BRIEFING BY PRESIDENT OF INTERNATIONAL COURT OF JUSTICE

Press Briefing

BRIEFING BY PRESIDENT OF INTERNATIONAL COURT OF JUSTICE

The International Court of Justice, familiarly known as the World Court, had been sitting in The Hague since 1922, and had been performing two functions, correspondents were told at today’s noon briefing. First, it adjudicated disputes between States, rendering legal opinions binding upon them; and second, it gave advisory opinions to the United Nations and to the specialized agencies when requested. It never proffered opinions, it simply answered the questions put to it. The President of the International Court of Justice, Judge Stephen M. Schwebel, said that at the moment the Court had some 24 cases on its docket. They were all contentious cases, he said, none were requests for advisory opinions.

Judge Schwebel, a guest at today’s noon briefing, said that while he would not list all the cases before the Court, he would say that the extent of the Court’s docket had most certainly ballooned in the last 15 years. When he came to the Court in 1981, it had only one case before it. He said, however, that the large number of cases presently awaiting action by the Court had been “artificially inflated somewhat” by the fact that Yugoslavia had brought 10 cases against 10 members of the North Atlantic Treaty Organization (NATO) last spring. Two had been dismissed on the ground of no jurisdiction. The other eight cases had remained on the docket since the Court had found allegations of jurisdiction tenable enough to allow the parties to proceed to the merits. The next step was for Yugoslavia to file its Memorial on the merits.

A correspondent asked whether the sharp increase in the number of cases indicated a genuine desire on the part of nations to find legal, peaceful resolutions to conflict or if it was just another theatre of battle. “It is very hard to know what motivates States”, Judge Schwebel said, “but it’s fair to say that there appears to be a growth of confidence in the Court.” Some States that had become Members of the United Nations after 1960 were cautious about international law at large, and viewed it -- correctly -- as having been created by the European and American States. Over the last 40 years, however, through the work of the Sixth Committee (Legal), the International Law Commission and numerous diplomatic conferences that had been called by the United Nations to fashion treaties, which had, in turn, refashioned international law in significant respects, these newly independent States had participated fully and vigorously, “putting their stamp” on the reshaping of international law. This, he speculated, was one of the factors that enhanced confidence in international law and the Court as the adjudicator of disputes that applied that law.

Another factor was the relaxation of international tensions. “There will always be disputes among States”, he said “but, in a period of détente, they are more inclined to resort to third-party settlement and to a peaceful adjudicatory settlement than they may be in a period of high tension.” He also said that there were certainly cases in which States had gone before the Court because they thought that particular case would make a political point, but that, by and large, the increase in the Court’s docket did point to a good faith attempt by States around the world to settle their disputes by international adjudication. Many of the cases submitted to the Court were very important to the community of States at large and, not only settled disputes between the States concerned, but also had an impact on international law. The cases before the Court were extremely diverse. Cases were now brought by parties from all over the world. It was no longer true, as it had been 40 or 50 years ago, that most of the cases were Euro-centred. Indeed, Africa, he said, was in the lead in submitting cases to the Court.

There had been criticism that the World Court moved too slowly and had accomplished very little. A correspondent asked if the Court had made any adjustments in the last 15 years to handle the increase in the number and variety of cases before it. “The criticism may have been made”, said Judge Schwebel, “but it is an unfounded criticism.” The Court had always accomplished a lot and had always adjudicated the case brought to it. Those adjudications had resulted in binding judgements and those judgements had been implemented almost without fail. If at times the Court had appeared not to be doing much, that was because it had not been asked to do much —- there had not been many cases submitted to it. But those cases that had been submitted had been adjudicated, he said.

It often took some time for a decision to come down, but that was not because the Court was in “slow motion”. Judge Schwebel said that the Court did not operate at “high speed” either, but that it was a-15 member, universal Court, and procedures had been designed to afford the parties of a case a full hearing, which was vital. It had also been designed to enable each of the 15 judges to make his own input in every decision, and that was, of necessity, time-consuming. When compared to other national or international courts, the time taken was far from extreme.

Judge Schwebel said that parties’ procedures also could be time-consuming. If parties sought extensions before presenting cases or prior to oral arguments -- which could often be up to six months or a year -- the Court could not move as expeditiously as it would like.

“In view of the growth of the docket, the Court is taking measures to accelerate its procedures”, he said. Because this was a two-sided problem, the Court was also inviting parties to cases to cooperate on their side of the matter.

