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LITIGATION BEFORE THE INTERNATIONAL COURT OF JUSTICE

COURSE OUTLINE

Professor Mathias Forteau

Semester course will be taught: Spring 2016 (01/19 to 05/03)

Type: Seminar/Simulation Course

Prerequisite(s): Basic Knowledge on Public International Law

Credits: 3

Enrollment Capacity: 20-25

Seminar Description

According to Article 92 of the United Nations Charter, the International Court of Justice shall be
the principal judicial organ of the United Nations. Even though the activity of the Court is quite
low compared to (even highest) domestic courts, it is still considered by States as the most
authoritative judicial organ on public international law matters. Its case-law is considered as
highly authoritative and is accordingly frequently referred to by other courts or tribunals (ITLOS,
ICSID Tribunals, Ad Hoc Arbitral Tribunals, in particular) or organs such as the International
Law Commission. ICJs jurisprudence is also relied on by States in the course of their day-to-day
practice, for instance for the purpose of maritime delimitation negotiations or for identifying rules
applicable to State immunity before domestic courts.

To that extent, it is crucial for international lawyers to master litigation before the ICJ in order,

* To better understand its case-law and use it more efficiently (whatever the context),

* To be able to dispense wise, professional advice to Governments willing to submit (or


challenge) a case before the Court.

The objective of this seminar is twofold:

* To acquire a good knowledge of the litigation process before the ICJ, through the
analysis, in concrete terms, of many examples of past cases before the Court;

* To develop (through simulations) litigation skills which are relevant not only for the
handling of cases before the ICJ but also for cases before other international courts and
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tribunals having jurisdiction over disputes involving States, bearing in mind that the
management or the administration of a case on behalf of a State before an international
court or tribunal requires some specific skills which are not exactly the same as before
domestic courts due to the specific nature of States and international law.

Instructor

Mathias Forteau
Professor at the University of Paris Ouest (France),
Member of the International Law Commission of the United Nations,
Advocate-Counsel for States before international courts and tribunals (in particular the
International Court of Justice)
Phone: (917) 678 7321
E-mail: mforteau@u-paris10.fr

Course Schedule

[To come]

General Presentation

- Since the present seminar is practice-oriented, the materials mainly consist of specific
cases before the ICJ and the corresponding documents (judgments, written and oral
pleadings, in particular)

- A detailed list of questions will be submitted before the class, to provide some guidance
for the readings of the ICJ materials

- Additional materials (in particular regarding the specifics of the practical exercises) will
be provided some weeks in advance before each class, taking into account recent cases
submitted before the Court and any new development concerning pending cases.

Grading

- For each class, students will have to read the relevant materials and prepare answers to the
questions referred to above. The quality and intensity of their active participation during
the course will be taken into account for the purpose of their final evaluation

- Participants in the Seminar will have to participate in the simulations (to be prepared by
some students for some courses and by all students for other courses) (combination of
practical written exercises and performance in moot)

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Basic Materials

Documents
- The main relevant materials are available on the website of the ICJ (www.icj-cij.org), in
particular: the relevant basic documents (Charter of the UN, Statute, Rules of Court,
Practice Directions) and the relevant judgments and orders of the Court for each case
submitted to it, as well as the corresponding written and oral proceedings
- See also, to have an idea of the ritualistic nature of the process before the Court, the last
case-related videos at http://www.icj-cij.org/presscom/multimedia.php?p1=6

Books and Articles (These are useful materials for the seminar as a whole, to be used when
necessary, for extra-research in particular)
- Rosenne, S., The Law and Practice of the International Court, 1920-2005, Nijhoff,
Leiden, 2006, 4 vol., XXXV-1891 p.
- Zimmerman, A., Tomuschat, C., Oellers-Frahm, K. and Tam, C. (eds.), The Statute of the
International Court of Justice: A Commentary, Oxford, Oxford University Press, 2012,
LII + 1745 p.
- Quaintana Aranguren, J., Litigation at the International Court of Justice: Practice and
Procedure, Leiden, Brill Nijhoff, 2015, XXVII + 1336 p.

