Interview with Peter Tomka, Judge at the International Court of Justice in The Hague: The Court is Here to Prevent Conflicts

Jan Lhotský, Beáta Bolyová

The International Court of Justice is the principal judicial organ of the United Nations. Judge Tomka, born in Banská Bystrica, has been a Member of the Court since 2003; Vice-President of the Court from 2009 to 2012; and the President of the Court from 2012 to 2015.

In contentious cases, the International Court of Justice (ICJ) settles legal disputes that are submitted to it by States. The Court can only address a dispute when the States in question have recognised its jurisdiction. No State can therefore be a party to proceedings unless it has consented thereto.[1]

The seat of the Court is the Peace Palace, a beautiful historical building opened in 1913 for the Permanent Court of Arbitration. In 1922, it also became the seat of the Permanent Court of International Justice and, after the Second World War, the seat of the ICJ. Before we started the interview with Judge Tomka in his office, he kindly offered to show us some of the interior of the Peace Palace in which the proceedings of the ICJ take place. After the surprising excursion with very interesting explanations by Judge Tomka, we commenced with the interview.

 

Being a Judge at the International Court of Justice

To start with, we would like to get a flavour of the topics of your every-day work. This week, the parties presented closing statements with regards to a dispute between Bolivia and Chile. Could you briefly explain what the dispute is about?

It is a dispute brought before the Court in 2013. In its application, Bolivia submits that Chile has an international legal obligation to negotiate in good faith to grant sovereign access for Bolivia to the Pacific Ocean. In the 19th century, Bolivia had a coast of around 400 kilometers on the Pacific Ocean, but after the war in 1879-1884, that territory became Chilean. In 1904 the parties signed a Peace Treaty, which confirmed Chile’s sovereignty, but at the same time it granted Bolivia the right of transit through the Chilean territory.

Bolivia argues that Chile has an obligation, based on various acts, either agreements or unilateral statements, to negotiate with Bolivia.  The negotiations, according to Bolivia, are required in order to resolve its land-locked situation through granting it sovereign access – a corridor through the Chilean territory to access the coast. The Court is to decide whether Chile has an obligation to negotiate on sovereign access, and if so, whether Chile complied with that obligation.

You are serving your second term at the ICJ at the moment. What was it like to go through the election process as a Slovak candidate?

Elections to international courts and important UN organs have become very competitive. When I was a candidate for the first time in 2002 there was a competition with a number of candidates. The seats in the ICJ are not formally divided into regional groups, which is different compared to, for example, the International Law Commission or the Security Council.

Since 1946, when the first judges were elected, nationals of the Security Council members were always elected. However, recently a judge from the United Kingdom seeking re-election did not receive a required number of votes in the General Assembly, as it is a requirement that the judges need to reach an absolute majority in both the Security Council and the General Assembly. He decided to withdraw his candidature in order to not prolong the election process, as there was a deadlock between these two bodies.

With regard to the elections, is it an advantage or disadvantage to be from a smaller country?

I would say that it is more difficult to get elected, as the nominees from smaller countries face a fierce competition. However, it might be easier to get a nomination. In the case of larger countries, there is a higher number of experienced candidates, but once the nomination is made, it might be easier to get elected.

Many highly regarded international lawyers have served at the Court, is there any international lawyer in particular whom you admire?

I would probably not use the word admire, but I certainly recognise a number of great international judges who contributed not only to the Court but for instance to the codification of international law. One of the major instruments of international law is the Vienna Convention on the Law of Treaties. British judge Sir Humphrey Waldock was a judge and President of the Court, but prior to his election to the Court he had served as Special Rapporteur for the law of treaties in the International Law Commission.

Manfred Lachs, a Polish judge, was the Court’s President from 1973-1976 and a judge for 26 years, but earlier he was also a member of the International Law Commission. He chaired the 6th (Legal) Committee of the UN General Assembly three times. Roberto Ago, an Italian judge, was a Special Rapporteur for state responsibility and conceived the approach how to codify it before coming to the Court.


Serving as the President of the Court

You also served as the President of the ICJ, how do you remember this period? Did the position include predominantly judicial work, or mainly representation of the Court and managerial functions?

The main function of the President is a judicial one. It is to preside over hearings and over deliberations of the Court. He is an ex officio Chairman of the Drafting Committees which prepare draft judgements after deliberations. Once the Court determines in full composition the outcome of the case, it elects three members to a Drafting Committee. The President, provided that he is a part of the majority, personally presides over it.

Of course, the President’s function includes additional roles such as supervision of the Registrar, who is the head of the administration of the Court. The President also performs some representative and diplomatic functions in The Hague. He also represents the Court in relation to the Government of The Netherlands as the host country, and before UN bodies. Every year he travels to New York to present a report on the activities of the Court to the General Assembly. The President’s work is however mostly based in The Hague. Moreover, the Court’s budget for travels is rather limited.

Is this also why there are so few on-site visits?

