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The Peace Palace Heats Up: The World Court in Business Again? Author(s): Keith Highet Source: The American Journal of International Law, Vol. 85, No. 4 (Oct., 1991), pp. 646-654 Published by: American Society of International Law Stable URL: http://www.jstor.org/stable/2203270 . Accessed: 20/12/2014 06:53 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. . American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access to The American Journal of International Law. http://www.jstor.org This content downloaded from 128.235.251.160 on Sat, 20 Dec 2014 06:53:01 AM All use subject to JSTOR Terms and Conditions

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Page 1: The Peace Palace Heats Up: The World Court in Business Again?

The Peace Palace Heats Up: The World Court in Business Again?Author(s): Keith HighetSource: The American Journal of International Law, Vol. 85, No. 4 (Oct., 1991), pp. 646-654Published by: American Society of International LawStable URL: http://www.jstor.org/stable/2203270 .

Accessed: 20/12/2014 06:53

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access toThe American Journal of International Law.

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Page 2: The Peace Palace Heats Up: The World Court in Business Again?

EDITORIAL COMMENTS

THE PEACE PALACE HEATS UP: THE WORLD COURT IN BUSINESS AGAIN?

No student or practitioner of international law will have failed to observe what has been going on at the International Court of Justice in the last year: the Court in The Hague is busier than it has ever been in its entire history-going all the way back to its predecessor in the 1920s. Its docket is crammed, the cases before it diverse. Thanks to the steady performance of its duties in the past decade, the Court has emerged yet again as one of the more viable international institutions in today's world.

This vitality is hardly what had been forecast by many experts. The voices against the Court-first raised at the jurisdiction and admissibility phase of the Nicaragua case' and accelerated by the Judgment on the merits2 -have been stri- dent and steady, particularly among those sympathetic to the policies of the United States in Central America in the 1980s.3 Panel discussions were held, speeches delivered, comments and notes written. A particularly deep look was given at the Court by the 1987 book The International Court ofJustice at a Crossroads; it contained numerous arguments that the Court in its present condition and position was badly in need of reformation or repair.'

Basic to these views was the assumption that the Court had lost the confidence of most states-not just the United States-and that this loss of confidence would be manifested by an empty docket and a common perception of the Court's "irrele- vance" as ajudicial institution. Opposed to these views was a minority of commen- tators who continued to voice the Pollyanna-ish ideas that the Court was not such a bad institution after all, that it was the only Court that we have, and that we should make the best of it without trying to run it down.5 Even friendly voices acknowledged the magnitude of the problems faced by the Court as the "principal judicial organ of the United Nations,"6 and the need and desirability of reforms.

l Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ REP. 392 (Judgment of Nov. 26).

2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ REP. 14 (Judgment of June 27). See, e.g., Appraisals of the ICJ's Decision: Nicaragua v. United States (Merits), 81 AJIL 77 (1987).

3 For a discussion of the historical position of the United States toward the Permanent Court and the International Court, see a recent article by the author, Winning and Losing: The Commitment of the United States to the International Court-What Was It, What Is It, and Where Has It Gone?, 1 TRANSNAT'L L. & CONTEMP. PROBS. 157 (1991).

4THE INTERNATIONAL COURT OFJUSTICE AT A CROSSROADS (L. Damrosch ed. 1987). 5 See Briggs, The International Court ofJustice Lives up to Its Name, 81 AJIL 78, 81 (1987). The present

author is honored to count himself in Briggs's company. See, e.g., Highet, Litigation Implications of the U.S. Withdrawalfrom the Nicaragua Case, 79 AJIL 992 (1985); "You Can Run But You Can't Hide"-Re- fiections on the U.S. Position in the Nicaragua Case, 27 VA. J. INT'L L. 551 (1987); Nonappearance and Disappearance Before the International Court ofJustice (Book Review), 81 AJIL 237 (1987); Evidence, the Court, and the Nicaragua Case, 81 AJIL 1 (1987); and most recently, Highet, supra note 3.

6UN CHARTER Art. 92. 7See the two thoughtful and provocative studies R. FALK, REVIVING THE WORLD COURT (1986),

and T. FRANCK, JUDGING THE WORLD COURT (1986).

