What! No criticism? No. Genius is an entity like nature, and like nature, it demands to be accepted purely and simply. You take a mountain or leave it. There are people who criticize the Himalaya stone by stone! Everything in genius has its reason for being. It is because it is. Its name is the reverse of its light. Its fire is a consequence of its flame. Its precipice is the condition of its height.
Victor Hugo
Prof. Dr. Carmelo Borrego
Introductory Issues
As is known, the ordinary procedure before the International Court of Justice (ICJ), under its Rules of Court, is organized in two phases: a written phase and an oral phase.
Indeed, the oral phase is the other fundamental side of the process when it comes to defining the dispute through a final judgment. However, it is important to note that oral hearings may also take place during preliminary incidents, whether concerning preliminary objections in the written phase or during the proceedings for provisional measures, which may occur in both the written phase and the oral phase on the merits (The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings Art. 74). This means that incidental matters have a specific procedural space that intertwines with the ordinary or common procedure.
Now, the issue is that the written phase, given its characteristics, is not exempt from incidents that can lead to extended time limits (reasonable time, considering the contentiousness in that first phase). Consequently, a case may take two or more years to conclude this first stage. Many have understood that the written phase entails the precise formulation of arguments that, together with the submissions, will be relied upon at the oral hearing. For this purpose, it is important to observe how the Court interprets the assumption of jurisdiction over the case, under the established procedural avenues, and the manner of proceeding to enable the parties to participate in the process.
In this sense, Article 31 of the ICJ Rules of Court provides for a meeting of the parties with the Presidency of the Court. From that meeting onwards, the procedure will be organized, including how the written pleadings and essential documents of the claim or defense are to be submitted, once the application or request has been filed, or if the proceeding has been initiated by prior agreement between the parties, where an order of written pleadings may be proposed, as was shown in the case of Guatemala/Belize (2018) (bilateral litigation agreement on the territorial dispute between both States, which, under the amendment of 15 May 2015, allowed those States to hold a popular consultation; both consultations resulted in over 90 percent acceptance, and in June 2019 the Court was notified separately by both parties to submit the case to its jurisdiction).
Furthermore, it may happen that after the submission of the documents relating to the Memorial and the Counter-Memorial, a period for Reply and Rejoinder is opened, which demonstrates an extension of the time fixed by the Court for the submission of these two complementary procedural acts of the written phase. Normally, the Court sets a reasonable time limit after meeting with the parties or consulting them again to pre-establish the timing of these new acts (procedural time limits). It may even be possible for one of the parties to submit additional documents, provided that the other party consents and the judicial instance authorizes it ex post.
Nevertheless, the Rules better define these procedural acts, as well as their contents, and in particular Article 49 of the ICJ Rules specifies: (...) A Memorial shall contain a statement of the relevant facts, a statement of law, and the submissions (...). A Counter-Memorial shall contain: an admission or denial of the facts stated in the Memorial; any additional facts, if necessary; observations concerning the statement of law in the Memorial; a statement of law in response thereto; and the submissions. Additionally, as an exceptional part, as mentioned, two new procedural acts are provided, identified in the Rules themselves as: (...) the Reply and the Rejoinder, provided they are authorized by the Court. These acts consist of bringing to light the issues that are contradictory and prevent the parties from reconciling, i.e., issues that harden the divisions and the consolidation of contradictory positions. Therefore, repetition of the allegations contained in previously submitted written pleadings is not permitted, and a fortiori, those issues that both parties recognize or agree upon do not have to be raised again, much less proved (it would be absurd to go round in circles on facts and circumstances that are not disputed; the same applies to notorious facts and maxims of experience that do not require proof).
These rules already indicate the methodology that the parties must follow in their documents within the framework of the written phase. It appears that this methodological orientation of the documents merely warns about the organization of the submission; there is no specific sanction for non-compliance. However, the Court, through the Registry, may issue the necessary warnings for the correction of defects in previously filed documents or unresolved insufficiencies. In this sense, evidently, a party is not obliged to "help" the Court to remedy the submitted pleadings. Silence may be consistent with a specific position, for example, that the Court lacks jurisdiction and, therefore, any requirement is legally non-existent for the party that has not consented to appear before the Court, even if it has signed the procedural acts of the written phase. But in all honesty, this has its nuances.
