Differences of Procedure between International and National Tribunals1
By STURE PETRÉN, Judge of the International Court of Justice
A national judge who some day finds himself called upon to serve on an international tribunal will soon realize that it is more or less in the nature of things that there are marked differences between the national court practice in which he was reared and the procedure of an international tribunal. The following pages will deal with a certain number of such differences on which the author had cause to reflect.
I should perhaps first make it clear that my remarks will only refer to international tribunals taking cognizance of disputes between sovereign States as such. Thus, I shall leave aside international arbitrations between private companies and between States and private companies, although arbitrations of the latter kind bear some resemblance to inter-State proceedings. On the other hand, my observations will have a bearing on international tribunals of a permanent character as well as on arbitral tribunals set up for specific disputes between two or more States.
As the parties appearing before the tribunals I have in mind are sovereign States, it is only natural that these tribunals are inclined to pay more regard to the parties' wishes as to the conduct of the procedure than private parties could normally expect from national tribunals. This tendency is enhanced by the fundamental fact that there exists in the world of today no international jurisdiction to which States are subject without their own expressed will. International tribunals therefore run the risk that States will prefer other ways of settling their disputes, if they should find that the procedure of the tribunals does not suit them. Another factor likely to have some influence on the procedure of international tribunals is that there hardly ever exists any possibility of appeal or other forms of recourse against their judgments. In accepting or rejecting offers of evidence and in the drafting of their decisions such tribunals therefore need not consider the possibility of cases being examined anew by a superior court.
Furthermore, the procedure of an international tribunal is, of course, very much influenced by the way it is composed. With the ex-
ception of the very rare cases where there is only one arbitrator, international tribunals are composed of a number of judges of different nationalities and, very often, also expressing themselves in different languages. It also occurs that the representatives of the parties use yet other languages than those used by the judges.
The procedure therefore often has to be bilingual or even multilingual. It goes without saying that linguistic complications of this kind, which national tribunals do not normally have to cope with, give rise to technical problems of translation and interpretation likely to hamper the procedure.
Concerning the composition of international tribunals, it is worth noting that arbitral tribunals created for specific cases represent an earlier type than permanent international courts with a general competence such as the International Court of Justice in The Hague. Arbitral tribunals are, however, still set up from time to time. In such cases, the dispute has come into existence prior to the constitution of the tribunal and, in appointing the arbitrators, the governments concerned can consider the special character of the dispute. A permanent international court represents quite a different concept. The court is supposed to have been constituted before the disputes arise and the judges, therefore, are not supposed to be elected with some special dispute in view. The only concession to the ideas on which arbitral tribunals are based is represented by the institution of the judge ad hoc, the judge whom a party is entitled to appoint, when there would otherwise be no judge of that party's nationality on the bench. It is well known that the incorporation of this element in the structure of permanent international courts has been the subject of much criticism.
Should, however, the number of disputes referred to a permanent international court diminish considerably, there would be a danger of some of the main characteristics of such a court being lost. If, when an election to the court is being prepared, there is only a single case in sight that is likely to be referred to the court, it is inevitable that the election will take place with that particular case in view.
The situation would be still more acute if at the date of the election there were only one case already pending, and it were clear that this case could be adjudicated on by the court in its new composition after the election. Anyone who is familiar with the practice of the International Court of Justice knows that a judge is not considered to have begun a case, in the sense of Article 13, paragraph 3, of the Statute of the Court, until the oral proceedings in the case have started. This means that, even if the preceding written procedure has lasted for years, the judges whose term of office expires have to hand
over the accumulated written pleadings to their successors. A comparison with what would happen in a corresponding situation in various national courts would certainly be of some interest, but here attention should only be drawn to the unexpected conditions under which the election of new members of a permanent international court would take place, if there were only one specific case in view which the new judges would have to determine.
Having thus underlined a few basic factors likely to influence the procedure of international tribunals, I shall now try to describe in more detail what their effect is.
The first point to be dealt with will thus be the way in which the behaviour of sovereign States as parties to international court proceedings differs from that of ordinary parties before national tribunals.
States do not normally engage in international proceedings unless the object of the dispute is of considerable economic or national value. The contentions of the parties are therefore worked out and presented with great care and the procedure always starts with an exchange of written memorials. As international proceedings are a form of interState relations, they belong to the sphere of competence of the Ministries for Foreign Affairs, which entrust their own legal advisers or other eminent lawyers, national or foreign ones, with the preparation of the pleadings. In any case, the contents of the written memorials are, as a general rule, submitted to the Ministry for approval.
