subject of ìapplicable lawî provisions and discussion as to whether the various international courts amount to a ìsystemî?İ
(3) What are the implications of the decision by the WTO Appellate Body that the WTO rules are not to be interpreted in ìclinical isolationî from the rules of public international law? Does the approach of the WTO AB differ in nay way from that of the ICJ, as reflected in its approach in the Gabcikovo/Nagymaros case?
(4) On reservations: what does the approach of the HRC in General Comment No. 24 indicate about the ìapplicable lawî applied by that body? Why do the UK and US react as they do? What are the implications, if any, for the interpretation by another international court or tribunal of the ICCPR?
6. Jurisdiction and admissibility I
19th February 2002
Admissibility: Collier & Lowe, 155-62
The indispensable third party:
(1) Monetary Gold case (Italy v France, UK, US), ICJ Reps 1954, 19
(2) Certain Phosphate Lands in Nauru (Nauru v Australia), ICJ Reps 1992, 240
See also Dissenting Opinion of Sir Robert Jennings
(3) East Timor case (Portugal v Australia), ICJ Reps 1995 , 90
Issues for discussion:
(1) What is the distinction between an objection to admissibility and an objection to jurisdiction?
(2) On what grounds, if any, can the ICJís judgements in Monetary Gold, Nauru and East Timor be justified?
7. Role of registry/secretariat; process of deliberation of international judges
İ26th February 2002
Eduardo Valencia Ospina, former registrar of the International Court of Justice, will lead the discussion during this class
ICJ (Manual, para. 1.14)
ITLOS (Manual, para. 3.8)
WTO AB (Manual, para. 25.10)
ICTY(Manual, para. 23.11)
ECJ: (Manual, para. 8.11)
ECHR (Manual, para. 18.10)
ICSID: (Manual, para. 6.11)
Sir Robert Jennings, ìThe internal judicial practise of the ICJî, 59 BYIL 31 (1988)
ß Separate Opinion of Judge Szekely, ITLOS, Ireland v United Kingdom (The Mox Case), Order of 3 December 2001 (on www.itlos.org)
Issues for discussion:
8. Jurisdiction and admissibility II
İ5th March 2002
Competence and jurisdiction in contentious cases: Collier & Lowe, 132-155
Jurisdiction ratione temporis
Loizidou v Turkey, EctHR 18 December 1996, Merits and just satisfaction, at paras. 32-47
Case Concerning the application of the Genocide Convention (Bosnia and Herzegovinaİ v FRY (Preliminary Objections), 1996 ICJ Reports
Tradex Hellas v Albania, ICSID, Decision on Jurisdiction, 24 December 1996
Jurisdiction ratione personae
Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain) 1970 ICJ Reports, 3
Jurisdiction ratione materiae
Southern Blue-fin Tuna Case (Australia and New Zealand v Japan), Award on Jurisdiction and Admissibility, 4 August 2000
Read also the Dissention Opinion of Sir Kenneth Keith
ICJ: (Manual, paras. 1.15-1.21, 1.28)
ITLOS: (Manual, paras. 3.9-3.14, 3.19-3.20)
WTO AB: (Manual, paras. 5.11-5.15, 5.20)
ICTY: (Manual, paras. 23.12-23.16, 23.20)
ECJ: (Manual, paras. 8.12-8.23, 8.28)
ECHR: (Manual, paras. 18.11-18.14, 18.19-20)
ICSID: (Manual, paras. 6.12-6.16, 6.20)
Issues for discussion:
(1) The time element: are the awards in Loizidou and Bosnia, on the one hand,İ and Tradex, on the other, reconcilable?İ
(2) What are the implications of the flexible approach taken by the ECHR and ICJ to jurisdiction ratione temporis? Is it the human rights character of these cases which explains the approach?
(3) Might Barcelona Traction be decided differently today?
(4) What are the implications of the SBT cases for future disputes under UNCLOS and for the interrelationship, say, between UNCLOS and WTO jurisdictional rules?
