No. 3]
Book Review
The Price of International Justice by Philip C. Jessup, 1971, New York:
Columbia University Press. Pp. viii, 82, $6.55.
The International Court of Justice is the principal judicial organ
of the United Nations. When it was formally opened in 1946, as
the successor to the Permanent Court of International Justice, it
was expected that the court would play an important role in the
settlement of international legal disputes by peaceful means. Since
the 1960s, however, there has been a marked decrease not only in
the number of contentious cases referred to it for settlement but
also in the number of requests for its advisory opinions. The
court has delivered to date thirty-one judgments and fourteen
advisory opinions. Since 1960 it has received and decided only four
contentious cases and given only two advisory opinions; there are
four cases pending.
137 to date –
The declining interest of states in the court is also reflected in
the diminishing popularity of its compulsory jurisdiction. All
member states of the United Nations –
are ipso facto
parties to the Statute of the court. In addition, there are three
non-member parties, namely, Lichtenstein, San Marino and Switzer-
land. The court is also open to two other states, West Germany
and South Vietnam, by virtue of their voluntary declarations. Of
these 137 parties, only 47 have accepted the court’s compulsory
jurisdiction, many with reservations. This record compares un-
favourably with that of the Permanent Court whose compulsory
jurisdiction was accepted by as many as 38 of the 54 member
states of the League of Nations.
It was against this background of “crisis” that on 15 December
1970 the General Assembly agreed unanimously to launch a general
review of the role of the court. States parties to the Statute were
invited by the Secretary-General to submit by 1 July 1971 their
views and suggestions on the following points: (i) the role of the
court within the framework of the United Nations; (ii) the organ-
isation of the court; (iii) the jurisdiction of the court; (iv) the
procedures and methods of work of the court; and, (v) future
action by the General Assembly. On the basis of the thirty-one
replies to the questionnaire, the Sixth Committee considered the
McGILL LAW JOURNAL
[Vol. is
item during the Twenty-Sixth Session of the Assembly in 1971;
this debate produced resolution A/C 6/L 831 of 2 December 1971,
the result of which was to continue the work to the Twenty-Seventh
Session.
The thirty-one replies include the views of the major powers
as well as the views of the major dissenters, though, in numerical
terms, the number hardly reaches a quarter of all the parties
invited to reply. Broadly speaking, the opinions expressed in the
replies and during the debate fall into three categories: those that
favour the creation of an ad hoc committee to study the problem;
those (mainly socialist states) that regard the whole issue as an
exaggeration of a problem that can be left to the court itself and
to individual sovereign states; and, those in the middle. It may
be noted that the resolution adopted by the General Assembly in
1971 was a compromise between the first and the second group
of opinions. The major points that are raised by the thirty-one
respondent states are briefly discussed here in accord with the
headings of the questionnaire.’
I. The Role of the Court
a. The Disinclination of States to seek International Adjudication
In spite of the reluctance of states to settle their international
legal disputes by recourse to the court, none of the respondents
denies the importance of the role that the court plays as well as
the influence of its judgments and advisory opinions on the pro-
gressive development of international law. At the same time, the
respondents, though not the great powers specifically, agree that
the court is playing an insufficient role. This is said to arise from
a number of factors:
(1) General: the lack of a unified concept of
international justice; the lack of confidence in the court; doubt
about the competence and objectivity of the court; reluctance to
rely on third-party adjudication; dislike of court-going. (2) Political:
attachment to national sovereignty; disbelief in the possibility of
accommodation at the ideological level; present structure of inter-
national relations; and, the dominant importance of national in-
terests. (3) Procedural: unfamiliarity with the forum; length of
time required for litigation; costs of litigation; dissatisfaction with
the composition of the court; dissatisfaction with the mode of
election of the judges.
IA/8382 Add. 1-4.
No. 3]
BOOK REVIEW
This is a fairly full catalogue of the major factors that contribute
to the reluctance of states to seek the services of the court.
Numerous as they may be, few, if any, of them would prevail over
the genuine intention of a state to settle a dispute by resort to
judicial settlement. At the risk of oversimplification, therefore, it
can be asserted that the basic cause of states’ disinclination lies
not in minor technicalities, but in their lack of will to resort to
adjudication, as is rightly observed by Japan and Switzerland. The
truth is that, in contrast to the inter-war period, states have moved
away from the idea of judicial settlement as a central part of their
concept of the development of international order. It is quite
possible that there will be a swing back – who, for example,
would have thought in 1971 that there would be four cases pending
in 1972? – but at the present time it seems that the preferred
method of dispute settlement is one that emphasizes flexibility and
freedom to control the proceedings and the outcome.
b. The law Applied by the Court
This is one of the most controversial points in the current debate.
A number of developing countries, Cyprus, Ethiopia, Guatemala,
Iraq and Mexico, among others, have pointed out that paragraphs
I(B) and (C) of Article 38 of the Statute are badly in need of
amendment; they are said to be anachronistic and discriminatory.
