Counterclaims before the International Court of Justice

Counterclaims before the International Court of Justice

Constantine Antonopoulos

Counterclaims before the International Court of Justice

123

Constantine Antonopoulos Department of Law Democritus University of Thrace University Campus 69 100 Komotini Greece e-mail: [email protected]

ISBN 978-90-6704-789-0

e-ISBN 978-90-6704-790-6

DOI 10.1007/978-90-6704-790-6 Ó T.M.C. ASSER

PRESS,

The Hague, The Netherlands, and the author 2011

Published by T.M.C. ASSER

PRESS,

The Hague, The Netherlands www.asserpress.nl

Produced and distributed for T.M.C. ASSER

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by Springer-Verlag Berlin Heidelberg

No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: eStudio Calamar, Berlin/Figueres Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com)

To Vanessa and Giannos

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Preface

I am indebted to Dr. Olympia Bekou of the University of Nottingham and Mr. Michael Vagias of the Hague Law Institute for their assistance in acquiring material that was helpful in the research and writing of the text. I also wish to express my thanks to Asser Press for the publication of this monograph and particularly to Mr. Philip van Tongeren and Ms. Marjolijn Bastiaans for their invaluable assistance. Last but not least, I express my love and deep gratitude to my wife Vanessa and my son Giannos for their encouragement and patience during the preparation of this book. Komotini 2011

C. Antonopoulos

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Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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The 2.1 2.2 2.3

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Concept of Counterclaims in International Litigation . . . . . Counterclaims as a Municipal Private Law Analogy . . . . . . . Counterclaims in Municipal Law: A Brief Overview . . . . . . . Counterclaims in International Arbitration . . . . . . . . . . . . . . 2.3.1 The Permanent Court of Arbitration . . . . . . . . . . . . . 2.3.2 The UNCITRAL Arbitration Rules (1976) . . . . . . . . . 2.3.3 The Iran-US Claims Tribunal . . . . . . . . . . . . . . . . . . 2.3.4 The World Trade Organization Understanding on Rules and Procedures Governing the Settlement of Disputes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.5 The International Centre for Settlement of Investment Disputes (ICSID) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.6 The International Chamber of Commerce (ICC) Rules of Arbitration (1998) . . . . . . . . . . . . . . . . . . . 2.3.7 The International Law Commission’s Model Rules on Arbitral Procedure (1958) . . . . . . . . . . . . . . . . . . 2.4 The International Tribunal for the Law of the Sea (ITLOS) . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Counterclaims before the ICJ: Evolution and Definition 3.1 The Evolution of the Rule on Counterclaims . . . . . . 3.1.1 The Permanent Court of International Justice . 3.1.2 The International Court of Justice . . . . . . . . . 3.2 Defining Counterclaims . . . . . . . . . . . . . . . . . . . . . 3.2.1 The Literature. . . . . . . . . . . . . . . . . . . . . . . 3.2.2 The Court . . . . . . . . . . . . . . . . . . . . . . . . .

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Contents

3.2.3 3.2.4 3.2.5 3.2.6 3.2.7 References

The Rationale or Purpose of Counterclaims before the ICJ. . . . . . . . . . . . . . . . . . . . . . . . . . . . A Counterclaim is not a Defence on the Merits . . . . Counterclaims before the ICJ do not Constitute ‘‘Cross-Action’’. . . . . . . . . . . . . . . . . . . . . . . . . . . Counterclaims before the ICJ and Claims at Set-Off A Counterclaim is not a Plea of ‘‘tu quoque’’ . . . . . .......................................

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Admissibility of Counterclaims . . . . . . . . . . . . . . . . . . . . . . . 4.1 The Jurisdiction of the Court . . . . . . . . . . . . . . . . . . . . . 4.1.1 The Extent of the Subject-Matter Jurisdiction of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Jurisdiction on Counterclaims from the Point View of the Bases of Expressing Consent. . . . . . . . . . . . 4.1.3 The Position of Third States. . . . . . . . . . . . . . . . . 4.1.4 Preliminary Objections to Jurisdiction and Admissibility Concerning Counterclaims . . . . . . . . 4.1.5 Evaluation of the Jurisprudence of the Court . . . . . 4.2 Direct Connection . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Evaluation of the Jurisprudence of the Court . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Presentation of Counterclaims in the Counter-Memorial . 5.2 Equality of the Parties . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Oral Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Undue Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 The Position of Third States . . . . . . . . . . . . . . . . . . . . 5.6 Withdrawal or Discontinuance of Counterclaims . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Table of Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Table of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abbreviations

BYIL Ch. Co. Denv. J. Int’l L. and Pol’y diss. op. DRC ed./eds. EEZ EJIL et al. Geo. Wash. Int’l L. Rev. Ibid. ICC ICJ ICJ Rep. ICJ Rules ICJ Statute ICSID Id. Iran-US CTR ITLOS LJIL n. No. Para Paras PCA PCIJ

British Yearbook of International Law Chapter Company Denver Journal of International Law and Policy dissenting opinion Democratic Republic of the Congo Editor/editors Exclusive Economic Zone European Journal of International Law et alios (and others) George Washington International Law Review Ibidem (exactly the same) International Chamber of Commerce International Court of Justice Reports of Judgments and Advisory Opinions of the International Court of Justice Rules of Procedure of the International Court of Justice Statute of the International Court of Justice International Convention for the Settlement of Investment Disputes Idem (the same) Iran-United States Claims Tribunal Reports International Tribunal for the Law of the Sea Leiden Journal of International Law footnote number paragraph paragraphs permanent Court of Arbitration Permanent Court of International Justice xi

xii

PCIJ Rules PCIJ Statute RGDIP sep. op. Ser. UN UNCITRAL UNCLOS US USA v. WTO

Abbreviations

Rules of Procedure of the Permanent Court of International Justice Statute of the Permanent Court of International Justice Révue Générale de Droit International Public separate opinion Series United Nations United Nations Commission on International Trade Law United Nations Convention on the Law of the Sea United States of America United States of America versus World Trade Organization

Chapter 1

Introduction

The presentation of counterclaims is a right of the respondent party in a litigation that is accepted in the major systems of municipal law. It provides the respondent with the opportunity to turn against the plaintiff in the course of the same proceedings and pursue its own outstanding claims. The admissibility of counterclaims is subject to requirements prescribed by the relevant rules of Civil Procedure Law. These are basically two: first, that a counterclaim must fall under the jurisdiction of the court before which the principal action is pending and, secondly, that a counterclaim must be connected with the subject-matter of the principal action. While there is consistency and generality in regulation with regard to the requirement of jurisdiction this is not the case in relation to connection; as it happens, the municipal law of a fair number of States allows the presentation of counterclaims even though no connection exists with the subjectmatter of the principal action. The right to present counterclaims is admitted in litigation on the international plane.1 This is mainly a result of the reliance of international law on analogies from municipal law, a reliance that is formally recognized as one of the sources of international law in Article 38 (1) (c) of the Statute of the International Court of Justice. The drawing of analogies in the field of arbitration and judicial settlement of disputes has been very frequent,2 mainly for reasons of practical necessity and facility in adaptation, and has formed the basis upon which concepts of municipal procedure law have to be adapted to the particularities of international litigation and developed through the jurisprudence of international courts and tribunals. Thus, the Rules of Procedure of contemporary, mainly institutionalized, arbitration and of the International Court of Justice expressly provide for the right of a respondent party to present counterclaims. The requirements of admissibility of counterclaims under both means of pacific settlement of dispute are two: first that a

1 2

See generally, Larschan and Mirfendereski 1986–1987, 11; Renteln 1986–1987, 379. Lauterpacht 1927, viii.

C. Antonopoulos, Counterclaims before the International Court of Justice, DOI: 10.1007/978-90-6704-790-6_1, Ó T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

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1 Introduction

counterclaim comes within the jurisdiction of the Court or arbitral tribunal and, secondly, that it is directly connected with the subject-matter of the Applicant’s claim. Unlike municipal law, connection is compulsory in international litigation because of the consensual nature of the jurisdiction of the Court and arbitral tribunals and, secondly, of the fact of specific class of dispute resolved by a number of courts and tribunals. The Rules of Procedure of the International Court of Justice expressly stipulate the right to make counterclaims. In this respect, the Court has followed the practice of its predecessor, the Permanent Court of International Justice that appears to be a pioneer in the field of judicial settlement of disputes on the international plane by expressly introducing the right to present counterclaims in its Rules of Procedure. The present provision on counterclaims is Article 80 of the Rules of the Court (introduced in 1978 and revised in 2000) and is the product of a process of evolution that was formulated to substantial extent by the jurisprudence of the Court. The basic stages of this evolutionary process are the following: 1. The jurisdiction of the Court constituted the single requirement for the admissibility of counterclaims in the Rules of Procedure of the Permanent Court adopted upon its establishment in 1920 (Article 40). In the Chorzów Factory case (1928), however, the Court found that a ‘‘juridical connection’’ existed between the principal claim of Germany and the counterclaim of Poland. 2. Under the influence of the Judgment of the Permanent Court in the Chorzów Factory case and, to considerable extent, the views of one of its Members, Judge Dionisio Anzilotti, ‘‘direct connection’’ with the subject-matter of the principal claim was added as the second requirement of the admissibility of counterclaims after a major revision of the Permanent Court’s Rules in 1936. The requirements of jurisdiction and direct connection have remained unchanged ever since. 3. In 1978, after an extensive revision of the Rules of the International Court, the admissibility of counterclaims has become the subject of incidental proceedings. This of itself constitutes a significant development for it implies a procedural emphasis on the independent character of counterclaims qua claims. Hitherto, counterclaims were evaluated both as to their admissibility and substance at the Merits stage of the main proceedings. The practice of the Court under Article 80 of the present Rules separates the evaluation of jurisdiction and direct connection for the admissibility of counterclaims from their substantive content and subjects them to a distinct set of incidental proceedings. 4. The Rules of Procedure of the International Court of Justice since its establishment in 1946 introduced the apparent obligation of the Court to hold hearings in the event of doubt as to the existence of connection between the principal claim and the counterclaim. However, in all cases where counterclaims were discussed in incidental proceedings the Court reached its decision without holding any hearings. The practice of the Court with respect to counterclaims under Article 80 of the Rules has led to the issuance of five Orders. The first four were made under the

1 Introduction

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original version of Article 80 (1978) in the period 1997–20013 and the fifth under the revised Article 80 (2000) in July 2010.4 As a result of this practice the Court has elaborated on a definition of counterclaims which is lacking and on the requirements of jurisdiction and direct connection. The subject of the present book is confined to counterclaims in the International Court of Justice. The motivation behind the writing of the text has been threefold: First that the subject-matter jurisdiction of the International Court is not restricted to a particular area of international law and in this respect is universal in character. Therefore, the requirements of jurisdiction and direct connection are not immediately and directly established with respect to a counterclaim. Secondly, the increasing readiness of respondent States to present counterclaims. This in itself appears to indicate a willingness to introduce additional aspects of a wider dispute beyond the subject of the principal Application instituting proceedings that may represent only part thereof. This in turn reveals the complexity of many disputes and it implies a willingness on the part of the respondent State to have many aspects of an overall dispute settled with finality in a specific case. It also reveals an avenue of litigation strategy that becomes open for the respondent State in that it is possible to mitigate the final outcome on the Merits of the main proceedings. Thirdly, the small attention devoted to counterclaims at the International Court in the literature.5 The subject has been dealt either in sections (as it happens not very extensive) of general works on the Court6 or in articles and contributions in general works.7 The present writer thinks that even though small, compared to preliminary objections or provisional measures, the jurisprudence of the Court on counterclaims offers a basis for the exposition of the aspects of these incidental proceedings in a monograph. The book addresses the admissibility of counterclaims under Article 80 of the Rules and ventures into their substance in so far as this is necessary to explain issues of jurisdiction and admissibility beyond the parameters of Article 80. Moreover, the case law of both the Permanent Court and the present Court is addressed as a single corpus of jurisprudence. The book

3 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (1997); Oil Platforms case (Iran v. USA) (1998); Cameroon v. Nigeria case (1999); Armed Activities on the Territory of the Congo case (D.R. Congo v. Uganda) (2001). 4 See Jurisdictional Immunities of the State (Germany v. Italy) (2010). 5 In his dissenting opinion in the Jurisdictional Immunities (Counter-Claim) case Judge Cançado Trindade remarked that unlike provisional measures of protection ‘‘counter-claims have not received sufficient attention from expert writing to date’’; Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judge Cançado Trindade (diss. op.), para 4. 6 See Hudson 1943, 292–293; S. Rosenne 2006, 1232–1241; Thirlway 2001, 174–181; Zimmermann et al. 2006, 907–918. 7 For a particularly influential study on counterclaims see Anzilotti 1930, 857; see also Genet 1938, 145; Rosenne 2000, 457; Rosenne 2001, 77; Rosenne 2007, Ch. 16; Thirlway 1999, 197; Lopes Pegna 1998, 724; Murphy 2000–2001, 5; Salerno 1999, 329.

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consists of six Chapters: Introduction (Chap. 1), four main Chapters and Conclusions (Chap. 6). Chapter 2 begins with a discussion of private law analogies of international law and the position of counterclaims as such. It then reviews very briefly counterclaims in municipal law of various States and its remainder deals with the right (or lack of it) to make counterclaims in international arbitration, the International Tribunal of the Law of the Sea and the World Trade Organization (WTO) dispute settlement mechanism. Chapter 3 deals with the evolution of the relevant provision of the Rules of the PCIJ and the ICJ on counterclaims and the issue of defining counterclaims. It traces the developments on the formulation of the Rules concerning counterclaims from 1920 to the latest revision of Article 80 in 2000. The record of the views of the Judges of the Permanent Court during the Revision process in 1934–1936 is extensively recounted to as well as the case law of Court until the revision of 1978 of the ICJ Rules. The remainder of the Chapter deals with the issues of definition of counterclaims on the basis of the case law of the ICJ under the 1978/2000 Rules, the distinction between counterclaims and pleas of defence, tu quoque, set-off and cross-action, and finally, the issue of the compatibility of making a counterclaim against a principal claim alleging the violation of a rule of jus cogens. Chapter 4 is devoted to the two requirements of admissibility of counterclaims, namely, jurisdiction and direct connection. The first section deals with jurisdiction and discusses whether a counterclaimant respondent may present counterclaims that exceed the exact subject-matter of the principal claim in the context of the same jurisdictional basis and provided that direct connection is present. Moreover, it deals with preliminary objections to jurisdiction and admissibility beyond the context of Article 80. The second section is devoted to direct connection and reviews the case law of the Court with respect to connection in fact and connection in law. The two sections are disproportionate in length: the one on jurisdiction is more extensive than the one on direct connection. The reason is that discussion of the jurisdiction of the Court in relation to counterclaims appears to be somewhat cursory in the literature because of an assumption that once jurisdiction is established with regard to the principal claim it is automatically established for the counterclaim. Also, in the majority of cases where counterclaims were presented the principal Applicants did not raise objections to the jurisdiction of the Court. Although jurisdiction with regard to the counterclaim must exist on the same basis as the principal claim, the counterclaim of the USA in the Oil Platforms case raised the issue of whether the subject-matter of a counterclaim may exceed the subject-matter of the principal claim always within the parameters of the same jurisdictional basis provided that direct connection exists. Furthermore, the objections to jurisdiction and admissibility of Iran and the Congo, the principal Applicants in the Oil Platforms and the Congo versus Uganda cases, respectively, were treated as objections not of a preliminary character and the Court expressly distinguished between the jurisdiction and admissibility of a counterclaim under Article 80 and jurisdiction and admissibility with respect to the merits of the

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counterclaim. Finally, the most recent Order of the Court in the Jurisdictional Immunities case rejected Italy’s counterclaim because it did not come under the jurisdiction of the Court. The decision was reached after Germany raised an objection to the jurisdiction of Italy’s counterclaim that was evaluated at the Counterclaim stage and not at the Merits stage. The practice of the Court with regard to the requirement of jurisdiction is not extensive and this warrants caution in extracting general conclusions. Nevertheless, it appears to emerge from this practice that the approach of the Court to jurisdiction is very rigorous and inflexible because of its consensual nature. Therefore, it appears that jurisdiction may constitute a more formidable hurdle for the admissibility of a counterclaim than direct connection; and that a principal Applicant is more (or at least equally) likely to succeed in having a counterclaim rejected by contesting the jurisdiction of the Court rather than the direct connection between claim and counterclaim. The Court has approached the requirement of direct connection, on the other hand, broadly and flexibly. In addition, it is its stated intention to exercise a wide margin of discretion in evaluating the existence of direct connection. Chapter 5 discusses certain issues of procedure and is based on the case law of the Court since the 1930s. More specifically, it deals with the obligation to present counterclaims in the Counter-Memorial, the concern that was voiced by individual Judges of the Court with respect to the principle of the equality of the parties, the delay in the main proceedings, the decision (very consistent as it seems) of the Court to reach its Orders on counterclaims without holding hearings, the position of third States with respect to the presentation of counterclaims and the effect of discontinuance of proceedings on counterclaims. Chapter 6 consists of the conclusions reached on the basis of the discussion in the preceding Chaps. 1–4. The practice of the Court on the presentation of counterclaims is not as extensive as with respect to other instances of incidental proceedings. It has acquired, however, some frequency and a measure of consistency is emerging under Article 80 of the present Rules of the Court which allows for the deduction of certain conclusions and the making of some tentative insights. In any event, this practice warrants more attention to and further study of the right to present counterclaims before the ICJ; the aim of this book is to contribute in this direction.