A different problem arises when a party submits arguments beyond the mere issue of lack of jurisdiction. In such a case, if it concerns a contradiction regarding the main object of the litigation as set out in the Application or the Memorial, it is likely that the matter will not be so easy to resolve for the non-appearing party or for the party that refrains from clarifying and submitting its formal requests to be considered in the oral phase of the proceeding.
In such a scenario, the problem is that the evasive posture is not advantageous, since, if the party does not clarify its position before the Court, it allows the Applicant and the Court itself to freely interpret its claims. Those interpretations may be used to its detriment. They might well invoke Article 53 of the Statute to have the case decided in favor of the appearing party, in the absence of a definition of the submissions, and worse, when the State does not appear in the proceedings ("Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim."). Evidently, the ICJ has not always used this provision accurately, particularly when there has been procedural confrontation (preliminary objections and provisional measures). However, this does not prevent the ICJ from remaining within its broad discretion to decide, and in many matters, in practice, non-appearance has been systematically detrimental to the absent State for failing to defend its case. It should be noted that, in general, judicial doctrine supported by decades of jurisprudence has left a mark to the detriment of non-appearance. It is not a matter of diplomatic tensions but of mere execution of procedural acts (it can be presumed that this judicial instance, the only one in the UN system, acts in a strictly legal manner, adhering to its own rules). In this sense, see the case USA v. Iran (1980), where the ICJ established that non-appearance did not prevent it from examining the case, and for that purpose it took into account the provisions of Article 53(2) of the Statute and rendered a judgment on the merits on 24 May 1980, establishing Iran's international responsibility for the violation of treaties regulating diplomatic relations. Similarly, in the case of USA v. Nicaragua (1986) or the Fisheries Jurisdiction case (1974), the ICJ clarified that, although the non-appearance of the Respondent was evident, and furthermore, the submitted pleadings did not constitute a defense on the merits, it applied Article 53(2) of the Statute. In any case, as Zimmermann, Tomuschat and Oellers point out, Article 53 of the ICJ Statute seeks to prevent obstruction of the procedure; consequently, the ICJ must ascertain the type of abstention by the absent party. This leads to the deduction that, if the Court interprets that it has already resolved the issue of jurisdiction over the case in the written phase, it would scarcely be logical to think that it would refrain from continuing to hear the merits of the dispute, unless another unresolved issue is raised. For example, when the Court failed to resolve or rule on a special point raised by the Respondent in the preliminary objections that touched or touch upon the merits or the quid plerumque accidit of the merits. The only thing is that the Respondent should have insisted on the unresolved issue by means of Counter-Memorial or Reply pleadings.
On the other hand, if the Respondent appears at the oral hearing, it will have the option to remedy the omission verbally. Silence in not responding to the Registry's requirements before the start of the oral phase does not prevent the Respondent from later making the corrections requested by the Registry to remedy the documents and formal requests or submissions. Thus, Article 60 of the Rules: (...) At the close of the final statement made by a party at the hearing, its agent, without recapitulating the arguments, shall read the final submissions of that party. A copy of the written text of these, signed by the agent, shall be communicated to the Court and transmitted to the other party (...).
Towards the Fixing of the Oral Hearing on the Merits of the Case
Thus, once the written phase is completed, pursuant to Article 54(1) of the ICJ Rules, the fixing of the oral hearing or hearings follows, which is ultimately the identity of the oral phase of the procedure. In fact, one can observe in the Rules the division of the phases, Section III being entitled "Oral Proceedings", which systematically marks the procedural acts to be followed. One of them is the definitive closure of the written phase. Because it is for the oral phase, according to Rosenne and Thirlway, to evaluate the solidity of the parties' arguments, an aspect that is not apparent in the written pleadings due to the length and density of what is raised. Thus, the oral phase complements the defense of the case, especially when there is evidence to present and challenge. In fact, from my own experience in the case Guyana v. Venezuela, one thing was what was submitted in writing in the previous phase on preliminary issues, and quite another was the oral hearing, in which what had been raised in the document containing the preliminary objections in written scotus was substantially modified, which gave rise to and obliged the other party to request an extension of time to prepare an unforeseen oral response. In the end, the ICJ recognized in April 2023 that the preliminary objections proposed by Venezuela and their proper presentation in the oral phase were unanimously recognized by the judges.
