IS INTERNATIONAL ADJUDICATION A GLOBAL PUBLIC GOOD? PROCEDURE VS. GPG BEFORE THE ICJ A ADJUDICAÇÃO INTERNACIONAL É UM BEM PÚB LICO GLOBAL? PROCEDIMENTO VS. GPG ANTES DO ICJ

International institutions and international law have a relevant role not only in the provision of Global Public Goods, but also in their maintenance and administration. Community interests are related to GPG, as they tend to transcend States’ individuals’ interests and ensure the protection of the international community. The protection of human rights can be considered the most prominent among other expressions of community interest. As a component of the international governance structure, international courts and tribunals (ICTs) can be considered a key element to the promotion of the international rule of law, including the provision of GPG. As the principal judicial organ of the UN, the ICJ is able to promote GPG by adjudicating inter-State claims. However, the Court’s intrinsic tension between State consent and global values may undermine its capacity to promote public interest. One may wonder whether procedural law 1 Doutora em direito pela Université Paris 1 Panthéon-Sorbonne, área de concentração: Direito Internacional e Europeu, mention très honorable avec félicitations du jury à lunanimité. Indicação para prêmios de melhor tese e para um financiamento para publicação. Doutora em direito pela Universidade do Estado do Rio de Janeiro (UERJ), Programa de Pós-graduação em Direito, área de concentração: Direito Internacional e Integração Econômica (co-tutela). Mestre em Direito Publico Internacional e Europeu pela Université de Paris XI (Paris-Sud), Faculté Jean Monnet, devidamente revalidado no Brasil. Professora adjunta em tempo integral de Direito Internacional e Europeu da FGV Direito Rio. Coordenadora da Cátedra Jean Monnet da União Européia (Programa de Direito da União Européia FGV Direito Rio), financiada pela Comissão Europeia. Pesquisadora do Centro de Justiça e Sociedade (CJUS) da FGV Direito Rio. Pesquisadora associada do Institut de Recherche en Droit International et Européen de la Sorbonne (IREDIES). Pesquisadora visitante do Max Planck Institute for Comparative Public Law and International Law (2014) e da University of Oxford, Faculty of Law (2014). Pesquisadora do Centre d?études et de recherche en droit international et relations internationales de l?Académie de droit international de La Haye (2010). Experiência na área de Direito Internacional e Europeu, atuando principalmente nas seguintes áreas: Direito Internacional com perspectiva latino-americana, Direito das Organizações Internacionais, Direito da União Européia e Direito do Mercosul. E-mail: paula.almeida@fgv.br 2 Graduada pela Faculdade de Direito da Universidade do Estado do Rio de Janeiro em 2018 e Assistente de Pesquisa da Cátedra Jean Monnet da FGV Direito Rio, desde 2016. E-mail: gabriela.porto@fgv.br Revista de Direito da Cidade vol. 11, no 1. ISSN 2317-7721 DOI: 10.12957/rdc.2019.38404 __________________________________________________________________ Revista de Direito da Cidade, vol. 11, no 1. ISSN 2317-7721 pp. 597-620 598 could be used as an obstacle for the achievement of substantive rights, in particular, for the protection of GPG. Backlashes include situations where international adjudication prioritises procedures to the detriment of community interests. Procedural reforms in cases involving GPG have been advanced, in particular of the rules regarding fact-finding and evidence. They aim at ensuring the normative and democratic legitimation of ICTs, and in particular of the ICJ.

GPG are also known for their properties of non-rivalry and non-excludability that result in the production of benefits to which everyone is entitled or which affect all countries.These features, however, create a tension that ultimately leads to underinvestment and undersupply as free-rider and collective action problems arise (PITARAKI, 2007, pp. 658-9;KAUL, 2017, p. 41;SHAFFER, 2012, pp. 678-9).
