1 Pulp Mills on the River Uruguay (Arg. v. Uru.) (Int’l Ct. Justice Apr. 20, 2010). All the materials of the Court cited in this report are available on its Web site, http://www.icj-cij.org.

2 Diallo (Guinea v. Dem. Rep. Congo) (Int’l Ct. Justice Nov. 30, 2010).

3 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion (Int’l Ct. Justice July 22, 2010).

4 Jurisdictional Immunities of the State (Ger. v. It.), Order (Int’l Ct. Justice July 20,2010). The Court also issued orders fixing the time limits in a number of other pending cases.

5 President Owada and Judges Shi and Buergenthal did not participate in the judgment. The Court included Judges ad hoc Santiago Torres Bernárdez (chosen by Uruguay) and Raúl Emilio Vinuesa (chosen by Argentina).

6 Statute of the River Uruguay, Uru.-Arg., Arts. 35, 36, 41(a), Feb. 26, 1975, 1295 UNTS 339.

7 Judges Skotnikov and Yusuf each appended declarations to the Court’s opinion; Judges Keith, Cancado Trindade, and Greenwood, and Judge ad hoc Tones Bernardez each appended separate opinions; Judges Al-Khasawneh and Simma appended a joint dissenting opinion; and Judge ad hoc Vinuesa appended a dissenting opinion.

8 Argentina argued that Articles 1 and 41 (a) of the 1975 Statute constituted “referral clauses” such that the Court could adjudicate whether other international obligations that were binding on the parties—in particular, various important multilateral international environmental agreements—were breached in addition to those obligations specific to the Statute. Interpreting the authoritative Spanish text of the Statute, the Court disagreed. See Pulp Mills on the River Uruguay (Arg. v. Uru.), para. 63 (Int’l Ct. Justice Apr. 20, 2010).

9 Id., para. 204. The Court did not specify the scope and content of the environmental impact assessment. Instead, it concluded that

Id., para. 205.

10 The Court’s decision appears to have helped resolve the diplomatic dispute between the two countries. In November, Argentina and Uruguay entered into an agreement to monitor pollution levels. See Argentina and Uruguay Settle Seven-Year Pulp Mill Row (Nov. 16, 2010), at http://www.bbc.co.uk/news/world-latin-america-11764947 Google Scholar. The decision may also have an effect on future pulp mill construction, including a mill now planned in Uruguay along the River Plate.

11 Payne, Cymie R., Case Report: Pulp Mills on the River Uruguay (Argentina v. Uruguay), 105 AJIL 94 (2011)Google Scholar. On the Court’s earlier rulings on requests by Argentina and Uruguay for provisional measures, see Mathias, D. Stephen, The 2006 Judicial Activity of the International Court of Justice , 101 AJIL 602, 608–12 (2007)Google Scholar, and The 2007 Judicial Activity of the International Court of Justice , 102 AJIL 588, 604-06 (2008)Google Scholar.

12 For a number of points made in this paragraph, I am indebted to Mclntyre, Owen, The Proceduralisation and Growing Maturity of International Water Law , 22 J. Envtl. L. 475 (2010)CrossRefGoogle Scholar.

13 The process endorsed, however, was entirely state to state. The Court found that there was “no legal obligation to consult the affected populations [that] arises for the Parties from the instruments invoked by Argentina.” Pulp Mills on the River Uruguay, para. 216.

14 Id, para. 101 (citing Corfu Channel (UK v. Alb.), 1949 ICJ REP. 4, 22 (Apr. 9) and Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226, 242 (July 8)).

15 Id., para. 75. The Court was quick to connect “such use. . . [to] sustainable development which takes account of the need to safeguard the continued conservation of the river environment and the rights of economic development of the riparian States.’ ” Id. (quoting id., Provisional Measures, 2006 ICJ REP. 113, para. 80 (July 13)); see also id., para. 175 (“The Court considers that the attainment of optimum and rational utilization requires a balance between the Parties’ rights and needs to use the river for economic and commercial activities on the one hand, and the obligation to protect it from any damage to the environment that may be caused by such activities, on the other.”).

