UNdemocracy - General Assembly Session 55 meeting 41

Date	26 October 2000
Started	10:00
Ended	13:00

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A-55-PV.41 2000-10-26 10:00 26 October 2000 [[26 October]] [[2000]] /

The President: Mr. Holkeri (Finland)

The meeting was called to order at 10. a.m.

More on this topic

Agenda item 13

Report of the International Court of Justice

Report of the International Court of Justice (A/55/4)

The President

May I take it that the General Assembly takes note of the report of the International Court of Justice?

It was so decided.

The President

At the Millennium Summit the heads of State and Government stated:

"We resolve ... to strengthen respect for the rule of law in international as in national affairs and, in particular, to ensure compliance by Member States with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties." (resolution 55/2, Millennium Declaration, para. 9)

As the President of the General Assembly I have emphasized that it is now for the Member States to take action and implement the outcome of the Summit. The International Court of Justice has a prominent role in strengthening the international legal order and contributing to the peaceful settlement of disputes.

The report before us demonstrates that States are increasingly willing to submit disputes for the Court's consideration and that there is a growing move towards judicial settlement of international disputes. Another positive development worth mentioning is the increased knowledge and recognition of the Court's work and reasoning. This development is largely thanks to the new information technology, including through the Web site of the International Court of Justice.

But much still remains done. States could, for instance, make wider use of the optional clause in the Court's Statute. I hope that more States will place their trust in the Court by unilaterally recognizing its jurisdiction as binding.

Further, the report's account of the financial situation of the Court makes it very clear that the Court needs more resources to enable it to cope with its increased workload. According to the report, the current budget of just over $10 million per year is lower that the 1946 budget, while the Court's activities have increased a great deal since then. Many have expressed valid concerns that the limited resources may impede the Court in performing its functions as the principal judicial organ of the United Nations. It would be consistent if the expansion of the scope of the Court's activities -- which has been demanded for so long -- were now matched by adequate funding.

The International Court of Justice is not the only international tribunal now at work. Recent years have witnessed the establishment of several new international courts of law. Some, like the International Tribunal for the Law of the Sea, may deal with matters that can also fall within the jurisdiction of this Court. Others, like the ad hoc tribunals for the former Yugoslavia and Rwanda, as well as the future International Criminal Court, may deal with cases that cannot be brought before the International Court of Justice. All these courts contribute to the strengthening of the rule of law.

Recent developments in international political relations have facilitated recognition of the jurisdiction of international courts. The world has turned from mere coexistence to cooperation. One of the ways in which this is reflected is in the willingness on the part of the States to take their disputes to the International Court of Justice. There is a growing consensus that it is in the interest of all parties to have their disputes resolved through a binding third-party settlement.

The International Court of Justice has significantly strengthened the rule of law in international relations and contributed to respect for law and to international peace and security. It is well recognized that the influence of the Court also extends beyond its formal limits, thanks to the prestige and authority that the Court enjoys in the eyes of the world.

The International Court of Justice deserves the full support of all the Members of the United Nations.

I now call on Mr. Gilbert Guillaume, President of the International Court of Justice.

Mr. Guillaume (International Court of Justice)

It is an honour for me to address the General Assembly today on the occasion of its examination of the report of the International Court of Justice for the period 1 August 1999 to 31 July 2000.

Allow me at the outset to thank you, Sir, for the precious words of encouragement that you lavished on me during your introduction of this agenda item. I am particularly pleased to take the floor during your presidency. Your political experience, your talents as mediator and your feeling for consensus will be valuable assets for the Assembly.

Over the last decades Finland has displayed great wisdom in circumstances that have been delicate at times. Recently we witnessed further evidence of this in The Hague, when in 1992, in accordance with our expressed desire, Finland came to a friendly settlement of its dispute with Denmark over the construction of a bridge over the Great Belt. It is now the turn of the General Assembly, after the Court, to enjoy the benefit of this wisdom.

My predecessors at this rostrum -- particularly the most recent of them, Presidents Bedjaoui and Schwebel -- have offered an annual review of the Court's activities and of the progress achieved and problems encountered in international justice. This firmly established tradition is to be commended and I am most honoured to speak to the Assembly in my turn.

I will not impose on the Assembly a further reading of the written report before it. This year, for the first time, the report is preceded by a summary, which I hope the Assembly will find useful. I will point out, however, that the Court worked at a sustained pace over the past year.

First, in a Judgment of 13 December 1999, it ruled in a dispute that had been submitted to it in May 1996 by Botswana and Namibia concerning Kasikili/Sedudu Island. It found that the island belongs to Botswana, but stated that, in the two channels around Kasikili/Sedudu Island, the nationals of, and vessels flying the flags of, the Republic of Botswana and the Republic of Namibia shall enjoy equal national treatment.