Since the market does not adequately provide GPG, international institutions and international law have a relevant role not only in their provision, but also in their maintenance and administration.Even though the concept of GPG might still be considered new to international law, its main features, implications and challenges are familiar to it (KAUL, 2017, p. 52;BODANSKY, 2012, pp. 652-3).Indeed, in international legal discourse the term GPG is often linked but not limited to the idea of erga omnes norms, which reflect fundamental values of the international community (NOLLKAMPER, 2012, pp. 775-6;SIMMA, 1994, p. 243).If erga onmes obligations relate to the provision of a GPG or to the prohibition of a global public bad, such obligations would entail the protection of common interests that should be owed to the international community as a whole.
International law is not only a tool for co-existence among States, but also, and ultimately, a mechanism for the production and protection of GPG (BODANSKY, 2012, p. 658).
The 'recognition of community interest in positive law' reflects this trend (BENZING, 2006, p. 370).In the words of Judge Simma, 'international law has been moving in this direction for some decades now' (SIMMA, 1994, p. 234).If this reflects the current reality, one cannot deny that the realization of community interests also depends on the existence of an institutional structure for the promotion and protection of these interests.However, in the current scenario, there is no supranational authority or appropriate public institution on a global level capable of compelling States to accomplish global achievements related to community interests (BENZING, 2006, pp. 369, 372;CAFAGGI, CARON, 2012, p. 645).

THE ROLE OF INTERNAT IONAL COURTS AND TRI BUNALS (ICTS) IN THE PROVISION OF GPG AND ITS CHALL ENGES
As a component of the international governance structure, international courts and tribunals (ICTs) can be considered a key element to the promotion of the international rule of law, including the provision of GPG (ULFSTEIN, 2014, pp. 859-860); NOLLKAMPER, 2012, pp. 769-770).ICTs are equipped to protect, express and shape values that reflect GPG by the power granted in international treaties (BENZING, 2006, p. 377).By developing international law, ICTs can be qualified as both 'intermediate GPG' and contributors to the protection and promotion of final GPG (NOLLKAMPER, 2012, p. 783;SHAFFER, 2012, p. 691).
The way in which ICTs deal with inter-State dispute settlement procedure and community interests embodied in GPG reflects the basic question of how courts regard the nature and scope of their own judicial function.Dispute settlement cannot solely capture the full relevance of international courts' decisions (VON BOGDANDY; VENZKE, 2014, p. 15).Indeed, the role of international courts is not limited to the bilateral dispute settlement between States.
They perform other important functions, such as the development of normative expectationsin order to achieve international adjudication's full potential, which is the realisation of justice (HELFER, 2014;ALVAREZ, 2014, p. 464).By developing international law, the role of ICTs encompasses the protection and development of the international community and its values (SIMMA, 1994;VON BOGDANDY;VENZKE, 2014, p. 38;LAUTERPACHT, 1958 Indeed, the main obstacle to the enforcement of GPG is the bilateral nature of inter-State judicial dispute settlement, while GPG associated with community interests 'cannot be reduced to bilateral schemes' (NOLLKAMPER, 2012, p. 770;KLABBERS, 2011;BENZING, 2006, p. 376).
Broadly, the rules of substantive international law that protect community interests are considered GPG, whereas the rules guiding international adjudication are of a procedural nature.Common to all international courts is a set of rules governing the process of adjudication, generally labelled as procedural.While procedure may guide and shape the application of substantive law, it should itself be guided and shaped in a manner to ensure the protection of community interests (NOLLKAMPER, 2012, p. 772).In other words, in cases involving erga omnes obligations, community interests should arguably guide the interpretation and development of procedural rules.This supposed positive relationship, in which procedure allows for an 'efficient application of substantive law that embodies public goods' (NOLLKAMPER, 2012, p. 770), is not without difficulties.One may wonder whether procedural law could be used as an obstacle for the achievement of substantive rights, in particular, for the protection of GPG.Backlashes include situations where international adjudication prioritises procedures to the detriment of community interests.

