INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE AERIAL INCIDENT
OF 10 AUGUST 1999

(PAKISTAN v. INDIA)

ORDER OF 19 NOVEMBER 1999

1999

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L’INCIDENT AERIEN
DU 10 AOÛT 1999

(PAKISTAN c. INDE)

ORDONNANCE DU 19 NOVEMBRE 1999
Official citation:

Aerial Incident of 10 August 1999 (Pakistan v. India),
Order of 19 November 1999, LC.J. Reports 1999, p. 1038

Mode officiel de citation:

Incident aérien du 10 août 1999 ( Pakistan c. Inde),
ordonnance du 19 novembre 1999, C.J. Recueil 1999, p. 1038

Sales number
ISSN 0074-4441 N° de vente: 7166
ISBN 92-1-070838-5

19 NOVEMBER 1999

ORDER

AERIAL INCIDENT OF 10 AUGUST 1999
(PAKISTAN v. INDIA)

INCIDENT AERIEN DU 10 AOUT 1999
(PAKISTAN c. INDE)

19 NOVEMBRE 1999

ORDONNANCE
1038

INTERNATIONAL COURT OF JUSTICE

1999 YEAR 1999

19 November
General List

No. 119 19 November 1999

CASE CONCERNING THE AERIAL INCIDENT
OF 10 AUGUST 1999

(PAKISTAN y. INDIA)

ORDER

Present: President SCHWEBEL; Vice-President WEERAMANTRY; Judges
Opa, BEDJAOUI, GUILLAUME, HERCZEGH, SHI, FLEISCHHAUER,
KOROMA, VERESHCHETIN, HIGGINS, PARRA-ARANGUREN,
KOOLMANS; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,

Having regard to Article 48 of the Statute of the Court and to
Articles 44 and 48 of the Rules of Court,

Having regard to the Application filed in the Registry of the Court on
21 September 1999, whereby the Islamic Republic of Pakistan instituted
proceedings against the Republic of India in respect of a dispute concern-
ing the destruction on 10 August 1999 of a Pakistani aircraft;

Whereas on 21 September 1999 a certified copy of the Application was
transmitted to the Republic of India;

Whereas the Islamic Republic of Pakistan has appointed as Agent His
Excellency Mr. Saeed M. Khan, Ambassador of Pakistan to the Nether-
lands; and whereas the Republic of India has appointed as Agent His
Excellency Mr. Prabhakar Menon, Ambassador of India to the Nether-
lands, as Co-Agent Mr. P. S. Rao, Joint Secretary and Legal Adviser in

4
1039 AERIAL INCIDENT (ORDER 19 XI 99)

the Ministry of External Affairs, and as Deputy Agent Ms Murugesan
Manimekalai, Counsellor at the Embassy of India in the Netherlands;

Whereas, in its Application, Pakistan, in order to found the jurisdic-
tion of the Court, invokes Article 36, paragraphs | and 2, of the Statute
and the declarations whereby the two Parties have recognized the com-
pulsory jurisdiction of the Court;

Whereas, by letter dated 2 November 1999, the Agent of India notified
the Court that his Government “wish[ed] to indicate its preliminary
objections to the assumption of jurisdiction by the... Court... on the
basis of Pakistan’s Application”; and whereas those objections, set out in
a note appended to the letter, were as follows:

“G) That Pakistan’s Application did not refer to any treaty or con-
vention in force between India and Pakistan which confers
jurisdiction upon the Court under Article 36 (1).

(ii) That Pakistan’s Application fails to take into consideration the
reservations to the Declaration of India dated 15 September
1974 filed under Article 36 (2) of its Statute. In particular, Paki-
stan, being a Commonwealth country, is not entitled to invoke
the jurisdiction of the Court as subparagraph 2 of paragraph |
of that Declaration excludes all disputes involving India from
the jurisdiction of this Court in respect of any State which ‘is or
has been a Member of the Commonwealth of Nations’.

