Elgar Companions to International Courts and Tribunals series
Chapter 10: The fundamental principles of the law of the ICJ
As for any tribunal, the ICJ’s procedure and process is dominated by certain general principles of overall reach, supplemented by a series of more specific rules dealing with various aspects of procedure. Among the most important of these are (i) the principles of equality of the parties during the proceedings, the proper administration of justice by the Court and that the Court decides only on the claims of the parties (ne eat judex ultra petita partium); (ii) the main principles in respect of the burden and sharing of proof; and (iii) the principle of good faith and its procedural effects. It is not possible to discuss all of these aspects in this introductory book. The aim of this chapter is rather to give a general sense of the operation of these principles. They reveal much about the way the Court is and behaves. We will address three issues here: equality of the parties, which is particularly important when dealing with sovereign states; the private law type of litigation at the Court, with its cardinal principle ne eat judex ultra petita partium; and the burden of proof and its legal consequences. The principle of equality of the parties is a fundamental principle of judicial proceedings. It is not confined to the procedure before the ICJ, but is of universal reach, and applies to all types of judicial and arbitral proceedings.
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