PRESIDENT OF WORLD COURT WARNS OF ‘OVERLAPPING JURISDICTIONS’ IN PROLIFERATION OF INTERNATIONAL JUDICIAL BODIES

Press Release
GA/L/3157

PRESIDENT OF WORLD COURT WARNS OF ‘OVERLAPPING JURISDICTIONS’ IN PROLIFERATION OF INTERNATIONAL JUDICIAL BODIES

Assembly’s Legal Committee Told of Risk of Inconsistency, Conflicting Judgements; Debate Resumes on Law Commission Report

The President of the International Court of Justice warned members of the General Assembly’s Sixth Committee (Legal) members this morning of the dangers of legal fragmentation and of inconsistency in case law, as a result of the proliferation of international courts.

Judge Gilbert Guillaume, said the proliferation of judicial bodies was a response to the need to subject expanding inter-State relations and cross- frontier transactions to the rule of law. Among the unfortunate consequences from that proliferation, though, were the risk of overlapping jurisdictions, which could lead to “forum shopping”, the rendering of conflicting judgements and inconsistency in case law.

While international law certainly had to adapt itself, he said, it must nonetheless preserve its unity and provide the players on the international stage with a secure framework. He suggested that before creating a new court, it should be determined if an existing body could serve the purpose. Judges must engage in constant inter-judicial dialogue and relations between the courts needed to be institutionalized.

One option would be for the International Court of Justice to act as a court of appeal or review, he said. However, that possibility required strong political will on the part of States and far-reaching changes in the Court, which would need to be given substantial resources. He was not certain such a will existed. Alternatively, other international courts could be encouraged to seek the opinion of the Court.

In a question-and-answer period afterwards, comments were made by the representatives of Italy, India, Cameroon, United Kingdom, Nigeria, Slovakia, Sierra Leone and Sudan.

The Committee then resumed its discussion on the report of the International Law Commission, specifically the Chapter relating to draft

Sixth Committee - 1a - Press Release GA/L/3157 17th Meeting (AM) 27 October 2000

Articles on State responsibility. Speaking on that issue were the representatives of Chile, Costa Rica, Austria and Greece.

The Committee meets again at 3 p.m. today to continue the debate on State responsibility, and to take up the chapters in the report covering diplomatic protection and unilateral acts of States.

Sixth Committee - 3 - Press Release GA/L/3157 17th Meeting (AM) 27 October 2000

Committee work programme

The Sixth Committee (Legal) met this morning to continue its discussion of the draft articles on State responsibility for internationally wrongful acts being elaborated by the International Law Commission.

The Commission intends to finalize the 59-article text at its next session in 2001. Part I of the draft text entitled, “The internationally wrongful act of a State”, contains articles 1 to 27 relating to the relevant general principles, the act of the State under international law and the breach of an international obligation. Other issues covered are the responsibility of a State in relation to the act of another State, as well as the circumstance that may preclude the wrongfulness of an act.

Part II is in two sections. The first, on “content of international responsibility of a State”, contains articles 28 to 42, addressing the relevant general principles and the various forms of reparation, as well as serious breaches of essential obligations to the international community. A new Part II bis is entitled “the implementation of State Responsibility” and contains articles 43 to 49, which address the procedural and substantive aspects of the invocation of State responsibility. It also contains articles 50 to 55, which set forth various conditions and limitations with respect to countermeasures. A new Part IV, entitled “General Provisions”, include articles 56 to 59. (For further background on International Law Commission report, see Press release GA/L/3154 of 23 October)

Also this morning, the Committee will hear a statement by the President of the International Court of Justice, Judge Gilbert Guillaume.

Statements by President of Court

Judge GILBERT GUILLAUME, President of the International Court of Justice, said the Permanent Court of International Justice, created in 1920, was for a long time the only player on the international judicial stage. Its replacement by the present Court more or less coincided with the development of new judicial forums, initially at the regional and then at the global level. Over the last two decades, the process had quickened and taken on a global aspect.