(iii) The Government of India also submits that subparagraph 7 of
paragraph 1 of its Declaration of 15 September 1974 bars Paki-
stan from invoking the jurisdiction of this Court against India
concerning any dispute arising from the interpretation or appli-
cation of a multilateral treaty, unless at the same time all the
parties to such a treaty are also joined as parties to the case
before the Court. The reference to the UN Charter, which is a
multilateral treaty, in the Application of Pakistan as a basis for
its claim would clearly fall within the ambit of this reservation.
India further asserts that it has not provided any consent or
concluded any special agreement with Pakistan which waives
this requirement”;

Whereas, at a meeting between the President of the Court and the rep-
resentatives of the Parties held on 10 November 1999, the Parties provi-
sionally agreed to request the Court to determine separately the question
of jurisdiction in this case before any proceedings on the merits, on the
understanding that Pakistan would first present a Memorial dealing
exclusively with this question, to which India would have the opportunity
of replying in a Counter-Memorial confined to the same question;

Whereas, by letter of 12 November 1999, the Agent of Pakistan con-
firmed the agreement to the procedure given ad referendum on 10 Novem-
ber 1999;

5
1040 AERIAL INCIDENT (ORDER 19 XI 99)

Whereas it is necessary for the Court to be informed of all the conten-
tions and evidence of fact and law on which the Parties rely in the matter
of its jurisdiction;

Taking into account the agreement concerning the procedure reached
between the Parties, consulted under Article 31 of the Rules of Court,
and their views regarding the time-limits to be fixed for that purpose,

Decides that the written pleadings shall first be addressed to the ques-
tion of the jurisdiction of the Court to entertain the Application;
Fixes the following time-limits for the filing of those pleadings:

10 January 2000 for the Memorial of the Islamic Republic of Pakistan;

28 February 2000 for the Counter-Memorial of the Republic of India;
and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this nineteenth day of November one thou-
sand nine hundred and ninety-nine, in three copies, one of which will be
placed in the archives of the Court and the others transmitted to the
Government of the Islamic Republic of Pakistan and the Government of
the Republic of India, respectively.

(Signed) Stephen M. SCHWEBEL,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


                    172

                                           SEPARATE OPINION
                                      OF JUDGE CANÇADO TRINDADE

                                               table of contents
                                                                                Paragraphs

                         I. Introduction                                                   1-3
                      II. “Implied” and “Inherent Powers” Revisited : Some Preci-
                          sions4-6
                     III. Kompetenz Kompetenz/La Compétence de la Compé-
                          tence, Inherent to the Exercise of the International
                          Judicial Function                                                7-9
                     IV. The Sound Administration of Justice, and Joinders avant
                         la lettre10-12

                         V. The Idea of Justice Guiding the Sound Administration
                            of Justice                                                  13-18
                     VI. The Sound Administration of Justice and the Procedural
                         Equality of the Parties                                        19-23
                    VII. Epilogue : Final Considerations                                24-27

                                                        *

                                                I. Introduction

                       1. I have concurred with my vote to the adoption by the International
                    Court of Justice (ICJ) of its Order of today, 17 April 2013, whereby it
                    decides to join the proceedings in the present case concerning Certain
                    Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
                    Nicaragua) with the proceedings in the case concerning Construction of a
                    Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica).
                    The ratio decidendi in the present decision of the Court (paras. 19‑23) is
                    clear ; yet, it touches on foundations which have not been examined or
                    developed by the Court in the present Order, and to which I attach great
                    importance. I feel thus obliged to leave on the records my reflections
                    thereon, in support of my personal position on the matter.
                       2. I shall, first, address the issue of “implied” and “inherent powers”,
                    so as to provide some precisions in respect of the exercise of the interna-
                    tional judicial function. Secondly, I shall dwell upon the issue of the

                    10

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                    173 	         certain activities (sep. op. cançado trindade)

                     ompetenz Kompetenz/la compétence de la compétence, inherent to the
                    K
                    exercise of the international judicial function. Thirdly, I shall review the
                    sound administration of justice, and focus attention on joinders effected
                    by the Hague Court (PCIJ and ICJ) avant la lettre. Fourthly, I shall
                    consider what I perceive as the idea of justice guiding the sound adminis-
                     tration of justice (la bonne administration de la justice). And fifthly, I
                     shall examine the sound administration of justice (la bonne administration
                     de la justice) and the procedural equality of the parties. The way will
                     then be paved for the presentation, in the epilogue, of my brief final
                     considerations.
                         3. It is not my intention, in the following consideration of these issues,
                      to be exhaustive ; I could hardly be so, writing this separate opinion, as I
                      have been, under the merciless and unnecessary pressure of time. I do so,
                      struggling stubbornly against time, moved by a sense of duty, and endeav-
                      ouring to provide the reasoning which I can hardly find in the present
                      Order in support of the decision taken. The ratio decidendi, yes, it is in the
                      Order, but I cannot behold therein the obiter dicta supporting it. As I
                      have concurred with the Court’s decision in the present Order, I feel
                      bound to take the care to elaborate on the foundations of the matter dealt
                      with, the way I perceive and conceive them.