This allegation is based on the historical-political fact that the
majority of the parties to the Statute did not take part in the
process by which much of customary international law was created;
it challenges the continued use of the familiar phrase “civilized
nations” and, by implication, it brings into question the authority
of certain parts of customary international law itself.
It is true that much of modern international law springs from
the practice over the past four hundred years of the states within
the Christian civilisation. On the other hand, the community of
nations has expanded rapidly since 1945, when the Charter of the
United Nations, of which the court’s Statute is an integral part, was
signed by only fifty states at San Francisco. There are now nearly
three times as many independent states. These newly emerged
members have come to question –
and they are fond of doing
so in an open forum where majority rule prevails –
the objectivity
of certain rules of customary law that date back to the time when
the world was in the hands of a few leading powers. As is well
known, this challenge is part of the process of accommodation
and adaptation that is being sought by the new majority and the
established minority.
McGILL LAW JOURNAL
(Vol. 18
Of course it is possible to argue that the problem of customary
international law may prove to be more academic than realistic.
International custom is only one of the sources of law to be applied
by the court; the effect of a particular custom will not prevail
over the ex aequo et bono provision if the parties agree to use
this provision; and the creation of customary international law
does not necessarily depend on the efflux of a lengthy period of
time. This latter point is admirably illustrated by the doctrine of
the continental shelf, which was formulated almost irrespective
of the time factor, having required little more than a decade to
be recognised by the majority of coastal states.
However, the problem of customary international law is a basic
problem and I believe that it is not likely to wither away. For
example, while it is true that the third world states are dissatisfied
with certain rules of customary international law, for example,
those applying to the expropriation of foreign property, it is also
true that they are quite happy to recognise new rules of customary
international law, for example, the rule that colonies have a right
to self-determination. The court, in its latest Advisory Opinion,
does not limit itself to holding South Africa bound to its Mandate
obligations as interpreted by the court, but it seems to impose on
South Africa a whole body of “United Nations law” relating to
non-self-governing territories. The court could only do this through
the channel of customary international law. If the court is willing,
as it seems to be, to consider a series of United Nations resolutions
on a particular subject as evidence of a new rule of customary
international law, customary international law may become the
very channel through which the countries of “the third world” are
going to have their way.2
In this connexion, it seems to me that the suggestions of Cyprus
and Austria to include some sort of “United Nations law” as one
of the sources that the court would administer will deserve attention
when, in the still distant future, there arises the probability of
amending Article 38.1 Another reason for paying attention to these
suggestions is the effect that the I.C.J. is willing to give to Security
Council resolutions. In its latest Advisory Opinion the court made
it clear that not only those resolutions taken under Chapter VII
can have binding effect; other resolutions can also bind Member
2Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Resolution
276 (1970), Advisory Opinion, I.CJ. Reports 1971, p. 16, at p. 31.
3 A/8382, at pp. 23, 25-26.
No. 3]
BOOK REVIEW
States through the operation of Article 25 of the Charter; whether
the Security Council intended a particular resolution to be binding
must be decided on an ad hoc basis.4 It may be true that Article
38 is incomplete, for example, as regards United Nations resolutions
and declarations, and that it is slightly out of date, in that it over-
emphasizes custom and consent, two elements that were strongly
reaffirmed by the court in the North Sea Continental Shelf Cases;
but I believe that at the present stage it is probably unwise to
try to change the formal sources contained in this Article. The
actual impact of many so-called law-making declarations on the
practice of states remains obscure; and the fact is that much can
be done under paragraph 1(b) as it now stands. Until such time
as there is greater consensus on the meaning of declarations and
other acts that are adopted unanimously, it seems to me that the
technical effect of United Nations law can be left to the court to
articulate on a case-by-case basis.
With regard to paragraph 1(c), on the general principles of
law recognised by civilised nations, the controversy does not appear
to be directed so much at substance as at the expression “civilised
nations”. In this connexion, an interpretation based on the original
1920 version of this unfortunate modifier may be noted with interest:
“as all nations are civilised, as ‘law implies civilisation’, the reference
to ‘civilised nation’ can serve only to exclude from consideration
primitive systems of laws”.5 If, in 1920 and in 1945, this interpret-
ation was acceptable to the members of the League of Nations
and the United Nations respectively, it does not appear to be ac-
ceptable to the large number of new members that have acquired
their independence since 1945. The point at issue is not whether
some nations are legally more civilised or less civilised than others,
but whether it is permissible to retain a reference to civilisation
when it carries overtones of discrimination and even of colonialism.
In point of form and substance, a definition of one of the sources
of law to be applied by the principal judicial organ of the United
Nations should not be open to question as to its objectivity and
representative character. From this standpoint, it seems wholly
appropriate to reword paragraph 1(c), as suggested by a number
of states, to read: “the general principles of law recognised by
the international community”.
