Jurisdiction of Specific International Tribunals

Jurisdiction of Specific International Tribunals

The Ottoman Empire and its Heritage Politics, Society and Economy

EDITORS BY

Suraiya Faroqhi and Halil Inalcik Associate Board

Firket Adanir • Idris Bostan • Amnon Cohen • Cornell Fleischer Barbara Flemming • Alexander de Groot • Klaus Kreiser Hans Georg Majer • Irène Mélikoff • Ahmet Ya ar Ocak Abdeljelil Temimi • Gilles Veinstein • Elizabeth Zachariadou

VOLUME 37

Jurisdiction of Specific International Tribunals By

Chittharanjan F. Amerasinghe Member, Institut de droit international; Former Judge, UN Administrative Tribunal, Judge, Commonwealth Secretariat Tribunal, Registrar, World Bank Administrative Tribunal, Full Professor and Honorary Professor of Law, University of Ceylon, Colombo, Fellow, Trinity Hall, Cambridge University, UK

LEIDEN • BOSTON 2009

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Amerasinghe, Chittharanjan Felix, 1933– Jurisdiction of specific international tribunals / By Chittharanjan F. Amerasinghe. p. cm. Includes index. ISBN 978-90-04-16238-9 (hardback : alk. paper) 1. Jurisdiction (International law) 2. International courts. 3. Arbitration, International. 4. International Court of Justice. 5. Permanent Court of International Justice. I. Title. KZ6265.A44 2009 341.5’52—dc22 2008040789

ISBN 978 90 04 16238 9 Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. PRINTED IN THE NETHERLANDS

CONTENTS Abbreviations Table of Cases CHAPTER 1

PROLOGUE

CHAPTER 2 THE PERMANENT COURT OF INTERNATIONAL JUSTICE AND THE INTERNATIONAL COURT OF JUSTICE: CONTENTIOUS JURISDICTION The Consent by the Parties (i) Consent in More than One Step Required (ii) Form of Consent (iii) The Relationship of Consent to Inherent Jurisdiction (iv) Parameters of Consent La Compétence de la Compétence Compétence to Settle Disputes A. The Judgment on Compétence and Res judicata B. Identifying Matters of Compétence C. Time for Raising Issues of Compétence D. Sources of Jurisdiction (i) Multiple Sources (ii) Validity in Time (iii) Termination of Validity E. Fundamental Limitations on the Scope of Primary Jurisdiction (i) The Need for a Dispute which is Legal (ii) The Requirement of an Interest (iii) Mootness or Absence of Object (iv) Constitution of the Court (v) The Rule in the Monetary Gold Case (vi) Conclusion F. Jurisdiction under the Optional Clause (i) The Content of Article 36(2) and (3)

xiii xix 1

11 11 14 17 19 20 22 33 36 37 38 39 39 41 42 43 44 48 48 50 50 55 55 58

vi

Contents (ii) Reciprocity (iii) Reservations (a) Content and Application of Reservations Ratione Materiae (b) Subjective Reservations (c) Reservations Ratione Temporis (iv) The Validity of Declarations and Reservations (v) Interpretation of Declarations and Reservations – Special Considerations G. Forum Prorogatum (i) General Considerations (ii) The Principle and its Evolution (iii) The Maturation of Consent or Agreement (iv) Procedure Evolved (v) Conclusion H. Exercise of Compétence and Discretion I. Proof of Compétence Recevabilité (Admissibility) (a) Grounds for Inadmissibility (i) General (ii) Nationality of Claims (iii) Exhaustion of Local Remedies (b) Waiver and Estoppel (i) Express Waiver (ii) Implied Waiver (iii) The Principles of Estoppel and Good Faith (c) Time for Raising Objections to Admissibility Incidental Jurisdiction A. Intervention (1) Consent of the Principal Parties (2) Other Requirements (3) Scope and Procedures

63 67 69 73 75 82 90 94 95 96 98 107 108 109 110 111 114 115 118 119 120 121 121 125 127 128 131 131 137 141

Contents B. Interim Measures (1) Basis of Jurisdiction (2) The Principles Underlying the Exercise of the Jurisdiction (3) The Legal Effect of Orders of Interim Measures Jurisdiction in Regard to Remedies Jurisdiction to Reopen Cases (1) Res Judicata and Finality (2) Review (3) Fraud and Corruption (4) Rectification (5) Interpretation CHAPTER 3 THE PERMANENT COURT OF INTERNATIONAL JUSTICE AND THE INTERNATIONAL COURT OF JUSTICE: ADVISORY JURISDICTION (A) The Limitation that Requests must be Within the Scope of an Organization’s Activities (B) The Requirement that the Question be Legal (i) Abstract or Political Nature (ii) Object and Purpose (iii) The Relevance of Hypothetical Answers (iv) Concrete Questions (v) Questions of Fact (C) Specific Terms of Reference (D) The Judicial Character of the Court (E) The Exercise of the Discretion to Give an Opinion: The Court’s Status as a Principal Organ (F) Jurisdiction to Reopen Advisory Opinions (i) Interpretation (ii) Revision (G) Advisory Opinions to Review UNAT and ILOAT Judgments

vii 144 145 152 160 164 178 178 186 189 190 191

199 205 216 216 220 221 222 222 225 225 236 242 242 243 245

viii

Contents

CHAPTER 4 OF THE

THE INTERNATIONAL TRIBUNAL SEA

FOR THE

LAW

The Dispute Settlement System of the 1982 Law of the Sea Convention Jurisdiction of the ITLOS in Contentious Cases (a) La Compétence de la Compétence (b) Compétence Ratione Personae (c) Compétence Ratione Materiae (d) Compétence Ratione Temporis (e) The Requirement of Consent (f ) Incidental Jurisdiction (i) Provisional Measures (ii) The “Prompt Release” Exception (iii) Intervention (g) Recevabilité (Admissibility) (h) Jurisdiction in Respect of Remedies (i) Reopening Cases ( j) The Special Jurisdiction of the Seabed Disputes Chamber (SBDC) CHAPTER 5 INTERNATIONAL ADMINISTRATIVE TRIBUNALS (1) Fundamental Considerations (2) Constitution of Tribunals (a) General (b) The Commonwealth Secretariat International Tribunal Case (3) Jurisdictional Competence (a) Compétence Ratione Temporis (b) Compétence Ratione Personae (c) Compétence Ratione Materiae (4) Irreceivabilty or Inadmissibility (a) Ratione Temporis (i) Mandatory Nature of Time-Limits (ii) Extension by Agreement between the Parties

255 255 270 270 270 272 272 273 275 275 279 282 282 292 294 295 299 299 303 303 311 315 315 316 321 326 326 326 328

Contents

ix

(iii) Exceptional Circumstances (iv) The Terminus a Quo (b) Other Reasons than Tempus (i) Insufficient Clarity of Grounds (ii) Agreement of Release (iii) Scope of Claims (iv) Exhaustion of Internal Remedies (v) Inappropriate Respondent CHAPTER 6

THE EUROPEAN COURT

OF

HUMAN RIGHTS

Introduction Matters Strictly of Compétence (1) Compétence Ratione Loci (2) Compétence Ratione Temporis (3) Restrictions on Acceptances of Jurisdiction Pursuant to Former Articles 25 and 46 (4) Compétence Ratione Personae (A) Inter-state Applications (B) Individual Applications (C) Passive Legitimation with Regard to Both Kinds of Applications (5) Compétence Ratione Materiae Matters of Admissibility Proper (1) The Application Must not be Anonymous (2) The Application Must not Constitute an Abuse of the Right of Complaint (3) The Application Must not be Substantially the Same as a Matter Which has Already been Examined by the Court (or Commission) or has Already been Submitted to Another Procedure of International Investigation or Settlement unless it Contains Relevant New Information (4) The Application Must not be Incompatible with the Provisions of the Convention (5) The Application Must not be Manifestly Ill-founded

329 330 331 331 332 333 334 337 339 339 343 343 345 346 348 348 351 364 368 371 371 372

375 379 381

x

Contents (6) Domestic Remedies Must have been Exhausted (a) Basic Considerations (b) The Relevance of the Direct Injury (c) Jurisdictional Connection (d) Scope of the Rule (e) Limitations on the Rule (f) Raising the Objection Based on Domestic Remedies (g) The Time at which Remedies Must be Exhausted (h) The Continuing Situation (i) The Burden of Proof (7) The Six-months Rule Interim Measures Remedies Reopening Cases Concluding Observations

416 417 419 419 424 425 426 430

CHAPTER 7 ARBITRAL TRIBUNALS OF THE INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

433

The International Centre for Settlement of Investment Disputes (ICSID) in Context Interpretation La Compétence de la Compétence Primary Jurisdiction (Compétence) (i) Consent (ii) Forum Prorogatum as Consent (iii) Compétence Ratione Materiae (iv) Compétence Ratione Personae Admissibility (Recevabilité) Incidental Jurisdiction – Provisional Measures Granting Remedies Reopening Cases

433 438 441 442 442 447 448 460 487 488 492 492

385 385 394 395 397 408 414

Contents

xi

CHAPTER 8 THE JUDICIAL TYPE BODIES TRADE ORGANIZATION

OF THE

WORLD

The WTO Dispute Settlement System (a) The Dispute Settlement Understanding (DSU) (b) The WTO Organs Involved in Dispute Settlement Jurisdiction of Panels and Appellate Body (a) La Compétence de la Compétence (b) Compétence Ratione Personae (c) Subject Matter and Related Jurisdiction (d) Jurisdiction on Appeal, and Scope of Review, of the Appellate Body (e) Jurisdiction Relating to Remedies for Breach of WTO Law (f) Incidental Jurisdiction (g) Reopening Cases CHAPTER 9 INDEX

EPILOGUE

505 505 505 514 523 523 524 535 549 555 558 558 561 565

ABBREVIATIONS ABA AD AFDI AIDI AJIL Am. UJILP Aust. LJ BIT Brooklyn JIL BYIL Calif. WILJ CE C.I.J. CLJ COE Coll. Com. e Studi CSAT D&R Dickinson JIL DRAMS DRC DSB DSR DSU EC ECHR ECJ EComHR ECOSOC ECR EEC

American Bar Association Annual Digest of International Law Cases Annuaire Français de Droit International Annuaire de l’Institut de droit international American Journal of International Law American University Journal of International Law and Policy Australian Law Journal Bilateral Investment Treaty Brooklyn Journal of International Law British Yearbook of International Law California Western International Law Journal Council of Europe Cours international de justice Cambridge Law Journal Council of Europe Collection of Decisions of EcomHR Communicazioni e Studi Commonwealth Secretariat Arbitral Tribunal Decisions and Reports of the EComHR Dickinson Journal of International Law Dynamic Random Access Memory Semiconductors Democratic Republic of Congo Dispute Settlement Body Dispute Settlement Reports (WTO) Dispute Settlement Understanding European Communities European Court of Human Rights European Court of Justice European Commission of Human Rights Economic and Social Council of the UN European Court Reports European Economic Community

xiv EHRR ELDO

Abbreviations

European Human Rights Reports European Space Vehicle Launcher Development Organization ELSI Elettronica Sicula S.p.A. ESRO European Space Research Organization EU European Union EURATOM European Atomic Energy Community European JIL European Journal of International Law FILJ Foreign Investment Law Journal FYBIL Finnish Yearbook of International Law GA General Assembly of the UN GATT General Agreement on Tariffs and Trade GATS General Agreement on Trade in Services German YBIL German Yearbook of International Law Hague Recueil see Hague Recueil Hague Recueil Recueil des Cours de l’Académie de droit international de la Hague Harv. ILJ Harvard Journal of International Law HRC Human Rights Committee HRJ Human Rights Journal IAT International Administrative Tribunal IBRD International Bank for Reconstruction and Development ICC International Criminal Court I.C.J. see ICJ ICJ Yearbook Yearbook of the International Court of Justice ICJ International Court of Justice ICLQ International and Comparative Law Quarterly I.C.S.I.D. see ICSID ICSID International Centre for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia IDA International Development Association IDBAT Inter-American Development Bank Administrative Tribunal

Abbreviations IFC IJIL ILC ILM I.L.O. ILO ILOAT ILQ ILR IMCO Iran–US CTR Italian YBIL ITLOS IYBIA J. Int’l Arb. JAB JDI JUNAT Leiden JIL LJIL LNT Mich. LR MNC NAFO NAFTA National LJ NATO Neth. Quarterly HR NGO Nordic JIL NYBIL NYJICL NYUJ Int. L & Politics

xv International Finance Corporation Indian Journal of International Law International Law Commission International Legal Materials see ILO International Labour Organization ILO Administrative Tribunal International Law Quarterly International Law Reports International Maritime Consultative Organization Iran–US Claims Tribunal Reports Italian Yearbook of International Law International Tribunal for the Law of the Sea Indian Yearbook of International Affairs Journal of International Arbitration Joint Appeals Board (UN) Journal de droit international Judgments of the UNAT Leiden Journal of International Law See Leiden JIL League of Nations Administrative Tribunal Michigan Law Review Multinational Corporation North Atlantic Fisheries Organization North American Free Trade Agreement National Law Journal North Atlantic Treaty Organization Netherlands Quarterly of Human Rights Non-Governmental Organization Nordic Journal of International Law Netherlands Yearbook of International Law New York Journal of International and Comparative Law New York University Journal of International Law and Politics

xvi OAPEC OAS OASAT Ocean Devel. & Int. L. OECD OEEC OJ OZOR PAHO PCIJ P.C.I.J. RBDI RDI RDILC Rev. Hellen. DI RGDIP RHDI Romanian JIL SBDC SC SCM Agreement SCM Agreement SG SPS Agreement Sydney LR TAM TBT Agreement

Abbreviations Organization of Arab Petroleum Exporting Countries Organization of American States OAS Administrative Tribunal Ocean Development and International Law Organization for Economic Cooperation and Development European Organization for Economic Cooperation Official Journal (EC) Österreich Zeitschrift für Öffentliches Recht Pan-American Health Organization Permanent Court of International Justice see PCIJ Revue Belge de Droit International Revue de droit international Revue de droit international et legislation compareé See RHDI Revue générale de droit international public Revie Hellenique de Droit International Romanian Journal of International Law Sea-Bed Disputes Chamber Security Council of the UN see SCM Agreement Agreement on Subsidies and Countervailing Measures Secretary General of the UN Agreement on the Application of Sanitary and Phytosanitary Measures Sydney Law Review Tribunaux Arbitrals Mixtes Agreement on Technical Barriers to Trade

Abbreviations

xvii

Texas ILJ Texas International Law Journal TRIMS Agreement Agreement on Trade-Related Investment Measures TRIPS Agreement Agreement on Trade-Related Aspects of Intellectual Property Rights U.Day.L.R. University of Daytona Law Review UCLA Law Review University College of Los Angeles Law Review UN United Nations (United Nations Organization) UNAT United Nations Administrative Tribunal UNCLOS United Nations Conference on the Law of the Sea UNESCO United Nations Educational, Scientific and Cultural Organization UNGA See GA UNIDROIT International Institute for the Unification of Private Law UNRIAA United Nations Reports of International Arbitral Awards UNSC United Nations Security Council UNTS UN Treaty Series USTR US Trade Representative WBAT World Bank Administrative Tribunal WHO World Health Organization WTO World Trade Organization YBECHR Yearbook of the ECHR YBILC Yearbook of the ILC ZAORV Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

TABLE OF CASES AAPL v. Sri Lanka 441 Acosta Andres, Azola Blanco and Véliz García (No. 2) 335 Aegean Sea Case: see Aegean Sea Continental Shelf Case Aegean Sea Continental Shelf Case 18, 90, 92, 176 Aegean Sea Continental Shelf Case (Provisional Measures) 146–7, 156–7 Aelvoet and Others 322 Aerial Incident (Israel v. Bulgaria): see Aerial Incident of 27 July 1955 Case Aerial Incident Cases 84–5, 108 Aerial Incident Cases of 1952, 1953 and 1954 108 Aerial Incident of 10 August 1999 Case 58, 70, 84–5 Aerial Incident of 10 August 1999 Case (Jurisdiction): see Aerial Incident of 10 August 1999 Case Aerial Incident of 19 March 1953 Case 108 Aerial Incident of 27 July 1955 Case 25, 57, 62, 73 Aerial Incident of 27 July 1955 Case (U.S.A. v. Bulgaria) 57, 74, 84 Affaire Losinger and Co.: see Losinger Case Agodo 301–2, 318 Agrotexim Hellas Case 360–1, 422 Airey: see Airey Case Airey Case 383, 392 Akdivar 374, 389, 409, 413, 419 Akdivar Case: see Akdivar Alex Genin et al. Case 493 Al Nashif Case 374 Ali Khan (No. 2) 333, 334, 335 Ali Khan (No. 4) 337 Allenet de Ribemont Case 430 Alonzo 325 Alvarez-Santuliano et al. 320 Ambatielos Arbitration 402 Ambatielos Case (Jurisdiction) 25, 97, 98, 104, 105, 106 Ambatielos Case (Merits) 176 Ambatielos Case (Obligation to Arbitrate) 100, 116–17, 176 Ambatielos Case (Preliminary Objections): see Ambatielos Case (Jurisdiction) Ambatielos Case: see Ambatielos Case (Obligation to Arbitrate) Ambatielos Claim: see Ambatielos Arbitration Ambrozy 324 Amco Arbitration: see Amco v. Indonesia Amco Arbitration (Resubmitted Case: Jurisdiction) 499, 500

xx

Table of Cases

Amco Case: see Amco v. Indonesia Amco v. Indonesia 439, 467, 468–70, 473–5, 476, 493, 494–5, 499–504 Amesz and Others 323 AMT Case 493 Ankarcrona Case 363 Angeolopoulos, Decision No. 78 325 Anglo-Iranian Oil Co. Case 12, 14, 43, 57, 64, 65–6, 70, 73, 81, 90, 92, 98, 101, 102, 104–5 Anglo-Iranian Oil Co. Case (Interim Protection) 146, 155–6, 158 Anglo-Iranian Oil Co. Case (Preliminary Objections): see Anglo-Iranian Oil Co. Case Anglo-Norwegian Fisheries Case 174 Annulment Case: see Amco Case Antal 318 Antarctica Cases 108 Application for Review of Judgment No. 158 of the UNAT Opinion: see Judgment No. 158 Opinion Application for Revision and Interpretation Case 12, 192 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf: see Application for Revision and Interpretation Case Application for Revision and Review Case: see Tunisia/Libya Continental Shelf Case (Revision) Application for Revision Case: see Application for Revision and Review Case Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras) 189 Application of the Genocide Convention Case (Preliminary Objections): see Bosnia Genocide Case (Preliminary Objections) Appl. 62/55, X v. FRG 364 Appl. 62/55, X v. Federal Republic of Germany: see Appl. 62/55, X v. FRG Appl. 99/55, X v. Federal Republic of Germany 353–4 Appl. 100/55, X v. FRG 359 Appl. 113/55, X v. FRG 359 Appl. 115/55, X v. FRG 405 Appl. 176/56, Greece v. UK: see Appls. 176/56 and 229/57, Greece v. UK Appl. 202/56, X v. Belgium 375 Appl. 214/56, De Becker v. Belgium 345, 381, 382, 399, 411, 419, 422 Appl. 214/56, De Becker Case: see Appl. 214/56, De Becker v. Belgium Appl. 222/56, X v. FRG 411 Appl. 225/56, X v. FRG 401–2 Appl. 235/56, X v. FRG 345 Appl. 244/57, X v. FRG 373

Table of Cases

xxi

Appl. 250/57 380 Appl. 262/57, X v. Czechoslovakia 364 Appl. 263/57, X v. FRG 403 Appl. 297/57, X v. FRG 400–1, 411 Appl. 299/57, Greece v. UK: see Appl. 299/57, Second Cyprus Case, Greece v. UK Appl. 299/57, Second Cyprus Case, Greece v. UK 399, 408, 412 Appl. 302/57, (unpublished) 398 Appl. 332/57, Lawless v. Ireland 372, 379, 381, 399, 400, 410 Appl. 343/57, Schouw Nielsen v. Denmark 345, 389, 397, 398, 406, 407, 411, 421 Appl. 343/57, Nielsen v. Denmark: see Appl. 343/57, Schouw Nielsen v. Denmark Appl. 343/57: see Appl. 343/57, Schouw Nielsen v. Denmark Appl. 352/58, X v. FRG 402 Appl. 361/58, X v. Ireland 371 Appl. 434/58, X v. Sweden 405 Appl. 458/59, X v. Belgium 399 Appl. 473/59, X v. Austria 342 Appl. 493/59, X v. Ireland 397, 401 Appl. 499/59, X v. FRG 376 Appl. 512/59, X v. Belgium 420 Appl. 524/59 391 Appl. 556/59, X v. Austria 382–3 Appl. 568/59, X v. FRG 411 Appl. 596/59, Petaki Case 382 Appl. 613/59, X v. Belgium 423 Appl. 627/59, X v. FRG 403 Appl. 645/59 420 Appl. 645/59, X v. FRG: see Appl. 645/59 Appl. 704/60, X v. FRG 411 Appl. 712/60, Retimag v. FRG: see Appl. 712/60, Retimag S.A. v. FRG Appl. 712/60, Retimag S.A. v. FRG 381, 409, 416 Appl. 722/60, X v. FRG 405 Appl. 788/60, Austria v. Italy 345, 348–9, 350, 385, 387, 392, 394, 401, 404, 410, 412 Appl. 852/60, X v. FRG 365 Appl. 867/60, X v. Norway 354 Appl. 898/60, Y v. Austria 359 Appl. 918/60, X v. FRG 399, 406, 421 Appl. 945/60, X v. FRG 402 Appl. 968/61, X v. FRG 410, 420 Appl. 1053/61, X v. Austria 406

xxii

Table of Cases

Appl. 1086/61, X v. FRG 400 Appl. 1103/61, X v. Belgium 403 Appl. 1135/61, X v. Austria 400 Appl. 1192/84, Moution v. France 400 Appl. 1216/61, X v. FRG 420 Appl. 1234/61, X v. Austria 405–6 Appl. 1270/61, Ilse Koch v. FRG 373 Appl. 1452/62, X v. Austria 342, 370, 383 Appl. 1468/62, Iversen v. Norway 372, 383–4, 423 Appl. Appl. 1468/62, X v. Norway: see Appl. 1468/62, Iversen v. Norway Appl. 1474/62, 23 Inhabitants of Alsemberg and of Beersel v. Belgium: see Inhabitants of Alsemberg and of Beersel v. Belgium Appl. 1478/62, Y v. Belgium 359 Appl. 1611/62, X v. FRG 362 Appl. 1706/62, X v. Austria 360, 366 Appl. 1727/62, Boeckmans v. Belgium 416 Appl. 1739/62, X v. Sweden 399, 400, 407, 421 Appl. 1936/63, Neumeister v. Austria 408 Appl. 1965/61, X v. Belgium 343–4 Appl. 1983/63, X v. The Netherlands 353 Appl. 1994/63, Inhabitants of Louvain and Environs v. Belgium 414–15 Appl. 2002/63, X v. Norway 402, 405 Appl. 2095/63, X v. Sweden, FRG and Other States 405 Appl. 2201/64, X v. FRG 400 Appl. 2257/64, Soltikow v. FRG 400 Appl. 2322/64, X v. Belgium 405 Appl. 2333/64, Inhabitants of Leeuw-St. Pierre v. Belgium 383 Appl. 2358/64, X v. Sweden 358 Appl. 2366/64, X v. FRG 402 Appl. 2370/64, X v. Austria 400 Appl. 2413/65, X v. FRG 365 Appl. 2547/65, X v. Austria 373, 415 Appl. 2614/65, Ringeisen v. Austria 171, 400, 401, 403–4 Appl. 2686/65, Kornmann v. FRG 408 Appl. 2689/65, Delcourt v. Belgium 404–5 Appl. 2694/65, X v. FRG 420–1 Appl. 2854/66, X and Y v. Austria 399–400, 402 Appl. 2991/66 391 Appl. 3001/66, X v. Austria 403 Appl. 3059/67, X v. UK 367 Appl. 3071/67, X v. Sweden 423 Appl. 3505/68, X v. UK 406, 407, 420 Appl. 3591/68, X v. Austria 421

Table of Cases

xxiii

Appl. 3651/68, X v. UK 409 Appl. 3780/68, X v. Belgium 375–6, 376 Appl. 3788/68, X v. Sweden 401 Appl. 3789/68, X v. Belgium 367 Appl. 3798/68, Church of X v. UK 372 Appl. 3893/68, X v. Sweden 407, 421 Appl. 3897/68, X and Y v. FRG 402 Appl. 3972/69, X v. Austria 400, 405, 407, 421 Appl. 3979/69, X v. FRG 407 Appl. 4046/69, X v. FRG 400 Appl. 4125/69, X v. Ireland 368, 401 Appl. 4149/69, X v. FRG 423 Appl. 4256/69, X v. FRG 376 Appl. 4311/69, X v. Denmark 399, 407, 421 Appl. 4319/60, Samer v. FRG 403 Appl. 4340/69, Simon-Herold v. Austria 401 Appl. 4445/70, X v. FRG 400 Appl. 4448/70, Denmark, Norway and Sweden v. Greece 346, 349, 412 Appl. 4448/70, Second Greek Case, Denmark, Norway, Sweden v. Greece: see Appl. 4448/70, Denmark, Norway and Sweden v. Greece Appl. 4451/70, Golder v. UK 385–6 Appl. 4464/70, Syndicat National de la Police Belge v. Belgium 397 Appl. 4475/70, Lotsförbundet v. Sweden: see Appl. 4475/70, X v. Sweden Appl. 4475/70, Svenska Lotsfoörbundet v. Sweden: see Appl. 4475/70, X v. Sweden Appl. 4475/70, X v. Sweden 401, 405, 421 Appl. 4511/70, X v. Austria 400 Appl. 4515/70, X and the Association of Z v. UK 367 Appl. 4517/70, Huber v. Austria 376, 422 Appl. 4653/70, X v. Federal Republic of Germany 353 Appl. 4771/71, Kamma v. The Netherlands 401, 403 Appl. 4859/71, X v. Belgium 407 Appl. 5006/71, X v. UK 401 Appl. 5029/71, Klaas v. FRG: see also Klaas Case 354 Appl. 5095/71, Kjeldsen v. Denmark: see Appl. 5095/71, V and A. Kjeldsen v. Denmark Appl. 5095/71, V and A. Kjeldsen v. Denmark 357, 409–10, 413 Appl. 5172/71, X v. FRG 400 Appl. 5207/71, Raupp v. FRG 373 Appl. 5310/71, Ireland v. UK: see Appls. 5310/71 and 5451/72 Appl. 5442/72, X v. UK 384 Appl. 5560/72, X v. Austria 403, 407, 421 Appl. 5920/74, Busk Madsen v. Denmark 413

xxiv

Table of Cases

Appl. 5926/72, Pedersen v. Denmark 413 Appl. 6049/73, X v. FRG 399 Appl. 6181/73, X v. FRG 422 Appl. 6231/73, Ilse Hess v. UK 344 Appl. 6242/73, Brückmann v. FRG 399 Appl. 6317/73, X v. Austria 422 Appl. 6452/74, Sacchi v. Italy 378 Appl. 6701/74, X v. Austria 408 Appl. 6821/74, Huber v. Austria 376 Appl. 6832/74, X v. Sweden 375 Appl. 6878/75, Le Compte v. Belgium 376 Appl. 6930/75, X v. Norway 423 Appl. 6956/75, X v. UK 365 Appl. 6959/75, Brüggemann and Scheuten v. FRG 354 Appl. 7011/75, Becker v. Denmark 359, 408 Appl. 7045/75, X v. Austria 354 Appl. 7049/73, X v. FRG 355 Appl. 7230/75, X v. the Netherlands 344 Appl. 7238/75, Van Leuvan and De Meyere v. Belgium 376 Appl. 7438/76, Ventura v. Italy 411 Appl. 7465/76, X v. Denmark 408 Appl. 7467/76, X v. Belgium 359 Appl. 7601/76, Young and James v. UK 367 Appl. 7629/76 423 Appl. 7640/76, Greece v. Switzerland 382 Appl. 7742/76, A.B. & Company A.S. v. Federal Republic of Germany 345 Appl. 7743/76, J.Y. Cosans v. UK 366 Appl. 7806/77, Webster v. the United Kingdom 354 Appl. 7826/77, X v. UK 361 Appl. 8007/77, Cyprus v. Turkey 350 Appl. 8030/77, Confederation Française Démocratique du Travail v. European Communities 364 Appl. 8206/78, X v. UK 375 Appl. 8233/78, X v. UK 376 Appl. 8261/78, X v. Italy 346 Appl. 8282/78, Church of Scientology v. Sweden 352 Appl. 8290/78, A, B, C and D v. FRG 362 Appl. 8307/78, De Klerck v. Belgium 357 Appl. 8317/78, McFeeley v. UK 372 Appl. 8416/78, X v. the United Kingdom 354 Appl. 8435/78, Orchin v. UK 411 Appl. 8440/78, Christians against Racism and Fascism Case 421 Appl. 8701/79, X v. Belgium 345

Table of Cases

xxv

Appl. 8858/80, G v. FRG 361 Appl. 8865/80, Verband Deutscher Flugleiter and Others v. FRG 361 Appl. 8961/80, X v. FRG 409 Appl. 9013/80, Farrell v. UK 397, 401 Appl. 9013/80, The Farrell Case: see Appl. 9013/80, Farrell v. UK Appl. 9028/80, X v. FRG 377 Appl. 9107/80, G v. Belgium 413 Appl. 9174/80, Zamir v. UK 408 Appl. 9266/81, Yarrow P.L.C. and Others v. UK: see Yarrow Case Appl. 9320/81, D v. FRG 352–3, 359 Appl. 9348/81, W v. UK 359 Appl. 9360/81, W v. Ireland 359 Appl. 9471/81, X and Y v. UK 413 Appl. 9578/81, X v. France 346–7 Appl. 9621/81, Vallon v. Italy 376 Appl. 9639/82, B, R and J v. FRG 359 Appl. 9697/82, J and Others v. Ireland 357, 408 Appl. 9742/82, X v. Ireland 373 Appl. 9908/82, X v. France 421 Appl. 9990/82, Bozano v. France 346–7 Appl. 9991/82, Bozano v. Italy 421 Appl. 10039/82, Leigh and Others v. the United Kingdom 354 Appl. 10078/82, M v. France 400 Appl. 10092/82, Baraona v. Portugal 361 Appl. 10103/82, Farragut v. France 361 Appl. 10230/82, X v. Sweden 421 Appl. 10243/83, Times Newspapers Ltd. and Others v. the United Kingdom 352, 354–5, 375 Appl. 10308/83, Altern v. FRG 421 Appl. 10400/83, Z v. The Netherlands 400 Appl. 10479/83: see Kirkwood Case Appl. 10799/84, Radio X, S, W & A v. Switzerland 355 Appl. 10899/84, C v. Italy 421 Appl. 10983/84, Confédération des Syndicats Medicaux Français and Fédération Nationale des Infirmiers v. France 372 Appl. 11533/85, Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden 352 Appl. 11603/85, Council of Civil Service Unions and Others v. UK 378 Appl. 11921/86, Verein Kontakt Information Therapie and Hagen v. Austria 352 Appl. 12945/87, Hatjianastasiou v. Greece 389 Appl. 13013/87: see Wasa and Others v. Sweden Appl. 13134/87, Costello-Roberts v. UK 356

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Table of Cases

Appl. 13156/87, Byrn v. Denmark 361 Appl. 13284/87, M v. UK 373 Appl. 13365/86, Ajinaja v. UK 375 Appl. 13524/88, F v. Spain 373 Appl. 14056/88, Aarts Case 421 Appl. 14229/88, Y v. UK 366 Appl. 14461/88, Chavé née Julien v. France 419 Appl. 14524/89, Yanasik v. Turkey 347 Appl. 14807/89, Agrotexim Hellas S. A. v. Greece: see Agrotexim Hellas Case Appl. 15070/89, Modinos v. Cyprus 357 Appl. 15090/89, Ayuntamiento M. v. Spain 352 Appl. 15213/89, M v. Belgium 419 Appl. 15404/89, Purcell v. Ireland 353, 384 Appl. 16358/90, Cereceda Martin and Others v. Spain 378 Appl. 16839/90, Remli v. France 401 Appl. 17004/90, Hercz v. Norway 354 Appl. 17262/90, A v. France 358 Appl. 17512/90, Calcerrada Fornielles and Cabeza Mato v. Spain 377 Appl. 17599/90, Kelly v. UK 419 Appl. 17669/91, Van Laak v. The Netherlands 362 Appl. 19217/91, Durini v. Italy 365 Appl. 19373/92, Voulfovitch and Oulianova v. Sweden 358 Appl. 21090/92, Heinz v. Contracting States also Parties to the European Patent Convention 365 Appl. 21782/93, Raif v. Greece 372 Appl. 21962/93, A.D. v. The Netherlands 376 Appl. 21987/93, Aksoy v. Turkey 372, 413 Appl. 21987/93, Aksoy Case: see Appl. 21987/93, Aksoy v. Turkey Appl. 22564/93, Greece v. UK 364 Appl. 25781/94, Cyprus v. Turkey 350 Appl. 35605/97, Kingsley v. United Kingdom 426, 428 Appls. 176/56 and 299/57, Greece v. UK 350, 412 Appls. 3321–3323/67, 3344/67, First Greek Case, Denmark, Norway, Sweden, the Netherlands v. Greece: see Appls. 3321–3323 and 3334/67, Denmark, Norway, Sweden, the Netherlands v. Greece Appls. 3321–3323/67 and 3334/67, Denmark, Norway, Sweden and the Netherlands v. Greece 349, 374, 413, 422 Appls. 5070, 5171, 5186/71, X v. FRG 373 Appls. 5310/71 and 5451/72, Ireland v. the United Kingdom 350, 412 Appls. 5351/72 and 6579/74, X v. Belgium 364 Appls. 5577–5583/72, Donnelly and Others v. UK: see Appls. 5577/72–5583/72, Donnelly et al. v. the United Kingdom

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xxvii

Appls. 5577/72–5583/72, Donnelly et al. v. the United Kingdom 353, 376, 377, 408, 413 Appls. 5767/72, 5922/72, 5929–5931/72, 5953–5957/72, 5984–5988/73 and 6011/73, Austrian Municipalities v. Austria 352 Appls. 6780/74 and 6950/75, Cyprus v. Turkey 349, 350, 351, 374 Appls. 7289/75 and 7349/96, X v. Switzerland: see Appls. 7289/75 and 7349/76, X and Y v. Switzerland Appls. 7289/75 and 7349/76, X and Y v. Switzerland 344, 372 Appls. 8022/77, 8025/77, 8027/77, McVeigh, O’Neill and Evans v. UK 409 Appls. 8348 and 8406/78 379–80 Appls. 8348 and 8406/78, Glimmerveen and Hagenbeek Case: see Appls. 8348 and 8406/78 Appls. 8560/79 and 8613/79, X and Y v. Portugal 345 Appls. 8805/79 and 8806/79, the De Jong and Baljet Case 400, 401 Appls. 9214/80, 9473/81 and 9474/81, the X, Cabales and Balkandali Case 359 Appls. 9362/81, 9363/81, 9387/81, Van der Sleuijs, Zuiderveld and Klappe v. The Netherlands 400 Appls. 9940–9944/82, France, Norway, Denmark, Sweden and the Netherlands v. Turkey 349, 350, 382 Appls. 15299/89, 15300/89 and 15318/89, Chrysostomos, Papachrysostomos and Loizidou v. Turkey 347, 349 Appls. 17550/90 and 17825/90, V and P v. France 358 Arbitral Award Made by the King or Spain on 23 December 1906: see Arbitral Award of the King of Spain Case Arbitral Award of the King of Spain Case 67 Arbitral Award of 31 July 1989 Case 58, 69, 167–8 Arbitral Award of 31 July 1989 Case (Provisional Measures) 158 Argentina – Poultry 535, 542 Argentina – Preserved Peaches 548 Armed Activities (DRC v. Rwanda) Case 40, 102 Armed Activities on the Territory of the Congo (Rwanda) Case (Provisional Measures) 13 Armed Activities on the Territory of the Congo (Uganda) 147 Armed Activities on the Territory of the Congo (Uganda) (Provisional Measures) 148 Armed Activities on the Territory of the Congo Case (New Application, DRC v. Rwanda) 147–8 Armed Activities on the Territory of the Congo Case (Rwanda): see Armed Activities (DRC v. Rwanda) Case Arrest Warrant of 11 April 2000 Case 47, 49, 175, 177 Arrest Warrant of 11 April 2000 Case (Provisional Measures) 148, 158 Asmussen and Others 332

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Table of Cases

Asylum Case 132, 177, 181–2, 184 Asylum Case (Interpretation) 182, 184, 191, 192–3, 453 Australia – Automotive Leather II (Article 21.5 – US) 549, 557–8 Australia – Salmon 548, 551 Australia – Salmon (Article 21.5 – Canada) 526, 554 Austria v. Italy: see Appl. 788/60, Austria v. Italy A.V. v. Bulgaria 363 Aydin and 10 Others Case 363 Azurix Corp. Case 467, 487 Barcelona Traction Co. Case 119, 480 Barcelona Traction Company Case (Preliminary Objection) 40, 179 Barcelona Traction Co. Case (Preliminary Objection): see Barcelona Traction Company Case (Preliminary Objection) Bauer 326 Baumann Case 417 Bauta y Delgado 324 Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. Case 449–50 Beck Case 363 Beelen 331 Belchamber 322 Belfiore 327 Belgian Linguistics Case 386 Berti 321 Bland Case 363 Bohn and Others 319 Border and Transborder Actions Cases 58 Border and Transborder Armed Actions Case 47, 49, 130 Border and Transborder Armed Actions Case (Jurisdiction and Admissibility) 47, 48, 58, 116 Bosnia Genocide Case 37, 105, 181, 189 Bosnia Genocide Case (Further Provisional Measures) 105–6, 154, 158 Bosnia Genocide Case (Provisional Measures) 40, 151, 154, 155, 156, 157, 158, 163 Bosnia Genocide Case (Preliminary Objections) 25, 61, 98, 102, 106, 181 Bosnia Genocide Convention Case (Provisional Measures): see Bosnia Genocide Case (Provisional Measures) Bosnia Genocide Convention Case (Provisional Measures), Order of 8 April 1993: see Bosnia Genocide Case (Provisional Measures) Bosnia Genocide Convention Case (Provisional Measures), Order of 13 September 1993: see Bosnia Genocide Case (Further Provisional Measures) Bourgaux 301 Bouvaist-Hayes 316

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xxix

Bowman Case 363 Bozano Case 419 Branckaert 336 Brazil – Desiccated Coconut 542, 543 Breard Case: see Breard Case, Order Breard Case (Provisional Measures): see Breard Case, Order Breard Case, Order 148, 156, 158 Breuckmann 335 Brisco 302 Brückmann v. FRG: see Appl. 6242/73, Brückmann v. FRG Brüggeman and Scheuten (1978) 354 Brunetti and Others 322 Burdov Case 363 Burey 316 Buscarini v. San Marino 374, 411, 423 Byrn v. Denmark 362 Cajella Case 404 Calabro Case 365 Camouco Case: see The “Camouco” Case Campbell and Cosans Case 356, 366 Camuzzi International S.A. Case 460, 485 Canada – Aircraft 510 Canada – Aircraft (Article 21.5 – Brazil) 553 Canada – Autos 547 Canada – Periodicals 550, 553, 554 Canada – Wheat Exports and Grain Imports 548 Caraher Case 364 Cardot Case 401, 409 Casado Case 488, 491 Case 155/73, Sacchi 378 Case Concerning Land Reclamation by Singapore in and around the Straits of Johore 278 Case Concerning Land Reclamation by Singapore in and around the Straits of Johore, Order 270, 276 Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean: see Swordfish Case Case Concerning the Arbitral Award of 31 July 1989 147 Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria: see Land and Maritime Boundary between Cameroon and Nigeria Case Castro 302, 322 Cayuga Indians (G.B. v. U.S.A.) 464

xxx

Table of Cases

CDI Holding Aktiengeschellschaft and Others Case 363 Çelik Case 422 Celikbilek Case 363 Certain Criminal Proceedings Case 102, 157–8 Certain Criminal Proceedings in France Case: see Certain Criminal Proceedings Case Certain Criminal Proceedings in France Case (Provisional Measures): see Certain Criminal Proceedings Case Certain Property Case 34, 45, 46, 48 Certain Questions of Mutual Assistance Case 13, 98, 103 Chad/Libya Territorial Dispute Case 54 Champion Trading Company Ameritrade International Inc. et al. Case 467 Charbonnieras 321 Chen (No. 2) 318 Chile – Price Band System 543, 548, 553 Chisman and Others 323 Chorzów Factory (Jurisdiction) Case 124, 125, 167, 169, 171, 174 Chorzów Factory Case 154, 185 Chorzów Factory Case (Interpretation) 180, 185, 191, 194, 196, 197 Chorzów Factory Case (Merits) 97, 170–1 Christian Federation of Jehovah’s Witnesses Case 363 Ciobanu Case 353 Cisneros 316 Civet Case 400 Compagnie d’electricite de Sofia et Bulgaria Case: see Electricity Company of Sofia and Bulgaria Case Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of Employers: see Personal Work of Employers Opinion Construction of the Wall Opinion 217–18, 220–1, 223–5, 232–3, 241–2 Cook et al. 301 Corfu Channel Case 25, 40, 130, 171–2, 181, 184 Corfu Channel Case (Compensation) 36–7, 181, 184 Corfu Channel Case (Merits): see Corfu Channel Case Corfu Channel Case (Preliminary Objection) 12, 14–15, 17, 98–100, 101, 102, 103, 105, 130 Costello-Roberts Case 367 Crapon de Caprona 324 Cruz Varas Case 424 Culmsee and Others 337 Cuvillier and Others 323 Cyprus v. Turkey: see Appls. 6780/74 and 6950/75, Cyprus v. Turkey

Table of Cases Da 322 Damon and Lhoest 321 Dankevich Case 419 Danzenbrink 317 Danzig Legislative Decrees Opinion 203 Darricades 300 Dayan 333 De Becker Case: see Appl. 214/56, De Becker v. Belgium De Becker v. Belgium: see De Becker Case de Bruyn 322 de Dapper and Others 321 de Jorio Case 411 de la Pradelle Case 409 de Merode 303, 323 de Peganow 322, 329 Decision No. 4 (ESRO) 327 Decision No. 5 (ESRO) 327 Decision No. 5 (NATO) 317 Decision No. 10 (ELDO) 320 Decision No. 12 (ELDO) 320 Decision No. 12 (OEEC) 303 Decision No. 13 (OEEC) 317 Decision No. 32 (ESRO) 319, 320 Decision No. 33 (ESRO) 327, 329 Decision No. 36 (NATO) 323 Decision No. 53(a) (NATO) 317 Decision No. 78 (OECD) 315 Decision No. 97 (NATO) 330 Decision No. 169(b) (NATO) 323 Decision No. 206 (NATO) 302 Degreef 334 Delbez and Others 326 Delcourt v. Belgium: see Appl. 2689/65, Delcourt v. Belgium Denizci Case 411 Denizov Case 411 Derkach and Palek Case 368 Deshormes 336 Desplanque 327, 328 Diallo Case (Preliminary Objections) 26, 119 DIC of Delaware, et al. Case 117 Difference Relating to Immunity Opinion 202–3, 237 Diversion of Waters from the Meuse Case 152

xxxi

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Djavit 397 Dogan and Others Case 404, 419, 421 Donnelly and Others v. UK 124 Dores and Silveira v. Portugal 361 Doubtfire Case 363 Drozd and Janousek 344, 345 Duberg etc. 322 Duringer Case 374 East African Asians Cases 363 East Timor Case 12, 45, 46, 52–3, 58, 61 Eastern Carelia Opinion 11, 226–7, 228, 232, 234, 235 EC – Asbestos 510, 527–9, 538, 553, 554 EC – Bananas III 533, 534–5, 538 EC – Chicken Cuts 510 EC – Computer Equipment 510 EC – Export Subsidies on Sugar 546, 548 EC – Hormones 544–5, 549–50, 551, 553 EC – Poultry 545, 553 EC – Sardines 531–3 EC – Selected Customs Matters 543, 549, 553 EC – Tube or Pipe Fittings 542 Edgar Protiva, et al. Case 117 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Opinion: see Effect of Awards Opinion Effect of Awards of Compensation Opinion: see Effect of Awards Opinion Effect of Awards Opinion 22–3, 25, 187, 300, 301, 307–10 Einthoven 301, 323 El Paso Energy International Company Case 451, 460 Electricity Company of Sofia and Bulgaria Case 23, 26, 40, 57, 62, 64, 65, 77, 79 Electricity Company of Sofia and Bulgaria Case, Order: see Electricity Company of Sofia and Bulgaria Case (Provisional Measures) Electricity Company of Sofia Case (Preliminary Objections): see Electricity Company of Sofia and Bulgaria Case Electricity Company of Sofia and Bulgaria Case (Provisional Measures) 153, 158, 161 Electricity Company of Sofia Case: see Electricity Company of Sofia and Bulgaria Case Elettronica Sicula S.p.A. (ELSI) Case 122, 126 El-Far 335 Elle 322 Engel: see Engel Case

Table of Cases Engel Case 379 Englert 397 European Commission on the Danube Opinion 209 Exchange of Greek and Turkish Populations Opinion

xxxiii

203

Factory at Chorzów, Jurisdiction: see Chorzów Factory (Jurisdiction) Case Factory at Chorzów, Merits: see Chorzów Factory Case (Merits) Farcot and Others 320 Farrall 331 Fasla 248 Finnish Ships Arbitration 402 First Admissions Opinion 200, 204, 217, 218–20, 456, 457 First Cyprus Case: see Appl. 176/56, Greece v. UK First Greek Case: see Appls. 3321–3323/67, 3344/67, Denmark, Norway, Sweden, the Netherlands v. Greece Fisheries Case 57 Fisheries Jurisdiction Case (1998) 58, 63, 68–9, 71, 90–4, 110 Fisheries Jurisdiction (UK v. Iceland) Case (Jurisdiction) 25, 146 Fisheries Jurisdiction (Germany v. Iceland) Case 172–3 Fisheries Jurisdiction (Spain v. Canada) Case (Jurisdiction) 26 Fisheries Jurisdiction Case: see Fisheries Jurisdiction (Spain v. Canada) Case (Jurisdiction) Fisheries Jurisdiction Cases (Interim Protection) 155–6, 157 Fisheries Jurisdiction Cases (Jurisdiction of the Court) 43 Flegenheimer Claim (U.S.A. v. Italy, 1958) 464–5 Fournier d’Albe (No. 2) 322 Free Zones Case 174, 438 Free Zones of Upper Savoy and the District of Gex Case: see Free Zones Case Freeman (No. 2) and Malcolm (No. 2) 321 Frontier Dispute (Burkina Faso/Mali) Case: see Frontier Dispute Case Frontier Dispute Case 54, 130 Frontier Dispute Case (Burkina Faso/Mali) (Provisional Measures) 158 Gabčikovo-Nagyrnoros Project Case 130, 168 Gamble 332 García and Márquez 336 Gayduk Case 363 German Interests in Polish Upper Silesia Case (1925) 23, 78, 123–4, 455 German Interests in Polish Upper Silesia Case (1926): see German Interests in Polish Upper Silesia Case (Merits) German Interests in Polish Upper Silesia Case (Jurisdiction): see German Interests in Polish Upper Silesia Case German Interests in Polish Upper Silesia Case (Merits) 244, 458

xxxiv

Table of Cases

German Settlers in Poland Opinion 204, 244 Giannini 320 Giroud (No. 2) and Lovrecich 323 Glimmerveen and Hagenbeck Case: see Appls. 8348 and 8406/78 Glorioso (No. 2) 336 Golder v. UK: see Appl. 4451/70, Golder v. UK Golder v. UK (ECHR) 386–7 Gomez 317 Graneros 322 Graselli 320 Great Belt Case (Provisional Measures): see Great Belt Case, Order Great Belt Case, Order 154, 155, 158 Groppera Radio AG Case 354, 360 Grover 317 Guano Case 172 Guardianship of Infants Convention Case 73, 176 Guatemala – Cement I 514 Guatemala – Cement II 538 Gubin and Nemo 337 Gulf of Maine Case 54, 130 Gulsen and Haul Yasin Ketenoglu Case 363 Guyon and Nicolas 327 Guzzardi Case 401 Hamaidi Case 364 Harrington and Associates, Inc. Case 117 Hasan v. Bulgaria 415 Haya de la Torre Case 37, 98, 100–1, 103, 105, 129, 132, 137, 183–4 Hayward 324 Hebrant 320 Hentrich Case 430 Herpels 337 Herzegfalvy Case 351 Hibbert Case 363 Hill and Others 329 Hill Case 378 Hilpern 318 Holidays Inns Arbitration 468, 472, 474 Horst Pürfurst Case 448 Hostages Case 47, 48, 61, 173, 174, 175 Hubeau 180 Humblet 317 Hunt 326

Table of Cases

xxxv

I.C.J. Reports 1984: see Libya/Malta Continental Shelf Case I.J.L. v. the UK 378 I.S. v. Bulgaria 374 Iatridis Case 423 Icelandic Fisheries Jurisdiction Case: see Fisheries Jurisdiction (UK v. Iceland) Case (Jurisdiction) Ido 336 Ilascu Case 364 Ilhan Case 363 ILOAT Judgments Opinion: see Judgments of the I.L.O. Administrative Tribunal Opinion Ilse Koch Case: see Appl. 1270/61, Ilse Koch v. FRG IMCO Opinion 204, 222 Impreglio S.p.A. Case 452 India – Patents (US) 523, 547 India – Quantitative Restrictions 536–7, 551 Inhabitants of Alsemberg and of Beersel v. Belgium 402, 422 Interhandel, Judgment: see Interhandel Case Interhandel Case 25, 26, 27, 35, 47, 66, 67, 69, 71–2, 73, 75, 81–2, 84, 85–6, 121, 122, 124, 126, 176, 454 Interhandel Case (Interim Protection) 147, 154, 158 Interhandel Case (Preliminary Objections): see Interhandel Case International Institute of Agriculture v. Profili 310 International Technical Products Corp., et al. Case 117 Interpretation of Judgments Nos. 7 and 8 (Factory At Chorzów): see Chorzów Factory Case (Interpretation) Interpretation of the Greco-Bulgarian Agreement (1927) Opinion 203 Interpretation of the Greco-Turkish Agreement Opinion 204 Interpretation of the Peace Treaties Opinion: see Peace Treaties Opinion Interpretation of the Statute of the Memel Territory Case 184 Interpretation of the Treaty of Lausanne Opinion 94 Inze Case 362–3 Iranian Hostages Case: see Hostages Case Iranian Hostages Case (Interim Measures) 153 Iran-United States Case No. A/18 38 Ireland v. United Kingdom 349 Iverseen Case: see Appl. 1468/62, Iverseen v. Norway Jan Mayen Case 54, 58, 62 Jansen Case 363 Japan – Agricultural Products II 545, 548, 553 Japan – Alcoholic Beverages II 509, 510 Japan – Film 533, 538

xxxvi

Table of Cases

Jarwozina Opinion 203 Joaquin and Navarette 317 Judgment No. 158 Opinion 248, 250, 251–2, 301, 322–3 Judgment No. 273 of the UNAT Opinion 227, 246, 248, 250–3 Judgment No. 273 Opinion: see Judgment No. 273 of the UNAT Opinion Judgment No. 333 of the UNAT Opinion 246, 248, 251, 253–4 Judgment No. 333 Opinion: see Judgment No. 333 of the UNAT Opinion Judgments of the Administrative Tribunal of the I.L.O. Opinion: see Judgments of the I.L.O. Administrative Tribunal Opinion Judgments of the I.L.O. Administrative Tribunal Opinion 25, 26, 34, 38, 204, 222, 225, 227, 233–4, 237–8, 248, 249–50, 299, 300, 318, 322, 324 Judgments of the ILOAT Opinion: see Judgments of the I.L.O. Administrative Tribunal Opinion Jurado (No. 10) 322 Jurisdiction Case: see Amco Case Justin 317, 319 Kahal 318, 324 Kahale 336 Kahane Case 463, 464 Kahane (Successor) v. Parisi and the Austrian State: see Kahane Case Kaplan 360 Kasikili/Sedudu Island Case 167 Keralyos and Huber Case 365 Keskin Case 421–2 Kingdom of the Hellenes v. FRG 141 Kingsley Case: see Appl. 35605/97, Kingsley v. United Kingdom Kirkwood Case 357–8 Kjeldsen v. Denmark: see Appl. 5095/71, Vand A. Kjeldsen v. Denmark Klaas Case 353, 355, 356 Klöckner Case: see Klöckner v. Cameroon Klöckner v. Cameroon 494–5 Klyakhin Case 374 Knox 333 Kommunistisches Partei Deutschland (KPD): see Appl. 250/57 Korea – Alcoholic Beverages 545, 551 Korea – Dairy 551 Korea – Procurement 538 Kovacu, Mrkonjic and Golubovic Case 378 Koval Case 423 Krzycki v. FRG: see Appl. 7629/76 Küster 324, 336–7

Table of Cases

xxxvii

La Croix 331 La Grand Case 158, 160–3 La Grand Case, Order 148, 151, 156, 158 La Grand Case (Provisional Measures): see La Grand Case, Order Lacko Case 363 Lafuma 320 Lamadie (No. 2) and Kraanen 321, 323 Lamming 329 Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections: see Land and Maritime Boundary Between Cameroon and Nigeria Case (Preliminary Objections) Land and Maritime Boundary between Cameroon and Nigeria Case 54, 58, 91, 194–5 Land and Maritime Boundary between Cameroon and Nigeria Case (Provisional Measures) 150, 158 Land and Maritime Boundary between Cameroon and Nigeria Case (Preliminary Objections): see Land and Maritime Boundary between Cameroon and Nigeria Case Land, Island and Maritime Frontier Dispute Case 46, 137, 138–9, 141–3 Land, Island and Maritime Frontier Dispute Case (Application to Intervene) 13, 129, 130, 134–6, 141–3, 144 Lawless: see Appl. 332/57, Lawless v. Ireland Lawless Case: see Lawless Lebedev Case 363 Legality of Nuclear Weapons Opinion: see Legality of the Threat or Use of Nuclear Weapons Opinion Legality of the Threat or Use of Nuclear Weapons Opinion 200, 201, 204, 212–15, 217, 218, 221–2, 228, 237, 238–9, 242 Legality of the Use of Force Cases 15, 34, 40 Legality of Use or Force Cases (Provisional Measures) 13, 149, 152 Legality of the Use of Force Cases (Preliminary Objections): see Legality of the Use of Force Cases Leguin 328 Lenzing AC v. UK 365 LETCO Arbitration 439, 468, 471–2, 474–5, 493 LETCO Case: see LETCO Arbitration LG and Energy Corp. et al. Case 467 Liberian Eastern Timber Corporation v. Liberia: see LETCO Arbitration Libya/Malta Case 134, 136, 137, 139–40 Libya/Malta Continental Shelf Case: see Libya/Malta Case Libya/Malta Continental Shelf Case, 1984: see Libya/Malta Case Libya/Malta Continental Shelf Case, 1985 137

xxxviii

Table of Cases

Lighthouses Cases 184 Lighthouses in Crete and Samoa Case 184 Lockerbie Case 35, 48, 156, 157 Lockerbie Case (Provisional Measures): see Lockerbie Case Loizidou Case 344, 347–8 Loroch (No. 5) 332 Losinger Case 43, 62 Lüdi Case 354 Maffezini Case 487, 488, 490, 491, 493 Malama Case 415, 423 Mamatkulov and Abdurasulovic Case (2001) 425 Mamatkulov and Abdurasulovic Case (2003) 425 Mamatkulov and Abdurasulovic Case (2005) 425 Manoussos Case 374 Marckx v. Belgium: see Marckx Case Marckx Case 353, 356–7, 425 Maritime Delimitation and Territorial Questions between Qatar and Bahrain Case 167 Maritime Delimitation between Guinea-Bissau and Senegal Case 58 Maritime Safety Committee Opinion: see IMCO Opinion Marrett 328 Mascetti 325 Matznetter Case 392 Mavridis 335 Mavrommatis Case: see Mavrommatis Case (Preliminary Objection) Mavrommatis Case (Preliminary Objection): see Mavrommatis Palestine Concessions Case (Preliminary Objection) Mavrommatis Palestine Concessions: see Mavrommatis Case Mavrommatis Palestine Concessions Case 23, 26, 75–6, 77, 95–6, 169–70 Mavrommatis Palestine Concessions Case (Jurisdiction): see Mavrommatis Palestine Concessions Case (Preliminary Objection) Mavrommatis Palestine Concessions Case (Preliminary Objection) 12, 22, 36, 37, 41, 45–6, 77, 78, 79, 103, 452 Memel Territory Case 458 Mendaro 316, 322, 330 Mendez 329 Mexico – Anti-Dumping Measures on Rice 546, 552 Mexico – Corn Syrup (Article 21.5 – US) 535 Mexico – Taxes on Soft Drinks 523–4, 533, 536, 543, 549 Mihaly Arbitration 449–52 Military and Paramilitary Activities in and against Nicaragua Case, Nicaragua v. United States of America, Jurisdiction and Admissibility: see Nicaragua Case (Jurisdiction and Admissibility)

Table of Cases

xxxix

Mine Case: see MINE v. Guinea MINE v. Guinea 441, 494–8 Minority Schools (Upper Silesia) Case: see Minority Schools Case Minority Schools Case 12, 18, 96–7, 103, 106, 113 Minquiers and Eerchos Case 77–8 Mirossevich 326 Miss B 336 Miss M 325 Miss X [1960] 330 Miss Y 329 Modinos Case 357 Mohsin Case 312–15 Monastery of Sain Naoum Opinion 187 Monetary Gold Case 13, 21, 24, 50–2, 53, 55, 109, 135, 226–7, 235 Monory Case 422 Morina 334 Mortished 248 Moustaquim Case 363 MOX Plant Case 263–4 MOX Plant Case, Order 276 MOX Plant Case, Order No. 3 (June 2003) 263–4 MOX Plant Case, Order of 3 December 2001 276 Mr. and Mrs. D 317 Mr. X 328, 329, 330 Mr. Y 332 Müller (ECJ Case 4/67) 329 Müllers 328 M/V “Saiga” Case 280–1 M/V “Saiga” (No. 2) Case 263, 270, 273–5, 282–94 M/V “Saiga” (No. 2) Case, Order of 11 March 1998 276 Mykhaylenky Case 368 Namibia Case 201, 222–3 Namibia Opinion: see Namibia Case Nationality Decrees in Tunis and Morocco Opinion 212 Neumeister v. Austria 419–20 Ngoma 302 Nicaragua Case: see Nicaragua v. Honduras Nicaragua Case (Jurisdiction and Admissibility) 25, 40, 47–8, 53, 57, 67, 68, 71, 74, 112, 115–16 Nicaragua Case (Merits) 43, 71, 166, 168, 173, 177 Nicaragua Case (Order) 132, 143 Nicaragua Case (Provisional Measures) 147, 153, 156, 157

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Table of Cases

Nicaragua v. Honduras: see Border and Transborder Armed Actions Case (Jurisdiction and Admissibility) Nielsen 327, 328 Nielsen v. Denmark: see Appl. 343/57, Schouw Nielsen v. Denmark Nielsen Case (ECHR) 351, 368 Noor 333 Norris Case 357 North Sea Continental Shelf Cases 54, 130 North Transylvania Nationality Case 465 Northern Cameroons Case 22, 36, 37, 42, 49, 98, 112, 115, 145 Northern Cameroons Case (Preliminary Objection): see Northern Cameroons Case Norwegian Loans Case 25, 26, 27, 29, 57, 62, 64, 66, 69, 73, 74–5, 82, 83, 85, 86, 89, 90, 119, 122 Nottebohm Case 24, 26, 43, 57, 73, 98, 463, 464–5 Nottebohm Case (Preliminary Objection): see Nottebohm Case Nottebohm Case (Second Phase) 35, 38, 105, 119 Novak 316, 327, 330 Nuclear Tests Cases 22, 36, 37, 43, 45, 49, 58, 67, 133 Nuclear Tests Case (Australia, Interim Measures) 153 Nuclear Tests Cases (Interim Protection): see Nuclear Tests Cases, Orders Nuclear Tests Cases, Orders 146–7, 153, 154–5, 158 Obes Polleri 330 Ocalan Case 425 Occidental Petroleum Corporation et al. Case 488–91 Office français v. Office allemand 141 Oil Platforms Case (Preliminary Objection) 46 Olguín v. Paraguay 447 Olsson I 369–70 Olsson II 370 Open Door and Dublin Well Women Case 359–60 ÖZDEP Case 353, 363 Özdep v. Turkey: see ÖZDEP Case Pajzs, Csáky, Esterházy Case (Preliminary Objection) Pakistani Prisoners of War Case 154 Panavezys-Saldutiskis Railway Case 119, 122 Papageorgiou Case 422 Papamichalopoulos Case 345 Passage through the Great Belt Case 58, 147 Peace Treaties Case 200

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Table of Cases

xli

Peace Treaties Opinion 13, 25, 46, 73, 78, 200, 201, 202, 204, 213–15, 217, 226, 227, 228, 229–31, 237, 238, 452 Peace Treaties Opinion (First Phase): see Peace Treaties Opinion Pejic Case 422 Perrasse 334 Personal Work of Employer Opinion 203 Petaki Case: see Appl. 596/59, Petaki Case Pfunders Case: see Appl. 788/60, Austria v. Italy Phosphates in Morocco Case 43, 64, 65, 67, 68, 77, 79, 80–1, 82, 90 Phosphates Lands in Nauru Case 12, 54, 58, 59, 70, 106 Piermont Case 343 Pilleboue 321 Pious Fund Case 179 Pisano Case 428–9 Pitkevic 400 Plaksin Case 411 Plama Consortium Case 447 Platfform “Ärzte für das Leben” v. Austria 352 Polish Agrarian Reform Case, Order 154, 158 Polish Agrarian Reform Case (Provisional Measures): see Polish Agrarian Reform Case, Order Polish Postal Service in Danzig Opinion 179 Polish Upper Silesia Case 452 Porrini and Others 318 Poulin 319 Powell (ECJ) 337 Powell and Rayner Case 384 Press 321 Prince von Pless Administration Case: see Prince von Pless Case (Preliminary Objection) Prince von Pless Case (Preliminary Objection) 35 Prince von Pless Administration Case 154 Prince von Pless Cases, Order 154 Privileges and Immunities Convention Opinion 201, 205, 217, 222, 226, 227, 228, 231–2 PSEG Global Inc. et al. Case 447, 451, 467 Pulau Ligitan and Pulau Sipadan Case 136, 140–1, 143 Pulp Mills Case (Provisional Measures) 151, 154, 158 Qatar and Bahrain Case (Jurisdiction and Admissibility) 18, 25 Qatar and Bahrain Maritime Delimitation and Territorial Questions Case (Jurisdiction and Admissibility): see Qatar and Bahrain Case (Jurisdiction and Admissibility)

xlii

Table of Cases

Racz 330 Raina 328 Reinarz 333 Reparation for Injuries Opinion: see Reparation Opinion Reparation Opinion 12, 119, 304–5, 306, 308 Request for Determination of the Situation Case: see Request for Reexamination Case Request for Examination of the Situation Case: see Request for Reexamination Case Request for Interpretation of the Judgment of 11 June 1998 Case 184–5, 194–6 Request for Reexamination Case 98, 111, 130, 148–9, 150–1 Reservations to the Genocide Convention Opinion 69, 200, 213–15, 227, 238, 240–1 Review of Judgment No. 158 Opinion: see Judgment No. 158 Opinion Review of Judgment No. 273 Opinion: see Judgment No. 273 Opinion Ribeiro 321 Right of Passage Case (Merits) 45, 68, 73, 80, 174–5 Right of Passage Case (Preliminary Objections) 25, 43, 57, 59, 61, 62, 63, 64, 66, 69, 78, 79–80, 86, 87–8 Right of Passage Case: see Right of Passage Case (Merits) Right of Passage over Indian Territory Case (Preliminary Objections): see Right of Passage Case (Preliminary Objections) Right of Passage over Indian Territory Case: see Right of Passage Case (Preliminary Objections) Ringeisen Case 405, 407, 417, 429: see also Appl. 2614/65, Ringeisen v. Austria Ringeisen v. Austria: see Ringeisen Case Robert 322 Rotaru Case 363 Roumanian Minister of War Case: see Roumanian Minister of War v. Turkish Government Roumanian Minister of War v. Turkish Government 440 Sacchi Case 378 Saidi 389 Saiga Case: see M/V “Saiga” Case “Saiga “ (No. 2) Case: see M/V “Saiga” (No. 2) Case Saipem Case 442, 460, 488 Saipem S.p.A. Case: see Saipem Case Salcuk and Asker Case 426 Salmouni Zerhouni 317 Saravia 335, 336

Table of Cases

xliii

Schloh 320 Schulz 336 Second Admissions Opinion 200, 203, 217, 218–20, 456, 457 Segi and Others Case 363 Selmouni Case 400, 411 Selmouni v. France: see Selmouni Case Sempra Energy International Case 452 Sergy 334 S.H.K. v. Bulgaria 374 Sharif 301 Siemens A.G. Case 455 Silow 317 Skandera 317 Skubenko Case 363 S.L. v. Austria 363 Smirnova and Smirnova Case 378 Smith Scott 316 SOABI Arbitration 439, 467, 470–1, 473, 476–7 Société Commerciale de Belgique Case 106–7 Société Ouest Africaine des Betons lndustriels v. Senegal: see SOABI Arbitration South West Africa Cases (Preliminary Objections) (1962) 98, 244–5 South West Africa Cases 45, 46, 176, 452–3, 454, 455, 456 South West Africa Cases (1961) 130 South West Africa Cases (1965) 130 South West Africa Cases (Second Phase) 36, 37, 46, 48, 453 South West Africa Committee Opinion 220, 242–3 South West Africa Voting Opinion 203, 204, 220, 242–3 South-Eastern Greenland Case (Provisional Measures) 158 Southern Bluefin Tuna Arbitration: see Southern Bluefin Tuna Arbitration (Jurisdiction and Admissibility) Southern Bluefin Tuna Arbitration (Jurisdiction and Admissibility) 257, 263, 279 Southern Bluefin Tuna Cases 270 Southern Bluefin Tuna Cases (1999) 270 Southern Bluefin Tuna Cases, Order of 27 August 1999 276–9 South-West Africa Cases (Preliminary Objections): see South West Africa Cases SPP v. Egypt 441 S.S. Wimbledon: see The Wimbledon Case Stamoulakatos Case 346 Stankov and United Macedonia Organization “Ilinden” v. Bulgaria 374 Status of South West Africa Opinion 242, 244

xliv

Table of Cases

Steiner and Gross v. Polish State 123 Stogmüller v. Austria 417–18 Suez, Sociedad General de Aguas de Barcelona S.A. et al. Case 459–60 Swordfish Case 273

456,

Tadić 19 Tadić Case: see Tadić Tanzania Electric Supply Company Limited Case 488 Tarrab (No. 5) 324 Tarrab (No. 9) 336 Temple of Preah Vihear Case 25, 40, 57–8, 68, 176 Temple of Preah Vihear Case (Preliminary Objections): see Temple of Preah Vihear Case Terrain 330 Territorial and Maritime Dispute (Preliminary Objections), (Nicaragua v. Colombia) Case 40, 47 Territorial and Maritime Dispute Case (Preliminary Objections) 26 Tévoédjré 319, 320, 323 Thailand – Cigarettes 539 The “Camouco” Case 288 The “Grand Prince” Case 288 The “Hoshinmaru” Case 288 The “Juno Trader” Case 288 The “Monte Confurco” Case 288 The “Tomimaru” Case 270, 288 The “Volga” Case 288 The Wimbledon Case 133, 167, 168–9 The World Bank Staff Association: see World Bank Staff Association Thevenet 328 Thresher 337 Tokios Tokalés Case 489 “Tomimaru” Case: see The “Tomimaru” Case Tordeur and Others 322 Toth Case 421, 423 Tre Traktörer AB Case 352 Treatment of U.S. Aircraft and Crews in Hungary Cases 107–8 Treaty of Lausanne Opinion 229 Treaty of Neuilly Case (Interpretation) 191, 192 Tunis and Morocco Nationality Decrees Opinion 71, 72 Tunisia/Libya Continental Shelf Case 133–4, 138, 139, 187 Tunisia/Libya Continental Shelf Case (Revision) 47, 187–9, 190, 192–3, 196

Table of Cases Turkey – Textiles Tyrer Case 343

xlv 538

UN Expenses Opinion 200, 201, 204, 216, 217, 218, 222, 230, 238, 306–7, 456, 457 UN Headquarters Agreement Opinion 46, 47, 217, 222 United Nations Expenses Case: see UN Expenses Opinion United Nations Expenses Opinion: see UN Expenses Opinion US – 1916 Act 539 US – Anti-Dumping Measure on Oil Country Tubular Goods 546 US – Certain Economic Products 508–9 US – Countervailing Duty Investigation on DRAMS 543 US – Countervailing Measures on Certain EC Products 531, 552 US – Gambling 510, 543, 548, 553 US – Gasoline 509, 510 US – Hot-Rolled Steel 552 US – Lamb 546, 552 US – Lead and Bismuth II 526–7, 547 US – Malt Beverages 539 US – Offset Act (Byrd Amendment) 550–1, 552 US – Oil Country Tubular Goods Sunset Review 543 US – Section 301 Trade Act 510, 511–12, 539–41 US – Section 337 539 US – Shrimp 524–6 US – Softwood Lumber IV 533 US – Softwood Lumber VI (Article 21.5 – Canada) 546 US – Steel Safeguards 530, 531, 546–7 US – Superfund 538, 539 US – Tobacco 539 US – Underwear 544 US – Upland Cotton 543, 546, 548, 552, 553 US – Wheat Gluten 546, 553 US – Wool Shirts and Blouses 312, 536, 544, 547 US – Zeroing (EC) 548 U.S. Nationals in Morocco Case 57, 74, 130 V and P Case 358 Vacuum Salt Products Ltd. Arbitration Valmont Case 363 Van den Brink 362 Van der Leer Case 351 Van der Mussele 366 van der Peet (No. 13) 301

482–5

xlvi

Table of Cases

Vandervyvere 318 Vandenheede 337 Varbanov: see Varbanov Case Varbanov Case 372, 374 Vassilou 335 Venkadajalasarma Case 421 Vermaat 324 Vervos 333 Victor Pey Casado v. Chile: see Casado Case Vienna Convention on Consular Relations Case (Provisional Measures) “Volga” Case 270 Wasa and Others v. Sweden 361 Wejrup Case 363 Wernhoff v. FRG 386 Western Sahara Opinion 201, 217, 220, 223, 227, 228, 234–5 WHO Nuclear Weapons Opinion 25, 205–15, 217 Wiggins Case 343 Winterwerp Case 351, 371 World Bank Staff Association 301, 302, 318 X X X X X X X X X X

v. Austria: see X v. Austria (1972) v. Austria (1972): see Appl. 2547/65, X v. Austria v. Belgium: see Appl. 1965/61, X v. Belgium v. Denmark: see Appl. 4311/69, X v. Denmark v. FRG: see Appl. 645/59, X v. FRG v. FRG (1959): see Appl. 222/56, X v. FRG v. FRG (1973) 373 v. Norway: see Appl. 6930/75, X v. Norway v. UK: see Appl. 3505/68, X v. UK and Y v. Austria: see Appl. 2854/66, X and Y v. Austria

Yacgi and Sargin Cases 345–6 Yakimetz 248 Yarrow Case 361, 399 Young Plan Case 448 Z.W. v. The UK 364 Zayed 318 Zuiderveld and Klappe 362 Züleyha Yilmaz Case 422

158

1 PROLOGUE

In 2003 a treatise by me, entitled Jurisdiction of International Tribunals, was published. Therein, after an introductory first part, I described and discussed in the second part what may be considered to be “general principles” of jurisdiction of international tribunals derived from material relating to several standing courts and ad hoc tribunals. Among the principles was consent as a cardinal principle of jurisdiction. But there were others found to exist and also discussed, such as la compétence de la compétence and general principles of law, flowing from the judicial nature of tribunals, and both relating to incidental jurisdiction and derived from inherent jurisdiction. In the third (and final) part, I examined briefly special aspects of the jurisdiction of five international tribunals (or systems or groups of tribunals). The discussion and analysis were limited and since the publication of that treatise, a need has been felt not only to examine in a more self-contained manner the jurisdiction, both contentious and advisory, of the ICJ as a specific permanent international court or tribunal but also to bring together in one book the examination of the jurisdiction of certain other tribunals, not excluding most of the other four tribunals or groups of

2

Chapter 1. Prologue

tribunals examined in the earlier work. Hence, this book covers the jurisdiction of: (i) the World Court, i.e., the ICJ and PCIJ – both contentious and advisory jurisdiction, (ii) the leading International Administrative Tribunals, (iii) the ECHR, (iv) ICSID tribunals, (v) the WTO Panels and Appellate Body, and (vi) the ITLOS. The first four tribunals (or systems of tribunals) were considered in the earlier work, as stated, and the material relating to them will be expanded, re-examined and brought up to date. There is room for expansion, re-analysis, updating, and collation of the material relating to these tribunals. New material on these tribunals, consequently, will be included. The last two systems of tribunals have been chosen as important examples of dispute settlement through adjudicatory methods. The World Court, now the ICJ, IATs, the ECHR, the WTO Appellate Body and the ITLOS are standing tribunals. The ICSID tribunals, though formed pursuant to the ICSID Convention, are ad hoc tribunals, but are all governed in the first place by the provisions on jurisdiction of the ICSID Convention. This creates a standing central element. The ICSID tribunals, although themselves ad hoc for every arbitration, are organized broadly under the chapeau of the jurisdictional arrangements established pursuant to the ICSID Convention which makes general conditions applicable to each and every ad hoc tribunal created under the Convention. What will be of concern here are the general fundamental conditions of jurisdiction flowing from the Convention itself and applicable to every ad hoc tribunal functioning under the Convention. The particular conditions of jurisdiction applicable to any particular tribunal resulting from additional conditions of jurisdiction contained in instruments relevant to each ad hoc arbitration are not the subject of this study, though such conditions do exist.1 Similarly, the Panels of the WTO, though ad hoc, are part of a standing system. It is noted, however, that the Panels and Appellate Body of the WTO are only judicialtype bodies. They are an innovation, as far as their structure and

See the cases reported in the twelve published volumes of the ICSID Reports and on the ICSID website: <www.worldbank.org/icsid>, passim. 1

Prologue

3

nature go, in international dispute settlement, while their structure and powers have been considered appropriate for dispute settlement in the trade area. Both they and the ICSID system have a certain uniqueness. The six tribunals or systems of tribunals chosen for examination, it must be noted, are judicial or judicial-type organs in their own right and in a real sense, albeit by virtue of the intentions of their creators who designed their constitutive instruments. This applies equally to the ICJ, IATs and the other standing bodies as to the ad hoc arbitral tribunals and panels constituted pursuant to the standing system of the ICSID Convention and the WTO DSU respectively. Hence, they deserve the importance attached to them as means of settling disputes within the international legal system. In this connection arbitral tribunals such as claims tribunals and particularly the Iran–US Claims Tribunal, which is admittedly a long-standing tribunal, whether justified or not, have been omitted from consideration, because they are ad hoc, whichever way they are looked at, and cannot be treated as parts of a standing international system of courts. The Iran–US Claims Tribunal, for instance, is no more than an ad hoc claims tribunal comparable to the claims commissions, each established by agreement between two or more states, of the nineteenth and earlier twentieth centuries. As ad hoc tribunals, it cannot be gainsaid that they do act judicially, even though described as “arbitral” tribunals, but, nevertheless, they are different from, and cannot be classed with, the standing courts or system of courts included in this study. Because they lack permanence, the jurisdictional element in their structure is specific to the limited purpose for which they were established and designed by the two (or more) states which established them. The ICSID system, the basic jurisdictional structure of which is examined here, is of a permanent nature and may be regarded as a standing multilateral arrangement governing all ad hoc tribunals established within the system. This permanent element in the jurisdictional structure of the central ICSID system justifies that system being dealt with in the same category as standing judicial tribunals. The same reasoning applies to the WTO bodies.

4

Chapter 1. Prologue

That there are in the international legal system any standing courts or tribunals or a central standing system governing ad hoc tribunals signifies, in my opinion, that international judicial settlement of disputes has come of age, so to speak. The development is to be welcomed, even though it may be argued that there is a proliferation of standing courts and tribunals. This kind of proliferation is not destructive of justice nor may it be regarded as a waste. The courts and tribunals included in this work, it may be said, serve a constructive and useful purpose in different fields and areas of international relations. International criminal tribunals, e.g., the ICC, ICTY and ICTR, have not been included in this study. The ICC is a standing court, while the other two are ad hoc tribunals. The jurisdictional requirements of these tribunals are special to criminal tribunals and are significantly different from those confronting the tribunals considered in this book which may be regarded as and compared to civil courts. The six systems for the judicial settlement of disputes chosen to be examined in this work are by far the most important in the modern era and deserve close attention. For the purposes of this study what is important is to examine and establish how governing instruments have been interpreted and applied, inter alia, in the light of general principles of interpretation and other general principles of law. There is nothing arcane or particularly complex about provisions governing the jurisdiction of the six tribunals (or systems of tribunals), the subject of this study. Moreover, the instruments governing jurisdiction are interpreted according to accepted norms of interpretation and are then applied. In the process, in general, powers which are inherent in the judicial function may be invoked.2 The jurisdiction of all the specific tribunals included in this study is ultimately derived, whether directly or indirectly, from agreement between or among states, though such agreement may invoke the intervention of other entities as relevant

On interpretation see particularly C.F. Amerasinghe, Jurisdiction of International Tribunals (2003), chapter 4. 2

Prologue

5

to the issue of jurisdiction, which is the case, for example, with the IATs and ICSID tribunals. While the general principles induced and discussed in the second part of my earlier work do have relevance for the seven tribunals or groups of tribunals in a fundamental sense, it is clear that in the final analysis the jurisdiction of these judicial or judicial-type organs derives from what is expressly stated in governing instruments establishing them and from the interpretation given these instruments by the organs themselves. It is also to be recognized that such interpretation takes into account general principles of law which may require, inter alia, that inherent powers be implied in the absence of express exclusion in the governing instruments and subject to the principles of ius cogens.3 All the tribunals considered settle international disputes as defined in Chapter 1 of my earlier work.4 They are also international tribunals as defined therein.5 It is necessary at the outset to define the parameters of the study which follows. That is to say, the question must be asked – which activities of the tribunals are included in, or covered by, the examination of their “jurisdiction”. In my earlier work a chapter was devoted to ascertaining the meaning of jurisdiction in international juridical usage.6 It is not intended to repeat in extenso what was said there but it is noted that the term “jurisdiction” does not seem to be a term of art in the sense that it is used to connote matters of a single genus or species. It seems that “jurisdiction” may be taken to cover a large area concerned with the authority of international tribunals. While it is unnecessary to find a definition of the concept of jurisdiction, which may in any case be elusive, the term has so many connotations in the practice and theory of international adjudication

On the application of ius cogens to the jurisdiction of international courts and tribunals see C.F. Amerasinghe, ibid., pp. 98 ff. 4 See C.F. Amerasinghe, ibid., pp. 3–9. 5 C.F. Amerasinghe, ibid., pp. 9–12. 6 C.F. Amerasinghe, ibid., pp. 49–68 (chapter 2). 3

6

Chapter 1. Prologue

that it is necessary to identify what is being examined or studied herein under the rubric “jurisdiction”. It would be useful and even necessary in the process to identify, first, some of the different senses in which the term has been used and, secondly, what is the subject of examination in the study. Initially it may be said, although this is not a matter of scientific analysis, that in broad terms there are several distinct matters which are included in the sense in which the term “jurisdiction” is applied, when it is used to connote the authority of a tribunal to proceed judicially to decide an international dispute, which involves both application of rules of procedure and of substance. The three matters identified concern in general terms, first, the authority to proceed to exercise the power to apply rules of procedure and substance to decide the dispute referred to the tribunal, secondly, the power to grant what in the broadest terms may be called remedial measures once a decision has been taken on the merits and, thirdly, sometimes to select particular rules of substance or procedure in deciding the merits, i.e., what it may do in settling the dispute once it has been established that it has the authority to do so. The first category covers, for example, issues as to whether a tribunal has been properly and lawfully constituted, or whether it may decide a dispute to which an international organization is a party, i.e., ratione personae, or whether because local remedies have not been exhausted the tribunal may assert its power to examine the dispute. An example of the second category is issues as to whether damages may be awarded or an order of specific performance should be made. The third category refers to what law should or should not be applied in relation to substance or procedure. It turns out in the ultimate analysis that “jurisdiction” is not particularly a term of art. Conventionally, it may be agreed that certain aspects of a tribunal’s activity, such as la compétence de la compétence and recevabilité, are contained within the usage of the term but there may be questions as to the inclusion of some other activities, such as the prescription of remedies. Because international tribunals, including established courts, are juges d’exception with juridiction d’attribution (limited and

Prologue

7

assigned jurisdiction) and not juridiction de droit commun (general jurisdiction), the questions whether a court or tribunal is properly constituted and has authority or jurisdiction to proceed to adjudicate or act in a certain manner in adjudicating become important. No international tribunal can as yet claim that it has general jurisdiction which may obviate issues as to whether it has been properly constituted and has the authority to adjudicate and as to what it can do when it adjudicates. Generally jurisdiction is derived from the Statute, instrument or Compromis which established the tribunal and any subsidiary instruments flowing from those sources. Those sources are dependent ultimately, and either directly or indirectly, upon the consent or agreement of states and inter-state organizations which are composed of states. At this point, it is relevant to observe that jurisdiction in its many ramifications flows from a basic instrument to which is referred the establishment of the tribunal together with any relevant subsidiary instruments. While, as noted, “jurisdiction” may cover many aspects of judicial activity, there would be agreement that, when a tribunal addresses matters of jurisdiction in its basic sense, it may have to decide: (i) whether it has the authority to decide whether it has the authority to proceed to inquire into and settle the dispute by pronouncing on any aspect of it, i.e., la compétence de la compétence; (ii) whether it has been properly and legally established; (iii) whether there are certain fundamental deficiencies, express or inherent, in the submission of the dispute to it in the light of the constitutive instruments which prevent it from examining the case further at all with a view to settling the dispute or any part of it judicially, i.e., to decide whether it has competence or is incompetent (compétence); (iv) even if there are no fundamental deficiencies in the submission of the dispute, whether there are other obstacles to its proceeding judicially to settle the dispute which relate to the receivability or admissibility of the dispute (recevabilité);

8

Chapter 1. Prologue

(v) whether it may exercise the power to act in regard to important aspects of incidental jurisdiction, namely dealing with interventions and ordering provisional measures. In examining the “jurisdiction” of the specific tribunals selected it is these five areas of activity that will particularly be kept in mind.7 Note may also be taken of the fact that in regard to a particular tribunal or group of tribunals only some of these areas may be considered because issues relating to only some areas have been faced by the particular tribunal. Moreover, the choice and application of substantive and procedural rules in the settlement of the merits, particularly, will not be considered, because it is recognized that this area is not usually regarded as concerned with jurisdiction as such. Further, in some cases the authority to select remedies, and to reopen judgments already given, will also be examined. The authority of a tribunal in these areas may be regarded broadly as relating to “jurisdiction” and has been examined by tribunals. Indeed, some constitutive instruments may specifically refer to the tribunals’ authority in these areas. Further, there is a chapter on the jurisdiction of the World Court to give advisory opinions, though the concern in this work in respect of the other courts or tribunals is with contentious jurisdiction.8 The advisory jurisdiction of the World Court is the most important system of its genre. Meanwhile, the general principles discussed in the second of the three parts of my earlier treatise9 will continue to be relevant. The interest in the jurisdiction of the six tribunals (or systems of tribunals) subject of this work is justified and not misplaced for several reasons. Most importantly, the role of courts in settling international disputes in the twentieth century and later requires attention See C.F. Amerasinghe, ibid., pp. 58–64, for an explanation and brief analysis of the usages of the term “jurisdiction.” 8 There are other international tribunals which have an advisory jurisdiction, e.g., the ECHR: see Articles 47–49 of the European Convention on Human Rights. 9 C.F. Amerasinghe, op. cit. note 2, pp. 49 to 545 (chapters 2–12). 7

Prologue

9

to be given to the expanse of and limitations on the jurisdiction of these tribunals, which may, moreover, be described as permanent. Elsewhere it has been argued by me that, whereas law may be defined as rules capable of being recognized by the courts, whether permanent or ad hoc, of the legal system concerned, international law qualifies as a genuine legal system.10 Considering this, it is appropriate to attach importance to the courts of the international legal system which are at the core of that system. The fact that the tribunals which are the subject of this work are either permanent (standing) or belong to a permanent (standing) system adds to their importance for the international legal system. The manner in which the jurisdiction of the six tribunals (or systems of tribunals) is approached herein and the analysis of such jurisdiction should have its appeal for both academics and practitioners.

C.F. Amerasinghe, “Theory with Practical Effects: Is International Law Neither Fish nor Fowl?”, 37 Archiv des Völkerrechts (1999), pp. 1–24. 10

2 THE PERMANENT COURT OF INTERNATIONAL JUSTICE AND THE INTERNATIONAL COURT OF JUSTICE: CONTENTIOUS JURISDICTION

THE CONSENT

BY THE

PARTIES

The PCIJ and ICJ have on several occasions addressed the principle that the consent of the parties is the basis of their jurisdiction.1 The PCIJ as early as 1923, about two years after it was established, in the Eastern Carelia Opinion stated that: It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States . . . to arbitration, or to any other kind of pacific settlement.2

As a result of the principle the Court refused to give an advisory opinion, because the issue raised touched specifically on the rights

When both Courts are referred to the term “World Court” may be used in this chapter. 2 (1923), PCIJ Series B No. 5 at p. 27. 1

12

Chapter 2. Contentious Jurisdiction

of states, so that an opinion would have in effect solely decided a dispute between states – a contentious matter – though the states in question had not consented to the exercise of the contentious jurisdiction of the Court under relevant provisions of the Statute of the Court by properly with an appropriate title of jurisdiction instituting contentious proceedings before the Court. In the Minority Schools Case the same Court said that “The Court’s jurisdiction depends on the will of the Parties.”3 In several cases the ICJ has had occasion to refer to the basic principle. As early as 1948 in its first judgment in the Corfu Channel Case (Preliminary Objection) the Court referred to the fact that it was the consent of the parties that conferred jurisdiction on it.4 The Court interpreted the various instruments, considering a UNSC recommendation as relevant, and found that the jurisdiction of the Court was accepted by both parties pursuant to Article 36(1) of its Statute which specifies an agreement between the parties as a title to jurisdiction, even though the acceptance by the parties was by two separate and successive acts, instead of jointly and beforehand by a formal agreement.5 In the East Timor Case more recently the Court referred to one of the fundamental principles of its Statute that “it cannot decide a dispute between States without the consent of those States to its jurisdiction”.6

(1928), PCIJ Series A No. 15 at p. 22. See also the Mavrommatis Case (1924), PCIJ Series A No. 2 at p. 16, where the PCIJ referred to the consent of the respondent as an essential requirement for its jurisdiction. 4 1948 ICJ Reports at p. 27. 5 Ibid. at p. 28. In 1952 in the Anglo-Iranian Oil Co. Case the Court stated that Article 36 of the statute dealing with the Court’s jurisdiction was “based on the principle that the jurisdiction of the Court to deal with and decide on a case on the merits depends on the will of the parties”: 1952 ICJ Reports at p. 103. The Court found that neither the claim that it had compulsory jurisdiction under Article 36(2) was well founded, nor had Iran by its subsequent conduct agreed to the assumption of jurisdiction by the Court over the dispute ( forum prorogatum). 6 1955 ICJ Reports at p. 101. See also the Phosphate Lands in Nauru Case, 1990 ICJ Reports at p. 260; Application for Revision and Interpretation Case, 1985 ICJ Reports at p. 216; the Reparation Opinion, 1949 ICJ Reports at p. 178; the 3

The Consent by the Parties

13

In the two cases concerned with intervention of third states the Court referred to the general principle on which the jurisdiction of the Court was based.7 In the Land, Island, and Maritime Frontier Dispute Case (Application to Intervene), the Court said that it would consider the general principle of consensual jurisdiction in relation to the institution of intervention and asserted that there “could be no doubt of the importance of this general principle, upon which the State seeking to intervene has itself, . . . , laid considerable emphasis”.8 So fundamental is the consensual basis of the jurisdiction of international tribunals that the ICJ has held in the Monetary Gold Case9 that where the real subject-matter of the dispute involves the rights or legal position of a state which is not a party to the proceedings, the principle applicable is that jurisdiction cannot be exercised, even though the parties before it have consented to its jurisdiction in the case. There the issue in the case was whether it was Italy or the UK that had better claim to some gold. While they were parties to the proceedings, it was revealed that Albania had a claim to the gold. Albania was not a party to the proceedings. The Court said that the dispute could not be decided without the

Peace Treaties Opinion, 1950 ICJ Reports at p. 71. Most recently the principle of consent was referred to in a general way by the ICJ in the ten Legality of Use of Force Cases (Provisional Measures), 1999 ICJ Reports at pp. 140, 273, 432, 492, 557, 671, 773, 839, 925. See also Armed Activities on the Territory of the Congo (Rwanda) Case (Provisional Measures), 2002. ICJ Reports para. 71 (<www.icj-cij.org>). The express agreement of a party may be given in specie, pursuant to Article 35(5) of the ICJ Statute, after an application has been filed with the Court: see the Certain Questions of Mutual Assistance Case, 2006 ICJ Report (<www.icj-cij.org>). 7 The Libya/Malta Case, 1984 ICJ Reports at p. 22; Land, Island and Maritime Frontier Dispute Case (Application to Intervene), 1990 ICJ Reports at p. 133. 8 Ibid. The Court held that the requirement of consent on the part of the intervenor and the two parties to the dispute was satisfied by the signature of the statute of the Court by all three. 9 1954 ICJ Reports p. 19.

14

Chapter 2. Contentious Jurisdiction

consent of Albania because deciding the case would be deciding on the international responsibility of Albania.10 In the Anglo-Iranian Oil Co. Case Judge Alvarez in a dissenting opinion proposed a revolutionary view of the jurisdiction of the ICJ as the principal judicial organ of the UN. Referring to various provisions of the UN Charter he proposed the theory that under the Charter regime, whether a state was a member of the UN or not, because there was a universal obligation to settle disputes peacefully and the ICJ was the principal judicial organ of the UN, all states were per se under an obligation to submit their disputes to the ICJ which therefore had a universal jurisdiction.11 The theory has been accepted neither by the Court nor international juristic opinion in general. (i) Consent in More than One Step Required In the case of the ICJ the states parties to the dispute must, first, have become parties to the Statute of the ICJ by either becoming a member of the UN or by accepting the Statute itself, if it is not a member of the UN, and, secondly, have accepted the Court’s jurisdiction pursuant to Article 36(1) or (2).12 Judge Daxner in a dissenting opinion in the Corfu Channel Case (Preliminary Objection) adverted to the duality necessary for the incidence of the jurisdiction of the Court.13 Judge Daxner in practical terms gave a fair description of the factual position. The first step is that states, which are the only international subjects that may do so, because, among other things, only they can appear before the Court but also, and more potently, because only states can in whatever way accept the Statute, must have accepted to be bound by and become parties to

The ramifications of this principle are discussed below in the context of the compétence of the ICJ to decide on the merits of cases before it. 11 1952 ICJ Reports at pp. 130 ff. 12 The position with the PCIJ was similar. 13 1947 ICJ Reports at pp. 38–40. 10

The Consent by the Parties

15

the Statute.14 The second consensual step is the acceptance of the jurisdiction of the Court under Article 36(1) or (2). Much has been made of Judge Daxner’s explanation and characterizations by some commentators. Judge Daxner used the terms “jurisdiction” and “competence” in connection with the identification of these two steps and, indeed, commentators have followed suit.15 The latter have also characterized the distinction in terms of “generality” and “particularity”. While Judge Daxner did use the terms “jurisdiction” and “competence” and limited the latter term to the scope of the second step in giving the Court jurisdiction, he also used the term “jurisdiction” in connection with each of these steps.16 He referred to “concrete” cases in regard to the second step thus probably prompting the distinction made by commentators. There are some difficulties with this approach. While it is correct to state that the first step has a certain generality and the second step has some bearing on whether the concrete case before the Court has been covered, the real point is that the second step is a necessary condition for jurisdiction whether it is ultimately framed in particular terms or general terms. What is significant is that the second step could have a “general” bearing rather than a “particular” one, even though what the Court tries to ascertain is whether the concrete case has been included in the second step (with a possible variety of ramifications). The second step would be “general”, if it purports simply to submit all a state’s disputes to the jurisdiction of the Court. The relevance of the concrete case before the Court in the context of the second step, however, cannot be gainsaid. On the other hand, it is unnecessary and confusing to describe the procedures in terms of generality and particularity. What matters

The Legality of the Use of Force Cases (Preliminary Objections), 2004 ICJ Reports para. 30 (<www.icj-cij.org>). 15 See, e.g., Fitzmaurice, “The Law and Procedure of the International Court of Justice: International Organizations and Tribunals”, 29 BYIL (1952) at pp. 40 ff.; Heiskanen, “Jurisdiction v. Competence: Revisiting a Frequently Neglected Distinction”, 5 FYBIL (1994) at pp. 1 ff.; Rosenne, 2 The Law and Practice of the International Court 1920–2005 (2006) pp. 516 ff. 16 1947 ICJ Reports at p. 39. 14

16

Chapter 2. Contentious Jurisdiction

is that the second step has been completed as required by Article 36. It is simply a second step, though highly important. In short, the first step does not by itself complete the submission – there must be a second step which may be “general” or “particular” in its content. In the same connection the distinction between jurisdiction and competence which was made apparently by Judge Daxner and has been made by commentators in this context is not only unnecessary but inaccurate. The two-step procedure as a whole alone generates jurisdiction which may be described as competence and which would certainly be described as compétence in French, as opposed to recevabilité particularly. To state that the first step generates jurisdiction and the second competence has no significant meaning. Both steps are necessary for jurisdiction (or compétence). One without the other generates nothing in terms of the settlement by the court of the dispute and examining the issues connected with the dispute. If the second step is completed without the first, can it be said that the Court has competence but no jurisdiction? The second step generates nothing, unless the first has been completed. Similarly it is inaccurate and misleading to characterize the first step as creating jurisdiction as such. Jurisdiction means to “pronounce the law” (ius dicere) but the Court does not have the power to “pronounce the law” on the merits after the first step. The point being made is that the two steps are an integral part of a single procedure for creating jurisdiction (or compétence). It is unnecessary and inaccurate to give the two steps two separate essences when they are essentially aspects of the same concept. They are aspects of a single jurisdiction-related (or compétence-related) procedure. It is important to recognize the unity in essence of the two-step procedure rather than to dissolve the significance of the unity by giving separate characterizations to the two steps which may lead only to confusion and inaccuracy. It may be noted that Article 35(1) from which comes the requirement of the first step states “The Court shall be open (ouverte) to the States parties to the present Statute.” There is no reference here to “jurisdiction” or “compétence” which in fact is to be generated by the second step taken under Article 36(1) and (2), where the term used is “jurisdiction” or “compétence”.

The Consent by the Parties

17

With oneness of the two-step procedure and its impact may be contrasted the distinction between competence, or jurisdiction (compétence), and admissibility or receivability (recevabilité). The two-step jurisdiction-related procedure has a single impact on the Court’s activity. Matters of competence have a separate impact on the Court’s activity from matters of receivability. At the relevant stage of the proceedings the Court’s activity is separately motivated.17 (ii) Form of Consent The Statute of the ICJ gives in Article 36(2), (3) and (4) some indication of the form declarations made pursuant to Article 36(2) should take.18 Clearly the requirement that they must be deposited with the UNSG implies that they must be in writing. It is possible that recorded verbal messages, for instance, could be deposited but it is unlikely that this interpretation would be permitted except perhaps exceptionally! The other express statements in those provisions permit a certain latitude. The acceptance of the Court’s jurisdiction under Article 36(1) may be in any form which enables the Court to determine the existence of mutual consent to the exercise of its competence, insofar as the provision states that the Court has compétence over “all cases which the parties refer to it”, in addition to “all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”. As was stated by the Court in the Corfu Channel Case (Preliminary Objection): “While the consent of the parties confers jurisdiction on the Court, neither the Statute nor the Rules require that this consent should be expressed in any particular form”.19 The PCIJ earlier had made a concurring statement in the

That having been said, the completion of the first step alone, as will be seen below, may generate jurisdiction of an incidental nature. 18 The provisions of Article 36 are dealt with below from the point of view of their implementation. 19 1948 ICJ Reports at p. 27. 17

18

Chapter 2. Contentious Jurisdiction

Minority Schools Case in regard to provisions in its Statute which were similar.20 Clearly, because the consent is part of an international agreement, ultimately it must satisfy the legal requirements, e.g., relating to capacity, for such an agreement. Modern diplomacy has developed a variety of methods of concluding agreements and expressing consent.21 Any of these must suffice as far as the Court is concerned. While the usual method derived from arbitral practice is to have a special formal agreement dealing with jurisdiction, such as a compromis, this is certainly not the only method used. Whatever the form used, it is always a question for the Court to determine whether in the circumstances of the particular case there was a valid consent to its jurisdiction and the scope of that consent. As the Court has said in regard to a communiqué, it is not the form that matters but whether the document constitutes an agreement, which “depends on the nature of the act or transaction to which the Communiqué gives expression”.22 The conclusion is that where a specific form is not indicated, the consent required may be given in any form which evidences consent on the part of the entity concerned to submit to the jurisdiction of the Court or accepting the relevant jurisdictional prescriptions of the Court. For example, in the modern context, it is conceivable that consent to settlement of a dispute may not be in writing but be “The acceptance by a State of the Court’s jurisdiction in a particular case is not under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement.” (1928) PCIJ Series A No. 15 at p. 23. See also the Aegean Sea Continental Shelf Case, 1978 ICJ Reports at p. 39 and the Qatar and Bahrain Case (Jurisdiction and Admissibility), 1994 ICJ Reports at pp. 120–l. 21 The Vienna Treaty Convention in Article 3 (taken with Article 2) makes it quite clear that international agreements may be in forms other than the written form. 22 The Aegean Sea Continental Shelf Case, 1978 ICJ Reports at p. 39. This case also demonstrates that the limits of consent generally emerge from the agreement, whatever form it takes, and that then interpretation becomes important. On the aspect of limitations in this case see Robol, “Jurisdiction, Limits of Consent: The Aegean Sea Continental Shelf Case” 18 Harv. ILJ (1977) p. 349. 20

The Consent by the Parties

19

recorded on a recording machine! Consent may also be completed by forum prorogation as a form of action with nothing in writing, as will be seen below. (iii) The Relationship of Consent to Inherent Jurisdiction23 Assuming the parties have consented to the jurisdiction of the Court, to what do they consent? Clearly the details of what has been consented to will not be completely or explicitly stated in the consent given. It is usual to state that what they have consented to is jurisdiction to settle the dispute by the application of substantive and procedural rules of law. In any case it may be asked what these rules are, because these are not usually spelled out or referred to in the instrument of consent or agreement. In addition there are other matters relating to jurisdiction which arise and raise issues as to their relation to consent. The Court has referred to its “inherent” and “incidental” jurisdiction in certain respects to the exercise of which explicit consent does not need to be given.24 Whether this jurisdiction is described as inherent or based on implied consent does not really matter because whichever way it is looked at what is relevant is that (a) it does not require express consent for its exercise and (b) there are circumstances in which by agreement of the parties the jurisdiction may be limited or modified. The real issue is the extent to which the jurisdiction may be so limited or modified. That it exists cannot be doubted. Its source is referable to general principles of law. It is, perhaps, better to describe the jurisdiction as inherent rather than as based on implied consent to the extent that the international law applicable in certain respects to the admissibility of consent as a limiting or modifying factor may itself control the scope of that consent in so imposing limitations and modifications.

What is said in this subsection applies to international tribunals in general and not only to the Court: see C.F. Amerasinghe, Jurisdiction of International Tribunals (2003) pp. 95 ff. 24 See, e.g., the references in the Tadić Case (1995), ICTY: Judicial Reports 1994–1995 at p. 371. 23

20

Chapter 2. Contentious Jurisdiction

The particular areas where inherent jurisdiction of the World Court exists will be discussed below and not only will the extent of that jurisdiction be the subject-matter of the discussion, but where appropriate the relevance of and scope of consent in limiting and modifying that jurisdiction will also be considered. These areas are principally: (i) la compétence de la compétence – the jurisdiction of the tribunal to determine its own jurisdiction; (ii) the incidental jurisdiction to order provisional or interim measures; (iii) the jurisdiction in regard to interventions; (iv) jurisdiction in regard to remedies; (v) jurisdiction in regard to reopening a case. Consent may also affect the choice of substantive law or procedural law applied to the extent that agreement between the parties may determine the law applicable. On the other hand, there may be limits imposed on the admissibility of such agreement, if it violates, e.g., basic or fundamental principles of international law which are ius cogens, or frustrates the proper administration of justice by the Court. Initial compétence and the questions of recevabilité are also capable of being affected by consent. Indeed, basically, initial compétence is dependent on consent. The question then is what are the legal limitations on the scope of this consent. In regard to recevabilité consent may also be relevant to determine both the extent of limitations on recevabilité and the exceptions thereto. (iv) Parameters of Consent The first general principle is that as a general rule consent of the parties to the dispute who submit the dispute to the Court is the basis for the Court’s jurisdiction. The second principle that emerges is that, while consent to settlement of the dispute by the Court by the exercise of its juris-

The Consent by the Parties

21

diction must exist, there are inherent aspects of the exercise of its jurisdiction to which the consent of the parties to the dispute need not expressly be given, such inherent jurisdiction being determined by norms pertaining to jurisdiction which have been developed and which apply unless in certain instances there is consent to the contrary on the part of the parties to the dispute. There is a third principle which is relevant. In certain situations, though the parties may have consented, at least ostensibly, to the exercise of contentious jurisdiction by the Court to adjudicate on the dispute, there are circumstances flowing from general norms of international law relating to jurisdiction which may render this consent ineffective, if the norms are successfully applied. This is the principle that applies, for instance, when the rule of non-exhaustion of local remedies may be invoked as a bar to recevabilité in cases where the rule is applicable (this rule is discussed in the context of recevabilité) or when the rule in the Monetary Gold Case is applied to preclude the exercise of jurisdiction to settle a dispute between parties that have consented to the Court’s exercise of jurisdiction, because on account of the interests of third parties there is a lack of compétence in the tribunal. The source of these principles is the general principles of law relating to the judicial function. There is a fourth point to be made. On the one hand, while consent is generally the basis of the jurisdiction of the Court, subject to certain inherent powers that it has, conversely, a principle is to be recognized that there are certain limitations on the contentious jurisdictional authority of the Court which cannot be waived even by consent, whether express or implied, between or among the parties to the dispute. Proof of consent to confer jurisdiction of the Court even though certain requirements are absent could not give it jurisdiction. There have been no specific decisions of the Court, as far as is known, on the questions of whether consent can cure the absence of these requirements, but it is clear that there are certain fundamental requirements that are so inextricably involved with the judicial function of the Court that their absence would be an absolute bar to the assumption of jurisdiction by it. Examples of such

22

Chapter 2. Contentious Jurisdiction

requirements are the existence of a dispute25 and the need for the claim to have an object and not be moot.26 Further, the legal nature of the dispute may also be a fundamental requirement, irrespective of whether settlement ex aequo et bono is requested or not. Again, the source of this principle is to be found in a general principle of law applicable to the judicial function in international law. LA COMPÉTENCE

DE LA

COMPÉTENCE

The first question that may face the Court is whether it has jurisdiction (compétence) to determine its own jurisdiction (compétence), i.e., whether it has power to decide whether it may proceed with the judicial settlement of the particular case (la compétence de la compétence).27 It is not a question that generally must be decided unless the matter is raised. Indeed, in many cases, the Court has simply decided on its jurisdiction. There have been several significant developments in regard to this concept, in connection with the ICJ in the second half of the twentieth century. The PCIJ Statute expressly provided in Article 36 that “In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court”. This provision reflected the principle of la compétence de la compétence. Article 36(6) of the Statute of the ICJ has exactly the same content as that provision. The ICJ in the Effect of Awards Opinion pointed

In the Mavrommatis Palestine Concessions Case (Preliminary Objection) (1924), PCIJ Series A No. 11, the question whether a “dispute” had been presented to the PCIJ was discussed in the judgment, where it was found that there was a dispute. Had the Court found that there was no dispute as defined by it, the consent of the parties to adjudication would not have cured that defect. 26 The Nuclear Tests Cases, 1974 ICJ Reports at pp. 253 and 457, were dismissed on this ground as was the Northern Cameroons Case, 1963 ICJ Reports at p. 38. These limitations inherent in the judicial function are discussed below. 27 For the history of the concept of la compétence de la compétence in international jurisprudence see C.F. Amerasinghe, op. cit. note 23 pp. 121 ff. 25

La Compétence de la Compétence

23

out that an essential attribute of a tribunal of a judicial nature is the competence to determine its own jurisdiction.28 It had not been contested before the PCIJ that the Court does have the jurisdiction to determine its own jurisdiction. There was never a dispute between parties on this point. In fact, the Statutes of both Courts, as has been seen, have provisions stating that the Court has such jurisdiction. The general principle was, however, confirmed by the PCIJ and by individual judges of the PCIJ in individual opinions. In the Interpretation of the Graeco-Turkish Agreement Opinion, the Court, in dealing with the question raised of the powers of the Mixed Commission (not its own powers), stated that “as a general rule, any body possessing jurisdictional powers has the right in the first place to determine the extent of its jurisdiction” and that, therefore, the Mixed Commission must settle any questions affecting its own jurisdiction.29 In its judgment in the Minority Schools Case the Court decided in fact on its own jurisdiction to deal with the merits.30 Apart from these cases which clearly support the principle being discussed, there were several individual judges of the PCIJ who expressed opinions in support of the principle.31

1954 ICJ Reports at pp. 51–2. The Court went on to say that if the constitutive instrument provides for that power this is a strong indication that a judicial function was intended. 29 See, e.g., the Interpretation of the Greco-Turkish Agreement Opinion (1928), PCIJ Series B No. 16 at p. 20. There the PCIJ confirmed that, as a characteristic, a judicial body has the right in the first place to determine its own jurisdiction. 30 (1928), PCIJ Series A No. 15. 31 See Judge Moore in an individual opinion in the Mavrommatis Palestine Concessions Case, the second case decided by the PCIJ: (1924) PCIJ Series A No. 2 at pp. 57–8; Judge Urrutia in an individual opinion in the Electricity Company of Sofia and Bulgaria Case (1939), PCIJ Series A/B No. 77 at pp. 102–3. See also the dissenting opinions of Judge Van Eysinga, ibid. at p. 109, and Hudson, ibid. at p. 118, and the dissenting opinion of Judge Anzilotti in the German Interests in Polish Upper Silesia Case (1925), PCIJ Series A No. 6 at p. 30. 28

24

Chapter 2. Contentious Jurisdiction

The ICJ has paid considerable attention to this principle – la compétence de la compétence – in its judgments. In fact, while the incorporation of the principle in Article 36(6) of the Court’s Statute has been acknowledged it was argued by the respondent, Guatemala, in the Nottebohm Case (Preliminary Objection) that the principle there embodied had a limited application to determinations relating specifically to categories enumerated in Article 36(2) and was not of general application. The Court, rejecting this argument, came down heavily and forcefully in favour of the view that it had a general unlimited jurisdiction to decide on its own jurisdiction, as required by the general principles of international law. It said: Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. . . . This principle, which is accepted by general international law in the matter of arbitration, 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, in the present case, the principal judicial organ of the United Nations.32

The Court proceeded to adjudicate on whether it had jurisdiction in the case. Not only was the principle asserted as part of the ratio decidendi of the case but it was asserted as a general principle of international law pertaining to international tribunals of a judicial nature.33 There were several other cases decided by the ICJ in which it proceeded to determine its own jurisdiction whether this jurisdic-

1953 ICJ Reports at p. 119. See also the Monetary Gold Case, 1954 ICJ Reports at pp. 28–9. The Court found that the objection raised had been properly and validly raised (even though raised by the complainant) and decided on the matter of its competence that it had no jurisdiction to adjudicate on the merits of the case. 32

33

La Compétence de la Compétence

25

tion had been challenged or not.34 The principle has been referred to with particular emphasis in individual opinions in three cases. In the Judgments of the Administrative Tribunal of the I.L.O. Opinion Judge Cordova described the compétence de la compétence of a judicial body as an obligation of the body.35 In the Norwegian Loans Case Judge Lauterpacht in a separate opinion in dealing with an issue with which the Court thought it unnecessary to deal, because it found that it had no jurisdiction on other grounds, confirmed the ICJ’s compétence de la compétence reflected in Article 36(6) of its Statute and derived from a fundamental principle of both international and national law.36 There are several contentious cases in which the compétence de la compétence has been exercised by the Court, where no objection has been raised to its exercise.37 It has been assumed that the power exists.

See, e.g., the Corfu Channel Case (Merits), 1949 ICJ Reports at pp. 23–6; the Ambatielos Case (Jurisdiction), 1957 ICJ Reports at p. 28; the Interpretation of the Peace Treaties Opinion, 1950 ICJ Reports at p. 72. In the Effect of Awards Opinion the Court referred to the power to decide upon its jurisdiction as an attribute of the judicial character of an international court or tribunal: 1954 ICJ Reports at p. 163. 35 1956 ICJ Reports at p. 163. This was a dissenting opinion but there was no express disagreement on the point made here. 36 1957 ICJ Reports at p. 44. The opinion was not a dissenting opinion. See also the dissenting opinion of Judge Guerrero: ibid. at pp. 68–9. In the Interhandel Case Judge Lauterpacht reiterated the views he had expressed in the Norwegian Loans Case: 1959 ICJ Reports at p. 104. See also in the same case the separate opinion of Judge Spender: ibid. at p. 56, and the dissenting opinion of Judge Armand-Ugon: ibid. at p. 92. 37 See, e.g., the Right of Passage over Indian Territory Case (Preliminary Objections), 1957 ICJ Reports p. 125; the Aerial Incident (Israel v. Bulgaria), 1959 ICJ Reports p. 127; the Temple of Preah Vihear Case (Preliminary Objections), 1961 ICJ Reports p. 17; the Fisheries Jurisdiction (UK v. Iceland) Case (Jurisdiction), 1973 ICJ Reports p. 3; the Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports p. 392; the Qatar and Bahrain Maritime Delimitation and Territorial Questions Case (Jurisdiction and Admissibility), 1994 ICJ Reports p. 112; the WHO Nuclear Weapons Opinion, 1956 ICJ Reports p. 66: the Bosnia Genocide Case (Preliminary Objections), 1996 ICJ Reports 34

26

Chapter 2. Contentious Jurisdiction

It would be true to assert also that the competence is not based necessarily on the consent of the parties to the dispute. It is rather an incident of the exercise of judicial power which inheres in the Court by virtue of its creation or establishment as a judicial tribunal. The ICJ in the Nottebohm Case and Judge Lauterpacht in the Norwegian Loans Case and in the Interhandel Case, as has been seen, regarded the power as an “inherent” power. It is appropriate to regard the jurisdiction as an incidental one that inheres in all international tribunals of a judicial character, which may, however, as a result of recognition of pragmatic needs, be affected or diluted by agreement of the relevant parties in appropriate circumstances, rather than as being based on the implied consent of the parties. Individual judges in both the PCIJ and the ICJ have referred to the general principle applicable to all international tribunals without reference to a qualification based on the clause contraire.38 What is the effect of recognizing the ineffectiveness of the clause contraire seems to be ambiguous. It could be argued first, that the clause itself could be severed from the rest of the jurisdictional agreement and that the whole reservation clause will not be applied because it is invalid, while the rest of the jurisdictional agreement will remain valid. It is also possible, as a second alternative, that the subjective element alone in the clause be struck down as invalid, while the substance of the reservation itself, to be pronounced upon jurisdiction-wise by the Court alone, and the jurisdictional agreement be left to stand. A third alternative is that the whole jurisdictional

p. 595; the Fisheries Jurisdiction (Spain v. Canada) Case (Jurisdiction), 1998 ICJ Reports p. 432; the Diallo Case (Preliminary Objections), 2007 ICJ Reports (<www.icj-cij.org>); the Territorial and Maritime Dispute Case (Preliminary Objections), 2007 ICJ Reports (<www.icj-cij.org>). 38 See, e.g., Judge Moore in the Mavrommatis Palestine Concessions Case (1924), PCIJ Series A No. 2 at pp. 57–8; Judge Urrutia in the Electricity Company of Sofia and Bulgaria Case (1939), PCIJ Series A/B No. 77 at pp. 102–3; Judge Cordova in the Judgments of the Administrative Tribunal of the I.L.O. Opinion, 1956 ICJ Reports at p. 163; Judge Lauterpacht in the Norwegian Loans Case, 1957 ICJ Reports at p. 44; Judge Guerrero, ibid. at pp. 68–9. For the clause contraire in arbitral jurisprudence see C.F. Amerasinghe, op. cit. note 23 pp. 143 ff.

La Compétence de la Compétence

27

agreement is to be treated as invalid because of the presence of an element which militates against the judicial character and independence of the Court. In regard to such a reservation (automatic) in respect of acceptance of the jurisdiction of the ICJ, on the understanding that it is defective and cannot stand, while the Court has not addressed the matter, Judge Lauterpacht on the first occasion39 opted for the third alternative, while on another40 he consistently did the same. Judge Guerrero apparently may have opted for the first alternative,41 insofar as he did not mention the declaration as such at all but referred only to the invalidity of the reservation. Judge Armand-Ugon opted for the first alternative42 and Judge Spender in effect opted for the third alternative.43 Thus, judicial opinion is divided. There is some attraction in the third alternative, because the clause contraire may be considered an integral condition for the acceptance of adjudication. On the other hand, a subjective reservation as a whole may be severed and regarded as out of court because parties are deemed to have known that such a reservation as a whole derogates from the judicial function and must fall in itself. The theory of implied knowledge may equally lead to the acceptance of the second alternative. The ultimate choice of alternative does not reveal itself clearly. In order to give the jurisdictional agreement some effect, which was undoubtedly intended, the choice may lie between the first and second alternatives. At the same time, if the third alternative (Judge Spender) is the correct one, the Court would be under an obligation proprio motu to declare that the jurisdictional agreement is invalid and that there was no valid submission to the Court, regardless of whether the parties raise the issue or not. For the most effective results, i.e., to give the agreement a chance of

39 40 41 42 43

Norwegian Loans Interhandel Case, Norwegian Loans Interhandel Case, Ibid. at p. 57.

Case, 1957 ICJ Reports at p. 44. 1959 ICJ Reports at pp. 101–2. Case, 1957 ICJ Reports at pp. 68–70. 1959 ICJ Reports at p. 93.

28

Chapter 2. Contentious Jurisdiction

surviving, while recognizing the wishes of the parties to some extent, the second alternative would serve the best. Exactly the opposite alternative is to permit the clause contraire to have full effect but in practice this does not ever seem to have happened in the jurisprudence of the Court, though there appear to be dicta supporting the position. There is another possibility which, however, has not been adopted in practice whether in decisions of the Court or in obiter dicta, the reason being that the issue has neither been argued nor decided upon in litigation. This is that an appropriate clause contraire is to be recognized as valid to the extent that it involves the exercise of a discretion which the Court has the power to review and, therefore, control in the exercise of its jurisdiction to determine its own jurisdiction. There are two matters of importance in this regard. First, the clause contraire cannot be so wide and general that it becomes impossible for the Court effectively to review the discretion incorporated in the clause. Secondly, a limited subjective reservation in a clause contraire would be controlled by reference to the principle of abuse of discretion which is known, inter alia, in international administrative law. The Court would not be substituting its own judgement for that of the party concerned but would verify that the discretion had been exercised in good faith, inter alia, and without abuse. If this degree of control over jurisdiction, where there is a clause contraire, were allowed to prevail, it is possible to reconcile giving some effect to the clause contraire with the requirement of not “undermining the judicial character or independence of the tribunal”. While recognizing the autonomy of the parties to an appreciable extent, the power of the Court to determine its own jurisdiction is also to some extent, though not totally, respected. The consequence of having a clause contraire which is too general and wide would still be that it is to be regarded as invalid, because it becomes impossible for the Court to exercise any control at all over determining its own jurisdiction, while a limited clause contraire would be valid, because it permits control by the Court over an exercise of discretion, thus safeguarding in large measure the judicial character and independence of the Court.

La Compétence de la Compétence

29

The Court has not determined the issue, as part of a ratio decidendi, i.e., as a conclusion or part of a conclusion required for the disposition of the case in hand, whether a clause contraire or its equivalent, such as the “automatic reservation”, intended to have effect between parties to a case, is or is not valid. However, as seen, there have been some judges in the ICJ who have addressed the issue. All the judges who have addressed the issue without exception took the view that acceptance of the compulsory jurisdiction of the Court under Article 36(2), which expressly permitted reservations to jurisdiction, could not place the determination of the question whether the reservation to jurisdiction applied to deprive the Court of jurisdiction in the hands of one of the parties, this being a matter for the Court under the express provision of Article 36(6), which incorporated the principle of la compétence de la compétence. This view left the question what was the effect of the ineffectiveness of the subjective element in the automatic reservation to be decided. As was concluded above, where the automaticity of a reservation is rejected, the reservation of jurisdiction should be allowed to stand, the “automatic” element in the reservation alone being regarded as inoperative, rather than the total submission to jurisdiction being struck down. The important question is whether the alternative solution proposed, by which a clause contraire would have limited effect, can be accepted in the case of submission to the jurisdiction of the ICJ, whatever the source of submission, i.e. whether the submission is, for example, by ad hoc agreement (Article 36(1) of the ICJ Statute) or by acceptance of the Optional Clause pursuant to Article 36(2) of the ICJ Statute. Judge Lauterpacht discussed the possibility that the “automatic reservation” be given effect to, provided the determination that the dispute fell within the reserved category was made in good faith.44

44

Norwegian Loans Case, 1957 ICJ Reports at pp. 52 ff.

30

Chapter 2. Contentious Jurisdiction

Good faith is one aspect of the proper exercise of a discretion. As pointed out, a clause contraire could be regarded as having limited effect if the discretion involved in deciding on jurisdiction is exercised without abuse by the party concerned and the Court had the power to decide whether the discretion had been abused. Thus, the issue raised by Judge Lauterpacht may be framed more broadly in terms of abuse of discretion rather than of absence of good faith alone. Whichever way the matter is framed, it is arguable that even this limited effect cannot be accorded to the subjective element in a reservation to jurisdiction such as the “automatic reservation”. The reason for taking this position is that the PCIJ and the ICJ have been established by multilateral action and the jurisdictional aspects of their functions are subject to multilateral agreement which cannot be affected by bilateral arrangements or those based on unilateral action with multilateral effects, even though such arrangements in one form or another may additionally be required or permitted for the incidence of valid jurisdiction. Permitting any dilution of what is expressed or implied by the multilateral arrangement and is fundamental to its object, purposes and intent by such arrangement is not consistent with the proper interpretation of the multilateral arrangements nor with their structure. Bilateral arrangements or those based on unilateral action with multilateral consequences, relating to jurisdiction of this kind, are not strictly on a par with reservations to multilateral treaties which are made at the time of signature or ratification of the treaties and are governed by Article 2(1)(d) and Articles 19 to 23 of the 1969 Vienna Convention on Treaties. Such arrangements or their equivalent are subsidiary arrangements made pursuant to the multilateral treaty or permitted by the latter and must be considered as such. Thus, they cannot be given an effect which is not contemplated by the multilateral agreement or is fundamentally inconsistent with it. Even if they were regarded as reservations proper, it is necessary that they must not be incompatible with the object and purpose of the treaty (Article 19(c) of the 1969 Vienna Convention). It is arguable that a clause contraire or an “automatic reservation”, however it is given effect to, is incompatible with a fundamental object and purpose of the multilateral arrangement, namely to vest in the Court the unquali-

La Compétence de la Compétence

31

fied power to determine its own jurisdiction – an attribute which is fundamental to the judicial character of tribunals. This approach may be countered, as will be seen below in the discussion of the Optional Clause by the view of the clause contraire taken above, based on abuse of discretion. Another issue relating to la compétence de la compétence is whether the Court has the power to decide on its own jurisdiction (la compétence de la compétence) proprio motu, if it is not raised by the parties. This issue must be distinguished from the issue whether the Court may raise proprio motu the question whether it does have jurisdiction, if the parties do not address the issue in a particular case. It is a subtle but important distinction.45 The question whether the Court has la compétence de la compétence is not a question that generally must be decided, if the Court is to proceed with the case. Indeed, in many cases the Court has simply decided on its jurisdiction. The question whether the issue of la compétence de la compétence may be raised proprio motu by the Court has, therefore, not generally been argued before it. What has happened is that, when the issue of its competence to deal with its competence has been raised before the Court, it has addressed it but, where it has not, it proceeded more recently on the assumption that it had such competence to deal with its own competence. The fact that the Court has proceeded to address issues relating to its competence without always raising proprio motu the issue whether it had the competence to decide on its own competence does not necessarily mean that it may not do so. Where, if this were possible, there is a reasonably apparent issue arising from the circumstances of the case or instruments of

Some authors confuse these issues in dealing with a court’s power to decide whether it has la compétence de la compétence: see, e.g., Shihata, The Power of the International Court to Determine its own Jurisdiction (1965) pp. 56–68, where in a chapter dealing mainly with the establishment of la compétence de la compétence the author discusses the question whether the question of compétence, i.e., once the compétence to decide on compétence has been established and the compétence to decide on compétence has been exercised, may be raised proprio motu. The issue discussed here has not been discussed before. 45

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submission to jurisdiction whether such competence to decide on competence did or did not exist, the Court could still act proprio motu. The reason why the Court has so far not acted proprio motu is that its experience has most likely been that such an issue has not been reasonably apparent, whenever the issue has not been raised by one of the parties. As will be seen below, questions of competence itself may, and must, generally be raised proprio motu by the Court. Where exceptionally this may not be done, the exceptional circumstances must be established before the Court. If questions of competence may be raised proprio motu generally, there is no reason why the question of la compétence de la compétence may not be raised proprio motu where this is called for in an appropriate case, in order to dispel any doubts and state the legal position clearly. There may, indeed, be circumstances in which this is called for, although these may be extreme, particularly where the instruments of submission have indications that the Court was to be (either partially or fully) deprived of the power to decide on its jurisdiction. The Court must then raise the issue proprio motu and decide how far the attempt to deprive it of that power has effect. In this regard also a distinction must be made between the finality of determination by the Court that it has or has not the jurisdiction to decide on its own jurisdiction and the finality of its determination on its own jurisdiction. Determinations on la compétence de la compétence would generally be final to the extent that any determinations of the Court, particularly relating to its competence or jurisdiction, are final. Thus, if such a decision may not be reviewed by another tribunal, and there must be explicit provision for this, or by the Court itself, under the provision of its constitutive instrument or under general principles of law, the decision will be final. The idea that the Court has the authority both to determine whether it has jurisdiction to determine its own jurisdiction and to determine whether it has jurisdiction in a given contentious case has within it a possibility that a conflict of interest may in principle exist. Because in both instances the Court may have an interest in preserving its own jurisdiction and it makes the decision on the issue, it is possible to postulate an inherent conflict of interest. However, in spite of this reality, it has been practice to recognize in the case

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of both national and international tribunals including the PCIJ and the ICJ their legal authority to make these determinations, whether there is an appeal to a higher tribunal or not, though in general in national systems there is some control by a higher judicial authority. In the international system the authority has now in principle come never to be questioned to the extent that it may exist according to law in a given case. COMPÉTENCE

TO

SETTLE DISPUTES

By basic or primary jurisdiction is meant the compétence to proceed to settle the dispute on its merits. As will be seen, there is a jurisdiction relating to the performance of other acts than this in connection with the settlement of the dispute which will often be governed by somewhat different considerations. The requirements for the existence of primary jurisdiction in a given case must be fulfilled for the exercise of that jurisdiction.46 While in general the basis of this jurisdiction is consensual, not only must the tribunal examine the instruments in or sources through which this consent is expressed in order to establish the legal definition of its jurisdictional authority but it must ascertain whether the facts of the situation satisfy that legal definition. Primary (or basic) compétence in contentious cases is derived principally from an instrument (or instruments) which applies to the Court. The instrument is the ICJ Statute. But there are additionally other requirements, generally in the way of an international agreement. Because the Court has a juridiction attribué and not a juridiction de droit commun, the terms of the governing instruments will determine the basic or primary jurisdiction or compétence of the Court.