                                 II. “Implied” and “Inherent Powers” Revisited :
                                                 Some Precisions

                       4. May I begin by making a brief incursion, for a specific purpose, into
                    the law of international organizations, which — may I observe in pas‑
                    sim — marks its discreet presence in the present Order (paras. 1‑2 and 5).
                    With the rise of international organizations, the conceptions of “inherent
                    powers” as well as “implied powers” took shape in that context, with the
                    contribution of the case law of the ICJ. One year after the Advisory
                    Opinion of the ICJ in respect of Certain Expenses of the United Nations
                    (Article 17, paragraph 2, of the Charter) (of 20 July 1962), the doctrinal
                    formulation of F. Seyersted (1963) found the light of the day 1, invoking
                    the “inherent powers” of the UN, and seeking to demonstrate them, by
                    means of an arguable analogy — which promptly attracted criticisms —
                    with the legal position of States.
                       5. After all, the ICJ itself had clarified, in its celebrated obiter dictum in
                    the Advisory Opinion on Reparations for Injuries Suffered in the Service
                    of the United Nations (of 11 April 1949), that while the State is endowed
                    with the totality of rights and duties recognized by international law, the
                    rights and duties of an entity such as the UN ought to depend on the
                    purposes and functions, specified or implicit in their constitutive docu-

                      1 F. Seyersted, Objective International Personality of Intergovernmental Organizations,

                    Copenhagen, 1963, pp. 28‑29, 35‑36, 40, 45‑46.

                    11

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                    174 	         certain activities (sep. op. cançado trindade)

                    ments and developed in practice 2. The ICJ thus espoused to the doctrine
                    of “implied powers” 3, surely distinct from that of “inherent powers”,
                    inspired in an analogy with comparative constitutional law.

                       6. While the doctrinal construction of “implied powers” was intended
                    to set up limits to powers transcending the letter of constitutive charters —
                    limits found in the purposes and functions of the international organiza-
                    tion at issue 4 — the doctrinal construction of “inherent powers”, quite
                    distinctly, was intended to assert the powers of the juridical person at issue
                    for the accomplishment of its goals, as provided for in its constitutive
                    charter. The point I wish here to make is that the same expression —
                    “inherent powers” — has at times been invoked in respect of the operation
                    of international judicial entities ; yet, though the expression is the same, its
                    rationale and connotation are different, when it comes to be employed by
                    reference to international tribunals. Another precision is here called for,
                    for a proper understanding of the operation of these latter. Understanding
                    and operation go hand in hand : ad intelligendum et ad agendum.

                                  III. Kompetenz Kompetenz/La Compétence
                                  de la Compétence, Inherent to the Exercise
                                     of the International Judicial Function

                       7. International tribunals, to start with, are endowed with competence
                    to resolve any controversy raised with regard to their own jurisdictions :
                    this amounts to a basic principle of international procedural law 5. As
                    master of its own jurisdiction, the international tribunal concerned has
                    the compétence de la compétence (Kompetenz Kompetenz). Such power of
                    determination is inherent to every contemporary international tribunal,
                    responding to an imperative of juridical security : it goes without saying
                    that the determination of the scope of its own jurisdiction belongs to the
                    international tribunal concerned, as it cannot be left in the hands, and at
                    the mercy, of the contending parties. In any circumstances, the interna-
                    tional tribunal concerned is master of its own jurisdiction 6.
                       8. International tribunals, as courts of law, judicial entities, stand on a
                    firmer ground than arbitral tribunals, in so far as the determination of

                         2
                         I.C.J. Reports 1949, p. 180.
                         3
                         Cf. also, subsequently, its Advisory Opinion of 13 July 1954, on the Effect of Awards
                    of Compensation Made by the United Nations Administrative Tribunal, wherein the ICJ
                    again dwelt on the doctrine of “implied powers”.
                       4 Thereby not attributing carte blanche to this latter ; cf. Rahmatullah Khan, Implied

                    Powers of the United Nations, Delhi/Bombay/Bangalore, Vikas Publishing, 1970, pp. 1‑222.
                       5 IACtHR, case of Hilaire, Benjamin and Constantine and Others v. Trinidad and

                    Tobago (preliminary objections, judgment of 1 September 2001), separate opinion of Judge
                    A. A. Cançado Trindade, paras. 2 and 15.
                       6 IACtHR, case of Barrios Altos v. Peru (judgment of 14 March 2001), concurring

                    opinion of Judge A. A. Cançado Trindade, para. 2.