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There were also lost opportunities in which the Court could have opted for the protection of community interests, but preferred, instead, to rely on procedure (WOLFRUM, 2011(WOLFRUM, , pp. 1137(WOLFRUM, -1138)).Such a stance can be perceived through its Judgment, 2016, para 17) 11 , and stating that there was no actual dispute between the two Judge Trindade), supra, 245).As Judge Yusuf also pointed out, the Court has lost an opportunity to provide guidance on rules of international law and to clarify them, as the principal judicial organ of the United Nations (Jurisdictional Immunities of the State (Germany v. Italy) (Judgment: Dissenting Opinion of Judge Yusuf), supra, par.58  13 , supposing that the claim of one party is positively opposite to the other.The Court also added the need for it to be demonstrated, on the basis of evidence, that the respondent was aware, or could not have been unaware, that its views were "positively opposed" by the applicant (ICJ, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race, para 41) 14 .By adopting such a reasoning, it seems that the Court has hardened its criteria for dispute assessment, even going beyond its own jurisprudence constante and creating a higher threshold for the determination of the existence of a dispute.
These examples demonstrate that the Court can sometimes be overly attached to procedure, resting on technicalities, so as to avoid deciding on the merits of high profile and politically-charged cases.In order for the goal of protecting procedure to not prevail over the protection of community interests, one should expect that procedural law follows substantive law and vice versa.As noted by Jenks, 'if we wish so to develop the law as to respond to the challenge of our times our procedures and remedies must be sufficiently varied and flexible for the purpose' (JENKS, 1964, p. 184).As a consequence, ICT's procedural law should allow for the adjudication of claims involving GPG, otherwise procedural law should be adjusted (NOLLKAMPER, 2012, p. 770).Arguably, the ICJ does not apply differentiated rules of procedure based on the prominent bilateral or multilateral interest in a dispute-settlement (BENZING, 2006, p. 385;WOLFRUM, 2011WOLFRUM, , pp. 1138-9)-9).The idea is that 'the more the generation of legal normativity in the practice of international adjudication becomes visible, the more traditionally prevailing requirements for judicial procedures need to be supplemented by further considerations' (VON BOGDANDY;VENZKE, 2011VENZKE, , p. 1362;;CHINKIN, 2006CHINKIN, , pp. 1331CHINKIN, , 1366;;PALCHETTI, 2002, p. 139;WOLFRUM, 2001).
This paper argues that there is a disconnection between community interests and procedure, which has not been attuned to reflect contemporary international law challenges deriving from GPG (BONAFÉ, 2011).Procedures can be interpreted, enhanced, voire designed in order to ensure the promotion of GPG (NOLLKAMPER, 2012, pp. 787-788).As far as interpretation is concerned, the ICJ has held that 'an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time Independently from consent, Courts can adjust and tailor their own rules for multiparty aspects, such as standing and participation of third parties, evidence, among other topics (NOLLKAMPER, 2012, pp. 787-8).Indeed, the procedural law of international judicial institutions is largely a product of their own making (VON BOGDANDY; VENZKE, 2011VENZKE, , pp. 1362;;KOLB, 2006, pp. 793, 795).International tribunals are endowed with an inherent competence not only with regard to their own jurisdiction (compétence de la competénce), but also with regard to the interpretation of the provisions of their respective jurisdictional instruments.As clearly put by Judge Cançado Trindade, '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' (Certain

Activities carried out by Nicaragua in the Border Area Proceedings joined with Construction of a
Road in Costa Rica along the San Juan River Order: joinder of proceedings: Separate Opinion of Judge Trindade, 2013) 22 .Therefore, self-regulation is considered as the prevailing system and an important source of independence of an ICT, being 'one of the ways in which such a creature may escape its makers' (SOREL, 2007).
