Procedural Efficiency and Institutional Strain at the International Court of Justice: A Delicate Balance

[Fabián Raimondo is an Associate Professor of Public International Law at the Faculty of Law of Maastricht University. He has been a member of the Bar of the City of La Plata (Argentina) since 1990 and on the List of Counsel of the International Criminal Court since 2005. He has acted as counsel and advocate for Sudan in three advisory proceedings before the International Court of Justice. 

Alexandre Skander Galand is an Assistant Professor of International Law at Maastricht University. He has participated in the International Court of Justice proceedings on the General Assembly’s request for an advisory opinion on the Obligations of States in respect of Climate Change.]

Introduction

The International Court of Justice (ICJ) is operating under unprecedented pressure, with 26 cases currently pending on its docket. The pace of new filings continues to accelerate. Just in the past month, France instituted proceedings against Iran, while Lithuania brought a case against Belarus. 

The increase in caseload volume and procedural intensity has sharpened an institutional dilemma: the Court’s time and administrative capacity are finite. Without reforms in staffing, scheduling, and procedural planning, the risk is a decline in the efficiency, quality, and transparency of its judicial work.

This blog post examines how the Court is responding to increasing pressure through procedural adjustments aimed at managing its docket more stringently. While some of these steps may represent legitimate attempts to enhance procedural efficiency, they also raise concerns about what may be sacrificed – particularly the publicity of the Court’s proceedings, as well as its accessibility and inclusiveness. The  post discusses recent developments such as the Sudan v. UAE case, where the Court removed the case from the General List prior to the preliminary objections phase; the procedural reforms introduced in response to a surge in interventions in contentious cases; and the omission of written comments in the Obligations of Israel advisory proceedings. It concludes with the Right to Strike advisory proceedings, where the prolonged absence of updates on oral hearings has prompted concerns about the publicity of the proceedings, accessibility, and inclusiveness.

The Sudan v. UAE Case: Removal from the General List Before Preliminary Objections Phase

A notable trend in the ICJ docket is the growing use of the Genocide Convention as a legal foundation to the Court’s jurisdiction. Four active cases invoke the Convention: The Gambia v. Myanmar, Ukraine v. Russia, South Africa v. Israel, and Nicaragua v. Germany. One case – Sudan v. UAE – was removed from the General List in exactly one month after having been filed. The ICJ removed the case at the provisional measures stage, finding that the UAE’s reservation to Article IX excluded that clause from operating between the parties. The Court concluded that it “manifestly lacks jurisdiction” and that continuing the case would not serve the “sound administration of justice” (para 35). 

While the decision was rooted in a strict reading of the consensual nature of ICJ jurisdiction, it drew criticism from several judges. In a joint partly dissenting opinion, six judges argued that Sudan should have been allowed to present its jurisdictional arguments and criticised the Court’s “rush to judgment” (para 1). Judge Yusuf recalled that the only prior instance of such early removal occurred 26 years ago, in the Legality of Use of Force cases (Yugoslavia v. Spain and Yugoslavia v. United States).

Although the legal reasoning regarding the absence of prima facie jurisdiction in Sudan v. UAE may be defensible, the procedural posture of the case raises important questions. The decision to terminate proceedings so early limits the applicant’s access to a full hearing through the process foreseen for preliminary objections. Its timing – amid a growing docket – suggests a possible trend toward procedural streamlining.

The Rise of Interventions and Procedural Containment

A notable development in the Court’s activities is the sharp rise in third-party interventions under Articles 62 and 63 of the Statute. This reflects both heightened State interest and the increasingly systemic nature of the issues before the Court.

The most striking example is Ukraine v. Russia, where 33 States filed declarations of intervention between July and December 2022 – the highest number in the Court’s history. By June 2023, the Court admitted 32 declarations, with 31 States submitting written observations, adding a significant procedural layer. In The Gambia v. Myanmar, six declarations were filed, involving 11 States. Though fewer in number, each required admissibility rulings and generated written observations. It took over seven months to rule on the first two, and several remain pending – demonstrating that even a few declarations of intervention can burden the Court’s schedule. The pattern continued in South Africa v. Israel, where 13 declarations have been filed, and then one withdrawn.

In response to this new development, the Court amended its Rules in November 2024 to improve procedural management. Article 82 now requires Article 63 interventions to be filed before the Counter-Memorial deadline, replacing the earlier, more flexible rule. Article 86 was also revised, making oral observations by intervenors subject to the Court’s discretion.

While interventions enhance legitimacy and inclusiveness, these amendments reveal that the Court is taking measures to better manage the expanding docket.

The Israel’s Obligations Advisory Opinion: No Round of Written Comments

One notable trend in the ICJ’s recent advisory proceedings is the rising number of participating States and international bodies. In February 2024, the Policies and Practices of Israel advisory proceedings involved around 50 oral statements – then a record – before the Climate Change advisory proceedings more than doubled that figure. These  proceedings saw 91 written statements and 109 States and international bodies participating in two weeks of full-day hearings. The Court’s entire institutional capacity was fully absorbed, leaving no room for work on other cases. It was the first time a single proceeding completely monopolised the Court’s machinery for such an extended period. This marks a sharp contrast with earlier practice. Together, these examples signal a shift toward increasingly expansive, high-participation advisory opinions.