                    12

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                    175 	         certain activities (sep. op. cançado trindade)

                    their competence is concerned. They are the guardians and masters of
                    their own respective jurisdiction (jurisdiction, jus dicere, the prerogative or
                    power to declare the law). In this way, they discard permissive practices
                    (remnant of international arbitrations of the past), and preserve the integ-
                    rity of their own jurisdiction. Contending parties, on their turn, are bound
                    to comply with their conventional obligations (of a substantive as well as
                    of a procedural nature), so as to secure to the conventional provisions at
                    issue their proper effects in their respective domestic legal orders. This
                    also corresponds to a general principle of law — ut res magis valeat quam
                    pereat —, widely known as the principle of effectiveness (of effet utile) 7.
                       9. The compétence de la compétence (Kompetenz Kompetenz) of inter-
                    national tribunals extends to the interpretation of the provisions of their
                    respective jurisdictional instruments, as well as to the determination of the
                    nature of the controversy at issue and the characterization of its factual
                    context ; moreover, the prerogative of international tribunals to determine
                    their own jurisdiction starts at the time they are seized of the disputes at
                    issue 8. The ICJ itself stated, six decades ago, in its Judgment (of 18 Novem-
                    ber 1953), in the Nottebohm case, that the compétence de la compétence
                         “assumes particular force when the international tribunal is no longer
                         an arbitral tribunal constituted by virtue of a special agreement
                         between the parties for the purpose of adjudicating on a particular
                         dispute, but is an institution which has been pre‑established by an
                         international instrument defining its jurisdiction and regulating its
                         operation and is (. . .) the principal judicial organ of the United Nations”
                         (Nottebohm (Liechtenstein v. Guatemala), Preliminary Objection,
                         Judgment, I.C.J. Reports 1953, p. 119).

                                     IV. The Sound Administration of Justice,
                                          and Joinders avant la lettre

                      10. Thus, keeping these precisions in mind, may I briefly recall that the
                    ICJ developed its practice on joinder of proceedings well before the insti-
                    tute of joinder was enshrined, in 1978, into the Rules of Court (Article 47) 9.

                       7 For examples of the preservation, by contemporary international tribunals, of the

                    integrity of their own jurisdiction, cf. A. A. Cançado Trindade, El Ejercicio de la Función
                    Judicial Internacional — Memorias de la Corte Interamericana de Derechos Humanos,
                    2nd ed., Belo Horizonte/Brazil, Edit. Del Rey, 2013, pp. 5‑10, 29-52, 145-149 and 215.
                       8 I. F. I. Shihata, The Power of the International Court to Determine Its Own Jurisdic‑

                    tion, The Hague, Martinus Nijhoff, 1965, pp. 1‑304.
                       9 Article 47 of the Rules of Court provides that :

                            “The Court may at any time direct that the proceedings in two or more cases be
                         joined. It may also direct that the written or oral proceedings, including the calling
                         of witnesses, be in common ; or the Court may, without effecting any formal joinder,
                         direct common action in any of these respects.”

                    13

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                    176 	         certain activities (sep. op. cançado trindade)

