Tonight we have part two of our interview with former president of the ICJ, Judge Stephen Schwebel. We asked him about the inner workings of this unique court where 15 judges all give their input into final decisions. It the Belize - Guatemala dispute does go to court, it will take as many as 5 years before a judgment is rendered. And two years of that would be spent presenting oral arguments and written submissions.
Judge Schwebel has led that process and explained it to Jules Vasquez:ÃÆ'ƒ¢ÃƒÆ'¢Ãƒ¢Ã¢Ã¢â‚¬Å¡Ã‚¬Ãƒâ€¦Ã‚¡Ã‚¬Ã‚¦
Judge Stephen Schwebel served 19 years on the ICJ, three of them as president.
He gave us a first hand insight into the court's unique process of arriving at a judgement - where, basically, 15 judges have to come up with a majority position.
Jules Vasquez
"Would you explain that process of arriving at a judgement?"
Judge Stephen Schwebel - 19 years onICJ, President 1997-2000
"It's not a simple one. In this case the governments of Belize and Guatemala have prepared what is called a Special Agreement which submits the case to the court for its judgement.And that special agreement sets out that each party shall have 6 months to prepare its pleadings.The first pleading is called a Memorial, and the counter pleading which would come 6 months later is a Counter Memorial.And then there may be further pleadings in writing if the parties so choose.The judges of the court after the conclusion of the submission of written arguments are charged with studying those written arguments."
"The judges read all that material.And then there's the phase of oral argument in which each party has appointed a team, led by an Agent who represents the government and he has a flotilla of supporting lawyers and the most practiced among them will be chosen to argue before the court."
And then the court retires. It will hold a preliminary deliberation, just among the members of the court, with the registrar of the court present, and look at a list of questions which the President of the court prepares as a guide to the deliberation. And each member of the court will express his views on those questions.And after a debate among the judges of the court, after they've all participated in the deliberation, the most junior judge, the most recently elected, the youngest is the most junior, speaks first, which is often a bit frightening to the new judge. And the President of the court speaks last.And at the end of that deliberation, one can see which direction the court is moving."
Judge Schwebel recalls a relevant border dispute, the the Libya Chad case.
Libya was in occupation of an enormous area in the north of Chad, which Chad claimed was territory of Chad.There was a treaty which delineated the boundary between the two.Libya came up with all sorts of creative arguments as to whether that boundary was not the boundary that the court should apply. It had brilliant counsel. led by Derek Bowett of Cambridge University, a colleague ofSir Elihu Lauterpacht. In the end, the court, virtually unanimously decided that the governing treaty settled the dispute.
Judge Stephen Schwebel
"And there are a. number of cases in international law which give immediate and lasting effect to a boundary agreed upon by the parties even though there may not be succession to the treaty which created the boundary. Once the boundary is agreed upon, proclaimed, there it is. It is a disposition to give it continuing force independent of the life of the the treaty itself which settled the boundary."
That is the courts' preference for boundary stability:
Judge Stephen Schwebel
"Well, if you look at the jurisprudence of the international court of justice, it has given primacy to the importance of the stability of international boundaries for one strong and obvious reason, If boundaries are not respected the prospects for warfare among states of the world are that much greater."
Next week, we'll have part three of our interview with Judge Schwebel when he'll discuss the relative strengths or weaknesses of some of the legal arguments which Guatemala may present before the court.
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