03 Sep Hello! ICJ? Remember that Uruguay-Argentina Pulp Mill Dispute?
Argentine protesters have marched into Uruguay to protest the construction of a pulp mill that they believe will pollute downriver Argentina. As this dispute heats up, it seems more and more likely that litigation at the ICJ is not going to provide a solution, and that litigation at the ICJ is almost never preferable to bilateral arbitration in these sorts of disputes.
Back in January, the ICJ issued a judgment refusing to grant provisional measures in a dispute over the construction of a pulp mill upriver from Argentina. Essentially, the ICJ decided to do nothing as a provisional matter, and reach the merits of Argentina’s claim against Uruguay. Supposedly, the parties were supposed to file full memorials on the merits (none have been posted on the ICJ website) which suggests that they have been delayed. Even after such memorials are filed, the ICJ usually needs two-plus years to reach a judgment (if they are moving fast). So in a fast-moving dispute like this one, the ICJ is playing a pretty useless role here. Argentina and Uruguay would have been better off setting up a bilateral arbitral tribunal rather than resorting to the cumbersome ICJ. Sure, it’s a bit more expensive. But at least you’ll have a decision on the merits sometimes this decade.
Prof Ku, please, give me a break. Even assuming that there has been some delay in submitting the memorial and counter-memorial (and, remember, they need not be made available on the ICJ website immediately – the written statements in the Wall case were, if memory serves, treated as confidential for some time), whose delay do you think that would have been? How would the ‘cumbersome’ ICJ prevent willing litigants from submitting their pleadings on time? And why? And how, beyond making orders on the time-limits, would the Court ensure that such limits are complied with? (Remember, it cannot give default judgment – Article 53 of the Statute) The decision (not a judgment, by the way) on provisional measures could be read as indicating that the ICJ intended to deal with the case relatively quickly, within the limits that respect for the sovereign litigants imposes. [Consider the President’s extrajudicial statements in ‘Respecting Sovereign States and Running a Tight Courtroom’, ICLQ 50 (2001), 121 et seq.] It was arguably for that reason that provisional measures were felt to be unnecessary, as the merits judgment would be handed down in time. No need, then, to make a barely educated guess as to the… Read more »
I second everything Tobias has said.
Just FYI, written pleadings on the merits of a case are never made available on the Court’s website before the opening of the oral hearings on the merits. For example, the written pleadings in the Genocide case were made publicly available only in early 2006, when the case was heard, while the last of the written pleadings was actually filed in 1998, if memory serves (the delay, again, being caused by the conduct of the parties, not by the Court’s inefficiency).
The Court did in fact set very strict time limits for the filing of the pleadings in the Pulp Mills case, and the order is available here.
Thank you, Marko. I wasn’t sure about the Court’s practice with regard to the publication of the written pleadings.
As has been discussed on this blog on a few occasions, Julian assumes that the slow pace of ICJ cases is down to the Court. Has it occured to him, that this slow pace might be down to the parties! When the parties want cases to proceed quickly, the Court usually obliges and the case is heard and decided speedily. The Avena case lasted less than 1 year and 3 months from the filing of the Application to the Judgment on the merits. The Arrest Warrant case took only 1 yr and 4 months from Application to Judgment! How many arbitral tribunals move more speedingly?
Whats more, if the parties truly want a speedy resolution they can refer a matter to the ICJ’s Chamber of Summary Procedure under Art. 29 of the Court’s Statute. That chamber is established annually “with a view to the speedy dispatch of business.” Its telling that States have NEVER referred a case to this ICJ chamber though it did happen once during the PCIJ era!
Guys,
I think you all are over-reacting. At no point does Julian “blame” the ICJ. Regardless of who “causes” the delay, the process of getting an ICJ judgment itself is slow. It can be slowed by the parties, or by the Court. Regardless, in a fast-moving situation, the ICJ may be less suited than say an ad hoc tribunal.
I don’t see why this matters from the perspective of the peaceful resolution of disputes, who cares if it is an ICJ or ad hoc tribunal decision. As someone who had somesort of tie to the Court, albeit not as close as Marko, I don’t take it as an affront that the ICJ may be less suited than an ad hoc tribunal in some cases.
Am I missing something here?
With respect, NewStream Dream, if any delay in the proceedings is the parties’ fault, then an arbitral tribunal would have precisely the same difficulties as the ICJ. The ICJ is then no less suited to dealing with the dispute than the arbitrators. If you wish to argue that the ICJ may be a worse choice than the arbitral tribunal, you will have to attribute any delays to the Court, rather than to the parties. You will therefore have to, in some sense, “blame” the Court. I agree that it would not be an affront to the Court to say that other institutions may be preferable. UNCLOS has established a mechanism by which the ICJ is only one of the available institutions, and the ECHR expressly excludes recourse to any court other than the ECtHR on questions under the Convention. It is, however, more than slightly unfair to describe the ICJ as ‘cumbersome’ and therefore inferior to the arbitral process on the basis of a gross generalisation (note the ‘two-plus years to reach a judgment’ and Dapo Akande’s comment) and a supposed delay for which, even if it existed, the Court could not be responsible. I don’t think anyone is trying… Read more »