On objections to jurisdiction generally see Malloy, “Objections to Adjudication in Contentious Cases before the International Court of Justice”. 5 Brooklyn JIL (1979) p. 262, Pratt, “Avoiding a Decision on the Merits in the International Court of Justice”, 7 Sydney LR (1976) p. 433. 46

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On the other hand, as will be seen below, once the basic jurisdiction is determined there are matters in regard to which the Court has an inherent jurisdiction, even though the governing instrument may be silent on these matters. Such matters include the authority to control the proceedings, to decide on remedies and the like. Compétence may be denied to itself by the Court, inter alia, ratione personae,47 ratione materiae48 or even in an appropriate case ratione temporis.49 While interpretation of jurisdictional clauses is not restrictive, it is equally not excessively liberal. While a functional or teleological approach may be warranted in the appropriate circumstances, generally there are limits to functionalism which turn on the avoidance of legislating.50 Compétence also concerns fundamental matters. Jurisdictional limitations relating to compétence depend on what pertains to basic legal qualifications of the Court to examine complaints submitted and to adjudicate on their merits.51 This is as opposed to matters of receivability (recevabilité), for instance, which are not fundamental. The characteristic is important because, among other things, an objection relating to recevabilité may be waived or the opportunity to raise it lost, whereas a defect in jurisdiction can technically never be cured as far as the tribunal’s functioning in the case before it is concerned. The line between lack of competence and irreceivability or inadmissibility is sometimes difficult to draw. The result of

See the discussion of this ground in Rosenne, 2 op. cit. note 15, chapter 10, particularly the reference on pp. 588–9 to the Legality of the Use of Force Cases, 2004 ICJ Reports (<www.icj-cij.org>). The agreement or consent of the parties to a dispute may not cure a defect ratione personae, if the personal requirement flows from the Court’s statute (viz., Article 35(1) and (2)). 48 See Rosenne 2 op. cit. note 15 pp. 637 ff. 49 See Rosenne, 2 ibid. pp. 562 ff. See particularly the Certain Property Case, 2005 ICJ Reports para. 43 (<www.icj-cij.org>). 50 On interpretation of jurisdictional clauses see C.F. Amerasinghe, op. cit. note 23 pp. 101 ff. 51 Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 87. 47

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both is to render the case incapable of being decided on the merits. However, the rules relating to compétence may be stricter than those pertaining to irreceivability or inadmissibility. It is to be noted that the ICJ has been especially careful in recognizing clearly the distinction between compétence and recevabilité, to the extent that it has criticized the use of terms by a party which blurred that distinction.52 In the Nottebohm Case (Second Phase) the Court regarded and referred to the objection that Nottebohm did not have the nationality of the respondent state as related to admissibility (recevabilité) and not to compétence.53 On the other hand, in the Lockerbie Case, for example, the Court described as objections to jurisdiction the objections that there was no legal dispute and that the requisites of Article 14 of the Montreal Convention relating to settlement by the ICJ had not been satisfied. An objection based on the incidence of an UNSC resolution was in contrast treated as a matter of admissibility (recevabilité).54 The Court could examine objections to its competence proprio motu with the qualification that where the doctrine of forum prorogatum is applicable it may be pointless for the Court to raise matters of jurisdiction proprio motu because the parties may cure any defect in jurisdiction by subsequent conduct which demonstrates agreement or consent to the exercise of jurisdiction in the instant case. The PCIJ (where the doctrine of forum prorogatum applied) raised in one case questions of jurisdiction proprio motu.55 The ICJ, on the other hand, has not specifically raised a matter of jurisdiction proprio motu, by requesting the parties to argue a defined question of jurisdiction. A few cases decided by the Court show, however, that there are circumstances in which, in spite of the possibility of forum prorogatum, the Court may not have jurisdiction because of See the Interhandel Case, 1959 ICJ Reports at p. 26. 1955 ICJ Report, at p. 12. The other two objections relating to the failure to negotiate and to exhaust local remedies were also properly characterized as objections to admissibility (recévabilite): ibid. 54 1992 ICJ Reports p. 3. 55 The Prince von Pless Administration Case (1933), PCIJ Series A/B 52 at pp. 15 ff. 52 53

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the particular nature of the obstacles to compétence. In the South West Africa Cases (Second Phase)56 a point relating to compétence was raised in the course of the deliberations of the Court. This point pertained to the existence of a dispute between the parties. The point was discussed in the judgment but the Court found that a dispute did exist between the parties.57 Such a defect cannot be cured by the agreement of the parties that there is a dispute, whether by conduct subsequent to the institution of proceedings or otherwise.58 There are certain matters relating to jurisdiction on which forum prorogatum has no impact. For example, while a limitation ratione materiae may be subject to forum prorogatum,59 the jurisdictional defect caused by the absence of a dispute or the mootness of the issue contested is not. The objection to jurisdiction based on the non-legality of a dispute or the failure of the party concerned to subject itself properly to the Statute of the ICJ, the latter being a defect ratione personae, would not be subject to forum prorogatum either. A. The Judgment on Compétence and Res judicata The principle of res judicata, as a general principle of law of international adjudication, seems to be well accepted. In the case of the ICJ, Article 60 of its Statute incorporates expressly the principle of res judicata (subject to Article 61) which has been specifically applied to decisions on jurisdiction by the Court. In the Corfu Channel Case (Compensation) Albania challenged the jurisdiction 1962 ICJ Reports at p. 328. On this ground for the absence of compétence see the Mavrommatis Palestine Concessions Case (Preliminary Objection), (1924), PCIJ Series A No. 2 p. 11. 58 In the Nuclear Tests Cases the Court relied on events which had occurred after the proceedings had been closed to conclude that the application had no object, i.e., had become moot, and that the Court was not “called upon to give a decision thereon”: 1974 ICJ Reports at pp. 253 and 457. This kind of obstacle to compétence also cannot be cured by a forum prorogatum. See also the Northern Cameroons Case, 1963 ICJ Reports at p. 15. 59 For this source of or title to jurisdiction see below. 56

57

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37

of the Court with respect to the assessment of damages. The Court held that its jurisdiction was established by its Judgment of 9 April 1949, which was final and without appeal, and that therefore the matter was res judicata.60 The practice of the ICJ shows that under its Statute the principle of res judicata applies equally to matters pertaining to compétence in general as it does to the judgment on the merits of the case, though this is not expressly stated in the Statute itself.61 B. Identifying Matters of Compétence In general, the instruments governing the functioning of and reference to the Court will indicate what are the matters concerning competence, i.e., what is the extent and what are the limits of the Court’s authority in settling the dispute on its merits. But there are certain general principles relating to matters of compétence that may be applicable in the absence of specific mention in these instruments, such as the principles relating to the requirement of non-mootness62 or to the presence of a dispute.63 Some principles may be so fundamental that even consent among the parties to the dispute or explicit provisions in the governing instruments do not have a countervailing effect. This point is discussed further below. A question of some importance that arises in respect of jurisdiction is how to distinguish matters of compétence from matters of recevabilité. The first point is that much will depend on the interpretation of the governing instruments, which means that there is some flexibility and some discretion left to the parties. A good

The Corfu Channel Case (Compensation), 1949 ICJ Reports at p. 248. See also, e.g., the Haya de la Torre Case, 1951 ICJ Reports at p. 80; the Bosnia Genocide Case, 2007 ICJ Reports paras. 114 ff. (<www.icj-cij.org>). 62 See, e.g. the Nuclear Tests Cases, 1974 ICJ Reports at pp. 253 and 457, and the Northern Cameroons Case, 1963 ICJ Reports at p. 15. 63 See, e.g., the Mavrommatis Palestine Concessions Case (Preliminary Objection), (1924) PCIJ Series A No. 2 at p. 11, and the South West Africa Cases (Second Phase), 1962 ICJ Reports at p. 328, for this ground of the absence of jurisdiction. 60 61

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example of this is the nationality of claims rule or variations of it which in customary international law is regarded as a rule relating to recevabilité and not to compétence where it is applicable64 but may become a matter of compétence, only if the parties so agree.65 Restrictions ratione temporis, to take another example, often could be matters of compétence or matters of recevabilité depending on how the governing instruments are framed in the given case.66 The second point is that there could be situations in which the question is answered by the Court by interpreting the governing instruments. Thirdly, because of the nature of compétence as a juridiction attribué, it is likely that there is a basic presumption of interpretation that what is regarded by the Court as a matter of fundamental importance in the light of the governing instruments or their interpretation will be treated as a matter of compétence rather than as a matter of recevabilité. The approach taken by the ICJ in the ILOAT Judgments Opinion in discussing the basic legal qualifications of the ILOAT to decide the merits of disputes would seem to indicate this conclusion. Compétence was, in effect, described in terms which related to the basic legal qualifications of a tribunal in a given situation to decide the merits of disputes.67 C. Time for Raising Issues of Compétence If, as has been pointed out above, absence of competence cannot be cured, e.g., by default of the parties or of the tribunal, because compétence is a matter which is fundamental, then technically it would follow that (i) it is reasonable and in keeping with proper See the Nottebohm Case (Second Phase), 1955 ICJ Reports at pp. 12 and 26. 65 See the decision of the Iran–US Claims Tribunal on the issue in Iran– United States Case No. A/18 (1964), 5 Iran–US CTR p. 251. 66 Generally matters of standing (locus standi) are concerned with jurisdiction and not receivability. On standing before the ICJ see Sonborn II, “Standing before the International Court of Justice: The Question of Palestinian Statehood Exemplifies the Inconsistencies of the Requirement of Statehood”, 7 Calif. WILJ ( 1977) p. 454. 67 1954 ICJ Report, at p. 87. 64

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adjudicatory procedure and justice that issues as to compétence may be raised at any time and do not necessarily have to be raised at a particularly early stage in the proceedings, and (ii) unless the issues are in fact raised by the parties or by the tribunal and the parties are given an opportunity to address the issues, the issues can never become res judicata. An exception has to be made, however, where the doctrine of forum prorogatum is applicable, in which case unless the issue of lack of compétence is raised at the appropriate time and before the subsequent conduct giving rise to consent to compétence can take effect, the consent given by subsequent conduct would cure any defects in jurisdiction. Forum prorogatum has been applied as a source of consent to competence hitherto only by the World Court. The consequence is that the time limit in its procedural rules becomes mandatory in terms of compétence. The issue of the effect of provisions in the rules of procedure on the substantive content of compétence and its recognition has been impliedly addressed or pronounced on by the World Court in that it has promulgated the effectiveness of forum prorogatum in relation to its own compétence in its judgments.68 D. Sources of Jurisdiction (i) Multiple Sources The source or sources of jurisdiction of the Court are the instruments or other modalities through which the consent of the parties, whether direct, indirect, implied or imputed, is expressed.69 In the case of the Court the initial source is the Statute. Beyond that there is no formal or standard requirement for a source and sources may be sought in any place where they may be located. In fact, there may be several sources from which may flow the jurisdictional authority

Preliminary exceptions before the ICJ are discussed in Herczegh, “Exceptions préléminaires dans la pratique récente de la Cour internationale de Justice”, 5 Romanian JIL (1999) p. 214. 69 Sources are sometimes referred to as “titles”. 68

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of the Court and which may not only be multiple but be successive or possibly introduced at a later stage in the proceedings.70 Such matters have given rise to issues before the ICJ. The basic general principle which applies to multiple sources and its application were best explained by the PCIJ in the Electricity Company of Sofia Case: In its opinion, the multiplicity of agreements concluded accepting the compulsory jurisdiction is evidence that the contracting Parties intended to open up new ways of access to the Court rather than to close old ways or to allow them to cancel each other out with the ultimate result that no jurisdiction would remain. . . . It is necessary therefore in the first place to consider whether the objections raised by the Bulgarian Government to the jurisdiction of the Court under the Treaty are well founded or not. Should they prove well founded, the Court will then consider the objections raised by that Government under the declarations (in accordance with Article 36 of the Statute). . . . Only if both these sets of objections are alike held to be well founded will the Court decline to entertain the case.71

Multiplicity of sources has arisen before the PCIJ and ICJ: see, e.g., the Electricity Company of Sofia Case (1939), PCIJ Series A/B No. 77; the Corfu Channel Case, 1947–48 ICJ Reports p. 15; Armed Activities (DRC v. Rwanda) Case, 2006 ICJ Reports (<www.icj-cij.org>). Title to jurisdiction was referred to in the Legality of the Use of Force Cases, 2004 ICJ Reports (<www.icj-cij.org>). Successive sources have been addressed in the Barcelona Traction Company Case (Preliminary Objection), 1964 ICJ Reports p. 6, Temple of Preah Vihear Case (Preliminary Objection), 1961 ICJ Reports p. 17. There have been several cases before the ICJ in which additional titles introduced during the proceedings have been discussed: see, e.g., the Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports p. 392, the Bosnia Genocide Case (Provisional Measures), 1993 ICJ Reports p. 3. 71 (1939), PCIJ Series A/B No. 77 at p. 76. See now the Territorial and Maritime Dispute (Preliminary Objections), (Nicaragua v. Colombia) Case, 2007 ICJ Reports (<www.icj-cij.org>) where there were two sources of jurisdiction, namely the Pact of Bogotà and the acceptances of jurisdiction under the Optional Clause. The Court held that jurisdiction under one of the titles, namely the Pact of Bogotà, was adequate to found its compétence. 70

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41

While there may be more than one source, they are generally cumulative in effect and not exclusive, unless there is a contrary intention. (ii) Validity in Time A source of jurisdiction is effective from the date on which it enters into force until the date on which it ceases to be in force. When the source is a treaty or a written document, these dates will be determined, in case of uncertainty, by application of the general principles of interpretation of such instruments. The main problem that arises is when the proceedings have been instituted outside the two dates referred to above – the commencement date and the termination date – in regard to written instruments. The issue does not concern the mention in the treaty of specific dates before the commencement date and after the termination date which relates to a temporal factor in the content or scope of jurisdiction but a matter of the date of validity of the source of jurisdiction. There are circumstances in which it has been recognized that jurisdiction may exist where proceedings have been instituted before the source of jurisdiction becomes valid. The issue concerns a formal element ostensibly as contrasted with a matter of substance. It was disposed of very practically by the PCIJ in the Mavrommatis Palestine Concessions Case (Jurisdiction).72 While the Court mentioned the existence of the source of jurisdiction, the Treaty of Lausanne, and the treaty had been signed, thus having an inchoate validity, so to speak, the Court did not place much emphasis on this fact. What it did focus on was the fact that the institution of proceedings had taken place before the coming into force of the source of jurisdiction. Be that as it may, the principle that would seem to emerge is that, whenever proceedings before the Court are instituted before the operative source of jurisdiction is effective, any defect that may exist because the institution of proceedings is premature, which would be fatal, if the defect were not cured by the time the case is taken up for adjudication, will not cause

72

(1924), PCIJ Series A No. 2 at p. 34.

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the failure of jurisdictional authority, if the defect in the validity of the source is “covered” (couvert) by subsequent events which give the source the necessary validity before the case is taken up for adjudication. This is, of course, subject to an express contrary indication in the source. (iii) Termination of Validity The general principle applied by the ICJ is that the termination of the source of jurisdiction is effective for the future and makes invalid proceedings not instituted before the effective date of the termination. In the Northern Cameroons Case, where the source of jurisdiction, the Trusteeship Agreement, was terminated on 1 June 1961, the ICJ said that “Article 19 of the Agreement which provided for the jurisdiction of the Court . . ., was terminated with all other Articles of the Agreement, so that after l June 1961 it could not be invoked as a basis for the Court’s jurisdiction”.73 The two complementary aspects of the principle may be reflected in the propositions that (i) reliance cannot be placed on a source of jurisdiction that has terminated before the proceedings are instituted and is no longer in force, and (ii) where proceedings relying on a source of jurisdiction are instituted before the validity of that source of jurisdiction terminates, the continuation of the proceedings so instituted is not affected by the termination of validity of the source of jurisdiction. The first proposition was clearly supported in the Pajzs, Csáky, Esterházy Case (Preliminary Objection), where the PCIJ confirmed the submissions agreed upon by both parties that, because the acceptance of the Optional Clause of the Court’s Statute by one of the parties had lapsed without being renewed before the application of the claimant party had been filed, the acceptance of the Optional Clause by that party had ceased to be binding on it when the application was filed, with the result that the Court had no jurisdiction over it.74 The second proposition was contested by the respondent

73 74

1963 ICJ Reports at p. 35. (1936), PCIJ Series A/B No. 66 at p. 5.

Compétence to Settle Disputes

43

in the Nottebohm Case (Preliminary Objection) where one party’s acceptance of the Optional Clause of the ICJ’s Statute had lapsed shortly after the proceedings were instituted. The Court ruled against the respondents and held that the proceedings would continue.75 An incidental question that may arise is whether there is a presumption that treaties relating to judicial settlement or declarations of acceptance of the Optional Clause in the ICJ’s Statute may be unilaterally denounced in the absence of express provision to the contrary. The ICJ in the Fisheries Jurisdiction Cases (Jurisdiction of the Court) adverted to the issue without fully resolving it but held that in the case of the Exchange of Notes (1961) in the dispute before it the contention that the jurisdictional clause had lapsed, or was terminable, could not be accepted.76 E. Fundamental Limitations on the Scope of Primary Jurisdiction The existence of certain limitations on jurisdiction arising from such matters as mootness or the absence of a dispute has been mentioned earlier in this chapter. While the matter has not been discussed in specie by the World Court, it is possible, indeed likely, that there are some principles relating to jurisdiction which are so fundamental that even consent between or among the parties to the dispute or explicit provisions in the governing instrument do not have a countervailing effect. The first question is whether it is correct to acknowledge the existence of unchangeable fundamental principles, i.e., virtually a

1953 ICJ Reports at pp. 122–3. In several other cases before both the PCIJ and the ICJ the situation was comparable but the parties did not contest the issue: see the Losinger Case (1936), PCIJ Series A/B No. 67, the Phosphates in Morocco Case (1938), PCIJ Series A/B No. 74, the Anglo-Iranian Oil Co. Case (Preliminary Objection), 1952 ICJ Reports p. 93, the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at p. 142, the Nuclear Tests Cases, 1974 ICJ Reports at pp. 253, 457, the Nicaragua Case (Merits), 1986 ICJ Reports at p. 28. 76 1973 ICJ Reports at pp. 15 and 60. 75

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ius cogens, relating to certain limitations on the jurisdiction of the Court. The second endeavour is to identify these principles as far as possible or at least give some indication of what they may be. As far as ius cogens is concerned, it is difficult not to recognize that, for example, the principle that there must be a dispute or the matter before the Court must not be moot, thus making an adjudication without purpose, is fundamental. It would seem that such principles as this one are so fundamental to the proper and just exercise of the judicial function that it is impossible to conceive of a judicial body not only not being permitted to apply them but having to do other than to apply them in making an initial determination that it has jurisdiction to proceed with the adjudication at all. The crux of the problem really is whether these principles may be altered by the consent of the parties, in addition to there being a compelling effect as a result of their fundamental character. Thus, if a matter brought before the Court is moot, it would be without purpose to adjudicate on it. If the Court finds that this is so, even if there is agreement between or among the parties that the adjudication should proceed, for example, because they would like to have a declaration of the law for future reference, would the Court be bound to recognize and give effect to that agreement and not refrain from exercising its jurisdiction which it would otherwise refrain from doing? The answer seems ineluctable that it is not so bound. The point is that principles such as this one are so inherently basic to the appropriate and just exercise of the judicial function that they must always be at the disposal of the Court to apply as ius cogens. In any-event, it is to be expected that, in keeping with general principles of interpretation, the Court will interpret their governing instruments in such a way as to conform to such basic principles. A more difficult question is what are these fundamental principles. (i) The Need for a Dispute which is Legal The first principle that may be identified relates to the requirement that there be a dispute and the second principle refers to the related requirement that the dispute be legal. The two principles may be considered together.

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There had been much discussion by the ICJ (and the PCIJ) of the requirement that there be a dispute in order that the Court may have jurisdiction. The requirement has not been related by the Court specifically to any provision in its governing instruments. The Statute refers to disputes in numerous provisions,77 and there is a specific reference to “legal disputes” (les differends d’ordre juridique) in connection with the recognition of the Court’s compulsory jurisdiction pursuant to Article 36(2), while Article 36(1) dealing with the Charter of the UN, treaties and conventions as sources of jurisdiction uses the term “cases” (les affaires). Not much seems to rest on the specific use of the terms “dispute” or “legal dispute” in the governing instruments of the Court. The Court’s treatment of the matter reveals that this is the case, so that the two requirements are entrenched in the general principles of law applying to it. As the Court has stated: “the existence of a dispute is the primary condition for the Court to exercise its judicial function”.78 The classic definition of “dispute” is that given by the PCIJ in the Mavrommatis Palestine Concessions Case (Preliminary Objection): “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.”79 The Court

See, e.g., Articles 36, 38, 40 and 60 of the statute. See also Mosler, “Political and Justiciable Legal Disputes: Revival of an Old controversy” in Contemporary Problems of International Law: Essays in Honour of Georg Schwazenberger (1988) p. 216, McWhinney, Judicial Settlement of International Disputes: Jurisdiction, Justiciability and Judicial Law – Making of the Contemporary International Court (1991) pp. 189 ff., Sugihara, “The Judicial Function of the International Court of Justice with Respect to Disputes Involving Highly Political Issues”, in Muller (ed.), The International Court of Justice (1997) p. 117. 78 The Nuclear Tests Cases, 1974 ICJ Reports at pp. 271 and 476. In the Certain Property Case the respondent, Germany, argued that there was no dispute between the parties for the Court properly to exercise jurisdiction in the case. The argument was rejected by the Court: 2005 ICJ Reports (<www.icj-cij.org>). 79 (1924), PCIJ Series A2 at p. 11. There are several other ICJ cases in which this view was adopted: see, e.g., the Right of Passage Case (Merits), 1960 ICJ Reports at p. 34, South-West Africa Cases (Preliminary Objections), 1962 ICJ Reports at pp. 328, 343; East Timor Case, 1995 ICJ Reports at p. 99, the Certain Property Case, 2005 ICJ Reports para. 24 (<www.icj-cij.org>). The 77

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satisfies itself that a dispute in those terms exists by examining, inter alia, the positions of the parties as expressed in the diplomatic history of the matter, including discussions in organs of the UN and the pleadings, and in general refers to the relevant circumstances. In the Oil Platforms Case (Preliminary Objection), where the parties differed on the question whether the impugned actions constituted a violation of a treaty, the dispute being as to the interpretation or application of that treaty, the ICJ said in deciding whether there was a dispute “In order to answer that question, the Court cannot limit itself to noting that one of the Parties maintains that such a dispute exists, and the other denies it.”80 Thus, whether a dispute exists or not is a matter for the Court to determine. That is to say, it is dependent neither upon the subjective assertion by one party that a dispute exists81 nor upon an equally subjective denial by another party that a dispute exists.82 For the purpose of this enquiry the Court must make an objective determination83 that there exists an international dispute, that is, that the claim of one party is positively opposed by the other, as the Court pointed out in the South-West Africa Cases (Second Phase).84 The Court made it quite clear that it is not adequate simply to show that the interests of the two parties are in conflict.85

definition really relates to a “legal dispute”. The references to “law” and “legal” being removed, the nature of a “dispute” would emerge. 80 1996 ICJ Reports at p. 810. 81 South-West Africa Cases (Preliminary Objections), 1962 ICJ Reports at p. 328; East Timor Case, 1995 ICJ Reports at p. 100; the Certain Property Case, 2005 ICJ Reports para. 24 (<www.icj-cij.org>). 82 Land, Island and Maritime Frontier Dispute Case, 1992 ICJ Reports at p. 555, Peace Treaties Opinion, 1950 ICJ Reports at p. 74, UN Headquarters Agreement Opinion, 1983 ICJ Reports at p. 27. 83 Peace Treaties Opinion, 1950 ICJ Reports at p. 74. 84 1966 ICJ Reports at p. 33. See also the East Timor Case, 1995 ICJ Reports at p. 100. 85 1966 ICJ Reports at p. 33. In this case the Court raised proprio motu the question whether any dispute existed at all. See also on the question of a dispute as a requirement for the Court’s jurisdiction: Jennings, “Reflections on the Term Dispute”, in Macdonald (ed.), Essays in Honour of Wang Tieya (1994) p. 91.

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The dispute must also be legal. In this connection that the proceedings have been politically inspired, as a means of exerting pressure on a state, does not affect the legal character of the dispute. In the Border and Transborder Armed Actions Case the Court said: The Court is aware that political aspects may be present in any legal disputes brought before it. The Court, as a judicial organ, is however only concerned to establish, first, that the dispute before it is a legal dispute, in the sense of a dispute capable of being settled by the application of principles and rules of international law, and secondly, that the Court has jurisdiction to deal with it, and that that jurisdiction is not fettered by any circumstance rendering the application inadmissible. . . . (I)t cannot concern itself with the political motivation which may lead a State at a particular time, or in particular circumstances, to choose judicial settlement.86

In the Interhandel Case the Court pointed out that “the divergent views of the two Governments were concerned with a clearly defined legal question.”87

There is no requirement of formality in the opposing views for a dispute to arise and exist: Tunisia/Libya Continental Shelf Case (Revision), 1985 ICJ Reports at p. 192; the UN Headquarters Agreement Opinion, 1988 ICJ Reports at pp. 28, 30. Matters connected with the existence of a dispute become especially relevant where jurisdiction depends on the date on which the dispute came into existence: see. e.g., the UN Headquarters Agreement Opinion, ibid. More recently see the Territorial and Maritime Dispute Case (Nicaragua v. Colombia) (Preliminary Objections), 2007 ICJ Reports (<www.icj-cij.org>). 86 1988 ICJ Reports at p. 91. 87 1959 ICJ Reports at p. 21. In the Arrest Warrant of 11 April 2000 Case (2002), (<www.cij-icj.org>) paras. 23–8, the Court held that, because there was a “legal dispute” at the time the Court was seized of the case, on which fact the parties agreed, its jurisdiction was not taken away merely by subsequent events which changed the situation. See also on a “legal dispute” the Territorial and Maritime Dispute Case (Nicaragua v. Colombia) (Preliminary Objections), 2007 ICJ Reports (<www.icj-cij.org>). It is also the case that the fact that political issues surround a dispute that is otherwise legal does not make the dispute non-legal and therefore non-justiciable: the Hostages Case, 1980 ICJ Reports at p. 20, the Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports at

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(ii) The Requirement of an Interest A third unalterable principle is that the claimant party must have an interest recognized by law on the subject-matter of the dispute. In the South-West Africa Cases (Second Phase) the ICJ applied this principle in coming to the conclusion that “the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject matter of the present claims . . .”,88 the subject-matter of the claim being related to the mandate that South Africa had had over South West Africa, even though the claimants had been members of the LN which established the mandate. The Court was careful to distinguish between a general interest which lay behind an actio popularis and could not be recognized and a particular interest which could. The claimant must, it is clear, be able to show some involvement giving rise to a direct interest in the subject-matter of the claim and that it is not merely an academic party to the dispute, even if that involvement does not entail the protection of its own legal rights. There is no better defined description of a “legal interest” in international jurisprudence than that given above, though there is apparently a distinction between legal rights and legal interests. (iii) Mootness or Absence of Object Mootness or absence of object in adjudication is another fundamental reason for a tribunal’s not assuming jurisdiction in a particular case. p. 439, Nicaragua v. Honduras, 1988 ICJ Reports at p. 91. Also that other settlement procedures of a political nature have been resorted to simultaneously is no obstacle to the justiciability of a dispute: The Hostages Case, 1980 ICJ Reports at p. 21, the Nicaragua Case, 1988 ICJ Reports at pp. 92 ff., the Lockerbie Case, 1992 ICJ Reports p. 3. On the last case see Lowe, “Lockerbie – Changing the Rules during the Game”, 51 CLJ (1992) p. 408. After a legal dispute is found to exist the Court must identify the subject-matter of the dispute: see the Certain Property Case, 2005 ICJ Reports para. 26 (<www.cij-icj.org>). It may also be pointed out in passing, though this issue has not been addressed by the Court, that whether a settlement is requested by the application of law or whether an ex aequo et bono solution is requested does not affect the question of the legal nature of the dispute. 88 ICJ Reports at p. 51.

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In both the Nuclear Tests Cases89 and the Northern Cameroons Case90 the ICJ held that it could not proceed with the merits of the case because the issues raised were moot and there was no purpose served by doing so. In the former two cases the claimants in effect required the Court to find that the carrying out of the nuclear tests in the South Pacific Region giving rise to radioactive fallout was a violation of international law. After the filing of the applications the respondent by unilateral declaration undertook not to carry out atmospheric nuclear tests in the South Pacific Ocean. Even though in both cases only a declaratory judgment was sought, because the Court found that the dispute had ceased to exist by the time it was ready to give its decision as a result of the unilateral declaration made by the respondent, so that the object of the claim had been achieved by other means, it decided that no further judicial action was required.91 The explanation of what the Court understood mootness to mean in terms of the possibility of retroactive or prospective action or avoidance thereof is important, as is the approach in the circumstances to a declaratory judgment. Although the Court may have regarded the matter as one involving its discretion to adjudicate on the merits,92 the issue is properly regarded as a fundamental aspect of compétence. Ascertainment of mootness depends on the circumstances of the case. Factors such

1974 ICJ Reports at pp. 253 and 457. See Ruiz, “Mootness in International Adjudication: the Nuclear Tests Cases”, 20 German YBIL (1977) p. 358. 90 1963 ICJ Reports at p. 15. 91 In the latter case referred to above, after the filing of the application the Trusteeship Agreement came to an end. The Court held that the case was moot and devoid of object because of the latter fact. It made it clear that even though only a declaratory judgment was requested adjudication on the merits would be inconsistent with the judicial function: ibid. at pp. 37 ff. In the Border and Transborder Armed Actions Case, 1990 ICJ Reports at p. 95, the Court stated that “subsequent events may render an application without object”. That the decision of the case will be without object must be clearly established for the Court’s jurisdiction not to exist: the Arrest Warrant of 11 April 2000 Case (2002), <www.cij-icj.org> paras. 29–32. 92 Ibid. at pp. 37, 38. Some writers regard mootness as a ground for the exercise of a discretion: see Rosenne, 2 op. cit. note 15 pp. 532 ff. 89

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as the nature of the remedy requested and its relationship to the change in circumstances, the changed circumstances themselves and considerations of practicality undoubtedly are relevant. In the ultimate analysis a finding of mootness or absence of purpose involves an exercise of judgment. However, this does not mean that once the determination of mootness or absence of purpose is made there needs to be a discretion vested in the Court as to whether it should proceed to examine the merits. Once such a determination is made the Court has no alternative but not to exercise its jurisdiction to adjudicate on the merits. (iv) Constitution of the Court A relevant defect in the constitution of the Court would theoretically prevent it from having compétence. It is another reason of a fundamental nature for the Court’s not assuming jurisdiction. That the Court must be properly and legally constituted for it to have competénce is a principle of ius cogens.93 (v) The Rule in the Monetary Gold Case The rule in the Monetary Gold Case94 also lays down a principle that is fundamental to the exercise of jurisdiction by an international tribunal. In that case both Italy and Albania had claims to the gold in question and the issue contested was whether either of those claims, and if so which, had priority over the British claim to the gold, which was made in order to satisfy the judgment in another case. Italy claimed priority over Albania. Albania was not party to the proceedings in the case. The Court took the view that in order to decide the issue raised it was necessary to determine whether certain Albanian legislation of 1945 was contrary to international law. In the determination of that question, only Albania and Italy were interested. The Court said that to go into the merits of such

The Court has not faced the situation envisaged. See for other tribunals, C.F. Amerasinghe, op. cit. note 23, chapter 6. 94 1954 ICJ Reports p. 19. 93

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questions would be to decide a dispute between Italy and Albania and that The Court cannot decide such a dispute without the consent of Albania. But it is not contended by any Party that Albania has given her consent in this case either expressly or by implication. To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent. ... Albania has not submitted a request to the Court to be permitted to intervene. In the present case, Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania. ... Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third State, the Court cannot, without the consent of the third State, give a decision on that issue binding upon any State, either the third State, or any of the parties before it.95

The Court accordingly found that the jurisdiction conferred upon it in that case could not, in the absence of consent by Albania, be exercised in respect of that Italian submission, that is, that it was not authorized to adjudicate upon that submission. On a second issue which involved the question of priority as between Italy and the United Kingdom to receive the gold, the Court again asked whether it could adjudicate on that claim. It pointed out that this claim, unlike the first, might seem to concern only Italy and the United Kingdom, both of which had accepted the jurisdiction of the Court. However, according to the jurisdictional instruments the issue of priority between Italy and the United Kingdom would only

95

Ibid. at pp. 32 ff.

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arise when it had been decided that, as between Italy and Albania, the gold belonged to Albania. The Court found, therefore, that the second Italian claim was dependent on the first, and that, because it could not adjudicate on the first Italian claim, it had to refrain from examining the question of priority. The Court held that it could not adjudicate on the second submission. The Court faced a similar situation in the East Timor Case.96 There in a case brought by Portugal against Australia arising from the “Timor Gap” treaty between the two states for the delimitation of the continental shelf between Australia and East Timor occupied by Indonesia, questions arose relating to the legal position of Indonesia, in light of a series of resolutions adopted by the General Assembly and the Security Council relating to the situation in East Timor. Indonesia was not an original party to the proceedings nor had applied to intervene. The Court said, inter alia: the Court would necessarily have to rule upon the lawfulness of Indonesia’s conduct as a prerequisite for deciding on Portugal’s contention that Australia violated its obligation to respect Portugal’s status as administering Power, East Timor’s status as a non-selfgoverning territory and the right of the people of the Territory to self-determination and to permanent sovereignty over its wealth and natural resources.97

The Court emphasized that it was not necessarily prevented from adjudicating when the judgment which it was asked to give might affect the interests of a state which is not a party to the case. However, in the case before it, the Court concluded that it could not exercise the jurisdiction it had because, in order to decide all the claims of Portugal, it would have to rule, as a prerequisite, on

1995 ICJ Reports p. 90. See Sybesma-Knol, “The Indispensable Parties Rule in the East Timor Case”, in Reflections on International Law from the Low Countries in Honour of Paul de Waart (1998) p. 442, Torres Bernardez, “The New Theory of “Indispensable Parties” under the Statute of the International Court of Justice”, in Wellens (ed.), International Law (1998) p. 737. 97 Ibid. at p. 104. 96

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the lawfulness of Indonesia’s conduct in the absence of that state’s consent.98 The Court has also clarified the limits of the rule in the Monetary Gold Case. In the Nicaragua Case (Jurisdiction and Admissibility) it was argued by the respondent that the application was inadmissible as Nicaragua had failed to bring before the Court parties whose presence and participation was necessary. Dismissing that contention, the Court said: There is no doubt that in appropriate circumstances the Court will decline . . . to exercise the jurisdiction conferred upon it where the legal interests of a State not party to the proceedings “would not only be affected by a decision, but would form the very subject-matter of the decision” . . . Where however claims of a legal nature are made by an Applicant against a Respondent in proceedings before the Court, and made the subject of submissions, the Court has in principle merely to decide upon those submissions, with binding force for the parties only, and no other state, in accordance with Article 59 of the Statute. As the Court has already indicated . . . other States which consider that they may be affected are free to institute separate proceedings, or to employ the procedure of intervention. There is no trace, either in the Statute or in the practice of international tribunals, of an “indispensable parties” rule of the kind argued for by the United States, which would only be conceivable in parallel to a power, which the Court does not possess, to direct that a third State be made a party to the proceedings. The circumstances of the Monetary Gold Case probably represent the limit of the power of the Court to refuse to exercise its jurisdiction. . . .99

The Court has recognized the limitations on the rule in other cases. For instance, in cases of delimitation of land frontiers, it has refused to see in the existence of a tripoint with a third state a reason for not proceeding to the determination of the frontier between the two

Ibid. at p. 105. The Court made an obiter statement that the rule would apply to cases involving erga omnes obligations: ibid. at p. 102. 99 1984 ICJ Reports at p. 431. 98

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states properly before it.100 This would not prejudice the position of that third state as regards the tripoint and its relations with the other two states. The judgment would not bind the third state.101 In connection with a dispute relating to the administration of a Trusteeship Agreement for which there were technically three administering authorities, one of which was the “active” partner, in the Phosphate Lands in Nauru Case the Court refused to see in the absence from the case of the other two administering authorities a ground for it not to exercise jurisdiction, while recognizing that the absence of those two states might have an influence on the responsibility of the respondent, a matter for the merits. The Court said: A State, however, which is not a party to a case is free to apply for permission to intervene in accordance with Article 62 of the Statute . . . But the absence of such a request in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for. . . .102

The existence of this rule as a principle of the general international law of jurisdiction seems not to be in doubt. It does not apply when the legal interests of the third state which may possibly be affected do not form the very subject-matter of the decision which would result if the merits were adjudicated upon.

See the Frontier Dispute Case, 1986 ICJ Reports at p. 576, and the Chad/Libya Territorial Dispute Case, 1984 ICJ Reports at p. 33. 101 See also, apart from the cases cited in the previous footnote, the North Sea Continental Shelf Cases, 1969 ICJ Reports p. 3, the Gulf of Maine Case, 1984 ICJ Reports p. 246. and the Jan Mayen Case, 1993 ICJ Reports p. 38, where this was regarded as the correct position. See also the Land and Maritime Boundary between Cameroon and Nigeria Case, 2002 ICJ Reports para. 238 (<www.icj-cij.org>). 102 1992 ICJ Reports at pp. 260 ff. 100

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There has been some controversy on the nature of the rule in the Monetary Gold Case, as defined and delimited by the Court. The view has been expressed that it is a matter of the discretion of the Court that the rule reflects and that it is not a rule defining jurisdiction. The Court used ambiguous language in that it referred to not being authorized to adjudicate, not being able to adjudicate, not being able to exercise its jurisdiction and being precluded from adjudicating upon claims without using the expression that it had no jurisdiction. There were also assertions by judges of the Court in individual opinions that the rule reflected a discretion. In spite of this, the better view is that the rule states a distinct limit on jurisdiction, and a fundamental one at that, which must be applied when the appropriate circumstances are present, leaving no room for a discretionary decision not to apply it.103 This position does not entail rejecting the limits placed upon the scope of the rule by the Court. However, while the basis in consent of the rule is clear, it is still open to discussion what the exact limits are of the rule. (vi) Conclusion The above exposition shows that there are, indeed, certain principles which are important and fundamental enough to be regarded as ius cogens in relation to compétence. The jurisprudence of the World Court has dealt with these principles and they certainly qualify to be regarded as ius cogens, as has been argued above. On the other hand, there may be other such principles which have not been encountered in the Court jurisprudence which would also qualify as ius cogens. F. Jurisdiction under the Optional Clause Jurisdiction originating under Article 36(2), (3) and (5), principally, of the ICJ Statute which is referred to as “compulsory” jurisdiction under the Optional Clause is a particularly singular form of

L. Gross, “Limitations on the Judicial Function”, 58 AJIL (1964) at p. 424, agrees with this view. 103

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jurisdiction in the context of international tribunals. While it is not compulsory in a true sense, it came to be called that because, as a source of jurisdiction, it is based on an act at a given point of time which extends an open and binding invitation on record of a legal nature by one state party to the Statute to all other states, whether parties to the Statute or not at the time, to accept by a subsequent and similar act, provided it is or becomes a party to the Statute, the jurisdiction of the Court to the extent, either fully or partially, that the former state has accepted such jurisdiction or which results in the acceptance by such state of the jurisdiction of the Court vis-à-vis other states that have already accepted the jurisdiction of the Court to the extent that there is a coincidence between the acceptances of the former and the latter. The compulsory feature lies in the binding nature of a unilateral act of one state, as long as it remains on record, to create an obligation to accept the Court’s jurisdiction as a result of the prior or subsequent acts or acts of another state. In other words, the unilateral act either potentially creates mutual consent to jurisdiction or actually consolidates mutual consent to jurisdiction between states, thus, having a legally binding effect as long as it stands on record.104

For the development of the concept of optional clause jurisdiction beginning with the PCIJ statute, see Rosenne, 2 op. cit. note 15, pp. 701 ff. Various aspects of the optional clause jurisdiction and reservations have been discussed, inter alia, in Hudson, The Permanent Court of International Justice 1922–1940 (1943) pp. 190 ff., Briggs, “Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice”, 93 Hague Recueil (1958) p. 229, Waldock, “Decline of the Optional Clause”, 32 BYIL (1955–1956) p. 244, Lawson, “The Problem of the Compulsory Jurisdiction of the World Court”, 46 AJIL (1952) p. 219, Anand, Compulsory Jurisdiction of the International Court of Justice ( 1961), Merrills, “The Optional Clause Today”, 50 BYIL (1979) p. 87, Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice (1995), Scott and Carr, “The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause”, 81 AJIL (1987) p. 57, Maus, Les Réserves dans les declarations d’acceptation de la juridiction obligatoire de la Cour Internationale de Justice (1959), Szafarz, The Compulsory Jurisdiction of the International Court of Justice (1993), Przetacznik, “The Compulsory Jurisdiction of the International Court of Justice as a Prerequisite 104

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The use of this method of creating jurisdiction in an international tribunal was inaugurated in the Statute of the PCIJ in 1920 and this is the first instance of its use in international adjudication. The current form of this jurisdiction with regard to the ICJ flows from the above mentioned articles of the ICJ Statute.105 for Peace”, 68 RDI (1990) p. 39, Kebbon, “The World Court’s Compulsory Jurisdiction under the Optional Clause – Past, Present and Future”, 58 Nordic JIL (1989) p. 257, Verhoeven, “Jus Cogens and Reservations or “Counter-reservations” to the Jurisdiction of the International Court of Justice”, in Wellens (ed.), International Law (1998) p. 195. 105 See also Briggs, loc. cit. note 104 at p. 245, for a statement on the nature of the Optional Clause, and now Alexandrov, op. cit. note 104 pp. 9 ff. That it has the nature of a treaty or international agreement concluded in a special manner and is based on consent is apparent: see the Electricity Company of Sofia Case (Preliminary Objections), (1939), PCIJ Series A/B No. 77 at p. 87, the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at p. 146, the Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports at p. 418, per Judge Alvarez (dissenting but not on this point) in the Anglo-Iranian Oil Co. Case, 1952 ICJ Reports at p. 125, and per Judge Read (dissenting but not on this point), ibid. at p. 142. The notion has been supported by commentators with separate explanations sometimes: see Hudson, op. cit. note 104 at p. 473. note 1, Waldock, loc. cit. note 104, p. 254 ff. Also the declarations are registered under Article 102 of the Charter like treaties with the SG of the UN. However, they are not generally the result of negotiation (although there is nothing to prevent their being so). This has certain consequences for interpretation. There is also an element of vulnerability and unpredictability in the sense that it is not known what another state not already a signatory of the optional clause will make an acceptance of the clause and to what extent such acceptance will coincide with the original declarant’s acceptance: see the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at pp. 142 ff., the Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports at pp. 415 ff. There is mutual consent, but it will not necessarily be known at the time the declaration is made what are the precise obligations assumed by the declarant in regard to jurisdiction in a particular possible proceedings, because this may depend on future declarations, though it will be known in regard to past declarations. There are several cases filed since 1946 with the ICJ, and either decided or disposed of, in which jurisdiction has been based at least partially on the optional clause of Article 36: see the Fisheries Case, the Anglo-Iranian Oil Co. Case, the U.S. Nationals in Morocco Case, the Nottebohm Case, the Norwegian Loans Case, the three Aerial Incident of 27 July 1955 Cases, the Temple of

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(i) The Content of Article 36(2) and (3) There are several special features connected with these jurisdictional clauses. (a) The declaration is ipso facto and without special agreement. It is based not on a negotiated agreement as such but is a unilateral act with legal consequences which may vary with other circumstances. While the jurisdiction does not materialize without the interaction of an act already performed or to be performed in the future by another state and is, therefore, not truly obligatory or compulsory on account per se of the declaration, it is certainly not based on an agreement as such, negotiated at some point of time, which is involved under the provisions of Article 36(1), though it could very well be that a declarant may have been induced to make a declaration in the form it did and with the particular content as a result of particular negotiations with a state or states that has or have already made a declaration.106 It may be described as compulsory or obligatory

Preah Vihear Case. the two Nuclear Tests Cases, the Arbitral Award of 31 July 1989 Case, the Passage through the Great Belt Case, the Nicaragua Case, the two Border and Transborder Armed Actions Cases, the Maritime Delimitation between Guinea-Bissau and Senegal Case, the Jan Mayen Case. the Phosphate Lands in Nauru Case, the East Timor Case, the Land and Maritime Boundary between Cameroon and Nigeria Case, the Fisheries Jurisdiction Case, the Aerial Incident of 10 August 1999 Case. Just over one-third of the contentious cases have involved jurisdiction under the Optional Clause. Preliminary objections based, inter alia, on Optional Clause declarations have been examined in, among others, Malloy, “Objections to Adjudication in Contentious Cases before the International Court of Justice”, Brooklyn JIL (1979) p. 262, Pratt, “Avoiding a Decision on the Merits in the International Court of Justice”, 7 Sydney LR (1976) p. 433, Rosenne, “The Reconceptualization of Objections in the International Court of Justice”, 14 Comun e Stud. (1975) p. 735, Villam, “Preliminary Objections in the New Rules of the International Court of Justice”, 1 Italian YBIL (1975) p. 206, Quéneuduc, “Observations sur le traitement des exceptions préliminaires par le C.I.J. dans les affaires de Lockerbie”, 44 AFDI (1998) p. 312. 106 It is correct to say that negotiation is not necessary as such for the incidence of jurisdiction under Article 36(2), while it is still true that consent and agreement are the basis of the jurisdiction of the Court also under Article 36(2).

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to the extent that, once the declaration is made and stands, an act already performed by another state or to be performed in the future by another state could per se result in the incidence of jurisdiction, such incidence, thus, not being dependent on any further cooperation by the original declarant. On the other hand, there is no difference as to the seisin of the Court when a case is instituted. What Article 36(2) does is to permit or preserve a procedure and form for the incidence or creation of jurisdiction in the Court which is different from those involved under Article 36(1), although in fact the acts and consent of all the parties to a dispute in which the jurisdiction of the Court is invoked by reliance on Article 36(2) are required just as under Article 36(1). The compulsory or obligatory feature of Article 36(2) certainly does not dispense with the element of consent or agreement. Article 36(2) itself describes the agreement that is needed as not special, thus indicating that agreement is not excluded as such as the basis of jurisdiction. In the Right of Passage Case (Preliminary Objections) the Court explained further some consequences of the ipso facto nature of the declaration under Article 36(2) and of the absence of special agreement as follows: The contractual relations between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established “ipso facto and without special agreement”, by the fact of the making of the Declaration. Accordingly, every State which makes a Declaration of Acceptance must be deemed to take into account the possibility that, under the Statute, it may at any time find itself subjected to the obligations of the Optional Clause in relation to a new Signatory as the result of the deposit by that Signatory of a Declaration of Acceptance. A state accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance. It is on that very day that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned.107

107

1957 ICJ Reports at p. 146.

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The system of the Optional Clause includes the right of a state to institute proceedings against another state which is also a party to the system of the Optional Clause, and the obligation to accept jurisdiction invoked against it by such other state. This refers both to the states which at the time the state becomes party to the system are parties to the system, and to those which may become party to it later. By implication it does not include states which at some future date have ceased to be parties to the system, despite the fact that they were parties when the state concerned became a party to the system. Jurisdiction itself will depend on the coincidence of the declarations of the parties to a dispute submitted to the Court. While under Article 36(1) the jurisdiction is defined generally in one instrument but may be defined in more than one, provided it is clear that those instruments form a unit, under Article 36(2) always two instruments or more, depending on the number of parties to the dispute, must be considered in order to determine the jurisdiction of the Court in the dispute. (b) A declaration under the Optional Clause operates against any other state accepting the same obligation. In the Phosphate Lands in Nauru Case, the Court pointed out that declarations made pursuant to Article 36(2) “can only relate to disputes between States”.108 The case concerned the process of decolonization. The Court was stating that, regardless of disputes that might have existed between the parties before Nauru became an independent state, only disputes arising after Nauru became independent and, therefore, a state, could come within the scope of the compulsory jurisdiction as accepted by the parties in that case. Moreover, this system of “compulsory” jurisdiction can only operate among the members of the UN and the other states that are parties to the Charter. The position would be different as regards

108

1992 ICJ Reports at p. 246.

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states not parties to the Statute, to which the Court is open under Article 35(2) of the Statute.109 In the Right of Passage Case (Preliminary Objections) the Court interpreted the requirement that the other state must accept the same obligation.110 Though acceptances may take effect and cease to have effect at different times, it is only during the period of mutual validity that declarations could invoke the jurisdiction of the Court and only to the extent that they include identical obligations. As will be noted from this, there are two questions, one being whether the obligation of being included in the system has been accepted, the other whether there is reciprocity. The latter issue is addressed in Article 36(3), while Article 36(2) deals with the former. (c) There is a requirement that the declarations cover only legal disputes. Both the meaning of “dispute” and its legal nature have been discussed earlier in this chapter. In principle the declarations will be regarded as invoking jurisdiction only over disputes which are legal,111 even if this is not stated or the contrary is stated. Further, the disputes included must be covered by the categories listed in Article 36(2).112

This was acknowledged in the resolution of the SC of 15 October 1946, which enabled such states to accept the “compulsory” jurisdiction of the Court provided, however, that such acceptances may not, without explicit agreement, be relied upon vis-à-vis states parties to the statute which have themselves accepted the compulsory jurisdiction. In the case of such states an explicit agreement on the part of a state party or states parties to the statute is required for their declarations to operate against the latter category of states as part of the system of “compulsory”’ jurisdiction. 110 1957 ICJ Reports at p. 144. 111 In both the East Timor Case, 1995 ICJ Reports at p. 99, and the Application of the Genocide Convention Case (Preliminary Objections), 1996 ICJ Reports p. 595, the ICJ rejected contentions that there was no legal dispute between the parties. See also Lavalle, “The Notion of International Legal Dispute and the Assumption of Jurisdiction by the International Court of Justice in the Hostages Case”, 35/36 Rev. Hellen. DI (1981–83) p. 97. 112 No stipulation is to be found requiring that the judicial settlement, for instance, be based on the application of principles of law rather than be ex aequo et bono. Some problems which have arisen pertain to whether the matter 109

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In the Right of Passage Case (Preliminary Objections) the issue of the absence of a legal dispute was presented in the form of a contention that a reasonably arguable case for decision in accordance with Article 38 of the Statute had not been made. In the preliminary objection phase, where it appeared as part of the fifth objection, namely that the dispute came within the domestic jurisdiction of the respondent, the Court joined the objection to the merits, on the ground that it would not be possible to pronounce upon it at that stage without prejudging the merits.113 On the merits the contention was partly advanced in support of the outstanding objection and partly shifted to the merits. The objection itself was dismissed and, dealing with the contention as a defence to the merits, the Court made the point that the existence of delicate questions of application was not a sufficient ground for holding that a right was not susceptible of judicial determination with reference to Article 38(1) of the Statute.114 The four categories listed in Article 36(2) are clearly sufficient to include international legal disputes of any kind.115 However, in the application of declarations under the Article the issues of whether

should be settled as a preliminary objection or be left to be decided after the merits have been examined; see the Losinger Case (1936), PCIJ Series A/B No. 67, the Electricity Company of Sofia Case (1939), PCIJ Series A/B No. 77, the Norwegian Loans Case 1957 ICJ Reports p. 9, the Aerial Incident of 27 July 1955 Case, 1959 ICJ Reports p. 127. The issues which have arisen have concerned the interpretation or application of declarations, and not whether they expressly did not satisfy the three requirements in their terms. 113 1957 ICJ Reports at p. 149. 114 1969 ICJ Reports at pp. 32, 36 ff. In the Jan Mayen Case the parties disagreed on the scope of the Court’s jurisdiction: 1993 ICJ Reports at p. 78. The issue was really not one relating to whether a legal dispute which was covered by Article 36(2) existed but concerned the scope of jurisdiction under the declarations made under Article 36(2). 115 Clearly, disputes which are about matters within domestic jurisdiction would not be covered because they would not be disputes of international law. See further, H. Lauterpacht, The Function of Law in the International Community (1933, reprinted 1966) p. 281. Contra Fischer Williams, “The Optional Clause (The British Signature and Reservations)”, 11 BYIL (1930) at p. 68.

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there is a dispute, whether the dispute is legal or whether it is of international law could arise. What the article does is to preclude the express inclusion of derogations from the requirement that the declarations cover, formally at any rate, only disputes which are legal and fall into any of the four categories therein mentioned and that they cover, again formally, all such disputes.116 As will be seen, materially as opposed to formally, exclusions of disputes based on subject-matter, temporal considerations and other such matters have been permitted probably by virtue of Article 36(3). (d) The Court has not disagreed with the view that states enjoy a wide liberty in formulating, limiting, modifying and terminating their declarations under Article 36(2).117 (ii) Reciprocity The declarations may be made on the condition of reciprocity, according to Article 36(3). Particularly in regard to compulsory jurisdiction the Court has stated in general terms that – (a) reciprocity must not be confused with absolute equality; (b) reciprocity, and equality, must be related to some provision of the Statute or the source of jurisdiction (which is integrated with the Statute); and (c) the principle of reciprocity does not have to do with the initial seisin of the Court, and does not operate as an equalizing factor for the seisin, but for determining the quite different matter of the scope of the jurisdiction.118 All the implications of this statement are not readily apparent, but it remains a statement of the Court.

The position may have been different under Article 36 of the PCIJ statute which has a slightly different wording. 117 See the Fisheries Jurisdiction Case, 1998 ICJ Reports at p. 452. See further on modification and amendment of declarations: Rosenne, 2 op. cit. note 15 pp. 783 ff., on denunciation of declarations: Rosenne, 2 ibid. 118 See the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports p. 125. On reciprocity see, e.g., Enriques, “L’Acceptation sans reciprocité de la juridiction obligatoire de la Cour Permanente de Justice Internationale”, 13 RDILC (1932) p. 834, Briggs, loc. cit. note 104 at pp. 241 ff., Waldock, loc. cit. note 104 at pp. 254 ff. See Thirlway, “Reciprocity in the Jurisdiction of the International Court”, 15 NYBlL (1984) p. 92, Torres Bernardez, “Reciprocity 116

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While states have in their declarations generally continued the practice begun under the regime of the PCIJ of including a reference to reciprocity, both the PCIJ and the ICJ have referred to the provisions of the Statute in dealing with the “condition of reciprocity”. The PCIJ frequently referred to Article 36(2) of its Statute in connection with the condition of reciprocity.119 The ICJ has not always expressly invoked provisions of the Statute but has referred to the condition of reciprocity in declarations,120 while sometimes referring to reciprocity and the principle of reciprocity without referring to a provision of the Statute.121 There is no indication in what the two Courts had to say whether reciprocity is an implied condition always or whether it is a condition only if it is mentioned in the declarations. Writers have differed on the incidence of reciprocity as a condition in this respect. Some consider the condition as implied,122 others regard it as possible to exclude reciprocity, if a state so wishes.123 While no real problems have arisen in accepting reciprocity as a condition under the declarations that have come to the attention of the Court, there are several possibilities in interpreting the Statute. First, reciprocity

in the System of Compulsory Jurisdiction and in Other Modalities of Contentious Jurisdiction Exercised by the International Court of Justice”, Essays in Honour of Judge Taslim Olawala Elias (1991) p. 29. 119 See the Phosphates in Morocco Case (1938), PCIJ Series A/B No. 74 at p. 22, the Electricity Co. of Sofia Case (1930), PCIJ Series A/B No. 77 at p. 81. 120 See the Anglo-Iranian Oil Co. Case, 1952 ICJ Reports at p. 103, the Norwegian Loans Case, 1957 ICJ Reports at p. 24, the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at p. 143. 121 The Right of Passage Case (Preliminary Objections), ibid. at p. 144. 122 See Hudson, The Permanent Court of International Justice, 1922–1940 (1943) p. 465. 123 Hambro, “Some Observations on the Compulsory Jurisdiction of the International Court of Justice”. 25 BYIL (1948) at p. 136: Hambro, “The Jurisdiction of the International Court of Justice”, 76 Hague Recueil (1950–1) at p. 185. See also Briggs, loc. cit. note 104 at p. 240, Farmanfarma, The Declarations of the Members Accepting the Compulsory Jurisdiction of the International Court of Justice (1952) p. 67. Maus, op. cit. note 104, p. 62, Szafarz, op. cit. note 104 p. 42, Alexandrov, op. cit. note 104 p. 33.

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may be assumed to be implied unless there is express rejection of it. Second, reciprocity may be assumed not to be a condition unless it is expressly made one. Third, whether expressly mentioned or not, reciprocity is always a condition which can never be waived even by express rejection. The structure of the system of the Optional Clause and the general principles of consensual jurisdiction of the Court in particular would seem to indicate that the first alternative is applicable. The formulation of Article 36(2) and (3) would also support this view, insofar as it is envisaged that reciprocity may or may not be made a condition. General principles would warrant the assumption that, in the absence of a clear indication, the condition of reciprocity is implied rather than the converse.124 The two Courts have addressed the question what reciprocity involves, principally in dealing with reservations. In the Phosphates in Morocco Case the PCIJ recognized that, by virtue of the principle of reciprocity, a reservation appearing in the acceptance of the respondent state “holds good as between the Parties”.125 In the Electricity Company of Sofia Case, on the other hand, the Court held as was agreed between the parties, that the respondent was entitled to rely on a limitation appearing in the acceptance by the applicant.126 Those cases clearly establish that when recourse is had to the Optional Clause jurisdiction, the reservations of each declaration will be applicable to each party, so that each party is entitled to invoke to its benefit any relevant reservation appearing both in its own declaration and in that of the other party. The ICJ in the Anglo-Iranian Oil Co. Case stated the principle that “jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it”.127 The Court determined which of the two declarations was the more limited in

It is not clear whether Hudson would have agreed with this explanation but his view is certainly compatible with it: see op. cit. note 104 p. 465. 125 (1938), PCIJ Series A/B No. 74 at p. 22. 126 (1939), PCIJ Series A/B No. 77 at p. 81. 127 1952 ICJ Reports at p. 103. 124

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scope, and decided that it must base its jurisdiction on that declaration. In the Norwegian Loans Case the Court took a similar approach.128 The Court stated that the “common will of the parties relating to the competence of the Court” was that the substance of the French reservation was applicable to Norway as if Norway had made the reservation itself and as applicable to itself.129 In the Right of Passage Case (Preliminary Objections) the Court explained that as a result of the operation of reciprocity any jurisdictional rights which a state could continue to claim for itself could be invoked against it for the duration of its own acceptance.130 In the Interhandel Case the Court explained its position further: Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration. . . . This is the effect of reciprocity in this connection. Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other Party. There the effect of reciprocity ends. It cannot justify a State, . . . , in relying upon a restriction which the other Party, . . . , has not included in its own Declaration.131

While the Court mentioned invocation of a reservation, the jurisdiction of the Court does not depend on invocation as such. There is no reason to assume that the Court meant otherwise. What is also clear is that, unless a relevant reservation is invoked whether by a party or on the motion of the Court, the jurisdiction of the Court will be subject to the operation of the principle of forum prorogatum. It must be noted that nothing was said by the Court about its authority to raise proprio motu an issue arising from a reservation.

128 129 130 131

1957 ICJ Reports at pp. 23–24. Ibid. at p. 27. 1957 ICJ Reports at p. 144. 1959 ICJ Reports at p. 23.

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There is no reason to assume that it would not have such authority which it would normally have. In a different connection in the Nicaragua Case (Jurisdiction and Admissibility) the Court pointed out that what it seeks to establish in terms of reciprocity is whether both parties have consented to compulsory jurisdiction with regard to the specific dispute without applying reciprocity to the formal conditions of their declarations, which include duration and the cancellation or termination of declarations.132 While the point made by the Court about matters of form in relation to reciprocity must be noted, it emerges that what reciprocity which is inherent in the Optional Clause system means is that the jurisdiction of the Court is determined by the extent to which the declarations of the parties to the dispute overlap; that is, by what they have in common or by the common ground covered by them. (iii) Reservations Reservations are not expressly mentioned in Article 36(2) or (3). However, insofar as acceptance of the Court’s jurisdiction pursuant to Article 36(3) may be made subject to conditions, the admissibility of reservations seems acceptable. A reservation to the acceptance of jurisdiction is essentially a condition on which jurisdiction is accepted in that it signifies that jurisdiction is accepted on condition that certain matters or areas are excluded from the acceptance of jurisdiction. Indeed, the Court has not made a distinction between conditions and reservations but has used the terms interchangeably and in considering reciprocity dealt with reservations as conditions

1984 ICJ Reports at pp. 419–21. The same issue of matters or conditions of form was the subject of the disputes in both the Phosphates in Morocco Case (1933), PCIJ Series A/B No. 74 at p. 25, and the Interhandel Case (Preliminary Objections), 1959 ICJ Reports at pp. 10–11, 14. In the former case the Court did not decide the issue, in the latter the Court held that reciprocity did not apply to the date of entry into force of the declarations. See also the Nuclear Tests Cases, 1974 ICJ Reports at pp. 267 and 472 respectively. 132

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made pursuant to Article 36(3), as was seen in the previous subsection.133 While a reservation may be assimilated to a condition for the purposes of Article 36(3), what is important is to make a distinction between reservations that operate as effective conditions as such and conditions of form. The reason is that the latter are not covered implicitly by reciprocity under Article 36(3), while reservations that are conditions relating to substantive matters are, as also appeared from the discussion in the previous subsection and was pointed out in the Nicaragua Case (Jurisdiction and Admissibility) which was referred to there. Thus, not all conditions may be reservations, while all reservations relating to matters of substance would be conditions subject to reciprocity in the absence of express provision to the contrary. At the same time, any distinction between reservations and conditions of a certain kind is relevant not to raise questions as to the validity of reservations but solely in relation to the issue of reciprocity. Again, while seen as a condition, a reservation as part of a declaration clearly helps to define the terms on which the declarant unilaterally accepts the jurisdiction of the Court under the Optional Clause system,134 and, indeed, does no more than that. In the Fisheries Jurisdiction Case the ICJ made it quite clear that there was freedom in limiting the acceptance of the Court’s jurisdiction and this pursuant to Article 36(2). It said: It is for each State, in formulating its declaration, to decide upon the limits it places upon its acceptance of the jurisdiction of the Court: “This jurisdiction only exists within the limits within which it has been accepted” (Phosphates in Morocco, Judgment, 1938, P.C.I.J. Series A/B. No. 74, p. 23). Conditions or reservations thus do not by their terms derogate from a wider acceptance already given. Rather,

See also the Temple of Preah Vihear Case (Preliminary Objections), 1961 ICJ Reports p. 17. On reservations to declarations under the Optional Clause see, inter alia, Briggs, loc. cit. note 104 and other commentators cited in note 104 above. 134 See the Right of Passage Case (Merits), 1960 ICJ Reports at p. 34. 133

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they operate to define the parameters of the State’s acceptance of the compulsory jurisdiction of the Court . . .135

The validity of a reservation was raised as an issue in several cases. In each case it was argued that a particular reservation was incompatible with the Optional Clause, so that the whole declaration was ineffective to establish (compulsory) jurisdiction. Although the parties argued the cases on the basis of the compatibility of the reservation with the system of the Optional Clause (compulsory) jurisdiction, the Court did not look at the issue on that basis. It formulated the question as to whether the reservation in issue was invalid. To answer that question the Court, when it did, examined the meaning and effect of the reservation by reference to its actual wording and applicable principles of law.136 Reservations in general have been regarded as acceptable in terms of their content. Their validity is to be determined on a case by case basis. (a) Content and Application of Reservations Ratione Materiae The question of the application of a valid reservation can also arise. The Arbitral Award of 31 July 1989 Case concerned this question. The issue was whether the applicant was challenging the decision of the arbitral tribunal on its merits, in which case the dispute was excluded from the jurisdiction of the Court by the terms of the respondent’s declaration. From the oral proceedings in a phase relating to provisional measures it emerged that, as the parties agreed, the case was not an appeal from the decision of the arbitral tribunal and was limited to the non-existence and the nullity of the award matters that were within the Court’s jurisdiction.137 Reservations are formulated in order to take care of the declarant’s particular situation. In some declarations disputes are excluded 1998 ICJ Reports at p. 453. See, e.g., the Norwegian Loans Case, 1957 ICJ Reports at pp. 141 ff., the Interhandel Case, 1959 ICJ Reports p. 6, the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports p. 125, the Reservations to the Genocide Convention Opinion, 1951 ICJ Reports p. 15. 137 1990 ICJ Reports at p. 62. 135 136

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in regard to which the parties have agreed to have recourse to some other method of pacific settlement.138 Several declarations have reservations which are worded along the following lines: Disputes concerning any question relating to or arising out of belligerent or military occupation or the discharge of any functions pursuant to any recommendation or decision of an organ of the United Nations, in accordance with which [declarant] has accepted obligations . . .139

In current declarations there is sometimes a reservation relating to the suspension of proceedings while a case is before the SC. It is really a suspensive condition and is subject to the principle of reciprocity. It only suspends the exercise of jurisdiction by the Court. A condition along these lines appeared in the Iranian declaration invoked as the source of jurisdiction in the Anglo-Iranian Oil Co. Case. Because there was no jurisdiction on other grounds, the judgment did not deal with this issue.140 A reservation included in declarations made by members of the Commonwealth, the “Commonwealth reservation”, excludes from the Court’s jurisdiction all disputes involving the declarant in respect of any state which is or has been a member of the Commonwealth of Nations. Such a reservation came up for consideration in the Aerial Incident of 10 August 1999 Case (Jurisdiction).141 The Court held that the reservation could validly be invoked by the respondent as a condition ratione personae and that it had no jurisdiction under the declaration of the respondent (India).

See the Phosphate Lands in Nauru Case, 1992 ICJ Reports at p. 247. See, e.g., the declarations of India (1959, 1974), Kenya (1965), Malta (1966), Mauritius (1968), Hungary (1992). 140 In his dissent Judge Carneiro thought on this point that the proceedings before the Court should be suspended until a further decision by the Security Council, though he does not explain whether his conclusion was based on the Iranian reservation or not: 1952 ICJ Reports at p. 171. 141 2000 ICJ Reports paras. 30, 31, 34–46 (Pakistan v. India). 138 139

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There are many other examples of special reservations being included in declarations, apart from those mentioned above.142 The Court has dealt with such reservations in several cases.143 Reservations of domestic jurisdiction have attracted considerable attention by the Court. They may or may not include a subjective element. The reservation without the subjective element is to the effect that jurisdiction is excluded with regard to disputes which relate to matters falling within the domestic jurisdiction of the declarant. In the Tunis and Morocco Nationality Decrees Opinion the PCIJ had to deal with the issue of exclusion on account of domestic jurisdiction in relation to jurisdiction in an advisory opinion.144 The Court made a “provisional appreciation” of the grounds invoked in connection with that issue. The ICJ used the same technique of making a provisional appreciation in the Interhandel Case where an objection based on domestic jurisdiction was raised. The Court established that in the preliminary objection phase the Court will not assess the validity of the grounds invoked on the merits but will confine itself to considering whether such grounds justify the provisional conclusions that they may be of relevance in the case: and, if so, whether questions relating to the validity and interpretation of those grounds are questions of international law.145 Hence, the practical consequence of the formal reservation of domestic jurisdiction appear to be little different from the practical consequence of the limitation of the jurisdiction to disputes concerning a breach of international law. The Court in that case treated an objection that the issues raised by the claimant related to matters essentially within the domestic jurisdiction of the respondent as an objection to the jurisdiction and not as an objection to the admissibility or a defence to the merits, though in fact neither of the declarations in question For some significant ones see Alexandrov, op. cit. note 104 pp. 91 ff. See, e.g., the Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports at p. 425 and Nicaragua Case (Merits), 1986 ICJ Reports at p. 29, Fisheries Jurisdiction Case, 1998 ICJ Reports p. 432, particularly at pp. 463 ff. 144 (1923), PCIJ Series B No. 4 at p. 26. 145 1959 ICJ Reports at p. 24. 142

143

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contained the reservation in express terms. Thus, it would appear that the broad exception of domestic jurisdiction is inherent in the system of jurisdiction under the Optional Clause as an objection to jurisdiction and in appropriate circumstances will be applied by the Court to bar its jurisdiction, even if neither declaration refers to it. Clearly, though, the express terms of a reservation will generally override the less precise inherent reservation to the extent that the reservation covers a wider area than the inherent exception.146 What does not come within the scope of the inherent exception of domestic jurisdiction was discussed in the Tunis and Morocco Nationality Decrees Opinion. Although concerned with the interpretation of the LN Covenant, that case is relevant in principle both to the interpretation of the somewhat broader provision of the Charter on the same matter and to the specific question of the jurisdiction of the ICJ. In dealing with Article 15(8) of the LN Covenant the PCIJ said the words used in the provision seem rather to contemplate certain matters which, though they may very closely concern the interests of more than one State, are not, in principle, regulated by international law. As regards such matters, each State is the sole judge. The question whether a certain matter is or is not solely within the jurisdiction of a State is essentially a relative question; it depends upon the development of international relations.147

While what is within domestic jurisdiction does not have an a priori definition, but is relative, certain principles have, nevertheless, been developed which apply to deciding a concrete case. It

The use of the words “solely” or “essentially” in a reservation of matters within domestic jurisdiction would seem not to widen the area of application of the reservation but, if at all, to narrow it. It is doubtful, however, whether the use of those words could in general effectively narrow the content of the exception because matters within domestic jurisdiction as such would not be constitutive of “international legal” disputes which alone are within the Court’s jurisdiction in any case. 147 (1923), PCIJ Series B No. 4 at p. 23. 146

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is accepted that, though a given subject prima facie falls within domestic jurisdiction, there are other factors the presence of which could cause it to fall outside domestic and into “international” jurisdiction. Thus, where an international treaty is relevant to a case involving a subject which in principle falls within domestic jurisdiction, issues relating, e.g., to the validity, interpretation and application of that treaty involve the application of international law and this fact would result in the matter falling outside the scope of the domestic jurisdiction exception.148 The situation is the same if the dispute involves (or prima facie appears to require) recourse to the principles of general international law, including custom, the validity of which depends on international law.149 Clearly, the principle evolved is that if the dispute calls for the application of international law, from whatever source, for its solution, on the basis of the issue raised, i.e., raises issues of international law, it cannot be a matter for domestic jurisdiction. (b) Subjective Reservations The US declaration of 1946 included a reservation which excluded from the jurisdiction of the ICJ “disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America”. Substantially the same kind of reservation, though the formulation may vary, has also been made at different times by France (1947), India (1956), Liberia (1952), Malawi (1966), Mexico (1947), Pakistan (1948, 1957), Philippines (1972), South Africa (1955),

Ibid. at pp. 20, 29–31. See also decisions of the ICJ in the Guardianship of Infants Convention Case, 1958 ICJ Reports at p. 67, the Interhandel Case, 1959 ICJ Reports at p. 24 and the Peace Treaties Opinion, 1950 ICJ Reports at p. 70. 149 See the Interhandel Case, 1959 ICJ Reports at p. 25, the Right of Passage Case (Merits), 1960 ICJ Reports at p. 33. The Nottebohm Case is a good example of the application of these principles: 1955 ICJ Reports at p. 21. The exception of domestic jurisdiction was raised and argued but not pronounced upon by the Court, inter alia, in the Anglo-Iranian Oil Co. Case, the Norwegian Loans Case and the Aerial Incident of 27 July 1955 Case. 148

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Sudan (1958).150 There are some current declarations that have such a reservation. The difference between the reservation of domestic jurisdiction which has been discussed, which is objective, and this kind of reservation which may be described as subjective in form, is that in the former case the decision whether a matter falls within the reservation of jurisdiction is intended to be taken by the Court, while in the latter case the decision is intended to be taken by the declarant itself. On the basis of reciprocity another party to a dispute with the declarant could avail itself of the facility provided for in the declarant’s declaration. Several cases in which the clause was invoked came before the Court. The U.S. Nationals in Morocco Case151 was instituted on the basis of declarations of both sides containing the subjective clause. The invocation of the compulsory jurisdiction was contested by one party, the USA, which, nevertheless, agreed ad hoc that the Court should exercise jurisdiction on the basis of forum prorogatum. The clause was not invoked by the USA, as respondent, in the Nicaragua Case (Jurisdiction and Admissibility).152 Bulgaria invoked the US reservation by way of reciprocity in the Aerial Incident of 27 July 1955 Case (U.S.A. v. Bulgaria)153 which was withdrawn. In the Norwegian Loans Case154 the respondent, Norway, invoked on the basis of reciprocity the subjective reservation of domestic jurisdiction in the claimant’s (France) declaration. The Court said that it was not considering the validity of the French reservation but, on the basis that both parties did not contest the validity of the reservation or the declaration of France,155 held that the respondent could rely on the reservation in the claimant’s

See also on “automatic reservations”, Crawford, “The Legal Effect of Automatic Reservations to the Jurisdiction of the International Court”, 50 BYIL (1979) p. 63. 151 1952 ICJ Reports p. 176. 152 1984 ICJ Reports p. 392. 153 See Gross, “Bulgaria Invokes the Connally Amendment”, 56 AJIL (1962) p. 357. 154 1957 ICJ Reports p. 9. 155 Ibid. at p. 27. 150

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declaration. Thus, the respondent could, because it considered the dispute a matter of domestic jurisdiction, successfully claim that the Court had no jurisdiction.156 In the Interhandel Case the subjective reservation of domestic jurisdiction contained in the respondent’s (USA) declaration was directly raised as an objection to jurisdiction. The Court, however, held that the case was not admissible on other grounds (non-exhaustion of local remedies), avoiding the question of its jurisdiction raised by the respondent.157 There are questions which arise, such as, whether the subjective element is valid at all, whether the subjective element may be severed, and whether the presence of the subjective reservation makes the declaration invalid.158 These questions will be examined later in this chapter in connection with the validity of reservations in general.159 (c) Reservations Ratione Temporis In the Mavrommatis Palestine Concessions Case the Court stated that “in cases of doubt, jurisdiction based on an international agreement embraces all disputes referred to it after its establishment” and that “the correctness of the rule enunciated above” was

Ibid. at pp. 23–4. 1959 ICJ Reports at p. 26. The UK reservation in its 1957 and 1958 declarations, which were later withdrawn, of matters of national security, had a subjective element similar to that considered above in connection with reservations of domestic jurisdiction: see 1957–1958 ICJ Yearbook at pp. 211–12 and 1958–1959 ICJ Yearbook at pp. 225–6. 158 It has been argued that the subjective reservation (of any kind) is an illusory acceptance of the Optional Clause jurisdiction and is contrary to the statute of the ICJ: see Yankov, “Les réserves dans les declarations d’acceptation de la juridiction obligatoire de la Cour internationale de Justice et leur influence sur la compétence de la Cour” 52 Annuaire de l’Universite de Sofia, Faculte de Droit (1961) 454 at p. 594 (summary in French). 159 As will be seen later in this chapter, the presence of the subjective element in the reservation would not by itself, even if the reservation is invoked, deprive the Court of its incidental jurisdiction which includes the authority to indicate provisional or interim measures of protection. As already seen, it does not deprive the Court of la compétence de la compétence. 156

157

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obvious, because “reservations made in many arbitration treaties regarding disputes arising out of events previous to the conclusion of the treaty seem to prove the necessity for an explicit limitation of jurisdiction”.160 Hence, if the intention is to exclude disputes already existing at the time the declaration is made, there must be an explicit reservation to that effect. Accordingly, some reservations limit the acceptance of jurisdiction to disputes arising after a certain date. Others contain a further limitation that the situations or facts giving rise to a dispute must also be subsequent to that date. Both kinds of limitation were to be found in the Belgian declaration of 1925. Under the Statute of the PCIJ many other declarations had similar limitations, while a smaller number only excluded disputes prior to a certain date without reference to situations or facts. Under the Statute of the ICJ as of 1995 there were 48 declarations with both or the latter.161 Limitations, excluding disputes ratione temporis, may be formulated in different ways. Date of signature, of ratification, of entry into force or depositing of a declaration or of a previous declaration, a fixed date or a date or period relating to certain events may be used. The principle of reciprocity is applied to reservations ratione temporis which exclude disputes that arose before a certain date or from facts or situations which existed before that date. If such a reservation is made in the declaration of one of the parties, the other party could rely on it, so that the Court would have jurisdiction in the specific case, only if the dispute (or the facts or situations) has arisen after the exclusion date of the former party’s declaration. If the declarations of both parties to the dispute contain such a reservation ratione temporis, pursuant to the principle of reciprocity the Court will have jurisdiction only with respect to disputes which are (1924), PCIJ Series A No. 2 at p. 35. The Belgian formula has been criticized: see, e.g., Briggs, loc. cit. note 104 at pp. 293–5, H. Lauterpacht, “The British Reservation to the Optional Clause”, 10 Economica (1930) at p. 140, De Pauw, “The So-called ‘Belgian’ Reservation to Acceptances of Compulsory Jurisdiction of the World Court”, in The Compulsory Jurisdiction of the International Court of Justice: A Turning Point? Roundtable in Honour of Louis B. Sohn (1991) p. 51. 160 161

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covered by the provisions of both declarations. What is relevant is the extent to which the parties have assumed identical obligations ratione temporis. This is the basis on which the Court has operated. In the Phosphates in Morocco Case the respondent, France, claimed the benefit of its own reservation limiting the acceptance of jurisdiction to “disputes, which may arise after the ratification of the present declaration with regard to situations or facts subsequent to such ratification”. The Court, while referring to the principle of reciprocity which was not in issue in fact, stated that France could rely on the limitation in its declaration.162 In the Electricity Company of Sofia Case, on the other hand, Bulgaria, the respondent, claimed the benefit of a reservation ratione temporis contained in the declaration of the claimant, Belgium. The Belgian declaration contained a reservation excluding disputes, situations or facts prior to its ratification. The Court held that, as a consequence of the condition of reciprocity laid down in Article 36(2) of the Statute, Bulgaria could rely on the reservation of Belgium ratione temporis.163 The exclusion date will have to be determined by reference to the formulation of the particular declaration. This may require interpretation. While it may sometimes be difficult to establish the exclusion date, because of imprecision of the formulation, it may also be difficult to establish the date when a specific dispute has arisen. In the Mavrommatis Palestine Concessions Case the PCIJ defined a legal dispute as “a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons”.164

(1938), PCIJ Series A/B No. 74 at p. 22. (1939), PCIJ Series A/B No. 77 at p. 81. Several issues of law and fact arose in the case in regard to the limitation ratione temporis. See also per Judge Anzilotti, dissenting, ibid. at pp. 87, 89, per Judge Urutia, dissenting, ibid. at p. 103. per Judge van Eysinga, dissenting, ibid. at p. 109, per Judge ad hoc Papazoff, dissenting, ibid. at p. 146. All these judges agreed with the Court on this point. 164 The Mavrommatis Palestine Concessions Case (Jurisdiction), (1924) PCIJ Series A No. 2 at p. 11. The “critical date” at which a dispute arose was discussed, though not in connection with a reservation, in the Minquiers and Ecrehos Case, 162 163

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The Court also observed that a dispute is international, when such a disagreement arises between two states.165 The cases show that while there was no requirement that diplomatic negotiations be exhausted before filing an application, it was necessary that the claims be opposed to each other in the context of the relations between the respective states.166 In the South West Africa Cases (Preliminary Objections) the Court said that it was not sufficient for one or other of the parties to affirm or deny the existence of a dispute but that “It must be shown that the claim of one party is positively opposed by the other”.167 Thus, a dispute does not exist merely when an exchange of views has taken place, but when there are clearly defined opposing claims. When the reservation ratione temporis refers to disputes only and does not exclude the consideration of past facts or situations, the Court’s jurisdiction over disputes arising subsequent to the exclusion date is not limited to situations or facts subsequent to that date.168 However, when the reservation excludes both disputes and facts or situations that have taken place prior to a certain date, the task of the Court is more difficult. The difficulty arises with establishing the facts or situations which are not subsequent to the exclusion date as a result of which the dispute arose. The Court’s practice has been to consider the issues in the context of the specific case, seeking to establish the “essential facts”, that is “the facts which really gave rise to the dispute . . .”, and it has made it clear that “the only situations or facts falling under

1953 ICJ Reports at p. 59. On this particular issue see Fitzmaurice, 1 The Law and Procedure of the International Court of Justice (1986) pp. 277 ff. 165 (1924) PCIJ Series A No. 2 at p. 11. See also the German Interests in Polish Upper Silesia Case (Jurisdiction) (1925) PCIJ Series No. 6 at p. 14, and the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at pp. 148–9. 166 See also on the existence of an international dispute the Peace Treaties Opinion, 1950 ICJ Reports at p. 74. 167 1962 ICJ Reports at p. 328. 168 The Mavrommatis Palestine Concessions Case (Jurisdiction) (1924) PCIJ Series A No. 2 at p. 35.

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the compulsory jurisdiction are those which are subsequent to the [exclusion date] and with regard to which the dispute arose, that is to say, those which must be considered as being the source of the dispute”.169 In the Electricity Company of Sofia Case,170 the Court examined specific facts and situations and decided whether they were relevant to the dispute in question. It held that an arbitral award prior to a dispute was not necessarily its source, although it certainly created a situation that continued at the time of the dispute. In the Phosphates in Morocco Case the Court found that “a refusal to settle this particular dispute in a certain way” does not, in itself, constitute “an unlawful international act giving rise to a new dispute”.171 Sometimes it is difficult to establish whether certain facts or situations actually gave rise to the dispute before considering the merits of the case.172 In the Right of Passage Case (Preliminary Objections) both parties agreed that the situations or facts covered by the reservation ratione temporis were only those which gave rise to, or were the source of the dispute, but they disagreed on whether the relevant situations or facts preceded the exclusion date.173 The Court, after joining the objection made by the respondent to the merits, first dealt with the issue of the critical date of the dispute. The Court concluded that the dispute had a “threefold subject”: (i) the disputed existence of a right of passage in favour of Portugal; (ii) the alleged failure of India in 1954 to comply with its obligations concerning that right; (iii) the redress of the illegal situation

The Phosphates in Morocco Case (1938) PCIJ Series A/B No. 74 at pp. 23, 24, 26. See also the PCIJ’s view in the Electricity Company of Sofia Case (1939), PCIJ Series A/B No. 77 at p. 82. 170 Ibid. 171 The Phosphates in Morocco Case, (1938) PCIJ Series A/B No. 74 at p. 28. 172 See the Mavrommatis Palestine Concessions Case (Jurisdiction), (1924) PCIJ Series A No. 2 at p. 35. 173 The Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at p. 152. 169

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flowing from that failure.174 On this basis the Court stated that the dispute could not arise until all its constituent elements had come into existence and found that, because India was alleged to have placed the obstacles in the way of exercise of passage by Portugal in 1954, the dispute could not have originated until 1954. The Court found that before 1954 the passage was effected without the parties adopting clearly defined legal positions as against each other and, therefore, the “conflict of legal views” had not yet arisen at that time. The Court concluded that the dispute arose after the date referred to in the reservation of the respondent.175 Next, the Court considered whether the facts and situations with regard to the dispute were subsequent to the exclusion date, 5 February 1930, and concluded that the dispute came into existence only after the exclusion date. It rejected the objection and found that it had jurisdiction.176 The Right of Passage Case underlines the difficulty of establishing the critical date when the facts or situations referred to in a reservation ratione temporis emerged. The problem is particularly severe when such facts or situations are continuous over a period. In the Phosphates in Morocco Case it was claimed that facts and situations continued to exist both before and after the exclusion date. The respondent, France, admitted that the dispute arose subsequent to the exclusion date but contended that the situations and facts giving rise to it were not subsequent. The applicant, Italy, for its part, contended that acts which took place after thc exclusion date, taken in conjunction with earlier acts to which they were closely linked, constituted as a whole a single, continuing and progressive illegal act which had not been fully accomplished until after the crucial date and that acts prior to the exclusion date, though prior, had given rise to a permanent situation inconsistent with international

Right of Passage Case (Merits), 1960 ICJ Reports at pp. 33–4. Ibid. at pp. 34 ff. 176 The Court, following the jurisprudence of the PCIJ, was of the view that a dispute might presuppose the existence of some prior situation or fact: ibid. at pp. 35, 36. 174 175

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law which had continued to exist after the said date. The Court was of the view that facts subsequent to the exclusion date were not sufficient to establish jurisdiction, if they merely presumed the existence of, or confirmed, or developed, prior situations or facts which were the source of the dispute, and that the actual intention of the French reservation was to exclude from the Court’s jurisdiction “situations or facts dating from a period when the State . . . was not in a position to foresee the legal proceedings to which these facts and situations might give rise”. It found in favour of the absence of jurisdiction.177 The intention of the declarant state which was referred to in that case was also referred to in the Anglo-Iranian Oil Co. Case. The Court examined the evidence and concluded that the “manifest intention of the Government of Iran” was to “exclude from the jurisdiction of the Court disputes relating to the application of treaties or conventions accepted by it before the ratification of the Declaration”.178 In two of the cases discussed above the conclusion reached was against the assumption of jurisdiction while in the other it was in favorem jurisdictionis. In all three cases the decision taken hinged on the interpretation of the reservation ratione temporis and the evaluation of the facts. Much depends on how the reservation is interpreted in the light of the apparent intention behind it.179 The Phosphates in Morocco Case, (1938) PCIJ Series A/B No. 74 at pp. 23 ff. 178 Anglo-Iranian Oil Co. Case (Preliminary Objections), 1952 ICJ Reports at pp. 103–6. Briggs comments favourably on this conclusion: loc. cit. note 104 at p. 288. See also H. Lauterpacht, The Development of International Law by the International Court (1958) pp. 344–7. 179 The Phosphates in Morocco Case, (1938) PCIJ Series A/B No. 74 at p. 24. The view has been expressed that reservations ratione temporis are imprecise and unsatisfactory: Alexandrov, op. cit. note 104 pp. 52–3. However, this is too sweeping a generalization. While there have been difficulties in implementing some of the current reservations of this kind, the Court’s approach shows that they can be dealt with and applied satisfactorily. The matter of the date of entry into force of a declaration has not caused great problems. Clearly, reciprocity does not apply to the matter: see the Interhandel 177

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(iv) The Validity of Declarations and Reservations While the making of reservations had been accepted, the validity of a reservation may be called into question in a given case. In the first place, as was stated in the Phosphates in Morocco Case, jurisdiction under the Optional Clause “only exists within the limits within which it has been accepted”.180 Secondly, it is generally accepted that, while the right to append reservations is no longer in question, those reservations must not be inconsistent with the Statute and, thus, for example, reservations as to the functioning and organization of the Court would not be permissible.181 A corollary is clearly that the whole declaration itself (including any reservations) must be consistent with the Statute.182 Thirdly, there may be other circumstances than those flowing from the express terms of the Statute in which a reservation’s or declaration’s validity may be questioned. These clearly must be examined on a case by case basis. For example, in an extreme case, where a declaration with its reservations clearly infringes the jurisdiction of the Court to such a degree that it deprives it of jurisdiction in any real sense, the decCase (Preliminary Objections), 1959 ICJ Reports at p. 23 and passim. Unless otherwise stated, a declaration with its reservations enters into force on the date of deposit of the declaration with the SG of the UN pursuant to Article 36(4) of the statute of the ICJ. The Court has also faced the issue of the duration of declarations and their termination, by denunciation generally: see Alexandrov, op. cit. note 104 pp. 56–66, Hassan, “A Legal Analysis of the United States Attempted Withdrawal from the Jurisdiction of the World Court in the Proceedings Initiated by Nicaragua”. 10 U. Day. LR (1985) p. 295, Quintana, “The Nicaraguan Case and the Denunciation of Declarations of Acceptance of the Compulsory Jurisdiction of the International Court of Justice”, 11 Leiden JIL (1998) p. 97. For modification and amendment of a declaration see Rosenne, 2 op. cit. note 15 pp. 783 ff. The matter of the survival, and application by the ICJ, of optional clause declarations made under Article 36 of the statute of the PCIJ is addressed in Rosenne, 2 op. cit. note 15 pp. 717 ff. 180 (1938) PCIJ Seres A/B No. 74 at p. 23. 181 Norwegian Loans Case, 1957 ICJ Reports at pp. 45–6 per Judge Lauterpacht in a separate opinion. See also Briggs, loc. cit. note 104 at pp. 232–3, H. Lauterpacht, op. cit. note 178 at p. 346. 182 See Waldock, loc. cit. note 104 at p. 250.

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laration itself would be invalid. This touches on bona fides also. In the circumstances outlined above there was clearly no bona fides in invoking the Court’s jurisdiction under Article 36(2). But apart from bona fides there may be objective circumstances in which the jurisdictional submission is vitiated and therefore invalid, because it deprives the Court of a vital part of its jurisdiction. Apart from these generalities, there are some cases in which the acceptability of reservations in terms of the Optional Clause system and their effect on validity have been discussed. The classic example of a possible conflict between a reservation and the appropriate acceptance of the Court’s jurisdiction is the subjective reservation, referred to earlier, of domestic jurisdiction, of national security matters and the like. It has been suggested earlier herein that such a subjective element could be allowed to stand provided it was interpreted as subjecting the exercise of the discretion involved in the implementation of the reservation to review by the Court for abuse. None of the decided cases contradict this position and all of them are reconcilable with it. In the Norwegian Loans Case the Court applied the subjective reservation of domestic jurisdiction to exclude its own jurisdiction, as a result there of the application of the principle of reciprocity.183 The Court did so expressly, because neither party had questioned

1957 ICJ Reports p. 9 at pp. 26 ff. There has been considerable discussion by commentators of the subjective reservation and its effects: see Briggs, loc. cit. note 104, Dubisson, La Cour internationale de justice (1964) pp. 187–9, Goldie, “The Connally Reservation: A Shield for an Adversary”, 9 UCLA Law Review (1962) p. 277, Greig, International Law (1996) pp. 651–7, Holloway, Modern Trends in Treaty Law (1967) pp. 654–66, 683–97, Hudson, “The Twenty-Fifth Year of the International Court of Justice”, 41 AJIL (1947) at pp. 11–12, Hudson, “The World Court: America’s Declaration Accepting Jurisdiction”, 32 ABA Journal (1946) p. 32, Jennings, “Recent Cases in “Automatic” Reservations to the Optional Clause”, 7 ICLQ (1958) p. 349, Maus, op. cit. note 104 at pp. 149–63, Merrills, loc. cit. note 104 at pp. 113–15, Preuss, “Questions Resulting from the Connally Amendment”, 32 ABA Journal (1946) p. 660, Rogers, “The United States “Automatic” Reservation to Optional Clause Jurisdiction of the I.C.J.”, 7 ICLQ (1958) p. 758, Rosenne, 2 op. cit. note 15 pp. 748 ff., Waldock, “The Plea of Domestic Jurisdiction Before International Legal Tribunals”, 31 BYIL 183

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the validity of the reservation, which led it to let it stand and apply it accordingly. It specifically declined to make a pronouncement on the validity of the reservation, including in relation to Article 36(6) of the Statute, and in effect applied it “if it be valid”.184 None of the judges who gave separate and dissenting opinions in that case or expressed views on the matter in the Interhandel Case (Preliminary Objections) expressly took the view as such that a subjective reservation could be allowed to stand on the understanding that the discretion involved was not abused,185 although they had opinions on the validity of the reservation and severability and the validity of the declaration. It is interesting that in the Aerial Incident of 27 July 1955 Case the USA began by advocating virtually the same view proposed by the present author against the respondent, Bulgaria, though not in exactly the same terms, using the concept of “arbitrariness”, but later withdrew it and consequently discontinued the case.186 In the Aerial Incident of 10 August 1999 Case187 Pakistan, the claimant, argued that the “Commonwealth reservation” in the respondent’s (India’s) declaration under Article 36(2) was not opposable to it, the implication being that it was not applicable, because it was invalid. The Court first addressed Pakistan’s contention that the “Commonwealth reservation” was an extra-statutory reservation going beyond the conditions allowed under Article 36(3) of the Statute. The Court observed that Article 36(3) of its Statute had never been regarded as laying down in an exhaustive manner the conditions under which declarations might be made. Already, in 1928, the Assembly of the

(1954) p. 96, Wilcox, “The United States Accepts Compulsory Jurisdiction”, 40 AJIL ( 1946) p. 699. 184 1957 ICJ Reports at p. 26. 185 Judge Read may have implied agreement with this view in the Norwegian Loans Case when he referred to a “real understanding” and not a “fictitious” one: ibid. at p. 95. 186 (U.S.A. v. Bulgaria) ICJ Pleadings, Aerial Incident of 27 July 1955 (1959) at pp. 308, 323–325, 676. 187 2000 ICJ Reports paras. 30, 31, 34–46.

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LN had indicated that “reservations conceivable may relate, either generally to certain aspects of any kind of dispute, or specifically to certain classes or lists of disputes, and . . . these different kinds of reservation can be legitimately combined” (resolution adopted on 26 September 1928). Moreover, it said, when the Statute of the Court was being drafted, the right of a state to attach reservations to its declaration was confirmed, and this right has been recognized in the practice of states. The Court consequently rejected Pakistan’s contention. The Court also did not accept Pakistan’s argument that India’s reservation was a discriminatory act constituting an abuse of right, because the only purpose of this reservation was to prevent Pakistan from bringing an action against India before the Court. It noted, in the first place, that the reservation referred generally to states which are or have been members of the Commonwealth. It added that states were in any event free to limit the scope, ratione personae which they wished to give to their acceptance of the compulsory jurisdiction of the Court. The Court next rejected Pakistan’s contention that the “Commonwealth reservation” was obsolete, and, therefore, ineffective, because members of the Commonwealth of Nations were no longer united by a common allegiance to the Crown and the modes of dispute settlement originally contemplated had never come into being. While the Court has not denied that reservations may be contrary to the law, whether it be the Statute or general international law, it has not decided that any reservations that have been invoked before it were invalid. Thus, it is not possible to infer what may be its attitude, if a reservation were found to be invalid. On the other hand, as has been seen earlier in this chapter, judges of the ICJ who have given separate and dissenting opinions have expressed views on the matter, on the assumption that a reservation has been found to be invalid.188

Judge Lauterpacht, in the Norwegian Loans Case and the Interhandel Case, thought that an invalid reservation would vitiate the whole declaration, making the latter invalid and inapplicable: 1957 ICJ Reports at p. 44 and 1959 188

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The Court itself may be regarded as having come close to taking the view that only the invalid reservation should be struck down, when in the Right of Passage Case (Preliminary Objections) in reply to the Indian (respondent’s) argument that the whole Portuguese (claimant’s) declaration was invalid, because it contained an invalid reservation, it said, “It is a rule of interpretation that a text emanating from a Covenant must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it.”189 But the text is not clear. It is possible that it merely meant that the reservation should be interpreted in favorem valoris and not the converse, so that an interpretation on the lines suggested earlier in the present work of the subjective reservation which permits it to stand should be given to it rather than it be regarded as invalid. What course the Court would take, if it decided that a reservation was invalid, is, therefore, unclear. In principle there is no reason why, following the principle that it is unlikely that a state would propagate a text which is invalid, the approach should not be taken that, because as much of a text should be given effect to as intended to have force, only the whole reservation which is invalid should be struck down and not given effect to, unless, for example, it would, if this were done, make nonsense of the declaration taken as a whole or doing this would clearly contradict the intention of the declarant in submitting to the jurisdiction of ICJ Reports at pp. 101–2, as did Judge Spender in the Interhandel Case: 1959 ICJ Reports at p. 173. Several commentators agree with this view: see, e.g., Jennings, loc. cit. note 183 at pp. 361–3, Dubisson, op. cit. note 183 at pp. 186, 189, Maus, op. cit. note 104 at pp. 160–2, Holloway, op. cit. note 183 at pp. 687–8, Preuss, loc. cit. note 183 at p. 729, Waldock, loc. cit. note 183 at pp. 131–3. In the Norwegian Loans Case Judge Guerrero stated that the reservation was invalid. It is not entirely clear what view he took of the effect of the invalidity of the reservation: 1957 ICJ Reports at pp. 68–70. Judge Armand-Ugon in the Interhandel Case emphatically was of the opinion that the whole reservation alone should be struck down: 1959 ICJ Reports at p. 93. His view was that the reservation was severable from the declaration and that the rest of the declaration would remain valid. 189 1957 ICJ Reports at p. 142.

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the Court, in which case the whole declaration would have to be struck down. A possible alternative, where the situation permits it, is to strike down only that part of the reservation which makes the reservation invalid, if it were possible to sever this part of the reservation, and leave the rest of the reservation and the declaration to take effect. There is no reason to take a rigid approach to the effect of reservations which, as they are formulated, are tainted with illegality and are, therefore, not acceptable. Indeed, the only certain principle, as the Court has emphasized (e.g., in the Right of Passage Case (Preliminary Objections)) is that there is a strong presumption that a declaration with its reservations is valid and that, consequently, every effort should be made in interpreting it to preserve that presumption.190 As pointed out, no declaration or reservation has yet been held by the ICJ to be invalid in the face of the strong presumption in favorem valoris. But assuming that a declaration or reservation is found defective and impermissible, the question is on what lines should the Court respond. Two broad situations may be distinguished. The first is that the declaration, irrespective of reservations or conditions, is basically tainted, as where the declaration purports to submit to the jurisdiction of the Court disputes which are not legal in an international sense, as the Statute and jurisprudence of the Court requires. The second situation is where a reservation or condition is tainted and causes a conflict with the legal requirements of reservations and conditions. Where the declaration is tainted, in keeping with the principle of the Right of Passage Case in favorem valoris of a declaration, every effort will be made to give the declaration effect and not declare it invalid. This approach has two consequences. One is that in interpreting the declaration the presumption would be in favour of conformity with the law and of validity and only, if this is not possible, will it be concluded that there is illegality. The other is

See also the inconclusive discussion of this issue in Alexandrov, op. cit. note 104 at pp. 76 ff., which concentrates on the subjective reservation of domestic jurisdiction. 190

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that, where the presumption of legality is rebutted in the circumstances, the Court will first look to severing the offending part which is invalid and give effect to the rest of the declaration. It is only if such severance would illustrate the intention of the declarant as objectively established, that the whole declaration will not be given effect to as being invalid. A similar approach would be appropriate in regard to reservations that are tainted. In the first place, an attempt will be need to interpret them in favorem valoris. Secondly, if this is not successful, an attempt will be made to sever either a part of the reservation, if such part can be identified as a separate part, or all of it, provided the intention of the declarant as objectively established is not interfered with or made nonsense of by this procedure. Thirdly, it is only if this is not possible, that in the last resort the whole declaration will be held to be invalid and struck down on the ground that giving effect to the declaration without the reservation as part of it would defeat the intention of the declarant, in the sense that without the reservation or the offending part of it, it is clear that the declarant had no intention of accepting the jurisdiction of the Court. In dealing with this kind of invalidity it is clear that as a consequence of the dictum in the Right of Passage Case the Court is inclined to act in favorem jurisdictionis, whenever a declaration is made, and it is only if it cannot be avoided, that it will not give effect to a part of the declaration or all of it. A problem may arise with the approach taken in the Norwegian Loans Case, where the Court gave effect to the subjective reservation of domestic jurisdiction as if it were valid on the basis that neither party had questioned its validity. In that case, as has been pointed out above, it was possible to take the view that the subjective domestic jurisdiction reservation could have been recognized as being valid because it did not take away from the Court the power of review based on abuse of the discretion involved in the decision taken by the relevant party in determining that the matter in dispute was one of domestic jurisdiction. In addition, it was possible on the facts to hold that the determination was not manifestly arbitrary or an abuse of discretion, even though the Court itself or an observer may not necessarily have agreed with the determination.

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However, the more important issue is whether, because the parties do not raise the issue of validity, partial or otherwise, of a declaration or reservation, the Court is precluded from raising proprio motu the issue and determining it. As pointed out, issues of jurisdiction in the sense of competence cannot be pre-empted as such, because the parties ignore them or do not raise them. Thus, it is unlikely that in an appropriate situation the Court would be acting correctly in not itself establishing the validity or invalidity of a declaration or parts of it, merely because the parties have failed to raise the issue. In the Norwegian Loans Case, on the other hand, no damage was done because, as pointed out, the declaration or reservation or parts of them were, in fact, not tainted, so that, in regarding the declaration or reservation as not invalid, the Court was doing no more than the equivalent of confirming its understanding that there was no manifest invalidity. This is in keeping with the approach in favorem valoris and in favorem jurisdictionis. While this attitude can be appreciated, that the ultimate authority of the Court is to raise the issue of invalidity and determine it cannot be denied. The situation is, nevertheless, affected by the operation, in the Court’s case, of the doctrine of forum prorogatum. If the issue of invalidity is not raised by the parties, when it is clear that the declarations or declaration cannot be given effect to, partially or totally, because of invalidity whether total or partial, it may happen that by the respondent’s not raising the issue it has consented by its subsequent conduct to the exercise of jurisdiction by the Court, even though by reference to the relevant declaration or declarations the Court may not have jurisdiction. Thus, in the appropriate situations the Court could have jurisdiction, even though the cited sources of jurisdiction may not, in fact, give it jurisdiction.

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(v) Interpretation of Declarations and Reservations – Special Considerations As has been found elsewhere,191 basically the same principles apply to the interpretation of declarations, including reservations, as apply to the interpretation of jurisdictional clauses. That is the starting point. As was stated in the Anglo-Iranian Oil Co. Case (Preliminary Objections), a declaration “must be interpreted as it stands, having regard to the words actually used”.192 This idea was reaffirmed in effect in regard to reservations in the Norwegian Loans Case, where the Court gave effect to a reservation “as it stands and as the Parties recognize it”.193 In this connection, in particular, the contra proferentem rule has never been applied to the interpretation of declarations and reservations. This is not only a general principle applicable to jurisdictional provisions but it was confirmed unequivocally in the Fisheries Jurisdiction Case where the Court said that “the rule had no role to play . . . in interpreting a reservation contained in the unilateral declaration made . . . under Article 36, paragraph 2, of the Statute”.194 Nor has the Court applied a theory of restrictive interpretation in the interpretation of declarations and reservations.195 However, it has been pointed out that, because declarations are unilateral acts, their interpretation requires a somewhat special approach in certain respects. In the Fisheries Jurisdiction Case the Court explained the nature of declarations and reservations under Article 36(2), referring particularly to the fact that they could not be interpreted restrictively.196 The Court also explained the conse-

See C.F. Amerasinghe, op. cit. note 23, chapter 4. 1952 ICJ Reports at p. 105. 193 1957 ICJ Reports at p. 27. 194 1998 ICJ Reports at p. 455. 195 See, e.g., the Phosphates in Morocco Case (1938) PCIJ Series A/B No. 74 at pp. 23–4. The ICJ has never called in aid restrictive principles of interpretation. On the contrary it has referred to fair interpretation of the text: see the Anglo-Iranian Oil Co. Case, 1952 ICJ Reports at p. 105, Aegean Sea Continental Shelf Case, 1978 ICJ Reports at pp. 28–9. 196 1998 ICJ Reports at p. 453. 191 192

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quences of the unilateral nature of declarations in relation to the general principles of interpretation of treaties provided for in the 1969 Vienna Convention on the Law of Treaties, although it conceded that the act established a consensual bond: A declaration of acceptance of the compulsory jurisdiction of the Court, whether there are specified limits set to that acceptance or not, is a unilateral act of State sovereignty. At the same time, it establishes a consensual bond and the potential for a jurisdictional link with the other States which have made declarations pursuant to Article 36, paragraph 2, of the Statute, and “makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance” (Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, I.C.J. Reports 1998, p. 291, para. 25). The regime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties (ibid., p. 293, para. 30). Spain has suggested in its pleadings that “[t]his does not mean that the legal rules and the art of interpreting declarations (and reservations) do not coincide with those governing the interpretation of treaties”. The Court observes that the provisions of that Convention may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court’s jurisdiction.197

While the importance of construing the text as a whole was pointed out, (i) the importance of the intention of the state making the declaration as such, and (ii) the relevance of the context in which the clause was to be read and an examination of the evidence regarding the circumstances of the preparation of the declaration and the purposes intended to be served, could not, according to the Court, be ignored but had to be taken into account.198 In the case in point, explanations of the declaration given at the time it was made in

197 198

Ibid. Ibid. at p. 454.

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the form of Canadian ministerial statements, parliamentary debates, legislative proposals and press communiqués were considered. In the Anglo-Iranian Oil Co. Case the Court in examining reservations paid close heed to the reasons which prompted their inclusion, including the general political problems faced by the government which led it to make the reservation in question. The Court accepted, as an indication of that government’s intentions, extraneous evidence of a type not normally admissible, such as a contemporary domestic law which paraphrased a declaration without reproducing it textually. It pointed out that the law in question was published in the corpus of Iranian laws and had, thus, been available for the examination of other governments during a period of almost twenty years, while also explaining that the law was not and could not be relied on, as such, as affording a basis for the jurisdiction of the Court, but had been filed with the sole purpose of throwing light on a disputed question of fact, namely, the intention of the Government of Iran at the time it made the declaration.199 In the Aegean Sea Continental Shelf Case the Court examined the general political circumstances which led to virtually identical reservations by Greece in its acceptance of the Court’s jurisdiction under Article 36 of the PCIJ Statute in 1930 and its ratification of the 1928 General Act of the Pacific Settlement of Disputes.200 The Court pointed out that: regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and . . . the Court asked the Greek Government to furnish it with any available evidence or explanations of the instrument of accession given at that time.201

In the Fisheries Jurisdiction Case the Court, in regard to the place that the principle of effectiveness had in the interpretation of dec-

199 200 201

1952 ICJ Reports at p. 107. 1978 ICJ Reports at p. 25. Ibid. at p. 29.

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larations, said that a declaration “should be interpreted in a manner compatible with the effect sought by the reserving State.”202 Finally, at this point in the development of the approach to interpretation of declarations the Court addressed a special argument raised in the same case by the claimant state relating to consistency with international law of declarations and reservations. The Court said: 53. Spain has contended that, in case of doubt, reservations contained in declarations are to be interpreted consistently with legality and that any interpretation which is inconsistent with the Statute of the Court, the Charter of the United Nations or with general international law is inadmissible . . . 54. Spain’s position is not in conformity with the principle of interpretation whereby a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is to be interpreted in a natural and reasonable way, with the appropriate regard for the intentions of the reserving State and the purpose of the reservation. . . . Nowhere in the Court’s case-law has it been suggested that interpretation in accordance with the legality under international law of the matters exempted from the jurisdiction of the Court is a rule that governs the interpretation of such reservations . . . the fact that a State may lack confidence as to the compatibility of certain of its actions with international law does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations. 55. There is a fundamental distinction between the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law. The former requires consent. The latter question can only be reached when the Court deals with the merits, after having established its jurisdiction . . .203

The Court applied the particular principles of interpretation of declarations and reservations outlined above in the Fisheries Jurisdiction Case to a reservation in the Canadian declaration which excluded 202 203

1998 ICJ Reports at p. 455. Ibid.

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from the Court’s jurisdiction “disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the . . . Area . . . , and the enforcement of such measures” (paragraph 2(d) of the Canadian declaration) and found, after considering the facts, that the dispute fell within the reservation.204 G. Forum Prorogatum Prorogated jurisdiction is always based on consent, as is the jurisdiction of the World Court in principle, but the special feature of it is that the consent of one party is consolidated after the institution of proceedings, whereas it did not exist at that point. Thus, not all consensual jurisdiction is prorogated, while prorogated jurisdiction is a form of consensual jurisdiction. It would be wrong to identify prorogated jurisdiction, as understood in international law, with the totality of jurisdiction based on consent.205 On the other hand, whether the prorogation occurs in respect of a particular aspect of jurisdiction ratione materiae206 or it covers elements which relate to matters personae, materiae, loci, temporis, etc. seems not to be critical or to make a basic difference for the principle of prorogation. The point is that where there was no consent (on the part of one party) generally at the time of the institution of proceedings,

On the Court’s findings on the three relevant points which needed to be considered see ibid. at p. 463, ibid. at pp. 463–5, and ibid. at p. 466. 205 E.g., John Erskine’s definition of prorogated jurisdiction as jurisdiction “conferred upon a judge who, without such consent, would be incompetent”: 1 Institutes of the Law of Scotland (1871 ed.) p. 49, does not make the point about forum prorogatum which is inherent in the concept for international law. Again Justinian’s Digest V.I.I., citing Ulpian, which refers to consent in general as the basis of jurisdiction does not make the distinction relevant for the purposes of international law. 206 See the discussion in the Interpretation of the Treaty of Lausanne Opinion (1925), PCIJ Series B, No. 12 at p. 27. On forum prorogatum see also Waldock, “Forum Prorogatum or Acceptance of a Unilateral Summons to Appear before the International Court”, 2 ILQ (1948) p. 377, H. Lauterpacht, op. cit. note 178 pp. 103–7. 204

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such consent being necessary, consent becomes present subsequently by whatever means recognized by or acceptable to the Court. The focus is on the subsequent appearance of the consent. There is no evidence or reason for restricting the application of the doctrine to materiae or any other aspect. (i) General Considerations The doctrine assumes significance because prior to the establishment of the World Court (PCIJ and then the ICJ), and even after, international tribunals did not admit the relevance of the doctrine for the purposes of their jurisdiction.207 This is so, even if a finding of an absence of jurisdiction may be only of formal significance in that the parties could go back and formalize their agreement or mutual consent and, thus, give either the same tribunal or another tribunal jurisdiction. Because forum prorogatum relates to consent, it is only where, as in the case of the World Court, the immediate consent of the party in issue is required that the principle may be invoked. Moreover, while the question has not been raised before, it is very likely that the application of the doctrine could validly be excluded by the agreement of the relevant parties before the institution of proceedings, that is, in the jurisdictional instrument, precisely because the doctrine relates to the presence and evidence of consent. These general remarks do not, however, detract from the acceptance of the doctrine by the PCIJ and the ICJ nor do they affect the particular interpretation the Court has given the doctrine. But a question that does arise, again one that had not been asked by the Court, is whether the facility with which both the PCIJ, commencing with the Mavrommatis Palestine Concessions Case,208 and the ICJ have accepted the doctrine is not to be explained by the requirement of a two-step acceptance by the same parties of the Court’s jurisdiction. It is significant that the doctrine has never been applied in respect of the first step in the acceptance of the Court’s

207 208

See C.F. Amerasinghe, op. cit. note 23, chapter 7. (1925), PCIJ Series A, No. 5.

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jurisdiction, namely becoming a party to the Statute of the Court. It is only to the second step of jurisdictional acceptance, namely acceptance of jurisdiction under Article 36, whether of the PCIJ or ICJ Statute, that the doctrine has been applied. Technically, once accepted as relevant, the doctrine could be applied to any head of jurisdiction in that Article, whether it be, e.g., under paragraph 1 or 2. It is simply a matter of identifying mutual consent to the Court’s jurisdiction after the first step has been taken, whether that mutual consent was manifest at the time of the institution of the proceedings or it was consolidated at an acceptable point thereafter, irrespective of the manner in which the consent of one of the parties, generally the claimant, was expressed originally. (ii) The Principle and its Evolution The first case in which the issue of prorogated jurisdiction arose before the PCIJ was the Mavrommatis Palestine Concessions Case. While the Court’s jurisdiction was initially attributable to the Mandate for Palestine, an issue arose which was outside the terms covered by the Mandate. The Court then rested its jurisdiction on an implied special agreement. It said that “It is not by reason of the jurisdiction conferred on the Court under Article 26 of the Mandate; but in consequence of an agreement between the Parties resulting from the written proceedings, that the Court has jurisdiction . . .”209 This was clearly a reference to the formation of an agreement by conduct after the institution of proceedings, in respect of the particular matters in issue which were not covered by the Mandate. In the Minority Schools Case the Court, accepting the principle enunciated in the Mavrommatis Palestine Concessions Case, clearly explained that submission of arguments on the merits, i.e., without raising an objection to jurisdiction, supplies the consent that may have been lacking in the first place.210 In the case the subsequent consent of the respondent was held to be sufficient for the incidence of jurisdiction. Thus, the doctrine of forum prorogatum became

209 210

Ibid. at p. 27. (1928), PCIJ Series A, No. 15 at pp. 25–5.

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accepted in the jurisdiction of the Court. The Court also made it clear that the principle involved could be activated even where the initial ostensible source of jurisdiction was derived from action taken under Article 36(2) insofar as compulsory jurisdiction was mentioned and it was patently stated that consent which was originally lacking once given by subsequent conduct could not be withdrawn. In the same case the Court added that the consent apparently given would be effective only if the conditions under which the act manifesting consent, in this case a declaration, had been made were such as to invalidate the expression of intention or, if the applicant had, subsequent to the expression of consent, essentially modified the relevant aspect of the case so that the original consent could not reasonably be regarded as applicable to the claim in its new form.211 It also pointed out that when the intention of submitting a matter to the Court for decision had been implicitly evidenced by the fact that the merits had been argued without reserving the question of jurisdiction, there was no reason to find that consent was lacking. In the Chorzów Factory Case (Merits) this view was reaffirmed.212 It must be pointed out that if the principle of substantive law which permits the maturation of consent not originally given by subsequent acts is admitted and recognized as valid, the issue of whether jurisdiction may be prorogued is a matter of substance and not one of procedure; it relates to the requirements for the presence of consent. It is significant that the present Article 38(2) of the Rules of Court states only that the application to the Court “shall specify

The ICJ has adopted this view in the Ambatielos Case (Preliminary Objections): 1952 ICJ Reports at p. 39. 212 (1928), PCIJ Series A, No. 17 at p. 37. There were several dissents from the position taken by the Court and reaffirmed in this case: see, e.g., Judge Huber in the Minority Schools Case (1928), PCIJ Series A No. 15 at pp. 48 ff., Judge Nyholm, ibid. at pp. 57 ff., Judge Negulesco, ibid. at p. 67. Sometimes there was confusion between the authority of a principle of law and that of a rule of procedure. 211

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as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based”.213 The ICJ first applied the principle very early in the Corfu Channel Case (Preliminary Objection).214 Subsequently, as will be seen, there have been several cases in which the principle has been accepted as being valid.215 (iii) The Maturation of Consent or Agreement An application may or may not indicate legal grounds upon which the jurisdiction of the Court is said to be based and on which the applicant is relying. In a given case the applicant may, on the other hand, make it clear that through the application it is leaving it open for the respondent to agree to the attribution of jurisdiction to the Court for the particular case. As was said in the Corfu Channel Case (Preliminary Objection): While the consent of the parties confers jurisdiction on the Court, neither the Statute nor the Rules require that this consent should be expressed in any particular form . . . Furthermore, there is nothing to prevent the acceptance of jurisdiction, as in the present case, from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement. As the Permanent Court of International Justice has said in its Judgment No. 12, of April 26th, 1928, page 23: “The acceptance

See for the application of this provision the Northern Cameroons Case, 1963 ICJ Reports at p. 28. In the Certain Questions of Mutual Assistance Case, 2006 ICJ Reports (<www.icj-cij.org>), Djibouti filed an application against France. The latter specifically after the filing of the application agreed to the Court’s jurisdiction. This act brought about the required consent of France, the respondent. 214 1947–1949 ICJ Reports at pp. 26 ff. 215 The other leading cases are the Haya de la Torre Case: 1951 ICJ Reports p. 71, the Ambatielos Case (Preliminary Objections): 1952 ICJ Reports p. 28, the Anglo-Iranian Oil Co. Case (Preliminary Objections): 1952 ICJ Reports p. 93, the Nottebohm Case (Preliminary Objection), 1953 ICJ Reports p. 111, the Request for Examination of the Situation Case, 1995 ICJ Reports p. 288, the Bosnia Genocide Case (Preliminary Objections), 1996 ICJ Reports p. 595. 213

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by a State of the Court’s jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement”.216

In effect, the claimant’s consent may be given by a unilateral application to the Court under Article 40 of the Statute and the present Rule 38 of the Rules of Court. The respondent may then in turn consent to the jurisdiction by accepting it. In the Corfu Channel Case the respondent contended that, since neither party was compelled to agree to recourse to the Court, the proceedings could only be commenced by a special agreement or compromis, and that the claimant’s filing of a unilateral application was incorrect. The Court did not accept this argument and stated: In submitting the case by means of an Application, the Government of the United Kingdom gave the Albanian Government the opportunity of accepting the jurisdiction of the Court. This acceptance was given in the Albanian Government’s letter of July 2nd, 1947.217

There is some practical value in the forum prorogatum principle thus envisaged, particularly because parties may not be able to agree on the exact terms of a compromis or special agreement, and, therefore, it may be otherwise difficult to get the matter before the Court at all. This kind of jurisdiction arises where, there being no basis on which the Court’s jurisdiction, whether compulsory or by special agreement, can be invoked, one party to a dispute makes an application to the Court, or takes some other step implying consent to, or recognition of the Court’s jurisdiction in the case, and the other party thereupon is given the opportunity to accept or submit to the jurisdiction and does so explicitly or can be held to have done so, either by signifying acceptance in an appropriate manner or by taking some step in the proceedings.

216 217

1947–1949 ICJ Reports at pp. 27–8. Ibid.

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There are some cases other than the Corfu Channel Case in which the issue of forum prorogatum did feature, although the judgments may not have used that terminology or the matter was not addressed because it was regarded as irrelevant, though the claimant had left it open for the principle to operate. In the Haya de la Torre Case the Court was required to indicate in what manner an earlier judgment might be carried out, and what steps the party responsible for doing so ought to take for that purpose, because the parties had not been able to reach any agreement on the matter. There was no specific provision in the Statute which authorized the Court to accede to such a request, and in view of the doubt as to whether it could be regarded as an inherent part of the original litigation, the jurisdiction of the Court required to be separately founded for the purpose. There was no specific agreement between the parties to refer the matter to the Court and proceedings were begun by means of a unilateral application on the part of the party responsible for carrying out the basic judgment of the earlier case. The other party then responded by acknowledging the claim, appointing an agent and complying with all the orders of the Court as to the filing of pleadings, and the like. Although the language used by the Court is not clear, the circumstances and the absence of any evidence of prior agreement or understanding between the parties to accept a reference to the Court make it possible to treat the case as one of prorogated jurisdiction.218 The case endorses the general proposition 1951 ICJ Reports at p. 78. In the Ambatielos Case an alternative submission contained in the Greek (claimant) memorial stated that the UK (respondent) was under an obligation as a member of the UN to conform to the provisions of Articles 1(1) and 36(3) of the Charter, the dispute in question being a “legal dispute susceptible of adjudication by the Court”. This submission was later abandoned. Consequently the Court did not have to deal with it. The UK, however, dealt with this suggestion in the memorial, to reject it, stating clearly that, consequent upon this rejection, there was no question of the Court acquiring jurisdiction on the basis of forum prorogatum: Ambatielos Case, ICJ Pleadings at p. 284. In the Anglo-Iranian Oil Co. Case the claimant (UK) concluded in its application that: Alternatively, whether or not the Court has the right to exercise jurisdiction in this case by virtue of the . . . declaration . . . the Government of the United 218

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that conduct, as well as written acceptance, is sufficient to found jurisdiction on the basis of consent. The following analysis may be made of the position relating to forum prorogatum. (a) The institution of proceedings by unilateral application is not confined to cases of compulsory jurisdiction. The Court stated this in the Corfu Channel Case (Preliminary Objection).219 (b) It is possible that a formal agreement giving the Court jurisdiction over the case may be made within a reasonable time after the respondent receives notice of the application. This agreement does not need to satisfy any particular form. This was the view taken in the Mavrommatis Palestine Concessions Case. An application will not be rejected for lack of jurisdiction, simply because at the time it is filed the legal grounds for jurisdiction on which it is based have not yet been realized or that such legal grounds have not been stated. The rule of forum prorogatum would, thus, become applicable at the latest, if the respondent pleads to the merits without raising an objection to the jurisdiction of the Court. It follows Kingdom expects that Iran, as a Member of the United Nations . . . mindful of the principle that “legal disputes should as a general rule be referred . . . to the . . . Court . . .” will agree to appear before the Court voluntarily in order to hear and answer on their merits the arguments of the Government of the United Kingdom. (Forum prorogatum; Corfu Channel Case (Preliminary Objection)) Anglo-Iranian Oil Co. Case, ICJ Pleadings at p. 17. The invitation to appear and answer the merits was declined by the respondent and the issue of jurisdiction fell to be decided solely by reference to the other grounds upon which the jurisdiction was sought to be based. Nevertheless, the Court, despite the rejection of this invitation and the intimation which it received from Iran that the jurisdiction of the Court was contested, and without considering whether a prima facie case for jurisdiction was made out, held, following some earlier cases, that it could entertain a request for interim measure of protection because ratione materiae “it cannot be accepted a priori” that the claim itself “falls completely outside the scope of international jurisdiction”. Anglo-Iranian Oil Co. Case, 1951 ICJ Reports at p. 93. Thus, the existence of a possibility of forum prorogatum was a ground for concluding that the Court had prima facie jurisdiction in a general sense, which enabled it to order interim measures of protection, this being a matter of incidental jurisdiction. 219 1947–1949 ICJ Reports at p. 78.

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that an agreement, if one is made, must be reached or a unilateral consent must be given at the latest before the date for the filing of the respondent’s counter-memorial or preliminary objection. This would give the Court jurisdiction to the extent of the consent or agreement. On the other hand, in the Corfu Channel Case a special situation arose. An agreement was reached on jurisdiction after the argument on the preliminary objections but before judgment was given. This agreement to some extent transformed the case. While forum prorogatum gave the Court jurisdiction on the basis of the claims in the application anyway, the subsequent agreement gave the Court a wider jurisdiction. (c) A subsidiary point that arises concerns the effect of the respondent’s pleading on matters involved in the Court’s exercise of an incidental jurisdiction, such as the jurisdiction to order provisional measures. The ordering of provisional measures does not necessarily result in forum prorogatum in respect of the merits of the dispute, especially if rejection of jurisdiction has been the constant attitude of the respondent. The Court took this view clearly in the Bosnia Genocide Case.220 (d) While (c) may be true, the fact that the application by the claimant contemplates clearly a possibility of forum prorogatum has created an adequate prima facie case for jurisdiction over the merits to give the Court incidental jurisdiction to order provisional measures.221

1996 ICJ Reports at p. 621. See also for a similar approach by the Court the Armed Activities on the Territory of the Congo Case (Rwanda), 2006 ICJ Reports paras. 19–22, where the Court found that the respondent’s conduct in the proceedings clearly indicated continual denial of the Court’s jurisdiction, so that no forum prorogatum could have taken place. In the Certain Criminal Proceedings Case, 2003 ICJ Reports (<www.icj-cij.org>), where France, the respondent, agreed in a letter after the filing of the application by the claimant to the Court’s exercise of compétence in the case, the Court found that its jurisdiction had been prorogued. 221 See the Anglo-Iranian Oil Co. Case, 1951 ICJ Reports at p. 93, referred to earlier, in note 218. 220

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(e) Jurisdiction may be conferred upon the Court by an informal agreement between the parties, expressed through successive acts during the proceedings. This could be a unilateral consent given later which results in agreement.222 The application, which must state both the subject of the dispute and the precise nature of the claim, contains the questions over which jurisdiction must be established. That forms the basis of the invitation to the respondent, to agree or consent to jurisdiction. Successive acts after that in the course of the pleadings resulted in forum prorogatum in both the Mavrommatis Palestine Concessions Case (Preliminary Objection) and the Minority Schools Case, for example. In the Corfu Channel Case (Preliminary Objection) there were two successive acts. In the later act the respondent state indicated that notwithstanding certain irregularities, it was prepared to appear before the Court in the case. The Court held that this constituted “a voluntary and indisputable acceptance of the Court’s jurisdiction”. (f) Jurisdiction may be conferred by the tacit consent of the relevant party, deduced from its conduct in pleading to the merits of a claim (including a counter-claim) without raising the question of jurisdiction. This proposition rests on the Mavrommatis Palestine Concessions Case (Preliminary Objection) and the Minority Schools Case and was developed in later cases. The characteristic feature of this aspect of the forum prorogatum is that, for the Court to assume jurisdiction, it has to be satisfied of the absence of conditions or equivocation on the part of the respondent. This may require a more extended examination of its conduct and intentions than is necessary when there is informal consent. Hence, the two forms of consent must be distinguished. The point was well made in the Haya de la Torre Case.223 (g) The implication of consent must be clear in order to found jurisdiction by forum prorogatum. In two cases the Court found that

See now the Certain Questions of Mutual Assistance Case, 2006 ICJ Reports (<www.icj-cij.org>), where France expressly submitted to the jurisdiction of the ICJ after Djibouti had filed an application against it. 223 1951 ICJ Reports at p. 78. 222

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the circumstances did not permit a clear inference of consent to be drawn. In its Counter-Memorial in the Ambatielos Case (Preliminary Objection) the UK had stated that, if the Court should find that it had jurisdiction to decide on the obligation of the UK to submit the Greek claim to a commission of Arbitration and Greece was not precluded by lapse of time from making the claim, then the UK would accede to a proposal made earlier by Greece that the Court should substitute itself for the Commission of Arbitration to determine the merits of the claim. But later the UK, though repeating this statement, made some qualification about the effectiveness of its consent. The Court said that there was a discrepancy in the UK’s statements of conditions which threw “some doubt on the existence of any unequivocal agreement between the parties” on this, so that in the absence of clear agreement between the parties the Court did not have jurisdiction to go into all the merits of the case.224 The matter was also considered by the Court in the AngloIranian Oil Co. Case. Although the main issue before the Court was a purely jurisdictional one, relating to the acceptance of compulsory jurisdiction by Iran, the Iranian pleadings and submissions did not confine themselves to this jurisdictional issue, but advanced several other objections which, though preliminary in character, related not to jurisdiction but to admissibility (e.g., non-exhaustion of local remedies). These objections could, however, only be heard and determined, if the Court in fact had jurisdiction in relation to the case as such. The Iranian conclusions nevertheless formally requested the Court to find that the claim was inadmissible on these grounds, apart from finding that the Court lacked jurisdiction. It was accordingly contended by the UK (though the contention was not pressed) that this procedure involved an invocation of a submission to the jurisdiction of the Court, thus constituting in effect the necessary response to the original UK action in seizing the Court, and was therefore sufficient to found jurisdiction by forum prorogatum. The Court recognized that the UK contention was based on the principle of forum prorogatum but stated that Iran had consistently denied

224

1952 ICJ Reports at pp. 38–9.

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the jurisdiction of the Court and, consequently, the submission of the UK on this point could not be accepted.225 It seems clear that forum prorogatum as a basis of jurisdiction will only be accepted where the inference of consent, or of recognition of, or submission to, the jurisdiction, is quite clear, as it was, for instance, in the Haya de la Torre Case and in the Corfu Channel Case. In particular, the Court in the Ambatielos and Anglo-Iranian Oil Cases showed an evident unwillingness to take advantage of technical errors of pleading or of possibly unguarded or premature statements made on behalf of a party. The requirement was also addressed in the Nottebohm Case (Second Phase). In a communication challenging the jurisdiction of the Court in the earlier case the respondent had expressed its willingness to negotiate with the applicant in order to arrive at an amicable settlement. The Court took the view that this was not a recognition of the nationality of Nottebhom and thus an acceptance by the respondent of the Court’s jurisdiction on the merits.226 (h) As a consequence of (g), argument on the substance of provisional measures in proceedings before the Court, particularly without objecting to the jurisdiction of the Court to order such measures, does not result in forum prorogatum in respect of any aspect of the case. In the Bosnia Genocide Case, in its written observations on the first request for provisional measures, the respondent “requested” the Court to order the application of a series of provisional measures which did not mention the Genocide Convention itself, and which did mention the Geneva Conventions of 1949 and the Additional Protocols of 1977. On this the Court merely stated that it was confined to the consideration of such rights under the Genocide Convention as might form the subject-matter of a judgment in the exercise of its jurisdiction under that Convention. In the Further Provisional Measures phase of that case the matter was discussed at greater length. The Court, applying the principle of forum prorogatum, examined whether by that request the respondent

225 226

1952 ICJ Reports at p. 114. 1955 ICJ Reports at p. 19.

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might have agreed that the Court should have a wider jurisdiction. The Court concluded: “whereas . . . the Respondent has constantly denied that the Court has jurisdiction to entertain the dispute, on the basis of [the Genocide] Convention or on any other basis; whereas in the circumstances the communication from Yugoslavia cannot, even prima facie, be interpreted as “an unequivocal indication” of a “voluntary and indisputable” acceptance of the Court’s jurisdiction . . .”227 Because the finding in an order of provisional measures is of a provisional and prima facie nature, the claimant raised the matter again in the preliminary objection phase. The Court again found in favour of the respondent.228 (i) Also (as a consequence of (f) above), it may be concluded that certain limitations apply to the prorogation of jurisdiction. One is that the applicant must accede to any conditions made by the respondent in its conduct from which its consent is implied.229 A second is that when, by successive steps in the pleadings, the case undergoes a substantial modification, the tacit consent to plead to the merits of a claim as submitted in the application or in the memorial will not necessarily bind the respondent, if the case is subsequently transformed into a different case. In such a case “consent given on the basis of the original claim could not reasonably be held to apply to” the transformed claim.230 Apart from procedural difficulties that may arise,231 as was pointed out in the Société Commerciale de Belgique Case, “a complete change in the

The Bosnia Genocide Case (Further Provisional Measures), 1993 ICJ Reports at p. 341. 228 The Bosnia Genocide Case (Preliminary Objections), 1996 ICJ Reports at pp. 620–1. 229 See, e.g., the Minority Schools Case (1928), PCIJ Series A No. 15 at p. 25, the Ambatielos Case (Preliminary Objections), 1952 ICJ Reports at p. 39. 230 See Minority Schools Case (1928), PCIJ Series A No. 15 at p. 25 231 The procedural problems arise from the application of Articles 40, 62 and 63 of the statute (and provisions of the Rules of Court) which concern amendments and interventions: see the Société Commerciale de Belgique Case (1939), PCIJ Series A/B at p. 173, the Phosphates Lands in Nauru Case, 1992 ICJ Reports at p. 267. 227

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basis of the case submitted to the Court might affect the Court’s jurisdiction”.232 In that case the Court conceded implicitly that any defect in the Court’s jurisdiction could be remedied by a proper forum prorogatum. In concluding “that the special circumstances of this case . . . and more especially the absence of any objection on the part of the Agent for the Greek Government, render it advisable that it (the Court) should take a broad view and not regard the present proceedings as irregular”, it for all practical purposes applied the principle of prorogated jurisdiction and proceeded to exercise its jurisdiction.233 (iv) Procedure Evolved There have been attempts at the unilateral arraignment of states before the Court in reliance exclusively on the doctrine of prorogated jurisdiction. The USA filed two applications, one against Hungary and another against the USSR, instituting proceedings in the Treatment of U.S. Aircraft and Crews in Hungary Cases. The applications stated: The Hungarian/Soviet Government appears not to have filed any declaration with the Court thus far, and although it was invited to do so by the United States Government . . . it has not made any responsive reply to the invitation. The Hungarian/Soviet Government is, however, qualified to submit to the jurisdiction of the Court in this matter and may upon notification (of this application by the Registrar, in accordance with the Rules of the Court, take the necessary steps to enable the Court’s jurisdiction over both parties to the dispute to be confirmed. Thus the United States Government founds the jurisdiction of this Court on the foregoing considerations and on Article 36(1) of the Statute.

(1939), PCIJ Series A/B at p. 173. There is a “procedural” question as to which organ of the state consenting tacitly or informally in the forum prorogatum process has the authority to give that consent: see Rosenne, 2 op. cit. note 15 pp. 607 ff. 232 233

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Upon receipt of those applications the Registrar, pursuant to the Statute and Rules of Court, duly notified the respondent states (and all other states concerned). When the two respondent states intimated their unwillingness to submit to the jurisdiction of the Court, the Court, after deliberation, made orders for the cases to be removed from the General List, as was required under those Rules.234 Thereafter the same procedure has been followed to introduce the four Aerial Incident Cases of 1952, 1953 and 1954,235 and the two Antarctica Cases,236 and they, too, were removed from the list in similar circumstances. In 1978 Article 38(5) of the Rules of Court was introduced. It facilitates the filing of cases jurisdictionally based on the principle of forum prorogatum, apart from explicitly referring to the principle. (v) Conclusion The Court has adopted an attitude of caution and taken a reasonable approach in accepting and applying the principle of forum prorogatum. Applied as the Court has done, the rule makes it possible for the Court to take a flexible and progressive approach to the question of its jurisdiction in contentious cases, while not permitting the use of the rule as a trap in which to catch the insufficiently circumspect by imputing to them consents the reality of which is open to doubt.237

1954 ICJ Reports at pp. 101 and 105. 1956 ICJ Reports at p. 11, 1956 ICJ Reports at p. 8, 1958 ICJ Reports at p. 161, 1959 ICJ Reports at p. 278. 236 1956 ICJ Reports at pp. 14 and 17 respectively. The cases involving the USA as claimant have been discussed in D’Amato and O’Connell, “United States Experience at the International Court of Justice”, in Damrosch (ed.), The International Court of Justice at a Crossroads (1987) at pp. 409–10. 237 With this view Fitzmaurice agreed: see 2 op. cit. note 164 pp. 511–12 (reprinted article), as did H. Lauterpacht, op. cit. note 178 pp. 103–7 and p. 202. Rosenne has some reservations based mainly on political considerations about the principle as applied: 2 op. cit. note 15 at pp. 698–9. 234 235

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H. Exercise of Compétence and Discretion In the discussion of limitations of a fundamental nature on jurisdiction in a previous section it emerged that some matters, such as mootness, which result in the Court’s not exercising its jurisdiction, have sometimes been linked to its discretion not to exercise its jurisdiction on grounds such as propriety. In spite of the language used in judgments, principally of the ICJ, the better view is that the two instances where this association has up to now been made, namely mootness or absence of object or purpose and the rule in the Monetary Gold Case, represent instances of fundamental limitations on jurisdiction which are peremptory rather than involving the exercise of discretion on the part of the Court. The reasons are basically connected with the nature of the judicial function, for the respect shown by the Court for those limitations points to peremptory exclusions from a jurisdiction the Court might otherwise have rather than to the exercise of a discretionary authority. There is a question which remains, however, namely whether, where the Court has jurisdiction (compétence) it may choose not to exercise it on the basis of an exercise of a discretion, however much the discretion is less than absolute. The two examples cited above have been explained as not being cases of discretion. In contentious cases at any rate the recognition of a discretion in regard to jurisdiction, as suggested by some, would tend to weaken the adjudicatory authority of the Court, insofar as such authority would come to be regarded as not based on compelling grounds once jurisdiction is vested in it but controlled by an element of choice which leaves adjudication as an instrument for dispute settlement in a state of uncertainty. It makes no difference that the jurisdiction is international and not national and is basically consensual. The recognition of a discretion in this regard weakens the credibility and efficacy of a dispute settlement system based on adjudicatory methods and would detract from its character which distinguishes it from other modes of dispute settlement.