646

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1991] EDITORIAL COMMENTS 647

Indeed, the fallout from the Nicaragua case was outrageous. The United States not only twice vetoed attempts by Nicaragua to enforce the decision in the Secu- rity Council;8 it also withdrew entirely from the optional clause system of the Court.9 Moreover, it boycotted the merits phase and did not participate in the subsequent compensation phase, in which many billions of dollars in damages were claimed by the Sandinista regime and which-mercifully for the United States (and for the Court)-is now in the process of being withdrawn by the Chamorro administration as part of an overall settlement.

So what is new? The answer is: in the course of the past two years-and in addition to the pending active case between El Salvador and Honduras-some nine new cases have been submitted to the Court. With one exception,10 they were all filed by application, are therefore11 before the full Court, and feature a variety of new issues brought by states that are themselves new to the Court. Of the nine, four were initiated in the past six months.12

In chronological order of filing, these nine cases are: (1) Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway);13 (2) Aerial Incident of 3 July 1988 (Iran v. United States);14 (3) Certain Phosphate Lands in Nauru (Nauru v. Australia);`5 (4) Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal);16 (5) Territorial Dispute (Libya / Chad);17 (6) East Timor (Portugal v. Australia);18 (7) Maritime Boundary (Guinea-Bissau v. Senegal);19 (8) Passage through the Great Belt (Finland v. Denmark);20 and Provisional Measures (hearings held on July 1-5, 1991);21 and (9) the case brought by Qatar against Bahrain concerning sover- eignty over islands, shoals, and maritime areas.22

Thus, the Court suddenly finds itself busier than ever, with an extraordinary variety of work, quite apart from the hangover of inactive matters from the unfor- tunate and enormously important Nicaragua series, which includes the case brought by Nicaragua against Honduras, Border and Transborder Armed Actions23 -also expected to be withdrawn upon final settlement of the main case between Nicaragua and the United States.

8 See, e.g., 41 UN SCOR (2718th mtg.) at 46, UN Doc. S/PV.2718 (1986). 9 Department of State Letter and Statement Concerning Termination of Acceptance of I.CJ. Com-

pulsory Jurisdiction (Oct. 7, 1985), reprinted in 24 ILM 1742 (1985). 10 Territorial Dispute (Libya/ Chad): this was an amalgam of application and special agreement. See

1990 ICJ REP. 149 (Order of Oct. 26). " Although it is not necessary to have a special agreement or compromis to arrive at a chambers

procedure rather than proceedings before the full Court, this was in fact what happened in the ELSI case. Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy), 1989 ICJ REP. 15 (Judgment ofJuly 20). ELSI was the only instance of that occurrence, which is essentially an anomaly, for not the least reason that the parties to the case were close friends and allies. See Highet, Evidence, the Chamber, and the ELSI Case, in FACT-FINDING BEFORE INTERNATIONAL TRIBUNALS 33 (R. Lillich ed. 1991).

12 East Timor (Port. v. Austl.); Maritime Boundary (Guinea-Bissau v. Senegal); Passage through the Great Belt (Fin. v. Den.); and the case brought by Qatar against Bahrain concerning sovereignty over islands, shoals, and maritime areas.

1 Application filed on Aug. 16, 1988. 14 Application filed on May 17, 1989. 15 Application filed on May 19, 1989. 16 Application filed on August 23, 1989. 17 1990 ICJ REP. 149 (Order of Oct. 26). 18 Application filed on February 22, 1991. 19 Application filed on March 12, 1991. 20 Application filed on May 17, 1991. 21 See ICJ Communique No. 91/20 (July 8, 1991). 22 The official title has not yet been indicated by the Registry. Application filed on July 8, 1991. See

ICJ Communique No. 91/21 (July 8, 1991). 23 See 1986 ICJ REP. 551 (Order of Oct. 22); and Provisional Measures, 1988 ICJ REP. 9 (Order of

Mar. 31).

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In April the Court finished hearings in the Guinea-Bissau v. Senegal case, in- volving a challenge to an arbitral award concerning a maritime delimitation of the 1960s.24

In June its Chamber finished the hearings in the El Salvador/Honduras case,25 hearings that consumed two straight months.26 This case-with fifty sessions-is the longest single case since the ill-fated "merits" phase of the South West Africa cases in 1965.27 Few save those involved in the case as counsel28 -and, of course, the judges-will know that this case, which because of its length became known familiarly around the Peace Palace this spring as "Fonseca Traction" -is really four, if not five, cases of normal size and shape rolled into one (and is being heard by a chamber, at that). El Salvador/Honduras breaks down into four substantive segments, which have indeed been treated separately and sequentially by the Chamber. They are: (1) the land frontier between El Salvador and Honduras in six contested areas; (2) the title to islands in the Gulf of Fonseca; (3) the legal status of the waters of the Gulf of Fonseca; and (4) the legal status of the "mari- time spaces" of the Pacific Ocean.

