Participation of Individuals in Advisory Proceedings before the International Court of Justice: Question of Equality Between the Parties

Abstract

In its Advisory Opinion of October 23, 1956, in the matter of Judgments of the Administrative Tribunal of the International Labour Organization upon Complaints made against the United Nations Educational, Scientific and Cultural Organization 1 the International Court of Justice considered the question of equality between the parties, UNESCO and the officials of this specialized agency. The question is not new. It had already arisen, albeit in a somewhat different form, before the Permanent Court of International Justice. That Court had faced the question in the case of the Danzig Legislative Decrees, 1935. The Court, “preoccupied with the establishment so far as possible of equality before the Court between the Senate of the Free City on the one hand and the petitioners ... on the other,” decided that it would receive written statements from the Government of the Free City as well as from the individuals representing three minority political parties, which submitted a petition to the Council of the League of Nations concerning certain legislative decrees of the Danzig Senate. However, “with regard to oral statements, the Court, in accordance with its normal practice in advisory cases, heard a statement by the representatives of the Free City, but decided that the terms of the Statute and Rules precluded it from hearing the petitioners. In declaring the hearings closed, however, the President reserved the Court’s right not only to ask the representatives of the Free City for further information or explanations, but also to procure them by other means at its disposal.”2 In a dissenting opinion Judge Anzilotti, alluding to the above decision of the Court, declared: In this way, the two Parties to the dispute, to which the question before the Court relates, were placed on a footing of manifest inequality. The majority party, of which the Senate of the Free City is composed, was enabled not only to submit to the Court a written memorial, but also to have oral statements made on its behalf by an Agent and Counsel, whereas the three minority parties were only allowed to send explanatory notes, without taking any part in the oral procedure: neither orally nor in writing were they given an opportunity of answering the contentions of their opponents, so that the case was never argued before the Court. It may perhaps be contended that the resulting inequality between the majority party and the other parties in the proceedings before the Court is of no consequence, since the conclusion arrived at by the Court is favourable to the case of the minority parties: the latter would certainly have no reason for complaint, and it is hardly likely that the Senate of the Free City would reproach the Court for having placed it in a privileged position. It would be easy to reply that the hearing of both sides and the submission of the arguments in support of the respective contentions is designed to furnish the Court with all data for its decision and is therefore provided in the essential interests of justice and consequently of the Court. As the Agent for the Free City pointed out in his statement on October 30th, 1935, in the absence of an opponent, there can be no certainty that all doubtful points will clearly be brought out at the hearing. The arguments which the minority parties would have presented would perhaps have strengthened their case, but it is also conceivable that they might have revealed weak points to the Court. That, however, is not the point with which I am concerned. The essential point to my mind is that the Court, in order to be able to give this Opinion, was obliged either to set aside its Rules and create a procedure ad hoc, or to deviate from a rule so fundamental as that of the equality of parties; and the reason for this was that the case concerned a question of municipal law arising in connection with a domestic political dispute.3