4I.C.J. Reports 1971, p. 16, at pp. 52-53.
G Manley 0. Hudson, The Permanent Court of International Justice 1920-
1942 (New York: MacMillan Company, 1943), at p. 610.
McGILL LAW JOURNAL
[Vol. 18
c. The General Approach to the Problem of Review
On the general approach to the question of how to strengthen
the role of the court, three major opinions were expressed in the
replies and during the debate: those favoring the creation of an
ad hoc committee to be appointed by the President of the General
Assembly after appropriate consultations with regional groups, on
the basis of equitable geographical distribution; those (expressed
mainly by the socialist states) that would merely draw the attention
of members to the possibilities now afforded by the Statute for the
purpose of settlement of legal disputes and would urge the court
to accelerate the revision of its rules; and, those that would
strengthen the court but not at the price of creating a committee
to study the problem. The majority of states appear to have favored
the first view; however, it was the third that was adopted by the
Sixth Committee in resolution A/C.6/L.831 of 30 November 1971.
This resolution merely invited states that had not yet done so to
reply to the questionnaire; urged the court to complete the revision
of its rules as soon as possible, and put the item over to the 27th
Session.
Though the majority of states were in favor of measures to rescue
the court from its current state of inactivity, the move to create
a committee, as proposed (and strongly supported by Canada)
in
draft resolution A/C.6/L.829, does not seem to have been sufficiently
attractive to the supporters of the two other points of view. The
opposition from the socialist group is based on the fact that recourse
to the court is only one of the possibilities open to sovereign states
for the peaceful settlement of their legal disputes. The socialist
states point out that the court should be permitted to complete the
revision of its own Rules which it started in 1967. There is also
apprehension, unjustified in my view, that there are hidden designs
or ulterior motives (amendment of the Statute) behind the idea
of establishing an ad hoc committee. In principle, the third opinion,
like the first, is in favor of strengthening the court, but it places
more importance on the prevaling international climate (which
is indifferent) toward the court than on the immediate need for
institutional and technical revisions. The very fact that in the Sixth
Committee these differences of opinion have become so marked
is itself an indication of the crisis before the court. If, as I believe
we can assume, the need for review is sufficiently established, there
remains the question of its method and extent. The international
climate toward international adjudication is not likely to be changed
by tinkering with technicalities. What is needed is a new under-
standing and acceptability of the possibilities of judicial settlement.
No. 33
BOOK REVIEW
II. The Organisation of the Court
a. The Composition of the Court
Some states have suggested an increase in the number of judges
in order to ensure equitable representation among states parties;
others have opposed this idea on the ground that such an increase
would make the deliberations of the court more difficult and its
business more cumbersome.0 The suggestion to expand the size
of the court is based on the argument that there is, at the present
time, a geographically inequitable representation. Of the 47 (15
incumbent and 32 past) judges elected since 1946, 18 (6 + 12)
are from Europe, 16 (3 + 13) from the Americas, 9 (3 + 6) from
Asia-Australia, and only 4 (3 + 1) from Africa. 7 Finland has
suggested (rather ambiguously) that an increase “would obviously
mean in practice raising the numbers to at least 25”.8
In the absence of any agreed basis on which the number of
judges can be determined in numerical terms, the present size
of the court, consisting of 15 judges, as was its predecessor, must
be assumed to be reasonable and practical, even though arbitrary
and artificial, as would be all other suggested figures, such as
GPhilip Jessup’s remark on this point is as follows:
Some say that the number of judges should be increased in order to
make the Court more widely representative. Such suggestions remind
one of a letter written by Mr. Justice Story in 1838 after the Act of
March 3, 1837, increased the number of justices on the Supreme Court
of the United States from 7 to 9. He wrote:
‘You may ask how the Judges get along together? We made very
slow progress, and did less in the same time than I ever knew. The
addition to our number has most sensibly affected our facility as
well as rapidity of doing business. “Many men of many minds”
require a great deal of discussion
them to come to
definite results; and we found ourselves often
involved in long
and very
twelve
Judges, we should do no business at all, or at least very little.’
tedious debates. I verily believe,
if there were
to compel
Annuaire de
p. 297.
Philip Jessup, The Price of International Justice, (1971), at p. 71.
7 International Court of Justice, Yearbook 1970-1971, No. 25, pp. 6-8.
8 Still another number was suggested by the Institute of International
Law in 1954. The Institute resolved that:
It is desirable to avoid an increase of the number of judges, which
would be calculated to make the deliberations of the International
Court of Justice more difficult.
Should new circumstances make some increase necessary, the number
of judges should not exceed eighteen.
‘Institut de Droit International, (1954, vol. 45, Book 2), at
McGILL LAW JOURNAL
[Vol. 18
18 or 25. It seems, therefore, that the argument about the size
of the court is not so much the real issue –
it is equitable
representation that is at stake –
since expansion merely in physi-
cal terms is not in itself likely to lead to an increased use of
the court. If, as I say, the above distribution is not thought to be
equitable from a geographical or other point of view, there would
have to be an agreed basis upon which to determine a more equitable
distribution. By no means, however, would this be a matter of
easy agreement among members whose interests vary so widely.