Later on, the same meticulousness normally characterizes the preparation of the oral part of the proceedings. This means, amongst other things, that they first take the form of a written text on which the oral presentation to the court is based.
According to their individual temper, lawyers taking part in oral proceedings are more or less dependent upon their text. Some have almost no need at all to look at the manuscript while addressing the court. Others, on the contrary, read their paper from beginning to end and there are even those who, in beginning their statement, pronounce also the time-honoured first words "Mr. President and Members of the Court" immersed in their manuscript, without looking at the court. It also happens that a speaker looking down his manuscript does not speak into the microphones but may accidentally cough into them, causing a magnified coughing noise that awakens those in the courtroom who are dozing.
In this respect, the procedure of the International Court of Justice is entirely different from that of the numerous countries in which counsel is not allowed to read from manuscript when addressing the court.
In The Hague, the requirements of the interpretation service, inescapable in a court with two working languages, have contributed to impress upon the so-called oral procedure a non-oral character. At the annual meeting of the American Society of International Law in New York in April 1970, where one of the panels treated the question of "Practical Aspects of International Litigation", attention was drawn to the existing practice of supplying a number of copies of the text of a speech before the beginning of the sitting at which the speech is to be made. While this is not required by the procedural Rules of Court, and the speaker remains free to depart from his prepared text as much as he wishes, the advance copies ensure maximum accuracy in the interpretation, as well as in the typed record of the sitting, particularly with regard to names, references and quotations. The adoption of this convenient practice by the majority of those who address the Court means, however, that the oratorical duels before the world court are like battles fought with muzzle-loading blunderbusses. Having fired his carefully prepared shot, the combatant must retire to reload his gun with the same punctiliousness.
While there are some pleaders whose oratorical art gives life to their statements, there are so many others who merely read aloud from their papers. It is needless to say that such a presentation of a case is very monotonous and it is hard to follow it for hours on end. The quiet solemnity of this type of procedure can be overwhelming. Recently, a charming little girl, taken to the Peace Palace to have a look at the World Court in session, was so impressed by the sight of the motionless judges in their robes, not unlike saints of an altarpiece, and by the low murmur of the counsel pleading in front of them that she, on leaving the courtroom, curtseyed and made the sign of the cross. She obviously believed she had been attending a Low Mass.
As nothing is added to the written text of such pleadings, it would seem more reasonable to distribute all these statements by mail as is done with the earlier series of written pleadings. The parties and their counsel, however, may see in this so-called oral procedure a guarantee that, at the culmination of the proceedings, all their arguments will reach the ears of the judges. On the other hand, a judge who has carefully studied the documents of the written procedure finds himself somewhat in the same situation as a theatre-goer who is familiar with an opera or a play, and is curious to learn with what variation or nuance the singers or actors will perform the more delicate parts of their respective rôles.
Nevertheless, reading a document by yourself is normally a more
efficient and rapid way of getting acquainted with its contents than listening to somebody reading it to you. When reading, you can dwell on passages of particular importance while giving less time to parts of the text which do not present the same interest or the contents of which you already know. It therefore would seem desirable if in international proceedings the oral phase could be limited to short summaries of what has already been said in the written pleadings and to questions which judges might wish to put to the parties. In this respect, however, conditions in The Hague are very different from those which prevail, for instance, at the Supreme Court of the United States where even in complicated cases counsel are allowed only a very limited time for their oral arguments. The greater liberality which characterizes the procedure of the International Court of Justice is, of course, to be explained by the fact that the parties are sovereign States which expect to be given all the time they themselves find necessary for the presentation of oral arguments.
If in international proceedings the pleadings take on greater proportions than before national tribunals, one explanation is also the uncertainty that today characterizes so many fields of international law in view of its rapid evolution. This sometimes induces parties to advance various theses between which they invite the court to make a choice.
If an international court is composed of judges of different origins, parties may also imagine that certain arguments would be sufficient to convince some of the judges, but that it would be necessary to present other arguments in addition to convince certain other judges.
An able international lawyer once told me that, according to his experience, there are judges who feel reluctant to uphold every single one of the arguments of a party. It would therefore seem wise to include, in your presentation of a case, in addition to the arguments on the basis of which you hope to win your case, a few less convincing arguments. A judge with the tendency just mentioned would then belikely to concentrate his destructive urges on the weak arguments, leaving the strong ones intact. To follow this advice—the soundness of which I leave to my readers' own appreciation—would be to behave like the partridge which, at the approach of the sportsman, simulates a damaged wing and in a staggering flight tries to draw the enemy away from the nest with its precious eggs.