Each one of these four segments could well have been a case unto itself: the first segment, concerning the land boundary dispute, was the equivalent of Frontier Land and the Temple cases taken together,29 with Burkina Faso/Mali perhaps added for good measure30 (and a dash of seasoning from the King of Spain).31 The second part, concerning islands, was like Minquiers and Ecrehos,32 with elements of Eastern Greenland added in.33 The third part, involving the waters of the Gulf of Fonseca, presented questions of the dimension of those in the Fisheries case;34 and the last part of the case involved unprecedented questions of entitlement to mari- time areas by a state (Honduras) with no direct ocean frontage, and was thus the equivalent of at least parts of the North Sea and Tunisia /Libya cases.35 In addition,

24 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), a matter not unlike the 1960 case in the Court concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Hond. v. Nicar.), 1960 ICJ REP. 192 (Judgment of Nov. 18). (The writer served as counsel for Guinea-Bissau in these proceedings.)

25 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening). 26 For critics of the Court, who like to point out without personal experience how light the workload

of the Court is, the actual schedule kept by the judges should come as a rude awakening. In addition, keep in mind that the burden is particularly hard on the President and Vice-President, Judges Sir RobertJennings and Shigeru Oda, who in April served on the full bench in the Guinea-Bissau v. Senegal case and then continued to sit as members of the Chamber in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), to which they had been appointed individual members several years ago under the presidency of Jose Sette-Camara.

27 South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.), Second Phase, 1966 ICJ REP. 6 (Judg- ment of July 18).

28 The author served as counsel for El Salvador during these proceedings. 29 Sovereignty over Certain Frontier Land (Belg./Neth.), 1959 ICJ REP. 209 (Judgment of June

20); Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, 1962 ICJ REP. 6 (Judgment of June 15).

30 Frontier Dispute (Burkina Faso/Mali), 1986 ICJ REP. 554 (Judgment of Dec. 22). 31 Case concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Hond. v.

Nicar.), 1960 ICJ REP. 192 (Judgment of Nov. 18). 32 The Minquiers and Ecrehos case (Fr./UK), 1953 ICJ REP. 47 (Judgment of Nov. 17). 33 Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ (ser. A/B) No. 53 (Judgment of

Apr. 5). 34 Fisheries case (UK v. Nor.), 1951 ICJ REP. 116 (Judgment of Dec. 18). 35 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP. 3 (Judgments of Feb. 20);

Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ REP. 18 (Judgment of Feb. 24).

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El Salvador/Honduras was accompanied by an unprecedented decision permitting a nontreaty intervention under Article 62 of the Statute; the intervening party (Nicaragua) was allowed to plead to the third part of the case, the status of the waters of the gulf.36 That decision was therefore again at least the equivalent of the Malta Intervention in the Tunisia/Libya case37 or the Italian Intervention in the Libya/Malta case.38 The unavoidable conclusion is that this "little" case, now being decided by a chamber on which the President and the Vice-President of the Court both sit, will prove to be one of the most important "big" cases in the Court's history.

The following eight cases still remain to be heard: Jan Mayen, Aerial Incident, Phosphate Lands in Nauru, Libya/Chad Territorial Dispute, East Timor, Guinea- Bissau/Senegal Maritime Boundary, Passage through the Great Belt, and Qatar v. Bahrain.39 What inferences can be drawn from these new cases?

The first and most obvious conclusion is that, with one exception, these are all cases brought by application. Titles of jurisdiction vary from assertions of com- mitments made in the course of mediation to straightforward reliance on the optional clause. They include a variety of treaty compromissory clauses, including friendship, commerce and navigation treaties and the Chicago Convention. But the fact remains that seven out of the eight were not brought by special agree- ment. This circumstance suggests several things.