16 On the importance of good faith, see id., para. 145.

17 Id, para. 77; see also id., para. 176 (“In addition to its role in. . . [the] context [of procedural obligations], the functions of CARU relate to almost all aspects of the implementation of the substantive provisions of the 1975 Statute.”).

18 Id., paras. 160, 164; see generally Foster, Caroline E., Science and the Precautionary Principle in International Courts and Tribunals: Expert Evidence, Burden of Proof and Finality (2011)CrossRefGoogle Scholar.

19 Pulp Mills on the River Uruguay, para. 168.

20 Id, para 167.

21 Id, Sep. Op. Keith, J., para. 7.

22 Id., para. 4.

23 Id., Judgment, para. 168.

24 Id.

25 Id., Joint Diss. Op. Al-Khasawneh & Simma, JJ., para. 5.

26 Id., para. 6. As the joint dissenting opinion points out, the Court has been criticized in this regard. See, e.g., Riddell, Anna & Plant, Brendan, Evidence Before the International Court of Justice (2009)Google Scholar; Rosenne, Shabtai, Fact-Finding Before the International Court of Justice , in Essays on International Law and Practice 235 (2007)Google Scholar.

27 Judge Yusuf, in his declaration, also argued that the Court should have appointed experts in accordance with Article 50.

28 Pulp Mills on die River Uruguay, Joint Diss. Op. Al-Khasawneh & Simma, JJ., para. 17.

29 Id, para. 3.

30 Interestingly, among the judges who wrote individual opinions, it seems that those from common law countries were the most comfortable with letting the parties control the presentation of expert evidence (Judges Greenwood and Keith), whereas those from civil law countries (or countries influenced by the civil law system) were more inclined to have the Court take an active role (Judges Al-Khasawneh, Cancado Trindade, Simma, and Yusuf). On the differing approaches of common law and civil law systems to the selection of experts, see, for example, Langbein, John H., The German Advantage in Civil Procedure , 52 U. Chi. L. Rev. 823, 835–41 (1985)Google Scholar.

31 Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections, 2007 ICJ REP. 603, para. 98 (May 24); Mathias, D. Stephen, The 2007Judicial Activity of the International Court of Justice , 102 AJIL 588, 599–601 (2008)Google Scholar.

32 There was some question as to when die claim regarding the events in 1988–89 was officially presented. Those events were referred to in Guinea’s 2003 written observations on the DRC’s preliminary objections, but the Court found that a new claim could not have been presented then because the proceedings on the merits were suspended. Diallo, para. 31.

33 Id., paras. 45–47,165. Forming the majority were President Owada, Vice-President Tomka, Judges Abraham, Keith, Sepiilveda-Amor, Skotnikov, Greenwood, and Judge ad hoc Mampuya. In the minority were Judges Al-Khasawneh, Simma, Bennouna, Cancado Trindade, and Yusuf, and Judge ad hoc Mahiou. Judges Koroma, Xue, and Donoghue did not participate. The latter two judges had joined the Court subsequent to the oral proceedings on the merits. During the oral proceedings, having already sat for two days and having previously participated in the preliminary objections judgment, “Le juge Koroma a informe le president qu’il se recusait de l’affaire.” ICJ Public Sitting at 8, ICJ Doc. CR 2010/3. The Court included Judge ad hoc Mampuya (chosen by the DRC) and Judge ad hoc Mahiou (chosen by Guinea).

34 The Court rejected the claim that Diallo was subject to mistreatment while detained. Diallo, paras. 86–89. In interpreting die ICCPR and the ACHPR, the Court looked to the jurisprudence of the Human Rights Committee and the African Commission on Human and Peoples’ Rights. It had looked to human rights treaty bodies before, see, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ REP. 136, paras. 109–112 (July 9)Google Scholar, but the Court explained here the importance of doing so. With regard to the Human Rights Committee, the Court wrote that “it believes that it should ascribe great weight” to its interpretations because doing so will “achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.” Diallo, para. 66. Only “due account,” though, was to be taken of the interpretations adopted by the African Commission. Id., para. 67.

