October 4, 2022

Simplifying the Statute of ICJ- Part III- Procedure of the Court

In last articles, we have discussed ‘composition of court’ and ‘competence of court’. In this article, we will describe the chapter III of ICJ’s Statute. This chapter (article 39 to 64) explains the procedure of International Court of Justice.

CHAPTER III PROCEDURE

Article 39 (language of the court)

  • The official languages of the Court shall be French and English.
  • If the parties agree that the case shall be conducted in French, the judgment shall be delivered in French. If the parties agree that the case shall be conducted in English, the judgment shall be delivered in English.
  • In the absence of an agreement as to which language shall be employed, each party may, in the pleadings, use the language which it prefers; the decision of the Court shall be given in French and English.
  • The Court shall, at the request of any party, authorize a language other than French or English to be used by that party.

Article 40 (filing of case)

  • Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated.

Article 41 (special power)

  • The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
  • Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

Article 42 (Representation before the court)

  • The parties shall be represented by agents.
  • They may have the assistance of counsel or advocates before the Court.
  • The agents, counsel, and advocates of parties before the Court shall enjoy the privileges and immunities necessary to the independent exercise of their duties.

Article 43 (Proceeding of the court)

  • The procedure shall consist of two parts: written and oral.
  • The written proceedings shall consist of the communication to the Court and to the parties of memorials, counter-memorials and, if necessary, replies; also all papers and documents in support.
  • These communications shall be made through the Registrar, in the order and within the time fixed by the Court.
  • A certified copy of every document produced by one party shall be communicated to the other party.
  • The oral proceedings shall consist of the hearing by the Court of witnesses, experts, agents, counsel, and advocates.

Article 44 (serving of notice to the parties)

  • For the service of all notices upon persons other than the agents, counsel, and advocates, the Court shall apply direct to the government of the state upon whose territory the notice has to be served.

Article 45 (Presiding in the bench)

  • The hearing shall be under the control of the President or, if he is unable to preside, of the Vice-President; if neither is able to preside, the senior judge present shall preside.

Article 46 (proceeding in camera or publicly)

The hearing in Court shall be public, unless the Court shall decide otherwise, or unless the parties demand that the public be not admitted.

Article 47 (recording of Proceeding)

  • Minutes shall be made at each hearing and signed by the Registrar and the President.
  • These minutes alone shall be authentic.

Article 48 (conduct, form and time of the proceeding)

The Court shall make orders for the

  • conduct of the case,
  • shall decide the form and
  • time

in which each party must conclude its arguments, and make all arrangements connected with the taking of evidence.

Article 49 (power to call the agents)

The Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations. Formal note shall be taken of any refusal.

Article 50 (power to call the expert for opinion)

The Court may, at any time, entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion.

Article 51

During the hearing any relevant questions are to be put to the witnesses and experts under the conditions laid down by the Court in the rules of procedure referred to in Article 30.

Article 52

After the Court has received the proofs and evidence within the time specified for the purpose, it may refuse to accept any further oral or written evidence that one party may desire to present unless the other side consents.

Article 53 (ex parte proceeding)

  • Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favor of its claim.

Article 54 (closing of hearing)

  • When, subject to the control of the Court, the agents, counsel, and advocates have completed their presentation of the case, the President shall declare the hearing closed.
  • The Court shall withdraw to consider the judgment.
  • The deliberations of the Court shall take place in private and remain secret.

Article 55 (decision of the court)

  • All questions shall be decided by a majority of the judges present.
  • In the event of an equality of votes, the President or the judge who acts in his place shall have a casting vote.

Article 56 (Reasons to be stated)

  • The judgment shall state the reasons on which it is based.
  • It shall contain the names of the judges who have taken part in the decision.

Article 57 (Separate opinion)

  • If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion.

Article 58 (Delivering the court)

The judgment shall be signed by the President and by the Registrar. It shall be read in open court, due notice having been given to the agents.

Article 59 (Decision of the court is no binding)

The decision of the Court has no binding force except between the parties and in respect of that particular case.

Article 60 (No appeal)

The judgment is final and without appeal. In the event of dispute as to the meaning or scope of
the judgment, the Court shall construe it upon the request of any party.

Article 61 (Revision of the judgement)

  • An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.
  • The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.
  • The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.
  • The application for revision must be made at latest within six months of the discovery of the new fact.
  • No application for revision may be made after the lapse of ten years from the date of the judgment.

Article 62 (Interested Party)

  • Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene
  • It shall be for the Court to decide upon this request.

Article 63 (construction of the convention)

  • Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith.
  • Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.

Article 64 (Cost)

Unless otherwise decided by the Court, each party shall bear its own costs.

Reference

Statute of International Court of Justice