He said the areas in which the international community cooperated had undergone a substantial expansion: security, education, economics, the environment, scientific research, and transport, among others, he said. Non-State players -- commercial companies, non-governmental organization and private individuals -- engaged increasingly in transnational activities, thus demonstrating how permeable frontiers were.

Moreover, he went on, those cross-frontier transactions had become more diverse, and the trend would undoubtedly intensify with the new technological advances, as in the field of communications. The dual expansion in inter-State relations and cross-frontier transactions had inevitably rendered it necessary, if not essential, to make all those relationships subject to the rule of law. The proliferation of courts could be perceived as a process of adaptation to those fundamental changes.

However, the proliferation of judicial bodies had certain unfortunate consequences. It was already influencing the operation of international law, both in procedural terms and in content. Its long-term consequences should not be underestimated. He cited, for example, the risks of overlapping jurisdictions, which could lead to “forum shopping”. As a result of the competition, certain courts could be led to tailor their decisions so as to encourage a growth in their caseload, to the detriment of a more objective approach to justice. Another consequence was the increase in the risk of conflicting judgements. It was essential that the various international courts coordinate the exercise of their individual jurisdictions, where more than one court considered itself competent to hear a dispute.

There was also serious risk of inconsistency within the case law, he continued. The risk of a conflict of case law was far greater when one was dealing not with separate entities established within the same forum, but with separate courts having to apply the same rules of law. That was particularly so, he went on, in the case of specialized courts, which tended to favour their own disciplines. He cited a case from the European Court of Human Rights on rules for the interpretation of treaties, and another from the Yugoslav Tribunal concerning an interpretation of international law on State responsibility. These, he said, were examples of where there was a serious risk of losing sight of the overall perspective. While international law certainly had to adapt itself, it must nonetheless preserve its unity and provide the players on the international stage with a secure framework.

Before creating a new court, the international legislative should ask itself whether the functions which it wished to entrust to that court could not properly be carried out by an existing body, as was the practice, for example, with the international administrative tribunals. He said there was also the question of how to deal with the absence of a structured relationship between the various courts. He preferred to leave it to the wisdom of the judges to counteract the undesirable effects of the proliferation of courts. Judges must be aware of the dangers of legal fragmentation and of inconsistency in the case law, as a result of the quasi-anarchic proliferation of international courts. They must engage in constant inter-judicial dialogue. The International Court of Justice was ready to take initiatives in that respect, if it had the necessary resources. However, that minimalist solution was not sufficient, he continued.

Relations between the courts needed to be institutionalized. Courts had proliferated in an anarchic manner, without any form of relationship being established between them. The International Court of Justice remained the “principal judicial organ of the United Nations” and, as a result, it occupied a privileged position in the international judicial hierarchy. Moreover, it was the only court with a universal general jurisdiction, and in addition, its age endowed it with special authority.

However, the mechanisms that would enable the Court to assume that status remained limited. One might question whether its powers were not too limited, in light of the role it could and should play. For the International Court of Justice to act as a Court of appeal or review would require strong political will on the part of States, and far-reaching changes in the Court, which would need to be given substantial resources. He was not certain such a will existed. Alternatively, other international courts could be encouraged to seek the opinion of the Court on doubtful or important points of general international law.

Comments and Questions

Commenting on the statement of Judge Guillaume, the representative of Italy, said he agreed that the phenomenon of proliferation of courts carried with it consequent risks. A dialogue between the various international judicial bodies would be useful, but it was difficult to envisage an effective mechanism to enhance that dialogue. A balance was needed between coordination and safeguarding the independence of the courts. On the suggestion of seeking advisory opinions from the International Court of Justice through the General Assembly or the Security Council, he wondered if that might not risk a political effect on international decisions.

The representative of India agreed there were problems, as a result of proliferation, with dangers of legal fragmentation. Tribunals had been set up by different treaty bodies, each of which had different States parties. What had been done could not be undone, but it seemed important, from a practical point of view, to somehow link up the various judicial bodies and ensure the possibility of review and appeal at higher levels. He wondered how it would be possible to link up the different bodies with their different interests, and their different representatives in the various treaty bodies. Would it be possible to achieve consensus under those conditions? he asked.