A number of criteria have been suggested, such as geography,
population, cultural or historical traditions, or even a favourable
record of recourse to the court.
Though it it obvious from the above distribution, and from
the court’s record, that the traditional users of the court
(or
their regions) have produced the majority of judges, it is doubtful
whether a past record would bear any significant relation to the
present endeavor of the United Nations to enhance the role of the
court; the majority of prospective or possible clients are new
states that are skeptical about
its composition. Furthermore,
dissatisfaction over the composition of the court may even produce
proposals to adopt a quota system based on criteria determined
by the strentgh of a majority in the General Assembly. This would
not only affect the standing of the court as a specialized judicial
organ, but might even reflect on the professional status of the
judges and prospective judges, all of whom are elected in their
individual capacities. The whole subject is likely to remain a source
of controversy unless there is acceptance of the present system or a
readjustment.
b. The Mode of Designation of Judges and the Length
of their Mandate
A compulsory retirement age of 72 has been suggested by the
United States and of 75 by Sweden and Switzerland. These sug-
gestions certainly appear to be in keeping with the idea of increasing
the use of the court. The complexity of international adjudication
requires legal minds of experience. At some point, however, this
advantage is bound to come into conflict with the limitations on
the physical –
capacities of the human
beings concerned. Though, from a practical point of view, it is
highly improbable that the absence of a compulsory retirement
age under the present system would ever reduce the court to
“a home for the legally aged”, the increased role that is being
projected for the court will place proportionately heavier demands
as well as mental –
No. 3]
BOOK REVIEW
on the judges. It would therefore be appropriate to set a compulsory
retirement age. In this regard, the average age of the 47 judges
including the incumbent 15 is 72 years of age; the youngest was
57 years of age (Azevedo of Brazil) and the oldest 87 (Alvarez
of Chile), with the highest concentration of 22 judges in the age
bracket 70-79 years of ageY
in order to obtain recommendations
The mode of designation of the judges has not provoked a
large number of serious comments. However, the reply of the
United States, while recognising that “many highly qualified jurists
have been elected to the court”, pointed out that “the nomination
and election procedures have been subject to intensive political
pressures which have caused some States to raise questions con-
cerning the independence and objectivity of the Court”. Accordingly,
“before making nominations, national groups should conduct
extensive consultations with national and regional bar associations,
universities, judicial authorities, legal scholars and other concerned
groups
regarding nomi-
nations”.10 Much the same suggestion has been made by non-
governmental observers and commentators, including, in 1954, the
members of the Institute. The point here seems to be that there
is a need to ensure an appropriate balance, in composition, between
practitioners who have had practical experience, but who may be
thin in their knowledge of international law, and (usually) pro-
fessors who have a deep understanding of the subject but little
practical experience. While it is true that Article 2 of the Statute
provides for the necessary balance, I believe that we must emphasize
the fact that adequate knowledge of international law is a con-
dition precedent to appointment. As Dr. T.O. Elias has noted, this
requirement goes to the question of the capacity of the court to
contribute significantly to the progressive development of inter-
national law. What counts is the recognized competence of the
individual in international law; the prevailing municipal standard
may not be sufficient.
c. Recourse to Chambers, as provided in Articles 26-29 of the Statute
The respondents have generally favored the chamber system
as defined in Articles 26-29 of the Statute; however, their support
appears to be based not so much on the intrinsic value of this
possibility as on the absence of any particular reason to oppose
it. The chamber system has never been used. In this regard, it is
9 See: Yearbooks of the I.C.S, Volumes 1 –
10 A/8382, at p. 41.
25, 1946 –
1971.
McGILL LAW JOURNAL
[Vol. is
worth recalling that in his address to the American Society of
International Law in 1970, on The Rule of Law and the Settlement
of International Disputes, the U.S. Secretary of State, Mr. William
Rogers, observed that greater use might be made of the chambers
of the court in order to relieve apprehensions about submitting
disputes to the court en banc. Judge Jessup approves of this
proposal, whose acceptance, he emphasizes, depends only on “the
will or un-will of the parties”. He demonstrates, in convincing
fashion, how the Statute and the Rules can be used as they now
stand to achieve the same result as when the parties set up an
ad hoe arbitral tribunal, but making use of the court.”