This is not the main reason, but it has not been the practice of the Court as it did not find it necessary to conduct on-site inspections, with one exception. On the initiative of Slovakia, the Court travelled to Slovakia and Hungary to examine the sites relating to the construction of the dams in Gabčíkovo and in Nagymaros. However, the expenses were covered by both parties, which agreed to it.

In a case which was decided in 2017 involving Costa Rica and Nicaragua, instead of proceeding to an on-site inspection, the Court decided to appoint two independent experts, as the pleadings of the parties did not clarify the geographical situation at the Caribbean coast in the area where the River San Juan reaches the Caribbean Sea. This was important for determining the starting point of the maritime boundary. The ICJ needed to ask for an ad hoc appropriation of funds from the UN to cover the expenses. I hope that in the future the court will become more active in gathering evidence.

When you were serving as the President of the ICJ, I believe you were encouraging the practice of having only one round of written submissions. Was this simply in order to achieve a more streamlined procedure?

In principle, there is only one round according to the Rules of the Court and a second round is permitted only when there is a need to further clarify certain matters. Experience shows that the second round was quite repetitive.  On the other hand, States should also be given opportunity to fully present their case, so if they agree to have a second round, it is difficult not to allow it.

My main ambition during my presidency was to conclude as many cases as possible, as we had some undecided cases for over a decade.   During those three years we in fact completed 10 cases on the merits.

Apart from being an ICJ judge, you also served as an arbitrator. What did your role look like?

Occasionally, when my commitment to the ICJ allows me to assume an additional role and when asked, I serve as an arbitrator. I have served in two arbitrations between states. First,  in 2003, the Netherlands appointed me as an arbitrator in a case regarding a railway connecting the port of Antwerp with the Ruhr area in Germany. Later I served as arbitrator in a case between India and Pakistan concerning the Indus Waters Treaty.

For the International Centre for Settlement of Investment Disputes (ICSID), I was a member of several Annulment Committees.  These committees consider whether the arbitral tribunals exceeded their powers, seriously breached the fundamental rules of procedure or failed to state reasons for their decisions, as these are grounds for annulment, which may be sought by parties. The awards under the Washington Convention cannot be challenged in national jurisdictions, and therefore, there is an autonomous annulment procedure. All these issues involved public international law disputes, not matters of exclusively domestic law or commercial matters.

 

Role of the ICJ in developing international law

What case, in which you participated, would you consider a landmark case or cases for international law?

The Gabčíkovo-Nagymaros case, in which I acted as Agent, is important from the jurisprudential point of view as the Court made a number of pronouncements on the law of treaties, state responsibility, law of succession to treaties, environmental law and sustainable development.

I participated in a few cases, which are often cited, for example the judgement of 2009 in Maritime Delimitation in the Black Sea in which the Court described the methodology of maritime delimitation. In another often-quoted judgement, in the Pulp Mills case where I was acting President, we made some pronouncements on environmental impact assessment in international law.

Each judgement contributes to the development of jurisprudence. Some cases are of greater interest to scholars and legal advisors, but even those that are not as interesting for the majority of states, are nevertheless closely followed by the countries involved. For instance, the proceedings between Bolivia and Chile were directly broadcasted by their national television channels and the countries shared the costs of interpretation into Spanish for their audience.

We had a case between Peru and Chile where we rendered the judgement in 2014, and the reading of the judgement was broadcasted in both countries. In Lima, there were large screens on the main squares so the people could watch where the maritime boundary was delimited by the ICJ.

The ICJ also decided an important case regarding genocide, whether a State was responsible for a breach of the Genocide Convention, not the crime itself. In that case, the Court took into account also judgements of the International Criminal Tribunal for the former Yugoslavia. The ICJ does not act in isolation, which I believe the Court also demonstrated in the last 15 to 20 years. It is now much more open to take into account jurisprudence of other international courts and tribunals.

What is your opinion on the claims of fragmentation of international law? For example, with regards to responsibility of States for non-state actors, the ICJ used the ‘effective control’ standard in the Nicaragua case, but then the ICTY opted for the ‘overall control’ test. Do you see the fragmentation of international law as a problem?

The Court is open to judicial dialogue in an effort to contribute to consistency in international law.  Fragmentation is a concern more of academics rather than a real life issue. Too much has been made of it. For example, we have taken into consideration interpretations provided by the European Court of Human Rights, arbitral tribunals and in matters of maritime delimitations by the International Tribunal for the Law of the Sea.

In Tadić, the role of the Appeals Chamber was to decide on the issue of applicability of international humanitarian law in the conflict, while in Nicaragua and the 2007 Genocide case, effective control was used for purposes of attributing the conduct to a state.

What is your opinion about the practice of using dissents? In some cases they are longer than the decisions themselves.

It is a statutory right granted to the judge who does not agree with the outcome of the case. A judge can produce a dissenting opinion, or a judge who agrees but sees a different way of coming to the same conclusion can explain it in a separate opinion.

The length depends on the personality of the judge. The opinions should not be a platform for producing more academic pieces or a platform for announcing the law, as it should be in the future. The judges have the opportunity to publish monographs and academic articles, but an opinion should be succinct, explaining the position of a judge in the case.

