Remarks by Peter Tomka

By Tomka, Peter | Proceedings of the Annual Meeting-American Society of International Law, Annual 2012 | Go to article overview

Remarks by Peter Tomka


Tomka, Peter, Proceedings of the Annual Meeting-American Society of International Law


Good afternoon. Thank you very much for the invitation and the introduction. Well, I have to speak about the International Court of Justice, but I think this is the institution which is so well-known to this public that it does not need reintroduction. The International Court of Justice, which has been in existence since 1946, was formally established in 1945 as principal judicial organ of the United Nations, and has been exercising its judicial function since 1946.

But this institution is successor to another great judicial body, the Permanent Court of International Justice, which started its work in 1922. So, in fact, this year we are celebrating 90 years of international judiciary.

When the Permanent Court of International Justice formally ended on the last day of January 1946, the International Court inherited its jurisprudence and further developed it. Through its adjudicative role and also through another function, which is to provide advisory opinions, the Court has greatly contributed to the development of international law, in clarifying particular rules of customary international law. We have to keep in mind when the first Permanent Court started, but also the situation has not changed dramatically throughout the late 1940s and 1950s, as international law remained mostly uncodified. The Court clarified rules of international law in such important branches of public international law, as the law of treaties and the law of state responsibility, just to mention the famous Chorzow Factory judgment of the Permanent Court, which is constantly referred to by counsel before the International Court of Justice.

The United Nations embarked upon the very successful task of codifying international law, in particular through the work of the International Law Commission. Secretary-General Kofi Annan, in his report in 1997, emphasized that it was in the normative area where the United Nations achieved its greatest success. So the work of the Court provided a solid basis for special rapporteurs and the International Law Commission to codify customary international law. It provided support for the views of the Commission. This approach was later on transformed into a dialogue between the International Law Commission and the International Court of Justice, as the Court later in its decisions referred to instruments which have been elaborated by the International Law Commission, and either adopted by states in the form of conventions or in the form of draft articles, such as the famous articles on state responsibility.

So this is the major import of the work of the Court in terms of public international law, but I would say this is a byproduct of its adjudicative role, because the primary function of the Court is to decide disputes between sovereign states.

The Court, which I have the honor to represent here, in its 66 years has gone through different periods. The beginning was quite promising, because there were a number of cases brought before the Court. The situation changed in the 1960s and the 1970s, and even the early 1980s. There were years when one of my distant predecessors and a great Uruguayan lawyer, Jimenez de Arechaga, during three years of his presidency signed just one simple judgment. It was a judgment in 1978 on jurisdiction; in fact, declining jurisdiction in Aegean Sea Continental Shelf

Luckily, the situation has changed. Although there was some criticism in relation to the Nicaragua judgment and some predictions that it would have a very negative impact on the willingness of states to bring disputes before the International Court of Justice, this has not happened, and since the late 1980s and early 1990s, there has been a growing number of cases brought before the Court. At any particular moment, the Court had roughly 25 cases in the docket during 2003-2005.

Of course, this required the Court to adjust to this demand, to accelerate its procedures, to amend its rules, and if in the past the Court worked on one case at a time, the situation has changed.

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