References Anzilotti D (1930) La Demande Reconventionelle en Procédure Internationale. 57 J du Droit International 857 Genet R (1938) Les Demandes Reconventionelles et la Procédure de la Cour Permanente de Justice Internationale, 19 Révue de Droit International et de Législation Comparée 145 Hudson MO (1943) The Permanent Court of International Justice 1920–1942. New York, pp 292–293 Larschan B, Mirfendereski G (1986–1987) The Status of Counterclaims in International Law, with particular reference to International Arbitration involving a Private Party and a Foreign State. 15 Denv. J. Int’l L. & Pol’y 11

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Lauterpacht Sir H (1927) Private Law Sources and Analogies of International Law, London. Reprinted in 2002 by The Law Book Exchange Union, p viii Lopes Pegna O (1998) Counter-claims and Obligations Erga Omnes before the International Court of Justice. 9 EJIL 724 Murphy SD (2000–2001) Amplifying the World Court’s Jurisdiction through Counter-claims and Third-party Intervention. 33 Geo. Wash. Int’l L. Rev. 5 Renteln AD (1986–1987) Encountering Counterclaims. 15 Denv. J. Int’l L. & Pol’y 379 Rosenne S (2000) Counter-claims in the International Court of Justice Revisited. In: Armas Barea CA et al (eds) Liber Amicorum ‘In Memoriam’ of Judge José Maria Ruda. Kluwer, p 457 Rosenne S (2001) The International Court of Justice: Revision of Articles 79 and 80 of the Rules of Court. 14 LJIL 77 Rosenne S (2006) The Law and Practice of the International Court 1920–2005 Vol. III (Procedure). M. Nijhoff, Ch. 16 Rosenne S (2007) Essays on International Law and Practice. M. Nijhoff, Ch. 16 Salerno F (1999) la Demande Reconventionelle dans la Procédure de la Cour Internationale de Justice. 103 RGDIP 329 Thirlway H (1999) Counterclaims Before the International Court of Justice: The Genocide Convention and Oil Platforms Decisions. 12 LJIL 197 Thirlway H (2001) The Law and Procedure of the International Court of Justice 1960–1989, Part Twelve. 69 BYIL 37 174–181 Zimmermann A et al (eds) (2006) The Statute of the International Court of Justice A Commentary, Oxford, pp 907–918

Chapter 2

The Concept of Counterclaims in International Litigation

2.1 Counterclaims as a Municipal Private Law Analogy ‘‘Counterclaims’’ constitutes a concept of municipal law; more specifically, it is a concept of private law and, in particular, of civil procedure law. Its adoption in international litigation, in general, and in the Rules of Procedure of the International Court of Justice and its predecessor, the Permanent Court of International Justice, in particular, constitutes an exercise in private law analogy in the sphere of international law. The theoretical basis and practical application of this type of analogy in the field of international law has been dealt with by, at least, two eminent authorities. Judge Sir Arnold McNair in his Separate Opinion in the International Status of South-West Africa case expressed the matter in the following terms: … What is the duty of an international tribunal when confronted with a new legal institution the object and terminology of which are reminiscent of the rules and institutions of private law? To what extent is it useful or necessary to examine what may at first sight appear to be relevant analogies in private law systems and draw help and inspiration from them? International law has recruited and continues to recruit many of its rules and institutions from private systems of law. Article 38 (1) (c) of the Statute of the Court bears witness that this process is still active … The way in which international law borrows from this source is not by means of importing private law institutions ‘‘lock, stock and barrel’’, ready-made and fully equipped with a set of rules. It would be difficult to reconcile such a process with the application of the ‘‘general principles of law’’. In my opinion, the true view of the duty of international tribunals in this matter is to regard any features or terminology which are reminiscent of the rules and institutions of private law as an indication of policy and principles rather than as directly importing these rules and institutions …1

1 International Status of South-West Africa, Advisory Opinion of July 11, 1950, ICJ Rep. 1950, 128, at 148.

C. Antonopoulos, Counterclaims before the International Court of Justice, DOI: 10.1007/978-90-6704-790-6_2,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

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2 The Concept of Counterclaims in International Litigation

Secondly, Sir Hersch Lauterpacht has demonstrated, in a major classical monograph,2 not only the theoretical possibility but also the reality of drawing, by way of analogy, concepts from municipal private law in formulating the doctrine of international law and dealing with issues of substantive content of the law both in the practice of States (such as the law of treaties and State succession) and the settlement of disputes by arbitration. In his view, the making of private law analogies has the result of enriching international law and promoting its development rather than undermining its autonomy as a legal system.3 In this latter respect, he has fiercely attacked the positivist doctrine prevailing throughout the ninetieth and early twentieth centuries that denied any relevance to private law concepts in international law and was as a matter of principle hostile to it lest it undermined international law as a self-sufficient system of law.4 He has also exposed the total lack of substance of the positivist position, which, as he proved, in reality accepted a significant role of private law concepts in international law under disguise, by devising the term ‘‘conceptions of general jurisprudence’’ to describe it.5 In Lauterpacht’s view, the positivist doctrine of the day introduced ‘‘the rejected private law in a disguised form or under a different name’’ and this reduced positivist theory to ‘‘a matter of form and not of substance’’.6 An example of the classical positivist doctrine criticized by Lauterpacht is the view expressed by Anzilotti, a leading positivist, on the possibility of making counterclaims before the Permanent Court: ‘‘pour nous, il suffira d’ observer que, étant donné la possibilité de créer un rapport judiciaire entre deux sujets moyennant la demande unilatéral d’ un de ces sujets (demandeur), il est également possible que l’ autre sujet (défendeur) demande à son tour quelque chose qui soit plus que le simple rejet de la demande de l’ adversaire. … le Réglement se réfère aux notions de droit généralement admises et les adopte ainsi dans son propre champ’’.7 Although Articles 38 (3) of the Statute of the Permanent Court and 38 (1) (c) of the Statute of the International Court of Justice that admit general principles of law as a source of international law apparently constitutes a ‘‘… final and authoritative abandonment of the misleading doctrine that international law is a self-sufficing doctrine of rules …’’8 they have not dispensed with the issue of private law analogies. For there may be lack of unanimity in interpreting State practice, Article 38 as a treaty provision is ‘‘…subject to the vicissitudes to which all treaties are liable …’’, the application and interpretation of the Statute of the Court is likely to be carried out through the prism of positivism, and analogy is in principle excluded as a result of the difference between the subjects of the two systems of law (municipal

2 3 4 5 6 7 8

Lauterpacht 1927. Id., 83–84. Id., 7–8, 50–51. Id., 17–23. Id., 31–37. Anzilotti 1930, 858, 867 [emphasis added]. Lauterpacht 1927, 67–68, 71.

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9

and international).9 Lauterpacht has warned, however, that private law analogies have limitations. In the first place, an analogy may not be drawn in relation to concepts ‘‘peculiar to a particular municipal law’’ but only to ‘‘general principles of private law recognized by the main systems of jurisprudence’’. Secondly, ‘‘not every relation between States has its counterpart in private law’’. Thirdly, it is not necessary to seek legal regulation in private law if the rules of international law provide a sufficient basis for it. Finally, the lack of an international court with universally compulsory jurisdiction and a central authority to enforce the law in the international community would result in the inaccuracy of certain analogies without going as far as distorting existing rules of international law.10 Counterclaims appear to fall in the first class of ‘‘points of contact between international law and private law’’ identified by Lauterpacht as including ‘‘cases in which legal relations normally forming the subject-matter of international law are shaped in accordance with or by analogy to a conception of private law’’; in particular, counterclaims constitute part of a contingency where ‘‘rules of procedure as developed in the sphere of arbitration between private persons are used as a basis of the procedure of international courts and tribunals’’.11 The rules of procedure of private law constitute an indispensable source of international litigation for ‘‘the work of international courts was and is impossible without a large measure of recourse to general principles of private law’’.12 In this respect they either ‘‘complement international law in the absence of rules provided by custom and treaties’’13 or they have been adopted by the International Court and other international tribunals in the exercise of their capacity to formulate their own rules of procedure.14 The inclusion of counterclaims in a great number of these rules constitutes precisely a realization of this power. Moreover, the fact that the right to make counterclaims is not in principle an indispensable procedural requirement without which the work of an international court would be impossible (such as the principles of res judicata, the equality of the parties or the probative value of evidence), its inclusion in many texts of rules of procedure on the international plane is proof of the admission of their pertinence by analogy with municipal law. 9

See a revised version of Chapter I of Analogies in Lauterpacht 1975, 173, 182–183. Lauterpacht 1927, 84–87. 11 Lauterpacht 1975, 173–174. 12 Lauterpacht 1927, 210–211. 13 Id., 203 et seq. 14 Cf. Rosenne 2000, 476; Rosenne 2007, 293. Rosenne argues that a counterclaim before the ICJ is ‘‘a purely self-standing institution following its own logic, its own procedure and its own rules. It is immaterial whether it was initially inspired by one or other system of internal law or by theories of abstract jurisprudence. Its development has followed parallel developments in the Court’s general law and practice, particularly as regards its jurisdiction and the seisin of the Court. Analogies drawn from internal law and practice are of little relevance for litigation in the International Court’’. This view appears not to deny in principle the relevance of an analogy with municipal law in relation to counterclaims and it is akin to Judge McNair’s position that resort to general principles of domestic law does not signify their wholesale import into international law. 10

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Indeed, it may be said that the provision of a right to present counterclaims before an international court or tribunal is a private law analogy that aims not simply at making its function possible but constitutes an acknowledgment of and response to the complex and multi-faceted nature of international disputes and the need to address it in a comprehensive and effective fashion15 and that this is achieved by recourse to private law of procedure is proof of the continuing relevance of Lauterpacht’s major contribution to the theory of international law. It is also manifested with respect to the question of the definition of counterclaims.16

2.2 Counterclaims in Municipal Law: A Brief Overview17 The right of a respondent to bring counterclaims or ‘‘cross action’’ is admitted by virtually all municipal civil procedure legislation.18 The underlying reason for this is that the parties affected by a certain transaction or occurrence may be reasonably expected to bring claims arising from it. Therefore, if one of them (plaintiff) institutes proceedings asserting a claim against the other (respondent), the latter may have an interest not only in having this claim rejected by the court but also in ‘‘obtaining a judgment against plaintiff on his own claim’’.19 Moreover, a respondent’s counterclaim is not considered as a defence, aiming just at defeating the plaintiff’s action, but rather ‘‘an independent exercise of his right to bring an action’’.20 The rationale for allowing the admissibility of counterclaims rests on grounds of judicial economy because a counterclaim arises from the same legal relationship as the plaintiff’s action and this dictates a settlement of both in the course of the same proceedings. Moreover, the presentation of a counterclaim aims at mitigating the effects of the main action.21 A counterclaim may be raised only in the course of the proceedings initiated by the plaintiff’s action and, for this reason, it is dependent upon it. Thus, the plaintiff must not withdraw his action and the proceedings must not have been terminated by the issuing of a judgment before the filing of the counterclaim. By contrast if a counterclaim is properly raised it ceases to depend on the subsequent fate of the plaintiff’s action.22 15

Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org, Judge Cançado-Trindade (dissenting opinion), paras 4, 15, 19. [hereinafter referred to as Jurisdictional Immunities case]. 16 See infra Chap. 3. 17 Cappelletti 1973, 62–69. 18 A rare exception occurs in the Swiss Canton of Aargau the Civil procedure Code of which (Art. 15) does not permit the making of counterclaims. See Cappelletti 1973, 63 (n. 594). 19 Id., 62. 20 Ibid. 21 See Beys, Calavros, Stamatopoulos 2001, 344. 22 Cappelletti 1973, 64–65.

2.2 Counterclaims in Municipal Law: A Brief Overview

11

The core requirement for the admissibility of counterclaims appears to be the connection between claim and counterclaim. This connection is premised on the same legal context from which the plaintiff’s claim arises. In the Continental and Romanic legal systems it is interpreted broadly.23 Thus under paragraph 33 of the Civil Procedure Code of Germany and Article 36 of the Civil Procedure Code of Italy connection is established even on the basis of a relationship to a means of defence against the plaintiff’s action.24 In addition to connection, admissibility is also subject to the requirement that a counterclaim must be susceptible to the same kind of proceedings as the plaintiff’s claim, whereas if the value of the counterclaim exceeds the court’s subject-matter jurisdiction then it is possible either to refer the entire proceedings to a higher court or to separate the counterclaim and subject it to special proceedings.25 Furthermore, a counterclaim is not admissible in the cases where a respondent is not entitled to invoke his right by way of defence, as it is the case with respect to the protection of the rights of possession of the plaintiff.26 In case of a counterclaim that is totally unconnected to the plaintiff’s claim there is no uniformity of regulation. Thus, in French (Art. 70 Civil Procedure Code) and Portuguese (Art. 274 Civil Procedure Code) law such counterclaims are inadmissible.27 By contrast in Spanish (Art. 542 (2.3) Civil Procedure Code) and most Latin American countries’ law (for instance, Art. 357 Argentina Civil Procedure Code; Art. 190 Brazil Civil Procedure Code; Art. 260 Mexico Civil Procedure Code) they are admissible provided they fall under the court’s subject-matter jurisdiction.28 In German and Austrian law the matter is left to the discretion of the court.29 By contrast, in Greek law (Art. 268 Civil Procedure Code) a connection between the principal action and the counterclaim is not required.30 In English law counterclaims may be brought under section 39 of the Judicature Act of 1925. There is no requirement of a relationship between claim and counterclaim and the courts have absolute discretion to dismiss or uphold counterclaims in this respect.31 In US law32 the bringing of counterclaims is regulated in rule 13 of the Federal Rules on Civil Procedure, which is followed by the civil procedure legislation of the federal units of the USA. The Federal Rules introduce a distinction between

23

Id., 63. Ibid. 25 Ibid. 26 Id., 64. 27 Ibid. n. 608. 28 Ibid. n. 609. 29 Ibid. n. 610. 30 Beys, Calavros, Stamatopoulos 2001, 347. 31 Cappelletti 1973, 65. 32 Id. 65, 67–68. Also see Larchan and Mirfendereski 1986–1987, 39 et seq.; Renteln 1986– 1987, 380–381. 24

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compulsory counterclaims [rule 13 (a)] and permissive counterclaims [rule 13 (b)]. A counterclaim is compulsory for the respondent if it arises from the same transaction or occurrence that constitutes the subject-matter of the plaintiff’s action; if he fails to bring a counterclaim, then he is debarred from doing so in the future (even as the subject of a separate action) by operation of the principle of res judicata. A permissive counterclaim is one that is not related to the plaintiff’s claim, though there is controversy whether its admissibility requires that it falls independently under the federal court’s jurisdiction or that jurisdiction over the plaintiff’s claim would be sufficient.33 Other legal systems do not expressly provide for compulsory counterclaims, except in specialized proceedings concerning particular areas of the law (e.g., family disputes); in all other cases a respondent who failed to bring a counterclaim is not precluded from doing so in the future because of the effect of res judicata of a judgment concerning the plaintiff’s claim.34 Moreover, with respect to countercounterclaims, namely, counterclaims brought by the original plaintiff against counterclaims raised by the respondent against the principal claim there is no uniformity of regulation. Some legal systems do not allow them on the basis of the Canon law principle reconventio reconventionis non admittitur while other systems admit them provided that there is a connection between the new claim against the counterclaim and no undue delay is caused for the plaintiff’s original action.35

2.3 Counterclaims in International Arbitration Anzilotti36 has ruled out the possibility of counterclaims in cases of arbitration because the existence of a special agreement submitting a dispute to this particular means of settlement, first, laid down the precise object and boundaries of the dispute and, secondly, it precluded the formal (as opposed to the material) determination of the parties thereto as plaintiff and respondent. As he wrote: Il ne pouvait, évidemment, pas être question de demande reconventionelle dans la procédure internationalle, tant que la seule forme judiciaire de solution des litiges entre Etats a été l’ arbitrage, au sens étroit du mot. Les demandes que les intéressés voulait soumettre à la decision des arbitres devaient trouver leur expression dans le compromise, lequel établissait donc définitivement l’ oblet et les limites de la controverse. Pour que maisse le problème de la possibilité de la demande reconventionelle, il est nécessaire que les parties assument, non seulement matériellement, mais formalement, les roles de demandeur et de défendeur

33

Cappelletti, 1973, 65. Id., 67. 35 Id., 69. 36 Anzilotti 1930, 857. Also see Anzilotti’s comments in the course of the drafting of Article 40 of the PCIJ Rules of Procedure in 1922, Preliminary Session, 25th Meeting, March 9, 1922, PCIJ Ser. D No 2 (1922), 139-140, and the revision process of the PCIJ Rules in PCIJ Ser. D No 2 (Third Addendum) (1936), 109. 34

2.3 Counterclaims in International Arbitration

13

This extremely strict position, however, does not appear accurate both as a matter of principle and as a matter of arbitral practice. Scelle, in his report to the International Law Commission on Arbitral Procedure took the view that counterclaims were not precluded in principle in the absence of express provision in a compromis.37 There is no doubt that all arbitration is governed by the terms of the special agreement that establishes it. Whether counterclaims may be brought or not by either of the parties is a matter, first, of the terms of the compromis. If it expressly excludes the making of counterclaims, then the issue is settled there. But if it is silent, then it is a matter of how the dispute is defined. If this is formulated in narrow and specific terms, then the possibility of raising counterclaims equally narrows to the point of exclusion. However, if it is defined broadly and if it can be deduced from the terms of the special agreement that the intention of the parties is to achieve a final settlement of all outstanding issues pending between them, then counterclaims may not be a priori excluded simply because the method of settlement is arbitration and there is no formal determination of applicant and respondent. Moreover, Anzilotti’s position is not supported by the practice of arbitral tribunals, in particular those set up under institutionalized arbitration. Both the Permanent Court of Arbitration (PCA), in existence at the time of Anzilotti’s writing, and post-1945 institutionalized arbitration allow the bringing of counterclaims.

2.3.1 The Permanent Court of Arbitration The original Rules of Procedure of the PCA of 1899 and 1907 were silent on the possibility of bringing counterclaims. Nevertheless, in two cases which were decided in 1913, namely The Carthage (France v. Italy) and the Manouba (France v. Italy) the PCA addressed the possibility of making counterclaims.38 Both cases arose as a result of the seizure by the Italian Navy of two French steamers during the Italo-Turkish war of 1911–1912. On January 16, 1912 a destroyer of the Italian Navy intercepted the French mail steamer Carthage on the high seas in the Mediterranean. The commander of the destroyer considered that an aeroplane that was carried by the French steamer and that was to be delivered to a private individual in Tunis constituted contraband of war. The aeroplane could not be trans-shipped on the destroyer and, therefore, the Carthage was ordered to follow the destroyer to the Italian port of Cagliari. She was released on January 20, 1912. France requested the tribunal to adjudge compensation to be paid by Italy for breach of its obligations toward neutral shipping and for the losses and damage suffered by private parties ‘‘interested in

37

Report by Georges Scelle (Special Rapporteur) on Arbitral Procedure, Doc. A/CN.4/18 (1950), Yearbook of the International Law Commission 1950, Vol. II, 114, at 137, para 78. 38 It is noteworthy that in both cases D. Anzilotti served as counsel for Italy.

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the steamer and its voyage’’.39 Italy, in her submissions to the tribunal, did not confine herself to requesting the rejection of the French claims, but requested the tribunal to adjudge what amounted to a counterclaim against France: ‘‘… that the French Government shall be obliged to pay the sum of two thousand and seventytwo francs, twenty-five centimes, the amount of the expense caused by the seizure of the ‘Carthage’’’.40 This additional request for compensation meant that Italy requested ‘‘something more’’ going beyond a mere defence for the rejection of the French claim. The tribunal did not consider Italy’s counterclaim and finally ruled that Italy should pay 160,000 francs as compensation to France.41 The Manouba, another French mail steamer, was intercepted by a destroyer of the Italian Navy on 18 January 1912. The Italian crew visited the steamer and discovered among the passengers twenty-nine Turkish individuals, suspected of being members of the Ottoman army. The steamer was subsequently conducted to the port of Cagliari, where the captain of the Manouba was ordered to surrender the twenty-nine individuals to the Italian authorities. He refused to comply and the Italian authorities proceeded to seize the Manouba. Following the seizure of the steamer its master delivered the twenty-nine Turkish passengers and the vessel was allowed to continue its voyage. France requested the tribunal to adjudge the payment of compensation by Italy for violations of her obligations under the law of war at sea and for losses suffered by individuals interested in the vessel and its voyage.42 For her part Italy again did not only request the rejection of the French claim. She asked the tribunal to rule that France should pay compensation to Italy, first, for violation of her obligation to respect the right of a belligerent to verify the status of individuals suspected of being enemy soldiers and found on board of a neutral freighter and, secondly, for the expenses incurred with respect to the seizure of the Manouba.43 Again, the submissions of Italy in this respect constituted ‘‘something more’’ than a mere defence intended to reject the French claims and, as such, partook the character of counterclaims. The tribunal ruled that Italy had a right to arrest the Turkish passengers on board the ship and awarded compensation to France only for the loss and damage suffered by private parties with an interest in the steamer and its voyage. However, this compensation was reduced to the extent of the amount due to Italy for the expenses incurred for the custody of the Manouba.44 These two early cases that were considered by the PCA are illustrations that counterclaims were admissible in spite of the absence of an express provision in the rules of procedure of arbitration conducted within its framework. In fact, in the

39

The Carthage (France v. Italy), PCA, Award of 6 May 1913, www.pca-cpa.org/upload/ files/Carthage%20EN.pdf, 2. 40 Id., 3. 41 Id., 5. 42 The Manouba (France v. Italy), PCA, Award of May 6, 1913, www.pca-cpa.org/upload/files/ Manouba%20EN.pdf, 3. 43 Id., 3–4. 44 Id., 7.

2.3 Counterclaims in International Arbitration

15

Manouba case the tribunal even upheld the Italian counterclaims, the first partially with respect to the lawfulness of the arrest of the Turkish passengers and the second in its entirety. Therefore, it may be inferred that in the case of silence in regulation of the matter of counterclaims in the rules of procedure of an arbitral tribunal, because of the absence either of a provision expressly allowing them or of a provision expressly prohibiting them, they are admissible, at least, as an analogy with municipal law on civil procedure. The Optional Rules of Procedure of the PCA currently in force applicable to a wide variety of categories of disputes admit the right to bring counterclaims. Thus, the PCA Optional Rules for Arbitrating Disputes between States (1992)45 provide in Article 19 (3) that: In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counter-claim arising out of the same treaty or other agreement or rely on a claim arising out of the same treaty or other agreement for the purpose of a set-off.

In Article 19 (3) of the PCA Optional Rules for Arbitrating Disputes between Two Parties of which only One is a State (1993)46 it is stipulated that: In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counter-claim arising out of the same contract or rely on a claim arising out of the same contract for the purpose of a set-off.