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I. Proof of Compétence While jurisdictional authority cannot be pre-empted and courts not only may but must, when necessary, raise issues of jurisdiction proprio motu, as pointed out earlier, an important question is whether a burden of proof exists and who bears it. The issue has been addressed by the ICJ and the conclusion reached is categorical. There is strictly no burden of proof. The principle is that the Court examines all the evidence and reaches the appropriate conclusion. In the Fisheries Jurisdiction Case the parties took different positions on who bore the burden of proof in regard to jurisdiction, both claiming that one or the other had a burden of proof in regard to various aspects. The Court unequivocally stated: 36. As Spain sees it Canada has in principle accepted the jurisdiction of the Court through its declaration under Article 36, paragraph 2, of the Statute, and it is for Canada to show that the reservation contained in paragraph 2 (d) thereto does not exempt the dispute between the Parties from this jurisdiction. Canada, for its part, asserts that Spain must bear the burden of this showing why the clear words of paragraph 2 (d) do not withhold this matter from the jurisdiction of the Court. 37. The Court points out that the establishment or otherwise of jurisdiction is not a matter for the parties but for the Court itself. Although a party seeking to assert a fact must bear the burden of proving it . . ., this has no relevance for the establishment of the Court’s jurisdiction, which is a “question of law to be resolved in the light of the relevant facts.” . . . 38. That being so, there is no burden of proof to be discharged in the matter of jurisdiction. Rather, it is for the Court to determine from all the facts and taking into account all the arguments advanced by the Parties, “whether the force of the arguments militating in favour of jurisdiction is preponderant”, and to “ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it.” . . .238

1998 ICJ Reports at pp. 450–1. On this case see, e.g. “The Fisheries Jurisdiction Case (Spain v. Canada): Judgment on Jurisdiction of 4 December 1998”, 48 ICLQ (1999) p. 664. 238

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Jurisdiction or compétence is a matter of law not of fact as such. Moreover, it is to be noted that the Court’s statement assumes that even in regard to the facts relevant to the issue of jurisdiction there is strictly no allocation of the burden of proof insofar as it said that it makes its determination “from all the facts”. The assumption is that the parties must produce whatever evidence they have relevant to the issue. The Court then determines whether it has jurisdiction. Further, because jurisdiction may not be pre-empted but must exist, what a tribunal decides is whether it has jurisdiction (compétence) not whether it does not have jurisdiction. RECEVABILITÉ (ADMISSIBILITY) Recevabilité (or admissibility) of applications must be distinguished from questions relating to compétence (competence). In a given case a tribunal may have competence to proceed with the merits, but may not be able to do so because of defects in or connected with the application which render it inadmissible (irrecevable). Conversely, though an application may not be rejected on the ground of inadmissibility the tribunal may be without competence to proceed to deal with the merits. As examples may be taken, for competence, the claim that there is no legal dispute or that the matter is one for domestic jurisdiction or that the issue in the application is moot, which would, if established, render the tribunal without competence to proceed with the merits; for admissibility in an appropriate case the claim that the rule of nationality of claims has not been satisfied or that local remedies had not been exhausted or that, where a judgment has been given concerning atmospheric nuclear tests and re-examination is requested, the dispute relates to underground tests,239 which would, if established, render the application inadmissible, though the competence of the tribunal may not be affected. The distinction has been observed in the practice of the World Court.

See the Request for Reexamination Case, 1995 ICJ Reports at p. 306. On receivability in the ICJ in general see Giuffrida, La ricevibilità generale nella giurisprudenza della Corte Internazionale di Giustizia (1995). 239

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In the Nicaragua Case (Jurisdiction and Admissibility) the ICJ admitted to the fact that sometimes grounds of inadmissibility were presented as (or confused with) matters of competence.240 While the Court did not seem to think it of importance that the confusion had occurred it dealt with the five grounds as what they were in fact. The Court had already referred to the confusion between admissibility and competence that has occurred in the pleadings in practice in the Northern Cameroons Case (Preliminary Objections).241 The distinction is, however, of importance and has validity in the context of the exercise of jurisdiction by the Court. An important consequence of the distinction is that in a case where the Court has no compétence in a dispute, the defect cannot be cured in relation to that particular dispute as framed and presented to the Court, given the governing instruments concerned, while in a case where the matter is inadmissible, it is possible that the defect may be cured, especially if the defect is of a procedural nature. Thus, the application may be successfully brought before the Court at a later date once the defect is cured. For example, absence of justiciability or “legality” in a dispute would, because it relates to competence, not be curable and the dispute, as framed would always remain outside the jurisdiction of the Court. On the other hand, failure to exhaust local remedies relates to admissibility and, though the application may be declared inadmissible because there was such failure, if and when local remedies have been exhausted, the application could be declared admissible and the merits decided. Similarly, where a procedural defect renders the application inadmissible, it would be admissible once the appropriate procedure is followed. A second consequence of the distinction is that failure to raise a question of admissibility at the appropriate time before the merits are taken up will result in a waiver of the right to rely on the objection based on inadmissibility. This issue has rarely been addressed by the Court, though the matter has arisen in connection with the

240 241

1984 ICJ Reports at p. 429. 1963 ICJ Reports at p. 27.

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rule of local remedies particularly. Waiver does not occur in the case of objections to compétence, particularly where the objection is not raised in time, as has been seen above. Reference is made in this connection to the Minority Schools Case where the PCIJ said quite categorically in dealing with the question of preliminary objections and the effect of Article 38 of the 1926 Rules of Court (now Article 79 of the 1978 Rules of Court): The object of this article was to lay down when an objection to the jurisdiction may be validly filed, but only in cases where the objection is submitted as a preliminary question, that is to say, when the Respondent asks for a decision upon the objection before any subsequent proceedings on the merits. It is exclusively in this event that the article lays down what the procedure should be and that this procedure should be different from that on the merits. ... the raising of an objection by one Party merely draws the attention of the Court to an objection to the jurisdiction which it must ex officio consider. A party may take this step at any stage of the proceeding.242

The implication is clear. Objections to competence may be raised at any stage in the proceedings and they are not subject to the doctrine of waiver. Conversely, matters of admissibility, if not raised before the merits are taken up, will be regarded as subject to the doctrine of waiver. Further, the issue does not hinge on whether the rules of the Court indicate when preliminary objections should be raised. While such rules will have the effect of implementing for the purposes of proceedings before the Court the rule that objections to admissibility must be raised before the merits stage, they cannot as such take away the rights of the parties to rely on the doctrine of waiver, if objections to admissibility are not raised in time. The significance, meaning and consequences of the application of the waiver principle will emerge particularly in the discussion of the objection based on 242

(1928), PCIJ Series A No. 15 at pp. 22–23.

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the rule of local remedies. What is eminently clear, however, is that tribunals will not hesitate to regard as waived the right to rely on an objection to admissibility where the objection is not raised in time during the proceedings. It goes without saying that such waiver may take place also by express or implied consent to such waiver at any relevant stage before or during the proceedings by the party who may rely on the objection to admissibility. It should also follow that while a unilateral waiver will be effective, whatever the form. in the case of objections to admissibility, where conditions relating to jurisdiction are so changed that an objection to jurisdiction may not be relied on, the changes will have to be achieved through the agreement of all the parties before the proceedings are commenced so that the jurisdiction of the Court is clearly established. As seen in the previous section, such changes, even if agreed upon by all the parties, are not effective, if made after the commencement of proceedings. The decision of the Court on admissibility will be res judicata to the extent that the matter was raised and a conclusion was reached upon it. The finding of admissibility or inadmissibility will not only be binding, as a decision of the tribunal, but it will determine the issue finally. However, in the event that the finding is one of admissibility, this will not affect the ability of the claimant to file a different claim on the facts, which again may or may not be admissible depending on the circumstances, or to file the same claim after the cause of inadmissibility has been removed, if this were possible. The res judicata, in other words, is not the merits of the case but the matter of admissibility. The merits still remain open for consideration. Moreover, the issue of admissibility may be canvassed again, if the facts surrounding such issue have changed. (a) Grounds for Inadmissibility A claim’s inadmissibility depends on the grounds, which may vary from case to case and which are available, for declaring the claim inadmissible. Two very important grounds for inadmissibility are to be found in connection with claims in respect of individuals in regard to diplomatic protection. These relate to the nationality of

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the individual who is the subject of the claim and to the exhaustion of local remedies. (i) General There are three significant cases in which objections based on inadmissibility featured which will be examined in order not only to illustrate but also to better understand the incidence of inadmissibility. In the Northern Cameroons Case the Court rejected an objection of inadmissibility based on the then Article 32 of the Rules of Court, which concedes that a failure to follow that Rule in substance could lead to the claim’s being inadmissible, though matters of form could be dealt with, with a degree of flexibility.243 In the Nicaragua Case (Jurisdiction and Admissibility) the US as respondent adduced five grounds for inadmissibility of which the first relating to the absence of an essential party pertained to compétence244 rather than admissibility. The second ground of inadmissibility was dismissed by the Court because it was a misinterpretation of the Charter and the Court’s powers in the context of the Charter.245 Of the third objection which in fact was dealt with and discussed together with the second the Court before rejecting it observed that it was argued that the Court should hold the Application of Nicaragua to be inadmissible in view of the subject-matter of the Application and the position of the Court within the United Nations system, including the impact of proceedings before the Court on the ongoing exercise of the “inherent right of individual or collective self-defence” under Article 51 of the

1963 ICJ Reports at pp. 27–8. The Court in effect recognized this fact when it referred to its “power to refuse to exercise its jurisdiction” (rather than its power to declare the application inadmissible) in the circumstances: 1984 ICJ Reports at p. 431. On this case see Lang, L’affaire Nicaragua/Etats-Unis devant la Cour Internationale de Justice (1990). 245 1984 ICJ Reports at pp. 431–2. 243 244

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The fourth objection was “that the Application should be held inadmissible in consideration of the inability of the judicial function to deal with situations involving ongoing conflict.”247 The Court dismissed the objection for several reasons of substance. The fifth objection raised by the US was that Nicaragua had failed to exhaust the established processes for the resolution of conflicts in Central America, including what was referred to as the Contadora process.248 The Court held that it was unable to accept either that there was any requirement of prior exhaustion of regional negotiating processes or that the existence of the Contadora process constituted in this case an obstacle to the Court’s jurisdiction. In the Border and Transborder Armed Actions Case (Jurisdiction and Admissibility)249 the Court had to deal with several objections to admissibility based on factors particular to the dispute before it. It dismissed these either on the legal interpretation of relevant legal instruments or on the facts after an extensive examination of each and held that there were no grounds for inadmissibility.250

Ibid. at p. 432. Ibid. at pp. 436–7. 248 Ibid. at p. 438. 249 1988 ICJ Reports p. 69. On this case see Decaux, “L’arret de la C.I.J. dans l’affaire des actions armées frontalières et transfrontalières, Nicaragua contre Honduras, compétence et recevabilité, 20 Decembre 1988”, 34 AFDI (1988) p. 147, Tchalakoff, “La compétence de la Cour internationale de Justice dans l’affaire des “Actions frontalières et transfrontalières” (Nicaragua–Honduras)”, 93 RGDIP (1989) p. 623. 250 1988 ICJ Reports at pp. 105–6. There were five objections to jurisdiction which were all dismissed. In the Ambatielos Case (Obligation to Arbitrate) the Court described as objections to admissibility those raised by the respondent, the UK. These objections were that (i) local remedies had not been exhausted, (ii) there was undue delay in presenting the claim, (iii) in view of compulsory jurisdiction being possible for a considerable time, the claimant’s actions caused undue delay and abuse of process of the Court: 1953 ICJ Reports at pp. 22–3. The Court dealt with the abuse of process allegation holding that there was none 246 247

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Matters ratione personae are generally not questions of admissibility. As a rule these matters concern compétence. For example, Article 34 of the Statute or the ICJ confines locus standi before the Court in contentious cases to states. Cases brought by individuals or international organizations or against them would be rejected because the Court lacked competence, not because the cases were inadmissible. This issue of competence ratione personae is not to be confused with matters relating to persons who have substantive rights or obligations in various situations. These are matters of substance which properly must be treated as questions for the merits.251 The matter of nationality of a person, natural or juridical, in a claim brought in the exercise of state’s right to protect its nationals is generally a subject concerning admissibility. This is how the matter has been regarded in the law of diplomatic protection. However, in a given situation the question of nationality may be made a matter of competence rather than admissibility by agreement between the parties, because they regard it as a fundamental consideration for the adjudication. This points to the conclusion that matters which are usually matters of admissibility may in the circumstances of the case become matters of compétence. There are two particular matters of admissibility which have become associated with international litigation before the World Court, as it has developed. In the case of international disputes arising from injuries to persons, natural or juridical, objections to admissibility based on two principles have been made. The first is the principle, which is one of general international law, that in broad terms claims in the exercise of diplomatic protection for injuries to such persons may be brought only by the national state of the injured person; the second is the principle that local remedies but said that the other arguments related to the principal claim which was not before it. 251 This kind of situation has arisen before the Iran–US Claims Tribunal: see, e.g., the International Technical Products Corp., et al. Case (1991), 27 Iran–US CTR p. 206; the DIC of Delaware, et al. Case (1985), 8 ibid. p. 144; the Edgar Protiva, et al. Case (1995), 31 ibid. p. 89; the Harrington and Associates, Inc. Case (1987), 16 ibid. at p. 302.

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available in the wrongdoing state must be exhausted before such a claim may be brought. (ii) Nationality of Claims In regard to the nationality of claims rule there are several issues which have arisen and been addressed or do arise. The most significant252 may be listed as follows: (i) (ii) (iii) (iv) (v)

the the the the the

determination of nationality; various consequences of dual or multiple nationality; relevance of the “effective link” theory; relevance of continuous nationality; and special problems with the nationality of juridical persons.

The relevance of nationality in diplomatic protection vis-à-vis admissibility of claims has been discussed fully by the present author in Chapter 10 of a treatise entitled Diplomatic Protection (2008), to which reference should be made. The cases decided by the World Court are dealt with in detail there. Suffice it to state here that a state’s right to exercise diplomatic protection is based on the link of nationality between the injured individual and the acting state. Thus, the general rule is that a state may not extend its protection to or espouse claims of non-nationals.253 In litigation a respondent state may raise the objection to admissibility that the individual concerned does not have the nationality of the claimant state. On

There are some other matters such as problems created by a change in the vesting of claims as such and the consequences of statelessness or refugee status which arise but these are subsidiary to the main issues. 253 For more judicial authorities on the rule see Van Panhuys, The Role or Nationality in International Law: An Outline (1959) pp. 59–73, García Amador, “Third Report to the ILC”, 2 YBILC (1956) at p. 86, Jessup, A Modern Law of Nations (1968 reprint) p. 99, Ohly, “A Functional Analysis of Claimant Eligibility”, in Lillich (ed.) International Law of State Responsibility for Injuries to Aliens (1983) p. 284, C.F. Amerasinghe, State Responsibility for Injuries to Aliens (1967) pp. 61 ff., C.F. Amerasinghe, Local Remedies in International Law (1991) pp. 59 ff. 252

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the other hand, while the general rule is as stated above, the fact that an individual has the nationality of the claimant state does not always result in the state’s having the right to espouse his claim before the ICJ. Thus, correctly stated, the general rule has both a negative and positive aspect. A state may not espouse claims of non-nationals, while also a state may espouse claims of nationals. The positive side of the rule was referred to by the PCIJ first in the Panevezys-Saldutiskis Railway Case.254 The rule that nationality is the appropriate ground for the espousal of claims by states or for individuals to bring claims before tribunals where they have locus standi in cases based on a violation of customary international law has never been questioned.255 (iii) Exhaustion of Local Remedies The general rule applicable in cases of diplomatic protection is that local remedies in the wrongdoing state must be exhausted by the injured person as a precondition for admissibility of a claim before an international tribunal. The development, application and content, including limitations and exceptions, of the rule and other matters connected with it have been extensively treated in a treatise by the present author, Local Remedies in International Law.256 Thus, suffice it to say here that the rule is well established in customary or general international law as an objection to admissibility. The main features of the rule are:

(1939), PCIJ Series A/B No. 76 at p. 16. The other cases in which the nationality of claims rule was considered or referred to by the World Court are the Nottebohm Case (Second Phase), 1955 ICJ Reports p. 3, the Reparation for Injuries Opinion, 1949 ICJ Reports at p. 186, the Barcelona Traction Co. Case, 1970 ICJ Reports p. 3, the Norwegian Loans Case, 1957 ICJ Reports at pp. 39–40, and now the Diallo Case (Preliminary Objections), 2007 ICJ Reports (<www.icj-cij.org>). 256 C.F. Amerasinghe, Local Remedies in International Law (2nd edn., 2004). 254 255

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(i) as in the case of the law of diplomatic protection, there are several interests that converge and conflict and must be accommodated; (ii) the incidence of the rule is determined by concepts such as that of “direct injury” and that of “jurisdictional connection”; (iii) in determining the scope of the rule the availability of remedies, the nature of the remedies available, the adequacy and effectiveness of the remedies available, whether the remedies are normally used, the raising of substantive issues in the local proceedings, the persons involved in the use of the rule and the need for a final decision are relevant considerations; (iv) there are limitations on the scope of the rule based on such concepts as obvious futility; (v) the question of the need to use procedural resources and the extent to which they need to be used is relevant and has been addressed by tribunals; (vi) the rule may be waived or estoppel may operate to exclude the invocation of the rule; (vii) the burden of proof in connection with the application of the rule is a relevant factor in its implementation; (viii) other problems relating to the time for raising objections based on the rule (which are relevant to the raising of objections to admissibility in general and are dealt with below), the time at which remedies must be exhausted and the problem of the continuing situation must be and have been addressed; (ix) properly interpreted and applied, the nature of the rule is entirely procedural and in no circumstances substantive. (b) Waiver and Estoppel A significant feature of objections to admissibility is that they may be waived or the right to raise them be forfeited for various reasons. Thus, an examination of the merits may validly take place in certain circumstances, even if there were obstacles to admissibility. In this respect such objections differ from objections relating to competence (sometimes called “jurisdiction”). The latter may be raised at any time during the proceedings, the right to raise them

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may not be forfeited or waived, and the absence of competence may never be pre-empted, as has been pointed out above. Before the ICJ, it will be recalled, there exists a doctrine of forum prorogatum in the appropriate circumstances. In the context of the failure to raise questions of admissibility the application of this doctrine results in the prorogation of jurisdiction on the merits to the extent that because a question or questions of admissibility have not been raised, the respondent has consented to the exercise of jurisdiction over the merits. Thus, the issue of admissibility becomes defunct and cannot be raised in future. In general it may be said that the principles of consent and good faith would be relevant to the law relating to issues of admissibility insofar as objections to admissibility may be excluded by the operation of either of them. These principles have been addressed by jurists, arbitrators and judges mainly in regard to the rule of local remedies. What is said of the objection based on the rule of local remedies, however, will apply mutatis mutandis to other objections to admissibility. (i) Express Waiver Express waiver takes place where the respondent state expressly agrees that the objection to admissibility will not apply to a particular dispute or particular disputes. This may take place either before or after the dispute has arisen and may even be by a unilateral act by the respondent state. Such waivers may be given in both multilateral treaties and bilateral treaties. These do not raise any real problems. In the Interhandel Case the rule was held to be prima facie applicable.257 (ii) Implied Waiver The question that really arises is whether and when a waiver of an objection to admissibility can be implied. This question obviously raises problems of interpretation, and as a rule each situation should be looked at individually to determine whether there has been a

257

1959 ICJ Reports p. 6.

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waiver.258 Clearly, to the extent that there has been a waiver, there can generally be no room for unilateral determination of the waiver. The existence of a waiver will usually have to be determined on the merits of each case. In connection with signatures of the Optional Clause under Article 36 of the Statute of the ICJ, the PCIJ in the PanavezysSaldutiskis Railway Case took the view that such a signature of the corresponding clause under its Statute did not involve an implied waiver of the rule of local remedies by the signatories.259 The issue was not raised as such by the applicant state in the Norwegian Loans Case,260 or in the Interhandel Case,261 where the ICJ was confronted with the question of local remedies, although signatures of the Optional Clause under Article 36 of the Statute of the Court were involved. Since the acceptance of the compulsory jurisdiction of the ICJ does not basically militate against the preservation of the jurisdiction of national courts, the view may be taken that the opinion of the PCIJ has validity. Certainly, the signature of the Optional Clause has never been regarded as a waiver of the right to raise objections to admissibility in general, as is shown by the jurisprudence of the PCIJ and ICJ. Submission to international adjudication by agreements between states entered into before the dispute has arisen probably stands on the same footing as acceptance of the Optional Clause under Article 36 of the Statute of the ICJ. There is a direct analogy between the two situations. It is to be noted that in the Elettronica Sicula S.p.A. (ELSI) Case a Chamber of the ICJ held that an agreement in a treaty to submit to adjudication by the ICJ entered into before the dispute arose did not by itself imply a waiver of the rule of local remedies.262 In regard to treaties signed after disputes have arisen, See the argument of the French government in the Norwegian Loans Case which related to the existence of an implied waiver of the rule of local remedies: 1 ICJ Pleadings (1957) at pp. 407 ff. 259 (1939) PCIJ Series A/B No. 76. 260 1957 ICJ Reports p. 9. 261 1959 ICJ Reports p. 6. 262 1989 ICJ Reports at p. 42. 258

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while the PCIJ and the ICJ have not as such addressed themselves to this situation, insofar as the two Courts have enunciated an undifferentiated general principle, the better view is that whether such treaties are signed before or after disputes arise, no waiver of the rule of local remedies may be generally implied. Even in the case of general treaties to settle by reference to the Court, it may be possible, in the absence of an express waiver, to find from the natural meaning of the text or the circumstances surrounding the agreement that waiver of the rule of local remedies was in fact intended.263 The right to object to admissibility of a claim before an international court or tribunal may be waived because of the failure on the part of the respondent state to raise at the proper time in the international proceedings the objections to admissibility (including those based on the rule of local remedies). This is an implied waiver of the application of the rule on the basis of a procedural position taken by the respondent state and takes place during the international proceedings. Once the waiver has taken place it is irrevocable. The forfeiture of the right to rely on the objections is grounded in a general principle that applies to the raising of preliminary objections.264 As a consequence of two judgments of the PCIJ on jurisdiction, it has been concluded that a request for a declaratory judgment precludes the raising of the objection by the respondent state that local remedies have not been exhausted. In the German Interests in Polish Upper Silesia Case the PCIJ held that the rule did not apply where the plaintiff state requested only an “interpretation of certain clauses of the Geneva Convention”.265 The decision was explained in the

See Steiner and Gross v. Polish State, AD 1927–8 at pp. 472 ff., which, though, was not a case before the PCIJ or the ICJ. 264 Rosenne 2 op. cit. note 15 pp. 828–9 discusses “Time for Raising a Matter of Jurisdiction” which presumably includes both matters relating to competence and admissibility, but does not refer to the effect of failure to raise an objection, particularly to admissibility. In fact, even the jurisprudence of the PCIJ and ICJ has not discussed this matter in relation to objections to admissibility as such. 265 (1925), PCIJ Series A No. 6 at p. 20. 263

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subsequent Chorzów Factory (Jurisdiction) Case where the Court said that the application in the first case “only asked the Court for a declaratory judgment between States, which only the Court could give, whereas the present Application seeks an Indemnity . . .”266 The distinction, thus, lies between cases in which a judgment merely declaring a violation of international law is sought and that in which a remedial right is asserted.267 Among commentators, however, the matter is not regarded as settled,268 while in its oral argument in the Interhandel Case the US Government apparently did not categorically take the view that the waiver was unqualified.269 The ILC, on the other hand, appears originally to have supported the view that the rule of local remedies does not apply where a declaratory judgment alone is sought270 but in its 2006 Articles on Diplomatic Protection it reversed its position.271 It is not clear whether the same reasoning is applicable across the board to all objections to admissibility. In general it would seem that it is not so applicable. Exceptionally, on an ad hoc basis a waiver may be implied if an intention to waive can specifically be shown to exist by implication.

(1927), PCIJ Series A No. 9 at pp. 26–7. See Beckett, “Les questions d’intérét général au point de vue juridique dans la jurisprudence de la Cour permanente de Justice internationale”, 39 Hague Recueil (1932) at p. 164; de Visscher, “Le déni de justice en droit international”, 52 Hague Recueil (1935) at p. 425; Kaufmann, “Régles générales du droit de la paix”, 54 Hague Recueil (1935) at p. 456. 268 See the discussion in the Institut de droit international: 46 AIDI (1956) at pp. 302 ff. 269 ICJ Pleadings (1955) at pp. 501 ff. 270 Report of the Commission to the General Assembly on the work of its twenty-ninth session: 2 YBILC (1977), Part II, at p. 50, and now the EComHR has taken the view that declaratory relief, even by way of interpretation, may not be given unless local remedies have been exhausted: Donnelly and Others v. UK, Applications Nos. 55177–83/72, COE Doc. 43.662-06.2 at p. 83. 271 See Article 14(3): Report of the ILC (2006) at pp. 20 and 76. 266 267

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(iii) The Principles of Estoppel and Good Faith The principles of estoppel and good faith may operate to exclude objections to admissibility, including those based on the application of the rule of local remedies. The doctrine of estoppel in broad terms prevents one party from taking advantage of another when the former by his actions has let the latter act in a certain manner detrimental to the latter’s own interests. The principle of good faith is at the root of this doctrine. The exact scope of the doctrine in international law is not fully defined. For the purpose of the application of the rule of local remedies, the statement in the Chorzów Factory (Jurisdiction) Case, which purported to advert to an aspect of this doctrine, is a good starting point. The PCIJ said: “It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not had recourse to some means of redress, if the former party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him.”272 The Court pointed to an illegal act in particular. However, the principles of good faith and estoppel have a broader coverage than that. In fact, any conduct on the part of one party which is intended to lead, and induces, the other party to act in a manner which is detrimental to his interests could qualify, there being no special requirement that the conduct be illegal. While the principles of estoppel and good faith may in appropriate circumstances have a general application to the exclusion of objections to admissibility, including objections based on the rule of local remedies, the manner in which they are applicable apparently has a strict definition. For example, in the case of the rule of local remedies there must be cogent evidence that the conduct was not only intended to lead the person to believe that local remedies need not be further exhausted, for whatever reason, but also that the latter could reasonably be expected to rely on that conduct, did

272

(1927), PCIJ Series A No. 9 at p. 31.

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rely on it and for that reason did not resort to the local remedies which were available. Thus, in the Interhandel Case the ICJ did not consider that the conduct of the US Government in the situation was of this nature.273 It would appear that in the circumstances of the case the Court considered that it was not reasonable to expect that the alien would rely on the opinion of the US Government, which was a party to the dispute and had no control on the US courts, and whose opinion on the existence of remedies was not necessarily an expert one. What is required for the principle of good faith and estoppel to operate is not merely that the host or respondent state express a general view about the existence of remedies, but that it conduct itself in such a way that a reasonable opponent would conclude that he was relieved of the duty to exhaust local remedies or that the rule would not be invoked. In the Elettronica Sicula S.p.A. (ELSI) Case a Chamber of the ICJ dealt with the argument that the rule of local remedies had been excluded by estoppel. While not denying that estoppel could have been relevant to the matter in hand, the Chamber held that estoppel did not operate to exclude the rule on the facts of the case. Referring to the doctrine of estoppel and its application to the facts, based on the argument that Italy had failed to make a riposte, the Court said: “Furthermore, although it cannot be excluded that an estoppel could in certain circumstances arise from a silence when something ought to have been said, there are obvious difficulties in constructing an estoppel from a mere failure to mention a matter at a particular point in somewhat desultory diplomatic exchanges.”274 There are no clear examples of the application of the principles of estoppel and good faith in favour of a person in regard to the objection based on local remedies. While there is every reason why the principles should be relevant to the application of the rule of local remedies, it will naturally depend on the circumstances of each case whether the application of the principles should result in the exclusion of the rule.

273 274

1959 ICJ Reports at p. 27. 1989 ICJ Reports at pp. 43–4.

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By analogy, on the basis of the above jurisprudence, the principles of estoppel and good faith may be applied to other objections to admissibility in the appropriate circumstances. Generally the issue would be whether the respondent state can rely on some factor which entitles it to conclude that the particular objection would not or could not be raised. (c) Time for Raising Objections to Admissibility Rules of 1978 of the ICJ in Article 79 address the question of the time specifically at which objections to admissibility must be filed. The French text, which is clearer than the English text, states: 1. Toute exception à la compétence de la Cour ou à la recevabilité de la requête ou toute autre exception sur laquelle le défendeur demande une décision avant que la procédure sur le fond se poursuive doit être présentée par écrit dans le délai fixé pour le dépôt due contre-mémoire. Toute exception soulevée par une partie autre que le de défendeur doit être exposée dans le délai fixé pour le dépôt de la premiére pièce de procédure émanant de cette partie.275

The clarity lies in the use of the terms compétence and recevabilité. It is made quite clear that there are two kinds of objections which relate to juridiction (jurisdiction) in a broad sense, one relating to competence and one relating to admissibility. As was seen earlier above, the ICJ itself stated that objections to compétence could be raised at any time, implying that Article 79(1) of the Rules was not absolute in regard to them in the sense that, if such objections were not raised at the time indicated in Article 79, the right to raise them would be lost as having been The English text states: 1. Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing within the time-limit fixed for the delivery of the Counter-Memorial. Any such objection made by a party other than the respondent shall be filed within the time-limit fixed for the delivery of that party’s first pleading.

275

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waived or forfeited. The matter of objections to admissibility has not specifically been addressed by the Court – as opposed to objections relating to compétence. Article 79(1) reflects what would be a general principle of law as far as objections to admissibility are concerned. The point is that such objections must be raised before the discussion of the merits is initiated by the filing of a pleading or in such a way that the Court is apprised of them not subsequent to the filing of the first pleading on the merits. The principle is one which would be applicable procedurally but with substantive effects. Thus, if the objection is not filed within the relevant time limit, the right to raise this objection (to admissibility) would be lost or forfeited. There would be an implied waiver of the objection to admissibility. INCIDENTAL JURISDICTION Apart from jurisdiction to deal with the merits, a tribunal may have to deal with other matters which are only connected with the case on the merits. The jurisdiction to deal with these matters comes within the scope of the incidental jurisdiction of the tribunal.276 Part III, Section D of the 1978 Rules of Court of the ICJ deals with “Incidental Proceedings”. It covers matters such as interim protection, preliminary objections, counter-claims, intervention, special reference to the Court and discontinuance. Interpretation and revision of a judgment, for example, as post-adjudication phases, are dealt with separately, although they are connected with the principal proceedings and may, thus, be regarded as incidental. A Chamber of the Court stated that incidental proceedings by definition must See Briggs, “The Incidental Jurisdiction of the International Court of Justice as Compulsory Jurisdiction”, Völkerrecht und rechtiliches Weltbild. Festchrift für Alfred Verdross (1960) p. 89, Briggs, “La compétence incidente de la Cour internationale de Justice en tant que compétence obligatoire”, 64 RGDIP (1960) p. 217. The term “incidental jurisdiction” in connection with the PCIJ first appeared apparently in Hudson, The Permanent Court of International Justice: A Treatise (1934) p. 360. 276

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be those which are incidental to a case which is already before the Chamber (or the Court, as the case may be) and thus, an incidental proceeding cannot be one which transforms that case into a different case with different parties.277 In the Haya de la Torre Case, the Court, using the term “incidental”, stated that “every intervention is incidental to the proceedings in the case”,278 thus describing the matter of intervention as being incidental to the proceedings. In terms of jurisdiction, there are questions which arise in connection with incidental proceedings, particularly relating to the relevance of consent. The characteristic feature of jurisdiction over incidental proceedings is that it depends upon the subject-matter of the incidental proceedings having a legal connection with the principal proceedings on the merits. As will be seen, in the case of interim measures jurisdiction to order them may not depend on the establishment of the conditions for consensual jurisdiction over the merits. In other cases, such as the admission of an intervention, consent as such to the intervention in one form or another may not be relevant. The jurisdictional instrument, namely the Statute of the ICJ, contains express provisions relating to incidental matters but these may have to be interpreted in the light of general principles in terms of their jurisdictional impact. That jurisdiction to deal with the merits is not always necessary for jurisdiction in respect of, at least, some incidental matters has been seen to have been accepted, for example, in connection with la compétence de la compétence. The relationship to jurisdiction over the merits to the jurisdiction to deal with incidental matters may vary with the nature of the particular incidental matters. Indeed, occasionally, again as has been seen in relation to la compétence de la compétence, jurisdiction over incidental matters may inhere in a tribunal as a result of the judicial character of the tribunal.

Land, Island and Maritime Frontier Dispute Case (Application to Intervene), 1990 ICJ Reports at p. 134. 278 1951 ICJ Repots at p. 76. See also Land, Island and Maritime Frontier Dispute Case (Application to Intervene), 1990 ICJ Reports at p. 4. 277

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The authority to control the conduct of the case is also inherent in an international tribunal subject, to some extent, to the express agreement of the parties. This is not strictly to be regarded as incidental jurisdiction. In the case of the ICJ, Article 48 of the Statute specifically gives the Court this authority when it states, inter alia, that the Court “shall make orders for the conduct of the case . . .” Apart from fixing time-limits for the written proceedings, Article 48 has been used for several purposes. Matters for which the article has been used include the appointment of experts both before the judgment279 and after the judgment to assist the parties in its implementation,280 the joinder of cases,281 discontinuance of both principal and incidental proceedings (preliminary objections282 and requests for provisional measures),283 challenges to the presence of Judges of the Court on the bench,284 requests for the appointment of an ad hoc judge,285 requests for an inspection in loco,286 whether an application for permission to intervene in a case being heard by an ad hoc Chamber should be determined by the full Court or by the Chamber,287 and whether an application has been effective to commence proceedings.288 Such an action taken under Article 48

See the Corfu Channel Case 1947–1948 ICJ Reports p. 124, 1949 ICJ Reports p. 237, the Gulf of Maine Case, 1984 ICJ Reports p. 165. 280 The Frontier Dispute (Burkina Faso/Mali) Case, 1986 ICJ Reports at p. 648. 281 The South West Africa Cases, 1961 ICJ Reports p. 13, North Sea Continental Shelf Cases, 1986 ICJ Reports p. 9. 282 The U.S. Nationals in Morocco Case, 1951 ICJ Reports p. 109. 283 The Border and Trainsborder Armed Actions Case, 1988 ICJ Reports p. 9. 284 The South West Africa Cases, 1965 ICJ Reports p. 3. 285 See the Namibia Opinion, 1971 ICJ Reports p. 12. 286 The South West Africa Cases, 1965 ICJ Reports p. 9, the GabčikovoNagymaros Project Case, 1997 ICJ Reports p. 3. 287 The Land, Island and Maritime Frontier Dispute Case (Application to Intervene), 1990 ICJ Reports p. 3. 288 The Request for Reexamination Case, 1995 ICJ Reports p. 288. 279

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may be taken after or before jurisdiction of the Court to decide the merits has been established. The principal cases of incidental jurisdiction which require further discussion and examination are jurisdiction in relation to interventions by third parties, and the jurisdiction to order interim or provisional measures. The issue that arises in connection with the jurisdiction of the tribunal is whether and on what basis and conditions the tribunal has authority to recognize interventions and order provisional measures. The question of jurisdiction thus formulated is separate from any substantive issue that may arise, for example, in regard to what provisional measures may be ordered in a given situation. But even in respect of the latter issue the question of the scope of the authority to order provisional measures and the basis on which they may be ordered could be regarded as a matter of jurisdiction, though what particular measures are ordered in a given case would truly and entirely be a matter of substance. Similarly, in regard to intervention what an intervenor may be permitted to do, if allowed to intervene, may be regarded as a matter of jurisdiction. A. Intervention In the case of interventions there are three principal questions relating to jurisdiction which arise when a third party seeks to participate as an intervenor in proceedings between two (or more) other parties. The first issue concerns the relevance of consent on the part of the principal parties to the dispute in determining whether the tribunal has jurisdiction to admit an intervention and the nature and extent of the consent in question, if any is required. The second issue is what other requirements are there for an intervenor to be allowed legitimately to take part in proceedings. The third is what an intervenor may properly do in the proceedings in the context of, e.g., raising issues and arguments. (1) Consent of the Principal Parties The Statute of the ICJ, which parties before the ICJ must have accepted, has provisions dealing with intervention. Articles 62 and

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63 of the Statute are the relevant ones.289 Under Article 63, in the case of the construction of a convention, locus standi to intervene is given to states parties to the convention, albeit on a condition. The ICJ not only has jurisdiction ratione personae to entertain interventions but must do so, as the provision gives states a “right” to intervene. In the Haya de la Torre Case,290 which was a sequel to the Asylum Case291 the Court recognized the right of Cuba to intervene in a case between Colombia and Peru on the basis that it was a party to the Havana Convention on Asylum of 1928, the interpretation of which was involved in the case. The right was recognized within narrow limits. While there is a “right” to intervene, the Court determines, as will be seen, whether the conditions for the incidence of the right exist both ratione materiae and in other respects and, thus, controls the recognition of the right. In the Nicaragua Case292 El Salvador sought to intervene at the stage at which preliminary objections to jurisdiction and admissibility had been raised on the basis that it was a party to multilateral conventions such as the UN Charter which were the subject of the case. The Court did not permit the intervention at that stage of the proceedings, not on the ground that El Salvador had no locus standi ratione personae, but on grounds connected with the substance of the intervention. It is clear that under Article 63 locus standi does not depend on the third state’s signature of the Statute of the ICJ or acceptance

I.C.J. Acts and Documents No. 5 (1989) p. 85. See Jessup, “Intervention in the International Court”, 75 AJIL (1981) p. 903, Chinkin, “Third-party Intervention before the International Court of Justice”, 80 AJIL (1986) p. 495. There is an interesting discussion of the law and Article 62 and 63 of the ICJ statutes in Chinkin, Third Parties in International Law (1993) pp. 160–85. 290 1951 ICJ Reports pp. 76–7. 291 1950 ICJ Reports p. 266. 292 (Order), 1984 ICJ Reports p. 215. On this case see Sperduti, “Notes sur l’intervention dans le procès international”, 30 AFDI (1984) p. 273, Sztucki, “Intervention under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: the ‘Salvadoran Incident’”, 79 AJIL (1985) p. 1005. 289

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of jurisdiction as a second step under Article 36 of the Statute. All that is required is being a party to the convention in issue. Under Article 62 there is no “right” to intervene as such but the intervenor is required to be a state. The question that has arisen is whether initially there is any other requirement such as a “jurisdictional link” to establish locus standi, apart from any other requirements of an intrinsic nature that there may be. There are several cases which the ICJ decided in which claims to intervene were made under Article 62.293 In the Nuclear Tests Cases,294 in which Fiji sought to intervene in the cases brought by Australia and New Zealand against France, there was no jurisdictional link apart from signature of the Statute between Fiji295 and France, one of the parties. Judge Ignacio Pinto referred to such a link but the case had become “moot”, so that there was no case in which Fiji could intervene. Another Judge said that the state seeking to intervene “must be in a position in which it could itself bring the respondent before the Court”.296 In the Tunisia/ Libya Continental Shelf Case297 Tunisia and Libya specially agreed

On Article 62 in general see particularly Chinkin, loc. cit. note 289, Licari, “Intervention under Article 62 of the Statute of the I.C.J.”, 8 Brooklyn JIL (1982) p. 267, Stanczyk, “Permissibility of Intervention under Article 62 of the Statute before the International Court”, 16 Polish YBIL (1987) p. 121, Chinkin, op. cit. note 289 pp. 162–78, Rosenne, Intervention in the International Court of Justice (1993), Rosenne 3 op. cit. note 15 pp. 1439 ff., Collier and Lowe, The Settlement of Disputes in International Law (1999) pp. 164 ff., Starke, “Locus Standi of a Third State to Intervene in Contentious Proceedings before the International Court of Justice” 58 Aust. LJ (1984) p. 383. It will be noted that Article 81 of the 1978 Rules of Court refers to “any basis of jurisdiction” between the intervening state and the parties. It must be recognized that, while the procedural requirement may be stated, a rule of procedure cannot change the substantive law of intervention under Article 62. 294 1974 ICJ Reports p. 320. In The Wimbledon Case (1923), PCIJ Series A No. 1, the PCIJ allowed Poland to intervene but said nothing about matters of principle. 295 1974 ICJ Reports at p. 530. 296 Ibid. at p. 538 per Judge Jimènez de Aréchaga. 297 1981 ICJ Reports p. 3. 293

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to ask the Court to lay down the principles and rules applicable to the determination of their continental shelf boundary, though the Court was not itself to determine the actual boundary. Malta was concerned about the likely effect on its own continental shelf claims. It had no jurisdictional basis at all on which it could have instituted proceedings against Tunisia and Libya. The Court rejected Malta’s application to intervene. It thought that Malta did not wish to be bound by the result of the case (indeed, Malta had expressly said this). Moreover, it held that Malta had not explained what was its legal interest and how it might be affected by a decision. The Court therefore did not have to give a decision about a jurisdictional link. In the Libya/Malta Continental Shelf Case298 Malta as a party opposed an Italian request to intervene in the case concerning the delimitation of the continental shelf, which Libya and Malta had submitted to the Court by special agreement. Malta argued that in a sense this was a “private” case between these two states and that this “privacy” would be lost by Italian intervention. The Court held that Italy could not intervene, because it had not demonstrated an interest of a legal nature which might be affected by its decision. In these two cases it was not decided whether a jurisdictional link was required. In the latter case the Court itself declined to decide the matter, although several judges expressed views on it. A Chamber of the Court has subsequently rejected the necessity of showing the existence of a “jurisdictional link”, as referred to in these two cases. In the Land, Island and Maritime Frontier Dispute Case (Application to Intervene)299 between El Salvador and Honduras, Nicaragua requested to be permitted to intervene. As the Chamber said, it might have to decide five issues concerning the frontier between two parties. As regards the land frontier, Nicaragua did not

1984 ICJ Reports p. 3. On intervention in this case see McGinley, “Intervention in the International Court: the Libya/Malta Continental Shelf Case”, 34 ICLQ (1985) p. 671. 299 1990 ICJ Reports p. 92. See the comment on the case in CLJ (1991) p. 216. 298

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seek to intervene as this could not possibly affect it. The four other issues concerned the islands in the Gulf of Fonseca, the delimitation of the maritime frontier therein, the juridical status of the waters of the Gulf and the status of and delimitation of the frontier in the waters beyond the Gulf. The Chamber permitted Nicaragua to intervene, but only as regards the question of the juridical status of the Gulf.300 The Court was considerably concerned about the principle in the Monetary Gold Case301 that, if a third party’s rights are the very subject-matter in issue, the Court must decline to hear the case, because the third party is not an actual party to the case. On the question of the jurisdictional link the Chamber denied that the intervenor must show that there is a “jurisdictional link” between itself and the parties by reference particularly to Article 36 of the Statute. The Chamber conceded that involvement in the proceedings by a third state could not normally take place without the consent of the parties, pointing out, however, that . . . procedures for a “third” State to intervene in a case are provided in Articles 62 and 63 of the Court’s Statute. The competence of the Court in this matter of intervention is not, like its competence to hear and determine the dispute referred to it, derived from the consent of the parties to the case, but from the consent given by them, in becoming parties to the Court’s Statute, to the Court’s exercise of its powers conferred by the Statute. There is no need to interpret the reference in Article 36, paragraph 1, of the Statute to “treaties in force” to include the Statute itself; acceptance of the Statute entails acceptance of the competence conferred on the Court by Article 62. Thus the Court has the competence to permit an intervention even though it be opposed by one or both of the parties to the case; . . . The nature of the competence thus created by Article 62 of the Statute is

It was only in respect of that issue that it had a legal interest that might be affected by the decision. 301 1954 ICJ Reports p. 19. 300

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The Chamber made it clear that consent to intervention on the part of the parties to a dispute came from being parties to the Statute on their part and not from an ad hoc consent given at the time of the proceedings. The Chamber did not deny the need for consent but found it in a state’s being a party to the Statute. Thus, it was unnecessary that a jurisdictional link exist on the part of the intervening state in the form of the two-step consent to the contentious jurisdiction of the Chamber. The Chamber, moreover, did state that it could permit an intervention even if both parties in the case opposed it. In the case of both Articles 62 and 63 it is to be noted that the Statute refers to qualified intervenors as “States” not as states parties to the Statute of the ICJ. The implication is permissible that this reference covers any state, even if it is not a party to the Statute. The matter has not come before the Court, but it is to be noted that Article 36(1) itself does not confine the jurisdiction of the Court to parties to the Statute necessarily. On the other hand, it is arguable that the term “parties” in that provision is to be construed as “parties to the Statute” and not “parties to the dispute”. Even if the broader interpretation is accepted, the next question that arises is whether the intervening state is bound by the provisions of the Statute and rules of the ICJ for the proceedings in which it intervenes, if it is not a party to the Statute. The logical answer is that it is so bound by its acceptance of the Court’s jurisdiction for the intervention to the extent that the Statute and rules are appli-

1990 ICJ Reports p. 13. Some writers incorrectly regard this case as ruling that consent is being avoided: see de Hoog, “Intervention under Article 62 of the Statute and the Quest for Incidental Jurisdiction Without the Consent of the Parties”, 6 LJIL 1993 p. 17. The reference in the citation is to the Libya/Malta Continental Shelf Case, 1984 ICJ Reports p. 3. For the rejection of the concept of the “jurisdictional link” mooted in earlier cases now see also the Pulau Ligitan and Pulau Sipadan Case between Indonesia and Malaysia: 2001, Press Release, ICJ 2001/28, 2001 ICJ Reports (<www.icj-cij.org>). 302

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cable to it for the purpose of the proceedings. Intervention is not a substitute for contentious proceedings in any case. The intervenor, on its part, only acquires the right to be heard, not the other rights of a party to the case. Conversely, it does not acquire all the obligations of the parties to the proceedings, but only those pertinent to its intervention, clearly as determined by the Court and consonant with the provisions of the Statute (and rules). It is to be noted that, for example, the Court in its judgment on the merits in the Land, Island and Maritime Frontier Dispute Case clearly stated that its finding that there was a condominium over the waters of the Gulf of Fonseca was not binding on the intervenor, Nicaragua.303 In regard to consent of the parties to intervention of other parties to the dispute before the Court, consent is always required. The crux is when and how that consent is given.304 (2) Other Requirements Insofar as Article 63(1) of the ICJ Statute gives other states parties to a convention, the construction of which is in question in the dispute, the right to intervene, what has to be established is that the construction of a convention is in question and that the intervenor state is a party to it. No further “interest” or “legitimate interest” need be proved. Further, the Court must recognize the right of a state to intervene, if these conditions are satisfied.305 The Court must,

1992 ICJ Reports at p. 351. In the Libya/Malta Continental Shelf Case the Court, while rejecting Italy’s intervention, expressly took note of the latter’s continental shelf claims and said that it would in its judgment take account of the existence of other states having claims in the region and that it would in its decision expressly state that the decision did not prejudice Italy’s declared interest: 1984 ICJ Reports at pp. 26 ff. In the decision on the merits the Court reiterated this position: 1985 ICJ Reports at pp. 24–6. 304 Collier and Lowe take a view that is contradictory to this, at least apparently: see op. cit. note 293, p. 165 note 193. 305 In the Haya de la Torre Case, 1951 ICJ Reports p. 71, the right of Cuba to intervene in a dispute between Colombia and Peru was recognized because it was clear that the construction of the Havana Convention on Asylum (1928) to which Cuba was a party was in issue. 303

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however, satisfy itself both that the construction of a convention is in issue and that the intervenor is a party to it. Under Article 62 of the ICJ Statute intervention is permitted where there is an “interest of a legal nature” which may be affected by the decision in the case. There is no provision in the Article that the decision of the Court in respect of the dispute is binding on the intervenor insofar as it relates to matters in respect of which the intervention took place. Further, the intervenor has no right as such to intervention but its request is subject to the decision of the Court. A reasonable construction of the provision is that it does not mean that the Court has an unlimited discretion to refuse intervention or may act arbitrarily. What the Court must do is to assess whether there is an “interest of a legal nature” and, if so, to grant the request for intervention. This was the view of the Court in the Tunisia/Libya Continental Shelf Case.306 It is to be noted that the term used in the above provisions is “legal” interest and not “legitimate” interest. This may be a difference without a distinction, or it may mean that the above provisions include a narrower concept than does the general principle evolved in arbitration cases. There may be a question as to whether un intérêt purement moral is included in the concept of an “interest of a legal nature”. However that may be, the provision in Article 62 of the ICJ Statute has been applied so as to permit intervention and also to exclude it. In the Land, Island and Maritime Frontier Dispute Case307 Nicaragua was permitted to intervene but only in relation to four of the five issues which were raised in the case. In its judgment on the application for permission to intervene the Chamber of the ICJ first described the difficulties which followed from the differences between the principal parties regarding the interpretation of the special agreement. In due course it addressed the question of the nature of Nicaragua’s interest of a legal nature which might be affected by the decision in the case which Nicaragua had to show. It considered

306 307

1981 ICJ Reports at p. 2. 1981 ICJ Reports at p. 92.

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the possible effect on legal interests asserted by Nicaragua of its eventual decision on each of the different issues which might fall to be determined. Importantly, it observed that: If a State can satisfy the Court that it has an interest of a legal nature which may be affected by the decision in the case, it may be permitted to intervene in respect of that interest. But that does not mean that the intervening State is then also permitted to make excursions into other aspects of the case.308

This was recognized by Nicaragua with regard to the land frontier. In regard to the maritime matters in issue in the case the Chamber was satisfied that Nicaragua had demonstrated the existence of a legal interest which might be affected by the decision in the case insofar as concerned the waters of the Gulf but not in respect to any other matters raised by the special agreement. In the Tunisia/Libya Continental Shelf Case309 Tunisia and Libya by special agreement requested the Court to lay down the principles and rules applicable to the determination of their continental shelf boundary, though the Court was not itself to determine the actual boundary. Malta was concerned about the likely effect on its own continental shelf claims and, in fact, it had no jurisdictional basis at all on which it could have instituted proceedings against Tunisia and Libya. The Court rejected Malta’s application to intervene. Among other things, it held that Malta had not explained what was its “legal interest” and how it might be affected by a decision. In the Libya/Malta Continental Shelf Case,310 Malta opposed an Italian request to intervene in the case concerning the delimitation of the continental shelf, which Libya and Malta had submitted to the Court by special agreement. Malta argued that in a sense this was a “private” case between these two states and that this “privacy” would be lost by Italian intervention. The Court held that Italy

308 309 310

Ibid. at p. 116. 1981 ICJ Reports at p. 3. 1984 ICJ Reports at p. 3.

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could not intervene, because it had not demonstrated an “interest of a legal nature” which might be affected by its decision. However, the Court expressly took note of Italy’s continental shelf claims and said that it would in its judgment take account of the existence of other states having claims in the region and that its decision would expressly state that it did not prejudice Italy’s declared interest. In both these cases the Court took the position that a general interest in the principles the Court might apply in determining the case was insufficiently specific. In the Pulau Ligitan and Pulau Sipadan Case 311 between Indonesia and Malaysia, the Court considered the arguments of the parties that the application to intervene could not be granted for the reason, inter alia, that the Philippines, the intervenor, had not established the existence of an “interest of a legal nature” justifying the intervention sought. The Court recalled that the Philippines did not seek to intervene in the case, because it had a territorial interest on the Sipadan and Ligitan Islands, but because it believed that its claim of sovereignty over North Borneo might be affected by the Court’s reasoning or interpretation of treaties in issue in the dispute between Indonesia and Malaysia. The Court did take the view that the interest of a legal nature to be shown by a state seeking to intervene was not limited to the dispositif alone of a judgment but might also relate to its reasons. It then went on to consider the question whether the interest invoked by the Philippines might be affected within the sense of Article 62 of the Statute. It noted that in outlining its claim, the Philippines had emphasized the importance of a document dated 22 January 1878 by which the Sultan of Sulu, with whom title, at least to part of Sabah (North Borneo) lay, had made a grant in that part to Messrs. Overbeck and Dent (which grant, however, did not include Pulau Ligitan and Pulau Sipadan). This instrument, according to the Court, was said by the Philippines to be its “primal source” of title in North Borneo and was interpreted by it as a lease and not as a cession of sovereign title. The Court found, however, that neither Indonesia

311

Press Release 2001/28, 2001 ICJ Reports <www.icj-cij.org>.

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nor Malaysia relied on the 1878 grant as a source of title to Ligitan and Sipadan Islands. After considering other instruments adduced by the Philippines in support of its claim, the Court observed that as regards none of the instruments had the Philippines been able to discharge its burden of demonstrating that it had an interest of a legal nature specific to it that might be affected, within the meaning of Article 62, by reasoning or interpretations of the Court in the main proceedings. The Court said that either such interests formed no part of the arguments of Indonesia and Malaysia or those parties’ reliance on those arguments did not bear on the issue of retention of sovereignty by the Sultanate of Sulu in respect of its claim to North Borneo. Accordingly, it held that notwithstanding that some of the objects indicated by the Philippines for its intervention were appropriate, it could not grant the application for intervention. It added, however, that it remained cognizant of the positions stated before it by Indonesia, Malaysia and the Philippines. These cases decided by the ICJ on intervention under Article 62 show that it takes a rather strict view of the requirement of legal interest. (3) Scope and Procedures (a) In arbitral procedure it is well established that the intervenor may not interfere with or change the pleas or the issues raised in the main proceedings. Thus, the intervention is admitted insofar as its object does not conflict with those issues or go outside of them.312 There is no reason why this general principle of law should not be applied by the ICJ. (b) Closely connected with this principle relating to the scope of the intervention is the need for the object of the intervention not to be improper. The ICJ dealt directly with this principle in at least two cases. In the Land, Island and Maritime Frontier Dispute Case, the Chamber of the Court refused to regard as improper the object of informing the Court of the nature of the legal rights of

See Office français v. Office allemand (1922), 1 Receuil TAM at p. 921, Kingdom of the Hellenes v. FRG (1958), 1 Entscheidungen at 172. 312

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Nicaragua, the intervenor, which were in issue. The Court thought that that seemed to accord with the function of intervention. The Chamber concluded its judgment by stating: In the first place . . . the intervening State does not become a party to the proceedings, and does not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law. Nicaragua, as an intervener, has of course a right to be heard by the Chamber. That right is regulated by Article 85 of the Rules, which provides for submission of a written statement, and participation in the hearings . . . The scope of the intervention in this particular case, in relation to the scope of the case as a whole, necessarily involves limitations of the right of the intervener to be heard. An initial limitation is that it is not for the intervener to address arguments to the Chamber on the interpretation of the Special Agreement . . . because the Special Agreement is, for Nicaragua, res inter alios acta.313

In the case Honduras, one of the parties, protested against the making of formal conclusions by Nicaragua. The Court stated: the Chamber must emphasize that States engaged in proceedings before the Court or a Chamber are under a duty to conform with all decision as to procedure, which the Court is specifically empowered to make by Articles 30 and 48 of its Statute. At the same time, in the present case, . . . the Chamber considers that no useful purpose would be served by endeavouring to single out in the present Judgment which of the contentions of Nicaragua were squarely within the limits of its permitted intervention, and which might be said to have gone beyond those limits. The chamber has taken account of the arguments of Nicaragua only where they appeared to it to be relevant in its consideration of the legal regime of the waters of the Gulf of Fonseca. The same approach has been adopted in relation to the “formal conclusions” presented by Nicaragua . . . Since Nicaragua has not, by being admit-

Land, Island and Maritime Frontier Dispute Case (Application to Intervene) 1990 ICJ Reports at p. 135. 313

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ted to intervene, become a party to the case, the Chamber does not see in those conclusions any definition of the petita reflecting the Chamber’s mission. These conclusions were presented . . . as being “to aid the Chamber”, and it is on that basis that the Chamber has taken note of them, to the extent that they relate to the permitted object of the intervention.314

The second case in which the question of object arose was the recently decided Pulau Ligitan and Pulau Sipadan Case referred to earlier. There the issue was raised by the parties that the object of the Philippine intervention would be inappropriate. The Court held against the intervention on the ground that the intervenor lacked the required legal interest but did address the matter of appropriate object and its relevance in its judgment by stating that only the first of the two objects adduced by the Philippines was appropriate.315 (c) A matter of some importance relates to the appropriate time for intervention in a case. For instance, while it may be proper to permit intervention when the merits are being taken up, it may be too early to permit that intervention at an earlier stage before the merits are addressed. For this reason a premature intervention will be refused by the tribunal. The situation came up before the ICJ in the Nicaragua Case between Nicaragua and the USA. The Court held that at the stage when issues relating to jurisdiction and admissibility had been raised and needed to be addressed El Salvador’s application to intervene could not be accepted. The Court said, in concluding its reasoning, that it Decides that the declaration of intervention of the Republic of El Salvador is inadmissible inasmuch as it relates to the current phase of the proceedings brought by Nicaragua against the United States of America . . .316

314 315 316

1992 ICJ Reports at p. 581. ICJ Press Release 2001/28. (Order), 1984 ICJ Reports at p. 216.

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It is clear that, although this decision has been criticized, the Court was not rejecting the intervention outright but was merely stating that it had been requested at the wrong point in the proceedings in the light of the content of the intervention. It was possible, as a consequence, for the application for intervention to be filed and considered by the Court after, and in the event that, it decided that it could proceed with the examination of the merits. The decision was on a procedural point rather than a rejection of the intervention in substance. (d) It is also not a requirement that a dispute be defined in prior negotiations before an application can be made for permission to intervene, because the function of intervention is something wholly different from the determination of a further dispute between the state seeking to intervene and one or both of the parties.317 (e) A Chamber of the ICJ has also held that, where a question of intervention is raised by a third-party in a case brought before it, the Chamber and not the full Court must decide whether to permit the intervention.318 B. Interim Measures The ICJ has an incidental jurisdiction to order interim or provisional measures in cases submitted to it. In the case of this incidental jurisdiction it is necessary not only to know the basis for such jurisdiction, i.e., whether the Court has such a jurisdiction in a given case, but also to identify the broad content or extent of the jurisdiction, including the effect of its exercise, because the jurisdiction to order interim measures is only meaningful in relation to its content, extent and effect. Thus, there are three questions to be addressed:

See the Land, Island and Maritime Frontier Dispute Case (Application to Intervene), 1990 ICJ Reports at pp. 113–14, decided by a Chamber of the Court. 318 Ibid. at p. 3. 317

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(1) Does the Court have jurisdiction to order interim measures and what is its basis? (2) What are the principles governing the exercise of the jurisdiction to order interim measures? (3) What is the effect of an order providing for interim measures made in the exercise of this jurisdiction? (1) Basis of Jurisdiction The first issue that arises concerns the source of the authority of the Court to order interim measures. Article 41 of the ICJ Statute gives the Court power to order interim measures. It states: The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.319

Apart from this provision the ICJ probably has an inherent power to order interim measures. In the Northern Cameroons Case (Preliminary Objection) Judge Fitzmaurice in a separate opinion stated in dealing with the incidental jurisdiction, inter alia, to decree interim measures: “Although much (though not all) of this incidental jurisdiction is specifically provided for in the Court’s Statute, . . . , it is really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court – or any court of law being able to function at all.”320

Articles 73 to 78 of the 1978 Court Rules lay down procedures relating to provisional measures and their invocation. On the international arbitral practice on interim measures of protection see, e.g., Guggenheim, Les Mesures provisoires de procédure internationale et leur influence sur le développement de droit des gens (1931), Elkind, Interim Protection: A Functional Approach (1981). 320 1963 ICJ Reports at p. 103. See also Elkind, op. cit. note 319 pp. 162–3, Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) p. 269. Contra Sztucki, Interim Measures in the Hague Court (1983) pp. 61–7. 319

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A question that has confronted the ICJ concerned the relationship between jurisdictional authority to decide the merits and jurisdiction to decree interim measures. The question may be framed as whether in order that a tribunal have jurisdiction to order interim measures it must also have jurisdiction to decide the merits of the case or whether something less is required. There are several possible approaches which have been mooted in the ICJ of which the last referred to here has been accepted by the Court. The first is that the Court must have a clearly established jurisdiction. The view was expressed by dissenting judges, (though not the Court itself) in the Anglo-Iranian Oil Co. Case,321 by dissenting Judge Forster in the Nuclear Tests Cases,322 and in the separate opinion of Judge Morozov in the Aegean Sea Continental Shelf Case.323 This view is, however, in conflict with the view taken by the Court discussed below. A second possible view is that the question of jurisdiction is irrelevant to the ordering of interim measures. Interim measures can be ordered irrespective of any jurisdictional issues. The view has not been accepted either by the Court or by any of its judges. A third test is that it must be reasonably probable that the Court has jurisdiction. This test was suggested in individual opinions in cases such as the Anglo-Iranian Oil Co. Case,324 and the Icelandic Fisheries Jurisdiction Case.325 A fourth approach regards the question of jurisdiction as only one of the many circumstances to be considered. Judge Jiménez d’Aréchaga suggested this in the Nuclear Tests Cases326 and the Aegean Sea Continental Shelf Case,327 basing his view on the belief that the Court’s power, in respect of interim measures, is based on

(Interim Protection), 1951 ICJ Reports at p. 89. Orders, 1973 ICJ Reports at p. 99. 323 (Provisional Measures), 1976 ICJ Reports at p. 3. 324 (Interim Protection), 1951 ICJ Reports at p. 97 per Judges Winiarski and Badawi dissenting. 325 (Interim Protection), 1972 ICJ Reports at p. 21 ff. per Judge Padilla Nervo dissenting. 326 Orders, 1973 ICJ Reports at p. 143. 327 (Provisional Measures), 1976 ICJ Reports at p. 16. 321 322

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Article 41 of the Statute and not on the subsequent jurisdictional instruments of the parties. Lastly, there is the “prima facie” test. Judge Lauterpacht suggested in the Interhandel Case328 that there must be an instrument which prima facie confers jurisdiction on the Court and which contains no reservation which obviously excludes the dispute from that jurisdiction. This test was adopted by the Court in the Icelandic Fisheries Jurisdiction Case329 and Nuclear Tests Cases.330 In the Nicaragua Case (Provisional Measures)331 Nicaragua attempted to found jurisdiction on the two states’ Optional Clause declarations. Though the Court later held that it had no jurisdiction on this basis, it made an order indicating interim measures before considering the question of jurisdiction. It said that it need not satisfy itself as to its jurisdiction before so doing, but it must find, as it had done in the case, that there was a prima facie basis for it. In the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria, the Court said that it “may not indicate provisional measures unless the provision invoked by the Applicant appears, prima facie, to afford a basis on which the jurisdiction of the Court might be founded”.332 A similar approach was taken by the ICJ in

(Interim Protection), 1957 ICJ Reports at p. 118–19. (Interim Protection), 1972 ICJ Reports at p. 12. 330 Orders, 1973 ICJ Reports at p. 99. See also the Case Concerning the Arbitral Award of 31 July 1989, 1990 ICJ Reports p. 64, and the Passage through the Great Belt Case, 1991 ICJ Reports p. 12, which was settled. The Court avoided the issue in the Aegean Sea Continental Shelf Case (Provisional Measures), 1976 ICJ Reports p. 3, because it took the view that it was not called upon to prejudge jurisdiction over the merits, in fact declining to make an order for other reasons. 331 1984 ICJ Reports p. 169. See on this case, Malloy, “Developments in the International Court of Justice: Provisional Measures in the Nicaragua Case”, 6 NYJICL (1984) p. 55, Tama, “Nicaragua v. United States: the Power of the International Court of Justice to Indicate Interim Measures in Political Disputes”, 4 Dickinson JIL (1985) p. 65. 332 (Provisional Measures), 1996 ICJ Reports at p. 21. See now the Armed Activities on the Territory of the Congo Case (New Application, DCR v. Rwanda), 2002 ICJ Reports (<www.icj-cij.org>), where the Court concluded that it did not have a prima facie basis for compétence and, therefore, could not order provisional 328 329

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the Breard Case333 and the La Grand Case.334 In this connection what is important is that there must be a prima facie basis for the Court to proceed to decide the merits of the case. Thus, conversely, if it is clear that the case is inadmissible, even if it had jurisdiction, the Court cannot issue orders for interim measures. In the Request for Determination of the Situation Case335 New Zealand sought the indication of interim measures in the context of its claim that proposed French underground nuclear tests fell within the terms of paragraph 63 of the 1974 judgment, which stated that “if the basis of this judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute”. Part of the basis of the judgment was the obligation which the Court had found that France unilaterally made not to engage in atmospheric testing. The Court found that,

measures. On the other hand, it did not find that it manifestly lacked jurisdiction to enable it to take the case off the list. On the other hand, in the Armed Activities on the Territory of the Congo (Uganda) (Provisional Measures), the Court found that there was a prima facie basis for compétence and ordered provisional measures relating to the armed activity: 2000 ICJ Reports p. 111. 333 Order of 9 April 1998, 1998 ICJ Reports at p. 255. 334 Order of 3 March 1999, 1999 ICJ Reports at p. 15. On the Breard Case and the La Grand Case see Rieter, “Interim Measures by the World Court to Suspend the Execution of an Individual: the Breard Case”, 16 Neth. Quarterly HR (1998) p. 475, Addo, “Interim Measures of Protection for Rights under the Vienna Convention on Consular Relations”, 10 European JIL (1999) p. 713. In the Arrest Warrant of 11 April 2000 Case (Provisional Measures) the Court said: 67 Whereas, when the Court has before it a request for the indication of provisional measures, it has no need, before deciding whether or not to indicate such measures, to satisfy itself beyond doubt that it has jurisdiction on the merits of the case but whereas it cannot nevertheless indicate those measures unless the provisions invoked appear prima facie to constitute a basis on which its jurisdiction could be founded; 68 Whereas the Court concludes that the declarations made by the Parties pursuant to Article 36, paragraph 2, of its Statute constitute prima facie a basis on which its jurisdiction could be founded in the present case. (2000 ICJ Reports paras. 67–8). However, it found that there was no reason for ordering interim measures. 335 1995 ICJ Reports at p. 306.

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because the case concerned underground testing, it had no bearing on the 1974 judgment, which was confined to atmospheric testing, and dismissed the New Zealand request in limine. It said that it became unnecessary to discuss the possibility of the existence of jurisdiction.336 The explanation is that it was clear that the case was inadmissible, irrespective of jurisdiction. Because it was clear that the Court had no authority to proceed with the merits of the case, on account of an objection to admissibility, other considerations relating to jurisdiction became irrelevant. In the first of the ten Legality of Use of Force Cases (Provisional Measures) the Court examined the jurisdictional instruments and found that clearly there was no prima facie basis for jurisdiction. It said that it could not indicate provisional measures.337 Although it may appear that this finding may necessarily imply that the Court decided that it did not have jurisdiction at all over the merits of the case, the Court was careful to indicate in eight of the ten cases that its finding, which related to a prima facie basis of jurisdiction and which was a negative one, did not prejudge in any way the question of the Court’s jurisdiction on the merits or any questions relating to admissibility,338 while in two cases, it did find that it manifestly did not have jurisdiction over the merits at all, and removed the cases from the list.339 Thus, positively there must be a prima facie basis for jurisdiction, i.e. for proceeding to decide the merits of the case, if the Court is to exercise jurisdiction to order interim measures. Conversely or negatively it follows that where it is clear that there is no basis for

Ibid. 1999 ICJ Reports at p. 139. The same conclusion was repeated in not necessarily the same words in the other nine cases, because the basis for jurisdiction was not identical in all the cases: ibid. at pp. 273, 373, 432, 492, 557, 671, 773, 839, 925. 338 See ibid. at pp. 139–40, 273, 373, 433, 492, 557, 671, 839. 339 See ibid. at pp. 773 and 925. Thus, it is open for the Court to find that it does not have jurisdiction over the merits even in dealing with incidental jurisdiction on interim measures. 336 337

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jurisdiction at all or that the case is clearly inadmissible, the Court cannot exercise the jurisdiction relating to interim measures. There are some difficulties with the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria as to how these principles have been applied by the Court. In the face of an objection by Nigeria that the Court did not have even prima facie jurisdiction over the substantive issues the Court held (i) that it in fact considered that “the declarations made by Parties in accordance with Article 36, paragraph 2, of the Statute constitute a prima facie basis upon which its jurisdiction in the present case might be founded”; and (ii) that in the case “the consolidated Application of Cameroon does not appear prima facie to be inadmissible in the light of the preliminary objections raised by Nigeria”.340 The second statement made there could have been made per incuriam, as far as its formulation is concerned. If it were not, it would reflect a complete misunderstanding on the part of the Court of the principles involved. In this case the Court stated that there was no prima facie case of inadmissibility. In the Request for Reexamination Case341 it was held that there was no prima facie basis for proceeding with the merits, it being found that there was no doubt that the case was inadmissible because it concerned a matter which did not form the subject of the previous judgment. In the former case it was clear that there was not only insufficient evidence to upset the finding that there was a prima facie basis for jurisdiction but there was inadequate evidence even for a finding that there was a prima facie basis for inadmissibility. Once it emerges that there is a prima facie basis for jurisdiction, as there was in this case, if a question of inadmissibility arises, surely what has to be done is to establish that the evidence of inadmissibility is such that it is insufficient to counter the finding that there was a prima facie basis for jurisdiction. This means that the evidence of inadmissibility must be such that not merely a prima facie basis for it is not established

(Provisional Measures), 1996 ICJ Reports at p. 21. Later, 1998 ibid. p. 353 the ICJ found the case admissible. 341 1995 ICJ Reports p. 288. 340

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but inadmissibility is not supported by the evidence so that the finding of a prima facie basis of jurisdiction stands. To state that there must be no prima facie basis for inadmissibility makes what has to be established less strict than if the requirement was that the evidence of inadmissibility is such that it displaces the earlier finding that there is a sufficient basis for jurisdiction. In short, what must be established is that there is a probability on a balance that the application is inadmissible for the Court to conclude that there is no prima facie basis for it to proceed with the decision on the merits. Thus, where a question of inadmissibility arises, more than that there is a prima facie basis for inadmissibility must be shown. In the Request for Reexamination Case there was a clear basis for inadmissibility, even if there was a prima facie basis for jurisdiction, so that from the facts it was possible to conclude that not merely a prima facie basis for inadmissibility existed, but that there was sufficient evidence of inadmissibility for it to be concluded that the Court had no authority to proceed on the merits. This case, thus, does not support the statement in the other case requiring a showing of a mere prima facie basis for inadmissibility but rather supports the view taken that what has to be shown is that the evidence in favour of inadmissibility must be such as to displace the finding that there exists a prima facie case for jurisdiction. In the La Grand Case, the Court analysed the jurisdictional instruments and facts concluding that under Article 1 of the Optional Protocol of the Vienna Convention it had prima facie jurisdiction to decide the dispute between Germany and the USA.342 In the Bosnia Genocide Case,343 the Court was faced with a question of jurisdiction ratione personae over the merits. The issue was whether SerbiaMontenegro was a successor to the Federal Republic of Yugoslavia and thus a party to the Statute. The Court found that it prima facie had jurisdiction under Article 35(2) of the Statute.

Order of 3 March 1999, 1999 ICJ Reports at pp. 13–14. See also the Pulp Mills Case (Provisional Measures), 2006 and 2007 ICJ Reports (<www.icjcij.org>), where the Court held that it had a prima facie basis for jurisdiction. 343 (Provisional Measures), 1993 ICJ Reports p. 3. 342

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In considering the sources or titles of jurisdiction at the stage of deciding on interim measures, where the Court finds that it has no prima facie basis for jurisdiction on the basis of the titles cited in the application or early in the case, it will not consider a claim that it has such jurisdiction on the basis of another title to jurisdiction introduced late in the proceedings on interim measures. The Court took this view in the first Legality of the Use of Force Cases (Provisional Measures).344 What is a late filing of such a claim is a matter of procedure to be decided by the Court, taking into account procedural fairness and the sound administration of justice. Although the matter has not arisen before the Court, a question of importance is whether it has authority to and must raise proprio motu the issue whether it has incidental jurisdiction to decree provisional measures. The answer to the question must be in the affirmative, as the same principle applies to this aspect of compétence (jurisdiction) as to any other. (2) The Principles Underlying the Exercise of the Jurisdiction Clearly, to the extent that the jurisdictional instruments of the Court are specific, the order of interim measures will be governed by the principles stated there. But, first, where the constitutive instrument is silent on the principles, the issue arises what are the underlying principles, objectives and limits of interim measures. Secondly, what is the implication of preserving the rights of the parties, which is mentioned in many constitutive instruments and is regarded as the object of interim measures, where an object must be implied, is a question that also arises. The approach of the ICJ and the manner in which it has dealt with problems that have arisen, are illuminative. In the case of the ICJ, as was the case of the PCIJ, the Statute clearly states the object of interim or provisional measures as being that of preserving the respective rights of the parties. The PCIJ and the ICJ have regarded this in their practice as covering both

344

556–7.

1999 ICJ Reports at p. 139. See also the sixth such case: ibid. at pp.

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what may be called positive and negative orders. They have not only ordered states to refrain, and ensure that others refrain, from certain behaviour likely to aggravate or extend the dispute or to prejudice the rights that might result from the final judgment, as in the Electricity Company of Sofia and Bulgaria Case,345 the Nuclear Tests Cases,346 and the Nicaragua Case,347 but also have demanded certain positive actions by the parties. Thus, for example, in the Anglo-Iranian Oil Company Case348 the ICJ ordered that there should be “established by agreement between the Iranian Government and the United Kingdom Government a Board to be known as the Board of Supervision” and set out in detail the composition and duties of the Board. Again, in the Fisheries Jurisdiction Cases the Court said that the UK “should ensure that vessels registered in the United Kingdom do not take an annual catch of more than 170,000 metric tons of fish”, and that the UK “should furnish the Government of Iceland and the Registry of the Court with all relevant information, orders issued, and arrangements made concerning the control and regulation of fish catches in the area”.349

345

(Provisional Measures), PCIJ Series A/B No. 79, Order of 5 December

1939. Orders, 1973 ICJ Reports at pp. 99 and 135. (Provisional Measures) 1984 ICJ Reports p. 168. 348 (Interim Protection), 1951 ICJ Reports p. 89. 349 (Interim Protection), 1972 ICJ Reports pp. 12 and 30. See also the Iranian Hostages Case (Interim Measures), 1979 ICJ Reports p. 7, where interim measures were ordered. Generally on interim measures of protection in the ICJ see: Sztucki, Interim Measures in the Hague Court (1983), Elkind, Interim Protection, a Functional Approach (1981), Mendelson, “Interim Measures of Protection in Cases of Contested Jurisdiction”, 46 BYIL (1972–3) p. 258, Merrills, “Interim Measures of Protection and the Substantive Jurisdiction of the International Court”, 36 CLJ [1977] p. 86 and “Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice”, 44 ICLQ (1995) p. 90, Collins, “Provisional and Protective Measures in International Litigation”, 234 Hague Recueil (1992) at pp. 224 ff., Collier and Lowe, op. cit. note 293 pp. 168 ff., Gray, Judicial Remedies in International Law (1987) pp. 69 ff., Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (2005). 346 347

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Both the PCIJ and the ICJ have not refused to order interim or provisional measures on the ground that jurisdiction over the merits or authority to proceed with the merits had to be proved. On the other hand, refusals have been based on the ground that interim measures were not necessary “to preserve the respective rights of either party”. They have, thus, refused to indicate interim measures, for instance, where the effect of this would be to prejudice the merits of the main cause, as in the Chorzów Factory Case,350 or where the protection requested in the application for interim measures would extend beyond the rights at stake in the main action, as in the Polish Agrarian Reform Case,351 or where the interim measures were no longer urgently required, as in the Pakistani Prisoners of War Case,352 or no longer necessary because of a declaration by the respondent state as to its future behaviour, as in the Interhandel353 and Prince von Pless Cases.354 Most recently in two cases the Court refused to order interim measures because there was no urgency, no irreparable damage would be caused, and, thus, neither party would be prejudiced.355 What is of interest are the principles upon which interim measures have been ordered or refused. In the Nuclear Tests Cases356 the Court ordered certain interim measures, namely that no atmo-

PCIJ Series A No. 12. PCIJ Series A/B No. 58, Order of 29 July 1933. 352 1973 ICJ Reports p. 328. 353 (Interim Protection), 1957 ICJ Reports p. 105. 354 PCIJ Series A/B No. 54, Order of 11 May 1933. On some other cases see Mendelson, loc. cit. note 349. 355 See the Great Belt Case, 1991 ICJ Reports, Order of 29 July 1991 at p. 17 and the Bosnia Genocide Case (Provisional Measures), 1993 ICJ Reports, Order of 13 September 1993, at p. 342 (the second order made after further interim measures were requested). The Court in the latter case merely confirmed its earlier order, the Bosnia Genocide Case (Further Provisional Measures), 1993 ICJ Reports, Order of 8 April 1993, p. 3. See Gray, 43 ICLQ (1994) p. 704. See also the Pulp Mills Case (Provisional Measures), 2006 and 2007 ICJ Reports (<www.icj-cij.org>), where the Court found that there was no need for provisional measures. 356 Orders of 22 June 1973, 1973 ICJ Reports at pp. 99 and 135. 350 351

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spheric nuclear tests should be carried out by France, without addressing any principles involved, but this is unusual. Generally, the Court has stated the relevant basic principles, whether it grants or refuses measures. In some cases the Court referred to the necessity of preserving the respective rights of the parties,357 i.e., rights that may subsequently be adjudged to belong to the parties, or to ordering measures where action prejudicial to the rights of either party is likely to be taken before the final decision of the Court, there being a certain “urgency” for such measures.358 In the Bosnia Genocide Case (Provisional Measures), the Court made an elaborate statement of the principles applicable, while ordering extensive measures. It said: 34. Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute of the Court has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings; and whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent; 35. Whereas the Court, . . . ought not to indicate measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment in the exercise of that jurisdiction; . . .359

The position was stated in somewhat different terms in the Fisheries Jurisdiction Cases (Interim Protection) where again extensive measures were ordered. The Court said that the object was “to preserve the respective rights of the Parties pending the decision of the Court

Anglo-Iranian Oil Co. Case (Interim Protection), Order of 5 July 1951, 1951 ICJ Reports at p. 93. 358 Great Belt Case (Provisional Measures), Order of 29 July 1991, 1991 ICJ Reports at p. 17. 359 Order of 8 April 1993, 1993 ICJ Reports at p. 19. 357

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and presupposes that irreparable prejudice should not be caused to rights which are the subject of a dispute in judicial proceedings and that the Court’s judgment should not be anticipated by reason of any initiative regarding the measures which are in issue.”360 Again, most recently the Court stated its position in the La Grand Case (Provisional Measures).361 Negatively the Court stated in the Nicaragua Case (Provisional Measures) that it “cannot make definitive findings of fact, and the right of the respondent State to dispute the facts and to submit arguments in respect of the merits must remain unaffected by the Court’s decision;”362 The principles thus enunciated have been applied with varying results. For example, in the Aegean Sea Continental Shelf Case (Provisional Measures)363 the Court took a restrictive line. Greece sought an order to prevent any further Turkish activities in the disputed area on two grounds: (i) to preserve Greece’s rights and prevent irreparable prejudice to them; (ii) to prevent Turkey aggravating the dispute and prejudicing friendly relations. As to the first ground, the Court could not identify what irreparable prejudice Greece might suffer. The Turkish exploration did not affect Greece’s legal rights since a violation of its rights over the shelf could be satisfied by a judicial declaration to that effect. As to the second, on the same day that Greece applied to the Court it put its case to the Security Council, which urged the two Governments to do all in their power to sort out the situations. This covered the ground

Order of 17 August 1972, 1972 ICJ Reports at pp. 16 and 34. See for a similar statement the second Bosnia Genocide Case (Provisional Measures), Order of 13 September 1993, 1993 ICJ Reports at p. 342. 361 Order of 3 March 1999, 1999 ICJ Reports at pp. 14–15. See also the Breard Case (Provisional Measures), Order of 9 April 1998, 1998 ICJ Reports at p. 251. On this case see “Agora: Breard”, 92 AJIL (1998) p. 666. 362 Order of 10 May 1984, 1984 ICJ Reports at p. 180. See also the Lockerbie Case (Provisional Measures), Order of 14 April 1992, 1992 ICJ Reports at p. 14. 363 1976 ICJ Reports p. 3. On this case see Wallington, 35 CLJ (1976) p. 82. 360

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that Greece was asking the Court to cover and it was not clear that either state would fail to comply with the Security Council resolution. The Court accordingly refused to order interim measures. In the Nicaragua Case (Provisional Measures)364 Nicaragua asked the Court to order the United States to cease and desist from helping the Contras and to stop its own military action and use of force against Nicaragua. The Court ordered the United States to stop laying mines and blocking access to Nicaraguan ports and fully to respect Nicaragua’s sovereignty and not to jeopardize it by military action of the use of force prohibited by the UN Charter. Further, unanimously, the Court ordered that no action be taken by either state which might extend or prolong the dispute or which would have an effect on such of the rights of the two states as might be determined by the Court’s future judgment on the merits. The Court indicated provisional measures in the Bosnia Genocide Case (Provisional Measures).365 It ordered the respondent to take all measures within its power to prevent the commission of genocide and to ensure that military, paramilitary or irregular armed units and other organizations or persons which might be subject to its direction or control did not indulge in genocidal conduct. It also stated, in what has become a common prescription, that neither state should take action which might aggravate or extend the dispute or make it more difficult of solution. The Court rejected an argument that it should not indicate interim measures while the Security Council was seized of the dispute. In the Lockerbie Case (Provisional Measures)366 the Court declined to indicate interim measures against the UK and USA at the request of Libya on the ground that certain SC resolutions

Order of 10 May 1984, 1984 ICJ Reports p. 169. Order of 13 September 1993, 1993 ICJ Reports p. 3. See also the Certain Criminal Proceedings in France Case, 2003 ICJ Reports at pp. 109 ff., where the Court emphasized three matters which must be considered by it in ordering provisional measures, viz. irreparable prejudice to the respective rights of the parties, an element of urgency and the prevention of the aggravation or extension of the dispute. 366 Order of 14 April 1992, pp. 3 and 113. 364 365

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(whose passing had been procured by those states) prevailed over the rights claimed by Libya under a 1971 Convention. Also, the Court considered that an indication of such measures would be likely to impair the rights of the UK and the USA under those resolutions.367

There are several dissents and separate declarations and opinions. In the Arrest Warrant of 11 April 2000 Case (Provisional Measures) 2000 ICJ Reports para. 72, the Court refused to order interim measures stating: 72 Whereas, following the Cabinet reshuffle of 20 November 2000, Mr. Yerodia Ndombasi ceased to exercise the functions of Minister for Foreign Affairs and was charged with those of Minister of Education, involving less frequent foreign travel; and whereas it has accordingly not been established that irreparable prejudice might be caused in the immediate future to the Congo’s rights nor that the degree of urgency is such that those rights need to be protected by the indication of provisional measures; The more important cases in which Article 41 of the ICJ statute and the PCIJ statute have been discussed are the Land and Maritime Boundary between Cameroon and Nigeria Case (Provisional Measures) 1996 ICJ Report at p. 21, South-Eastern Greenland Case (Provisional Measures) (1932), PCIJ Series A/B No. 48 at p. 283, Polish Agrarian Reform Case (Provisional Measures) (1933), PCIJ Series A/B No. 58 at p. 177, Electricity Company of Sofia and Bulgaria Case (Provisional Measures) (1939), PCIJ Series A/B No. 79 at p. 199, Anglo-Iranian Oil Co. Case (Interim Protection), 1951 ICJ Reports at p. 93, Interhandel Case (Interim Protection), 1957 ICJ Reports at p. 111, the Fisheries Jurisdiction Cases (Interim Protection), 1972 ICJ Reports at pp. 16 and 34, the Nuclear Tests Cases (Interim Protection), 1973 ICJ Reports at pp. 100, 136, the Frontier Dispute Case (Burkina Fasso v. Mali) (Provisional Measures), 1986 ICJ Reports at p. 8, the Arbitral Award of 31 July 1989 Case (Provisional Measures), 1990 ICJ Reports at p. 69, the Great Belt Case (Provisional Measures), 1991 ICJ Reports at p. 16, the Bosnia Genocide Convention Case (Provisional Measures), 1993 ICJ Reports at p. 19 and the later case on further measures, 1993 ICJ Reports at p. 342, the Breard Case (Provisional Measures), 1998 ICJ Reports at p. 257, the La Grand Case (Provisional Measures), 1999 ICJ Reports at pp. 14–15, the Vienna Convention on Consular Relations Case (Provisional Measures) 1998 ICJ Reports p. 266, the La Grand Case, 2001 ICJ Reports at p. 89, the Certain Criminal Proceedings in France Case (Provisional Measures), 2003 ICJ Reports at p. 106, the Pulp Mills Case (Provisional Measures), 2006 and 2007 ICJ Reports (<www.icj-cij.org>). 367

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On the basis of the above exposition the following analysis may be made and conclusions reached about the Court’s approach to interim measures. (i) The object of interim measures is to preserve the respective rights of the parties and to prevent likely action that is prejudicial to the rights of either party being taken before the final decision of the Court. (ii) The object of interim measures presupposes that irreparable prejudice should not be caused to rights which are subject of a dispute. (iii) The Court’s judgment should not be anticipated by reason of any initiative regarding the measures which are in issue. (iv) There must be some urgency requiring measures to be taken. As corollaries to these principal requirements, (a) Measures ordered must not impair rights of a party which appear prima facie to be enjoyed, e.g., by virtue of an SC resolution; and (b) the Court cannot make definitive findings of fact, the right of the respondent state to dispute the alleged facts and argue on the merits being unaffected by the Court’s decision on interim measures. The jurisdiction to grant interim protection through the ordering of measures clearly involves in its exercise a measure of judgment on the part of the Court. The decision whether to order measures or not is, however, not based on the exercise of an arbitrary discretion. There are certain principles which have been applied and which require the Court to take decisions based on them and exclusive of other considerations, such as political advisability or convenience. The principles applied depend on the express provisions of the constitutive instrument of the Court concerned but these have required interpretation by the Court.

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(3) The Legal Effect of Orders of Interim Measures Recently in the La Grand Case the ICJ, interpreting Article 41 of its Statute, pronounced that orders of interim measures were legally binding in the same way as other decisions in its judgments and mandatory, and that they were not merely recommendations or hortatory. The Court made an extensive analysis of how Article 41 was to be interpreted in regard to the question whether such orders were binding on the parties. 99. The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). This interpretation has been the subject of extensive controversy in the literature. . . . 100. The French text of Article 41 reads as follows: 1. La Cour a le pouvoir d’indiquer, si elle estime que les circonstances l’exigent quelles mesures conservatoires due droit de chacun doivent être prises à provisoire. 2. En attendant l’arrêt definitive, l’indication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité.” (Emphasis added.) In this text, the terms “indiquer” and “l’indication” may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words “doivent être prises” have an imperative character. For its part, the English version of Article 41 reads as follows: 1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council. (Emphasis added.) According to the United Sates, the use in the English version of “indicate” instead of “order”, of “ought” instead of “must” or “shall”, and of “suggested” instead of “ordered”, is to be understood as implying

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that decisions under Article 41 lack mandatory effect. It might however be argued, having regard to the fact that in 1920 the French text was the original version, that such terms as “indicate” and “ought” have a meaning equivalent to “order” and “must” and “shall”. 101. . . . The Court will . . . now consider the object and purpose of the Statute together with the context of Article 41. 102. The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard. and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article. 103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of the principle universally accepted by international tribunals and likewise laid down in many conventions . . . to the effect that the parties to a case must abstain from any measure capable of exercising a prejudice in effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J. Series A/B, No. 79, p. 199). Furthermore measures designed to avoid aggravating or extending disputes have frequently been indicated by the Court. They were indicated with the purpose of being implemented. . . .

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conclusions drawn from the terms of Article 41 read in their context and in the light of the object and purpose of the Statute. Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect.368

Thus, under Article 41 of the ICJ Statute, orders for interim measures are binding in effect. This is so when they are intended to have this effect. The Court left open the possibility (see para. 110 of the judgment) for the Court to make non-binding decisions which would then be recommendatory. In fact the Court has never done this. All its orders of interim measures have been intended to be binding. Apart from the interpretative exercise performed by the ICJ, which was necessary in the circumstances, it is in keeping with the judicial function and process that orders of interim measures have legally binding effect, unless they are not intended to do so, rather than that presumptively they not have such binding effect. This is required, it may be asserted, by the demands of integrity and effectiveness for the judicial process. In the context of the general theory of adjudication this is not a position to justify which needs much argument or dialectic.369

2001 ICJ Reports paras. 98–104, 107–10. Fitzmaurice regarded as binding the orders of interim measures by the ICJ: see “The Law and Practice of the International Court of Justice, 1951–4: Questions of Jurisdiction. Competence and Procedure”, 34 BYIL (1958) p. 1. Judge Ajibola agreed with this view: see the Bosnia Genocide Case (Provisional Measures) 1993 ICJ Reports at p. 397. See also on the subject, H. Lauterpacht, op. cit. note 178 pp. 253–4. Collins disagrees with the view that such orders are binding in international litigation: see “Provisional and Protective Measures in International Litigation”, loc. cit. note 349 at pp. 216–20, and see the authorities reviewed there. The view has been expressed that an order of interim measures cannot be enforced through the SC under Article 94(2) of the Charter, because that provision covers only “judgments”: Mosler, in B. Simma (ed.), The Charter of the United Nations (1995) at pp. 103–4. But it is a question whether “judgments” in that Article excludes orders for interim measures which have the same binding force as the dispositions of a final judgment on the merits, or, for that 368 369

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IN

REGARD

TO

REMEDIES

What is of concern here is the jurisdiction which the Court has to order remedies or to decide on what is to be done in terms of redress, if there has been a violation of the law. It may be possible to identify the broad parameters which define scope.370 A second matter deserving attention is the source of the jurisdiction and particularly whether there is any inherent jurisdiction in the international judicial function to order remedies or particular types of remedies. A basic principle relevant to jurisdiction in relation to remedies is one that applies to international adjudication in general, namely that jurisdiction is consensual and depends basically on the agreement of the parties. Agreement in one form or another which is binding may define the scope of jurisdiction. One characteristic that needs to be noted in connection with possible inherent jurisdiction, however, is that there is logically a general principle that anything agreed to by the parties in relation to jurisdiction which conflicts with the fundamental judicial character of the Court cannot be recognized as having effect. A corollary to this principle is the proposition that the Court must enjoy the jurisdiction as inherent which its judicial character requires. But the latter proposition has two aspects. First, the agreement of the parties may alter, modify or derogate from jurisdictional authority which would otherwise flow as inherent from the judicial character of the Court. Secondly, such change must not deprive the Court of what is inherently unalterable in its jurisdiction

matter, on competence or admissibility. Collier and Lowe agree with Mosler on this point: see op. cit. note, 293 p. 175. 370 Remedies in international law in a variety of aspects have been discussed in various contexts by several authors but none have really addressed the basic jurisdictional issues that arise. Remedies as such have been considered, inter alios, by Personnez, La Réparation du préjudice en droit international public (1939), Reitzer, La Réparation comme conséquence de l’acte illicite en droit international (1938), Schermers, Judicial Protection in the European Communities (1992), Gray, op. cit. note 349, Gray, “Is there an International Law of Remedies?” 56 BYIL (1985) p. 25, Gross, “Limitations upon the Judicial Function”, 58 AJIL (1964) p. 415. See further the bibliography in Gray, op. cit. above pp. 239–47.

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because of its judicial character. There is clearly here a ius cogens in the law of international adjudication. What the principle entails is that, where an agreement deprives the Court of jurisdiction to the extent that it ceases to be able to perform its judicial function as a judicial tribunal, that agreement is one which cannot be recognized or to which effect cannot be given. These principles are relevant to the law of jurisdiction in respect of remedies, as they apply elsewhere in the area of jurisdiction. Generally, problems in regard to them have not arisen nor have they often been discussed, particularly the principle flowing from ius cogens referred to above. There may be a question as to what is inherent in the remedial jurisdiction of the Court and this may depend to some extent on its nature as the equivalent of a civil tribunal and what is the nature of its mandate, but the applicability of the general principle of inherence cannot be disputed, because not giving effect to it would render nugatory the existence of its judicial function. A problem may arise with distinguishing between the jurisdiction to order or award remedies and the principles of law and limits applicable to the content of such remedies, i.e. applying the distinction between jurisdictional authority and the principles relating to the implementation of jurisdictional authority. For example, the question whether the Court has jurisdiction to award damages can and must be distinguished from the question whether punitive damages may be awarded or damnum emergens may be included in an award of damages as an indirect injury, though the distinction may be a fine one. There may be other areas of remedies in which distinctions of this kind must be made. The kind of distinction identified must, however, be made as it corresponds to the distinction between competence and merits. Difficulties may also arise in identifying sources of jurisdictional authority. As already pointed out, consent is a basic source of remedial jurisdiction as it is for jurisdictional competence on the merits. This means that the consensual instruments relevant to the Court’s establishment and functioning must be examined first to identify the scope of and limits on remedial jurisdiction.

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A question that may be raised is why a distinction should be drawn between competence to settle a dispute on the merits and competence (jurisdiction) to determine reparation in the same case. Could it not be argued that deciding the merits and determining reparation for any violation of the law are so closely linked that competence to deal with the former necessarily includes the competence to deal with the latter, because they both concern settlement of the dispute?371 Just as, once competence to settle the dispute is established within the agreed parameters, if relevant, the Court has jurisdiction to select and apply to the merits the substantive and procedural law which may, however, also be subject to agreement of the parties, so if such competence is established, must it not entail jurisdiction to select and apply the remedies and the law applicable to them, because that is a matter which is intrinsic to the judicial function of settling disputes in general? In the Nicaragua Case (Merits) the ICJ referred to the submissions of the claimant on the compensation to be paid as reparation as being submissions “on the merits”.372 This statement, not incorrectly perhaps, apparently assimilates matters relating to remedies to matters of merits. In a sense matters relating to remedies may be regarded as relating to the merits insofar as they may be contrasted with jurisdictional matters which precede that taking up of the merits or matters of incidental jurisdiction but this does not preclude the treatment of remedies as distinct from the merits proper, particularly for the purposes of the analysis of jurisdictional aspects. While there is evidence of the assimilation of remedies to matters of merits, however, the history of adjudicatory settlement in the modern era (since the early nineteenth century, after the Jay Treaty of 1794) shows that remedial measures have, in large measure, where necessary, been separated from the settlement of disputes on the merits, particularly to the extent that by specific

See possibly the statement of the ICJ in regard to reparation in the Nicaragua Case (Merits), 1986 ICJ Reports at p. 142. This statement may also be interpreted as relating to inherent jurisdiction. 372 Ibid. 371

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agreement on remedies apart from competence to settle disputes the parties may within limits define the jurisdiction of tribunals. In other words, once jurisdiction to settle a dispute is assigned to a tribunal, it does not necessarily mean that it has an unalterable inherent jurisdiction to select the remedies it may indicate. Clearly, where there is no explicit agreement on the extent of a tribunal’s jurisdiction to choose remedies, such questions arise as whether there is an inherent jurisdiction to do so, what are its limits and how far all this depends on the genre of the dispute or proceeding. Where there is explicit agreement on remedies, the question that arises is how far this agreement is in accord with the principle that the fundamental judicial character and function of the tribunal must be respected (a ius cogens) and how the agreement is to be interpreted. These matters, while linked to the jurisdiction to settle the dispute on the merits, are regarded as sufficiently distinct from such jurisdiction as to be treated separately. These considerations apply to the Court.373 Express provision vis-à-vis remedies may be made. Where the relevant jurisdictional instruments provide for virtual specific performance to be ordered by the Court in settling the dispute, the ICJ has accepted that jurisdiction as the many boundary (both land and maritime) cases show. The Court has accepted the function of delineating frontiers. Instances such as these where specific provision is made for remedial jurisdiction offer no difficulty nor have they given rise to disputes as to the exact scope of the jurisdiction.374

In the Chorzów Factory (Jurisdiction) Case Poland questioned the jurisdiction of the PCIJ to award damages, as a separate issue, although the Court’s jurisdiction to deal with the merits of the dispute under the relevant convention was established: (1927), PCIJ Series A No. 9. In The Wimbledon Case the defendant state did not contest the jurisdiction of the PCIJ to award damages, even though the relevant treaty made no express provision for such an award and the Court exercised that jurisdiction: (1923), PCIJ Series A No. 1. 374 See, e.g., the Maritime Delimitation and Territorial Questions between Qatar and Bahrain Case, 2001 ICJ Reports p. 16, the Kasikili/Sedudu Island Case, 1999 ICJ Reports p. 1045. The ICJ has been requested to indicate what the parties must do in regard to an arbitration in the Arbitral Award of 31 July 373

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What is more, the ICJ, in interpreting the relevant enabling provisions in jurisdictional instruments, has not taken a narrow view of “reparation”, where this is specified. It certainly has not taken the view that reparation is limited to satisfaction in the limited sense of a non-pecuniary remedy for injury to a state’s honour and dignity which would take the form of a salute to the flag of the injured state or of a declaratory judgment itself representing just satisfaction. In the Nicaragua Case (Merits) the Court clearly stated that reparation provided for by acceptances under the Optional Clause and treaty provisions did include monetary compensation.375 Where relevant instruments are silent on the question of remedies, the Court may, in effect, refer to its inherent jurisdiction, though often not in those terms. What the position is where there is no reference to remedies at all has been discussed by the ICJ. There are two questions. The first is whether the Court has an inherent jurisdiction to order remedies at all but must in the absence of an express attribution of jurisdiction confine itself to a declaratory judgment on the rights and obligations of the parties and leave the determination of remedies to them. The second relates to the scope of this jurisdiction, if it exists, that is, what generic remedies it covers, regardless of how the content of these remedies is determined in any given case. Most importantly the ICJ has explicitly made statements supporting the view that there is some inherent jurisdiction in regard to remedies deriving from a grant of jurisdiction to settle a dispute on the merits. In The Wimbledon Case376 the PCIJ derived its jurisdiction from Article 387 of the Treaty of Versailles which stated: “In the event of violation of any of the conditions of Articles 380–386 or of disputes as to the interpretation of these Articles any interested power can appeal to the jurisdiction instituted for the purpose by 1989 Case, 1991 ICJ Reports p. 53, and to indicate what the parties would do and what compensation should be paid in the event of a finding of breach by either party in the Gabčikovo-Nagymaros Project Case, 1997 ICJ Reports at p. 7. It did what it was requested to in both cases. 375 1986 ICJ Reports at p. 142. 376 (1923), PCIJ Series A No. 1.

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the League of Nations.” There was no reference to remedies. One of the claimant states, France, requested damages for injuries resulting from an alleged breach of treaty and the Court ordered that these must be paid even though the treaty made no express provision for such an award. The defendant state did not contest the Court’s jurisdiction to award damages. In the Chorzów Factory (Jurisdiction) Case Poland raised the question of the Court’s jurisdiction to award damages. The Court’s jurisdiction was based on Article 23(1) of the Geneva Convention which provided that the Court could decide on “Differences of opinion resulting from the interpretation and the application of Articles 6 to 22”. Poland argued that this did not contemplate disputes as to reparations claimed for violation of the Convention. The Court rejected this argument stating: It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations which may be due by reason of failure to apply a convention, are consequently differences relating to its interpretation.377

The suggestion of Poland that compromisory clauses should be narrowly interpreted so as to exclude claims for reparation, unless express provision was made for these, was dismissed by the Court as not supported by earlier arbitral practice nor by any recent developments. It said that, although some international arbitral tribunals were expressly given the power to decide on claims for pecuniary compensation, many more were only authorized to settle “all claims” and these tribunals did not find that they were prevented from fulfilling what were obviously the intentions of the parties and making awards of damages. In the Mavrommatis Palestine Concessions

(1930), PCIJ Series A No. 9 at p. 21. The contrary opinion expressed by Judge Ehrlich, ibid. at p. 38, is clearly incorrect. 377

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Case378 such a clause was assumed by the PCIJ to give it the same jurisdiction, although it did not discuss the question, as the point was not raised by the defendant state, even though it contested the Court’s jurisdiction on other grounds. In the Chorzów Factory (Jurisdiction) Case the PCIJ supported its interpretation of the words “interpretation and application” by the argument that the “decision whether there has been a breach of an engagement involves no doubt a more important jurisdiction than a declaration as to the nature or extent of reparation due for a breach of an international engagement the existence of which is already established.”379 The Court gave several reasons for this conclusion, the most important of which was the reason that “An interpretation which would confine the Court simply to recording that the Convention had been incorrectly applied . . . without being able to lay down the conditions for the re-establishment of the treaty rights affected would be contrary to what would, prima facie, be the natural object of the clause; for a jurisdiction of this kind, instead of settling a dispute once and for all, would leave open the possibility of further disputes.”380 This case held in narrow terms that a clause that gives jurisdiction over questions of the interpretation and application of a treaty includes the power to assess damages for the breach of that treaty, when these are requested by the claimant state. On a different point, in its decision on the merits of this case,381 the Court recognized that there were limits to jurisdiction over the actual assessment of damages. Germany had asked for a decision of principle to prevent the set off of a counterclaim against the indemnity fixed in the judgment or to allow such a set off in defined circumstances only. The Court held that, although jurisdiction as to the reparation due for a violation of an international convention (1924), PCIJ Series A No. 2. (1930), PCIJ Series A No. 9 at p. 24. See also Lauterpacht, op. cit. note 178 p. 246. 380 (1930), PCIJ Series A No. 9 at p. 24. 381 (1927), PCIJ Series A No. 13 at p. 59. Contra Judges Rabel and Nyholm, dissenting: ibid. at pp. 66 and 92 respectively. 378 379

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involved jurisdiction as to the forms and methods of reparation, this principle might not be unjustifiably extended to enable the Court to take cognizance of any question of international law for the sole reason that the manner in which such a question was decided would have an influence on the effectiveness of the reparation which was requested. Here the possibility of a liquidated and undisputed claim against the indemnity awarded would not necessarily prejudice the effectiveness of reparation. But in the case the Court did not have to decide on the submission of Germany. This was a problem of where to draw the line between those questions directly affecting the form and method of reparation and those only remotely affecting its effectiveness. It has not arisen before the PCIJ or ICJ again but was discussed by the ECHR in the Ringeisen Case,382 where the ECHR took a wide view of its jurisdiction, similar to that of two judges who dissented in the Chorzów Factory (Jurisdiction) Case.383 The Corfu Channel Case (Merits)384 follows the Chorzów Factory (Jurisdiction) Case on the power to assess the amount of damages. In the Corfu Channel Case the ICJ had been given jurisdiction under a special agreement between Albania and the UK to decide, 1. Is Albania responsible under international law for the explosions in Albanian waters and for the damage and the loss of human life which resulted from them, and is there any duty to pay compensation? 2. Has the United Kingdom under international law violated the sovereignty of Albania by reason of the acts of its navy in Albanian waters and is there any duty to give satisfaction?

ECHR, Series A No. 16. In response to a request for the interpretation of its judgment of 22 June 1972 awarding Ringeisen DM 20,000 as just satisfaction the Court made it clear that its award was to be paid to Ringeisen personally and free from attachment. 383 See note 381 above. 384 1949 ICJ Reports p. 4. 382

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The United Kingdom claimed compensation for the loss of one ship and injury to another and for the pensions and other expenses incurred by the government in respect of the deaths and injuries of naval personnel. Albania contested the Court’s power to decide on the amount of damages rather than just to establish the principle of responsibility. The Court held that it would he incompatible with the generally accepted rules of interpretation to decide that a clause which gives the Court jurisdiction to decide whether there is a duty to pay compensation did not also confer the power to assess the amount of damages payable. It also stated: If the Court should limit itself to saying that there is a duty to pay compensation without deciding what amount of compensation is due, the dispute would not be finally decided. An important part of it would remain unsettled. As both parties have repeatedly declared that they accept the Resolution of the Security Council such a result would not conform with their declarations. It would not give full effect to the Resolution but would leave open the possibility of a further dispute.385

The question of the jurisdiction of the ICJ actually to award damages arose again in the Fisheries Jurisdiction (Germany v. Iceland) Case.386 Germany did not abandon its initial request for damages for the injury to German fishing vessels or to fishing operations caused by the interference of Icelandic coastal patrol boats. The Court’s jurisdiction was based on an agreement of 1961 which provided that in case of a dispute relating to an extension of Iceland’s fishing limits the matter shall, at the request of either party, be referred to the ICJ. The Court held that this covered Germany’s fourth submission in its Memorial which requested the Court to declare that the acts of interference by Icelandic coastal patrol boats with fishing vessels registered in the FRG or with their fishing operations by Ibid. at p. 26. The SC resolution was that the parties should refer the dispute to the Court. Five judges dissented on the Court’s power to assess damages in the case: ibid. at pp. 57, 67, 73, 96, 128 respectively. 386 1974 ICJ Reports at p. 203. 385

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the threat or use of force were unlawful under international law and that Iceland was under an obligation to make compensation therefor to the FRG. The Court in deciding that it had jurisdiction to decide this question said briefly that “The matter raised therein is part of the controversy between the Parties and constitutes a dispute relating to Iceland’s extension of its fisheries jurisdiction”.387 In the Iranian Hostages Case388 the ICJ accepted without comment that agreements providing it with jurisdiction over disputes as to the interpretation and application of treaties gave it the power to award damages. Thus, the Court has consistently, in its interpretation of compromissory clauses so far as the power to award damages is concerned, in effect, accepted that it has an inherent jurisdiction to exercise such a power. In the Nicaragua Case (Merits) the ICJ quite categorically stated what it believed to be a general principle when it said, “In general, jurisdiction to determine the merits of a dispute entails jurisdiction to determine reparation”.389 But in that case it decided that it would leave the matter of the amount of compensation, which it decided was due, to the parties to negotiate as had partially been requested. As was said also in that case, where jurisdiction is based on the Optional Clause, that jurisdiction covers generally the power to decide on the nature and extent of reparation.390 In cases where application has been made for an award of damages, the Court has never questioned its power to make such an award and has never declined jurisdiction to do so on the ground that this would be outside its powers under Article 36(2) of its Statute. It has apparently assumed that it would have jurisdiction to award damages but has, if necessary, refused jurisdiction on other grounds or accepted

Ibid. Dissenting on the point were Judges DeCastro, Gros and Petrén, ibid. at pp. 225, 234 and 240 respectively. 388 1980 ICJ Reports p. 3. 389 1986 ICJ Reports at p. 142. 390 Ibid. Article 36(2) of the ICJ’s Statute provides for this. 387

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jurisdiction but determined that it did not have to decide on the award of damages.391 The scope of the Court’s power to specify other remedies such as restitution or specific performance under a compromissory clause like that in the Chorzów Factory (Jurisdiction) Case, or under the Optional Clause has also been the subject of cases. In a few cases the claimant state has requested the Court to order the defendant state to act in a certain way. In the Iranian Hostages Case the Court made such an order but it has never discussed its power to do so. In the Chorzów Factory (Jurisdiction) Case Germany asked the Court to prohibit the export by Poland of certain products or, alternatively, to order that the Polish Government be obliged to cease working the factory concerned for the production of certain chemicals. Because neither of these measures could be included as a necessary part of the compensation due to Germany, the Court held that it was not necessary for it to decide “Whether such a provision, although customary in contracts between individuals, might form the subject of an injunction issued by the Court to a government, even if that government were working as a state enterprise the factory of which export was to be limited, nor if the prohibition asked for would be fair and appropriate in the circumstances.”392 In the Free Zones of Upper Savoy and the District of Gex Case,393 the Court made an order that France should withdraw its customs boundary in order to comply with its treaty obligations. However, express provision had been made for the Court to do at least this in the agreement from which it derived its jurisdiction. In the Right of Passage Case,394 where the ICJ had jurisdiction under the Optional Clause, Portugal requested that the Court should order that India respect its obligation to permit Portugal the right of passage. The Court gave a declaratory judgment without, however, As in the Anglo-Norwegian Fisheries Case, 1951 ICJ Reports p. 116. (1927), PCIJ Series A No. 13 at p. 57. 393 (1930), PCIJ Series A No. 24. 394 1960 ICJ Reports p. 6. See also the requests in the Nuclear Tests Cases, 1974 ICJ Reports at pp. 253 and 457 respectively, and the Diversion of Waters from the Meuse Case, PCIJ Series A/B No. 70. 391 392

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denying that it had jurisdiction to make the order requested. In the Iranian Hostages Case the Court issued an order to the parties rather than merely a declaratory judgment in a case where the agreements between the parties made no reference to remedies. An order of specific performance was in effect requested by the US. The Court found, in response to the request of the US, that Iran had violated its obligations to the US and unanimously held that it Decides that the Government of the Islamic Republic of Iran must immediately take all steps to redress the situation resulting from the events of 4 November 1979 and what followed from these events, and to that end: (a) must immediately terminate the unlawful detention of the United States Chargé d’affaires and other diplomatic and consular staff and other United States nationals now held hostage in Iran, and must immediately release each and everyone and entrust them to the protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations); (b) must ensure that all the said persons have the necessary means of leaving Iranian territory, including means of transport; (c) must immediately place in the hands of the protecting Power the premises, property, archives and documents of the United States Embassy in Tehran and of its Consulates in Iran; Decides that no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness.395

This was a case in which, although the word “ordered” was not used, the Court decided that the respondent should act in a certain way which is in effect an order of specific performance. It does not serve any purpose in this regard to make a distinction between a declaratory judgment stating that a party should act in a

1980 ICJ Reports at pp. 44–5. See also now the Arrest Warrant of 11 April 2000 Case, (2002), para. 78(3), <www.cij-icj.org> for an order amounting to specific performance. 395

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certain way and a judgment ordering or directing specific performance. The effect is the same, although formally there may be a difference. The Court makes a binding decision relating to specific action. A distinction would be without a material difference. In several cases the ICJ was asked to declare (rather than order) that the defendant state was under an obligation to act in a certain way in situations where the jurisdictional instruments did not specifically refer to such declarations or orders of specific performance.396 In the Temple of Preah Vihear Case, for instance, the Cambodian government had added a fifth submission at the end of the oral proceedings and asked the ICJ to adjudge and declare that the sculptures and other items which had been removed from the temple by the Thai authorities since 1954 were to be returned to the Cambodians by the Thai government. The Court, after formally admitting the late submission, found that the temple was situated in territory under the sovereignty of Cambodia and held in consequence that Thailand was “under an obligation to restore to Cambodia any objects of the kind specified in Cambodia’s fifth submission which may since the date of the occupation of the Temple of Thailand in 1954 have been removed from the Temple or the Temple area by the Thai authorities.”397 It is clear that, though formally in the nature of a declaration, what has been done in the cases in settling disputes under jurisdictional instruments which do not refer specifically to orders (or declarations) specifying actions to be taken or desisted from, the ICJ has decided in effect to indicate specific performance.398

See the Guardianship of Infants Convention Case, 1958 ICJ Reports p. 55, the Interhandel Case, 1959 ICJ Reports p. 6, the South West Africa Cases, 1962 ICJ Reports p. 319 and 1966 ICJ Reports p. 6, and the Aegean Sea Case, 1978 ICJ Reports p. 3. Judgments declaring that certain action should be taken were given in the Arbitral Award of the King of Spain Case, 1960 ICJ Reports p. 192 and the Ambatielos Case, 1952 ICJ Reports p. 28 and 1953 ICJ Reports p. 10. 397 1962 ICJ Reports at p. 37. 398 Mann, “The Consequences of an International Wrong in International and Municipal Law”, 48 BYIL (1976–1977) p. 1 ff., agrees that specific performance should be readily available as a remedy. 396

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It would appear that in the jurisprudence of the PCIJ and ICJ there is no indication that negative injunctions, restitutio in integrum, specific performance, damages and satisfaction, as forms of remedies, are as such outside its jurisdiction. In principle all of these remedies are within its jurisdiction, in the absence of provision in the jurisdictional instruments to the contrary. That jurisdiction is inherent to the extent that such forms of remedy are not provided for expressly in the jurisdictional instruments. There may be differences of form, nevertheless. For example, specific performance may not be indicated in the language of an order but may take the form of a declaration or finding of what a party or the parties must do or refrain from doing. This does not affect the substance of the matter as far as the nature of the remedy, which is inherent in the Court’s jurisdiction, is concerned. Basically, the Court has as wide an inherent jurisdiction in regard to remedies as is appropriate to its judicial functions as international tribunals. This amounts to saying that inherent remedial jurisdiction exists, unless it is shown to be otherwise, whether because of the provisions of the jurisdictional instruments of the Court or the circumstances of the case. In this connection the statement made by the ICJ in the Nicaragua Case (Merits) that “In general jurisdiction to determine the merits of a dispute entails jurisdiction to determine reparation” is pertinent. “Reparation” here clearly means “modalities to repair the wrong”. There is no reason to restrict it to the award of damages. The non ultra petita principle is a recognized general principle of law. It has been referred to by the ICJ in connection with claims on the merits.399 It has some bearing on jurisdictional choices, especially where an inherent jurisdiction is being exercised. The principle requires that a judgment award as reparation no more than has been requested by the claimant.

In the Asylum Case, 1959 ICJ Reports at p. 402, the Court referred to its duty “to abstain from deciding points not included in the submissions”. In the Arrest Warrant of 11 April 2000 Case (2002), para. 43, <www.cij-icj.org>, the Court referred to its statement in the Asylum Case and described it as the non ultra petita rule, in applying it to the case in hand. 399

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In relation to jurisdiction pertaining to remedies the application of the principle would require that a greater species of remedy not be chosen than the species requested, even if there is an inherent jurisdiction to select it. Hence, where, for example, only a declaratory judgment is sought, the Court may not, even if it has the inherent or expressed jurisdiction to do so, make an award of damages. Or, if compensation alone is sought in respect of an unlawful expropriation, a tribunal may not choose to order restitutio in integrum, even if it has the jurisdiction, inherent or otherwise, to do so. This presupposes a hierarchy of remedies, one being higher in the scale than another. It is possible to establish such a hierarchy on the basis of the importance of a remedy. Thus, restitutio in integrum would be at the top of the hierarchy, next would be placed specific performance, including negative injunctions which are a negative form of specific performance, next damages (which includes the lesser concept of compensation), next satisfaction less than damages and finally a declaratory judgment. JURISDICTION

TO

REOPEN CASES

An international case (affaire) involving an international legal dispute which has been decided and disposed of by the Court may be reopened and re-examined in certain circumstances. The nature of the reopening and re-examination will depend on a variety of factors. There are circumstances in which both the jurisdiction to reopen and the extent of the jurisdiction to re-examine will depend primarily and largely on the explicit terms of the constitutive instrument of the tribunal. It may well be that there is also an inherent jurisdiction in this regard which all international tribunals have subject to permissible modification, exclusion or variation in the constitutive instruments. (1) Res Judicata and Finality Before considering when a case may be reopened, it is necessary to examine the implications of finality of a judgment and in this

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connection the principle of res judicata. The constitutive instruments of established courts generally expressly state that the judgments of the tribunals shall be final (and binding) and, sometimes, without appeal.400 In these circumstances it is clear that the doctrine of res judicata is applicable. The doctrine means that the case or matter “is finally disposed of for good”,401 as the ICJ has said. There are two questions that arise: first, what are the implications of the principle and, second, does it apply in the absence of clear indications in the constitutive instrument of the tribunal that it does apply. In regard to the second question, it is likely that the doctrine is generally applicable as a general principle of law, pursuant to the reference in Article 38(1) of the Statute of the ICJ, even if the constitutive instrument makes no reference to it in one way or another. This is the better opinion. The view that the principle of res judicata is a general principle of law appeared in such statements made during the drafting of the Statute of the PCIJ.402 Reference was there made to the arbitral award in the Pious Fund Case.403 In that case the issue raised in regard to the compromis was whether as a consequence of a former decision a claim came within the governing principle of res judicata. The tribunal did not question that the principle was applicable but applied it. It may be concluded that the tribunal applied it without question, not because it found that the compromis compelled it to recognize the principle as applicable, which it did not, but because it believed it to be applicable as a general principle. In the Polish Postal Service in Danzig Opinion, the PCIJ referred with approval to the manner in which the doctrine of res judicata had been applied in the Pious Fund Case, where the parties and the matter of the dispute had been the same.404 On the other hand, both the PCIJ and the ICJ have subsequently applied it See Article 60 of the statute of the ICJ: “The judgment is final and without appeal”. 401 See the Barcelona Traction Co. Case (Preliminary Objection), 1964 ICJ Reports at p. 20. 402 PCIJ, Procès verbaux at pp. 31, 333 and passim. 403 (1902), 9 UNRIAA p. 11. 404 (1925), PCIJ Series B No. 11 at p. 30. 400

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when the need arose by reference to their constitutive instruments. In the case of the ICJ Article 60 incorporates the principle.405 As regards the first question, Judge Anzilotti’s dissenting opinion in the Chorzów Factory Case (Interpretation) enunciated the implications of the principle. In acknowledging that the principle applied, he stated: “we have here the three traditional elements for identification, persona, petitum, causa pretendi, for it is clear that “that particular case” (le cas qui a été décidé) covers both the object and the grounds of the claim”.406 The explanation of this cryptic statement is that, when a plea that a complaint is barred by the doctrine or principle of res judicata is upheld, it means that a further ruling on claims is precluded, where such claims are identical in substance, to claims on which the tribunal has already passed judgment,407 and that the doctrine becomes applicable where an earlier complaint has been dismissed, if three conditions are fulfilled simultaneously, namely that (a) the parties are the same; (b) the substance of the claim is the same; and (c) the cause of action is the same. A judgment with the force of res judicata is brought about when proceedings in an action filed by an applicant terminate. Proceedings would terminate in such a judgment, for example, for any of the following reasons: (a) where the respondent and the applicant agreed to terminate proceedings; (b) by a transaction between the applicant and the respondent;

Article 60 of the ICJ statute, as did the corresponding Article of the PCIJ statute, states that judgments of the ICJ are “final and without appeal”. 406 (1927), PCIJ Series A No. 13 at p. 23. 407 See Hubeau, ILOAT Judgment No. 574 [1983] at p. 4. For a discussion of res judicata, see C.F. Amerasinghe, 1 Law of the International Civil Service (1994) pp. 241 ff. 405

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(c) by withdrawal of the complaint; or (d) by a final judgment from the court of jurisdiction.408 The ICJ explained in several cases the law as applied to situations that came before it. After the judgment on the merits in the Corfu Channel Case, which reserved for later consideration the question of compensation, Albania challenged the jurisdiction of the Court. In its written observations the UK pleaded on this issue that the matter was res judicata, citing Articles 36, paragraph 6, and 60 of the Statute and the judgment on the merits. No observations were filed by Albania, which took no further part in this stage of the proceedings, and thus the issue of compensation came up for judgment by default. In its judgment in the Corfu Channel Case (Compensation) the Court applied the principle of res judicata to exclude a re-examination of the jurisdictional issue.409 The Court, thus, went ahead, interpreted the special agreement and awarded damages. The operative part of the earlier judgment decided the question of jurisdiction. That the parties had not argued the matter was not relevant, because they had the opportunity to argue it after it was raised. Where there is argument, such argument will affect the scope of the res judicata. No such problem arose in this case. In the Bosnia Genocide Case410 the ICJ reiterated the rule established in its jurisprudence that decisions on jurisdiction were judgments covered by Article 60 of its Statute and were, thus, res judicata. A previous judgment given in 1996411 on jurisdiction could not thus be reopened because its contents relating to jurisdiction were res judicata. In the Asylum Case the dispute followed a grant of diplomatic asylum to a political refugee by the Colombian Embassy at Lima. The Court was asked two legal questions relating to diplomatic

408 409 410 411

p. 595.

Thevenet, OASAT Judgment No. 43 [1979]. 1949 ICJ Reports at p. 248. 2007 ICJ Reports paras. 80–141 (<www.icj-cij.org>). The Bosnia Genocide Case (Preliminary Objections), 1996 ICJ Reports

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asylum in Latin America and to the interpretation of certain relevant conventions. Neither the claim of Colombia nor the counter-claim of Peru asked specific questions as to the method of terminating the asylum. In its judgment of 20 November 1950 the Court gave its answers to the questions put to it in the submissions of the parties. It intimated that the question of the possible surrender of the refugee to the Peruvian authorities was not raised either in the diplomatic correspondence submitted to the Court by the parties or at any moment in the proceedings.412 It did not decide this issue nor does any mention of it appear in the operative clause of the judgment. Immediately after delivery of that judgment Colombia filed a request for interpretation under Article 60 of the ICJ Statute on the ground that gaps existed in the judgment. One of the questions put to the Court in that request related to the qualification which in fact had been made by the Colombian Ambassador in Lima. The other questions related to the surrender of the refugee to the Peruvian authorities. When the Court gave its judgment in this second case, it indicated that the question of the qualification had not been raised in the submissions of the Colombian Government, and proceeded in fact to explain not what its decision meant, but what it actually had decided. As for the question of the possible surrender of the refugee, that was completely left outside the submissions of the Parties. The judgment in no way decided it, nor could it do so. It was for the Parties to present their respective claims on this point. The Court finds that they did nothing of the kind.413

The Court then proceeded to explain what Article 60 on interpretation meant. Following that judgment a further diplomatic exchange took place between the parties, and later in 1950 new proceedings were

412 413

Asylum Case, 1950 ICJ Reports at p. 280. Asylum Case (Interpretation), 1950 ICJ Reports at p. 420.

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instituted by Colombia in the Haya de la Torre Case.414 Their object was to obtain the Court’s decision on the question whether or not Colombia was bound to deliver the refugee to Peru and, thus, to terminate asylum. In early 1951 the Government of Cuba, which was a party to one of the conventions cited by Colombia in its application, invoked Article 63 of the Statute on intervention and filed a declaration of intervention to which was attached a memorandum giving its views on the matter. That memorandum was almost entirely devoted to a discussion of the questions decided by the judgment of 20 November 1950. Peru objected to the admissibility of this intervention. The principle of res judicata became relevant both to the intervention and in connection with the merits. With regard to the merits both parties first requested the Court to state how its previous judgment should be executed. The Court’s answer was that the previous judgment had defined the legal relations between the parties. Secondly, Colombia requested the Court to declare that Colombia was not bound, in execution of the judgment of 20 November 1950, to deliver the refugee to the Peruvian authorities. In answer the Court recalled what was stated in that judgment, namely that the question had not been submitted to the Court, and consequently had not been decided by it. It said that no conclusion as to the existence or non-existence of such an obligation could therefore be drawn from that judgment, and this submission was rejected. Thirdly, and alternatively, the Court was asked, without specific reference to the previous judgment, whether Colombia was bound to deliver the refugee to the Peruvian authorities. As to this, the Court said: the question of the surrender of the refugee was not decided by the Judgment of November 20th. This question is new . . . There is consequently no res judicata upon the question of surrender.415

414 415

1951 ICJ Reports p. 71. Ibid. at p. 80.

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It, therefore, dealt with that question and decided it. While a large part of this section of the judgment is in fact an interpretation of the previous judgment, or carries it a stage further by explaining its legal consequences, it is clear that the issue was not res judicata. It may be noted that in the Lighthouses Cases,416 before the PCIJ, the judgment of 17 March 1934 expressly reserved a certain question which was decided in the judgment of 8 October 1937, while in the Asylum Case the earlier judgment contains no such express reservation, which gave rise to the issue of res judicata. In the Asylum Cases the problem concerned the scope of the judgment in terms of its finality, not whether a final judgment existed, as was the case in the Corfu Channel Cases. What is entailed in establishing the scope of a judgment was clearly explained in the judgment of 27 November 1950, in the second Asylum Case, on the question of the admissibility of the request for interpretation, where the Court found it necessary to analyse Article 60 of the Statute. In doing this it explained that the real purpose of a request under that article must be to obtain an interpretation of the judgment in question. This matter is discussed below in connection with interpretation.417 It is significant that in the Court’s approach the scope of res judicata can only be determined by reference to the pleadings, and particularly, the submissions of the parties.418 It is from the submissions that it becomes possible to determine whether any part of the judgment would give rise to res judicata. In a later case, the Request for Interpretation of the Judgment of 11 June 1998 Case, the Court, when asked to interpret an earlier

Lighthouses Cases (1934), PCIJ Series A/B No. 62 p. 2 and Lighthouses in Crete and Samos Case (1937), PCIJ Series A/B No. 71 p. 94. 417 This leads to the conclusion that the term “decision” (décision) in Article 59 of the statute, which states that decisions are binding only as between parties to a case, has the same meaning as the term “judgment” (arrêt) in Article 60 and covers not merely the operative part of the judgment (the dispositif ) but its reasoning as well. 418 Asylum Case (Interpretation) 1950 ICJ Reports at p. 403. 416

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judgment, reiterated its approach to the principles of res judicata and the finality of judgments. It said: The question of the admissibility of requests for interpretation of the Court’s judgments need particular attention because of the need to avoid impairing the finality, and delaying the implementation, of these judgments. It is not without reason that Article 60 of the Statute lays down, in the first place, that judgments are “final and without appeal”. Thereafter, the Article provides that in the case of a “dispute as to the meaning or scope of the judgment”, it shall be construed by the Court upon the request of any party. The language and structure of Article 60 reflect the primacy of the principle of res judicata. That principle must be maintained. The Court adheres to what it has previously held, namely that [t]he real purpose of the request must be to obtain an interpretation of the judgment. This signifies that its object must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided. Any other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal.419

There is a problem with incidental decisions on preliminary points, the question being whether they can be res judicata. In the Chorzów Factory Case420 the view seems to have been taken or supported that incidental decisions on preliminary points were subject to the principle of res judicata. A consequence of the principle of res judicata is that there would be no inherent jurisdiction as such in the same or another court to reopen or review a case.

1999 ICJ Reports at pp. 35–7. The reference is to the Asylum Case (Interpretation), cited at footnote 418 above. 420 (1927), PCIJ Series A No. 13. 419

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(2) Review Review, which is different from appeal, is also an inroad into the principle of res judicata. An appeal (“appel”) intrinsically enables generally examination of the case de novo on the merits in the light of what was presented to the Court in the first instance and, where necessary, substitution of judgment. This is the general thrust of an appeal. Review or revision, on the other hand, is a more limited function in principle. Particular aspects alone of the case as presented in the first instance are involved in review, although the case may be reopened and re-examined, but generally a fresh judgment on the merits is not delivered, though exceptionally, in effect, it may be because of particular defects. Alternatively, review jurisdiction may be generated by matters extrinsic to the case as presented in the first instance, namely new facts, though here again, the jurisdiction, if it exists, results in a reopening and re-examination of the case and a fresh judgment on the merits. Clearly, because provision is made for review in the Statute of the World Court, the jurisdiction to review will be recognized to the extent incorporated in, and pursuant to, the express provisions of those instruments. The classic case of a review jurisdiction is in circumstances where a new fact is discovered. Article 61 of the Statute of the ICJ provides: 1. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence. ... 4. The application for revision must be made at latest within six months of the discovery of the new fact. 5. No application for revision may be made after the lapse of ten years from the date of the judgment.421

Article 99 of the ICJ’s 1978 Rules describes the procedure to be followed for revision. 421

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The ICJ dealt with its power of revision (Article 61) in the Application for Revision and Review Case,422 flowing from the Tunisia/Libya Continental Shelf Case.423 In the Effect of Awards Opinion in dealing with the compatibility of a power of revision with the final and binding quality of a judgment which is without appeal, the Court said that the rule that a judgment is final and without appeal cannot . . . be considered as excluding the Tribunal (UNAT) from itself revising a judgment in special circumstances when new facts of decisive importance have been discovered; and the Tribunal has already exercised this power. Such a strictly limited revision by the Tribunal itself cannot be considered as an “appeal” . . . and would conform with rules generally provided in statutes or laws issued for courts of justice, such as for instance in Article 61 of the Statute of the International Court of Justice.424

In the Application for Revision and Review Case in a single application Tunisia requested revision of that judgment, its interpretation, and the correction of an error. The ICJ noted that the Statute and Rules contemplate different procedures for a request for revision and for a request for interpretation and dealt with the issue of revising and interpreting in the same judgment.425 In interpreting Article 61 of the Statute the Court said: Article 61 . . . provides that an application for revision of a judgment may be made only when it is based upon the discovery of a fact “which was, when the judgment was given, unknown to the Court and also to the party claiming revision”. So far as knowledge of the fact in question could be derived from the pleadings and material

1985 ICJ Reports p. 192. 1982 ICJ Reports p. 18. 424 1954 ICJ Reports at p. 55. The Court addressed “fresh facts”. These are to be distinguished from fresh documents which in themselves do not amount to newly discovered facts: see the Monastery of Saint Naoum Opinion (1924), PCIJ Series B No. 9 at p. 22. 425 1985 ICJ Reports at p. 197. 422 423

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Chapter 2. Contentious Jurisdiction submitted to the Court leading up to the original judgment, anything which was known to the Court must equally have been known to the party claiming revision. The Court must be taken to be aware of every fact established by the material before it, whether or not it expressly refers to such fact in its judgment; similarly, a party cannot argue that it was unaware of a fact which was set forth in the pleadings of its opponent, or in a document annexed to those pleadings or otherwise regularly brought before the Court.426

Then it stated in regard to the issue of “unknown” facts in the case before it: The Court must however consider whether the circumstances were such that means were available to Tunisia to ascertain the details of the co-ordinates of the concession from other sources; and indeed whether it was in Tunisia’s own interests to do so. If such be the case, it does not appear to the Court that it is open to Tunisia to rely on those co-ordinates as a fact which was “unknown” to it for the purposes of Article 61, paragraph 1, of the Statute.427

The Court concluded that the co-ordinates were obtainable by Tunisia and that the fact that it was in its own interest to ascertain them signified that one of the essential conditions of admissibility of a request for revision laid down in Article 61, namely ignorance of a new fact not due to negligence, was lacking.428 The Court next addressed the question whether the fact the discovery of which was relied on was “of such a nature as to be a decisive factor”. The Court acknowledged that, once it was established that a request for revision failed to meet one of the conditions laid down in Article 61, the Court was not required to go further to investigate whether the other conditions had been fulfilled. However, in the special circumstances of this case, the Court considered this question. The Court examined the relevant parts of

426 427 428

Ibid. at p. 203. Ibid. at p. 205. Ibid. at p. 107.