35 The judges forming the majority and the minority were the same as on the vote on admissibility, except for Judge Simma, who agreed with the finding of no violation. Judges Al-Khasawneh, Simma, Bennouna, Cancado Trindade, and Yusuf appended a joint declaration to the Court’s opinion; Judges Keith and Greenwood appended a joint declaration; Judges Cancado Trindade and Judge ad hoc Mampuya each appended a separate opinion; Judges Al-Khasawneh and Yusuf appended a joint dissenting opinion; and Judges Bennouna and Judge ad hoc Mahiou each appended a dissenting opinion.

36 Bjorge, Eirik, Case Report: Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), 105 AJIL 534 (2011)Google Scholar.

37 Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), 2007 ICJ Rep. 659, para. 108 (Oct. 8).

38 Diallo, para. 41 (relying on Certain Phosphate Lands in Nauru (Nauru v. Austl.), Preliminary Objections, 1992 ICJ REP. 240, para. 67 (June 26)).

39 Id., para. 43.

40 Id.

41 Id., Joint Decl. Al-Khasawneh, Simma, Bennouna, Cancado Trindade, & Yusuf, JJ., para. 9.

42 Id..Judgment, para. 38 (quoting Certain Phosphate Lands in Nauru, 1992 ICJ REP. 240, para. 69).

43 Barcelona Traction, Light & Power Co., Second Phase (Belg. v. Spain), 1970 ICJ REP. 3, para. 47 (Feb. 5).

44 Diallo, paras. 116, 127, 141, 149.

45 Id., para. 82 (“[I]t is difficult not to discern a link between Mr. Diallo’s expulsion and the fact that he had attempted to recover debts which he believed were owed to his companies by, amongst others, the Zairean State or companies in which the State holds a substantial portion of the capital. . . .”).

46 Id., Joint Diss. Op. Al-Khasawneh & Yusuf, JJ.

47 Barcelona Traction, Light & Power Co., 1970 ICJ REP. at 72 (sep. op. Fitzmaurice, J.) (footnote omitted).

48 Diallo, Preliminary Objections, para. 94. Judge Al-Khasawneh did not vote against this finding in the 2007 judgment or write separately. Judge Yusuf was not yet a member of the Court.

49 Id., Judgment, para. 115.

50 Id., Diss. Op. Bennouna, J., para. 7.

31 GA Res. 63/3 (Oct. 8, 2008).

52 Hisashi Owada, ICJ President, Statement to the Security Council 3 (Oct. 27, 2010).

53 Forming the majority were President Owada and Judges Al-Khasawneh, Buergenthal, Simma, Abraham, Sepulveda-Amor, Cancado Trindade, Yusuf, and Greenwood. Dissenting were Vice-President Tomka and Judges Koroma, Keith, Bennouna, and Skotnikov.

54 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, paras. 25, 4 8 – 4 9 (Int’l Ct. Justice July 22, 2010).

55 Id, para. 56.

56 See id., Decl. Simma, J., para. 3.

57 Id., Judgment, paras. 8 0 - 8 1.

58 Id., paras. 82–83. The Court also avoided the question of “whether or not the declaration has led to the creation of a State or the status of the acts of recognition” of the declaration. Id., para. 51.

59 SC Res. 1244 (July 10, 1999).

60 May 15, 2001, at http://www.unmikonline.org/regulations/unmikgazette/02english/E2001regs/RE2001_09.pdf.

61 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, paras. 114, 118.

62 The majority and minority comprised the same judges who divided on the issue of whether to comply with the request for an advisory opinion, except this time Judge Keith joined the majority.