Moreover, Article 19 (3) of the PCA Optional Rules for Arbitration Involving International Organizations and States (1996)47 provides that: In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counter-claim, or a claim for a set-off, arising out of any of the items mentioned in article 3, paragraph 3(c).

Furthermore, Article 19 (3) of the PCA Optional Rules for Arbitration between International Organizations and Private Parties (1996)48 states that: In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counter-claim, or a claim for a set-off, arising out of any of the items mentioned in article 3, paragraph 3(c).

45

Text in http://www.pca-cpa.org/upload/files/2STAENG.pdf. Text in http://www.pca-cpa.org/upload/files/1STAENG.pdf. 47 Text in http://www.pca-cpa.org/upload/files/IGO2ENG.pdf. Article 3, paragraph 3(c) states that ‘‘The notice of arbitration shall include the following: … (c) A reference to the constituent instrument of the organization and to any rule, decision, agreement or relationship out of or in relation to which the dispute arises. …’’ 48 Text in http://www.pca-cpa.org/upload/files/IGO1ENG.pdf. Article 3, paragraph 3(c) states that ‘‘The notice of arbitration shall include the following: … (c) A reference to the arbitration clause or the separate arbitration agreement that is invoked …’’ 46

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Finally, Article 19 (3) of the PCA Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment (2001)49 provides that: In its statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counter-claim, or a claim for a set-off, arising out of any of the items mentioned in article 3, paragraph 3(c).

All these provisions are premised on the UNCITRAL Arbitration Rules with certain modifications corresponding to the particular category of dispute. In arbitrations conducted within the framework of the PCA the tribunals in the particular disputes have not adopted the optional rules of procedure drafted by the PCA in relation to the right of making counterclaims. They either relied on other existing general set of rules, such as the UNCITRAL rules, or on rules particular to arbitration procedure already provided for within an institutional framework, or introduced rules of procedure, which, though inspired by the PCA Optional Rules, deviate from them in the case of the right to make counterclaims. In the Bank for International Settlements and Private Parties case the dispute concerned claims by certain private shareholders against the Bank (BIS) arising out of the decision of the Board of Directors, in September 2000, to restrict the right of private parties to hold shares in the BIS and to amend the Bank’s Statute, in January 2001, so as to exclude private shareholders by paying compensation the sum of which had been fixed by the Bank in advance.50 The applicants invoked Article 54 (1) of the BIS Statutes by virtue of which disputes, inter alia, between the BIS and its shareholders shall be submitted to the arbitral tribunal established under Article XV of the Hague Convention on the Complete and Final Settlement of the Question of Reparations (1930). The Rules of Procedure of this tribunal are to be found in Annex XII of the Hague Convention, Article 6 paragraph 2, (4) of which provides that Counter-Cases shall contain: … conclusions based on the facts stated; these conclusions may include counter-claims, in so far as the latter come within the jurisdiction of the Tribunal; …

On 23 March 2001 the tribunal that was constituted to hear the claims, adopted its Rules of Procedure, Article 14 (2) of which (entitled ‘‘Statement of Defence’’) reads: The Statement of Defence shall affirm or contest the facts stated in the Statement of Claim and shall present a statement of additional facts, if any, a statement of law and conclusions based on the facts stated. Those conclusions may include counter-claims, insofar as the 49

Text in http://www.pca-cpa.org/upload/files/ENVIRONMENTAL(3).pdf. Article 3, paragraph 3(c) states that ‘‘The notice of arbitration shall include the following: … (c) a reference to any rule, decision, agreement, contract, convention, treaty, constituent instrument of an organization or agency, or relationship out of, or in relation to which, the dispute arises …’’ 50 Dr. Horst Reineccius (Claim No. 1), First Eagle SoGen Funds Inc. (Claim No. 2), Mr. Pierre Mathieu and La Société de Concours Hippique de la Châtre (Claim No. 3) v. Bank for International Settlements, PCA, Award of 19 September 2003, para 5, http://www.pca-cpa.org.

2.3 Counterclaims in International Arbitration

17

latter come within the jurisdiction of the Tribunal. The respondent shall list the documents in support and shall attach them to the Statement of Defence (emphasis added)

Thus, Article 14 (2) of the Rules of the arbitral tribunal established under the Hague Settlement Convention is in conformity with the Rules of Procedure introduced by Annex XII of the Convention.51 The BIS raised a counterclaim against First Eagle’s claim alleging a breach of Article 54 of the Bank’s Statutes because the claimant sought relief for its alleged financial loss in the courts of the USA. The BIS argued that the submission of claims against it to arbitration was compulsory precluding any recourse to municipal courts. Moreover, the Bank counterclaimed US $ 587,000 as compensation for the expenses it incurred in defending First Eagle’s lawsuit before the US courts.52 The tribunal allowed the counterclaim of BIS and ruled that53 … First Eagle violated its obligations under the Bank’s Statutes and unlawfully required the Bank to expend a considerable amount in defending its rights under the Statutes, giving the Bank a right of reparation …

It then proceeded by awarding the Bank damages to the sum of US $ 587,413.49 for the litigation expenses before the US courts and ruled that this compensation was to be off-set against sums owed to First Eagle as a result of the award of the tribunal.54 The BIS case is an illustration that a counterclaim, though functionally a means of defence against an original claim, is substantially a means of raising an autonomous claim on the part of a respondent (in this case the breach of the applicant’s obligation to submit the dispute to arbitration) that may give rise to an entitlement of compensation that, in turn, may be settled by way of a set-off against the applicant’s original claim. The Barbados—Trinidad and Tobago arbitration concerned the delimitation of the EEZ and continental shelf of the parties under Part XV and Annex VII of the UN Convention on the Law of the Sea (UNCLOS). The Rules of Procedure of the tribunal constituted under Annex VII of the UNCLOS provided in Article 9 (2) (c) that the counter-memorial of Trinidad and Tobago may contain: A statement of the relief or remedy sought by the Republic of Trinidad and Tobago

The wording of the provision appears to allow the raising of counterclaims. In submission 3 (c) of its counter-memorial, Trinidad and Tobago requested the tribunal to delimit the continental shelf of the parties to its outer limit, extending beyond the 200 mile distance from the baselines.55 Barbados objected to 51

Article 1 (1) of the Rules for Arbitration between the Bank for International Settlements and Private Parties of 23 March 2001 provides that in case of conflict with, inter alia, the provisions of Annex XII of the Hague Convention, the latter shall prevail. 52 Supra n. 50, para 49 et seq. 53 Id. para 119. 54 Ibid. 55 Barbados and the Republic of Trinidad and Tobago, PCA, Award of 11 April 2006, www.pca-cpa.org, 58, para 187.

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Trinidad’s claim as falling outside the tribunal’s jurisdiction. In its award of 11 April 2006, the tribunal upheld the claim of Trinidad and Tobago and ruled that the subject-matter of the dispute included the continental shelf beyond the 200 mile limit because … (i) it either forms part of, or is sufficiently closely related to, the dispute submitted by Barbados, (ii) the record of the negotiations shows that it was part of the subject-matter on the table during those negotiations, and (iii) in any event there is in law only a single ‘continental shelf’ rather than an inner continental shelf and a separate extended or outer continental shelf …56

This case illustrates the possibility to determine, or rather, clarify the subjectmatter jurisdiction of an arbitral tribunal by way of raising a counterclaim. Although it appears that a counterclaim is not admissible unless as a matter of principle it falls within the subject-matter jurisdiction of a tribunal, if the latter is not clearly delineated or if it is defined in broad terms then a counterclaim may serve to elucidate the issue. A similar contingency appears to have occurred in the Guyana—Suriname arbitration of 2007. The dispute concerned the delimitation of the maritime boundary between the two States and was submitted to an arbitral tribunal constituted under Article 287 and in accordance with Annex VII of the UNCLOS with the PCA acting as Registry. Article 9 of the Rules of Procedure of the tribunal was silent on the right to raise counterclaims. Guyana raised the claim of State responsibility against Suriname arising from the use and threat of force by the latter against the territorial integrity of the former and against its nationals, agents and licensees to conduct exploration of natural resources in the disputed maritime area. Guyana alleged that Suriname had violated its obligations the UNCLOS, the UN Charter and general international law. Suriname objected to Guyana’s claim asserting that it fell outside the jurisdiction of the tribunal. The tribunal ruled that it had jurisdiction over the claim of Guyana and that it was admissible on the basis of Article 293 (1) of the UNCLOS.57 Moreover, Suriname argued that Guyana’s claim concerning its responsibility could not be submitted to arbitration because Guyana had failed to inform Suriname of the alleged violation of the UNCLOS in accordance with Article 283 thereof and, further, that a claim of State responsibility arising from an incident in a disputed maritime area was inadmissible. The tribunal rejected both objections by Suriname in these terms: … This dispute has as its principal concern the delimitation of the course of the maritime boundary between the two Parties—Guyana and Suriname. … The CGX incident of 3 June 2000, whether designated as a ‘border incident’ or as ‘law enforcement activity’, may be considered incidental to the real dispute between the Parties. The Tribunal, therefore,

56

Id., 65–66, para 213. Article 293 (1) of the UNCLOS reads: ‘‘A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with the Convention’’. See Guyana and Suriname, Award of 17 September 2007, 131–132, paras 403–406.

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19

finds that in the particular circumstances, Guyana was not under any obligation to engage in a separate set of exchange of views with Suriname on issues of threat of force. These issues can be considered as being subsumed within the main dispute.58 … … The Tribunal does not accept Suriname’s argument that in a maritime delimitation case, an incident engaging State responsibility in a disputed area renders a claim for reparations for the violation of an obligation provided for by the Convention and international law inadmissible. A claim relating to the threat or use of force arising from a dispute under the Convention does not, by virtue of Article 2 (4) of the UN Charter, have to be ‘‘against the territorial integrity or political independence’’ of a State to constitute a compensable violation. Moreover, the Convention makes no mention of the incompatibility of claims relating to the use of force in a disputed area and a claim for maritime delimitation of that area.59 …

In this case, there was a claim that was raised outside the subject-matter jurisdiction of the tribunal expressly stated in the agreement to submit the dispute to arbitration, namely, the delimitation of the maritime boundary between the parties to the dispute. Although the right to make counterclaims was not expressly stipulated in the tribunal’s Rules of Procedure and Guyana’s claim was in fact an additional claim beyond maritime delimitation as the core subject-matter of the dispute, it is submitted that its consideration by the tribunal provides a useful insight with respect to the substance of the requirements for the admissibility of counterclaims: their connection with the subject-matter of the dispute and their falling with the jurisdiction of a tribunal.60

2.3.2 The UNCITRAL Arbitration Rules (1976) Article 19 (3) of the UNCITRAL Rules provides that In his statement of defence, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counter-claim arising out of the same contract or rely on a claim arising out of the same contract for the purpose of a set-off

In the Saluka Investments B.V. v. The Czech Republic the arbitral tribunal dealt with the admissibility of a counterclaim presented by the respondent, the Czech Republic. By virtue of Article 8 (5) of the Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic (1991),61 the Rules of Procedure of the 58

Id., 133, para 410. Id., 139, para 423. 60 Cf. The position adopted by the ICJ in the Oil Platforms case and the views expressed by Judge Higgins (sep. opinion), infra Chap. 4. 61 After the dissolution of the Czech and Slovak Federal Republic on 31 December 1992, the Czech Republic notified the Netherlands that it remained bound by the 1991 Treaty. See Saluka Investments B.V. v. The Czech Republic, Decision on Jurisdiction over the Czech Republic’s Counterclaim, 7 May 2004, 1, para 2. 59

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tribunal adopted by the parties were those of UNCITRAL.62 The dispute arose in the context of the reorganization and privatisation of the former Czech and Slovak (after 1992 Czech) banking sector following the demise of the communist regime. The applicant, Saluka Investments, was a subsidiary of the Nomura group of companies and holder of part of the shares of IPB, a formerly State-owned commercial bank that had had problems with bad debts. In 1998 Nomura acquired the IPB shares from the Czech National Property Fund (NPF) by virtue of a Share Purchase Agreement and then it created the Saluka as holder of these shares. Following the purchase, IPB was placed under forced administration and its assets were sold to another Czech commercial bank (CSOB). Saluka Investments asserted that the Czech Republic incurred responsibility because its conduct surrounding the IPB amounted to discriminatory expropriation in violation of Articles 3 and 5 of the 1991 Treaty.63 The respondent, the Czech Republic, raised a counterclaim in its counter-memorial to which the applicant, Saluka Investments, objected on the basis of the tribunal’s lack of jurisdiction to consider it. The counterclaim was formulated under eleven different headings64 and comprised claims by the Czech Republic against the Nomura rather than Saluka, the applicant in the arbitral proceedings. The tribunal, first, ruled that it had jurisdiction on the basis of Article 8 of the 1991 Treaty to consider counterclaims. It recalled that Article 8 provided that ‘‘(1) All disputes between one Contracting party and an investor of the other Contracting Party concerning an investment of the latter shall, if possible, be settled amicably. (2) Each Contracting party consents to submit a dispute referred to in paragraph (1) of this Article, to an arbitral tribunal, if the dispute has not been settled amicably within a [stated] period’’. The tribunal ruled that as a matter of principle … the jurisdiction conferred upon it by Article 8, particularly when read with Article 19.3, 19.4 and 21.3 of the UNCITRAL Rules is … wide enough to encompass counterclaims. The language of Article 8, in referring to ‘All disputes’, is wide enough to include disputes giving rise to counterclaims, so long, of course, as other relevant requirements are also met …65

The tribunal, then, assumed (but not ruled) that the relationship between Nomura and Saluka was so close ‘‘… as to enable the Tribunal’s jurisdiction in proceedings instituted by Saluka to extend to claims against Nomura …’’,66 but even if this had been the case, the counterclaim raised by the Czech Republic would be inadmissible. In the first three sections of counterclaim the Czech Republic alleged breaches by Nomura of the Share Purchase Agreement of 1998, between Nomura and the Czech National Property Fund (NFP).67 The tribunal 62

Saluka Investments B.V. v. The Czech Republic, Decision on Jurisdiction over the Czech Republic’s Counterclaim, 7 May 2004, 1, para 3. 63 Id., 3, paras 9–10. 64 Id., 10, paras 48, 59. 65 Id., 9, para 39. 66 Id., 10, para 44. 67 Id.,11–13, paras 47–58.

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pointed that Article 21of the 1998 Agreement contained a mandatory arbitration clause which could not be disregarded by virtue of Article 8 (6) of the 1991 Treaty68: The Tribunal thus cannot in this arbitration entertain a counterclaim based on a dispute arising out of or in connection with, or the alleged breach of, an agreement which both contains its own mandatory arbitration provision and is an agreement which the Tribunal is expressly required to take into account69

The next eight sections of the Czech Republic’s counterclaim concerned alleged breaches by Nomura of obligations incurred by an investor under Czech municipal law.70 The tribunal also rejected all of them as inadmissible on the basis of lack of connection between the principal claim and counterclaim. At the outset, the tribunal outlined the position in law, as it perceived it, in these terms: In relation specifically to counterclaims, it is necessary that they must also satisfy those conditions which customarily govern the relationship between a counterclaim and the primary claim to which it is a response. In particular, a legitimate counterclaim must have a close connexion with the primary claim to which it is a response. In this arbitration the primary claim involves Saluka’s investment in the Czech Republic through its shareholding since October 1998 in IPB, and its treatment by the Respondent in circumstances which Saluka claims involve breaches of Articles 3 and 5 of the Treaty. …. The nature and extent of the necessary close connection may be variously expressed. No single attempt to define this requirement with universal effect is likely to be satisfactory, since so much will always turn on the particular circumstances of individual cases, including not only their facts but also the relevant treaty and other texts71

After reviewing the case-law of the Iran-US Claims Tribunal and the arbitral tribunals constituted under the framework of the ICSID Convention the tribunal found that the combined effect of Article 19 (3) of the UNCITRAL Rules, Articles 25 (1) and 46 of the ICSID Convention and Article II (1) of the Iran-US Settlement Declaration reflected … a general legal principle as to the nature of the close connexion which a counterclaim must have with the primary claim if a tribunal with jurisdiction over the primary claim is to have jurisdiction also over the counterclaim. The Tribunal considers that Article 8 of the [1991] Treaty has to be understood and applied in the light of this general legal principle …72

This ‘‘general legal principle’’ with respect to the connexion between primary claim and counterclaim is that the counterclaim must constitute an

68

Article 8 (6) of the 1991 Treaty required of the Tribunal to take into account, among others, ‘‘the provisions of special agreements relating to the investment’’. In the tribunal’s view the 1998 Agreement (including Article 21) constituted such a special agreement. Id., 12, para 56. 69 Id., 12–13, para 57. 70 Id., 13, para 59. 71 Id., 13–14, paras 61, 63. 72 Id., 17, paras 76–77.

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2 The Concept of Counterclaims in International Litigation ‘indivisible whole’ with the primary claim asserted by the Claimant, or as invoking obligations which share with the primary claim ‘a common origin, identical sources, and an operational unity’ or which were assumed for the ‘accomplishment of a single goal, [so as to be] interdependent’73

This was not the case in relation to sections four to eleven of the Czech Republic’s counterclaim as they were premised on an alleged failure to abide by obligations under municipal law which, ‘‘… are applicable, as a matter of the general law of the Czech Republic, to persons subject to the Czech Republic’s jurisdiction …’’74 By contrast, to be admissible under the requirement of connexion, the Czech Republic’s counterclaims should have been premised narrowly on the legal relationship between itself and Saluka that was established by the 1991 Treaty, namely, the investment that Saluka made in the Czech banking sector.

2.3.3 The Iran-US Claims Tribunal The Iran-US Claims Tribunal was established on 19 January 1981 by virtue of the General Declaration75 and the Claims Settlement Declaration which was issued by the government of Algeria and adhered to by Iran and the USA.76 Article II of the Claims Settlement Declaration provides: 1. An International Arbitral Tribunal (the Iran-United States Claims Tribunal) is hereby established for the purpose of deciding claims of nationals of the United States against Iran and claims of nationals of Iran against the United States, and any counterclaim which arises out of the same contract, transaction or occurrence that constitutes the subject-matter of that national’s claim, if such claims and counterclaims outstanding on the date of this agreement, whether or not filed with any court, and arise out of debts, contracts (including transactions which are the subject of letters of credit or bank guarantees), expropriations or other measures affecting property rights, excluding claims described in Paragraph 11 of the Declaration of the Government of Algeria of 19 January 1981, and claims arising out of the actions of the United States in response to the conduct described in such paragraph, and excluding claims arising under a binding

73

Id. para 79. Ibid. 75 Declaration of the Government of the Democratic and Popular Republic of Algeria Relating to the Commitments made by Iran and the United States of America, 19 January 1981, 20 ILM 224 (1981); see generally Aldrich 1996; Marossi 2006. 76 Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 19 January 1981, text in 20 ILM 230 (1981). 74

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contract between the parties specifically providing that any disputes there under shall be within the sole jurisdiction of the competent Iranian courts in response to the Majlis position. [emphasis added] 2. The Tribunal shall also have jurisdiction over official claims of the United States and Iran against each other arising out of contractual arrangements between them for the purchase and sale of goods and services.