                    By then, the Court counted only on a very general provision of its Statute,
                    on its prerogative to deliver Orders for the conduct of the case at issue
                    (Article 48). References can be made to its decisions on joinders in the
                    South West African cases (1961), and the North Sea Continental Shelf cases
                    (1968) 10. The joinders effected by the ICJ on those occasions transcended
                    the letter of its interna corporis. The Court was guided by its awareness of
                    the sound administration of justice.
                       11. These two decisions of the ICJ were preceded by three other deci-
                    sions of its predecessor, the PCIJ, in the cases of Certain German Interests
                    in Polish Upper Silesia (1926), the Legal Status of the South‑Eastern Ter‑
                    ritory of Greenland (1932), and the Appeals from Certain Judgments of the
                    Hungaro‑Czechoslovak Mixed Arbitral Tribunal (1932). Thus, both the
                    PCIJ and the ICJ ordered the joinder of proceedings avant la lettre,
                    despite the absence of an express provision on it in their interna corporis.
                    They ordered the joinder as a measure of judicial administration, so as to
                    secure the sound administration of justice (la bonne administration de la
                    justice), well before the institute of joinder was at last inserted, and found
                    its place, in the 1978 ICJ’s Rules of Court.
                       12. In the course of the proceedings, the Court may be faced with a
                    situation which requires from it a decision (at procedural level), even if it
                    does not squarely fit into its interna corporis. This has often happened in
                    practice — and the aforementioned decisions are not exhaustive. As early
                    as in 1937, G. Morelli perspicaciously pondered that “[s]ettling a legal
                    dispute means substituting certainty for uncertainty regarding the existing
                    legal situation” 11. And he added, in his sharp criticism of State volun-
                    tarism, that the generation of legal effects cannot be subsumed under the
                    “will” of States, or under what they agree upon inter se ; legal effects of
                    the international corpus juris stand “above the will of States” (“au‑dessus
                    de la volonté des Etats”) 12.

                         V. The Idea of Justice Guiding the Sound Administration of
                             Justice (la bonne administration de la justice)

                      13. In recent times, much discussion has taken place as to whether the
                    sound administration of justice (la bonne administration de la justice) is a
                    maxim or a principle, or whether such a distinction is immaterial 13. Be

                       10 Yet, in the Fisheries Jurisdiction cases (1972) and the Nuclear Test cases (1973),

                    however, the ICJ decided not to join the proceedings.
                       11 G. Morelli, “La théorie générale du procès international”, 61 Recueil des cours de

                    l´Académie de droit international de La Haye (1937), p. 260 [translation by the Registry].
                       12 Ibid., p. 263.
                       13 Cf., inter alia, e.g., R. Kolb, “Les maximes juridiques en droit international

                    public : questions historiques et théoriques”, 32 Revue belge de droit international (1999),
                    pp. 407‑434 ; A. Lelarge, “L’émergence d’un principe de bonne administration de la justice
                    internationale dans la jurisprudence internationale antérieure à 1945”, 27 L’observateur
                    des Nations Unies (2009), pp. 23‑51.

                    14

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                    177 	        certain activities (sep. op. cançado trindade)

                    that as it may, if it flourished as a maxim, this latter clearly gave expres-
                    sion to a principle. The proper exercise of the international judicial func-
                    tion requires the blend of logic and experience (la sagesse et l’expérience),
                    deeply‑rooted in legal thinking (of comparative domestic law and of
                    international law). Such blend of logic and experience seeks to secure the
                    sound administration of justice. Positivists try in vain to subsume this lat-
                    ter under the interna corporis of the international tribunal at issue, in their
                    well‑known incapacity to explain anything that transcends the regulatory
                    texts.
                       14. I have already referred to joinders effected by the ICJ avant la
                    lettre, despite the absence of an express provision regulating the matter,
                    and before the institute of joinder was inserted into the Rules of Court
                    (cf. supra). In my understanding, the Court did not do so pursuant to an
                    “implied power” ensuing from the regulatory texts, but rather, and more
                    precisely, pursuant to an “inherent power”, proper to the exercise of the
                    international judicial function. It is an “inherent power” of the interna-
                    tional tribunal concerned to see to it that the procedure functions prop-
                    erly, so that justice is done and is seen to be done. It is an “inherent
                    power” of an international tribunal such as the ICJ to see to it that the
                    procedure operates in a balanced way, ensuring procedural equality and
                    the guarantees of due process, so as to preserve the integrity of its judicial
                    function.
                       15. The sound administration of justice enables the international tribu-
                    nal at issue to tackle questions of procedure even if these latter have
                    “escaped” the regulations of its interna corporis. It is, in my perception,
                    the idea of an objective justice that, ultimately, guides the sound adminis-
                    tration of justice (la bonne administration de la justice), in the line of jus-
                    naturalist thinking. The proper pursuit of justice is in conformity with the
                    general principles of law. With the reassuring evolution and expansion of
                    judicial settlement in recent decades, there has been, not surprisingly, an
                    increasing recourse to the maxim la bonne administration de la justice —
                    which gives expression to a general principle of law, captured by human
                    conscience 14.