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its earlier judgment and found that its reasoning would have been totally unaffected by the new evidence. It thereafter enunciated a very important principle in regard to this aspect of the case: what is required for the admissibility of an application for revision is not that the new fact relied on might, had it been known, have made it possible for the Court to be more specific in its decision; it must have been a “fact of such a nature as to be a decisive factor”. So far from constituting such a fact, the details of the correct coordinates . . . would not have changed the decision of the Court as to the first sector of the delimitation.429

In the result the Court concluded that the application for revision was not admissible according to the terms of Article 61 of the Statute.430 (3) Fraud and Corruption There has been no doubt that a judgment may be reopened in cases of fraud or corruption. The fraud or corruption may be attributable either to the Court or any of those who constitute it or to witnesses. It is a matter of whether the fraud or corruption tainted the proceedings or judgment of the Court. It is very rarely, however, that a judgment has been reopened on the ground of fraud or corruption. It has not happened in the case of the World Court. The PCIJ and

Ibid. at p. 213. See now, on review of judgments, the Bosnia Genocide Case, 2007 ICJ Reports paras. 80–141 (<www.icj-cij.org>), the Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island and Maritime Frontiers Dispute (El Salvador v. Honduras), 2003 ICJ Reports at pp. 404 ff., 411. In both these cases the principles evolved by the Court in terms of Article 61 of the statute were faithfully applied. It may also be noted in regard to review of judgments that because of express provisions of the ILOAT Statute, the ICJ has power to review in certain circumstances the judgments of the ILOAT. Thus, the ICJ has a power of reviewing the judgments of another court. 429 430

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ICJ Statutes are silent on the matter of fraud and corruption.431 But general principles of law and justice would seem to demand that such a jurisdiction exist. The result of reopening a case where there are allegations of fraud or corruption, needless to say, may be to reverse the award, modify it or confirm it. (4) Rectification The Statutes of the PCIJ and ICJ do not provide for correction or rectification of a judgment which involves reopening the case. The ICJ has conceded that, nevertheless, it has the inherent jurisdiction to make such corrections. In the Application for Revision and Review Case it said: The Court does of course have the power to correct, in one of its judgments, any mistakes which might be described as “erreurs matérielles”. That power would not normally be exercised by way of a judgment, since the very nature of the correction of such an error excludes any element of contentious procedure; yet there is no reason why a judgment devoted to another purpose should not also deal with a request connected therewith, for such a correction.432

This is an inherent jurisdiction. However, the Court may have to decide, in the appropriate circumstances, what exactly is “a technical error”, which may be a difficult task sometimes. Clearly, clerical and grammatical mistakes may be such errors. But, if as has been held, a mistake in calculation which is a form of error in logic, is such an error, the question may be asked whether errors in logic, for example, flowing from the drawing of erroneous conclusions from the reasoning or reasons given in the judgment, which may or may not be the result of oversight, may be characterized as technical errors. There are obviously some limitations, jurisdictionally,

On fraud and corruption in the case of arbitral tribunals see C.F. Amerasinghe, op. cit. note 23 pp. 474 ff. 432 1985 ICJ Reports at p. 198. “Erreurs matérielles” is the term used usually for technical errors. 431

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which apply to this kind of error in respect of whether it may be rectified. (5) Interpretation Interpretation of a judgment which involves reopening a case, even if to a very limited extent, and is an inroad into the notion of finality and res judicata has been expressly permitted in the ICJ Statute, which states in Article 60 (as did in substance the relevant provision of the PCIJ Statute) that “In the event of a dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party”. The terms of those provisions would govern the jurisdiction to interpret. Cases have come up before the PCIJ and ICJ in which it has had to determine its jurisdiction to interpret under the provisions of Article 60 of its Statute. The interpretation given the provisions of Article 60 by the Court is relevant to any inherent jurisdiction to interpret that may exist under general principles of law. With regard to interpretation the general principle is that interpretation cannot go beyond the limits of the judgment. If the original case was instituted by notification of a special agreement, the limits of the judgment will be determined by the special agreement.433 It is possible that the final submissions of the parties determine the scope of the judgment: they make clear the points which had been settled with binding force and also establish whether a particular point has or has not been decided with binding force.434 Importantly, if the object of the request for interpretation is to obtain an answer to questions not so decided, it will be declared inadmissible.435 Interpretation relates entirely to ascertaining or clarifying what constitutes the binding decision (or the res judicata) and cannot go beyond those limits. For that reason, a judgment involving

433

The Treaty of Neuilly Case (Interpretation) (1925), PCIJ Series A

No. 4. The Chorzów Factory Case (Interpretation) (1927), PCIJ Series A No. 12 at p. 11. 435 The Asylum Case (Interpretation), 1950 ICJ Reports at p. 402. 434

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interpretation cannot consider new facts arising or becoming known after the principal judgment. In the Application for Revision and Review Case the ICJ said in regard to interpretation: The jurisdiction of the Court to give an interpretation of one of its own judgments, on the other hand, is a special jurisdiction deriving directly from Article 60 of the Statute. Thus the Court has in any event to consider whether the conditions for the existence of that jurisdiction are fulfilled. Furthermore, the Parties to this case, in becoming parties to the Statute of the Court, have consented to that jurisdiction without any precondition.436

In the same case the Court explained that the provisions of Article 60 on interpretation were presumptively binding on the parties and could not unilaterally be changed by a party. It did not decide whether Article 60 could be waived or modified by the agreement of all parties to the case. The Court noted the provision in the original special agreement requiring the parties jointly to refer to the Court any request for any explanations or clarifications of its judgment. Libya contended that this was in pari materia with Article 60. The Court, however, dismissed that contention stating that its effect would be to make the right of each Party to request an interpretation – a right exercisable unilaterally – subject to prior employment of a procedure requiring the participation of both Parties. . . . Whether or not such an agreement could validly derogate – as between the parties thereto – from the Statute, it is not lightly to be presumed that a State would renounce or fetter its right under Article 60 of the Statute to request an interpretation unilaterally. Accordingly, the Court is unable to interpret the Special Agreement in that sense, and does not consider that the request made by Tunisia for interpretation in reliance on Article 60 of the Statute is affected by the existence of . . . the Special Agreement.437

436 437

1985 ICJ Reports at p. 216. Ibid.

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The Court apparently interpreted the special agreement in the way it did, though the agreement clearly referred to a joint reference for interpretation, while indicating that it was not deciding whether a special agreement could validly derogate from Article 60. The facts of the case were such that the conclusion cannot be avoided that because the special agreement did clearly derogate from the express provisions of Article 60, though the Court thought that it did not, an agreed derogation from such provisions is never permitted. The Court has addressed the relationship between res judicata, which implies the binding force of judgments, and interpretation as provided for in Article 60. In the Treaty of Neuilly Case (Interpretation)438 the PCIJ considered first the dispute as defined by the parties. It found in the request for interpretation an element which showed a conception which was not reflected in the special agreement by which the original case was instituted. Therefore, it stated that an interpretation given pursuant to Article 60 of a previous judgment could not go beyond the limits of that judgment itself, which were defined in that case by the special agreement. Consequently the request for interpretation was not granted. It is only what is res judicata by the previous judgment that may be subjected to interpretation. The ICJ elaborated in the Asylum Case (Interpretation) on the consequences of the above relationship between res judicata and interpretation, when it said: The real purpose of the request must be to obtain an interpretation of the judgment. This signifies that its object must be solely to obtain clarification of the meaning and scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided. Any other construction of Article 60 . . . would nullify the provision of the article that the judgment is final and without appeal. ... [O]ne must bear in mind the principle that it is the duty of the Court not only to reply to the questions as stated in the final

438

(1925), PCIJ Series A No. 4 at p. 7.

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Chapter 2. Contentious Jurisdiction submissions of the parties, but also to abstain from deciding points not included in those situations.439

In the Request for Interpretation of the Judgment of 11 June 1988 Case the ICJ explained that a request for interpretation might refer to judgments on preliminary objections, and clarified the relevance of the reasons for the judgment in relation to the operative part of the judgment in connection with interpretation: By virtue of the second sentence of Article 60, the Court has jurisdiction to entertain requests for interpretation of any judgment rendered by it. This provision makes no distinction as to the type of judgment concerned. It follows, therefore, that a judgment on preliminary objections, just as well as a judgment on the merits, can be the object of a request for interpretation. However, the second sentence of Article 60 was inserted in order, if necessary, to enable the Court to make quite clear the points which had been settled with binding force in a judgment, . . . a request which has not that object does not come within the terms of this provision (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927. P.C.I.J. Series A, No. 13, p. 11). In consequence, any request for interpretation must relate to the operative part of the judgment and cannot concern the reasons for the judgment except insofar as these are inseparable from the operative part. 11. In the case concerning the Land and Maritime Boundary between Cameroon and Nigeria, Nigeria had put forward a sixth preliminary objection “to the effect that there is no basis for a judicial determination that Nigeria bears international responsibility for alleged frontier incursions”. In its Judgment of 11 June, the Court summarized Nigeria’s position on this point:

1950 ICJ Reports at p. 402. See now also the Application for Revision Case, 1985 ICJ Reports at p. 217, and the Request for Interpretation of the Judgment of 11 June 1988 Case, 1999 ICJ Reports at p. 37. 439

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Nigeria contends that the submissions of Cameroon do not meet the standards required by Article 38 of the Rules of Court and general principles of law regarding the adequate presentation of facts . . . [W]hat Cameroon has presented to the Court does not give Nigeria the knowledge which it needs . . . Similarly, in Nigeria’s view, the material submitted is so sparse that it does not enable the Court to carry out fair and effective judicial determination . . . While Nigeria acknowledges that a State has some latitude in expanding later what it has said in its Application and in its Memorial, Cameroon is said to be essentially restricted in its elaboration to the case as presented in its Application. (I.C.J. Reports 1998, p. 317, para. 96.) In the operative part of its Judgment on 11 June 1998, the Court “Rejects the sixth preliminary objection”. The reasons for this are set out in paragraphs 98 to 101 of the Judgment. These deal in detail with Cameroon’s rights as regards the presentation of “facts and legal considerations” that it might wish to put forward in support of its submissions seeking a ruling against Nigeria (ibid., p. 318, para. 99). These reasons are inseparable from the operative part of the Judgment and in this regard the request therefore meets the conditions laid down by Article 60 of the Statute in order for the Court to have jurisdiction to entertain a request for interpretation of a judgment.440

The Court in that case also examined in some detail the requests for interpretation in terms of both the reasons for the previous judgment and the operative part and came to the conclusion that: It follows from the foregoing that the Court has already clearly dealt with and rejected, in its Judgment of 11 June 1998, the first of the three submissions presented by Nigeria at the end of its request for interpretation, . . . The Court would therefore be unable to entertain this first submission without calling into question the effect of the Judgment concerned as res judicata. The two other submissions, . . .

440

Ibid. at pp. 35–6.

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Chapter 2. Contentious Jurisdiction endeavour to remove from the Court’s consideration elements of law and fact which it has, in its Judgment of 11 June 1998, already authorized Cameroon to present, or which Cameroon has not yet put forward. In either case, the Court would be unable to entertain these submissions. It follows from the foregoing that Nigeria’s request for interpretation is inadmissible.441

In regard to the first submission inadmissibility was related to the principle of res judicata in that it requested a reopening of the merits, which had been clearly examined and decided. In regard to the other two submissions the Court took the view that there was no cause for interpretation because the judgment was unambiguous, which relates to the element of uncertainty or ambiguity required to be present in the previous judgment. The PCIJ has also dealt with the impact and meaning of the term “dispute” used in Article 60. It said in regard to the relevance of negotiations between the parties: In so far as concerns the word “dispute”, the Court observes that, according to the tenor of Article 60 of the Statute, the manifestation of the existence of the dispute in a specific manner, as for instance by diplomatic negotiations, is not required. It would no doubt be desirable that a State should not proceed to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. But in view of the wording of the article, the Court considers that it cannot require that the dispute should have manifested itself in a formal way; in the Court’s view, it should be sufficient if the two Governments have in fact shown themselves as holding opposite views in regard to the meaning or scope of a judgment of the Court.442

Ibid. at pp. 38–9. Chorzów Factory Case (Interpretation) (1927), PCIJ Series A No. 13 at p. 10. See also the Application for Revision Case, 1985 ICJ Reports at p. 218. 441 442

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In the same case it addressed the concept of “meaning or scope of the judgment” found in Article 60: In order to realize the meaning of the expression “meaning or scope of the judgment” in Article 60 of the Statute, this expression should be compared with the terms of the preceding article of the Statute, which states that a decision of the Court has no binding force except between the Parties and in respect of the particular case decided. The natural inference to be drawn is that the second sentence of Article 60 was inserted in order, if necessary, to enable the Court to make quite clear the points which had been settled with binding force in a judgment, and on the other hand, that a request which has not that object does not come within the terms of this provision. In order that a difference of opinion should become the subject of a request for an interpretation under Article 60 of the Statute, there must therefore exist a difference of opinion between the Parties as to those points in the judgment in question which have been decided with binding force. That does not imply that it must be beyond dispute that the point the meaning of which is questioned is related to a part of the judgment having binding force. A difference of opinion as to whether a particular point has or has not been decided with binding force also constitutes a case which comes within the terms of the provision in question, and the Court cannot avoid the duty incumbent upon it of interpreting the judgment in so far as necessary in order to adjudicate upon such difference of opinion.443

(1927), PCIJ Series A No. 13 at p. 10. For a discussion of the power of the ICJ to interpret its judgments see Rosenne, 3 op. cit. note 15 pp. 1611 ff. 443

3 THE PERMANENT COURT OF INTERNATIONAL JUSTICE AND THE INTERNATIONAL COURT OF JUSTICE: ADVISORY JURISDICTION

The idea of a judicial body having advisory jurisdiction is not known to all national systems of law. The common law systems are unfamiliar with it. It is extant, however, in the civil law systems. In the international legal system a judicial tribunal does not have inherent advisory jurisdiction unless its constitutive instruments expressly give it that jurisdiction. Equally the advisory jurisdiction, if expressly attributed to a tribunal, will be confined to the express grant of jurisdiction and only to the extent and within the limits expressly established in such grant. The issues implied above have not been addressed by the World Court but it seems that the position reflected here flows automatically from the concept of the judicial function in public international law. The provisions of the ICJ Statute dealing with its advisory jurisdiction are found in Article 65: The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request.

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The ICJ (with the PCIJ) has developed a jurisprudence on its jurisdiction to give advisory opinions. In general, the PCIJ and ICJ have evolved an extensive jurisprudence on their advisory jurisdiction under their Statutes.1 The general practice of the Court is first to establish that it has competence to give a requested advisory opinion, and then to examine whether it should exercise or not the discretion it enjoys to give that opinion. As the Court has said: “The Court cannot exercise discretionary power if it has not first established that it has jurisdiction in the case in question: if the Court lacks jurisdiction, the question of exercising its discretionary power does not arise.”2 The Court also explained that Article 65(1) of the Statute was The ICJ has issued 25 advisory opinions as of 31 March 2008, including two in the Peace Treaties Case. 2 First Admissions Opinion, 1948 ICJ Reports at p. 61. See also the Second Admissions Opinion, 1950 ICJ Reports at p. 6, the Peace Treaties Opinion (First Phase), 1950 ICJ Reports at p. 71, the Reservations to the Genocide Convention Opinion, 1951 ICJ Reports at p. 19. The Court’s reference to “jurisdiction” is no doubt to its “competence”: see the UN Expenses Opinion, 1962 ICJ Reports at p. 153, the Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 234–6. On the advisory function of the PCIJ and ICJ see, e.g., de Visscher, “Les avis consultatifs de la Cour Permanente de Justice Internationale”, 26 Hague Recueil (1929) p. 23, Negulesco, “L’Evolution de la procedure des avis consultatifs de la Cour Permanente de Justice Internationale”, 57 Hague Recueil (1936) p. 1, Goodrich, “Advisory Opinions of the Permanent Court of International Justice”, AJIL (1938) p. 738, Fitzmaurice, “International Organizations and Tribunals 1947–1951”, in 1 The Law and Procedure of the International Court of Justice (1986) pp. 114–24, and “Questions of Jurisdiction, Competence and Procedure, 1951–1954”, in 2 ibid. pp. 564–75 (both reprinted from 27 BYIL (1950) p. 1 and 34 BYIL (1958) p. 1), Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice (1971), Pratap, The Advisory Jurisdiction of the International Court (1972), Pomerance, The Advisory Function of the International Court in the League and United Nations Eras (1973), Sugihara, “The Advisory Function of the International Court of Justice”, 18 Japanese Annual of International Law (1974) p. 23, Jiménez de Arechaga, “The Participation of International Organizations in Advisory Proceedings before the International Court of Justice”, 14 Communicazioni e Studi (1975) p. 411, Schwebel, “Authorizing the Secretary-General of the United Nations to Request Advisory Opinions of the International Court of Justice”, 78 AJIL (1984) p. 869, and “Was the Capacity 1

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more than an enabling provision. As the Court has repeatedly emphasized, the Statute leaves a discretion as to whether or not it will give an advisory opinion requested of it, once it has established its competence to do so.3

However, the two matters of competence and jurisdiction are not always kept separate. The Court has stated that by becoming a party to the Charter of the UN and Statute of the Court, a state has given its consent to the exercise of the advisory jurisdiction.4 Article 65(1) indicates then two of the elements of the advisory jurisdiction, namely that the request must be made by a duly authorized organ and that the Court must be asked to give an opinion on a “legal question”. Though the Statute and the Charter are silent on the matter, the Court has explained that an advisory opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an “organ of the United Nations”, represents its participation in the activities of the Organization, and, in principle, should not be refused.5

In giving an advisory opinion the Court makes judicial pronouncements which do not possess “binding force” as between parties, as to Request an Advisory Opinion Wider in the Permanent Court of International Justice than it is in the International Court of Justice”, 62 BYIL (1991) p. 77, Higgins “A Comment on the Current Health of Advisory Opinions”, in Lowe and Fitzmaurice (eds.), Fifty Years of the International Court of Justice (1996) p. 567, Rosenne, 2 The Law and Practice of the International Court 1920–2005 (2006), pp. 949 ff., Seidl-Hohenveldern, “Access of International Organizations to the International Court of Justice”, in Muller (ed.), The International Court of Justice (1997) p. 189. Rosenne’s work referred to above is of particular value. 3 The Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 234–6. 4 The Namibia Opinion, 1971 ICJ Reports at p. 23, the Western Sahara Opinion, 1975 ICJ Reports at p. 24. 5 The Peace Treaties Opinion (First Phase), 1950 ICJ Reports at p. 71. See also the UN Expenses Opinion, 1962 ICJ Reports at p. 155, the Privileges and Immunities Convention Opinion, 1989 ICJ Reports at p. 189.

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is the case in contentious cases. The Court also acts independently of any need for a second consent on the part of the states, as is required in contentious cases. Further, an advisory opinion is not final in the sense that a judgment is final, pursuant to Article 59 of the Statute. An advisory opinion is neither final nor binding as those terms are used in contentious cases. As was said in the Peace Treaties Opinion (First Phase), an advisory opinion is strictly advisory and an opinion.6 An advisory opinion does not, therefore, attract the obligation of compliance. However, by virtue of collateral agreements not affecting the manner in which the Court functions, there may be agreement to accept, as a form of judicial settlement, an advisory opinion as decisive and binding, either as an alternative to a judgment rendered after contentious proceedings or where no contentious jurisdiction exists. For example, in the Difference Relating to Immunity Opinion7 the Court observed that this was the first time that it had received a request for an advisory opinion that referred to Article VIII, Section 30, of the General Convention on Privileges and Immunities. That section provides for the exercise of the Court’s advisory function in the event of a difference between the UN and one of its members. The Court said that the existence of such a difference did not change the advisory nature of the Court’s function, which was governed by the terms Article 96 of the UN Charter and Article 65 of the Court’s Statute. A distinction, thus, had to be drawn between the advisory nature of the Court’s task and the particular effects that parties to an existing dispute may wish to attribute, in their mutual relations, to an advisory opinion of the Court, which, as such, had no binding force. These particular effects, extraneous to the Charter and the Statute which regulated the functioning of the Court, were derived from separate agreements, in that case Article VIII, Section 30, of the General Convention which provided that the opinion given by the Court shall be accepted as decisive by the parties. In fact, the Court

1950 ICJ Reports at p. 71. See also the UN Expenses Opinion, 1962 ICJ Reports at p. 168. 7 1999 ICJ Reports p. 62. See particularly ibid. at pp. 75–7. 6

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pointed out, that consequence had been expressly acknowledged by the UN and by Malaysia. In any case judicial pronouncements on the law, whether they have “binding force” in the particular case or not, have a distinct value as authoritative statements of the law. Before dealing with the Court’s competence and exercise of discretion it is useful to note that the limits of the function conferred on the Court in a given case to give an opinion are determined in advance, and outside the Court proceedings, by the organ making the request. This feature had been noted by the PCIJ. In the Interpretation of the Greco-Bulgarian Agreement (1927) Opinion, the Court explained that since the right to request opinions was given only to the two organs, namely the LN Assembly and the Council, mentioned in the Covenant, the Court was “therefore bound by the terms of the questions as formulated in this case by the Council”.8 In line with this, the PCIJ has refused to deal with a point which had been discussed in an earlier diplomatic phase, but which had not been specifically mentioned in the request.9 Similarly, the PCIJ regarded it as beyond its competence to “essay to consider controversial cases, actual or hypothetical, on which its opinion is not asked, and to intimate what, in its judgment, the decision on them should be”.10 The ICJ has also emphasized the need of keeping within the terms of the request.11 The Court will not, also, as in contentious cases, normally discuss points of law which are not necessarily connected with the reply to the question put.12 On the other hand, the terms of the request are not exclusively limitative in their relation to the Court’s exercise of its jurisdiction and, as

(1932), PCIJ Series A/B No. 45 at p. 87. See, e.g., the Exchange of Greek and Turkish Populations Opinion (1925), PCIJ Series B No. 10 at p. 17, the Danzig Legislative Decrees Opinion (1935), PCIJ Series A/B No. 65 at p. 54. 10 The Personal Work of Employer Opinion (1926), PCIJ Series B No. 13. 11 See the Second Admissions Opinion, 1950 ICJ Reports at p. 9, the South West Africa Voting Opinion, 1955 ICJ Reports at p. 72. 12 See the Jarwozina Opinion (1923), PCIJ Series B No. 8 at p. 25. See also the South West Africa Voting Opinion, 1955 ICJ Reports at p. 74. 8 9

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in the case of its contentious jurisdiction, the PCIJ has asserted its jurisdiction to consider other questions which are incidental to the questions put to it for an advisory opinion.13 There is no question that, being inherent in the quality of the Court as a judicial organ, the power to interpret any request for an advisory opinion may be exercised by the Court. The Court may establish both the object for which the question was put and the meaning to be given to the question itself. The Court is not obliged, should doubts arise over the intention of the requesting organ, to apply to the requesting organ for clarification.14 The problem has arisen but the Court has never acted in that way. In itself interpreting the meaning of the questions, the Court has paid attention to many different features, including the circumstances in which the request came to be made, the terms of the resolution embodying the request, discussions in the organ making it (including proposals for amendment which were not adopted and other procedural votes), and occasionally possible divergences between the English and French official versions of the resolution embodying the request. In interpreting the request the Court seems concerned to place such a meaning on the question as will bring the particular case, in the light of the circumstances as presented to the Court, within the scope of the judicial function as applied in advisory cases. The Court has invariably resorted to processes of liberal interpretation of the question when there was a possible discrepancy between the questions as framed and the actual legal questions as developed in the written and oral proceedings.15

See the German Settlers in Poland Opinion (1923), PCIJ Series B No. 6 at p. 26. 14 The request has been interpreted in e.g., the First Admissions Opinion, the Peace Treaties Opinion (First Phase), the South West Africa Voting Opinion, the Maritime Safety Committee Opinion, the UN Expenses Opinion, the Legality of Nuclear Weapons Opinion. 15 See ILOAT Judgments Opinion, 1956 ICJ Reports at p. 148 per Judge Read. 13

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(A) THE LIMITATION OF AN

REQUESTS MUST BE WITHIN ORGANIZATION’S ACTIVITIES

THAT

THE

SCOPE

Article 96(2) of the UN Charter which authorizes the requesting of opinions from the ICJ by international organizations refers to matters “arising within the scope of their activities” as being the subject of such requests. The implications of this requirement were first examined in the Privileges and Immunities Convention Opinion16 in relation to activities of a subsidiary organ of the UN. In this case, the request was formally made by ECOSOC. It concerned the activities of a subsidiary organ of a functional commission, the Commission on Human Rights, of ECOSOC – the Subcommission on Prevention of Discrimination and Protection of Minorities which initiated the action that led to the request. The Court had no difficulty in holding that the legal question on which its advice was requested was one arising within the scope of activities of ECOSOC and that the request met the conditions of Article 96(2) of the UN Charter. In the WHO Nuclear Weapons Opinion17 the Court decided that it could not give the requested opinion because asking the question was not within the scope of the activities of the organ making the request. The Court made a detailed analysis of the implications of the requirement of Article 96(2) and their impact on its competence to give an opinion. The first question of importance or, indeed, one of prime importance, was whether by duly adopting a resolution pursuant to the proper procedures the WHO could influence the issue whether the resolution was intra vires the organization. The Court took the position that procedural propriety and the question of ultra vires were two separate issues. As it said,

1989 ICJ Reports p. 177. 1996 ICJ Reports p. 66. On this case see C.F. Amerasinghe, “The Advisory Opinion of the International Court of Justice in the WHO Nuclear Weapons Case: A Critique”, 10 LJIL (1997) p. 3. 16 17

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Chapter 3. Advisory Jurisdiction the mere fact that a majority of States, in voting on a resolution, have complied with all the relevant rules of form cannot in itself suffice to remedy any fundamental defects, such as acting ultra vires. . . .18

Referring to the powers of organs vis-à-vis their competence, the Court said: as the Court has stated, each organ must, in the first place at least, determine its own jurisdiction. It was therefore certainly a matter for the World Health Assembly to decide on its competence – and, thereby, that of the WHO – to submit a request to the Court for an advisory opinion on the question under consideration, having regard to the terms of the Constitution of the Organization and those of the Agreement of 10 July 1948 bringing it into relationship with the United Nations. But likewise it is incumbent on the Court to satisfy itself that the conditions governing its own competence are met; through the reference made, respectively, by Article 96, paragraph 2, of the Charter to the ‘scope of activities’ of the Organization and by Article X, paragraph 2, of the Agreement of 10 July 1948 to its ‘competence’, the Court also finds itself obliged, in the present case, to interpret the Constitution of the WHO.19

There are some significant problems that may arise in connection with the question who may finally interpret the constitution of an organization or interpret with binding effect,20 but while it is correct that, in the first place at least, the relevant organ must interpret the constitution in the course of its work, there can be no doubt that the organ could not in the present case bind the Court and that the Court could decide, particularly with binding effect, for the purpose in hand, at any rate, how the constitution was to be interpreted. The Court also adverted to the action of the GA in supporting the request of the WHO. The Court concluded that such action did

1996 ICJ Reports at pp. 82–3. Ibid. 20 See C.F. Amerasinghe, Principles of the Institutional Law of International Organizations (2005) pp. 25–33. 18 19

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not confirm the competence of the WHO to request the opinion but merely lent political support to it. It may be asked what the position might have been, if the GA had, indeed, expressed the view that the WHO was within its competence. The better view is that this would not have bound the ICJ. The GA would merely have been a third party, expressing a point of view. Finality in the circumstances was the prerogative of the ICJ clearly, because the matter concerned its own competence to give an advisory opinion. Subject to an indication to the contrary, an international court, and particularly the ICJ, must have the competence to determine its own competence. The Court correctly regarded the issue of the competence of the WHO as a matter of constitutional interpretation. Among other things, it examined as a supportive source the practice of the WHO and came to the conclusion that the WHO had never regarded the issue of the legality of the use of nuclear weapons as a matter with which it had to concern itself. Practice is only a supportive source. Had the practice of the WHO been otherwise, would this have influenced the Court? Such practice may have been a factor to be taken into account but it could not of itself correct what was clearly ultra vires from other primary indications into an intra vires act. Were this not the position, organizations would by consistent subsequent practice virtually amend their constitutions.21 In interpreting the provisions of the Constitution of the WHO relating to the competence of the WHO the Court, applying the textual approach to interpretation, came to the conclusion that interpreted in accordance with their ordinary meaning, in their context and in the light of the object and purpose of the WHO Constitution, as well as of the practice followed by the Organization, the provisions of its Article 2 may be read as authorizing the Organization to deal with the effects on health of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in. 21

C.F. Amerasinghe, ibid., pp. 53–4.

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Chapter 3. Advisory Jurisdiction The question put to the Court in the present case relates, however, not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects. Whatever those effects might be, the competence of the WHO to deal with them is not dependent on the legality of the acts that caused them. Accordingly, it does not seem to the Court that the provisions of Article 2 of the WHO Constitution, interpreted in accordance with the criteria referred to above, can be understood as conferring upon the Organization a competence to address the legality of the use of nuclear weapons, and thus in turn a competence to ask the Court about that. . . . The causes of the deterioration of human health are numerous and varied; and the legal or illegal character of these causes is essentially immaterial to the measures which the WHO must in any case take in an attempt to remedy their effects. In particular, the legality or illegality of the use of nuclear weapons in no way determines the specific measures, regarding health or otherwise (studies, plans, procedures, etc.), which could be necessary in order to seek to prevent or cure some of their effects. Whether nuclear weapons are used legally or illegally, their effects on health would be the same. Similarly, while it is probable that the use of nuclear weapons might seriously prejudice the WHO’s material capability to deliver all the necessary services in such an eventuality, for example, by making the affected areas inaccessible, this does not raise an issue falling within the scope of the Organization’s activities within the meaning of Article 96, paragraph 2, of the Charter. The reference in the question put to the Court to the health and environmental effects, which according to the WHO the use of a nuclear weapon will always occasion, does not make the question one that falls within the WHO’s functions.22

The distinction between issues of legality and of effects of the use of nuclear weapons was well taken. The effects, and such matters as prevention of adverse effects, of the use of nuclear weapons could be addressed without determining the legality or illegality of their use. In this context the Court referred to a principle which has apparently not been discussed before. It was regarded as a qualifying

22

1996 ICJ Reports at pp. 76–7.

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principle of interpretation relating to the implication of powers. In explaining application of the principle of “speciality” the Court said: the Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them . . . It follows from the various instruments mentioned above that the WHO Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account not only of the general principle of speciality, but also of the logic of the overall system contemplated by the Charter. If, according to the rules on which that system is based, the WHO has, by virtue of Article 57 of the Charter, “wide international responsibilities”, those responsibilities are necessarily restricted to the sphere of public “health” and cannot encroach on the responsibilities of other parts of the United Nations system. And there is no doubt that questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the United Nations and lie outside that of the specialized agencies. Besides, any other conclusion would render virtually meaningless the notion of a specialized agency; it is difficult to imagine what other meaning that notion could have if such an organization need only show that the use of certain weapons could affect its objectives in order to be empowered to concern itself with the legality of such use.23

The principle which was said to have been referred to by the PCIJ was not really expressed by the PCIJ24 in these terms. Thus, the ICJ for the first time in effect gave expression to the principle in

Ibid. at pp. 78–9. Ibid., where the European Commission on the Danube Opinion (1927), PCIJ Series B No. 14 at p. 64, is cited as the source for the principle. 23 24

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the form in which it was stated. The Court also spoke of “the logic of the overall system” of the Charter which becomes an additional subsidiary principle of interpretation in the interpretation of the constitutions of the UN specialized agencies, among others. These two allied principles cannot be questioned either in their articulation or the manner in which they were applied in the circumstances. They could be useful as supplementary means of interpretation and, indeed, were properly resorted to by the Court in the case. If express terms of a constitution go against the principles or what might be clear and necessary implications point in the opposite direction, there will be an additional question raised of the conflict of treaties. The specific issue whether the question should have been answered (as not being outside the scope of WHO’s activities), because it touched upon the obligations of member states under the WHO Constitution, and therefore, was within the scope of WHO’s activities was a more difficult one. The Court dismissed the issue by simply stating virtually that the reference to the WHO Constitution did not make a difference.25 But in fact put in these terms the question does assume a different dimension. There are really two parts to the resolution of this issue. First, the question must be faced whether, if there were an obligation owed to the WHO by member states (under the Constitution) which would be violated by the use of nuclear weapons, the question put by the WHO would be within its competence. Secondly, if the WHO would be acting within its competence in these circumstances, the question arises how should the Court approach the issue whether the matter concerns obligations under the WHO Constitution. The Court did not approach the problem in this way, though in effect the refusal to give an opinion, because the WHO lacked competence to ask the question, may have been justified in the circumstances. It merely dismissed the issue out of hand, as has been seen. In answering the first question it needs to be considered initially whether, in order to determine what are the rights and obligations

25

1996 ICJ Reports at p. 82.

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between itself and a member state, the WHO has competence to request an advisory opinion as to whether, in producing a situation calling for action by the WHO, that member state may have breached its obligations under the Constitution of the WHO. In the course of carrying out its activities, the WHO can be confronted with the constraining effects of the conduct of a member state. If that conduct constitutes a breach by that member state of its obligations under the Constitution of the WHO, the latter could take or initiate appropriate remedial measures to remove any resulting impediment to the carrying out of its activities. Hence, a legal question as to whether there has been such a breach can arise within the scope of WHO’s activities. Thus, to seek an opinion on whether member states were in violation of an obligation under the WHO’s Constitution could have been within the WHO’s competence. The second question is more difficult. The Court’s analysis of the Constitution of the WHO led it to conclude that the WHO had no competence to address the question of the legality of the use of nuclear weapons. This meant that, under the Constitution of the WHO, a member state had no obligation not to use weapons, such as nuclear weapons, which could result in health and environmental effects, because, if a member state had such an obligation, the WHO would clearly have had competence to address the question of the legality of a use of weapons which might have occurred in breach of that constitutional obligation. It is only if a member state had no obligation under the Constitution of the WHO not to use weapons, such as nuclear weapons, which could result in health and environmental effects, that it could not, in using such weapons, be in breach of any obligation under that Constitution. In dealing with the question in this way and categorically concluding that member states had no obligation under the Constitution not to use weapons such as nuclear weapons the Court decided the question asked by WHO on the merits, although the issue was whether the Court had jurisdiction to examine the merits.26 Judge Shahabudeen makes a similar point in his dissenting opinion but not so obviously. On the other hand, his view led him to conclude that the Court had jurisdiction which was not correct: see ibid. at pp. 99 ff. 26

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The question may seem academic, because, first, in principle the holding that there was no violation of an obligation owed to the WHO by member states, because there were no obligations under the Constitution of the WHO not to use nuclear weapons, may have been correct, and, secondly, the finding that there was no such violation because of the absence of obligations implied that there was no prima facie evidence that there were such obligations. However, to be consistent, the Court should not have examined what were in fact the merits of the question, in finding that it had no jurisdiction in the matter. What the Court should have done was to examine, as a matter connected with jurisdiction, whether there was prima facie evidence that there could be an obligation relating to the use of nuclear weapons under the WHO Constitution. If there was, then this was sufficient for it to conclude that the question asked was within the scope of the WHO’s activities. If not, it became clear that the question was not within such scope. On the arguments presented to the Court and by an examination of the WHO Constitution it was possible to conclude that there was no prima facie evidence that the obligation contended for relating to nuclear weapons arose under that Constitution. The question whether there was an obligation not to use nuclear weapons and whether that obligation had been breached, if there were one, would not have been answered as such, as it was a question on the merits, though in effect the answer given by the Court would have been the same as holding that there was no constitutional obligation with the specified content. This is the manner in which the question should have been handled to avoid a finding on the merits. The finding that the Court had no jurisdiction was correct not for the reason given but because the answer to the proper question relating to constitutional obligations was clear, that there was no prima facie evidence of the required obligations. In the Legality of Nuclear Weapons Opinion the Court’s jurisdiction was challenged again on the ground that the GA and the SC were not entitled to ask for opinions on matters totally unrelated to their activities, and that as in the case of other organs and the specialized agencies, they could ask for an advisory opinion on a legal question only within the scope of their activities. The Court rejected the contention holding that

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in the present case, the General Assembly has competence in any event to seise the Court. Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to “any questions or any matters” within the scope of the Charter. Article 11 has specifically provided it with a competence to “consider the general principles . . . in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments”. Lastly, according to Article 13, the General Assembly “shall initiate studies and make recommendations for the purpose of . . . encouraging the progressive development of international law and its codification”.27

In the Peace Treaties Opinion28 and the Reservations to the Genocide Convention Opinion29 the Court’s competence also arose. In those cases it was argued on various grounds that the action of the GA in dealing with the agenda item out of which the requests emerged, or the decision to request the opinion itself, were ultra vires the GA. In the former case that view was based on the contention that, in dealing with the question of human rights and fundamental freedoms in what were then ex-enemy states, the GA was contravening the domestic jurisdiction provisions of the Charter, a contention which had been rejected in the GA. Another related argument put forward was that no right to control the execution of its provisions was conferred by the Peace Treaty on the GA. In the latter case it was argued that the request for the opinion constituted an inadmissible interference by the GA and by states hitherto strangers to the Convention, as only states which are parties to the Convention are entitled to interpret it or to seek an interpretation of it. The Court answered those contentions in different ways in the two cases. The object of the request in the former case was directed solely to obtaining from the Court certain clarifications of a legal character regarding the applicability of the procedure for the settlement

27 28 29

1996 ICJ Report at pp. 232–3. (First Phase), 1950 ICJ Report p. 65. 1951 ICJ Reports p. 15.

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of disputes under the terms of the Peace Treaties which, for this purpose, conferred certain functions upon the SG or the UN. As to the right of the GA to concern itself with this matter, having regard to the domestic jurisdiction clause, the Court agreed with the view expressed by the GA in justifying itself its own resolution on the matter, namely the basis of Article 55 of the Charter. For the Court the interpretation of the terms of a treaty for the purpose concerned could not be considered as a question essentially within the domestic jurisdiction of a state. It was a question of international law which by implication was within the scope of the GA’s activities to consider.30 The Court then held that, because the matter was not within the domestic jurisdiction of states, the Court itself was not contravening the provisions of Article 2(7) of the Charter in declaring itself competent.31 In the Reservations to the Genocide Convention Opinion the Court pointed out that not only did the GA take the initiative in respect of the Genocide Convention, draw up its terms and open it for signature and accession, but that express provisions of the Convention associated the GA with the life of the Convention, and that the GA had actually associated itself with it by certain actions it had taken. In these circumstances it held that there could be no doubt that the precise determination of the conditions for participation in the Convention constituted a permanent interest of direct concern to the United Nations which had not disappeared with the entry into force of the Convention. The Court also indicated that the power of the GA to request an advisory opinion in no way impaired the rights of the parties to the Convention in the matter of its interpretation. This right was independent of the GA’s power. Furthermore, states which were parties to the Convention could invoke, if need be, the contentious jurisdiction of the Court in accordance with the Convention.32

30 31 32

The Court did not exactly express itself in this way. 1950 ICJ Reports at p. 71. 1951 ICJ Reports at pp. 19–20.

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In both cases the Court did not deny that valid arguments could not be advanced against the jurisdiction of the Court based upon an alleged incompetence of the GA to deal with the matter which led it to request the advisory opinion. The Court did decide that the arguments were inapplicable in these two cases. The matter was clearly regarded as one concerned with ultra vires in both cases. These cases emphasize in a general way that the Court must be satisfied, in the process of establishing its own competence, that the organ requesting the opinion was competent to do so. The views of the UNGA on the question of a specialized agency’s competence cannot enlarge that competence or the jurisdiction of the Court.33 The question arose in the WHO Nuclear Weapons Opinion. The resolution of the GA when it made the request in the Legality of the Nuclear Weapons Opinion contained a preamble in which the GA had noted with approval the request of the World Health Assembly (WHO). On the effect of this preamble, the Court said: Nor can the Court accept the argument that the General Assembly of the United Nations, as the source from which the WHO derives its power to request advisory opinions, has . . . confirmed that competence of that organization to request an opinion on the question submitted to the Court . . . In expressing this opinion, the General Assembly clearly reflected the wish of a majority of States that the Assembly should lend its political support to the action taken by the WHO, which it welcomed. However, the Court does not consider that, in doing so, the General Assembly meant to pass upon the competence of the WHO to request an opinion on the question raised. Moreover, the General Assembly could evidently not have intended to disregard the limits within which Article 96, paragraph 2, of the Charter allows it to authorize the specialized agencies to request opinions from the Court – limits which were reaffirmed in Article X of the relationship agreement of 10 July 1948.34

The same applies to the organization’s or organ’s view on the propriety of the Court’s giving an opinion. 34 1996 ICJ Reports at pp. 83–4. 33

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Chapter 3. Advisory Jurisdiction (B) THE REQUIREMENT

THAT THE

QUESTION

BE

LEGAL

The decision of the requesting organ to avail itself of Article 96 of the Charter and to make a request for an advisory opinion may imply that it regards the question put as a legal question. However, that determination of the characteristic of the question is not binding on the Court. Article 65 of the Court’s Statute permits the Court to give an advisory opinion on “any legal question”, and therefore it has to satisfy itself that it has a legal question before it.35 This is a matter of its competence. In the UN Expenses Opinion the Court apparently differentiated between the provisions of Article 96 of the UN Charter and Article 65 of its Statute by making a distinction between the right of an organ to request an opinion and the competence of the Court to give the opinion requested. It pointed out that in accordance with Article 65 of its statute, the Court can give an advisory opinion only on a legal question. If the question is not a legal one, the Court has no discretion in the matter; it must decline to give the opinion requested.36

But if the question was a legal one, then the question of the Court’s discretion might arise. The Court did not refer to Article 96 of the Charter but the implication was that the issue of “legal question” under the Statute’s Article 65 was not finally settled by the organ making a decision to request an opinion under Article 96. (i) Abstract or Political Nature Most of the requests for advisory opinions have turned on the interpretation of the Charter or of other legal texts. In this connection The PCIJ Statute referred to “any dispute or question”, not to a “legal question”. 36 1962 ICJ Reports at p. 155. On the aspects of this case pertaining to advisory jurisdiction see C.F. Amerasinghe, “The United Nations Expenses Case – A Contribution to the Law of International Organization”, 4 IJIL (1964) at pp. 226–32. 35

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the Court has stated that it cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision.37 This includes the application of a treaty to a given situation of fact.38 In the Western Sahara Opinion the Court explained its understanding of the concept of “legal question”: The questions submitted . . . have been framed in terms of law and raise problems of international law . . . These questions are by their very nature susceptible of a reply based on law; indeed, they are scarcely susceptible of a reply otherwise than on the basis of law. In principle, therefore, they appear to the Court to be questions of a legal character.39

The ICJ has also addressed the issue of “lack of clarity” in the formulation of the questions put to it which could affect the nature of the question as a legal question. The Court recently stated in the Construction of the Wall Opinion: As regards the alleged lack of clarity of the terms of the General Assembly’s request and its effect on the “legal nature” of the question referred to the Court, the Court observes that this question is directed to the legal consequences arising from a given factual situation considering the rules and principles of international law . . . The question . . . has thus, to use the Court’s phrase in its Advisory Opinion on Western Sahara, “been framed in terms of law and raise[s] problems of international law”; it is by its very nature susceptible of a reply

See, e.g., the First Admissions Opinion, 1948 ICJ Reports at p. 61, the Second Admissions Opinion, 1950 ICJ Reports at p. 6, the UN Expenses Opinion, 1962 ICJ Reports at p. 157. 38 See, e.g., the Peace Treaties Opinion (First Phase), 1950 ICJ Reports at p. 71, the UN Headquarters Agreement Opinion, 1987 ICJ Reports at p. 26, the Privileges and Immunities Convention Opinion, 1989 ICJ Reports at p. 187. 39 1975 ICJ Reports at p. 18. See also the WHO Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 73–4, the Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 233–4, Construction of the Wall Opinion, 2004 ICJ Reports at p. 155. 37

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Chapter 3. Advisory Jurisdiction based on law; indeed it is scarcely susceptible of a reply otherwise than on the basis of law. In the view of the Court it is indeed a question of a legal character . . . The Court would point out that lack of clarity in the drafting of a question does not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and such necessary clarifications of interpretation have frequently been given by the Court.40

The contention that in the concrete case the question was not a “legal question” within the contemplation of the Charter and Statute has been raised in relation to advisory opinions concerned with the interpretation of the Charter. In that connection, the Court has proceeded by establishing that the Charter is an international treaty, that the interpretation of an international treaty comes within the normal scope of the exercise of the judicial function, and that there were no particular reasons to prevent the Court from performing that normal judicial function in relation to the Charter in the concrete case. The Court has also stressed that, because it can answer any legal question put to it by the GA, the Court’s determination that it was asked an abstract question does not lead to the conclusion that it may not answer the question. The Court has indicated very clearly that the fact that the question does not relate to a specific dispute should not lead the Court to decline to give the opinion requested.41 The most important advisory opinions on all these aspects are the First Admissions Opinion42 and the Second Admissions Opinion.43 In those cases the Court also held that if the question was one which

Ibid. at p. 153. See the Legality of Nuclear Weapons Opinion, ibid. at pp. 236–7. 42 1948 ICJ Reports at p. 61. See also the Second Admissions Opinion, 1950 ICJ Reports at p. 6, UN Expenses Opinion, 1962 ICJ Reports at p. 155, Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 233–4. 43 1950 ICJ Reports at pp. 25–6. The answer in the operative part of the opinion turned out, in a sense, not to be exactly an answer to the question put to the Court. 40 41

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came within the normal scope of the judicial function, it was not concerned with the motives which prompted the decision to make the request. However, the Court has consistently regarded the object of the request, as it appears in the resolution containing the request, a matter of concern. This object is frequently employed as a guide to the interpretation of the question. In the First Admissions Opinion the Court explained its approach to abstract questions, practical questions and motives: It has . . . been contended that the question put must be regarded as a political one and that, for this reason, it falls outside the jurisdiction of the Court. The Court cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision. It is not concerned with the motives which may have inspired this request, nor with the considerations which, in the concrete cases submitted for examination to the Security Council, formed the subject of the exchange of views which took place in that body. It is the duty of the Court to envisage the question submitted to it only in the abstract form which has been given to it; nothing which is said in the present opinion refers, either directly or indirectly, to concrete cases or to particular circumstances. It has also been contended that the Court should not deal with a question couched in abstract terms. That is a mere affirmation devoid of any justification. According to Article 96 of the Charter and Article 65 of the Statute, the Court may give an advisory opinion on any legal question, abstract or otherwise. Lastly, it has also been maintained that the Court cannot reply to the question put because it involves an interpretation of the Charter. Nowhere is any provision to be found forbidding the Court, “the principal organ of the United Nations”, to exercise in regard to Article 4 of the Charter, a multilateral treaty, an interpretive function which falls within the normal exercise of its judicial powers.44

While a question may be abstract, on the other hand, the Court may in a given situation have considerable regard to the circumstances 44

1948 ICJ Reports at p. 61.

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prevailing at the time, as it did in the South West Africa Committee Opinion.45 That the subject-matter may involve political ideas does not prevent the question from being a legal one, provided it is legal according to the required criteria. The principle emerged from the First Admissions Opinion46 and was implicitly affirmed in the UN Expenses Opinion.47 (ii) Object and Purpose In regard to object and purpose, in the Western Sahara Opinion the Court indicated that its advisory function is to give an opinion based on law, “once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and, consequently, are not devoid of object or purpose”.48 If the issues in question have become moot, the Court has no competence to give an opinion. This principle is comparable to the one that prevails in regard to the Court’s competence in contentious cases. The issue of lack of useful purpose was addressed in the Construction of the Wall Opinion. In that case the ICJ was in addition faced with the argument that the GA of the UN would not need the opinion because it had already answered the question put to the Court. The Court recalled in its opinion that in line with its jurisprudence the purpose of advisory opinions was to furnish the requesting organs with the elements of law necessary for them in the action they take, stating

1956 ICJ Reports p. 23. See also the South West Africa Voting Opinion, 1955 ICJ Reports p. 67. 46 1948 ICJ Reports at p. 61. 47 1962 ICJ Reports at p. 151. The implication arises because Judge Koretsky, dissenting, ibid. at p. 254, in concluding that there was no jurisdiction, adverted to the fact that the opinion “might be used as an instrument of political struggle”. Insofar as the Court found that the Court was competent, it rejected this notion as relevant to its competence. 48 1975 ICJ Reports at p. 37. 45

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221

the Court cannot decline to answer the question posed based on the ground that its opinion would lack any useful purpose. The Court cannot substitute its assessment of the usefulness of the opinion requested for that of the organ that seeks such opinion, namely the General Assembly. Furthermore, and in any event, the Court considers that the General Assembly has not yet determined all the possible consequences of its own resolution. The Court’s task would be to determine in a comprehensive manner the legal consequences of the construction of the wall, while the General Assembly – and the Security Council – may then draw conclusions from the Court’s findings.49

(iii) The Relevance of Hypothetical Answers That an abstract question may involve the possibility of hypothetical answers is not a relevant consideration in determining the competence of the Court over a legal question, though the Court will not indulge in hypothesizing. In the Legality of Nuclear Weapons Opinion the Court explained: In contending that the question put to the Court is vague and abstract, some States appeared to mean by this that there exists no specific dispute on the subject-matter of the question. In order to respond to this argument, it is necessary to distinguish between requirements governing contentious procedure and those applicable to advisory opinions. The purpose of the advisory function is not to settle – at least directly – disputes between States, but to offer legal advice to the organs and institutions requesting the opinion . . . The fact that the question put to the Court does not relate to a specific dispute should consequently not lead the court to decline to give the opinion requested. Moreover, it is the clear position of the Court that to contend that it should not deal with a question couched in abstract terms is a “mere affirmation devoid of any justification”, and that “the Court may give an advisory opinion on any legal question, abstract or otherwise” . . . Certain States have however expressed the fear that the abstract nature of the question might lead the Court to make hypothetical or

49

2004 ICJ Reports at p. 163.

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Chapter 3. Advisory Jurisdiction speculative declarations outside the scope of its judicial function. The Court does not consider that, in giving an advisory opinion in the present case, it would necessarily have to write “scenarios”, to study various types of nuclear weapons and to evaluate highly complex and controversial technological, strategic and scientific information. The Court will simply address the issues arising in all their aspects by applying the legal rules relevant to the situation.50

(iv) Concrete Questions In the ILOAT Judgment Opinion5l and the IMCO Opinion,52 both put to the Court on the basis of Article 96, paragraph 2, of the Statute, the questions clearly concerned concrete situations. In the UN Expenses Opinion the Court, after analysing the request, concluded that it was asked to give its opinion on a concrete legal question.53 Both the UN Headquarters Agreement Opinion and the Privileges and Immunities Convention Opinion54 concerned very concrete matters which, although contentious, were contentious between a state and the UN. In the first of these, the question itself was whether the USA was under an obligation to proceed to arbitration. The concreteness of the answer required does not make the question any less legal and the Court has not held itself incompetent in these circumstances. (v) Questions of Fact In the Namibia Opinion, the Court, referring to Article 96 of the UN Charter, stated that the contingency that there may be factual issues underlying the question posed does not alter its character as a legal question as envisaged in that provision of the Charter. It said:

50 51 52 53 54

1996 1956 1960 1962 1988

ICJ Reports at pp. 236–7. ICJ Reports at p. 77. ICJ Reports at p. 150. ICJ Reports at pp. 155–6. ICJ Reports at p. 12, and 1989 ICJ Reports at p. 174, respectively.

The Requirement that the Question be Legal

223

The reference in this provision to legal questions cannot be interpreted as opposing legal factual issues. Normally, to enable a court to pronounce on legal questions, it must also be acquainted with, take into account and, if necessary, make findings as to the relevant factual issues.55

In the Western Sahara Opinion, a case in which facts presented difficulties, the Court looked at this matter from the point of view both of Article 96 of the Charter and of Article 65 of its Statute. It said: a mixed question of law and fact is none the less a legal question within the meaning of Article 96, paragraph 1, of the Charter and Article 65, paragraph 1, of the Statute . . . [T]o assert that an advisory opinion deals with a legal question within the meaning of the Statute only when it pronounces directly upon the rights and obligations of the States or parties concerned, or upon the conditions which, if fulfilled, would result in the coming into existence, modification or termination of such a right or obligation, would be to take too restrictive a view of the Court’s advisory jurisdiction . . .56

There is also the question, that may arise in connection with the jurisdiction of the Court to give an opinion, whether it has sufficient facts before it to enable it to give an answer to the question put to it, and whether those facts are disputed or not. The Court’s approach to the problem was explained in the Construction of the Wall Opinion, in which it stated: Several participants in the proceedings have raised the . . . argument that the Court should decline to exercise jurisdiction because it does not have at its disposal the requisite facts and evidence to enable it to reach its conclusions. Israel has contended, referring to the Advisory Opinion on the [Peace Treaties Opinion], that the Court could not

55 56

1971 ICJ Reports at p. 27. 1975 ICJ Reports at pp. 19–20.

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Chapter 3. Advisory Jurisdiction give an opinion on issues which raise questions of fact that cannot be elucidated without hearing all the parties to the conflict. According to Israel, if the Court decided to give the requested opinion, it would be forced to speculate about essential facts and make assumptions about arguments of law. More specifically, Israel has argued that the Court could not rule on the legal consequences of the construction of the wall without enquiring, first into the nature and scope of the security threat to which the wall is intended to respond and the effectiveness of that response, and second, into the impact of the construction for the Palestinians. This task, which already would be difficult in a contentious case, would be further complicated in an advisory proceeding, particularly since Israel alone possesses much or the necessary information and has stated that it chooses not to address the merits. Israel has contended that the Court, confronted with factual issues impossible to clarify in the present proceedings, should use its discretion and decline to comply with the request for an advisory opinion. The Court observes that the question whether the evidence is available to it is sufficient to give an advisory opinion must be decided in each particular case. In its Opinion concerning the [Peace Treaties Opinion] and again in its Opinion on the Western Sahara, the Court made it clear that what is decisive in these circumstances is “whether the Court has before it sufficient information and evidence to enable it to arrive at a judicial conclusion upon any disputed question of fact the determination of which is necessary for it to give an opinion in conditions compatible with its judicial character” . . . Thus, for instance, in the proceedings concerning the Status of Eastern Carelia, the Permanent Court of International Justice decided to decline to give an Opinion inter alia because the question put “raised a question of fact which could not be elucidated without hearing both parties” . . . In the present instance, the Court has at its disposal the report of the Secretary-General, as well as a voluminous dossier submitted by him to the Court . . . The dossier includes several reports based on on-site visits by special rapporteurs and competent organs of the United Nations. The Secretary-General has further submitted to the Court a written statement updating his report, which supplemented the information contained therein. Moreover, numerous other partici-

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pants have submitted to the Court written statements which contain information relevant to a response to the question put by the General Assembly. The Court notes that Israel’s written statement, though limited to issues of jurisdiction and judicial propriety, contained observations on other matters, including Israel’s concerns in terms of security, and was accompanied by corresponding annexes; many other documents issued by the Israeli Government on those matters are in the public domain. The Court finds that it has sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly. Moreover, the circumstance that others may evaluate and interpret these facts in a subjective or political manner can be no argument for a Court of law to abdicate its judicial task. There is therefore in the present case no lack of information such as to constitute a compelling reason for the Court to decline to give the requested opinion.57

(C) SPECIFIC TERMS

OF

REFERENCE

There may be circumstances in which the Court’s advisory jurisdiction is further defined in the relevant legal instruments. Then the terms of those instruments will have a bearing on the competence of the Court and limit its competence, if that is the case. Thus, in the ILOAT Judgments Opinion the ICJ found that one question put to it was outside its special jurisdiction, defined in the Statute of the ILOAT, which was applicable in the case.58 In such a situation the Court simply had no competence in respect of the question. (D) THE JUDICIAL CHARACTER

OF THE

COURT

The PCIJ held that where the request for an opinion related to a legal question in a dispute actually pending between two states, the power of the Court to give the advisory opinion could not be exercised without the consent of the states parties to the dispute, 57 58

2004 ICJ Reports at pp. 160 ff. 1956 ICJ Reports at p. 99.

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and that since that consent was not forthcoming, the Court could not give the opinion.59 That view was based upon the general principle of international law concerning the consensual basis of the Court’s jurisdiction in contentious judicial proceedings. The principle has been considered to emanate from Article 68 of the Statute which provides that “in the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable”. It is not absolutely clear whether the Court regards the principle as relating to competence or to the propriety of exercising a discretion to give an opinion. Insofar as it is not specifically referred to in the Statute of the ICJ or the Charter as a condition for competence, it could conceivably be treated as relating to propriety and discretion.60 However, because the principle relates to an inherent aspect of the judicial function, even though it is opinions that are given and not judgments in contentious cases, and because of the provisions of Article 68 of the Statute, it should properly be regarded as a matter pertinent to competence. Of the principle in the Monetary Gold Case which was discussed in the previous Chapter61 and was found to emanate from inherent limitations to competence flowing from the judicial character of the Court’s function, it is difficult to see why the principle in the Eastern Carelia Opinion should not be related to the same source. They both concern the rights of a party which has not consented to the adjudication of a particular legal dispute as such. It is true that the principle in the former case related specifically to competence in contentious proceedings, while that in the latter opinion pertained to the exercise of jurisdiction in giving advisory opinions. But the

The Eastern Corelia Opinion (1923), PCIJ Series B No. 5 at p. 29. In the Peace Treaties Opinion (First Phase) the ICJ specifically related the requirements of Article 68 to a discretion and not to competence: 1950 ICJ Reports at p. 72. See also the Privileges and Immunities Convention Opinion, 1989 ICJ Reports at p. 188. 61 See above pp. 50 ff. 59 60

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latter principle was applied to advisory opinions, because it had some bearing on consent to what for all practical purposes had turned out to be contentious proceedings, although they did not take that form. Thus, it would be reasonable to infer that its relationship to the absence of consent would have made the latter principle one that concerned competence rather than discretionary authority just as the former principle was related to competence, because it was based on consent or the absence of it. In fact, the manner in which the Court has dealt with the issue, when it has arisen, of the judicial character of the Court in general and the implications in this connection of Article 68 of the Statute, has not been very clear. In two of the seven cases in which the strict question of the consequences of the judicial character of the ICJ has been put in issue, it has been treated clearly as a matter which concerns entirely the permissive nature of the advisory function and, therefore, the discretionary authority of the Court.62 In two cases the issue was dealt together with other issues which clearly pertain to competence in generally answering the question whether the Court should comply with the request for an opinion.63 In the Reservations to the Genocide Convention Opinion it is not clear how the Court regarded the issue.64 On the other hand, in two cases, the Review of Judgment No. 273 Opinion65 and the Privileges and Immunities Convention Opinion66 the Court has decided the issue clearly as one of compétence per se. There is support here for treating the matter as one of compétence and not as one pertaining to the Court’s general discretionary authority to give advisory opinions, in spite

The Peace Treaties Opinion (First Phase), 1950 ICJ Reports at p. 72, the Western Sahara Opinion, 1975 ICJ Reports at pp. 22–7. See on the former case the Note by J.-F. Lalive in 77 JDI (1950) p. 1246. 63 The ILOAT Judgements Opinion, 1956 ICJ Reports at p. 86, the Review of Judgment No. 158 Opinion, 1973 ICJ Reports at pp. 18 ff. 64 1951 ICJ Reports at p. 189. 65 1982 ICJ Reports at p. 337. 66 1989 ICJ Reports at p. 189. The matter was raised as an objection to compétence. 62

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of the Peace Treaties Opinion and the Western Sahara Opinion in which it was unequivocally treated as one pertaining to the Court’s discretionary authority.67 The Eastern Carelia principle has been explained in the Legality of Nuclear Weapons Opinion in such a way that is has an apparently narrower application than seems to have been expressly defined in the Eastern Carelia Opinion. In the Legality of Nuclear Weapons Opinion the Court said: The Permanent Court of International Justice took the view on only one occasion that it could not reply to a question put to it, having regard to the very particular circumstances of the case, among which were that the question directly concerned an already existing dispute, one of the States parties to which was neither a party to the Statute of the Permanent Court nor a member of the League of Nations, objected to the proceedings, and refused to take part in any way (Status of Eastern Carelia, P.C.I.J., Series B. No. 5).68

The Court made a point of the fact that one of the states party to the dispute (i) was not a party to the Statute of the PCIJ, (ii) was not a member of the UN and (iii) refused to take part in any way in the proceedings. If the principle is confined to the extent implied in this case, it would have a very narrow application. The broader principle, however, has been discussed by the ICJ in the Peace Treaties Opinion (First Phase),69 the Western Sahara Opinion,70 and the Privileges and Immunities Convention Opinion,71 in order to establish how it could be applied to different situations involv-

Fitzmaurice, 1 op. cit. note 4 at p. 122 and Rosenne, 2 op. cit. note 2 pp. 1013 ff. take the view that the matter of judicial character relates to the discretion to refuse opinions. No writer, unlike the present author, takes the categorical view that the matter is one of competence. 68 1996 ICJ Reports at pp. 235–6. 69 1950 ICJ Reports at p. 65. 70 1975 ICJ Reports at pp. 22–7. 71 1989 ICJ Reports at p. 177. 67

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ing states and international organizations. It is also important that in the Treaty of Lausanne Opinion the PCIJ had made it plain that the mere absence of the consent of one of the states directly concerned was not in itself sufficient to prevent the rendering of an advisory opinion on a question of procedure and the interpretation of the Covenant of the UN.72 In the ILOAT Judgment Opinion73 the related issue of “equality of arms” between parties to a dispute was discussed in the context of the judicial nature of the Court’s function, the problem being one specifically touching upon the broad principle of contentious adjudication, audi alteram partem. In the Peace Treaties Opinion (First Phase) the Court first explained the difference between the principles governing contentious proceedings and those applicable to advisory opinions. It admitted that the consent of states parties to a dispute is the basis of the Court’s jurisdiction in contentious cases, but pointed out that this was not so in advisory proceedings, even where the request related to a legal question actually pending between states. The reason given for this was that the Court’s reply was only one of an advisory character and as such had no binding force, so that no state, whether a member of the UN or not, could prevent the giving of an advisory opinion which the UN considered to be desirable in order to obtain enlightenment as to the course of action it should take. The Court emphasized, inter alia, its duty to participate in the activities of the organization. It was also aware that there were limits to this duty deriving from the Court’s position as the principal judicial organ. Recognizing that it was on this account that its authority to answer the request had been challenged, it explained the implications of Article 65 of the Statute. It said: Article 65 of the Statute is permissive. It gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the Request. In the opinion of the Court, the circumstances of the present case are profoundly different

72 73

(1925), PCIJ Series B No. 12. 1956 ICJ Reports at p. 77.

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Chapter 2. Advisory Jurisdiction from those which were before the Permanent Court of International Justice in the Eastern Carelia case . . . when that Court declined to give an Opinion because it found that the question put to it was directly related to the main point of a dispute actually pending between two States, so that answering the question would be substantially equivalent to deciding the dispute between the parties, and that at the same time it raised a question of fact which could not be elucidated without hearing both parties. As has been observed, the present Request for an Opinion is solely concerned with the applicability to certain disputes of the procedure for settlement instituted by the Peace Treaties, and it is justifiable to conclude that it in no way touches the merits of those disputes. Furthermore, the settlement of these disputes is entrusted solely to the Commissions provided for by the Peace Treaties. Consequently it is for these Commissions to decide upon any objections which may be raised to their jurisdiction in respect of any of these disputes, and the present Opinion in no way prejudges the decisions that may be taken on those objections. It follows that the legal position of the parties to these disputes cannot be in any way compromised by the answers that the Court may give to the Questions put to it. It is true that Article 68 of the Statute provides that the Court in the exercise of its advisory functions shall further be guided by the provisions of the Statute which apply in contentious cases. But according to the same article these provisions would be applicable only “to the extent to which it recognizes them to be applicable”. It is therefore clear that their application depends on the particular circumstances of each case and that the Court possesses a large amount of discretion in the matter. In the present case the Court is dealing with a Request for an Opinion, the sole subject of which is to enlighten the General Assembly as to the opportunities which the procedure contained in the Peace Treaties may afford for putting an end to a situation which has been presented to it. That being the object of the Request, the Court finds in the opposition to it made by Bulgaria, Hungary and Romania no reason why it should abstain from replying to the Request.74

1950 ICJ Reports at p. 72. The general principle of respect for the judicial character of the Court was referred to with approval in the UN Expenses Opinion, where the Court said that it had always been guided by that principle: 1962 ICJ Reports at p. 155. 74

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The case contains a good explanation of the juridical principle involved. In the Privileges and Immunities Convention Opinion Romania had made a reservation regarding the jurisdiction of the Court in its instrument of accession to the General Convention on the Privileges and Immunities of the United Nations of 1946. In the advisory proceedings Romania argued that because of that reservation the Court could not give the advisory opinion without its consent. The Court simply said in answer: The jurisdiction of the Court under Article 96 of the Charter and Article 65 of the Statute, to give advisory opinions on legal questions, enables United Nations entities to seek guidance from the Court in order to conduct their activities in accordance with the law. These opinions are advisory, not binding. As the opinions are intended for the guidance of the United Nations, the consent of States is not a condition precedent to the competence of the Court to give them.75

Having dealt with the issue of competence in the context of the argument, the Court considered whether the absence of Romania’s consent had any effect on the propriety of the Court’s giving the opinion. It said: It is well settled in the Court’s jurisprudence that when a request is made under Article 96 of the Charter by an organ of the Untied Nations or a specialized agency for an advisory opinion by way of guidance or enlightenment on a question of law, the Court should entertain the request and give its opinion unless there are “compelling reasons” to the contrary. . . . In view of the emphasis placed by Romania on its reservation to article 30 of the General Convention and the absence of its consent to the present request for advisory opinion, the Court must consider whether in this case “to give a reply would have the effect of circumventing the principle that the State is not obliged to allow its disputes to be submitted to judicial settlement without its consent”.

75

1989 ICJ Reports at p. 188.

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Chapter 2. Advisory Jurisdiction The Court considers that in the present case to give a reply would have no such effect. Certainly the Council, in its resolution requesting the opinion, did conclude that a difference had arisen between the United Nations and the Government of Romania as to the applicability of the Convention to Mr. Dumitru Mazilu. But this difference, and the question put to the Court in the light of it, are not to be confused with the dispute between the United Nations and Romania with respect to the application of the General Convention in the case of Mr. Mazilu. In the present case, the Court thus does not find any compelling reasons to refuse an advisory opinion.76

The distinction between “applicability” and “application” is subtle and somewhat inconspicuous. However, what the Court did was to interpret the Convention in the light of the situation presented to it and not to apply it to the facts of the situation to settle the dispute. It was merely stating principles of law emanating from its understanding of the provisions of the Convention. While this distinction was tenable in order to enable it to give an opinion in that case “by way of guidance or enlightenment on a question of law” to assist the UN, there may be situations involving even international organizations in which the Eastern Carelia principle would apply so as to exclude the rendering of an opinion.77 In the recent Construction of a Wall Opinion which concerned issues which had arisen between a state, on the one hand, and an entity which was not a State, on the other, the Court reiterated what it had said in previous cases with regard to “compelling reasons” for refusing to give an opinion: Given its responsibilities as the “principal judicial organ” of the United Nations (Article 92 of the Charter), the Court should in principle not Ibid. at p. 191. It must be emphasized that immunities under the Convention in question cannot be regarded as essentially a matter of the internal law of the UN: contra Rosenne, 2 op. cit. note 2 p. 983. Therefore, the case cannot be explained as creating an exception because of its being concerned with internal law. Moreover, the Court clearly did not take the view that the matter was one of internal law which, therefore, merited an exception being made. 76 77

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decline to give an advisory opinion. In accordance with its consistent jurisprudence [la jurisprudence constante], only “compelling reasons” should lead the Court to refuse its opinion . . . These considerations do not release the Court from the duty to satisfy itself, each time it is seized of a request for an opinion, as to the propriety of the exercise of its judicial function, by reference to the criterion of “compelling reasons” as cited above. The Court will accordingly examine in detail and in the light of its jurisprudence each of the arguments presented to it in this regard.78

The Court did not consider the state responsibility aspect in that case and further observed that the lack of consent to the Court’s contentious jurisdiction by states interested or involved in the situations subject of its advisory opinion had no relevance to the Court’s advisory compétence.79 In the ILOAT Judgments Opinion the Court examined the question whether there was anything that would conflict with its judicial character in general, if it gave an opinion in the case. Article 34(1) of the Statute80 was the source of the difficulty. Because none other than states could be parties before the Court, there was no way in which the parties to the case before the ILOAT could appear as parties before the Court. There resulted before the Court a procedural inequality between the Executive Board of UNESCO, representing UNESCO, and the officials of UNESCO, the parties to the ILOAT case being the officials and UNESCO. The inequality was twofold. It related both to the origin and to the progress of the advisory proceedings. The Court apparently regarded as irrelevant the inequality that was antecedent to the examination of the question by the Court, on the ground that it did not affect the manner in which the Court undertook that examination. It did not matter how the matter was brought before the Court. In regard to the actual procedure, it showed some concern but found that any difficulties that may have

2004 ICJ Reports at pp. 156 ff. Ibid. 80 This provision states that “Only states may be parties before the Court.” 78 79

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existed had been met by the procedure followed and had not given rise to any objections on the part of those concerned. It said: The question of equality between UNESCO and the officials arises once more in connection with the actual procedure before the Court. Here the absence of equality flows not from any provision of the Statute of the Administrative Tribunal but from the provisions of the Statute of the Court. In the form of advisory proceedings, the Court has before it a challenge the result of which will affect the right of the officials to the benefit of the Judgements of the Tribunal, and the obligation of UNESCO to comply with them. The judicial character of the Court requires that both sides directly affected by these proceedings should be in a position to submit their views and their arguments to the Court.81

In the Western Sahara Opinion82 the Court made some important qualifications to the significance of the absence of consent of a state party to a dispute. While not questioning the validity of the Eastern Carelia principle, as interpreted by it, and the necessity for not jeopardizing the judicial nature of the Court’s function, as such, it held that the Eastern Carelia principle did not apply with adverse effects in the case before it, because in all the circumstances the judicial nature of the Court’s function would not be prejudiced by its rendering an opinion. The Court conceded that, where circumstances disclose that giving an opinion in the case would have the effect of circumventing the principle that a state’s consent is necessary for its dispute to be submitted for judicial settlement, it should not give an opinion. However, it pointed out that the situation in the case before it did not circumvent the principle involved for several reasons. First, the controversy arose during proceedings in the GA and in relation to matters with which it was legitimately dealing. Secondly, Spain, the state objecting to the rendering of an opinion on the ground that the opinion would settle without its consent a

81 82

1956 ICJ Reports at p. 86. 1975 ICJ Reports at pp. 22–9.

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dispute to which it was a party, was a member of the UN and had accepted the authority of the GA to deal with decolonization under the UN Charter and had also accepted the provisions of the Charter and the ICJ Statute on advisory opinions. It pointed out in this connection that the situation in the Eastern Carelia Opinion was different in that the state objecting to the giving of an opinion by the PCIJ was not even a member of the UN. Thirdly, the narrow legal questions referred to the Court for an answer were located in a broader frame of reference than the settlement of a specific dispute and embraced other elements. Moreover, the Court had been furnished with extensive documentary evidence of the facts so that the Court had sufficient information and evidence before it to arrive at the necessary judicial conclusion in reply to the questions asked. Clearly, the principle flowing from the judicial character of the Court has other implications than the ones already dealt with and noted by the Court. For example, if the Court finds that it could not do substantial justice in the matter, e.g., because essential facts could clearly not be made available to the Court by means at its disposal, it would have to find that it lacked competence to proceed. The basic idea is that it must be able to do substantial justice, in the circumstances of the case, as a judicial body. In implementing the principle that it must not act in a manner which would jeopardize its judicial character, the Court has not been too rigid in its approach to the requirement of Article 68 of its Statute that it should, where appropriate, apply in giving advisory opinions the provisions of the Statute relating to contentious proceedings. While the approach taken by the Court (both the PCIJ and the ICJ) to the implementation of the principles flowing from its judicial character cannot be faulted, it is important to emphasize that in regard to its authority to give advisory opinions the principles relate to competence and not to discretionary authority to give opinions, as has been the view taken by the Court in several cases. The principle in the Monetary Gold Case, which also flowed from the Court’s judicial character, related to inherent limitations on its competence arising from its judicial character. Similarly, in regard

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to the advisory jurisdiction of the Court, particularly by virtue of Article 68 of the Statute, but even otherwise, the same inherent limitation is applicable to confine its competénce. The judicial character of the Court demands competénce be limited by such a principle appropriately interpreted in the circumstances of advisory opinions. There is no other way of looking at the matter. If it finds that its judicial character is being prejudiced, it must refuse to exercise jurisdiction. There is no discretion to do so! An important feature of the Court’s approach to the principle that the judicial character of its functions should not be jeopardized is that it also recognizes another principle which is relevant and protects a different interest, namely the interests of the organization concerned, generally the UN. This principle is that the Court must participate, as the principal judicial organ, in the work of the organization, whether the UN or others. The latter principle may sometimes conflict with the principle relating to the Court’s judicial character, whose object is to protect a different interest, namely its own. The Court’s attitude so far has been to satisfy the interests of the organizations in this regard. However, it cannot be said that it has done this at the expense of its own interest in preserving its judicial character. What it has done is to take a sagacious approach to interpreting and applying the principle that its own judicial character must be protected. (E) THE EXERCISE OF THE DISCRETION TO GIVE AN OPINION: THE COURT’S STATUS AS A PRINCIPAL ORGAN It is logical that the Court cannot and should not consider the discretionary aspect of giving an advisory opinion until it is established that it has competence to give such an opinion. Though the issues may be distinct in the two cases, a distinction between them is often difficult to discern in the course taken by the Court in dealing with issues raised as objections to its giving an opinion. When the Court raises an issue proprio motu, however, this distinction is more palpably observed. In any case, the discretion is not to give an opinion for good reason rather than that it must be demonstrated

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that there is good reason for the Court to give an opinion. The Court has operated on the basis that it must make every effort to assist the organizations which make requests for opinions in their work in observing the permissiveness of Article 65(1) rather than not give opinions. The Court has said, for instance, that a particular objection should “not lead the Court to decline to give an opinion.”83 Once the Court’s competence is established there is a reasonable presumption that it should give an opinion. The Court’s discretion is controlled by two provisions of the Statute. The permissive wording of Article 65 gives the Court a general discretion whether or not to answer the question put to it even if it has the competence to do so. Thus, the Court would appear to have a broad discretion to refuse or not an opinion. It is also significant that the ICJ has never refused to give an opinion as a result of the exercise of its discretion.84 In some cases it simply notes that it “finds no compelling reasons not to give the advisory opinion requested”.85 The PCIJ and the ICJ after it seem to have developed the general principle which tends toward liberality that, because the Court is a principal organ of the UN, it is under a duty to co-operate with other organs and as a consequence, a request for an advisory opinion should not in principle be refused. Thus, only compelling reasons could lead the Court to refuse to give the requested opinion. The principle was referred to in the Peace Treaties Opinion. The Court said that its opinion, given to the requesting organ, “represents its participation in the activities of the Organization, and, in principle, should not be refused”.86 In the ILOAT Judgments Opinion the Court, after extending the scope of the function to include co-operation with specialized agencies authorized to request advisory opinions, reformulated it as follows:

The Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at p. 236. See the Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at p. 235 per the Court. 85 See the Difference Relating to Immunity Opinion, 1999 ICJ Reports at p. 79. 86 1950 ICJ Reports at p. 71. 83

84

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Chapter 3. Advisory Jurisdiction Notwithstanding the permissive character of Article 65 of the Statute in the matter of advisory opinions, only compelling reasons could cause the Court to adopt in this matter a negative attitude which would imperil the working of the regime established by the Statute of the Administrative Tribunal for the judicial protection of officials.87

In the UN Expenses Opinion the Court examined in a case put to it by the General Assembly whether any such compelling reasons existed.88 Because of the structured relation now existing between the Court and the UN, the Court regards itself as being under the duty of participating, within its competence, of course, in the activities of the organization. An objection put forward in the Peace Treaties Opinion89 was that, were the Court to exercise its advisory function, the advisory procedure would take the place of the procedure instituted in the Peace Treaties for the settlement of disputes. In the Reservations to the Genocide Convention Opinion90 a similar argument was developed further. There it was contended, that as the Genocide Convention has its own compromissory clause conferring jurisdiction on the Court, and as there was no dispute in the present case, the effect of the compromissory clause was to deprive the Court not only of any contentious jurisdiction, except in conformity with that clause, but also of any power to give an advisory opinion. The Court pointed out in the former case that as far as the Peace Treaties were concerned the object of the request was to facilitate the application of the disputes articles by seeking information for the GA as to their applicability in the circumstances of the case. In the latter case a similar answer was given. In both cases the discretion not to give an opinion was not exercised. A good example of how the court has responded to objections to the exercise of its discretion, to give an opinion is the Legality 1956 ICJ Reports at Nuclear Weapons Opinion, 88 1962 ICJ Reports at 89 1950 ICJ Reports at 90 1951 ICJ Reports at 87

p. 86. The case-law is referred to in the Legality of 1996 ICJ Reports at p. 235. pp. 155–6. p. 65. p. 15.

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of Nuclear Weapons Opinion.91 In that case it said that (i) the fact that there was no specific dispute was not a viable objection which should lead the Court to decline to give an opinion; (ii) it was no obstacle that the GA had not explained to the Court for what precise purpose it sought the opinion; (iii) the origins or political history of the request or the distribution of votes in respect of the resolution requesting the opinion were not relevant factors; (iv) in the light of the argument that an opinion might adversely affect disarmament negotiations and, therefore, be contrary to the interests of the UN, the conclusions in any opinion the Court might give, whatever they be, would have relevance for the continuing debate on the subject involved in the GA and could present an additional element in the negotiations on the matter; and, (v) while the Court would not take upon itself a legislative function, its task here clearly was to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable to the threat or use of nuclear weapons. For these reasons it found that there was no compelling reason “to exercise its discretion not” to give an opinion.92 It is significant that the Court referred to its discretion not to give an opinion rather than stating the converse proposition. This confirms what was said earlier that the Court’s approach is that once its competence is established the presumption is that it will render an opinion unless it is for a good reason not to do so. The Court will not regard the mere fact that it must interpret a treaty at the request, inter alia, of interests other than or transcending those of the actual parties to the treaty as a ground for refusing to exercise its discretion to exercise its advisory jurisdiction.

1996 ICJ Reports at pp. 236–8. On the exercise of the jurisdiction to give an opinion in this case see AbiSaab, “On Discretion – Reflections on the Nature of the Consultative Function of the International Court of Justice”, in Boisson de Chazournes and Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons (1999) p. 36; Lailach, “The General Assembly’s Request for an Advisory Opinion from the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons”, 8 LJIL (1995) p. 401. 91 92

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In this connection the Court made the following statement in the Reservations to the Genocide Convention Opinion: It must be pointed out that, not only did the General Assembly take the initiative in respect of the Genocide Convention, draw up its terms and open it for signature and accession by States, but that express provisions of the Convention (Articles XI and XVI) associate the General Assembly with the life of the Convention; and finally, that the General Assembly actually associated itself with it by endeavouring to secure the adoption of the Convention by as great a number of States as possible. In these circumstances, there can be no doubt that the precise determination of the conditions for participation in the Convention constitutes a permanent interest of direct concern to the United Nations which has not disappeared with the entry into force of the Convention. . . . Moreover, the power of the General Assembly to request an Advisory Opinion from the Court in no way impairs the inherent right of States parties to the Convention in the matter of its interpretation. This right is independent of the General Assembly’s power and is exercisable in a parallel direction. Furthermore, States which are parties to the Convention enjoy the faculty of referring the matter to the Court in a manner provided in Article IX of the Convention.93

In the same case the Court made the point that it would not refuse, in the exercise of its discretionary authority, to interpret a treaty merely because the treaty contained a clause making specific provision for the settlement of disputed points of interpretation. It said: Another objection has been put forward to the exercise of the Court’s advisory jurisdiction: it is based on Article IX of the Genocide Convention which provides that disputes relating to the interpretation, application or fulfilment of that Convention shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. It has been contended that there exists no dispute in the present case and that, consequently, the effect of Article IX is to

93

1951 ICJ Reports at pp. 19–20.

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deprive the Court, not only of any contentious jurisdiction, but also of any power to give an Advisory Opinion. The existence of a procedure for the settlement of disputes, such as that provided by Article IX, does not in itself exclude the Court’s advisory jurisdiction, for Article 96 of the Charter confers upon the General Assembly and the Security Council in general terms the right to request this Court to give an Advisory Opinion “on any legal question”.94

The Court, as pointed our already, has never exercised its discretion to refuse to render an opinion. It is apparent that it leans heavily in favour of not refusing rather than refusing an opinion. Clearly, there must be a good reason of judicial policy to induce it to exercise its discretion to refuse an opinion. In the recent Construction of a Wall Opinion the Court, on the subject of exercising its discretion to refuse to give an advisory opinion, observed that so far it has had no occasion to refuse an opinion, and explained its approach as follows: The Court has recalled many times in the past that Article 65, paragraph 1, of the Statute, which provides that “the Court may give an advisory opinion . . .” (emphasis added), should be interpreted to mean that the Court has a discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are met . . . The Court however is mindful of the fact that its answer to a request for an advisory opinion “represents its participation in the activities of the Organization, and in principle should not be refused” . . . Given its responsibilities as the “principal judicial organ of the United Nations” (Article 92 of the Charter), the Court should in principle not decline to give an advisory opinion. In accordance with its consistent jurisprudence, only “compelling reasons” should lead the Court to refuse its opinion . . . The Court has never, in the exercise of its discretionary power, declined to respond to a request for an advisory opinion. Its decision

Ibid. at p. 20. The ground mentioned also does not affect the competence of the Court. 94

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Chapter 3. Advisory Jurisdiction not to give the advisory opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict requested by the World Health Assembly was based on the Court’s lack of jurisdiction, and not on considerations of judicial propriety . . . Only on one occasion did the Court’s predecessor . . . take the view that it should not reply to a question put to it . . .95

(F) JURISDICTION

TO

REOPEN ADVISORY OPINIONS

(i) Interpretation The interpretation of a previous advisory opinion by the Court is only possible through a request for a subsequent advisory opinion or in the event that the opinion needs to be interpreted in a later opinion, even though a formal interpretation of the previous opinion is not requested. In the South West Africa Voting Opinion96 and the South West Africa Committee Opinion97 the question of interpretation arose before the ICJ. No issue of jurisdiction was raised proprio motu by the Court or otherwise. The request in the first of these cases cited a section of the 1950 Status of South West Africa Opinion98 and stated that some elucidation of that opinion was desirable. The question asked whether a special rule of procedure to be followed by the GA in taking decisions on questions relating to reports and petitions concerning South-West Africa constituted a correct interpretation of the 1950 opinion. In the second case the question was whether it would be consistent with the 1950 Opinion for the Committee on SouthWest Africa to grant oral hearings to petitioners on matters relating to South-West Africa. In both cases the questions asked were expressly related to the 1950 Opinion, thus obviously raising questions of interpretation. The jurisdiction to answer the question was

95 96 97 98

2004 1955 1956 1950

ICJ ICJ ICJ ICJ

Reports Reports Reports Reports

at at at at

pp. 156 ff. p. 67. p. 23. p. 128.

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exercised in both cases. The Court answered the specific questions asked, while in the process of doing so it interpreted the previous Opinion. In the South West Africa Voting Opinion the Court did not make a formal interpretation of the 1950 Opinion but answered the question, ostensibly by a process of interpretation, whether the GA was bound by the voting provisions of Article 18 of the Charter when dealing with reports and petitions from South-West Africa. In the South West Africa Committee Opinion it considered whether the institution of oral hearings would add to the obligations of the mandatory power. But in a sense both questions could be seen as separate matters standing on their own. In the case of advisory opinions the doctrine of res judicata is not formally applicable because they do not settle disputes that come before the Court through a contentious procedure. Thus, there is no reason why interpretation should not be requested directly as a matter of interpretation or by a separate request for another advisory opinion. There is no express provision in the Statute for interpretation of an opinion but just as an international tribunal has an inherent jurisdiction to interpret its own judgments in contentious cases, so the Court should all the more have such an inherent jurisdiction in regard to advisory opinions in regard to which there is no problem of res judicata.99 (ii) Revision No specific provision appears in the Statute of the ICJ relating to revision of its advisory opinions which corresponds to Article 61 of the Statute relating to revisions in a limited situation of its judgments in contentious cases. The question of formal revision of an opinion for whatever reason has not arisen. Theoretically, there is no reason why the Court should not have the same inherent jurisdiction,

Rosenne, 2 op. cit. note 2 pp. 1001 ff., concedes that the Court may interpret its own opinions but by a more limited procedure based on different sources of law. 99

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which exists in the absence of specific provision, to revise cases as international tribunals in general have. In subsequent contentious proceedings, however, the Court (both the PCIJ and the ICJ) has been confronted with situations in which the revision of previous opinions has been considered. In principle the doctrine of res judicata is not applicable to advisory opinions and in any case those contentious proceedings have not strictly consisted of formal requests for revision of a previous opinion in the same way as a request for revision of a judgment in a contentious case which would be confined to affecting the earlier judgment as a settlement of a dispute between the parties which was the subject of the earlier judgment and which was binding only as between the parties to that dispute. However, in all the cases the Court has expressed the view that there was a reason for it to alter its opinion on the matter in dispute which had been expressed in the earlier opinion. In the judgment on the merits in the German Interests in Polish Upper Silesia Case (Merits), the PCIJ, referring to an argument based on an interpretation of article 256 of the Treaty of Versailles, pointed out that it had already considered the question in the German Settlers in Poland Opinion100 and had given an interpretation of that provision and that nothing had been advanced in the course of the present proceedings calculated to alter the Court’s opinion on this point.101 In the South West Africa Cases (Preliminary Objections) it was argued that the ICJ need not follow certain conclusions reached in the 1950 Status of South West Africa Opinion, but that in effect it could reverse them on the basis of some new facts alleged to have come to light since. The Court rejected those contentions. On the effect of the dissolution of the League of Nations on article 7 of the Mandate (the compromissory clause), the Court referred to the unanimous holding of the Court in 1950, which

100 101

(1924), PCIJ Series B No. 6. (1926), PCIJ Series A No. 7 at p. 31.

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continues to reflect the Court’s opinion today. Nothing has since occurred which would warrant the Court reconsidering it. All important facts were stated or referred to in the proceedings before the Court in 1950.102

In the same case dealing with the meaning of the phrase “another Member of the League of Nations” in that compromissory clause, the Court again saw no “valid ground for departing from the conclusion reached in the Advisory Opinion of 1950 to the effect that the dissolution of the League of Nations has not rendered inoperable Article 7 of the Mandate”.103 On all three points met in these cases the Court was merely responding in the negative to the arguments raised on the understanding that it had authority to revise its previous opinions which were by and large on points of law or their application. There was no real issue of a tribunal being requested to review conclusions which would revise the previous case or its outcome. Further, what was happening in these situations was that the Court was being requested in different cases to take a further look at its previous holdings, just as a court may be requested in a subsequent case to overrule a conclusion reached in an earlier case. This situation is completely different from the situation of review or revision discussed in chapter 2 and “review” in these circumstances does not require any authorization in the constitutive instruments or from any other source.104 (G) ADVISORY OPINIONS TO REVIEW UNAT ILOAT JUDGMENTS

AND

A special form of limited review was permitted to the ICJ under Article 11(1) of the UNAT Statute and is still permitted under Article XII of the ILOAT Statute. The former has now been abolished. In 102 103 104

1962 ICJ Reports at p. 34. Ibid. at p. 338. Rosenne, 2 op. cit. note 2 pp. 1002 ff., takes a different view.

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both cases the review was not by the same tribunal and was available through a special procedure and was through the mechanism of a request for an advisory opinion. The view that the jurisdiction was and is a “review” jurisdiction and not an “appeal” jurisdiction is supported both by the fact that the jurisdiction assigned the ICJ is limited to examining certain defects in the judgments of the tribunal concerned and by the view expressed by the ICJ itself that in what it called the “review proceedings” the object was not “to retry the case and to substitute its own opinion on the merits for that of the Tribunal”, although in an appropriate case the Court may be called upon to review the actual substance of the decision in applying the law applicable in the review.105 The opinion given by the ICJ appears to be final and binding. Article 11(1) of the UNAT Statute, as it was amended in 1955, provided: If a Member State, the Secretary-General or the person in respect of whom a judgment has been rendered by the Tribunal (including any one who has succeeded to that person’s rights on his death) objects to the judgment on the ground that the Tribunal has exceeded its jurisdiction or competence or that the Tribunal has failed to exercise jurisdiction vested in it, or has erred on a question of law relating to the provisions of the Charter of the United Nations, or has committed a fundamental error in procedure which has occasioned a failure of justice, such Member State, the Secretary-General or the person con-

See, e.g., the Judgment No. 333 of the UNAT Opinion, 1987 ICJ Reports at p. 33. That the notion of appeal was rejected by the Court appears from the separate opinion of Judge Oda who disagreed on the point made above by the Court and referred to the Court as an “appellate court vis-à-vis the Tribunal”; ibid. at p. 89, and Judge Schwebel’s dissenting opinion in which similar views are expressed. In the Judgement No. 273 of the UNAT Opinion the Court specifically said its role was not that of a court of appeal to retry the issues on the merits of the case, particularly because the mechanism of an advisory opinion was being used in what was a contentious case and the absence of equality between the parties: 1982 ICJ Reports at p. 356. On the review jurisdiction of the ICJ in relation to the UNAT and the ILOAT see Amerasinghe, 1 Law of the International Civil Service (1994) pp. 252 ff. 105

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cerned may, within thirty days from the date of the judgment, make a written application to the Committee established by paragraph 4 of this article asking the Committee to request an advisory opinion of the International Court of Justice on the matter.

Article XII of the ILOAT Statute provides: In any case in which the Governing Body of the International Labour Office or the Administrative Board of the Pensions Fund challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed the question of the validity of the decision given by the Tribunal shall be submitted by the Governing Body, for an advisory opinion, to the International Court of Justice.

In both cases the reference is made by an organ of the organization concerned and is not a facility automatically or directly available to the staff member, party to the case before the tribunal concerned. In the case of UNAT judgments the Committee (of the UN) made the reference, in the case of the ILOAT the Governing Body of the ILO makes it.106 The grounds on which the review jurisdiction be invoked in the case of UNAT judgments are that the tribunal (i) exceeded its jurisdiction or competence; or (ii) failed to exercise jurisdiction vested in it; or (iii) erred on a question of law relating to the provisions of the UN Charter; or (iv) committed a fundamental error in procedure which has caused a failure of justice. In the case of ILOAT judgments, the grounds for review are (i) challenge of a judgment confirming ILOAT’s jurisdiction; or (ii) fundamental fault in the procedure followed which initiates the judgment. Thus far the review has unsuccessfully been requested in respect on three judgments rendered by the UNAT and one rendered by the

Arrangements have been made for other organizations which have subscribed to the ILOAT Statute to seek review of ILOAT judgments by the ICJ. Article XII(2) states that the opinion given by the ICJ shall be binding. The provisions of Article 11(3) of the UNAT Statute on the same matter were different. 106

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ILOAT. In the Judgment No. 158 Opinion,107 the decision of the UNAT in Fasla108 was questioned on the grounds that (i) the UNAT had not exercised the jurisdiction vested in it; and (ii) there had been a fundamental error of procedure which occasioned a failure of justice. The ICJ found that none of the contentions was proven. In the Judgment No. 273 Opinion,109 the question related to the effect of a General Assembly resolution pertaining to repatriation grants upon which the UNAT had pronounced in Mortished.110 The ICJ interpreted the question as requiring it to determine whether the UNAT had exceeded its jurisdiction or competence or had erred on a question of law relating to the provisions of the Charter of the UN. On both questions the ICJ found in the negative. In the Judgment No. 333 Opinion,111 the questions related to (i) whether the UNAT had not exercised jurisdiction vested in it; or (ii) whether the UNAT had erred on questions of law relating to provisions of the Charter in Yakimetz.112 The case concerned the failure to extend the employment of the applicant. The ICJ in answering both questions found that the UNAT had acted properly. The Judgments of the ILOAT Opinion113 concerned the jurisdiction of the ILOAT to determine certain questions which arose in connection with several cases brought against UNESCO relating to the non-renewal of fixed-term contracts. The ICJ held that the ILOAT had acted properly in exercising jurisdiction in regard to all these questions. In each of the cases there was no challenge to the jurisdiction of the ICJ to give the opinion requested under the relevant constitutional instruments of the UNAT and ILOAT and the ICJ’s own Statute or to the exercise of that jurisdiction, but the Court did,

107 108 109 110 111 112 113

1973 ICJ Reports at p. 166. UNAT Judgment No. 158 [1972], JUNAT Nos. 114–66 p. 355. 1982 ICJ Reports at p. 325. UNAT Judgment No. 273 [1981], JUNAT Nos. 231–300 p. 426. 1987 ICJ Reports at p. 18. UNAT Judgment No. 333 [1984]. 1956 ICJ Reports at p. 77.

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because it was giving an advisory opinion in review in contentious cases, address the issue of its competence to do so. In the first case, the Judgments of the ILOAT Opinion,114 the Court considered from the point of view of its jurisdiction, problems arising from (i) the fact that its advisory opinion would be binding, (ii) the contentious nature of the proceedings involved, and, (iii) connected with (ii), the issue of the equality of the parties. On (ii) it noted that under Article XII of the ILOAT’s Statute the opinion would be binding, an effect which went beyond the scope attributed by the Charter of the UN and by the Statute of Court to an advisory opinion. However, it thought that a provision which was a rule of conduct for the Executive Board of UNESCO in no way affected the way in which the Court functioned. On the second points the Court noted that the advisory procedure appeared as serving the object of a recourse115 against the judgments of the ILOAT. The advisory proceedings which thus took the place of contentious proceedings were designed to provide that certain challenges relating to the validity of judgments rendered by the tribunal in proceedings between an official and the international organization concerned should be brought before the Court whereas under the Statute of the Court only states may be parties in contentious cases before it. The Court considered the question whether its Statute and its judicial character did or did not stand in the way of its participating in this arrangement. It was true that, contrary to accepted practice, the advisory proceedings which had been instituted in the present case involved a certain absence of equality between UNESCO and the officials concerned. First, under the provisions of the Statute of the ILOAT only the Executive Board of UNESCO was entitled to institute these proceedings. But this inequality, the Court said, was antecedent to the examination of the question by the Court and did not affect the manner in which the Court undertook that examination. Secondly,

Ibid. at pp. 84–5. The Court used the word “appeal” in English, whereas the French version, which is authoritative, used the term “recourse”. The translation “recourse” is better. As pointed out above, recourse to the ICJ is not in essence an appeal. 114 115

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in connection with the actual procedure before the Court, although the Statute and Rules of Court made available to UNESCO the necessary facilities for the presentation of its views, in the case of the officials, the position was different. But this difficulty, the Court said, was met, on the one hand, because the observations of the officials were made available to the Court through the intermediary of UNESCO and on the other because the oral proceedings had been dispensed with. Thus, the Court concluded that there was no reason for it not to give an opinion. In the Judgment No. 158 Opinion the Court examined not only its competence to give the opinion requested but also the propriety of doing so in the exercise of the discretion it had to give or refuse to give an opinion under its Statute, although there had been no challenge on either ground.116 The question of propriety will be dealt with later. As to the Court’s competence, the principal issue was whether the Committee on Applications for Review could be considered one of the “organs of the UN” entitled to request advisory opinions under Article 96 of the Charter of the UN, and had any activities of its own which enabled it to be considered as requesting advisory opinions on legal questions arising within the scope of its activities, as provided by Article 96. The Court concluded that the Committee was such an organ. It followed that the Court was competent under Article 65 of its Statute to entertain a request for an advisory opinion from the Committee made within the scope of Article 11 of the Statute of the UNAT. In the Judgment No. 273 Opinion the Court dealt with the question in relation to its competence arising from the fact that the application for review originated from a member state. It recalled that the request was the first to arise from the Committee’s consideration of an application by a member state, the previous case having resulted from the application of a staff member. The Court found that these special features of the proceedings leading up to the request did not afford any grounds for the Court to depart from

116

1973 ICJ Reports at pp. 171–5.

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its previous position that it had competence to entertain a request from the Committee.117 In the Judgment No. 333 Opinion the issues it addressed in regard to its competence related to the source of the application and the nature of the questions asked. The Court recalled that its competence to deliver an advisory opinion at the request of the Committee was derived from several provisions: Article 11, paragraphs 1 and 2, of the Statute of the Tribunal, Article 96 of the UN Charter and Article 65, paragraph 1, of the Statute of the Court. It has already had occasion to examine the question of its competence under these provisions, whether the request for opinion originated, as in the present case, from an application by a staff member or from an application by a member state. In both cases, it said, it had concluded that it possessed competence. In the present case its view was that the questions addressed to it were clearly legal questions arising within the context of the Committee’s activities and that for these reasons it had competence.118 In all four cases the Court dealt with several issues which might have provided obstacles to its jurisdictional competence to give an advisory opinion, raising them proprio motu in effect. In all four cases it found that there were no obstacles in principle arising from any possible juridical defects to its having the required competence. In the three opinions emanating from references against UNAT judgments the ICJ considered the question of whether it should properly exercise the discretion which it had to give an opinion in the circumstances. In the Judgment No. 158 Opinion the Court considered whether the character of certain features of the review procedure should lead it in the exercise of its discretion to decline to answer the request for an opinion. It found that there did not appear to be anything in the character or operation of the Committee which required the Court to conclude that the review procedure was incompatible with the general principles governing the judicial

117 118

1982 ICJ Reports at pp. 331–4. 1987 ICJ Reports at pp. 30–1.

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process, and it rejected the objections based upon what was said to be an inherent equality between the staff member who made the application, on the one hand, and the SG and member states on the other. While not considering that the review procedure was free from difficulty, the Court, nevertheless, found that its discretion to give an opinion should be exercised.119 In the Judgment No. 273 Opinion the Court considered extensively120 possible reasons why, even though it had competence, it should not exercise its discretion to give an opinion, having regard to the requirements of its judicial character, and the principles of the due administration of justice, to which it must remain faithful in the exercise of its functions, as much in advisory as in contentious proceedings. The Court first rejected several objections based on the following considerations: whether an application for review made by a member state constituted an intervention by an entity not a party to the original proceedings; whether the conclusive effect of the opinion to be given by the Court was a valid objection to the exercise by the Court of its advisory jurisdiction; whether a refusal by the Court to give the opinion would put in question the status of the judgment of the UNAT in issue; and whether an application for review by a member state was in contradiction with certain articles of the UN Charter or impinged upon the authority of the SG under other articles. Next, great importance was attached by the Court to the question whether real equality was ensured between the parties, notwithstanding any seeming or nominal absence of equality resulting from Article 66 of the Court’s Statute, which confined to states and international organizations the power to submit written or oral statements. In that respect it noted that the views of the staff member concerned had been transmitted to it through the SG, without any control over the contents being exercised by the latter, and that the Court had decided to dispense with oral proceedings in order to ensure actual equality. With regard to the state of the proceed-

119 120

1973 ICJ Reports at pp. 178–83. 1982 ICJ Reports at pp. 334–8.

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ings involving the Committee, the Court noted that it was no more than an organ of the party which had been unsuccessful before the tribunal, that is to say the UN. Thus, that party was able to decide the fate of the application for review made by the other party, the staff member, through the will of a political organ. That fundamental inequality entailed for the Court a careful examination of what the Committee had actually done when seized of the application of the US. With regard to the discussions in the Committee, the Court pointed out that they involved a number of notable irregularities showing the lack or rigour with which the Committee had conducted its proceedings. Those irregularities related to its composition at its twentieth session, the application submitted to it by the US, and the conduct of its meetings. Despite those irregularities, and the failure of the Committee to show the concern for equality appropriate to a body discharging quasi-judicial functions, the Court considered that it should comply with the request for an advisory opinion. While the irregularities which featured throughout the proceedings could be regarded as “compelling reasons” for refusal by the Court to entertain the request, the stability and efficiency of international organizations were of such paramount importance to world order that the Court felt that it should not fail to assist a subsidiary body of the UNGA, the UNAT, in putting its operation upon a firm and secure foundation. Furthermore, such a refusal would, in the opinion of the Court, leave in suspense a very serious allegation against the UNAT: that it had in effect challenged the authority of the UNGA. Finally, in the Judgment No. 333 Opinion, the Court again took up the question of the propriety of giving an opinion.121 It emphasized the need for it to participate in the activities of the UN and the presumption against refusal of an opinion, therefore, and referred to the matters it had discussed in the earlier two opinions. Particularly because it should secure the judicial protection of officials, it decided that it should give the opinion requested.

121

1987 ICJ Reports at pp. 31–3.

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The Court was concerned about such matters as the fairness of the procedure before the Committee and the equality of the parties to the adjudication before the UNAT in the proceedings before it but decided to exercise its discretion to give an opinion, particularly because it should secure the judicial protection of officials and promote the stability and efficiency of international organizations.

4 THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA

THE DISPUTE SETTLEMENT SYSTEM OF THE 1982 LAW SEA CONVENTION

OF THE

The 1982 UN Convention on the Law of the Sea contains 307 articles and eleven annexes. Dispute settlement was one of the most contentious issues in the formulation of the Convention and the provisions which are now included in Part XV of the Convention, entitled “Settlement of Disputes”, required heavy negotiation before the text was finally agreed.1 What emerged in Part XV was a very complex system and one that is, perhaps, less than ideal. The basic principle enshrined in Article 279 of the Convention is that states parties to the Convention shall settle any dispute between

See Stevenson and Oxman in a series of articles published in the AJIL between 1974 and 1982. See on the impact of the Third United Nations Conference on the Law of the Sea (UNCLOS III), Churchill and Lowe, The Law of the Sea (1999). 1

256 Chapter 4. The International Tribunal for the Law of the Sea them concerning its interpretation or application by peaceful means in accordance with Article 2(3) of the UN Charter.2 The provision results, inter alia, in the extension of the obligation contained in the UN Charter to non-members of the UN, if they become parties to the Convention; and for all states it confirms that disputes relating to the Convention must be settled peacefully and in accordance with justice. The Convention goes on to provide in Article 280 that nothing in Part XV impairs the right of states to settle such disputes by any peaceful means of their own choice. Clearly, negotiation, consultation and mediation, as dispute settlement procedures other than by a third party, are included. This emphasis on the parties’ autonomy was not controversial. The principle of free choice of means is elaborated in later articles. When a dispute arises the parties are, pursuant to Article 283(1), under an obligation to proceed expeditiously to an exchange of views as to the means of settlement to be adopted. This provision emphasizes consultation and imposes an obligation to use peaceful means. The obligation to consult also arises when a settlement has been reached and the circumstances require consultation regarding the manner of implementing the settlement (Article 283(2)) and also when a procedure has been resorted to unsuccessfully. In this last situation the effect is to ensure that a move from one means of settlement to another is never automatic, which inevitably reduces the impact of the Convention’s own arrangements.3

For analysis of the provision of the Convention relating to dispute settlement and discussion of their evolution see Rosenne and Sohn (eds.), 5 United Nations Convention on the Law of the Sea 1982: A Commentary (1988), and Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987). On the Convention’s dispute settlement system see in general, particularly Merrills, International Dispute Settlement (2005) pp. 182 ff.; Churchill and Lowe, The Law of the Sea (1999) pp. 453 ff.; Collier and Lowe, The Settlement of Disputes in International Law (2000) pp. 84 ff.; Boyle, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction”, 46 ICLQ (1997) p. 37. 3 See Adede, “The Basic Structure of the Disputes Settlement Part of the Law of the Sea Convention”, (1982) 11 Ocean Devel. & Int. L. at p. 129. 2

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Another significant provision is Article 281 which lays down that when the parties have selected a particular means of peaceful settlement, the procedures laid down later in Part XV of the Convention apply only if such means prove unsuccessful and “the agreement between the parties does not exclude any further procedure”.4 Moreover, pursuant to Article 282, any agreement of a general, regional, bilateral or other nature providing for the submission of a dispute to a procedure involving a binding decision supplants the procedure laid down later in the Convention, unless the parties otherwise agree. These provisions enable the parties by agreement in advance to avoid the settlement machinery provided for in the Convention. Disputes concerning the seabed, however, are governed by the provisions of Part XI, Section 5, which are referred to later in this chapter. Thus, the Convention’s first principle is peaceful settlement with free choice of means. But, if the parties cannot agree upon a means of settlement, or if they choose a means which proves unsuccessful, after views have been exchanged pursuant to Article 283 of Part XV, Section 2 of Part XV, entitled “Compulsory Procedures Entailing Binding Decisions”, becomes applicable. The Convention incorporates articles providing for the compulsory settlement of disputes, although the question provoked considerable disagreement at UNCLOS III. However, many thought that the interpretation by application of an instrument containing so many innovations was bound to generate disputes which could only be resolved by the use of a third-party procedure which was both obligatory, in the sense that it had to be used, and binding in its result. Eventually, because the knowledge that recourse to third-party procedures was ultimately possible discourages unreasonableness and so acts as a deterrent and as a means of dispute avoidance, it was decided that compulsory procedures of some kind should be incorporated in the Convention.

Interpretation of article 281 was crucial in the Southern Bluefin Tuna Arbitration (2000), 39 ILM (2003) p. 1359, and a comment on this case by Boyle, in 50 ICLQ (2001) p. 447. 4

258 Chapter 4. The International Tribunal for the Law of the Sea The first problem in establishing a procedure for securing binding decisions in an instrument such as the Convention was to find a method which all the parties to the treaty could accept. The ICJ, a new standing tribunal and arbitration were all discussed. Finally, because of the wide divergence of views on the matter,5 the negotiators of the Convention took a practicable course and again invoked the principle of freedom of choice, providing for a choice among methods of binding settlement. The Convention provides in Article 287 for states to make written declarations accepting that disputes may be referred to one or more of the following tribunals: a new International Tribunal for the Law of the Sea; the International Court of Justice; an arbitral tribunal, or a special arbitral tribunal, with both forms of arbitral tribunal to be constituted in accordance with the Convention. Where both parties to a dispute have accepted the same procedure, that procedure is to be used, unless the parties otherwise agree. Where, however, they have accepted different procedures (or one party has not accepted any procedure), then the dispute is to be referred to arbitration.6 Thus was established a flexible system of compulsory jurisdiction. In that system the general residuary compulsory jurisdiction lies with the ad hoc arbitral tribunals, not with the ITLOS or the ICJ. The articles which comprise the remainder of Section 2 of Part XV of the Convention deal with a number of matters relevant to the functioning of the system of obligatory settlement. The role of another new body, the Sea-Bed Disputes Chamber (SBDC), is recognized in Article 287(2). The question of jurisdiction ratione materiae is dealt with in Article 288, which in substance provides for the reference of disputes concerning the interpretation or application of the Convention and of any international agreement related to the purposes of the Convention. Article 289 provides for the appoint-

See Rosenne and Sohn, op. cit. note 2 pp. 41–5. Attempts to use the ICJ or the ITLOS for this purpose were opposed and abandoned in 1977: see Adede, “Prolegomena to the Dispute Settlement Part of the Law of the Sea Convention”, 10 NYUJ Int. L. & Politics (1977–8) at p. 340. 5 6

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ment of scientific or technical experts, with a role similar to that of assessors in the ICJ. Another provision, Article 290, modelled on the Statute of the ICJ, authorizes the prescribing of provisional measures of protection “only at the request of a party to the dispute”. Article 292 deals with the problem of securing the prompt release of vessels and crews detained by national authorities. This provision virtually gives the ITLOS a compulsory residuary jurisdiction. Article 294 permits a court or tribunal exercising compulsory jurisdiction to determine whether a claim “constitutes an abuse of legal process or whether prima facie it is well founded”. If the claim is determined to be an abuse of legal process, or prima facie unfounded, the court or tribunal in question is to take no further action in the case. This provision was inserted at quite a late stage to meet the concern of certain coastal states that they might be hampered in exercising their rights within the exclusive economic zone by a proliferation of groundless applications,7 and provides a way of disposing of frivolous applications and should also have a tendency to discourage them. Another provision (Article 295) confirms that exhaustion of local remedies, where required by international law, is a condition of admissibility for claims. The effect is to preserve the requirement for those disputes where the existence of local remedies would normally be relevant under customary international law, while not imposing it in disputes involving the direct interest of states, or other situations, in which it has not been necessary, under the traditional customary international law.8

See Merrills, op. cit. note 2 at p. 186. For discussion of article 294 see Treves, “Preliminary Proceedings in the Settlement of Disputes under the United Nations Law of the Sea Convention: Some Observations”, in Ando, McWhinney and Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda (2002) p. 749. 8 The question of choice of law is dealt with by a directive to courts and tribunals having jurisdiction to apply “this convention and other rules of international law not incompatible with this convention” (Article 293). Pursuant to the same article the parties may agree to request a decision ex aequo et bono, but unless they do so, the clear intention is that the Convention will prevail over other sources of obligation. 7

260 Chapter 4. The International Tribunal for the Law of the Sea The third and final section of Part XV concerns disputes which are not, or need not be, subject to the procedures just described, and in certain cases may be referred to another compulsory procedure instead. Thus, while the principle of section 2 is that disputes which parties have failed to settle by means of their own choice are, as a general rule, to be submitted to some form of legal tribunal, section 3 is based on the premises that certain disputes ought not to be subject to obligatory settlement at all, and that others call for a procedure not involving adjudication.9 Article 297 reflects the view of coastal states that certain decisions relating to the exercise of sovereign rights or jurisdiction, especially those concerning the exercise of discretion, should not be subject to challenge in any form of adjudication. Thus, after providing that the procedures of section 2 apply to disputes involving an abuse or infringement of traditional maritime freedoms, the Convention lays down that dispute involving coastal states’ rights with respect to marine research and fisheries shall be submitted to conciliation. While the use of conciliation in the cases specified is obligatory, the Convention is careful to state that the coastal state’s exercise of its discretion cannot be questioned, and the commission’s report is in any event not binding on the parties. It is to be noted the Article 297 provides for a comprehensive exclusion as described above. Article 298, on the other hand, provides for opting out and deals with three types of disputes which states may exclude by written declaration from all or any of the procedures of section 2. These are disputes involving sea-boundary delimitation or historic bays or titles,10 disputes concerning military activities or law enforcement On Part XV, section 3 see the description and assessment in Merrills, op. cit. note 2 pp. 187 ff. 10 For a full discussion of the controversy over delimitation see Adede, “Toward the Formulation of the Rule of Delimitation of Sea Boundaries Between States with Opposite or Adjacent Coasts”, 19 Va. JIL (1978–9) p. 209; Irwin, “Settlement of Maritime Boundary Disputes: An Analysis of the Law of the Sea Negotiations”, 8 Ocean Devel. & Int. L. (1980) p. 105; Rosenne and Sohn, 5 op. cit. note 2 pp. 116–35 and Weil, The Law of Maritime Delimitation – Reflections (1989). 9

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connected with Article 297,11 and disputes in respect of which the United Nations Security Council is exercising its functions under the Charter. In the case of sea-boundary delimitations and other disputes in the first category, the Convention provides that a dispute which arises after the Convention has entered into force may be subject to compulsory conciliation and then, if this does not result in an agreement, to the procedures laid down in section 2. However, this elaborate arrangement has no application to such a dispute, if it also involves sovereignty or other rights over land territory. There is no corresponding provision concerning disputes in the second and third categories. Moreover, section 3 of Article 298 provides that declarations can be made or withdrawn at any time and are expressly stated to be reciprocal in their effect. While reciprocity and specific agreement are in accordance with the usual principle governing limitations on international jurisdiction, if states make extensive use of the opportunities offered by Article 298, the resulting erosion of the principle of compulsory settlement will be very significant. As has been stated: Although the effect of section 3 is clearly to cut down the scope for compulsory settlement of disputes under the Convention, two further points about these provisions should be noted which, in a non-technical sense, qualify these limitations. The first is that whether a state can rely on Articles 297 or 298 in a particular case is not a matter to be decided by the state unilaterally, but, as the Convention makes plain, is an issue for the court or tribunal whose jurisdiction is in question. This is another example of the Convention incorporating a recognized principle of international law, and does not, of course, prevent the various limitations and exceptions from being utilized in an appropriate case. What it does do, however, is to discourage the

For this exception see Janis, “Dispute Settlement in the Law of the Sea Convention: The Military Activities Exception”, 4 Ocean Devel. & Int. L. (1977) p. 51. 11

262 Chapter 4. The International Tribunal for the Law of the Sea abuse of these provisions which would certainly follow if they were subject to self-serving interpretation. The other point is that while the intention behind section 3 is to prevent certain disputes from falling under the Convention’s compulsory procedures automatically, the section’s final provision, Article 299, permits the parties to use these procedures, even for a dispute in an excluded category, so long as they agree to do so. In other words, where Articles 297 and 298 apply, their effect is to prevent the unilateral reference of a dispute to the Convention’s procedures, without prejudice to the parties’ right to employ such procedures by agreement. This is therefore a further example of the Convention’s fundamental principle of freedom of choice.12

Conciliation is the only method of third-party settlement specifically mentioned in section 1 of Part XV, dealing with the settlement of disputes by any means chosen by the parties.13 Moreover, as has been seen, it is obligatory for certain types of disputes excluded from adjudication in section 3. Conciliation, thus, occupies a prominent place in the Convention and could, at least in theory, be used twice in relation to certain disputes, first as the procedure chosen by the parties and then, if the initial attempt was unsuccessful, as the compulsory arrangement under section 3. The procedure to be followed in voluntary or mandatory conciliation is set out in detail in Annex V of the Convention.14 According to the Convention, law of the sea disputes may be referred to arbitration in three different ways. Under section 1 of Part XV the parties may by agreement select any peaceful means and so can decide to set up an arbitration tribunal along traditional lines. Under section 2 both parties may make declarations nominating arbitration as a preferred means of settlement, in which case

Merrills, op. cit. note 2, p. 190. See Article 284. References in early drafts to arbitration and judicial settlement were subsequently deleted; see Adede, loc. cit. note 6 at p. 282. 14 For a succinct description and explanation of the provisions of Annex V see particularly Merrils, op. cit. note 2, pp. 191 ff. See also Rosenne and Sohn, 5 op. cit. note 2 pp. 319 ff. 12

13

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arbitration will be governed by the provisions of the Convention.15 Thirdly, if there is no common declaration under section 2, arbitration under the Convention will be deemed to have been accepted as the relevant obligatory procedure. The arrangements for this kind of arbitration are set out in Annex VII.16 Arbitration is clearly the residual procedure prescribed. Some use has been made of Annex VII arrangements for arbitration. The M/V Saiga (No. 2) Case was initially referred to an Annex VII tribunal by St Vincent and the Grenadines, then, following an agreement with the respondent, Guinea, was transferred to the ITLOS, which decided the case in 1999.17 In the Swordfish Case between Chile and the European Community (EC), there was first a reference to an Annex VII tribunal by Chile, but then, after discussions between the parties, the case was transferred to a Special Chamber of ITLOS, appointed under Article 17(2) of the tribunal’s Statute.18 The Southern Bluefin Tuna Arbitration, in which Australia and New Zealand claimed that Japan had failed to comply with certain conservation obligations, actually reached the arbitrators. The Annex VII tribunal, interpreting Article 281 of the Convention, dismissed the case on jurisdictional grounds.19 In the MOX Plant Case between Ireland and the United Kingdom, which concerns alleged threats to the marine environment, an Annex VII tribunal exercised its power to prescribe provisional measures of protection under Article 290(1) of the Convention, but also decided

See Rosenne and Sohn, 5 op. cit. note 2, p. 422. Since states need not choose the same forum for all purposes, some have nominated Annex VII arbitration as the basic means of settlement, but have specified special arbitration or ITLOS for certain types of disputes: see Churchill and Lowe, op. cit. note 2, p. 458. 16 Annex VII arbitration is explained in Merrills, op. cit. note 2, pp. 193–5. 17 See <www.itlos.org>. 18 See ibid. 19 Southern Bluefin Tuna Arbitration (Jurisdiction and Admissibility) (2000), 39 ILM p. 1359, and see Boyle, Note, (2001) 50 ICLQ (2001) p. 447. 15

264 Chapter 4. The International Tribunal for the Law of the Sea to suspend proceedings, pending clarification of certain jurisdictional issues by the European Court of Justice.20 The maritime activities of states, like many aspects of the contemporary international scene, are so complex that disputes often involve technical issues which arbitrators with no specialist qualifications may find difficult to handle. To meet this problem a functional approach to dispute settlement is taken in Annex VIII of the 1982 Convention, concerning special arbitration. Special arbitration is one of the binding methods of settlement which a party to the Convention can accept in advance by a declaration under section 2 of Part XV. It may therefore be initiated unilaterally whenever a dispute of the appropriate type arises and both parties have deposited a declaration in appropriate terms. The disputes for which special arbitration may be employed are those concerning the interpretation or application of the articles of the Convention relating to: fisheries; protection and preservation of the marine environment; marine scientific research; and navigation, including pollution from vessels and by dumping. Since a state is free to accept special arbitration for all or any of these categories, it is essential for jurisdictional purposes that both parties’ declarations cover the type of dispute in question.21 Among the several new institutions created by the Convention is a new court, the International Tribunal for the Law of the Sea (ITLOS).22 The source for the creation of ITLOS was the idea that disputes of a particular type are best handled by tribunals set up for the purpose. The same idea resulted in the creation of the European

See the MOX Plant Case, Order No. 3, (June 2003), 42 ILM p. 1187. In Order No. 4 in November the suspension was extended. See on this case Churchill and Scott, “The MOX Plant Litigation: the First Half-life”, 53 ICLQ (2004) p. 643. 21 See Rosenne and Sohn, op. cit. note 2, p. 451. See also the description of the provisions of the 1982 Convention on special arbitration in Merrills, op. cit. note 2 pp. 196–7. 22 For a detailed description of the structure and working methods of the ITLOS see Eiriksson, The International Tribunal for the Law of the Sea (2000). 20

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Convention on Human Rights. A brief account is given here of the structure and procedure of the ITLOS.23 The tribunal, whose seat is in Hamburg, has twenty-one members, elected for a nine-year term. They are required to be “persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea” (Article 2(1)). The vital matter of distribution of seats is dealt with by requiring that “the representation of the principal legal systems of the world and equitable geographical distribution shall be assured” (Article 2(2)). To clarify this point it is provided that no two members of the tribunal may be nationals of the same state and that “there shall be no fewer than three members from each geographical group as established by the General Assembly of the United Nations” (Article 3(2)). At the time of the UNCLOS III there were five such geographical groups, but as no number is mentioned in Article 3, the Convention is flexible in this respect. Election is by a two-thirds majority of the parties to the Convention and from a list of candidates which they have nominated. This is a quite different arrangement from that governing elections to the ICJ, where there is no requirement of such a large majority, and also means that the permanent members of SC have no guarantee of a seat on the ITLOS. The provisions dealing with disqualification of a member in a particular case contain the usual reference to previous participation as agent, counsel, etc., and are modelled on Article 17 of the Statute of the ICJ. The treatment of incompatible activities of members of the tribunal, however, expands the earlier Statute’s prohibition on political and administrative functions to include active association or financial interest “in any of the operations of any enterprise concerned with the exploration or exploitation of the resources of the sea or the sea-bed or other commercial use of the sea or the sea-bed” (Article 7). As with the ICJ, a member of the tribunal is not disqualified by being a national of one of the parties to a dispute

23

See for a brief account Merrills, op. cit. note 2, pp. 198 ff.

266 Chapter 4. The International Tribunal for the Law of the Sea and an ad hoc member may be appointed by a party or parties currently unrepresented (Article 17).24 In the light of the ICJ’s successful effort to encourage the use of chambers, it is interesting to see that the new tribunal’s Statute provides for these in terms very similar to those of the ICJ’s Statute. Chambers of three or more members may be formed for dealing with particular categories of cases. A five-member chamber of summary procedure is to be formed for the “speedy despatch or business” (Article 15(3)). And a chamber may be formed to deal with a particular dispute if the parties so request. In the last case the Statute makes it clear that the composition of the chamber is to be determined by the tribunal “with the approval of the parties” (Article 15(2)). The Statute also provides for a special Sea-Bed Disputes Chamber, which is further discussed below. The jurisdiction of the ITLOS is addressed in this chapter. Choice of law is governed largely by the Convention. Procedural arrangements are straightforward and in general resemble those of the ICJ Statute. Each party to a case normally bears its own costs, while the running expenses of the tribunal are borne by the parties to the Convention and the International Sea-Bed Authority on terms to be agreed. Article 31 allows a state which considers that it has an interest of a legal nature in the outcome of a case to request permission to intervene and Article 32 gives parties to the Convention, or to other international agreements being considered, the right to intervene in proceedings before the tribunal. These are both modelled on the ICJ Statute. The provision governing default (Article 28) is likewise very similar to that in the ICJ’s Statute and the Convention’s own articles on arbitration. Decisions, for which a quorum is eleven elected members, are by majority vote and may include separate opinions. Like ICJ decisions, they are final, but may be interpreted by the tribunal at the request of any party. Similarly, they are binding only as between the parties and in respect of the particular dispute.

On the problem of determining the applicability of this provision to entities other than states parties see Rosenne and Sohn, 5 op. cit. note 2, p. 368. 24

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Disputes concerning the complex arrangements envisaged in the Convention for the exploration and exploitation of the deep sea-bed are dealt with in a series of provisions separate from those relating to other types of disputes. It was eventually decided at UNCLOS III that, though such disputes required a functional approach, the best arrangement would be to create a Sea-Bed Disputes Chamber of ITLOS with its own constitution and jurisdiction.25 As a result of this change of policy, the provisions governing the SBDC are to be found in two places in the Convention, Part XI, section 5, dealing with the administration of the International Sea-Bed Area, and Annex VI, setting up the ITLOS. The SBDC consists of eleven members chosen for a three-year term by the twenty-one elected members of ITLOS from among their number. In electing the Chamber they are required to ensure that the principal legal systems of the world are represented and that equitable geographical distribution is achieved. Since the tribunal may have as few as three members from a particular geographical group, the element of choice in the election will sometimes be quite limited. At UNCLOS III it was eventually accepted that since the members of the tribunal are elected by the parties to the Convention, the involvement of the latter in the election of the members of the SBDC was unnecessary. The Assembly was therefore restricted to making recommendations of a general nature relating to representation and the distribution of seats, which are provided for in Article 35(2) of Annex VI. A quorum in the SBDC is seven, but for certain purposes a smaller ad hoc chamber of three may be formed (Article 36 of Annex VI). The composition of this “chamber of a chamber” is to be determined by the SBDC with the approval of the parties. If they cannot agree it is to be set up in the same way as an arbitral tribunal,

On the integration of the system for settling sea-bed disputes into the general system of the Convention see the note by A.O. Adede in 72 AJIL (1978) p. 84. See for a concise description and account of the SBDC, Merrills, op. cit. note 2, pp. 200 ff. 25

268 Chapter 4. The International Tribunal for the Law of the Sea with each party appointing one member and the third appointed by agreement, or, if necessary, by the President of the SBDC.26 The jurisdiction of the SBDC is addressed later in this chapter. The law to be applied by the SBDC corresponds to the nature of its jurisdiction. In addition to the provisions of Article 293 which all tribunals are to apply, the SBDC is to apply “the rules, regulations and procedures of the Authority” adopted in accordance with the Convention, together with “the terms of contracts concerning activities in the Area in matters relating to those contracts” (Annex VI, Article 38). While it can perhaps be argued that the scope of Article 293 is wide enough to make such particularisation unnecessary, the aim here was presumably “to specify with a view to greater clarity by means of emphasis, those parts of the law of the Convention itself which would be likely always to be relevant in proceedings before the Sea-Bed Disputes Chamber, but which would be less likely to be of significance in proceedings before the full Tribunal.”27 Within its allotted sphere decisions of the SBDC are binding and the Convention provides that in the territories of the states parties such decisions shall be enforceable in the same manner as judgments or orders of the highest court of the state party in whose territory the enforcement is sought (Annex VI, Article 39). Usually the question of enforcing the decisions of international tribunals through national courts does not arise. In the case of the SBDC, however, the commercial orientation of its work and the fact that effective decisions are essential to the whole sea-bed enterprise, explain this unusual provision.28 The Convention utilizes all the traditional means of dispute settlement including negotiation, the ICJ and commercial arbitration. It then adds in effect two new courts – ITLOS and its associated

On the reasoning behind this provision see Rosenne and Sohn, 5 op. cit. note 2, p. 409. 27 See Carnegie, “The Law of the Sea Tribunal”, 28 ICLQ (1979) at p. 680. 28 The provisions on the enforcement of decisions of arbitral tribunals in the ICSID Convention may be compared. 26

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SBDC – and a variety of ad hoc bodies in the form of conciliation commissions and general and special tribunals of arbitration. To some extent this proliferation of tribunals is accounted for by the variety and complexity of the Convention’s provisions. An elaborate series of overlapping and exclusive jurisdictions has been created, reflecting a desire to see technical disputes handled functionally, certain issues excluded from third-party review altogether and other issues dealt with by conciliation rather than adjudication. A point of some importance with regard to both opting out of compulsory procedures under Article 298 and the scheme of the Convention generally, is that where a dispute involves several issues, the Convention’s “salami-slicing” approach means that not all aspects of the dispute may be subject to compulsory and binding settlement.29 A good example of this is a dispute involving both high seas freedoms and a coastal state’s rights in its exclusive economic zone. Resolving the whole dispute through ITLOS or arbitration will require both parties’ agreement.30 The Convention places great emphasis on the parties’ choice of means at all stages and in respect of certain disputes enables entities other than states to set the machinery in motion. However, it may be indicative that in making their choices under Article 287 several states have nominated ITLOS, while a few have chosen the ICJ, and some, as they are entitled to do, have opted for different forums for different purposes. Many states, on the other hand, have expressed no preference as yet, which suggests that arbitration, as the residual procedure will continue to be prominent. It may be observed, nevertheless, that the Convention’s arrangements for obtaining binding decisions are actually quite extensive. A further point is that Article 288 envisages use of the machinery of Part XV of the Convention to deal with disputes involving other international agreements related to the 1982 Convention. The

Boyle, “Dispute Settlement and the Law of the Sea Convention”, 46 ICLQ (1977) pp. 41–7. 30 See Davies, “The EC/Canadian Fisheries Dispute in the North Atlantic”, 44 ICLQ (1995) p. 927. 29

270 Chapter 4. The International Tribunal for the Law of the Sea value of this provision and the wider potential of the Convention’s arrangements for dispute settlement cannot be doubted.31 JURISDICTION

OF THE

ITLOS

IN

CONTENTIOUS CASES

(a) La Compétence de la Compétence Article 288(4) of the Convention32 states clearly that, in the event of a dispute as to whether the tribunal (among other courts and tribunals) has jurisdiction in a particular case, the dispute shall be settled by a decision of the tribunal. In its practice the ITLOS has had no problem in applying this provision. In particular in cases referred to it under Article 292 relating to the prompt release of vessels and crew the tribunal has consistently established its jurisdiction before proceeding with the case. In the M/V “Saiga” Case, the tribunal established both its competence (referred to as “jurisdiction”)33 and the admissibility (recevabilité) of the case before proceeding.34 It would seem that the practice of the ITLOS is to establish its jurisdiction in the case before it before proceeding. (b) Compétence Ratione Personae Article 20 of the Statute of the ITLOS which is Annex VI to the Convention provides that states parties to the Convention may See, for example, the Straddling Stock Agreement (1995): 34 ILM (1995) p. 1542. On this agreement see, inter alios, Orrego Vicuña, The Changing International Law of High Seas Fisheries (1999), Chapter 10; Anderson, “The Straddling Stocks Agreement of 1995”, 45 ICLQ (1996) p. 463. 32 See also Article 58 of the Rules of the Tribunal. 33 Case No. 1 (1997), paras. 37 to 45: <www.itlos.org>. 34 Paras. 46 to 79. See also for pronouncements on jurisdiction, both compétence and recevabilité, where relevant, e.g., the M/V “Saiga” (No. 2) Case, Case No. 2 (1999), paras. 40 to 45; the Southern Bluefin Tuna Cases, Cases Nos. 3 and 4, (1999), paras. 39 ff.; the “Volga” Case, Case No. 11 (2002), paras. 55–59; the Case Concerning Land Reclamation by Singapore in and around the Straits of Johore, Order (2003) paras. 29 ff.; the “Tomimaru” Case, Case No. 15 (2007), paras. 48–58. 31

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appear as parties before the tribunal (see also Article 291(1) of the Convention). Further, the entities referred to in Article 305(1), (c) to (f) may also become parties to the Convention. This article refers to (i) All self-governing associated states which have chosen that status in an act of self-determination supervised and approved by the United Nations in accordance with General Assembly Resolution 1514(XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those maters. (ii) All self-governing associated states which, in accordance with their respective instruments of association, have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters. (iii) All territories which enjoy full internal self-government, recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly Resolution 1514(XV) and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of those matters. (iv) International organizations, in accordance with Annex IX of the Convention which deals with participation by international organizations. There are currently 155 states and other entities referred to in Article 305 which are parties to the Convention. In addition the ITLOS is open to entities other than states parties (a) in any case expressly provided for in Part XI of the Convention which deals with the international seabed area or (b) in any case submitted pursuant to any other agreement conferring jurisdiction on the ITLOS which is accepted by all the parties to the case.35

35

See Statute, Article 20(2) and Convention, Article 291(2).