One of the most important effects of the new rules that were
adopted on 10 May 1972 is that the parties will now be consulted
about the composition of an ad hoc chamber to deal with a par-
ticular dispute. The new Article 26 goes fairly far to give effect to
the will of the parties; and though it is subject to Article 27, which
calls for elections to all chambers to be by secret ballot, I believe
that the majority of the members of the court would not ignore
the expressed intentions of the parties. The result of this revision
of the Rules should make ad hoc chambers more attractive to
potential litigants, expecially as it now seems possible for the
parties to a regional chamber to choose judges from outside the
region. As Judge Jessup rightly predicted, the system has become
sufficiently flexible to permit of an ad hoc chamber in theory
but an arbitral tribunal in actuality.
d. Creation of Regional Courts
Some states have supported this idea. Other states have argued
that regional courts would lead to a regionalisation and eventually
to a fragmentation of international law and that unforeseen diffi-
culties might arise from cases involving different legal systems in
different regions. The regional court idea is not the same as the
idea of ad hoc chambers presently available under Articles 26-29
of the Statute. Under Article 26(1), the court may “form one or
more Chambers… [for dealing with a] particular category of
cases…” and, as Judge Jessup points out, “the categories could
be geographical”.
The arguments against regional courts are evident from a number
of points of view. First, in view of the preference of states for
the full court rather than for the ad hoc chambers already available,
“Jessup, op. cit., n. 6, at p. 64.
No. 3]
BOOK REVIEW
there is little reason to believe that such preferences would be
less strongly operative in the case of regional courts. Secondly,
the fact that some regional organisations already maintain their
own judicial organs would in no way help the idea of regional
courts within or without the system of the International Court.
Thirdly, the existence of a regional court would pre-suppose the
inclusion of ‘regional judges’ in its membership, judges with special
knowledge of the region in question. However, it is a fact that
many states in a region, Latin America for example, do not want
regional judges to decide regional disputes; they want the objectivity
of judges from outside the region. It may be added that special
knowledge in international adjudication is not beyond the reach
of a judge of the International Court. Fourthly, there is a growing
unity and universality of general international law and the creation
of regional courts would not assist in this development. Therefore,
it would seem undesirable to attempt to enhance the role of the
International Court at the expense of the very law that it is striving
to develop and apply.
Despite all these arguments, some of which are obviously more
cogent than others, we cannot overlook the fact that for certain
specialized topics, for example, the resources of the sea and the
ocean floor, regional and functional courts may become a necessity
because
the parties concerned, for example, organisations and
individuals, are precluded by the Statute from appearing before
the International Court. There is also the distinct possibility that
the entire judicial system might be strengthened and envigorated
by an appeal structure from “lower” to “higher” courts; a variety
of tribunals might stimulate rather than fragment international law.
In any event, it was the opinion of the Canadian representative
in the Sixth Committee during the Twenty-Fifth Session that there
should not only be chambers for particular categories of cases, but
that there should be regional chambers and a system of functional
and regional courts. It seems to me that we probably need a good
deal more discussion and clarification about the nature of regional
chambers and regional courts before we can predict their effect
upon the development of general international law.
e. Other Comments
(i) Granting preferential rights to states accepting the com-
pulsory jurisdiction of the court. Cyprus and Switzerland have
raised the possibility of granting preferential rights, in allocating
seats, to states accepting the compulsory jurisdiction of the court.
I suggest, with respect, that this is not desirable. First, it would
McGILL LAW JOURNAL
[Vol. 18
require an amendment to Article 2 of the Statute, which stipulates
that judges are elected in their personal capacity regardless of
their nationality. If a candidate’s nationality was to be one of the
conditions of his eligibility, the purity of the court’s character as
a judicial organ would be compromised by the impurity of politics.
Secondly, as is well-known, the court’s so-called compulsory juris-
diction has been accepted by many states with many reservations,
some of which render the acceptance almost meaningless. Thirdly,
discrimination on the basis that Cyprus and Switzerland suggest
would tend to divide the members of the court (and the states
parties) into an “in-group” and an “out-group”, a situation that
would be detrimental to the endeavor to broaden support for the
court on a comprehensive basis.
(ii) Identical composition of the court in different phases of
the same case. This point has been raised by Sweden and Switzerland
in connexion with Article 13(3) of the Statute, which stipulates
that judges “shall finish any cases which they have begun”, even
after they have been replaced. The interpretation of this provision
depends upon the definition of an ‘identical case’ and on the length
of interval that elapses between one phase and the next phase of
an identical case. The identity of a case with different phases requir-
ing separate adjudication would usually be self-evident, as may be
seen from such recurrent cases as the Nottebohm Case, the Right of
Passage Case, the South West Africa Case, and the Barcelona Trac-
tion Case. With regard to the interval between different phases of
a case, therefore, Article 13(3) should be taken to apply to cases
which continue not very far beyond –
and not ones which recur
long after –
the time of replacement of one or more of the judges.
It would certainly be unreasonable to interpret it to mean that
former judges may be recalled to finish cases that were referred
to the court during their term of office. On balance, it may be
suggested that the point at issue here is a matter of efficiency in
adjudication rather than a matter of substance, in the sense that,
under normal circumstances, the judges of the court are quite
capable of familiarizing themselves with any new cases placed
before them.