The representative of Cameroon saw he also recognized there were problems. The International Court of Justice had, over the last decade, gained unprecedented authority and credibility, as demonstrated by the number of crises which had been brought before it, as well as the geographical diversity of those disputes. They were a sign of the confidence placed in the Court. He said that when judicial decisions were delayed, it could represent a denial of justice, particularly in the case of disputes that involved armed conflict. He acknowledged that the slowness of procedure was often the responsibility of the parties to a dispute as well as the conditions under which the Court had to function. But he believed that States would be more patient in awaiting judgements if those judgements were binding and could to be applied effectively on the ground. He questioned the value of having to suspend work on a dispute to decide upon provisional measures, a decision on which was of no legal or practical value. The International Court of Justice was the only court where the concept of urgency became devoid of meaning.

The representative of United Kingdom said it was important not to exaggerate the difficulties the proliferation of courts had given rise to, nor to downplay the advantages that came from the tribunals. However, there was a serious difficulty in the concept of “forum shopping”, and from the fact that the same aspect of a case might end before different courts. It was necessary to determine beforehand whether new judicial bodies were actually necessary. He shared the concern that specialization could lead to a lack of regard for basic principles of international law, and said he questioned whether it was realistic to expect one of the other international tribunals to suspend proceedings and refer what might be the most interesting aspect of a case to the International Court of Justice.

The representative of Nigeria, in noting that the Statute of the International Court of Justice gave it a mandate to handle disputes between States, questioned whether it would be proper to allow the tribunals and the International Criminal Court to refer cases to the International Court of Justice, in light of that Court’s mandate concerning States. Would establishing the Court as an appeals and review court not amount to amending the Statute of the International Court of Justice? He also questioned why, as the principal judicial organ of the United Nations, the Court was restricted to the two languages of English and French, rather than to the Organization’s six official languages.

The representative of Slovakia said the risks in proliferation were a focus of lawyers’ attention. He said there could be a difference in interpretation in the various tribunals. Citing an instance with the Yugoslav Tribunal, he said that sometimes interpretation depended upon the goal pursued. He was pleased that the regime of international law was being developed and accompanied by the proliferation of judicial bodies taking account of those developments. Through the quality of the jurisprudence of the Court, and taking advantage of the opportunity to provide interpretation, the Court could confirm its role as the principal judicial organ.

The representative of Sierra Leone said that in light of the demands placed on the Court, his country would support whatever the Court requested in terms of resources. He said he was unclear about the role of the Court and the binding nature of its decisions. Did it not emasculate the Court’s position as the principal judicial organ if the judgements of other judicial bodies were at variance with the opinions of the International Court of Justice? What would be required to ensure that the decisions of the International Court of Justice took precedence over those of all other bodies which were deemed to be inferior?

The representative of Sudan, who noted that he was a former student of Mr. Guillaume in Paris, said he agreed that different courts handling the same aspects of a case created a danger. Furthermore, proliferation of courts and a consequent legal fragmentation would inevitably obscure the clarity that was so necessary in international law. There was also the risk of losing the global perspective. It was not just a question of the very restricted budget allocated to the International Court of Justice, but also a question of the political will demonstrated by States. States sometimes gave preference to other courts for political reasons.

Responding, Judge GUILLAUME spoke of the question of the working languages of the Court. He said Article 39 of the Court’s statute stipulated its official languages as French and English. The Court was aware that it was desirable for its work to be widely known and in its interest to publish in other languages. Consequently, the International Court of Justice had published its blue book in several other languages. Also, its Web site had added elements in Spanish.

On the question from Cameroon, about provisional measures, he said Article 41 of the Statute established the power to indicate if circumstances required provisional measures to preserve the prospective rights of the parties. The Court had not yet had occasion to decide whether those measures were binding.

In response to a question from Slovakia on strengthening the authority of the Court, he said there was a reasoning in judicial practice to decide only what was necessary for the resolution of the dispute, rather than later to lend itself to more discussion and make it more difficult to carry out the decision. There was a need to find a balance between the desire to develop international law and the need to settle disputes. The two did not necessarily work in the same direction.