See also:
- Kolb, R., The International Court of Justice, Oxford, Hart Publishing, 2014, LIII+1307 p.
- Lauterpacht, E., Principles of Procedure in International Litigation, Collected Courses
of the Hague Academy, 2009, Vol. 345, p. 387-530
- Mackenzie, R., Romano, C., Shany, S. and Sands, P. (eds), Manual on International
Courts and Tribunals, Oxford, Oxford University Press, 2010, XXVI + 547 p.
- Romano, C., Alter, K. and Shany, Y. (eds.), The Oxford Handbook of International
Adjudication, Oxford, Oxford University Press, 2014, XCII + 975 p.
- Bowett, D.W., Crawford J., Sinclair, A.-D., Watts, A., The ICJ Efficiency of Procedure
and Working Methods, The International and Comparative Law Quarterly, 1996,
supplement, 35 p.; Process, Practice and Procedure, BIICL, Londres, 1997, XI-190 p.
- Crawford (J.), Advocacy before the ICJ, in Bishop (ed.), The Art of Advocacy in
International Arbitration, 2004, p. 11-38
- Pellet, A., The Role of the International Lawyer in International Litigation in
Ch. Wickremasinghe ed., The International Lawyer as Practioner, London, 2000, p. 147-
162
- United Nations, Audiovisual Library of International Law, Lecture Series (at
[http://legal.un.org/avl/lectureseries.html], Courts and Tribunals

On the multicultural nature of the process before the Court (including its bilingual nature), see
- Statute of the ICJ, Articles 9 and 39
- Crawford, J., Pellet, A., Anglo-American and Continental Traditions in Advocacy before
International Courts and Tribunals, Cambridge Journal in International and
Comparative Law, Vol. 2(4), 2013, p. 1-23

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COURSE OUTLINE

1. [date tbd] Introduction Presentation of the ICJ

I. THE SUBMISSION OF THE CASE

2. [date tbd] The Decision to Litigate (whether or not it is appropriate and feasible)

3. [date tbd] The Choice of Tribunal

4. [date tbd] The Preparation of the Case and the Drafting of the Claim (1) (Contentious
Cases)

5. [date tbd] The Preparation of the Case and the Drafting of the Claim (2) (Advisory
Proceedings)

II. PROTECTING STATES RIGHTS DURING THE PROCEEDINGS

6. [date tbd] Provisional Measures

III. JURISDICTION AND ADMISSIBILITY

7. [date tbd] Preliminary steps before submitting the case to the ICJ

8. [date tbd] Jurisdiction Ratione Materiae (the Platform test)

9. [date tbd] Preliminary Objections

IV. ARGUING BEFORE THE COURT

10. [date tbd] Identification of the Applicable Law (1) (Customary international law)

11. [date tbd] Identification of the Applicable Law (2) (Use of precedents)

12. [date tbd] Establishing the Facts (1) (General Regime of Evidence)

13. [date tbd] Establishing the Facts (2) (Documents involving security interests)

V. ETHICS BEFORE INTERNATIONAL COURTS AND TRIBUNALS

14. [date tbd] Independence and Impartiality


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1. Introduction Presentation of the ICJ

- The Nature and Function of the ICJ

- The Proceedings before the ICJ: An Overview

- Recourse to the ICJ: Contemporary trends

- How to use the website of the ICJ and find any relevant document

Readings: on the website of the ICJ, see

- Basic Documents (ICJ Statute, Rules of Court, Practice Directions)

- The Court (History, How the Court Works)

- Jurisdiction (both Contentious and Advisory Jurisdiction)

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2. The Decision to Litigate (whether or not it is appropriate and feasible)
Focus:
- The Obligations concerning negotiations relating to cessation of the nuclear arms race
and to nuclear disarmament cases (cases submitted in 2014 by the Marshall Islands
against several States see the Applications submitted on 24th April 2014)
- (to be read together with the 1996 advisory opinion of the ICJ in the Legality of the threat
or use of the nuclear weapons)

Readings:
- UN Charter, Article 33
- UNGA, Manilla Declaration, Res. A/RES/37/10, 15 November 1982
- Lowe, V., The Function of Litigation in International Society, The International and
Comparative Law Quarterly, 2012, p. 209-222
- Chesterman, S., The International Court of Justice in Asia: Interpreting the Temple of
Preah Vihear Case, Asian Journal of International Law Vol. 5 No. 1, 2015, p. 1-7

Further Readings:
- Fisher, D., Decisions to Use the ICJ, International Studies Quarterly, Vol. 26, No. 2,
1982, p. 251-277
- Kohen, M.G., Interactions between Diplomatic and Judicial Means at the Initiation of the
Proceedings, in L. Boisson de Chazournes, M.G. Kohen, J.E. Vinuales (eds), Diplomatic
and Judicial Means of Dispute Settlement, Nijhoff, 2013, p. 13-24
- Lathrop, C.G., Why Litigate a Maritime Boundary? Some Contributing Factors, in N.
Klein (ed.), Litigating International Law Disputes: Weighing the Options, Cambridge,
Cambridge University Press, 2014, p. 230-259
- Merrils, J., The Place of International Litigation in International Law, ibid., p. 3-23