Next, in a Judgment of June 21 2000, the Court found that it had no jurisdiction to entertain the Application filed in September 1999 by the Islamic Republic of Pakistan against India as a result of the destruction of a Pakistani aircraft. The Court did, however, remind the parties of their obligation to settle their disputes by peaceful means in accordance with Article 33 of the Charter.

Acting on a request by the Democratic Republic of the Congo for the indication of provisional measures against Uganda, on 1 July 2000 the Court indicated various measures to be taken by the two parties, especially in the area of Kisangani.

The Court also made 10 Orders and heard five weeks of oral arguments in the case between Qatar and Bahrain. It has at last begun its deliberations in that case.

It has also set a date in November this year for hearings in the LaGrand case between Germany and the United States and on a request for the indication of provisional measures made by the Democratic Republic of the Congo against Belgium.

Thus, the Court has been able to consider or begin its consideration of all cases that have been ready for hearing. Unfortunately, the coming months promise to be more difficult. While 10 cases appeared on the Court's List in 1994 and 12 in 1998, we saw an increase to 25 in late 1999, a new record in the annals of international justice. Twenty-four of these remain on the docket today.

These cases cover a very wide range. Four of them concern land or maritime boundary disputes between neighbouring States. They involve Qatar and Bahrain, Cameroon and Nigeria, Indonesia and Malaysia, and Nicaragua and Honduras. This is a classic but complex kind of dispute which calls for detailed consideration of numerous geographical and historical factors and requires a solution to sensitive problems. It is also, however, the kind of dispute in which the Court has played and continues to play an important role and makes an eminent contribution to maintaining international peace and security.

Another classic form of dispute involves cases in which a State complains before the Court of the manner in which one of its nationals has been treated by another State. Three cases in this category are now on our List -- one between Germany and the United States, another between Guinea and the Democratic Republic of the Congo and a third, filed last week, between the Democratic Republic of the Congo and Belgium.

The case concerning the Gabcikovo-Nagymaros Project between Hungary and Slovakia involves a dispute over a river of a kind that is also familiar to the Court. The Court rendered a Judgment in principle in that case in 1997 and the parties are now working to agree on the modalities for its implementation.

Other cases relate to events that have also been the subject of discussion or decisions of the General Assembly or the Security Council. The Libyan Arab Jamahiriya has brought cases before the Court concerning disputes between it and the United States and the United Kingdom relating to the explosion of an American civil aircraft over Lockerbie, Scotland. The Islamic Republic of Iran has brought proceedings before the Court concerning the destruction of oil platforms by the United States in 1987 and 1988. By two separate Applications, Bosnia and Herzegovina and Croatia have sought rulings against Yugoslavia for violating the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Yugoslavia itself is proceeding against 10 States members of the North Atlantic Treaty Organization, challenging the legality of their actions in Kosovo. Two of these Applications were dismissed in limine litis on the basis of a manifest lack of jurisdiction. Eight remain to be considered. Finally, the Democratic Republic of the Congo has claimed before the Court that it has been the victim of armed aggression by Burundi, Uganda and Rwanda.

As we can see, these disputes come from all corners of the world. Ten of them are between European States, concerning the Balkan situation for the most part. One relates to Latin America and two to Asia. Six are intercontinental in nature and five relate solely to African States. The Court is particularly pleased to note that African States are turning ever more frequently to it.

Much attention has been given to the reasons for the International Court's renewed vitality. Various technical factors have been advanced: the establishment of Chambers of the Court; improved procedures; creation by the United Nations Secretary-General of a fund to provide assistance in the judicial settlement of disputes; the greater confidence of States, inspired by the Court's development of jurisprudence. Each of these factors has played a role, but I believe that the essential reason is to be found elsewhere. History shows that judicial settlement is more easily accepted and is even in greater demand when the international arena is calmer. Conversely, in periods of heightened tension, States are less inclined to have recourse to courts. The Permanent Court of International Justice heard many cases during the 1920s, but its courtroom fell silent in the 1930s. The International Court of Justice also saw limited activity in the 1970s; it is being called upon more often and is more active today than ever before.

Aware of this development and anxious to adapt to it, the Court has for several years been taking those measures within its power to respond to this situation. First, it set up a committee to rationalize the work of the Registry. The committee recommended various measures that have been progressively implemented. The Court has also taken giant steps in modernizing its working and communication methods through the use of new information technologies, including the launching of a highly successful web site, to which you referred, Mr. President, with an average of nearly 2,000 visits a day and sometimes 20,000 on peak days.