63 Id., para. 122. Only Judge Xue, who was elected weeks before, did not participate. She had represented China before the Court in this case. See ICJ Public Sitting at 12, ICJ Doc. CR 2009/29. Vice-President Tomka and Judge Simma each appended a declaration to the Court’s advisory opinion; Judges Bennouna, Koroma, and Skotnikov each appended a dissenting opinion; Judges Cancado Trindade, Keith, Sepulveda-Amor, and Yusuf each appended a separate opinion. Two months following the advisory opinion, the General Assembly adopted a resolution acknowledging the content of the opinion. See GA Res. 64/298 (Sept. 9, 2010); see also UN GAOR, 64th Sess., 120th plen. mtg., UN Doc. A/64/PV.120 (Sept. 9, 2010) (debate in the General Assembly on the resolution).

64 See, e.g., Symposium, The ICJ Advisory Opinion on the Unilateral Declaration of Independence of Kosovo , 24 Leiden J. Int’l L. 71 (2011)Google Scholar; Symposium, Kosovo in the ICJ, 11 GERMAN L.J. 741 (2010); Alex Mills, TheKosovo Advisory Opinion: If You Don’t Have Anything Constructive to Say . . . ? , 70 Cambridge L.J. 1 (2011)Google Scholar; Yee, Sienho, Notes on the International Court of Justice (Part 4): TheKosovo Advisory Opinion , 9 Chinese J. Int’l L. 763 (2010)CrossRefGoogle Scholar.

65 See Wilde, Ralph, Case Report: Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 105 AJIL 301 (2011)CrossRefGoogle Scholar; Agora: The ICJ’s Kosovo Opinion , 105 AJIL 50 (2011)Google Scholar.

66 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, para. 80.

67 See id., paras. 102–09.

68 See id, paras. 118, 121.

69 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ REP. 136, para. 139 (July 9). For a criticism, see Murphy, Sean D., Self-Defense and the Israelii all Advisory Opinion: An Ipse Dixit from the ICJ? , 99 AJIL 62 (2005)CrossRefGoogle Scholar.

70 Cf. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Diss. Op. Skotnikov, J., para. 15 (“ [T]he authors of the [unilateral declaration of independence] are being allowed by the majority to circumvent the Constitutional Framework created pursuant to resolution 1244, simply on the basis of a claim that they acted outside this Framework . . . . The majority, unfortunately, does not explain the difference between acting outside the legal order and violating it.”).

71 The Court itself, in its procedure in advisory opinions, has been able to incorporate these same nonstate (and noninternational organization) entities into its proceedings. The authors of the unilateral declaration of independence filed “written contributions” and made oral statements, just as Palestine had submitted a written statement and made an oral statement some five years earlier.

72 Jurisdictional Immunities of the State (Ger. v. It.), Order, para. 35(A) (Int’l Ct. Justice July 20, 2010).

73 Id., para. 3 (quoting counterclaim).

74 Judges Keith and Greenwood appended a joint declaration; Judge ad hoc Gaja appended a declaration; Judge Cancado Trindade appended a dissenting opinion; Judges Xue, who had been elected a member of the Court the week before, and Judge Yusuf did not participate. The Court included Judge ad hoc Giorgio Gaja (chosen by Italy).

75 Jurisdictional Immunities of the State, para. 14.

76 European Convention for the Peaceful Settlement of Disputes, Art. 27(a), Apr. 29, 1957, 320 UNTS 243.

77 Jurisdictional Immunities of the State, para. 23.

78 Id, para. 26.

79 Id, para. 27 (quoting Peace Treaty, Art. 77(4)).

80 Id, para. 28.

81 Id, para. 30.

82 Certain Property (Liech. v. Ger.), Preliminary Objections, 2005 ICJ REP. 6, 27 (Feb. 10).

83 See infra note 111 and accompanying text.

84 In the history of the Court, the deaths of sitting judges and decisions not to seek reelection are not uncommon. Midterm resignations are rare, however, and never before have two occurred in the same calendar year. Since 1946, only eight judges—out of eighty-five who are no longer on the bench—have retired before the expiration of their terms: Sergei Golunsky, Planton Morozov, Robert Jennings, Stephen Schwebel, Mohammed Bedjaoui, Gilbert Guillaume, and now Thomas Buergenthal and Shi Jiuyong. Of these eight, six have resigned within the past sixteen years. On resignations, see generally Bernárdez, Santiago Torres, Resignations at the World Court , in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 953 (Dinstein, Yoram ed., 1989)Google Scholar.