Article III (2) of the Declaration provides that the Tribunal shall settle disputes in accordance with the UNCITRAL rules ‘‘… except to the extent modified by the parties or by the Tribunal to ensure that this agreement can be carried out …’’ Article 19 (3) of the UNCITRAL Rules has been modified to read ‘‘… if such counterclaim or set-off is allowed under the Claims Settlement Declaration …’’77 The latter does expand the basis of presenting counterclaims beyond the original UNCITRAL provision (that a counterclaim must arise only out of the same contract) to include ‘‘transaction or occurrence’’. The presentation of counterclaims by Iran, the respondent in the overwhelming majority of cases, has been a frequent occurrence in the jurisprudence of the Tribunal. The reason lies in the fact that Article II (1) excludes from the jurisdiction of the Tribunal claims by either Iran or the USA against nationals of the other State. Therefore, the making of counterclaims is the only route of raising claims by either party to the Claims Settlement Declaration, especially Iran, against nationals of the other party; the only alternative to this course of action would be the bringing of claims before the domestic courts of either Iran or the USA. In the A/2 case the Tribunal dealt with a request by Iran on whether the General Declaration made by Algeria and the Claims Settlement Declaration had established its jurisdiction over claims by Iran against nationals of the USA. The Tribunal replied to the request in the negative and ruled that … It can easily be seen that the parties set up very carefully a list of the claims and counterclaims which could be submitted to the arbitral tribunal … They mentioned only on that list … claims which would be made by nationals of one of the two States. Certainly, they admitted the counter claims submitted by Iran or the United States against nationals of the other State, but under restrictive conditions which are detailed in paragraph 1 of Article II of the Claims Settlement Declaration. Such a right of counter claim is normal for a respondent, but it is admitted only in response to a claim and it does not mean, by analogy, that each State is allowed to submit claims against nationals of the other State. It means, a contrario, just the opposite. Certainly also, several specified sorts of claims are expressly excluded by the same paragraph, but such exclusion is in ‘‘the framework’’ of this paragraph, i.e.: concerning claims made by citizens against States. Such specific exclusions do not mean that, outside of that framework, any claim which has not been excluded, should be admitted …78

77

Iran-US Claims Tribunal Rules of Procedure, 3 May 1983, text in www.iusct.org/ tribunal-rules.pdf. 78 Case A/2, Request for Interpretation: Jurisdiction of the Tribunal with respect to claims by the Islamic Republic of Iran against nationals of the United States of America, Decision No DEC1A2-FT, 1 Iran-US CTR 101 (1982), 2.

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The Tribunal has also had the opportunity to discuss the issue of counterclaims in the context of inter-State claims between Iran and the USA which are regulated by Article II (2) of the Claims Settlement Declaration. This provision makes no express stipulation whether the respondent State may bring counterclaims (‘‘official counterclaims’’) against the applicant (State). The issue arose in the B/1 case79 where Iran raised several claims against the USA arising from transactions concerning the purchase of military equipment by the former from the latter. The USA brought a counterclaim in which it alleged that Iran had violated its contractual obligation concerning the security of classified information in relation to the military equipment sold to it by the US. Iran raised four preliminary objections to the counterclaim.80 In the first preliminary objection Iran contended that the Tribunal did not have jurisdiction to hear ‘‘official counterclaims’’ under the Claims Settlement Declaration.81 The Tribunal interpreted this instrument by applying the basic rule of treaty interpretation in Article 31 of the Vienna Convention on the Law of Treaties (1969) and ruled on the basis of the practice of both States subsequent to the Claims Settlement Declaration that ‘‘official counterclaims’’ were admissible under Article II (2) of the Declaration.82 In the course of its reasoning, the Tribunal has taken the opportunity to elaborate on the concept of counterclaims. In fact, the Tribunal appears to consider the right of a respondent to bring counterclaims as a general principle of law or an analogy of municipal private law. In particular, the Tribunal has adopted the view that the silence of a tribunal’s Statute with respect to the making of counterclaims does not imply an exclusion of a respondent’s right to do so; by contrast, depriving a respondent of his right to bring counterclaims requires express provision in a Statute. The Tribunal ruled that … Accordingly, the fact that Article II, paragraph 2, of the Claims Settlement Declaration does not refer to ‘counterclaims’ is not the end of the matter, even if it could weigh in favor of the view that official counterclaims are excluded. But even this is uncertain. The Tribunal stated in Case No.A2 that ‘a right of counter claim is normal for a respondent.’ On that view, an explicit authorization of counterclaims would be unnecessary; on the contrary, express language would be necessary to exclude counterclaims. In this connection, it is noteworthy that prominent international tribunals with jurisdictional grants similar to Article II, paragraph 2, of the Claims Settlement Declaration (i.e., jurisdictional grants that permit parties to bring claims against one another on an equal footing) have considered that they could entertain counterclaims, even if their constituent instruments did not expressly refer to counterclaims. For instance, the respective Statutes of the PCIJ, the ICJ and the International Tribunal for the Law of the Sea (‘‘ITLOS’’) do not expressly refer to counterclaims. Yet, these institutions determined that they could entertain counterclaims and adopted rules governing them. Similarly, the treaties

79

The Islamic Republic of Iran v. The United States of America, Case No. B 1(Counterclaim), Interlocutory Award, 9 September 2004, Award No. ITL 83-B1-FT, 2004 WL 2210709. 80 Id., 2, para 2. 81 Id., 5, para 15. 82 Id., 20–25, paras 106–135. See Article 31 (3) (b) Vienna Convention on the Law of Treaties (1969).

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establishing the mixed arbitral tribunals after the First World War did not refer to counterclaims, but the majority of these tribunals considered that they could entertain counterclaims; the few arbitral tribunals that prohibited counterclaims adopted express rules to that effect. … The fact that Article II, paragraph 1, of the Claims Settlement Declaration refers to ‘claims’ and ‘counterclaims’, whereas paragraph 2 of the same Article refers only to ‘claims’, does not necessarily imply that the Parties sought to exclude counterclaims in official cases, because there are particular reasons why express mention of counterclaims was required in paragraph 1 but not in paragraph 2 of Article II of the Claims Settlement Declaration. Article II, paragraph 1, of the Claims Settlement Declaration confers on the Tribunal jurisdiction over ‘claims of nationals of the United States against Iran and claims of nationals of Iran against the United States’ but the Tribunal has no jurisdiction over claims of one government against the nationals of the other State. Without express mention of counterclaims in Article II, paragraph 1, of the Claims Settlement Declaration the Tribunal would have been prevented from hearing any type of claims by a State party against nationals of the other State. By contrast, since each Party could file claims against the other under Article II, paragraph 2, of the Claims Settlement Declaration, the same rationale does not apply to that provision. Based on the foregoing the Tribunal determines that the absence of any reference to counterclaims in Article II, paragraph 2, of the Claims Settlement Declaration, without more, does not warrant the conclusion that official claims are not permitted under that provision …83

It may be inferred from the above rulings that at first sight the raison d’ être of counterclaims as a concept of municipal private law is somewhat curtailed in the context of the Iran-US claims Tribunal. Under this concept the subject of counterclaims may constitute the subject of separate claims. They are admissible as counterclaims for reasons of fairness and procedural economy. The right to present counterclaims before the specific arbitral tribunal does not have, by virtue of express provision of its statutory instrument, a counter-part in the right to present separate claims by Iran or the USA against nationals of the other State. Therefore, the admission of the right of a respondent State to make counterclaims goes beyond procedural economy, in fact it seems unrelated to it altogether, and is restricted only to fairness. Indeed, it appears that a respondent State in litigation before the Tribunal, in practice Iran, would be disproportionately placed in a position of disadvantage if its lack of right to bring claims against US nationals would be accompanied by its logical conclusion: a lack of a right to bring counterclaims. In a framework of settlement of disputes arising from economic transactions and investment, the respondent State facing claims based on State responsibility by private parties but being unable to assert its own claims that unavoidably may arise in the context of this type of relations would be excessively one-sided in favor of investors. On the other hand, the Tribunal’s position that the right of a respondent to make a counter-claim is ‘‘normal’’ but must not be seen as allowing the bringing of claims by a State against the nationals of the other State is not to be taken to represent a statement of principle. It is rather to be seen strictly within the settlement framework of the Tribunal, as agreed by the interested States, in relation to claims of private parties (namely, citizens of Iran or the USA) against

83

Id., 17–18, paras 86–87, 89.

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2 The Concept of Counterclaims in International Litigation

either Iran or the USA. Indeed, the general historic and political context surrounding the establishment of the Iran-US Claims Tribunal consists of the consequences of the Islamic Revolution in Iran upon the property rights of and large-scale private investment by US nationals. The redress of claims (principally against Iran) that were generated clearly occupies a position of priority in the framework of settlement agreed by the USA and Iran. At the same time, this priority is maintained, though counterbalanced, by the expressly conferred right to the respondent (again, principally Iran) to make counter-claims because the latter to a large extent depends on the original claim in relation to its admissibility and substantive content. By contrast, in the context of official inter-State claims the situation is more straightforward: a right to bring counter-claims need not be expressly conferred for it is premised on a general principle of law. In fact, as long as either Iran or the USA may raise claims against each other, the State that in a particular dispute finds itself in the position of respondent may bring counter-claims the admissibility of which is regulated by the Tribunal’s Rules of Procedure only (Article 19 (3)).84 The Tribunal has dealt with counter-claims in its voluminous jurisprudence concerning claims by private parties against, principally, Iran. George Aldrich, former Judge and President of the Tribunal, has formulated a number of principles that have crystallized as a result of this jurisprudence85: (a) Jurisdiction over counter-claims depends on jurisdiction over the original claims. In Reliance Group Inc. v. National Iranian Oil Company et al. the Tribunal dismissed the Applicant’s claim for lack of jurisdiction because it was not satisfied that it constituted a claim by a US national. On the respondents’ counter-claim it ruled that ‘‘… [T]he Counter-claim is similarly dismissed since it arises out of the same contract as the Claim and is dependent on the Jurisdiction of the Tribunal over the Claim…’’86 (b) Withdrawal of a claim does not affect jurisdiction over a counter-claim87 (c) The jurisdiction of the Tribunal over counter-claims is not exclusive. This implies that a respondent is not compelled to bring a counter-claim to the Tribunal and that he has the right to pursue it in other forums.88 (d) The amount of a counter-claim may exceed that of a claim.89 (e) The Tribunal has jurisdiction over set-offs if they meet the requirements for counter-claims.90

84

Id., 12, 19, 25, paras 52, 98, 139. Aldrich 1996, 110 et seq. 86 Reliance Group Inc. v. National Iranian Oil Company et al., Award No. 15-90-2, 8 December 1982, 1 Iran-US CTR 384; Aldrich 1996 111(n. 225). Also see Thomas K. Khoshravi v. The Government of the Islamic Republic of Iran, Award No. 571-146-3, 20 June 1996, 1996 WL 1171806, para 75. 87 Aldrich 1996, 111 (n. 226). 88 Id. (n. 228). 89 Id.,112 (notes 230, 231). 90 Id., 112 (n. 232). 85

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(f) The Tribunal does not have jurisdiction over counter-claims that do not arise from the same contract, transaction or occurrence as a claim. In the OwensCorning Fiberglass Corp. case the Tribunal ruled that if a claim is based exclusively on a contract or arises from an occurrence (such as an act of expropriation) the counter-claim must arise out of the same contract or the same occurrence. As for transaction the Tribunal took the view that if a business transaction results in a number of contracts, a counter-claim would be within the jurisdiction of the Tribunal even if it arose from a contract of the same transaction other than the contract on which the claim was based.91 However, the jurisprudence of the Tribunal has not been consistent with respect to counter-claims based on contracts different from the contracts under which the principal claims were brought. In the Pomeroy92 and Morrison-Knudsen93 cases the Tribunal rejected for lack of jurisdiction counter-claims because they did not arise from the same contracts as the claims but were presented under contracts preceding those that formed the basis of the principal claim. In these cases the Tribunal declined to accept the argument that all contracts formed part of the same transaction and, hence, counter-claims based on earlier contracts were admissible as arising from the same transaction. By contrast, in the American Bell94 and Westinghouse95 cases the Tribunal reached the opposite conclusion by ruling that counter-claims arising from contracts other than those on which the principal claims were based were admissible as arising from the same transaction because ‘‘as a practical matter, both Parties were committed to the transaction in its entirety.’’96 (g) The Tribunal does not have jurisdiction over counter-claims for taxes or social security contributions. The Tribunal has consistently rejected for lack of jurisdiction this type of counter-claims by ruling that they arise under Iranian law and not contracts.97

91

Owens-Corning Fiberglass Corp. v. The Government of Iran et al., Interlocutory Award No. ITL 18-113-2, 13 May 1983, 2 Iran-US CTR 322, 324 cited in Aldrich 1996, 113 (n. 234). 92 R. N. Pomeroy et al. v. The Government of the Islamic Republic of Iran, Award No. 50-40-3, 8 June 1983, 2 Iran-US CTR 372, at 379 cited in Aldrich 1996, 113 (n. 235). 93 Morrison-Knudsen Pacific Ltd. v. The Ministry of Roads and Transportation et al., Award No. 143-127-3, 13 July 1984, 7 Iran-US CTR 54, at 82–84 cited in Aldrich 1996, 114 (n. 237). 94 American Bell International, Inc. v. The Government of the Islamic Republic of Iran, Interlocutory Award No. ITL 41-48-3, 11 June 1984, 6 Iran-US CTR 74, at 83–84 cited in Aldrich 1996, 114 (n. 236). 95 Westinghouse Electric Corp. v. The Islamic Republic of Iran et al., Interlocutory Award No. ITL 67-389-2, 12 February 1987, 14 Iran-US CTR 104 cited in Aldrich 1996, 115 (n. 239). But the opposite conclusion was reached in Westinghouse Electric Corp. v. Islamic Republic of Iran Air Force, Award No. 579-389-2, 26 March 1997, 1997 WL 1175782 (Iran-US Cl. Trib.), paras 423–432. 96 Aldrich 1996, 116. 97 Aldrich 1996, 116–118.

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(h) The Tribunal does not have jurisdiction over counter-claims by or against non-Parties. In this respect the Tribunal rejected counter-claims against the parent-company in cases between a subsidiary and Iran.98 (i) A contractual prohibition of counter-claims does not affect the jurisdiction of the Tribunal. In the Anaconda-Iran case the Tribunal held that a contractual obligation between claimant and respondent to submit disputes to the International Chamber of Commerce coupled with an express prohibition of counter-claims, did not affect its jurisdiction over counter-claims because it was stipulated in the international agreement between Iran and the USA and not in the agreement of the parties to the arbitration.99 (j) The jurisdiction of the Tribunal is not affected by the fact that claims are indirect100 A further aspect of the Tribunals contribution to the jurisprudence on counterclaims concerns the consideration of the issue of bringing counter-claims against counter-claims, in other words of a principal claimant’s counter-counterclaims against a respondent’s counter-claims. In the Westinghouse Electric Corp. v. Islamic Republic of Iran Air Force case the Tribunal faced Westinghouse’s counter-counterclaims against the Iranian Air Force’s counter-claims. Westinghouse’s counter-counterclaims were based on a contract other than the four contracts constituting the basis of the principal claim and to which the respondent raised counter-claims.101 At the outset, the Tribunal declined to treat the countercounterclaims of the original applicant as amendments to its initial statement of claim because this would be contrary to the deadline for filing claims provided in Article III (4) of the Claims Settlement Declaration.102 Moreover, the Tribunal took note of its Interlocutory Award of 12 February 1987 where it ruled that the Iranian Air Force’s counter-claims under contracts other than the claim’s contracts were within its jurisdiction as arising from the same transaction and ruled that it would evaluate the performance of Westinghouse under the counter-claims contracts. It then ruled that it would consider the counter-counterclaims of Westinghouse but it would ‘‘limit Westinghouse’s potential recovery thereon. Thus, in allocating the parties’ losses, the Tribunal will consider the extent of 98

See, for instance, American Bell International, Inc. v. The Government of the Islamic Republic of Iran, Interlocutory Award No. ITL 41-48-3, 11 June 1984, 6 Iran-US CTR 74, at 82 cited in Aldrich 1996, 118 (n. 247). Cf. Kimberley-Clark Corp. v. Bank Markazi et al. Award No. 46-57-2, 25 May 1983, 2 Iran-US CTR 334, where a non-respondent made a counter-claim and the Tribunal allowed the applicant to amend its statement of claim so as to include the counter-claimant as a respondent, cited in Aldrich 1996, 118 (n. 248). 99 Anaconda-Iran, Inc. v. The Government of the Islamic Republic of Iran et al., Interlocutory Award No. ITL 65-167-3, 10 December 1986, 15 Iran-US CTR 199, at 221–226, cited in Aldrich 1996, 119 (n. 250). 100 Aldrich 1996, 119 (notes 252, 253). 101 Westinghouse Electric Corp. v. Islamic Republic of Iran Air Force, Award No. 579-389-2, 26 March 1997, 1997 WL 1175782 (Iran-US Cl. Trib.), para 16. 102 Id. para 320.

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Westinghouse’s performance under the counter-claims contracts, but only to a limited degree—that is, only to reduce or satisfy the Air Force’s counter-claims on those contracts, without allowing Westinghouse to recover any amounts in excess of the Air Force’s recovery of its counter-claims’’.103 Thus, it appears that a counter-counterclaim would be considered as having the function of a set-off; in its conclusion the Tribunal stated that Westinghouse’s counter-counterclaims would be considered ‘‘as part of the Tribunal’s determination of the financial consequences of the frustration of the contract’’.104

2.3.4 The World Trade Organization Understanding on Rules and Procedures Governing the Settlement of Disputes Article 3 (10) of the WTO Dispute Settlement Rules does not admit the right to make counter-claims because the dispute settlement procedure is premised on conciliation and is not considered as a form of contentious process. The relevant passage of this provision reads: ‘‘It is also understood that complaints and countercomplaints in regard to distinct matters should not be linked.’’105

2.3.5 The International Centre for Settlement of Investment Disputes (ICSID) Article 46 of the ICSID Convention (2003) provides: Except as the parties otherwise agree, the Tribunal shall, if requested by a party, determine any incidental or additional claims or counter-claims arising directly out of the subjectmatter of the dispute provided that they are within the scope of the consent of the parties and are otherwise within the jurisdiction of the centre.

Moreover, Article 40 of the ICSID Arbitration Rules provides: (1) Except as the parties otherwise agree, a party may present an incidental or additional claim or counter-claim arising directly out of the subject-matter of the dispute, provided that such ancillary claim is within the scope of the consent of the parties and is otherwise within the jurisdiction of the Centre. (2) An incidental or additional claim shall be presented not later than in the reply and a counter-claim no later than in the counter-memorial, unless the Tribunal, upon justification by the party presenting the ancillary claim and upon considering any objection

103 104 105

Id. paras 321–322. Id. para 326. Text in http://www.wto.org/english/docs_e/legal_e/28-dsu_e.htm.

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2 The Concept of Counterclaims in International Litigation by the other party, authorizes the presentation of the claim by a later stage in the proceeding. (3) …

The jurisprudence of ICSID tribunals reveals that the making of counterclaims by respondent States is not a frequent occurrence. As an ICSID tribunal found, in the Sempra Energy International v. Argentina case, the respondent stressed its expectations with respect to the investment that ‘‘were not met or were otherwise frustrated’’ and noted that: … to the extent that any such issues would be within the Tribunal’s jurisdiction to decide, and could have resulted in breaches of the Treaty, the Respondent would be entitled to raise a counter-claim. While this right has been resorted to by respondent States only to a limited extent in cases submitted to ICSID tribunals, nothing prevents its exercise in the light of Article 46 of the Convention and Rule 40 of the Arbitration Rules. This right was not exercised in the present case. …106

Be it as it may, the ICSID tribunals case-law on counter-claims reveals that counter-claims are ruled to be admissible if they fall within the Centre’s jurisdiction, namely, if they arise under an investment agreement (Article 25 ICSID Convention) and are directly related to the subject-matter of the particular dispute under litigation concerning a specific investment. In Bevenutti and Bonfant SRL v. People’s Republic of Congo case the respondent raised a counter-claim that covered a number of headings: (a) compensation for non-payment of duties and taxes for imports under cover of the investment holder of goods destined for third parties; (b) overpricing of raw materials; (c) compensation for defaults in the execution of the supply agreement; (d) defects concerning the construction of the fertilisers plant and (e) compensation for moral damage.107 The tribunal ruled that under Article 40 (1) of the ICSID Arbitration Rules the counter-claim was admissible because it related directly to the object of the dispute and the tribunal’s competence had not been disputed.108 At the same time, the validity of a settlement-of-disputes agreement is a crucial factor in relation to the admissibility of counter-claims raised by a respondent State. In Desert Line Projects LLC v. Yemen an ICSID tribunal applied the concept of estoppel and rejected the respondent’s counter-claims relative to ‘‘unperformed remedial and other works … as well as to the compensation related to the failure of

106

Sempra Energy International v. The Argentine Republic ICSID Case No. ARB/02/16 (Award), 2007 WL 5540331 (APPAWD), para 289. The issues that could form the bases of counter-claims by the respondent were ‘‘the expectation that the investor would bear any losses resulting from its activity, work diligently and in good faith, not claim extraordinary earnings exceeding by far fair and reasonable tariffs, resort to local courts for dispute settlement, dutifully observe contract commitments, and respect the regulatory framework’’. 107 Bevenutti and Bonfant SRL v. People’s Republic of Congo, ICSID Case No. ARB/77/2 (Award), 1980 WL 371579 (APPAWD), para 101. 108 Id. para 104.