It is worth noting that judicial rule-making is limited to procedural issues and does not encompass rules on jurisdiction and admissibility, which are usually circumscribed by the treaties and statutes.Also, the fact that a jus cogens norm is involved in a dispute cannot set aside jurisdictional rules.In the East Timor case, the Court had already affirmed that 'the erga omnes character of a norm and the rule of consent to jurisdiction are two different things' (ICJ, East Timor, 1995, para 29) 23 .Such a statement was complemented by the Court's observation, in the Armed Activities case, that 'the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute'.The Court has gone further to clarify that 'the fact that a dispute relates to compliance with a norm having In any case, it appears that the ICJ has been very modest in utilising its powers to expand procedural rules beyond its mandate to ensure application of substantive law embodied in GPG (MCWHINNEY, 2006, p. 3).If changes in substantive law, notably when GPG are at stake, are not reflected in the procedure of contentious inter-State judicial dispute settlement, there is indeed a need to expand rules permitting the standing and participation of the international community in bilateral proceedings.In the same vein, judicial procedures could be expanded in a way to strengthen the democratic legitimation of judicial decisions; procedural rules providing for greater transparency and opportunities of participation would reflect this trend (VON BOGDANDY; VENZKE, 2011, pp.1362; CRAWFORD, KEENE, 2016, p. 225).
There is indeed a tendency towards further 'multilateralisation' of procedural law whenever GPG are at stake (BENZING, 2006, p. 408).If ICTs fulfil certain criteria such as transparency, accountability and due process, they may be viewed as legitimate (VON BOGDANDY , 2013, p. 375).According to the Court's survey conducted as a preparation to the Seminar held on the occasion of the 70th Anniversary of the Court's first inaugural sitting, the topic of evidence and fact finding has been identified as the most questionable one, thereby requiring important reform proposals, notably regarding the Court's treatment of scientific cases (CRAWFORD, KEENE, 2016, p. 225).The establishment of fact and rules of evidence within the ICJ are both relevant for the legitimation of international adjudication, notably when GPG are concerned (VON BOGDANDY;VENZKE, 2011VENZKE, , pp. 1362;;BENZING, 2006, p. 383;TEITELBAUM, 2007, p. 119;KLEIN, 1996, p. 329;FOSTER, 2011;LACHS, 1993, p. 205).

REFORM PROPOSALS: EV IDENCE AND FACT -FINDING IN ICJ PROCEDURE
Several issues deserve further analysis with a view to promoting the interests of the international community: fact-finding in complex cases involving community interests; and transparency in the production of documentary evidence and its consequences in community interests' cases.This article will focus on the latter, as requests for disclosure of evidence are vital to the protection of GPG by international courts.This has motivated an intense debate in the Bosnian and Croatian Genocide cases, which also dealt with matters involving GPG -the  2007, p. 136).
In the first Genocide case, Bosnia and Herzegovina affirmed that Serbia and Montenegro had a special duty of diligence in preventing genocide and that the proof of its lack of diligence could be inferred from fact and circumstantial evidence (ICJ, Reply of Bosnia and Herzegovina, 2007, para 22) 27 .Serbia and Montenegro had considered parts of relevant documents as being classified.In its judgment, the Court concluded that Serbia and Montenegro failed to prevent the genocide in Srebrenica, without it having had recourse to indirect proof or inferences.Indeed, the Court rejected the approach suggested by Bosnia and Herzegovina based on negative inferences (TEITELBAUM, 2007, pp. 138-9) and did not call upon Serbia and Montenegro to produce the requested documents (Judgment, para 44) 28 .It only stated that it noted 'the Applicant's suggestion that the Court may be free to draw its own conclusions' (Judgment, para 206) 29 .However, no conclusions were drawn in that case.The second Genocide case, opposing Croatia to Serbia, followed the same path (ICJ, Judgment,  , 2015, p. 899;GATTINI, 2007, p. 889).
In these cases, although the situation was perfectly justifiable, the Court did not draw any adverse inference from refusals to reply to a request for information under Article 49 of its Statute.This has continued to be so in ICJ current practice, since the Court did not use its power to draw an adverse inference from Costa Rica's request for Nicaragua to provide evidence under its control in the recent Road and Certain Activities cases (para 35) 31 .To date, the ICJ has taken a soft stance towards nonproduction, without shifting the burden of proof or making adverse findings of fact (SCHARF, DAY, 2012, p. 128).These cases demonstrate that the Court is missing good opportunities to put into effect the powers attributed to it by the Statute and the Rules with regard to evidence 32 .