272 Chapter 4. The International Tribunal for the Law of the Sea (c) Compétence Ratione Materiae Pursuant to Article 288(1) of the Convention and Article 21 of its Statute, the ITLOS has jurisdiction over any dispute which is submitted to it in accordance with Part XV of the Convention (Settlement of Disputes) concerning the interpretation or application of the Convention and of the agreement relating to the implementation of Part XI of the Convention, which deals with the International Seabed Area. Limitations on and exceptions to applicability of the compulsory procedures entailing binding decisions (Convention, Part XV, section 2) are contained in Articles 297 and 298 of the Convention, which have been discussed earlier in this chapter. Any dispute belonging to the categories referred to in Articles 297 and 298 of the Convention may, nevertheless, be submitted to the tribunal if the parties to the dispute so agree. Under Article 288(2) of the Convention, the tribunal has jurisdiction over any dispute concerning the interpretation or application of an international agreement related to the purposes of the Convention which is submitted to it in accordance with such agreement. Under Article 21 of the Statute, the jurisdiction of the tribunal includes all matters specifically provided for in any agreement, other than the Convention, which confers jurisdiction on the tribunal.36 Pursuant to Article 22 of the Statute, any disputes concerning the interpretation or application of a treaty or Convention already in force and relating to the subject-matter covered by the Convention may, if all the parties to such agreement so agree, be submitted to the tribunal in accordance with the agreement. (d) Compétence Ratione Temporis There is no specific limitation in regard to disputes submitted to the ITLOS ratione temporis. That is to say, for example, there is no specific exclusion from the jurisdiction of the tribunal of disputes which arose before the entry into force of the Convention. It

So far 10 multilateral agreements have been entered into conferring jurisdiction on the tribunal. 36

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is likely, though that such an exclusion would be implied. Further, the jurisdiction of the tribunal ratione temporis could be limited in declarations made by states in accepting the jurisdiction of the tribunal. (e) The Requirement of Consent As in the case of the ICJ, there is required a two-step consent to the jurisdiction of the ITLOS. Not only must the parties to a dispute have both become parties to the Convention (and the Statute of the ITLOS) but they must have at the same time of becoming a party to the Convention or subsequently agreed to submit to the jurisdiction of the ITLOS the dispute in issue. This may be done by overlapping or reciprocal declarations made, e.g., pursuant to Article 287 of the Convention, or by a specific agreement to submit the dispute in issue to the tribunal. A general or specific agreement of the same nature would need to be made in regard to disputes in regard to those matters covered by section 3 of Part XV of the Convention, which deals with limitations and exceptions to the applicability of section 2 dealing with compulsory procedures entailing binding decisions. The M/V “Saiga” (No. 2) Case,37 decided by the tribunal in 1999, was submitted to it by a subsequent special agreement between the parties to the dispute, namely Saint Vincent and the Grenadines and Guinea. It is the only case which the tribunal has decided in which the tribunal has had to go on to deal with the merits. The tribunal took the course of establishing that it had jurisdiction (compétence) even though the parties to the dispute did not disagree on this point.

Case No. 2 (1999), <www.itlos.org>. See also now the Case Concerning the Conservation and Sustainable Exploitation of Swordfish Stocks in the SouthEastern Pacific Ocean which has not yet been decided but has been suspended by order of the tribunal of 30 November 2007 at the request of the parties: <www .itlos.org>. The basis of the tribunal’s compétence is an agreement between the parties to the dispute, Chile and the European Union, removing the case from arbitration which is the compulsory procedure as the procedure of last resort. 37

274 Chapter 4. The International Tribunal for the Law of the Sea This sets a precedent for the practice of the tribunal. The tribunal stated as follows: 40. There is no disagreement between the parties regarding the jurisdiction of the Tribunal in the present case. Nevertheless, the Tribunal must satisfy itself that it has jurisdiction to deal with the case as submitted. 41. As stated in paragraph 1, the dispute was originally submitted by the Notification of 22 December 1997 to an arbitral tribunal to be constituted in accordance with Annex VII to the Convention. The parties subsequently agreed, by the 1998 Agreement, to transfer the dispute to the Tribunal. The 1998 Agreement provides, in paragraph 1, that “The dispute shall be deemed to have been submitted to the International Tribunal for the Law of the Sea on the 22 December 1997, the date of the Notification by St. Vincent and the Grenadines”. 42. The Tribunal, in its Order dated 20 February 1998, stated that, having regard to the 1998 Agreement and Article 287 of the Convention, it was “satisfied that Saint Vincent and the Grenadines and Guinea have agreed to submit the dispute to it”. 43. The Tribunal finds that the basis of its jurisdiction in this case is the 1998 Agreement, which transferred the dispute to the Tribunal, together with articles 286, 287 and 288 of the Convention. 44. Paragraph 2 of the 1998 Agreement provides that the Tribunal may consider “the objection as to jurisdiction raised in the Government of Guinea’s Statement of Response dated 30 January 1998”. That objection, based on Article 297, paragraph 3, of the Convention, was raised in the phase of the present proceedings relating to the Request for the prescription of provisional measures. In the Order of 11 March 1998, the Tribunal stated that “Article 297, paragraph 1, of the Convention, invoked by the Applicant, appears prima facie to afford a basis for the jurisdiction of the Tribunal”. In the current phase of the proceedings, Guinea did not reiterate the objection based on Article 297, paragraph 3, of the Convention. On the contrary, it confirmed that, in its view, “the basis for the International Tribunal’s jurisdiction on the merits of the dispute is the 1998 Agreement of the parties”. The Tribunal, therefore, finds that the reference, in the 1998 Agreement, to the “objection

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as to jurisdiction” does not affect its jurisdiction to deal with the dispute. 45. Accordingly, the Tribunal finds that it has jurisdiction over the dispute as submitted to it.38

(f) Incidental Jurisdiction There are three areas in which the jurisdiction of the ITLOS does not depend on a two-step consent. The jurisdiction in these areas requires only being parties to the dispute. This jurisdiction may be described as incidental. (i) Provisional Measures If a dispute has been duly submitted to the tribunal and if the tribunal considers that prima facie it has compétence under Part XV or Part XI (dealing with the international sea-bed area) of the Convention, the tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment pending the final decision. In this case it does not have to establish its compétence (on the basis of agreement) to decide the merits. Finding that prima facie it has compétence is adequate. The tribunal may also prescribe provisional measures in the case covered by Article 290(5) of the Convention. Under this provision, pending the constitution of an arbitral tribunal to which a dispute is being submitted and if, within two weeks from the date of a request for provisional measures, the parties do not agree to submit the request to another court or tribunal, the tribunal may prescribe provisional measures, if it considers that prima facie the arbitral tribunal to be constituted would have jurisdiction and that the urgency of the situation so requires.

38

Case No. 2 (1999), <www.itlos.org>, paras. 40–45.

276 Chapter 4. The International Tribunal for the Law of the Sea There are three cases in which the tribunal has ordered provisional measures pursuant to Article 290(5) and which may be treated as examples. These cases are the Southern Bluefin Tuna Cases,39 the Case Concerning Land Reclamation by Singapore in and around the Straits of Johore40 and the MOX Plant Case.41 In the first case referred to above, the approach of the tribunal in establishing prima facie jurisdiction may be taken as a good example of the procedure it has adopted. The tribunal stated: 40. Considering that, before prescribing provisional measures under Article 290, paragraph 5, of the Convention, the Tribunal must satisfy itself that prima facie the arbitral tribunal would have jurisdiction; 41. Considering that Australia and New Zealand have invoked as the basis of jurisdiction of the arbitral tribunal Article 288, paragraph 1, of the Convention which reads as follows: A court or tribunal referred to in Article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part; 42. Considering that Japan maintains that the disputes are scientific rather than legal; 43. Considering that, in the view of the Tribunal, the differences between the parties also concern points of law; 44. Considering that, in the view of the Tribunal, a dispute is a “disagreement on a point of law or fact, a conflict of legal views or of interests” (Mavrommatis Palestine Concessions, Judgment

Cases Nos. 3 and 4, Australia and New Zealand v. Japan, Order of 27 August 1999, <www.itlos.org>. 40 Case No. 12, Malaysia v. Singapore, Order of 8 October 2003, <www .itlos.org>. 41 Case No. 10, Ireland v. UK, Order of 3 December 2001, <www.itlos .org>. A further case is the M/V “Saiga” (No. 2) Case, Order of 11 March 1998 <www.itlos.org>. Unlike the other four, this case was concerned with a dispute submitted for settlement to the ITLOS and not to arbitration. 39

Jurisdiction of the ITLOS in Contentious Cases

45.

46.

47. 48.

49. 50.

51.

52.

277

No. 2, 1924, PCIJ, Series A, No. 2, p. 11), and “[i]t must be shown that the claim of one party is positively opposed by the other” (South West Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328); Considering that Australia and New Zealand allege that Japan, by unilaterally designing and undertaking an experimental fishing programme, has failed to comply with obligations under Articles 64 and 116 to 119 of the Convention on the Law of the Sea, with provisions of the Convention for the Conservation of Southern Bluefin Tuna of 1993 (hereinafter “the Convention of 1993”) and with rules of customary international law; Considering that Japan maintains that the dispute concerns the interpretation or implementation of the Convention of 1993 and does not concern the interpretation or application of the Convention on the Law of the Sea; Considering that Japan denies that it has failed to comply with any of the provisions of the Convention on the Law of the Sea referred to by Australia and New Zealand; Considering that, under Article 64, read together with Articles 116 to 119, of the Convention, States Parties to the Convention have the duty to cooperate directly or through appropriate international organizations with a view to ensuring conservation and promoting the objective of optimum utilization of highly migratory species; Considering that the list of highly migratory species contained in Annex I to the Convention includes southern bluefin tuna: thunnus maccoyii; Considering that the conduct of the parties within the Commission for the Conservation of Southern Bluefin Tuna established in accordance with the Convention of 1993, and in their relations with non-parties to that Convention, is relevant to an evaluation of the extent to which the parties are in compliance with their obligations under the Convention on the Law of the Sea; Considering that the fact that the Convention of 1993 applies between the parties does not exclude their right to invoke the provisions of the Convention on the Law of the Sea in regard to the conservation and management of southern bluefin tuna; Considering that, in the view of the Tribunal, the provisions of the Convention on the Law of the Sea invoked by Australia and

278 Chapter 4. The International Tribunal for the Law of the Sea

53. 54.

55.

56.

57.

58. 59. 60.

61.

New Zealand appear to afford a basis on which the jurisdiction of the arbitral tribunal might be founded; Considering that Japan argues that recourse to the arbitral tribunal is excluded because the Convention of 1993 provides for a dispute settlement procedure; Considering that Australia and New Zealand maintain that they are not precluded from having recourse to the arbitral tribunal since the Convention of 1993 does not provide for a compulsory dispute settlement procedure entailing a binding decision as required under Article 282 of the Convention on the Law of the Sea; Considering that, in the view of the Tribunal, the fact that the Convention of 1993 applies between the parties does not preclude recourse to the procedures in Part XV, section 2, of the Convention on the Law of the Sea; Considering that Japan contends that Australia and New Zealand have not exhausted the procedures for amicable dispute settlement under Part XV, section 1, of the Convention, in particular Article 281, through negotiations or other agreed peaceful means, before submitting the disputes to a procedure under Part XV, section 2, of the Convention; Considering that negotiations and consultations have taken place between the parties and that the records show that these negotiations were considered by Australia and New Zealand as being under the Convention of 1993 and also under the Convention on the Law of the Sea; Considering that Australia and New Zealand have invoked the provisions in diplomatic notes addressed to Japan in respect of these negotiations; Considering that Australia and New Zealand have stated that the negotiations had terminated; Considering that, in the view of the Tribunal, a State Party is not obliged to pursue procedures under Part XV, section 1, of the Convention when it concludes that the possibilities of settlement have been exhausted; Considering that, in the view of the Tribunal, the requirements for invoking the procedures under Part XV, section 2, of the Convention have been fulfilled;

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62. Considering that, for the above reasons, the Tribunal finds that the arbitral tribunal would prima facie have jurisdiction over the disputes; . . .42

In general, it may be stated, the ITLOS, because of the provisions of Article 290, would follow the practice of the ICJ in establishing its competence to order provisional measures. (ii) The “Prompt Release” Exception Once a state has become a party to the Convention, no further agreement between the parties to the dispute is required, in order that it may invoke the jurisdiction of the ITLOS under the provisions of Article 292 of the Convention which relates to the prompt release of vessels and crew. This Article provides in effect that, where the authorities of a state party have detained a vessel flying the flag of another state party and it is alleged that the detaining state has not complied with the provisions of the Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to the tribunal if, within 10 days from the time of detention, the parties have not agreed to submit it to another court or tribunal (Article 292(1)). The application for release may be made only by or on behalf of the flag state of the vessel (Article 292(2)).43 Cases Nos. 3 and 4, Order of 27 August 1999, paras. 40–42, <www .itlos.org>. The arbitral tribunal in this case subsequently found that it had no compétence: (2000), 39 ILM p. 1359. It also ordered that the order of provisional measures made by the ITLOS be vacated. 43 Article 292 provides as follows: Article 292 Prompt Release of Vessels and Crews 1. Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed 42

280 Chapter 4. The International Tribunal for the Law of the Sea In deciding its very first case, the M/V “Saiga” Case, the ITLOS established a procedure, which has been followed in later cases, of considering whether the provisions of Article 292 were satisfied as a matter of jurisdiction, regardless whether the respondent state raises an objection to compétence. In that case the tribunal said on the issue: 37. The tribunal will commence by considering the question of its jurisdiction under Article 292 of the Convention to entertain the application . . . 38. In order to establish that the tribunal has jurisdiction, it is necessary to verify certain conditions. 39. In this regard, the tribunal first notes that Saint Vincent and the Grenadines and Guinea are both States Parties to the Convention. Saint Vincent and the Grenadines ratified the Convention on 1 October 1993 and Guinea ratified the Convention on 6 September 1985. The Convention entered into force for Saint Vincent and the Grenadines and Guinea on 16 November 1994. 40. Article 292 of the Convention requires that an application may be submitted to the Tribunal failing agreement of the parties to submit the question of release from detention to another court or tribunal within 10 days from the time of the detention. upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining state under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. 2. The application for release may be made only by or on behalf of the flag State of the vessel. 3. The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew. The authorities of the detaining State remain competent to release the vessel or its crew at any time. 4. Upon the posting of the bond or other financial security determined by the court or tribunal, the authorities of the detaining State shall comply promptly with the decision of the court or tribunal concerning the release of the vessel or its crew. The ITLOS jurisdiction under this provision may be described as incidental.

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41. The detention of the M/V Saiga and its crew commenced on 28 October 1997. On 11 November 1997, a letter was sent by facsimile to the Minister for Foreign Affairs of Guinea by Stephenson Harwood, Solicitors. In this letter, Stephenson Harwood informed the Minister for Foreign Affairs of Guinea that they had received “authority from the Commissioner for Maritime Affairs of Saint Vincent and the Grenadines to proceed against the Government of Guinea before the International Tribunal for the Law of the Sea” and invited him “to secure the release of the vessel and crew . . . immediately”. 42. No reply was given to the above-mentioned letter and no agreement was reached between the parties to submit the question of the release to another court or tribunal. The Tribunal finds therefore that the Application has met the requirement mentioned in paragraph 40 above. 43. Guinea maintains that the Agent of Saint Vincent and the Grenadines was not authorized in accordance with Article 110, paragraph 2, of the Rules of the Tribunal and questions the identity of the owner of the vessel. 44. Pursuant to Article 110 of the Rules of the Tribunal, an application for prompt release of a vessel and its crew may be made by or on behalf of the flag State of the vessel. In this regard, the Tribunal notes that on 18 November 1997 a certified copy of the authorization of the Attorney General of Saint Vincent and the Grenadines on behalf of the Government of Saint Vincent and the Grenadines to the Commissioner for Maritime Affairs of Saint Vincent and the Grenadines and the original of the authorization of the Commissioner for Maritime Affairs to the Agent were submitted to the Registrar and form part of the record. The Tribunal therefore dismisses the objection of Guinea. As far as the ownership of the vessel is concerned, the Tribunal notes that this question is not a matter for its deliberation under Article 292 of the Convention and that Guinea did not contest that Saint Vincent and the Grenadines is the flag State of the vessel. 45. For the above reasons, the Tribunal finds that it has jurisdiction under Article 292 of the Convention to entertain the Application.44 44

Case No. 1 (1997), <www.itlos.org>, paras. 37–45.

282 Chapter 4. The International Tribunal for the Law of the Sea The jurisdiction may be considered an incidental one essentially peculiar to the ITLOS and assigned by the Convention. (iii) Intervention Intervention is dealt with in Article 31 of the Statute of the ITLOS. That Article states: Article 31 Request to intervene 1. Should a State Party consider that it has an interest of a legal nature which may be affected by the decision in any dispute, it may submit a request to the Tribunal to be permitted to intervene. 2. It shall be for the Tribunal to decide upon this request. 3. If a request to intervene is granted, the decision of the Tribunal in respect of the dispute shall be binding upon the intervening State Party in so far as it relates to matters in respect of which that State Party intervened.

Primarily, the tribunal’s jurisdiction, as far as consent is concerned, would depend purely on the states parties to the dispute being parties to the Convention. In this respect the tribunal’s exercise of jurisdiction is similar to that of the ICJ in cases of intervention. The language of Article 31(1) and (2) is substantially the same as that of Article 62(1) and (2) of the Statute of the ICJ. In regard to the principles of granting the request to intervene no doubt the ITLOS will follow the jurisprudence of the ICJ. The issue of intervention has not been presented to the tribunal thus far. (g) Recevabilité (Admissibility) Neither the Convention in the Articles dealing with the ITLOS nor the Statute of the tribunal specifically addresses the issue of objections to admissibility. Article 97(1) of the Rules of the tribunal, however, deals with the time-limit for raising objections generally. In the M/V “Saiga” (No. 2) Case45 the tribunal had to deal with an objection raised by the claimant state that for a variety of reasons 45

Case No. 2 (1999), <www.itlos.org>.

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the respondent had no right to raise objections to admissibility as contrasted with objections to jurisdiction (compétence). What is important is that the tribunal did in effect recognize the right in principle of a respondent to raise objections to recevabilité as such, subject to the time-limit specified in Rule 97(1). The content of objections to recevabilité, as indicated and implied in the judgment of the tribunal in that case, will depend on both the provisions of the Convention and general international law, and on the particular circumstances of the case. In that case the objections related to the nationality of a ship (Article 91 of Convention), the principle of the genuine link between ship and the state of nationality (Article 91 of the Convention), the exhaustion of local remedies (Article 295 of the Convention) and the nationality of claims brought virtually on behalf of the ship’s crew (Articles 94, 106, 110(3), 111(8), 217 of the Convention). Where there was general international law in the same areas, the tribunal considered it applicable by implication but in effect took the view that resort to it was unnecessary in the case. On the nationality and registration of the ship the tribunal had, after examining the law and the facts, the following to say: 55. The first objection raised by Guinea to the admissibility of the claims set out in the application is that Saint Vincent and the Grenadines does not have legal standing to bring claims in connection with the measures taken by Guinea against the Saiga. The reason given by Guinea for its contention is that on the day of its arrest the ship was “not validly registered under the flag of Saint Vincent and the Grenadines” and that, consequently, Saint Vincent and the Grenadines is not legally competent to present claims either on its behalf or in respect of the ship, its Master and the other members of the crew, its owners or its operators. 56. This contention of Guinea is challenged by Saint Vincent and the Grenadines on several grounds. ... 62. The question for consideration is whether the Saiga had the nationality of Saint Vincent and the Grenadines at the time of its arrest. The relevant provision of the Convention is article 91 . . .

284 Chapter 4. The International Tribunal for the Law of the Sea 63. Article 91 leaves to each State exclusive jurisdiction over the granting of its nationality to ships. In this respect, Article 91 codifies a well-established rule of general international law. Under this article, it is for Saint Vincent and the Grenadines to fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory and for the right to fly its flag. These matters are regulated by a State in its domestic law. Pursuant to Article 91, paragraph 2, Saint Vincent and the Grenadines is under an obligation to issue to ships to which it has granted the right to fly its flag documents to that effect. The issue of such documents is regulated by domestic law. 64. International law recognizes several modalities for the grant of nationality to different types of ships. In the case of merchant ships, the normal procedure used by States to grant nationality is registration in accordance with domestic legislation adopted for that purpose. This procedure is adopted by Saint Vincent and the Grenadines in the Merchant Shipping Act. 65. Determination of the criteria and establishment of the procedures for granting and withdrawing nationality to ships are matters within the exclusive jurisdiction of the flag State. Nevertheless, disputes concerning such matters may be subject to the procedures under Part XV of the Convention, especially in cases where issues of interpretation or application of provisions of the Convention are involved. 66. The Tribunal considers that the nationality of a ship is a question of fact to be determined, like other facts in dispute before it, on the basis of evidence adduced by the parties. ... 72. On the basis of the evidence before it, the Tribunal finds that Saint Vincent and the Grenadines has discharged the initial burden of establishing that the Saiga had Vincentian nationality at the time it was arrested by Guinea. Guinea had therefore to prove its contention that the ship was not registered in or did not have the nationality or Saint Vincent and the Grenadines at that time. The Tribunal considers that the burden has not been discharged and that it has not been established that the Saiga was not registered in or did not have the nationality of Saint Vincent and the Grenadines at the time of the arrest. 73. The Tribunal concludes:

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(a) it has not been established that the Vincentian registration or nationality of the Saiga was extinguished in the period between the date on which the Provisional Certificate of Registration was stated to expire and the date of issue of the Permanent Certificate of Registration; (b) in the particular circumstances of this case, the consistent conduct of Saint Vincent and the Grenadines provides sufficient support for the conclusion that the Saiga retained the registration and nationality of Saint Vincent and the Grenadines at all times material to the dispute; (c) in view of Guinea’s failure to question the assertion of Saint Vincent and the Grenadines that it is the flag State of the Saiga when it had every reasonable opportunity to do so and its other conduct in the case, Guinea cannot successfully challenge the registration and nationality of the Saiga at this stage; (d) in the particular circumstances of this case, it would not be consistent with justice if the Tribunal were to decline to deal with the merits of the dispute. 74. For the above reasons, the Tribunal rejects Guinea’s objection to the admissibility of the claims of Saint Vincent and the Grenadines based on the ground that the Saiga was not registered in Saint Vincent and the Grenadines at the time of its arrest and that, consequently, the Saiga did not have Vincentian nationality at that time.”46

On the requirement of Article 91(1) of the Convention of the genuine link, the tribunal held that: 79. Article 91, paragraph 1, of the Convention provides: “There must exist a genuine link between the State and the ship.” Two questions need to be addressed in this connection. The first is whether the absence of a genuine link between a flag State and a ship entitles another State to refuse to recognize the nationality of the ship. The second question is whether or not a genuine link existed between the Saiga and Saint Vincent and the Grenadines at the time of the incident. 46

Ibid.

286 Chapter 4. The International Tribunal for the Law of the Sea 80. With regard to the first question, the Tribunal notes that the provision in Article 91, paragraph 1, of the Convention, requiring a genuine link between the State and the ship, does not provide the answer. Nor do Articles 92 and 94 of the Convention, which together with Article 91 constitute the context of the provision, provide the answer. The Tribunal, however, recalls that the International Law Commission, in Article 29 of the Draft Articles on the Law of the Sea adopted by it in 1956, proposed the concept of a “genuine link” as a criterion not only for the attribution of nationality to a ship but also for the recognition by other States of such nationality. After providing that “[s]hips have the nationality of the State whose flag they are entitled to fly”, the draft article continued: “Nevertheless, for purposes of recognition of the national character of the ship by other States, there must exist a genuine link between the State and the ship”. This sentence was not included in Article 5, paragraph 1, of the Convention on the High Seas of 29 April 1958 (hereinafter “the 1958 Convention”), which reads, in part, as follows: There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. Thus, while the obligation regarding a genuine link was maintained in the 1958 Convention, the proposal that the existence of a genuine link should be a basis for the recognition of nationality was not adopted. 81. The Convention follows the approach of the 1958 Convention. Article 91 retains the part of the third sentence of Article 5, paragraph 1, of the 1958 Convention which provides that there must be a genuine link between the State and the ship. The other part of that sentence, stating that the flag State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag, is reflected in Article 94 of the Convention, dealing with the duties of the flag State. 82. Paragraphs 2 to 5 of Article 94 of the Convention outline the measures that a flag State is required to take to exercise effective jurisdiction as envisaged in paragraph 1. Paragraph 6 sets out the procedure to be followed where another State has “clear grounds

Jurisdiction of the ITLOS in Contentious Cases

83.

84.

85.

86.

287

to believe that proper jurisdiction and control with respect to a ship have not been exercised”. That State is entitled to report the facts to the flag State which is then obliged to “investigate the matter and, if appropriate, take any action necessary to remedy the situation”. There is nothing in Article 94 to permit a State which discovers evidence indicating the absence of proper jurisdiction and control by a flag State over a ship to refuse to recognize the right of the ship to fly the flag of the flag State. The conclusion of the Tribunal is that the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States. This conclusion is not put into question by the United Nations Convention on Conditions for Registration of Ships of 7 February 1986 invoked by Guinea. This Convention (which is not in force) sets out as one of its principal objectives the strengthening of “the genuine link between a State and ships flying its flag”. In any case, the Tribunal observes that Guinea has not cited any provision in that Convention which lends support to its contention that “a basic condition for the registration of a ship is that also the owner or operator of the ship is under the jurisdiction of the flag State”. The conclusion is further strengthened by the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks opened for signature on 4 December 1995 and the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas of 24 November 1993. These Agreements, neither of which is in force, set out, inter alia, detailed obligations to be discharged by the flag States of fishing vessels but do not deal with the conditions to be satisfied for the registration of fishing vessels. In the light of the above considerations, the Tribunal concludes that there is no legal basis for the claim of Guinea that it can refuse to recognize the right of the Saiga to fly the flag of Saint Vincent

288 Chapter 4. The International Tribunal for the Law of the Sea and the Grenadines on the ground that there was no genuine link between the ship and Saint Vincent and the Grenadines. 87. With regard to the second question, the Tribunal finds that, in any case, the evidence adduced by Guinea is not sufficient to justify its contention that there was no genuine link between the ship and Saint Vincent and the Grenadines at the material time.47

In regard to the arguments of the respondent based on the rule that local remedies should have been exhausted the tribunal explained that: 95. Before dealing with the arguments of the parties, it is necessary to consider whether the rule that local remedies must be exhausted is applicable in the present case. Article 295 of the Convention reads as follows: Article 295 Exhaustion of local remedies Any dispute between States Parties concerning the interpretation or application of this Convention may be submitted to the procedures provided for in [section 2 of Part XV] only after local remedies have been exhausted where this is required by international law. 96. It follows that the question whether local remedies must be exhausted is answered by international law. The Tribunal must, therefore, refer to international law in order to ascertain the requirements for the application of this rule and to determine whether or not those requirements are satisfied in the present case. 97. The Tribunal considers that in this case the rights which Saint Vincent and the Grenadines claims have been violated by Guinea

Ibid. Other cases in which “prompt release” was requested and in which the ITLOS discussed its jurisdiction are The “Camouco” Case (2000), Case No. 5; The “Monte Confurco” Case (2000), Case No. 6; The “Grand Prince” Case (2001), Case No. 8; The “Volga” Case (2002) Case No. 11; The “Juno Trader” Case (2004), Case No. 13; The “Hoshinmaru” Case (2007), Case No. 14; The “Tomimaru” Case (2007), Case No. 15. All these cases appear on <www.itlos.org>. 47

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are all rights that belong to Saint Vincent and the Grenadines under the Convention (Articles 33, 56, 58, 111 and 292) or under international law. The rights claimed by Saint Vincent and the Grenadines are listed in its submissions and may be enumerated as follows: (a) the right of freedom of navigation and other internationally lawful uses of the seas; (b) the right not to be subjected to the customs and contraband laws of Guinea; (c) the right not to be subjected to unlawful hot pursuit; (d) the right to obtain prompt compliance with the Judgment of the Tribunal or 4 December 1997; (e) the right not to be cited before the criminal courts of Guinea. 98. As stated in Article 22 of the Draft Articles on State Responsibility adopted on first reading by the International Law Commission, the rule that local remedies must be exhausted is applicable when “the conduct of a State has created a situation not in conformity with the result required of it by an international obligation concerning the treatment to be accorded to aliens . . .”. None of the violations of rights claimed by Saint Vincent and the Grenadines, as listed in paragraph 97, can be described as breaches of obligations concerning the treatment to be accorded to aliens. They are all direct violations of the rights of Saint Vincent and the Grenadines. Damage to the persons involved in the operation of the ship arises from those violations. Accordingly, the claims in respect of such damage are not subject to the rule that local remedies must be exhausted. 99. But even if the Tribunal accepts Guinea’s contention that some of the claims made by Saint Vincent and the Grenadines in respect of natural or juridical persons did not arise from direct violations of the rights of Saint Vincent and the Grenadines, the question remains whether the rule that local remedies must be exhausted applies to any of these claims. The parties agree that a prerequisite for the application of the rule is that there must be a jurisdictional connection between the person suffering damage and the State responsible for the wrongful act which caused the damage. Saint Vincent and the Grenadines argues that no such jurisdictional connection existed in this case, while Guinea contends that the

290 Chapter 4. The International Tribunal for the Law of the Sea presence and activities of the Saiga in its customs radius were enough to establish such connection. 100. In the opinion of the Tribunal, whether there was a necessary jurisdictional connection between Guinea and the natural or juridical persons in respect of whom Saint Vincent and the Grenadines made claims must be determined in the light of the findings of the Tribunal on the question whether Guinea’s application of its customs laws in a customs radius was permitted under the Convention. If the Tribunal were to decide that Guinea was entitled to apply its customs laws in its customs radius, the activities of the Saiga could be deemed to have been within Guinea’s jurisdiction. If, on the other hand, Guinea’s application of its customs laws in its customs radius were found to be contrary to the Convention, it would follow that no jurisdictional connection existed. The question whether Guinea was entitled to apply its customs laws is dealt with in paragraphs 110 to 136. For reasons set out in those paragraphs, the Tribunal concludes that there was no jurisdictional connection between Guinea and the natural and juridical persons in respect of whom Saint Vincent and the Grenadines made claims. Accordingly, on this ground also, the rule that local remedies must be exhausted does not apply in the present case.48

On the nationality of claims the tribunal in effect followed customary international law in rejecting the objections of the respondents, although it founded its conclusion on the provisions of the Convention. It stated: 103. In its last objection to admissibility, Guinea argues that certain claims of Saint Vincent and the Grenadines cannot be entertained by the Tribunal because they relate to violations of the rights of persons who are not nationals of Saint Vincent and the Grenadines. According to Guinea, the claims of Saint Vincent and Grenadines in respect of loss or damage sustained by the ship, its owners, the master members of the crew and persons,

48

Case No. 2 (1999), <www.itlos.org>.

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including the owners of the cargo, are clearly claims of diplomatic protection. In its view, Saint Vincent and the Grenadines is not competent to institute these claims on behalf of the persons concerned since none of them is a national of Saint Vincent and the Grenadines. During the oral proceedings, Guinea withdrew its objection as far as it relates to the shipowners, but maintained it in respect of the other persons. 104. In opposing this objection, Saint Vincent and the Grenadines maintains that the rule of international law that a State is entitled to claim protection only for its nationals does not apply to claims in respect of persons and things on board a ship flying its flag. In such cases, the flag State has the right to bring claims in respect of violations against the ship and all persons on board or interested in its operation. Saint Vincent and the Grenadines, therefore, asserts that it has the right to protect the ship flying its flag and those who serve on board, irrespective of their nationality. 105. In dealing with this question, the Tribunal finds sufficient guidance in the Convention. The Convention contains detailed provisions concerning the duties of flag States regarding ships flying their flag. Articles 94 and 217, in particular, set out the obligations of the flag State which can be discharged only through the exercise of appropriate jurisdiction and control over natural and juridical persons such as the Master and other members of the crew, the owners or operators and other persons involved in the activities of the ship. No distinction is made in these provisions between nationals and non-nationals of a flag State. Additionally, Articles 106, 110, paragraph 3, and 111, paragraph 8, of the Convention contain provisions applicable to cases in which measures have been taken by a State against a foreign ship. These measures are, respectively, seizure of a ship on suspicion of piracy, exercise of the right of visit on board the ship, and arrest of a ship in exercise of the right of hot pursuit. In these cases, the Convention provides that, if the measures are found not to be justified, the State taking the measures shall be obliged to pay compensation “for any loss or damage” sustained. In these cases, the Convention does not relate the right to compensation to the nationality of persons suffering loss or damage. Furthermore, in relation to proceedings for prompt release under

292 Chapter 4. The International Tribunal for the Law of the Sea Article 292 of the Convention, no significance is attached to the nationalities of persons involved in the operations of an arrested ship. 106. The provisions referred to in the preceding paragraph indicate that the Convention considers a ship as a unit, as regards the obligations of the flag State with respect to the ship and the right of a flag State to seek reparation for loss or damage caused to the ship by acts of other States and to institute proceedings under Article 292 of the Convention. Thus the ship, every thing on it, and every person involved or interested in its operations are treated as an entity, linked to the flag State. The nationalities of these persons are not relevant. 107. The Tribunal must also call attention to an aspect of the matter which is not without significance in this case. This relates to two basic characteristics of modern maritime transport: the transient and multinational composition of ships’ crews and the multiplicity of interests that may be involved in the cargo on board a single ship. A container vessel carries a large number of containers, and the persons with interests in them may be of many different nationalities. This may also be true in relation to cargo on board a break-bulk carrier. Any of these ships could have a crew comprising persons of several nationalities. If each person sustaining damage were obliged to look for protection from the State or which such person is a national, undue hardship would ensue.49

(h) Jurisdiction in Respect of Remedies In the M/V “Saiga” (No. 2) Case the tribunal was requested by the claimant state to award damages and interest. The tribunal took the view that the Convention did give it the authority to accede to such a request, while noting in effect that under customary international law also providing reparation, which included an award of damages, was within the jurisdiction of the tribunal. The tribunal stated in this connection:

49

Ibid.

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167. Saint Vincent and the Grenadines requests the Tribunal to declare that Guinea is liable, under Article 111, paragraph 8, of the Convention and under international law which applies by virtue of Article 304 of the Convention, for damages for violation of its rights under the Convention. 168. Saint Vincent and the Grenadines claims compensation for material damage in respect of natural and juridical persons. Compensation is claimed in respect of damage to the ship, financial losses of the shipowners, the operators of the Saiga, the owners of the cargo, and the Master, members of the crew and other persons on board the ship. Compensation is also claimed in respect of loss of liberty and personal injuries, including pain and suffering. Saint Vincent and the Grenadines requests that interest be given at the rate of 8% on the damages awarded for material damage. 169. Article 111, paragraph 8, of the Convention provides: Where a ship has been stopped or arrested outside the territorial sea in circumstances which do not justify the exercise of the right of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained. Reparation may also be due under international law as provided for in Article 304 of the Convention, which provides: The provisions of this Convention regarding responsibility and liability for damage are without prejudice to the application of existing rules and the development of further rules regarding responsibility and liability under international law. 170. It is a well-established rule of international law that a State which suffers damage as a result of an internationally wrongful act by another State is entitled to obtain reparation for the damage suffered from the State which committed the wrongful act and that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed” (Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J. Series A. No. 17, p. 47). 171. Reparation may be in the form of “restitution in kind, compensation, satisfaction and assurances and guarantees of non-repetition,

294 Chapter 4. The International Tribunal for the Law of the Sea either singly or in combination” (Article 42, paragraph 1, of the Draft Articles of the International Law Commission on State Responsibility). Reparation may take the form of monetary compensation for economically quantifiable damage as well as for non-material damage, depending on the circumstances of the case. The circumstances include such factors as the conduct of the State which committed the wrongful act and the manner in which the violation occurred. Reparation in the form of satisfaction may be provided by a judicial declaration that there has been a violation of a right. 172. In the view of the Tribunal, Saint Vincent and the Grenadines is entitled to reparation for damage suffered directly by it as well as for damage or other loss suffered by the Saiga, including all persons involved or interested in its operation. Damage or other loss suffered by the Saiga and all persons involved or interested in its operation comprises injury to persons, unlawful arrest, detention or other forms of ill-treatment, damage to or seizure of property and other economic losses, including loss of profit. 173. The Tribunal considers it generally fair and reasonable that interest is paid in respect of monetary losses, property damage and other economic losses. However, it is not necessary to apply a uniform rate of interest in all instances.50

There was a clear understanding that the tribunal was invested with jurisdiction to provide remedies by way of reparation. (i) Reopening Cases Neither the Convention nor the Statute of the ITLOS deals with the revision of judgments of the tribunal. The Statute does in Article 33 provide, on the other hand, that decisions of the tribunal are final. The same article in paragraph 3 expressly provides for interpretation of decisions by the tribunal. It is, thus, difficult to suggest what could be made of the omission of a specific reference to the jurisdiction to revise decisions. In this respect the tribunal’s Statute

50

Ibid.

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is different from the Statute of the ICJ which provides for revision of judgments when specific conditions are satisfied (Article 61). The ICJ’s Statute provides for revision, even though in Article 60 it is stated that judgments are final and without appeal. It is a good argument that Article 61 of the ICJ Statute incorporates at the minimum an inherent jurisdictional power of an international court or tribunal regardless whether judgments or decisions are said to be final, which is recognized in general international law. If the argument is accepted, the ITLOS would have the jurisdiction to review cases in the circumstances referred to in Article 61 of the Statute of the ICJ.51 ( j) The Special Jurisdiction of the Seabed Disputes Chamber (SBDC) The SBDC, though now constituted, has not had any disputes referred to it or to a chamber of the SBDC.52 The Convention, meanwhile, has provisions which determine the jurisdiction of the SBDC. The principal article is Article 187 which provides: The Sea-Bed Disputes Chamber shall have jurisdiction under this Part and the Annexes relating thereto in disputes with respect to activities in the Area falling within the following categories: (a) disputes between States Parties concerning the interpretation or application of this Part and the Annexes relating thereto; (b) disputes between a State Party and the Authority concerning: (i) acts or omissions of the Authority or of a State Party alleged to be in violation of this Part or the Annexes

See the discussion of the ICJ’s jurisdiction in regard to revision in chapter 2 above. 52 Article 188 of the Convention provides for special chambers of the SBDC, rather than the SBDC, to decide disputes over which the SBDC has jurisdiction. 51

296 Chapter 4. The International Tribunal for the Law of the Sea relating thereto or of rules, regulations and procedures of the Authority adopted in accordance therewith; or (ii) acts of the Authority alleged to be in excess of jurisdiction or a misuse of power; (c) disputes between parties to a contract, being States Parties, the Authority or the Enterprise, state enterprises and natural or juridical persons referred to in Article 153, paragraph 2 (b), concerning: (i) the interpretation or application of a relevant contract or a plan of work; or (ii) acts or omissions of a party to the contract relating to activities in the Area and directed to the other party or directly affecting its legitimate interests; (d) disputes between the Authority and a prospective contractor who has been sponsored by a State as provided in Article 153, paragraph 2 (b), and has duly fulfilled the conditions referred to in Annex III, Article 4, paragraph 6, and Article 13, paragraph 2, concerning the refusal of a contract or a legal issue arising in the negotiation of the contract; (e) disputes between the Authority and a State Party, a State enterprise or a natural or juridical person sponsored by a State Party as provided for in Article 153, paragraph 2(b), where it is alleged that the Authority has incurred liability as provided in Annex III, Article 22; (f) any other disputes for which the jurisdiction of the Chamber is specifically provided in this Convention.53

Article 189, which deals with the limitation on jurisdiction with regard to decisions of the Seabed Authority provides: The Area is as defined in Article 1 of the Convention. Article 153(2)(b) deals with states parties to the Convention, state enterprises and natural or juridical persons which may be involved in the system of exploration and exploitation of the Seabed Area. Annex III, Article 4(6) of the Convention deals with the qualifications of applicants for exploration and exploitation of the Seabed Area. Article 13(2) of Annex III deals with fees to be levied for the administrative cost of processing applications. Article 22 of Annex III deals with the responsibility or liability for damage of contractors and the Seabed Authority. 53

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The Sea-Bed Disputes Chamber shall have no jurisdiction with regard to the exercise by the Authority of its discretionary powers . . . in no case shall it substitute its discretion for that of the Authority. Without prejudice to Article 191, in exercising its jurisdiction pursuant to Article 187, the Sea-Bed Disputes Chamber shall not pronounce itself on the question of whether any rules, regulations and procedures of the Authority are in conformity with this Convention, nor declare invalid any such rules, regulations and procedures. Its jurisdiction in this regard shall be confined to deciding claims that the application of any rules, regulations and procedures of the Authority in individual cases would be in conflict with the contractual obligations of the parties to the dispute or their obligations under this Convention, claims concerning excess of jurisdiction or misuse of power, and to claims for damages to be paid or other remedy to be given to the party concerned for the failure of the other party to comply with its contractual obligations or its obligations under this Convention.54

Parties to disputes over which the SBDC has jurisdiction may be states parties to the Convention, the Seabed Authority, the Enterprise, state enterprises and natural or juridical persons (referred to in Article 153(2)(b) of the Convention. Disputes between states parties concerning the interpretation or application of Part XI of the Convention, dealing with the Seabed Area, and the annexes relating thereto may be submitted to a special chamber of the tribunal at the request of the parties, or to an ad hoc chamber of the SBDC at the request of any party (Convention, Article 188(1)). Disputes concerning the interpretation or application of a contract referred to in Article 187(c)(1) of the Convention are required to be submitted, at the request of a party, to binding commercial arbitration, unless the parties otherwise agree. However, a commercial arbitral tribunal has no jurisdiction to decide any question of interpretation of the Convention. When the dispute also involves a question of the interpretation of Part XI and the annexes relating thereto, with respect to activities in

Article 191 deals with jurisdiction of the SBDC with regard to advisory opinions. 54

298 Chapter 4. The International Tribunal for the Law of the Sea the area, that question shall be referred to the SBDC for a ruling (Convention, Article 188(2)). In other respects, with some exceptions, which may be obvious, the SBDC would have a jurisdiction similar to the ITLOS itself – mutatis mutandis, of course. Thus, for example, there would be the same incidental jurisdiction, save the jurisdiction in cases of “prompt release”.

5 INTERNATIONAL ADMINISTRATIVE TRIBUNALS

(1) FUNDAMENTAL CONSIDERATIONS International administrative tribunals (IATs), like other international tribunals, generally are clearly tribunals of limited jurisdiction (juridiction d’attribution) and not of general jurisdiction (juridiction de droit commun), as was recognized by the ICJ specifically in relation to the ILOAT.1 Consequently, these tribunals have jurisdictional competence only to the extent that their statutes or governing instruments grant it. Basically, the international organization establishing tribunals or accepting their jurisdiction consents to their jurisdiction to the extent attributed by their statutes, insofar as they are always respondents in cases brought before the tribunal. The staff member or association consents to jurisdiction whenever jurisdiction is invoked by the staff member or association.

Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 97. 1

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On the other hand, as also conceded by the ICJ, the arguments deduced from the sovereignty of states, which might have been invoked in favour of a very narrow and restrictive interpretation of provisions governing the jurisdiction of a tribunal adjudicating between states, are not relevant to a situation in which a tribunal is called upon to adjudicate upon complaints brought by officials against international organizations.2 Thus, while the limitations upon competence must be observed,3 a fairly liberal approach may be taken to the interpretation of the provisions governing their jurisdiction of the basic instruments of tribunals. That limitations on jurisdictional competence are important was acknowledged by the ILOAT also when it held in Darricades that, as a court of limited jurisdiction, it was bound to apply mandatory provisions governing its competence, even though, as a result the applicant was deprived of any means of judicial redress against the particular injury.4 It may be noted at the outset that the law relating to their jurisdiction has long since been more or less established by IATs. Apart from the distinction between competence and receivability, there is also a distinction between the assumption of jurisdiction and the continuing exercise of jurisdiction.5 There have been decisions concerning the powers of IATs in this broad sense. Thus, it has been held by the ICJ that the UNAT has power to render judgments binding upon the UN and particularly its General Assembly,6 and tribunals have held that they may not legislate or arbitrate by Ibid. Judge Hackworth particularly recognized the importance of such limitations in this case in regard to the ILOAT: ibid. at p. 117. His view was not in conflict with that of the Court. It merely emphasized the limited nature of the ILOAT’s jurisdiction. 4 ILOAT Judgment No. 67 [1962] at p. 5. 5 See Judge Read in Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 143. In many instances tribunals, particularly the ECJ and OECD Appeals Board, have discussed matters of competence as matters of receivability. In fact generally the two tribunals mentioned describe matters relating to compétence as being related to recevabilité. Whether a matter relates to competence or receivability must therefore be determined by reference to the real issue which is the subject matter of the ruling. 6 Effect of Awards of Compensation Opinion, 1954 ICJ Reports p. 47. 2 3

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laying down general rules and establishing a timetable but must decide cases brought before them according to law,7 that they may not give advisory opinions or declaratory judgments,8 that they may not interfere with policy measures unless they involve an abuse of discretion,9 that annulment of a decision was within a tribunal’s power where jurisdiction had been conferred by an arbitration clause,10 by implication that a tribunal was under no obligation to investigate or examine a plea that had not been made,11 that the kind of remedial action it may take may be defined and limited,12 and that a tribunal may not award compensation in excess of the maximum specified in its Statute.13 However, limitations of jurisdiction of this nature relate to the broadest exercise of powers by tribunals. Jurisdictional competence in the primary sense being discussed here is more limited and concerns the power to assume jurisdiction in a given case. There is one respect of a general nature in which there is an implied restriction by general principle on the power of tribunals to assume jurisdiction. It is generally agreed that IATs in one way or another exercise jurisdiction only over administrative decisions of organizations in respect of staff members. The legality of legislative or policy instruments are not pronounced on in the abstract and as such. Thus in Agodo it was stated: The Statute contemplates the making by the Respondent of a “decision” that adversely affects the applicant specifically and that will justify “compensations . . . for an injury individually sustained. . . . See Cook et al., IDBAT Reports [1985], Decision No. 5. See The World Bank Staff Association, WBAT Reports [1987], Decision No. 40; Agodo, WBAT Reports [1987], Decision No. 41. 9 See Einthoven, WBAT Reports [1985], Decision No. 23. 10 See Bourgaux, ECJ Case 1/56 [1954–6] ECR p. 361. 11 See the Application for Review of Judgment No. 158 of the UNAT Opinion, 1973 ICJ Reports at pp. 206–7. 12 See e.g., Sharif, UNAT Judgment No. 358 [1985]; van der Peet (No. 13), ILOAT Judgment No. 934 [1988]. 13 See the Effect of Awards of Compensation Opinion, 1954 ICJ Reports p. 47. 7 8

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Chapter 5. International Administrative Tribunals In all other cases decided by the Tribunal, the applicant has alleged some detriment to his own status, compensation or working conditions resulting from a specific Bank decision affecting him . . .14

In Brisco the tribunal decided that it had no jurisdiction in the case on the grounds that the application was in effect directed against a general rule regarding employment benefits, rather than an individualized application of that rule to the applicant himself, and that the application was not directed at any specific decision by the respondent denying him expatriate benefits.15 Jurisdictional competence has, whether by the written law governing IATs or by general principles of law, usually been limited by reference to time (ratione temporis), to person (ratione personae), or to subject matter (ratione materiae). The provisions dealing with and governing the jurisdictional competence of the various tribunals vary. It is not the purpose here to examine these provisions individually and in detail. The object is to examine the main issues which have arisen in determining the jurisdictional competence of IATs.16 Generally the statutes of IATs provide that the tribunals themselves have the power to settle any disputes as to their own com-

WBAT Reports [1987], Decision No. 41 at pp. 14–15. See also The World Bank Staff Association [1987], Decision No. 40 at pp. 38–40. 15 WBAT Reports [1992], Decision No. 118 at p. 11. For similar views see, e.g., Castro, IDBAT Reports [1985], Decision No. 5; Decision No. 206, NATO Appeals Board [1986]. More recently see, e.g., Ngoma ILOAT Judgment No. 1134 [1992]. 16 As an example of provisions relating to competence Article 2 of the UNAT Statute may be taken. Provisions of other statutes dealing with competence are, e.g., Article II of the ILOAT Statute, Article II of the WBAT Statute, Article II of the IDBAT Statute, Articles 59 and 60 of the Staff Regulations of the Council of Europe and Article 5 of the Statute of the Appeals Board of the Council of Europe, Article II of the Statute of the OASAT, Regulation 22 of the Staff Regulations of OECD. These and other statutes and regulations are reproduced in C.F. Amerasinghe (ed.), Documents on International Administrative Tribunals (1989) passim. 14

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petence.17 It does not seem that a dispute as to competence must always arise between the parties in order that the tribunal examine the question of its jurisdiction, as there are cases in which tribunals have pronounced on their jurisdiction proprio motu.18 In other words, tribunals keep careful watch over the limits of their competence and may always determine whether they have jurisdictional competence or not before dealing with the merits of a case. (2) CONSTITUTION

OF

TRIBUNALS

(a) General The issue of the legality of establishment of IATs, which may be raised as a jurisdictional issue, provokes several questions.19 The first question relates to principles of interpretation of the constitutional instruments of international organizations from which the power to establish IATs must be derived. Where constitutions of international organizations expressly provide for the establishment of an internal court such as an administrative tribunal, or a judicial organ which can function as an administrative tribunal, as was the case with the treaties creating the EEC, EURATOM, and the ECSC,20 the Statute of UNIDROIT,21 and the Agreement establishing OAPEC,22 See, e.g., Article 2(3) of the UNAT Statute; Article II(7) of the ILOAT Statute, Article III of the WBAT Statute, Article 4 of the Statute of the Council of Europe Appeals Board: see Amerasinghe (ed.), op. cit. note 16. 18 See, e.g., de Merode, WBAT Reports [1981], Decision No. 1; Decision No. 12, OEEC Appeals Board [1952], Recueil des décisions 1 à 62 (1979) p. 40. Some tribunals such as the OASAT pronounce on their jurisdiction as a matter of routine. 19 What follows on this subject is based on C.F. Amerasinghe, 1 The Law of the International Civil Service (1994) pp. 31 ff. 20 See Articles 164 ff. of the EEC Treaty, Articles 136 ff. of the EURATOM Treaty, and Article 31 of the ECSC Treaty which set up the ECJ. 21 See Articles 7 bis ff.: C.F. Amerasinghe (ed.), 2 Statutes and Rules of Procedure of International Administrative Tribunals (1984) p. 133. 22 See Articles 21 ff.: C.F. Amerasinghe (ed.), 2 ibid. p. 151. 17

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no problems of interpretation arise in order to derive the authority of the organization to set up an administrative tribunal or an organ which may function as an administrative tribunal. Conversely, where the constitutive instrument of an international organization expressly or implicitly prohibits or contains some legal impediment to the establishment of international administrative tribunal, it is clear that the organization would not have the authority to set up such a tribunal. In fact, there are no known constitutive instruments of this kind. It is where the constitutive instrument of an organization neither expressly nor implicitly prohibits nor contains any legal impediment to the establishment of an administrative tribunal that principles of interpretation need to be invoked. In reality, as far as is known, all extant organizations, except the few mentioned earlier which have specific provision in their constitutive instruments to establish tribunals, have constitutive instruments of this kind. Indeed, all the organizations which have established administrative tribunals or have agreed to submit their internal employment disputes to an administrative tribunal established by another organization belong to this category. The principle of functional or teleological interpretation23 is well recognized in international jurisprudence. By the application of this principle, where constitutive instruments are silent, it has long been accepted that those constitutional documents must be interpreted in the light of the doctrine of implied powers. Not only has the practice of international organizations supported this approach to interpretation but as early as 1949 the ICJ upheld this view in its advisory opinion in the Reparation for Injuries Opinion.24 There it said, speaking of the UN in particular: “Under international law, the This principle is also referred to as the principle of effective interpretation. For the principle see H. Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties”, 26 BYIL (1949) p. 48 at pp. 67 ff. For treaty interpretation in general see works cited in Brownlie, Principles of Public International Law (1998) p. 631, n. 126. 24 1949 ICJ Reports p. 174. 23

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Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.”25 This principle is equally applicable generally. In the same judgment the Court explained further that “the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implicit in its constituent documents and developed in practice.”26 The application of the doctrine of implied powers which emerged from the Reparation for Injuries Opinion has been developed subsequently and has been given effect to on a teleological basis.27 As a consequence of this principle the competence of international organizations has been considerably expanded beyond the express terms of their constituent instruments, because resort has been had to interpretations according to which the exercise of powers in accordance with the expressed purposes of an organization is regarded as being intra vires.28 In the implementation of the principle a flexible and effective approach has been advocated and considered justifiable in so far as it relates to the interpretation of a constitution or an organization.29 In practice, the doctrine of implied powers has been interpreted by international organizations to permit the attribution of such powers to an international organization not only as arise by necessary intendment from the constitutional

Ibid. at p. 182. See also Fitzmaurice, “The Law and Procedure of the International Court of Justice: International Organizations and Tribunals”, 29 BYIL (1952) p. 1 at pp. 5 ff. 26 1949 ICJ Reports p. 180. See also the advisory opinion on Competence of the International Labor Organization to Regulate, Incidentally, the Personal Work of Employers (1926), PCIJ Series B, No. 13 at p. 18. 27 For an explanation of the doctrine see Seyersted, “International Personality of Intergovernmental Organizations”, 4 IJIL (1964) pp. 1 ff. 28 See, e.g., Bishop, International Law: Cases and Materials (1971) p. 262, and the Namibia Case, 1971 ICJ Reports at pp. 47 ff., 52, 132 (Judge Petren), 150, 163 ff. (Judge Dillard), 184 ff. (Judge de Castro), 223 ff., 279 ff. (Judge Fitzmaurice), 338 ff. (Judge Gros). 29 See Vallat, “The Competence of the United Nations General Assembly”, 97 Hague Recueil (1959) p. 207 at pp. 249 ff. 25

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provisions,30 but also from the implying of powers relating to the purposes and functions specified in the constitution.31 The doctrine of implied powers as applied to the constituent instruments of international organizations has been somewhat modified subsequently but not entirely transformed. Thus, in the United Nations Expenses Opinion the ICJ did make the statement that “when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization.”32 This would seem to be slightly different from the position it took in the earlier Reparation for Injuries Opinion. It is not fundamentally different, however, in so far as it does retain the reference to the stated purposes of the organization as a touchstone for determining whether a power may be exercised by an organization or not. However, the Court did not explicitly use the concept of “implied powers” in this case in deriving its conclusion. This could warrant a further refinement of the doctrine of implied powers in relation to international organizations. Indeed, one author has ventured to propound the view that it is not a theory of “implied powers” that is applicable to the constitutions of international organizations but a principle of “inherent powers” or “inherent capacity”.33 It is not readily apparent what the distinction between the two views is, but in effect there are certain differences both in result and in the technique of deriving powers that do exist. However, both views do relate the non-express powers and capacity of international organizations to the stated purposes of the organizations. Just as the ICJ in the United Nations Expenses Opinion referred to the “stated purposes” of the organization as being the criterion for determining whether a power could be exercised by the organization, it has been stated that See Seidl-Hohenveldern, “Die völkerrechtliche Haftung für Handlungen internationaler Organisationen in Verhältnis zu Nichtmitgliedstaaten”, Osterreichische Zeitschrift für öffentliches Recht (1961) p. 467. 31 Seyersted, Objective Personality of International Organizations (1963). 32 1962 ICJ Reports p. 151 at p. 168. 33 See Seyersted, op. cit. note 27 at p. 22. 30

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The constitutions of all intergovernmental organizations as opposed to those of States, define and thereby limit the purposes of the organization. The organization is therefore not constitutionally entitled to perform acts designed to further other purposes.34

Both theories also agree that an organization may not perform acts or exercise powers which are expressly forbidden by its constitution. In spite of the differences between the two theories which in fact are fairly limited, clearly the exercise of a power which would be permitted by either theory would be intra vires the organization concerned. The second issue is whether the UNAT in particular was legally established under the UN Charter. In the view of the ICJ the General Assembly of the UN had the power to establish an administrative tribunal. In the Effect of Awards of Compensation Opinion the Court explained the reasons for its conclusion at length and justified it as follows: When the Secretariat was organized, a situation arose in which the relations between the staff members and the Organization were governed by a complex code of law. This code consisted of the Staff Regulations established by the General Assembly, defining the fundamental rights and obligations of the staff, and the Staff rules, made by the Secretary General in order to implement the Staff Regulations. It was inevitable that there would be disputes between the Organization and staff members as to their rights and duties. The Charter contains no provision which authorizes any of the principal organs of the United Nations to adjudicate upon these disputes and Article 105 secures for the United Nations jurisdictional immunities in national courts. It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which arise between it and them.

34

Ibid. at p. 23.

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Chapter 5. International Administrative Tribunals In these circumstances, the Court finds that the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity. Capacity to do this arises by necessary intendment out of the Charter.35

The Court based its conclusion clearly on the principle which has been discussed above, namely that the organization must be deemed to have those powers which, though not expressly provided for in the constituent instrument, were conferred upon it by necessary implication as being essential to the performance of its duties.36 Although it did not in that explanation mention a particular article of the Charter, it is apparent that is also based its conclusion on the fact that Article 101 of the Charter required giving effect to the paramount consideration of “securing the highest standards of efficiency, competence and integrity.” It is of importance that the ICJ in the Effect of Awards Opinion took the view that the UN had the authority to establish a true judicial organ with independence and the capacity to give binding decisions like any court of a national state. The administrative tribunal set up by the UN was not a subsidiary organ of the General Assembly of the UN exercising delegated powers. The argument that the tribunal was subordinate to the General Assembly, which could not be bound by its judgments, was rejected by the Court.37 The conclusion reached was that the UN had authority to create a judicial body, namely an administrative tribunal, which could decide disputes relating to employment and could bind the organization, including the principal organ of the organization which created it, namely the General Assembly. It is also of significance that the Court in its advisory opinion did express the view that, though provision could be made by the 1954 ICJ Reports at p. 57. Ibid. at p. 56, citing the Reparation for Injuries Opinion, 1949 ICJ Reports at p. 182. 37 1954 ICJ Reports at p. 61. 35 36

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General Assembly which had established the tribunal for the review of future judgments of the administrative tribunal (which in any case would be binding, until thus reviewed), as had not been done up to that time, “the General Assembly itself, in view of its composition and functions, could hardly act as a judicial organ – considering the arguments of the parties, appraising the evidence produced by them, establishing the facts and declaring the law applicable to them – all the more so as one party to the disputes is the United Nations Organization itself.”38 This confirms the position that the administrative tribunal was a judicial organ whose judgments could only be reviewed by another body of a judicial nature, the creation of such organs to settle disputes in the field of employment relations being well within the powers of the organization. The mere fact that the deliberative and legislative organ of the organization created such bodies did not result in the former having control over them as subsidiary organs. They are neither subsidiary nor subordinate. Even on a theory of inherent powers and capacity it is easy to see that the conclusions reached by the ICJ are supportable. The constituent instrument did not expressly prohibit the purpose for which the administrative tribunal was set up and, indeed, it was consistent with the object of achieving stated purposes of the organization (and no purposes other than these) that the administrative tribunal in the form of a judicial organ with capacity to give decisions final and binding on the organization be established. It does not need much argument to show that the authority to establish an administrative tribunal by its very nature flowed from the inherent or implied capacity of the UN. It may be noted that it was not the burden of the ICJ’s argument that the provisions of Article 101 of the Charter were necessary to give the UN the authority to establish an administrative tribunal in the form in which it was established. The Court clearly used the express provisions of that article to buttress its reasoning. More basic was the notion of essentiality for the performance of its duties

38

Ibid. at p. 56.

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or functions. In this connection, it is significant that, though the League of Nations and the International Institute of Agriculture did not have provisions in their constitutions like Article 101 of the UN Charter, they both established administrative tribunals without having their authority to do so ever questioned. In fact in the case of the International Institute of Agriculture the Italian Court of Cassation in a case decided two years before the administrative tribunal of the organization was established, pointed out that the League of Nations had already set up a tribunal and that the Institute ought to do likewise, without doubting the competence of either to set up tribunals.39 The general arguments used by the ICJ in connection with the UNAT are applicable mutatis mutandis to other IATs. While some international organizations have specific provisions in their constituent instruments giving the organizations power to conduct their personnel relations, other organizations do not. In the case of the World Bank Group, for example, the Articles of Agreement of all institutions give the President responsibility for the organization, appointment, and dismissal of the staff, subject to the general control of the Executive Directors or Board of Directors.40 It would seem to be implied in this responsibility and control given to the President and Executive Directors or Board of Directors that the setting up of a judicial entity to settle disputes in staff matters would be permissible, reasonable, and functionally justifiable. The situation in this respect is comparable to that in the United Nations, where in fact Chapter XV of the Charter is less explicit than the Articles of the Bank Group on the functions of the Secretary General and General Assembly vis-à-vis the staff. In both cases, however, it is clear that functionally the chief executive and a legislative or quasi-legislative organ have responsibility in staff matters. Thus, deriving a power vested in the organizations to set up an administrative tribunal is not difficult. 39 See International Institute of Agriculture v. Profili (1931), 5 AD (1929– 1930), Case No. 254, p. 413. 40 Article V(5)(g) of the IBRD’s Articles; Article IV(5)(b) of the IFC’s Articles and Article VI(5)(b) of the IDA’s Articles.

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On the other hand, the absence of express provisions dealing with the staff and personnel relations in the constituent instrument of an organization does not detract from such a power because it is within the accepted purpose and function of all international organizations to employ staff and conduct smooth and effective personnel relations. Thus, whether the theory of implied powers or the doctrine of inherent powers or capacity is applied, in either case an international organization would have the necessary authority to set up an administrative tribunal or submit to the jurisdiction of a judicial organ established by another international organization, both with the power to give, in the manner of a true judicial organ, decisions binding on the organization concerned, including its deliberative or legislative organ which decided to establish the tribunal or submit to the jurisdiction of the tribunal. (b) The Commonwealth Secretariat International Tribunal Case An illustration may be taken from the implementation of the provisions of the law governing the constitution of a tribunal pursuant to the Statute of the Commonwealth Secretariat International Tribunal. The panel from which a tribunal was chosen consisted of five members (Article IV(5)). A tribunal could have consisted of one member, generally the President, or of three members at the discretion of the President (Article IV(1) and (2)). Rule 1(2) of the Rules of the Tribunal stated that all three members of the tribunal with the President as chairman must hear cases (sic). Rule 23 stated that the President or the Tribunal, when it is in session, could modify the Rules in exceptional circumstances. In one instance a tribunal of three was officially constituted by the President and proceedings including oral hearings were begun. In the course of the proceedings the President, referring to Article IV(1), issued an order appointing one of the three members to continue with the proceedings and adjudicate the case and in effect dissolving the original tribunal. He also referred to Rule 23 and invoked it to modify Rule 1(2) so that one judge could hear and decide the case.

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The issue is whether the constitution of a single judge tribunal in this case was legal in the circumstances. As generally accepted, issues of compétence may be raised proprio motu by the tribunal, if the parties do not raise the issue. The issue was, therefore, clearly one which the later tribunal (single judge) must address. One of the judges who was not the judge appointed by the President to act later as a single judge41 recorded a written statement which was a dissent from the President’s order and pointed out that the appointment made by the President was contrary to law and invalid, even though it was argued that a certain expeditiousness was desirable which was not to be achieved because at least one of the members of the tribunal (the President) was not available to continue with proceedings for a period of six months, the time allotted for the current session of the tribunal having been exhausted. The dissent was as follows: 1. I should like to make some serious reservations concerning the Order of the President of the three member Tribunal, in this case . . . I record these reservations, because, if I did not, I should be guilty of acquiescing in illegality by default . . . 3. I want to state clearly and emphatically that I disagree with the order and that it is contrary to law and invalid in terms of the Statute.

This judge was the present author. The dissent was released to the parties with the approval of the President of the tribunal who also stated that he had no objection to the dissent being sent to any other person or persons. The statement is, thus, not confidential. The dissent is part of the record, although the tribunal, wrongly, did not itself communicate it to the parties as a part of the order. The dissenting opinion was later attached to the judgment (Mohsin Case) by the single judge tribunal in the case in question as Annex A4: see CSAT/3, dated September 2001. In the judgment the decision reflected in the President’s order to constitute a single judge tribunal was adverted to but the matter was not properly raised proprio motu by the single judge as an issue of jurisdiction which it was, nor did the parties raise it, nor was argument heard on it. Thus, the issue of jurisdiction was not raised and in these circumstances the jurisdiction of the tribunal (single judge) was not properly established. 41

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4. In regard to the Order itself I point out that . . . (c) Article VII(2) of the Statute42 cannot modify Article IV.1 and 2 as interpreted in accordance with the principles of international administrative law (Article XIV.1) which apply to all cases concerning contracts of service and obviously include general principles of international administrative procedural law, where the Statute is silent, to the extent that the interpretation deprives Article IV.1 and 2 of its basic meaning. I will explain this impliedly further below. (d) The Rules (particularly Rule 23) are irrelevant in this matter to the extent that they may lead to a conflict with the Statute. I believe the envisaged modification of Rules 1(1) and (2) by the Order is improper because it is in conflict with Article IV.1 and 2 properly interpreted in accordance with the principles referred to in (c) above. This will be dealt with again impliedly below. (e) If Article IV.1 and 2 does not provide for the situation that has arisen, it must be interpreted in the light of the general principles of international administrative law relating to the constitution of tribunals which are based on the principles of public international law. The interpretation given by the Order, as will be seen, is untenable according to these principles. 5. As pointed out by me . . . there were two options in effect available, this considering that none of the members had, e.g., resigned or died, in which case different general principles would apply. Article VII(2) of the Statute provides that the tribunal proceed “as expeditiously as the circumstances permit.” Article IV(1) of the Statute provides: “The Tribunal shall normally be composed of one member who shall be the President or if the President is for any reason unable to sit some other member of the Tribunal designated by the President.” Article IV(2) reads: “In exceptional cases where in the opinion of the President the complexity of the matter requires it, the Tribunal shall sit as a three-member Tribunal empanelled by and including the President but no two nationals shall be nationals of the same country.” Rule 1(1) reads: “The President shall direct the work of the Tribunal. . . .” Rule 1(2) reads: “No application shall be heard and adjudged by the Tribunal except under the chairmanship of the President and in the presence of the other two members.” Rule 23 provides: “The Tribunal, or, when the Tribunal is not in session, the President after consultation where appropriate with the members of the Tribunal may: (1) in exceptional cases modify the application of these rules. . . .” 42

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Chapter 5. International Administrative Tribunals (i) Terminate oral proceedings (under Rule 15.3)43 and decide and deliver judgment in the case because the documentation was considered adequate, which is what I advocated. (ii) Properly to dissolve the Tribunal of three and reconstitute a Tribunal (whether of one or three) under Article IV.1 and 2 of the Statute. To use Rule 1.2 (as amended ad hoc under Rule 23) to deprive a properly constituted tribunal of three (under Article IV of the Statute) of the right to “adjudge” (not merely “hear”) a case (even if the Tribunal is truncated) without the agreement, particularly in the circumstances of this case, of the relevant members, is a violation of Article IV and makes nonsense of it. The application of the Rules in this way is clearly in conflict with the Statute. It amounts to accepting that the President can terminate at will the functions of a 3-member tribunal properly constituted under Article IV.2. The reasons given for the action are clearly not such as are valid for a termination of functions of a Tribunal without agreement and particularly when one member was ready to give judgment immediately and lawfully under the Rules and Statute. The exercise of power was an abuse of authority, among other things. In any case using Rule 23 to change procedures in this manner after the “adjudication” process had begun is a violation of the principle of the integrity of proceedings which is protected by the fundamental principles of international administrative law, indeed, of any law, according to which the Rules must be interpreted. 6. Of the two options referred to above, the President evidently did not accept the first. The second could only be implemented, if the three members of the Tribunal in the circumstances formally agreed to cease to be members of the 3-member Tribunal. This is what the general principles of public international law, which are applicable to international administrative law, required. A formal agreement was necessary. This could have been obtained but was not. I, at any rate, have not formally given my agreement to this. Then the President could have acted under Article IV.1 of the Statute and appointed a single judge to decide the case, that judge not being

Under Rule 15.3 the tribunal “may also limit oral testimony where it considers the written documentation adequate”. 43

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bound by the previous procedure at all but being free to follow the procedure he thought fit in accordance with the Statute and Rules as appropriately interpreted. 7. In my case I was unavailable to come to London but I was prepared to decide the case on the evidence I had which could have been from Washington. I did not die or resign nor was I totally incapacitated because of illness from acting, in which case different principles would have been applicable. It is to be noted that the Tribunal had already met as a body in London. In those circumstances the Tribunal could only be dissolved by agreement. . . . 9. In the circumstances, I conclude that the appointment made under Article IV.1 is invalid. The original Tribunal has never been properly dissolved and Article IV could not be applied . . .

The point being made in effect rested on the duty to interpret the Statute and Rules in accordance with the general principles of international adjudicatory procedure, where there was not express and clear derogation from them in the language of the Statute, as was the case here. These principles aimed at preserving the integrity of the proceedings of a tribunal which would have been affected by the action taken and therefore rendered the constitution of the single judge tribunal illegal and invalid. (3) JURISDICTIONAL COMPETENCE (a) Compétence Ratione Temporis The statutes of some IATs explicitly specify the operative date relating to their competence ratione temporis, that is, they state that causes of action arising before the establishment of the tribunal or before a certain date prior to its establishment may not be litigated before the tribunal.44 In such cases the general principle is that causes of action arising before the establishment of the tribunal or the date specified prior to the establishment of the tribunal are outside See, e.g., Article II(6) of the OASAT Statute; Article XVII of the WBAT Statute. 44

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the competence of the tribunal, though the Statute could provide for an earlier date.45 Where the Statute of the tribunal is silent as to the operative date relating to its competence ratione temporis,46 the principle adopted by the IDBAT was that it was evident that the grievance system established was set up for complaints arising after the date of establishment of the tribunal, with the result that the tribunal would normally not have had jurisdiction over causes of action which had arisen before that date.47 This jurisdictional competence ratione temporis must be distinguished from inadmissibility or irreceivability ratione temporis.48 (b) Compétence Ratione Personae The statutes of most IATs contain provisions limiting explicitly or implicitly their competence ratione personae to staff members of the respondent organization and certain other persons or groups of persons.49 As for the respondent, it is generally the case that only the organization to which the tribunal belongs comes within its jurisdiction but in the case of some tribunals there are provisions in their statutes for other organizations to be brought within their jurisdiction.50

See Bouvaist-Hayes, LNT Judgment No. 4 [1930]. See also Cisneros, OASAT Judgment No. 18 [1975], for a Statute specifying an earlier date. See Novak, WBAT Reports [1982], Decision No. 8 at p. 4. But the conditions laid down by the Statute must be satisfied: see Smith Scott, WBAT Reports [1981], Decision No. 4; Mendaro, WBAT Reports [1985], Decision No. 26. 46 See, e.g., the IDBAT Statute, the Statute of the Council of Europe Appeals Board. 47 Burey, IDBAT Reports [1985], Decision No. 4. The general principles being incontestable, it is significant that the IDBAT did venture to suggest in the same case that there may be an exception to them, where otherwise grave injustice would be done. 48 See below Section 4. 49 See, e.g., Article 2(1) and (2) of the UNAT Statute, Article 59 if the Staff Regulations of the Council of Europe. 50 See, e.g., Article II(5) of the ILOAT Statute, Article XV of the WBAT Statute. 45

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In regard to respondents, the ILOAT has had to decide some cases in which the competence of the tribunal was in issue. In three cases the tribunal held that, since the respondents cited were independent bodies which had not accepted its jurisdiction under the relevant provisions of its Statute, the tribunal had no jurisdiction in the cases whether with them as respondents or with the organizations (WHO, UNESCO and PAHO respectively), which had accepted its jurisdiction and with which the independent bodies were alleged to have close links, as respondents.51 As for applicants, since the provisions of the Statutes of the various tribunals differ, it will depend on the interpretation of those provisions whether an applicant comes within the competence of the tribunal. In most cases it is a question of determining whether the applicant comes within the definition of “staff member”, “former staff member”, or any remaining category or categories specifically mentioned. The interpretation of statutory provisions may vary. For example, some tribunals have regarded consultants as within the definition of “staff member” for purposes of jurisdiction,52 while others have regarded them and temporary employees as outside such definition unless the institution had specifically extended the coverage of the tribunal’s jurisdiction to them.53 Both the ICJ and the ILOAT have stated that applicants for new appointments who fail

Gomez, ILOAT Judgment No. 433 [1980]; Joaquin and Navarette, ILOAT Judgment No. 650 [1985]. An officer working for the UN office in Geneva may, on the other hand, be a staff member of WHO and sue WHO: Grover, ILOAT Judgment No. 803 [1987]. For the ECJ see Humblet, ECJ Case 6/60 [1960] ECR p. 1125; Mr. and Mrs. D, ECJ Case 1/82 [1982] ECR p. 3709. The ECJ used the terms “recevable” in this context whereas the matter was one of compétence. 52 See Skandera, WBAT Reports [1981], Decision No. 2; Justin, WBAT Reports [1984], Decision No. 15. 53 See Decision No. 53(a), NATO Appeals Board [1973], Collection of the Decisions 46 to 73 (1976); Decision No. 13, OEEC Appeals Board [1952], ibid. p. 43. The ILOAT has not exercised jurisdiction over non-staff members: Silow, ILOAT Judgment No. 171 [1970]. See also, e.g., Danzebrink, LNT Judgment No. 21 [1939]; Salmouni Zerhouni, ILOAT Judgment No. 449 [1981]. See also, e.g., Decision No. 5, NATO Appeals Board [1967], Collection of the Decisions (1972). 51

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to obtain them cannot be regarded as staff members.54 The WBAT has held that, while the Staff Association of the World Bank Group may appear as amicus curiae before the tribunal, it had no standing under the Statute of the WBAT to file an application.55 A general requirement is that, even if the applicant falls within the definition of those who have standing before the tribunal, he or she must have an interest in the substance of the claim by being directly affected by the administrative decision contested.56 Two significant problems that have arisen concern former staff members whose fixed-term contracts have not been renewed and those who claim that they have a contract of employment with the respondent organization and are, therefore, staff members. In regard to the first category of persons, the ICJ has held that the ILOAT did not exceed its jurisdiction in considering former fixed-term contract holders as former staff members who had standing to litigate before the tribunal and that the question whether the decisions not to renew their contracts was properly taken.57

Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 92, Chen (No. 2), ILOAT Judgment No. 547 [1983] at p. 3. On the other hand, unsuccessful candidates for posts in the European Communities could bring actions before the ECJ as a result of the express provisions of the written law; Vandervyvere, ECJ Case 23/64 [1965] ECR p. 157. For other situations in which the requirements ratione personae have been applied, see Hilpern, UNAT Judgment No. 57 [1955], JUNAT Nos. 1–70 p. 296. The ECJ has held that local employees who claimed to be employees of the European Communities had standing before it: Porrini and Others, ECJ Case 65/74 [1975] ECR p. 319. See also Kahal, ILOAT Judgment No. 46 [1960]. Much depends on the interpretation of the statute or jurisdictional instrument concerned as regards the extent of the acceptance of jurisdiction ratione personae and often how the term “staff member”, “official” or the equivalent is interpreted: see Zayed, ILOAT Judgment No. 868 [1987], Antal, ILOAT Judgment No. 967 [1988]. 55 The World Bank Staff Association, WBAT Reports [1987], Decision No. 40. 56 See Agodo, WBAT Reports [1987], Decision No. 41. 57 Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports p. 77. 54

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There are several cases dealing with the second category of persons. The conclusion reached in Justin58 reflects the general approach taken by those tribunals that have addressed the issue. There it was held that, since the applicant alleged that a contract of employment existed between him and organization (which he claimed had been breached), the tribunal had the power to consider the merits of the applicant’s claim of contract formation for the limited purpose of determining its own jurisdiction. Thus, tribunals have assumed jurisdiction ratione personae in order to determine whether an applicant had a contract which would have entitled him to claim that his rights had been violated, even though it was not clear that applicant was truly a staff member at the time for the purposes of their Statutes. Consequently in many cases tribunals have assumed jurisdiction over persons who only claimed to be staff members and sometimes on the basis of a contract to employ them, even though they had not been given a formal appointment.59 The written law governing some tribunals explicitly requires that acts or omissions questioned before those tribunals should adversely affect the applicant in the proceedings.60 Others have slightly different language.61 Whatever the language, tribunals, when faced with the issue, have had no hesitation in holding that, unless the applicant has an interest of a kind which the tribunal will protect,62 or is capable of being adversely affected by an act of the WBAT Reports [1984], Decision No. 15. See, e.g., Poulin, ILOAT Judgment No. 621 [1984]. See also C.F. Amerasinghe and D. Bellinger, “Claimants to Staff Membership before International Administrative Tribunals”, 38 ICLQ (1988) p. 653. Staff Associations and Staff Unions in general do not qualify as staff members but may have standing as a result of special provisions in the instruments governing jurisdiction. 60 See, e.g., Article 59 of the Staff Regulations of the Council of Europe; Articles 90 and 91 of the Staff Regulations of the EC (now EU): C.F. Amerasinghe (ed.), 4 Staff Regulations and Staff Rules of Selected International Organizations (1983) at pp. 25–6. 61 See, e.g., Article II(1) of the Statute of the WBAT, Article 4.21 of Annex IX of the Civilian Personnel Regulations of NATO. 62 See, e.g., Tévoédjré, ILOAT Judgment No. 580 [1983], Decision No. 32, ESRO/CR/81, ESRO Appeals Board [1973]. 58 59

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respondent,63 or is directly affected by a decision,64 the tribunal will not adjudicate upon the application. Unfortunately tribunals have referred to this ground as one relating to admissibility in that they have used the terms “inadmissible” and “admissible” (irrecevable and recevable) in dealing with this issue. Nevertheless, the issue relates to competence ratione materiae, as has been accepted in its practice by the ICJ. It is a matter for the appreciation of the tribunal and of interpretation by it whether a particular decision or implied decision resulting from an omission has or has not adversely affected the applicant or has or has not an interest for him of a kind which the tribunal will not protect. The decision will obviously depend to a large extent on the circumstances of each case.65 There are fewer cases in which tribunals have found that the applicants had no interest which were subject to protection by the tribunals and that, therefore, their applications were not admissible.66 See, e.g., Grasselli, ECJ Case 23/80 [1980] ECR p. 3709. See also AlvarezSantullano et al., ILOAT Judgment No. 835 [1986], Bohn and Others, UNAT Judgment No. 378 [1986]. 64 See, e.g., Lafuma, Council of Europe Appeals Board, Appeal No. 7 [1972], Case-Law Digest (1985) p. 33, Decision No. 10, ELDO Appeals Board [1973]. 65 In Tévoédjré, the issue was whether the appointment of the incumbent to the post of Director General of ILO was in violation of the Staff Rule of the ILO on the retirement age. Because, inter alia, the candidacy of the incumbent increased the odds against the election of the applicant and a member government by withdrawing its support of the applicant on account of the incumbent’s candidacy deprived him of at least one opportunity of standing for election, the tribunal held that the alleged violation of the law was capable of doing him injury and, therefore, his application was admissible: ILOAT Judgment No. 580 [1983]. See also, e.g., Farcot and Others, Council of Europe Appeals Board, Appeals Nos. 52–75 [1983], Case-Law Digest (1985) p. 84; Decision No. 12, ELDO Appeals Board [1974]; Giannini, ECJ Case 265/81 [1982] ECR p. 3865. 66 In Hebrant the ECJ held that budgetary decisions of the competent departments of an institution were not capable of affecting the position of officials under the Staff Regulations and consequently could not adversely affect officials for the purposes of the Court’s jurisdiction, so that an application questioning such decisions was inadmissible: ECJ Case 141/80 [1980] ECR p. 3509. See also, e.g., Lafuma, Council of Europe Appeals Board, Appeal No. 7 [1972], CaseLaw Digest (1985) p. 33, Decision No. 32, ESRO/CR/81, ESRO Appeals Board [1973], Schloh, ECJ Case 85/82 [1983] ECR p. 2105. 63

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(c) Compétence Ratione Materiae While the exact subject matter within a tribunal’s competence must always rest on the terms and interpretation of its particular Statute, in general some define that subject-matter by reference at least to the non-observance of contracts of or terms of employment, while other refer to decisions taken by the administrative authority which adversely affect the staff members.67 The problems that have arisen related to whether fact-situations over which the jurisdiction of tribunals has been invoked fall within the concepts referred to in the statutes. The answers have depended to a large extent on the specific total written law of the organization which has been in issue and on the circumstances of each case. Thus, in one case investigating the validity of elections to Staff Associations or Staff Committees may be within the scope of a tribunal’s jurisdiction,68 while in another it may not,69 since the Staff Regulations on the subject may vary. Rights under a pension plan have been regarded as pertaining to conditions of employment,70 as have allegations that international or other agreements giving rise to rights for staff members have been violated.71 Whether a matter relates to a condition of or to the terms of employment may not depend on whether it is expressly dealt with in Staff Regulations or in other written law, as rights could flow from the status of international civil servants.72

For the first kind of Statute see: Article 2(1) of the UNAT Statute; Article II(1) of the WBAT Statute. For the second kind of provision see: Article 59(1) of the Staff Regulations of the Council of Europe; Article 4.21 of Annex IX of the NATO Civilian Personnel Regulations. 68 de Dapper and Others, ECJ Case 54/75 [1976] ECR p. 1381. 69 Pilleboue, ILOAT Judgment No. 78 [1964]. 70 See Charbonnieras, ILOAT Judgment No. 277 [1976], Ribeiro, IDBAT Reports [1986], Decision No. 10. On the other hand, the ILOAT has held that it has no jurisdiction over disputes concerning the Joint UN Pension Fund and its Regulations over which the UNAT had jurisdiction: see Freemen (No. 2) and Malcolm (No. 2), ILOAT Judgment No. 867 [1987]. 71 See Lamadie (No. 2), and Kraanen, ILOAT Judgment No. 365 [1978]; Damon and Lhoest, ILOAT Judgment No. 381 [1979]. 72 See Press, ILOAT Judgment No. 66 [1962] at p. 3; Berti, ECJ Case 131/81 [1982] ECR p. 3493. 67

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It has been confirmed that tribunals normally have jurisdiction in cases concerning the refusal to renew fixed-term contracts.73 On the other hand, tribunals have held that they are incompetent to hear complaints against violations as such of the laws of member states of the respondent organization.74 A complaint is outside the competence of the tribunal’s jurisdiction because, while attacking general legislation, it does not allege a violation of the applicant’s particular rights.75 The ICJ has held that, unless there is a specific plea by an applicant for a remedy and alleging a particular violation of his rights, an administrative tribunal as an independent and truly judicial body could not be expected to examine such a plea proprio motu, even though the subject-matter may be within its competence.76 The Court did not say that the plea, if not made, would be outside the jurisdiction of the tribunal. While it could not be expected to take up the plea proprio motu, the plea would still be within the

See Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 90 ff.; Duberg etc., ILOAT Judgment Nos. 17–19, 21 [1955]; Robert, ILOAT Judgment No. 56 [1961]. For other cases in which jurisdiction was seen to be exercisable in matters concerning the Staff Regulations or general rights see, e.g., Belchamber, UNAT Judgment No. 236 [1978], JUNAT Nos. 231–300 p. 39; Fournier d’Albe (No. 2), ILOAT Judgment No. 417 [1980]; Mendaro, WBAT Reports [1985], Decision No. 26; Graneros, OASAT Judgment No. 49 [1979]; de Bruyn, ECJ Case 25/60 [1962] ECR p. 21. 74 See Brunetti and Others, OASAT Judgment No. 95 [1986]. 75 Jurado (No. 10), ILOAT Judgment No. 103 [1967]. There are other cases in which the ILOAT particularly has held that the subject-matter of the complaint was outside its competence: see Aelvoet and Others, ILOAT Judgment No. 902 [1988]. In de Peganow, LNT Judgment No. 16 [1937], the LNT ruled that the applicant’s complaint related to matters arising after the applicant’s service had been terminated and was, therefore, outside its competence. There are several cases in which tribunals have examined the relevant instruments in the light of the facts before them and found that they did have jurisdiction ratione materiae: see, e.g., Elle, UNAT Judgment No. 375 [1986]; Da, ILOAT Judgment No. 873 [1987]; Castro, IDBAT Reports [1985], Decision No. 7; Tordeur and Others, ECJ Case 232/84 [1985] p. 3223. 76 Application for Review of Judgment No. 158 of the UNAT Opinion, 1973 ICJ Reports at p. 207. 73

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tribunal’s competence, provided the subject-matter of the plea was within the tribunal’s competence. A special problem has arisen in connection with legislative acts of the respondent organization and decisions taken by the governing body of the organization. The ILOAT has held that the mere fact that a decision has been taken by the governing body does not remove the decision from the tribunal’s competence since it is competent to hear an appeal taken against any authority in the organization, if it alleges infringement of the contract of employment of the applicant or violation of the Staff Regulations.77 The WBAT has held that legislative acts of the rule-making body of the World Bank could be questioned before it.78 The mere fact that legislative acts are being put in issue is not, thus, a bar to the competence of the tribunal. On the other hand, tribunals have held in effect that, where legislative acts or abstract rules of general purport are brought into question, there must be a challenge to an actual decision taken in respect of and applied to the applicant in the case, it being inadequate merely to seek the annulment of the legislative act which the tribunal has no authority to grant.79 Thus, while legislative acts and abstract rules of general purport are within the competence of tribunals, it is not within their power generally to annul such acts or rules. Legislative acts which involve the authorization of entry into international agreements, and thus give the latter effect in the sphere of staff relations with organizations, are on the same footing as legislative acts in general.80 The argument that, if tribunals had Tévoédjré, ILOAT Judgment No. 580 [1983] at p. 6. de Merode, WBAT Reports [1981], Decision No. 1. The WBAT has held implicitly that policy decisions are also not outside the competence of the tribunal; see Einthoven, WBAT Reports [1985], Decision No. 23. On the other hand, the justification for policy decisions may not be questioned: Decision No. 36, NATO Appeals Board [1972], Collection of the Decisions, (1972). 79 See, e.g., Cuvillier and Others, UNAT Judgment No. 328 [1984]; Giroud (No. 2) and Lovrecich, ILOAT Judgment No. 624 [1984]; Chisman and Others, OASAT Judgment No. 64 [1982]; Decision No. 169(b), NATO Appeals Board [1984], Collection of the Decisions 135 to 171 (1984); Amesz and Others, ECJ Cases 532, 534, 567, 600, 618 & 660/79 [1982] ECR p. 4465. 80 See Lamadie (No. 2) and Kraanen, ILOAT Judgment No. 365 [1978]. 77

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competence to review such acts, the authority of the states parties to such agreements would be impaired has been rejected. Just as in the above cases it has been emphasized that in the case of legislative decisions or general rules there must be a decision affecting the applicant to activate the competence of a tribunal, the ILOAT has drawn attention to the fact that even in other situations, in order that the tribunal may exercise its jurisdiction there must be a final administrative decision affecting the staff member taken by the administration.81 Such a decision may, of course, be implied.82 It is possible that a matter may lie within the competence of one international administrative tribunal, such as the ILOAT, but not within that of another, such as the UNAT. In such cases tribunals have been careful not to assume jurisdiction, because the matter was outside their competence ratione materiae.83 Where a Statute of a tribunal required an allegation of nonobservance of the law, the ICJ has explained what was involved in such a requirement. The Court held84 that, in order that the tribunal Crapon de Caprona, ILOAT Judgment No. 112 [1967] at p. 3. A report was held in that case not to be a decision of the kind that would activate the tribunal’s jurisdiction. Contra Tarrab (No. 5), ILOAT Judgment No. 466 [1982]. While the conclusion that a decision is necessary to activate the jurisdiction of a tribunal cannot be questioned, on the facts Tarrab (No. 5) is to be preferred to Crapon de Caprona, as far as the ruling on whether there was a decision is concerned. In Küster, ECJ Case 122/75 [1976] ECR p. 1685, the ECJ took a view similar to that taken in Tarrab (No. 5). In many cases tribunals have held that there was no decision such as would activate their jurisdiction: see e.g., Kahal, ILOAT Judgment No. 45 [1960]; Bauta y Delgado, OASAT Judgment No. 4 [1973]; B, ECJ Case 123/80 [1980] ECR p. 1789. 82 Where an omission results in such infringements, a decision confirming the omission may, in the appropriate circumstances, be taken to be implied for the purpose of a tribunal’s competence. On the other hand, where an express decision is relied on, it must be final, if the competence of the tribunal is to be activated: see Hayward, ILOAT Judgment No. 336 [1978]. See C.F. Amerasinghe, 1 op. cit. note 19, Chapter 20. 83 See Vermaat, UNAT Judgment No. 118 [1968], JUNAT Nos. 114–166 p. 43, Ambrozy, ILOAT Judgment No. 119 [1968]. 84 Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 89. 81

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have competence ratione materiae, it is necessary that the complaint indicate some genuine relationship between the complaint and the provisions invoked but that it is not required that the facts alleged should necessarily lead to the results alleged by the applicants, which is a matter for decision on the merits. On the other hand, it was insufficient that an artificial or remote connection be established between the facts of the claim and the rules alleged to have been infringed.85 More than one tribunal has applied the rule that where the application is devoid of purpose, especially because of subsequent events, it cannot proceed to decide the merits. For example, in Angelopoulos, the Appeals Board of the OECD held that the application’s request for the reimbursement of travelling expenses incurred by his counsel had become moot, since the respondent had reimbursed the amount requested.86 In Miss M, on the other hand, where the applicant was suing the Commission of the EC for failure to appoint her to a vacant post in the EC, the ECJ held that the fact that she had been appointed an official of the European Parliament after she had filed her application did not render her application without purpose, since, on any view, she had an interest in causing to be withdrawn any trace of a finding of unfitness at a physical level, even though she was in a different position from that in which she was before she filed her application.87

The Statute of the ILOAT in Article II(2) gives the tribunal jurisdiction in cases involving injury sustained in the course of employment. In Alonzo, ILOAT Judgment No. 362 [1978], the tribunal was called upon to decide whether it was competent in a case in which the applicant alleged that she had suffered pecuniary loss as a result of her having personally to pay counsel’s fees because she was chairperson of a committee of the Staff Association. The tribunal held that, inter alia, ‘injury’ meant physical injury, and the loss was in any case not suffered in the course of her employment with the result that the case was outside its competence. 86 Decision No. 78, OECD Appeals Board [1980], Recueil des décisions 63 à 82 (1980) p. 45. See also, e.g., Mascetti, ECJ Case 145/80 [1983] ECR p. 2343. 87 ECJ Case 155/78 [1980] ECR p. 1797. 85

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INADMISSIBILITY

Even though a case may truly fall within the jurisdictional competence of an IAT, there may be reasons for its irreceivability or inadmissibility, arising from the provisions of the tribunal’s Statute or governing instruments. Inadmissibility results from conditions required to be fulfilled by those provisions, as appropriately interpreted, sometimes in the light of general principles. (a) Ratione Temporis Conditions relating to time-limits for the filing of an application may result in the application being inadmissible ratione temporis. The provisions governing the different tribunals vary but those which apply now all set a time-limit within which applications must be filed.88 Since the governing provisions vary, much will depend on the particular provisions relating to a tribunal. However, there are certain common problems which have arisen in the implementation of these provisions. In Mirossevich89 the ECJ held that, since there was no time-limit specified in the governing instruments for an application to the Court, no time-limits were applicable. Thus, the relevance of a time-limit for admissibility of an application depends entirely on the express written law. No doubt in the absence of such a time-limit, the possibility of requiring a time-limit based on the doctrine of undue delay or laches remains, though in Mirossevich no such delay was evident on the facts of the case. (i) Mandatory Nature of Time-Limits Especially where the governing instruments do not give the tribunal the option of extending or waiving the time-limit for the filing of an application, it has been held that the observance of the time-limit is mandatory with the consequence that it must be respected and cannot be extended or waived by the parties or by the tribunal at will.90 See, e.g., Article 7 (2), (4) and (5). ECJ Case 10/55 [1954–6] ECR p. 333. 90 See, e.g., Hunt, ILOAT Judgment No. 739 [1986]; Delbez and Others, ECJ Case 264/83 [1985] ECR p. 2179; Bauer, UNAT Judgment No. 420 [1988]. 88 89

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But even where extension or waiver by the tribunal is permitted by the governing instruments, it has been said that the time-limit may not be modified by the tribunal at will.91 On the other hand, the ILOAT has explained that the rules as to the receivability, which are procedural rules, are designed to protect the organization against what could be a great injustice to it, if access to the tribunal were totally unrestricted,92 while the Appeals Board of ESRO took the view that it should take a liberal approach to the application of time-limits.93 Though it cannot be denied that provisions as to timelimits are mandatory and, especially where no exception is made for special situations, must be strictly observed, it may be possible also to concede that a somewhat liberal approach should be taken to their application where special circumstances are provided for and sometimes where they are not, and that there may be certain consequences flowing from recognition of the fact that the object of time-limits for the filing applications is in reality to protect the organization. As stated by the LNT, a consequence of the mandatory nature of time-limits for the filing of applications is that the tribunal must strictly, even if not requested to do so by one of the parties, consider whether the application is receivable before considering the substance of the dispute.94 Not only may the time-limits not be tacitly and automatically waived by the parties, so that the decision on admissibility is taken away from the tribunal, but the tribunal can proprio motu decide the issue of receivability in relation to timelimits.95 On the other hand, there is nothing to prevent a tribunal

Novak, WBAT Reports [1982], Decision No. 8 at p. 6. Nielsen, ILOAT Judgment No. 522 [1982] at p. 11. 93 Decision No. 33, ESRO/CR/85, ESRO Appeals Board [1973]. The Statute of the tribunal, like many other Statutes, allowed for exceptional circumstances. 94 Desplanque, LNT Judgment No. 19 [1938]. 95 See further Guyon and Nicolas, ILOAT Judgment No. 305 [1977], Belfiore, ECJ Case 108/79 [1980] ECR p. 1769. Contra Decision No. 4, ESRO/CR/22, ESRO Appeals Board [1969], and Decision No. 5, ESRO/CR/23, ESRO Appeals Board [1969], where the tribunal held that it was not in the interests of justice to raise on its own motion the issue of non-receivability of the application. 91 92

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from considering the merits of the case, if it thinks it necessary to do so, in order to decide the issue of admissibility ratione temporis, particularly because it is necessary, with a view to understanding the arguments on admissibility, to examine the nature of the claim on the merits.96 It is not a valid argument against the mandatory character of time-limits that, where a claim is made against the administration and not conceded, the administration against which such a claim has been made is under an obligation to seize the tribunal of the case, because no such obligation exists and on the contrary the right and duty to seize the tribunal of a dispute belongs solely to the aggrieved party.97 (ii) Extension by Agreement between the Parties Where the governing provisions do not permit of any exceptions to the time-limits, the ECJ has categorically held that the parties cannot even by agreement extend the time-limits at their own convenience.98 On the other hand, the LNT held in Desplanque99 that in similar circumstances the respondent could waive the advantage of the requirement of time-limits, because by their nature these timelimits were not an essential element of the public law governing the internal administration of the League of Nations and existed solely for the benefit of the respondent. Where the governing provisions permit the late filing of applications in exceptional circumstances, there are several cases decided by different tribunals in which late applications have been held to be admissible, because the respondent agreed to the late submission or had agreed not to raise the issue of receivabiltiy ratione temporis.100 Nielsen, ILOAT Judgment No. 522 [1982] at p. 5. Raina, ILOAT Judgment No. 31 [1958]. 98 Müllers, ECJ Case 79/70 [1971] ECR p. 689. 99 LNT Judgment No. 19 [1938] at p. 3. 100 See, e.g., Marrett, UNAT Judgment No. 288 [1982] (ICAO), JUNAT Nos. 231–300, p. 550; Mr. X, WBAT Reports [1984], Decision No. 16; Leguin, Council of Europe Appeals Board, Appeal No. 32 [1975], Case-Law Digest (1985) 96 97

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(iii) Exceptional Circumstances The governing instruments of most tribunals have provisions permitting the submission of late applications in exceptional circumstances.101 In all decided cases the tribunals have determined whether exceptional circumstances exist which justify the lateness of the filing. It is not an issue which a party or the parties may decide. Where the governing provisions do not expressly permit extensions of the time-limit, it has been held that that there can be no extensions of the time-limit, even if the applicant can show that there were exceptional circumstances justifying an extension, since the time-limit in governing provisions is mandatory.102 Among those tribunals whose governing instruments permit an extension of the time-limit for the filing of an application some are or have been more liberal than others in deciding whether to permit an extension of the time-limit. The UNAT seems to be somewhat liberal in its approach, as was the Appeals Board of the ESRO. In both cases little seems to be or have been required to justify an extension.103 In the case of the UNAT sometimes extensions have been granted without explanation in the decision.104 In the case of both tribunals extensions for exceptional reasons have not generally been refused. However, this does not mean that the UNAT might p. 58; Hill and Others, Decision No. 36, OECD Appeals Board [1963], Recueil des décisions 1 à 62 (1979) p. 101. In Mr. X the WBAT, however, only took into account the fact that the respondent had not objected to the late submission in deciding that exceptional circumstances existed in the case, without holding that the agreement of the respondent to the late submission was by itself sufficient to circumvent the time-limit: WBAT Reports [1984], Decision No. 16 at p. 12. 101 The statutes of the ILOAT and of the ECJ do not, and the Statute of the LNT did not, provide for exceptional circumstances as a justification for late applications. 102 See de Peganow, LNT Judgment No. 16 [1973]; Lamming, ILOAT Judgment No. 40 [1960]; Müller, ECJ Case 4/67 [1967] ECR p. 365. 103 See, e.g., Mendez, UNAT Judgment No. 268 [1981], JUNAT Nos. 231–300 p. 381; Decision No. 33, ESRO/CR/85, ESRO Appeals Board [1973]. 104 See, e.g., Miss Y, UNAT Judgment No. 83 [1961], JUNAT Nos. 71–86 p. 90. In some of these cases the respondent agreed to the granting of the extension of the time-limit: see, e.g., Mendez, UNAT Judgment No. 268 [1981], JUNAT Nos. 231–300 p. 381.

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not in an appropriate case refuse to grant an extension of the timelimit for the filing of an application. Whether there are exceptional circumstances warranting an extension of the time-limit clearly depends on the circumstances of the case, it being a matter for the appreciation of the tribunal whether the circumstances justify an extension and how much of an extension should be given.105 Among the cases in which it was held that the circumstances were not exceptional so as to justify an extension of the time-limit, Mendaro,106 decided by the WBAT, is significant. The tribunal said that doubts regarding the outcome of proceedings before a judicial body (the tribunal), whether jurisdictional or relating to the merits, cannot be regarded as justification for ignoring the pertinent statutory time-limits.107 (iv) The Terminus a Quo There have been numerous problems related to the determination of the terminus a quo for the measurement of the period of time within which an application must be filed. Here the issues become fairly technical. The concern is mainly with determining what is the relevant administrative decision or what happens when there is a failure to take an administrative decision, though there are other matters that arise.108

See, e.g., Miss X, UNAT Judgment No. 81 [1960], JUNAT Nos. 71–86 p. 67; Mr. X, WBAT Reports [1984], Decision No. 6. 106 WBAT Reports [1985], Decision No. 26. 107 Ibid. at p. 15. See also, e.g., Terrain, Council of Europe Appeals Board, Appeal No. 1 [1968], Case-Law Digest (1985) p. 5; Novak, WBAT Reports [1982], Decision No. 8; Racz, Decision No. 101, OECD Appeals Board [1983], Recueil des decisions 83 à 102 (1983) p. 57; Decision No. 97, NATO Appeals Board [1979], Collection of the Decisions 65(b), 74 to 99 (1979); Obes Polleri, OASAT Judgment No. 5 [1973]. 108 See, for a detailed treatment of this, C.F. Amerasinghe, op. cit. note 19 pp. 222–8. 105

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(b) Other Reasons than Tempus There are other reasons for irreceivability or inadmissibility than ratione temporis, which have prevailed. Such reasons depend to a large extent on the written law governing the jurisdiction of each tribunal. However, it is a distinct possibility that there are certain general principles which may be applicable in common situations in the implementation of the written law. It is the most important of these general principles that will be examined here.109 Tribunals attach considerable importance to conditions for admissibility of applications. Very seldom do they decide the merits of a case without deciding an objection to admissibility.110 Further, as in the case of inadmissibility ratione temporis, the question of admissibility for other reasons may be taken up proprio motu, if the record reveals a possibility of inadmissibility. (i) Insufficient Clarity of Grounds The ECJ has decided several cases in which the issue has been raised that the applicant had failed precisely to indicate the grounds, including the legal rules, on which he was relying. In La Croix111 the Court found that, where the applicant attacked several decisions to appoint other officials than him to posts in certain grades, as required by the written law, the subject-matter of the application had not been indicated with sufficient precision to enable it to be examined profitably, the applicant had failed to append the measures the annulment of which was sought, and the measures contested were so generally defined that the Court was left the task of finding out which of the measures described were really the subject-matter of the application.112 Hence, the application was held to be inadmissible. However, the Court has also held that an exception could be

See also C.F. Amerasinghe, ibid. pp. 229–40. Exceptionally see Beelen, ILOAT Judgment No. 545 [1983]. 111 ECJ Case 30/68 [1970] ECR p. 301. The Court also held in that case that subsequent clarification during the proceedings could not rectify the omissions made earlier. 112 See also, e.g., Farrall, ECJ Case 10/81 [1981] ECR p. 717. 109 110

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made to the requirement of clarity, if, because of the special nature of the decision-making process followed in the particular case, it was difficult for the applicant to know to which institution he should apply, to decide at what moment his action could be effective, and to recognize the measure affecting him adversely.113 Clearly, the rule of clarity is a functional one so that it will depend on the circumstances of the case how strictly it is applied. Further, it is the written law of the ECJ that has been interpreted to make clarity as defined above a requirement. It is to be expected, therefore that other tribunals could, where appropriate and to the extent appropriate, interpret their written law so as to make clarity of grounds a requirement for admissibility for applications to them.114 (ii) Agreement of Release One tribunal has held that an agreement to release or settle all claims arising from an adverse personnel action has the effect of rendering inadmissible an application based on such claims.115 The reasoning was that it would unduly interfere with the constructive and efficient resolution of claims if the organization could not negotiate – in exchange for concessions on its parts – for a return promise from the staff member not to press his or her claim further; if such an agreed settlement were not binding upon the affected staff member, there would be little incentive for the organization to enter into compromise arrangements, and there might instead be an inducement to be unyielding and to defend each claim through the process of administrative and judicial review; it was therefore in the interest of both the organization and the staff that effect should be given to such settlements.116 It is a matter of interpretation whether the agreement in question covers the claims which are the subject-

Asmussen and Others, ECJ Case 50/74 [1975] ECR p. 1003. The ILOAT has held that insufficient clarity of grounds is a good basis for inadmissibility: see, e.g., Loroch (No. 5), ILOAT Judgment No. 898 [1988]. 115 See, e.g., Gamble, WBAT Reports [1987], Decision No. 35. 116 See Mr. Y, WBAT Reports [1985] Decision No. 25 at p. 14. 113 114

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matter of the application. The tribunal must decide this question and not either of the parties.117 While such agreements are effective bars to admissibility in the appropriate circumstances, they may also be found to be invalid because, for instance, the applicant’s consent was vitiated by duress or fraud. That duress could be a ground for invalidity of the release agreement was conceded by the WBAT, though it was also made clear that such duress must be proved to the satisfaction of the tribunal.118 A release which is imposed by the organization upon staff members in a staff rule will not be recognized.119 The reason is that this is not a negotiated agreement but a statutory imposition which unilaterally deprived the staff members of their right of access to the tribunal, a fundamental and essential right which could not be taken away unilaterally. (iii) Scope of Claims Both the ECJ and the ILOAT have ruled on the issue whether claims raised after the application had been filed and not included in the application could be admitted. Both tribunals have conceded that the rule is that a claim made in the course of the proceedings will be receivable only if it comes within the scope of a claim made in the complaint. Thus, in Reinarz120 the application contained only a Ibid. Ibid. at p. 17. The validity of a release agreement may conceivably also be affected by circumstances such as public policy. 119 See, e.g., Knox, WBAT Reports [1987, Part III], Decision No. 54. While a release agreement may be a ground for inadmissibility where the employment relationship is based on a contract of employment, as is the case in most organizations, it is not so clear whether in principle such an agreement may be invoked as a bar to admissibility in cases where the employment relationship is based on status or a statutory appointment. 120 ECJ Case 17/68 [1969] ECR p. 61. See also Vervos, ECJ Case 306/81 [1983] ECR p. 1755; Ali Khan (No. 2), ILOAT Judgment No. 565 [1983]. In the case of the ECJ the Rules of Procedure embody this rule, but it would seem to be a general principle of law. See also, for claims declared inadmissible, e.g., Noor, ILOAT Judgment No. 939 [1988]; Dayan, OECD Appeals Board, Decision No. 113 [1989]. 117 118

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claim for reinstatement. The ECJ held that a claim for damages, if reinstatement were impossible, which was made for the first time during the oral proceedings, was inadmissible. The rule is not to be too strictly construed. There are circumstances in which a claim not made in the original application may be admissible. Thus, the ECJ has held that a submission which may be regarded as amplifying the application is admissible.121 (iv) Exhaustion of Internal Remedies Considerable importance has been attached by tribunals to the exhaustion of internal remedies as a condition of admissibility, whatever their nature. What remedies need to be exhausted will depend in the case of each tribunal on the applicable written law, since internal remedies need only be exhausted, if there is an express requirement to that effect. In the absence of an express written requirement there does not seem to be a general principle of law that applicants must seek internal means of redress as a prior condition of admissibility for their applications. In regard to the principle relating to internal remedies the LNT said: “As a general rule, this principle seems to answer to a legal necessity . . . inasmuch as, while reconciling the interest of the officials with those of the Administration, it gives the latter an opportunity of verifying the facts alleged to be the cause of damage to be made good.”122 It has also been said that the purpose of such procedures is to encourage amicable settlements.123 Clearly the purpose of internal remedies in general is to facilitate the settlement of disputes by informal means before they are subjected to the more rigorous test of judicial scrutiny. In regard to the requirement of the internal remedy of administrative review, for instance, the UNAT has stated that:

Degreef, ECJ Case 80/63 [1964] ECR p. 391. See also, e.g., Morina, ECJ Case 18/83 [1983] ECR p. 4051; Ali Khan (No. 2), ILOAT Judgment No. 565 [1983]. 122 Perrasse, LNT Judgment No. 14 [1935] at p. 3. 123 Sergy, ECJ Case 58/75 [1976] ECR p. 1139 at p. 1152. 121

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It gives the Administration an opportunity to redress a grievance before it is taken any further . . . It is quite clear that the number of cases in which there are grievances and which are submitted for administrative review by the Secretary-General is greater than the number of those that reach the JAB or even the Tribunal. This proves the importance of administrative review in dissipating dissatisfaction and settling grievances. It is of the utmost importance that the Administration be given this opportunity, not only because it could result in avoidance of complicated and extended litigation but because it is only fair that the Administration be given the opportunity to reconsider and re-evaluate its decision before that decision is litigated. This is also the manner in which the process of settling grievances is generally structured in international administrative law. Administrative review . . . is not a mere embellishment or option. It is an integral part of internal procedures and the rules require that it be exhausted. The Staff Rules make administrative review an obligatory internal procedure, and not an optional one nor one that can be waived, except by the Respondent.124

There are several instances where tribunals have been confronted with the objection that internal remedies had not been exhausted and in which they have held that the applicant had fulfilled the requirement of the governing law that internal remedies be exhausted.125 While the content of the requirement that internal remedies be exhausted and whether the requirement has been fulfilled will depend always on the written law that governs the tribunal, there is general agreement that internal remedies need not be exhausted where the written law does not require it,126 or where there are in effect none or no more to exhaust.127 Where the appeals body of the organization fails to report within a reasonable time, the ILOAT has held that the applicant is exempted from pursuing internal remedies to

El-Far, UNAT Judgment No. 905 [1998] at pp. 7–8. The present author drafted this judgment as a Judge of the UNAT. 125 See, e.g., Vassilou, UNAT Judgment No. 275 [1981], JUNAT Nos. 231–300 p. 457; Breuckmann, ILOAT Judgment No. 270 [1976]. 126 Saravia, OASAT Judgment No. 47 [1979]; Mavridis, ECJ Case 289/81 [1983] ECR p. 1731. 127 See, e.g., Ali Khan (No. 2), ILOAT Judgment No. 565 [1983]. 124

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their conclusion.128 On the other hand, in allowing an exception to the rule that internal remedies must be exhausted, because in effect there are none to exhaust, tribunals are cautious. Hence, exceptions are not lightly to be presumed. One of the reasons given by the ILOAT for caution in dispensing with the requirement of internal recourse was that, if an exception were made lightly, the tribunal might in many instances forgo material evidence obtainable from the hearing of internal appeals bodies which were more familiar with the position of the staff in the organization.129 Where the applicant has failed to observe the time-limits for the submission of internal complaints or appeals, with the result that his appeal had been rejected as inadmissible, he will be deemed not have exhausted internal remedies.130 Time-limits connected with internal appeals can cause problems131 but ultimately tribunals must decide whether the applicant has failed to exhaust the internal remedy because of some conduct on the part of either party which affects the time-limit. In order that internal remedies may be properly exhausted so as not to render an application inadmissible, allegations and claims raised in the application before the tribunal must be raised before the internal body.132 The subject-matter of the application and of the internal appeal need not, however, be identical, provided it is substantially the same.133 The essential facts must be the same,

Ido, ILOAT Judgment No. 588 [1983]; Tarrab (No. 9), ILOAT Judgment No. 499 [1982] at p. 5. Where the organization showed shifting attitudes about internal remedies, it has been held that an exception is to be made to the rule: Tarrab (No. 9), ILOAT Judgment No. 499 [1982]. See also Saravia, OASAT Judgment No. 47 [1979]. 129 García and Márquez, ILOAT Judgment No. 408 [1980] at p. 6. 130 See, e.g., Schulz, ILOAT Judgment No. 575 [1983], Branckaert, UNAT Judgment No. 201 [1975], JUNAT Nos. 167–230 p. 310, Deshormes, ECJ Case 17/78 [1979] ECR p. 189. 131 See the discussion in C.F. Amerasinghe, 1 op. cit. note 19 pp. 237–8. 132 See, e.g., Glorioso (No. 2), ILOAT Judgment No. 550 [1983]; Kahale, UNAT Judgment No. 165 [1972], JUNAT Nos. 1–70 p. 406. 133 See, e.g., Miss B, ECJ Case 152/77 [1979] ECR p. 2819. It is also not required that the internal appeal spell out all the possible grounds of illegality, since what is required is that the respondent must be able to have full knowledge 128

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though the submissions made may be different, and the claims made in the application before the tribunal may be different from those made in the internal appeal, provided they are narrower in scope.134 Indeed, it is sufficient if the claims in both proceedings are substantially similar even if they are not identical, and those presented in the application to the tribunal are not narrower than those of the internal appeal. This is so, even to the extent that a claim for damages as an alternative to annulment by itself may be regarded as having been implied in a claim for annulment by itself made in the internal appeal.135 The statute of a tribunal may provide for an exception to the requirement that internal remedies must be exhausted in the case of exceptional circumstances. But such exceptional circumstances must be clearly established.136 (v) Inappropriate Respondent An application will be inadmissible because it cites an inappropriate respondent. In Culmsee and Others the ECJ held that an action questioning statements issued by the Economic and Social Committee was wrongly brought against the Council of the EC.137

of the facts, the purpose of the complaint, and all the grounds underlying it in order to take a decision: Küster, ECJ Case 23/74 [1975] ECR p. 353. 134 See, e.g., Gubin and Nemo, ILOAT Judgment No. 429 [1980]. 135 See Herpels, ECJ Case 54/77 [1978] ECR p. 585. 136 In many cases tribunals have held that there were no exceptional circumstances: see, e.g., Vandenheede, WBAT Reports [1987, Part III], Decision No. 52; Thresher, ILOAT Judgment No. 758 [1986]; Levy, Council of Europe Appeals Board, Appeal No. 129 [1986]. In Powell, ECJ Case 219/84 [1988] ECR p. 3629, the Court held that there were exceptional circumstances which resulted in the extension of the time limit for contesting the administrative decision. 137 ECJ Case 175/83 [1985] ECR p. 3321. If the respondent was not merely inappropriate but not eligible at all under the basic law of the tribunal, it would be a matter of competence not receivability.

6 THE EUROPEAN COURT OF HUMAN RIGHTS

INTRODUCTION The current European Convention on Human Rights (post-Protocol 11) has explicit provisions on the contentious jurisdiction of the ECHR (Articles 32 to 35). The former Convention had express provisions dealing with the contentious jurisdiction of both the ECHR and the EComHR (Articles 45 to 49 and Articles 26 and 27 respectively). Although the EComHR acted quasi-judicially, its jurisdictional authority and the way it dealt with it were given judicial treatment by it. The current Convention abolishes the EComHR and more or less fuses the contentious jurisdictional features of the two bodies which were reflected in the former Convention. Consequently much of what applied to the jurisdiction of the EComHR is relevant for the current jurisdiction of the ECHR. Thus, in addition to the pre-current Convention jurisprudence of the ECHR the jurisprudence of the EComHR on jurisdictional matters is still relevant and must be examined, while noting the special features of the current jurisdiction of the ECHR. In general the jurisprudence relating to jurisdiction of the EComHR and the ECHR prior to the abolition of the reference

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to the EComHR has not been disregarded or changed by the ECHR. Thus, earlier cases may have constituted a jurisprudence constante or may have established a good and reasonable precedent. The former Convention dealt with the contentious jurisdiction of the EComHR in Articles 24 to 27. The earlier Convention’s special provisions on the contentious jurisdiction of the ECHR were contained in Articles 45 to 49. The current Convention provides as follows in regard to the contentious jurisdiction of the ECHR: Article 32 – Jurisdiction of the Court 1. The jurisdiction or the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47. 2. In the event of dispute as to whether the Court has jurisdiction, the Court shall decide. Article 33 – Inter-State cases Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party. Article 34 – Individual Applications The Court may receive applications from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. Article 35 – Admissibility Criteria 1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decisions was taken. 2. The Court shall not deal with any application submitted under Article 34 that a. is anonymous; or b. is substantially the same as a matter that has already been examined by the Court or has already been submitted to another

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procedure of international investigation or settlement and contains no relevant new information. 3. The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of application. 4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.

It would be observed that the provisions relating to the jurisdiction of the ECHR under the new Convention are similar with minor changes to those of the old Convention dealing with the jurisdiction of the EComHR. For example, Article 35 or the new Convention on admissibility criteria (ECHR) is identical in content with Articles 26 and 27 of the old Convention also on admissibility (EComHR). Hence, the relevance of the jurisprudence of the Commission on Articles 26 and 27 (modified by the jurisprudence of the ECHR in the same regard to the extent it had jurisdiction to deal with such matters) cannot be ignored for the work of the ECHR under the new Convention. There are also similarities, though not an identity, between Articles 33 and 34 (ECHR) of the new Convention and Articles 24 and 25 (EComHR) of the old Convention. There is included an examination and analysis, therefore, of the jurisprudence of the EComHR. An initial point to be made is that ostensibly no distinction is clearly made between matters of competence (compétence) and those of admissibility (recevabilité). However, it is clear that, while the general practice in both bodies has been to deal with both matters of competence and those of admissibility under a general concept of admissibility which has been clearly encouraged by the manner in which the Convention both new and old has been drafted, there is no indication that either body regarded the distinction between competence and admissibility proper as irrelevant or that the two concepts were not regarded as having different consequences in given situations. Consequently in the present discussion matters of competence will be kept separate from matters of admissibility where this is possible and where it is required.

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Two of the admissibility conditions included in the former Convention for the EComHR applied to applications submitted by states as well as to those submitted by individuals. These are the condition relating to the exhaustion, of domestic remedies and the six-month rule (Article 26, now see Article 35(1)). For the “admissibility” of an individual application, five additional requirements were that the application (i) was not anonymous; (ii) was not substantially the same as a matter which had already been examined by the Commission or had already been submitted to another procedure of international investigation or settlement and contained no relevant new information; (iii) was not incompatible with the provisions of the Convention; (iv) was not manifestly ill-founded; and (v) did not constitute an abuse of the right to lodge an application (Article 27(1) and (2), now see Article 35(2) and (3)). Applications by states could only be rejected on the grounds mentioned in Article 26, and not on the ground of incompatibility with the Convention mentioned in Article 27(2), a ground on which the Commission sometimes rejected individual applications with respect to which it had no competence.l But it is evident that applications by states could also fall outside the competence of the Commission, for instance ratione temporis, when the application related to a time period in which the Convention had not yet See, e.g., Appl. 473/59, X v. Austria, 2 YBECHR (1958–1959), p. 400, Appl. 1452/62. X v. Austria, 6 YBECHR (1963) p. 268. On the question of “admissibility” (recevabilité) see generally van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights (1998), De Bruyn, Les exceptions prélimlinaires dans la Convention européenne des droits de l’homme (1997), Schermers, “European Convention on Human Rights”, 7 Collected Courses of the Academy of European Law (1996) p. 1. All these works deal with the pre-1998 situation. Article references are to the old Convention, unless there has been a change in the substance in the new Convention. The first work referred to above has appeared in a new edition as van Dijk, van Hoof, van Rijn and Zwaak (eds.), Theory and Practice of the European Convention on Human Rights (2006). The latter work is referred to hereafter as van Dijk, op. cit. note 1, while the earlier work is referred to as van Dijk and van Hoof, op. cit. note 1. The work on jurisdiction in van Dijk, op. cit. note 1, was revised by Zwaak. 1

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become binding upon the respondent state. The practice concerning individual applications shows that the Commission usually accepted or rejected applications outside its competence ratione personae, ratione materiae, ratione loci, or ratione temporis by reference to admissibility and inadmissibility. Now, there is a Protocol 14 which has not yet come into force and will be referred to at the end of this chapter. MATTERS STRICTLY

OF

COMPÉTENCE

(1) Compétence Ratione Loci Article 1 of the European Convention on Human rights provides that the Convention is applicable to everyone within the jurisdiction of the contracting states. According to general international law a treaty is applicable to the whole territory of a contracting state, including those territories for whose international relations the state in question is responsible.2 Under Article 63(1), however, the European Convention extends to the latter territories only when the contracting state concerned has agreed to this by means of an appropriate declaration to that effect. Several contracting states made such declarations at one time or another. The question what the words “territory for whose international relations a state is responsible” meant was raised in X v. Belgium.3 Even though the area, the

See Art. 29 of the 1969 Vienna Convention on the Law of Treaties, 8 ILM p. 679. 3 Appl. 1965/61, 4 YBECHR (1961) p. 260. According to Article 63(3) the provisions of the Convention are applied to the territories referred to in Article 63 with due regard to local requirements. In the Tyrer Case the British Government submitted in this context that corporal punishment on the Isle of Man was justified as a preventive measure, based on public opinion on the island. The Court, however, held that: “for the application of Article 63(3), more would be needed: there would have to be positive and conclusive proof of a requirement, and the Court could not regard beliefs and local ‘public’ opinion on their own as constituting proof.”: Judgment or 25 April 1978, A.26 at p. 18. See also the Piermont Case, 38 YBECHR (1995) at p. 258, the Wiggins Case (1979), 13 D&R at p. 48. 2

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Belgian Congo, formed part of the national territory of Belgium at the time of the acts complained of, the Commission held that the Belgian Congo had to be regarded as a territory for whose international relations Belgium was responsible in the sense of Article 63, because that was what it was at the time of the complaint, and that the complaint was not admissible ratione loci, since Belgium had not made any declaration under Article 63 with reference to this territory. When territories become independent, a declaration under Article 63 automatically ceases to apply, because the contracting state which made it, is no longer responsible for the international relations of the new state.4 That the Convention is applicable only to the territory of the contracting states, subject to Article 63 does not imply that a contracting state cannot be responsible under the Convention for acts of its organs that have been committed outside its territory, where there is control, whether, e.g., militarily or through a subordinate local administrations.5 The responsibility of contracting states may be incurred on account of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory.6 On the other hand, a contracting state is responsible for acts committed on its territory only to the extent that they have been committed by its own organs.7

See, e.g., Appl. 7230/75, X v. the Netherlands, 7 D&R (1977) p. 109. The Loizidou Case, Judgment of 23 March 1995, A.310, p. 24. See also, Appl. 1611/2, X v. FRG, 8 YBECHR (1965) p. 158, Appls. 7289/75 and 7349/76, X and Y v. Switzerland, 9 D&R (1978) p. 57. In this context see, however, Appl. 6231/73, Ilse Hess v. United Kingdom, 18 YBECHR p. 146. 6 Judgment of 26 June 1992, Drozd and Janousek, 35 YBECHR (1992) at p. 161, but in that case the Court agreed with the Commission that there was no jurisdiction ratione loci. 7 See Appl. 2095/63, X v. Sweden, FRG and Other States, 7 YBECHR (1965) at p. 282, where it was decided that the alleged violations of the Convention by the Supreme Restitution Court could not be held against the Federal Republic of Germany, even though this tribunal had its sessions on West German territory. It was to be considered as an international tribunal, in respect of which Germany had neither legislative nor supervisory powers. See also Appl. 235/56, X v. 4 5

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(2) Compétence Ratione Temporis Pursuant to a generally accepted principle of international law a treaty is presumed not to be applicable to acts or facts that have occurred, or to situations that have ceased to exist, before the treaty entered into force and was ratified by the state in question. This applies also to the European Convention.8 In the Pfunders Case the Commission held that from the nature of the obligations under the Convention it could be inferred that the fact that the respondent state (Italy) was a party to the Convention at the time of the alleged violation was decisive, it being irrelevant that at that moment the applicant state (Austria) had not ratified the Convention and was not a party.9 The Commission has had to decide objections to jurisdiction in complaints which relate to a continuing situation, i.e., to violations of the Convention which are caused by an act committed at a given moment but continue owing to the consequences of the original act. Such a case occurred with respect to a Belgian national who lodged a complaint concerning a conviction by a Belgian court for treason during World War II. The verdict had been pronounced before Belgium had ratified the Convention, but the situation complained about – the punishment in the form of, inter alia, a limitation of the right of free expression – continued after the Convention had become binding on Belgium. The Commission declared the complaint admissible because it held that the latter fact was decisive.10 The ECHR took a similar view in the Papamichalopoulos Case.11 FRG, 2 YBECHR (1958–1959) p. 256, and Drozd and Janousek, 35 YBECHR (1992) p. 160. 8 Appl. 343/57, Schouw Nielsen v. Denmark, 2 YBECHR (1958–1959) p. 412, Appl. 7742/76, A.B. & Company A.S. v. Federal Republic of Germany, 14 D&R (1979) p. 146. 9 Appl. 788/60, Austria v. Italy, 4 YBECHR (1961) p. 116. 10 Appl. 214/56, De Becker v. Belgium, 2 YBECHR (1958–1959) p. 214. See also, e.g., Appl. 8701/79, X v. Belgium, 18 D&R (1980) p. 250. See also the negative decision of the Commission in the joined Appls. 8560/79 and 8613/79, X and Y v. Portugal, 16 D&R (1979) p. 209. 11 Judgment of 24 June 1993, 36 YBECHR (1993) at p. 206. In the Yagci

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A special situation occurred when several complaints concerning criminal proceedings in Italy were lodged. The issue of applying restrictions in jurisdictional acceptances ratione temporis arose. In its declaration under Article 25 this country had laid down that it accepted the rights of individual petition as from 1 August 1973. The procedure in the first instance in these cases had ended in 1969. On appeal, the verdict had been pronounced on 11 February 1976. To the extent that the complaint concerned the first-mentioned procedure it was rejected by the Commission ratione temporis, while with respect to the appeal procedure the application was declared admissible.12 In regard to the temporal scope of the Convention, Article 65(2) provides that, even after a state has denounced the Convention in accordance with Article 65(1), the latter remains fully applicable to that state for a further six months. A complaint submitted between the date of denunciation of the Convention and that on which that denunciation becomes effective thus falls within the scope of the Convention ratione temporis.13 (3) Restrictions on Acceptances of Jurisdiction Pursuant to Former Articles 25 and 46 A declaration of a contracting state made pursuant to Article 25 in which the competence of the Commission to receive applications from individuals is recognized generally has retrospective effect to

and Sargin Cases, the Court rejected the preliminary objection, holding that the Court’s jurisdiction was not excluded in respect of events subsequent to the date of the acceptance by Turkey of the Court’s compulsory jurisdiction but which by their nature were merely “extensions of ones occurring before that date”: Judgments of 8 June 1995, 38 YBECHR (1995) at p. 271. On the other hand, the Court found that the “continuing situation” doctrine did not apply to the facts of the Stamoulakatos Case, Judgment of 26 October 1993, 36 YBECHR (1993) at p.240. 12 Appl. 8261/78, X v. Italy, 18 D&R (1980) at p. 151. 13 Appl. 4448/70, Denmark, Norway and Sweden v. Greece, 13 YBECHR (1970) at p. 120.