(iii) The question of judges ad hoc. This question has been
raised by three states, Cyprus, Madagascar and Switzerland. As is
well-known, the system of ad hoc judges dates back to 1920, when
the Committee of Jurists was preparing the Statute of the Perma-
nent Court. The formula agreed upon by the Committee of Jurists
and adopted unanimously by the Assembly of the League was in-
tended to protect the character of the court as a world court;
No. 3]
BOOK REVIEW
to avoid “ruffling national susceptibilities”; and to maintain equali-
ty between the parties to a case.” It is the third of these reasons
that makes the most sense, even though equality could have been
maintained as effectively, and in a simpler way, by removing from
the case in question a judge holding the nationality of either party,
instead of adding a judge ad hoc to “represent” the party with-
out a national on the Bench. The preparatory body on the present
court argued, in 1944, that national judges “fulfill a useful function
in supplying local knowledge and a national point of view”.” This
raises the question whether, assuming its essentiality in adjudica-
tion, local knowledge and a national point of view can only be
obtained through national judges. There is also the fact that the
practice of states in selecting judges ad hoc appears to be under-
going a change; in three cases no judges ad hoc were appointed;
and in six cases those appointed were of foreign nationalities. 4
This change makes the reasons for the system less convincing.
From a purist’s point of view, the judge ad hoc is undesirable:
the system introduces into the judicial organ a feature that is
characteristic of courts of arbitration. However, it is unlikely that
the Great Powers would agree to a situation in which they were
”unrepresented” on the court.
III. The Jurisdiction of the Court
1. Contentious cases
a. The Question of Compulsory Jurisdiction
It is the opinion of many states that the court’s compulsory
jurisdiction should be more widely accepted and that reservations
should be less restrictive than they now are. At present, 47 states
have accepted compulsory jurisdiction but mostly with reserva-
tions. Undoubtedly this is one of the most controversial points in
any discussion on the role of the court. The draftsmen of the Stat-
ute (on both occasions) regarded reserved acceptance as preferable
to non-acceptance; they hoped that the former would in time lead
to general acceptance. However, this has not been the case; accept-
12Hudson, op. cit., n. 5, at p. 354.
13Report of the Informal Inter-Allied Committee on the Future of the
Permanent Court of International Justice, Supplement to (1945), 39 A.J.I.L.
pp. 1-42, Section 4, at pp. 11 ff. This is still a useful document.
4 Leo Gross, The International Court of Justice: Consideration of Require-
ments for Enhancing its Role in the International Legal Order, (1971), 65
AJ.I.L. 253.
McGILL LAW JOURNAL
[Vol. 18
ance has sharply decreased in proportion from 38:54 in 1938 to
47:137 at present. In view of the influence of the leading powers,
it is worth referring here to the examples provided by the five per-
manent members of the Security Council. Russia has not accepted
compulsory jurisdiction from the beginning, nor has China, unless
Peking happens to have acceded to the declaration of 1946 made
by the Nationalist regime. This leaves for consideration Britain,
France and the United States. These powers are the traditional
clients as well as the major producers of judges for the court.
However, they have little to be proud of so far as the restrictive
character of their reservations
is concerned. Since the leading
powers are themselves reluctant to use the court, they are not
in a strong position to encourage other states to accept its con-
pulsory jurisdiction. Understandably, therefore, their response to
the Secretary-General’s questionnaire on this point is silence, with
the exception of France, which made a brief generalization not
exactly to the point. It is arguable that there will be little likeli-
hood of the widespread acceptance of compulsory jurisdiction until
one or more of the great powers shows the way. On the other
hand, it could be argued with equal conviction (by Canadian schol-
ars?) that the smaller and middle powers should set an example
for the great powers. This would involve a review and revision
of existing declarations of acceptance. Apparently Canada put this
very idea forward as long ago as 1963.15
b. Access to the Court
With regard to Article 34(1) of’ the Statute, which stipulates
that “only states may be parties in cases before the Court”, the
majority of respondents believe that access to the court should
also be granted to international organisations, including the United
Nations itself. Cyprus has suggested that such access should be
extended to individuals as well; and the same point was touched
upon by the Ivory Coast. Support for an extension to international
institutions is based on the view that Article 34(1) originated in
the last century when only states were regarded as the proper
subjects of international law. Though France has argued that the
possibility might arise of having to subject the United Nations
itself to one of its own organs, it appears that the idea of granting
selected international organisations access to the court is one of
‘5 Sydney D. Bailey, Peaceful Settlement of International Disputes: Some
Proposals for Research, (3rd revised ed., 1971). UNITAR PS No. 1, p. 40,
para. 19.