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the Claimant to maintain the bank guarantees after 31 December 2004…’’ The tribunal reasoned that … the Respondent cannot claim benefit from the nullity of a document—i.e., the Settlement Agreement—that it imposed on the Claimant. In the present case, the doctrine of estoppel (venire contra factum proprium) serves as a shield to prevent the Respondent from obtaining compensation for the failure of the Claimant to execute its maintenance and repair obligations as well as for its failure to maintain the two bank guarantees. The Respondent—while imposing the Settlement Agreement that provided for the release of all these obligations—had clearly and unmistakably represented that it no longer treated the Claimant’s aforementioned obligations as extant …109

In other words, the fact that a settlement agreement was forced upon an investor by a respondent State under duress precludes the latter from the right to raise counter-claims asserting the performance by the former of obligations arising from an investment agreement. Furthermore, in Klöckner v. Cameroon an ICSID tribunal ruled that an investment agreement between the host State and a company incorporated under this State’s law falls under the jurisdiction of the Centre and the respondent’s counter-claims are admissible if at the time consent to the ICSID dispute settlement procedure was expressed; the applicant foreign investor had a majority interest in it. The subsequent loss of majority control does not affect the tribunal’s jurisdiction once consent to the ISCID process has been conferred. In this case the tribunal found that although the investment agreement had been concluded between Cameroon and SOCAME, a Cameroonian company, it had been negotiated between Cameroon and Klöckner and ‘‘concluded in the interest of Klöckner, at a time when Klöckner was SOCAME’s majority shareholder.’’110 In the same case, the tribunal ruled that if ICSID is validly seized, namely, on the basis of the parties’ consent, the subject-matter of the dispute may be extended ‘‘at any time, even in written submissions to the Tribunal (‘forum prorogatum’) provided that this is met by the consent of the parties’.111 In MINE v. Guinea an ICSID tribunal upheld in principle the right of a respondent to make counter-claims for legal costs incurred in litigation improperly pursued by an applicant outside the ICSID framework, provided that the respondent timely objects to the applicant’s improper course of action.112

109

Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17 (Award), 2008 WL 2912764 (APPAWD), para 224. 110 Klöckner Industrie-Anlagen GmbH v. United Republic of Cameroon and Société Camerounaise des Engrais (SOCAME), ICSID Case No. ARB/81/2 (Award), 1983 WL 510000 (APPAWD), p 6. See also, Rumeli Telekom A.S. and Telsim Mobil Telekomikasyon Hizmetleri A.S. v. Republic of Kazakhstan, ICSID Case No. ARB/05/16, 2008 WL 4819868 (APPAWD), para 284. 111 Id., 4. 112 Maritime International Nominees Establishment (‘‘MINE’’) v. Republic of Guinea, ICSID Case No. ARB/84/4 (Award), 1988 WL 1103627.

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Counter-claims concerning tax and duties obligations of an investor toward a host State may be admissible in litigation under the ICSID framework of settlement of disputes if it is proved that they arise directly out of an investment, in the sense of being expressly contracted, in accordance to Article 25 (1) of the ICSID Convention. Otherwise, they are dismissed for lack of jurisdiction. In Amco v. Indonesia (Resubmitted case) an ICSID tribunal considered a counter-claim by Indonesia concerning an allegation of tax fraud by the applicant and found that … In fact, both parties agree, as does the Tribunal, that tax claims may be within the ICSID’s jurisdiction and that claims in relation thereto would be available to both parties to an investment dispute. The issue is, therefore, whether this particular claim falls within Article 25 (1) of the ICSID Convention. In answering this question the Tribunal believes that it is correct to distinguish between rights and obligations that are applicable to legal or natural persons who are within the reach of a host State’s jurisdiction, as a matter of general law; and rights and obligations that are applicable to an investor as a consequence of an investment agreement entered into with that host State. Legal disputes relating to the latter will fall under Article 25 (1) of the Convention. Legal disputes concerning the former in principle fall to be decided by the appropriate procedures in the relevant jurisdiction unless the general law generates an investment dispute under the Convention. The obligation not to engage in tax fraud is clearly a general obligation of law in Indonesia. It was not specially contracted for in the investment agreement and does not arise directly out of the investment. For these reasons the Tribunal finds the claim of tax fraud beyond its competence ratione materiae …113

In the same case the tribunal drew upon the distinction between a defence and a counter-claim with respect to Indonesia’s claim of tax fraud against Amco. This argument was raised during the first proceedings of 1984, and the issue before the second proceedings of 1988 was whether Indonesia’s claim had already been decided by the fist tribunal or was a new claim. The second tribunal relied on Article 40 of the ICSID Arbitration Rules and found that before the first tribunal, … The fact that argument was exchanged on the question of tax fraud, in the context of justifying the revocation of the licence and in support of an ‘‘unclean hands’’ argument, does not mean that tax fraud was a claim in existence before the first tribunal. For that to have been so, it would have been necessary for it to have been advanced as a counterclaim or as an additional claim under Rule 40 …114

The tribunal did not explain the substantive content of the distinction between a ‘‘defence’’ and a ‘‘counter-claim’’, and indeed, this does not appear to have been the issue. What is implicit, however, in the particular section of the award, is that an argument of ‘‘unclean hands’’ aimed at exculpating Indonesia, the respondent, from State responsibility for breach of the investment agreement did not have the character of a ‘‘claim’’ or ‘‘counter-claim’’ for the latter is, at least, subject to certain formal procedure.

113

Amco v. Republic of Indonesia, ICSID Case No. ARB/81/1 (Resubmitted Case: Decision on Jurisdiction), 27 ILM 1281 (1988), 1309–1310, paras 124–127. 114 Id., para 120.

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2.3.6 The International Chamber of Commerce (ICC) Rules of Arbitration (1998) Article 5 (5) of the ICC Arbitration Rules states that Any counter-claim(s) made by the Respondent shall be filed with its answer and shall provide: (a) a description of the nature and circumstances of the dispute giving rise to the counter-claim(s); and (b) a statement of the relief sought, including, to the extent possible, an indication of any amounts(s) counterclaimed.

This provision is remarkable for its generality of formulation and allinclusiveness. There seem to be no specifically circumscribed requirements for the admissibility of counter-claims: there is no condition concerning the tribunal’s subject-matter jurisdiction, neither is there any provision with respect to connection with particular contract, transaction or occurrence. It appears from the few ICC cases in which counter-claims were raised that tribunals evaluate them exclusively on the merits and that no issue of admissibility had arisen because the counter-claims were directly connected with the original claims. In Case No. 3779115 a Swiss seller (applicant) concluded three contracts with a Dutch buyer (respondent) for the supply of whey powder. The product met the requirements agreed upon according to the method of analysis prevalent in North America but failed to meet these requirements under the European method. As a result, the respondent canceled the third contract which had not been executed and, when the claimant instituted the ICC arbitration proceedings (for damages arising from the cancelation of the third contract), he counterclaimed for loss arising from the first two contracts that had been executed. The tribunal applied Swiss law and ruled that all three contracts, ‘‘from an economic point of view … constituted one group’’. It, however, rejected the respondent’s counter-claim on the merits because the first two contracts had been confirmed by him and payment had been made after the discovery of the error. Moreover, in Case No. 8486116 the tribunal rejected a counter-claim by the respondent for restitution of advance payment, again on the merits, namely, that the respondent was not released from his contractual obligations by reason of unforeseen and fundamental change of circumstances. Finally, in Case No. 4567117 the tribunal considered various counterclaims by a US supplier (respondent) against a West-African applicant (buyer) in the dispute concerning a claim of recovery of payment made for the purchase of a defective High Power Microwave Amplifier, as well as incidental and consequential damages. The counter-claims were rejected because the tribunal ruled that the applicant had the right to recover incidental damages to which no limitations applied and that these damages were assessed by it acting as amiable compositeur.

115 116 117

Award in Case No. 3779 of 13 August 1981, ICCA Ybk, Vol. IX (1984), 124–130. Award in Case No. 8486 (1996), ICCA Ybk, Vol. XXIVa (1999), 162–173. Award in Case No. 4567 (1985), ICCA Ybk, Vol. XI (1986), 143–147.

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2 The Concept of Counterclaims in International Litigation

2.3.7 The International Law Commission’s Model Rules on Arbitral Procedure (1958) Article 19 of the ILC Model Rules provides that In the absence of any agreement to the contrary implied by the undertaking to arbitrate or contained in the compromis, the tribunal shall decide on any ancillary claims which it considers to be inseparable from the subject-matter of the dispute and necessary for its final settlement.

The use of the generic term ‘‘ancillary matters’’ in the text includes the right to make counter-claims if a special agreement to arbitrate is silent on the issue.118 As the general commentary of the Commission119 indicates, the use of the term has a dual purpose. First, it aims at overcoming definitional problems and, secondly, it introduces the rationale of disposing of the ‘‘grounds of dispute between the parties arising out of the same subject-matter’’. It, thus, appears to support, if not encourage, the final settlement of all aspects of a dispute. In this respect, the presentation of counter-claims, being a means to bring additional matters of the same dispute to the attention of an arbitral tribunal, is as a matter of principle allowed. The only requirement introduced for the admissibility of counter-claims is their inseparability from the subject-matter of the dispute, an issue to be decided by an arbitral tribunal in every specific case.

2.4 The International Tribunal for the Law of the Sea (ITLOS) Article 98 of the ITLOS Rules of Procedure provide for the right to make counterclaims in terms similar to the Rules of procedure of the ICJ: 1. A party may present a counter-claim provided that it is directly connected with the subject-matter of the claim of the other party and that it comes within the jurisdiction of the Tribunal. 2. A counter-claim shall be made in the counter-memorial of the party presenting it and shall appear as part of the submissions of that party. 3. In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party the Tribunal shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings. To this date there has not been a case where counter-claims were presented.

118 119

Larschan and Mirfendereski 1986–1987, 28. Yearbook of the International Law Commission 1958, Vol. II, 87, para 34.

References

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References Aldrich GH (1996) The Jurisprudence of the Iran-United States Claims Tribunal. Oxford Anzilotti D (1930) La Demande Reconventionelle en Procédure Internationale. 57 J du Droit International 857 Beys K, Calavros C, Stamatopoulos S (2001) Civil Procedure–General Part, Procedure before the Courts of First Instance (C. Calavros). Ant N Sakkoulas, Greek Cappelletti M (ed) (1973) International Encyclopedia of Comparative Law, vol XVI. Civil Procedure Larchan B, Mirfendereski G (1986–1987) The status of counter-claims in international law, with particular reference to international arbitration involving a private party and a foreign state. 15 Denver J. Int’l L. and Pol’y 11 Lauterpacht Sir H (1927) Private Law Sources and Analogies of International Law, London. Reprinted in 2002 by The Law Book Exchange Union, New Jersey Lauterpacht Sir H (1975) International Law, Collected Papers, Lauterpacht E (ed), vol 2. Cambridge Marossi AZ (2006) Iran-United States Claims Tribunal. Claims, Counterclaims, Dual Nationality and Enforcement. 23 J Int Arbitr 493 Renteln AD (1986–1987) Encountering Counter-claims. 15 Denver J. Int’l L. and Pol’y 379 Rosenne S (2000) Counter-claims in the International Court of Justice Revisited. In: Armas Barea CA et al (eds) Liber Amicorum ‘In Memoriam’ of Judge José Maria Ruda. Kluwer, p 476 Rosenne S (2007) Essays on International Law and Practice. M. Nijhoff

Chapter 3

Counterclaims before the ICJ: Evolution and Definition

3.1 The Evolution of the Rule on Counterclaims1 3.1.1 The Permanent Court of International Justice The Statute of the Permanent Court made no provision with respect to the right of a respondent to present counterclaims against the claim of an applicant in the same set of proceedings. However, in a pioneering development, given the paucity of relevant provisions in documents relevant to international arbitration at the time, Article 40 of the Rules of Procedure of the Permanent Court adopted in 1922 stipulated the right of a respondent State to present counterclaims: … Counter-cases shall contain: 1. the affirmation or contestation of the facts stated in the case; 2. a statement of additional facts, if any; 3. a statement of law; 4. conclusions based on the facts stated; these conclusions may include counterclaims, in so far as the latter come within the jurisdiction of the Court; [emphasis added] 5. a list of the documents in support; these documents shall be attached to the countercase.2

Initially, the Draft Rules prepared by the Secretariat of the League of Nations provided in draft Article 33 that counter-cases (i.e., Counter-Memorials) shall include: ‘‘… 4) conclusions [i.e., submissions], which may contain counter-claims,

1

See generally, Whiteman 1968 (vol. 12), 1351–1355; Guyomar 1983, 518–525; Rosenne 2000, 459–467; Rosenne 2007, 269–279; Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/ 143/16027.pdf, Judge Cançado Trindade (diss. op.), paras 5–9. 2 Permanent Court of International Justice, Rules of the Court, Adopted by the Court March 24th 1922, Van Langenhuysen Brothers, The Hague, 1922, 21–22. C. Antonopoulos, Counterclaims before the International Court of Justice, DOI: 10.1007/978-90-6704-790-6_3,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

37

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based on the facts quoted, and which shall be numbered consecutively; …’’3 The Drafting Committee of the Court proposed, by changing the order of words, that counter-cases shall contain ‘‘… 4) conclusions based on the facts stated, and numbered consecutively; these conclusions may include counterclaims …’’4 Thus, while the Secretariat Draft implies that counterclaims must be based on the facts of the dispute the Drafting Committee Draft has left the matter undetermined. The full Court that discussed the Drafting Committee text and gave the relevant Rule its final formulation did not discuss counterclaims at length. As the record reveals, Judge Anzilotti took the view that counterclaims could not be presented in the case of disputes submitted to the Court by way of special agreement; he suggested that in the case of unilateral application counterclaims could be admissible only if they were within the jurisdiction of the Court.5 His suggestion was formulated into concrete proposal by Judge Beichmann and was adopted giving its final form to what became Article 40 of the PCIJ Rules of Procedure.6 The Permanent Court dealt with counterclaims presented under Article 40 (2) (4) of the Rules only on one occasion, in the Chorzów Factory Case (Merits).7 At this stage of the case Germany requested the Court to adjudge reparation which was due by Poland for the injury suffered by two German Companies—the Oberschlesische Stickstoffwerke and the Bayerische Stickstoffwerke—because of the taking-over of a nitrate factory at Chorzów in Upper Silesia by the Polish government.8 The nitrate factory was constructed by the Bayerische for the German Reich in execution of a contract between the Company and the German government concluded in March 1915.9 On 24 December 1919 the Oberschlesische was established to whom the German Government sold the factory at Chorzów. On the same day another Company was formed, the Treuhand Ltd, which undertook as independent debtor all of the Oberschlesische’s obligations toward the German Government; the latter kept possession of the Company’s shares as guarantee for the payment of the purchase price concerning the sale of the Chorzów factory.10 On 15 May 1922 Germany and Poland concluded a bilateral treaty in Geneva concerning Upper Silesia that was ceded to newly independent Poland by virtue of the Peace Treaty of Versailles, following the First World War. The jurisdiction of the Court was based on Article 23 of this bilateral 3

Annex Ic, Rules of the Court, Draft Prepared by the Secretariat (Distr. II), PCIJ Ser. D No. 2 (1922), 261–262. 4 Annex 61a, Draft for the Rules of the Permanent Court of International Justice, prepared by the Drafting Committee (Distr. 71), PCIJ Ser. D No. 2 (1922), 433. 5 Preliminary Session, 25th Meeting, March 9, 1922, PCIJ Ser. D No 2 (1922), 139–140. 6 Annex 72a, Draft Rules of the Court, March 23rd, 1922, Third Reading (Distr. 109), PCIJ Ser. D No 2 (1922), 570. 7 Case Concerning the Factory at Chorzów (Claim for Indemnity) (Merits), PCIJ Ser. A No 17 (1928). 8 Id., 5. 9 Id., 18–19. 10 Id., 19–21.

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treaty. Moreover, Article 256 of the Treaty of Versailles provided that all property and possessions of Imperial Germany and the German States situated on Polish territory should be transferred to Poland.11 On 1 July 1922 a Polish Court cancelled the registration of the Oberschlesische as the owner of the Chorzów factory, restored the previous situation (i.e. the ownership of the factory by the German Reich) and registered the property in the name of the Polish Treasury in application of Article 256 of the Treaty of Versailles. On 3 July 1922 Poland took possession of the Chorzów factory and included it in the list of property transferred to it under Article 256 of the Versailles Treaty. In its Counter-Memorial, Poland presented a counterclaim requesting the Court to adjudge that Germany had to hand over to the Polish government all the shares of the Oberschlesische of the nominal value of 110 million marks which had been in its possession by virtue of the contract of 24 December 1919.12 According to the government of Poland, since these shares were in the possession of the German government as guarantee for the purchase price of the Chorzów factory by the Oberschlesische, they constituted property of the German Reich in the sense of Article 256 of the Versailles Treaty which had to be transferred to Poland. As a result the indemnity that was due to the Oberschlesische had to be assessed after eliminating the rights of the German Reich.13 Germany pointed to the fact that Poland based its counterclaim on Article 256 of the Treaty of Versailles—not on the bilateral GermanPolish Geneva treaty of 1922 on the basis of which Germany instituted proceedings— and had not identified a basis of the Court’s jurisdiction to deal with it. In its reply Germany made it clear that it would not contest the Court’s jurisdiction to deal with the Polish counterclaim, because it wished to give effect to the Locarno Arbitration Treaty (1925) to which both States were parties and to have the Chorzów dispute settled once and for all.14 Moreover, Germany referred to the requirement of Article 40 (2) (4) of the Rules of the Court that counterclaims may be adjudged upon if they come within the jurisdiction of the Court, and concluded: ‘‘… As between Germany and Poland this applies in respect of any question of law in dispute between them. The only point which might be disputed is the question whether, for the application of this article of the Rules, the conditions respecting forms and times must also be fulfilled, or whether it is enough that the material conditions should be fulfilled. This point, however, may be left open, since the German Government accepts the jurisdiction of the Court in regard to the question raised in the Counter-Case …’’15 11

Article 256 (1) of the Treaty of Versailles (1919) provided that ‘‘Powers to which German territory is ceded shall acquire all property and possessions situated therein belonging to the German Empire or to the German States, and the value of such acquisitions shall be fixed by the Reparation Commission, and paid by the State acquiring the territory to the Reparation Commission for the credit of the German Government on account of the sums due for reparation’’. 12 PCIJ Ser. A No 17 (1928), 36. 13 Id., 35–36. 14 Id., 36. 15 Id., 37. According to Rosenne the attitude of Germany on the matter of jurisdiction amounted to an instance of forum prorogatum. See Rosenne 2000, 460–461; Rosenne 2007, 271.

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The Court pointed at the lack of a clear position on the issue of its jurisdiction by Poland, the reliance of Germany on the Treaty of Locarno and the wish of both parties to the dispute that the Court should rule on the Polish counterclaim in the course of the same proceedings.16 The Court went on to affirm that once the parties to a dispute express their consent to its jurisdiction, it is competent to deal with any case referred to it by the parties and then introduced what in reality amounted to an additional requirement for the admissibility of counterclaims: connection with the principal claim. The Court held that the counterclaim of Poland … is based on Article 256 of the Versailles Treaty, which article is the basis of the objection raised by the Respondent, and that, consequently, it is juridically connected with the principal claim … The claim having been formulated in the Counter-Case, the formal conditions required by the rules as regards counterclaims are fulfilled in this case, as well as the material conditions …17

The Court dwelt on the precise relationship between the original claim of Germany (that Poland should pay compensation for the injury suffered by the Oberschlesische) and the counterclaim of Poland (that the compensation to be adjudged should be reduced to the extent of the rights possessed by the German Reich in the Company, which by virtue of Article 256 of the Versailles Treaty had been transferred to Poland). The Court found that Poland’s submission, though ‘‘in the form of counterclaim, since its object is to obtain judgment against the Applicant for the delivery of certain things to the Respondent’’, was in reality an objection aiming at off-setting its alleged financial rights in Oberschlesishe acquired from Germany under the Treaty of Versailles against the compensation claimed in the application instituting proceedings. In this manner, as the Court understood, Poland aimed at reducing the compensation ‘‘to an amount corresponding to the damage actually sustained.’’18 The Court subsequently rejected the Polish submission on its merits and found that Article 256 of the Treaty of Versailles could not be applied because the Oberschlesise was not controlled by the German government but, rather, by German nationals (namely, the Bayerische) and that the rights acquired by Germany in the Company (by virtue of the contract of 24 December 1919) were not ‘‘rights’’ situated on Polish territory for the Oberschlesische had transferred its registered office from the Upper Silesia to Germany.19 It is not clear whether the application by the Court of ‘‘juridical connection’’ between the principal claim of Germany and the counterclaim of Poland was an application of a general principle of domestic law that, in the Court’s view, was indispensable for the admissibility of a counterclaim notwithstanding the express terms of Article 40 of the Rules; or a necessary requirement that overrode the 16 17 18 19

PCIJ Ser. A No 17 (1928), 37. Id., 38. Id. 38–39. Id. 39–42.