The first implication is that the full Court will be busy again. Applications generally imply a full bench, not chambers. To have seven cases in a row tried by the full Court should be a shot in the arm for the institution, which some observers sensed was becoming irritable at the plethora of chamber cases that seemed to follow the Gulf of Maine.40 Too many of the same judges were being used for chambers assignments, to the obvious detriment of the functioning of the whole Court; otherjudges were left with little to do; and there was a responsible question as to whether such chambers could really be constituted at the direction of the parties without losing their quality as judicial institutions rather than arbitral panels, and without inconsistency under the Statute. A thoughtful examination and denial of the validity of chambers was made by Judge Shahabuddeen in his dissenting opinion to the Order of the Court concerning the Nicaragua Intervention in the El Salvador/Honduras case.41

This problem, however, has momentarily been set aside, since the full Court will now have to function most of the time like a court-indeed, it contains some new and promising judges who have only served on it since earlier this year, and who might well not have been invited to participate in chambers proceedings. It would be premature to view these recent developments as a setback to the idea of

86 Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ REP. 92 (Judgment of Sept. 13).

87 Continental Shelf (Tunisia/Libyan ArabJamahiriya), Application [Malta] to Intervene, 1981 ICJ REP. 3 (Judgment of Apr. 14).

38 Continental Shelf (Libyan Arab Jamahiriya/Malta), Application [Italy] to Intervene, 1984 ICJ REP. 3 (Judgment of Mar. 21).

39 See note 22 supra. 40 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./UlS.), 1984 ICJ REP.

246 (Judgment of Oct. 12). 41 Land, Island and Maritime Frontier Dispute (El Sal./Hond.), Application to Intervene, 1990 ICJ

REP. 3, 18 (Order of Feb. 28) (Shahabuddeen, J., diss. op.). Judge Shahabuddeen is of the view that fully consensual chambers-in which the judges are handpicked by the parties-are inconsistent with the Statute.

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chambers. It is not the idea of a chamber that is being repudiated: it is the idea of a special agreement or compromis that has been short-cut in favor of plain old appli- cations: summonses and complaints. Nonetheless, the vigor and clarity with which the full Court is now challenged to deal with this large number of cases will have an important effect on its future, and in particular on whether parties will prefer to take potluck before the full tribunal or seek out a more personalized accommoda- tion before a chamber.42

The second conclusion is that striking new areas of law have been introduced; we can fully expect international law to be developed by the Court's decisions on these matters.

The most dramatically interesting case on the list is Aerial Incident, involving the international responsibility of the United States for the shooting down of Iran Air Flight 655 by the USS Vincennes in the Persian Gulf during the Iran-Iraq War, when the United States was taking an active containment role in patrolling gulf waters. The legal texts at issue are the Chicago and Montreal Conventions and (believe it or not) an undenounced Treaty of Friendship, Commerce and Naviga- tion between the United States and Iran. The substance at issue is, of course, Article 51 of the Charter, the customary international law of self-defense, and the rights of third states to defend their nationals in international waters during hostilities.

In addition, we find here the same pattern as that experienced previously in the Nicaragua case: the first superpower as unwilling defendant. The very back- ground of facts in this case-the conflict in the Persian Gulf in 1988, the use of force, the right of self-defense, the exercise of care, the rights of noncombatants in relation to an armed conflict, and the laws of armed conflict applicable to civil aviation-is of critical (and, to employ a much overused word, "ongoing") impor- tance and relevance to matters currently on the world stage.

Perhaps the Court will seize upon this opportunity to rectify to a small degree some of the damage that some perceive to have been done to the law and logic of the Charter and customary international law in the context of its meritsJudgment in Nicaragua, and to refine its appreciation of the rules on the use of force and self-defense under Article 2, paragraph 4, and Article 51 of the Charter.

To the great credit of the Bush administration and the Department of State, moreover, the United States is appearing in these proceedings. True, it is contest- ing the jurisdiction; but that is only right and proper if serious and arguable questions are perceived to exist. What the United States is not doing is to "disap- pear," as it did in 1985-leaving the field and the victory to its opponent and abandoning the U.S. national judge, Stephen M. Schwebel, to a half-empty court- room and an impossibly difficult task. It is obviously inappropriate to hope for one result or the other in this case: these are not sides to an athletic match. One can only hope that the Court will do justice by a reasoned and careful judgment in this case and that, if that judgment is in fact unfavorable to the United States, the U.S.

