|III.||The International Court of Justice|
|3.||THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE|
Legality of Use of Force
(Yugoslavia v. Belgium)
Request for the Indication of
Order of 2 June 1999
[p. ] 44. Whereas the invocation by a party of a new basis of jurisdiction in the second round of oral argument on a request for the indication of provisional measures has never before occurred in the Court's practice; whereas such action at this late stage, when not accepted by the other party, seriously jeopardizes the principle of procedural fairness and the sound administration of justice; and whereas in consequence the Court cannot, for the purpose of deciding whether it may or may not indicate provisional measures in the present case, take into consideration the new title of jurisdiction which Yugoslavia sought to invoke on 12 May 1999;1
[p. D.O. Vereshchetin] In my view, the conditions set out by Article 38 of the Rules of Court and in its jurisprudence are fully satisfied in the present cases. The jurisprudence of the Court clearly shows that for the purposes of a request for indication of provisional measures additional grounds of jurisdiction may be brought to the Court's attention after filing of the Application. In such a case, the Court should be primarily concerned with determining objectively whether the additional grounds of jurisdiction "afford[s] a basis on which the jurisdiction of the Court to entertain the Application might prima facie be established".
The legitimate concern of the Court over the observance of "the principle of procedural fairness and the sound administration of justice" cannot be stretched to such an extent as to exclude a priori the additional basis of jurisdiction from its consideration, solely because the respondent States have not been given adequate time to prepare their counter-arguments. Admittedly, it cannot be considered normal for a new basis of jurisdiction to be invoked in the second round of the hearings. However, the respondent States were given the possibility of presenting their counter-arguments to the Court, and they used this possibility to make various observations and objections to the new basis of jurisdiction. If necessary, they could have asked for the prolongation of the hearings. In turn, the Applicant may reasonably claim that the belated invocation of the new titles of jurisdiction was caused by the extraordinary situation in Yugoslavia, in which the preparation of the Applications had been carried out under conditions of daily aerial bombardment by the Respondents. It will also be recalled that it is for the Court to determine the validity of the new basis of jurisdiction, which at this stage of the proceedings may not and should not be decided conclusively.
The refusal of the majority to take into consideration the new bases of jurisdiction clearly goes contrary to Article 38 of the Rules of Court and its jurisprudence. The refusal to have due regard to the intention of a State making a declaration of acceptance of the Court's jurisdiction is also incompatible with the case-law of the Court and customary rules of interpreting legal instruments. In my view, all the requirements for the indication of provisional measures, flowing from Article 41 of the Court's Statute and from its well-established jurisprudence, have been met, and the Court should undoubtedly have indicated such measures so far as the above four States are concerned.
[p. D.O. Kreca] 16. ... Article 38, paragraph 2, of the Rules of Court provides that "[t]he Application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based" (emphasis added). The phrase "as far as possible" clearly indicates that the Application need not necessarily specify all the legal grounds upon which the jurisdiction of the Court is "said to be based". The jurisprudence of the Court, as may be seen from the cases referred to above, has been established in accordance with this, I would say, the only possible interpretation of Article 38, paragraph 2, of the Rules of Court.
Neither the Statute nor the Rules of Court contain provisions which, directly or indirectly, define what is an "early" or a "late" stage of the proceedings.
It is certain that the standpoints of litigating parties cannot per se be taken as a reliable and convincing criterion. Their perception of "the early or timely" and "late" is, quite understandably, burdened with subjectivism.
Hence, it seems necessary to resort to some, at least basically, objective criterion for the assessment of what is a "late stage of the proceedings".
From the aspect of the Rules of Court it may be contended that the "late or latest" stage of the proceedings coincides with the formal closure, at least when the proceedings for the indication of provisional measures are involved. Such an interpretation seems suggested by Article 74, paragraph 3, of the Rules of Court which, inter alia, provides that "[t]he Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings" (emphasis added). The broad, general formulation "any observations" implies that "observations" may be presented either orally or in written form.
Such a broadly conceived right of the parties in the proceedings for the indication of provisional measures, in particular when grounds for jurisdiction are in question, must be brought into correspondence with the essential need for the Court to find, within a short time-limit commensurate with the urgency of the proceedings, a satisfactory solution both with respect to prima facie jurisdiction and with respect to other relevant facts.
The imperative wording of the relevant provision does not allow departure. However, it is up to the Court to find a practical solution in each particular case, without derogating from the substance of this provision, a solution which, in keeping with the fundamental equality of the parties, would make it possible for the other party to state its position with respect to the relevant matter - in this particular case with respect to additional grounds of jurisdiction.
|1||See, mutatis mutandis, Order of 2 June 1999, Legality of Use of Force, Yugoslavia v. Netherlands (§ 44).|