He said he shared the view that proliferation had positive aspects. More cases were submitted to international law and there was the chance to diversify international law. While the negative aspects might not yet be clear, they would be greater in the future. Referring to the question of Italy on whether a procedure might limit the independence of the tribunals, he agreed that it would have to be clear in any procedure that the Security Council or the General Assembly did not have the power to modify the questions by the tribunals. There was a grave risk if those bodies had the ability to amend questions.

In response to India, he said that if there was unanimous political will, it would emerge in all the different forums.

He thanked the representative of the United Kingdom for his confidence in the wisdom of the judges. It was true that there was a risk that advisory opinions would be used in selective circumstances. However, that did not prevent such a procedure from being useful. No other formula had yet been proposed and one had to question whether to continue with the risks or whether there was a need to act.

As to the observation of Sierra Leone that International Court of Justice decisions were not necessarily respected by other judicial bodies, he said that Article 59 of the Statute specified that the Court’s decisions had no binding force except in that particular case and between the parties involved. He added that there were other circumstances, such as the interpretation of conventions, under which the judgement of the Court was obligatory. Although the Court’s decisions had great moral and legal authority, they were not technically binding. He thanked his former student from Sudan, and said he had brought back excellent memories of his days as a professor.

Statements on State Responsibility

CLAUDIO TRONCOSO REPETTO (Chile) said the issue of whether or not the draft articles being discussed should lead to a treaty was important. Chile believed there should be clear preference for the possibility of concluding codification of State responsibility in a treaty form. It was, however, open to the possibility that the articles could be adopted provisionally by the General Assembly as a resolution, or in any other form as a guide, both for States or the International Court of Justice, or other international courts or tribunals.

As far as dispute settlement was concerned, he said, a distinction should be drawn between general norms on disputes applicable to international crime that carried State responsibility, and the issue of disputes resulting from the application and interpretation of norms that might be adopted.

On countermeasures, he said the proposed articles restricted and limited the conditions under which they might be applied. Chile believed countermeasures to be appropriate. On the concept of proportionality, it preferred that any action should envision that. Referring to cases where it was possible that more than one State might be empowered to apply the measures, he said the question arising was whether, in cases, proportionality could be used in the light of individual measures taken by each State, or should be assessed on the basis of a package of measures adopted by States that opted to apply them.

Turning to diplomatic protection, a topic considered by the International Law Commission, he said well-established rule of international law provided that protection of a national required actual proof of real and effective ties with that State. He said the requirement of effective protection could be applicable only in the case of acquisition of nationality by naturalization. However, he said, in the case of nationality by birth or by family ties, the effective ties should not only be presumed, but must be absolute in nature, unless the individual had more than one nationality. Therefore, he said, the requirement of effective ties must be fulfilled when an individual had the nationality of a given State.

He said it was justifiable to extend diplomatic protection to stateless persons. He believed a rule should be adopted to protect them. They must have legal residence in that State. Similarly, he said, such a rule could be extended to refugees.

BERND NIEHAUS (Costa Rica) said the draft Articles were balanced and realistic. His delegation was pleased that suggestions his Government made last year had been incorporated in the text, and welcomed the inclusion of provisions of article 49 covering invocation of responsibility by States other than injured States.

He said the introduction of provisions regarding reparation was necessary, as it would help in the protection of rights. In principle, his delegation welcomed article 42, covering consequences of serious breaches of obligations to the international community as a whole, but he believed the final text should make direct reference to countermeasures. There should be a clear provision that did not envisage the use of force in the invocation of countermeasures.

He said his delegation preferred negotiation to the countermeasures, which could be abused by powerful States and welcomed the balance achieved between customary law and the promotion of progressive development of international legal instruments. It supported the prohibition of countermeasures that would imply the use of force. Countermeasures should be proportionate to the obligations that had been violated. Measures should be designed to prompt the offending State to abide by its obligations.

It was now time for work on the draft text to be completed, he said. The articles should be adopted as binding instruments by the General Assembly, as a guide for States.