According to Art. 49 of the Statute, the Court may request the parties to produce of any documents or explanations.This article must be read in conjunction with Article 62 of the Rules, which clarifies that such evidence or explanation is 'necessary for the elucidation of any aspect of the matters in issue' 33 .Art. 62 also addresses the possibility of the Court seeking proprio motu any other information for this purpose.However, such power is not binding upon the parties, as indicates the wording of Article 49 (the Court can 'call upon' parties to submit evidence) (TAMS, 2006(TAMS, , p. 1107;;SCHARF, DAY, 2012, p. 127).Drawing from the WTO practice (Canada -Measures Affecting the Export of Civilian Aircraft, 1999, para 187) 34 , it has already been suggested that the Court's jurisprudence could construe the binding character of its power to request information, based on a teleological interpretation of its Statute and Rules and on the duty of collaboration incumbent upon States for the collection of evidence (DEVANEY, 2016, pp.180-7).  5.However, the apogee of human rights protection at the ICJ is indubitably marked by the Diallo case.As celebrated by Simma, 'the human rights rose like a phoenix from the ashes of the Diallo case' (SIMMA, 2013, p. 593).The Diallo judgment on merits motivated judge Trindade to qualify the current time as 'the new era of international adjudication of human rights cases by the ICJ' 57 .
Therefore, there is no doubt that international adjudication contributes to the achievement of community interests embodied in GPG.This is because 'community interests' (BENZING, 2006, p. 371) and 'common concern' are also related to GPG, as they transcend states' individual interests and ensure the protection of the international community (SIMMA, 1994, pp. 217-384).By developing international law within a multifunctional approach, the ICJ can directly participate in the provision of final GPG.However, as demonstrated above, such a contribution is mitigated by the ICTs treatment of procedural rules, which may impose an obstacle to substantive law.The existing tension between bilateralism and community interests is duly reflected in ICJ case law.Whenever the Court deals with issues involving general interest, it tends to rest on technicalities to avoid deciding on high profile and politically charged cases.
The proposed amendments on topics such as fact-finding and evidence were identified ruling on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, where the Court refused to acknowledge Serbia's responsibility as a genocide perpetrator, despite evidence in the form of witnesses' testimonies along with previous ICTY decisions.This case was the first ever to be brought to the Court based on the Convention on the Prevention and Punishment of the Crime of Genocide.The Court concluded that Serbia and Montenegro failed to prevent the genocide in Srebrenica without having had recourse to indirect proof or inferences.The ICJ's timid and conservative ruling appeared, however, to have lost an opportunity to expand international interests and propel the importance of protecting jus cogens.Furthermore, the Court took a somewhat similar stance on the Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament case (ICJ, 2016, Preliminary Objections: Memorial of the Marshall Islands, paras 51-59) 9 : in 2016, the Marshall Islands brought to the ICJ three cases against India, Pakistan and the UK, as nuclear weapon States, in which it invoked the 1968 Treaty on the Non-Proliferation of NuclearWeapons (NPT) as well as customary international law in the proceedings.The Court adjudged that it could not proceed to the merits of the case on the grounds that a dispute was inexistent at the time of the filing of the application.The 'Nuclear Arms Race' case represents a flagrant example of a formalistic decision made by the Court(VENZKE, 2017, p. 68).Being a politicallycharged dispute, the Court was reluctant to exercise its jurisdiction and emphasised the formal considerations (Preliminary Objections: Dissenting Opinion of Judge Crawford, 2016) 10 , therefore basing its decision on the 'Objective Awareness criterion' (Preliminary Objections: of the interpretation', which includes contemporary community interest to the detriment of pure application of procedural rules (ICJ, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) 1980, 2017, paras 73-76) 21 .If interpretation of procedural rules must take into account the applicable substantive law, i.e., the necessary 20 Obligations concerning Negotiations relating to the Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Preliminary Objections: Dissenting Opinion of Judge Trindade), supra, 45 21 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion) 1980 <http://www.icj-cij.org/files/case-related/65/065-19801220-ADV-01-00-EN.pdf>accessed 28 June 2017 [73]-[75], 76 __________________________________________________________________ Revista de Direito da Cidade, vol.11, nº 1. ISSN 2317-7721 pp.597-620 606 promotion of GPG, the same applies to their inception.According to Art. 30 of the Statute of the ICJ, the Court possesses the power to 'frame rules for carrying out its functions'.Consideringthat a relevant function is to protect community interests, the Court should assume expanded procedural powers in order to ensure the effective application of substantive law whenever GPG are at issue.