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discrepancy with the subject-matter jurisdiction of the Court between the bilateral Geneva Convention under which Germany instituted proceedings and the Treaty of Versailles that Poland invoked, in addition to the express statement by Germany that it would not contest the jurisdiction of the Court on this matter. It appears that it was the latter consideration that prevailed with the Court, for it stressed that the substance of Poland’s counterclaim was an objection directed against the merits of the principal claim of Germany and had as its object the reduction of the extent of the compensation sought under it. Although claim and counterclaim were based on two different treaties they were linked with respect to their substance and the lack of any objection on the part of Germany in relation to the Court’s jurisdiction allowed the Court to consider Poland’s submission. One thing is certain, however, that the Chorzów Factory Judgment influenced subsequent developments with respect to the evolution of the Court’s Rules on counterclaims. Before proceeding to consider these developments, it is worth mentioning that shortly prior to the extensive revision of the Rules of the Court in 1936 there was a second instance in which a counterclaim was presented. In the Eastern Greenland case Denmark instituted proceedings against Norway the subject of which was the territorial sovereignty over certain parts of Greenland that was disputed between the two States. In its application Denmark requested the Court to adjudge and declare that ‘‘the promulgation of the declaration of occupation [of certain territories in Eastern Greenland] and any steps taken in this connection by the Norwegian Government constitute a violation of the existing legal situation and are accordingly unlawful and invalid.’’20 In its Counter-Memorial Norway presented what in effect amounted to a counterclaim in asking the Court to adjudge that: ‘‘Denmark had no sovereignty over Eirik Raudes Land [Eastern Greenland]; Norway has acquired the sovereignty over Eirik Raudes Land; …’’21 The Court, however, made no pronouncement on the Norwegian submission in its Judgment. Though apparently a counterclaim, Norway’s submission appears to have been treated by the Court as a separate application joined with Denmark’s application in the same proceedings.22 However, there is no escape from the fact that both applications, if this were indeed the case, were adversarial, opposing and mutually exclusive, namely, Denmark’s application was directed against Norway and vice versa their object being the same: territorial sovereignty over the same piece of land. If a faithful application of the domestic law analogy were made then Norway’s action would have to be suspended (or even rejected) under a plea of lis alibi pendens for the proceedings would involve two opposing suits by the same parties having an identical object taking place before the same Court. The Norwegian submission in this case might appear prima facie more akin to a defence rather that a counterclaim properly (and accurately) so called. It aimed at the defeat of Denmark’s application and, at the same time, the judicial recognition of

20 21 22

Legal Status of Eastern Greenland, PCIJ Ser. A/B No. 53 (1933), 23–24. Ibid. Rosenne 2000, 461; Rosenne 2007, 271; Salerno 1999, 346–347.

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its claim to territorial sovereignty over Eastern Greenland. If Norway had not reacted the way it did to the Danish application, then the Court would have either upheld Denmark’s claim and the matter would end there, or rejected it without, however, automatically upholding Norway’s or any other State’s opposing claim if the latter had not been submitted for judgment before the Court. Since Norway had not instituted separate proceedings against Denmark and was faced with a Danish institution of proceedings against it about the same matter, it was left with no other option than to assert its claim by making use of the relevant provision of the Rules of the Court on counterclaims. However, the upholding of the Norwegian claim presupposed only and exclusively the defeat of the Danish claim. Therefore, Norway’s submission was a genuine counterclaim that operated functionally as a defence. During the major revision of the Rules of the Permanent Court undertaken in the 1930s, counterclaims were extensively discussed and Article 40 of the 1922 Rules was amended in 1936 to become Article 63 of the Revised Rules of the Court23 that provided the following: When proceedings have been instituted by means of an application, a counter-claim may be presented in the submissions of the Counter-Memorial, provided that such counterclaim is directly connected with the subject of the application and that it comes within the jurisdiction of the Court. Any claim which is not directly connected with the subject of the original application must be put forward by means of a separate application and may form the subject of distinct proceedings or be joined by the Court to the original proceedings.

This provision of the 1936 Rules of the Permanent Court reflects the experience of the Court in dealing with counterclaims in the Chorzów Factory case and a thorough discussion of the issues surrounding the concept by the Judges of the Court. It is, thus, more elaborate than Article 40 of the 1922 Rules and its basic tenets have survived into the text of the Rules of the International Court of Justice. The right to present counterclaims is restricted to cases brought before the Court only by way of application, not by special agreement. Moreover, the requirement of ‘‘direct connection’’ with the subject of the principal claim was introduced in addition to the already existing condition that counterclaims must fall under the jurisdiction of the Court. What is remarkable, however, is that the preparatory work that led to the adoption of Article 63 of the PCIJ Rules has raised all the issues surrounding counterclaims that became the subject of consideration by the International Court of Justice during the 1990s. In June 1933 the Registrar of the Court produced a Report in which it was stated that the Court had decided to reconsider counterclaims.24 It added that though the Court had had no experience on the subject, the issue had arisen25 but the Court had refrained from dealing with it. On 14 May 1934 the Coordination Commission produced a Report in which it stated that, first, counterclaims may be presented 23 24 25

See generally, Genet 1938, 145. PCIJ Ser. D No 2 (Third Addendum) (1936), 803, at 821. The Eastern Greenland case is mentioned in this respect.

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only in proceedings instituted by way of application and, secondly, identified the issue of the form in which counterclaims could be presented: by separate application or in the course of the same proceedings initiated by the applicant’s action?26 During the discussion among the members of the Court the issues concerning counterclaims that were raised included the following: First, that counterclaims could be presented only in proceedings introduced by way of application and not by way of special agreement. Judge Anzilotti pointed out that in cases brought by way of special agreement there was no question of counterclaims but only of reciprocal claims.27 This position was not contested by the other members of the Court. Secondly, the form in which counterclaims could be presented. Judge Negulesco asserted that a respondent would have to present counterclaims by way of separate application and not in the submissions of the Counter-Memorial, for three reasons: (a) It would bring the presentation of counterclaims in conformity with Article 40 of the PCIJ Statute that required claims to be brought before the Court either by application or by special agreement, not in the Counter-Memorial. In the latter case, counterclaims could not be communicated to third States so that they might consider intervening in the proceedings. (b) If a counterclaim was to be identified with a plea of defence, the Court could not pass judgment on it in the operative part but only on the grounds (of the Judgment); he said in this respect: ‘‘But there are cases in which the counter-claim might outweigh and nullify the principal claim, so that the Court should be able to give judgment upon it against the applicant.’’28 (c) The existing Rule on counterclaims (namely, Article 40 of the 1922 PCIJ Rules) would be contrary to the principle of equality of the parties in the written proceedings, for the original applicant could address the counterclaims of the respondent only once in his Reply to the latter’s Counter-Memorial, whereas, the respondent (the counter-claimant) could address the issues raised in the counterclaims twice, both in the Counter-Memorial and the Rejoinder.29 The opposite view was expressed by Judges Anzilotti and van Eysinga. Judge Anzilotti said that, although Judge Negulesco’s concerns were theoretically sound, they were practically of limited advantage. He argued that the right to raise counterclaims in the Counter-Memorial served the real purpose and conveyed the real meaning of the concept, namely, to enable the respondent ‘‘to demand in the course of the same proceedings what was due to him from the applicant for a reason related to the dispute already pending.’’30 Moreover, he took the view that notification to third States was not much important, because the Rules of the Court

26

PCIJ Ser. D No. 2 (Third Addendum) (1936), 870–871. Judge Anzilotti’s remark was made in response to a question posed by Judge Urutia on whether it would be possible to present counterclaims in cases brought by special agreement. See PCIJ Ser. D No. 2 (Third Addendum) (1936), 13th Meeting, 28 May 1934, 109. 28 See id. 13th Meeting, 28 May 1934, 105. 29 Id. 107. 30 Id. 105. 27

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included a provision (Article 42) by virtue of which third States could have knowledge of the written proceedings and be informed with respect to counterclaims raised in the Counter-Memorial.31 Judge van Eysinga also stressed that Judge Negulesco’s proposal was of limited significance. He pointed out that if that proposal was adopted then it could not dispense with the issue of considering (or) treating a counterclaim as a separate action with respect to the main proceedings.32 Thirdly, there was discussion as to the meaning of counterclaims. Judge Schücking raised the issue of whether counterclaims constituted a means of defence against the principal claim or autonomous causes of action irrespective of any connection to the principal claim.33 Judge Anzilotti referred to the precedent of the Chorzów Factory case in which the Permanent Court had ruled that a counterclaim was admissible if it was connected with the principal claim and said that sometimes a counterclaim constituted a means of defence and the Court could not ‘‘in justice’’ pass judgment upon the principal claim without at the same time considering the plea of defence.34 At this point the Registrar of the Court confirmed that the Rule on counterclaims in Article 40 (2) (4) of the 1922 Rules was based on the procedure of the US Supreme Court—an outright domestic law analogy—and revealed the verbatim record of the 1922 discussion on the drafting of the Rule on counterclaims among the members of the Court for the official record of the preparatory work made only a laconic reference to it.35 According to this record36 Judge Weiss had asked whether a counterclaim could be regarded as a defence to the principal claim in some cases. Judge Anzilotti had replied ‘‘[T]hat is what we call a plea of counterclaim, but that would be a question decided by the Court in the particular case’’. Lord Finlay had stated that There might be une demande reconventionelle which though in form of a demand, was really in the nature of a defence to the proceedings. It might be so closely connected with it, that it would be very wrong for the Court to take cognizance of the claim without taking cognizance of the counterclaim. On the other hand, there may be cases where a totally new subject would be introduced which the parties had never consented to refer to the Court, and that danger would be guarded against by the words proposed by M. Beichmann37

The preparatory work of 1936 reveals that the nature of a counterclaim as a defence or a totally ‘‘new’’ claim was directly linked to the form in which it would be introduced before the Court. Judge Fromageot38 stressed that a distinction had

31

Id. 106. Ibid. 33 Id. 105. 34 Id. 105. 35 The relevant passage refers to ‘‘a discussion during which stress was laid on the difference between counterclaims essential for the purpose of defence, and counterclaims independent of the case’’; PCIJ Ser. D No. 2 (1922), 140. 36 PCIJ Ser. D No. 2 (Third Addendum) (1936), 107–108. 37 Id. 108. See also supra n. 5. 38 Id. 109–110. 32

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to be drawn between counterclaims constituting defensive pleas rebutting the submissions in the applicant’s Memorial and counterclaims constituting the presentation of a fresh claim. In the first case, he argued, the proposal of the Coordination Commission should be retained (namely, that a counterclaim may be presented in the Counter-Memorial provided that it falls under the jurisdiction of the Court and the case had been brought by way of application); whereas, in the second contingency (that a counterclaim constituting a fresh claim could, by implication, only be introduced by a separate, or new, application) the Court might or might not join the two applications. As a result, Judges Negulesco, Wang, Schücking and Fromageot that laid great importance to the direct relationship between the true nature of a counterclaim (plea of defence or a fresh claim?) and the form in which it would be presented proposed to replace Article 40 (2) of the Coordination Commission Report with a special article that read39: No claim may be included in the Counter-Case as a counterclaim unless it is directly connected with the subject of the application filed by the other party and unless it comes within the jurisdiction of the Court

This proposal caused Judge Adaci to raise some very substantive questions that, as will be seen in the subsequent chapters, are of continuing relevance40: Does a counterclaim constitute a new case or is it merely an incident of the proceedings? Does ‘‘direct connection’’ mean a connection in fact or a connection in law? Must there be both a direct and a juridical connection? What is the position with regard to the counterclaim as an element of the defence? Should the proceedings with regard to the same action follow their course? What is the procedure with regard to the presentation of evidence? What would become of the counterclaim if the main action is withdrawn?

The replies given by the sponsors of the proposal and Judges Anzilotti and van Eysinga reveal, first, a wish to distance the concept and function of counterclaims before the Permanent Court from their function under various systems of municipal law; secondly, divergent views on the meaning and rationale of the requirement of ‘‘direct connection’’; thirdly, the stage in the proceedings where a counterclaim could be presented. Judge Negulesco41 remarked that the proposal he co-sponsored had not been based on any particular system of domestic law. He, then, stressed that the requirement of ‘‘direct connection’’ aimed at excluding ‘‘cross-action’’, in the sense of a completely new claim. Therefore, in his view, a counterclaim could be introduced in the respondent’s Counter-Memorial in the same proceedings as the original claim only if it constituted a plea of defence.

39 40 41

Id. 14th Meeting, 29 May 1934, 110. Id. 111. Id. 111.

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Judge Fromageot42 addressed most of the issues raised. He said that a counterclaim did not introduce a new case (the case being the suit instituted by the applicant) and that the ‘‘connection’’ requirement implied a connection of fact, namely, that the same element of fact would underlie both the principal claim and the counterclaim. A connection in law was conceivable but it would not suffice to enable a demand to be forward as a counterclaim. Moreover, the connection had to be ‘‘direct’’ in the sense that a remote connection would not be sufficient. Furthermore, he expressed the view that the original proceedings would follow their course and that withdrawal of the main action was possible only if the respondent consented to it, an unlikely event in case the latter had presented a counterclaim. In addition, Judge Fromageot, pointed that the concept of ‘‘counterclaims’’ before the Permanent Court should have a meaning which was particular to this Court and totally unrelated to the meaning attributed to counterclaims in municipal law. Finally, he stated that the term counterclaim referred only to the form in which a claim was presented, whereas the concept of ‘‘direct connection’’ with the original claim was relative to the nature of the claim.43 Judge Schücking44 said that the concept of ‘‘direct connection’’ was a flexible formula that would be interpreted by the Court. However, in his view, it would be a connection of both law and fact. At a later stage of the preparatory work, he also raised the question of whether a counterclaim, which fulfilled the requirements of Article 63 of the Rules, could be presented at a stage of the proceedings subsequent to the filing of the Counter-Memorial.45 This latter issue appears to have been answered in the negative.46 Judge Anzilotti47 stressed that the presentation of counterclaims does not initiate a new proceedings but it is added to a case already pending before the Court. He took the view that the requirement of connection between the original claim and counterclaim had to be laid down because the Court had established it in its jurisprudence, namely, the Chorzów Factory case. However, he was opposed to any attempt at defining the concept of ‘‘direct connection’’ in advance and thought it was preferable to leave this task to the jurisprudence of the Court.48 Finally, Judge Wang49 said that the rationale underlying the ‘‘direct connection’’ of a counterclaim with the principal claim was an attempt at reconciling two opposing systems with respect to counterclaims prevailing at the time in the 42

Id. 111–112, 113. Id. 115. 44 Id. 112. 45 Id. 51st Meeting, 8 April 1935, 441. 46 Id. 440–441. The President of the Court stated that in this case a claim should constitute the subject of a separate application that could be joined to the original proceedings, while Judge Anzilloti expressed the view that counterclaims could be presented earlier but not later than the Counter-Memorial, the latter possibility being contrary to the interests of both the parties and the Court. 47 Id. 112–113. 48 Judge van Eysinga agreed with this view. Id. 113. 49 Id. 114. 43

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context of the post-First World War Mixed Arbitral Tribunals by combining their advantages: the unqualified admissibility of counterclaims, on the one hand, and the express prohibition of counterclaims, on the other. The Permanent Court considered the presentation of counterclaims under Article 63 of its [Revised 1936] Rules on two occasions: in the Diversion of Water from the Meuse (Netherlands v. Belgium) case50 and in the Panevezys-Saldutiskis Railway (Estonia v. Lithuania) case.51 In the River Meuse case the Netherlands instituted proceedings against Belgium alleging that the latter by the construction or planned construction of certain works and the actual or future supply with water from the river Meuse of a number of canals violated the Treaty of Hague of 1863 which introduced a regime concerning the taking of water from the Meuse.52 In its Counter-Memorial Belgium presented a counterclaim under Article 63 of the PCIJ Rules in which it alleged breaches by the Netherlands of the same Treaty because of the construction of a barrage and the supply of water from the Meuse of the large Juliana Canal used for navigation.53 The Court ruled that the Belgian counterclaim was connected with the principal claim and, consequently, it was admissible.54 However, it subsequently, rejected it on its merits as it did with respect to the Netherlands application. So far as the admissibility of the counterclaim was concerned it was very much a straightforward case. Both the principal claim and the counterclaim were based on the performance of the same treaty and related to the same factual context. There was, therefore, a close, namely, a direct connection of both law and fact between the Netherlands claim and Belgium’s counterclaim. In the Panevezys-Saldutiskis Railway case, Estonia instituted proceedings against Lithuania because the latter had refused to recognize the property and concession rights of an Estonian company to operate the Panevezys-Saldutiskis railway.55 Lithuania presented a counterclaim in its Counter-Memorial under Article 63 of the Rules in which it asserted that reparation, should the Court rule that it was due should be fixed at a certain amount.56 At the same time, Lithuania raised two preliminary objections with respect to the admissibility of the application of Estonia concerning the requirements of the exercise of diplomatic protection on behalf of the company, namely, the nationality of claims and the exhaustion of local remedies.57 The Court upheld the objection with respect to the non-exhaustion of local remedies and dismissed the application of Estonia. As a result it did not consider at all the counterclaim of Lithuania.

50 51 52 53 54 55 56 57

PCIJ Ser. PCIJ Ser. PCIJ Ser. Id. 7. Id. 28. PCIJ Ser. Id. 7. Id. 6.

A/B No. 70 (1937). A/B No. 76 (1939). A/B No. 70 (1937), 5–6.

A/B No. 76 (1939), 5–6.

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3.1.2 The International Court of Justice The Statute of the ICJ, like its predecessor, the Permanent Court, does not include a provision entitling a respondent State to present counterclaims and the matter is, again, regulated by the Rules of Procedure of the present Court. The Rules of the Court on counterclaims have undergone amendments on three occasions since the establishment of the ICJ in 1946. The Rules of the Court adopted in 1946 provided the right of a respondent to raise counterclaims in Article 63: When proceedings have been instituted by means of an application, a counterclaim may be presented in the submissions of the Counter-Memorial, provided that such counterclaim is directed connected with the subject-matter of the application and that it comes within the jurisdiction of the Court. In the event of doubt as to the connection between the question presented by way of counterclaim and the subject-matter of the application the Court shall, after due examination, direct whether or not the question thus presented shall be joined to the original proceedings.