In response to this development and in an apparent effort to accelerate proceedings, the Court adopted a more streamlined approach in the Israel’s Obligations advisory proceedings. Here, the ICJ did not invite written comments on the statements submitted by States and international organisations – a departure from standard practice.

Under Article 66(4) of the ICJ Statute, States and organisations that submit written or oral statements “shall be permitted to comment” on others’ submissions. While Article 66(4) of the Statute and Article 105 of the Rules allows the Court to decide the form and timing of such comments, written comments have been a consistent feature of recent advisory proceedings. In the Policies and Practices of Israel proceedings, 15 written comments followed 57 statements; in the Climate Change proceedings, 62 comments followed 91 statements.

In Israel’s Obligations, the Court fixed a three-month deadline for written statements – resulting in 45 filings – but did not invite written comments, and instead moved directly to schedule oral hearings. This streamlining appears linked to General Assembly Resolution 79/232, which requested the opinion be rendered “on a priority basis and with the utmost urgency.” In its Order of 23 December 2024, the Court invoked Article 103 of its Rules, which allows it to accelerate proceedings when urgency is established.

This is not without precedent. In the 1988 Applicability of the Obligation to Arbitrate proceedings, the Court omitted written comments and proceeded directly to hearings after receiving four written statements. By contrast, in the 1995 Nuclear Weapons proceedings – also framed as “urgent” – two States submitted written comments after 28 statements and 22 States participated in oral hearings.

The Court may – and perhaps rightly did so in Israel’s Obligations – exercise its discretion to treat oral statements as a substitute for written comments. Notably, it allowed all States entitled to appear before the Court, as well as relevant organisations, to participate in the oral phase – unlike in 1988, when only those that had filed written statements were invited to speak. This broader approach may be seen as a constructive compromise in light of time constraints.

Silence on the Right to Strike Request: No Oral Proceedings Announced

On 10 November 2023, the International Labour Organization (ILO) requested an advisory opinion on the interpretation of ILO Convention No. 87, specifically concerning the right to strike. By Order of 16 November 2023, the Court fixed 16 September 2024 as the deadline for written comments on previously submitted written statements. On 1 October 2024, the Court announced that fifteen written comments had been filed. Since then, no oral hearings have been announced and no further update has been issued.

This prolonged silence contrasts with recent practice. In Policies and Practices of Israel, the Court announced hearings about three and a half months after the deadline for written comments. In Climate Change, hearings were announced just under four months after the final comment deadline, and in Chagos, after just under three months.

Some observers have speculated that the lack of any public announcement may indicate that the Court is considering dispensing with oral proceedings altogether. We do not believe this is the case. Rather, the delay may reflect two more plausible explanations. First, the Court may not yet have found an available slot in its overloaded calendar to accommodate the hearings. Second, the oral phase may already have been scheduled, but the decision has not yet been made public -a common occurrence, as States and international organisations are in practice informed by the Registry in advance of any press release.

In the rare instances where the Court has chosen not to hold oral proceedings, this has typically occurred either because no State expressed an intention to make oral submissions (see here) or because of the technical nature of the request – such as appeals from the UN Administrative Tribunal (see here, here and here). In the current proceedings, where multiple States and organisations have already participated in the written phase, and where the subject matter remains politically and normatively contested within the ILO system, forgoing oral hearings would mark a striking deviation from recent ICJ practice.

While the Court is under no legal obligation to hold oral proceedings, Article 66(2) of its Statute provides that it will be prepared to receive oral statements, and Article 105(2)(b) of the Rules authorises the Court – or its President – to determine whether and when hearings will take place. Still, oral hearings have become a central component of the advisory process, especially in matters of high sensitivity or systemic importance.

Oral proceedings not only allow States and organisations to clarify their legal arguments, but also ensure transparency and openness. They serve as the only public window into advisory proceedings, since written statements and comments are typically kept confidential until the oral phase. Without such a phase, the entire process risks unfolding behind closed doors, undermining perceptions of procedural legitimacy.

While the Court could choose to limit participation to those who submitted written statements – as it did in the 1988 Applicability of the Obligation to Arbitrate proceedings -doing so would diverge from the broadly participatory and public approach seen in other advisory proceedings, including Nuclear Weapons, Chagos, Policies and Practices of Israel, Climate Change, and Obligations of Israel. Given the contested nature of the right to strike and its long-standing tension within the ILO system, a restrictive approach to participation would signal a retreat from the inclusive and public character that has come to define the Court’s recent advisory practice and reinforce concerns about a broader turn towards procedural containment.

Conclusion

The ICJ’s recent procedural choices reveal a Court under pressure – responding to an unprecedented caseload through measures aimed at preserving institutional functionality. While some steps, such as tightened intervention rules, may be warranted, others risk narrowing the openness and deliberative richness that have come to define the Court’s legitimacy. The prolonged silence surrounding the Right to Strike request illustrates the tension between procedural efficiency and judicial transparency. While we do not believe that the Court intends to dispense with oral proceedings in this case, doing so would mark a notable departure from its inclusive advisory practice and could erode the confidence entrusted to it by States and international organisations. As the Court leans further into procedural containment, it must remain vigilant not to compromise the qualities -publicity, inclusiveness, and accessibility – that make it a central pillar of international justice.