42 There has been substantial argument and discussion concerning this point. See, e.g., Schwebel, Ad Hoc Chambers of the International Court ofJustice, 81 AJIL 831 (1987); and Oda, Further Thoughts on the Chambers Procedure of the International Court ofJustice, 82 AJIL 556 (1988). In particular, however, see the Dissenting Opinion ofJudge Shahabuddeen in the Nicaraguan Intervention proceedings, supra note 41, and the extensive discussion of this opinion and the overall subject in E. LAUTERPACHT, ASPECTS

OF THE ADMINISTRATION OF INTERNATIONALJUSTICE 86-95 (1991).

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Government will continue its new and positive attitude and will not then start bashing the Court once again.43

Other frontier issues of international law are presented by these new cases. The Jan Mayen case for the first time places squarely before the Court the issue of the relative "entitlements" of landmasses to maritime spaces under the contemporary international law of the sea, when both are island dependencies of relatively dis- tant mainlands and there is an acknowledged disparity in coastal lengths (Green- land and Jan Mayen Island). Certain Phosphate Lands in Nauru raises interesting questions of international accountability for operations and conduct in a trust territory. Reminiscent of the famous Ocean Island case in the High Court in Eng- land, Nauru is also a "first" as regards redress sought of a former trusteeship authority for its administration of the economic assets of a trust territory. The elements of the interminable South West Africa series of cases that pertained to international fiduciary accountability may at last be applied, in a new and wholly unexpected context.

Finally, there might appear to be a "community of interests" applicable to the Nauru case and to the other recent case involving Australia, East Timor. These raise novel, but fundamental, issues of the representation and recognition of states in the context of occupation, and the duty of third states in relation to a conquer- ing power. The principal question raised in the latter case appears to be that Australia should not have agreed to a delimitation with Indonesia with respect to East Timor, since East Timor was taken by force and should not be bound by important maritime arrangements entered into with its conqueror.

To this extent, the case bears a curious resemblance to the facts at issue in the arbitral award involved in Arbitral Award of 31 July 1989, i.e., the elemental fair- ness of agreements reached by colonial powers and inherited by their successor independent states in the context, inter alia, of the 1982 Convention on the Law of the Sea. In the Arbitral Award case, the principal question presented to the Court concerns the respect due an arbitral award that may have failed to answer all the question(s) put by the parties to the arbitration. Curiously enough, with the current difficult experience of the International Centre for Settlement of Invest- ment Disputes relating to appeals of arbitral decisions, this matter bears con- siderable importance beyond the relatively narrow confines of the arbitration in question.

Territorial Dispute (Libya / Chad) is a classic postcolonial dispute about territorial boundaries, strongly reminiscent of the recent decision in Mali /Burkina Faso.4" Yet the case also represents a further refinement of the rule of uti possidetisjuris- the vexing and often misunderstood doctrine of state succession to colonial terri- torial boundaries-which was presented in the arbitration underlying the Arbitral Award case, and with which the Chamber in the El Salvador/Honduras case will have to deal in extenso.

Likewise, the brand-new case brought by Qatar against Bahrain raises fascinat- ing questions of territorial claims, including a maritime boundary purportedly

43 It is also to be hoped that the United States would not then bash the Court indirectly by vetoing any enforcement action in the Security Council, an action which, although technically legal, is obviously of dubious propriety. See, for example, the reasoning of the Permanent Court in Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier Between Iraq and Turkey), 1925 PCIJ (ser. B) No. 12, at 32 (Advisory Opinion of Nov. 21), concerning the principle of nemo judex in re sua.

41986 ICJ REP. 554.

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established by the British Government (under a special treaty relationship); to this extent, there may well in part be a parallel with the underlying facts in Arbitral Award of 31 July 1989, where Guinea-Bissau contested (on the basis of exce's de pouvoir) the validity of an arbitration that had upheld the fairness of just such dispositions but was unable to address itself directly to those findings.

In addition, Qatar v. Bahrain appears to involve the scope of the Court's ability to effect a delimitation of maritime areas without specific direction to that effect by the parties. This issue may also be presented in the pending Maritime Boundary (Guinea-Bissau v. Senegal) case (which may be the first delimitation case presented to the Court that concerns the exclusive economic zone alone, independent of the continental shelf or territorial sea) and inJan Mayen, where Denmark has relied on the optional clause to ground a claim for delimitation by a single boundary line relating to both the continental shelf and the fisheries zone between Jan Mayen and Eastern Greenland.