For various reasons, therefore, there is a tendency for the development of the parties' contentions in international proceedings to be long-winded, particularly in proceedings before the International Court of Justice. In any procedural system where proceedings begin
with an exchange of written pleadings, there is also a risk that the parties may not adjust their firing very well, with the result that their arguments do not really meet each other so as to provoke replies clarifying the positions and legal reasonings on each side. In national tribunals, at least in some countries, there are possibilities of correcting such defects by drawing the parties' attention to gaps or excrescences in their written pleadings. This function, which represents an important step in the preparation of the oral procedure, belongs to the president of the tribunal or to the juge rapporteur. In the International Court of Justice there is, however, no juge rapporteur and it hardly ever happens that the President intervenes in the written procedure in order to make the parties restrict or complete their argumentation. Thus, there exists a risk of over-stuffed pleadings as well as that of over-skimpy pleadings, but mostly the former.
While the elaborate development of the parties' contentions is typical of international proceedings, the producing of evidence often plays only a small part in such proceedings. Very often, the dispute is purely one about matters of theory. In other cases, however, questions of proof arise. If so, what sorts of evidence are allowed? How should evidence be taken? What will the effect be as to the proof of a disputed fact if a certain evidence is or is not produced? On matters like these there are more or less detailed rules in the various national codes of procedure. In international proceedings the situation is different. As far as arbitral tribunals are concerned, the States who create them may also provide them with rules of procedure, including rules of evidence, but it is more common for the arbitral tribunal itself, when it meets for the first time, to adopt rules of procedure amongst which certain, usually summary, rules of evidence may also be found.
Permanent international tribunals, on the other hand, are equipped with fairly elaborate rules of procedure, such as those of the International Court of Justice. Here the rules of evidence are, however, not very detailed; the solution of questions of proof will therefore usually have to depend upon the practice of the Court. There are hardly any generally accepted rules of evidence on the international level from which the Court could seek guidance in the development of its practice in the matter. As recently as in the Barcelona Traction case, Members of the Court have noted the absence in international tribunals of any fully developed practice as to rules of evidence.
At least in certain regards, however, it does not seem certain that the absence of strict rules of evidence is an inconvenience. The flexibility of the present rules of procedure in this respect makes it possible for the President, in consultation with the parties, to regulate,
for instance, the taking of evidence in whatever manner counsel and witnesses are accustomed to in their own countries.
On the other hand, the great liberality with which the Court accepts written pleadings permits the parties to introduce pieces of evidence in writing which, under a number of national procedural systems, would never have been accepted in that form. Suppose it is in the interest of a party to prove that a certain person called upon a certain other person on a certain date and made a certain declaration. Suppose, furthermore, that the same party annexes to one of its written memorials a declaration by somebody who testifies to the fact that the conversation in question took place. Should this fact be contested by the other party, the witness would normally be heard by the court. However, since the witness has already signed a written statement which has been annexed to the file, the evidence is deprived of its virginity, as the witness would feel inhibited from correcting errors or inaccuracies in his earlier testimony. There are therefore national laws of procedure which do not permit such written statements by witnesses and merely allow the parties to indicate, during the preparation of the oral procedure, what witnesses they intend to call in order to prove facts contested by the other side. If such a testimony in writing has slipped into the written pleadings, it is too late for the court to re-establish the situation.
Concerning the more specific question of what evidence the parties should be allowed to produce in a given case, national tribunals may exclude evidence which is found to be irrelevant or superfluous. An international tribunal, however, especially if it is composed of a great number of judges of different nationalities, will only rarely be prepared to refuse to allow a State to produce evidence which that State considers necessary. The reason for this attitude may not only be the consideration due to sovereign States, but also uncertainty as to what importance each individual judge will feel inclined to attach to the evidence.
Attention has recently been drawn to another problem concerning the production of evidence, namely the question what the effect should be of a party's failure to produce evidence supposedly in its possession, when requested to do so. It has been argued that a provision should be introduced into the rules of procedure of the International Courtof Justice to the effect that such failure should permit the inference to be drawn that the evidence, if brought, would have exposed facts unfavourable to the party failing to produce it. Such a rule, it has been said, would eliminate an element of uncertainty which is embarrassing for the parties.