HANS WINKLER (Austria) said his country would favour the adoption of the draft articles on State responsibility as part of a General Assembly resolution. However, if it was done, the outcome would not be binding in the traditional, conventional sense. State practice with similar cases in the past had shown that in the longer run, the circumstances of the adoption of the resolution, the terminology chosen and the degree of consensus, were indeed of practical consequence.

His delegation would pronounce itself for the option, which guaranteed the greatest practical effect of the articles on actual State practice. This could be the General Assembly adopting a resolution, which would take note of the articles on State responsibility as a "statement of law". That would have the advantage that the careful and delicate balance would not be disturbed by a drafting exercise in the General Assembly. The moral and practical force of the endorsement of the General Assembly would add to the professional authority of the International Law Commission.

If it were decided to proceed by course of a General Assembly resolution, the present draft articles would have to be adapted, or even deleted. He cited those concerning the settlement of disputes. That seemed to be acceptable, as there would be the possibility of resort to the already existing mechanisms for dispute settlement.

In eliminating certain remote eventualities, the draft prepared by the Special Rapporteur had gained in realism. That should make the text more acceptable for the international community as a whole. That wider acceptance would, in turn, more likely influence policy decisions, as well as actual State practice. The text, as a whole, had also gained by the elimination of articles that belonged to the primary rules of international law.

Austria approved the change envisaged by the Special Rapporteur, moving away from any reference to “international crimes”. However, the new solution which was suggested, suffered from the fact it built upon the notion of a “serious breach by a State of an obligation owed to the international community as a whole and essential for the protection of its fundamental interests” as defined in article 41 para 1. As all States would have the right to invoke “serious breaches”, he said, it would be expected that the notion of “serious breaches” would be applied by different States differently. It was important that no ambiguities were left in the text concerning the question.

As far as the notion of “injured States” was concerned, he said the draft contained different solutions depending on the character of the breach of the obligation. The draft provisions about countermeasures to obtain respect for erga omnes obligations dealt with a difficult problem, as they represented a specific justification for an intervention. He noted that simple breaches of erga omnes obligations no longer entitled States to take countermeasures, unless one of them was an injured State, such as the State of which the victim was a national. As far as the States other than the injured State were concerned, he said they were not entitled to take countermeasures except if requested to do so by the injured State. They normally had only the right contained in article 49, paragraph 2 (a) to seek cessation of the internationally wrongful act and guarantees of non-repetition.

Those rights, therefore, become mere exhortation, he said, with no specific consequences attached. Austria had doubts whether that was the result that should be achieved.

He said the article concerning the conditions for counter measures had to be redrafted, as it referred only to the “injured State”. It must be made clear that countermeasures taken outside the United Nations system and those taken by the system must also be subject to the rule of proportionality.

He said the long process of elaboration of rules on State responsibility had made an important leap forward and that Austria was confident that it would be possible to solve all remaining issues at the forthcoming session of the International Law Commission.

PHANI DASCALOPOULOU-LIVADA (Greece) welcomed the possibility of the provisions on dispute settlement finding their way into a convention on State responsibility, as indicated by the Special Rapporteur at a meeting of legal advisers in New York. An instrument of that magnitude and character must contain rules for the settlement of disputes which might arise in the application of its provisions. She hoped the International Law Commission would incorporate rules on dispute settlement into the draft text at its next session.

She said the deletion of article 19 on notion of State crime a step backwards; she commended the Commission for its efforts to fill that vacuum by other provisions. She said countermeasures were an archaic notion, which favoured more powerful States and were incompatible with an international community based on sovereign equality of nations. Provisions on dispute settlement should apply before any imposition of countermeasures. She said countermeasures should not be imposed unilaterally by any State if the organized international community was seized of the matter through its authorized organ, that is, the Security Council. She referred to the Statute of the International

Criminal Court, where a comparable possibility had been envisaged for the Security Council.

On the topics suggested for the Commission’s future work, she said her delegation would be interested in that on responsibility of international organizations. The effect of armed conflict on treaties was another topic which merited attention, she said. The topic of shared natural resources of States could be suitable for consideration, if it did not overlap with already existing conventional or other texts.

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