85 See UN Secretary General, Note Concerning the Date of an Election to Fill a Vacancy in the International Court of Justice, UN Doc. S/2010/136 (Mar. 15, 2010); ICJ Press Release 2010/13 (May 11, 2010).

86 ICJ Press Release 2010/19 (June 30, 2010). Pursuant to Article 14 of the Statute, the Security Council set the date of the election. See SC Res. 1914 (Mar. 18, 2010). Pursuant to Article 5(1) of the Statute, on March 19 the secretary-general invited national groups of states parties to the Statute to nominate individuals to fill the vacancy. See Memorandum of the Secretary-General, Election of a Member of the International Court of Justice, UN Doc. A/64/808-S/2010/298 (June 8, 2010). One nomination was received. See Note of the Secretary-General, Election of a Member of the International Court of Justice, UN Doc. A/64/807-S/2010/297 (June 8, 2010); Note of the Secretary-General, Election of a Member of the International Court of Justice, UN Doc. A/64/809-S/2010/299 (June 8,2010). Judge Xue was the unanimous selection of the Security Council; she received 150 of the 152 ballots cast in the General Assembly (there were 2 abstentions). See UN GAOR, 64 th Sess., 102d plen. mtg., UN Doc. A/64/PV.102 (June 29, 2010); UN SCOR, 65th Sess., 6346th mtg., UN Doc. S/PV.6346 (June 29, 2010).

87 See UN Secretary General, Note Concerning the Date of an Election to Fill a Vacancy in the International Court of Justice, UN Doc. S/2010/255 (May 27, 2010). Based on the resignations of Judges Shi and Buergenthal and those of Judges Guillaume and Schwebel, it appears that the practice is to provide approximately four months notice of the resignation. This amount of time allows for a process of nomination and election that both comports with the Court’s Statute (which requires that a request for nominations be made at least three months before the date of the election) and minimizes the length of the vacancy. In the case of Judge Buergenthal’s resignation, the vacancy lasted only three days.

88 ICJ Press Release 2010/28 (Sept. 10, 2010). Pursuant to Article 14 of the Statute, the Security Council set the date of the election. See SC Res. 1926 (June 2, 2010). Pursuant to Article 5(1) of the Statute, on June 3 the secretary general invited national groups of states parties to the Statute to nominate individuals to fill the vacancy. Memorandum of the Secretary-General, Election of a Member of the International Court of Justice, UN Doc. A/64/899-S/2010/442 (Aug. 23, 2010). One nomination was received. See Note of the Secretary-General, Submission of a Nomination by National Goups, UN Doc. A/64/900-S/2010/443 (Aug. 23, 2010); Note of the Secretary-General, Curriculum Vitae of the Candidate Nominated by National Groups, UN Doc. A/64/901-S/2010/444 (Aug. 23, 2010). Judge Donoghue was the unanimous selection of the Security Council; she received 159 of the 167 ballots cast in the General Assembly (there were 8 abstentions). See UN GAOR, 64th Sess., 118th plen. mtg., UN Doc. A/64/PV.118 (Sept. 9, 2010); UN SCOR, 65th Sess. 6381st mtg., UN Doc. S/PV.6381 (Sept. 9,2010). For an appreciation of Judge Buergenthal, see Keith, Kenneth, Thomas Buergenthal: Judge of the International Court of Justice (2000–10) , 24 Leiden J. Int’l L. 163 (2011)CrossRefGoogle Scholar.