This Rule remained unchanged as Article 68 after the revision of the Rules of the Court in 1972. The above Rule has retained the language of its counterpart Rule of the Permanent Court only with respect to the first phrase of the provision. There has been, however, a substantial diversion with respect to the fate of a counterclaim if it was not directly connected with the subject of the principal claim. Under Article 63 PCIJ Rules an unconnected counterclaim had to be presented by way of separate application, following which it might form the subject of separate proceedings or be joined by the Court to the original proceedings. Under Article 63 of the ICJ Rule a mere doubt, as opposed to a definitive conclusion or certainty, in relation to connection would not automatically lead to the re-submission of the hitherto counterclaim (included in the Counter-Memorial) as a separate claim in a separate application constituting the initiation of separate proceedings. It just would offer the Court the discretion ‘‘after due examination’’ to join or not the counterclaim to the original proceedings. This leads to the logical question of what would be the fate of the counterclaim in the event of a finding that there was not a connection with the principal claim or that there was strong doubt with respect to such connection. Would the counterclaim be rejected as inadmissible or could, in any case, form the subject of a new application? And if the latter was the case, would joinder be by definition precluded? Regrettably, there is no record of the preparatory work of the drafting of Article 63 of the 1946 Rules or of the subsequent revision in 1972. In the two cases in which counterclaims were presented under Article 63 of the 1946 Rules (The Asylum case58 and the Rights of US Nationals in Morocco case59) the issue did not arise because the Court upheld the admissibility of the counterclaims. 58

Asylum Case (Colombia/Peru), ICJ Rep. 1950, 266. Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America), ICJ Rep. 1952, 176.

59

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In 1978 the Rules of the Court underwent substantial revision. Among the provisions that were revised was the one on counterclaims that now became Article 80 of the Rules and was included in the sub-section of Incidental Proceedings. Article 80 reads: 1. A counterclaim may be presented provided that it is directly connected with the subjectmatter of the claim of the other party and that it comes within the jurisdiction of the Court. 2. A counterclaim shall be made in the Counter-Memorial of the party presenting it, and shall appear as part of the submissions of that party. 3. In the event of doubt as to the connection between the question presented by way of counterclaim and the subject-matter of the claim of the other party the Court shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings.

The provision on counterclaims has undergone some substantive revision in that counterclaims may not only be presented in cases that are brought before the Court by way of application. This implies that counterclaims may, at least theoretically, be raised in cases that are submitted to the Court by way of a special agreement. Moreover, there has been a development with respect to the procedure of evaluating counterclaims by the Court. This matter has become the subject of incidental proceedings, namely, separate proceedings involving distinct written presentation and hearings as a result of which the proceedings on the merits of the case are temporarily suspended. Furthermore, the incidental nature of counterclaim proceedings means that a counterclaim to be considered as such must be confined within ‘‘the parameters’’ of the case ‘‘actually pending before the Court’’,60 without, however, losing its character as an independent claim61 The Rule of Article 80 was frequently invoked by respondent States in the 1990s and for the first time in its history the Court has had the opportunity to consider counterclaims in some depth. The same is true of separate and dissenting opinions of individual judges. These cases are: the Bosnian Genocide case, the Oil Platforms case, the Cameroon v. Nigeria case, the Congo v. Uganda case and the Jurisdictional Immunities case. As a result of the issues concerning the principle of equality of the parties in the proceedings with respect to counterclaims in these cases and the question of the Court’s jurisdiction, Rule 80 has undergone yet another amendment in 2000 and now reads: 1. The Court may entertain a counterclaim only if it comes within the jurisdiction of the Court and it is directly connected with the subject-matter of the claim of the other party. 2. A counterclaim shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein. The right of the other party to present its views in writing on the counterclaim, in an additional pleading, shall be preserved, irrespective of any decision of the Court, in accordance with Article 45, paragraph 2, of these Rules, concerning the filing of further written pleadings. 3. Where an objection is raised concerning the application of paragraph 1 or when the Court deems necessary, the Court shall take its decision thereon after hearing the parties.62

60

Rosenne 2000, 458; Rosenne 2007, 268. Salerno 1999, 342. 62 The revised Rule 80 was applied by the Court for the first time in the Jurisdictional Immunities case. 61

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The latest revision of Rule 80 has introduced some important changes: In the first place, by substituting the phrase ‘‘may entertain a counterclaim’’ for ‘‘[A] counterclaim may be presented’’ it has rectified a phrasing which, as was pointed out by Judge Krec´a in the Bosnian Genocide case, created the impression that the requirements of Article 80 (1) concerned the presentation rather than the admissibility counterclaims.63 Secondly, the jurisdiction of the Court appears to have acquired precedence over the requirement of direct connection.64 Thirdly, it introduced the right of the respondent to file further written observations to the original applicant’s views on the counterclaims in his Rejoinder in order to preserve the principle of equality of the parties. Moreover, the grounds for activating the incidental proceedings on counterclaims are extended to cover both requirements for the admissibility of counterclaims provided in paragraph 1 of Rule 80. Thus, if the original applicant raises objections either with respect to the connection of the counterclaim with the principal claim or the jurisdiction of the Court to entertain it, or if the Court considers that an evaluation of these matters is necessary, oral hearings will be held. In particular, the existence of ‘‘doubt’’ appears to be a matter of concern only for the Court, whereas the original applicant must raise ‘‘objections’’ with respect to whether the requirements of the respondent’s counterclaims are met. The rulings of the Court, as well as the views expressed by authors on all matters relating to counterclaims shall be discussed in the subsequent chapters of this book. The remainder of the present chapter shall deal with the question of defining the concept of counterclaims.

3.2 Defining Counterclaims There is no universally accepted (or adopted) definition of counterclaims. In fact, counterclaims are defined in accordance with their function in the context of a specific legal system of dispute settlement. It appears that there are only three features in common among various such systems on the international plane: That a counterclaim is an independent claim of the respondent against the applicant, that is more than mere defence to the merits and that it may be presented in the same proceedings initiated by the applicant in the first place. Moreover, counterclaims may be presented by way of separate application irrespective of whether they are expressly allowed or not. Beyond these characteristics, there is divergence of regulation. In the majority of international judicial or arbitral dispute settlement contexts their presentation is prima facie allowed. However, it is subject to conditions of admissibility which vary from tribunal to tribunal. The condition common in various contexts is that counterclaims must fall under the jurisdiction of the particular tribunal in question. This may be either stipulated expressly in the 63 64

See ICJ Rep. 1997, 243, at 264; Thirlway 2001, 174. Zimmermann et al. (eds.) 2006, 909.

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statute of each tribunal, be it a treaty or other document, or provided only in the rules of procedure, leaving, in the latter case, each tribunal to decide in every concrete case before it whether this condition is fulfilled. The other condition of admissibility, namely, connection with the subject-matter of the principal claim is subject to different regulation. In all, it appears that beyond a generic definition reflecting the basic features of counterclaims as they came to be established in municipal law there is a degree of divergence which is dependent on the class of disputes which fall under the competence of an international tribunal. The more specifically defined a class of dispute the more accurately delineated the scope of each dispute may be. This means that the genre of claims may be accurately anticipated and therefore allows provision, equally as accurately, with respect to counterclaims. This is the case, for instance, in relation to the Iran-US Claims Tribunal but not the International Court of Justice. For in the case of the latter the subject-matter of the Court’s jurisdiction may be any question of international law, and within the context of the latter, the scope of a particular dispute may be broad. The definitions of counterclaims before the Court that have been suggested in the literature, in the preparatory work of the PCIJ Rules and the ICJ, draw basically upon the domestic law paradigm.

3.2.1 The Literature Anzilotti65 has suggested that: Il existe, en effet, une notion de la demande reconventionelle qui, en substance, est commune à toutes les législations, même si les règles qui concrétisent cette notion different dans chacune des ces législations: d’ un ensemble des règles distinctes en leur forme, mais ayant un contenu en commun, il est bien possible d’ abstraire ce contenu en un concept lequel est ensuite concrétisé en règles propres d’ un autre droit. L’ élément commun aux diverses législations qui accueillent la notion de la demande reconventionelle est que, par cette demande, le défendeur tend à obtenir en sa proper faveur, dans le même procès intenté par le demandeur, quelque chose de plus que le rejet des prétentions du demandeur, de plus, par consequent, que l’ affirmation juridique sur laquelle se base le rejet. Telle est, sans doute, la demande reconventionelle dont parle l’ art. 40 du Réglement

Judge Fromageot took the view that counterclaim is ‘‘a claim directly dependent on the facts of the main action.’’66 Rosenne has stated that there appears to be no generally accepted definition of counterclaims67 and the definitions offered by him68 and other commentators are based on authoritative Law Dictionaries that 65

Anzilotti 1930, 867. PCIJ Ser. D (Third Addendum) (1936), 112. 67 Rosenne 2000, 457 (notes 1, 2); Rosenne 2007, 267–268, (notes 1, 2, 3). 68 Rosenne refers to the Oxford Companion to Law, the Dictionnaire de la Terminologie du Droit International and the Dictionnaire de Droit International Public, J. Salmon (ed.), 2001. See supra n. 67. 66

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contain definitions primarily describing the term as it is understood in municipal law. Thus, the term counterclaim is defined as ‘‘a claim presented by a defendant in opposition to or deduction from the claim of the applicant’’.69 Thirlway, has suggested that counterclaims are ‘‘… claims presented, in the context of proceedings already instituted before the [International] Court, by the respondent against the applicant, and which the respondent wishes to have determined by the Court along with the claims of the applicant in those proceedings …’’70 Finally, Yee takes the broad view that ‘‘[S]imply put, a counterclaim is a claim that a defendant files against the plaintiff in the very proceedings that the plaintiff has instituted against the defendant’’.71

3.2.2 The Court The Rules of Procedure of the International Court and its predecessor, the Permanent Court—as well as those of arbitral tribunals—do not offer a definition of the term ‘‘counterclaims’’, confining themselves to stating the requirements for their admissibility and the procedure by which they are to be introduced. The jurisprudence of the Court, on the other hand, reveals that it does not adopt a specific definition but rather tends to ‘‘describe’’ the concept in terms reminiscent of municipal law. The question that arises is whether this private law analogy results in importing in international law counterclaims with content identical to this of municipal law or whether the analogy is consummated in the use of the same term as in domestic law. According to Sir Hersch Lauterpacht, the analogy between international law and private law is an analogy of proportions or of similarity of relations: ‘‘[T]he analogia proportionis is of decisive importance, not the external similarity of the attributes of the objects or the subjects of the legal relation’’.72 This accounts for the adoption of counterclaims in the procedural rules of international litigation, but the precise operation of this concept therein may be adapted by international tribunals ‘‘for their purposes’’73 both in drafting their rules of procedure and in the course of their function as revealed in their jurisprudence. The International Court, unlike its predecessor and quite late in its jurisprudence, dealt with the concept of counterclaims in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia).74 The case arose from an application by

69

Larchan and Mirfendereski 1986–1987, 11 (n. 1); Renteln 1986–1987, 380 (n. 2). Thirlway 1999, 198. Thirlway has restricted the definition to the proceedings before the ICJ. 71 Yee 2006, 907. 72 Lauterpacht 1927, 83. 73 Id., 210–211. Cf. Rosenne 2000, 476; Rosenne 2007, 293. 74 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Counterclaims), Order of 17 December 1997, ICJ Rep. 1997, 243, Order of 17 December 1997 [hereinafter Bosnian Genocide case]. 70

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Bosnia and Herzegovina instituting proceedings against Yugoslavia for alleged violations of the Genocide Convention of 1948 against the Bosnian Muslim population in the course of the conflict in Bosnia in the early 1990s. In its countermemorial Yugoslavia presented counterclaims alleging violations of the Genocide Convention against the Serb population of Bosnia.75 Bosnia disputed the character of the claim of Yugoslavia as ‘‘counterclaim’’; it argued that, as a matter of principle, a counterclaim to be considered as such had to be inherently and essentially a defence on the merits besides claiming something more.76 In other words, its principal aim was ‘‘to make [the applicant’s claim] fail or reduce its scope and effects.’’77 Since, the alleged commission of genocide by Bosnia could not in principle be invoked as a defence to preclude the responsibility of Yugoslavia for the same act78 and Yugoslavia had expressly acknowledged this guiding principle, its counterclaim lacked its central and indispensable element.79 The Court began its consideration of the admissibility of Yugoslavia’s counterclaims by inquiring whether these claims constituted ‘‘counterclaims’’ within the meaning of Article 80 of the Rules of the Court. The Court ruled: … it is established that a counterclaim has a dual character in relation to the claim of the other party; … a counterclaim is independent of the principal claim in so far as it constitutes a separate ‘‘claim’’, that is to say an autonomous legal act the object of which is to submit a new claim to the Court, and, … at the same time it is linked to the principal claim, in so far as, formulated as a ‘‘counter’’ claim, it reacts to it; … the thrust of a counterclaim is thus to widen the original subject-matter of the dispute by pursuing objectives other than the mere dismissal of the claim of the Applicant in the main proceedings—for example, that a finding be made against the Applicant; and, …, in this respect the counterclaim is distinguishable from a defence on the merits; …80

The above exposition on ‘‘what constitutes a counterclaim’’ has been repeated and relied upon by the Court in the Case Concerning Armed Activities on the 75

ICJ Rep. 1997, 249–251, para 5. ICJ Rep. 1997, 253, para 13. 77 Id. para 14. 78 As the prohibition of genocide in the 1948 Convention is not based on reciprocity. 79 In this respect the position advanced by Bosnia appears to have been influenced by the prevailing view during the drafting of the 1922 and 1936 Rules of procedure of the PCIJ that counterclaims partook of the character of defence on the merits. See Sect. 3.1.1 of this Chapter. 80 ICJ Rep. 1997, 256, para 27. The influence of Anzilotti’s position quoted above n. 65 is apparent. However, cf. Thirlway 2001, 176 where the author expresses the view that the idea of ‘reaction’ to the principal claim is central to the concept of counterclaims and that in the view of the Court they lie in-between a defence on the merits and a totally independent and separate claim. Therefore, in Thirlway’s view, ‘‘the problem of definition of a counterclaim overlaps with that of the direct connection with principal claim.’’ Moreover, see 179 where he cites with approval Judge Weeramanrty’s view in the Bosnian Genocide case that ‘‘a counterclaim that is autonomous and has no bearing on the determination of the initial claim does not … qualify as a counterclaim’’. [infra n. 86] Also see Thirlway 1999, 212: ‘‘…One has apparently to conclude that the question whether a purported counterclaim ‘reacts’ to the principal claim either depends simply on whether it is formulated as such or is identical with the question whether the one is ‘directly connected’ with the other…’’ Contra Yee in Zimmermann et al. (eds.) 2006, 910. 76

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Territory of the Congo in which counterclaims were presented by the respondent but the applicant disputed their character as such.81 The Court has not expressly acknowledged counterclaims as a general principle of municipal law. In this respect the Court appears to have acted consistently with its practice to apply general principles of law without calling them by their proper name or invoking Article 38 (1) (c) of the Statute.82 However, in the opinion of individual Judges the right to present counterclaims that is provided in Article 80 of the Rules constitutes precisely such a private law analogy. Judge Weeramantry in his dissenting opinion in the same case has pointed to the absence of an ‘‘… authoritative definition of a counterclaim, for the purpose of the Court’s jurisprudence …’’ and drew the conclusion that ‘‘[W]e are thrown back upon what may be considered as the general and natural meaning of the term, and upon such general principles as we can gather from scrutinizing counterclaims as they are understood in legal systems across the world’’.83 He then proceeded to define counterclaims: To my mind, a counterclaim is what its name implies—that it is a legal claim or factual situation alleged by the respondent that counters the claim set up by the applicant. The mere fact that it is a claim made by the respondent in the same proceedings is not enough. The mere fact that it pays back the plaintiff in the same coin, so to speak, does not make it a counterclaim. The juristic concept of a counterclaim has more to it than mere parallelism or reciprocity. There must be some point of intersection between the claims, which makes one exert an influence upon the judicial consequence of the other.84

He, then, identified two meanings of ‘‘counterclaims’’.85 First, ‘‘a claim made against another claim’’ in the sense of two claims ‘‘being opposable to each other—whether by way of diminution of responsibility, or by monetary set-off, or in any other legally recognized manner’’. Secondly, ‘‘a claim made by a defendant in suit against the plaintiff’’, which implies that counterclaims are ‘‘envisaged only in civil proceedings’’. Moreover, Judge Weeramantry appears to take the view that counterclaims before the ICJ operate in the same manner as in domestic law and be 81

See Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Counter-Claims), Order of 21 November 2001, ICJ Rep. 2001, 660, at 676, para 29; [hereinafter Congo v. Uganda case]. In the Case Concerning Oil Platforms (Iran v. USA) (Counter-Claim), Order of 10 March 1998, ICJ Rep. 1998, 190, at 203, para 32 [hereinafter Oil Platforms case], in the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Counter-Claims), Order of 30 June 1999, ICJ Rep. 1999, 983, at 985 and in the Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/ 143/16027.pdf, 6, para 13, the principal applicants (respectively, Iran, Cameroon and Germany) did not dispute the character of the respondents’ (respectively, the USA, Nigeria and Italy) submissions as ‘‘counterclaims’’. 82 Lauterpacht 1958, 167. 83 ICJ Rep. 1997, 288. 84 ICJ Rep. 1997, 289. 85 Ibid. Judge Weeramantry relied on authoritative Dictionaries (notably, The Concise Oxford Dictionary and Black’s law Dictionary) to ascertain the ordinary meaning of ‘‘counterclaims’’.

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inherently of the nature of a defence on the merits: ‘‘Analogies in domestic jurisprudence are plentiful. The party responding to a claim for relief seeks, by presenting the counterclaim, to negate the claim or to reduce or mitigate it. The principal object of the exercise is to whittle down or destroy the claim presented. The party seeks alleviation of the legal consequences of its own action through reliance on countervailing circumstances constituting a claim, though of course it may seek more. A claim that is autonomous and has no bearing on the determination of the initial claim does not thus qualify as a counterclaim’’86 Judge ad hoc Krec´a in his Declaration in the Bosnian Genocide case expressed the view that Article 80 of the Rules of the Court ‘‘tacitly proceeds from the assumption that a counterclaim is a general legal notion. One cannot explain in any other way the fact that neither the Statute of the International Court of Justice nor the Rules of the Court define counterclaims; …’’87 However, he expressed the view that counterclaims before the Court do not operate in a manner similar to their operation in domestic law. Judge ad hoc Krec´a invoked the notion of philosophie juridique synthétique and argued that ‘‘legal notions have two aspects: logical and extensive. The logical aspect or the generic notion means a general notion which is familiar to all branches of law. On the other hand, the extensive side or the extensive notion is reduced to a set of legal prescriptions … which makes the general legal notion specific within the limits of a given legal order. The logical and the extensive aspects of the legal notion are in a state of dynamic unity—by adopting specific rules one enriches and crystallizes the logical, generic part of a legal notion which serves as a model and guiding rule for specific rules in appropriate branches of the law.’’88 Judge ad hoc Sir Elihu Lauterpacht in the same case very implicitly appears to have taken the view that counterclaims in Article 80 of the Rules constituted an analogy with municipal law. He stated that the Statute of the Court was silent on counterclaims and that by adopting Article 80 of the Rules the Court exercised the general power conferred to it by Article 30 of the Statute to formulate its Rules of procedure. In his view this indicated that the Court has considered counterclaims as a ‘‘possible aspect of its functions.’’89 Judge ad hoc Rigaux in his dissenting opinion in the Oil Platforms case stated that the concept of counterclaims in Article 80 of the Rules of the Court is ‘‘borrowed from the vocabulary of municipal law of procedure’’.90 Moreover, he criticized Article 80 of the Rules of the Court as deviating considerably from the general principles of law on counterclaims as they emerge from the practice of

86

ICJ Rep. 1997, 291. ICJ Rep. 1997, 263. 88 ICJ Rep. 1997, 263. Judge Krec´a cites Anzilotti 1930 loc. cit. supra n. 65. 89 Id., 284. 90 Case Concerning Oil Platforms (Iran v. U.S.A.) (Counterclaim), Order of 10 March 1998, ICJ Rep. 1998, 190, at 230. 87

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municipal law systems; he has suggested that the Court should approach counterclaims by importing more substantive rules on the matter from domestic law.91 Finally, Judge Cançado Trindade in his dissenting opinion in the Jurisdictional Immunities (Counter-Claim) case expressly stated that ‘‘… Counterclaims are a juridical institute historically transported from domestic procedural law into international procedural law …’’92 The agreement as to the status of counterclaims as a private law analogy or a general principle of municipal law appears to break down when it comes to the precise function of counterclaims in proceedings before the ICJ: Do they operate with same content and in the same manner as in municipal law or does their transplant in international law modifies their content and function? It is submitted that the adaptation of a legal concept which is found to all systems of municipal law, such as counterclaims, to a specific legal order does not overrule the cogency or alter the character of the process of drawing an analogy of private law. Moreover, it does not deprive the concept of its basic indicia and rationale. Any modification by adaptation that occurs arises, first, from the specific purpose an international tribunal is designed to serve, namely, the class of disputes it is called to settle.93 Thus, it is possible to argue that an institutionalised arbitral tribunal having as its object the settlement of commercial disputes or of monetary claims is more likely to adopt rules of procedure on counterclaims that contain regulations either identical or very much similar to those of municipal law. On the other hand, an international court such as the ICJ that settles disputes between States involving any issue of international law may introduce rules on counterclaims that are premised on a broader analogy with municipal law but are adjusted to the consensual nature of its jurisdiction that determines in each particular case the extent of the subject-matter of a dispute to be settled. Secondly, the admission of a right to make counterclaims and the requirements prescribed to this effect are in close relationship with the judicial policy of a tribunal concerning procedural economy, better administration of justice and avoidance of contradictory judgment.94 For its part, the Court, in the passage from the Bosnian Genocide case quoted above and other pronouncements in its counterclaims Orders has taken the view that under Article 80 of its Rules of Procedure the concept of counterclaim has the following indicia:

91

ICJ Rep. 1998, 190, at 233–234. Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judge Cançado Trindade (diss. op.), para 4. 93 See statement by Judge Fromageot during the preparatory work of the revision of the 1922 Rules of Procedure of the PCIJ in 1934, PCIJ Ser. D No 2 (Third Addendum) (1936), 112. Judge Fromageot expressed the view that the meaning of the term ‘‘counterclaim’’ before the Court should not be the same as in various municipal law systems and that it was to be formulated strictly for the purposes of proceedings before the specific court. 94 Salerno 1999, 333 92

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(1) It has a dual character, namely, (a) it is a new, separate, autonomous claim independent of the original claim of the applicant and (b) it simply ‘‘reacts’’ to the principal claim. (2) It widens the original subject-matter of the dispute, because (3) It does not exclusively pursue the rejection of the claim of the original applicant; in other words, a counterclaim is not a defence on the merits. (4) By reason of the requirement of direct connection with the subject-matter of the applicant’s original claim, it is not an instance of ‘‘cross-action’’. (5) The rationale of making provision for counterclaims in the Rules of the Court is essentially the same with domestic law. (6) It is not a plea of tu quoque. (7) It is immaterial whether it is a plea of set-off. The present writer shall discuss these indicia in a different order, beginning with (5) the rationale of counterclaims, continuing with indicia (1) to (3) and concluding with indicia (4), (6) and (7).