The Court has also sought increased cooperation from the parties in the functioning of justice. In particular, it has informed them of its desire to see a decrease in the number of memorials exchanged, in the size of annexes to the memorials and in the length of pleadings. The Court's comments have had the desired effect in some new cases. In the case between Germany and the United States, the Court was glad to see the number of written memorials limited to one document from each party and the oral arguments limited to one week. In other cases, however, the case files remain disturbingly voluminous. The documentation in the Bosnia and Herzegovina v. Yugoslavia case is several thousand pages long, and one of the parties has sought to call hundreds of witnesses. In addition, the proliferation of preliminary objections, counter-claims and requests for the indication of provisional measures has encumbered many cases.

In 1997 the Court adopted various decisions concerning its own deliberations on which President Schwebel reported to the Assembly at that time. The Court has pursued this course. While the judges normally prepare written notes setting out their opinions before all deliberations, this procedure has been abandoned on an experimental basis, not only for the consideration of urgent requests for provisional measures, but also in cases concerning the Court's jurisdiction or the admissibility of applications. On several occasions the Court has begun the consideration of several cases at the same time. For example, last June, when Bahrain and Qatar were presenting their oral arguments, the Court was deliberating on the case between India and Pakistan and the provisional measures sought by the Democratic Republic of the Congo.

These steps will not, however, be enough to cope with the situation in coming years. The Court's financial and human resources are no longer sufficient for it to carry out its task properly. If it does not receive the necessary resources, it will find itself obliged, beginning in 2001, to delay passing judgement in a number of cases that will be ready for decision. From 2002 those delays may well last several years in some cases. This is not acceptable. Justice delayed is justice denied. Moreover, such long delays will erode not only the Court's function of resolving disputes, but also its very role in preventing and resolving international crises and, to be frank, in maintaining peace and security.

The Court is well aware of the financial difficulties of the United Nations. It has taken them into account in the past in limiting its requests, and it is sincerely grateful to the Assembly for granting it four additional posts in 1999. The current growth in litigation will, however, require much greater increases in staff. Unlike other United Nations organs, the Court cannot adapt its programmes to its resources; the resources must be adjusted to meet the legitimate expectations of the States that turn to it.

The Advisory Committee on Administrative and Budgetary Questions was aware of this in 1999, for it commended the Court "for action taken to address increasing workload in the context of budgetary stringency" (A/54/7, para. III.2) and recommended

"that the resource implications of [a dramatic increase in the number of cases] be reviewed in order to ensure that the ability of the Court to discharge its mandate is not adversely affected." (ibid., para. III.3)

The General Assembly itself noted with concern when the Court's most recent budget was adopted

"that the resources proposed for the International Court of Justice are not proportionate with the workload envisaged, and requests the Secretary-General to propose adequate resources ... in the context of the proposed programme budget for the biennium 2002-2003, commensurate with its increased workload and the large backlog of volumes of Court documents". (resolution 54/249, para. 89)

The Court's annual budget is now slightly over $10 million -- less than 1 per cent of the Organization's budget, which is a lower percentage than in 1946. The budget of the International Tribunal for the Former Yugoslavia is nearly $100 million for 2000, or roughly 10 times the Court's budget. The Tribunal's Registry has nearly 800 staff, while the Court's has only 61. Admittedly, the tasks of two judicatures are not wholly comparable. But those figures make it clear that States can support the work of international courts when they have the will to do so.

To meet its needs, the Court will request supplementary credits and a budget increase of the order of $3 million per year for the next biennium, 2002-2003. Its budget would thus increase to slightly more than $26 million for the two years, and its staff would be increased by 38, which would mean a Registry that still did not amount to 100 people.

Having to deal with case files some of which run to 5,000 or 7,000 pages and to conduct the lengthy hearings that are sometimes unavoidable, the judges cannot deliberate on more than two or three cases a year without appropriate assistance. Most national supreme courts provide law clerks to assist the judges by, inter alia, conducting the necessary research on case law and scholarly literature. The same is true in most international courts: the European Court of Justice, where each judge is assisted by three clerks; the European Court of Human Rights, for which the creation of law clerk positions is provided for in Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms; and the International Tribunal for the Former Yugoslavia, where each judge has a clerk. The same solution is needed for the International Court of Justice.

The Registry will be unable to perform its work without a significant increase in its staff. The Language Department has only six posts (including that of the head of department). The Finance Division has only two professional-grade posts, as does the Department of Press and Information Services. Several heads of department do not have secretaries and some judges must share a secretary. Although the President does have a secretary, he does not enjoy any other administrative or legal assistance.