Finally, in Passage through the Great Belt, Finland has objected to the proposed construction by Denmark of a bridge that would not permit Finnish-built offshore drilling rigs to be transported through the straits from the Baltic to the North Sea. Obviously, brand-new threshold issues of international law are raised here: not the least of which is the status of straits and littoral states under the 1982 Law of the Sea Convention, the reasonableness of impeding structures, the duties of states regarding their own territorial waters, the nature and identity of entities (ships, rigs and platforms) protected under international law, and the propriety of a restraining order in such a case.45

The third conclusion that can be drawn is the observation that a new group of states have emerged as participating in the Court's process.

It has been a long time since Denmark has activated a case before the Court.46 Now it is the applicant in one case and the respondent in another. Australia, once an applicant in Nuclear Tests,47 now finds itself the respondent in two cases: in one there is a wholly new applicant (Nauru), and in one the applicant (Portugal) has not used the Court for thirty-four years.48

Other new parties to enter the Great Hall ofJustice will include Bahrain, Chad, Finland and Qatar. Guinea-Bissau and Senegal have already been in the Court and may well be there again. Libya, appearing for the sixth time, is perhaps one of the Court's most persistent customers and surely one of its most surprising ones, in view of popular opinion in some quarters concerning Libyan adherence to the rule of law.49 Another unpopular state-Iran-is also seeking the protection of the Court in connection with the Airbus disaster. This application can only be seen

45 Ie., provisional measures of protection under Article 41 of the Statute. The Court rejected a Finnish application for provisional measures on July 29, 1991. ICJ Communique No. 91/24 (July 29, 1991).

46 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ REP. 3 (Judgments of Feb. 20). 47 Nuclear Tests (Austl. v. Fr.; NZ v. Fr.), 1974 ICJ REP. 253, 457 (Judgments of Dec. 20). 48 Case concerning right of passage over Indian territory (Preliminary Objections), 1957 ICJ REP.

125 (Judgment of Nov. 26); and (Merits), 1960 ICJ REP. 6 (Judgment of Apr. 12). 49 See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application [Malta] to Intervene, 1981

ICJ REP. 3 (Judgment of Apr. 14); Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ REP. 18 (Judgment of Feb. 24); Continental Shelf (Libyan Arab Jamahiriya/Malta), Application [Italy] to Intervene, 1984 ICJ REP. 3 (Judgment of Mar. 21); Continental Shelf (Libyan Arab Jama- hiriya/Malta), 1985 ICJ REP. 13 (Judgment ofJune 3); Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), 1985 ICJ REP. 192 (Judgment of Dec. 10).

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as a strong vote of confidence by a revolutionary government that did not fare particularly well in its two previous appearances before the Court.50

The Court is therefore effectively operating in far more widely spread areas of the world than ever before. It faces two South Pacific cases, Nauru and East Timor; two Middle Eastern cases, Iran Aerial Incident and Qatar v. Bahrain; three African cases, the Guinea-Bissau / Senegal Arbitral Award, the Guinea-Bissau / Senegal Mari- time Boundary, and Territorial Dispute (Libya/ Chad); and two Scandinavian cases, Jan Mayen and Great Belt. In addition, it is still dealing with the biggest Latin American case of all time: the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, with Nicaragua intervening. For the first time, then, in many years, the Court has turned back into a "world" court.

The last inference to be drawn is that at the end of these cases, the Court will surely have nailed down its primacy in matters relating to the law of the sea. Two-thirds of the cases involve it directly, and the only one without any visible maritime connection is Territorial Dispute (Libya / Chad)-a case as much in the desert as Burkina Faso/Mali.51

The Court is therefore now continuing full speed ahead on its productive and convincing path toward mastery of the law of the sea. It has already produced, from 1969 to the present day, the only single body ofjurisprudence in the area. It will continue to do so and thus redouble and affirm its position. The International Court, dominant in the field, will clearly remain so.