                       16. Writing at the time of the emergence and consolidation of judicial
                    settlement of international disputes, M. Bourquin pondered that many
                    international controversies pertained to a disagreement, not as to the
                    interpretation or application of positive law (jus positum), but rather as
                    to the value of that law. Accordingly, the exercise of the international
                    judicial function is not — cannot be — limited to a simple application of
                    positive law in the cas d’espèce ; there is a certain element of creativity

                      14 On human conscience — the universal juridical conscience — as the ultimate

                    material source of international law, cf. A. A. Cançado Trindade, International Law for
                    Humankind — Towards a New Jus Gentium, 1st ed., Leiden/The Hague, Martinus Nijhoff/
                    The Hague Academy of International Law, 2010, Chap. VI, pp. 139‑161.

                    15

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                    178 	         certain activities (sep. op. cançado trindade)

                    inherent to it, and there are always “superior principles of justice” to be
                    kept in mind 15.
                       17. The proper handling of international procedure is thus endowed
                    with particular relevance. After all, we are here confronted with common
                    sense, which often appears to be the least common of all senses. As to
                    such proper handling of international procedure, for the sake of the real-
                    ization of justice, M. Bourquin deemed it fit to warn that

                            “The quality of procedures is undoubtedly a factor which must be
                         taken into account. The right procedure helps resolve any difficulties.
                         The wrong procedure, on the other hand, does more harm than good.
                         However, a mechanism, even one that is exceptionally well designed,
                         cannot of itself suffice to resolve such an issue. What is required above
                         all here is a certain mindset, one from which we seem, unfortunately,
                         to be far removed. What is required is calm reason ; in other words,
                         that simple yet rare thing called common sense.” 16
                       18. An international tribunal such as the ICJ has the “inherent power”
                    to take motu propio the measures necessary to secure the sound adminis-
                    tration of justice. In doing so, ex officio, the Court is exercising its compé‑
                    tence de la compétence, a prerogative which is “essentially inherent in its
                    judicial function” 17. International legal procedure has a specificity and a
                    dynamics of its own, and general principles of law applicable therein are
                    not to be assumed to be identical, in operation, to those sedimented in
                    national legal systems 18. Positivists, anyway, do not feel at ease with gen-
                    eral principles of law ; they thus keep on trying, repetitiously and in vain,
                    to minimize their presence and relevance.

                                    VI. The Sound Administration of Justice
                                   and the Procedural Equality of the Parties

                       19. The sound administration of justice (la bonne administration de la
                    justice) is not an isolated illustration of the kind — of the incidence and
                    relevance of a general principle. Other such examples could be recalled,

                        15 M. Bourquin, “Stabilité et mouvement dans l’ordre juridique international”, 64 Recueil

                    des cours de l’Académie de droit international de La Haye (1938), pp. 371, 408 and 422.
                        16 Ibid., p. 472.
                        17 M. Kawano, “The Administration of Justice by the International Court of

                    Justice and the Parties”, Multiculturalism and International Law — Essays in Honour of
                    Edward McWhinney (eds. Sienho Yee and J.‑Y. Morin), Leiden, Martinus Nijhoff, 2009,
                    pp. 298‑299, and cf. pp. 286 and 293‑294.
                        18 A word of caution has been uttered as to such an analogy ; cf., e.g., H. von Mangoldt,

                    “La comparaison des systèmes de droit comme moyen d’élaboration de la procédure des
                    tribunaux internationaux”, 40 Zeitschrift für ausländisches öffentliches Recht und Völker‑
                    recht (1980), pp. 554‑572.