Some doubt may however be felt as to the appropriateness of introducing such a rule in this context. In the absence of any strict rules concerning the conclusions the judge should draw from the production or non-production of evidence of various kinds, the judge is free to form his own opinion as to the existence or non-existence of the facts which it is sought to establish, on the basis of a comprehensive evaluation of all the evidence in the case. Ancient laws of procedure have contained detailed rules concerning the varying amount of evidence required to establish facts of different gravity. In modern laws of procedure such rules have disappeared, and it is left to the judge to appreciate, according to his own conscience, the probative value of the various elements of evidence put before him. Such a system evidently supposes a certain confidence in the judge's experience of life and in his common sense, but if so many national legislatures have adopted this system, there would seem to be no reason why it should not apply also to international proceedings, nor why the international judge's power of evaluation should not comprise also the inference to be drawn from the non-production of evidence.
We have now arrived at the ultimate stage of the procedure, the birth of the judgment.
Here attention must be given to an important question of principle. What is the object of the judgments of international tribunals, particulary those of the International Court of Justice? It goes without saying that the first object of any judgment is to settle the dispute between the parties. As regards international judgments, and above all those of the International Court of Justice, it is considered desirable, and rightly so, that they should also contribute, in a general way, to the development of international law. The more definitely a judgment states a conclusion on questions of doctrine, the more it serves this latter purpose. In individual cases problems may however arise as to how far the Court should go to meet the expectations of those who seek from the Court such guidance of a general nature.
To strike a balance between these two philosophies is no easy task. It cannot be struck in the same way in all procedural situations.
There are first situations generated by preliminary objections, which have become something of a speciality for the International Court of Justice. If such an objection to the Court's jurisdiction or to the receivability of the application of the plaintiff party is examined without being joined to the merits of the case, there is no problem. Should the objection be upheld, the case comes to an end without any possibility of the Court pronouncing on the merits, which will not have been examined. If, on the other hand, the objection is rejected, the Court
does not, in that connection, have to pronounce on anything further, as the procedure on the merits will now follow.
Should the objection be joined to the merits, however, and should the Court, after having heard the whole case, decide to uphold the objection and to reject the application for that reason, the situation is less unequivocal. It has been argued, by some judges on the bench as well as by other international lawyers, that in such circumstances the parties and the world of legal learning may expect the Court to give answers to all questions raised by the parties, although the Court finds itself precluded from giving judgment on the merits of the case. The majority of the Court has, however, not been found willing to adopt such a practice. There would also seem to be sound reasons for this attitude. It must, for instance, be kept in mind that a party which has raised an objection to the Court's jurisdiction to determine a case has the right to expect that the Court will not give judgment on the merits thereof, should the said objection be upheld by the Court. Would it then not be strange if the Court, while upholding the objection to its jurisdiction, were nevertheless to examine the merits of the case, and to declare, for instance, that the contentions of the applicant party were well founded in law? And would States not be still more reluctant to accept the Court's jurisdiction than they are already today, if they were to learn that valid objections to the Court's jurisdiction or to the receivability of an application will not always prevent the Court from making statements on matters which the Court, by upholding the objection, has found not to be properly brought before it?
I now turn to the more normal situation, when there is no reappearance of a preliminary objection in the last act of the proceedings, like the marble ghost of the Commendatore stopping the banquet of Don Giovanni. In the normal situation the Court has to give judgment on the merits of the case, but if the parties have raised various legal questions during the proceedings, it is possible that the answer given merely to one of them enables the Court to settle the whole case. These are the situations in which it could be argued with greater force than in those mentioned above that the Court should, in the interest of the development of international law, reply also to those questions which it is not necessary to answer for the determination of the claim of the applicant party.
It would seem in any event that the extent to which this may be done ought to depend on considerations of procedural convenience and economy, according to whether, for instance, to go into the secondary questions would imply a more thorough enquiry by the Court,
and requests for further evidence. Perhaps the Court should also take into consideration whether the answers to the secondary questions would be adopted unanimously or by a substantial majority of judges. If opinions would be likely to be very divided, it might be doubtful whether to reveal them would do any great service to the development of international law. It might be preferable for the Court to wait for another occasion when the same questions would come back, having ripened in the meantime, so as to allow a larger majority to be formed around some solution.
This last remark touches upon a conspicuous characteristic of the International Court of Justice, namely the large number of dissenting and separate opinions accompanying its judgments. Particularly striking is the frequency with which separate opinions appear, i.e. opinions which, while concurring in the conclusions of the judgment, give reasons therefor which are different from those of the judgment. It is tempting to offer an analysis of the various aspects of this phenomenon, but it would take me too far afield in this article.
Much more could certainly be said than has been mentioned here about the differences between international court proceedings and national ones, but it should not be forgotten that the essential requirements which both should meet are the same, and that international courts therefore must not lose sight of procedural achievements in national judicial systems.