III. | The International Court of Justice |
3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
3.1. | General Questions |
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Maritime Delimitation and Territorial
Questions between Qatar and Bahrain,
Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1995, p. 6
[p. 51-52 D.O. Shahabuddeen] The limited nature of the Court's
Judgment of 1 July 1994 has to be kept in view. The main question was one of
jurisdiction. The Court decided certain issues having a bearing on jurisdiction;
it did not decide the question of jurisdiction itself (see paragraph 23 of
today's Judgment). What it decided was "to afford the Parties the
opportunity", in the light of its decision on those issues, "to submit
to the Court the whole of the dispute" (I.C.J. Reports 1994, p.
127, para. 41(3)).
Although, as I then stated, my own "preference would have been for the
issue of jurisdiction to be fulIy decided at [that] stage" (ibid., p.
129), I would not dispute the right of the Court to proceed as it did. True,
there is a "principle that it is the duty of the Court ... to reply to the
questions as stated in the final submissions of the parties ..." (Request
for Interpretation of the Judgment of 20 November 1950 in the Asylum Case,
Judgment, I.C.J. Reports 1950, p. 402). But the principle, I apprehend, is
not violated where, as in this phase of the case, the Court had not as yet
concluded its determination; the Court introduced an intermediate procedure
prior to making its final decision.
Nor, despite an appearance of novelty, is the competence of the Court to
introduce that intermediate procedure open to serious question. In the Free
Zones of Upper Savoy and the District of Gex, the Court, being duly seised
of a matter and having heard arguments on the interpretation of a treaty
provision, gave "indications" of its reaction to the question of
interpretation, and then allowed the parties a period of time to come to a
consensual solution of the main problem in the light and with the benefit of
those "indications". When they failed, it resumed consideration of the
matter, and formally decided the question of interpretation along the lines
previously indicated (see P.C.I.J., Series A, No. 22, pp. 12,
13, 16-21; P.C.I.J., Series A, No. 24; and P.C.I.J., Series
A/B, No. 46, pp. 98, 102-105, 136, 141, 149, 152, 171). The
distinguishing circumstance that the "indications" were given and the
deferment of a final decision made at the request of the parties does not
obscure a recognition by the Court that it may adopt a procedure designed to
enable the parties themselves to find a solution to the particular problem
before it in the light of its views on introductory issues.
As was pointed out by Sir Hersch Lauterpacht, the Court is "debarred
from directly acting as an important instrument of peace" (Sir Hersch
Lauterpacht, The Development of International Law by the International Court,
1958, p. 5); it is a court of justice, and must remain within the limits of such
a body. But, as he also noted in the opening sentence of his major work, "the
primary purpose of the ... Court ... lies in its function as one of the
instruments for securing peace in so far as this aim can be achieved through law"
(ibid., p. 3). As it was put by President Basdevant, "It is
asked of the Court that it should contribute to peace by deciding the disputes
submitted to it" (I.C.J. Pleadings, Reparation for Injuries Suffered in
the Service of the United Nations, p. 46; and see Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, I.C.J. Reports 1986, p. 153, Judge
Nagendra Singh, separate opinion). The intermediate procedure introduced in this
case, though obviously to be resorted to sparingly and in special
circumstances, did not exceed the function of a court charged with the mission
of applying the rule of law for the judicial settlement of international
disputes on a consensual jurisdictional basis.