Rules of Procedure in the International Court and the European Court

XIII. Conclusions

The Rules of Procedure of the International Court and the European Court are similar in their origins, in their structure and in the wording of many of their provisions; but the functions of those courts differ in some fundamental respects. In particular, the International Court, in the exercise of its contentious jurisdiction, has as its principal function the peaceful settlement of bilateral disputes: and in such cases, its decisions are not binding on third states (other than those which have been permitted to intervene) even when those third states are parties to a treaty whose provisions have been the subject of judicial interpretation. By contrast, the European Court has as its function the promotion of closer relations between all the Member States, in the interpretation and application of the founding treaties.

This difference explains several of the distinctions between the Rules of Procedure of the two Courts, or the distinctions between those two Courts' interpretation of common rules. In particular, it explains the fact that national representation plays a greater role in the composition of the International Court than the European Court, both as a plenum and as a chamber. In the case of the International Court, it warrants the composition of members of a chamber from among those nominated by the parties to the dispute, without the necessity of securing the widespread geographical representation appropriate to the full Court. Equally, it explains the greater use of chambers in the European Court, even for cases involving the interests of states not being parties to the dispute; and it justifies the European Court's insistence upon collegiate judgments. Furthermore, whereas the International Court adjudicates upon a system of law applying horizontally, between states, the European Court interprets and applies a system applicable both horizontally and vertically, not only between states and institutions but also between natural or legal persons and between the latter inter se. This explains and warrants the use of a wider range of languages in the European Court, and a more liberal attitude by the International Court to the question of rights of audience. (States can be expected to exercise a very high degree of discrimination in their selection of advocates; whereas individual or corporate litigants might, for reasons of economy or otherwise, prefer to be represented by those who, by their training or their subjection to professional discipline, are less suited to the conduct of advocacy, especially in the context of a dispute originating in proceedings before a national court.)

The differences in function between the two Courts are not so great as to prevent the one from applying lessons learned from the experience of the other. The practices of the two Courts are already remarkably congruent in respect of recusal. The European Court's practice on interim relief shows that it is not necessary to establish jurisdiction on the main issue in order to enable the tribunal to provide interim protection. By way of analogy, it seems appropriate to conclude that a similar rule should apply in the International Court. Neither the Rules of Procedure of the European Court nor those of the International Court are so clearly drafted as to determine whether a state other than a party to the statute may be permitted to intervene. The European Court has interpreted its rules in a liberal fashion, so as to admit the possibility of such intervention. There appears to be no compelling reason to prevent the International Court from following suit.

A comparison of the practice of the two Courts affords a basis for offering several responses to proposals for reform. In particular, the functions of the two Courts are so distinct that the European Court jurisdiction to give preliminary rulings appears inappropriate as a model for the International Court. On the other hand, the European Court's experience suggests that it is open to the International Court to restrict the prolixity of oral proceedings without the change in the Statute suggested by the United States. The European Court's reticence to use chambers in cases in which Member States are the parties to the litigation appears unjustified, when viewed in the light of the practice of the International Court. An expansion in the use of chambers in the European Court appears warranted on this basis. Finally, the International Court's experience suggests that it would be both manageable and useful to reverse the present rule governing disclosure of written observations, so that these would be available for inspection unless the President should rule to the contrary, whether on the application of a party or otherwise.

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