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Corfu Channel case, (Judgment) [1949] I.C.J. Rep 4, 18. 26 Corfu Channel case, (Judgment) [1949] I.C.J. Rep 4, 18. 27 Reply of Bosnia and Herzegovina, in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), (Judgment) [2007] ICJ Rep 43, 839, para 22 28 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para 44. 29Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, 129, para 206.As pointed out by Vice-President Al-Khasawneh, in the absence of a request for production of documents, it was not up to the Court to take 'formal note' of a refusal under Article 49, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment: Dissenting opinion of Vice-President Al-Khasawneh) [2007] ICJ Rep 43, para 35.__________________________________________________________________ Revista de Direito da Cidade, vol.11, nº 1. ISSN 2317-7721 pp.597-620 609 2015) 30 , as the Court did not deviate from its ruling of 2007 in matters related to evidence (GATTINI, CORTESI among specific reform proposals by the Counsel Survey conducted in preparation for the Seminar held on the 70th Anniversary of the Court's first inaugural sitting(CRAWFORD, KEENE,   2016, pp.225-30).There were calls for 'greater transparency, a more interactive and less formalistic bench and increased openness to the practices and jurisprudence of other 52 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, p. 43. 53Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 3. 54 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70. 55Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Provisional Measures, Order of 19 April 2017, I.C.J. Reports 2017, p. 104. 56Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Qatar v. United Arab Emirates), Request for the Indication of Provisional Measures, Order of 23 July 2018. 57Application of the International Convention on the Elimination of All Forms of Racial Discrimination [CERD] (Qatar v. United Arab Emirates), Request for the Indication of Provisional Measures, Order, Separate Opinion of Judge Cançado Trindade, ICJ Reports 2018, par.7-8.
As the principal judicial organ of the UN, the ICJ is able to promote GPG by adjudicating inter-State claims(NOLLKAMPER, 2012, pp.769-770).Although not reflecting an integrated regime capable of protecting specific values, such as the European Court of Human Rights or the Inter-American Court of Human Rights, the ICJ's recognition and application of erga omnes obligations is in itself a patent example of its prominent role in the protection of the interests of the international community.Nevertheless, the Court's intrinsic tension between State consent and global values may undermine its capacity to promote public interest (ICJ, ; CANÇADO __________________________________________________________________ Revista de Direito da Cidade, vol.11, nº 1. ISSN 2317-7721 pp.597-620 601 TRINDADE, 2010).In other words, ICTs have an important role -one of 'global governance' (VON BOGDANDY; VENZKE, 2011, pp.990-2) -thereby contributing to the protection of and promotion of GPG.