Moreover, special care must be taken by the party appearing in the proceedings, since, without prejudice to the provisions of the rules relating to the production of documents (Practice Direction), each party shall inform the Registrar, in sufficient time before the opening of the oral proceedings, of any evidence which it intends to present or which it intends to request the Court to obtain. This communication shall contain a list of the surnames and first names, nationalities, descriptions and places of residence of the witnesses and experts whom the party intends to call, with general indications of the point or points to which their testimony will be directed (it is not the same to speak at the oral hearing as to evidence and prove what has been asserted). A copy of the communication shall also be provided for transmission to the other party. Under the Statute, it is for the Court to determine whether the parties will present their oral arguments before or after the presentation of evidence, always reserving the distinction of such means; above all, to specify the order in which the agents, counsel or advocates are to be called to speak, which shall be determined by the Court, unless there is agreement between the parties in this respect.
Likewise, the Court is empowered to decide on the admissibility, relevance and forms of certain evidence that a party intends to use to support its statements, as well as technical or scientific evidence, together with expert declarations. Moreover, pursuant to Article 49 of the Statute, the Court may request the parties to produce additional documents or explanations.
These powers clearly identify that, although most evidentiary documents are introduced in the written proceedings, this does not prevent the Court from ordering or admitting new evidence in the oral phase, especially on those disputed points that have generated strong contradiction and have not been resolved in the Counter-Memorial or in the Reply and Rejoinder. In this sense, and already facing the oral hearing, the Court may put questions to the agents, counsel or advocates, or request clarifications from them, and this power is available to each of the judges, who may exercise it provided they manifest their intention to the President (the questions do not necessarily have to be answered at the same time they are formulated; a time limit will always be given to state or argue). Thus, the Statute, in its Articles 48 to 52, defines the authority of the judicial governance of the procedure concerning the admission of evidence, specific requests, and the capacity to evaluate evidence in the judgment, while the Rules, in Articles 54 to 60, regulate the taking of evidence at the hearing. In short, the oral hearing serves to clarify, supplement and verify the arguments and submissions.
On the other hand, an issue of no small importance is the fixing of the date for the trial or oral hearing (oral proceeding). Apparently, if the parties agree on the conduct of the procedure, no major problems arise, except that the Court has several cases to deal with at the same time, and the scheduling of one oral hearing might affect another or others. In the case of overlapping hearings, the usual practice is to re-fix the hearings, and this evidently reflects an extension of the process in which the parties have no option to counter-claim. In this sense, this would be one of the aspects or problems to take into account that will undoubtedly affect the procedural time limit for the completion of the procedure and the delivery of the final judgment.
The second contemplative episode of difficulty is the disagreement between the parties on the fixing of the oral hearing and its execution. That is, before the Court has terminated the written phase and at the time of notifying the holding of the oral hearing, one of the parties may address the Court in order to request the postponement of the oral hearings, since it is possible that there is an option to submit documents justifying some aspect not presented at the time of the Memorial, Counter-Memorial, Reply or Rejoinder. In such cases, the other party must be notified of both issues: the postponement of the hearing and the question regarding the documents, their necessity and relevance. Or also based on Article 81 of the Rules: In exceptional circumstances, an application submitted at a later stage may however be admitted. This is when a third State requests to intervene in the proceedings once the closure of the written phase has been declared, pursuant to Article 62 of the Statute of the Court.