A correspondent asked what was the difference between the International Court of Justice and the International Criminal Tribunals of Rwanda and Yugoslavia. Was the World Court relinquishing power as the principal judicial organ of the United Nations under the Charter? Judge Schwebel said that the Court had not relinquished its responsibilities and that the Charter had not been changed. The Security Council, in exercise of its authority under the Charter to establish subsidiary organs, had established the Yugoslav and Rwandan Tribunals. Those Tribunals had a jurisdiction which differed from that of the World Court, which could only adjudicate contentious disputes between States. The two Tribunals were concerned with disputes that ran against individuals who had been accused of war crimes and atrocities. The World Court could not hear those cases, he said. It could, however, hear inter-State claims which related to events of a similar character. He gave an example of a current case that had been brought by Bosnia and Herzegovina against Yugoslavia that alleged that Yugoslavia had promoted genocide on the territory of Bosnia against Bosnian Muslims. If that case, and several other related counter-claims, resulted in

adjudication, it would be the first in the history of mankind that dealt with the responsibility of a State for genocide. While this case related substantively to the cases before the Tribunals in Rwanda and Yugoslavia, the parties differed. The two Tribunals were dealing with individual responsibility.

When asked if this explanation was at odds with the case against General Pinochet now being brought before the Court —- where an individual would be held responsible for war crimes -- Judge Schwebel said that he was unable to shed any light on that issue. Even though the Chilean Government had informed the Court, and publicly announced, that it would bring the Pinochet case before the Court, the Court had not as yet received an application, or any other paperwork on the matter. The Judge himself had not met with the agents of the two parties or been informed of the precise character of the suit. If Chile alleged that the actions of Spain designed to have General Pinochet tried before a Spanish Court breached obligations under the Torture Convention, then the Court would address that question.

A correspondent asked if it was possible, as Judge Schwebel suggested in his address to the General Assembly yesterday, for Member States within the United Nations to sue or bring claims against non-paying Members, such as the United States. Was the Court the proper forum for such an action? “The World Court would be a perfectly proper forum”, he said, “if it had jurisdiction.” While there was an optional clause in the Charter that gave the Court jurisdiction vis-à-vis any other State that so agreed, the United States was no longer a party to that optional clause. It had withdrawn its adherence in 1986, as an element of the case brought against it by Nicaragua respecting support of the contras. While there could be some basis for jurisdiction of which he was not aware, he did not believe that there was a basis for jurisdiction that would allow a Member of the United Nations to bring that case against the United States.

However, the Court had ruled on the legal obligation of Members to pay their assessments in an advisory proceeding brought in 1962 -- concerning the situations surrounding the Congo and the United Nations Emergency Fund -- in the case of certain expenses of the United Nations. In that case, the General Assembly had asked the Court whether Member States were bound to pay peacekeeping assessments which were not in the regular budget, but in a special budget. A principal initiator of that request for an advisory opinion had been the United States. The United States argued before the Court that assessments made by the General Assembly in the exercise of its authority, under Articles 17 and 18 of the Charter, were binding on the Member States of the United Nations. The Judge recommended that those with an interest in this subject should look at the pleadings that the United States filed on that issue to see that this position had been set out clearly and unconditionally.

The Court came down with an advisory opinion that indeed held that Members were bound to pay their peacekeeping assessments. That decision had included the more general statement he had quoted in his speech before the General Assembly yesterday, concerning the obligation of Member States to pay that portion of the budget of the United Nations which was apportioned to them. “That statement of law is as good today as it was in 1962”, he said. The General Assembly had at that time passed a resolution accepting that statement of law by a “very large” affirmative vote. Among the States that voted for it were some of those that today were delinquent in the payment of their assessed contributions.

A correspondent asked if the World Court would play any role in dealing with issues that the Secretary-General had called “rights beyond borders” -- intervention on humanitarian grounds -- since it only adjudicated matters between States. Judge Schwebel said the Court had a very important role to play in this issue. He recalled the cases brought by Yugoslavia against members of NATO which he had mentioned earlier in the briefing. These were prime examples of cases that could be brought before the Court. In those cases, Yugoslavia alleged that NATO’s actions were unlawful; that intervention on its territory by armed force not authorized by the United Nations was unlawful. Among the grounds it cited were what it claimed was the weakness of the theory of humanitarian intervention.

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