                    16

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                    179 	         certain activities (sep. op. cançado trindade)

                    such as, inter alia, that of the maxim audiatur et altera pars (or audi
                    alteram partem), which gave expression to the general principle of law
                    providing for procedural equality between the contending parties in the
                    course of judicial proceedings 19. Another principle, of international pro-
                    cedural law, is that of jura novit curia : originated in Roman law (civil
                    procedure, as from the seventeenth century), it acknowledges the freedom
                    and autonomy of the judge in searching for and determining the law
                    applicable to a given dispute, without being restrained by the arguments
                    of the parties. The examples abound.
                       20. In my perception, the presence of the idea of justice, guiding the
                    sound administration of justice, is ineluctable. Not seldom the text of the
                    Court’s interna corporis does not suffice ; in order to impart justice, in
                    circumstances of this kind, an international tribunal such as the ICJ is
                    guided by the prima principia. To attempt to offer a definition of the
                    sound administration of justice that would encompass all possible situa-
                    tions that could arise would be far too pretentious, and fruitless. An end-
                    less diversity of situations may be faced by the ICJ, leading it — in its
                    pursuit of the realization of justice — to deem it fit to have recourse to the
                    principle of the sound administration of justice (la bonne administration
                    de la justice) ; this general principle, in sum, finds application in the most
                    diverse circumstances.
                       21. Moving from the general to the particular, the incidence or appli-
                    cation of this general principle has enabled international tribunals to
                    secure the procedural equality of the contending parties. The ICJ has, on
                    successive occasions, expressed its concern as to the need to secure such
                    procedural equality. Thus, in its most recent Advisory Opinion, of 1 Feb-
                    ruary 2012, on the Judgment No. 2867 of the Administrative Tribunal of
                    the International Labour Organization upon a Complaint Filed against the
                    International Fund for Agricultural Development, the ICJ insisted on “the
                    right to equality in the proceedings” (I.C.J. Reports 2012 (I), p. 24,
                    para. 30), on “the principle of equality before the Court” as “a central
                    aspect of the good administration of justice” (ibid., pp. 25 and 29,
                    paras. 35 and 44), on “equality of access” to justice (ibid., pp. 26‑27, 29
                    and 31, paras. 37, 39, 43 and 48), on “the concept of equality before
                    courts and tribunals” (ibid., pp. 26‑27, paras. 38 and 40), on the guaran-
                    tee of “equal access and equality of arms” (ibid., p. 27, para. 39), on “the
                    principle of equality in the proceedings before the Court, required by its
                    inherent judicial character and by the good administration of justice”
                    (ibid., p. 30, para. 47).
                       22. In my separate opinion (ibid., pp. 81‑93, paras. 82‑118) appended
                    to this recent Advisory Opinion of the ICJ of 2012, I have dwelt in depth
                    upon the imperative of securing the equality of the parties in the interna-
                    tional legal process. Earlier on, the Court itself related the “principle of
                    procedural fairness” to the “sound administration of justice” (case con-

                       19 Bin Cheng, General Principles of Law as Applied by International Courts and Tribu‑

                    nals, London, Stevens, 1953, p. 291.

                    17

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                    180 	       certain activities (sep. op. cançado trindade)

                    cerning the Legality of Use of Force (Serbia and Montenegro v. Belgium),
                    Preliminary Objections, Judgment, I.C.J. Reports 2004 (I), p. 325,
                    para. 116). Almost two decades earlier, the ICJ stated that “the equality
                    of the parties to the dispute must remain the basic principle for the Court”
                    (Military and Paramilitary Activities in and against Nicaragua (Nicaragua
                    v. United States of America), Merits, Judgment, I.C.J. Reports 1986,
                    p. 26, para. 31). The ICJ again stressed the relevance of “the principle of
                    equality of the parties” in its Advisory Opinion of 20 July 1982, regarding
                    an Application for Review of Judgement No. 273 of the United Nations
                    Administrative Tribunal (I.C.J. Reports 1982, pp. 338‑340 and 365-366,
                    paras. 29‑32 and 79).
                       23. Three decades earlier, the ICJ had again relied upon that principle
                    in its Advisory Opinion of 23 October 1956 on Judgments of the Adminis‑
                    trative Tribunal of the ILO upon Complaints Made against Unesco (I.C.J.
                    Reports 1956, pp. 85‑86) ; on that occasion, the Court stated, in a rather
                    clumsy way, that the “principle of equality of the parties follows from the
                    requirements of good administration of justice” (ibid., p. 86). The Court,
                    in my understanding, would have been more precise had it stated that the
                    principle of equality of the parties orients or guides the requirements of
                    good administration of justice. Principles (prima principia) stand higher
                    than rules or requirements, and orient them.