The dissenting opinions of Judges Crawford, Trindade, Robinson, Bennouna and Bedjaoui are based on the Objection to the Jurisdiction of the Court: Judgment) [1924] PCIJ Judgement No. 2, Series A No. 2 11 14 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to nuclear Disarmament (Preliminary Objections: Judgment), supra, para.41 15 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Preliminary objections: Dissenting Opinion of Judge Bennouna), supra, 2 16 Obligations concerning Negotiations relating to the Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Preliminary Objections: Dissenting opinion of Vice-President Yusuf), supra, para.4 17 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Preliminary objections: Dissenting Opinion of Judge Bennouna), supra, 2 18 Obligations concerning Negotiations relating to the Cessation of the Nuclear Arms Race and to Nuclear Dissenting Opinion of Judge Trindade, para.45) 20 .Scholarship has also criticised the Court's position for being excessively formalistic and disconnected from the seriousness of the substantive issue submitted to the Court (PROULX, 2017, p. 96; DUGARD, 'reason of being' of the ICJ, as a tool for contributing to peace through international law (Dissenting Opinion of Judge Bennouna, para 2)15.In the Vice-President's opinion (para 4) 16 , it is difficult to determine the existence of a dispute without specifying its subject-matter, which is not identified in the judgment.Judge Bennouna emphasised that the duty of the Court is to be more vigilant in cases like this, due to the question of crucial importance for world security (para 2)17.Judge Cançado Trindade, on the other hand, drew attention to the UN Charter having relevance to the judicial settlement of international disputes (Dissenting Opinion of Judge Trindade, para.119-127)18.Considering nuclear weapons a threat to humanity and the fact that this case represents the third attempt to address such issues by the Court (ICJ, Nuclear Tests (New Zealand/France), 1974; (Australia/France), 1974) 19 , the Judge recognised the Court's 'inter-State myopia', assuming an evasive posture and avoiding clearly pronouncing itself on the 12 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Preliminary Objections: Judgment), supra, 23 13 Mavrommatis Palestine Concessions (Greece/Great Britain) (Disarmament (Preliminary Objections: Dissenting Opinion of Judge Trindade), supra, para.119-127. 19Nuclear Tests (New Zealand/France) (Preliminary Objections: judgment) [1974] ICJ Rep 457; Nuclear Tests (Australia/France) (Questions of jurisdiction and/or admissibility: judgment) [1974] ICJ Rep 253 __________________________________________________________________ Revista de Direito da Cidade, vol.11, nº 1. ISSN 2317-7721 pp.597-620 605 substance of the matter ( [the prohibition of genocide] (…) cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute'(ICJ, Armed Activities, 2006, para 64)24 22Certain Activities carried out by Nicaragua in the Border Area (Costa Rica/Nicaragua) Proceedings joined with Construction of a Road in Costa Rica along the San Juan River (Nicaragua/Costa Rica) (Order: joinder of proceedings: separate opinion of Judge Cançado Trindade)[2013], para 14.23East Timor (Portugal/Australia) (Judgment)[1995]ICJ Rep 102, para.29).__________________________________________________________________ Revista de Direito da Cidade, vol.11, nº 1. ISSN 2317-7721 pp.597-620 607 such a character However, the debate regarding the powers of the Court to draw adverse inferences towards nonproduction of documents predates the Genocide cases and is worth revisiting.In the Corfu Channel case, the Court found that a State victim of a breach in international law is often unable to furnish direct proof of facts that give rise to responsibility, notably in situations in which the other State exercises exclusive control over a territory.Therefore, the State victim 'should be allowed a more liberal recourse to inferences of fact and circumstantial evidence' (para 18) 25 .However, in the Court's view, the use of inferences for assessing the truth must 'leave no room for reasonable doubt'(See FITZMAURICE, 2002)26 .