All this activity is in spite of the impending arrival of the International Tribunal for the Law of the Sea (the "Hamburg Court"), referred to in Article 287(1)(a) of the 1982 Convention and to be established under Annex VI to the Convention, but which obviously must await the entry into effect of the Convention, which could be next year, or the year after, or five years later, or perhaps never. Yet if the Hamburg Court comes into being, what then? Does the extraordinarily broad caseload now confronting the International Court not have strong implications for the other tribunal? Obviously, the Law of the Sea Tribunal will hardly be competing on an even playing field with its older sister, which will have decided a dozen cases over twenty-five years and have solidified its broad and general au- thority in the interpretation and application of the international law of the sea.

If we assume that the Law of the Sea Convention will in fact come into effect, its Law of the Sea Tribunal will likely find itself a more technical body at the outset than previously anticipated. It will probably be confronted with narrower and more specialist claims under the Convention than had been planned: activities such as those of its Sea-Bed Disputes Chamber under Article 197. This process will undoubtedly become equalized as the years go by; the Hamburg Court will in all likelihood assume a greater general substantive role than at the beginning, once member states of the Convention understand the power of part XIV of the Con- vention for the mandatory settlement of disputes. But the chances are also that Hamburg will still never catch up to The Hague.

One must note that at least one voice was recently raised in an eloquent plea to abandon the idea of such a duplicative system by amending the Law of the Sea Convention to remove the provisions for the Tribunal.52 The International

50 Anglo-Iranian Oil Co. (UK v. Iran), Interim Protection, 1951 ICJ REP. 89 (Order ofJuly 5), and Preliminary Objections, 1952 ICJ REP. 93 (Judgment ofJuly 22); and United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ REP. 3 (Judgment of May 24).

51 1986 ICJ REP. 554. 52 See E. LAUTERPACHT, supra note 42, at 19-22.

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Page 10: The Peace Palace Heats Up: The World Court in Business Again?

654 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 85

Court, perhaps viewed in 1982 as being cumbersome and relatively inexperienced in modern maritime matters, has come a long way in the nine years since the signing of the Convention and, thanks to this new spate of application cases, will have come a long way further by the time that ground is broken beside the Elbe for the building of the Law of the Sea Tribunal. Perhaps such an amendment will be effected de facto-by the attractiveness and experience of the International Court of Justice itself-where it probably never could be done de jure-by the actual amendment of the Law of the Sea Convention.

As recently as 1989, the then Legal Adviser of the Department of State ad- dressed himself in a speech to alternative ways of making the Court function better, including in particular a general plan for agreement among the five perma- nent members of the Security Council to various modifications in the procedure that, in principle, they could use to refer disputes on a certain range of subjects to chambers of the full Court. This agreement, he said,

should be recognized by the ICJ as a binding international agreement and, we hope, regarded by the Court as a constructive measure designed to enhance its role. However, if the Court cannot accept some feature that is an essential part of the plan, provision should be made in the convention for binding adjudication in a substitute forum. 53

Perhaps the still-uncompleted initiative of the permanent five has been over- taken by events. The Court-confronted with a variety of new and significant issues, and a variety of new and interesting parties-will now start to regain the authority and ability that its friends have always wished it to display. In that case, the concept of an alternative solution to existing litigation before the full tribunal will become more specialized and recondite-perhaps only to be used by the United States, as ever uncomfortable with the Court's activities, and the other permanent members in a technical and possibly desultory environment.

The real work of the Court over the next decade will be the reconciliation of the interests of developing countries with those of the developed countries, and its real constituents a wide range of middle-level powers seeking to resolve or defuse critically important local problems, usually-although, of course, not always- concerning a boundary.

Will we learn by this experience-guaranteed to take us through 1995-that this constituency of states is perhaps the one that will most frequently use, and be directed by, the Court? Is this all that bad a result? Perhaps it is the correct one for the next decade. The greater powers could not be expected to abide by decisions of the Court in every instance; it is the lesser powers that by definition require the additional strength and protection of the Court, and it is by their participation and willingness to use the Court that new ground is broken, and past prejudices and fears set aside and allayed.

The Court, like a phoenix, appears to have emerged from the ashes of Nicara- gua. It has become a hot court-perhaps even a "hot bench" in the American phrase. It is positioned, for the first time in its collective seventy-year history, to become the great international judicial institution that its friends and supporters always knew that it could be.

KEITH HIGHET

" Sofaer, Adjudication in the International Court of Justice: Progress through Realism, 44 A.B.N.Y.C. REC. 462, 483 (1989) (emphasis added).

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