Practical exercise (based on fictitious cases): Drafting of advices to possible litigant States

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3. The Choice of Tribunal
Readings:
- Article 36(2) Declarations (Declarations recognizing the jurisdiction of the Court as
compulsory, on the basis of Article 36(2) of the Statute of the ICJ) (available at
http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3)
- United Nations Convention on the Law of the Sea (UNCLOS), Part XV (available at
http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm)

Optional Readings:
- Declaration of Judge Greenwood under ICJ, Judgment of 19 June 2012 in Ahmadou Sadio
Diallo (Guinea v DRC)
- Quigley, J., International Court of Justice as a Forum for Genocide Cases, Case
Western Reserve Journal of International Law Vol. 40, 2008, 243-264
- J. Pauwelyn, L.E. Salles, Forum Shopping before International Tribunals, Cornell
International Law Journal, 2009, Vol. 42, Issue 1, 77-118
- L.E. Ribeiro Salles, Forum Shopping in International Adjudication: the Role of
Preliminary Objections, Cambridge UP, 2014, 320 p.
- Klein, N. (ed.), Litigating International Law Disputes: Weighing the Options, Cambridge,
Cambridge University Press, 2014, XLI + 490 p.

Practical exercises (based on fictitious cases):

- Drafting of an Article 36(2) Declaration (Declarations Recognizing the Jurisdiction of the


Court as Compulsory)

- Drafting of an Article 298 UNCLOS Declaration

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4. The Preparation of the Case and the Drafting of the Claim (1) (Contentious
Cases)
Focus:
- The Obligation to Negotiate Access to the Pacific Ocean (Bolivia v Chile) case: see the
Application, dated 24 April 2013 and the Judgment of the Court on Preliminary
Objection, 24 September 2015

Readings
- ICJ, Rules of Court, Articles 38-43 and Article 80

Optional Readings:
- A. Vermeer-Kunzli, The Subject Matters: The ICJ and Human Rights, Rights of
Shareholders, and the Diallo Case, Leiden Journal of International Law, 2011, Vol. 24,
No. 3, 607-625
- Shaw, M., The International Court of Justice: a Practical Perspective, The International
and Comparative Law Quarterly Vol. 46 No. 4, Oct. 1997, 831-865
- Thirlway, H., Case Analysis: Counterclaims Before the International Court of Justice:
The Genocide Convention and Oil Platforms Decisions, Leiden Journal of International
Law Vol. 12 No. 1, 197-229

Practical exercises (based on fictitious cases):

- Drafting of an Application before the Court

- Drafting of a Counterclaim before the Court

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5. The Preparation of the Case and the Drafting of the Claim (2) (Advisory
Proceedings)
Focus:
- The Accordance with international law of the unilateral declaration of independence of
Kosovo 2010 advisory opinion (see in particular at paras. 49-56; additional reading: see
also the relevant passages of the written statements submitted in this case)

Readings
- ICJ, Rules of Court, Article 104
- J. Kammerhofer, Begging the Question? The Kosovo Opinion and the Reformulation
of Advisory Requests, Netherlands International Law Review, 2011, Vol. 58, issue 3,
409-424

Practical exercise (based on a fictitious case): Drafting of a Request for Advisory Opinion
before the Court

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6. Provisional Measures
Focus:
- The Cambodia/Thailand case (Request for Interpretation of the Judgment of 15 June 1962
in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand))

Readings
- Uchkunova, I., Provisional Measures before the ICJ, The Law and Practice of
International Courts and Tribunals, Vol. 12, 2013, 391-430
- Lee-Iwamoto, Y., The Repercussions of the Lagrand Judgment: Recent ICJ
Jurisprudence on Provisional Measures, The Japanese Yearbook of International Law,
Vol. 55, 2012, 237-262
- Shulman, K., The Case Concerning the Temple of Preah Vihear: The ICJ Orders
Sweeping Provisional Measures to Prevent Armed Conflict at the Expense of
Sovereignty, Tulane Journal of International and Comparative Law, Vol. 20, 2012,
555-570