89 For the debate in the General Assembly on the Court’s annual report, see UN GAOR, 65th Sess., 38th plen. mtg., UN Doc. A/65/PV.38 (Oct. 28, 2010), and UN GAOR, 65th Sess., 39th plen. mtg., UN Doc. A/65/PV.39 (Oct. 28, 2010). For the discussion in the Sixth Committee, see Press Release, General Assembly, Assembly’s Legal Committee Is Told of Good Rate of Compliance, UN Press Release GA/L/3403 (Oct. 29, 2010).

90 Hisashi Owada, ICJ President, Speech at the 65th Session of the United Nations General Assembly 2 (Oct. 28, 2010) (quoting Pulp Mills on the River Uruguay, para. 167).

91 Id. at 3.

92 Id.

93 Id. (in the context of discussing Article 1 of the Resolution Concerning the Internal Judicial Practice of the Court).

94 Hisashi Owada, ICJ President, Speech to the Sixth Committee of the General Assembly 1 (Oct. 29, 2010).

95 Id. at 3.

96 Id.

97 Id. at 7.

98 Id.

99 Id.

100 Id.

101 Owada, Statement to the Security Council, supra note 52, at 2.

102 Id.

103 Id. at 5.

104 Id. at 4.

105 Id.

106 Owada, Speech at the 65th Session of the United Nations General Assembly, supra note 90, at 5.

107 Hisashi Owada, ICJ President, Speech to the Legal Advisers of United Nations Member States 3 (Oct. 26, 2010).

108 Id.

109 Id.

110 Id. at 5. President Owada’s views here were presaged in a joint separate opinion in Armed Activities (New Application), when then-Judge Owada, together with four other judges, indicated that it “is a matter for serious concern that at the beginning of the twenty-first century it is still for States to choose whether they consent to the Court adjudicating claims that they have committed genocide.” Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Jurisdiction & Admissibility, 2006 ICJ Rep. 6, 71 (Feb. 3) (joint sep. op. Higgins, Kooijmans, Elaraby, Owada, & Simma, JJ.).

111 Owada, Speech to the Legal Advisers of United Nations Member States, supra note 107, at 7–8.

112 Certain Questions Concerning Diplomatic Relations-was discontinued on May 12. Honduras’s application was filed a little more than six months earlier, on October 28, 2009. Though the case was on the list, the Court had decided not to take any action on it because of uncertainty, in the days immediately following the filing, regarding who had been appointed Honduras’s agent. See Certain Questions Concerning Diplomatic Relations (Hond. v. Braz.), Order (Int’l Ct. Justice May 12, 2010); Owada, Speech at the 65th Session of the United Nations General Assembly, supra note 90, at 7. At the time of die discontinuance, Brazil had taken no steps in the proceedings.

113 Certain Criminal Proceedings in France was discontinued on November 16, just three weeks from the date—December 6—that oral proceedings were to open. Congo’s application was filed in December 2002, and France consented to the Court’s jurisdiction in April 2003. In addition to having litigated the issue of provisional measures, the parties had submitted extensive written pleadings over the years. See Certain Criminal Proceedings in France (Congo v. Fr.), Order (Int’l Ct. Justice Nov. 16, 2010).

114 This request for an advisory opinion is the fifth in which the Court has been called upon to review judgments of administrative tribunals. See Judgments of the Administrative Tribunal of the ILO upon Complaints Made Against UNESCO, Advisory Opinion, 1956 ICJ REP. 77 (Oct. 23); Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, 1973 ICJ REP. 166 (July 12); Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, 1982 ICJ Rep. 325 (July 20); Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal, Advisory Opinion, 1987 ICJ Rep. 18 (May 27).

115 Report of the International Court of Justice, 1 August 2009–31 July 2010, at 2 n.2, un gaor, 65th Sess., Supp. No. 4, UN Doc. A/65/4 (2010).