Rules of Procedure in the International Court and the European Court

II. The Judicial Function

The International Court, designated by the UN Charter as `the principal judicial organ of the United Nations'¹³ is the judicial counterpart of the political organs (the General Assembly and Security Council) and the economic and social organ (the Economic and Social Council).¹⁴ In common with all of these, it has as its function the promotion, within its sphere of competence, of the purposes and principles of the Charter which are set out in Chapter I. Among these are the peaceful adjustment or settlement of international disputes in conformity with the principles of justice and international law¹⁵ and the promotion of human rights and fundamental freedoms.¹⁶ The United Nations are specifically charged with the protection of certain fundamental interests of the state: they are based on the principle of sovereign equality of all members; and may not intervene in matters falling essentially within the domestic jurisdiction of a state.¹⁷ The Court therefore as an organ of the UN acted in accordance with the purposes for which it was established when it observed, in connection with diplomatic asylum, that this entailed a derogation from territorial sovereignty, and that any such derogation `cannot be recognized unless its legal basis is established in each particular case'.¹⁸

The contrast with the European Court is marked. The latter is an institution of the European Communities¹⁹ whose tasks include the promotion of `closer relations between the States belonging to it'.²⁰ That phrase gains colour and meaning from the preambles to the EEC Treaty and the Single European Act, which speak of the ambition to secure `an ever closer union among the peoples of Europe', `to eliminate the barriers which divide Europe' and `to transform relations as a whole among their States into a European Union'. According to the Tindemans Report on European Union,²¹ the function of the Court in a Community having these ambitions is to protect the `state of law', and therefore individuals must be able to appeal directly to the Court against an act of one of the institutions of the Union which infringes their basic rights.

In such a Court, presumptions of national sovereignty of the kind expressed by the International Court of Justice appear misplaced. Rather, the European Court insists that

By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of power from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.²²

In view of this difference in the functions of the two Courts it is, to the novice, surprising that Article 2 of the Statute of the International Court declares that it shall be composed of `independent judges elected regardless of nationality', whereas Article 167 of the EEC Treaty records that Judges and Advocates General `shall be chosen from persons whose independence is beyond doubt': nothing is said about the disregard of nationality.

13 26 June 1945,1 UNTS; xvii UKTS 67 (1946) Article 92.

14 Article 7(1).

15 Article 1(1).

16 Article 1(3).

17 Article 2(1), (7). See Advisory Opinion on Nationality Decrees Issued in Tunis and Morocco, PCIJ Series B. No. 4 (1923) 24; Interpretation of Peace Treaties (First Phase), ICJ Rep. (1950) 65, 7071; North-East Coast Atlantic Fisheries case, 1 Scott 141, 156; Lotus case, PCIJ Series A No. 10 (1927) 18; Asylum case, ICJ Rep. (1959) 266, 275; Minquiers and Ecrehos case, ICJ Rep. (1953) 47, 52. In the ample literature on the subject, the following merit particular attention: E. Dickinson, The Equality of States (1972); I. Delupis, International Law and the Independent State (1974); Lalive, `Note on the Peace Treaties case', 77 JDI (1950) 1246; and Fitzmaurice, `The Law and Procedure of the International Court of Justice', 34 BYIL (1958) 1. See further the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970 UNGA Res. 2625 (XXV).

18 Asylum case, supra note 16, loc. cit. The Court's language echoed that of the Permanent Court in the Lotus case (supra note 16, loc. cit.): `Restrictions upon the independence of states cannot be presumed'.

19 EEC Treaty, Article 4.

20 EEC Treaty, Article 2.

21 29 December 1975, Bull.EC Suppl. 1/76.

22 Case 6/64, Costa v. Enel, supra note 11, loc. cit. See further, J. Usher, European Community Law and National Law: The Irreversible Transfer? (1981).

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