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the moment of the ratification of the Convention.14 As a consequence of this approach all individual may draw the Commission’s attention to an alleged violation of the Convention, even if this violation took place prior to the moment at which the respondent state made that declaration, provided that at the moment in question the Convention was binding upon that state. When making that declaration, however, a state may indicate that it applies to the future only.15 But even in that event what has been said above in regard to “continuing violations” becomes relevant. When Turkey accepted the right of individual petition, it subjected its acceptance of the Commission’s competence to several limitations.16 The Commission and the Court had the opportunity to consider the validity of these limitations, when they were confronted with a complaint against Turkey. The Commission held that apart from the temporal limitations provided for in Article 25(2) the Convention did not authorize any other restriction in a declaration accepting the right of individual petition.17 In the Loizidou Case the Court sought to ascertain the ordinary meaning given to Articles 25 and 46 in their context and in the light of their object and purpose. The Court said that, if Articles 25 and 46 were to be interpreted as giving states the power to make restrictions (other than of a temporal nature), they would be enabled to qualify their consent under the optional clauses. This would severely weaken the role of the Commission and Court and diminish the effectiveness of the Convention as a constitutional instrument of European public order. The consequences for the enforcement of the Convention

Appl. 9578/81, X v. France, 29 D&R (1982) at pp. 238 ff., Appl. 9990/82, Bozano v. France, 39 D&R (1984) p. 143. 15 See, e.g., the declaration of the United Kingdom, 9 YBECHR (1966) p. 8. See also Appls. 15299/89, 15300/89 and 15318/89, Chrysostomos, Papachrysostomou and Loizidou v. Turkey, 34 YBECHR (1991) at pp. 49 ff. 16 Ibid. at p. 43. 17 Ibid. at pp. 50 ff. See also Appl. 14524/89, Yanasik v. Turkey, 74 D&R (1993) at pp. 24 ff. 14

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would be so far-reaching that express provision should have been made for such a power; neither Article 25 nor Article 46 contained such a provision; moreover, the subsequent practice of contracting parties of not attaching restrictions ratione loci or ratione materiae confirmed the view that these were not permitted.18 (4) Compétence Ratione Personae Under the Convention there is a right of complaint. The right of complaint concerns jurisdiction ratione personae. There are two aspects to it. (A) Inter-state Applications In regard to active legitimation, a state party to the Convention could lodge an application with the EComHR on the ground of an alleged violation of one or more provisions of the Convention by another contracting state. Unlike the case of diplomatic protection, a state could lodge complaints about violations committed against persons who might or might not be its nationals or even against persons who were not nationals of any of the contracting states, or were stateless, and even about violations against nationals of the respondent state. States may equally lodge complaints about the incompatibility with the Convention of the national legislation or of an administrative practice or another state without having to allege a violation against any specific person: the so-called “abstract applications”. Thus the right of complaint for states assumed the character of an actio popularis: any contracting state had the right to lodge a complaint about any alleged violation of the Convention, regardless of whether there was a special relation between the rights and interests of the applicant state and the alleged violation. In the Pfunders Case between Austria and Italy the Commission said that

Judgment of 23 March 1995, 38 YBECHR (1995) at pp. 248 ff. The Court gave other reasons for its conclusion: ibid. On this case see Cohen, “L’affaire Loizidou devant la Cour européenne des droits de l’homme – quelques observations”, 102 RGDIP (1998) p. 123. 18

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a state which brings an application under Article 24 “is not to be regarded as exercising a right of action for the purpose of enforcing its own rights, but rather as bringing before the Commission an alleged violation of the public order of Europe”.19 Elsewhere, the Court has likewise held that, unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement”.20

The supervisory procedure of the Convention aims at protecting the fundamental rights of the individual against violations by the contracting states, rather than at implementing mutual rights and obligations between those states.21 The Convention at the same time protects the particular interests of the contracting states when they claim that the rights set forth in the Convention must be secured to their nationals coming under the jurisdiction of another contracting state. A case in which the applicant state’s own nationals were involved occurred for the first time when Cyprus brought applications against Turkey concerning

Appl. 788/60, Austria v. Italy, 6 YBECHR (1961) p. 116. See also Appls. 9940/82–9944/82, France, Norway, Denmark, Sweden and Netherlands v. Turkey, 35 D&R (1984) p. 143; Appls. 15299/89, 15300/89 and 15318/89, Chrysostomos, Papachrysostomou and Loizidou v. Turkey 34 YBECHR (1991) p. 35. 20 Judgment of 18 January 1978, Ireland v. United Kingdom, A.25, p. 90. In the report of 4 October 1983, Cyprus v. Turkey, 72 D&R (1992) at p. 19, the Commission further noted that a government cannot avoid this collective enforcement by not recognizing the government of the applicant state. 21 See also Appls. 3321–3323 and 3344/67, Denmark, Norway, Sweden and Netherlands v. Greece, 9 YBECHR (1968) p. 690, and Appl. 444/8/70, Denmark, Norway and Sweden v. Greece, 13 YBECHR (1970) p. 108, both of which were joint applications in the framework of collective enforcement. See also Appls. 9940–9944/82, France, Norway Denmark, Sweden and Netherlands v. Turkey, 35 D&R (1984) p. 143. 19

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the treatment of nationals of Cyprus during the Turkish invasion and subsequent occupation of that island.22 Examples of applications concerning persons with whom the applicant state had a special relation other than the link of nationality are the applications of Greece against the UK, which concerned the treatment of Cypriots of Greek origin.23 In order for state complaints to be admissible hardly any prima facie evidence is required. The Commission has deduced from both the English text (“alleged breach”) and the French (“qu’elle croira pouvoir être imputé”) that the mere allegation of such a breach is, in principle, sufficient under Article 24.24 The Commission explained that the provisions of Article 27(2) – empowering it to declare inadmissible any petition submitted under Article 25, which it considers either incompatible with the provisions of the Convention or manifestly ill-founded apply, according to their express terms, to individual applications under Article 25 only, and that, consequently, any examination of the merits of state complaints must be entirely reserved for the post-admissibility stage. On the other hand, the Commission also stated in the same case that the application of a general rule according to which an application under Article 24 may be declared inadmissible if it is clear from the outset that it is wholly unsubstantiated, or otherwise lacking the requirements of a genuine allegation in the sense of Article 24 of the Convention was possible. With regard to applications by states it is also to be noted that they must be lodged by a national authority competent to act on behalf of the state in international relations. In that respect regard

Appls. 6780/74 and 6950/75, Cyprus v. Turkey, 18 YBECHR (1975) p. 82, Appl. 8007/77, Cyprus v. Turkey, 20 YBECHR (1977) p. 98, Appl. 25781/94, Cyprus v. Turkey, 42 YBECHR (1998) p. 63. 23 Appls. 176/56 and 299/57, Greece v. UK, 2 YBECHR (1958–1959) pp. 182 and 186 respectively. See also Appl. 788/60, Austria v. Italy, 4 YBECHR (1961) p. 116, Appls. 5310/71 and 5451/72, Ireland v. United Kingdom, 15 YBECHR (1972) p. 76. 24 Appls. 9940/82–9944/82, France, Norway, Denmark. Sweden and Netherlands v. Turkey, 35 D&R (1984) at p. 161. 22

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must be had not only to the text of the state’s constitution but also to the practice under it.25 (B) Individual Applications Article 25 which dealt with active legitimation removed a serious limitation which characterized generally the position of the individual in international law. The requirement of the link of nationality which is the basis of diplomatic protection has been removed. Moreover, because states may generally be reluctant to submit an application against another state, the individual right of complaint constitutes a necessary expedient removed. Moreover, because states may generally be reluctant to submit an application against another state, the individual right of complaint constitutes a necessary expedient for achieving the aim of the Convention which is to secure the rights and freedoms of individuals against states. The right to lodge an application concerns active legitimation. When a state had made the declaration under Article 25(1), anyone who was in some respect subject to the jurisdiction of that state and was allegedly a victim of a violation of the Convention by that state could lodge an application. Article 1 of the Convention made it evident that the nationality of the applicant was irrelevant. It was also irrelevant whether the national state of the individual was a contracting state or had made the declaration under Article 25(1). Stateless persons were also included. Lack of legal capacity did not affect the natural person’s right of complaint. In several cases the Court held that minors had the right, of their own accord and without being represented by their guardians, to lodge a complaint with the EComHR. The same applied to persons who have lost their legal capacity after being committed to a psychiatric hospital.26

Appls. 6780/74 and 6950/75, Cyprus v. Turkey, 18 YBECHR (1975) p. 82. See, for lack of legal capacity, e.g., the Judgment of 28 November 1988, the Nielsen Case, A.144, p. 8. Judgment of 24 October 1979, the Winterwerp Case, A.33, p. 6, Judgment of 21 February 1990, the Van der Leer Case, 33 YBECHR (1990) p. 129, Judgment of 24 September 1992, the Herczegfalvy Case, 35 YBECHR (1992) p. 173. 25

26

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Besides individuals, non-governmental organizations and groups of persons could also file an application. With respect to the lastmentioned category the Commission decided during its first session that these must be groups which had been established in a regular way according to the law of one of the contracting states. If that were not the case the application must have been signed by all the persons belonging to the group.27 As to the category of non-governmental organizations, the Commission decided that they had to be private organizations, and that municipalities, for instance could not be considered as such.28 A wide range of organizations29 has submitted applications.30 Whereas states may complain about “any alleged breach of the provisions of the Convention by another High Contracting Party”, and consequently also about national legislation or administrative practices in abstracto, individuals must claim “to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention” (Article 25). The individual applicant must be the victim of the alleged violation.31 Thus, he may not See the report of the relevant session, DH(54)3, p. 8. Appls. 5767/72, 5922/72, 5929–5931/72, 5953–5957/72, 5984–5988/73 and 6011/73, Austrian Municipalities v. Austria, 17 YBECHR (1974) p. 338, Appl. 15090/89, Ayuntamiento M. v. Spain, 68 D&R (1991) p. 209. 29 Newspapers, Appl. 10243/83, Times Newspapers Ltd., Giles, Knightly and Potter v. the United Kingdom, 41 D&R (1985) p. 123, churches, Appl. 8282/78, Church of Scientology v. Sweden, 21 D&R (1981) p. 109, associations, Platform “Ärzte für das Leben”, v. Austria, 31 YBECHR (1988) p. 153, companies, the Tre Traktörer AB Case, 32 YBECHR (1989) p. 173. 30 Although the rights and freedoms laid down in the Convention apply to individuals as well as to non-governmental organizations, some of the rights and freedoms are by their nature not susceptible of being exercised by a legal person. See, e.g., Appl. 11921/86, Verein Kontakt Information Therapie and Hagen v. Austria, 57 D&R (1988) p. 81, Appl. 11533/85, Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, 30 YBECHR (1987) p. 104. On the receivability of individual applications generally see Arend, Kinsch and Spielmann, “Commission européenne des droits de l’homme: Decisions sur la recevabilité des requêts individuelles,” 6 Bulletin des droits de l’homme (1996) p. 67. 31 For the importance of this see Appl. 9320/81, D. v. FRG, 36 D&R (1984) 27 28

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bring an actio popularis, nor may he submit to the Commission abstract complaints.32 The Commission has held that the mere fact that trade unions considers themselves as guardians of the collective interests of their members does not suffice to make them “victims” of measures affecting those members.33 The Commission has, however, declared admissible individual applications which had a partly abstract character.34 For admissibility the applicant was not required to prove that he was the victim of the alleged violation. Article 25(1) only provides that the applicant must be a person “claiming to be the victim” (“qui se prétend victime”). However, this does not mean that the mere submission of the applicant that he was a victim was in itself sufficient. The Commission examined whether, assuming that the alleged violation had taken place, it was to be deemed plausible that the applicant was a victim, on the basis of the facts submitted by the applicant and the facts, if any, advanced against them by the defendant state.35 Even if the applicant did not expressly p. 24. In the ÖZDEP Case the applicant was still held to be a victim, in spite of its dissolution in the circumstances: Judgment of 8 December 1999, 39 ILM p. 513. See also now the Ciobanu Case, decision of 16 December 2003 (current Article 34). 32 The Klaas Case (1978), A.28 pp. 17–18, the Marckx Case, A. 31 p. 13. 33 Appl. 15404/89, Purcell v. Ireland, 34 YBECHR (1991) p. 90. 34 The Commission has held that “neither Article 25, nor any other provisions in the Convention, . . . prevent an individual applicant from raising before the Commission a complaint in respect of an alleged administrative practice in breach of the Convention provided that he brings prima facie evidence of such a practice and of his being a victim of it.” Appls. 5577–5583/72, Donnelly v. the United Kingdom, 16 YBECHR (1973) at p. 216. 35 If in the Commission’s opinion this is not the case, it declares the application “incompatible with the provisions of the present Convention” and that it is inadmissible: see, e.g., Appl. 1983/63, X v. The Netherlands, 9 YBECHR (1966) at p. 304. In a few cases the Commission declared the application “manifestly ill founded” because in its view the applicant could not be regarded as a victim: see, e.g., Appl. 4653/70, X v. Federal Republic of Germany, 17 YBECHR (1974) at p. 178. This also led to a declaration of inadmissibility, but this was not the appropriate ground, because the question of whether the application is well founded depends on whether there has been a violation of the Convention, not on the question of the relationship of such a violation to the applicant.

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submit that he was the victim of the challenged act or omission, the Commission was, nevertheless, prepared to examine this point and to declare the application admissible if there appeared to be sufficient ground for this.36 Being a victim means that the applicant must be personally afflicted by the alleged violation. According to the Court’s wellestablished case-law “the word ‘victim’ in Article 25 refers to the person directly affected by the act or omission at issue”.37 To this, however, the Court usually added a phrase on the lines of “the existence of a violation being conceivable even in the absence of prejudice. . . .”38 The requirement that the applicant be personally affected by the alleged violation was also stressed by the Commission.39 See, e.g., Appl. 99/55, X v. Federal Republic of Germany, 2 YBECHR (1955–1957) p. 160. 37 Recently see the Lüdi Case, 35 YBECHR (1992) p. 155, the Groppera Radio AG Case, 33 YBECHR (1990) p. 138. 38 The Lüdi Case, 35 YBECHR (1992) p. 155. 39 Appl. 867/60, X v. Norway, 4 YBECHR (1961) p. 270, Appl. 7045/75, X v. Austria, D&R (1977) p. 87 (88). See also Appl. 7806/77, Webster v. the United Kingdom, 12 D&R (1978) p. 168. For some refinements of the notion and some complications arising from abortion legislation see Annex II to the report of 12 July 1977, Brüggemann and Scheuten, 10 D&R (1978) p. 100, Appl. 6959/75, Brüggemann and Scheuten v. FRG, 5 D&R (1976) p. 103, Appl. 8416/78, X v. the United Kingdom, 19 D&R (1980) p. 244, Appl. 17004/90, Hercz v. Norway, 35 YBECHR (1992) p. 55. In a case where a journalist and two newspapers alleged violation of their right to receive and impart information as a result of a ruling by the House of Lords that a lawyer had acted in contempt of court because she allowed inspection of confidential documents by the journalist after these had been read out in the course of a public hearing, the Commission took a more restrictive position. It declared the application inadmissible because it did “not consider that the concept of “victim” in Article 25(1) may be interpreted so broadly, in the present case, as to encompass every newspaper or journalist in the United Kingdom who might conceivably be affected by the decision of the House of Lords. The form of detriment required must be of a less indirect and remote nature.”: Appl. 10039/82, Leigh and Others v. United Kingdom, 38 D&R (1984) p. 74. However, in a case where the applicants, an editor of a newspaper and a journalist, complained that the law of contempt of court prevented the preparation of a newspaper article on a case which was sub judice, the Commission considered that in view of the applicants’ professional activities, they might be directly 36

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The Commission and the Court have also accepted as victims in the sense of Article 25 a category of persons of whom it could not be ascertained with certainty that they had suffered an injury, i.e., those who were potential victims. The reason is that the applicants could not know whether legislation that had been challenged had or had not been applied to them. In the Klaas Case three lawyers, a judge and a public prosecutor alleged violation of the secrecy of their mail and telecommunications by the authorities. The measures concerned were secret because the persons in question were not informed of them in all cases, and if they had been informed, then that happened only later. The Commission settled the matter of the victim-requirement in a brief statement, stressing the secret character of the measures, and concluding that, “In view of this particularity of the case the applicants have to be considered as victims for purposes of Article 25”.40 The Court dealt with the matter in greater detai1.41 It first stated that under Article 25 individuals in principle may neither bring an actio popularis nor complain about legislation in abstracto. The principle of effectiveness (l’effet utile), however, in the Court’s view, called for exceptions to this rule. This principle implied that the procedural provisions of the Convention were to be applied in such a way as to support the effectiveness of the system of individual applications. The Court thus concluded that an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of a secret measure or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. Such conditions were satisfied in the case under consideration, because the contested legislation instituted a system of surveillance under which all persons in the FRG could potentially have had their mail, post and telecommunications monitored, without their even knowing affected by the Contempt of Court Act 1981 and might, therefore, claim rightly to be victims in regard to this legislation: Appl. 10243/83, Times Newspapers Ltd., and Others v. the United Kingdom, 41 D&R (1985) at p. 130. 40 Appl. 5029/71, Klaas v. FRG, 17 YBECHR (1974) p. 178. 41 Judgment of 6 September 1978, A.28, pp. 17–18. See also Appl. 10799/84, Radio X, S, W & A v. Switzerland, 37 D&R (1984) p. 236.

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this unless there had been either some indiscretion or subsequent notification. The conclusion implied that in case of the existence of secret measures (whether based on legislation or not) the victimrequirement under Article 25 might already be satisfied when the applicant is a potential victim.42 In the later Marckx Case the Court reached the same conclusion expressly referring to the Klaas Case. In the Marckx Case43 the argument was made that the Belgian legislation concerning illegitimate children conflicted with the Convention. The Belgian government submitted that this was in reality an abstract complaint, because the challenged legislation had not been applied to the applicant. The Court applied the principle that Article 25 of the Convention entitles individuals to contend that a law violates their fights by itself, in the absence of an individual measure of implementation,

See also Report of 16 May 1980, Campbell and Cosans, B.42 (1985), p. 36: the reasoning of the Court in the Klaas Case was relied upon by two mothers, who submitted, on behalf of their children, that Article 3 of the Convention had been violated because of the existence of a system of corporal punishment at the schools in Scotland attended by their children. According to the Commission there was no direct analogy with the Klaas Case but it did refer to the criterion of effectiveness relied upon by the Court in that case and held subsequently that in order to be accepted as victims under Article 25 of the Convention, individuals must satisfy the Commission that they run the risk of being directly affected by the particular matter which they wish to bring before it. Thus, here again, the mere fact of running a risk was deemed sufficient for the individuals to be considered as “victims”. According to the Commission it would be too restrictive an interpretation of Article 25 to require that the children had in actual fact been subjected to corporal punishment. It therefore considered the children as victims because they “may be affected by the existence of physical violence around them and by the threat of a potential use on themselves of corporal punishment”: ibid. at pp. 36–37. However, in a case where a mother and her son complained about the existence of corporal punishment for breach of school discipline the Commission held that, having failed to inquire about the disciplinary methods when she put her child in a private school, a mother cannot claim to be a victim direct or indirect, of a violation of the rights guaranteed in the Convention in respect of corporal punishment inflicted on the child for a breach of school discipline: see Appl. 13134/87, Costello-Roberts v. UK, 67 D&R (1991) p. 216. 43 Judgment of 13 June 1979, A.31 p. 8. 42

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if they run the risk of being directly affected by it.44 The question whether the applicant had actually been placed in an unfavourable position was said not to be a criterion of the victim-requirement, because “the question of prejudice is not a matter for Article 25 which, in its use of the word ‘victim’, denotes ‘the person directly affected by the act or omission which is in issue’.”45 In later cases, such as the Norris Case and the Modinos Case, the applicants complained about the existence or laws which had the effect or making certain homosexual acts, between consenting adult males, criminal offences. The Court held that “in the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life.”46 The question whether applicants having a future interest may also be considered victims in the sense of Article 25 has come before the Commission. The Commission seems to be prepared to recognize future interest in certain cases. In one case two parents complained about legal and administrative measures concerning sexual instruction at primary schools. The measures were not yet applicable to their school-age daughter. Nevertheless, the Commission admitted their application, without mentioning the victim requirement.47 In the Kirkwood Case the complaint was that the envisaged extradition from the UK to California of Kirkwood would amount to inhuman and degrading treatment contrary to Article 3 of the Convention because, if extradited, he would be tried for two accusations of murder and one of attempt to murder, and would very probably be sentenced to death. He argued that the circumstances surrounding the implementation of such a death penalty, and in particular the ‘death row’ phenomenon of excessive delay during a prolonged appeal procedure lasting several years, during which he would be gripped Ibid. at pp. 12–14. Ibid. See also the Commission in Appl. 8307/78, De Klerck v. Belgium, 21 D&R (1981) p. 116, Appl. 9697/82, J and Others v. Ireland, 34 D&R (1983) p. 131, Appl. 15070/89, Modinos v. Cyprus, 34 YBECHR (1991) p. 145. 46 Judgment of 26 October 1988, 31 YBECHR (1988) at p. 165, Judgment of 22 April 1993,36 YBECHR (1993) at p. 179. 47 Appl. 5095/71, V. and A. Kjeldsen v. Denmark, 15 YBECHR (1972) p. 482. 44 45

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with uncertainty as to the outcome of his appeal and therefore as to his fate, would constitute inhuman and degrading treatment. The Commission held with respect to the victim requirement that because the complainant in these circumstances was faced with an imminent act of the executive, the consequences of which for him would allegedly expose him to Article 3 treatment, he could claim to be a victim of an alleged violation of Article 3.48 In other cases where a decision had been taken to expel a person to a country where he claimed he risked being treated contrary to Article 3, the Commission has held that a person who is about to be subjected to a violation of the Convention may claim to be a victim.49 If, however, the order to leave the territory of the state concerned was not enforceable, the person concerned could not yet claim to be a victim. Only the notification of an expulsion order referring to the country of destination could, after the domestic remedies had been exhausted, confer on him the status of victim. If an alleged future prejudice could not yet be foreseen, the application was inadmissible.50 It is conceivable that an individual may become an indirect victim by experiencing a personal injury, owing to a violation of the Convention against another. Under certain circumstances, therefore, an individual could lodge an application on his own account concerning a violation of the Convention against another, without his having directly suffered a violation of one of his rights or freedoms. In such cases the applicant must have had so close a link with the direct victim that he himself was also considered to be a victim. The concept of “indirect victim” meant that a near relative of the victim or any other third party could refer the matter to the Commission on his own initiative insofar as the violation concerned was also

Appl. 10479/83,37 D&R (1984) p. 158. Appl. 17262/90, A v. France, 68 D&R (1991) p. 319, Appls. 17550/90 and 17825/91, V and P v. France, 70 D&R (1991) p. 298, Appl. 19373/92, Voulfovitch and Oulianova v. Sweden, 74 D&R (1993) p. 199. 50 See Appl. 2358/64, X v. Sweden, 23 Coll. (1967) p. 147. See also the V and P Case, Judgment of 27 August 1992,35 YBECHR (1992) at p. 168. 48 49

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prejudicial to him or insofar as he had a personal interest in the termination of that violation.51 Thus, a spouse has been considered a victim, because she had suffered financial and moral injury in consequence of a violation of the Convention committed against her husband.52 A purely non-material interest is sufficient for this purpose. For example, the Commission has accepted a complaint of a mother about the treatment of her detained son.53 On the other hand, an applicant was not considered an indirect victim because his sisters had wrongfully failed to receive compensation for their sufferings during the Nazi regime. The compensation was regarded as related only to the sufferings of the sisters.54 In two other cases the Court developed further the concept of indirect victim. In the Open Door and Dublin Well Women Case55 the applications concerned restrictions imposed on the two applicant companies as a result of a court injunction prohibiting them from providing information to pregnant women on abortion clinics in Great Britain. The applicant companies were engaged at the time in non-directive counselling of pregnant women. The other applicants were two of the counselors employed by one of the companies and two women of childbearing age. The respondent government objected that the complaint submitted by the two women of childbearing age amounted to an actio popularis, since they could not claim to be “victims” of an infringement of their Convention rights. The Court held that

Appl. 100/55, X v. FRG, 1 YBECHR (1955–1957) p. 162. Appl. 1478/62, Y v. Belgium, 6 YBECHR (1963) p. 590. See also Appl. 7467/76, X v. Belgium, 8 D&R (1978) p. 220 (twin brother). Appls. 9214/80, 9473/81 and 9474/81, the X, Cabales and Balkandali Case, 29 D&R (1982) p. 176 (spouse). 53 Appl. 898/60, Y v. Austria, 8 Coll. (1962) p. 136. See also Appl. 7011/75, Becker v. Denmark, 19 YBECHR (1976) p. 416, Appl. 9320/81, D v. FRG, 36 D&R (1984) p. 24, Appl. 9348/81, W v. UK, 32 D&R (1983) p. 190, and Appl. 9360/81, W v. Ireland, ibid. p. 211. 54 Appl. 113/55, X v. FRG, 1 YBECHR (1955–1957) p. 161. See also Appl. 9639/82, B, R and J v. FRG, 36 D&R (1984) p. 139. 55 Judgment of 29 October 1992, 35 YBECHR (1992) p. 188. 51 52

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Chapter 6. The European Court of Human Rights Although it has not been asserted that Mrs. X and Mrs. Geragthy are pregnant, it is not disputed that they belong to a class of women of childbearing age which may be adversely affected by the restrictions imposed by the injunction. They are not seeking to challenge in abstracto the compatibility of Irish law with the Convention since they run a risk of being directly prejudiced by the measures complained of. They can thus claim to be “victims” within the meaning of Article 25 § 1.56

While the facts related also to the concept of “potential victim”, in the context of the concept of “indirect victim” it is clear that a measure could be challenged not only by the persons at whom it was directed, but also by those who may have been affected by it in another way. Earlier in the Groppera RadioAG Case a company which owned a radio station, its sole shareholder and two of its employees complained about an Ordinance adopted by the Federal Council prohibiting Swiss cable companies which had a community-antenna licence from rebroadcasting programmes from transmitters which did not satisfy the requirement of the international agreements on radio and telecommunications. Groppera Radio did not satisfy these requirements. A violation of Article 10 was alleged. The Court dismissed the objection that the applicants were not “victims” within the meaning of Article 25 on the Convention, because the Ordinance was not directed against them and assumed jurisdiction.57 In certain cases the Commission has qualified shareholders as victims of alleged violations of rights and freedoms of the company. But it appears that shareholders in such cases are regarded not as indirect but as direct victims.58 In all these cases the individual con-

Ibid. at p. 192. Judgment of 28 March 1990, 33 YBECHR (1990) p. 138. 58 Appl. 1706/62, X v. Austria, 9 YBECHR (1966) p. 112, the report of 17 July 1980 in Kaplan, 21 D&R (1981) p. 5, Appl. 14807/89. In the Agrotexim Hellas Case the Commission found that the question whether a shareholder could claim to be victim of measures against a company could not be determined on the basis of the sole criterion of whether the shareholders hold the majority 56 57

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cerned held a majority share in the company. On the other hand, in the Yarrow Case the Commission held that a minority shareholder of Company A could not claim to be a victim of an interference with property rights of Company, all the securities in which were owned by Company A, because the nationalization measure complained of did not involve him personally. It was open only to Company A to lodge a complaint under the Convention.59 In the case of Wasa and Others v. Sweden the Commission found that a group of persons who were policyholders in an insurance company could not be considered as a victim, because the policyholders did not have any legal claim to direct ownership of the company’s assets as such.60 Cases may occur in which the violation complained of has subsequently been terminated, or no longer exists at the moment the Commission examines the case. The applicant then did not have standing, because he could no longer allege that he was a victim.61 That is to say, if the violation of the Convention complained of has been recognized by the authorities and the applicant has got sufficient redress, he can no longer claim to be a victim of that violation. In cases where the applicant’s sentence had been reduced

of the company shares. The Commission took into account that in addition to holding as a group the majority of the shares in the company, the shareholders had a direct interest in the subject matter of the application. Moreover, the company was in liquidation and was under a special regime of effective state control. Consequently, the company could not reasonably be expected to lodge an application with the Commission against the state. The Commission, therefore, concluded that the applicant shareholders were entitled, by lifting the veil of the company’s legal personality, to claim that they were victims of the measures affecting the company’s property within the meaning of Article 25: Appl. 14807/89,72 D&R (1992) p. 148. 59 Appl. 9266/81, 30 D&R (1983) p. 155. 60 Appl. 13013/87,31 YBECHR (1988) p. 74. 61 See, e.g., Appl. 7826/77, X v. UK, 14 D&R (1978) p. 197. See also the report of 6 July 1983, Dores and Silveira v. Portugal, 41 D&R (1985) p. 60, Appl. 10103/82, Faragut v. France, 39 D&R (1984) p. 186, Appl. 8865/80, Verband Deutscher Flugleiter and Others v. FRG, 25 D&R (1982) p. 252, Appl. 10092/82, Baraona v. Portugal, 40 D&R (1985) p. 118, Appl. 13156/87, Byrn v. Denmark, 73 D&R (1993) p. 5, and Appl. 8858/80, G v. FRG, 33 D&R (1983) p. 5.

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in an express and measurable manner after a judicial finding concerning the undue length of the proceedings, the Commission took the position that he could no longer be considered to be a victim of a violation of Article 6(1).62 On the other hand, there are several cases in which the status of victim has on the facts not been lost. In a case in which the applicants submitted that the authorities’ recording of their telephone conversations with counsel was contrary to the Convention, the records had been destroyed. The German government objected that the alleged violation had become moot. The Commission, however, decided that because the destruction had not taken place in response to a request of the applicants and the latter had not received reparation otherwise, the applicants still had to be considered as victims although the records in question no longer existed.63 In the cases of Van den Brink and Zuiderveld and Klappe the respondent government contended before the Court that the applicants could not claim to be victims of a breach of Article 5(3), as the time each one spent in custody on remand was deducted in its entirety from the sentence ultimately imposed on them. The Court held that the relevant deduction did not per se deprive the individual concerned of his status as an alleged victim within the meaning of Article 25 of a breach of Article 5(3). The Court added that: “The position might be otherwise if the deduction from sentence had been based upon an acknowledgment by the national courts of a violation of the Convention.”64 Similarly, in the Inze Case the fact that a judicial settlement had been reached between the parties that might have mitigated the disadvantage suffered by the applicant was considered insufficient reason to deprive the applicant of his status as victim. Here again the Court added that the position might have been otherwise, if, for instance, the national authorities had acknowledged either expressly or in substance, and then afforded redress for, the

Appl. 17669/91, Van Laak v. The Netherlands, 74 D&R (1993) p. 156, report of 16 February 1993, Byrn v. Denmark, 73 D&R (1993) p. 5. 63 Appl. 8290/78, A, B, C and D v. FRG, 18 D&R (1980) p. 176. 64 Judgments of 22 May 1984, A. 77 at p. 20 and A. 78 at p. 16 respectively. 62

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alleged breach of the Convention.65 In the East African Asians Cases the Commission held that where Article 3 was violated by a state’s exclusion from its territory of a person on the ground of race, the violation was substantially terminated, but not redressed, by that person’s admission and therefore, such a person could claim to be a victim of a violation notwithstanding admission.66 It seems to have been unusual for the status of victim to be lost on the basis of non-existence of the violation.67 The Commission has proprio motu examined the question whether the applicant was a victim in the event that the respondent did not raise the issue as a preliminary objection.68 The doctrines of estoppel or waiver do not apply in these cases. That is so to the extent that subsequently before the Court the respondent is not estopped from raising the issue as an objection to jurisdiction.69

Judgment of 28 October 1987, 30 YBECHR (1987) at p. 155. Report of 14 December 1973, 78-A D&R (1994) p. 5. See also the Moustaquim Case, 34 YBECHR (1991) p. 181. 67 This ground looks similar to mootness. 68 See ÖZDEP v. Turkey (2000), 39 ILM at 523. 69 Ibid. For the requirement of being a “victim” and the nuances involved see further van Dijk, op. cit. note 1 pp. 55–78. The following recent cases on the subject may be mentioned: the Ilhan Case, Judgment of 27 June 2000, para. 52; the Christian Federation of Jehova’s Witnesses Case, Decision of 6 November 2001; the Gayduk Case, Decision of 2 July 2002; the Lacko Case, Decision of 2 July 2002; the Valmont Case, Judgment of 23 March 1999, paras. 56–9; the Skubenko Case, Decision of 6 April 2004; the Rotaru Case, Judgment of 4 May 2000, para. 35; the Segi and Others Case, Decision of 23 May 2002; the Bowman Case, Judgment of 19 February 1998, para. 29; S.L. v. Austria, Decision of 22 November 2001; the Bland Case, Decision of 19 February 2002; the Hibbert Case, Decision of 26 January 1999; the Celikbilek Case, Decision of 22 June 1999; A.V. v. Bulgaria, Decision of 18 May 1999; the Ankarcrona Case, Decision of 27 June 2000; the CDI Holding Aktiengeschellschaft and Others Case, Decision of 18 October 2001; the Lebedev Case, Decision of 25 November 2004; the Gulsen and Haul Yasin Ketenoglu Case, Judgment of 25 September 2001, paras. 36–7; the Aydin and 10 Others Case, Decision of 1 February 2000; the Burdov Case, Judgment of 7 May 2002, para. 31; the Doubtfire Case, Decision of 23 April 2000; the Beck Case, Judgment of 26 June 2001, para. 27; the Jansen Case, Decision of 20 September 2001; the Wejrup Case, Decision of 7 March 2002; 65

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This approach of the Commission in raising the matter proprio motu and of the Court in not regarding the right to raise the objection as lost point to the conclusion that the qualification of being a victim pertains to competence (compétence) and not to receivability (recevabilité), although the term used by the two bodies in this connection is often “admissibility”. (C) Passive Legitimation with Regard to Both Kinds of Applications In regard to passive legitimation an application by a state could be directed against any other contracting state, an individual application only against those contracting states which had recognized the competence of the Commission to receive such applications. This meant that the Commission could not receive applications directed against a state which was not a party to the Convention70 or, as the case may be, to the Protocols relied upon in the application,71 or, in the case of an individual application, against a state which was a party to the Convention, but which had not made the declaration referred to in Article 25.72 Furthermore, an application was to be declared inadmissible ratione personae, if the alleged violation did not fall under the responsibility of the respondent state. In general, a state is internationally responsible for the acts of its legislative, executive and judicial branches of government. The question may arise as to whether a particular organ or person can be considered to belong to these government organs for the purpose of the European Convention. A foreign or international organ which is active in the territory of a contracting state may not fall within its responsibility. the Caraher Case, Decision of 11 January 2000; Z.W. v. The UK, Decision of 27 November 2001; the Hamaidi Case, Decision of 6 March 2001; the Ilascu Case, Decision of 4 July 2001. 70 See, e.g., Appl. 262/57, X v. Czechoslovakia, 1 YBECHR (1955–1957) p. 170, Appl. 8030/77, Confédération Française Démocratique du Travail v. European Communities, 21 YBECHR (1978) p. 530. 71 See, e.g., the Appls. 5351/72 and 6579/74, X v. Belgium, 46 Coll. (1974) p. 71, Appl. 22564/93, Greece v. UK, 77-A D&R (1994) p. 90. 72 See Appl. 62/55, X v. FRG, 1 YBECHR (1955–1957) p. 180.

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Furthermore, the situation may arise where a state is responsible for the international relations of a given territory, without it being possible that an application is lodged against it on account of the acts of the authorities if the state in question has made a declaration as referred to in Article 63(1). Applications may be directed only against states and consequently not against individuals or groups of individuals. Applications against individuals are therefore declared “inadmissible” ratione personae.73 In practice, a comparatively large number of complaints have been directed against the most widely varied categories or individuals and organizations, such as judges and lawyers in their personal capacity, employers, private radio and TV stations and banks. For the rejection of such complaints the Commission generally invoked Article 19, under which it had to ensure the observance of the engagements which the contracting states had undertaken, and also Article 25, which permitted the Commission to consider applications if the applicant claimed to be the victim of a violation of the Convention by a contracting state.74 It appears that the Commission did investigate whether a violation of the Convention by an individual might involve the responsibility of a state. Under international law a state is responsible for acts of individuals to the extent that the state has urged the individuals to commit the acts in question, or has given its consent to them, or in violation of its international obligations has neglected to prevent those acts, to punish the perpetrators, or to impose the obligation to redress the injury caused. These principles also apply within the framework of the European Convention.75 This is so by analogy, while Article 1

See Appl. 6956/75, X v. UK, 8 D&R (1987) p. 103, Appl. 19217/91, Durini v. Italy, 76-A D&R (1994) p. 76. 74 See, e.g., Appl. 2413/65, X v. FRG, 23 Coll. (1967) p. l. 75 See Appl. 852/60, X v. FRG, 47 YBECHR (1961) p. 346. An action in substance against the European Patent Office could not be entertained: Appl. 21090/92, Heinz v. Contracting States also Parties to the European Patent Convention, 76 A D&R (1992) p. 125. See also Lenzing AC v. UK, 94 A D&R (1998) p. 136; the Calabro Case, decision of 21 March 2002; the Keralyos and Huber Case, Judgment of 6 April 2004. 73

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creates that responsibility with respect to the treatment of “everyone within their jurisdiction”, and not only of foreigners. The Court has held that a state cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals.76 The starting point for state responsibility under the Convention is that it applies to all organs of the state, even those which under national law are independent of the government, such as the judiciary.77 Whether under the Convention a particular institution must be considered as an organ of the state concerned, so that the latter is responsible for it depends on the precise position of the said institution under national law78 and the involvement of public authorities. Thus, in the Campbell and Cosans Case the Court held the government of the UK responsible for formulating general policy.79 In a subsequent case an applicant and his mother complained about corporal punishment at a private school. The Commission stated that the punishment of the applicant was administered by the headmaster of the private school for whose disciplinary regime the government specifically declined responsibility under the Convention but held in its decision on admissibility that the UK was responsible under the Convention, Articles 1, 3 and 8 of which had imposed a positive obligation on High Contracting Parties to ensure a legal system which provides adequate protection to children’s physical and emotional integrity. The Commission referred to Articles 1 and 3 of the Convention and stated that the duty under Article 3 is recognized in English law which provides certain criminal and civil law safeguards against assault or unreasonable punishment. Moreover, children subjected to, or at risk of being subjected to ill-treatment by their parents, including excessive corporal punishment, may be removed from their parents’ custody and placed in local authority care.80

76 77 78 79 80

Judgment of 23 November 1983, Van der Mussele, A. 70, pp. 14–15. See, e.g., Appl. 7743/76, J.Y. Cosans v. UK. 12 D&R (1978) p. 140. See, e.g., Appl. 1706/62, X v. Austria, 9 YBECHR (1966) p. 112. Judgment of 25 February 1982, A.48, p. 15 (para. 26). Appl. 14229/88, Y v. UK (not published).

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In the Costello-Roberts Case, the Court first pointed out that the state had an obligation to secure to children their right to education under Article 2 of Protocol No. 1. Functions relating to the internal administration of a school, such as discipline, could not be said to be ancillary to the educational process. In this respect, the Court noted that a school’s disciplinary system fell within the ambit of the right to education. Secondly, it said that in the UK independent schools co-existed with a system or public education. The fundamental right of everyone to education was a right guaranteed equally to pupils in state schools and independent schools, no distinction being made between the two. Finally, the Court referred to a previous judgment where it held that a state could not absolve itself from responsibility by delegating its obligations to private bodies or individuals.81 With respect to public industries and enterprises, the Commission in a number of cases did not reach a decision on responsibility.82 In one case the Commission described public transport companies as entreprises para-étatiques, for which the government was not responsible.83 Two later decisions, however, point in the other direction. In both cases the applicants had been discharged by British Rail, because they had refused to join a trade union. The Commission reached the conclusion that, as a public industry, British Rail came under the responsibility of the UK and that accordingly the applications were admissible.84 An important question is whether contracting states under the Convention are responsible, even where direct responsibility for the acts or omissions of governmental organs is not involved nor is there negligence with respect to the acts of individuals. One decision of the Commission supports the view that they may be. The issue was whether the Irish Government was responsible for certain acts of an institution which had been established by law but which Judgment of 25 March 1993, A.247-C, p. 58 (para. 30). Appl. 3059/67, X v. UK, 88 Coll. (1969) p. 89 and Appl. 4515/70, X and the Association of Z v. UK, 14 YBECHR (1971) p. 538. 83 Appl. 3789/68, X v. Belgium, 33 Coll. (1970) p. 1. 84 Appl. 7601/76, Young and James v. UK, 20 YBECHR (1977) p. 520 and Appl. 7806/77, Webster v. the United Kingdom, 12 D&R (1978) p. 168. 81 82

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otherwise was largely independent of the state. The Commission said that the acts involved in this case (alleged violation of Article 11) did not fall under the direct responsibility of the Irish Government but that, despite this, the Irish Government would have violated the Convention if it were to be established that the national law did not protect one of the rights or freedoms guaranteed by the Convention, the violation of which was alleged before the Commission, or at least did not provide a remedy for enforcing such protection.85 In the Nielssen Case, the government argued that the placement of a minor in a psychiatric hospital was the sole responsibility of the mother. The majority of the Commission found, however, that the final decision on the question of hospitalization of the applicant was not taken by the holder of parental right but by the Chief Physician of the Child Psychiatric Ward of the state hospital, thus engaging the responsibility of the state under Article 5(1).86 The Court, however, held that the decision on the hospitalization was in fact taken by the mother in her capacity as holder of parental rights and that the act was one not engaging the state’s responsibility. There is, in fact, insufficient jurisprudence to determine what is the position regarding acts of individuals not involving the negligence of the state.87 (5) Compétence Ratione Materiae In order to answer the question whether an application falls within the scope of the Convention ratione materiae, it is necessary to differentiate between state applications and individual applications. Article 24, which permitted the contracting states to lodge applications on “any alleged breach of the provisions of the Convention by another High Contracting Party”, left open the possibility for Appl. 4125/69, X v. Ireland, 14 YBECHR (1971) p. 198. This case could be regarded as not involving a matter of state responsibility for acts of individuals but rather the possible violation by the state of a special obligation resulting from the Convention, viz. under Article 13. 86 Report of 12 March 1987, A.144, p. 38. See also the Mykhaylenky Case, Judgment of 30 November 2004; the Derkach and Palek Case, Judgment of 21 December 2004. 87 Judgment of 28 November 1988, A.144, p. 23. 85

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states to submit applications which relate to provisions of the Convention other than the articles of Section I. Articles that might be considered as such, for instance, were Article 1, insofar as it refers to the obligations of a contracting state to secure to everyone within its jurisdiction the rights and freedoms of Section I of the Convention, and Article 25(1) in case of interference with the exercise of the individual right of complaint. The same applied to Articles 32(4) and 53 in case of refusal to give effect to a decision of the Committee of Ministers or the Court respectively, and Article 57 in case of refusal to furnish the requested information to the Secretary General of the Council of Europe concerning the implementation of the provisions of the Convention. Contracting states had not availed themselves of this wider right of action, except with respect to the oblique reference of Article 1. The right of complaint of individuals had a somewhat more limited character. It appeared from Article 25 that individuals could lodge complaints only about “the rights set forth in this Convention”, which implied that their complaints could relate only to the articles of Section I and the articles of the Protocols containing additional rights. The question did arise whether an exception had to be made for Article 25; in other words, whether the right of complaint itself, the exercise of which the contracting states had undertaken not to obstruct could be considered a “right”. As a rule the Commission dealt with such a complaint differently from the manner in which it dealt with a complaint concerning one of the rights or freedoms of Section I, in that it consulted directly with the government concerned. It might be argued that apart from the right of individual complaint under Article 25, an individual who has been successful before the Court, if he felt that the judgment has not been complied with, properly may claim to be a victim of a violation of Article 53, which contained the obligation to abide by the judgment of the Court.88

In the case of Olsson I, the main issue was whether the decision of the Swedish authorities to take the children of the applicants into care had given rise to a violation of Article 8 of the Convention. The Court found that the 88

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The Commission could not, of course, deal with complaints about rights or freedoms not set forth in the Convention. Complaints concerning such rights and freedoms were declared “inadmissible” by the Commission as being incompatible with the Convention. In practice a great many complaints concern the most widely varied “rights and freedoms”. From the Court’s jurisprudence the following examples of matters which were outside the competence ratione materiae of the Commission may be cited: right to a university degree, right to asylum, right to start a business, right to diplomatic protection, right to a divorce, right to a driving license, a general right to free legal aid, right to free medical aid, right to adequate housing, right to a nationality, right to a passport right to a pension, right to a promotion and the right to be recognized as a scholar. In this context it should, however, be borne in mind that a right which is not set forth in the Convention may find protection indirectly via one of the provisions of the Convention.89 In this connection it is important that the Commission did not require the applicant to indicate accurately in his application the rights set forth in the Convention which in his opinion had been provision had been violated: Judgment of 24 March 1988, A.130. In the case of Olsson II the applicants complained that despite the Court’s Olsson I judgment the Swedish authorities had continued to hinder their reunion with their children. The Court held that in the circumstances of the case no separate issue arose under Article 53, because the present complaint raised a new issue which had not been determined by the Olsson I judgment. It left open the possibility that there might be circumstances under which a complaint under Article 53 of the Convention could be examined by it: Judgment of 27 November 1992, A.250. Martens, “Individual Complaints under Article 53 of the European Convention on Human Rights”, in Lawson and de Blois (eds.), 3 The Dynamics of the Protection of Human Rights in Europe. Essays in Honour of Henry G. Schermers (1994), at pp. 284, takes the view that the Court has jurisdiction ratione materiae in the situation in question. 89 Complaints to be equated with those concerning rights not protected in the Convention are complaints about rights which are incorporated in the Convention but with respect to which the respondent state has made a reservation. Complaints relating to such rights are also declared inadmissible by the Commission on account of incompatibility with the Convention: see, e.g., Appl. 1452/62, X v. Austria, 6 YBECHR (1963) p. 268.

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violated. The Commission has investigated ex officio, by reference to the submissions of the applicant, whether the issue was a violation of one or more of the provisions of Section 1. While the Commission may sometimes be cautious in deciding on its competence in relation to matters not raised, the Court has been more ready not to exclude from its competence matters which have not necessarily been argued as being connected with particular provisions of the Convention.90 It is to be noted that matters relating to ratione materiae have been treated as matters of admissibility. MATTERS

OF

ADMISSIBILITY PROPER

The first five conditions of admissibility related only to individual applications made to the Commission. The last two applied to all applications to the Commission. (1) The Application Must not be Anonymous This condition (Article 27(1)(a)) makes it possible to exclude applications which may have been lodged, e.g. for purely political reasons. In certain cases, however, a serious individual applicant may wish to remain anonymous for whatever reasons. Anonymity of this kind is different from that which may be granted at the complainant’s request by the Commission or Court after the complaint has been lodged, which is permitted and does not affect the admissibility of the complaint. This admissibility condition is not very important in practice. In any event, the Commission took a flexible attitude as regards the requirement that the identity of the applicant be disclosed.91 The Commission’s flexible attitude appears, for instance, from

90

See the Winterwerp Case, Judgment of 24 October 1979, A.33, at pp.

27–28. Appl. 361/58, X v. Ireland, 3 Case-Law Topics, Bringing an application before the European Commission of Human Rights (1972) p. 10. 91

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a case in which a number of complaints had been submitted by an association.92 The Commission considered both the association and its individual members as applicants. With respect to the individual members the Commission held that their identity had been insufficiently established and that accordingly their application, properly speaking, was inadmissible under Article 27(1)(a). Nevertheless, the Commission pursued the examination of the case, on the presumption that this procedural defect would subsequently be redressed. The application was ultimately declared inadmissible on other grounds.93 (2) The Application Must not Constitute an Abuse of the Right of Complaint In practice very few applications are declared inadmissible on this ground (Article 27(1)(a), current Article 35(3)). The reason is probably that such an abuse is difficult to establish because the applicant’s motives cannot easily be ascertained. The Commission gave a particular meaning to the term “abuse”. Thus, the fact that the applicant is inspired by motives of publicity and political propaganda does not necessarily result in an abuse.94 It is only if an applicant unduly stresses the political aspects of the case that it will amount to an abuse.95 The question whether there is an abuse where merely no practical effects are envisaged by the application has been left open.96 An application alleged to be devoid of any sound juridical

Appl. 3798/68, Church of X v. UK, 12 YBECHR (1969) p. 306. See also, Appl. 10983/84, Confédération des Syndicats Médicaux Français and Fédération Nationale des Infirmiers v. France, 47 D&R (1986) p. 224, where anonymity triggered the condition of Article 27(1)(a). 94 Appl. 332/57, Lawless v. Ireland, 2 YBECHR (1958–1959) p. 308, Appl. 8317/78, McFeeley v. UK, 29 D&R (1980) p. 44. See also Appl. 21782/93, Raif v. Greece, 82–A D&R (1995) p. 5; Appl. 21987/93, Aksoy v. Turkey, 79-A D&R (1994) p. 60; the Varbanov Case, decision of 5 October 2000. 95 Appl. 1468/62, Iversen v. Norway, 6 YBECHR (1963) p. 278. 96 Appls. 7289/75 and 7349/76, X and Y v. Switzerland, 20 YBECHR (1977) p. 372. 92 93

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basis and to have been lodged for propaganda purposes is not an abuse, unless it is clearly based on untrue statements of fact.97 There are several factors that have been considered in determining the existence of an abuse intended in filing an application. In the Ilse Koch Case98 the wife of the former commandant of the Buchenwald concentration camp had been convicted for violation of the most elementary human rights. She submitted that she was innocent and claimed her release, without invoking a specific provision of the Convention. In her application she voiced a number of accusations and complaints which were not supported in any way by the Convention. The Commission declared her application inadmissible on the ground of a clear and manifest abuse of the right of complaint, because her sole aim evidently was to escape the consequences of her conviction. The condition that an application must not constitute an abuse enabled the Commission also to exclude querulous applicants.99 Not only the aim pursued in lodging an application, but also the applicant’s conduct during the procedure may lead to a declaration of inadmissibility on account of abuse.100 The fact that an applicant had omitted to inform the Commission that after the introduction of his application he had instituted before domestic courts proceedings concerning the same facts, was not considered an abuse of the right of petition.101 The fact that an applicant gave publicity to certain Appl. 21987/93, Aksoy v. Turkey, 79-A D&R (1994) p. 60. Appl. 1270/61, Ilse Koch v. FRG, 5 YBECHR (1962) p. 126. See also Appl. 5207/71, Raupp v. FRG, 42 Coll. (1973) p. 85. 99 Appls. 5070, 5171, 5186/71, X v. FRG, 15 YBECHR (1972) at p. 482. See also Appl. 13284/87, M v. UK, 54 D&R (1987) p. 241. 100 Thus, applications have been rejected because the applicant had deliberately made false declarations in an attempt to mislead the Commission: e.g., X v. Austria, 44 Coll. (1972) p. 134, or because the applicant failed to furnish the necessary information even after repeated requests: e.g., Appl. 244/57, X v. FRG, 1 YBECHR (1955–1957) p. 196, or because the applicant had broken bail and had fled: Appl. 9742/82, X v. Ireland, 32 D&R (1983) p. 251, or because he had used threatening or insulting language vis-à-vis the Commission or the respondent government: e.g., X v. FRG, 43 Coll. (1973) p. 154. 101 Appl. 13524/88, F v. Spain, 69 D&R (1991) p. 185. 97 98

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elements from the examination of his case, contrary to Article 33 of the Convention, could have resulted in the Commission’s declaring the application inadmissible on account of abuse.102 However, the Commission has held that the appearance of an article disclosing confidential information relating to the proceedings before the Commission did not constitute an abuse, where the applicant’s representative had merely answered questions put to him by the press. It was held that there was no conclusive evidence that the applicant’s representative was responsible for the disclosure of this information which the press had secured by other means.103 Although this condition of admissibility does not apply to applications by states, the Commission would appear not to have excluded the possibility that an application by a state may be rejected on account of abuse. This would be done on the ground of the general legal principle that the right to bring an action before an international judicial or quasi-judicial organ must not be abused. For example, the Commission in the case of Cyprus v. Turkey took the view that even on the assumption that it was empowered pursuant to a general principle to make such a finding of abuse, the applicant government had at the particular stage of the proceedings provided sufficient particularized information of alleged breaches of the Convention for the purpose of Article 24 and found that the principle could not be applied adversely.104 While in practice the Council of Europe, Press Release C(78)42, 11 October 1978. Appl. 13524/88, F v. Spain, 69 D&R (1991) p. 185. See also Buscarini v. San Marino (2000), 13 ILM at p.742. For more recent cases which apply in one manner or another the principles behind the present Article 35(3) (former Article 27(1)) see, e.g., Stankov and United Macedonian Organisation “Ilinden” v. Bulgaria, 94-A D&R (1998) p. 68; Akdivar, Judgment of 16 September 1996, paras. 53 ff.; Varbanov, Judgment of 5 October 2000, para. 36; I.S. v. Bulgaria, Decision of 6 April 2000; S.H.K. v. Bulgaria, Decision of 10 April 2003; the Al-Nashif Case, Judgment of 20 June 2002, para. 89; the Klyakhin Case, Decision of 14 October 2003; the Manoussos Case, Decision of 9 July 2002; the Duringer Case, Decision of 4 February 2003. See also van Dijk, op. cit. note 1, chapter 36. 104 Appls. 6780/74 and 6950/75, Cyprus v. Turkey, 18 YBECHR (1975) p. 82. See also Appls. 3321–3323/67 and 3344/67, Denmark, Norway, Sweden and the Netherlands v. Greece, 9 YBECHR (1968) p. 690. 102 103

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Commission did not lightly reach a conclusion of abuse of right, the application of the general principle was not excluded. (3) The Application Must not be Substantially the Same as a Matter Which has Already been Examined by the Court (or Commission) or has Already been Submitted to Another Procedure of International Investigation or Settlement unless it Contains Relevant New Information In practice in the application of Article 27(1)(b) (present Article 35(2)(b)), declarations of inadmissibility on the ground of the identical character of two or more cases submitted to the Commission did not occur frequently. The Commission considered any preceding procedures before the Court in applying Article 27(1)(b).105 What is of importance is that new facts be put forward in the application. These facts must be of such a nature that they bring about a difference in the legal and/or factual data on which the Commission based its earlier decision. The mere submission of one or more new legal arguments was therefore insufficient, if the facts on which the application was based were the same.106 The Commission did not consider as new facts those which were already known to the applicant at the time of the introduction of his earlier application and should have been presented by him on that occasion.107 For example, an applicant had submitted in a previous application that the final decision in his case had been taken by the Court of Appeal at Liege which was not the case and on that his application was declared inadmissible because he had not exhausted internal remedies. In the new application he proved that he had made a mistake, since the decision in question had in reality been taken by the Court of Cassation, from whose decisions no appeal

See Appl. 6832/74, X v. Sweden (not published). See also Appl. 10243/83, Times Newspapers Ltd. and Others v. the United Kingdom, 41 D&R (1985) p. 123, where the Commission rejected a part of the application under Article 27(2). 106 See Appl. 202/56, X v. Belgium, 1 YBECHR (1955–1957) p. 190, Appl. 8206/78, X v. UK, 25 D&R (1982) p. 147. 107 Appl. 13365/86, Ajinaja v. UK, 55 D&R (1988) p. 294. 105

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lay. The Commission considered this relevant new information in the sense of Article 27(l)(b).108 A new fact may arise from new obligations being incurred under the Convention by the contracting state in question.109 The formulation of Article 27(1)(b) permitted an interpretation that allowed “substantially the same matter” to cover also an application that was otherwise identical but was lodged by another applicant. The provision, in other words, was to be interpreted as directed against identical applications by the same applicant. The Commission did not object to identical applications from different applicants, although it would then join such cases, if possible.110 Article 27(1)(b) may, however, have barred applications from different applicants which concerned the same violation against the same person, as in the case where in connection with one and the same violation both the direct and the indirect victim lodged an application. In its earlier case-law, the Commission thought that a new examination of the case was justified, only if in each individual case a new fact was involved.111 The Commission had subsequently been less rigid. In a case which concerned the execution of an expulsion order from the FRG to Yugoslavia, the fiancée of the person to be expelled lodged a complaint. With respect to the latter application, the Commission decided that it could not be rejected

Appl. 3780/68, X v. Belgium, 37 Coll. (1971) p. 6. See also Appl. 21962/93, A.D. v. The Netherlands, 76-A D&R (1994) p. 157. See also, on the one hand, Appl. 4517/70, Huber v. Austria, 14 YBECHR (1971) p. 548, on the other hand, Appl. 6821/74, Huber v. Austria, 6 D&R (1977) p. 65. See also Appl. 8233/78, X v. UK, 17 D&R (1980) p. 122, “a fair and public hearing” case, and Appl. 9621/81, Vallon v. Italy, 33 D&R (1983) p. 217. 109 Appl. 4256/69, X v. FRG, 37 Coll. (1971) p. 67. However, in that case there was strictly no firm new obligation. 110 See, e.g., the successive Appls. 6878/75, Le Compte v. Belgium, 6 D&R (1977) p. 79, and 7238/75, Van Leuvan and De Meyere v. Belgium, 8 D&R (1977) p. 140. In its decision in the last-mentioned case the Commission held (at p. 160): “In view of all the similarities between the two applications it is desirable that they should be examined together.” See also Appls. 5577/72–5583/72, Donnelly et al. v. UK, 16 YBECHR (1973) p. 212. 111 Appl. 499/59, X v. FRG, 2 YBECHR (1958–1959) at p. 399. 108

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under Article 27(l)(b) as being substantially the same as the first application, because “this applicant has a specific personal interest in bringing an application before the Commission”.112 The problem of identical complaints may also arise where a state and an individual file complaints. Thus, the applications of a number of Northern Irishmen concerned matters which had already formed the subject of an application of the Irish Government against the UK. The latter application had already been declared admissible, but the examination of the merits was still pending. The Commission did not need to decide the question whether the individual applications were to be rejected pursuant to Article 27(1)(b) because “The relevant part of the inter-State case has (. . .) not yet been examined within the meaning of Article 27(l)(b) of the Convention”.113 It is unclear what conclusion the Commission would have reached, if the examination had already taken place. There should not be a distinction based on whether the original case had been examined or not, unless the complaints were not distinctly different which they usually were. Few decisions of the Commission have been published hitherto in which an application was declared inadmissible on the ground that a matter had already been submitted to another international body for investigation or settlement. With the increase in the number of human rights organs covering human rights violations the possibility of a clash of jurisdictions may occur. The Commission had taken the view that the purpose of the provision in Article 27(1)(b) was to avoid a plurality of international proceedings relating to the same case.114 In order to avoid the risk of an application being declared inadmissible, the applicant must withdraw his petition made to the other organ. It was not sufficient to request a suspension of the proceedings pending before another international body, because this did not have the same effect as a complete withdrawal or the

Appl. 9028/80, X v. FRG, 22 D&R (1981) at p. 237. Appls. 5577–5583/72, Donnelly et al. v. UK, 16 YBECHR (1973) at p. 266. 114 Appl. 17512/90, Calcerrada Fornielles and Cabeza Mato v. Spain. 35 YBECHR (1992) at p. 66. 112 113

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application. It is only if the latter had been done that the Commission could examine an application also brought before it.115 In this connection new events subsequent to the introduction of an application but directly related to the facts adverted to therein would have been taken into account by the Commission at the time of the examination of the application. Therefore, an application, introduced before the Commission by two applicants, which had the same object as the application submitted to the HRC by one of the applicants and joined by the second after the introduction of the application before the Commission was considered to be substantially the same as the one submitted to the HRC.116 Inadmissibility, it is conceivable, may also result from the submission of the same matter to the ECJ.117 But it must be quite clear in the two cases, however, that, even if the facts are the same, legal issues are also the same.118

Ibid. Ibid. 117 Standing case-law since Case 11/70, Internationale Handelsgesellschaft, ECR (1970) p. 1134. The ECJ seems to be ready to review the acts and omissions of the member states of the Communities and of the Community Institutions for their conformity with fundamental human rights because in its view they form part of the general principles of Community law. 118 See Appl. 6452/74, Sacchi v. Italy, 5 D&R (1976), p. 43, where the legal issues were different from those in Case 155/73, Sacchi, [1974] ECR p. 409. There are cases in which the issue arose whether Article 27(1)(b) could be applied successfully where a case had been filed before organs of the ILO and the Commission – with differing results: Appl. 11603/85, Council of Civil Service Unions and Others v. UK, 50 D&R (1987) p. 228, and Appl. 16358/90, Cereceda Martin and Others v. Spain, 35 YBECHR (1992) at pp. 80 ff. For the practice of the ECHR in applying former Article 27(1)(b) now see I.J.L. v. the UK, Decision of 6 July 1999; the Hill Case, Decision of 4 December 2001; the Smirnova and Smirnova Case, Decision of 3 October 2002; the Kovacu, Mrkonjic and Golubovic Case, decision of 9 October 2003. See also van Dijk, op. cit. note 1, pp. 173–83 for a discussion of Article 27(1)(b) (current Article 35(2)(b)). 115 116

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(4) The Application Must not be Incompatible with the Provisions of the Convention Incompatibility with the Convention (Article 27(2), current Article 35(3)) is found to be present where (1) the application falls outside the scope of the Convention ratione personae, ratione materiae, ratione loci, or ratione temporis; (2) the individual applicant does not satisfy the condition of Article 25(1); and (3) the applicant, contrary to Article 17, aims at the destruction of one of the rights and freedoms guaranteed in the Convention. In relation to (l) and (2) above, which have been discussed earlier, the organs that operate under the Convention treat these matters of competence under conditions of admissibility, though it is clear that they are matters of competence. The most obvious case of incompatibility with the provisions of the Convention is (3). This concerned applications which were directed at the destruction or limitation of one of the rights or freedoms guaranteed in the Convention and as such conflicted with Article 17. Even if Article 17 had not been written, such applications would probably still have been inadmissible, i.e., because they were an abuse of the right of complaint under Article 27(2). From the formulation of Article 17 it is quite clear that this provision does not have an independent character; its violation is necessarily connected with one or more of the rights and freedoms enumerated in Section I of the Convention and the relevant Protocols.119 When Article 17 is invoked against private parties it generally relates to the admissibility of the application. With regard to individuals and groups the aim of Article 17 was to prevent them from invoking the rights and freedoms to which they were entitled, when they used them for the purpose of destroying or limiting those rights and freedoms of others.120 In this case Article 17 must therefore be connected both with the rights of the person against whom this article was invoked and with one or more of the rights of others. As to the first-mentioned rights, 119 120

See Judgment of 8 June 1976, the Engel Case, A.22, p. 43. See Judgment of 1 July 1961, the Lawless Case, A.3, p. 45.

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the Commission held in the Glimmerveen and Hagenbeek Case that Article 17 covered essentially those rights which, if invoked, would facilitate the attempt to derive therefrom a right to engage personally in activities aimed at the destruction of any of the rights and freedoms set forth in the Convention.121 When the Kommunistische Partei Deutschland (KPD) submitted a complaint against the FRG with respect to the decision of the Bundesverfassungsgericht by which it had been dissolved and had been declared a prohibited party, the Commission, apparently ex officio, instituted an inquiry into the applicability of Article 17. On the basis of depositions made by the KPD during the proceedings before the Bundesverfassungsgericht the Commission concluded that the aim of the KPD was to establish a socialist-communist system by means of a proletarian revolution and the dictatorship of the proletariat, and that it had intimated that it still adhered to these principles. Even if it were to be found the KPD was trying to seize power only via constitutional methods, in the Commission’s opinion this did not mean that it had renounced the principles in question. On that ground the Commission deemed Article 17 to be applicable and decided that the application could not be based on any of the provisions of the Convention and was therefore inadmissible as being incompatible with the Convention.122 In the Glimmerveen and Hagenbeek Case the Commission again declared the application inadmissible by invocation of Article 17. The Commission recognized that the challenged acts constituted a breach of the freedom of expression of Article 3 of Protocol No. 1. It also recalled that the freedom of expression constituted one of the essential foundations of a democratic society. But it concluded that, pursuant to Article 17, the two applicants could not invoke this provision, or these provisions, and declared the applications incompatible with the provisions of the Convention.123

121 122 123

Appls. 8348 and 8406/78,18 D&R (1980) at p. 195. Appl. 250/57, 1 YBECHR (1955–1957) p. 222. Appls. 8348 and 8406/78, 18 D&R (1980) at pp. 194–7.

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The Commission and the Court have introduced a very important restriction on the respondent state’s right to invoke Article 17 as a ground for inadmissibility among other things. Both in the Lawless Case and in the De Becker Case it was held that, even if it had been firmly established that the applicant himself aimed at the destruction or restriction of the fundamental rights of others, or belonged to a group with such an objective, it did not follow that he might therefore remain deprived of all the rights laid down in the Convention; Article 17 applied exclusively to those rights which he abused directly for the said aim. In the Lawless Case this connection between that aim and the rights invoked was altogether absent in the opinion of the Commission and the Court; even if Lawless had been involved in IRA activities, his invocation, as a detained person, of the guarantees of Articles 5 and 6 in any case was not aimed at engaging in such activities.124 In the De Becker Case, where the complaint concerned the freedom of expression, the connection was absent, because De Becker’s totalitarian views and activities dated from the past and it had not been shown that he would abuse his freedom of expression again for that purpose.125 The question of how close the link between the right claimed and the activity prohibited under Article 17 must be is not yet settled.126 (5) The Application Must not be Manifestly Ill-founded This admissibility condition (Article 27(2) current Article 35(3) explicitly) applied only to individual applications, but the Commission, while conceding this, had held that it recognized “the application of a general rule providing for the possibility of declaring an application under Article 24 inadmissible, if it is clear from

See the report of 19 December 1959 and the Judgment of 1 July 1961 in this case, B.1 (1961), at p. 1 80 and A.3, at pp. 45–6 respectively. 125 Report of 8 January 1960, B.2 (1962), at pp. 137–8. 126 See Appl. 712/60, Retimag S.A. v. FRG, 4 YBECHR (1961), p. 384, where the issue was raised but not decided because the request was declared inadmissible on account of non-exhaustion of the domestic remedies. 124

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the outset that it is wholly unsubstantiated or otherwise lacking the requirements of a genuine allegation in the sense of Article 14 of the Convention”.127 When the Commission declared an application to be manifestly ill-founded, in actual fact it pronounced on the merits, in finding on the alleged facts and the law presented a complete absence of any violation of the provisions of the Convention dealing with substantive rights. The Commission itself took a final decision on the interpretation and application of one or more of the provisions of Section I of the Convention. A finding of this nature barred the ECHR (or the Committee of Ministers) from dealing with the case. Thus, it is important to know what the Commission meant by this ground of inadmissibility. The Commission has explained what it did when it found an application manifestly ill-founded. In the De Becker Case, for instance, the Commission held that it could declare an application manifestly ill-founded only if the examination of the complaint did not disclose any prima facie violation of the Convention.128 In the Petaki Case it said that “it follows that at the present stage of the proceedings the task of the Commission is not to determine whether an examination of the case submitted by the Applicant discloses the actual existence of a violation of one of the rights and freedoms guaranteed by the Convention but only to determine whether it includes any possibility of the existence of such a violation”.129 In practice applications were declared manifestly ill-founded in particular, if the facts about which a complaint had been lodged evidently did not constitute a violation of the Convention or if those facts had not been proven or were manifestly incorrect. As to the latter the Commission required the applicant to give prima facie evidence Appls. 9940–9944/82, France, Norway, Denmark, Sweden and Netherlands v. Turkey, 35 D&R (1984) at pp. 161–2. Article 24 deals with inter-state applications. The general rule has, however, apparently not been applied to inter-state applications. 128 Appl. 214/56, 2 YBECHR (1958–1959) at p. 254. 129 Appl. 596/59, 3 YBECHR (1960) at p. 368. See also Appl. 7640/76, Greece v. Switzerland, 21 YBECHR (1978) at pp. 474 ff. 127

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of the facts put forward by him.130 As to the former, it covered both manifest ill-foundedness per se and incompatibility with the Convention. There is incompatibility with the Convention which is ratione materiae, if an application concerned the violation of a right not protected by the Convention. In that case the application fell entirely outside the scope of the Convention and no examination of the merits was possible. An application was manifestly ill-founded, if it concerned a right protected by the Convention, but a prima facie examination disclosed that the facts put forward could not by any means justify the claim of violation, so that an examination of the merits was superfluous. However, the two notions have not always been kept separate. The case-law has not always been consistent. For example, according to Article 14 the enjoyment of the rights and freedoms set forth in the Convention must be guaranteed without discrimination on any ground. Applications containing complaints about discrimination with respect to rights or freedoms which the Convention did not protect have sometimes been declared to be manifestly ill-founded and sometimes incompatible with the Convention.131 In general the Commission has taken the position, rightly or wrongly, that applications in regard to which the interpretation of one or more articles of Section I of the Convention was required should not be rejected as being incompatible with the Convention ratione materiae. While manifest ill-foundedness does require interpretation of articles in the Convention, and therefore, required consideration of the merits, it was not always that such a finding was made, only where the ill-foundedness was patently manifest. For example, in the Iversen Case,132 the applicant complained about the possibility existing in Norway that dentists who had recently completed See, e.g., Appl. 556/59, X v. Austria, 3 YBECHR (1960) p. 288, Judgment of 9 October 1979, Airey, A.32, p. 10. 131 For a finding of manifest ill-foundedness see e.g., Appl. 1452/62, X v. Austria, 6 YBECHR (1963) p. 268. For a declaration of incompatibility see e.g., Appl. 2333/64, Inhabitants of Leeuw-St. Pierre v. Belgium, 8 YBECHR (1965) p. 338. 132 Appl. 1468/62, Iversen v. Norway. 6 YBECHR (1963) p. 278. 130

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their studies could be obliged to work for some time in the public service. The complaint was declared “manifestly ill-founded” by the Commission, though it raised very complicated questions concerning Article 4 which, moreover, divided the members of the Commission. In such a situation a more detailed examination of the merits appeared decidedly justified and such an examination should have taken place without the application being declared inadmissible. Again, an application relating to the violation of the freedom of expression was declared manifestly ill-founded by the Commission on the basis of the finding that prohibiting a Buddhist prisoner from sending a manuscript to the publisher of a Buddhist journal constituted a reasonable application of the prison rule concerned, and that this rule itself “is necessary in a democratic society for the prevention of disorder or crime within the meaning of Article 10(2)”.133 In this case also it was doubtful whether the interpretation of the relevant provision of the Convention in this way was so obvious that no difference of opinion was possible among reasonable persons. Because decisions that cases were manifestly ill-founded barred the Court in particular from giving its opinion on the interpretation and application of important provisions of the Convention, as the case may not go further, it was imperative that the Commission declared an application to suffer from this defect, only if the ill-founded character was actually evident at first sight (of perhaps if the Commission based its decision on the constant case-law of the Court). For example, in its report in the Powell and Rayner Case134 the Commission took the view that in the Commission’s constant case-law the term “manifestly ill-founded” under Article 27(2) extended further than the literal meaning of the word “manifestly” suggested. This approach may be questionable. Clearly, while the finding of manifest ill-foundedness required an examination of the merits, whether on facts or law or both, it was

Appl. 5442/72, X v. UK, 1 D&R (1975) p. 41. Report of 19 January 1989, A. 172, p. 27. See also Appl. 15404/89, Purcell v. Ireland, 34 YBECHR (1991) at pp. 98 ff., where it hardly could be said that the applicant did not have an “arguable claim”. 133

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not intended to be a thorough examination. Hence, a full examination of the facts and law should not have been prevented, only if there was no doubt at all that the case was manifestly ill-founded after the initial examination. If the applicant’s claims had an “arguable” character which may emerge in different ways, a finding of inadmissibility was appropriately to be avoided. The question also arises whether, where the Commission was obviously divided on the issue of manifest ill-foundedness, it should not simply have declared the application not inadmissible as a matter of course. (6) Domestic Remedies Must have been Exhausted That domestic remedies must have been exhausted “according to the generally recognized rules of international law” is a requirement of admissibility (Articles 26 and 27(3)) of the old Convention (see Article 35(1) of the new Convention). Since the application of the rule of local or internal remedies to the protection of human rights under the European Convention is conventional, it is important to understand how the Convention which provides for such protection has been interpreted. The approach taken by the EComHR and the ECHR in some of the leading cases decided by them is illustrative. (a) Basic Considerations In Austria v. Italy the Commission followed an objective method of interpretation. The view was taken that the obligations undertaken by the parties to the European Convention on Human Rights were essentially of an objective nature intended to protect the fundamental human rights of individuals rather than creative of subjective and reciprocal rights for the parties themselves.135 The ECHR in Golder v. UK endorsed the views of the Commission that interpretation should be in the light of the ultimate object and purpose of the Appl. No. 788/60, Report of the Plenary Commission at p. 37. In Golder v. UK the Commission reaffirmed this view, adding that “The provisions of the Convention shall not be interpreted restrictively so as to prevent its aims and objects being achieved”: Appl. No. 4451/70, Report of the Commission at p. 25. 135

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Convention and as a step towards the collective enforcement of human rights.136 The approach to interpretation of the Convention described above reflects some of the basic differences between human rights protection and diplomatic protection. While the former is based at present entirely on conventional law and the latter primarily on customary law, another significant difference between the two institutions is the nature of the connecting link which is a prerequisite for the exercise of protection. In the case of diplomatic protection the connecting link is nationality – the alien must be a national of the protecting state. In the case of human rights protection there is no such requirement. The individual is protected by the enforcement system qua individual and not as a national of a particular state. The fact that a person, natural or legal, is injured or a victim as a result of a breach of the Convention gives him a right directly to litigate his grievance before international organs set up under the Convention. Even where a state takes up a case where an individual’s rights have been violated, there is no vinculum juris required in the form of nationality. A state party to the Convention which takes up a case does not defend its national interest, as happens in diplomatic protection, nor does it act in defense purely of the interests of its national. Not only may a state take up a case where its national is injured but it may do so when any individual is injured, national or not. The collective and mutual guarantee of human rights by all parties to the Convention is a basic premise of the system of human rights protection and empowers a state party to the Convention to act in respect of an injured individual, while also permitting an injured individual to seek protection himself. States may protect not only their own nationals but stateless persons, nationals of the respondent state and nationals of third states. As the EComHR

Golder v. UK, ECHR, Judgment (1975), Series A, at pp. 9–12. See also Wernhoff v. FRG, ECHR, Judgment (1968), Series A, at p. 23, and the Belgian Linguistics Case, ECHR, Judgment (1968), Series A, at p. 32. Later cases have said nothing to contradict what has been said above. 136

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stated in connection with the right of a state party to the European Convention to bring a case before it: the High Contracting Parties have empowered anyone of their members to bring before the Commission any alleged breach of the Convention, regardless of whether the victims of the alleged breach are nationals of the applicant State or whether the alleged breach otherwise particularly affects the interests of the applicant States . . . It follows that a High Contracting Party, . . . is not to be regarded as exercising a right of action for the purpose of enforcing its own rights, but rather as bringing before the Commission an alleged violation of the public order of Europe.137

Unlike the case of diplomatic protection, not only may the individual initiate action himself, when he makes use of the machinery of protection, which is the unusual situation in diplomatic protection, but the entire system under the European Convention, involving the Commission, the Court and the states parties to the Convention, is aimed at protecting the individual directly erga omnes through the mechanism of the collective guarantee, without the intervention of a national state which may invoke political considerations in taking a decision whether to exercise protection or not, and even against his own national state.138 Appl. 788/60, Austria v. Italy, Report of the Plenary Commission at p. 37. The fact that before the European Court individuals could not be parties further reinforces the theory of the collective guarantee. In proceedings before the Court the European Commission participated in the proceedings vis-à-vis the state alleged to have violated the Convention. In this capacity it represented the public interest: see Mosler, “The Protection of Human Rights by International Legal Procedure”, 52 Georgetown Law Journal (1964) at p. 818. 138 See Eustathiades, “La Convention européenne des Droits de I’homme et le Statut du Conseil de l’Europe”, 53 Die Friedens-Warte (1955–1956) at pp. 68–9, Rolin, “Le rôle du requérant dans la procédure prévue par la Commission européenne des droits de l’homme”, 9 RHDI (1956) at p. 9, Eustathiades, “Les recours individuels à la Commission européenne des droits de l’homme”, in Grundprobleme des Interntionalen Reehts – Festschrift für Jean Spiropoulos (1957) at p. 121, Pilotti, “Le recours des particuliers devant les juridictions interrnationales”, id. at p. 351, Durante, Ricorsi Individuali ad Organi Internazionali 137

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The ability of individuals directly to litigate under the system of human rights protection is also a departure from the practice of diplomatic protection. This power is a basic premise of the systems of human rights protection. It gives the individual a status which he never really had under the institution of diplomatic protection. The differences between conventional systems of human rights protection and diplomatic protection may result in a slightly different orientation in certain respects of the basis of the rule of local remedies as it is applied in human rights protection. In general the instruments on which such protection is based refer to “the generally recognized principles of international law” as the point of reference for the rule of local or internal remedies to be applied. However, the implications of this formulation are subject to analysis. The rule of local remedies in the law of diplomatic protection in general revolves around four groups of interests, and certain values are reflected in the application of the rule.139 In the case of the protection of human rights the interests involved are those of the respondent state, the individual, any particular state that may make a claim on behalf of an injured individual, and the international community, particularly of states parties to the instrument creating the protective system. The interests of these entities correspond to, but are not the same as, the interests of the four groups connected with diplomatic protection. The rule is applicable to the protection of human rights on the basis that primary recognition is given to the respondent state’s interest in preventing “la substitution d’une procedure internatio(1958) pp. 129 ff., Vasak, La Convention européenne des droits de l’homme (1964) pp. 96 ff., Mosler, loc. cit. note 137 at pp. 818 ff., Virally, “L’accès des particuliers à une instance internationale: la protection des droits de l’homme dans le cadre européenne”, 20 Mémoires Publiés par la Faculté de Droit de Genève (1964) at pp. 67 ff., Müller-Rappard, “Le droit d’action en vertu des dispositions de la Convention européenne des droits de l’homme”, 9 RBDI (1968) at pp. 491 ff., 497 ff., 503, Economopoulos, “Les éléments politiques et judiciaires dans la procédure instaurée par la Convention européenne des droits de I’homme”, 22 RHDI (1969) at pp. 125 ff. 139 See C.F. Amerasinghe, Local Remedies in International Law (2004) pp. 43–64; C.F. Amerasinghe, Diplomatic Protection (2008) pp. 63–72.

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nale sur voies de recours internes en vue de permettre a l’Etat de reparer ses propres moyens”.140 The EComHR has said that “the rule requiring the exhaustion of domestic remedies as a condition of the presentation of an international claim is founded upon the principle that the respondent state must first have an opportunity to redress by its own means within the framework of its own domestic legal system the wrong alleged to have been done to the individual”.141 There is, in short, a principle of subsidiarity which operates. This reason is similar to that which underlies the rule of local remedies in the law of diplomatic protection. Furthermore, the individual, the state that may bring a claim and the international community of states parties to the instrument also have an interest in seeing that the local remedies work and provide satisfactory solutions for reasons similar to those which the alien, the alien’s national state, and the international community have for seeing that local remedies work in the law of diplomatic protection. However, in fact the individual who is not an alien may have a greater interest in seeing that local remedies work than an alien, because he will generally be more closely connected with the defendant state. Eustathiades, “La Convention européenne des Droits de l’homme etle Statut du Conseil de l’Europe”, 52 Die Friedens-Warte (1953–4) at pp. 355 ff. On the rule of domestic remedies under the European Convention on Human Rights and in the protection of human rights in particular see: C.F. Amerasinghe, “The Rule of Exhaustion of Domestic Remedies in the Framework of International Systems for the Protection of Human Rights”, 28 ZAORV (1968) p. 257, C.F. Amerasinghe, “The Rule of Exhaustion of Local Remedies and the International Protection of Human Rights”, IYBIA (1968) p. 3, C.F. Amerasinghe, op. cit. note 139 (Local Remedies), passim, Cançado Trindade, The Rule of Exhaustion of Local Remedies in International Protection of Individual Rights (1983) passim. 141 Appl. 343/57, Report of the Commission at p. 36, Appl. 788/60, Austria v. Italy, Report of the Plenary Commission at p. 43. This idea has been confirmed in later cases. See also Appl. 12945/87, Hatjianastasiou v. Greece, 33 YBECHR (1990) at pp. 64–5, Judgment of 20 September 1993, Saïdi, 36 YBECHR (1993) at p. 226. In a different sense and as a consequence it has been said that the Convention system of protection is subsidiary to national systems: Judgment of 20 September 1993, Saïdi, ibid. See now the Akdivar Case, Judgment of 16 September 1996, para. 65 and van Dijk, op. cit. note 1 pp. 126 ff. and cases there cited. 140

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Moreover, the interests of individual states as such may have less importance in the application of the rule to human rights protection, although the collective interest of the parties to the instrument in guaranteeing effective protection might require giving their concern for the proper application of the rule a special emphasis, more so than the interest of the international community in the application of the rule to diplomatic protection. It would seem that logically the interests of the individual should enjoy greater emphasis in certain respects in the context of human rights protection that in the law of diplomatic protection. Although the conventional arrangements on human rights provide collective guarantees, there was every intention that the rights guaranteed were to be conferred on individuals; the violation of such rights is not regarded merely as the breach of an obligation owed to the guaranteeing state or states but as an interference with the rights of individuals. Thus, there is a good case for giving his special interests somewhat greater emphasis. In both diplomatic protection and human rights protection the principal object of the local or internal remedies rule is similar, viz. to enable the respondent state to do justice in a situation which to a large extent it has controlled. There is also a similarity between the two institutions insofar as the affected entity is an individual. On the other hand, in the case of human rights protection the interests of the individual are given special prominence, to the extent that the rights violated are considered to be those of the individual, and he is given direct access to international machinery to enforce the protection of his rights. By the same token the international community of states parties to the conventional arrangements has a significant interest in the protection of the individual through the system it has established, an interest which may be more pervasive than that of the international community in the protection of the alien through diplomatic intervention. On the theoretical level, therefore, there may be a good argument for giving more recognition to the interests of the individual and of the international community of states parties to the conventional arrangements, at least to some extent and in certain respects, in the application of the rule of local or internal remedies to human

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rights protection, than is given to them in the case of diplomatic protection. However, the formulation of reference to the rule in the conventional instruments, for example, would override any of the purely theoretical considerations. But any departures from the principles governing the application of the rule to diplomatic protection could be justified on the premise that it is a particularly important objective in the protection of human rights that the individual should have quick and efficient access to the international forum created under the conventional scheme.142 It is because of express reference to the rule of local or internal remedies in conventions on human rights protection that the rule is applicable. The European Convention on Human Rights stated in Article 26, and now states in Article 35(1), that the EComHR or ECHR, as the case may be, “may only deal with the matter after all domestic remedies have been exhausted according to the generally recognized rules [ principes] of international law . . . ”. The travaux préparatoires give little indication of how this article was to be interpreted.143 However, the exhaustion must be according to the generally recognized principles or international law. It is not entirely clear how far the interests of the individual and of the international community may be given greater weight than in connection with diplomatic protection, but there is room for interpretation. The Commission has taken the view that it must investigate the question of local remedies proprio motu, even if the matter is not raised by the respondent state.144 Under Article 27(3) the Commission had to reject any petition which it considered inadmissible under Article 26. The Commission took the view that this does not prevent the joinder to the merits of the objection to admissibility.145 No express

For an exhaustive discussion of the question of the basis of rule of local or domestic remedies in the context of both diplomatic protection and the protection of human rights see C.F. Amerasinghe, op. cit. note 139 (Local Remedies), pp. 43–83. 143 See Eustathiades, loc. cit. note 140, pp. 354 ff. 144 Appl. 524/59, 3 YBECHR p. 354. See also Rule 45 of the Rules of Procedure of the Commission. 145 Appl. 2991/66,24 Coll. at pp. 116 ff. 142

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mention of the rule of local remedies was made in the Convention in connection with cases brought before the ECHR. However, necessary implication required the Court to take account of the rule.146 Now, the present Convention is clear on this matter. In implementing the rule147 an important distinction was made by the Commission in Austria v. Italy, when it pointed out that “by including words ‘according to the generally recognized rules of international law’ in Article 26 the authors of the Convention intended to limit the material content of the rule and not its field of application ratione personae”.148 The issue raised was whether the rule of local remedies applied when applications where brought by states (rather than individuals) under Article 24 of the Convention, which did not specifically incorporate the rule of local remedies. While the Commission held that the rule was applicable under Article 24 as under Article 26 it made it quite clear that in regard to the material content of the rule customary international law was to be followed. The material content covers such matters as the scope of and limitations on the rule. In regard to other matters, such as the incidence of the rule and waiver, the Commission left room for differing approaches. Thus, as far as the material content of the rule is concerned, where, as in the European Convention, generally recognized rules of international law are textually invoked, the application of the rule in the context of human rights protection must be treated as compatible with and, indeed, a development of the rule of local remedies applicable to diplomatic protection, even though in other areas differences may appear. So much having been said for the identity of the material content of the rule in the two systems of protection, it must be recognized

See the Matznetter Case, ECHR, Judgment (1969), Series A. The question of how far a departure may be made from the detailed rules applicable to diplomatic protection has been discussed in some detail in C.F. Amerasinghe, op. cit. note 139 (Local Remedies), pp. 68 ff. See also the writers there cited in footnotes 80 ff. The relevant case law under the European Convention is also discussed there. 148 Appl. 788/60, Report of the Plenary Commission at p. 44. 146

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that the differences in the policies behind the rule as applied in the two systems of protection could affect the implementation of the rule. The EComHR and ECHR have indicated that the differences may have an impact in certain areas. As regards areas outside the material content of the rule, there is good reason to believe that in human rights protection an individual approach is being taken to the application of the rule, based on the contextual situation of such protection and the interpretation of the written instruments governing it. As the examples discussed above show, it does not follow from this that the approach taken to the application of the rule will always favour the individual or individuals affected by eliminating or relaxing the vigour of its application. The real issue in regard to the non-material content of the rule does not appear to be whether it should be applied less rigidly in order to favour the individual and access to an international forum under the institution of human rights protection. What is at stake is the proper application of the rule in relation to the policies behind it and to differences in the contextual background of human rights protection and diplomatic protection. This may result in preference being given to the interests of the individual and the international community, or of the defendant state on the assumption that the rule of customary international law is one which primarily favours the defendant state. With respect to the material content of the rule, however, the presumption is that, where the written law states that the rule should be applied in accordance with the rules of general or customary international law, it should be applied to human rights protection in the same way as it is applied to diplomatic protection. In this connection differences in the fundamental premises of the two systems of protection are basically irrelevant. In practice the EComHR and ECHR have applied the rule in a rather pragmatic way while respecting the principles of international law which are invoked by the Convention.

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(b) The Relevance of the Direct Injury149 In the context of human rights protection the issue of the direct injury has not been discussed in these terms in the jurisprudence of the organs entrusted with enforcing such protection. The discussion has pertained almost entirely to the question whether the rule of internal or local remedies is applicable to inter-state disputes under the ECHR. However, it is conceivable that, if a violation of the Convention also amounts to a direct injury to a foreign state, the issue could arise. There is no reason why in such an event the incidence of the rule would not be affected under the Convention, if the application is filed by the state injured in an inter-state dispute. Under Article 27(3) the rule of internal remedies, which is referred to in Article 26, was expressly made applicable to applications filed before the EComHR by individuals. Article 24, which deals with inter-state disputes, was not clear on the question whether the rule of internal remedies is applicable to such disputes. The EComHR took the view that the rule is applicable at least in principle to inter-state disputes,150 but this does not mean that the incidence of the rule in such cases would not be affected by the doctrine of the direct injury, where appropriate. The reasoning that the rule was never intended by its nature to apply to such a situation would be equally applicable in the area of human rights protection under an instrument such as the European Convention. In regard to the protection of human rights, the relevance of the direct injury exclusion for the rule of internal remedies would seem to be less apparent. However, there

For a discussion of the “direct injury” see C.F. Amerasinghe, op. cit. note 139 (Local Remedies), pp. 146 ff. and 305 ff. 150 See Appl. 788/60, Austria v. Italy, Report of the Plenary Commission at pp. 42 ff. The reasoning and decision in Austria v. Italy have been criticized: see Vasak, La Convention européenne des droits de l’homme (1964) p. 114, Eustathiades, “Une nouvelle expérience en Droit international – Les recours indivi duels à la Commission des droits de l’homme” in Grundprobleme des internationalen Rechts – Festschrifi für Jean Spiropoulos (1957) at pp. 111 ff. See further, on inter-state cases, Cançado Trindade, “Exhaustion of Local Remedies in Inter-State Cases: The Practice Under the European Convention on Human Rights”, 29 OZOR (1978) at pp. 214 ff. 149

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may be situations in which the concept of the “direct injury” may be invoked in order to exclude the application of the rule.151 (c) Jurisdictional Connection Another question that has been raised is whether in cases where a state is obviously protecting its national, i.e. genuine cases of diplomatic protection, there could arise situations in which the application of the rule of internal remedies is excluded, because there is no adequate “jurisdictional connection”. In the area of human rights protection the problems arising from issues related to jurisdictional connection do not appear to be as acute as in regard to diplomatic protection, partly for the reason that the conventional instruments are limited in their area of application. Article 1 of the European Convention states that parties “shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”. The Convention, therefore, applies only in respect or persons within a state’s jurisdiction. It is clear that under the Convention a state is at the most under an obligation to respect human rights only in respect or persons within its jurisdiction. Problems arise in connection with the rule of local remedies under the Convention, where jurisdiction and territory are not coextensive. Thus, where Y, a national of state C, who is in state D, is arbitrarily deprived of his liberty by officers or state C acting officially in state D, state C has interfered with the rights of Y. Since Y is a national or state C, it may be contended that he is within state C’s jurisdiction and that state C has violated the Convention. In such a case the question that arises is whether Y must exhaust local remedies in state C before he can, under the Convention, bring his case before an international instance. From a more general point of view the issue is whether the incidence of the rule of internal remedies is co-extensive with any violation of the Convention. The issue has not been faced in the cases that have come up. Reference is made to C.F. Amerasinghe, op. cit. note 139 (Local Remedies) pp. 305 ff. for a discussion of the issue in relation to the European Convention on Human Rights. 151

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The principles applicable to diplomatic protection will be applicable to the protection of human rights, where the rule of internal remedies is made applicable by reference to the general principles of international law.152 Thus, it is arguable that it would at least be necessary for the violation of the Convention to take place on the territory of the respondent state for the rule of internal remedies to become applicable. Where state A commits a wrong against Y on the territory of state B, or anywhere outside its territory, the rule of internal remedies would not be applicable to that wrong, even though the injury may be actionable under the Convention. This is an important point, especially since jurisdictional connection in this sense may not be the same as jurisdiction for the purposes of determining whether the Convention has been violated so as to make it possible to invoke its machinery. Under the Convention, while it would be possible for proceedings to be instituted against state A where state A commits a wrong in respect of X, one of its nationals, in state B because state A has jurisdiction over X, it should not be necessary for X to exhaust internal remedies anywhere, because there is no jurisdictional connection between state A and the wrong for the purposes of the incidence of the rule of internal remedies. Again, even if the violation of the relevant convention takes place on the territory of state A, and if the victim had come to be there as a result of a seizure made in violation of international law by state A, there should be no need for the exhaustion of internal remedies, although state A may have sufficient jurisdiction over the victim for proceedings to be instituted. The analogy drawn from customary international law in regard to the incidence of the rule of internal remedies where there is no adequate jurisdictional connection is relevant because it may be reasonable in terms of policy to apply it. On the other hand, the applicability of the relevant principles depends on the interpretation of the European Convention. It has also been observed that the reference to the generally recognized principles of international law

For the principles applicable in the law of diplomatic protection see Amerasinghe, op. cit. note 139 (Diplomatic Protection) pp. 181 ff. 152

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has been interpreted under the European Convention to be confined to the material content of the rule. This does not mean, however, that principles not related to the material content of the rule cannot be applied, if it is warranted by good policy. In the case of the principles relating to jurisdictional connection, it may be desirable, for practical and other reasons connected with the nature of the rule, to apply them to human rights protection, when and if they become relevant. The Commission and the Court have been aware of the significance of “jurisdiction” in the Convention. However, the points discussed above are to be borne in mind. (d) Scope of the Rule In Nielsen v. Denmark the EComHR said that “the rules governing the exhaustion of domestic remedies, as these are generally recognized today, in principle require that recourse should be had to all legal remedies available under the local law which are in principle capable of providing an effective and sufficient means of redressing the wrongs for which, on the international plane, the respondent State is alleged to be responsible”.153 This statement emphasized the requirements that (i) all remedies must be tested, provided (ii) they are available, (iii) they are sufficient and effective, and (iv) a normal use of such remedies is made. There has in fact been no serious doubt about the requirement of availability. In Englert,154 for instance, the ECHR held that no appeal was required because none was available. There is evidence that the EComHR has been aware of the problem of the nature of the remedy that needs to be exhausted, although its general approach has been rather to determine whether the remedy is effective as a criterion of whether it should be Appl. 343/57, Report of the Commission (1961) at p. 37. See also Appl. 493/59, X v. Ireland, 7 Coll. at pp. 94, 96, Appl. 4464/70, Syndicat National de la Police Belge v. Belgium, 39 Coll. at p. 32. 154 [1987], Case 9/1986/107/155, Judgment. In Appl. 9013/80, Farrell v. UK, 25 YBECHR (1982) p. 124, the requirement of availability was stressed by the EComHR. See now, e.g., Djavit, Judgment of 20 February 2003, para. 29 and cases and text in van Dijk, op. cit. note 1 pp. 132–5. 153

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exhausted.155 In regard to extraordinary remedies, the Commission has taken the view that the extraordinary nature of the remedy does not affect the requirement of exhaustion, because the answer to the question whether the remedy should have been exhausted depended entirely on whether the remedy was adequate and effective. There are several cases in which the Commission has taken the view that the remedy was exhaustible, although it was an extraordinary one. Thus, the right to petition the Special Court of Revision in Denmark for the reopening of proceedings and an order for a new trial, although an extraordinary remedy, was held to be a legal remedy to which resort should have been had.156 It is not clear what is meant by “legal nature” but it would seem that this concept is compatible with the concept of “judicial nature” current in customary international law.157 In the cases in which remedies were held to be exhaustible the remedies available were held to be determinable according to law and not to rest on pure discretion exercised in a non-judicial manner. It may also be necessary to seek alternative judicial remedies successively. Thus, where in a federal state there is a Federal Constitutional Court and a State Constitutional Court, both of which have jurisdiction over the same matter, it will be necessary to litigate in both courts.158

See Danielus, “Conditions of Admissibility in the Jurisprudence of the European Commission of Human Rights”, 2 HRJ (1969) at p. 292. 156 Appl. 343/57, Nielsen v. Denmark, Report of the Commission at pp. 37 ff. 157 The remedies may include reference to a special constitutional court, or to administrative courts of different kinds, such as administrative courts of first instance, superior administrative courts, administrative courts of appeal, a federal administrative court or an administrative Detention Commission. They may include a disciplinary action of a special nature against the officer concerned before a person or committee with judicial powers, an appeal to the AttorneyGeneral acting in a quasi-judicial capacity, an application for the transfer of a case to another court on the grounds of prejudice which would have resulted in a rehearing, or an appeal which would have resulted in the rehearing of the case. For the relevant cases see C.F. Amerasinghe, op. cit. note 139 (Local Remedies), pp. 313 ff., and cases there cited. 158 Appl. 302/57 (not published), cited by Vasak, La Convention européenne des droits de l’homme (1964) p. 120. 155

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There have been some cases in which the Commission has held that an extraordinary remedy was not subject to exhaustion; however, this was not on the ground that it was an extraordinary remedy, but rather because the remedy was not adequate and effective. Thus, in Brückmann v. FRG,159 it was held that a petition filed with the Court of Appeal after a decision of the German Federal Constitutional Court, in order to re-open proceedings in the case, was not an effective and adequate remedy and, therefore, did not have to be exhausted.160 It is not necessary to resort to a merely discretionary extraordinary remedy of a non-judicial nature, such as one whose object is to obtain a favour and not to vindicate a right. Fore example, in the De Becker Case, it was held that an action for reinstatement under a statute, which would have enabled the complainant to resume his profession, if it had succeeded, was not a remedy to which he should have had recourse, because “its purpose is to obtain a favour and not to vindicate a right”.161 Special remedies provided by constitutional courts in such countries as the FRG and Austria are also subject to exhaustion, although they are not ordinary remedies. The Commission has consistently affirmed this. In X and Y v. Austria, for example, the Commission found that, while the applicant had exhausted remedies available in the ordinary courts by appealing to the Supreme Court, this did not absolve him from pursuing the

Appl. 6242/73,46 Coll. p. 207. See also, Appl. 918/60, X v. FRG, 7 Coll. p. 110, Appl. 1739/62, X v. Sweden, Coll. p. 102, Appl. 4311/69, X v. Denmark, 37 Coll. p. 96, Appl. 6049/73, X v. FRG, 1 D&R, p. 56. See also comments by Wiebringhaus, “La règle de l’épuisement préalable des voies de recours internes dans la jurisprudence de la Commission européenne des droits de l’homme”, 5 AFDI (1959) at p. 695. For administrative remedies see Appl. 9266/81, Yarrow P.L.C. and Others v. UK, 30 D&R (1983) at pp. 188 ff. 161 Appl. 214/56, 2 YBECHR p. 237 at p. 238. See also Appl. 332/57, Lawless v. Ireland, 2 YBECHR p. 326. Other decisions where the remedy has been regarded as discretionary include Appl. 299/57, Greece v. UK, 2 YBECHR p. 192 (petition to the Queen which was a measure of grace), Appl. 458/59, X v. Belgium, 3 YBECHR p. 234 (appeal for pardon). 159 160

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remedy available for an alleged breach of his human and constitutional rights by means of a direct appeal to the Constitutional Court.162 However, the need to exhaust constitutional appeals may not exist, if that recourse does not afford an effective remedy for the particular complaint.163 The Commission has dealt with the issue of effectiveness and adequacy on more than one occasion. Thus, on the issue of adequacy (suffisance) the Commission has held that, where the applicant was seeking compensation and damages for unlawful imprisonment after his release, the right of recourse to an Internment Commission, which did not have the power to grant compensation and damages but could only recommend release, was not an adequate remedy with respect to the applicant’s claim for damages and compensation, and therefore, it did not have to be invoked.164 Appl. 2854/66, 26 Coll. at p. 54. See also, e.g., Appl. 1135/61, X v. Austria, 11 Coll. p. 22, Appl. 2370/64, X v. Austria, 22 Coll. p. 101, Appl. 4511/70, X v. Austria, 38 Coll. p. 85. There were several cases against the FRG in which a similar conclusion was reached: see, e.g., Appl. 1086/61, X v. FRG, 9 Coll. p. 16, Appl. 2201/64, X v. FRG, 16 Coll. p. 75, Appl. 2257/64, Soltikow v. FRG, 27 Coll. p. 24, Appl. 4046/69, X v. FRG, 35 Coll. p. 115, Appl. 4445/70, X v. FRG, 37 Coll. p. 121, Appl. 5172/71, X v. FRG, 44 Coll. p. 125. On constitutional appeals see Verdussen, “La Cour européenne des droits de l’homme et l’épuisement préable de recours interne au juge constitutionnel”, in Liber Amicorum Marc-André Eissen (1995) p. 435. See on the kind of remedy: discussion in Dijk, op. cit. note 1 pp. 133–5 and cases there cited; inter alia, Pitkevich, Decision of 8 February 2001. 163 See, e.g., Appl. 2614/65, Ringeisen v. Austria, 27 Coll. at pp. 53–4. 164 Appl. 332/57, Lawless v. Ireland, 2 YBECHR (1958–1959) p. 318. See also Appl. 1739/62, X v. Sweden, 13 Coll. p. 102, Appl. 3972/69, X v. Austria, 37 Coll. at p. 19. See also Appls. 9362/81, 9363/81, 9387/81, Van der Sluijs, Zuiderveld and Klappe v. The Netherlands, 25 YBECHR p. 212. On the adequacy and effectiveness of remedies see also Appls. 8805/79 and 8806/79, the De Jong and Baljet Case, 24 D&R (1981) at p. 150, Appl. 10400/83, Z v. The Netherlands, 38 D&R (1984) at p. 150, Appl. 10078/82, M v. France, 41 D&R (1985) at p. 119, Appl. 1192/84, Moution v. France, 52 D&R (1987) at p. 235, the Civet Case, Judgment of 28 September 1999, 42 YBECHR (1999) p. 166, the Selmouni Case, Judgment of 28 July 1999, ibid. The Commission has held that where the remedy could satisfy the object of the applicant’s claim it should have been invoked and exhausted. Thus, in X v. FRG the applicant’s complaint was 162

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The notion of effectiveness (efficacité) has attracted the attention of the Commission more obviously.165 As a rule the Commission has taken the view that if a remedy is likely to be effective, resort must be had to it.166 There can be no question that it is generally agreed that remedies must be exhausted where they are adequate for the object sought or effective. The problems really arise when an exception is sought to the application of the rule on the ground that a remedy is ineffective. This aspect will be considered later below. “Normal use” has been referred to in the case-law of the EComHR on the local remedies rule. In Austria v. Italy the Commission said that the rule required “the normal use of remedies likely to be effective and adequate”.167 In Ringeisen v. Austria, the Commission stated that “if remedies which seem effective and sufficient are open to an individual within the legal system of the respondent state, he must use and exhaust such remedies in the normal way”.168 But against the Public Prosecutor for having violated his right of defence. Since this complaint could have been satisfied by recourse to a disciplinary action to which the applicant had not resorted, the Commission held that domestic remedies had not been exhausted: Appl. 297/57, 2 YBECHR at p. 214. See also Appl. 3788/68, X v. Sweden, 35 Coll. p. 72. 165 See Nay-Cadoux, Les Conditions de recevabilité des requêtes individuelles devant la Commission européenne des droits de l’homme (1996) pp. 97 ff. 166 In X v. Ireland the Commission held that an application to the Detention Commission of the respondent state was a legal remedy which would have secured the applicant’s early release from the alleged illegal detention, and therefore resort should have been had to it: Appl. 493/59, 7 Coll. at p. 95. See also Appl. 4125/69, X v. Ireland, 37 Coll. p. 50, Appl. 5006/71, X v. UK, 39 Coll. p. 93, Appl. 4771/71, Kamma v. Netherlands, 42 Coll. p. 20, Appl. 4475/70, Svenska Lotsförbundet v. Sweden, 42 Coll. p. 13. See also on proof of effectiveness Appl. 9013/80, the Farrell Case, 30 D&R (1983) at p. 83, Appls. 8805/79 and 8806/79, the De Jong and Baljet Case, 24 D&R (1981) at p. 150. On effectiveness in general see, e.g., Appl. 16839/90, Remli v. France, 77-A D&R (1994) at p. 29, the Cardot Case, Judgment of 19 March 1991, 34 YBECHR (1991) at p. 195 ff., the Guzzardi Case, Judgment of 6 November 1980, A.39 (1981) at pp. 21 ff. 167 Appl. 788/60, Report of the Plenary Commission at p. 57. 168 Appl. 2614/65, 27 Coll. at p. 53. See also Appl. 4340/69, Simon-Herold v. Austria, 38 Coll. at p. 33. Some other decisions to the same effect are referred to in the latter case.

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in fact for the Commission the normal use of remedies has meant no more than that “time-limits laid down in domestic law for the introduction of appeals must be observed by applicants . . .”169 or that the applicant must exercise remedies in a manner that was valid, taking into account his capacity.170 There is no indication in the jurisprudence of the Commission that the concept of “normal use” is a means of introducing flexibility into the application of the rule of local remedies by reference to reasonableness or equity.171 There is no unequivocal judicial precedent or practice which warrants the conclusion that a victim may avoid resorting to remedies which would otherwise be covered by the rule of local remedies because normal practice or use would justify such omission. What the jurisprudence of the Commission does is to support the interpretation that “normal use” merely refers to the obligations of the alien or individual to fulfil the requirements of local law with respect to such matters as time-limits and capacity. In the Finnish Ships Arbitration it was held that in customary international law the individual need only raise in local proceedings the arguments which he raises in international proceedings.172 He is not expected to raise such arguments in the local courts as the defendant state claims would have given him redress, nor is he bound to raise these in international proceedings. Conversely,

See Appl. 352/58, X v. FRG, 2 YBECHR at p. 344, Appl. 945/60, X v. FRG, 8 Coll. at p. 105, Inhabitants of Alsemberg and of Beersel v. Belgium (1963), 12 Coll. at pp. 27–8, Appl. 2002/63, X v. Norway, 14 Coll. at pp. 27–8, Appl. 2366/64, X v. FRG, 22 Coll. at p. 122, Appl. 2854/66, X and Y v. Austria, 26 Coll. at p. 53, Appl. 3897/68, X and Y v. FRG, 35 Coll. at p. 80. 170 See Appl. 225/56, X v. FRG, 1 YBECHR at pp. 145–6. 171 See comments by Monconduit, La Commission européenne des droit de l’homme (1965) at p. 315. However, the view has been expressed that the test of reasonableness or “normal use” should be introduced to modify the application of the rule of local remedies: see Directorate of Human Rights, CE doc. H (64) 1 (1964) at p. 20; Vasak op. cit. note 158. 172 (1934), 3 UNRIAA at p. 1502, when it was said that “all the contentions of fact and propositions of law which are brought forward by the claimant government . . . must have been investigated and adjudicated upon by the municipal courts . . .”. See also the Ambatielos Claim (1956), 12 UNRIAA at p. 123. 169

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he need only have raised in the local proceedings those matters which he raises in the international proceedings. The individual may formulate his case as he thinks fit, but, of course, he will not succeed on his substantive formulation at an international level unless it discloses a cause of action according to international law. Thus, exhaustion of local remedies in connection with arguments of substance is related to the cause of action. It is a natural corollary of the above principle that the individual must raise at the local level any arguments which he raises at an international level. In this area exhaustion takes place in relation to substantive arguments, the arguments covering contentions of fact, propositions of law, pleas and claims. The EComHR applied this principle early in its history, when an application was declared inadmissible for failure to exhaust domestic remedies, because the complaint raised before the Commission that the proceedings before a landgericht (regional court) in the FRG had been conducted in such a manner as to violate certain provisions of the European Convention had not been raised on appeal before the bundesgerichtshof (federal court).173 There are many cases in which the Commission took the same stand and declared the application inadmissible for failure to exhaust domestic remedies.174 The Commission has, on the other hand, made it clear in X v. Austria that the requirement is that the matter be raised in substance before the relevant local courts, stating that “the mere fact that the applicant has, in pursuance of Article 26, submitted his case to the various competent courts does not constitute compliance with this rule; . . . it is also required that any complaint made before the Commission and relating to lower courts or authorities should have been substantially raised before the competence higher court or authority”.175 The Commission applied the principle in Ringeisen Appl. 627/59, X v. FRG, 8 Coll. at pp. 23–4. To mention only a few, see Appl. 263/57, X v. FRG, 1 YBECHR p. 146, Appl. 1103/61, X v. Belgium, 8 Coll. p. 124, Appl. 3001/66, X v. Austria, 26 Coll. p. 59, Appl. 4319/60, Samer v. FRG, 39 CoIl. p. 18, Appl. 4771/71, Kamma v. the Netherlands, 42 Coll. p. 19, Appl. 5560/72, X v. Austria, 45 Coll. p. 64. 175 Appl. 3001/66, 26 Coll. at p. 59. 173 174

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v. Austria and found that the applicant had, indeed, exhausted domestic remedies.176 As a result of the development of the law by the Commission, the point has been clarified that what is required is that the matter be substantially (and not formally) raised before the relevant domestic courts. Another example is Austria v. Italy where the Commission held that: the question of presumed innocence raised by the Austrian Government in paragraph 1(2) of their written conclusions was submitted in substance to the Court of Cassation of Italy . . . [I]f they had expressly invoked Article 27(2) of the Italian Constitution and Article 6, paragraph (2) of the European Convention, the young men of Fundres/ Pfunders would therefore not have submitted any supplementary argument but would simply have put forward one more argument which in practice coincides, by its intention, with those which they effectively promoted.177

The Commission derived the principle it applied from the broader principle that “only the non-utilization of an ‘essential’ recourse for establishing the merits of a case before the municipal tribunals leads to non-admissibility of the international complaint”.178 The issue has been raised before the Commission whether the applicant can rely on the duty of a local court to examine an issue ex officio, in order to avoid the necessity of raising a particular issue before that court. Although in Delcourt v. Belgium the Commission was reluctant to deal with the question,179 in that same case, which came up before it later, and in other cases decided both before and after the case, it has held that the failure of the applicant to raise

Appl. 2614/65, 27 Coll. at p. 55. On the recent practice see Van Dijk and Van Hoof, op. cit. note 1 pp. 142 ff. 177 Appl. 788/60, 4 YBECHR at p. 176. 178 Ibid. at p. 172. On submission in substance see now, e.g., the Cajella Case, Decision of 18 March 2004; the Dogan and Others Case, Judgment of 29 June 2004, para. 107, and discussion in van Dijk, op. cit. note 1 pp. 151–4. 179 Appl. 2689/65,22 Coll. at p. 84. 176

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an issue before a local court which must deal with the question ex officio results in the non-exhaustion of domestic remedies.180 The Commission has had to deal with the issue of the final decision on more than one occasion, both in order to determine whether the rule of domestic remedies had been observed and for other purposes. It has not been disputed by the Commission that an applicant must have recourse to all competent domestic courts and obtain a final decision from the highest court before the Commission may pronounce on his case. In Ringeisen v. Austria the ECHR implicitly endorsed this view when it held that, while a final decision was necessary before an international forum such as the Commission could pronounce on the dispute, in the case of the Commission it was sufficient if that decision was given before the Commission was called upon to pronounce on the question of admissibility of the application, even though the final decision may not have been delivered before the application had been filed with the Commission.181 Needless to say, this merely means that domestic remedies must have been exhausted before the Court also may assume jurisdiction. The Commission has held that proceedings must be completed, in the sense that they must neither be still pending nor have been discontinued, and that appeals must have been carried to the highest court. Where an appeal in a court was still pending,182 where proceedings had been previously discontinued because of the applicant’s health and at his request,183 and where the applicant had lost his case in the court of first instance and an appeal could have been taken which would have led to the rehearing of the case,184 it has been held in each case that domestic remedies had not been exhausted. Where an appeal had been withdrawn and a plea of nullity had not See, e.g., Appl. 2322/64, X v. Belgium, 24 Coll. at p. 42, Appl. 2689/65, Delcourt v. Belgium, 24 Coll. at p. 84, Appl. 2002/63, X v. Norway, 14 Coll. at p. 270. 181 ECHR Series A [1971] at p. 38. 182 Appl. 115/55, X v. FRG, 1 YBECHR at p. 137. 183 Appl. 722/60, X v. FRG, 5 YBECHR at p. 104. 184 Appl. 434/58, X v. Sweden, 2 YBECHR at p. 354. 180

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been raised with the result that the decision of the court had become res judicata, it was held that, because the original appeal had not proceeded, domestic remedies had not been exhausted.185 It is in connection, however, with the application of the provision relating to the six-month time-limit in Article 26 of the ECHR that the Commission has really had to deal with the question of the final decision. That provision requires that the Commission deal with a dispute within a period of six months of the date on which the final decision was made. The final decision for this purpose has been held in Nielsen v. Denmark to be exclusively “the final decision resulting from the exhaustion of all domestic remedies according to the generally recognized rules of international law”.186 Thus, the Commission’s view of the final decision for the purposes of the six-month rule will also be relevant to the definition of that concept for the exhaustion of domestic remedies proper. There are many occasions on which the Commission has identified the final decision as being the decision of the relevant court in a given domestic legal system,187 but what is of importance for the purpose of determining whether domestic remedies have been exhausted is the distinction made between those situations in which recourse to a higher court is still available, with the result that exhaustion would take place only when that court has taken a decision, and those in which such recourse is obviously not available, so that exhaustion has already taken place. For the purpose of the six-month rule the fact that further recourse is available would result in time not having begun to run, while if there is not further recourse available the final decision would have been taken and time would have begun to run from the time that decision had been taken, regardless of whether the applicant was making or had made further efforts to invoke other remedies. Appl. 1234/61, X v. Austria, 5 YBECHR at p. 96. Appl. 343/57, Report of the Commission at p. 35. 187 See, e.g., Appl. 918/60, X v. FRG, 7 Coll. at p. 110, Appl. 1053/61, X v. Austria, 8 Coll. at pp. 7–8, Appl. 3505/68, X v. UK, 29 Coll. at p. 63, Appl. 3972/69, X v. Austria, 37 Coll. at p. 20, Appl. 4475/70, Svenska Lotsförbundet v. Sweden, 42 Coll. at p. 13. 185 186

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The Commission has had to make its determinations on the basis of its estimate of the adequacy and effectiveness of recourse to a given court.188 In certain circumstances it may be a difficult decision for an applicant to take as to whether a recourse to another higher court is effective or adequate, which recourse may put him at a disadvantage when time-limits are an element to be considered.189 From the point of view of the rule of exhaustion of local or domestic remedies per se, however, the requirement is clear that an alien or

See X v. UK, where the Commission upheld the view that the remedy by way of appeal to the High Court for a writ of habeas corpus would not have been an effective one, with the result that the decision of the Court of Appeal, to which the applicant had appealed his conviction, was the final decision. Thus, the time for the purposes of Article 26 had begun to run from the date of the latter decision: Appl. 3505/68, 29 Coll. at pp. 62–3. There are other cases in which a similar conclusion has been reached: see. e.g., Appl. 3893/68, X v. Sweden, 33 Coll. at p. 10, Appl. 3979/69, X v. FRG, 33 Coll. at p. 13, Appl. 3972/69, X v. Austria, 37 Coll. at p. 19, Appl. 5560/72, X v. Austria, 45 Coll. at p. 64. 189 There are several problems that may arise, e.g., what should an applicant do when he has reached the highest court but there may be some extraordinary court available, the effectiveness of which is not clear, or when there is a continuing situation and the highest court has already been reached, or when the applicant has decided to reopen the case in the municipal courts in the hope of securing a remedy? The decision in Ringeisen v. Austria, ECHR Series A (1971) at p. 38, where it was held that remedies must have been exhausted at the time when the Commission pronounces on admissibility, and not at the time the application has been filed, tends to mitigate some of the hardship that may be caused in so far as the applicant may, after the highest court has given an apparently final decision, file a case with the Commission while still pursuing remedies in the domestic courts, with the object of having a decision from the new source of recourse before the Commission pronounces on admissibility. See also for a discussion of these issues, Appl. 4859/71, X v. Belgium, 44 Coll. at pp. 6–7, Appl. 343/57, Nielsen v. Denmark, Report of the Commission at pp. 32–5, Appl. 1739/62, X v. Sweden, 13 Coll. at p. 102, Appl. 4311/69, X v. Denmark, 37 Coll. at p. 95. It may not always be possible for an applicant to take advantage of the ruling in Nielsen v. Denmark, as much may depend on chance. On the other hand, it may not be desirable to use or extend that ruling so as to deprive the six-month rule of any real significance by trying to accommodate applicants who may like to gamble on resort to internal remedies: see for similar comments Jacobs, The European Convention on Human Rights (1975) p. 242. 188

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individual needs and is required only to resort to the higher or last court from which he could have obtained an effective remedy. (e) Limitations on the Rule The EComHR has recognized the general principle that, where remedies are not available or they are inadequate, they need not be exhausted. Where the remedies are inaccessible on the facts of they case they need not be exhausted.190 Where the remedies are inadequate in that it is obviously futile to resort to them, they need not be exhausted. The EComHR has repeatedly held that it was not necessary to have recourse to domestic tribunals “if the result must initially be the repetition of a decision already pronounced”.191 Where the remedies available clearly will not satisfy the object sought by the claimant, they need not be resorted to because they are ineffective or obviously futile. There are several decided case on this matter under the ECHR. Where the object of the claimant’s action was to prevent his removal from a state’s territory in violation of the Convention, a court action which did not have suspensive effect was not a remedy that had to be exhausted because it was obviously ineffective for the object sought by the claimant.192 The question has been raised by some decisions of the Commission whether the requirement of “obvious futility” has been changed for the application of the rule of local remedies in the See, e.g., Appl. 299/57, Greece v. UK, 2 YBECHR (1958–1959) at pp. 194–6, Appls. 5577–5583/72, Donnelly and Others v. UK, 43 Coll. at p. 147. 191 See, e.g. Appl. 1936/63, Neumeister v. Austria, 14 Coll. at p. 48, Appl. 9697/82, J and Others v. Ireland, 26 YBECHR (1983) p. 120. 192 Appl. 7011/75, Becker v. Denmark, 4 D&R at pp. 227–8 and 232–3. See also Appl. 7465/76, X v. Denmark, 7 D&R, at pp. 154, Appl. 6701/74, X v. Austria, 5 D&R, at pp. 78–9, Appl. 9174/80, Zamir v. UK, Report of the Commission. Similarly, the Commission has held that, where a claimant finds it impossible to prove before the authorities concerned allegations which are basic to the object of his application, it is obvious that the remedies concerned cannot give the claimant satisfaction and cannot be effective: Appl. 2686/65, Kornmann v. FRG, 22 Coll. at p. 10. 190

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context of the protection of human rights under the European Convention. There is some element of doubt in the jurisprudence of the Commission. There are cases in which the Commission has apparently supported the test of obvious futility in regard to limitations on the rule of local remedies, while in some cases a less stringent test of absence of a reasonable prospect of success of the remedies in question has been applied. The difference between the two tests is that under the former test what must be shown in order to trigger an exception to the application of the rule is that it was clear beyond reasonable doubt or that it was manifestly clear that remedies could not result in a successful outcome, while in the case of the latter test all than need be shown for an exception to operate is that the remedy in question would probably not have resulted in successful reparation. There have been cases decided by the Commission in which, on the one hand, it has been said that “if there is any doubt as to whether a given remedy is or is not intrinsically able to offer a real chance of success”, it should be canvassed so that the issue may be decided by the local courts.193 In Kjeldsen v. Denmark,194 one part of the application was held to be inadmissible because the remedy indicated by the respondent against certain other administrative

Appl. 3651/68, X v. UK, 31 Coll. at p. 90. For this reason an appeal to the Court of Appeal in the UK was held to be subject to exhaustion in this case. See also Appl. 712/60, Retimag v. FRG, 4 YBECHR at p. 400, Appl. 8961/80, X v. FRG, 24 YBECHR p. 74, Appls. 8022/77, 8025/77, 8027/77, McVeigh, 0’Neill and Evans v. UK, Report of the Commission at pp. 112–13. There is a certain relativity about the notion of “obvious futility”. Much depends on the circumstances of both the applicant and the context in which he is operating: see the Akdivar Case, Judgment of 16 September 1996, 15 Reports 1996–IV para. 70. The rule must, therefore, be applied with some degree of flexibility and without excessive formalism: ibid. para. 69, Judgment of 19 March 1991, the Cardot Case, 34 YBECHR (1991) at pp. 195 ff.; Judgment of 16 December 1992, the de la Pradelle Case, 35 YBECHR (1992) at p. 219. 194 Appl. 5095/71,43 Coll. at pp. 54–5. On administrative practices in particular and the domestic remedies rule see McGovern, “The Local Remedies Rule and Administrative Practices in the European Convention on Human Rights”, 24 ICLQ (1975) p. 119. 193

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measures could not clearly have been said to lack any prospect of success, while the other part, which related to measures taken under an Act of Parliament, could not be contested in court, because no proceedings could be taken against such an instrument, and therefore was held to be admissible. On the other hand, there are numerous cases in which the test applied has been whether the remedy “soit efficace et offre des chances raisonnables de succès”.195 In Lawless v. Ireland196 the applicant had failed in his bid to secure a writ of habeas corpus in regard to his detention so that it was clear that he could not succeed in an action for damages for false imprisonment. The Commission held that such action had no reasonable prospect of success and was, therefore, an ineffective remedy. It is not apparent whether in all the cases in which the test was said to be absence of a reasonable prospect of success, with the result that the rule of domestic remedies was found to be inapplicable, the facts showed that while this test was met, the decision would have been different if the stricter test of obvious futility had been applied. At the same time, it is not always clear in many of the cases in which the Commission held that domestic remedies should have been exhausted, because they were not obviously futile or there was some doubt about their effectiveness, that the decision would have been different if the less strict test of absence of a reasonable prospect of success had been applied. What emerges is that there is a conflict in the jurisprudence of the Commission. But it would appear that the general trend in its decisions is to apply the less strict test in favour of the exception, because there are many cases in which it has been applied.197

Appl. 968/61, X v. FRG, 8 Coll. at p. 27. See also Appl. 788/60, Austria v. Italy, Report of the Plenary Commission at pp. 55 ff. 196 Appl. 332/57, Lawless v. Ireland, 2 YBECHR p. 318. 197 Cançado Trindade notes that the less strict test is more widely applied, and concludes that this has replaced the stricter test in the jurisprudence of the European Commission: op. cit. note 140, p. 97. This conclusion is suspect, particularly in the light of the more recent cases. On the application of the principle 195

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The Commission has often held that domestic remedies need not be exhausted where there had been unreasonable delays in the administration of justice, even though the European Convention does not specifically refer to this exception. It had obviously done so in carrying out the prescription to apply generally recognized rules of international law. As early as 1959, in X v. FRG, the Commission stated that “les lenteurs de procédure” before the Federal Constitutional Court could be a circumstance which would relieve the applicant of the duty to exhaust that remedy,198 although in the case itself it held that delay had not been proved. In de Becker v. Belgium the Commission held that one reason why a particular remedy did not have to be exhausted was that the applicant would have had to wait five years after his release in order to canvass it, which was too long.199 The Commission has referred to two situations in which the rule of domestic remedies is inapplicable because of the nature of the particular situations. These limitations on the applicability of the rule relate to (a) the prevailing condition and (b) legislative measures and administrative practices.

of ineffectiveness and obvious futility in the cases see now, e.g., Buscarini v. San Marino, Judgment of 18 February 1999, 38 ILM at p. 743 Selmouni v. France, Judgment of 28 July 1999, 38 ILM at pp. 1506 ff. the Denizci Case, Judgment of 23 May 2001, para. 362; the De Jorio Case, decision of 6 March 2003; the Denisov Case, Decision of 4 May 2004; van Dijk, op. cit. note 1 pp. 135 ff. 198 Appl. 222/56, 2 YBECHR (1958–1959) at p. 350. 199 Appl. 214/56, 2 YBECHR (1958–1959) at p. 238. Other cases in which undue delay has been referred to as a ground for releasing the applicant from the duty to exhaust remedies are Appl. 343/57, Nielsen v. Denmark, 2 YBECHR (1958–1959) at p. 440, Appl. 297/57, X v. FRG, 2 YBECHR (1958–1959) at pp. 213–14, Appl. 568/59, X v. FRG, 2 Coll. at pp. 348–9, Appl. 704/60, X v. FRG, 3 Coll. at p. 6, Appl. 8435/78, Orchin v. UK, Report of the Commission, Appl. 7438/76, Ventura v. Italy, Report of the Commission. There are special circumstances which are cautiously conceded in which domestic remedies may not be exhausted. These are all related to the practical aspects of “effectiveness”: see van Dijk, op. cit. note 1 pp. 149–50. See also now the Plaksin Case, Judgment of 29 April 2004.

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In Austria v. Italy the parties virtually agreed that domestic remedies did not have to be exhausted where there was a prevailing condition which transgressed the provisions of the European Convention.200 The Commission agreed with this position.201 The exact scope of this exception is not clear, nor, indeed, is the question whether it is the same as, or how different it is from, the next one to be considered, which concerns legislative measures and administrative practices. There is also the question whether it applies equally to inter-state cases as to individual applications. It may be difficult to apply it in individual cases, because in these the individual must be a victim of the alleged injury or must have suffered an injury. In the First Cyprus Case202 the applicant government charged that the respondent government had violated the Convention on account of the latter’s legislative measures and administrative practices in Cyprus. In its decision the Commission stated that the rule of domestic remedies as recognized in general international law did not apply to the application in the case, the scope of which was to determine the compatibility with the Convention of legislative measures and administrative practices in Cyprus.203 This was an interstate case, and in many subsequent inter-state cases the Commission has followed the ruling in this decision.204 The reason given for this exception is basically that, whereas the local or domestic remedies rule was based on the effectiveness and availability of remedies, in the kind of case under consideration “judicial remedies prescribed would tend to be rendered ineffective by the difficulty of securing

Appl. 788/60,4 YBECHR at p. 146. Ibid. at p. 148. 202 Appl. 176/56, Greece v. UK, 2 YBECHR (1958–1959) p. 182. 203 Id. at p. 184. 204 See Appl. 299/57, Second Cyprus Case, Greece v. UK, 2 YBECHR (1958–1959) at pp. 188–92, Appl. 788/60, Austria v. Italy, 4 YBECHR p. 182, Appls. 3321–3323/67 and 3334/67, First Greek Case, Denmark, Norway, Sweden, Netherlands v. Greece, 11 YBECHR p. 710 and 12 YBECHR p. 194, Appl. 4448/70, Second Greek Case, Denmark, Norway, Sweden v. Greece, 13 YBECHR p. 108, Appl. 5310/71, Ireland v. United Kingdom, 15 YBECHR (1972) p. 76. 200 201

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probative evidence, and administrative inquiries would either be not instituted, or, if they were would be likely to be half-hearted and incomplete”.205 While the exception may be based on ineffectiveness and inadequacy of the remedies likely to be available, it is not clear that in the kind of case envisaged the remedies would be obviously futile, although there may be no reasonable prospect of success. Further, it may be that in a given case there may be no injury to an individual in the case of an impugned legislative measure, which would make the exception a very special one. The complicated and difficult nature of the exception is attested to be the problems encountered with identifying “administrative practice” for the purposes of this exception. It was laid down in the First Greek Case206 that not all administrative practices would be covered by the exception, but only such practices as involved both the repetition of acts and official tolerance which were subject to proof, and it was explained further that such administrative practice did not require merely the repetition of administrative decisions, but consisted rather of repeated factual events which were tolerated. In regard to individual applications under the European Convention, the applicability of the exception has been regarded as being dependent both on whether the applicant has been affected by the situation as a victim and whether administrative practice in the sense defined could be proven to exist.207 Thus, in the case of

Appls. 3321–3323/67 and 3344/67, First Greek Case, Denmark, Norway, Sweden, Netherlands v. Greece, 12 YBECHR at p. 194. 206 Appls. 3321–3323/67 and 3344/67, Denmark, Norway, Sweden, Netherlands v. Greece, 12 YBECHR at pp. 195–6. See also on administrative practices Appl. 5310/71, Ireland v. UK, 15 YBECHR (1972) p. 76, Judgment of 16 September 1996, the Akdivar Case, 15 Reports 1996–iv, para. 67. 207 See, e.g., Appl. 5095/71, Kjeldsen v. Denmark, 43 Coll. at pp. 46 ff., Appl. 5926/72, Pedersen v. Denmark, 43 Coll. at pp. 93 ff., Appl. 5920/74, Busk Madsen v. Denmark, cited in 44 Coll. p. 93 note 1, Appls. 5577–5583/72, Donnelly and Others v. UK, 43 Coll. p. 122. See also Appl. 9107/80, G v. Belgium, 22 D&R (1983) at p. 79, Appl. 9471/81, X and Y v. UK, 36 D&R (1984) at p. 61, Appl. 21987/93, Aksoy Case, 37 YBECHR (1994) at p. 117 ff. 205

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an individual application it is inadequate that the situation merely exist; it must have a definite adverse impact on the applicant.208 (f ) Raising the Objection Based on Domestic Remedies Because in the area of human rights protection international organs such as the EComHR have the power to investigate ex officio or proprio motu whether the rule of domestic remedies has been satisfied, the problem of the effect of a failure on the part of the respondent state to raise the objection that domestic remedies have not been exhausted is somewhat more complex. Because the Commission may take up the issue ex officio, the initial failure of the respondent state to raise the objection may not be fatal. On the other hand, once the issue is raised by the Commission, if the respondent state refuses to take up the case that domestic remedies have not been exhausted when it is requested to do so by the Commission, the position taken is that it is deemed to have waived the benefit of the rule. Thus, where in a case in which the Commission raised the issue of domestic remedies, the Belgian Government consistently maintained throughout the oral hearing that it did not intend to rely on the rule of domestic remedies, because the application was directed not against a ministerial decision but against legislation as such, the Commission found that the respondent had waived its right to rely on the rule and, therefore, the Commission did not have to examine whether the applicant should have had resort to the Belgian

There is a fairly lengthy discussion of the exception which is the subject of this subsection and its scope in Cançado Trindade op. cit. note 140, pp. 187–212. For others who have discussed the issue see e.g., Waldock, “General Course on Public International Law”, 106 Hague Recueil (1962) at pp. 209 ff.; Müller-Rappard, “Le droit d’action en vertu des dispositions de la Convention européenne des droits de l’homme”, 4 RBDI (1968) at pp. 489–90, Danielus, “Conditions of Admissibility in the Jurisprudence of the European Commission of Human Rights”, 2 HRJ (1969) at pp. 286–7; Boyle and Hannum, “Individual Applications under the European Convention on Human Rights and the Concept of Administrative Practice: the Donnelly Case”, 68 AJIL (1974) at pp. 440–53; Castberg, The European Convention on Human Rights (1974) pp. 46–8; McGovern, loc. cit. note 194 at pp. 119–27. 208

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Conseil d’État before seizing the Commission.209 But the practice of the Commission has not been consistent. In X v. Austria, for instance, where the respondent had objected to the failure of the applicant to resort only to certain remedies, the Commission found the application inadmissible, stating ex officio that the applicant should have resorted to a remedy which had not been referred to by the respondent as being exhaustible.210 It is thus not entirely clear how the doctrine of implied waiver as a result of the failure of the respondent state to take up the objection based on local remedies is applicable, where the body concerned must investigate ex officio whether the rule has been satisfied. The Convention did not advert to the procedure of raising an objection founded on the rule of domestic remedies. Thus, there is no fixed time-limit in the treaty law for the submission of such an objection. In practice, however, some time-limits do operate. The fact that international organs established under human rights conventions have assumed the role of raising ex officio the issue of local remedies, even if the defendant has not raised it, means that any normal time-limit may be superseded by the decision of the organ concerned to raise the issue, which theoretically it may do at any stage in the proceedings. But apart from this, these organs have established a procedure under their rules for the raising of objections based on the rule of domestic remedies which involves certain time-limits, although these happen to be fairly extended. It would seem that time-limits for the raising of the objection based on the rule of domestic remedies are to some extent flexible under the European Convention. There does not seem to be any fixed time-limit for the submission of such an objection, provided it

Appl. 1994/63, Inhabitants of Louvain and Environs v. Belgium, 13 Coll. at p. 109. 210 Appl. 2547/65, 20 Coll. at pp. 80 ff. The Court has more recently resorted to the concept of waiver or estoppel, where the objection relating to domestic remedies has not been raised in time: see Hasan v. Bulgaria, Judgment of 26 October 2000, 40 ILM at p. 20. On raising the objection see now the Malama Case, Judgment of 1 March 2001, para. 40; van Dijk, op. cit. note 1 pp. 155–7. 209

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is made in the course of the examination of admissibility.211 Clearly the objection must be raised at some point during the admissibility stage, in accordance with the general principle that all points must be pleaded at the proper time.212 In several cases the objection based on the domestic remedies rule was accepted, although it was only raised at the oral hearings.213 The Commission has held that there was no requirement that a preliminary objection such as this one should be raised at the stage of the written proceedings, it being possible for the objection to be raised later at the oral hearings. (g) The Time at which Remedies must be Exhausted It may be important to determine at what point in time local remedies must be exhausted. The issue is whether the exhaustion of local remedies must be completed before the date of filing of the application with the international organ, or whether the critical date may occur later. In general, the critical date would not be so crucial, because even if it has not occurred at the appropriate time, it is possible for another action to be filed after that date occurs, as the effect of dismissal of the action on the ground that it is inadmissible for failure to exhaust local or internal remedies is not to render the matter res judicata. But sometimes in the law of human rights protection it may matter what date is chosen as the critical date because a second application may be excluded by operation of the six-months rule, or by some provision in the compromis or other instrument giving the tribunal jurisdiction.