(B) Procedural and Evidentiary Aspects
9. Third party intervention
ICJ (Manual, para. 1.32)
ITLOS (Manual, para. 3.27)
WTO AB (Manual, para. 5.23)
ICTY (Manual, para. 23.26)
ECJ ((Manual, para. 8.31)
ECHR: (Manual, para. 18.23)
ICSID: (Manual, para. 6.24)
C. Chinkin, ìThird party intervention before the ICJî, 80 AJIL 495 (1986) (also C. Chinkin, Third Parties in International Law (1993), in particular part 2 (International Judicial and Arbitral Procedure and Third Parties))
S. Schwebel, Book review of Chinkin, at 89 AJIL 835-7 (1995)
Case concerning the Continental Shelf (Libya/Malta) (Application for Permission to Intervene by Italy), 1984 ICJ Reps 3 (summary at http://www.icj-cij.org/icjwww/idecisions/isummaries/ilmsummary840321.htm)
Case concerning the Land and maritime Boundary between Cameroon and Nigeria, Order of 21 October 1999, http://www.icj-cij.org/icjwww/idocket/icn/icnframe.htm
Issues for discussion
(5) In establishing a ìright to interveneî before the various international courts and tribunals, what are the different approaches taken to striking a balance between party autonomy and the interests of third parties?
(6) Consider the two ICJ cases referred to above. Are the decisions reconcilable? If not, what legal and policy considerations might explain the change?
10. Evidentiary rules and principles
İ12th March 2002
Bin Cheng, General Principles of Law as applied by International Courts and Tribunals (1953), at 302-335 (Distributed materials)
Keith Highet, ìEvidence, the Court and the Nicaragua Caseî, 81 AJIL 1 (1987)
For reference generally:
M. Kazazi, Burden of proof and related issues (1996)
D. Sandifer, Evidence before International tribunals (1975)
R. Lillich (ed), Fact-Finding by International Tribunals (1991)
For class preparation please consider the following materials:
Case Concerning Military and paramilitary activities (Nicaragua v US), Judgment of 1986, ICJ, paras 59-74, 140-160 (http://www.icj-cij.org/icjwww/Icases/iNus/inus_ijudgment/inus_ijudgment_19860627.pdf)
Dissenting Opinion of Judge Schwebel, paras. 128-153
ICTY, Prosecutor v Tadic, 38 ILM 1518, Appeal Chamber, paras. 146-162
1. How would you characterize the approach of the ICJ to the question of the assessment and probative value of evidence in the Nicaragua case? Ids there any difference in approach between written (e.g. press reports) and testamentary evidence?
2. How legitimate are Judge Schwebelís criticisms of the approach taken by the majority?
3. To what extent does the approach of the ICTY Appeal Chamber to the assessment and probative value of evidence differ from that of the ICJ?
11. Review of Court visits and Overview of conduct of case (written and oral phase) and preparation of pleadings
30th April 2002
In the first half of the class we will review the visits to the various courts and tribunals during March. In the second half we will consider the following material:
Manual, paras. 1.30- 1.31
ICJ Press CommuniquÈ 98/14, 16 April 1998: http://www.icj-cij.org/icjwww/ipresscom/ipress1998/ipr9814.html
Manual, paras. 3.23-3.26
Guidelines concerning the preparation and presentation of cases before the Tribunal, ITLOS/9: http://www.un.org/Depts/los/ITLOS/Guidelines.htm
Manual, paras. 6.22-6.23
Manual, paras. 5.21-5.22
Manual, paras. 8.29-8.30
Notes for the Guidance of Counsel in written and oral proceedings before the EC, http://www.curia.eu.int/en/txts/others/txt9.pdf
Manual, paras. 23.24-23.25
1. Compare and contrast the guidance notes for counsel issued by the ECJ, ITLOS and the ICJ. What are the differences of approach, and what do the differences of approach indicate about the courtís perception of its relationship with (a) the parties involved in the proceedings, and (b) counsel representing the parties?
2. To what extent might it be said that there are ñ or that there should be ñ common approaches to the preparation and presentation of cases amongst the various international courts and tribunals? Or to what extent do the different functions and characters of the various courts and tribunals require different approaches?
3. It is said that the ìcommon lawî approach tends to emphasis oral procedure, whereas the ìcivil lawî approach tends to favour a written procedure. Has a fair balance been struck in the approaches taken by the various international courts and tribunals?