30 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment) [2015] ICJ Rep 3. 31 First round of argument by Costa Rica in Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica), CR 2015/3, 63, para 35.Another example would be the United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) ICJ Reports 1980, 10. 32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment: Dissenting Opinion of Judge ad hoc Mahiou) [2007] ICJ Rep 43, para.61. 33ided for Article 49 of the Statute and 62 of the Rules was used for the first time byEven if the Court's power to request information was to be binding on the parties, given the lack of enforcement mechanism of its requests, it could only have recourse to adverse inferences.This is not a new power to be conferred on the Court since Art.49 of the Statute already provides the Court with the possibility of taking formal notice of any refusal to comply with its requests.The possibility of drawing adverse inferences, although never put in practice by the ICJ, is a common practice in other dispute settlement mechanisms, such as the WTO and As discussed above, the Court has not made significant use of its power (i) to request information under Article 49 of the Statute, nor developed a practice of granting discovery requests, i.e., (ii) requests by the parties.Much has been debated on the need for the Court to take a more proactive approach and make greater use of its fact-finding powers.As for requests made by the Court itself under Article 49 of the Statute, whenever a requested party fails to produce evidence, 'the Court could consider issuing a procedural order notifying the parties of its intention to draw an adverse inference in order to give the State an opportunity to comply' (CRAWFORD,KEENE, 2016, p. 228; MALINTOPPI, 2016, p. 426).This problem is even more acute whenever the Court deals with the protection of fundamental values or community interests, such as the prohibition of genocide.Grave violations of human rights and acts of genocide are in breach of absolute prohibition of jus cogens 36 .As highlighted by Judge Cançado Trindade in his dissenting opinion in the second Genocide case, human rights tribunals feel obliged to resort, even more forcefully, to presumptions and inferences whenever 'the cases lodged with them disclose a pattern of widespread and systematic gross violations of human rights' (ICJ, Croatia v Serbia, Judgment: Dissenting Opinion of Judge Cançado Trindade, 2015, para 123)37.The same might be applicable to the ICJ when it deals with global fundamental values.As a general proposal, the Court should be encouraged to draw adverse inferences, notably in cases involving community interests, in line with the jurisprudence of other international courts and tribunals.Concerning requests made by the parties, the Court could also be more active in addressing requests for the disclosure of information.The issue has been hotly debated in the Genocide cases.The only exception is the ELSI case in which the United States was requested to make available to the Court a financial statement it had mentioned in the oral proceedings(ICJ,   1969)38.The Italian counsel asked the Chamber to request the disclosure of such document, which granted and performed by the President.As a result, the United States made available the requested document 39 .Drawing from its practice in the ELSI case, another possibility would be for the Court to make fuller use of the practice piloted in the ELSI case whereby requests for documents would be transmitted by the Court for it to be able to filter such requests.In order to put this in practice, Article 62 of the Court's Rules could be amended accordingly(SARVARIAN, 2017, p.   77).Needless to say that in cases involving community interests, the Court should make greater use of its powers to obtain evidence and engage actively with any objection to disclosure of documents before it.As put by Judge ad hoc Mahiou in his dissenting opinion in the first Genocide case, in face of grave accusation of genocide, 'it is therefore logical and to be expected that the Court should be called upon or that it should itself employ every means offered it by its Statute to arrive at clear findings on the authenticity or otherwise of alleged facts'(ICJ, Bosnia and Herzegovina v Serbia and Montenegro, 2007, para 59)40.The PCIJ had also made a contribution to the protection of minority rights, for example, in the following cases: Certain Questions Relating to Settlers of German Origin in the Territory Ceded by Germany toPoland (1923)PCIJ, Series B 6; Rights of Minorities in Upper Silesia (Minority Schools) (1928) PCIJ, Series A 15; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932) PCIJ, Series A/B 44; and Minority Schools in Albania (1935) PCIJ, Series A/B 64.__________________________________________________________________ Revista de Direito da Cidade, vol.11, nº 1. ISSN 2317-7721 pp.597-620 613 Herzegovina v. Serbia (2007) 52 and Croatia v. Serbia (2015) 53 ; Georgia v. Russia (2011) 54 ; and Belgium v. Senegal (2009).Latest cases featuring a human rights dimension comprise Ukraine v. Russian Federation (submitted in 2017) 55 and Qatar v. United Arab Emirates (submitted in 2018) 36 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment: Dissenting Opinion of Judge Cançado Trindade) [2015] ICJ Rep 3, para.83. 37ation of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Judgment: Dissenting Opinion of Judge Cançado Trindade) [2015] ICJ Rep 3, para.123.__________________________________________________________________Revista de Direito da Cidade, vol.11, nº 1. ISSN 2317-7721 pp.597-620611CONCLUSIONNo doubt remains that the ICJ has played a significant role in the protection of GPG, in particular in the development of the international protection of human rights 41 .After a socalled first phase marked by 'hesitation and constraint', to borrow Simma's words, the ICJ has indeed become more concerned with human rights in recent years(SIMMA, 2013, pp.579-85).41