Incidents Concerning the Adjournment of the Oral Hearing or Hearings
In any case, and in circumstances different from those set out above, but at the time of fixing the oral hearing, for a unilateral request for postponement to succeed, the requesting party must demonstrate the existence of exceptional circumstances constituting a case of force majeure or other act of God (according to Planiol and Ruggiero, these are concepts defined negatively, moreover objectively, where the subjectivity of the person invoking them plays no part), that is, unforeseeable or inevitable events that prevent appearance or adequate preparation of the defense or the claim. The event of the COVID-19 pandemic may be cited, where the ICJ suspended all scheduled oral hearings. Clearly, this specific event occurred globally (case of force majeure). In that case, the Court amended the Rules to allow for remote or virtual hearings (Art. 59(2): The Court may decide, for reasons of health, security or other reasons of great importance, to hold a hearing wholly or partially by video conference. The parties shall be consulted on the organization of such a hearing.). This means that the consultation only relates to the method of execution, but it does not prevent the hearing from being held remotely. In the case Guyana v. Venezuela in July 2020, the oral hearing was held remotely, but one of the parties was not consulted, and the amended Rules had not been previously fixed, which constituted a procedural irregularity that was not remedied.
Certainly, when the other party contests the request, any of the aforementioned circumstances lead the Court to rule on the requests made. This type of procedural decision is not subject to appeal and is normally a mere procedural order without further effect. Thus, it is up to the parties to organize themselves to comply with the order.
Thus, the point is that, according to Article 54 of the Rules, the transition from written to oral is evident, and if a disagreement arises between the parties concerning the start of the oral phase, it must be raised in advance. The fact that the Court may have called upon the parties to agree on the fixing of the hearings, pursuant to Article 31, is not indicative of any normative obligation. In fact, it is a poor procedural argument to use the content of Article 31 to ground an alleged legal error by the Court in summoning the parties to the oral hearing, especially when it is known or should be known that the parties have appeared in the previous phase and the fixing of the oral hearing is an exclusive prerogative of the ICJ.
Furthermore, another issue is that ex novo, one of the parties submits a request to the Court to suspend the scheduled oral hearings. This situation has no support when acting unilaterally. Quite a different matter, as noted, is when the parties act jointly. Thus, the Court has indeed suspended such oral hearings when both parties agree. Cite the case Timor-Leste v. Australia (2014), which is a perfect example. The parties jointly requested an adjournment to seek an amicable solution, and the Court, "pursuant to Article 54 of the Rules", granted the request. What does not seem sensible is to use a request for suspension of the oral hearing when one of the parties gives no signs of appearing.
An even worse ground for requesting a unilateral suspension of the hearing is when a pattern of procedural delay is detected. Several cases have been seen within the Court that could be considered under this pattern, for example, Certain Iranian Assets, Iran v. USA, where the extremely extensive use of preliminary issues became a dilatory mechanism. The same occurred in the case Bosnia and Herzegovina v. Serbia and Montenegro, the genocide case, where the intensive use of various preliminary questions caused much delay, especially almost 14 years before reaching a final judgment. To address procedural delays, ways have been sought to limit the use of preliminary questions and to declare them unfounded when they lack procedural and viable substantive meaning. In fact, in the last reform of the Rules, which entered into force in 2019, preliminary issues are only addressed in the written phase, without being able to be considered afterwards. On the other hand, the fact of non-appearance does not prevent oral hearings from being held. Thus, procedural delay has a response of absolute containment. If a party, in addition to the intensive use of preliminary issues, also seeks to propose postponements without relying on the variables already set out above, it will be reasonable for the Court not to consider any kind of suspension that would imply procedural delay.
Nor is it a happy argument or bad practice to argue for the suspension of already fixed oral hearings based on arguments relating to the complexity of the case or the need to reorganize legal teams (this is a poor argument, given that legal teams must schedule and anticipate the time limits for hearings). According to the restrictive practice of the Court, this does not constitute sufficient cause to justify a delay in the execution of the oral phase. Unfounded requests only facilitate the confirmation and affirmation of what the Court has decided regarding the holding of the hearing fixed in due time and duly notified.
Another non-conducive and inappropriate tactic is to request the suspension of the oral hearing with the intention of testing the solidity of the other party's evidence, or to seek to create confusion under the pretext of negotiating a political aspect, which leads to a discredit of the procedural conduct of the requester.