 

The Court and its proceedings

The caseload of the Court has significantly increased compared to the past decades. Does the Court still have the capacity to deal with the cases? Does it have any effect on the length of the proceedings?

At a certain stage it had an effect of creating delays, as in the past the Court usually worked on one case at a time. At the moment, we have 17 cases in the docket. Since the last decade, we have shortened the period for deciding on preliminary objections, and the Court decided to work in parallel at least on two, occasionally three, cases. In this way, we have been able to finish the cases in three to five years with the cooperation and understanding of the parties involved.

Parties usually ask for a long time to prepare their pleadings and memorials. There were years when the Court did not render any judgement, for instance in 1967 and 1968. No judgement was rendered as there was no case ready for oral arguments. Furthermore, between 1976 and 1979, there was only one judgement rendered in the Aegean Sea Continental Shelf case. The outcome was that the Court had no jurisdiction.

The situation has changed significantly, and the Court renders four to five judgements per year on average. I have to stress, that while we are the principal judicial organ of the UN, we are a Court of first and last instance. Our judgements are final and there is no appeal. We have to first establish the factual situation, then go through the evidence and the legal arguments, and finally apply the law to the facts as established by the Court. This explains why it takes some time to arrive at judgements.

The length of the proceedings is determined by the way in which the Court functions, as we do not have the system of a judge rapporteur. Each judge has to form his or her own view and submit his or her written analysis on the arguments of the parties, which usually takes three weeks. The judge then receives the notes of the other judges, the Court meets for deliberation and determines the outcome of the case. The elected Drafting Committee drafts judgement which then goes through two readings. Usually, this process takes five to six months after the closure of the oral arguments.

How many employees does the Court have, and how many of these are lawyers?

There are approximately 115 staff members working at the Court, the majority of them hold administrative functions or are translators. There are only eight lawyers employed in the Court’s Department of Legal Matters, plus each of the 15 judges has one law clerk.

Within the last years there has been a significant increase in the number of international courts and tribunals. Did this influence the ICJ’s workload? For instance, the Annex VII tribunals under the United Nations Convention on the Law of the Sea (UNCLOS) increased in number. Does this alter the number of law of the sea cases before this Court?

Not very much. For us to deal with a maritime delimitation dispute, we need to have jurisdiction. When States become parties to the UNCLOS, they can make a choice of the applicable procedure. UNCLOS adopted a system, that if the parties fail to make a choice of the applicable procedure or do not choose the same procedure, they resort to jurisdiction of an arbitral tribunal instead of the ICJ or the International Tribunal for the Law of the Sea (ITLOS), as these have no jurisdiction in such a case.

Maritime disputes are frequently linked with issues concerning sovereignty either over some maritime features or territorial boundaries. In these situations, ITLOS would have no jurisdiction, as it has to apply UNCLOS for reaching its decisions. However, that Convention has no rules on sovereignty over territory. This explains why such cases often come before this Court.

 

The Czech Republic has yet to deliver a declaration recognizing ICJ’s jurisdiction as compulsory

Has the Court taken any actions to encourage or preserve its case numbers?

We are not in competition and it is for the States to decide where to have their disputes resolved. What is important is that there is a basis for jurisdiction. At the moment we only have 73 declarations by States recognising our jurisdiction as compulsory. Some of these declarations exclude particular categories of disputes. In this area, there is still some room for improvement, and I personally try to encourage States to accept the jurisdiction of the Court, as it guarantees independent and impartial consideration.

I am happy that within the 73 declarations, a good number of countries in Central and Eastern Europe have reconsidered their policy after the political changes which occurred in 1989-1990. In the past none of the socialist countries made a declaration recognising our jurisdiction as compulsory.

Out of 28 Members of the European Union (EU), only five, including the Czech Republic, do not have declarations in force. I hope that one day Czech lawyers will be able to convince the politicians to accept the Court’s jurisdiction, as in fact Czechoslovakia approved such a declaration domestically already in 1929, but it was never deposited with the League of Nations Secretariat.

Are there any important challenges that the ICJ will face in the near future?

The Court needs to continue to strengthen the perception of its independence, impartiality and efficiency. I think that it would be too optimistic to expect that the Court, although labelled as the principal judicial organ of the UN, will have the same status within the UN, as the Court of Justice of the European Union has within the EU, as all the EU members are subject to its jurisdiction. I hope that the Court will be more broadly recognised by the UN members and that it can provide useful services in resolving disputes, as unsettled disputes can potentially transform into conflicts with all the negative consequences.

Should the case number increase even more, the Court would need to further adapt its procedure and working methods to ensure its efficiency. I am not concerned that the period without a single case in the Court’s docket will return.

 

Remarks

[1] See the explanation of the contentious jurisdiction on the ICJ webpage: http://www.icj-cij.org/en/contentious-jurisdiction

[2] The judgement in the given case was issued on 1 October 2018 in favour of Chile. More information is available here: https://www.icj-cij.org/en/case/153. The interview took place in the first half of 2018.

Photograph

Peter Tomka, autor: Jan Lhotský