Optional Readings
- Leonhardsen, E. M., Trials of Ordeal in the ICJ: Why States Seek Provisional Measures
when Non-Compliance is to Be Expected?, Journal of International Dispute Settlement,
Vol. 5, 2014, 306-343

Practical exercises (based on fictitious cases):

- Drafting of a request for the indication of provisional measures

- Drafting of the order of the Court on a request for the indication of provisional measures

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7. Preliminary steps before submitting the case to the ICJ
Focus:
- PCIJ, The Mavrommatis Palestine Concessions (Greece/United Kingdom), PCIJ
Publications Series A No. 2 (August 30, 1924) (pages 10-15)
- The Lockerbie case (2008 Judgment, paras. 16-21)
- The Russia/Georgia case (2011 Judgment paras. 115-184)
- The Belgium/Senegal case (2012 Judgment, paras. 42-63)

Readings
- ILC 2001 Articles on State Responsibility, Article 43 on Notice of Claim (available at
http://legal.un.org/ilc/texts/9_6.shtml)

Optional Readings:
- Barnidge, J. and Robert, P., The International Law of Negotiation as a Means of Dispute
Settlement, Fordham International Law Journal Vol. 36 No. 3, 2013, 545-575
- Mills, A., Rethinking Jurisdiction in International Law, British Yearbook of
International Law Vol. 84, 2013, 187-239

Practical exercise (based on a fictitious case): Definition of the procedural strategy to be


followed before submitting a case to the Court

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8. Jurisdiction Ratione Materiae (the Platform test)
Focus:
- Oil Platform (Iran v. United States) (the 1996 Judgment, including the Separate Opinion
of Judge Higgins)
- Armed Activities on the Territory of The Congo (Congo v Rwanda) (the 2006 Judgment)
- Arbitral Award, 14 August 2015, Arctic Sunrise (Netherlands v Russia), paras. 187-198
([http://www.pcacases.com/web/view/21])

Additional Readings:
- Clark, R. The Case Concerning Oil Platforms (Islamic Republic of Iran v. United States
of America) Preliminary Objection , Leiden Journal of International Law Vol. 10 No. 3,
1997, 541-551

Practical exercise (based on a fictitious case): Definition of the legal strategy to be followed to
present a claim as falling under the jurisdiction ratione materiae of the Court

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9. Preliminary Objections

Practical exercise (based on fictitious cases):

- Drafting of Preliminary Objections

- Oral arguments on Preliminary Objections

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10. Identification of the Applicable Law (1) (Customary international Law)
Focus:
- The Yerodia case (the 2002 Judgment)
- The Jurisdictional Immunities case (the 2012 Judgment)

Readings:
- ILC work on identification of customary international law (to be specified)
- ICJ Diallo case (2007 Judgment, paras. 76-96 ; 2010 Judgment, paras. 63-98)
- Tomka, P., Custom and the ICJ, The Law and Practice of International Courts and
Tribunals, Vol. 12, 2013, 195-216

Optional readings:
- Nollkaemper, A., The Role of Domestic Courts in the Case Law of the International
Court of Justice, Chinese Journal of International Law Vol. 5 No. 2, 2006, 301-322
- Talmon, S., Determining Customary International Law: The ICJs Methodology between
Induction, Deduction and Assertion, Bonn Research Papers on Public International Law
No. 4/2014, 24 Jul. 2014
- Thirlway (H.), The Drafting of ICJ Decisions: Some Personal Recollections and
Observations, Chinese Journal of International Law, 2006, Vol. 5, 15-28

Practical exercise (based on fictitious cases):

- Drafting of a claim/argument based on customary international law

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11. Identification of the Applicable Law (2) (Use of Precedents)
Focus:
- The Cameroon v Nigeria case (the 2008 Judgment on preliminary objections, para. 28)
- The Oil Platform case (the 2003 Judgment, para. 37)
- The Diallo case (the 2007 Judgment, paras. 1-33, 49-67 and 76-95) and the 2010
Judgment, paras. 149-159)
- The Genocide (Bosnia v Serbia) case (the 2007 Judgment, paras. 396-412)
- Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (the
2008 Judgment, paras. 131-139 and 145)
- The Genocide (Croatia v Serbia) case (the 2008 Judgment on preliminary objections,
para 53)

Readings:
- Guillaume, G., The Use of Precedent by International Judges and Arbitrators, Journal
of International Dispute Settlement Vol. 2 No. 1, 2011, 5-23