On the other hand, diligence in procedure is essential to avoid disagreements with the Court's position. If an oral hearing was fixed on a specific date, without a timely response, this failure to raise objections at the appropriate time leads to rejection. Thus, the delay in reacting raises serious doubts about the urgency or unavoidability of the causes motivating the request. In international procedural law, diligence in the exercise of rights and compliance with procedural duties is an implicit principle; whoever fails to act in a timely manner may incur a kind of procedural lapse or, at the very least, weakens the credibility of their own request. If the circumstances preventing the requesting party from appearing were real and serious, it would have been reasonable to manifest them immediately after the date was known, not belatedly when notifications had already been circulated and consolidated and sufficient time had passed to react ex ante rather than ex post.
Requests for suspension based on a party's own errors are subject to the consequence of nemo turpitudinem suam allegans audiendus est, i.e., no one may benefit procedurally from their own wrongful or clumsy conduct. In international litigation, this principle applies and appears when a party attempts to take advantage of a situation created by its own behaviour to gain an advantage. For example, in the case Nicaragua v. USA (1986), the latter had accepted the compulsory jurisdiction of the ICJ under Article 36(2) of the Statute. When Nicaragua filed the Application, the USA attempted to amend its declaration of acceptance of jurisdiction made previously, and subsequently withdrew from the proceedings. The ICJ assessed that this conduct did not affect its jurisdiction over the case due to the mere subsequent modifications to its compulsory jurisdiction clause. Consequently, the strategic conduct undertaken by the USA did not offer it any advantage and, on the contrary, harmed it.
Thus, procedural logic emerges based on three key ideas: the good faith of the parties, the stability of the judicial procedure, and the absolute prohibition of abusing procedural rights, duties and burdens. Every court is obliged to disregard allegations that generate procedural uncertainty and to seek procedural stability at all times, because what is relevant is to resolve the case justly, thereby avoiding chaos and international belligerence.
Summary
The text analyzes the role and functioning of the fixing and ruling on oral hearings in ordinary proceedings before the ICJ, in its two phases. Although the written phase is often lengthy, it can be prolonged by contentiousness over a long period. The oral phase is presented as a decisive moment to clarify, supplement and contrast arguments and evidence before the final judgment is delivered.
The author explains that oral hearings are not exclusive to the oral phase of the proceeding, which does not prevent some incidents such as provisional measures and, in the written phase, preliminary objections. In this context, the Court retains broad procedural management powers, both to organize the schedule and to admit evidence and put special or clarifying questions to the parties, especially with respect to the filed pleadings and the submissions or lack thereof.
The content and purpose of the main procedural acts verified in the documents of the first written phase (Memorial, Counter-Memorial, Reply and Rejoinder) are detailed, emphasizing that they must focus on the points of litigation and those that are disputed. Unnecessary repetition of arguments or undisputed facts is contrary to practice and procedural logic. Likewise, it is warned that omissions or ambiguities in this phase can be critical, as they tend to prejudice the party that does not define its position, especially if it incurs in non-appearance; jurisprudential practice has considered this posture unfavourable.
The oral phase of the procedure is crucial, acquiring special relevance for evaluating the solidity of the arguments, introducing or challenging evidence, and remedying previous omissions, even verbally. Unilateral requests for suspension only succeed in exceptional cases of force majeure or act of God, and the Court's practice demonstrates its resistance to dilatory tactics or unfounded arguments.
The author emphasizes that procedural diligence, good faith, the stability of the procedure, and the prohibition of abuse of rights and procedural burdens are guiding principles of international litigation.
Oral hearings fulfill an essential function in guaranteeing a fair and effective decision (what is not in the trial is not in the world of contentiousness). In this sense, the ICJ should emphasize the adoption of a firm position against attempts to obstruct or delay the procedure, prioritizing procedural legal stability and the correct administration of justice.
Moreover, an important desideratum is not to allow politics with discriminatory content to become the guide of judicial decisions (what are called the basic elements of politics, which unfortunately get lost in generalities). The lack of correct procedural technique and authentic legal interpretation seems to be the commonplace that may have affected the legitimacy not only of the ICJ but also of the ILC as a specialized UN body in matters of International Law. Due to an excess of politics, the world today is *upside down and not according to the Law. * In this regard, I recommend reading my article on this same blog on legal philosophy in public international law, which embraces some aspects of political philosophy:https://www.blogger.com/blog/post/edit/995282603938378047/594944669581764969
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