See Grillo Pasquarelli, “The Question of the Exhaustion of Domestic Remedies in the Context of the Examination of Admissibility of an Application to the European Commission of Human Rights”, in Robertson (ed.), Privacy and Human Rights (1973) at p. 336. See now also van Dijk, op. cit. note 1 pp. 147 ff. 212 Morrison, The Developing European Law of Human Rights (1967) p. 86. 213 See, e.g., Appl. 712/60, Retimag v. FRG, 8 Coll. at pp. 36–7, Appl. 1727/62, Boeckmans v. Belgium, 12 Coll. at p. 45. 211

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The ECHR has had an opportunity of facing the problem. It took the view in Ringeisen v. Austria214 that, provided the applicant had resorted to internal remedies before he filed his application with the EComHR, it did not matter that he had not received a decision with final effect from the last court before the time of filing the application, although it was necessary for such a decision to be in existence by the time the Commission was called upon to pronounce on the admissibility of the application. Whether because of the existence of the six-months rule, the formal nature of the issue or some other policy reason, the ECHR agreed that “there was a need for flexibility in the application of the rule.”215 It would seem that there is a difference in the treatment of the critical date for the exhaustion of remedies between the law of diplomatic protection and the law of human rights protection. (h) The Continuing Situation The issue in the case of a continuing situation is not so much the time of exhaustion of remedies, in the sense discussed in the previous section, as the time at which the internal or local remedies are deemed to have been exhausted for an application to be lodged without an objection based on the rule of local remedies being tenable. This situation has arisen where there has been a detention while on remand for an unreasonable length of time.216 It has been held by the ECHR in Stogmüller v. Austria that, where there has been such a continuing detention, internal remedies will be deemed to have been exhausted when the first final decision has been given without securing the release of the applicant, it being unnecessary for the applicant to continue thereafter to resort to remedies in order the secure his release in order that remedies may be fully exhausted. It becomes apparent also in these circumstances that the

[1971], ECHR Series A. Ibid. at p. 37. For comments on this case see Cançado Trindade, op. cit. note 140, pp. 214 ff. See now also the Baumann Case, Decision of 22 May 2001. 216 See, e.g., Article 5(3) of the European Convention on Human Rights. 214 215

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application may relate to a situation which persists after the filing of the application, in respect of which internal remedies, it may be argued, have not been exhausted. The Court said in Stogmüller v. Austria: As to the point whether the proceedings instituted may embrace complaints concerning facts which occurred after the lodging of the application, international law, to which Article 26 refers explicitly, is far from conferring on the rule of exhaustion the inflexible character which the government seems to attribute to it. International law only imposes the use of the remedies which are not only available to the persons concerned but are also sufficient, that is to say capable of redressing their complaints. Thus, in matters of detention while on remand, it is in the light of the circumstances of the case that the question is, in appropriate cases, to be assessed whether and to what extent it was necessary, pursuant to Article 26, for the detained applicant, who had exhausted the remedies before the Commission declared his application inadmissible, to make later on further appeals to the national courts arguments in order to make it possible to examine, at international level, the reasonableness of his continued detention. But such question only arises if the examination of the reasons given by the national courts in their decisions on the appeals made before the lodging of the application has not led to the conclusion that, at that date, the detention had exceeded a reasonable time. Indeed, if the opposite be the case it is clear that the detention while on remand which is held to have exceeded a reasonable time on the day when the application was lodged must be found, except in extraordinary circumstances, to have necessarily kept such character throughout the time for which it was continued.217

In regard to the need for several applications in the case of continued detention, the ECHR had held earlier in Neumeister v. Austria that: it would be excessively formalistic to demand that an applicant denouncing such a situation should file a new application with the 217

[1969], ECHR Series A at pp. 42–3.

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Commission after each final decision rejecting a request for release. This would pointlessly involve both the Commission and the Court in a confusing multiplication of proceedings which would tend to paralyse their working.218

(i) The Burden of Proof Questions relating to the burden of proof in the application of the rule of local remedies have arisen in connection with the implementation of the protection of human rights in the practice under the European Convention on Human Rights. While the respondent which claims that the rule of domestic remedies applies must prove significant elements, the applicant has a share in the burden of proof.219 (7) The Six-months Rule The European Convention on Human Rights provided in Article 26 (current Article 35(1)) that an application to the EComHR is inadmissible if it is not brought within six months from the date of the final domestic decision.220 In an early case,221 the Commission held that where the injury, which was in any case a continuing one, had taken place before the entry into force of the Convention for the defendant state, the

Ibid. at p. 38. The details of the burden of proof are discussed in C.F. Amerasinghe, op. cit. note 139 (Local Remedies), pp. 291 ff. See also van Dijk, op. cit. note 1 pp. 154–5. For recent cases decided by the ECHR on the burden of proof see, e.g., the Bozano Case, Judgment of 18 December 1986, A.111, p. 19, the Akdivar Case, Judgment of 15 September 1996, 15 Reports 1996–IV, para. 68, the Dankevich Case, Judgment of 29 April 2003, para. 107; the Dogan and Others Case, Judgment of 29 June 2004, para. 102. EComHR decisions of interest are, e.g., Appl. 14461/88, Chavé née Julien v. France, 71 D&R (1991) at p. 153, Appl. 17599/90, Kelly v. UK, 74 D&R (1993) at p. 144. 220 See Appl. 15213/89, M v. Belgium, 71 D&R (1991) at p. 234 for the reason for the rule which is based on the fact that the longer the delay the more difficult the establishment of facts becomes. 221 Appl. 214/56, De Becker v. Belgium, 2 YBECHR p. 236. 218 219

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six-months period began to run not from the date of the first commission of the injury but from the date of the entry into force of the European Convention for the defendant state and the acceptance by it of the right of individuals to apply to the Commission under Article 25 of the Convention. As a result the application was held to have been filed in time. There are many cases in which the Commission has applied the principle that the terminus a quo for the running of the six-months period is the final decision in the last “effective and sufficient” remedy. This prevents the applicant from resorting to remedies which are not effective and sufficient after such a final decision, with the result that the running of time may be delayed. In X v. FRG the Commission said that the remedies to be taken into account were: those which are capable of providing an effective and sufficient means of redressing the wrongs which are the subject of the international claim; . . . it is for the Commission itself to appreciate in the light of the particular facts of each case whether any given remedy at any given date appears to have offered to the applicant the possibility of an effective and sufficient remedy for the wrong of which he complains and, if not, to exclude it from consideration in applying the six-months time-limit in Article 26.222

In X v. UK223 the Commission held that the final decision to be considered for the running of the six-months period was the decision in the applicant’s unsuccessful appeal to the Court of Criminal Appeal and not the subsequent refusal of an order of habeas corpus which occurred as a result of the applicant’s resort to this remedy. As a result the application was found to have been filed out of time.224

Appl. 645/59, 7 Coll. at pp. 4–5. See also Appl. 968/61, X v. FRG, 8 Coll. at p. 27. 223 Appl. 3505/68, 29 Coll. at pp. 62–3. 224 There are several other cases in which the Commission has had to determine which decision was the final decision on the basis of effectiveness or the absence of it for the purposes of the running of time: see, e.g., Appl. 512/59, X v. Belgium, 1 Coll. p. 4, Appl. 1216/61, X v. FRG, 11 Coll. p. 5, Appl. 2694/65, 222

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In many cases the Commission has been faced with the problem of reopening a case for retrial. In Nielsen v. Denmark,225 for instance, the Commission held that the decision of the Special Court of Revision of Denmark given after the decision of the Danish Supreme Court was the terminus a quo for the running of time because the remedy before the Special Court of Revision offered the applicant an opportunity of an effective and efficient means of redress. On the other hand, in X v. Denmark,226 which came later before the Commission, it held that recourse to the Special Court of Revision did not in the applicant’s particular case afford an effective and sufficient remedy and the decision of that court could therefore not be considered in determining the point from which the six-months period began to run. In circumstances such as these the Commission has consistently applied the test of effectiveness of the local remedies concerned in determining whether they could be considered as the terminus a quo for the running of time.227

X v. FRG, 23 Coll. p. 97, Appl. 3893/68, X v. Sweden, 33 Coll. p. 10, Appl. 3972/69, X v. Austria, 37 Coll. at pp. 19–20, Appl. 4475/70, X v. Sweden, 42 Coll. p. 13, Appl. 5560/72, X v. Austria, 45 Coll. p. 64. In cases where there is no remedy, for example, the running of time would commence from the time at which the applicant was actually affected and the time limit cannot be deferred, for example, by lodging a request for pardon, applying to an incompetent organ or asking for reopening of the case: see, e.g., Appl. 8440/78, the Christians against Racism and Fascism Case, 21 D&R (1981), at p. 147, Appl. 10230/82, X v. Sweden, 32 D&R (1983) p. 303, Appl. 10308/83, Altern v. FRG, 36 D&R (1984) p. 209. See also now the Dogan and Others Case, Judgment of 29 June 2004, para. 113, Toth Case, Judgment of 12 December 1991, para. 82 – for the inapplicability of the six-month rule. 225 Appl. 343/57, Report of the Commission at pp. 32–9. 226 Appl. 4311/69, 37 Coll. at p. 96. 227 See, e.g., Appl. 918/60, X v. FRG, 7 Coll. p. 110, Appl. 1739/62, X v. Sweden, 13 Coll. p. 102, Appl. 3591/68, X v. Austria, 31 Coll. p. 46. On the exact terminus a quo which may vary given the particular circumstances of the case, see, e.g., Appl. 9991/82, Bozano v. Italy, 39 D&R (1984) p. 147, Appl. 14056/88, the Aarts Case, 70 D&R (1991) p. 208, Appl. 9908/82, X v. France, 32 D&R. (1983) p. 266, Appl. 10899/84, C v. Italy, 31 YBECHR (1988) at p. 37. For recent cases on the terminus a quo before the ECHR see, e.g., the Venkadajalasarma Case, Decision of 9 July 2002; the Keskin Case, Decision

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The continuing situation has also been the focus of attention in connection with the determination of the terminus a quo for the application of the six-months rule. The Commission has taken a rather flexible approach in this regard, on the basis that restrictive provisions such as those which imposed a time-limit on the filing of applications could not be interpreted broadly.228 In De Becker v. Belgium, where the applicant was complaining of a continuing state of affairs which infringed his rights, the Commission said: when the Commission receives an application concerning a legal provision which involves a permanent state of affairs for which there is no domestic remedy, the problem of the six-months’ period specified in Article 26 can arise only after this state of affairs has ceased to exist; . . . in the circumstances, it is exactly as though the alleged violation was being repeated daily, thus preventing the running of the six months’ period.229

As a result of this approach, the Commission has held that in a continuing situation, where the applicant had no domestic remedy to which he might resort, the six-months rule is not rigidly applicable.230 There may be circumstances, however, in which the Commission will not reject the objection based on non-exhaustion of domestic remedies on these grounds. Although rejection of such an objection is not automatic, it will only be for good reasons that the Commission will uphold it. In X v. Austria231 the applicant contended of 7 September 1999; the Pejic Case, Decision of 19 December 2002; the Çelik Case, Decision of 23 September 2004; the Papageorgiou Case, Judgment 22 October 1997, para. 32; the Monory Case, Decision of 17 February 2004; the Züleyha Yilmaz Case, Decision of 9 April 2002. 228 See Appl. 214/56, De Becker v. Belgium, 2 YBECHR at p. 238. 229 Appl. 214/56, 2 YBECHR at p. 238. See now Appl. 14807/89, Agrotexim Hellas S.A. v. Greece, 35 YBECHR (1992) at p. 46, and van Dijk and van Hoof, op. cit. note 1, pp. 160–2. 230 See, e.g., Appl. 1474/62, 23 Inhabitants of Alsemberg and of Beersel v. Belgium, 11 Coll. at pp. 57–8, Appls. 3321–3323/67, 3344/67, Denmark/Norway/ Sweden/Netherlands v. Greece, 12 YBECHR at p. 778, Appl. 4517/70, Huber v. Austria, 38 Coll. at p. 113, Appl. 6181/73, X v. FRG, 46 Coll. at p. 196. 231 Appl. 6317/73, 2 D&R at pp. 87–8. See also now on the “continuing

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that the delay in filing was due to his ill-health and morale during the period at issue. The Commission found that he had not produced evidence to support these contentions, and therefore had not filed his application within the required six-months period. The Commission has on occasion examined the question whether the running of time under the six-months rule could be interrupted or suspended as such. There are cases in which the Commission has proceeded on the basis that the running of time may be suspended or interrupted, and has examined the question whether there were any justifying circumstances.232 More recently the Commission and the Court have absolved the applicant from observing the six-month rule because of special circumstances.233 The Commission has in many cases determined the final decision from which time began to run. Thus, in Krzycki v. FRG,234 it was held to be the decision dismissing a claim for compensation, while in X v. Norway,235 the relevant decision, in criminal proceedings, was found to be the decision on the last appeal against conviction. There is also the question of the terminus ad quem in relation to the six-months rule. The Commission has held that this was the date of filing of the pleading with the Secretary General of the Council of Europe.236

situation” the Iatridis Case, Judgment of 25 March 1999, the Malama Case, Judgment of 1 March 2001, para. 35 particularly, the Koval Case, Decision of 30 March 2004. 232 See, e.g., Appl. 613/59, X v. Belgium, 3 Coll. p. 2, Appl. 3071/67, X v. Sweden, 26 Coll. p. 76, Appl. 4149/69, X v. FRG, 36 Coll. p. 67. Recently the Court held that the filing of a letter could effectively be the terminus ad quem: Buscarini v. San Marino, Judgment of 28 July 1999, 38 ILM at p. 742. 233 See the Toth Case, Judgment of 12 December 1991, 34 YBECHR (1991) p. 258, A.224 at pp. 22–3. 234 Appl. 7629/76, 9 D&R at pp. 175 ff. 235 Appl. 6930/75, ibid. at pp. 37 ff. 236 See Appl. 1468/62, X v. Norway, 12 Coll. at pp. 104–5. The rule was derived from the Rules of Procedure of the European Commission. See on this aspect van Dijk and van Hoof, op. cit. note 176, pp. 156 ff.

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The Convention does not address the mater of interim measures in urgent cases. However, Rules 39, 40 and 41 of the Rules of Court do. Clearly, the ECHR has assumed the jurisdiction to order interim measures, whatever the effect of such measures, by reference to inherent powers. The Rules of Court now regulate the matter. The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of his own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it. Notice of these measures is given to the Committee of Ministers.237 In any case of urgency the Registrar, with the authorization of the President of the Chamber, may, without prejudice to the taking of any other procedural steps and by any available means, inform a contracting party concerned in an application of the introduction of the application and of a summary of its objects.238 Finally, in urgent cases the Chamber or its President may decide to give priority to a particular application, thus derogating from its normal procedure, according to which applications are dealt with in the order in which they become ready for examination.239 In the Cruz Varas Case the Court dealt with the question whether the failure to comply with the Commission’s indication of an interim measure amounted to a violation of Sweden’s obligation under Article 25 (present Article 34) not to hinder the effective exercise of the right of individual petition. The Court took the position that the Convention did not contain any provision empowering the Convention organs to order interim measures.240 The Court noted, however, that the practice of states revealed almost total compliance with the indications of interim measures. Further, the Court thought that no assistance could be derived from general principles 237 238 239 240

Rule 39 of the Rules of Court. Rule 40 of the Rules of Court. Rule 41 of the Rules of Court. Judgment of 20 March 1991, para. 102.

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of international law since no uniform legal rule existed on the matter. Accordingly, the Court found that the power to order binding interim measures could not be inferred from Article 25 (present Article 34) or from other sources. In two subsequent cases, namely the Mamatkulov and Abdurasulovic Case241 and the Ocalan Case,242 the Court changed its position and held that its interim measures under Rule 39 of the Rules of Court are legally binding. In the Mamatkulov and Abdurasulovic Case the Court held for the first time that a state party to the Convention to which interim measures have been indicated in order to avoid irreparable harm being caused to the victim of an alleged violation must comply with those measures and refrain from any act or omission that will undermine the authority and effectiveness of the final judgment. Both cases were referred to the Grand Chamber of the Court for a ‘re-hearing’ by virtue of Article 43 of the Convention. In the Mamatkulov and Abdurasulovic Case, the Grand Chamber agreed with the line of reasoning of the Chamber and also found that Turkey had failed to comply with its obligations under Article 34.243 The ECHR, it would appear, has not had occasion to pronounce on the question whether it must be made out that prima facie it has jurisdiction in the case before it orders interim measures. REMEDIES The judgments of the ECHR cannot by themselves repeal inconsistent national legislation or judgments.244 This remedy is not within the jurisdiction of the court. But authority to provide just satisfaction is given to the Court by Article 41 of the Convention which Decision of 13 March 2001. See also in the same case, Judgment of 6 February 2003, paras. 1–5, 25–36, 93–111. 242 Judgment of 12 March 2003, para. 241. 243 Judgment of 4 February 2005, para. 132. For details of the practice where interim measures are requested see van Dijk, op. cit. note 1 pp. 113–21. 244 Marckx v. Belgium, Judgment of 13 June 1979, Series A, No. 31, para. 58. 241

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provides that, if the Court finds that there has been a violation of the Convention the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. On finding of a breach, the Court may only award compensation and grant legal costs. In regard to compensation, the Court has made awards under two heads – pecuniary and non-pecuniary damage (e.g., loss of past and future earnings, loss to property, and loss of opportunity)245 and costs and expenses.246 The Court does not have jurisdiction to award specific relief. For example, in the Salcuk and Asker Case247 the applicants made a request to be re-established in a village. The Court refused to grant the request. REOPENING CASES There is a limited possibility of a case being referred to the Grand Chamber after it is decided by a Chamber or during the proceedings before the Chamber.248 The Grand Chamber has competence both with regard to inter-state applications when they are referred to it under Article 30 or Article 43 of the Convention as well as with regard to individual applications when they are referred to it under the same Articles. In cases with specified serious implications a Chamber will be able to relinquish jurisdiction proprio motu in

Losses flowing from the violation in question alone will be redressed, see Appl. 35605/97, Kingsley v. United Kingdom, Judgment of the Grand Chamber of 28 May 2002, 35 EHRR (2002) p. 177, particularly para. 43. 246 On costs and expenses see Kingsley v. United Kingdom, ibid. para. 49. 247 Judgment of 24 April 1998. On the adequacy of the jurisdiction of the ECHR to grant relief see Shelton, Remedies in International Human Rights Law (2005) pp. 189–92. See also Mobray, “The European Court of Human Rights’ Approach to Just Satisfaction”, Public Law (1997) p. 647; van Dijk, op. cit. note 1, pp. 261–79. 248 See on the role of the Grand Chamber in this regard van Dijk, ibid. pp. 237–40. 245

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favour of the Grand Chamber at any time, as long as it has not yet rendered judgment, unless one of the parties to the case objects.249 Further, after a judgment has been rendered by a Chamber, any of the parties may request that the case be referred to the Grand Chamber for a re-hearing.250 In accordance with Article 30 of the Convention, where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention and the Protocols thereto or where the resolution of a question before it might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case has objected pursuant to Rule 71(2). Reasons need not be given for the decision to relinquish.251 Conferring a veto right on the parties does keep open the possibility for their case to be reviewed later in another instance. However, the objection against relinquishing of jurisdiction has to be duly reasoned; otherwise it will be considered invalid.252 In accordance with Article 43(1) of the Convention within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber. A re-hearing the case, as envisaged in Article 43, will take place only exceptionally, when a case raises a serious question affecting the interpretation or application of the Convention or serious issue of general importance.253 The party must specify in its request the serious question affecting the interpretation or application of the Convention or the Protocols thereto, or the serious issue of general importance, which in its view warrants consideration by the Grand Chamber.254

249 250 251 252 253 254

Rule 72(1) of the Rules of Court. Rule 73 of the Rules of Court. Rule 72(1) of the Rules of Court. Rule 72(2) of the Rules of Court. Article 43(2) of the Convention and Rule 73(2) of the Rules of Court. Rule 73(1) of the Rules of Court.

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According to the Explanatory Report to Protocol No. 11 serious questions affecting the interpretation of the Convention are involved when a question of importance not yet decided by the Court is at stake, or when the decision is of importance for future cases and for the development of the Court’s case-law. Moreover, a serious question may be particularly evident when the judgment concerned is not consistent with a previous judgment of the Court. A serious question concerning the application of the Convention may be at stake when a judgment necessitates a substantial change of national law or administrative practice but does not itself raise a serious question of interpretation of the Convention. A serious issue of general importance could involve a substantial political issue or an important issue of policy.255 A request for a re-hearing may concern the admissibility as well as the merits of a case. A request may also be made if a party to the case has a disagreement with respect to a judgment concerning the award of just satisfaction under Article 41 of the Convention.256 A panel of five judges of the Grand Chamber decides on the acceptance of the request. If the request is accepted, the Grand Chamber has to make the final determination as to whether the Convention has been violated. If the conditions for a request of referral are not met, the panel rejects the request and the Chamber’s judgment becomes final. It will accept the request only if it considers that the case does raise a serious question as defined in Article 43(2). In practice it seems to be difficult to have a case be referred to the Grand Chamber.257 In the Pisano Case the question whether the decision to accept a request for referral by the panel of five judges could be reviewed by the Grand Chamber was decided in negative. The Grand Chamber noted that neither the Convention nor the Rules of Court empowered it to review a decision by the panel to accept a request for a rehearing. It pointed out that the terms of Article 43(3) of the Convention Explanatory Report to Protocol No. 11, paras 100–102. See the Kingsley Case, Judgment of 28 May 2002, para. 7. 257 Grand Chamber, Annual Activity Reports 2000–2003, show that only 26 requests were accepted between 1 January 2000 and 31 December 2003. 255 256

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provided that, if the panel accepted the request, the Grand Chamber must decide the case by means of a judgment and, thus, made it clear that, once the panel had accepted a request for a rehearing, the Grand Chamber had no option but to examine the case.258 The possibility of reopening a case by the same chamber could occur where (i) (ii) (iii) (iv)

an interpretation is sought; there is fraud or corruption; rectification of clerical errors is sought; or revision is sought on the discovery of a new fact.

The European Convention does not deal with any of these situations. However, it must be recognized that in regard to all of them international tribunals have an inherent jurisdiction to reopen cases.259 While this jurisdiction has not been disputed, before the ECHR only the cases of interpretation and discovery of new facts have been litigated. In regard to interpretation, Rule 79 of the ECHR Rules of Court recognizes the possibility of acceding to a request for interpretation. In the Ringeisen Case the matter of interpretation was discussed and interpretation was recognized as within the inherent jurisdiction of the Court.260 The Court dealt with the argument that its assuming jurisdiction to interpret a previous judgment might be contrary to the Convention – the Convention being silent on the matter. However, it pointed out that Article 52 (present Article 42) which provided for finality of judgments was intended to exclude appeal to another authority and that requests for interpretation are not appeals.

Judgment of 24 October 2002, para. 26. On reference to the Grand Chamber see van dijk, op. cit. note 1 pp. 237 ff. 259 See discussion in C.F. Amerasinghe, Jurisdiction of International Tribunals (2003) pp. 479–91 (interpretation ), 474–7 (fraud or corruption), 477–9 (rectification), 454–6 (discovery of new facts). The jurisdiction is inherent to the extent that it is not explicitly curtailed or taken away in the instrument governing jurisdiction. 260 Judgment of 23 June 1973, paras. 12–15. 258

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At the same time the Court has made it clear that requests for interpretation were only to be entertained, if they were addressed to clarification of the meaning and scope of judgments and not otherwise. In two significant cases the Court has held that the judgment of which interpretation was sought were quite clear and, therefore, the requests had to be rejected because no interpretation was involved.261 Now it is also proper to mention the provisions of protocol 14 (not in force yet) which empowers the Committee of Ministers to seek interpretation of a judgment in order to facilitate execution of the judgment. Rule 80 of the rules of the ECHR states in effect that a case may be reopened, where a new fact is discovered which could not reasonably have been known to the party, nor was known to the Court, at the time of the judgment, provided the request for reopening is made within six months of the fact being discovered by the party. Pursuant to this provision, as of February 2005, there have been eight cases in which requests for reopening have been allowed262 and four cases in which such requests have been dismissed.263 CONCLUDING OBSERVATIONS Under the old system after an application had been declared admissible by the Commission and attempts to reach a friendly settlement had failed, within a period of three months from the date on which the Commission had transmitted its report to the Committee or Ministers, the case could be referred to the European Court of Human Rights (Articles 32(1) and 47). The following could bring

See the Allenet de Ribemont Case, Judgment of 7 August 1996, para. 23, where it was stated that the earlier judgment (Judgment of 10 February 1995, para. 23) was quite clear and no interpretation was involved; the Hentrich Case, Judgment of 3 July 1997, paras. 14–16. On interpretation as means of reopening a case see also van Dijk, op. cit. note 1 pp. 279–82. 262 See van Dijk, op. cit. note 1 p. 283, note 781. 263 See van Dijk, ibid. note 762. Rule 80 may be compared with Article 61 of the Statute of the ICJ. 261

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a case before the Court: (i) the Commission, (ii) the contracting state of which the alleged victim was a national, (iii) the contracting state which had brought the case before the Commission, and (iv) the contracting state against which the complaint had been directed (Article 48), (v) in the appropriate case (under Protocol 9) the individual applicant. The main aspects of the new post-Protocol-11 convention are the following. (i) The present part-time monitoring institutions, namely the European Commission of Human Rights and the European Court of Human Rights, ceased to exist. A new European Court of Human Rights, operating full-time, was set up in Strasbourg. (ii) All applicants will have direct access to the new Court. (iii) All allegations of violations of the Convention will be referred to the Court, including all inter-state cases. (iv) The right of individual application and the jurisdiction of the Court will no longer be of an optional character. The jurisdiction of the Court is compulsory. The Court under the previous regimen did decide questions of admissibility proper in addition to questions of competence, so that its decisions in this regard became precedents. Nevertheless, the Court could only do this, if the Commission had held that the application was admissible because otherwise the case could not have come to the Court, so that it did not have complete control over the examination of all cases. Now the Court controls the examination of all cases on matters of jurisdiction completely, subsequent to abolition of references to the Commission. The decisions of the Commission relating to both competence proper and admissibility proper (even though these were not sometimes distinguishable) will still, however, be relevant for the Court’s work, as far as principles go, because the provisions relating to the jurisdiction, i.e., in relation to both competence and admissibility, of the new Court have some similarity to those that covered the jurisdiction of the Commission and of the Court, taken together, under the old system. Protocol 14 which has not yet come into force would change the procedure. The protocol will introduce a new admissibility criterion to the criteria laid down in current article 35. Article 35(3) would then read:

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Chapter 6. The European Court of Human Rights The Court shall declare inadmissible any individual application submitted under article 34 if it considers that: a. the application is incompatible with provisions of the convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or b. the applicant has suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.

7 ARBITRAL TRIBUNALS OF THE INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES

THE INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES (ICSID) IN CONTEXT The problem for developing countries particularly is how to harness foreign investment for their own development, and at the same time, limit the capacity and potential of foreign investors, especially multinational corporations (MNCs), for unlimited exploitation and influence. Clearly, as pointed out by the Report of the Group of Eminent Persons in 1974, there remains much to be done substantively through the medium of the international convention and international organization, both to promote the role of foreign investment, particularly through the MNC, in development and to control the operations of the MNC in such a way as to ensure maximum protection and benefit for the host state’s economy.l However, 1

See Report of a Group of Eminent Persons, The Impact of Multinational

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no system of controls or protection would be complete or effective without machinery for the settlement of disputes between investors and host countries.2 It was to provide such machinery that the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)3 was conceived and the International Centre for Settlement of Investment Disputes (ICSID) was established.4 International transactions, including investment transactions, are governed by legal regulation at the private level, as amongst the parties themselves, generally through contracts, at the national level, by the law of the national and host states involved in the transaction, and at the international level, by international legal norms which primarily bind states while impacting also private foreign corporations and individuals. The drawbacks as perceived by foreign investors of settlement by domestic courts, whether real or not, are well known.5 Arbitration with a private international character instituted purely between parties also has real weaknesses.6 The ICSID Convention was designed to take care of some of the concerns generated by the existing state of affairs. The fear of political risks undoubtedly operates as a deterrent to the flow of priCorporations on the Development Process and on International Relations, 13 ILM (1974) p. 800. For a discussion of private foreign investment as a fact of international life, see C.F. Amerasinghe, State Responsibility for Injuries to Aliens (1967) pp. 7 ff. 2 The Report referred to does mention The International Centre for Settlement of Investment Disputes as a mechanism for the settlement of disputes between multinational corporations and host states: loc. cit. note 1. 3 [1996] 575 UNTS 159 (the ICSID Convention). The Convention was concluded in 1965. There is a bibliography which is, as far as is known, kept current on ICSID’s website: <www.worldbank.org/icsid>. 4 Report accompanying the Convention at p. 16 (para. 9). Hereafter referred to as the Report. See also ibid. at p. 4 (para. 12). 5 See Hirsch, The Arbitration Mechanism of the International Centre for the Settlement of Investment Disputes (1993) p. 8 ff. 6 See, inter alia, Transnational Contracts, Law and Practice (1998) pp. 199 ff., 337, 342, where the international multilateral conventions on enforcement of awards are discussed. See also David, Arbitration in International Trade (1985) pp. 396 ff.

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vate foreign capital to developing countries. In an attempt to overcome difficulties, an important solution to problems was seen to lie in arrangements, embodied in a treaty, ensuring that arbitration agreements voluntarily entered into would be implemented,7 and awards carried out. In general the ICSID Convention8 requires for arbitration under its auspices that (1) the host state and the national state of the foreign investor be parties to the Convention, i.e., have consented to the ICSID system, and (2) there be consent to submit to the arbitration system of ICSID on the part of both the host state and the investor, while there are some other requirements which are as basic and which must be satisfied. The Convention provides in Articles 36 to 55 for arbitration. Parties to arbitration proceedings must “abide and comply with the terms of the award” and there are provisions for enforcement of awards. Arbitration proceedings are administered by ICSID, an international institution created by the Convention that has its seat in Washington, D.C. ICSID is essentially a secretariat. ICSID does not itself arbitrate. The proceedings are conducted by arbitrators appointed in accordance with the provisions of the Convention, and the parties themselves have broad discretion.9 However, a failure of agreement on their part will not thwart the constitution of an arbitral tribunal. If the parties have failed to appoint the tribunal within ninety days after registration by the Secretary-General of the request for arbitration, the remaining designations will be made by the Chairman of the Administrative Council of the ICSID (Article 38). See David, ibid. pp. 395 ff. Rubino-Sammartano, International Arbitration Law (1990) pp. 495 ff. 8 For the legislative history of the Convention see International Centre for Settlement of Investment Disputes, Convention on the Settlement of Investment Disputes Between States and Nationals of Other States – Analysis of Documents Concerning the Origin and the Formulation of the Convention (1970) [hereafter cited as History]. Not all ICSID cases are published. Publication requires the consent of all parties to a case. 9 ICSID Convention, Art. 44. 7

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The jurisdiction of arbitral tribunals set up under the auspices of the ICSID, which is discussed here, is of a special nature. The Convention provides that arbitral tribunals shall be the judges of their own competence and this competence has never been questioned. The Convention also provides for an award to be rendered notwithstanding the default of one of the parties. Subject to remedies by way of review (Articles 50–52) provided by the Convention itself, the award is final and binding on the parties (Article 53).10 The Convention affords private persons the only institutionalized international forum for litigating with states and its jurisdictional requirements concerning nationality are less restrictive than those of the nationality of claims rule.11 Also, private persons may invoke the jurisdiction of the ICSID against state organs and constituent subdivisions.12 Further, private investors are in a position, though to a lesser extent than states, to secure execution of an arbitral award against their adversaries.13 Another feature rests in the fact that the clause dealing with settlement of disputes by the ICSID in an agreement between host state and investor is firmly rooted in international law because of the coverage of the ICSID Convention. The parties would be certain, pursuant to Articles 44 and 42(2), that any proceeding properly instituted under the auspices of the ICSID would actually take place and, in the case of arbitration proceedings, result in due course in an arbitral award. The ICSID Convention refers to consent as a required basis of jurisdiction. As will be seen, consent has two aspects but the

Furthermore, each contracting state must recognize an award rendered pursuant to the Convention as binding, regardless of whether it, or one of its nationals, was a party to the dispute, and must treat the pecuniary obligations of the award, upon its certification by the Secretary-General of ICSID, as if they were a final judgment of a court in that state. Moreover, they must enforce them as such (Article 54), subject to any exceptions permitted by its law on the ground of sovereign immunity (Article 55). There are special provisions for enforcement in federal states (Article 54). 11 ICSID Convention, Art. 25(2). 12 ICSID Convention, Art. 25(1) and (3). 13 ICSID Convention, Arts. 54, 55. 10

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requirement of consent is in keeping with the fundamental principles of international adjudication. Beyond consent there are certain institutional limits imposed by the Convention itself on the jurisdiction of an arbitral tribunal, which are as basic and important. The provisions of the Convention specify in addition to consent broadly three other requirements which must be satisfied, if an arbitral tribunal constituted under the Convention is to have jurisdiction. These are reflected in Article 25 of the Convention.14 There are two institutional requirements under Article 25 which come under the head of jurisdiction ratione materiae: the dispute must be a legal dispute and it must arise directly out of an investment. The third requirement concerns the nature of the parties. One party must be a state (or one of its constituent subdivisions or agencies), while the other party must be a foreign national. This condition concerns jurisdiction ratione personae. There are two other sources of jurisdictional limitation which need to be mentioned. First, under Article 25(4) a state party to the Convention may at the time it becomes a party or at any time thereafter specify the class or classes of disputes it would submit to the Centre. Second, there may be exclusionary provisions in the consent given by a party to a dispute to submission of disputes to the Centre. The latter clearly may be overridden by a later act of unilateral or other consent but, as long as the exclusions remain unchanged, they would constitute jurisdictional limitations on an arbitral tribunal. All these jurisdictional limitations and requirements relate to competence, not to recevabilité. What is of concern here is the institutional structure of the jurisdictional setup, not limitation imposed by specific agreements between the parties or between states, such as bilateral investment treaties (BITs).

On Article 25 see Schreuer, The ICSID Convention: A Commentary (2001), pp. 82–344. This is a commentary. 14

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The general approach to interpretation of jurisdictional instruments has been discussed in Chapter 4 of my earlier treatise.15 Significantly, in connection with ICSID arbitration, in the Amco Arbitration16 the tribunal in effect took the view that there was no presumption in interpreting the jurisdictional provisions of the ICSID Convention that these should be restrictively interpreted, but that they should be interpreted so as fully to respect the common will of the parties and the principle pacta sunt servanda. While it is true that an international tribunal, particularly in relation to sovereign states, is a jugé d’exception, it is also true that jurisdictional clauses must be interpreted teleologically – ut magis valeat quam pereat – so as to sustain as far as reasonably possible the existence of jurisdiction.17 The tribunal was correct in emphasizing that a broad interpretation of a jurisdictional clause is also not contemplated, although, if a restrictive approach is not adopted, one school of thought would have it, not necessarily correctly, that what is left is a broad and liberal approach. The tribunal was, thus, justified in trying to establish a via media and in stating that (i) the intrinsic object is to establish the common will of the parties and (ii) the principle of good faith should be applied. Clearly these principles of interpretation which are acceptable, though not exclusively complete, apply both to the construction of the ICSID Convention and to arbitration clauses submitting disputes to settlement. The approach taken by the tribunal in its interpretation would lead an analyst to affirm three basic principles.18 First, consent

Jurisdiction of International Tribunals (2003), chapter 4. 23 ILM (1984) p. 351 (Amco v. Indonesia). 17 Free Zones of Upper Savoy and the District of Gex (1929) PCIJ Ser. A No. 22, at p.13. See also Lauterpacht, “Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties” 26 BYIL (1949) at pp. 48, 65, 71. 18 C.F. Amerasinghe, “Jurisdiction Ratione Personae under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States”, 47 BYIL (1974–5) p. 227 at p. 229 particularly. 15 16

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between the parties to the arbitration is very important for ICSID tribunals.19 One result of this is that, where the parties agree that a requirement of jurisdiction relating to the nature of the parties set down in the jurisdictional clauses of the Convention is satisfied such agreement would prima facie be respected, provided such agreement does not conflict either expressly or implicitly with the terms of the Convention. This also means that, where the parties agree to submit disputes to an ICSID tribunal’s jurisdiction, there is a presumption, clearly rebuttable though it is, that these jurisdictional requirements have been satisfied. Second, where there is an agreement submitting disputes to an ICSID tribunal the requirements of the ICSID Convention must be interpreted as defining the circumscribing parameters of an ICSID tribunal’s jurisdiction, while leaving room for legitimate agreement. Third, as a consequence of these two principles, where there is an agreement to submit to ICSID arbitration, there is arguably a presumption in favorem jurisdictionis of an ICSID tribunal which has to be displaced. This third principle is further supported by the course of action relating to jurisdiction taken by the tribunals in the Amco Arbitration and some more recent arbitrations.20 The principle, however, is tempered in its application by reference to the statement made by the tribunal in the Amco Arbitration which espoused a via media requiring interpretation to be neither liberal nor restrictive, and which precludes too broad and unlimited an interpretation of the principle.21 An important question that arises relates to the use of the preparatory work of the ICSID Convention in interpreting particularly the jurisdictional provisions of the Convention. The Vienna Convention

See Broches, “The Convention on the Settlement of Investment Disputes between States and Nationals of Other States” 136 Hague Receuil (1972) at p. 351. This writer uses the term “cornerstone of the jurisdiction” which is also to be found in the Report, at p. 8, para. 23. 20 See particularly, Societe Ouest Africaine des Betons Industriels v. Senegal, 6 ICSID Review – Foreign Investment Law Journal (1991) p. 215 (SOABI Arbitration), and Liberian Eastern Timber Corporation v. Liberia, 26 ILM (J987) p. 647 (LETCO Arbitration). 21 23 ILM (1984) at pp. 359 ff. 19

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on the Law of Treaties of 1969 makes it clear in Article 32 that resort to the preparatory work is essentially a subsidiary means of interpretation and permissible only when (i) the text is ambiguous or obscure or (ii) the meaning given to the text by the application of the primary rules of interpretation leads to manifest absurdity or a manifestly unreasonable position. This provision reflects the better view of the pre-existing customary law. Since the ICSID Convention predates the Vienna Treaty Convention, it creates difficulty as to the position to be taken in relation to the interpretation of the ICSID Convention. On the other hand, the position taken in the Vienna Treaty Convention seems to have been that of the PCIJ and ICJ prior to the Convention, the approach of which demonstrated that the Court was reluctant to resort to the preparatory work, where the text was clear, except to support the interpretation given.22 Indeed, there is no evidence that the preparatory work has ever been used to controvert a meaning which is taken to be clear. Preparatory work in any event can only be relevant where it reveals a common intention of the parties to the ICSID Convention.23 Thus, in the case of the ICSID Convention the application of this principle would strictly exclude the records of the work of the Legal Committees which were not intended to be composed of properly accredited government representatives, even if a common intention could appropriately be found, which is usually a difficult task anyway. As for the commentary attached to the Convention which was apparently approved, though not specifically, by consensus together with the Convention by the representatives of member states of the World Bank on the Board of Governors, the question really is, as already pointed out, how far what is said in the commentary can change the explicit meaning of the text of the Convention. While the See McNair, Law of Treaties (1961) at pp. 412 ff. For an interesting, accurate, but somewhat brief discussion of the problems connected with preparatory work see Sinclair, The Vienna Convention on the Law of Treaties (1984) pp. 141 ff. See also C.F. Amerasinghe, op. cit. note 15, chapter 4, for further discussion of the relevance of travaux préparatoires. 23 See Roumanian Minister of War v. Turkish Government [1928], Case No. 297, AD 1927–8 at p. 433. 22

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views expressed therein may be regarded as “agreed”, so that they conceivably reflect a common intention, it is not possible that they can change the ordinary and clear meaning of the text as construed by reference to the primary methods of interpretation, where there may appear to be a conflict. What is said above becomes relevant in establishing the true relationship between consent of the parties to a dispute brought to the ICSID and the fundamental restrictions contained in the earlier part of Article 25(1) of the ICSID Convention, which is discussed below. LA COMPÉTENCE

DE LA

COMPÉTENCE

Article 41(1) of the ICSID Convention states unequivocally that an ICSID tribunal “shall be a judge of its own competence”. Article 41(2) describes the procedure to be followed in regard to challenges to jurisdiction. In keeping with Article 41(1) registration by the Secretary General of ICSID of a case has never been regarded as precluding a finding that it has no jurisdiction by a tribunal.24 In practice the tribunal may raise proprio motu the question whether it has jurisdiction. This was done in SPP v. Egypt,25 for example. On the other hand, the tribunal is not compelled before proceeding with the merits to establish that it has jurisdiction, if no objections to it are raised. This was the procedure followed in, for example, MINE v. Guinea.26 Insofar as the ICSID Convention provides in Article 52 for annulment of an award, where the tribunal “has manifestly exceeded its powers”, the question arises whether an award may be annulled on the ground that the tribunal had no compétence and, therefore, See Schreuer, op. cit. note 14, pp. 524–5. Arbitration Rule 41 describes the procedure for raising objections to jurisdiction. 25 (1985), 3 ICSID Reports p. 120. For other cases supporting this practice see Schreuer, op. cit. note 14 p. 534 note 54. 26 (1988), 4 ICSID Reports p. 76. There were annulment proceedings in this case – (1989), 4 ibid. p. 80 at footnote 1. See also AAPL v. Sri Lanka (1990), 4 ibid. p. 251. 24

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had exceeded its powers. Clearly, where the tribunal has addressed the issue of jurisdiction and found that it has jurisdiction, the award may be annulled, if the ad hoc annulment committee established under Article 52(3) finds that the tribunal had manifestly exceeded its powers in finding that it had compétence. However, where the issue of compétence has not been litigated before the tribunal, the position may be complicated by the possibility that there was a forum prorogatum by the respondent, because it failed to raise the issue of compétence and, therefore, had consented to the jurisdiction of the tribunal. This point concerns implied consent to jurisdiction and is discussed below. There are cases in which the tribunal has addressed directly the issue whether it has la compétence de la compétence, insofar as it has, inter alia, adverted to the fact that there was “no dispute as to the competence of this tribunal to decide on the jurisdictional challenges” brought by the respondent state.27 PRIMARY JURISDICTION (COMPÉTENCE) (i) Consent There are two aspects to the requirement of consent. (a) First, in so far as Article 25(1) requires a dispute submitted to an ICSID tribunal to be “between a Contracting State . . . and a national of another Contracting State”, both the state party to the dispute and the national state of the other party must have agreed to the jurisdiction of ICSID tribunals by becoming parties to the Convention. In other words, there must be a consent to arbitration between the states directly or indirectly related to the dispute, as parties to the ICSID Convention. The requirement of consent between states does not mean that, at the time the second requirement of consent between the actual parties to the dispute dealt with below is satisfied, the concerned states should already have given their consent to the exercise of 27

See, e.g., the Saipem Case (2007), <www.worldbank.org/icsid>, para. 71.

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jurisdiction by an ICSID tribunal. That consent could be given before or after the second requirement is satisfied but must clearly be given before the dispute is brought before an ICSID tribunal. While the ICSID Convention does not specifically deal with this situation, it is a reasonable interpretation – ut magis valeat quam pereat – that what is required under the Convention is that the two sets of consent be coexistent at the time the relevant dispute is submitted for settlement to ICSID. In connection with the consent to ICSID’s jurisdiction between the relevant states a question that arises is whether consent once given may be withdrawn. The Convention specifically states in Article 71 that the Convention may be denounced by a contracting state by written notice. The problem is whether such a denunciation, when it takes effect, can have an impact on the consents given inter se by potential parties to a dispute by depriving the latter consents of effect, because there is no longer consent to ICSID’s jurisdiction between the relevant contracting states. Article 72 of the Convention addresses this problem by providing that such notice of denunciation by a contracting state “shall not affect the rights or obligations under the Convention of that state or of any of its constituent subdivision or agencies or of any national of that state arising out of consent to the jurisdiction of the Centre given by one of them before such notice” was given. The general principle of customary law, as stated in Article 42 of the 1969 Vienna Convention on the Law of Treaties, is that “the termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty . . .” Consequently, denunciation or withdrawal may only take place subject to Article 72 of the ICSID Convention.28 The effect of Article 72 is that the denouncing state continues to be a party to the Convention vis-à-vis the particular consents to arbitration already given under Article 25 of the Convention. Thus,

In early 2008 Bolivia denounced the ICSID convention. The provision of Article 72 of the Convention would apply in cases between Bolivia and investors arising from arrangements made before the denunciation. 28

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the requirement of consent between states is fulfilled as regards these particular consents and the state concerned may be a complainant or respondent in arbitrations arising from such consents, while nationals of that state may similarly be such complainants or respondents, because the consent of their national state survives the denunciation and continues to be effective. Such nationals continue to be nationals of a state party that has agreed to the application of the arbitration system of the Convention in regard to the consents given by that national. There is one circumstance where the particular consent given under Article 25(1) of the Convention may become ineffective, not because the consent of the state party to the Convention is withdrawn impliedly but because of other circumstances. Where a state party to the Convention ceases to exist without state succession taking place, the consent given by it to being a party to the Convention terminates and any particular consents to arbitration given by it pursuant to Article 25 would cease to be enforceable or, indeed, valid, because it is no longer a party to the Convention. Its agreement to the Convention system has come to an end. Similarly, its former nationals would not be able to take advantage of particular consents given by them or to them, because they have ceased to be nationals of a state party to the Convention as required by Article 25. They no longer have a national state which has agreed to the arbitration system of the Convention by being a party to it. (b) Second, there is a requirement that there be consent to submission of a dispute to ICSID arbitration by the parties to the dispute itself. This has been described as the cornerstone of the jurisdiction of ICSID. This may be termed the secondary consent. Because it is secondary, at all times it must genuinely be subject to the conditions established for jurisdiction in the Convention by the primary consent between states. Consequently, the latter cannot be described either properly as only “outer limits” per se. The Convention requires only that this consent be in writing.29 Thus, it is not necessary that the consent of both parties be included in

29

ICSID Convention, Art. 25(1).

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a single instrument. The consents may, indeed, be expressed in instruments of completely diverse character, and not necessarily addressed to the other party or made with particular reference to any dispute or arrangement with it.30 The consent of the host state may be expressed in some legislative act, such as an investment promotion law, or in a bilateral or multilateral agreement with the investor’s own state. Both these possibilities have already been used to some extent, and ICSID has issued model clauses designed for the latter purpose.31 On the investor’s part unilateral expression of consent might appear in general form in a charter or other instrument of incorporation, or in a by-law or resolution. The consent of both parties must exist at the time a request for arbitration is filed with the Secretary-General. If such a request fails to show that both parties have consented, then he must refuse to register it.32 There is no requirement that the consents either precede or follow the incidence of a particular dispute. Thus, consent may be expressed in general terms to cover any future disputes that might arise out of a transaction. Consent may also be given after a dispute has arisen and be expressly limited to that dispute. It does not matter that the underlying transaction or even the dispute itself antedates the Convention. The considerable freedom allowed by the Convention for instruments of secondary consent does not mean that legal caution may be completely abandoned. For example, the consent to the jurisdiction of ICSID must be expressed unambiguously and in a manner which does not require further action by the “consenting” party. Thus legislative or charter provisions, which may ostensibly appear to be a general consent to submission of certain types of disputes to ICSID,

Report at p. 8 (para. 24). 1t will be noted below that if the party to a dispute is a constituent subdivision or an agency of the government its consent must be approved by the contracting state concerned, unless such a state has already notified ICSID that its approval is not required. 31 International Centre for Settlement of Investment Disputes. Model Clauses Relating to the convention on the Settlement of Investment Disputes: Designed/or Bilateral Investment Treaties (Doc, ICSID/6). 32 ICSID Convention, Arts. 28, 36. 30

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may merely constitute an authorization for some appropriate organ of the state or the investor to submit to the jurisdiction of ICSID. Hence, even when such a provision contains an obligation to agree to submit, the view may be taken that this obligation is merely an internal matter, without external effect, until the competent organ has taken the necessary steps. Furthermore, when consent is expressed in diverse instruments, it is only where the language coincides that the consent is both effective and irrevocable. Thus, an investment promotion law might provide for the submission of any dispute relating to or arising out of the application of that legislation, while the investor may have agreed to submit any dispute arising out of the particular instrument under which his investment was made. When an actual dispute arises, it may be found to come within the terms of one instrument but not the other. There are some special consequences of a valid consent under the Convention which should be noted. First, the consent will remain valid even though the larger agreement or arrangement in which it is found is not legally valid or has been legally terminated. This is true because the consent is not only governed by international law, but is also by its very nature an agreement sui generis under the Convention. Secondly, neither party can revoke its particular consent once given.33 The effect of the termination of primary consent has been discussed above. Thirdly, consent to arbitration is deemed to be an agreement excluding all other remedies, unless an express reservation is made.34 Fourth, the date of the consent tends to fix the mutual rights and obligations of the parties with respect to proceedings under the Convention. Thus, no subsequent amendment to that instrument, and no subsequent change in the Arbitration Rules, can be applied to a proceeding initiated pursuant to an earlier consent,35 even if the proceeding is not instituted until after the change in the Convention or the Rules has been performed, unless, of course, both parties agree to take account of such change.

33 34 35

ICSID Convention, Art. 25(1). ICSID Convention, Art. 26. ICSID Convention, Arts. 33, 44, 66(2), which states the matter correctly.

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Last, once consent to arbitration has been given, the contracting state of which the private party is a national is precluded from giving “diplomatic protection,” or from bringing “an international claim” with respect to such a dispute.36 There are many cases in which the “consent” on the part of the respondent state has been found to exist in a bilateral investment treaty (BIT) or other treaty documents, while the consent of the element was created by the filing of an application before the ICSID,37 no other form of consent by either party being required. Further, notifications to ICSID under Article 25(4) of the ICSID Convention by a state do not trump consents given under BITs or other agreements.38 (ii) Forum Prorogatum as Consent Although it has been suggested that the doctrine of forum prorogatum may apply to jurisdiction, when the respondent fails to raise at the proper time before the merits are examined an objection to jurisdiction,39 it is unlikely that this is correct. Article 25(1) requires consent in writing by the parties to the arbitration. Failure to raise an objection can hardly be regarded as such a consent in writing to the submission of a dispute to a tribunal’s jurisdiction. In any event, it would appear that forum prorogatum by definition encompasses consent by conduct other than writing. Moreover, there is evidence, though scant, that the doctrine is not applied by arbitral tribunals. The doctrine has been accepted categorically, as has been seen, in the case of the World Court but this is the only tribunal in which it has been applied with success. The relevance in principle of the doctrine in arbitration has been

ICSID Convention, Art. 27. See, e.g., Olguín v. Paraguay (2000), <www.worldbank.org/icsid>; PSEG Global Inc. et al. Case (2004), ibid.; Plama Consortium Case (2005), ibid.; Sempra Energy International Case (2005), ibid. 38 See the PSEG Global Inc. et al. Case (2004) at p. 38, <www.worldbank .org/icsid>. 39 See Schreuer, op. cit. note 14 p. 535. 36 37

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denied. In the Horst Pürfurst Case, for instance, the tribunal which was an arbitral tribunal stated that “the principle of forum prorogatum does not apply to bodies of international jurisdiction charged with the performance of special functions.”40 It is noted that the reference in the Horst Pürfurst Case to tribunals “charged with the performance of special functions” does not in effect restrict only to certain kinds of arbitral tribunals the principle that the doctrine of forum prorogatum does not apply. The bodies referred to in that case are clearly arbitral tribunals as such because arbitral tribunals are entrusted with special functions and in addition have juridiction attribué and not a general jurisdiction.41 It must also be noted that in any event in regard to the limitations to jurisdiction of an international tribunal inherent in the judicial function,42 the doctrine cannot apply. Thus, for example, the argument that there has been forum prorogatum in connection with the issue whether a dispute which is legal exists cannot be upheld.43 (iii) Compétence Ratione Materiae With regard to the nature of disputes within ICSID’s jurisdiction, Article 25 requires that they arise directly out of an investment and concern legal disputes. (a) The Convention does not define the term investment.44 Nevertheless, a stipulation by the parties that they consider the transaction to be an investment would be helpful in settling the question. The meaning of the term “investment” in the context of (1958, Arbitral Commission on Property, Rights and Interests in Germany), 1 Eintscheidungen at p. 142. See also the Young Plan Case 1980, Belgium, France, Switzerland, UK v. FRG), 59 ILR at p. 524. 41 It is apparent that the language was not intended to cover a court such as the ICJ, because, among other things, though the ICJ has a juridiction attribué it is possible for parties to agree that its jurisdiction is not limited to “specific functions” but is of a general or universal nature. 42 See the discussion relating to inherent limitation to jurisdiction in C.F. Amerasinghe, op. cit. note 15 pp. 95 ff. 43 The same reasoning applies to mootness. 44 See Report at p. 9 (para. 27). 40

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Article 25, however, cannot be said to be subjective. It is not without objective significance. There are limitations. Disputes may be of such a nature that they obviously do not relate to an investment. In such a case, despite express stipulation by the parties, ICSID would lack jurisdiction. However, the context of the Convention seems to suggest that a fairly broad approach to the interpretation of this term in Article 25 is warranted. Conceivably, all assets are not included in the definition of investment.45 Equally possible, however, is the inclusion of even consultants’ contracts within the term “investment” under appropriate circumstances. The duration of the agreement, the regularity of profit or return,46 and the surrounding circumstances of the agreement would all be relevant factors in the decision. Thus, not only bonds, but a consultant’s contract that is part of a production contract or of a larger complex of production contracts stretching over a considerable length of time could be considered an investment. Any transfer of resources, whether money, goods, services, or all three, could be an investment, depending, of course, on such other factors as return or profit motive, the spread out feature of return, duration and the like. An ordinary sales contract, therefore, would not normally be an investment.47 The term “investment” may be defined in a BIT between the respondent state and the national state of the other party which is applicable to the case. For example, in the Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. Case where Pakistan was the respondent the BIT provided in Article 1(2) by way of definition that

See the comprehensive discussion of the meaning of “investment” in C.F. Amerasinghe, “The Jurisdiction of the International Centre for the Settlement of Investment Disputes,” 19 IJIL (1979) at pp. 177 ff. 46 See Hanson, A Dictionary of Economics and Commerce (1974) p. 281 for a definition for the purpose of finance: Gilpin, Dictionary of Economic Terms (3d ed. 1973) p. 114. See now the Mihaly Arbitration (2002), <www.worldbank .org/icsid>. 47 The fact that the Additional Facility attached to ICSID was created supports the idea of limitation. 45

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Chapter 7. Arbitral Tribunals of the ICSID The term “investment’, in conformity with the hosting Party’s laws and regulations, shall include every kind of asset, in particular, but not exclusively: (a) Shares, stocks or any other form of participation in companies (b) returns reinvested, claims to money or any other rights to legitimate performance having financial value related to an investment, (c) moveable and immoveable property, as well as any other rights in rem such as mortgages, liens, pledges and any other similar rights, (d) [. . .] (e) business concessions conferred by law, or by contract, including concessions to search for, cultivate, extract or exploit natural resources on the territory of each Party as defined hereinafter.48

There was considerable discussion in the decision on jurisdiction on the interpretation to be given to this definition. Insofar as it concentrates on “every kind of asset” it is very broad. What is important to note is that a treaty or agreement covering the parties can restrict the meaning of “investment” under the ICSID Convention49 but cannot broaden it. Thus, ultimately the outer limit of the term “investment” flows from a reasonable meaning of “investment” under the Convention. The term “investment” for this purpose must, therefore, be interpreted by reference to common usage and to conventional law, if any. It would exclude a pure contract of sale even if the relevant treaty or agreement conferring jurisdiction includes it in its definition. As an example in general of the approach that has been taken by an ICSID tribunal, may be cited the Mihaly Case, where the ICSID tribunal stated, in concluding that there was no “investment” for the purposes of the jurisdiction of the tribunal pursuant to the ICSID Convention:

(2005), para. 105, <www.worldbank.org/icsid>: as cited in the judgment in the case. 49 Impregilo S.p.A. Case (2005), ibid. 48

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60. The Tribunal is of the view that de lege ferenda the sources of international law on the extended meaning or definition of investment will have to be found in conventional law or in customary law. The Claimant has not succeeded in furnishing any evidence of treaty interpretation or practice of States, let alone that of developing countries or Sri Lanka for that matter, to the effect that pre-investment and development expenditures in the circumstances of the present case could automatically be admitted as “investment” in the absence of the consent of the host State to the implementation of the project. It should be observed that while the US-Sri Lanka BIT contains provisions regarding the definition of investment and conditions for its admission, they recognize the Parties’ prerogative in this respect. 61. The Tribunal is consequently unable to accept as a valid denomination of “investment”, the unilateral or internal characterization of certain expenditures by the Claimant in preparation for a project of investment. The only reference made by the Claimant to the BIT, in particular, Article II(2), is not to any extended definition of investment but to existing “investment” or investment in esse or in being, which is to be accorded “fair and equitable treatment”. In the case under review, the Tribunal finds that the Claimant has not provided evidence of such an investment in being which qualifies for “full protection and security.” Failing to provide evidence of admission of such an investment, the Claimant’s request for initiation of a proceeding to settle an investment dispute is, to say the least, premature. However, in finding the request to be unfounded, the Tribunal does not say that it is frivolous, vexatious or malicious. Nor does the Tribunal’s determination that the subject-matter of the dispute, if any, falls outside the jurisdiction of ICSID and beyond the competence of the Tribunal preclude whatever recourse the Claimant may have at its disposal to pursuing a claim arising out of a commercial, financial or other types of dispute.50 (2002), paras. 60–1, ibid. Another case in which the tribunal said that pure contract claims were not protected by a BIT, as investments, was the El Paso Energy International Company Case (2006), ibid. On the other hand, where the issue of a contractual claim arose, the tribunal pointed out that an investment in the form of a binding concession contract did exist: the PSEG Global Inc. et al. Case (2004), ibid. See also the Saipem Case (2007), paras. 98 ff., ibid. 50

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Significantly, the tribunal took the view that there was no investment such as an agreement to build the power station which was indirectly involved in the contract which had been allegedly breached. There were only three letters of intent. The agreement was held to be a pre-investment arrangement. There must also be a “direct” connection between the dispute and the investment. (b) While it has been stated by the ICJ that the mere assertion by the claimant that a dispute exists51 or the mere denial by the respondent party that a dispute exists52 is not conclusive of either fact, a dispute has been defined in the Mavrommatis Case as a disagreement on a point of law of fact, a conflict of legal views or of interests between two parties.53 The question whether the requirement of disagreement or conflict is satisfied would often become moot, especially if a request and answer are filed with the Centre. The ICJ has stated that the mere existence of conflicting interests between the parties,54 a mere institution of proceedings,55 or a purely theoretical disagreement on a point of law or fact,56 is not conclusive of the existence of a dispute. What is required seems to be that the claim of one party must be positively opposed by the other,57 that a protest or claim should be made by the other party,58 or that the claim should be taken up directly with the other party.59 It may well be in a given situation that a positive requirement for the existence of a dispute is lacking, because the claim has not been taken up with the other party before the request was filed. In such a case it is doubtful whether the request by itself would constitute

The South West Africa Cases, 1962 ICJ Reports at p. 328. The Peace Treaties Opinion (First Phase), 1950 ICJ Reports at p. 74. 53 PCIJ Series A, No. 2 at p. 11. See also the Polish Upper Silesia Case PCIJ Series A, No. 6 at p. 14. 54 The South West Africa Cases, 1962 ICJ Reports at p. 328. 55 Judges Fitzmaurice and Spender, ibid. at pp. 547 ff. 56 Judge Morelli, ibid. at pp. 566 ff. 57 The Court, ibid. at p. 328. 58 Judge Morelli, ibid. at pp. 566 ff. 59 Judges Fitzmaurice and Spender, ibid. at pp. 547 ff. 51 52

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the necessary element, particularly if the dispute, as such, must exist at the time the request is filed.60 Theoretically, it would be possible for a tribunal to find proprio motu or otherwise that this positive element is lacking, but it is unlikely that the kind of situation in which such a finding would be made would arise. Thus, while the requirement may help to avoid two remote possibilities: first, that a request be filed without a genuine effort to inform the other party so that a settlement may emerge, and second, that a frivolous request be filed, when in fact the other party does not propose to oppose the claim but to acknowledge it, it would seem that the requirement being discussed is not likely to cause problems. Another point of more practical value which emerges from the jurisprudence of the ICJ is connected with the holding in the Asylum Case (Interpretation)61 that, where an interpretation of a judgment is sought, there must be a divergence of view on specific points in the judgment rather than an assertion that the judgment is unclear when the other party finds it clear. In the context of the Convention the principle involved in this statement would warrant a requirement that the request disclose disagreement on the treatment of the claimant related to the investment. A condition for the existence of a dispute between the parties which has come into prominence recently is that the parties must have a right or interest in regard to the subject matter of the dispute. This condition was predicated by the ICJ in the South West Africa Cases (Second Phase).62 It means, among other things, that it is inadequate that someone other than the party concerned has the required right or interest. This requirement may also turn out to be academic in cases presented to the Centre, since the consent agreement submitting disputes to the Centre would normally relate to Judge Morelli, ibid. at p. 566. 1950 ICJ Reports at p. 403. 62 1966 ICJ Reports at p. 42. See also Judges Fitzmaurice and Spender in the South West Africa Cases, 1962 ICJ Reports at p. 547. A legal right or interest is not to be confused with a material interest which is not a prerequisite for the existence of a dispute between parties; see by implication the judgment of the Court in the same case, ibid. at p. 343. 60 61

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disputes arising from investments made by one party in the territory of the other. However, in a situation where, for example, a host state has made a general consent agreement with several persons submitting investment disputes to the Centre, the above rule might have the consequence that one of those persons could not submit to the Centre a disagreement arising from the treatment of the investment of another of those persons, because he did not have the required right or interest in regard to the host state’s action. It is apparent that the request should disclose a dispute as being in existence at the time the request is filed.63 Hence, it would be inadequate that the requirement for the existence of such dispute is satisfied after the request was filed. In such a case the tribunal would, nevertheless, be compelled to declare itself without jurisdiction, because there was no dispute. Negatively, some indication may be given of factors which clearly are not relevant to the finding that there is no dispute. One of the many suggestions made at the consultative meetings of legal experts held in connection with the formulation of the Convention was that disputes which had arisen before the consent to the jurisdiction of the Centre was given should be excluded from the purview of the Centre.64 The suggestion was finally not accepted. There is no reason, based on the text of the Convention, that the term “dispute”, as used in Article 25(1), be construed as including only disputes which arise after the consent of the parties to the Centre’s jurisdiction had been given. It has also been held in a separate opinion in the ICJ that for the purposes of deciding whether a justiciable dispute has arisen it is not necessary either that a final deadlock between the parties should have been reached,65 or that either party should have made a threat of judicial (or, for that matter, other) proceedings.66 The

See Judge Morelli in the South West Africa Cases, 1962 ICJ Reports at p. 566, in relation to disputes before the ICJ. 64 See 2 History, pp. 468, 548, 565. 65 Judge Spender in the Interhandel Case, 1959 ICJ Reports at p. 71. 66 Ibid. at p. 60. 63

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negative conclusions contained in this opinion are undoubtedly applicable to the jurisdiction of the Centre. Further, the PCIJ has held that diplomatic negotiations are not necessary in order to make a dispute justiciable by it.67 For the Centre’s jurisdiction the holding clearly warrants the conclusion that not only are diplomatic negotiations between the states concerned not necessary to bring a dispute within the Centre’s jurisdiction, but that even the conclusion or initiation of negotiations between the parties is not a sine qua non for this purpose, in the absence of express agreement between the parties.68 (c) Assuming there is a dispute, the next question raised is whether the dispute is legal. The qualification of legality imposed on disputes for jurisdictional purposes has some significance. Such a qualification exists in connection, among other things, with the advisory jurisdiction of the ICJ,69 and has been understood to be relevant to its contentious jurisdiction as well.70 The history of the formulation of the Convention shows that there was some disagreement as to what was meant by “legal” disputes and that ultimately at some point it was decided that no definition of “legal” should appear.71 A distinction was made between disputes which were economic, commercial or political and those which were legal.72 The view was expressed that a distinction on these lines should not be made,73 while it was also stated that the distinction was imprecise, because disputes that were legal could See, e.g., the German Interests in Polish Upper Silesia Case (1925), PCIJ Series A No. 6 at p. 22. 68 In the Siemens A.G. Case (2004), <www.worldbank.org/icsid>, the ICSID tribunal discussed whether there was, indeed, a dispute, which the respondent contended did not exist, and concluded that there was one. The case law of the PCIJ and ICJ is relevant on this matter. 69 See Article 65(1) of the Statute of the ICJ. 70 See the opinion of Judges Fitzmaurice and Spender in the South West Africa Cases, 1962 ICJ Reports at p. 466. 71 Several definitions were suggested at various stages; see, e.g., 2 History, pp. 493, 703, 832, 833. 72 See 2 History, pp. 83, 259, 397, 495. 73 See 2 History, p. 395. 67

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involve matters of politics or commerce,74 the explanation was then given that what was meant was that the dispute should be based on the breach of legal rights and that there should at least be a claim that legal rights had been violated.75 A reasonable interpretation is that the dispute must be concerned with a breach or violation of law in the fundamental sense that what is basically in dispute is the violation of legal rights and obligations.76 Thus, for example, a dispute merely as to whether certain measures were economically or morally justified or whether certain measures were politically desirable or in general as to the terms to be included in an agreement being renegotiated would not be legal.77 A dispute about the nature or extent of the reparation to be made for a breach of a legal obligation would be a legal dispute.78 Questions have been raised whether for any reason a dispute about legal rights and obligations would in certain circumstances fall into the category of non-legal disputes. The issue was raised at the consultative meetings of legal experts whether disputes about legal rights and obligations which were of high political significance were justiciable under the Convention.79 A similar issue has been raised in a different context before the ICJ. Although some individual judges took the position that, if the dominant element in the issue litigated was its political character, or if, for example, the

See 2 History, pp. 88, 96. See 2 History, p. 397. 76 See also the statement by the Executive Directors of IBRD: Report, at p. 9. This approach of the executive directors was adopted by the ICSID tribunal in the Suez, Sociedad General de Aguas de Barcelona S.A., et al. Case (2006), para. 35, <www.worldbank.org/icsid>. 77 The ICJ has supported strongly the notion that only disputes about legal rights and obligations qualify as legal disputes: see the First Admissions Opinion, 1947–48 ICJ Reports at p. 61, Second Admissions Opinion, 1950 ICJ Reports at pp. 6, 7, United Nations Expenses Opinion, 1962 ICJ Reports at pp. 155, 156, South West Africa Cases, 1962 ICJ Reports at p. 466 per Judges Fitzmaurice and Spender and at p. 659 per Judge van Wyck. 78 See Executive Directors of the IBRD, Report at p. 9. 79 See 2 History, pp. 500, 548. 74 75

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acts and organs involved were of a political character,80 the arguments were of a political nature and the purpose of the submission to the Court was political,81 the question would not fall within the jurisdiction of the Court the Court itself took the view that neither did the political implications surrounding the question cause it to become a non-legal question,82 nor was the existence of political motives relevant.83 Hence, there is good authority for the view that, in the absence of an express exclusion in or pursuant to the ICSID Convention itself, a dispute which is otherwise legal, such as one relating to expropriation, would not cease to be legal for the purposes of the Centre’s jurisdiction on account of political significance, motivation or implications or other political associations or elements. Some queries were also raised where the dispute was as to a fact or facts per se as opposed to law.84 There is nothing in the travaux préparatoires which supports the view that it was intended to exclude disputes on facts per se from the Centre’s jurisdiction. Since the determination of questions of fact is part of the normal judicial function, it is reasonable to interpret Article 25(1) as including factual questions within the Centre’s jurisdiction. But there seems to be an obvious qualification which is inherent in the characterization of the disputes as legal. The fact or facts about which there is a dispute must be such that a legal right or obligations or the violation of a legal right or obligation depends on its – or their – establishment.85

80

Per Judge Alvarez in the First Admissions Opinion, 1947–48 ICJ Reports

at p. 6. Per Judge Zoricic, ibid. at p. 95 and Judge Krylov, ibid. at p. 107. See the First Admissions Opinion, ibid. at p. 61, the Second Admissions Opinion, 1950 ICJ Reports at pp. 6, 7. See also per Judge Azevedo in the First Admissions Opinion, 1947–48 ICJ Reports at p. 75. 83 See the United Nations Expenses Case, 1962 ICJ Reports at pp. 155, 156. 84 2 History, pp. 411, 655, 700, 703, 708. 85 Thus, while the legal principles determining the amount of tax payable by an investor may not be disputed, the fact whether it received certain sums as income as a result of selling its products may be disputed. On the determination 81 82

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A question that arises is whether an abstract question which is nevertheless a difference of opinion about legal rights and obligations falls within the Centre’s jurisdiction. The situation may arise, for example, in which disputants want to resolve such a dispute before either of the parties actually acts in accordance with its opinion of what is right and wrong. The ICJ has decided that it has the jurisdiction to give advisory opinions on abstract legal questions.86 The question has in a sense also been decided in the affirmative in regard to the Court’s contentious jurisdiction insofar as it has been held that it can give declaratory judgments.87 It would seem that there is little reason to make a distinction between the ICJ’s jurisdiction and the Centre’s power to settle legal disputes. It is in keeping with the Centre’s function of settling disputes and its purposes, particularly that of promoting the flow of foreign private investment, that it should have the jurisdiction to settle disputes of law before they lead to what might become difficult situations. Equally, it seems foolhardy to insist that a party must act before it can have a dispute settled, even though it may be prepared to forgo such action in order to have the dispute settled by resort to the Centre. Clearly, however, the dispute must be presented as a claim with clearly identified issues, although it may not include a demand for damages or restitution.88 A distinction must surely be made between a request for an opinion on a general question of

of this fact will depend the exact extent of the investor’s obligation to pay tax. Hence it will be well within the Centre’s jurisdiction to determine such a fact. On the other hand, if the dispute is about the actions of an investor which led to the host State’s increasing taxes on corporations doing business in its territory, when there was clearly no obligation owed to the investor not to increase its taxes in the manner in which they were increased, this dispute would not fall within the jurisdiction of the Centre, since the ascertainment of a legal obligation of the host state would not hinge on its resolution. 86 See the German Interests in Polish Upper Silesia Case (1926), PCIJ Series A No. 7 at pp. 18, 19; the Memel Territory Case (1932), PCIJ Series A/B No. 49 at p. 311. 87 See the Memel Territory Case (1932), ibid. 88 See 2 History, pp. 332, 498, 838, and p. 258, where this view is supported.

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law and a request for a pronouncement on a specific claim which is disputed. Disputes which are legal would include disputes which involve national law. While some questions have been raised about the “legality” of such disputes,89 ICSID tribunals have regarded such disputes as legal. The fact that the dispute involves the legislative acts of a sovereign power does not result in its not being legal and within the Centre’s jurisdiction.90 It may be noted that in the appropriate circumstances the exercise of a discretion, e.g., under a contract, may give rise to a legal dispute. The fact that a solution ex aequo et bono is sought does not make the dispute one that is not legal, especially because the Convention provides for arbitral settlement ex aequo et bono.91 In the Suez, Sociedad General de Aguas de Barcelona, S.A. et al. Case the tribunal referred to the fact that it was largely in the hands of the claimants to present the dispute in legal terms, while also mentioning that there must be a dispute about legal rights and obligations and that a dispute will only qualify as legal, if legal remedies such as restitution or damages are sought, and if legal rights based on, for example, treaties or legislation are claimed.92 In that case the tribunal in applying those principles stated: In the present case, the Claimants clearly base their case on legal rights which they allege have been granted to them under the bilateral investment treaties that Argentina has concluded with France and Spain. In their written pleadings and oral arguments, the Claimants have consistently presented their case in legal terms. Bilateral investment treaties are not mere statements of good will or declarations of benevolent intent toward the investors and investments of the two countries concerned. They are international legal instruments by which sovereign states make firm commitments under international law

89 90 91

See objections raised by the Portuguese nominee, 2 History, p. 708. See Article 42(3) of the ICSID Convention. For detailed discussion see C.F. Amerasinghe, loc. cit. note 45 at pp.

181 ff. 92

(2006), paras. 34 and 36, <www.worldbank.org/icsid>.

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Chapter 7. Arbitral Tribunals of the ICSID concerning the treatment they will accord to investors and investments from the other state. A basic purpose of the Argentina-France BIT and the Argentina-Spain BIT, as their titles indicate, is the “protection of investments.” They seek to achieve this goal by granting investors and investments from the treaty partner certain legal rights and to provide a legal means for their enforcement. In the present case, the Claimants have invoked both BITs as a basis for their claim and have based their claims on the specific legal rights enumerated in specific treaty provisions, which they allege have been granted to them by the treaties in question. . . . What is certain at this stage . . . is that the dispute as presented by the claimants is legal in nature.93

Clearly, while the approach of the tribunal cannot but be supported, it cannot be correct to say that some kind of legal remedy must be sought for a claim to be legal. A request for a declaratory award would not deprive a claim or the dispute of its otherwise legal nature. (iv) Compétence Ratione Personae One of the adversary parties in the proceeding must be a state or a constituent subdivision or agency of a state.94 There are some limitations imposed by the Convention on the nature of this party. Article 25(1) requires that one of the parties must be not merely a state, but a contracting state. A non-contracting state cannot be a party to regular proceedings before ICSID. However, the crucial date for determining the status of a state is not the date on which a consent clause submitting to ICSID’s jurisdiction is reduced to writing or embodied in an instrument, but the date on which the Secretary-General considers the request for conciliation or arbitra-

Ibid. para. 37. See also for reference to the legal nature of a dispute, e.g., the Camuzzi International S.A. Case (2005), ibid.; the El Paso Energy International Company Case (2006), ibid.; the Saipem Case (2007), paras. 93 ff., ibid. 94 See Model Clauses No. 10; and C.F. Amerasinghe, “Submissions to the Jurisdiction of the International Centre for Settlement of Investment Disputes”, 6 Journal of Maritime Law and Commerce (1974) p. 213. 93

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tion. Therefore, it is possible for a non-contracting state to be a party to a contingent agreement calling for submission of a dispute to ICSID’s jurisdiction, and this agreement would take effect automatically as soon as the state becomes a contracting state.95 The term “constituent subdivisions” purports to cover a fair range of subdivisions. Not only would it cover municipalities and local government bodies in unitary states, but it could cover semi-autonomous dependencies, provinces, or federated states in non-unitary states and the local government bodies in such subdivisions. The term “agencies” was apparently intended to cover as wide a range of entities as possible.96 The main limitation would seem to be that the entity must act on behalf of either the government of the state concerned or one of its constituent subdivisions. Indeed, the use of the term “agencies” as opposed to “instrumentalities” may well indicate that the term was intended to include even certain governmentowned companies or government-controlled corporations. On the other hand, mere ownership by the government of shares in a public company may be inadequate for the entity to qualify as an agency. Article 25(1) requires that the constituent subdivision or agency be “designated” to ICSID, if ICSID is to have jurisdiction over the case. If a contracting state designates a body to ICSID as an agency or constituent subdivision of that state, a strong presumption is raised that this body is such a constituent subdivision or agency. On the other hand, the Convention does not leave to the contracting state concerned the ultimate determination of whether a body falls within the concepts mentioned. This determination must ultimately be made on an objective basis by the tribunal. The Convention further requires in Article 25(3) that either the consent by a subdivision or agency of the contracting state to submit a dispute or disputes to ICSID must be approved by that state or that state must notify ICSID that no such approval is required.

2 History, p. 960, where this view is supported. See discussions in 2 History, pp. 62, 63, 78, 202, 257, 259, 395, 399, 404, 497, 503, 528, 705, 710, 759, 760, 761, 762, 919, 976, 978, 979. 95 96

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Pursuant to Article 25(1), the other party to a proceeding before the Centre must be a national of another contracting state. The term “national of another contracting state” is defined further in Article 25(2). Are there any circumstances in which a government of another contracting state may appear as the other party described as a national of another contracting state? For example, when a contracting state and one of its nationals may both participate in an investment operation in the host state, a dispute may arise between the host state on the one hand and the other contracting state and the investor on the other. The Convention, as it stands does not provide for a state’s government to appear in proceedings before the Centre even in these circumstances. A second situation in which a government may want to appear in proceedings before the Centre is where a contracting state had paid a claim of one of its nationals against the host state in circumstances in which it is subrogated in the rights of that national. The point was discussed by the preparatory bodies,97 but no special provision was made in the final draft of the Convention for this eventuality. The evidence in the travaux préparatoires indicates that the absence in the Convention of specific mention of the capacity of states to appear as subrogees in proceedings before the Centre must mean that this is not possible. It seems to have been the understanding, according to the travaux préparatoires, that in the absence of specific provision for governments of states to appear as the other party, where nationals of other contracting states would appear, governments did not have such capacity to appear. This understanding confirms the clear meaning of the text. A different question is whether agencies of the state, wholly government-owned corporations, or companies in which the government has equity or shares, can qualify as nationals of other contracting states. The discussions in the preparatory bodies show that such an entity may well qualify as a juridical person which has

97

354 ff.

See 2 ibid. pp. 230, 1018. See also, e.g., Broches, loc. cit. note 19 at pp.

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the nationality of another contracting state under Article 25(2).98 The circumstances in which this could happen are for the tribunal seized of the case to decide. While consent may raise a presumption that the nationality requirement of natural or juridical persons has been satisfied because the Convention defines nationality specifically, the presumption can be overturned. In the case of natural persons the non-state party must not only have the nationality of a contracting state other than the state party to the dispute but must also not have the nationality of the state party to the dispute. There is a negative and a positive requirement.99 A stateless person would not have access to the Centre, since he does not have the nationality of another contracting state, unless for some reason such nationality is attributed to him, though the state does not recognize it.100 The term “nationality” of a natural person is not defined. In customary international law the position generally is that the laws of the state whose nationality is claimed determine whether the claimant is a national of that state. Where national law is not explicit as to the fact of nationality, an international tribunal may apply the definition of nationality given by the ICJ in the Nottebohm Case: Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.101

In the absence of any coherent rules on nationality in a given legal system, international tribunals have in the past determined that persons have had the nationality of a state on the basis of the above principles, even though it may not have been entirely clear whether

See further, e.g., Broches, ibid. at p. 356. See, e.g., the circumstances of Kahane (Successor) v. Parisi and the Austrian State, A.D. (1929–30), Case No. 131. 100 1955 ICJ Reports at p. 23. 101 Ibid. 98

99

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the law of that state regarded them as nationals,102 and sometimes even where they were not regarded as citizens for domestic purposes.103 An ICSID tribunal could act in the same way. In the course of determining whether a natural person has or has not the relevant nationality, a tribunal may well decide to ignore a nationality involuntarily acquired by that person or a nationality of convenience. The possibility of ignoring a nationality involuntarily acquired is mentioned in the travaux préparatoires.104 Similarly, a tribunal may refuse to recognize a nationality of “convenience”. It would seem from the Nottehohm Case105 that international law does to some extent at least, delimit the jurisdiction of a state to claim a person as its national. In the Nottebohm Case the ICJ held that the bond of attachment between X and state A was not so strong as to be the real and effective qualification for nationality which would entitle state A to claim the right of diplomatic protection. There are two distinguishing characteristics of this decision, however, which are very relevant to the question as to how far what has come to be called the doctrine of the “effective link” is likely to be applied by a tribunal in determining its jurisdiction under the ICSID Convention. First, the decision related to nationality for the purposes of diplomatic protection and did not determine issues of nationality for other purposes. Second, in that case (a) X had already had the nationality of another state which he had lost, and (b) the action by the state of his current nationality (state A) was against a third state with which X had for some time had and at the current time did actually have a closer connection than with either state A or the state of his former nationality.106 These two special

Cayuga Indians (G.B. v. U.S.A.) (1926), 6 UNRIAA p. 173. The Kahane Case: see above note 99. 104 2 History, pp. 445, 658, 705, 868, 874, 876, 877. 105 1955 ICJ Reports p. 4. 106 See the comments on the Nottebohm Case in Jones, “The Nottebohm Case,” 5 ICLQ (1956) p. 230. The narrow view of the decision taken here is supported to a high degree by the approach to the decision taken in the Flegenheimer Claim (U.S.A. v. Italy, 1958) at p. 148, where it was said that the “effective link” in the Nottebohm Case could operate only in favour of Guatemala, the defendant 102 103

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features may make the case of limited relevance to the question of nationality in relation to the Centre’s jurisdiction and may for that purpose serve to restrict the scope of any general principle of “effective link”. As already pointed out, there is a distinction between diplomatic protection and jurisdiction for the purposes of the Convention. Hence, the meaning of nationality may be different in the cases. Moreover, even if the Nottebohm Case were to be used as an applicable precedent, it is arguable that an effective link is relevant to negating the existence of a nationality only in the particular circumstances of that case, or at any rate, in very limited circumstances.107 Conceivably, where the nationality of a contracting state is assumed by a person when he does not have a reasonable connection with that state just before the consent to jurisdiction is given and in circumstances in which he had both lost the nationality of a non-contracting state by that act and his closest connection has been for some time with the host state, it may be held that he does not have the nationality of a contracting state for the purposes of the Centre’s jurisdiction. But what if the change of nationality was from that of one contracting state other than the host state to another’s or if the new nationality was acquired from a condition of statelessness? In such a case the answer may well be different for the purpose of the Centre’s jurisdiction. Certainly, if his closest connection has not been with the host state, it may be concluded that a tribunal will be justified in not disregarding the nationality of the natural person. In the case of a nationality acquired by fraud or mistake the usual rules of international law would operate to make such nationality ineffective. The fact that the host state has agreed at the time of consent to the Centre’s jurisdiction on the nationality of a natural person or has tacitly recognized that he had the nationality of a particular

state, with which the individual had a closer connection than with Lichtenstein the claimant state. 107 See, e.g., the North Transylvania Nationality Case (1965), 43 ILR (1971) p. 191.

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contracting state may have some effect on the decision of a tribunal regarding its jurisdiction, because of the predominantly consensual nature of the Centre’s jurisdiction. Agreement or recognition of this type would prima facie raise a presumption that the natural person had the nationality concerned and, at least, the burden of proving otherwise would rest on the party making that claim. While it is ultimately for a tribunal to decide even proprio motu on nationality in the exercise of the power to determine its own competence, it will probably not lightly disregard an agreement or tacit recognition of nationality by the host state. In the case of dual or multiple nationality of a natural person under the Convention, if one of the nationalities is that of the host state, neither agreement on the part of the host state nor the fact that the nationality of another contracting state was the “effective” nationality nor the fact that the host state was aware of the fact that the person had its nationality nor any other fact would normally help to give the Centre jurisdiction. There is one circumstance, however, where the host state’s nationality may not be an obstacle, namely where for special reasons it is held that such nationality should be disregarded and the person should be treated as if he did not have such nationality. Where a multiple nationality situation arises as a result of a person having two or more foreign nationalities, there is no question normally of a choice being made between or among these nationalities, in order to determine whether the person has the required nationality What the Convention requires is that the person have the nationality of another contracting state, irrespective of whether he also has the nationality of a third contracting state or of a non-contracting state.108 The ICSID Convention requires that the nationality requirement should be fulfilled both at the time of the consent to jurisdiction as well as at the time at which the request for arbitration or conciliation is registered. In view of the fact that many ideas proposed at the earlier stages were rejected certain points may be emphasized about the current version of the Convention. First, it is clear that both the

108

See discussion in the preparatory work: op. cit. note 104 supra.

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dates mentioned are relevant for the fulfilment of the nationality requirements. Second, both the negative and positive nationality requirements must be fulfilled on both these dates and it would be inadequate that both were fulfilled on one date but only one on the other. Third, there is no requirement of continuity in respect of the requirements so that it is not necessary that either the positive requirement or the negative requirement be satisfied continuously from the first date to the second. All that is required is that both the positive and negative conditions be satisfied on each of the two dates. Fourth, there is no requirement that the natural person must have the same foreign nationality on the two dates. In more than one respect, therefore, there is a difference between the law of diplomatic protection and the law of the Convention. In the former, for instance, the alien must have the same foreign nationality continuously between two relevant dates.109 In the case of a juridical person, the requirement of Article 25(2)(b) is that such a person must have the nationality of a contracting state other than the host state on the date of consent to the jurisdiction of the Centre or that, if it has the nationality of the host state, the parties must have agreed that because of foreign control it should be treated as a national of another contracting state. Some of the problems arising from this provision have been hypothetically discussed before.110 But now the practical problems have been faced in at least three arbitral decisions.111 In the Champion Trading Company Ameritrade Internatione Inc. et al. Case (2003), <www.worldbank.org/icsid>, the ICSID tribunal confirmed the application of Article 25(2)(a) on natural persons. There may be restrictions imposed on the locus standi of natural persons in a BIT: see, e.g., the discussion in the LG and Energy Corp. et al. Case (2004), <www.worldbank.org/icsid>; the PSEG Global Inc. et al. Case (2004) pp. 49 ff., ibid.; the Azurix Corp. Case (2003), ibid. 110 C.F. Amerasinghe. loc. cit. note 18. See also, rather peripherally, Amadio, Le Contentieux International de l’Investissement privé et la convention de la banque mondiale du 18 mars 1965 (1967) pp. 110 ff. 111 Amco Asia Corp. et al. v. Republic of Indonesia, 23 ILM (1984) p. 351 (ICSID) [hereafter Amco Arbitration]; Societe Ouest Afrcaine des Betons Industriels v. Republic of Sénégal, 6 FILJ (1991) p. 123 [hereafter SOABI Arbitration]; 109

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In the Amco Arbitration the basic issue raised was whether the claimant which was an Indonesian (host state) company could be regarded as a national of another contracting state (the US) because there was an agreement relating to foreign control. The tribunal made three important points in its reasoning. The first point relating to interpretation112 has already been discussed above. Second, in regard to the issue raised that there was no formal and express indication in the arbitration clause that the parties had agreed to treat the claimant which had been incorporated in the host state as a national of another contracting state, the tribunal was of the view that it was sufficient that the respondent knew of the foreign control and that it was “expressed” that the claimant would be treated as a foreign national.113 In fact, the agreement was not clearly expressed but was apparent from the context of the arbitration agreement. While explicitness could not be postulated there was more in the arbitration clause and in the context of the agreement than a vague or veiled reference to the foreign nationality. The United States was referred to elsewhere, so that what may be said to have been done by the tribunal was that it found that by necessary implication there was agreement upon foreign control. Third, an objection was raised that there was no formal and express indication in the arbitration clause that a particular contracting state was to be regarded as the national state of the claimant. The tribunal held that it was clear from the application made by the claimant under the investment law of the respondent both that the nationality of the claimant was to be regarded as U.S. and that the respondent was aware of this fact. The tribunal said that there was no requirement in the Convention that the nationality of

Liberian Eastern Timber Corporation v. Government of the Republic of Liberia, 26 ILM (1987) p. 647 (ICSID) [hereafter LETCO Arbitration]. A pertinent issue was raised in Holiday Inns S. A., Occidental Petroleum Corporation et al. v. Government of Morocco (1978) [hereafter Holiday Inns Arbitration] but the decision on the jurisdictional issues in this case has not been published. 112 See loc. cit. note 111 at p. 359 for the discussion by the tribunal. 113 Ibid. at pp. 359–60.

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the controlling interest in the juridical entity be expressly stated in the arbitration agreement. The Tribunal also stated: Respondent contends that the true controller of P.T. Amco was not of [A]merican nationality, since, it alleges, Amco Asia itself was controlled by Mr. Tan, a Dutch citizen residing in Hong Kong, through Pan American, a Hong Kong company of which said Mr. Tan was the sole or the main shareholder. To take this argument into consideration, the Tribunal would have to admit first that for the purpose of Article 25–2(b) of the Convention, one should not take into account the legal nationality of the juridical or natural persons who control the controlling juridical person itself: in other words, to take care of a control at the second, and possibly third, forth [sic], or xth degree. Such reasoning is, in law, not in accord with the Convention. Indeed, the concept of nationality is there a classical one, based on the law under which the juridical person has been incorporated the place of incorporation and the place of the social seat. An exception is brought to this concept in respect of juridical persons having the nationality, thus defined, of the Contracting State party to the dispute, where said juridical persons are under foreign control. But no exception to the classical concept is provided for when it comes to the nationality of the foreign controller, even supposing – which is not at all clearly stated in the Convention – that the fact that the controller is the national of one or another foreign State is to be taken into account . . . Incidentally, the Tribunal would like to stress that the legal and factual reasons previously stated would amply suffice to reject the argument of the Respondent that it allegedly did not know the nationality of the remote controllers of the local company to be established, when agreeing to the Application and to the arbitration clause herein. The case could have been different if there would have been fraud or misinterpretation on this issue, which is not the fact herein.114

The tribunal seems to have said obiter that in determining whether there is a foreign controlling element, and what the nationality is,

114

Ibid. at pp. 361–3.

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no search for foreign control is permissible under the Convention beyond the first step. Whether a search for foreign control was taken beyond the first step or not, for the Amco Arbitration it would not have made a difference, since all the possible foreign nationalities which could have been taken into account were of other contracting states. The reference to fraud or misrepresentation as to the controlling nationality, on the other hand, makes a useful point. In the SOABI Arbitration SOABI was incorporated in Senegal but was directly controlled by the Flexa Company, which was incorporated in Panama, a non-contracting state. The tribunal found on the evidence produced that the shares of the Flexa Company were owned by nationals of various contracting states, including the respondent, but that the controlling shareholding was Belgian. The respondent raised the objection that, since the foreign control over SOABI was exercised by the Flexa Company which was a Panamanian corporation, the requirements of Article 25 that the foreign control must be that of nationals of contracting states was not satisfied. While holding that it could not be disputed that the foreign interests which might serve as a basis for according foreign status to a company established under the law of the respondent should be those of contracting states, the tribunal came to the conclusion that, since indirect control of SOABI was exercised mainly by Belgian shareholders, the foreign control over SOABI not only was established but was also vested in nationals of other contracting states, since Belgium was a contracting state.115 Judge Mbaye, who dissented when the final award was rendered stated that he was in disagreement with the decision to exercise jurisdiction, referring to the statements made in the Amco Arbitration which precluded the search for foreign control beyond immediate control.116 This dissent prompted the President of the tribunal in the SOABI Arbitration to append a declaration to the final award in which he stated:

115 116

SOABI Arbitration, loc. cit. note 111 at p. 125. Ibid. at p. 251.

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L’article 25(2)(b) de la Convention ne dit rien sur la nature, directe ou indirecte, du contrale etranger qui peut amrner l’Etat-hote et l’innvestisseur etranger de traiter une societe de droit local comme “ressorrtissant d’un autre Etat contractant.” Le tribunal dans l’affaire Amco n’etait donc pas fonde a enoncer peremptoirement dans sa decision sur compétence qu’ “aucune exception au concept [classique de nationalite] n’est prevue lorsque l’on arrive a la nationalite de la perrsonne exercant ce controle.” Force est de reconnaitre que le control qui justifie l’application de l’article 25(2)(b) doit être exerce par un ressortissant d’un Etat conntractant, mais ce contrale ne do it pas être direct.117

The tribunal had held in the decision on the jurisdiction that on the facts the respondent had been aware of the ultimate control by nationals of another contracting state.118 In the LETCO Arbitration the arbitration simply stated that the parties agreed to submit to ICSID arbitration, LETCO being a company registered in the host state. The tribunal stated that there should be a causal relationship between effective control and the agreement to arbitrate which must be proved though, unless circumstances clearly indicated otherwise, it was to be presumed that where there existed foreign control the agreement to treat the company in question as a foreign national was because of this foreign control. The tribunal in effect found that there was a presumption because of French control that agreement to treat LETCO as French resulted from the fact of French control and that this presumption had not been rebutted. A prior question, however, was whether there had been an agreement under Article 25(2)(b) of the ICSID Convention to treat LETCO as a French national. The answer the tribunal gave was that, although there was no express agreement, an agreement could be implied where the specific circumstances would exclude any other interpretation of the orientation of the parties and that in this case there was adequate evidence to show that there existed

117 118

Ibid. at pp. 289–90. Ibid. at p. 226.

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an agreement to treat LETCO as a French national.119 The principal reason that it was clear that there was such agreement was, in the opinion of the tribunal, the fact that in its many dealings with LETCO the respondent had clearly indicated that it was dealing with a French national.120 The decision on jurisdiction in the Holiday Inns Arbitration has not been published but excerpts from the decision have been quoted and the decision discussed by one of the counsel in the arbitration.121 The tribunal held that the arbitration clause in the investment agreement did not cover the four locally registered subsidiary companies, because there had been no agreement that they should be treated as nationals of another contracting state on account of foreign control. The tribunal was of the view122 that the agreement relating to the treatment of the company as a foreign national because of foreign control must normally be expressed, though very exceptionally and when any other interpretation would be excluded such agreement may be implied. In the case an agreement could not be implied. The facts were that the four subsidiaries had not been formed at the time the arbitration agreement was concluded. Some important issues were addressed in these cases. The tribunal in the LETCO Arbitration referred to the need for a causal connection between the effective control by foreign nationals and the agreement to arbitrate. As also pointed out, this imposes an almost insurmountable burden of proof on the claimant. However, the difficulties were mitigated by postulating a presumption of the necessary causality where there was in fact foreign control. The presumption certainly helps. But it seems that causality is a requirement under Article 25(2)(b). What Article 25(2)(b) states is that foreign nationality should be agreed upon on account of foreign LETCO Arbitration, loc. cit. note 111 at p. 653. Ibid. at p. 654. One of the acts mentioned was the acceptance in the required annual registrations of LETCO of the description of its nationality as French. 121 See P. Lalive, “The First ‘World Bank’ Arbitration (Holiday Inns v. Morocco) – Some Legal Problems”, 51 BYIL (1980) p. 123. 122 Ibid. at p. 141, quoting from para. 33 of the decision. 119

120

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control. This causal connection requires that the host state at least be aware of the foreign control at the time of the agreement. Once this is established, the burden of proof shifts to the host state, which must now show that the causal connection was not present. Even so, there could in most cases probably be a presumption arising from the existence of foreign control that the host state was aware of such control. As far as the burden of proof is concerned, it seems reasonable to make such a presumption which would shift the burden to the host state to show that it was unaware of foreign control. In both the Amco Arbitration and the SOABI Arbitration the tribunals stated that the respective host states were aware of the foreign control. A further question raised is whether the host state must be aware of the particular nationality of the foreign control, in addition to necessarily being aware of foreign control by nationals of other contracting states. Thus, could it be argued by the host state that it was aware of foreign control by nationals of state B, both states being contracting states, and therefore, had no awareness of the necessary foreign control? It would seem that this argument must fail. What is required is that the agreement to arbitrate be motivated by foreign control by nationals of another contracting state. Thus, it is sufficient if there was awareness of control by nationals of any other contracting state, knowledge of the specific nationality not being important, barring, of course, fraud. In the Amco Arbitration the tribunal entered a caveat to this position: where the host state would not have agreed to arbitration, say, for political reasons, had it known that the foreign control was vested in nationals of state B rather than state A, the fact that the host state did not have knowledge of the proper nationality of the foreign control could result in the vitiation of the agreement to arbitrate, because the causal connection was absent. The caveat is acceptable, provided the absence of awareness and its consequences are subject to proof by the host state. In the Amco Arbitration itself there was evidence that the host state was aware of the proper foreign nationality of the controlling interest. As was stated in the Amco Arbitration, it is not necessary that the state of the foreign nationality be specifically mentioned in

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the arbitration clause, in order that the arbitration clause based on foreign control be effective. The requirement of foreign control under Article 25(2)(b) is satisfied by the very fact that such foreign control exists. In the Amco Arbitration the position was clearly taken that there did not have to be an express clause incorporating the agreement of the parties to treat a juridical person which is a national of the host state as a national of another contracting state because of foreign control for the provisions of Article 25(2)(b) to operate. All that is necessary is that, first, the principle person be a national of the host state and, second, that the parties agree that this person, being under foreign control to the knowledge of the host state, is to be treated as a foreign national i.e., a national of another contracting state. This was sufficient to create an express agreement. The tribunal, however, did not seem to be inclined to concede, as did the tribunals in the Holiday Inns Arbitration and in the LETCO Arbitration, that there could be an agreement which could be implied from all the surrounding circumstances of the case. The tribunal in the Holiday Inns Arbitration made it clear that, while in the normal case the agreement should be in an explicit form, because it was a derogation from the general rule expressed in the ICSID Convention, there were exceptional circumstances in which the agreement could be implied. The tribunal in the Amco Arbitration was correct in not requiring a formal and ritual agreement on the matter but found that in the case in hand there was, nevertheless, express agreement.123 The other two arbitrations clearly support the view that an agreement may be implied and, indeed, in the LETCO Arbitration the tribunal did imply the existence of an agreement from the various surrounding circumstances. It would seem, therefore, that an agreement could be implied in the absence of an explicit and formal clause where, for example, as in the LETCO Arbitration, (i) the claimant has the

Broches takes the view that the agreement was implied in this case: Arbitration under the ICSID Convention (1990) at p. 4 (paper presented to the International Trade Law Conference in Canberra). This is contrary to the tribunal’s view. 123

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nationality of the host state, (ii) the claimant is, nevertheless, controlled by foreign nationals belonging to other contracting states, (iii) the host state is aware of this fact, and (iv) the host state has dealt with and treated the claimant for all practical purposes as being controlled by foreign nationals belonging to other contracting states and has thus recognized the element of foreign control. The short point is that, where there is an agreement to submit to arbitration, and the claimant is a national of the host state, and where there is no formal or ritual agreement about foreign nationality on account of foreign control, there is a tendency on the part of tribunals to give effect to the arbitration clause, ut magis valeat quam pereat, and to recognize the jurisdiction of the ICSID by making every effort to imply an agreement on foreign nationality based on foreign control, on the understanding that otherwise the arbitration clause would have been purposeless.124 The situation may clearly be different, where there is no specific arbitration clause between the parties, as where an effort is made to establish jurisdiction under a bilateral investment or other treaty. In such a situation the case for implication of an agreement on foreign control under Article 25(2)(b), though possible, may be somewhat more difficult, because a specific meeting of the minds on the matter of foreign control between the parties is less likely to be proven. It was stated earlier that the jurisdictional provisions of the ICSID Convention are principally based on consent. It would not be correct to say, however, that they only lay down the outer limits of jurisdiction. Consent between a state and a “foreign” national, while important, cannot override the other basic requirements for jurisdiction reflected in the Convention, ratione materiae and ratione personae, particularly, which were established multilaterally, and not bilaterally, by a consent which has priority between states parties to the Convention. However, where there is an agreement relating to foreign nationality based on foreign control for the purposes of

At the time the ICSID Convention was formulated the assumption was that agreements had to be express: see C.F. Amerasinghe, loc. cit. note 18 at p. 263. This is in keeping with the view taken in the Amco Arbitration. 124

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Article 25(2)(b), the agreement may prima facie be accepted as effective. For exceptional reasons, however, a tribunal may investigate the reality of foreign control, where it is possible that the purposes of the ICSID Convention are being abused. Clearly, as was stated in the Amco Arbitration, one reason for pursuing the issue would be fraud of misrepresentation. But, there is no reason why, when the issue is raised or even proprio motu, a tribunal should not answer the question whether there is the requisite foreign control, where it is apparent that the requisite foreign control may not in reality be present. In some of the arbitral decisions discussed above the only point raised related to how far a tribunal should go in searching for the foreign control. There was some difference of opinion on this issue. In the Amco Arbitration the tribunal was of the view that it was permitted only to go one step behind the nationality of the host state to find out where the control lay. In the SOABI Arbitration the tribunal rejected this approach categorically,125 although there was a dissent by Judge Mbaye in which he supported the view taken in the earlier arbitration. The difference mattered in the SOABI Arbitration. If the tribunal had followed the ruling in the earlier arbitration, it would have found that a Panamanian corporation controlled the claimant which was registered in the host state and had host state nationality. Panama not being a contracting state, there would not have been foreign control and the tribunal would not have had jurisdiction. Because the tribunal took the view that its duty was to establish who had real control over the claimant, it was able to go behind the incorporation in Panama to the majority shareholders who were foreign nationals of contracting states, principally Belgium. On the other hand, since reference to the first step in the Amco Arbitration established foreign control, it was unnecessary for the tribunal to refer to a further search or proceed further.

The President of the tribunal appended a declaration explaining why the approach taken in the Amco Arbitration was unacceptable. There is a conflict between the two cases on the statement of principle, as such. 125

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Considering the principles of interpretation, it must be acknowledged that the approach taken in the SOABI Arbitration is more in keeping with the general objective of the Convention, namely, to permit the assumption of a foreign nationality on the basis of foreign control, where the claimant has the nationality of the host state because of incorporation in the host state. What is relevant is to establish foreign control by nationals of a contracting state, and it should be possible to do this by any reasonable means possible. Clearly, there is no reason to search further than is necessary in a given case, and it is appropriate that the search end when the proper foreign control has been established. It is, thus, unnecessary to limit the search to one step or even two steps. The question whether the host state had the required knowledge of the appropriate foreign control pertains to the causal link and will need to be addressed separately. There are other problems that may arise concerning the determination of foreign control where the claimant has the nationality of the host state. What has to be remembered is that Article 25(2)(b) does not refer to “effective” control but to control and, just as a flexible approach has been taken with regard to the search for the controlling elements, it is proper that a flexible approach be taken to the issue of control, particularly where there are competing controlling nationalities and agreement has been reached on a particular foreign nationality. The issue then is whether a tribunal can go behind that agreed nationality to make a finding on the existence of foreign control. One view is that it is only where it is apparent that the purposes of the ICSID Convention are being abused that this may be done.126 But this may be laying the emphasis in the wrong place. The tribunal must make an honest and objective assessment of the facts, where a question is raised or even proprio motu, in order to establish that the provisions of the Convention are being observed and not merely not abused. Primarily, there are five categories of situation that might arise:

126

See Broches, loc. cit. note 19 at p. 361.

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Chapter 7. Arbitral Tribunals of the ICSID (a) the possible nationalities in competition apart from the agreement are all of the contracting states other than the host state; (b) the possible nationalities in competition apart from the agreement include a nationality of a non-contracting state, the others all being of contracting states other than the host state; (c) the agreed nationality is that of a contracting state, although the possible nationalities apart from the agreement are not those of contracting states other than the host state; (d) the possible nationalities in competition apart from the agreement include that of the host state, others not being based on foreign control; (e) the possible nationalities in competition apart from the agreement include that of the host state, the foreign nationalities being based on control.

In the case of situation (a), an agreement on one or more of the nationalities ‘would not affect the question of jurisdiction. Therefore, the agreement would be recognized. In situation (b), the nationality or nationalities of one or more contracting states may be chosen to the exclusion of that of the non-contracting state. Here also it does not affect the question of jurisdiction that the juridical person has in fact more than one nationality including the nationality of a non-contracting state. In ease (c), the nationality of the contracting state which is agreed upon has no relevance to the realities of the situation. The agreement amounts to an unreasonable selection of nationality. A tribunal would be acting within its competence to disregard such an agreement. This is clearly a case, where the Convention would be used for purposes for which it was not intended. In situation (d), the question may bc raised whether a tribunal would examine the reality of the nationality of the juridical person, if the nationality of a contracting state other than the host state were agreed upon. Thus, a juridical person may be incorporated in the host state but have its centre of control and administration in another contracting state, while not being “controlled” by foreign interests. In the unlikely event that this situation arises and the parties agree that the nationality of the juridical person is that of the contracting state other than the host state, a tribunal is not

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compelled to investigate whether this is the “genuine” or “effective” nationality of the juridical person. In the face of agreement between the parties it suffices that a possible nationality is chosen and there is no compelling need to accept the argument that the juridical person must have only one nationality which must be the “effective” one where one of the competing nationalities is that of the host state and where there is no agreement based on foreign control. On the other hand, it is clear that a tribunal would not be precluded from examining the issue whether the chosen nationality is a possible nationality under any of the available tests. That is to say, if it finds that the nationality chosen has in fact absolutely no connection with the juridical person, it may disregard the agreement in this extreme case. In situation (e), for reasons similar to those given in regard to situation (d), a tribunal is not likely to upset a choice of nationality by agreement which is based on a reasonably possible criterion. In this case, though, there is the added factor that agreement between the parties on a nationality based on foreign control is expressly provided for in the Convention. Under Article 25(2)(b), (i) the notion of control could be used as a basis for an explicit agreement between the parties to a dispute that the juridical person has the nationality or nationalities of one or more contracting states other than the host state, where it initially has the nationality of the host state, or (ii) it could be relevant in assisting a finding that a juridical person has the nationality of a contracting state other than the host state where there are competing nationalities including those of non-contracting states (provided it is not used against the nationality of the host state as a competing nationality). An important question is how this concept of “control” is to be interpreted in each case. In relation to (i), when the question was discussed at the consultative meetings of legal experts. it was pointed out that the concept of “control” had numerous difficulties inherent in its application. No precise definition of “control” emerged from the discussions.127

127

2 History, pp. 359, 396, 447, 531.

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In view of the absence of any guidance in the travaux préparatoires and in the light of the theory behind the jurisdiction of ICSID the following points emerge in relation to the question of foreign control connected with (i) above. First, in view of the fact that the agreement of the parties is basic to ICSID’s jurisdiction, agreement between the parties on a foreign nationality based on foreign control would raise a strong presumption that there was adequate foreign control on which to predicate a foreign nationality. Secondly, for the same reason it is only in the case where such foreign control cannot be postulated on the facts on the basis of the application of any reasonable criterion that a tribunal would not recognize an agreement on foreign nationality based on foreign control. Thirdly, there is no reason to suppose that, in deciding the question whether a reasonable criterion forms the basis for an agreement on foreign control, a tribunal will necessarily be bound by a single definition based on a majority shareholding or any other particular test. In the case of diplomatic protection, as understood by some authorities before the Barcelona Traction Co. Case,128 the concept of “control” appears to have been associated entirely with the nature of shareholding.129 In the case of ICSID’s jurisdiction there is no requirement that similar limitations be observed. On the contrary, a tribunal may regard any criterion based on management, voting rights, shareholding, or any other reasonable theory as being acceptable for the purpose. The point is that the concept of “control” is broad and flexible, particularly because much should be left to the autonomy of the parties. The question is not whether the nationality with the most control according to a reasonable criterion has been agreed upon, but whether the nationality chosen represents an exercise of a reasonable amount of control to warrant its choice

1970 ICJ Reports p. 3. Caflisch, La Protection des Societes Commerciale et des Interets Indirects en Droit International Public (1969) p. 89; Jones, “Claims on Behalf of Nationals Who Are Shareholders in Foreign Companies”, 26 BYIL (1949) p. 225. 128 129

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on the basis of a reasonable criterion. Thus, where nationals of a contracting state hold 35 per cent of the shares of a corporation and nationals of a non-contracting state hold 55 per cent of the shares, an agreement that the corporation has the nationality of the contracting state may well be upheld by a tribunal as being based on a reasonable amount of control. Such a decision could be supported particularly, if, for instance, a judicial action is available for the protection of minority shareholders. In relation to (ii), a tribunal should be guided by reasonable criteria similar to those relevant to (i). Where a tribunal uses the criterion of control to establish foreign nationality in the absence of agreement, it could give this concept a flexible content without limiting itself to any single criterion. The approach should perhaps incline towards interpreting the concept of “control” in favorem jurisdictionis, since the parties have already agreed to invoke the jurisdiction of ICSID. Thus, where it is argued, in spite of such agreement, that the private party, being a juridical person, does not have the nationality of a contracting state other than the host state, it would not be inappropriate for an adjudicating body to find in the proper circumstances that the juridical person does have such nationality, even though it is not incorporated in, and does not have its place of administration in, or any other such connection with, a contracting state, on the basis of some element or control exercised by nationals of a contracting state other than the host state, such control being established not necessarily by reference to a majority shareholding but possibly by the application of some less exacting criterion. In the event that it is possible by the application of one or more of the several criteria to attribute control to more than one nationality, including the nationalities of non-contracting states, an adjudicating body could well avoid making a choice between nationalities and conclude that there is control by nationals of a Contracting state, even though there may be an element of control vested in nationals of non-contracting states. It is only when it is clear that it cannot be said that nationals of a contracting state have adequate control over the entity that an adjudicating body should hold that it does not have the nationality of a contracting state. Thus, if shares are held, 36 per cent by nationals of state A, a contracting state other

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than the host state, 34 per cent by nationals of one non-contracting state, and 30 per cent by nationals of another non-contracting state, and if the management is vested mainly in nationals of the state A, a tribunal could well hold that there is “control” exercised by the nationals of the contracting state, without investigating the difficult question of whether the nationals of a contracting state have more control than the nationals of non-contracting states. On the same lines, if control can only be established by reference to a combination of two or more nationalities, if this combination consists of the nationalities of contracting states other than the host state, although control cannot reasonably be attributed to nationals of a single contracting state, it would be possible to hold that the juridical person had the nationality of contracting states other than the host state. In connection with (ii), where there is an agreement between the parties that the juridical person has the nationality or nationalities of one or more contracting states other than the host state and such agreement is evidently based on control, a tribunal is not bound to establish whether in its opinion the juridical person has a required nationality. It would be adequate if such agreement were based on any reasonable criterion or criteria of control. As in the case of (i), it is a question of whether it can be said that the nationality or nationalities agreed upon have an adequate amount of control over the juridical person, such control being based on any of the acceptable criteria. A tribunal should be less strict in passing judgment on control for the purposes of an express agreement based on control than in cases where it must decide on nationality in the absence of any kind of agreement on nationality. A case which addressed specifically the issue of foreign control for the purposes of Article 25(2)(b) is the Vacuum Salt Products Ltd. Arbitration.130 The issue principally concerned the concept of “control”. The foreign national concerned on whose control the foreign nationality would depend had a zero shareholding in the claimant corporation and was clearly a technical advisor and specialist in it, but only that, without managerial capacity. The tribunal took the view that he was not in any sense “in charge”, and that, therefore, 130

(1994), 4 ICSID Reports p. 329.

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he had not nearly the necessary control over the corporation in order to enable it to be characterized as foreign. In the course of the award the tribunal made some significant statements which support what has been said above and had been proposed by the present author elsewhere. On the matter of the limits of the Convention and the presumption of control the tribunal said: The reference in Article 25(2)(b) to foreign control necessarily sets an objective limit beyond which ICSID jurisdiction cannot exist and parties therefore lack power to invoke same no matter how devoutly they may have desired to do so. See Report of the Executive Directors on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States . . . See also E. Gaillard, Some Notes on the Drafting of ICSID Arbitration Clauses, 3 ICSID Rev. – F.I.L.J. 136, 140 (1988) (the parties may not modify the limitations set forth in Article 25(2)(b)); A. Broches, The Convention on the Settlement of Investment Disputes between States and Nationals of other States, 136 Recueil des Cours 331, 360–361 (1972); C.F. Amerasinghe, “Jurisdiction Ratione Personae Under The Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States”, 1974–1975 Brit. Y.B. Int’l L. 227, 264–66. In addressing the present claim of jurisdiction grounded on the second clause of Article 25(2)(b) it is the task of the Tribunal thus to determine whether or not the Convention limit has been exceeded. . . . In undertaking this task the Tribunal first must ascertain where that Convention limit lies. Here, too, consistent with the travaux préparatoires of the Convention, the authorities are unanimous in placing great weight on the fact of the parties’ consent. Convention History, Vol. IT, 579 . . . No detailed definition of “foreign control” has been developed either in the travaux préparatoires of the Convention or in ICSID jurisprudence. See id. at 359, 360–361 (1972) . . . [I]t has been stated that the agreement of the parties “on a foreign nationality based on foreign control would raise a strong presumption that there was adequate foreign control on which to predicate a foreign nationality”, C.F. Amerasinghe, Jurisdiction Ratione Personae Under The Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States, 1974–1975 Brit. Y.B. Int’l. L. 227, 264–266.

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Chapter 7. Arbitral Tribunals of the ICSID Then it is “only . . . where such foreign control cannot be postulated on facts on the basis of the application of any reasonable criterion that a tribunal . . . would not [accept jurisdiction], because in such a case the parties would purport to use the Convention for purposes for which it was not intended.” Id. . . . [T]he words “because of foreign control” have to be given some meaning and effect. These words arc clearly intended to qualify an agreement to arbitrate and the parties are not at liberty to agree to treat any company of the host State as a foreign national: They may only do so “because of foreign control”. The Tribunal concludes that the existence of consent to an arbitration clause such as paragraph 36(a) of the 1988 Lease Agreement in circumstances such that jurisdiction could be premised only on the second clause of Article 25(2)(b) raises a rebuttable presumption that the “foreign control” criterion of the second clause of Article 25(2)(b) has been satisfied on the date of consent.131

On the issue of “control” itself the tribunal said: 43. The Tribunal notes, and itself confirms, that “foreign control” within the meaning of the second clause of Article 25(2)(b) does not require, or imply, any particular percentage of share ownership. Each case arising under that clause must be viewed on its own particular context, on the basis of all of the facts an circumstances. There is no “formula”. It stands to reason, of course, that 100 percent foreign ownership almost certainly would result in foreign control, by whatever standard, and that a total absence of foreign shareholding would virtually preclude the existence of such control. How much is “enough”, however, cannot be determined abstractly. Thus, in the course of the drafting of the Convention, it was said variously that “interests sufficiently important to be able to block major changes in the company” could amount to a “controlling interest” (Convention History, Vol. II, 447), that “control could in fact be acquired by persons holding only 25 percent of” a company’s capital Id., 447–48); and even that “51% of the shares might be controlling” while for

131

Ibid. at pp. 342–4.

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some purposes” 15% was sufficient” (id., 53R). As Amerasinghe has said, “the concept of ‘control’ is broad and flexible . . ., [T]he question is . . . whether the nationality chosen represents an exercise of a reasonable amount of control to warrant its choice on the basis of a reasonable criterion”. C.F. Amerasinghe, Jurisdiction Ratione Personae Under The Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States, 1974–1975 Brit. YB. Int’l. 227, 264–65. 44. Nonetheless, it must be true that the smaller is the percentage of voting shares held by the asserted source of foreign control, the more one must look to other elements bearing on that issue. As one authority has said, “a tribunal . . . may regard any criterion based on management, voting rights, shareholding or any other reasonable theory as being reasonable for the purpose”. Amerasinghe, supra, paragraph 43 (emphasis added).”132

There is no definition of juridical person in the ICSID Convention. It is, therefore, within the competence of a tribunal to decide whether or not an entity is a juridical person to which the nationality requirements of Article 25(2)(b) apply. At the consultative meetings the point was made by one expert that the term “company” should not be extended to cover a mere association of persons such as unincorporated partnerships.133 The question of what was meant by the term “juridical person” was also raised by one government.134 On the other hand, the point was made at the consultative meetings that it was desirable to keep the definition of “juridical persons” as neutral as possible in order to take into account the fact that states might differ in the way national laws treated associations, groups, and the like,135 and also that it would be a matter for the host state to decide at the time it consented to Ibid. at pp. 346–7. Article 25(2)(b) was referred to in connection with “control” also in the Camuzi International S.A. Case (2005), <www.worldbank .org/icsid>. There the Vacuum Salt Products Ltd. Arbitration was cited with approval. 133 2 History, p. 538. 134 2 ibid. p. 661. 135 2 ibid. p. 359. 132

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ICSID’s jurisdiction whether an association or group should be treated as having personality and, therefore, a nationality or whether the individuals forming it should be dealt with directly, because it was not a juridical person having nationality.136 This approach leaves much to the discretion of the host state. On the one hand, it is clear that where the host state decides to deal with the individuals forming a group or association, it can legitimately do so, and that too for the reason that it regards the association or group as not hawing juridical personality, but without necessarily having to decide that question. On the other hand, the related question arises of whether the fact that the host state has decided to treat the other party as a juridical person prevents the issue of whether the other party is a juridical person or a plurality of persons from being raised before and decided by a tribunal. Because of the consensual basis of jurisdiction under the ICSID Convention, it is perhaps a good argument that the recognition by the host state of the other party’s juridical personality has some effect. In general, a tribunal can be expected to give considerable weight to such recognition. However, there may be circumstances in which a tribunal could disregard such an election. Apart from cases of fraud and circumstances leading to mistake, an adjudicating body may well decide to disregard such an election where, for instance, it is clear that neither according to the law of the host state nor according to the law of the state whose nationality is claimed does the party have juridical personality. While the above may be valid, the possibility must also be seriously considered that, since the ICSID Convention does not define the term “juridical person,” there may be circumstances in which the tribunal will use its own, and possibly a flexible, definition of the term in applying Article 25(2)(b). Thus, the term may encompass juridical persons which do not have that status under the law of either the host state or the other contracting state.137 2 ibid. p. 284. In addition to the works cited above, specifically the the jurisdiction of ICSID has also been considered in different aspects by Tupman, “Case Studies in the Jurisdiction of the international Centre for Settlement of Investment Disputes”, 35 ICLQ (1986) p. 813, Sturma, “Decision on Jurisdiction of the ICSID Tribunal 136 137

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ADMISSIBILITY (RECEVABILITÉ) There are no conditions of admissibility as such built into the structure of jurisdiction under the ICSID Convention. Article 26 specifically excludes the rule of local remedies – which is usually applicable to arbitration by way of diplomatic protection of aliens. The article states: Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy. A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition or its consent to arbitration under this Convention.

This article, however, permits the express requirement that local remedies by exhausted by the respondent state in a treaty or agreement. This has apparently occurred very rarely. Much depends on the interpretation of the agreement s and consents. In the Maffezini Case138 it was admitted by the tribunal that such a requirement could be made by the respondent state in a BIT with the result that operation of the rule of local remedies prior to arbitration would be reinstated pursuant to the second sentence of Article 26. However, in that case the tribunals found that the BIT did not specifically restore the local remedies rule in connection with ICSID arbitration. Clearly, if the rule of local remedies is expressly reinstated by an agreement or treaty, it is a condition of admissibility. As a result, if the respondent state fails to raise the objection based on the rule at the appropriate time,139 there would be a waiver of application in the Case Ceskotovellská obhodni banka v. Slovak Republic”, 60 Heidelberg Journal of International Law (2000) p. 151. These works are more descriptive than analytical. 138 (2000), <www.worldbank.org/icsid>. In the Azurix Corp. Case (2003), ibid., the respondent in an analogous fashion contended unsuccessfully that the BIT excluded ICSID arbitration because there was a waiver of reference to all fora except the courts of the respondent State. 139 See Rule 41 of the ICSID Arbitration Rules.

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of the rule. Such an objection is not on the same footing as an objection to compétence. INCIDENTAL JURISDICTION – PROVISIONAL MEASURES Article 47 of the ICSID Convention states that a tribunal “may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party.” There are several cases in which the tribunals have been requested to recommend provisional measures and in which they have prescribed such measures.140 There are three principles which have been adverted to in the ICSID cases. They relate to (1) the authority or jurisdiction to grant provisional measures, (ii) the effect of an order granting provisional measures, and (iii) the circumstances in which provisional measures will be recommended. The language of Article 47 is identical with that of Article 41(1) of the ICJ Statute. As a result, perhaps, ICSID tribunals have followed the jurisprudence of the ICJ in all three areas. The recent Occidental Petroleum Corporation et al. Case decided by an ICSID tribunal typifies the approach of ICSID tribunals to provisional measures. On the first point the tribunal took the view that there had to be prima facie a basis for the exercise of jurisdiction on the merits stating: Whilst the Tribunal need not definitely satisfy itself that it has jurisdiction in respect of the merits of the case at issue for purposes of ruling upon the requested provisional measures, it will not order such measures unless there is, prima facie, a basis upon which the Tribunal’s jurisdiction might be established. In their Request for Arbitration, the Claimants invoke two such bases of jurisdiction: they

See, e.g., the Maffezini Case (1999), <www.worldbank.org/icsid>; the Casado Case (2001), ibid.; the Tanzania Electric Supply Company Limited Case (1999), ibid.; the Saipem S.p.A. Case (2007), ibid.; the Occidental Petroleum Corporation et al. Case (2007), ibid. 140

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state first that “the parties consented to the submission of the dispute to the jurisdiction of the Centre on May 17, 2006, pursuant to Article VI(3) of the Treaty” (see Claimants’ Request for Arbitration at page 5); alternatively, the Claimants aver that they and the Respondent “consented to the submission of the dispute to the jurisdiction of the Centre on May 21, 1999, pursuant to the Participation Contract”. They refer to clauses 20.2.1 and 20.3 thereof (see claimants’ request for arbitration at p. 6). Prima facie bases of jurisdiction, therefore, exist in the present case.141

On the second point the tribunal said that orders for provisional measures, though described as recommendations in Article 47, were orders, not mere recommendations, and implied that they were binding on the parties.142 On the same point the language used in the Tokios Tokele’s Case may be cited: It is to be recalled that, according to a well-established principle laid down by the jurisprudence of the ICSID tribunals, provisional measures ‘recommended’ by an ICSID tribunal are legally compulsory; they are in effect ‘ordered’ by the tribunal, and the parties are under a legal obligation to comply with them.143

On the third point the tribunal in the Occidental Petroleum Corporation et al. Case elaborated as follows: 59. It is also well established that provisional measures should only be granted in situations of necessity and urgency in order to protect rights that could, absent such measures, be definitely lost. It is not contested that provisional measures are extraordinary measures which should not be recommended lightly. In other words, the circumstances under which provisional measures are required under Article 47 of the ICSID Convention are those in which the measures are necessary to preserve a party’s rights and where the need is urgent in order to avoid irreparable harm. The

141 142 143

(2007) para. 55, ibid. (2007) para. 58, ibid. (2003) Procedural Order No. 1, para. 4, ibid.

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Chapter 7. Arbitral Tribunals of the ICSID jurisprudence of the International Court of Justice dealing with provisional measures is well established: a provisional measure is necessary where the actions of a party “are capable of causing or of threatening irreparable prejudice to the rights invoked”. A measure is urgent where “action prejudicial to the rights of either party is likely to be taken before such final decision is given”. 60. The Tribunal also emphasizes that the purpose of provisional measures is to guarantee the protection of rights whose existence might be jeopardized in the absence of such measures. The ICSID tribunal in the Maffezini case elaborated on the meaning of an “existing right”: 12. Rule 39(1) specifies that a party may request ‘. . . provisional measures fox the preservation of its rights . . .’ 13. The use of the present tense implies that such rights must exist at the time of the request, must nor be hypothetical, nor are ones to be created in the future. 14. An example of an existing right would be an interest in a piece of property, the ownership of which is in dispute. A provisional measure could be ordered to require that the property not be sold or alienated before the final award of the arbitral tribunal. Such an order would preserve the status quo of the property, thus preserving the rights of the party in the property. 61. In other words, in order for an international tribunal to grant provisional measures, there must exist both a right to be preserved and circumstances of necessity and urgency to avoid irreparable harm. The Tribunal will thus examine, first, the alleged existence of rights of the Claimants deserving of protection and, second, the alleged existence of a situation of necessity and urgency relative to these rights. ... 63. As a further preliminary observation, the Tribunal wishes to make clear that although a right may not yet have been recognized by the Tribunal, such a right may nonetheless be deserving of protection by way of provisional measures. The Tribunal therefore does not agree with the Respondent’s contention that “the presumption of success or failure on the merits is pure speculation and does not provide a sufficient basis to support an actual existing right” (see

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Respondent’s Counter-Memorial at paragraph 45). Rather, the Claimants at this stage “need only show that they allege the kind of claims that – if ultimately proven – would entitle Claimants to substantial relief” (see Claimants’ Application at paragraph 15). The Respondent’s position would have far reaching consequences. It would mean, for example, that a tribunal could never order protection by way of provisional measures in connection with a right whose existence and alleged violation are precisely the subject-matter of the arbitration. 64. At this stage, the Tribunal reiterates that the right to be preserved only has to be asserted as a theoretically existing right, as opposed to proven to exist in fact. The Tribunal, at the provisional measures stage, will only deal with the nature of the right claimed, not with its existence or the merits of the allegations of its violation. This approach was adopted by the ICSID tribunal in Victor Pey Casado v. Chile where, in its long and thoughtful decision on a request for provisional measures, it stated: For its part, the Tribunal can neither prejudge nor even, to put it correctly, ‘assume in an anticipatory fashion’. [. . .] It must therefore reason, at this preliminary stage of the arbitration process, on the basis not of’ assumptions’ but of hypotheses, in particular that by which it may come to recognise its own jurisdiction on the substance of the case, and in such a case, the hypothesis whereby the rights that the decision may recognise for one or the other of the parties in question could be placed in danger or compromised by the absence of provisional measures. . . . 65. What is meant by a theoretically existing right? Clearly, the facts must show an actual right or legally protected interest, by opposition to a simple interest which does not entail legal protection. This right or legally protected interest must also potentially form part of the Claimants’ individual rights and obligations. Thus, the Tribunal must first determine whether or not the Claimants can theoretically invoke the rights whose) protection they now seek.144 (2007), paras. 59–61, 63–65, ibid. Footnotes omitted. The citation from the Maffezini Case (1999) is at paras. 12–14, ibid., and that from the Casado Case (2001) is at para. 46, ibid. 144

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The ICSID Convention in Articles 48 to 55 deals with the “award” of a tribunal and in Article 54 concerning recognition by contracting states of an award refers to “pecuniary obligations imposed by the award.” There is no indication other than these references to what the jurisdiction of ICSID tribunals is in regard to remedies. It is certain that it was intended that the pecuniary obligations could be imposed on a party in the award of a tribunal. It is arguable that because of the Convention’s silence on the matter ICSID tribunals have what is an inherent power of an international tribunal to prescribe remedies. These include restitutio in integrum and specific performance.145 Be that as it may in theory, tribunals may find it difficult or unrealistic to order specific performance of certain kinds against a state. In the Amco Case the tribunal expressed the view that it doubted that cancellation of a revocation , and restoration, of a licence as restitutio in integrum was available as a remedy against a state.146 Thus, while the authority may exist, the exercise of that authority must be left to the discretion of the tribunal. REOPENING CASES There are extensive express provisions in the ICSID Convention on jurisdiction to reopen cases, although in practice it is only annulment of an award that has been, though infrequently, sought. It is unlikely that an award may be reopened for other reasons than those specified in Articles 49 to 52 of the Convention. There are also procedural limits to the application of the provisions relating to reopening of a case. Article 53(1) provides that an award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except for those provided in the ICSID Convention.