12. Provisional measures
İ7th May 2002
ICJ (see Manual, para. 1.27)
ITLOS: (see Manual, paras. 3.21)
WTO AB (see Manual, paras. 5.19)
ICTY (see Manual, para. 23.21)
ECJ (see Manual, para. 8.27)
ECHR(see Manual, para. 18.18)
ICSID(see Manual, paras. 6.21)
For background see:
L. Collins, Provisional and protective Measures in International Litigation, in Essays in International Litigation and the Conflict of Laws (1994), 1-188
Collier & Lowe, 248-250
On particular cases to be discussed in class see:
Cruz Varas v Sweden, EctHR, Judgement of 20 March 1991, paras. 90-105 (http://hudoc.echr.coe.int/hudoc/default.asp?Cmd=Query)
Lagrand Case (Germany v USA), ICJ, Judgment of 27 June 2001
İİİİİİİİİİİİ See also: Memorial of Germany, paras. 4.121-4.175
See also: Counter-Memorial of United States, paras. 128-169)
Southern Bluefin Tuna Cases (Australia and New Zealand v Japan), 27 August 1999,ITLOS (http://www.un.org/Depts/los/ITLOS/Order-tuna34.htm)Separate Opinion of Judge Treves (http://www.un.org/Depts/los/ITLOS/3Treves.htm)
Olivieri v European Commission, Order of 7 April 2000
Issues for discussion:
13. The powers of the various courts and tribunals, including remedies
İİİİİİİİİİİ 14th May 2002
ICJ (see Manual, para. 1.36)
ITLOS: (see Manual, paras. 3.31)
WTO AB (see Manual, paras. 5.26)
ICTY (see Manual, para. 23.29)
ECJ (see Manual, para. 8.35)
ECHR(see Manual, para. 18.28)
ICSID(see Manual, paras. 6.27)
C. Gray, Judicial Remedies in International Law (1987), pp. 11-21
For background see:
C. Gray, Judicial Remedies in International Law (1987)
On particular cases to be discussed in class see:
(1) Lagrand Case (Germany v US)
Memorial of Germany, paras. 6.47-6.77 and Submissions (http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm)
Counter-memorial of US, paras. 170-173 (http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm)
Compare with the Advisory Opinion of the Inter-American Court of Human Rights on the Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 of October 1, 1999 Requested by the United Mexican States, Inter-American Court of Human Rights (http://www1.umn.edu/humanrts/iachr/b_11_4p.html)
(2) Statute of the International Criminal Court, Articles 77-80 (http://www.un.org/law/icc/statute/romefra.htm)
Issues for discussion:
14. Relationship with national courts
21 May 2002
İİİİİİİİİİİ Distributed material:
Philippe Sands, ìAfter Pinochet: the proper relationship between national and international courtsî, in L. Boisson de Chazournes and V. Gowlland-Debbas, The International legal System in Quest of Equity and Universality: Liber Amicorum Georges Abi-Saab (2001), at 699-716
Other materials to review:
Statute of the ICTY, Article 9
Statute of the ICTR, Article 8,
Statute of the ICC, Preamble
Breard v Greene, 118 S. Ct 1352, (http://supct.law.cornell.edu/supct/html/97-8214.ZPC.html)
Hilaire and Thomas, Privy Council Appeal No. 60 of 1998, Judgment of 27 July 1999, available on www.pict-pcti.org, at ìNational Jurisdictionsî, on 17.03.99
Tadic, IT-94-1, ICTY Appeals Chamber, 15 July 1999, at para. 52, available on www.pict-pcti.org, at ìICTYî, onİ 07.15.99
Issues for discussion:
1. What is meant by the principle of ìcomplementarityî? Is it a principle that might be relevant to international courts outside the criminal field?
2. Compare and contrast the approach of the US Supreme Court in Breard v Greene with that of the Privy Council in Hilaire & Thomas. Which is the more persuasive approach, and why?
3. What are the implications for the relationship between national and international courts of the view expressed by the ICTY Appeals Chamber that international courts are different from national courts and not necessarily subject to the same standards of process (at para. 52)?
4. What should be the proper relationship between international and national courts?
15. Interpretation, appeal, review
28th May 2002
ICJ (see Manual, para. 1.37-1.38)
ITLOS: (see Manual, paras. 3.32-3.33)
WTO AB (see Manual, paras. 5.27-5.28)
ICTY (see Manual, para. 23.30-23.31)
ECJ (see Manual, para. 8.36-8.41)
ECHR(see Manual, para. 18.29-18.30)
ICSID(see Manual, paras. 6.28-6.29)
For this class: consider the recent notification by the FRY requesting a revision of the ICJís Judgment of 11 July 1996 declaring that it had jurisdiction to adjudicate in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia)
What are the reasons behind the FRYís approach, and what are the prospects of success? The class will divide into groups and will argue out the points raised, including the possibility of intervention by Croatia.