Optional Readings:
- Shahabudden, M., Precedent in the World Court, Hersch Lauterpacht Memorial Lectures
(1996)

Practical exercises (based on fictitious cases):

- Drafting of a claim/argument departing from a previous decision of the Court

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12. Establishing the Facts (1) (General Regime of Evidence)
Focus:
- The 2007 Judgment in the Genocide case (Bosnia v Serbia) (see in particular paras. 202-
230)
- The 2015 Judgment in the Genocide case (Croatia v Serbia) (in particular paras. 167-199)

- On scientific documents:
o See the relevant passages of the Pulp Mills (Argentina v Uruguay) case
(2010 Judgment on the merits) (as well as, in particular, the Joint Dissenting
Opinion of Judges Al-Khasawneh and Simma, paras. 2-17; and the Separate
Opinion of Judge Greenwood, paras. 27-28)
o See also the relevant passage of the Whaling in the Antarctic (Australia v. Japan:
New Zealand intervening) case, Judgment, 31 March 2014
o DAspremont, J, Mbengue, M.M., Strategies of Engagement with Scientific Fact-
Finding in International Adjudication, Journal of International Dispute
Settlement, Vol. 5, 2004, No. 2, p. 240-272

Optional Readings:
- Gattini, A., Evidentiary Issues in the ICJs Genocide Judgment, Journal of
International Criminal Justice Vol. 5, No. 4, 2007, 889-904
- Schar, M., Day, M., The International Court of Justice's Treatment of Circumstantial
Evidence and Adverse Inferences, Chicago Journal of International Law Vol. 13 No. 1,
2012, 123-152
- Teitelbaum, R., Recent Fact-Finding Developments at the International Court of
Justice, The Law and Practice of International Courts and Tribunals Vol. 6 No. 1, 2007,
119-158.
- Peat, D., The Use of Court-Appointed Experts by the ICJ, British Yearbook of
International Law, 2013, p. 271-303

Practical Exercice (based on fictitious cases): Cross-Examination before the ICJ

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13. Establishing the Facts (2) (Documents Involving Security Interests)
Readings:
- Corfou Channel, Judgment, 9 April 1949, p. 32
- Paras. 50-63 of the Dissenting Opinion of Judge ad hoc Mahiou in the Genocide case
(2007 Judgment)
- on the corresponding Contempt case before the International Criminal Tribunal for the
former Yugoslavia, see https://www.article19.org/resources.php/resource/2770/en/icty:-
hartmann-case-troubling; and the corresponding judgments of the ICTY available at
http://www.icty.org/case/contempt_hartmann/27
- GATT, Article XXI (a)
- UNCLOS, Article 302
- ICTY, Appeals Chamber, 29 October 1997, Judgment on the Request of The Republic of
Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, paras. 61-69
(available at http://www.icty.org/x/cases/blaskic/acdec/en/71029JT3.html#II-E)

Practical exercise (based on fictitious cases): Drafting of arguments in favor / against the
submission of documents involving security interests

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14. Independence and Impartiality
Readings
- ICJ Statute, Articles 16 to 20
- ICJ Rules of Court, Articles 5-6
- ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Proceedings, Order of 30 January 2004, Composition of the Court
- Separate Opinion of Judge Cot, ITLOS, The M/V Louisa Case (Saint Vincent and the
Grenadines v. Kingdom of Spain), Judgment, 28 May 2013
(https://www.itlos.org/cases/list-of-cases/case-no-18/case-no-18-merits/)

Optional Readings:
- Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Reasoned
Decision on Challenge, 30 November 2011 (www.pca-cpa.org)
- ILA Hague and Burgh House Principles (available at http://www.ila-hq.org/en/study-
groups/index.cfm/cid/1012)
- Documents dated from 23 July 2015 related to the Arbitration between The Republic of
Croatia and The Republic of Slovenia (http://www.pcacases.com/web/view/3)
- ICJ, Questions relating to the seizure and detention of certain documents and data
(Timor-Leste v. Australia) (2013-2015)
- G. I. Hernandez, Impartiality and Bias at the ICJ, Cambridge Journal of International
Law, 2012, Vol. 1, issue 3, 183-207
- R. Mackenzie, Ph. Sands, International Courts and Tribunals and the Independence of
the International Judge, Harvard International Law Journal, 2003, Vol. 44, No. 1, 271-
285.

Practical exercises (based on fictitious cases):

- Drafting of a Challenge to a Judge of the Court

- Drafting of the corresponding Order of the Court

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