On the inherent powers of international tribunals to prescribe remedies see C.F. Amerasinghe, op. cit. note 15, chapter 10. 146 (1984), 1 ICSID Reports at p. 473. 145

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Article 49 permits decision by the tribunal rendering the award, at the request of a party, of any question which it has omitted to decide in the award and the rectification of any clerical, arithmetical or similar error in the award.147 As regards the former jurisdiction in the Alex Genin et al. Case, the tribunal while conceding that it had the required jurisdiction to reopen the case rejected the claim because the claimants had failed to raise the question in the arbitration.148 Article 50 gives a tribunal the jurisdiction to reopen a case where interpretation is requested by either party.149 This jurisdiction has been exercised very infrequently. Article 51 recognizes the jurisdiction to revise an award on the ground of discovery of some fact of such a nature as decisively to affect the award, provided that, when the award was rendered, the fact was unknown to the tribunal and to the party requesting the revision and that the latter’s ignorance of that fact was not due to negligence.150 The ICSID Convention provides in Article 53 that arbitral agreements are binding and without appeal but also provides in Article 52 that annulment is possible by another tribunal (Committee) constituted under the Convention. Awards may be reopened and annulled (or not) following the procedure set out in the convention. Article 52(1) of the ICSID Convention allows either party to the arbitration proceedings to request the annulment of the award on one or more of the following grounds: the tribunal was not properly constituted; it manifestly exceeded its powers; there was corruption on the part of a member of the tribunal; there was a serious

On the latter see the Amco Case (1990), ICSID Reports p. 638; the LETCO Case (1986), 26 ILM (1987) p. 647; the Maffezini Case (2001), <www .worldbank.org/icsid>, the Alex Genin et al. Case (2002), ibid. See also on Article 49 Schreuer, op. cit. note 14 pp. 829–55. 148 (2002), <www.worldbank.org/icsid>. 149 See Schreuer, op. cit. note 14 pp. 856–67. 150 See the AMT Case (1999), <www.worldbank.org/icsid>; Schreuer, op. cit. note 14 pp. 868–80. 147

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departure from a fundamental rule of procedure; or the award failed to state the reasons upon which it was based.151 The annulment jurisdiction of ICSID has been exercised in several cases. There are three important ones. One arbitral award of the Centre was completely annulled, and two awards were partially annulled. The first of these annulment rulings was made in the Klöckner Case,152 where the annulling tribunal decided that the award was to be completely annulled since the previous tribunal did not apply the law that it ought to have applied in accordance with the ICSID Convention, and thus exceeded its authority. In the Amco Case153 the annulling tribunal ruled that the award was to be partially annulled, because the previous tribunal erred in calculating the sum or money actually invested, in that it did not compute the sum as required in accordance with Indonesian law. The tribunal had, thus, manifestly exceeded its powers. The second tribunal took the view that the deviation from the agreed amount was in fact substantive and justified the termination of the agreement by Indonesia. In the Mine Case154 Guinea requested the annulment of The request for annulment is referred to the Secretary-General of ICSID who then appoints an ad hoc committee of three members (tribunal) from the panel of arbitrators; however, arbitrators who participated in the tribunal which rendered the controversial award may not be appointed. The enforcement of the award could be delayed until a decision is rendered regarding its validity either by means of a request made by the applicant, or at the initiative of the committee. If the applicant requests a stay of enforcement of the award in his application for annulment, enforcement is delayed provisionally until the Committee has ruled on the request. See Schreuer, ibid., pp. 881 ff. 152 (1985), 2 ICSID Reports p. 95. 153 (1986), 1 ibid. p. 509. 154 (1989), 4 ibid. p. 79. The annulment decisions in the three cases but particularly in the Klöckner Case and the Amco Case have been examined by Pirwitz, “Annulment of Arbitral Awards under Article 52 of the Washington Convention on the Settlement of Investment Disputes”, 23 Texas ILJ (1988) p. 73, Reisman, “The Breakdown of the Control Mechanism in I.C.S.I.D. Arbitration”, 4 Duke LJ (1989) p. 739, Branson, “Annulments of ‘Final’ ICSID Awards Raise Questions about the Process”, National LJ (1986) p. 25, Feldman, “The Annulment Proceedings and the Finality of ICSID Arbitral Awards”, 2 FILJ (1987) p. 85, Schatz, “The Effect of the Annulment Decision in Amco v. 151

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the award against it. The second tribunal dismissed the request for annulment of that part of the award which held that Guinea had been in breach of contract; however, it granted the request for annulment of the ruling with respect to damages. In the first two of these proceedings on annulment, the jurisdiction of the ad hoc tribunal was not questioned nor did the tribunals address the issue of jurisdiction. In the Mine Case, however, there were some issues raised about the jurisdiction of the ad hoc tribunal and the tribunal made some statements on this matter. On the concern for finality of ICSID arbitration decisions and the jurisdiction to reopen cases the tribunal took the view that, “while the ICSID Convention described the awards of tribunals as binding and not subject to appeal (Article 53), there were clear exceptions to this by express provision in the Convention. It wrote: A. Finality of ICSID awards 4.02 Article 53 of the Convention provides that the award shall be binding on the parties “and shall not be subject to any appeal or to any other remedy except those provided for in this Convention”. The post-award procedures (remedies) provided for in the Convention, namely, addition to, and correction Indonesia and Klockner v. Cameroon on the Future of the International Centre for Settlement of Investment Disputes”, 3 Am. UJILP (1988) p. 481, Thompson, “The Klöckner v. Cameroon Appeal: A Note on Jurisdiction”, 3 J.Int’l Arb. (1986) p. 93, Curtis, “Amco v. Indonesia”, 83 AJIL (1988) p. 106, Gaillard, “Amco v. Indonesia: Introductory Note”, 25 ILM (1988) p. 1339, Sturzenegger, “ICSID Arbitration and Annulment for Failure to State Reasons – The Decision of the Ad Hoc Committee in Maritime International Nominees Establishment v. The Republic of Guinea”, 9 J.Int’l Arb. (1992) p. 173, Hirsch, The Arbitration Mechanism of the International Centre for the Settlement of Investment Disputes (1993) pp. 14 ff. Many of these authors on account of these three annulment cases in which annulment did take place express concerns about the utility of the annulment mechanism under the ICSID Convention, because particularly it leads to the absence of instant finality and also causes delays. But the answer to this is that the primary aim should be to secure justice, even if it is at the expense of quick “fixes”. Indeed, the grounds for annulment under Article 52 of the Convention are specifically limited and the results of the application of that Article have not been unfair or improper.

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Chapter 7. Arbitral Tribunals of the ICSID of, the award (Art. 49), and interpretation (Art. 50), revision (Art. 51) and annulment (Art. 52) of the award are to be exercised within the framework of the Convention and in accordance with its provisions. It appears from these provisions that the Convention excludes any attack on the award in national courts. The award is final in that sense. It is also final in the sense that even within the framework of the Convention it is not subject to review on the merits. It is not final, on the other hand, in the sense that it is open to being completed or corrected, interpreted, “revised”, or annulled. It is to this last remedy that Guinea has had recourse in the present case.155

The ad hoc tribunal also explained the limited nature of the remedy of annulment which was based only on five grounds and expressed clear views on the manner in which Article 52(1), particularly subparagraphs (b) and (d), should be construed. It wrote: 4.04 Article 52(1) makes it clear that annulment is a limited remedy. This is further confirmed by the exclusion of review of the merits of awards by Article 53. Annulment is not a remedy against an incorrect decision. Accordingly, an ad hoc Committee may not in fact reverse an award on the merits under the guise of applying Article 52. 4.05 The fact that annulment is a limited, and in that sense extraordinary, remedy might suggest either that the terms of Article 52(1). i.e., the grounds for annulment. should be strictly construed or, on the contrary, that they should be given a liberal interpretation since they represent the only remedy against unjust awards. The Committee has no difficulty in rejecting either suggestion. In its view, Article 521) should be interpreted in accordance with its object and purpose, which excludes on the one hand, as already stated, extending its application to the review of an award on the merits and on the other, an unwarranted refusal to give full effect to it within the limited but important area for which it was intended.

155

(1989), 4 ICSID Reports at p. 84.

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4.06 The Committee notes that it is not inconsistent with the foregoing, and that it is in fact incumbent on an ad hoc Committee to give full effect to the wording of Article 52(1) which defines and delimits the grounds for annulment. Thus, Article 52(1)(b) does not provide a sanction for every excess of its powers by a tribunal but requires that the excess be must which necessarily limits an ad hoc Committee’s freedom of appreciation as to whether the tribunal has exceeded its powers. Again, the text of Article 52(ibid.) makes clear that not every departure from a rule of procedure justifies annulment; it requires that the departure be a serious one and that the rule of procedure be fundamental in order to constitute a ground for annulment.156

The tribunal took the view that it had jurisdiction to annul the award partially rather than fully, and that for this reason, Guinea’s request for partial annulment was clearly admissible. Guinea sought the annulment of the portion of the award adjudging MINE’s claim, and not annulment of the portion of the award adjudging Guinea’s counter-claim. Annulment of that portion had not been requested by MINE, either. As a result, that portion of the award would, in the tribunal’s view, remain in effect regardless the annulment in whole or in part of the portion of the award in respect of which Guinea had formulated its request for annulment. In case of a resubmission of a dispute after annulment in part of the original award, the new tribunal would not reconsider any portion of the award not annulled.157 This ad hoc tribunal also conceded and acknowledged that the jurisdiction to annul was subject to a discretion on the part of tribunal which, however, was based entirely on avoiding annulment, where it was not required to remedy procedural injustice and where it would unjustifiably erode the binding force and finality of ICSID awards, and not on the consideration that a series of annulments might impair the effectiveness and integrity of ICSID:

156 157

Ibid. at p. 85. Ibid.

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Chapter 7. Arbitral Tribunals of the ICSID 4.09 Article 52(3) provides that an ad hoc committee “shall have the authority to annul the award or any part thereof on any of the grounds set forth in paragraph (1).” The Convention does not require automatic exercise of that authority to annul an award whenever a timely application for its annulment has been made and the applicant has established one of the grounds for annulment. Nor does the Committee consider that the language of Article 52(3) implies such automatic exercise. 4.10 An ad hoc Committee retains a measure of discretion in ruling on applications for annulment. To be sure, its discretion is not unlimited and should not be exercised to the point of defeating the object and purpose of the remedy of annulment. It may, however, refuse to exercise its authority to annul an award where annulment is clearly not required to remedy procedural injustice and annulment would unjustifiably erode the binding force and finality of ICSID awards. 4.11 In the course of the proceedings, MINE has advanced the argument that a series of annulments if ICSID awards might impair the effectiveness and integrity of ICSID as an international institution for settlement of disputes between States and foreign investors. The Committee was accordingly urged to keep this consideration in mind in its examination of Guinea’s application. 4.12 MINE’s argument wrongly assumes that frequent annulments will necessary be the result of overly strict tests applied by ad hoc Committees. It overlooks the possibility that such frequent annulments reflect neglect by arbitrators, parties or counsel of requirements flowing from the specificity of ICSID arbitration as defined in the Convention and the Arbitration Rules. A pure statistical approach, for which there is in any event no significant basis at the present time, is wholly inappropriate as a measure of ICSID’s effectiveness.158

Ibid. at pp. 85–6. The ICSID annulment mechanism had been criticized on a variety of grounds in the literature: see footnote 154 above. However, the possibility of annulment cannot be criticized. Rather must the scope of the jurisdiction be reasonably conceived. The scope of the ICSID jurisdiction to annul does not appear to be too wide and has been reasonably interpreted. The mechanism of arbitral annulment in national systems of law, particularly in private 158

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The issues that have arisen after the series of arbitral decisions in the Amco Case159 concern res judicata and the implications of the application of the principle in the face of partial nullity declarations in respect of the judgment of the first arbitral tribunal by a subsequent tribunal pursuant to the annulment procedures provided for in the ICSID Convention. This is the only instance in which the issues have arisen. The dispute in the case giving rise to the First Award arose out of a project to develop a hotel property in Jakarta, the Kartika Plaza. Amco Asia’s investment in the project was authorized by an investment licence issued by Indonesia’s Capital Investment Coordination Board (BKPM). In addition, construction and management of the hotel were governed by a joint venture agreement between Amco Asia and an Indonesian corporation, P.T. Wisma, which was affiliated with the Indonesian army. Following a management dispute with Amco Asia, P.T. Wisma seized control of the hotel with the assistance of Indonesian military forces. Some three months later the BKPM revoked Amco Asia’s investment licence, relying in part on the ground that Amco Asia had failed to invest the minimum $3 million of foreign equity capital required by the licence. In the First Award it was held that P.T. Wisma’s takeover of the hotel constituted illegal self-help and that the support lent by the Indonesian military violated both Indonesian law and international law. In addition, the tribunal determined that Amco Asia had been denied due process in the proceedings that culminated in the revocation of its investment licence, and that the revocation was substantively unjustified: Amco Asia had invested much more international law systems, has been examined by van den Berg, “Annulment of Awards in International Arbitration”, in Lillich and Brown (eds.), International Arbitration in the 21st Century (1992) p. 133. 159 The three relevant awards were (1) the Award on the Merits (1984), 1 ICSID Reports p. 413 (referred to here as the First Award), (2) Award on the Annulment Application by Indonesia (1986), 1 ibid. p. 509 (referred to here as the Annulment Case), (3) Resubmitted, Decision on Jurisdiction (1988), 1 ibid. p. 543 (referred to here as the Jurisdiction Case). On this case see also Curtis, “International Investment Disputes – Res Judicata Effect of Partially Annulled ICSID Award”, 83 AJIL (1989) p. 106.

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equity capital than the BKPM gave it credit for. The BKPM’s action therefore violated Indonesian law, as well as the international law principles of pacta sunt servanda and respect for acquired rights. The tribunal made several findings and arrived at several conclusions of law in the course of making the award. Indonesia in the Annulment Case adduced various grounds for annulment of the whole of the First Award. The second tribunal in that case rejected most of these grounds but it held that to qualify as meeting the requirements of the investment licence sums invested by Amco Asia were required by Indonesian law to be recognized and registered by the competent Indonesian authority, the Bank of Indonesia, and that most of Amco Asia’s investment failed to meet that criterion. The second tribunal, consequently, held that the first tribunal had clearly failed to apply the relevant provisions of Indonesian law and had “manifestly exceeded its powers” in this regard.160 That finding was, therefore, annulled. The second tribunal, further, concluded that the first tribunal, in addition to overlooking the registration requirement, had contradicted itself in calculating the amount of Amco Asia’s investment; the tribunal, therefore, held that the first tribunal had “failed to state reasons” for its calculation and annulled that finding as well.161 Because the revocation of Amco Asia’s investment licence was substantively justified, the second tribunal concluded that the finding that Amco Asia could recover damages accruing after the date of its cancellation was flawed. Affirming the illegality of P.T. Wisma’s seizure of the hotel with the support of the Indonesian military prior to that date, the second tribunal found that Amco Asia would have been entitled to damages accruing between the date of the seizure and the date of revocation. However, it noted that the first tribunal’s award of damages was not segregated as to time period hut rather represented the capitalized present value, as of the date of the seizure of Amco Asia’s expected future earnings on the project. The second tribunal as a consequence, annulled the award of damages as a whole. 160 161

1 ICSID Reports at p. 536. Ibid. at pp. 537–8.

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In the Jurisdiction Case the principal issue before the third tribunal was what treatment was to be given to those portions of the First Award that had been annulled. The tribunal rightly held in the first place that matters decided by the first tribunal in the First Award which had not been annulled by the second tribunal were res judicata and could not be reopened and reargued. This applied to all the matters of this nature which had been raised as issues in the Jurisdiction Case about which there was dispute as to whether they had been annulled or not. In the second place, in this regard, it held that although the conclusions which had not been annulled were res judicata, the reasoning upon which those conclusions were based was not res judicata.162 The consequence of this was that that reasoning was not binding to the extent that it could not be reopened and re-litigated. In regard to those conclusions that had been annulled the tribunal held that they were not res judicata and could be re-litigated. There was also a long list of conclusions of the first tribunal produced principally by Amco Asia Corporation, the claimant, which had not been raised in the annulment proceedings and in relation to which the question was asked whether re-litigation could take place because they were res judicata, because they had been reached by the first tribunal and had not been subjected to annulment in any case, though the, reasoning behind these conclusions was not res judicata.163

The third tribunal conceded that there was disagreement between systems of national law as to whether the principle adopted by the tribunal was established citing, for the principle, de Visscher, Aspects récents docents de droit procédural (1966) at p. 179 and a study which concluded that the principle was accepted in the civil law systems: Millar, “The Premises of the Judgment as Res Judicata in Continental and Anglo-American Law”, 39 Mich.L.R. (1940) at pp. 8–9 – see 1 ICSID Reports at pp. 550–1. It proceeded to apply the principle stated in the text because, in its view, the system enabling partial declarations of nullity entrenched in the ICSID Convention required and warranted it: ibid. at pp. 551 ff., but in fact it is most probable that the principle is accepted as a general principle applicable in international adjudication. 163 Ibid. at pp. 556–7. 162

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It was in regard to the questions raised by Indonesia, the respondent, as to whether certain findings in the reasoning of the second tribunal, the annulling tribunal, which related to the conclusions annulling certain parts of the original award that the issue of res judicata was cogently pertinent. Following the principle that reasoning behind a holding was not res judicata, the third tribunal categorically held that some of the ancillary findings in the reasoning behind the conclusions of annulment were not res judicata and could be reopened and re-litigated in the proceedings before the third tribunal. The argument adduced by the respondent, Indonesia, that matters in the reasoning which were “integral to” the conclusions which were annulled could not be re-litigated, because the y had become res judicata by virtue of the res judicata character of the conclusions of annulment, was not accepted. There are some difficulties with the approach of the tribunal to conclusions of annulment and the reasoning behind them. The point is that such conclusions are not conclusions of the same nature or genre as the conclusions in the first or original award which were the subject of annulment. The conclusions of annulment erased certain conclusions in the original award and left open the issues relating to them as undecided and open to litigation and settlement in a future arbitration, if necessary. What they did was not to insert the opposite conclusion to the conclusions reached in the original award but merely to remove the latter so that the position was that the conclusions were never reached. Thus, while it is not meaningless to say that the annulment conclusions are res judicata to the extent that they did in fact establish as a matter that was “chose jugé” that the conclusions in question in the original award did not exist there is no sense in giving them any value as establishing positive or negative conclusions in regard to the respective claims raised in the original or first arbitration. Those annulling conclusions are not res judicata in a substantive sense in regard to claims and issues raised in the first arbitration and in regard to which the conclusions reached were annulled. Hence, the question of res judicata (“chose jugé”) in regard to these annulled conclusions and by the same token the reasoning behind them, is irrelevant to the issue

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of what is res judicata and what is not in the first arbitral award, and what may be reopened and re-litigated. In fact, the consequence of the partial annulment is simply that (i) all the conclusions under the first award which were not annulled are res judicata, (ii) all the reasoning behind those conclusions were not res judicata, and (iii) everything else, particularly those conclusions and issues related to them which were annulled are not res judicata and are completely alien to re-litigation, irrespective of the reasoning behind the annulment decisions and of being conclusions under the first award which still stand. More difficult, the above having been said, is to distinguish between conclusions (or “findings”) which are res judicata in a given judgment of a tribunal and what is part of the “reasoning” leading to such conclusions which is not res judicata, particularly when some conclusions or findings have been annulled and some have not, and still stand, whether they were the subject of the annulment proceedings or not. The issue may certainly arise where no annulment proceedings have taken place after an arbitration or adjudication and a related dispute is litigated in a later arbitration or adjudication between the same parties but the problem is particularly acute in cases where there has been partial annulment, as occurred in the Amco Case. In the Amco Case the rulings of the third tribunal as to what “findings” were conclusions that were res judicata may not be questionable on grounds related to the problem raised above, but that problem is of a general nature and it is one which is difficult to solve in the abstract. Solutions will relate to the circumstances of a particular case. It may not be always the answer to identify the final conclusion or finding or final conclusions or findings which lead directly to the prescription of a remedy as the only element that is res judicata. As the Amco Case shows, there may be findings prior to those final conclusions or findings which are sufficiently important for them to be regarded as res judicata. Not all of the matters identified as res judicata were final conclusions leading directly to the prescription of the remedy. Many of them were not of this nature but were findings or conclusions which were made

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in the course of coming to the final conclusions that there were breaches of contract. Hence, there is still a question the answer to which requires the exercise of judgment, namely what matters are “findings” or “conclusions” that are to be res judicata as contrasted with conclusions or findings that are not to be so regarded.

8 THE JUDICIAL TYPE BODIES OF THE WORLD TRADE ORGANIZATION

THE WTO DISPUTE SETTLEMENT SYSTEM Settling disputes in the field of international trade in a timely and structured manner is important. It helps to prevent the detrimental effects of unresolved international trade conflicts and to mitigate the imbalances between stronger and weaker players by having their disputes settled on the basis of rules rather than having power to determine the outcome. The WTO dispute settlement system is one of the major results of the Uruguay Round of Multilateral Trade Negotiations at which was forged the WTO Agreement which entered into force in 1995. (a) The Dispute Settlement Understanding (DSU) The present dispute settlement system flows from the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU)1 On the background to the DSU see Hudec, “The new WTO Dispute Settlement Procedure”, Minnesota Journal of Global Trade (1999) at p. 1269. 1

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The DSU is Annex 2 of the WTO Agreement,2 and lays down the procedures and rules that define the current dispute settlement system. A key purpose of the dispute settlement system is to provide security and predictability for the multilateral trading system.3 Although international trade is taken in the WTO to be the flow of goods and service between members, such trade is in general not conducted by states, but by private economic operators. By supporting the rule of law, the dispute settlement system makes the trading system more secure and predictable for such operators and for states. Where non-compliance with the WTO Agreement has been alleged by a WTO member, the dispute settlement system provides ultimately for a relatively speedy resolution of the disputes through independent rulings which must be implemented promptly, failing which the non-implementing members will face possible trade sanctions. Typically, a dispute arises when one WTO member adopts a trade policy measure which one or more other members consider to be inconsistent with the obligations flowing from the WTO Agreement. Any member that feels aggrieved in such a case is entitled to invoke the procedures and provisions of the dispute settlement system in order to challenge that measure. If the parties to the dispute do not reach a mutually agreed solution, a procedure based on rules in which the merits of the The annexes of the WTO Agreement contain all the particular multilateral agreements. The WTO Agreement incorporates all agreements that have been concluded in the Uruguay Round. The agreement itself, apart from the Annexes, created the WTO as an international organization and consists of sixteen Articles. “WTO Agreement” as referred to herein, includes this Agreement and the Annexes. On the DSU see WTO Secretariat, A Handbook on the WTO Dispute Settlement System (2004) pp. 1 ff. This section on the WTO Dispute Settlement System is based on the account therein. See also Van den Bossche, The Law and Policy of the World Trade Organization (2005) pp. 172 ff. 3 Article 3.2 of the DSU. According to the panel in US – Section 301 Trade Act, Panel Report, para. 7.75, the DSU is one of the most important instruments of the WTO in protecting the security and predictability of the multilateral trading system. 2

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complainant’s claims will be examined by an independent body (panels and the Appellate Body) is guaranteed to the complainant. If the complainant prevails, the desired outcome is to secure the withdrawal of the measure found to be inconsistent with the WTO Agreement. In addition, compensation and countermeasures (the suspension of obligations) are available as secondary and temporary responses to a contravention of the WTO Agreement.4 This system is equally important from the perspective of the respondent whose measure is under challenge, since it provides a forum for the respondent to defend itself, if it disagrees with the claims raised by the complainant.5 The rulings of the bodies involved (the Dispute Settlement Body (DSB), the Appellate Body, panels and arbitrations) are expected to reflect and correctly recognize rights and obligations flowing from the WTO Agreement.6 The general idea behind the system is that the Appellate Body, panels and arbitrators will act judicially, even though their role admittedly under the DSU is only to assist the DSB in its functions. Their rulings are not as such binding. The precise scope of the rights and obligations contained in the WTO Agreement is not always evident from the language of the legal texts. Legal provisions such as those in the Agreement are often drafted in general terms so as to cover a multitude of individual cases, not all of which can be specifically regulated. Whether the existence of a certain set of facts gives rise to a violation of a legal requirement contained in a particular provision may, therefore, be a difficult question to answer. In most cases, the answer is to be found only after the legal terms contained in the provision at issue are interpreted. Moreover, legal provisions in international agreements may often lack clarity, because they embody compromise formulations resulting from multilateral negotiations. The participants in a negotiating process often reconcile their diverging positions

Article 3.7 of the DSU. Article 3.2 of the DSU states that the dispute settlement system serves to preserve the rights and obligations of the members under the WTO Agreement. 6 Articles 3.2 and 19.2 of the DSU. 4 5

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by agreeing, in order to satisfy the demands of different domestic constituents, to a text which is ambiguous and indeterminate. Thus, individual cases often may require an interpretation of the pertinent provisions. It is noted that Article IX(2) of the WTO Agreement provides that the Ministerial Conference and the General Council of the WTO have the “exclusive authority to adopt interpretations “of the WTO Agreement. At the same time the DSU expressly states that the dispute settlement system is intended to clarify the provisions of the WTO Agreement “in accordance with customary rules of interpretation of public international law”.7 The DSU, therefore, recognizes the need to clarify WTO rules and mandates that this clarification take place pursuant to rules of interpretation set by customary international law. Article 17.6 of the DSU implicitly recognizes that panels may produce legal interpretations. The “exclusive authority” of Article IX(2) of the WTO Agreement is therefore to be understood to cover the possibility of adopting “authoritative” interpretations that are of general validity for all WTO members – unlike interpretations by panels, the Appellate Body, and arbitrations which are applicable only to the parties and to the subject matter of a specific dispute. The result is that the DSU mandate to clarify WTO rules by dispute settlement procedures is without prejudice to the rights of members to seek authoritative interpretations under Article IX(2) of the WTO Agreement.8 While allowing the dispute settlement system to clarify WTO law, adding to or diminishing the rights and obligations of members is precluded. The DSU explicitly cautions the WTO dispute settlement system against “judicial activism”, i.e. against taking on the role of “legislator”. In US – Certain Economic Products, the Appellate Body stated in this regard: We observe that it is certainly not the task of either panels or the Appellate Body to amend the DSU or to adopt interpretations within

7 8

Article 3.2 of the DSU. Article 3.9 of the DSU.

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the meaning of Article IX:2 of the WTO Agreement. Only WTO members have the authority to amend the DSU or to adopt such interpretations. Pursuant to Article 3.2 of the DSU, the task of panels and the Appellate Body in the dispute settlement system of the WTO is “to preserve the rights and obligations of members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law.” Determining what the rules and procedures of the DSU ought to be is not our responsibility nor the responsibility of panels; it is clearly the responsibility solely of the members of the WTO.9

As regards the methods of interpretation within the dispute settlement system, the DSU refers to the “customary rules of interpretation of public international law.” Articles 31 and 32 of the Vienna Convention on the Law of Treaties which enshrine most of the customary rules of interpretation of public international law, will apply. The Appellate Body has ruled that these Articles could serve as a point of reference for discerning the applicable customary rules.10 According to these Articles the WTO Agreement is to be interpreted primarily according to the ordinary meaning of the words in the relevant provision, viewed in their context and in the light of object and purpose of the agreement. The ordinary meaning of a term in a provision is to be discerned on the basis of the plain text. The negotiating history of the agreement is, according to Article 32 of the Vienna Convention, only a subsidiary tool of interpretation. It is to be used generally as confirmation of the interpretation according to the ordinary meaning, context and object and purpose or if that interpretative result is ambiguous, obscure, manifestly absurd or unreasonable. One of the corollaries of the rules on interpretation is that meaning and effect must be given to all terms of an agreement, rather than reducing whole parts of an agreement to redundancy or

Appellate Body Report (2001), para. 92. See, e.g., Appellate Body Report, US – Gasoline (1996), DSR 1996: 1, at p. 15; Appellate Body Report, Japan – Alcoholic Beverages II, (1996), DSR 1996: 1, at p. 104. 9

10

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inutility.11 Conversely, the process of interpretation does not permit reading words into an agreement that are not there.12 On the one hand, the dispute settlement system is intended to establish the rights of members and to clarify the scope of these rights and obligations, and thus achieve higher levels of security and predictability. On the other hand, the primary objective of the system is not to make rulings or to develop jurisprudence but as in judicial systems, generally, the priority is to settle disputes, preferably through a mutually agreed solution which is consistent with the WTO Agreement.13 Adjudication is a recourse of last resort. Mutually agreed solutions, employing any means available, such as good offices, conciliation and mediation, are preferred solutions and are encouraged, even after reference to a panel and in the course of judicial type proceedings.14 The DSU emphasizes that prompt settlement of dispute is essential, if the WTO is to function effectively and the balance of rights and obligations between the members is to be maintained.15 Justice must not only provide an equitable outcome but also be swift. To

See e.g., Appellate Body Report, US – Gasoline (1996), DSR 1996: at pp. 16, 23; Appellate Body Report, Japan – Alcoholic Beverages II (1996) at pp. 104, 105–6; Panel Report, US – Section 301 Trade Act, para. 7.22. 12 Appellate Body Report, EC – Computer Equipment (1998), para. 83. With respect to Article 33 of the Vienna Convention, it is noted, the WTO Agreement is authentic in English, French and Spanish. This provision also embodies customary international law. On interpretation see also Appellate Body Reports, Canada – Aircraft (1999), para. 153; EC – Asbestos (2001), para. 92; US – Gambling (2005), paras. 166–7, 175, 176, 178; EC – Chicken Cuts (2005), paras. 175–6, 193–5, 238–40, 255, 259, 265–6, 270–3, 283, 289, 290–3, 297, 300, 304–5, 309, 319–21. See also other cases cited in Appellate Body Secretariat, WTO Appellate Body Repertory of Reports and Awards 1995–2006 (2007) pp. 326–32. 13 Article 3.7 of the DSU. 14 By requiring formal consultations as the first stage of any dispute, the DSU provides a framework in which the parties to a dispute must always at least attempt to negotiate a settlement. Indeed, a bilateral settlement always remains possible, and the parties are always encouraged to make efforts in that direction. (Articles 3.7 and 11 of the DSU). 15 Article 3.3 of the DSU. 11

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this end the DSU sets out in considerable detail the procedures to be followed and the deadlines to be met in resolving disputes. The detailed procedures are designed to achieve efficiency and recognize the right of a complainant to move forward with a complaint even if the respondent does not agree.16 The timeframes designated might appear long. However, the fact that disputes in the WTO are usually very complex in both factual and legal terms must be taken into account. In spite of that, the dispute settlement system of the WTO functions relatively fast. WTO members have agreed to use the multilateral system for settling their WTO trade disputes rather than resorting to unilateral action,17 which would involve a series of countermeasures and result in a trade war. To prevent downward spirals, the DSU mandates the use of a multilateral system of dispute settlement to which WTO members must have recourse when they seek redress against another member under the WTO Agreement.18 Whatever actions the complaining member takes, it may only take them based on the findings of an adopted panel or Appellate Body Report or arbitration award.19 The member concerned must also respect the procedures foreseen in the DSU for the determination of the time period for implementation and impose countermeasures only on the basis of an authorization by the DSB.20 By mandating recourse to the multilateral system of the WTO for the settlement of disputes, Article 23 of the DSU also precludes the use of other fora for the resolution of a WTO-related dispute. The system has exclusive jurisdiction over a WTO-related dispute. As was stated by the panel in US – Section 301 Trade Act, Article 23.1 of the DSU

Articles 4.3 and 6.1 of the DSU. If a case is adjudicated, settlement should normally take no more than one year for a panel or arbitrator’s ruling and no more than sixteen months if the case is appealed. If the complainant deems the case urgent, consideration of the case should take even less time. 17 Article 23 of the DSU. 18 Ibid. 19 Article 23.2(a) of the DSU. 20 Article 23.2(b) and (c) of the DSU. 16

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Chapter 8. The Judicial Type Bodies of the WTO imposes on all Members to “have recourse to” the multilateral process set out in the DSU when they seek the redress of a WTO inconsistency. In these circumstances, members have to have recourse to the DSU dispute settlement system to the exclusion of any other system, in particular a system of unilateral enforcement of WTO rights and obligations. This, what one could call “exclusive dispute resolution clause”, is an important new element of members’ rights and obligations under the DSU.21

Moreover, as Article 23.2(a) of the DSU provides, members are prohibited from making a determination to the effect that a violation has occurred, that benefits have been nullified or impaired, or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of the DSU. The dispute settlement system is compulsory. All WTO members are subject to it, as they have all signed and ratified the WTO Agreement as a single undertaking, of which the DSU is a part. The DSU subjects all WTO members to the dispute settlement system for all disputes arising under the WTO Agreement. Therefore, there is no need for the parties to a dispute to accept the jurisdiction of the WTO dispute settlement system in a separate declaration or agreement. Thus, every member has assured access to the dispute settlement system and no respondent member may escape that jurisdiction. The WTO dispute settlement system only has contentious, and not advisory, jurisdiction. In US – Wool Shirts and Blouses, the Appellate Body held: “Given the explicit aim of dispute settlement that permeates the DSU, we do not consider that Article 3.2 of the DSU is meant to encourage either panels or the Appellate Body to “make law” by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute.”22 The WTO dispute settlement system is only called upon to clarify WTO law in the context of an actual dispute. 21 22

Panel Report para. 743. Appellate Body Report (1997) at p. 340.

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The only participants in the dispute settlement system are the member governments of the WTO, which can take part either as parties or as third parties. However, as will be seen later in this chapter, provision has been made by the panels and the Appellate Body for other persons or entities to contribute to proceedings. The WTO dispute settlement system applies to all disputes brought under the WTO agreements listed in Appendix 1 of the DSU, the so-called “covered agreements.”23 The covered agreements also include the so-called plurilateral trade agreements contained in Annex 4 to the WTO Agreement which are called “plurilateral” as opposed to “multilateral” because not all WTO members have signed them. However, the applicability of the DSU to those plurilateral trade agreements is subject to the adoption of a decision by the parties to each of these agreements setting out the terms for the application of the DSU to the individual agreement, including any special and additional rules or procedures.24 The Committee on Government Procurement has taken such a decision,25 but not the Committee on Trade in Civil Aircraft for the Agreement on Trade in Civil Aircraft. As has been stated, because the DSU applies to all the covered agreements, it provides for a coherent and integrated dispute settlement system; it puts an end to the former “GATT à la carte”, where each agreement not only had a different set of signatories but also separate dispute settlement rules.26 In some instances, there are so-called “special and additional rules and procedures” on dispute settlement contained in the covered agreements.27 They take precedence over the rules in the DSU to the extent that there is a difference between the rules and procedures of the DSU and the

Article 1.1 of the DSU. See infra on the jurisdiction ratione materiae of panels and the Appellate Body. 24 Appendix 1 of the DSU. 25 Notification under Appendix 1 of the DSU, communication from the Chairman of the Committee on Government Procurement, WT/DSB/7, 12 July 1996. 26 See WTO Secretariat, op. cit. note 1 p. 10. 27 Article 1.2 and Appendix 2 of the DSU. 23

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special and additional rules and procedures.28 Such a “difference” or conflict between DSU and the special rules exists only “where the provisions of the DSU and the special or additional rules and procedures of a covered agreement cannot be read as complementing each other”, because they are mutually inconsistent, such that adherence to the one provision would lead to a violation of the other provision.29 The DSU also addresses the particular status of developing country members of the WTO. Broadly, while the agreements establish the members’ substantive trade obligations, the DSU chiefly specifies the procedures under which such substantive obligations can be enforced. Thus, in the dispute settlement system, special and differential treatment30 does not take the form of reducing obligations, providing enhanced substantive rights or granting transition periods, but rather takes a procedural form, for instance, by making available to developing country members additional or privileged procedures, or longer or accelerated deadlines. (b) The WTO Organs Involved in Dispute Settlement The operation of the WTO dispute settlement process involves the parties and third parties to a case, the DSB, panels, the Appellate Body, the WTO Secretariat, arbitrators, independent experts and several specialized institutions. Among the WTO organs involved in dispute settlement an important distinction is to be made between a political institution, the DSB and independent, judicial-type bodies, such as panels, the Appellate Body and arbitrators. The latter three organs are judicial-type bodies because their decisions or recommendations are not binding, unless adopted by the DSB. They do resolve disputes according to law, however.

Article 1.2 of the DSU. Appellate Body Report, Guatemala – Cement I (1998), paras. 65 and 66. 30 “Special and differential treatment” is a technical term used throughout the WTO Agreement to designate those provisions that are applicable only to developing-country members. 28 29

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The General Council discharges its responsibilities under the DSU through the DSB.31 Like the General Council, the DSB is composed of representatives of all WTO members. These representatives may receive instructions from their capitals on the positions to take and the statements to make in the DSB. The DSB is, as such, a political body. The DSB is responsible for administering the DSU, i.e. for overseeing the entire dispute settlement process. The DSB has the authority to establish panels, adopt panel and Appellate Body Reports, maintain surveillance of implementation of rulings and recommendations and authorize the suspension of obligations under the covered agreements.32 The DSB meets as often as is necessary to adhere to the timeframes provided for in the DSU.33 The staff of the WTO Secretariat provides administrative support for the DSB.34 The general rule is for the DSB to take decisions by consensus.35 Footnote 1 to Article 2.4 of the DSU defines consensus as being achieved if no WTO member, present at the meeting when the decision is taken, formally objects to the proposed decision. However, when the DSB establishes panels, when it adopts panel and Appellate Body Reports and when it authorizes retaliation, the DSB must approve the decision, unless there is a consensus against it.36 At the three mentioned important stages of the dispute settlement process (establishment, adoption and retaliation), the DSB must automatically decide to take the action ahead, unless there is a consensus not to do so. This means that one sole member can always prevent this reverse consensus, i.e. it can avoid the blocking of the decision (being taken). To do so that member merely needs to insist on the decision being approved. Thus, the member requesting the establishment of a panel, the adoption of the report Article IV(3) of the WTO Agreement. Article 2.1 of the DSU. 33 Article 2.3 of the DSU. 34 Article 27.1 of the DSU. 35 Article 2.4 of the DSU. 36 Articles 6.1, 16.4, 17.14, 22.6 of the DSU. This is negative or reverse consensus. 31 32

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or the authorization of the suspension of concessions can ensure that its request is approved by merely placing it on the agenda of the DSB. The DSU provides no opportunity for blockage by individual members in decision-making on these important matters. The DSB has its own chairperson, who is usually one of the Geneva-based ambassadors, i.e. a chief of mission of a member’s permanent representation to the WTO.37 The chairperson is appointed by a consensus decision of the WTO members. The chairperson of the DSB has mainly procedural functions. He or she is also the addressee of members’ communications to the DSB. In addition, the chairperson has several responsibilities in specific situations. For example, the chairperson determines, upon request by a party and in consultation with the parties to the dispute, the rules and procedures in disputes involving several covered agreements with conflicting “special or additional rules and procedures” if the parties cannot agree on the procedure within twenty days.38 In dispute settlement cases involving a least-developed country member, the least-developed country can request the DSB chairperson to offer his/her good offices, conciliation and mediation before the case goes to a panel.39 Further, the DSB chairperson is to be consulted before the Director-General determines the composition of the panel pursuant to Article 8.7 of the DSU, and before the Appellate Body adopts or amends its Working Procedures pursuant to Article 17.9 of the DSU. The Director-General of the WTO may, acting in an ex officio capacity, offer his/her good offices, conciliation or mediation with a view to assisting members to settle disputes pursuant to Article 5.6 of the DSU.40 The Director-General convenes the meetings of the DSB and appoints panel members upon the request of either party, and, in consultation with the Chairman of the DSB and the Chairman of the relevant Council or Committee, where the parties

37 38 39 40

Article IV(3) of the WTO Agreement. Article 1.2 of the DSU. Article 24.2 of the DSU. Ibid.

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cannot agree on the composition of the panel within twenty days.41 The Director-General also appoints the arbitrator(s) for the determination of the reasonable period of time for implementation, if the parties cannot agree on the period of time and on the arbitrator,42 or for the review of the proposed suspension of obligations in the event of non-implementation.43 The staff of the WTO Secretariat, which reports to the DirectorGeneral, assists members in respect of dispute settlement at their request,44 conducts special training courses,45 and provides additional legal advice and assistance to developing-country members in matters relating to dispute settlement within the parameters of impartiality called for by Article 27.2 of the DSU. The Secretariat also assists parties in composing panels by proposing nominations for potential panelists to hear the dispute,46 assists panels once they are composed,47 and provides administrative support for the DSB. Panels are the judicial-type bodies, in a way tribunals, in charge of adjudicating disputes between members in the first instance. They are normally composed of three, and exceptionally five, experts selected on an ad hoc basis. This means that a different panel is composed for each dispute. Anyone who is well qualified and independent can serve as panelist.48 Article 8.1 of the DSU mentions, as examples, a person who has served on or presented a case to a panel or who has served as representative of a member or of a contracting party to GATT 1947 or as a representative to the Council or Committee of any covered agreement or its predecessor agreement, or who has worked in the Secretariat, taught or published on international trade law or policy, or served as a senior trade policy official of a member. The WTO Secretariat maintains a

41 42 43 44 45 46 47 48

Article 8.7 of the DSU. Article 21.3(c) of the DSU. Article 22.6 of the DSU. Article 27.2 of the DSU. Article 27.3 of the DSU. Article 8.6 of the DSU. Article 27.1 of the DSU. Articles 8.1 and 8.2 of the DSU.

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list of names of governmental and non-governmental persons, from which panelists may be drawn.49 WTO members regularly propose names for inclusion in that list, and, in practice, the DSB always approves their inclusion without debate. It is not necessary to be on the list in order to be proposed as a potential panel member in a specific dispute. Although some individuals have served on more than one panel, most serve only on one panel. There is thus no institutional continuity of personnel between the different ad hoc panels. Whoever is appointed as a panelist serves independently and in an individual capacity, and not as a government representative or as a representative of any organization.50 The panel composed for a specific dispute must review the factual and legal aspects of the case and submit a report to the DSB in which it expresses its conclusions as to whether the claims of the complainant are well founded and the measures or actions being challenged are WTO-inconsistent. If the panel finds that the claims are indeed well founded and that there have been breaches by a member of WTO obligations, it makes a recommendation for implementation by the respondent.51 The WTO Secretariat is responsible for the administrative aspects of the dispute settlement procedures, as well as for assisting panels on the legal and procedural aspects of the dispute at issue.52 Assisting panels means providing them with legal support by advising on the legal issues arising in a dispute, including the jurisprudence of past panels and the Appellate Body. Because panels are not permanent bodies, the Secretariat serves as the institutional memory to provide some continuity and consistency among panels, which is necessary to achieve the DSU’s objective of providing security and predictability to the multilateral trading system. The Secretariat staff assisting a panel usually consists of at least one secretary and one legal officer. Often, one of the two belongs to the division of the Secretariat responsible for the covered agreement 49 50 51 52

Article 8.4 of the DSU. Article 8.9 of the DSU. Articles 11 and 19 of the DSU. Article 27.1 of the DSU.

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invoked, and the other to the Legal Affairs Division. The staff of the Rules Division assists panels dealing with disputes on trade remedies (anti-dumping and subsidies). Unlike panels, the Appellate Body is a permanent body of seven members entrusted with the task of reviewing the legal aspects of the reports issued by panels. The Appellate Body is thus the second and final stage in the adjudicatory part of the dispute settlement system. The addition of this second adjudicatory stage was one of the major innovations of the Uruguay Round of Multilateral Trade Negotiations. One important reason for the creation of the Appellate Body is the more automatic nature of the adoption of panel reports since the inception of the DSU. In the current dispute settlement system, individual members of the WTO are no longer able to prevent the adoption of panel reports, unless they have at least the tacit approval of all the other members represented in the DSB. The resulting virtual automatic nature of the adoption of panel reports not only took away the previous possibility that the “losing” party could block the adoption of the report, it also took away the possibility for parties or other members to reject panel reports due to a substantive disagreement with the panel’s legal analysis. Wherever one single member, typically the party “winning” the dispute, is primarily guided by its intention to win the dispute, such rejection is impossible even if the panel report is legally flawed. Under the old dispute settlement system of GATT 1947, by contrast, some panel reports were not adopted because the legal interpretation of a particular GATT provision was unacceptable to the contracting parties from a substantive legal perspective. While this is no longer possible, the appellate review carried out by the Appellate Body now has the function of correcting possible legal errors committed by panels. In doing so, the Appellate Body also provides consistency of decisions, which is in line with the central goal of the dispute settlement system to provide security and predictability to the multilateral trading system.53

53

Article 3.2 of the DSU.

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If a party files an appeal against a panel report, the Appellate Body reviews the challenged legal issues and may uphold, reverse or modify the panel’s findings.54 The DSB established the Appellate Body of seven members in 1995.55 The DSB appoints the members by consensus56 for a fouryear term and can reappoint a person once.57 An Appellate Body member can, therefore, serve a maximum of eight years. Appellate Body members must be persons of recognized authority, with demonstrated expertise in law, international trade and the subject matter of the covered agreements generally, and they must not be affiliated with any government.58 Most Appellate Body members have so far been university professors, practising lawyers, past government officials or senior judges. Being an Appellate Body member is theoretically only a part-time occupation. However, the workload and, conversely, the ability to pursue substantial other professional activities, depends on the number of appeals being filed, given that Appellate Body members must be available at all times and on short notice.59 The seven Appellate Body members must be broadly representative of the membership of the WTO,60 although they do not act as representatives of their own countries but rather they represent the WTO membership as a whole. Either three or four Appellate Body members have always been citizens of a developing-country member. According to paragraph 5 of the Working Procedures for Appellate Review, the seven Appellate Body members elect one of their number as Chairman who serves a term of one or maximum two years. Pursuant to paragraph 3 of the above mentioned

Article 17.13 of the DSU. Decision Establishing the Appellate Body, Recommendations by the Preparatory Committee for the WTO approved by the Dispute Settlement Body on 10 February 1995, WT/DSB/1, dated 19 June 1995. 56 Article 2.4 of the DSU. 57 Article 17.2 of the DSU. 58 Article 17.3 of the DSU. 59 Ibid. 60 Ibid. 54

55

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document, the Chairman is responsible for the overall direction of the Appellate Body business, especially with regard to its internal functioning. The Appellate Body Secretariat provides legal assistance and administrative support to the Appellate Body.61 To ensure the independence of the Appellate Body, this Secretariat is only linked to the WTO Secretariat administratively, but is otherwise separate. In addition to panels and the Appellate Body, as an alternative arbitrators, either as individuals or as groups, can be called to adjudicate certain questions at several stages of the dispute settlement process.62 However, it is a possibility that has so far very rarely been used. Arbitration results are not appealable but can be enforced through the DSU.63 Much more frequent are two other forms of arbitration foreseen in the DSU for specific situations and questions in the process of implementation, i.e. after the DSB has adopted a panel (and, if applicable, an Appellate Body) report, and the “losing” party is bound to implement the DSB rulings and recommendations. The first such situation, which an arbitrator may be called to decide on, is the establishment of the “reasonable period of time” granted to the respondent for implementation.64 The second is where a party subject to retaliation may also request arbitration if it objects to the level or the nature of the suspension of obligations proposed.65 These two forms of arbitration result in decisions that are binding for the parties. Disputes often involve complex factual questions of a technical or scientific nature, for instance when the existence or degree of a health risk related to a certain product is the subject of contention between the parties. Because panelists are experts in international trade but not necessarily in those scientific fields, the DSU gives

61 62 63 64 65

Article 17.7 of the DSU. Article 25 of the DSU. Articles 21 and 22 of the DSU. Article 21.3(c) of the DSU. Article 22.6 of the DSU.

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panels the right to seek information and technical advice from experts.66 Under the DSU, those involved in a dispute settlement process are subject to certain rules designed to ensure due process and unbiased decisions. Persons called to participate in the dispute settlement process as panelists, Appellate Body members or arbitrators must carry out their tasks in an impartial and independent manner. There must not be any ex parte communications (the panel is not entitled to communicate with individual parties except in the presence of the other party or parties) between the parties and the panel or Appellate Body members concerning matters under their consideration.67 More specifically, the DSB has adopted Rules of Conduct for the DSU,68 which aim at guaranteeing the integrity, impartiality and confidentiality of the dispute settlement system. These Rules of Conduct are applicable to all “covered persons” which include panel members, Appellate Body members, experts assisting panels, arbitrators, and WTO Secretariat and Appellate Body Secretariat staff. Under the Rules of Conduct, “covered persons” are required to be independent and impartial, to avoid direct or indirect conflicts of interest, and to respect the confidentiality of dispute settlement proceedings. The Rules of Conduct elaborate how these ends may be achieved. A violation of any requirements by a covered person gives the parties to the dispute a right to challenge the participation of that person in the dispute settlement proceeding and to request the exclusion of that person from any further participation in the process. In the case of Secretariat staff, the challenge is addressed to the Director-General.

On the relevance and use of experts see WTO Secretariat, op. cit. note 2 pp. 25–6. 67 Article 18.1 of the DSU. 68 WT/DSB/RC/1, 11 December 1996. 66

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(a) La Compétence de la Compétence Both the panels and the Appellate Body have an inherent power to determine their own jurisdiction and the scope of such jurisdiction. As the Appellate Body has stated in regard to the compétence of panels: “We agree with Mexico that WTO panels have certain powers that are inherent in their adjudicative function. Notably, panels have the right to determine whether they have jurisdiction in a given case, as well as to determine the scope of their jurisdiction . . .”70 It is understood that the same power inheres in the Appellate Body in regard to its own jurisdiction. Moreover, the Appellate Body would have on appeal the power to determine the jurisdiction of panels and the scope of such jurisdiction in any case. This is a legal question which can be appealed. The Appellate Body has also held that once jurisdiction is established by a panel it does not have the inherent discretion to refuse to exercise such jurisdiction. In the same case the Appellate Body stated: In our view, it does not necessarily follow, however, from the existence of these inherent adjudicative powers that, once jurisdiction has been validly established, WTO panels would have the authority to decline to rule on the entirety of the claims that are before them in a dispute. To the contrary, we note that, while recognizing WTO panels’ inherent powers, the Appellate Body has previously emphasized that: Although panels enjoy some discretion in establishing their own working procedures, this discretion does not extend to modifying the substantive provisions of the DSU. . . . Nothing in the DSU gives a panel the authority either to disregard or to modify . . . explicit provisions of the DSU. (emphasis added) [Appellate Body Report, India – Patents (US J, para. 92]) ...

69 70

On this section see also Van den Bossche, op. cit. note 2 pp. 195 ff. Appellate Body Report, Mexico – Taxes on Soft Drinks (2006), para. 45.

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Chapter 8. The Judicial Type Bodies of the WTO The fact that a Member may initiate a WTO dispute whenever it considers that “any benefits accruing to [that Member] are being impaired by measures taken by another Member” implies that that Member is entitled to a ruling by a WTO panel. ... A decision by a panel to decline to exercise validly established jurisdiction would seem to “diminish” the right of a complaining Member to “seek the redress of a violation of obligations” within the meaning of Article 23 of the DSU, and to bring a dispute pursuant to Article 3.3 of the DSU. This would not be consistent with a panel’s obligations under Articles 3.2 and 19.2 of the DSU. We see no reason, therefore, to disagree with the Panel’s statement that a WTO panel “would seem . . . not to be in a position to choose freely whether or not to exercise its jurisdiction.71

The same principles would apply to the jurisdiction of the Appellate Body in accepting an appeal. (b) Compétence Ratione Personae Access to, or the use of, the WTO dispute settlement system is limited to members of the WTO. The Appellate Body ruled in US – Shrimp: It may be well to stress at the outset that access to the dispute settlement process of the WTO is limited to Members of the WTO. This access is not available, under the WTO Agreement and the covered agreements, as they currently exist, to individuals or international organizations, whether governmental or non-governmental. Only Members may become parties to a dispute of which a panel may be seized, and only Members “having a substantial interest in a matter before a panel” may become third parties in the proceedings before that panel. Thus, under the DSU, only Members who are parties to a dispute, or who have notified their interest in becoming third parties in such a dispute to the DSB, have a legal right to make submissions to, and have a legal right to have those submissions considered by a panel.72 71 72

Ibid., paras. 46, 52, 53. Appellate Body Report (1998), para. 101.

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The WTO dispute settlement system is a government-to-government dispute settlement system for disputes concerning rights and obligations of WTO members. Members may intervene in cases as third parties, as a result of the present procedure on amicus curiae briefs. Individuals, companies, international organizations and nongovernmental organizations (including environmental and human rights NGOs, labour unions and industry associations) have no direct access to the WTO dispute settlement system. They cannot bring claims of violation of WTO rights or obligations. Under the current rules, they do not have the right to be heard or to participate in any way in the proceedings. However, under Appellate Body case law, panels and the Appellate Body have the authority to accept and consider written briefs (amicus curiae briefs) submitted by individuals, companies or organizations. However, only such briefs as have been attached to the submissions of the parties or members as third parties have been accepted. In US – Shrimp, the Appellate Body stated with respect to the authority of panels to accept and consider amicus curiae briefs: The comprehensive nature of the authority of a panel to “seek” information and technical advice from “any individual or body” it may consider appropriate, or from “any relevant source”, should be underscored. This authority embraces more than merely the choice and evaluation of the source of the information or advice which it may seek. A panel’s authority includes the authority to decide not to seek such information or advice at all. We consider that a panel also has the authority to accept or reject any information or advice which it may have sought and received, or to make some other appropriate disposition thereof. It is particularly within the province and the authority of a panel to determine the need for information and advice in a specific case, to ascertain the acceptability and relevancy of information or advice received, and to decide what weight to ascribe to that information or advice or to conclude that no weight at all should be given to what has been received. It is also pertinent to note that Article 12.1 of the DSU authorizes panels to depart from, or to add to the Working Procedures set forth in Appendix 3 of the DSU, and in effect, to develop their own Working Procedures, after consultation with the parties to the dispute. Article 12.2 goes on to direct that “[p]anel procedures should provide sufficient flexibility

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Chapter 8. The Judicial Type Bodies of the WTO so as to ensure high-quality panel reports while not unduly delaying the panel process . . . The thrust of Articles 12 and 13, taken together, is that the DSU accords to a panel established by the DSB, and engaged in a dispute settlement proceeding, ample and extensive authority to undertake and to control the process by which it informs itself both of the relevant facts of the dispute and of the legal norms and principles applicable to such facts. That authority, and the breadth thereof, is indispensably necessary to enable a panel to discharge its duty imposed by Article 11 of the DSU to “make an objective assessment” of the matter before it, including an objective assessment of the facts of case and the applicability of and conformity with the relevant covered agreements.73

On the basis of Articles 13, 12 and 11 of the DSU, the Appellate Body came to the conclusion that panels have the authority to accept and consider amicus curiae briefs, and reversed the panel’s finding to the contrary. A few panels in later disputes did, on the basis of this ruling of the Appellate Body in US – Shrimp, accept and consider amicus curiae briefs. This was the case, for example, in Australia – Salmon (Article 21.5 – Canada), in which the panel accepted and considered a letter from “Concerned Fishermen and Processors” in Australia. This letter addressed the treatment by Australia of imports of pilchard for use as bait or fish feed and of imports of salmon. The panel considered the information submitted in the letter as relevant to the case and accepted this information as part of the record.74 In many disputes, however, panels refused to accept or consider amicus curiae briefs submitted to them. In US – Lead and Bismuth II, the Appellate Body stated with respect to its authority to accept and consider amicus curiae briefs submitted in review proceedings: In considering this matter, we first note that nothing in the DSU or the Working Procedures specifically provides that the Appellate Body may accept and consider submissions or briefs from sources

73 74

Ibid., paras. 104, 106. Panel Report, Australia – Salmon (Article 21.5 – Canada), paras. 7.8–7.9.

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other than the participants and third participants in an appeal. On the other hand, neither the DSU nor the Working Procedures explicitly prohibit acceptance or consideration of such briefs. However, Article 17.9 of the DSU provides: Working procedures shall be drawn up by the Appellate Body in consultation with the Chairman of the DSB and the DirectorGeneral, and communicated to the Members for their information. This provision makes clear that the Appellate Body has broad authority to adopt procedural rules which do not conflict with any rules and procedures in the DSU or the covered agreements. Therefore, we are of the opinion that as long as we act consistently with the provisions of the DSU and the covered agreements, we have the legal authority to decide whether or not to accept and consider any information that we believe is pertinent and useful.75

In this case, however, the Appellate Body did not find it necessary to take the two amicus curiae briefs filed into account in rendering its decision.76 In October 2000, the Appellate Body Division hearing the appeal in EC – Asbestos adopted an Additional Procedure to deal with amicus curiae briefs which the Division expected to receive in great numbers in that dispute.77 This Additional Procedure, which was adopted pursuant to Rule 16(1) of the Working Procedures for Appellate Review in the interests of fairness and orderly procedure in the conduct of this appeal, stipulated: 1. Any person, whether natural, or legal, other than a party or a third party to this dispute, wishing to file a written brief with the Appellate Body, must apply for leave to file such a brief from the Appellate Body by noon on Thursday, 16 November 2000.

Appellate Body Report (2000), para. 39. Ibid., para. 42. 77 See Appellate Body Report, EC – Asbestos (2001) paras. 51–2. The Division adopted this Additional Procedure after consultations among several members of the Appellate Body. 75 76

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Chapter 8. The Judicial Type Bodies of the WTO 2. An application for leave to file such a written brief shall: ... d. specify the nature of the interest the applicant has in this appeal; e. identify the specific issues of law covered in the Panel Report and legal interpretations developed by the Panel that are the subject of this appeal, as set forth in the Notice of Appeal (WT/DS135/8) dated 23 October 2000, which the applicant intends to address in its written brief; f. state why it would be desirable, in the interests of achieving a satisfactory settlement of the matter at issue, in accordance with the rights and obligations of WTO Members under the DSU and the other covered agreements, for the Appellate Body to grant the applicant leave to file a written brief in this appeal; and indicate, in particular, in what way the applicant will make a contribution to the resolution of this dispute that is not likely to be repetitive of what has been already submitted by a party or third party to this dispute; . . . 3. The Appellate Body will review and consider each application for leave to file a written brief and will without delay, render a decision whether to grant or deny such leave.

With regard to the persons that would be granted leave to file an amicus curiae brief, the Additional Procedure further laid down that: 4. The grant of leave to file a brief by the Appellate Body does not imply that the Appellate Body will address, in its Report, the legal arguments made in such a brief. 5. Any person, other than a party or a third party to this dispute, granted leave to file a written brief with the Appellate Body, must file its brief with the Appellate Body Secretariat by noon on Monday, 27 November 2000. 6. A written brief filed with the Appellate Body by an applicant granted leave to file such a brief shall: ... (b) be concise and in no case longer than 20 typed pages, including any appendices; and

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(c) set out a precise statement, strictly limited to legal arguments, supporting the applicant’s legal position on the issues of law or legal interpretations in the Panel Report with respect to which the applicant has been granted leave to file a written brief.

The Appellate Body received eleven applications for leave to file a written brief in the EC – Asbestos appeal within the time limits specified in paragraph 2 of the Additional Procedure. It reviewed and considered each of these applications but in each case decided to deny leave to file a written brief for failure to comply sufficiently with all the requirements set forth in the Additional Procedure. While, finally, the Appellate Body did not accept and consider any amicus curiae brief in this appeal, many WTO members did not approve of the Appellate Body’s adoption of the Additional Procedure and its apparent willingness to accept and consider amicus curiae briefs where certain requirements are fulfilled. On 20 November 2000, a Special Meeting of the General Council was convened to discuss this issue. The vast majority of WTO members opposed the Appellate Body’s case law on this issue, while the US fully supported this case law. At the end of this meeting, the Chairman of the General Council made the following observations: There was a broad agreement that the rights and obligations under the DSU belonged to WTO Members. It had been repeatedly stated that the WTO was a Member-driven organization. Therefore, most delegations had concluded that since there was no specific provision regarding amicus briefs such briefs should not be accepted. Some delegations were of the view that amicus briefs could be used in some cases and there was at least one delegation who believed that there was both a legal and a substantive reason to use amicus briefs. There was no agreement on this point. . . . many Members had made reference to the shrimp case and the decision to interpret Article 13 of the DSU in such a way so as to accept amicus briefs. The majority of delegations had stated that they did not agree with that decision which served as a basis for subsequent decisions on amicus briefs by panels and the Appellate Body. At the same time, at least one delegation had stated that there was nothing wrong with that kind of procedure.

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Chapter 8. The Judicial Type Bodies of the WTO Finally, many Members had made the point that the issue under discussion was not a transparency issue, but rather a legal issue and concerned the question of who should participate in the legal system.78

The Chairman of the General Council concluded that he believed that there had been a feeling, expressed by almost all delegations, that there was a need to put clear rules in place for amicus curiae briefs and called for consultations on both the substantive content of the rules and what procedure should be used for putting them in place. The Chairman stated: in light of the views expressed and in the absence of clear rules, he believed that the Appellate Body should exercise extreme caution in future cases until Members had considered what rules were needed.79

There are two principal reasons for the antagonism of many members, especially developing-country members, towards amicus curiae briefs. First, members fear that the need to consider and react to amicus curiae briefs will take up scarce legal resources and will further bend the WTO dispute settlement procedures in favour of members with more legal resources at their disposal. Secondly, developing-country members, in particular, note that the most vocal and best funded NGOs (such as Greenpeace and labour unions) often take positions that are considered “unfriendly” to the interests and policies of developing-country members.80 Nevertheless, the Appellate Body has repeatedly confirmed its case law on the authority of panels and the Appellate Body to accept

Minutes of the General Council Meeting of 22 November 2000, WT/GC/ M/60, dated 23 January 2001, paras. 114–15 and 118. 79 Ibid., para. 120. 80 It must be noted that “persons” submitting an amicus curiae brief would have no right to have this brief considered. By contrast, third parties members do have a right to have their brief considered. See also Appellate Body Report, US – Steel Safeguards (2003), para. 268. 78

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and consider amicus curiae briefs. The Appellate Body has generally not, however, considered it useful in deciding on an appeal to accept and consider amicus curiae briefs submitted to it.81 In US – Steel Safeguards, the Appellate Body ruled, in response to a question from the European Communities whether the Appellate Body intended to accept and take account of the amicus curiae brief from the American Institute of International Steel, that this determination would be made after the Division had considered all submissions by the participants in the appeal, including the submissions at the oral hearing.82 Morocco was the first WTO Member to file an amicus curiae brief. Peru, the complainant in EC – Sardines, argued that the Appellate Body should not accept or consider this brief. The Appellate Body first recalled its case law on amicus curiae briefs then stated: We have been urged by the parties to this dispute not to treat Members less favourably than non-Members with regard to participation as amicus curiae. We agree. We have not. And we will not. As we have already determined that we have the authority to receive an amicus curiae brief from a private individual or an organization, a fortiori we are entitled to accept such a brief from a WTO Member, provided there is no prohibition on doing so in the DSU. We find no such prohibition.83

The Appellate Body therefore concluded that it was entitled to accept the amicus curiae brief submitted by Morocco, and consider it.84 Even in US – Countervailing Measures on Certain EC Products, a complaint by the EC, in which both the complainant and the respondent explicitly agreed that the Appellate Body had the authority to accept and consider an amicus curiae brief from an industry association received in the course of the appeal, the Appellate Body decided not to take the brief into account “as we do not find it to be of assistance in this appeal”: see Appellate Body Report (2003), paras. 10 and 76. 82 Appellate Body Report (2003), paras. 9 and 10. 83 Appellate Body Report (2002), para. 164. 84 Ibid., para. 167. 81

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However, the Appellate Body emphasized that, though it accepted the brief filed by Morocco in this appeal, it was not suggesting that each time a Member filed such a brief, the Appellate Body would be required to accept and consider it. The Appellate Body said: To the contrary, acceptance of any amicus curiae brief is a matter of discretion, which we must exercise on a case-by-case basis. We recall our statement that: The procedural rules of WTO dispute settlement are designed to promote . . . the fair, prompt and effective resolution of trade disputes. Therefore, we could exercise our discretion to reject an amicus curiae brief if, by accepting it, this would interfere with the “fair, prompt and effective resolution of trade disputes.” This could arise, for example, if a WTO Member were to seek to submit an amicus curiae brief at a very late stage in the appellate proceedings, with the result that accepting the brief would impose an undue burden on other participants.85

Having decided that it had the authority to accept the amicus curiae brief filed by Morocco, the Appellate Body considered whether this brief could assist it in the proceedings. Morocco’s amicus curiae brief provided mainly factual information.86 The Appellate Body concluded on the relevance of these parts of Morocco’s brief that “As Article 17.6 of the DSU limits an appeal to issues of law and legal interpretation developed by the panel, the factual information provided in Morocco’s amicus curiae brief is not pertinent in this appeal.”87 Morocco also put forward arguments relating to legal issues. However, the Appellate Body decided that it would not make

Ibid. Morocco’s brief referred to the scientific difference between Sardina pilchardus Walbaum (‘Sardina pilchardus’) and Sardinops sagax sagax (‘Sardinops sagax’), and it also provided economic information about the Moroccan fishing and canning industries. 87 Ibid. 85 86

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findings on these specific issues and that Morocco’s arguments on these issues did not assist the Appellate Body in the appeal.88 Many, if not most, of the disputes heard by the WTO are disputes brought by governments at the instigation of an industry or a company. For example, it is common knowledge that in Japan – Film it was Kodak which masterminded and actively supported the US claims against Japan. In EC – Bananas III, Chiquita played a central role in the US’s involvement in the dispute. Company or industry associations will not only lobby governments to invoke the WTO dispute settlement procedures but they and their law firms will often also play an important, “behind-the-scenes” role in planning the legal strategy and drafting the submissions. The laws of some WTO members explicitly provide for the possibility for industry associations and/or companies to bring the violation of WTO obligations by another WTO member to the attention of their government and to induce their government to start WTO dispute settlement proceedings against that member. In EU law, for example, there is provision for this under the Trade Barriers Regulation;89 in US law, under Section 301 of the 1974 Trade Act.90 This process of lobbying the government to bring WTO cases may not have been regulated and institutionalized in the same manner in many other member countries, but the process is no less present. In this respect, industry associations and individual companies may be said to have “indirect” access to the WTO dispute settlement system.

Ibid., para. 314. Morocco’s brief contained arguments relating to Article 2.1 of the TBT Agreement and the GATT 1994. On amicus curiae briefs submitted by NGOs and other persons see further: Appellate Body Report, US – Softwood Lumber IV (2004), para. 9 and footnotes 21 and 22; Appellate Body Report, Mexico – Taxes on Soft Drinks (2006), para. 8 and footnote 21. 89 Council Regulation (EC), no. 3286/94 on Community procedures for the exercise of rights under international trade rules, in particular those established under the WTO, OJ 1994, L349, 71, as amended by Council Regulation (EC) No. 356/95, OJ 1995, L41, 3. 90 Section 301(a)(1) of the Trade Act 1974, 19 USC § 241(a)(1). 88

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There is no explicit provision in the DSU requiring a member to have a “legal interest” in the subject matter in order to have recourse to the WTO dispute settlement system. It has been held that such a requirement is not implied either in the DSU or in any other provision of the WTO Agreement.91 In EC – Bananas III, the Appellate Body ruled: We believe that a Member has broad discretion in deciding whether to bring a case against another member under the DSU. The language of Article XXIII:I of the GATT 1994 and of Article 3.7 of the DSU suggests, furthermore, that a Member is expected to be largely self-regulating in deciding whether any such action would be “fruitful”.92

The Appellate Body explicitly agreed with the statement of the panel in EC – Bananas III that “with the increased interdependence of the global economy, . . . Members have a greater stake in enforcing WTO rules than in the past since any deviation from the negotiated balance of rights and obligations is more likely than ever to affect them, directly or indirectly.”93 In EC – Bananas III, the Appellate Body decided that the US could bring a claim under the GATT 1994 despite the fact that the US does not export bananas. In coming to this decision, the Appellate Body considered the fact that the US is a producer and a potential exporter of bananas, the effects of the EC banana regime on the US internal market for bananas, and the fact that the US claims under the GATS and the GATT 1994 were inextricably interwoven. The Appellate Body subsequently ruled: “Taken together, these reasons are sufficient justification for the United States to have brought its claims against the EC banana import regime under the GATT 1994.”94 The Appellate Body added, however, that “This does not

91 92 93 94

Appellate Body Report, EC – Bananas III (1997), paras. 122–3. Ibid., para. 135. Ibid., para. 136. Ibid., para. 138.

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mean, though, that one or more of the factors we have noted in this case would necessarily be dispositive in another case.”95 In Mexico – Corn Syrup (Article 21.5 – US), the Appellate Body ruled with respect to recourse by members to the WTO dispute settlement system: Given the “largely self-regulating” nature of the requirement in the first sentence of Article 3.7, panels and the Appellate Body must presume, whenever a Member submits a request for establishment of a panel, that such Member does so in good faith, having duly exercised its judgment as to whether recourse to that panel would be “fruitful”. Article 3.7 neither requires nor authorizes a panel to look behind that member’s decision and to question its exercise of judgement.96

Thus, a member’s decision to initiate proceedings before a WTO panel is largely beyond judicial review. On another point, in Argentina – Poultry Argentina requested that the panel refrain from ruling on the claims asserted by Brazil, because Brazil had already challenged the measure at issue, albeit unsuccessfully, before a Mercosur ad hoc arbitral tribunal. Argentina did not invoke the principle of res judicata but asserted that Brazil failed to act in good faith and in conformity with the principle of estoppel. The panel rejected Argentina’s arguments, and did consider Brazil’s claims.97 (c) Subject Matter and Related Jurisdiction98 Each covered agreement contains one or more consultation and dispute settlement provisions. These provisions indicate when a member can have recourse to the WTO dispute settlement system. Panels and the Appellate Body have jurisdiction only over disputes Ibid. Appellate Body Report, Mexico – Corn Syrup (Article 21.5 – US) (2001), para. 74. 97 See Panel Report, Argentina – Poultry, paras. 7.33–7.42. 98 On this sub-section see Van den Bossche, op. cit. note 2 pp. 191 ff. and 237 ff. 95 96

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arising out of the covered agreements. Thus, a dispute arising under NAFTA, for example, would not be within their jurisdiction.99 Further, they must only interpret and apply the covered agreements, in order to settle disputes, and not diminish or add to rights and obligations under those agreements.100 They must not make law. For the GATT 1994, the relevant provisions relating to dispute settlement are Articles XII and XIII. Of particular importance is Article XXIII(1) of the GATT 1994, which states: If any Member should consider that any benefit accruing to it directly or indirectly under this Agreement is being nullified or impaired or that the attainment of any objective of the agreement is being impeded as the result of a. the failure of another member to carry out its obligations under this Agreement, or b. the application by another Member of any measure, whether or not it conflicts with the provisions of this Agreement, or c. the existence of any other situation, The Member may, with a view to the satisfactory adjustment of the matter, make written representations or proposals to the other Member or Members which it considers to be concerned. In India – Quantitative Restrictions, the Appellate Body held: This dispute was brought pursuant to, inter alia, Article XXIII of the GATT 1994. According to Article XXIII, any Member which considers that a benefit accruing to it directly or indirectly under the GATT 1994 is being nullified or impaired as a result of the failure of another Member to carry out its obligations, may resort to the dispute settlement procedures of Article XXIII. The United States considers that a benefit to it under the GATT 1994 was nullified or impaired as a result of India’s alleged failure to carry out its obligations regarding balance-of-payments restrictions under See Appellate Body Report, Mexico – Taxes on Soft Drinks (2006), paras. 56, 78. 100 See, e.g. Appellate Body Report, US – Wool Shirts and Blouses (1997), DSR 1997: I at p. 340; Appellate Body Report, Mexico – Taxes on Soft Drinks (2006), para. 56. 99

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Article XVIII-B of the GATT 1994. Therefore, the United States was entitled to have recourse to the dispute settlement procedures of Article XXIII with regard to this dispute.101

The consultation and dispute settlement provisions of most other covered agreements incorporate, by reference, Articles XXII and XXIII of the GATT 1994.102 As was the case in India – Quantitative Restrictions, the nullification or impairment of a benefit (or the impeding of the realization of an objective) may, and most often will, be the result of a violation of an obligation prescribed by a covered agreement. Nullification or impairment may, however, also be the result of “the application by another Member of any measure, whether or not it conflicts with the provisions” of a covered agreement.103 Nullification or impairment may equally be the result of the existence of any other situation.”104 The WTO system, thus, provides for three types of complaint: “violation” complaints; “non-violation” complaints; and “situation” complaints.105 In the case of a non-violation complaint or a Appellate Body Report (1999), para. 84 For example, Article 11(1) of the SPS Agreement, entitled “Consultations and Dispute Settlement”, states: “The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement, except as otherwise specifically provided herein.” 103 Article XXIII:1(b) of the GATT 1994 and Article 26.1 of the DSU. 104 Article XXIII:1(c) of the GATT 1994 and Article 26.2 of the DSU. 105 Pursuant to Article XXIII:3 of the GATS (General Agreement on Trade in Services), situation complaints are not possible in disputes arising under the GATS. Pursuant to Article 64.2 of the TRIPS Agreement, non-violation complaints and situation complaints were not possible in disputes arising under the TRIPS Agreement during a period of five years from the date of entry into force of the WTO Agreement. Article 64.3 provides that the Ministerial Conference can only extend this period by consensus. At the Doha Session of the Ministerial Conference in November 2001, it was agreed that the TRIPS Council would continue to discuss the scope and modalities of non-violation complaints under the TRIPS Agreement. It was also agreed that, in the meantime, members would not file non-violation complaints under the TRIPS Agreement. 101 102

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situation complaint, the complainant must demonstrate that there is nullification or impairment of a benefit or that the achievement of an objective is impeded.106 In the case of a violation complaint, however, there is a presumption of nullification or impairment when the complainant demonstrates the existence of the violation. Article 3.8 of the DSU states: in cases where there is an infringement of the obligation assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge.

In only a few cases to date has the respondent argued that the alleged violation of WTO law did not nullify or impair benefits accruing to the complainant.107 In no case has the respondent been successful in rebutting the presumption of nullification or impairment. It is doubtful whether this presumption really is rebuttable. There have been few non-violation complaints.108 There have apparently not been any situation complaints.109 Article 26.1 (for non-violation complaints) and 26.2 (for situation complaints) of the DSU. Article 26.1 and 26.2 set out a few special rules for these types complaint. With regard to what a complainant must show in a non-violation complaint, see Panel Report, Japan – Film, para. 9.5. With respect to non-violation complaints, see also EC – Asbestos, Appellate Body Report (2001), paras. 38 and 185–6. 107 See Appellate Body Report, EC – Bananas III (1997), paras. 250–3, in which the Appellate Body referred to the GATT Panel Report in US – Superfund, para. 5.1.9. See also Panel Report, Turkey – Textiles, para. 9.204; and Panel Report, Guatemala – Cement II, para. 8.25. 108 See, e.g. Panel Report, Japan – Film; and Panel Report, Korea – Procurement. 109 Feliciano and Van den Bossche, “The Dispute Settlement System of the World Trade Organization: Institutions, Process and Practice”, in Blokker and Schermers (eds.), Proliferation of International Organizations (2001) at p. 308, where it is pointed out that the differences of the WTO system have, therefore, little practical significance. 106

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It is clear that the consistency with WTO requirements of the actual application of specific national legislation can be challenged in WTO dispute settlement proceedings. However, the question which arises is whether national legislation as such, i.e. independently of its application in specific cases, can also be challenged in WTO dispute settlement system procedures. In US – 1916 Act, the Appellate Body recalled the GATT practice in this respect as follows: Prior to the entry into force of WTO Agreement, it was firmly established that Article XXIII:1(a) of the GATT 1947 allowed a Contracting Party to challenge legislation as such, independently from the application of that legislation in specific instances. While the text of Article XXIII does not expressly address the matter, panels consistently considered that, under Article XXIII, they had jurisdiction to deal with claims against legislation as such. In examining such claims, panels developed the concept that mandatory and discretionary legislation should be distinguished from each other, reasoning that only legislation that mandates a violation of GATT obligations can be found as such to be inconsistent with those obligations.110 The practice of GATT panels was summed up by a GATT panel in US – Tobacco as follows: [P]anels had consistently ruled that legislation which mandated action inconsistent with the General Agreement could be challenged as such, whereas legislation which merely gave the discretion to executive authority of a Contracting Party to act inconsistently with the General Agreement could not be challenged as such; only the actual application of such legislation inconsistent with the General Agreement could be subject to challenge.111

WTO panels, as well as the Appellate Body, have followed the same practice. However, the panel, in US – Section 301 Trade Act, considerably refined the existing jurisprudence. That panel rejected

Appellate Body Report, US – 1916 Act (2000), para. 60. In a footnote, the Appellate Body referred, for example, to the GATT Panel Reports in US – Superfund, US – Section 337, Thailand – Cigarettes and US – Malt Beverages. 111 GATT Panel Report, US – Tobacco, para. 118. 110

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the presumption, implicit in the argument of the United States, that no WTO provision ever prohibits discretionary legislation. The panel explicitly stated that, in rejecting this presumption, it did not imply a reversal of the classical test in the existing jurisprudence that only legislation mandating a WTO inconsistency or precluding WTO consistency, could, as such, violate WTO provisions.112 On the contrary, that was the very test which the panel applied. The panel stated: It simply does not follow from this test, as sometimes has been argued, that legislation with discretion could never violate the WTO. If, for example, it is found that the specific obligations in Article 23 [of the DSU] prohibit certain type of legislative discretion, the existence of such discretion in the statutory language of Section 304 would presumptively preclude WTO consistency.113

The panel examined Article 23 of the DSU, the obligation in issue, in great detail. In this examination the panel observed with regard to the nature of the obligation of Article 23 of the DSU: It may have been plausible if one considered a strict Member-Member matrix to insist that the obligations in Article 23 [of the DSU] do not apply to legislation that threatens unilateral determinations but does not actually mandate them. It is not, however, plausible to construe Article 23 in this way if one interprets it in the light of the indirect effect such legislation has on individuals and the market-place, the protection of which is one of the principal objects and purposes of the WTO. To be sure, in the cases referred to above, whether the risk materialized or not depended on certain market factors such as fluctuating reference prices on which the taxation of the imported product was based by virtue of the domestic legislation. In such a case, whether the risk materializes depends on a decision of a government agency. From the perspective of the individual economic operator, however, this makes little difference. Indeed, it may be more difficult to predict 112 113

Panel Report, US – Section 301 Trade Act, para. 7.54. Ibid.

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the outcome of discretionary government action than to predict market conditions, thereby exacerbating the negative economic impact of the type of domestic law under examination here. When a Member imposes unilateral measures in violation of Article 23 in a specific dispute, serious damage is created both to other Members and the market place. However, in our view, the creation of damage is not confined to actual conduct in specific cases. A law reserving the right for unilateral measures to be taken contrary to DSU rules and procedures, may – as is the case here – constitute an ongoing threat and produce a “chilling effect” causing serious damage in a variety of ways.114

According to the panel, the duty of members under Article 23 to abstain from unilateral determinations of inconsistency is meant to guarantee members as well as the marketplace and those who operate in it, that no such determinations in respect of WTO rights and obligations will be made.115 The panel subsequently ruled with regard to the measure at issue: The discretion given to the [US Trade Representative] to make a determination of inconsistency creates a real risk or threat for both Members and individual economic operators that determinations prohibited under Article 23.2(a) will be imposed. The USTR’s discretion effectively to make such determinations removes the guarantee which Article 23 is intended to give not only to Members but indirectly also to individuals and the market place.116

The panel concluded, therefore, that the statutory language of Section 304 of the Trade Act of 1974, although it was not mandatory but discretionary in nature, was prima facie inconsistent with Article 23 of the DSU in view of the particular nature of the obligation in Article 23.117 The Panel Report in US – Section 301 Trade Act was not appealed. 114 115 116 117

Ibid., Ibid., Ibid., Ibid.,

paras. 7.86–7.88. para. 7.95. para. 7.96. para. 7.97.

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Article 7.1 of the DSU states that, unless the parties agree otherwise within twenty days from the establishment of the panel, a panel is given the following standard terms of reference: To examine in the light of the relevant provisions in (name of the covered agreement(s) cited by the parties to the dispute), the matter referred to the DSB by (name of party) in document . . . and make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in that/those agreement(s).

The document referred to in these standard terms of reference is usually the panel request. Hence, a claim falls within the panel’s terms of reference, i.e. within the mandate of the panel, only if that claim is identified in the panel request. In EC – Tube or Pipe Fittings, the panel found that Brazil’s claims under Articles 6.9, 6.13, 9.3 and 12.1 of the Anti-Dumping Agreement were not within its terms of reference as these provisions “do not appear in the list of provisions” in the panel request, “nor are they referred to in the ensuing description of allegations in that document.”118 As the Appellate Body stated in Brazil – Desiccated Coconut, the terms of reference of the panel are important for two reasons: First, terms of reference fulfil an important due process objective – they give the parties and third parties sufficient information concerning the claims at issue in the dispute in order to allow them an opportunity to respond to the complainant’s case. Second, they establish the jurisdiction of the panel by defining the precise claims at issue in the dispute.119

Panel Report, EC – Tube or Pipe Fittings, para. 7.14. Note also the panel in Argentina – Poultry, which found that “there is no reference to this claim in Brazil’s Request of Establishment of this Panel” and therefore concluded that this claim fell outside its terms of reference: see Panel Report, Argentina – Poultry, para. 7.157. 119 Appellate Body Report (1997), at p. 186. 118

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A panel may consider only those claims that it has authority to consider under its terms of reference.120 Therefore, a panel is bound by its terms of reference and cannot assume a jurisdiction which it does not have.121 Within twenty days of the establishment of the panel, the parties to the dispute can agree on special terms of reference for the panel.122 However, this rarely occurs.123 In establishing a panel, the DSB may authorize its Chairperson to draw up the terms of reference of the panel in consultation with the parties to the dispute.124 However, if no agreement on special terms of reference is reached within twenty days of the establishment of the panel, the panel shall have standard terms of reference. In case of a broadly phrased panel request, it may be necessary to examine the complainant’s submissions closely to determine precisely which claims have been made and fall under the terms of reference of the panel.125 A panel is called upon to review the consistency of a challenged measure with WTO law. Both the measure at issue and the relevant provisions of WTO law allegedly violated are determined by the terms of reference of the panel. Article 11 of the DSU stipulates:

Appellate Body Report (1998), para. 92. A panel cannot assume jurisdiction that it does not have (ibid.). 121 Ibid., paras. 92 and 93. 122 Article 7.1 of the DSU. 123 See, e.g. Brazil – Desiccated Coconut, Appellate Body Report (1997). 124 Article 7.3 of the DSU. 125 Chile – Price Band System, Appellate Body Report (2002), para. 165. On terms of reference see also now, e.g. EC – Selected Customs Matters, Appellate Body Report (2006), paras. 129–30, 131–2, 133, 134–5, 153, 166, 168, 184; Mexico – Taxes on Soft Drinks, Appellate Body Report (2006), paras. 44–6, 49, 52, 53, 54, 57; US – Countervailing Duty Investigation on DRAMS, Appellate Body Report (2005), paras. 99–100; US – Oil Country Tubular Goods Sunset Review, Appellate Body Report (2005), paras. 173, 220; US – Upland Cotton, Appellate Body Report (2005), paras. 262, 269; US – Gambling, Appellate Body Report (2005), paras. 121–3, 129, 131–2. 120

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Chapter 8. The Judicial Type Bodies of the WTO The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements.

If the panel does not adhere to Article 11, it exceeds or abuses its jurisdiction. In EC – Hormones, the Appellate Body noted that Article 11 of the DSU “articulates with great succinctness but with sufficient clarity the appropriate standard of review for panels in respect of both the ascertainment of facts and the legal characterization of such facts under the relevant agreements.”126 As far as fact-finding is concerned, the appropriate standard is neither a de novo review of the facts nor “total deference” to the factual findings of national authorities. Rather, pursuant to Article 11 of the DSU, panels have “to make an objective assessment of the facts”. With regard to legal questions, i.e. the consistency or inconsistency of a member’s measure with the specified provisions of the relevant agreement, Article 11 imposes the same standard on panels, i.e. “to make an objective assessment” of the applicability of and conformity with the relevant covered agreement. In a number of appeals from panel reports, the Appellate Body addressed the question of whether a panel had failed to discharge its duty under Article 11 of the DSU “to make an objective assessment of the matter before it”. Certain statements made by the Appellate Body indicate that the threshold for a finding that a panel has not made an objective assessment of the matter is high. In EC – Hormones, the Appellate Body explained that:

Appellate Body Report (1998) para. 116. See Panel Report, US – Underwear, paras. 7.10, 7.12 and 7.13; and Panel Report, US – Wool Shirts and Blouses, paras. 7.16 and 7.17. 126

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not every error in the appreciation of the evidence (although it may give rise to a question of law) may be characterized as a failure to make an objective assessment of the facts . . . The duty to make an objective assessment of the facts is, among other things, an obligation to consider the evidence presented to a panel and to make factual findings on the basis of that evidence. The deliberate disregard of, or refusal to consider, the evidence submitted to a panel is incompatible with a panel’s duty to make an objective assessment of the facts. The wilful distortion or misrepresentation of the evidence put before a panel is similarly inconsistent with an objective assessment of the facts. “Disregard” and “distortion” and “misrepresentation” of the evidence, in their ordinary signification in judicial and quasi-judicial processes, imply not simply an error of judgment in the appreciation of evidence but rather an egregious error that calls into question the good faith of a panel.127

According to the Appellate Body in EC – Hormones, a panel must make an egregious error in the assessment of the evidence before the Appellate Body will come to the conclusion that the panel failed to make an objective assessment of the facts. As the Appellate Body noted in EC – Poultry: An allegation that a panel has failed to conduct the “objective assessment of the matter before it” required by Article 11 of the DSU is a very serious allegation. Such an allegation goes to the very core of the integrity of the WTO dispute settlement process itself.128

The party losing a case may be tempted to argue that the panel failed to make an objective assessment. However, as the Appellate Body observed in Korea – Alcoholic Beverages, it is not an error, let alone an egregious error, for a panel to fail to accord to the evidence the weight that one of the parties believes should be accorded to it.129 Appellate Body Report (1998), para. 133. See also Japan – Agricultural Products II, Appellate Body Report (1999), para. 141. 128 EC – Poultry, Appellate Body Report (1998), para. 133. 129 Appellate Body Report, Korea – Alcoholic Beverages, Appellate Body Report (1999), para. 164. 127

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Chapter 8. The Judicial Type Bodies of the WTO In US – Wheat Gluten, the Appellate Body stated: In view of the distinction between the respective roles of the Appellate Body and panels, we have taken care to emphasize that a panels appreciation of the evidence falls, in principle, “within the scope of the panel’s discretion as the trier of facts”. In assessing the panel’s appreciation of the evidence, we cannot base a finding of inconsistency under Article 11 simply on the conclusion that we might have reached a different factual finding from the one the panel reached. Rather, we must be satisfied that the panel has exceeded the bounds of its discretion, as the trier of facts, in its appreciation of the evidence. As is clear from previous appeals, we will not interfere lightly with the panel’s exercise of its discretion.130

For the Appellate Body to find that a panel has acted inconsistently with Article 11 of the DSU, it must be satisfied that the panel has exceeded the bounds of its discretion in adjudicating the facts. The Appellate Body found that the Panel had acted inconsistently with its obligation under Article 11 in, for example, US – Wheat Gluten and US – Lamb.131 In US – Steel Safeguards, the Appellate Body noted that a challenge under Article 11 of the DSU “must not be vague or ambiguous”, but rather, must be clearly articulated and substantiated with specific arguments.132 A claim that a panel failed to conduct an objective assessment of the matter is, according to the Appellate Body, “not to be made lightly, or merely as a subsidiary argument

US – Wheat Gluten, Appellate Body Report (2001), para. 151. Ibid., paras. 161–3; and US – Lamb, Appellate Body Report (2001), paras. 147–9. On the application of Article 11 of the DSU to “objective assessments “ see now, e.g. US – Upland Cotton, Appellate Body Report (2005), paras. 398, 399, 411, 413, 445, 446, 663, 695, 745; EC – Export Subsidies on Sugar, Appellate Body Report (2005), paras. 240–2; Mexico – Anti-Dumping Measures on Rice, Appellate Body Report (2005), paras. 273–4, 330; US – Anti-Dumping Measures on Oil Country Tubular Goods, Appellate Body Report (2005), para. 195; US – Softwood Lumber VI (Article 21.5 – Canada), Appellate Body Report (2006), paras. 148, 152. 132 Appellate Body Report (2003), para. 498. 130

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or claim in support of a claim of a panel’s failure to construe or apply correctly a particular provision of a covered agreement.”133 A claim of inconsistency with Article 11 of the DSU “must stand by itself and be substantiated, as such, and not as subsidiary to another alleged violation.”134 Article 11 of the DSU sets forth the appropriate standard of review for panels for all but one of the covered agreements. The only exception is the Anti-Dumping Agreement in which a specific provision, Article 17.6, sets out a special standard of review for disputes arising under that Agreement.135 Complainants often assert numerous violations under various agreements. It is well-established case law that panels are not required to examine each and every one of the legal claims that a complainant makes. The aim of dispute settlement is to secure a positive solution to a dispute. The Appellate Body in US – Wool Shirts and Blouses ruled that panels “need only address those claims which must be addressed in order to resolve the matter in issue in the dispute.”136 A panel has discretion to determine the claims it must address in order to resolve the dispute between the parties effectively.137

Ibid. Ibid. 135 Article 17.6(i) requires a panel in a dumping case to examine whether the establishment and evaluation of the facts by the competent national authorities was proper, unbiased and objective. If so, the panel shall not overturn the findings of the national authorities, even though it might itself have come to a different conclusion. Article 17.6(ii) requires a panel to uphold a decision by the competent national authorities if that decision is based on a “permissible” interpretation of the relevant provision of the Anti-Dumping Agreement. As interpreted by the Appellate Body, however, this special standard of review does not fundamentally differ from the standard of review of Article 11 of the DSU. 136 Appellate Body Report (1997), p. 340. 137 India – Patents (US), Appellate Body Report (1998) para. 87. A panel is never required to exercise judicial economy (see US – Lead and Bismuth II), Appellate Body Report (2000) (para. 71), but when it does exercise judicial economy, it should state so explicitly for the purposes of transparency and fairness to the parties: see Canada – Autos, Appellate Body Report (2000), para. 117. 133 134

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The Appellate Body has, however, cautioned panels to be careful when exercising judicial economy. To provide only a partial resolution of the matter at issue may be false judicial economy since the unanswered issues may well give rise to a new dispute.138 As the Appellate Body stated in Australia – Salmon, a panel has to address “those claims on which a finding is necessary in order to enable the DSB to make sufficiently precise recommendations and rulings so as to allow for prompt compliance by a Member with those recommendations and rulings in order to ensure effective resolution of disputes to the benefit of all Members.”139 In Argentina – Preserved Peaches, Chile requested that the panel rule on all the claims presented “in order to ensure that Argentina does not continue to violate these agreements as it has done”. The Panel observed, however, that Chile did not offer any explanation as to why ruling on all claims would achieve this objective. Having concluded that the measure at issue was inconsistent with various WTO provisions and that further findings on the other Chilean claims would not alter that conclusion and would not further assist the DSB in making sufficiently precise recommendations (to allow for prompt compliance by Argentina), the panel chose to exercise judicial economy on these other claims.140 If a panel makes a finding on a claim that does not fall within its terms of reference, i.e. acts ultra petita, the panel does not make an objective assessment of the matter before it, and thus acts inconsistently with Article 11 of the DSU.141 However, if a panel makes a The Appellate Body found that the panels had erred in exercising judicial economy in, e.g., Japan – Agricultural Products II, and Appellate Body Report (1999); and Australia – Salmon, Appellate Body Report (1997). 139 Ibid., para. 223. See also Japan – Agricultural Products II, Appellate Body Report (1999), para. 111. 140 See Panel Report, paras. 7.141–7.142. On judicial economy now see, e.g. Canada – Wheat Export and Grain Imports, Appellate Body Report (2004), paras. 133–4; US – Upland Cotton, Appellate Body Report (2005), paras. 7.7, 718, 731, 732; US – Gambling, Appellate Body Report (2005), paras. 342–4; EC – Export Subsidies on Sugar, Appellate Body Report (2005), paras. 331, 335; US – Zeroing (EC), Appellate Body Report (2006), para. 250. 141 Chile – Price Band System, Appellate Body Report (2002), para. 173. 138

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finding on a claim which does fall within its terms of reference it is not restricted to considering only those legal arguments made by the parties to the dispute. The Appellate Body ruled in EC – Hormones that “nothing in the DSU limits the faculty of a panel freely to use arguments submitted by any of the parties – or to develop its own legal reasoning – to support its own findings and conclusions on the matter under its consideration.”142 A panel which uses arguments or reasoning that have not been submitted or developed by any of the parties to the dispute does not act ultra petita. Panels are restricted to the claims falling within their terms of reference but they are not restricted to the arguments and reasoning submitted or developed by the parties. (d) Jurisdiction on Appeal, and Scope of Review, of the Appellate Body143 The scope of review in appeals to the WTO Appellate Body is defined primarily in Article 17.6 of the DSU, which states that “An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel.” In EC – Hormones, the Appellate Body found that factual findings of panels are, in principle, excluded from the scope of appellate review. The Appellate Body stated: Under Article 17.6 of the DSU, appellate review is limited to appeals on questions of law covered in a panel report and legal interpretations developed by the panel. Findings of fact, as distinguished from legal interpretations or legal conclusions by a panel are, in principle, not subject to review by the Appellate Body.144

EC – Hormones, Appellate Body Report (1998) para. 156. See also Panel Report, Australia – Automotive Leather II (Article 21.5 – US), para. 6.19. 143 See Van den Bossche, op. cit. note 2 pp. 250 ff. for a good account of this subject. 144 EC – Hormones, Appellate Body Report (1998), para. 132. On jurisdiction in general, which covers questions of law only, see also Mexico – Taxes on Soft Drinks, Appellate Body Report (2006), paras. 44–6, 52, 53, 54, 57, 78; EC – Selected Customs Matters, Appellate Body Report (2006), para. 166. 142

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In the same case the Appellate Body noted that “the determination of whether or not a certain event did occur in time and space is typically a question of fact.”145 In that case, the Appellate Body easily found that the panel’s findings regarding whether or not international standards had been adopted by the Codex Alimentalius Commission were findings on issues of fact and were, therefore, not subject to appellate review. Sometimes, the task of distinguishing between issues of fact and issues of law can be a complex exercise. The Appellate Body has made it clear, however, that findings involving the application of a legal rule to a specific fact or a set of facts are findings on issues of law and thus fall within the scope of appellate review. As stated in EC – Hormones: The consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty provision is . . . a legal characterization issue. It is a legal question.146

The Appellate Body used similar reasoning in Canada – Periodicals to explain why the panel’s determination of “like products”, for the purposes of Article III:2 of the GATT 1994, was reviewable, stating that the determination of whether imported and domestic products are “like products” involve a process by which legal rules have to be applied to facts.147 As a panel’s factual determinations are, in principle, not subject to appellate review, a panel’s weighing and assessment of evidence before it is also, in principle, not subject to appellate review. In US – Offset Act (Byrd Amendment), Canada argued on appeal that Article 17.6 of the DSU prohibited the United States from challenging “the credibility and weight the Panel attached” to two letters that had been in evidence before it. The Appellate Body, however, rejected Canada’s claim. It found that the comments by the United States formed part of the latter’s challenge to the Panel’s legal find145 146 147

Ibid. Ibid. Canada – Periodicals, Appellate Body Report (1997), at p. 468.

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ings. Whether these findings were supported by these letters was, according to the Appellate Body, an issue of law on which it had the authority to rule.148 In EC – Hormones, the Appellate Body found that: “Determination of the credibility and weight properly to be ascribed to (that is, the appreciation of) a given piece of evidence is part and parcel of the fact finding and is, in principle, left to the discretion of a panel as the trier of facts.”149 In Korea – Alcoholic Beverages, in which Korea sought to cast doubt on certain studies relied on by the Panel in that case, the Appellate Body stated: The panel’s examination and weighing of the evidence submitted fall, in principle, within the scope of the Panel’s discretion as the trier of facts and, accordingly, outside the scope of appellate review. This is true, for instance, with respect to the Panel’s treatment of the Dodwell Study, the Sofres Report and the Nielsen Study. We cannot second-guess the Panel in appreciating either the evidentiary value of such studies or the consequences, if any, of alleged defects in those studies. Similarly, it is not for us to review the relative weight ascribed to evidence on such matters as marketing studies.150

Panels thus have wide-ranging discretion in the consideration and weight they give to the evidence before them.151 However, such discretion is not unlimited.152 A panel’s factual determinations must be consistent Article 11 of the DSU. Article 11 defines the mandate of panels. As noted by the Appellate Body in EC – Hormones: “Whether or not a panel has made an objective assessment of the facts before it, required by Article 11 of the DSU, is also a legal question which, if properly raised on appeal, would fall within the scope of appellate review.”153 Therefore, a factual finding may be See Appellate Body Report (2003), para. 220. Appellate Body Report (1998), para. 132. 150 Appellate Body Report (1999), para. 161. 151 See also Appellate Body Report (1999), Australia – Salmon, para. 261; and Appellate Body Report (1999), India – Quantitative Restrictions, para. 143; and Appellate Body Report (2000), Korea – Dairy, para. 137. 152 Appellate Body Report (1999), Korea – Alcoholic Beverages, para. 162. 153 Appellate Body Report (1998), EC – Hormones, para. 132 (emphasis 148 149

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subject to appellate review when the appellant alleges that this finding was not reached in a manner consistent with the requirements of Article 11 of the DSU.154 In US – Offset Act (Byrd Amendment), the Appellate Body held that, as Article 17.6 is clear in limiting the scope of appellate review to issues of law and legal interpretations, the Appellate Body has no authority to consider “new facts” on appeal, even if these new facts are contained in documents that are “available on the public record.”155 The mandate of the Appellate Body is primarily set out in Article 17.13 of the DSU, which states: The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel.

When the Appellate Body agrees with both the panel’s reasoning and the conclusion regarding the WTO-consistency of a measure, it upholds the relevant findings. When the Appellate Body agrees with the conclusion but not with the reasoning leading to that conclusion, it modifies the relevant findings. If the Appellate Body disagrees with the conclusion regarding the WTO-consistency of a measure, it reverses the relevant findings. The distinction between “upholding” and “modifying” a panel’s finding has not always been clear. Occasionally, the Appellate Body has “upheld” a panel’s finding while criticizing and disagreeing to some extent with the panel’s reasoning.156 added). See also Appellate Body Report (1999), Korea – Alcoholic Beverages, para. 162. 154 On review by the Appellate Body of a panel’s objective assessment of facts see also Appellate Body Report (2003), US – Countervailing Measures on Certain EC Products, para. 74; Appellate Body Report (1998), EC – Poultry, para. 133; Appellate Body Report (2005), US – Upland Cotton, paras. 398, 399, 695; Appellate Body Report (2005), Mexico – Anti-Dumping Measures on Rice, paras. 273–4, 330. 155 See Appellate Body Report (2003), US – Offset Act (Byrd Amendment), paras. 221– 2. 156 See, e.g. Appellate Body Report (2001), US – Hot-Rolled Steel, paras. 90, 158; Appellate Body Report (2001), US – Lamb, para. 188.

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Apart from the above, relating to facts, matters of law concern, for instance, questions relating to the jurisdiction of panels and whether they have acted outside their terms of reference, whether they have engaged in ultra petita activity,157 whether they have misinterpreted provisions of the covered agreements and whether panels have exceeded or abused their jurisdiction to prescribe remedies.158 Although Article 17.13 of the DSU allows the Appellate Body only to uphold, modify or reverse the panel’s findings appealed, the Appellate Body has, in a number of cases, gone beyond that mandate. In those cases, the Appellate Body has, explicitly or implicitly, “completed the legal analysis”.159 A complainant often makes claims of violation of multiple provisions of WTO law with regard to the measure at issue. After the panel has found a violation of one or some of these provisions, the panel may decide, for reasons of judicial economy, not to make findings with respect to the claims of violation of other provisions. However, if the Panel Report is appealed and the Appellate Body reverses the panel’s findings of violation, the question arises as to what the Appellate Body can do with regard to the claims of violation which the panel, in its exercise of judicial economy, did not address. A similar question arises in cases in which a panel concludes that a provision or provisions or WTO law (e.g. the TBT Agreement as in EC – Asbestos) is not applicable in the case at hand but in which, on appeal of this finding of inapplicability, the Appellate Body comes to the opposite conclusion.160 In many domestic judicial systems, the appeals court would in similar situations “remand” the case to the court of first instance. See, e.g. Chile – Price Band System, Appellate Body Report (2002), para. 173; US – Gambling, Appellate Body Report (2005), paras. 281–2. 158 On the standard of review in general see also the Appellate Body cases, excerpts from which are reproduced in Appellate Body Secretariat, op. cit. note 12 pp. 673–706. 159 See, e.g. Appellate Body Report (1997), Canada – Periodicals; (1998), EC – Hormones; (1998), EC – Poultry; (1999), Japan – Agricultural Products II; (2000), Canada – Aircraft (Article 21.5 – Brazil); (2001), US – Wheat Gluten; (2001), EC – Asbestos; (2005), US – Upland Cotton; (2006), EC – Selected Customs Matters. 160 Appellate Body Report (2001). 157

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However, the DSU does provide the Appellate Body with the authority to remand a dispute to the panel. In the absence of a remand authority, the Appellate Body is left with two options: either to leave the dispute unresolved, or to go on to “complete the legal analysis”. In Canada – Periodicals, the Appellate Body stated: “We believe the Appellate Body can, and should, complete the analysis of Article III:2 of the GATT 1994 in this case by examining the measure with reference to its consistency with the second sentence of Article III:2, provided that there is a sufficient basis in the Panel Report to allow us to do so.”161 In the circumstances of that case, the Appellate Body considered that it would be “remiss in not completing the analysis” of Article III:2.162 However, the Appellate Body has “completed the legal analysis” only in cases in which there were sufficient factual findings in the Panel Report or undisputed facts in the panel record to enable it to carry out the legal analysis.163 In practice, the Appellate Body has often found it impossible to “complete the legal analysis” because of insufficient factual findings in the Panel Report or a lack of undisputed facts in the panel record. In addition, the Appellate Body has also declined to “complete the legal analysis” because of the novel character of the claims which the panel did not address. Claims are “novel” when they concern issues which have not yet been dealt with in the WTO case law. For example, in EC – Asbestos, the Appellate Body stated: In light of their novel character, we consider that Canada’s claims under the TBT Agreement have not been explored before us in depth. As the Panel did not address these claims, there are no “issues of law” or “legal interpretations” regarding them to be analyzed by the parties, and reviewed by us under Article 17.6 of the DSU. We also observe that the sufficiency of the facts on the record depends on the reach of the provisions of the TBT Agreement claimed to apply – a reach that has yet to be determined.164 161 162 163 164

Appellate Body Report (1997), Canada – Periodicals, p. 469. Ibid. Appellate Body Report (1998), Australia – Salmon, para. 118. Appellate Body Report (2001), EC – Asbestos, para. 82.

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(e) Jurisdiction Relating to Remedies for Breach of WTO law The DSU provides for three types of remedy for breach of WTO law: one final remedy, namely, the withdrawal (or amendment) of the WTO-inconsistent measure; and two temporary remedies which can be applied awaiting the withdrawal (or amendment) of the WTO-inconsistent measure, namely, compensation and suspension of concessions or other obligations (commonly referred to as “retaliation”. Article 3.7 of the DSU states, in relevant part: In the absence of a mutually agreed solution, the first objective of the dispute settlement system mechanism is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with provisions of any of the covered agreements.

Furthermore, Article 3.7 suggests that the withdrawal of the WTOinconsistent measure should normally be “immediate”.165 Article 19.1 of the DSU provides: Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the member concerned bring the measure into conformity with that agreement . . .

That is the limit of the power to recommend remedies. A recommendation by a panel or by the Appellate Body, as reinforcing a panel’s recommendation or otherwise, once adopted by the DSB, is legally binding on the member concerned, but not until then. With regard to recommendations and rulings adopted by the DSB, Article 21.1 of the DSU provides that: “Prompt compliance with recommendations or rulings of the DSB is essential in

Article 3.7 provides: “The provision of compensation should be resorted to only if the immediate withdrawal of the measure is impracticable . . .” 165

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order to ensure effective resolution of disputes to the benefit of all members.”166 The two temporary remedies are not for the panels or Appellate Body to recommend but come within the jurisdiction of the DSB and the parties to a dispute. According to the ILC Articles on State Responsibility, the injured state is furthermore entitled to claim from the respondent, apart from the obligation to cease the conduct, “full reparation” in the form of restitution in kind, assurances and guarantees of nonrepetition, compensation, and satisfaction.167 Restitution in kind means that the wrong-doing state has to reestablish the situation that existed before the illegal act was committed.168 If restitution in kind is not available, compensation for the damage caused by the act must be paid. Compensation covers any economically assessable damage suffered by the injured state and may include interest, and also, under certain circumstances, lost profits.169 The DSU does not explicitly provide for the compensation of damage suffered.170 However, the question is whether the rules of general international law on state responsibility, as reflected in the ILC Articles, apply to breaches of WTO law. The better view is that by providing a detailed set of rules regarding the legal consequences of a breach of WTO law, the DSU has contracted out of general economic law on state responsibility and the rule on

The procedure following a DSB decision in the event that there is no “immediate withdrawal” by the member concerned see Van den Bossche, op. cit. note 2 pp. 218 ff. 167 Article 6 bis in Part 2 of the ILC’s Articles on State Responsibility. 168 Ibid., Article 7. Restitution in kind is not required in a number of situations set out in this provision such as the situation in which the restitution would “seriously jeopardize the political independence or economic stability of the state which has committed the internationally wrongful act, whereas the injured state would not be similarly affected if it did not obtain restitution in kind.” 169 Ibid. Article 8. See also Malanczuk, Akehurst’s Modern Introduction to International Law (1997) pp. 269–71. 170 Compensation under Article 22 of the DSU concerns only damages that will be suffered in the future. 166

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compensation for damage suffered would thus not apply. WTO members in general seem to share this view. While controversial, in very specific circumstances, repayment of sums illegally received may also constitute a remedy for breach of WTO law. Article 4.7 of the SCM Agreement states that, if a measure is found to be a prohibited subsidy, the panel shall recommend that the subsidizing member withdraw the subsidy without delay. In Australia – Automotive Leather II (Article 21.5 – US), the panel examined whether the recommendation to “withdraw the subsidy” in Article 4.7 of the SCM Agreement can properly be understood to encompass repayment. The panel concluded that: In the circumstances of this case, repayment is necessary in order to “withdraw” the prohibited subsidies found to exist. As discussed above, we do not find any basis for repayment of anything less than the full subsidy. We therefore conclude that repayment in full of the prohibited subsidy is necessary in order to “withdraw the subsidy” in this case. In our view, the required repayment does not include any interest component. We believe that withdrawal of the subsidy was intended by the drafters of the SCM Agreement to be a specific and effective remedy for violations of the prohibition in Article 3.1(a). However, we do not understand it to be a remedy intended to fully restore the status quo ante by depriving the recipient of the prohibited subsidy of the benefits it may have enjoyed in the past. Nor do we consider it to be a remedy intended to provide reparation or compensation in any sense. A requirement of interest would go beyond the requirement or repayment encompassed by the term “withdraw the subsidy”, and is therefore, we believe, beyond any reasonable understanding of that term.171

The panel referred to the specificity of this ruling by stating: “That a “retrospective” remedy might not be permissible under Article 19.1 of the DSU (a question which we do not here decide) does not preclude us from concluding, on the basis of the text of Article 4.7

Panel Report, Australia – Automotive Leather II (Article 21.5 – US), paras. 6.48 and 6.49. 171

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of the SCM Agreement, that “withdraw the subsidy” is not limited to purely prospective action, but may encompass repayment of prohibited subsidies.”172 The panel’s ruling that, at least with regard to prohibited subsidies, the DSU not only provides for a “prospective” but also for a “retrospective” remedy was criticized by WTO members, including both parties to this dispute.173 (f ) Incidental Jurisdiction The DSU does not mention jurisdiction to recommend provisional measure as within the authority of panels and the Appellate Body albeit that the imprimatur of the DSB will be required, if they did recommend them. The better view is that the provisions of the DSU are exclusionary. Therefore, because of the absence of specific reference to such jurisdiction, panels and the Appellate Body have no such jurisdiction. Reference to an inherent jurisdiction would be inappropriate. As for interventions by members or other entities, these are not provided for either and, therefore, for the same reasons, strictly are not permitted. However, a modus operandi through the amicus curiae brief has been invented both by panels and the Appellate Body. This opens the possibility that others than the designated parties to the dispute may take part in the proceedings. The nature of this and its scope has been referred to and discussed earlier in this chapter. It is left to the discretion of the panel or Appellate Body whether to take into account such briefs or leave them out of consideration. (g) Reopening cases It is unlikely that panels or the Appellate Body may truly “reopen” cases, once recommendations have been made and the DSB has Ibid., para. 6.42. The Panel Report was not appealed, because the parties to this dispute, the US and Australia, had agreed at the start of the Article 21.5 panel proceedings not to appeal the Panel Report. 172 173

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acted on them. The principle of res judicata would apply. The reason is that such jurisdiction is not referred to in the DSU which is regarded as exclusionary. However, it is possible to envisage that a case may be filed, as a fresh case, if new facts are discovered which were not known to the panels (and the Appellate Body, if applicable) at the time of the earlier case and to the party concerned, at the same time, provided the lack of knowledge of the party was not due to its negligence, on the basis that it changes the complexion of the case as previously presented and argued. The rules of the DSU should simply apply to this new case. But the proviso is that the case would have to be argued as a fresh case. The cause of justice would, thus, be served and the exclusionary nature of the DSU respected! No doubt Panels and the Appellate Body have an inherent jurisdiction to reopen decided cases in order to interpret, and rectify clerical errors and where there has been fraud and corruption.

9 EPILOGUE

A few brief concluding remarks are in order. The six tribunals (or systems of tribunals) examined in terms of their exercise of jurisdiction have contributed substantially to an understanding of the jurisdiction of international tribunals. Those tribunals (or systems of tribunals) are perhaps the most important of tribunals and are of a permanent nature. Thus, a clear understanding of their jurisdiction will be of lasting value. They also have in common the characteristic of settling disputes through adjudicatory methods. There is no specific rule of interpretation requiring a presumption in favorem jurisdictionis when applying constituent instruments on jurisdiction. Rather have tribunals espoused a via media requiring interpretation to be neither liberal nor restrictive but realistic. In any case, the interpretation of jurisdictional instruments takes into account a variety of factors including, where appropriate, general international law and inherent power. The tribunals have been created, in general, some to decide disputes only between states, some to decide disputes between

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states and persons, whether natural or juridical, and some to decide disputes between international organizations and individuals. But whatever the personal reach of the jurisdiction, there may be other restrictions, rationae materiae particularly, on their jurisdiction. In the case of every one of these tribunals, there has been occasion for it to have to decide on the existence of jurisdiction. There the tribunals have applied the jurisdictional instruments in general respecting the intentions of the parties to such instruments and the purpose of the vesting of jurisdiction. Even the ICJ, which may be said, potentially, to have the broadest jurisdiction over disputes as between states, must establish its jurisdiction for the case before it, depending on a subsequent and specified vesting of jurisdiction in it. Consent in one way or another, direct or derivative, even in the case of IATS – is, thus, basic to jurisdiction, as pointed out elsewhere.1 The jurisdiction of the tribunals flows from constituent instruments and other instruments relating to jurisdiction as relevant in each case. This emphasizes the fact that all the tribunals have limited and assigned jurisdiction and do not have general jurisdiction. It has been seen that jurisdiction covers both comptétence and matters pertaining to recevabilité. It has been suggested, moreover, that compétence cannot be validly assumed by default and can be questioned even after the merits have been decided. On the other hand, matters of recevabilité must be raised at the appropriate time before the merits are examined. Failure to do so would result in any possible lack of jurisdiction being cured. None of the six tribunals have denied these propositions. It may also be noted that the threshold for jurisdiction in regard to certain incidental matters, such as the prescription of provisional or interim measures, is lower than for jurisdiction to decide the merits. In the case of remedies, it seems to be the general rule that authority to decide the merits includes the power to prescribe reparation in a suitable form – subject of course, to the non ultra petita principle.2 See C.F. Amerasinghe, Jurisdiction of International Tribunals (2003) pp. 69–100. 2 See, for this principle, C.F. Amerasinghe, ibid., pp. 422–3. 1

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It is neither necessary nor appropriate, for the purpose of this work, to draw more general conclusions from the examination of the jurisdictional scope of the six tribunals (or systems of tribunals).3 It is adequate, if note is taken of the realities that each of the tribunals (or systems of tribunals) has its own governing instruments from which its jurisdiction, including both compétence and recevabilité, is derived and that interpretation of these instruments is in the hands of the tribunals themselves, even though generally as tribunals of last resort. Finally, the observation is made that the purpose of the examination of jurisdiction in this work would be well served, if it leads to a clearer understanding of the special and individual jurisdictional features of each tribunal (or system of tribunals).

3

For general principles see C.F. Amerasinghe, ibid. Part 2.

INDEX

Abstract Question: see Advisory Opinions Actio Popularis 353 Ad hoc Tribunals: see International Tribunals Administrative Decision: see IATs Administrative Review: see IATs Admissibility: see Receivability Advisory Opinions (ICJ and PCIJ) 199–253 abstract or political questions and 216–20 binding force of 201, 202, 203 compétence: see herein jurisdiction concrete questions and 222 consent and 202, 225–7 discretion and 236–42 Eastern Carelia Opinion principle 224, 228, 235 factual questions and 222–5 hypothetical answers and 221–2 interpretation and 204, 206, 218–19, 228–30, 242–3 jurisdiction 199–253 legal question and 201, 216–25 object of 213, 220–1 reopening 242–5 res judicata and 243

review and 245–54 revision 243–5 scope of organization’s activities and 205–15 specific terms of reference and 225 see also Compétence; ICJ; PCIJ; Reopening Cases, Jurisdiction vis-à-vis Agreement: see Consent, Forum Prorogatum Annulment: see Reopening Cases, and under individual tribunals or courts Answers, hypothetical: see Advisory Opinions Arbitral Tribunals: see International Tribunals Arbitration, International 433–504 see also Consent; ICSID: Compétence de la compétence; Remedies Automatic Reservation: see Optional Clause BIT

437, 459–60, 487

Common Will: see Compétence de la compétence Compensation: see Remedies

566 Compétence 6–7, 33–111, 562, 563 advisory opinions: see Advisory Opinions constitution of court and: see Constitution of Tribunal forum prorogatum: see Forum Prorogatum fundamental limitations on 43–55 identifying matters of 37–8 interest and 48 judgment on, and res judicata 36–7 mootness and 48–50 proof of 110–11 res judicata and 36–7 Rule in Monetary Gold Case and: see Monetary Gold Case, Rule in sources of 39–42 to settle disputes 33–111 see also Advisory Opinions; Consent; Constitution of Tribunal; ECHR; IATs; ICJ; ICSID; Intervention Compétence de la compétence 1, 6, 7, 22–33, 270, 441–2 Compétence, Fundamental Limitations on: see Compétence, fundamental limitations on Compulsory Jurisdiction: see Optional Clause, Jurisdiction under Consent 11–22 form of 17–19 forum prorogatum and: see Forum Prorogatum inherent jurisdiction and 19–20 parameters of 20–22 two-step 14–17 see also Advisory Opinions; ECHR; Forum Prorogatum; ICJ; ICSID; Intervention; Jurisdiction; Optional Clause

Index Constitution of Tribunal 50, 303–15 Convention European, on Human Rights 339–432 see also ICSID Convention, Interpretation Decision, Administrative: see Administrative Decision Discretion: see Advisory Opinions; Jurisdiction Dispute, Legal 44–7 see also Compétence; ICJ; ICSID; Jurisdiction Eastern Carelia Opinion principle: see Advisory Opinions ECHR 2, 339–432 abuse of right of complaint and 372–5 active legitimation in 359–63 admissibility and 371–424, 431–2 anonymity and 371–2 competence and 343–71 domestic remedies and 385–419 European Convention on Human Rights, incompatibility with, and 379–81 individual applications in 346–8, 351–68 interpretation and 428 inter-state cases in 348–51 jurisdiction of 339–432; see also Admissibility; Compétence; Jurisdiction manifestly ill-founded applications in 381–5 passive legitimation and 364–8 proprio motu powers and 363–4

Index ratione loci conditions and 343–4 ratione materiae conditions and 368–71 ratione personae conditions and 348–68 ratione temporis conditions and 345–6 remedies in 425–6 review by 426–30 six-month rule in 419–23 substantial similarity and 375–8 victim, being, and 353–64 see also Jurisdiction; Remedies ECOSOC 205 EComHR 339–432 see also ECHR Effective Link: see Nationality of Claims Effective Nationality: see Nationality of Claims Established Courts: see Compétence de la compétence; International Tribunals Estoppel 125–7 see also Local Remedies, Exhaustion of; Receivability European Convention on Human Rights: see Convention, ECHR Forum Prorogatum 35–6, 94–108 agreement and: see herein consent consent and 94–108 compétence and 94–108 declaration and 97 evolution of 96–8 general considerations 95–6 limitations on 106–7 maturation of consent and 98–107 procedure for 107–8 see also Consent; ICJ; Jurisdiction

567 Fraud: see Reopening Cases, Jurisdiction vis-à-vis Good Faith 125–7 see also Interpretation; Local Remedies, Exhaustion of; Nationality of Claims Human Rights, European Convention on: see European Convention on Human Rights IATs 2, 3, 5, 245–54, 299–337 administrative decision, annulment of 300–2 administrative review in 321 agreement of release in 332–3 compétence of 315–25 fundamental considerations 299–303 insufficient clarity and 331–2 internal remedies in 335–7 juridiction d’attribution and 299 juridiction de droit commun and 299 jurisdiction of 245–54, 299–337 ratione materiae jurisdiction and 302, 321–5 ratione personae jurisdiction and 302, 316–20 ratione temporis jurisdiction and 302, 315–16 recevabilité and 326–37 respondent, inappropriate, and 337 review, jurisdiction to, in 245–54 scope of claims in 333–4 see also Consent; Constitution of Tribunals; Jurisdiction; Local Remedies, Exhaustion of

568 IATs, Individual: see IATs Individual International Administrative Tribunals are not indexed as such. They are covered under title IATs ICC 4 ICJ 1, 2, 3, 8, 11–253 advisory opinions of 199–253 compétence of 33–111; see herein also ICJ consent and 11–22 contentious jurisdiction of 11–197 forum prorogatum and: see Forum Prorogatum interim measures in 144–63 interim measures, jurisdiction in regard to 145–52 jurisdiction of: see herein ICJ la compétence de la competence of: see Competence de la compétence Monetary Gold Case, rule in: see Monetary Gold Case Optional Clause of: see Optional Clause remedies in 164–78 reopening cases by 178–97: see also Reopening Cases see also Compétence; Jurisdiction; Remedies ICSID 2, 5, 433–504 Amerasinghe on control 483–5 annulment 494–504: see also Reopening Cases, Jurisdiction vis-à-vis compétence of 442–86 compétence de la compétence 441–2 consent for 442–7 constituent subdivision 461–2 control and 468–86

Index corporations and: see herein juridical persons dispute, legal 452–60 ex aequo et bono 459 finality 495–504 foreign control 467–86 form of consent in 442–7 forum prorogatum 447–8 governments 461–2 in favorem jurisdictionis 439, 481 interim measures: see herein provisional measures interpretation 438–41: see also Interpretation investment 433–4, 448–52 juridical persons 467–86 jurisdiction of 437 MNCs 433–4 nationality 463–86 natural persons 463–7 outline of system of 433–40 proceedings for arbitration 439–42 proprio motu powers 477 provisional measures 488–91 rationale for 433–5 ratione materiae jurisdiction 437, 448–60, 475 ratione personae jurisdiction 437, 460–86 recevabilité 437, 487–8 remedies 492: see also Remedies reasonably possible criterion and 480–5 reopening cases 492–504 review and 493–4 state agency and 462–3 travaux préparatoires 439–41, 457 via media approach 439

Index see also Consent; Interpretation; Jurisdiction; Remedies; Reopening Cases, Jurisdiction vis-à-vis ICSID Convention 2, 3, 5, 433–504 see also ICSID ICTR 4 ICTY 4 Inadmissibility: see Receivability Incidental Jurisdiction: see Interim Measures; Intervention; Jurisdiction Interim Measures 8, 144–63, 275–9, 424–5 basic jurisdiction for 145–52 orders of, legal effect 160–3 prima facie test and 147–52 principles in exercise of jurisdiction 152–9 see also ICJ; ICSID; PCIJ Interim Protection: see Interim Measures International Tribunals 5 ad hoc 1, 4, 8 established: see herein standing International Tribunals standing 1, 4, 8 see also Compétence de la compétence; ECHR; IATs; ICJ; ICSID; ITLOS; Jurisdiction; Remedies; WTO Interpretation 304–7, 438–41, 508–10 effective approach in 304–5 functional approach in 304–5 in favorem jurisdictionis 561 pacta sunt servanda and 438 speciality principle in 209–10 unilateral declarations 105, 107–9 ut magis valeat quam pereat in 438, 475 via media 561

569 see also Advisory Opinions; ICJ; ITLOS; Compétence de la compétence; Optional Clause; Remedies; Reopening Cases, Jurisdiction vis-à-vis Intervention 8, 131–44 chamber of ICJ 144 changes of pleas 141 consent of principal parties 131–7 definition of dispute 144 individuals 335–42 judicial interest: see herein legitimate interest jurisdictional link and 133–6 legal interest: see herein legitimate interest legitimate interest 137–41 mootness 133 moral interest: see herein legitimate interest object of 141–3 other requirements and 137 right of 132–3 scope and procedures of 141–4 time for 133–4 see also ECHR; IATs; ICJ; ICSID; Incidental Jurisdiction; Jurisdiction Intra Vires 205–15 Investment: see ICSID Iran–US Claims Tribunal 3 Irreceivability: see Receivability ITLOS 2, 255–98 agreement and 257, 273–5 compétence ratione materiae 272 compétence ratione personae 270–1 compétence ratione temporis 272–3 consent: see herein agreement and jurisdiction, remedies 292–4

570 jurisdiction of, in contentious cases 270–98 prompt release 279–82 provisional measures in: see Provisional Measures reopening cases 294–5 structure and procedure of 265–7 Judgments, Interpretation of: see IATs; Interpretation; Reopening Cases, Jurisdiction vis-à-vis Judgements, Revision of: see Revision of Judgments Judicial Function, Character of 219–20, 225–9 Judicial Function, Quality of: see Judicial Function, Character of Judicial Organs: see Compétence de la compétence Juridical Persons: see ICSID Jurisdiction 1–9 advisory opinions: see Advisory Opinions attribué: see herein d’attribution contentious 11–197, 203, 204, 243 definition and content 6–8 d’attribution 299 de droit commun 299 d’exception 299 discretion and 109, 236–42 forum prorogatum: see Forum Prorogatum in favorem jurisdictionis 562 inadmissibility and: see Irreceivability incidental 128–63, 275–82 interim measures and 275–9 remedies 164–78 SBDC 295–8 see also Admissibility; Advisory Opinions; Compétence;

Index Compétence de la compétence; Consent; Constitution of Tribunal; ECHR; Eastern Carelia Opinion; Forum Prorogatum; IATs; ICJ; ICSID; each individual tribunal and court; Monetary Gold Case; Optional Clause; Receivability Jurisdiction, Compulsory: see Compulsory Jurisdiction Jurisdiction, Contentious: see Jurisdiction Jurisdiction, Incidental: see Incidental Jurisdiction Jurisdiction, Sources of: see Sources of Jurisdiction Jurisdictional Clauses, Interpretation of: see Interpretation Jurisdictional Connection: see Local Remedies, Exhaustion of Légitimation Active: see ECHR Légitimation Passive: see ECHR Local Remedies: see Local Remedies, Exhaustion of Local Remedies, Exhaustion of 119–20, 288–90 accessibility of remedies: see herein availability of remedies adequacy of remedies 120, 400–2, 408–14 administrative practices 413–14 availability of remedies 120, 397, 408 basic considerations 385–93 burden of proof 120, 419 constitutional courts 92–8 continuing situation 417–19 direct injury 120, 394–5 discretionary remedies 101 effectiveness of remedies 397, 400–2, 407–8 estoppel 120

Index ex officio powers 404–5 final decision 405–8 interests 120 jurisdictional connection 120, 395–7 legislative measures 411–14 limitations on 408–14 nature of remedy 120, 397–400 normal use 120, 397, 401–2 obvious futility 120 prevailing condition 411–12 procedural nature of rule of 120 procedural resources in relation to 120 raising objections based on 120, 414–16 raising of arguments 120, 402–5 reasonable success 401, 409–10 resort to remedies in relation to 286 scope of rule of 120, 397–408 time for 416–17 time to raise objection based on: see herein raising objections based on unreasonable delay and 120 waiver and 120 Local Remedies, Objections based on: see Local Remedies, Exhaustion of Local Remedies, Rule of: see Local Remedies, Exhaustion of Locus Standi: see Jurisdiction Measures, Interim: see Interim Measures MNC: see ICSID Monetary Gold Case, Rule in 50–5, 226–7, 235–6 see also ICJ Moral Interest: see Interest Multiple Nationality: see Nationality of Claims

571 Nationality: see ICSID; Nationality of Claims Nationality, Continuous: see Nationality of Claims Nationality, Dominant: see Nationality of Claims Nationality, Dual: see Nationality of Claims Nationality, Effective: see Nationality of Claims Nationality, Multiple: see Nationality of Claims Nationality of Claims 118–19, 283–8, 290–2 continuous nationality and 118 control and 284 determination of nationality for 118 dominant nationality and 118 dual nationality for 118 effective link and 118 effective nationality and: see herein dominant nationality genuine link (ships) and 285–8 juridical persons and 118 multiple: see herein dual nationality nationality of ships for 283–8 see also ICSID Natural Persons: see ICSID Naturalization: see Nationality of Claims Nullity: see Annulment; ICSID; Reopening Cases, Jurisdiction vis-à-vis Nullity, Partial: see Annulment; ICSID; Reopening Cases, Jurisdiction vis-à-vis Objections to Receivability: see Receivability Optional Clause: see Optional Clauses, Jurisdiction under

572 Optional Clauses, Jurisdiction under 55–94 agreement: see herein consent automatic reservation 73–5 common will: see herein consent consent 55–94 interpretation of declarations 90–4 reciprocity and 63–7 reservations to: see Reservations validity of declarations 82–9 see also ICJ PCIJ 2, 8 see also ICJ Persons juridical: see ICSID; Juridical Persons natural: see ICSID Principle in Eastern Carelia Opinion: see Eastern Carelia Opinion principle Procedure, Rules of 6, 7 see also Jurisdiction Prompt Release: see ITLOS Questions abstract: see Advisory Opinions incidental: see Advisory Opinions legal: see Advisory Opinions political: see Advisory Opinions preliminary: see Reopening Cases, Jurisdiction vis-à-vis Receivability 6, 7, 35, 111–28, 282–92, 562, 563 estoppel: see herein waiver objections to 114–18 time to raise objections to 127–8 waiver (estoppel) 120–7 see also Consent; ECHR; IATs; ICJ; ICSID; Jurisdiction; Local Remedies, Exhaustion of; Nationality of Claims

Index Receivability, Objections to: see Receivability Reciprocity: see Optional Clause Rectification: see IATs; Reopening Cases, Jurisdiction vis-à-vis Release, Agreement of: see IATs Remedies 164–78, 292–4 agreement and specific provision for 166–7 annulment 494–504 compensation: see herein reparation and damages as 165, 170–3 IATs and: see IATs ICSID and: see ICSID interpretation and 167, 170 jurisdiction with respect to 292–4 reopening cases: see Reopening Cases, Jurisdiction vis-à-vis reparation and 168–70 resitutio in integrum and 174–8 restitution: see herein restitutio in integrum revision: see Revision specific performance as 175–6 Remedies, Internal: see Local Remedies Remedies, Local: see Exhaustion of Local Remedies Reopening Cases, Jurisdiction vis-à-vis 178–97, 294–5 annulment 494–504 appeal 186 corruption: see herein fraud errors 429 finality and 178–85 fraud 189–90, 429 ICSID: see ICSID interpretation of judgments 184–5, 191–7, 429–30 partial nullity 500–3 rectification 190–1, 429 res judicata and 178–85, 195–7 review 186–9, 426–30

Index revision: see herein review see aso Advisory Opinions; ICJ; ICSID; Interpretation; Interpretation of Judgments Reparation: see Remedies Res Judicata: see Advisory Opinions; Compétence; ECHR; ICSID; Receivability; Reopening Cases, Jurisdiction vis-à-vis Reservations 6–94 Commonwealth 85 ratione materiae 69–73 ratione temporis 75–81 subjective 73–5 validity of 82–9 See also Compétence de la compétence; ICJ; Optional Clause Reservations, Automatic: see Optional Clause Restitutio in integrum: see Remedies Review: see Advisory Opinions; ECHR; IATs; ICSID; Jurisdiction; Reopening Cases, Jurisdiction vis-à-vis Revision: see Review Revision of Judgments: see Reopening Cases, Jurisdiction vis-à-vis, and under each individual tribunal or court Rule in Monetary Gold Case: see Monetary Gold Case, Rule in Rule of Local Remedies: see Local Remedies, Rule of Rules: see Procedure, Rules of Rules of Procedure: see Procedure, Rules of SBDC 258, 267–70, 295–8 Scope of Work 1–9 Ships: see Nationality of Claims Situations, Continuing: see Local Remedies, Exhaustion of

573 Six-month Rule: see ECHR Sources of Jurisdiction 89–94 Specialty Principle: see Interpretation Specific Performance: see Remedies Standing Courts: see International Tribunals Substance, rules of 6, 7 Tribunal, Constitution of: see Constitution of Tribunal Ultra Vires 205–15 UN 245–54 UN Convention on the Law of the Sea (1982) arbitration 262–4 compulsory procedures under 257–9 conciliation 262 delimitation 260–2 dispute settlement system of 255–98 fisheries 260 ICJ and 258, 268–9 marine research 260 military activities 260–1 UNSC and 261 UNCLOS: see ITLOS; UN Convention on the Law of the Sea (1982) UNESCO 249–50 see also IATs UNGA 212–15 Ut magis valeat non pereat: see Interpretation Vires, Intra: see Intra Vires Vires, Ultra: see Ultra Vires Waiver 120–7 express 121 implied 121–4 WHO 205

574 Will, Common: see Common Will World Court: see ICJ; PCIJ WTO 2, 505–59 Additional Procedure 527–30 amicus curiae briefs 525–33 Appellate Body 2, 515, 519–22, 523–59 compétence de la compétence 523–4 compétence ratione personae 524–35 consensus 515–16 covered agreements 513–14 Director-General of 516–17 dispute settlement system of 505–22 DSB 507, 514–22 DSU of 2, 3, 505–14, 516–59

Index GATT and 517, 536–7 incidental jurisdiction 558 legal analysis 554 legal interpretations 549–52 member governments 513 objective assessment of facts 544–7, 551–4 organs in dispute settlement 514–22 Panels 2, 515, 516, 517, 523–49 remedies 555–8 reopening cases 558–9 subject matter and related jurisdiction 535–49 terms of reference 542–3 ultra petita 548–9, 553 WTO Secretariat 516–17, 518–19