It is therefore a real cry of alarm that I am obliged to place before the Assembly today. In many countries, the judiciary presides in sumptuous historic palaces, but at times lacks the financial resources necessary for it to perform its function. That is the case of the International Court of Justice. It is for the Assembly to decide whether the Court, the principal judicial organ of the United Nations, is to die a slow death or whether the Assembly will give it the wherewithal to live.

I do not however wish to stop here in this examination of international courts of law.

There is a problem that my predecessors have also pointed out and I would like briefly to bring to your attention today: the problem raised for international law and for the international community by the proliferation of international courts.

This phenomenon is in part a response to changes in international relations. It reflects greater confidence in justice and makes it possible for international law to develop in ever more varied spheres.

It does however bring with it problems which I will address in more detail before the Sixth Committee. First, it leads to cases of overlapping jurisdiction, opening the way for applicant States to seek out those courts that they believe, rightly or wrongly, to be more amenable to their arguments. This forum shopping, as it is usually called, may indeed stimulate the judicial imagination, but it can also generate unwanted confusion. Above all, it can distort the operation of justice, which, in my view, should not be made subject to the law of the marketplace.

Overlapping jurisdiction also exacerbates the risk of conflicting judgements, as a given issue may be submitted to two courts at the same time and they may hand down contradictory judgements. National legal systems have long had to confront these problems. They have resolved them, for the most part, by creating courts of appeal or review. In this regard, the international system is very deficient.

Finally, the proliferation of international courts gives rise to a serious risk of conflicting jurisprudence, as the same rule of law might be given different interpretations in different cases. This is a particularly high risk, as we are dealing with specialized courts, which are inclined to favour their own disciplines. Several examples of this may already be cited. Thus, in ruling on the merits of the Tadic case, the International Tribunal for the former Yugoslavia recently disregarded case-law formulated by the International Court of Justice in the dispute between Nicaragua and the United States. The Court had found that the United States could not be held responsible for acts committed by the contras in Nicaragua unless it had had "effective control" over them. After criticizing the view taken by the Court, the Tribunal adopted a less strict standard for Yugoslavia's actions in Bosnia and Herzegovina and replaced the notion of "effective" control with that of "overall control", thereby broadening the range of circumstances in which a State's responsibility may be engaged on account of its actions on foreign territory.

Regardless of what one might think of this solution, the contradiction thus created gives clear evidence of the risks to the cohesiveness of international law raised by the proliferation of courts.

What can be done to ensure that this situation does not give rise to serious uncertainty as to the content of the law in the minds of players on the international stage and does not ultimately restrict the role of law in inter-State relations?

An initial comment on this point would appear necessary. Before creating a new court, an international legislative body should, I think, ask itself whether the functions it intends to entrust to the judge could not properly be fulfilled by an existing court.

Judges themselves must realize the danger of fragmentation in the law, and even conflicts of case-law, born of the proliferation of courts. A dialogue among judicial bodies is crucial. The International Court of Justice, the principal judicial organ of the United Nations, stands ready to apply itself to this end if it receives the necessary resources.

Relying exclusively on the wisdom of judges might not be enough however. The relationships between international courts should, in my view, be better structured.

With this in mind, it has at times been suggested that the Court should serve as a court of appeal or review for judgements rendered by all other courts. This would undoubtedly be an ideal solution but it would require a strong political will on the part of States and I am not certain that such a will exists.

Another mechanism was referred to last year by my predecessor, in this very Assembly, and I think it is appropriate to come back to it today. In order to reduce the risk of differing interpretations of international law, would it not be appropriate to encourage the various courts to seek advisory opinions in some cases from the International Court of Justice by way of the Security Council or the General Assembly?

This procedure could be adopted even for those international courts that are not organs of the United Nations, such as the International Tribunal for the Law of the Sea and the future International Criminal Court. The Council of the League of Nations made requests for advisory opinions on behalf of other international organizations and it is difficult to see why the General Assembly could not do the same. Perhaps it could, by means of an appropriate resolution, urge not only the courts it has established but also those outside the United Nations system, to turn to the Court through the General Assembly.

The international community needs judges. It needs judges who have at their disposal the resources necessary to perform their functions. It needs judges acting in the service of the law.

I assure the Assembly that the International Court of Justice will continue in this spirit to perform those duties which are currently assigned to it and it stands ready to fulfil such others as may be entrusted to it. It is counting on the Assembly's assistance to achieve those ends.

Mr. Yachi (Japan) --> -->

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