                                      VII. Epilogue : Final Considerations

                      24. In its Order of joinder of the proceedings in the present case con-
                    cerning Certain Activities Carried Out by Nicaragua in the Border Area
                    (Costa Rica v. Nicaragua) with those in the case concerning Construction
                    of a Road in Costa Rica along the San Juan River (Nicaragua v.
                    Costa Rica), the ICJ has taken into due account that
                            “The two cases here concerned involve the same Parties and relate
                         to the area where the common border between them runs along the
                         right bank of the San Juan River.
                            Both cases are based on facts relating to works being carried out in,
                         along, or in close proximity to the San Juan River, namely the dredg-
                         ing of the river by Nicaragua and the construction of a road along its
                         right bank by Costa Rica. Both sets of proceedings are about the effect
                         of the aforementioned works on the local environment and on the free
                         navigation on, and access to, the San Juan River. In this regard, both
                         Parties refer to the risk of sedimentation of the San Juan River.

                            In the present case and in the Nicaragua v. Costa Rica case, the
                         Parties make reference, in addition, to the harmful environmental
                         effect of the works in and along the San Juan River on the fragile
                         fluvial ecosystem (including protected nature preserves in and along
                         the river).

                    18

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                    181 	         certain activities (sep. op. cançado trindade)

                            In both cases, the Parties refer to violations of the 1858 Treaty of
                         Limits, the Cleveland Award, the Alexander Awards and the
                         Ramsar Convention.
                            A decision to join the proceedings will allow the Court to address
                         simultaneously the totality of the various interrelated and contested
                         issues raised by the Parties. (. . .)” (Paras. 19‑23.)
                       25. Such is the ratio decidendi of the present decision of the Court. Its
                    foundations lie in the realm of principles, as I have endeavoured to dem-
                    onstrate in the present separate opinion. The Kompetenz Kompetenz/la
                    compétence de la compétence of an international tribunal such as the ICJ
                    is inherent to its exercise of the international judicial function. The ICJ
                    and its predecessor, the PCIJ, have both effected joinders avant la lettre,
                    even in the absence (before 1978) of a provision to that effect in their
                    interna corporis. The idea of justice guides the sound administration of
                    justice, as manifested, e.g., in decisions aiming at securing the procedural
                    equality of the contending parties.

                       26. General principles of law have always marked presence in the pur-
                    suit of the realization of justice. In my understanding, they comprise not
                    only those principles acknowledged in national legal systems 20, but like-
                    wise the general principles of international law. They have been repeat-
                    edly reaffirmed, time and time again, and — even if regrettably neglected
                    by segments of contemporary legal doctrine — they retain their full valid-
                    ity in our days. An international tribunal like the ICJ has consistently had
                    recourse to them in its jurisprudence constante. Despite the characteristic
                    attitude of legal positivism to attempt, in vain, to minimize their role, the
                    truth remains that, without principles, there is no legal system at all, at
                    either national or international level.

                       27. General principles of law inform and conform the norms and rules
                    of legal systems. In my understanding, sedimented along the years, gen-
                    eral principles of law form the substratum of the national and interna-
                    tional legal orders, they are indispensable (forming the jus necessarium,
                    going well beyond the mere jus voluntarium), and they give expression to
                    the idea of an objective justice (proper of jusnaturalist thinking), of uni-
                    versal scope. Last but not least, it is the general principles of law that
                    inspire the interpretation and application of legal norms, and also the
                    law‑making process itself 21. In the present case concerning Certain Activ‑
                    ities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicara‑

                       20 Cf. H. Mosler, “To What Extent Does the Variety of Legal Systems of the World

                    Influence the Application of the General Principles of Law within the Meaning of
                    Article 38 (1) (c) of the Statute of the International Court of Justice”, International Law
                    and the Grotian Heritage (Hague Colloquium of 1983), The Hague, T. M. C. Asser Insti-
                    tuut, 1985, pp. 173‑185.
                       21 A. A. Cançado Trindade, International Law for Humankind : Towards a New Jus

                    Gentium, op. cit. supra note 14, Chap. III, pp. 85‑121, esp. pp. 90‑92.

                    19

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                    182 	             certain activities (sep. op. cançado trindade)

                    gua), the ICJ has relied on the provision on joinder of Article 47 of the
                    Rules of Court, and has significantly acknowledged that the joinder it has
                    effected was in accordance with the principle of the sound administration
                    of justice (la bonne administration de la justice) 22.

                                                  (Signed) Antônio Augusto Cançado Trindade.

                         22   Paras. 18 and 24.

                    20

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