No. 3]
BOOK REVIEW
the few points on which states parties to the Statute are prepared
to agree. Unfortunately (in my view) extension of such access to
individuals is not yet acceptable. I have argued elsewhere, as have
many others, that the idea of referring certain fundamental values
to a point of reference beyond the nation-state fits comfortably
and usefully with the heritage of the liberal democracies and
expresses theoretically what is likely to be done in numerous prac-
tical ways in the future; in other words, that the individual must
be recognized as a direct subject of international law; however,
this position is still regarded by most states as incompatible with
their national sovereignty.
c. Disputes Relating to the Interpretation or Application of Treaties
Interestingly, in view of previous Soviet practice, not a single
state has opposed the view that important bilateral and multilateral
conventions should include provisions for reference to the court
of disputes relating to the interpretation or application of such
conventions. As a matter of fact, this is not at all a new sugges-
tion; it has been the practice for many states for several decades,
though mostly on an optional basis. This is a matter that can be
put into affect outside the Statute.
2. Advisory jurisdiction
Most of the respondents that make reference to the point favour
the idea of extending the court’s advisory jurisdiction to a wider
range of international organisations, including regional organisa-
tions, than is currently permitted under Article 65 of the Statute.
Austria has suggested that access to the court for advisory opinions
should be extended to supreme courts and other national institu-
tions. And a few members have suggested that individual states
themselves be permitted to seek advisory opinions. France has
objected to these proposals on three grounds. First, the Permanent
Court received as many as 27 requests for such opinions between
1922 and 1935, when the last request was made, whereas the Inter-
national Court has received to date no more than 13 requests,
despite the fact that as many as 19 organisations and agencies are
authorized to seek such opinions. Secondly, if individual states
are authorized to seek advisory opinions, it would be difficult to
protect the fundamental principle that a state cannot be subjected
to third party settlement without its consent; and if such consent
is necessary it will rarely if ever be given. Thirdly, an advisory
opinion handed down in response to a request by a single state
McGILL LAW JOURNAL
[Vol. 18
might complicate the situation should a contentious case develop
out of it at a later date.
It seems reasonable, in principle, to extend the court’s advisory
jurisdiction to more international organisations. If states were to
be given the same privilege it would probably have to be (as the
French suggest) on the condition in every case that the consent
of the other party was obtained. I believe that the international
system is still too incomplete to permit of a situation, analogous
to the declaratory action in municipal law, under which a state,
merely by virtue of its membership in the international community,
or on the ground of its alleged interest in a particular rule, is
entitled on its own motion to raise a question of law before the
court. On the question of including supreme courts or other govern-
ment institutions as parties eligible to seek advisory opinions,
Judge Jessup points out that an amendment to the Statute would
be necessary. In line with the thinking of W.R. Bisschop and Sir
Hersch Lauterpacht, he thinks that this proposal “could open new
avenues of greater usefulness for the International Court”, but he
is not optimistic about its chances of acceptance.”
3. Procedures and Methods of Work of the Court
In the opinion of many states the court’s proceedings are too
rigid and cumbersome. It has been suggested, though this is hardly
new, that in contentious cases questions relating to jurisdiction
and other preliminary issues should be decided before considering
the merits. Other suggestions for expediting procedures and re-
ducing the costs of litigation include: (i) more efficient pleading
during the oral phase of the proceedings and more extensive use
of the chamber system; (ii) the application of more stringent
standards in granting extensions of time for preparation of plead-
ings and other presentations; and (iii) a special fund within the
framework of the United Nations to which a needy state might
apply for financial assistance in appropriate cases. It is in the con-
text of these suggestions that the current effort of the court to
review its own Rules is genuinely welcomed.
The length of time required to decide the question of juris-
diction and other preliminary issues could and should be reduced.
On an average, the jurisdictional phase of a contentious case re-
quired more than a third of the time that the court takes to
conclude a case. An outstanding example of an unnecessarily lengthy
16 Jessup, op. cit., n. 6, at p. 76.
No. 3]
BOOK REVIEW
case is the Barcelone Traction Case: the new application was filed
on June 19, 1962, the judgment on its preliminary objections given
on July 19, 1964, and the final judgment on its merits on February
5, 1970. In all fairness, it should be added that, in this example,
the delay was not that of the court alone; the parties deserve a
large measure of the blame.
It has been suggested that the bulk of the written material
could be reduced, a process in which the Registrar could play a
more active role than is customary, and that the oral presentations
could be related more directly to the points in issue. Indeed,
Articles 57 and 67 (6) and (7) of the new Rules go some distance
in this direction; the preliminary hearings will now be enlarged
to include all points that bear on jurisdiction and there will be an
earlier decision on preliminary objections. All this is to the good
and is to be welcomed; however, we need to remember that we
are dealing here with states, not individuals, and that, in truth, no
state has ever been known to refuse to go to court on the ground
that the proceedings would take too long. A particularly valuable
statement on this point is to be found in the Swiss reply to the
Secretary-General’s questionnaire (p. 113).
4. Future Action by the General Assembly
I have already indicated that many delegations had doubts as
to the advisibility of setting up an ad hoc committee at the present
stage. It was felt that there was too little information from govern-
ments; that the replies received to the Secretary-General’s ques-
tionnaire indicated considerable disagreement as to how to proceed;
that the terms of reference of the proposed committee were vague;
that some delegations feared that the committee might embark
on a revision of the court’s statute; and that there was even disa-
greement as to the underlying cause of the present crisis of the
court. In the result, the members concerned were invited to trans-
mit their comments to the Secretary-General, the court was urged
to complete the revision of its rules, and the item was included
on the provisional agenda of the Twenty-Seventh Session.
Needless to say, this was not the position for which Canada
had contended. Mr. J. Alan Beasley, the Legal Adviser to the De-
partment of External Affairs, argued with great skill that inasmuch
as this whole question had been carefully studied during the last
two sessions of the General Assembly and that governments had
had ample opportunity to submit their comments in writing, there
was no need to postpone a decision on the establishment of the
McGILL LAW JOURNAL
(Vol. 18
ad hoc committee. He emphasized that the proposed committee
(which was the most practical way of carrying the work forward)
would not amend the Statute “by the back door” but would iden-
tify a number of important areas in which the court’s role could
be enhanced without affecting its statute. Canadians who are in-
terested in this subject owe a considerable debt of gratitude to
Mr. Beasley for the interest, understanding and imaginative sup-
port that he has given to it. No doubt another effort will be –
and should be – made at the forthcoming session of the Assembly.
However, the fact that there was such a deep division of opinion
over the proposal to create a committee to study the problem in
depth says a good deal about the prospects for international adju-
dication as it has developed over the last one hundred years and
as it is presently understood in the Western world.
Judge Jessup’s book “tries to give a picture of the modest but
important role of adjudication in a world where we see violence
rampant”. It is based upon three lectures given by the former
judge of the International Court of Justice at Columbia University
in 1970.
The first lecture, “The Rocky Road to International Justice”,
considers five cases in which decisions were eventually rendered
by courts on the basis of international law, but only after pro-
tracted difficulties. This lecture includes a brief discussion of the
Alaskan Boundry dispute, the bad blood that it created between
Laurier and Theodore Roosevelt, and (still relevant today) the
quite different conception of the role of the international judge
that was entertained not only by the Canadians an Americans, but
by different personalities within the United States itself. The second
lecture, “Who Will Pay the Price for Peace?” considers a number
of cases where states in dispute refused to pay the price of peace
by judicial settlement. In these pages, in which reference is made
to some specific situations for which judicial settlement appears
to be appropriate, Judge Jessup observes that over the years Britain
and the United States have settled their disputes by reference to
judicial tribunals. However, he adds, wistfully, “that the United
States has not maintained its fine early tradition of willingness to
pay the judicial price for peace”.
The third lecture, “The international Machinery of Justice”,
examines the record of settlement through various international
tribunals since the end of World War II and considers a number
of suggestions for improving the usefulness of the International
Court. In this, by far the most interesting part of the book, we
see Judge Jessup, as “the old pro”, so to speak, discussing with
No. 3]
BOOK REVIEW
great charm, elegance and wit a few of the procedural and tech-
nical problems that have been examined so ponderously elsewhere.
He deals with the speech of Secretary of State Rogers point by
point, saying what is possible and what is not possible; he speaks
about the increased use of chambers; he defends the impartiality
of the Judges; he brings in appropriate comments from Frank-
furter, Carl Llewellen, Sir Hersch Lauterpacht and others who
have studied the nature and function of judicial bodies; and in
his conclusion he implies what he has said at the outset: that an
international adjudication can contribute significantly to the de-
velopment of international law even though the bone of contention
is insignificant. This is not a major academic study –
Judge Jessup
has long since worked that part of the vineyard –
but it is a
kind of general tour by one who has been there before and who
obviously knows the problems and the possibilities that are avail-
able to get around them or at least to reduce them.
IV. Conclusion
At the end of all this, what is one to say? It seems to me that
we in the West will not only do well to publicize more vigorously
than before the extraordinarily wide range of possibilities that
even now exist within the four corners of the Statute and the
Rules, but that we must prepare ourselves (despite the strictness
of our technical perspectives) for the day when the large majority
of the members of the international community will wish to use
the court in a more flexible, mediational manner than we normally
associate with adjudicatory bodies. The Chinese –
and it is perti-
nent to observe that neither the Sixth Committee nor Judge Jessup
himself mention the Chinese – will certainly prefer mediation as
a method of dispute settlement; and in this they are likely to ex-
press an attitude shared by many other states. Therefore, it seems
to me that while we must press on with our present efforts in the
Sixth Committee and elsewhere, we must also begin to contrast
very carefully the possibilities of informal dispute resolution with
the strictness of international law and the formality of traditional
international adjudication.
R. St. J. Macdonald, Q.C.*
*Dean, of the Faculty of Law, Dalhousie University.