3.2.3 The Rationale or Purpose of Counterclaims before the ICJ The rationale underlying the right to present counterclaims in the course of the same proceedings before the Court appears to be basically the same as in municipal law. Its essential tenets are procedural economy and sound administration of justice. In the course of the preparatory work of the revision of the PCIJ Rules of Procedure in 1934 Judge Anzilotti stated that the real purpose and the proper function of counterclaims rested in their practical advantage giving a respondent the opportunity to demand in the course of the same proceedings ‘‘what was due to him from the applicant for a reason related to the dispute already pending.’’95 In its Order on Yugoslavia’s counterclaim in the Bosnian Genocide case the Court outlined the purpose of counterclaims in proceedings before it: … a claim should normally be made before the Court by means of an application instituting proceedings; … it is permitted for certain types of claim to be set out as incidental proceedings, that is to say, within the context of a case which is already in progress, this is merely in order to ensure better administration of justice, given the specific nature of the claims in question; … as far as counterclaims are concerned, the idea is essentially to achieve a procedural economy whilst enabling the Court to have an overview of the respective claims of the parties and to decide them more consistently; …96

95 96

PCIJ Ser. D No 2 (Third Addendum) (1936), 106. ICJ Rep. 1997, 243, at 257, para 30.

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Judge Koroma in his separate opinion agreed with the Court on the rationale of counterclaims stating that ‘‘… the idea of a counterclaim is essentially to achieve procedural economy whilst enabling the Court to have an overview of the respective claims of both parties and to decide them more consistently. …’’97 In the same case Judge ad hoc Krec´a appears to have expressed a somewhat broader view on the rationale of counterclaims. He has taken issue with paragraph 3 of Article 80 of the [1978] Rules because in his view this provision seemed to reduce the complex nature of counterclaims to a question of procedural economy. He rather thought that the nature of counterclaims did not allow such a reduction. Although he acknowledged that the right to present counterclaims was premised on ‘‘the equality of the parties and the principle of material truth’’, he took the view that it was not restricted to the better administration of justice as an instance of procedural economy but extended to the ‘‘complex solution of conflicting relations between the Parties and the prevention of different trials.’’98 Whereas in the learned Judge’s view procedural economy remains a central feature of the rationale of presenting counterclaims, it appears that it is the wider context of the specific Parties’ relationship arising from the conflict in Bosnia and the need of resolving any claims thereunder that conditioned the necessity of observing this procedural economy. In the Oil Platforms case, the counter-claimant, the USA, expressed the view, as the Court understood, that the possibility of the Court to rule in the same proceedings on claims that possess substantial common elements ‘‘… helps to reduce the burden on the Court … guards against inconsistent results and helps the Court to reach a just and rational result.’’99 Judge Oda in his separate opinion thought that the purpose of counterclaims was, first, the proper administration of justice and judicial economy that enable the Court to consider any or all connected claims in a single proceeding and, secondly, the avoidance of inconvenience in the event the other party or a third State filed a new application on issues that were directly connected. In the Congo v. Uganda case Judge ad hoc Verhoeven expressed the purpose of counterclaims by reference to municipal law. He thought that the right to make counterclaims, first, enabled the Court to have a thorough and precise understanding of the dispute and, secondly, to avoid issuing incompatible or contradictory judgments.100 Finally, in the Jurisdictional Immunities case Judge Cançado Trindade stated that he considered as the purposes of counterclaims, first, procedural economy; secondly, ‘‘a means of achieving more consistency in the Court’s decision’’ and, thirdly, the ‘‘realization of justice at international level’’ (emphasis in the original).101

97

Id., 275. Id., 266. 99 ICJ Rep. 1998, 190, at 201. 100 ICJ Rep. 2001, 660, at 684. 101 Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judge Cançado Trindade (diss. op.), paras. 15, 18–19. 98

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It becomes clear from the above that the rationale of counterclaims as was expressed by the Court and individual Judges reflects a private law analogy. At the same time, however, it is also clear that the Court views procedural economy and better administration of justice as subject to the requirements of admissibility stated in Article 80 (1) of the Rules. In other words, there has to be a direct connection between the principal claim and the counterclaim and the latter must come within the jurisdiction of the Court so that it might be motivated by reasons of procedural economy and better administration of justice to rule on both claims in a single proceeding.102 For the Court is not obliged to do so as it expressly stated that in the normal course of events a claim should be submitted to the Court by way of separate application and that, consequently, counterclaims heard in the course of the same proceedings appear to constitute an exceptional situation. Moreover, there is also a question of judicial policy that is involved, namely, whether the Court should be inclined to settle and dispose of a multi-faceted dispute in the same proceedings rather than preferring each aspect of it to form the subject of separate proceedings. The declaration of Judge Krec´a in the Bosnian Genocide case is implicit of this contingency. So is the declaration of Judge Verhoeven in the Congo v. Uganda case that raises the likelihood that the principal applicant might modify or withdraw his consent to the jurisdiction of the Court, in order to avoid a respondent’s claim being presented to the Court by way of separate application and in separate proceedings in the future.103 Moreover, even if this is not the case, there is nothing to prevent the Court from joining the two proceedings ending in the same result. In any respect it is the attitude of the Court toward the two requirements of admissibility of counterclaims that plays a crucial role. While procedural economy has to do with more practical aspects concerning the time-consuming duplicate presentation of evidence, written and oral proceedings and judgments, the part of the rationale concerning the better administration of justice may exceed the strict confines of evaluating a specific principal claim against a specific counterclaim. It impinges on the finality of the settlement of the various aspects of the particular dispute, especially when there is evidence beyond doubt that this is the intention of the Parties. However, in its Order of 6 July 2010 in the Jurisdictional Immunities case the Court appears not to adopt a flexible approach inspired by this consideration. By contrast, it relied on the lack of jurisdiction to entertain Italy’s counterclaim as inadmissible104

102

Salerno 1999, 352; Murphy 2000, 19. Cf. Thirlway 2001, 177. Contra Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judge Cançado Trindade (diss. op.), paras 28–29. 103 ICJ Rep. 2001, p 660, at p 684. 104 Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, paras 26–31. It is this approach of the Court towards the general context of the dispute between Germany and Italy that constitutes the basis of Judge Cançado Trindade’s dissenting opinion (paras 28–29).

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3.2.4 A Counterclaim is not a Defence on the Merits A defence on the merits is a submission formulated by a respondent which has the external marks of a claim but aims at the dismissal of the applicant’s claim by making it devoid of its factual or legal basis. Thus, a submission by the respondent having as its subject a ground precluding the wrongfulness of an act which forms the subject-matter of the applicant’s claim alleging the responsibility of the respondent constitutes a defence because it aims at nullifying this claim. To put it simply, a defence on the merits consummates its purpose in the defeat of the applicant’s claim. By way of example, the plea of self-defence by a respondent faced with a claim of unlawful use of force against the applicant constitutes precisely an instance of defence on the merits. The nomenclature with respect to a plea of defence is not important. What is important is the aim of the plea. It has been maintained, largely on the basis of the preparatory work of the original drafting of the PCIJ Rules of Procedure in 1922 and of their revision in 1934–1936, that a counterclaim must partake the character of a defence on the merits. In the Bosnian Genocide case Bosnia, as the Court understood, asserted that a counterclaim had a twofold aim: first, to ‘‘counter’’ the original claim, in the sense of opposing it so as to block it or minimize its effects, and, secondly, to ‘‘claim something more’’, namely, a judgment against the original applicant.105 According to Bosnia, the claim of Yugoslavia did not meet these requirements and could not be considered as a counterclaim, because it failed to ‘‘counter’’ Bosnia’s claim and, instead, it introduced a new autonomous claim based on different facts the resolution of which could not have had any influence on Bosnia’s principal claim.106 In other words, Bosnia argued that a counterclaim, to merit to be called such, had to operate cumulatively as a defence on the merits and as an instance of introducing a new claim. Yugoslavia retorted that the same set of facts may be invoked to support both a defence on the merits and a counterclaim, but that these two actions did not have to coincide in order to have a counterclaim properly socalled. As Yugoslavia maintained before the Court there had been a departure from the original position that a counterclaim was admissible (as directly connected with the subject-matter of the principal claim) only when it aimed at the rejection of the original applicant’s claim and at obtaining a judgment against him and that Article 80 (1) of the Rules had to be interpreted in the light of this development.107 The Court in its Order embarked upon the exposition on the concept of counterclaims quoted above in which it simply stated that a counterclaim had to be distinguished from a defence because it would pursue ‘‘objectives other than the mere dismissal of the claim of the Applicant in the main proceedings’’. The Court added

105 106 107

ICJ Rep. 1998, 190, at 253, paras 13–14. Ibid. Id., 255–256, para 22.

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… in Article 80 of its Rules, the Court did not confer a different meaning on the expression ‘‘counterclaim’’; the inclusion of Article 80 in Section D (‘‘Incidental Proceedings’’) of Part III (‘‘Proceedings in Contentious Cases’’) of the Rules of the Court, and the provisions set out in that Article show that it does not apply to mere defences on the merits which the Court must hear in the normal exercise of its functions to decide the Applicant’s claims …108

In this context the Court recalled the position it had adopted in its Provisional Measures Order in the US Diplomatic and Consular Staff in Tehran case according to which should Iran wish the Court to consider the activities of the USA towards it and should it take the view that these were connected with the subject-matter of the US application ‘‘it remains open to that [the Iranian] Government under the Court’s Statute and Rules to present its own arguments to the Court regarding those activities either by way of defence in a Counter-Memorial or by way of a counterclaim filed under Article 80 of the Rules of the Court.’’109 The ‘‘either-or’’ phrasing in this passage indicated an option which was open to Iran and in the Bosnian Genocide case the Court ruled that option also manifested ‘‘the need to differentiate between counterclaims and defences in the scheme of the Rules of the Court.’’110 However, Judge Weeramantry in his dissenting opinion disputed this finding by relying heavily on the record of the preparatory work of the PCIJ Rules.111 In the Cameroon v. Nigeria case, though not confronted with an objection by Cameroon to Nigeria’s counterclaims, the Court expressed itself somewhat more clearly on the distinction between counterclaims and defence on the merits. It ruled that the ‘‘Counter-Memorial of Nigeria in submission 7 contains claims whereby Nigeria seeks further to the rejection of Cameroon’s claims to establish the latter’s responsibility and to obtain reparation on that account’’ and that ‘‘such claims constitute counterclaims within the meaning of Article 80 of the Rules of the Court.’’112 Moreover, in the Congo v. Uganda case Congo objected to Uganda’s counterclaims by advancing the argument that a counterclaim, in addition to direct connection with the subject-matter of the principal claim, had to be pertinent as a defence on the merits.113 Uganda retorted by arguing that the position expressed by Congo found no basis in either the jurisprudence of the Court or in doctrine. It took the view that there had to be no coincidence between a defence and a counterclaim and that this would constitute a groundless departure from the principles concerning the application of Article 80 of the Rules.114 The Court, after

108 109 110 111 112 113 114

ICJ Rep. 1997, ICJ Rep. 1979, Supra n. 108. ICJ Rep. 1997, ICJ Rep. 1999, ICJ Rep. 2001, Id., 671.

243, 257, para 28; again the influence of Anzilotti is discernible. 7, at 15, para 24. [emphasis added]. 243, at 290–291. 983, at 985. [emphasis added]. 660, at 667, 670.

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reiterating the passage from the Bosnian Genocide case on the concept of counterclaims under Article 80 of its Rules, took a step further to explain the distinction between counterclaims and defence on the merits. The Court ruled that the claims of Uganda sought ‘‘over and above the dismissal of the claims made by the Congo, a ruling establishing the Congo’s responsibility and awarding reparations’’ and, therefore, they constituted ‘‘counterclaims’’.115 The Court, then, expressly rejected the position suggested by the Congo stating that ‘‘the establishment of a direct connection was not subject to the condition that the counterclaimant’s arguments must both support the counterclaim and be pertinent for the purposes of rebutting the principal claim.’’116 The distinction is stated more clearly in the finding of the Court in the Jurisdictional Immunities case that ‘‘Germany does not dispute that the Italian claim is not presented as a defence on the merits but as a ‘‘counterclaim’’ within the meaning of Article 80 of the Rules of the Court.’’117 It may be concluded that from the Bosnian Genocide case, through the Cameroon v. Nigeria and the Congo v. Uganda to the Jurisdictional Immunities case the Court has beyond doubt adhered to the view that a counterclaim is a procedural act completely different from a defence on the merits. Thus, contrary to the views prevailing during the preparatory work of the PCIJ Rules of Procedure118 and in the work of authority,119 a claim by the respondent need not to partake the character of defence on the merits in order to be a counterclaim. On the contrary, a counterclaim is a separate, independent claim by which the counter-claimant respondent seeks judgment against the principal applicant premised on an autonomous cause of action. However, as will be seen in the following section, the requirements of direct connection and jurisdictional link in Article 80 of the Rules preclude the making of any claim the respondent in a particular proceeding may have against the applicant arising from any legal relationship between the two States.120 What is allowed is the raising of a claim of the respondent against the applicant that arises from the same legal relationship or relationships forming the subject-matter of the dispute that has been brought by the latter before the Court. While a counterclaim may be premised on the same factual basis as a defence on the merits, the two do not coincide. This is because, although a counterclaim appears on the face of it to have a defensive character, this is so only functionally, in the sense of a tactical move in litigation, and not substantively. The Court has 115

Id., 677, para 29. [emphasis added]. Id., 679, para 38. 117 Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, para 13. 118 Salerno 1999, 336. 119 See Genet 1938, 160–161, but cf. 149; Lopes Pegna 1998, 729: ‘‘Counterclaims are not something else but something more than a simple defence.’’ 120 See Thirlway 2001, 181. Also see, Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/ 143/16027.pdf, 6, para 15. 116

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indeed observed that the respondent’s counterclaim is a reaction to the principal applicant’s claim. But this, together with its subsequent statements on distinguishing between counterclaims and defence on the merits and that by making a counterclaim a respondent seeks something ‘‘further’’ or ‘‘over and above’’ the dismissal of the original application, leaves no doubt about the nature of the ‘‘reaction’’. It is not a ‘‘defence’’ as a term of art in the law of procedure; it is rather of an ‘‘offensive’’ character. This is succinctly stated in the dissenting opinion of Judge Cançado Trindade in the Jurisdictional Immunities case: ‘‘Rather than a defence, a counterclaim appears as a counter-attack.’’121 For, the real aim of a counterclaim is not confined to protecting the respondent from an adverse judgment at the end of the proceedings which would uphold all of the applicant’s claims by simply defeating those claims. It is to serve as an alternative contingency plan in order to mitigate or deprive such a judgment of a substantial portion of its adverse character.122 This is made possible by the reality of the multi-faceted nature of most inter-State disputes as a result of which the original respondent may have legitimate claims against the original applicant. In this case the respondent does have the right both as a matter of law and as a matter of fairness to demand of the principal applicant what is due to him. The medium to realize this aim is the right to present counterclaims and this medium is inherently not defensive.

3.2.5 Counterclaims before the ICJ do not Constitute ‘‘Cross-Action’’ The concept of ‘‘cross-action’’ means the right of a respondent to present a claim against the applicant in the same proceedings without it being necessary that a connection exists between the subject-matter of the applicant’s claim and the respondent’s counter-action. In other words, ‘‘counter-action’’ is a ‘‘counterclaim’’ which is not subject to the requirement of ‘‘direct connection’’. In some municipal law systems, such as the US, the distinction is drawn between ‘‘direct’’ and ‘‘indirect’’ counterclaims, the former being directly connected with the subjectmatter of the original claim while the latter is not.123 In other domestic law systems, such as the one of Greece, counterclaims are identical with counter-action for the law requires of no direct connection.124 121

Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judge Cançado Trindade (diss. op.), para 17. 122 In the Congo v. Uganda Case (Merits), for instance the Court upheld Uganda’s second counterclaim concerning the attacks on the Ugandan Embassy in Kinshasa, its diplomatic personnel and nationals. Moreover, in the Oil Platforms case the Court rejected the claims of both parties. See Rosenne 2007, 293; Murphy 2000, 20. 123 Renteln, Encountering Counterclaims 1986–1987, 380–381. 124 See Art. 268, Code of Civil Procedure; see supra Chap. 2.

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This not the case with respect to counterclaims before the ICJ. The requirement of direct connection between the principal claim of the applicant and the counterclaim of the respondent was introduced in the PCIJ Rules of Procedure in 1936 precisely to exclude the possibility of cross-action. During the preparatory work of 1934 Judge Negulesco expressly stated this position when he explained the proposal of a provision on counterclaims submitted by him and Judges Wang, Fromageot and Schücking: ‘‘… In using the expression ‘direct connection’ the authors of the proposed text had in mind the term ‘counterclaim’ and wished to exclude the ‘cross-action’ …’’125 The requirement of ‘‘direct connection’’ has remained unchanged in the Court’s Rules until the present Article 80. The Court has adopted a very rigorous stance toward the exclusion of crossaction, without, however, calling it by its proper name. It has treated the possibility of bringing a cross-action as an instance of presenting any counterclaim and it has considered this contingency as a case of abuse of the right to present counterclaims. In its Order in the Bosnian Genocide case the Court ruled that: …the admissibility of the counterclaims must necessarily relate to the aims thus pursued and be subject to conditions designed to prevent abuse. … the Respondent cannot use a counterclaim as a means of referring to an international court claims which exceed the limits of its jurisdiction as recognized by the parties; … the Respondent cannot use that means either to impose on the Applicant any claim it chooses, at the risk of infringing the Applicant’s rights and of compromising the proper administration of justice; and … it is for that reason that paragraph 1 of Article 80 of the Rules of Court requires that the counterclaim ‘‘comes within the jurisdiction of the Court’’ and ‘‘that it is directly connected with the subject-matter of the claim of the other party …126

It is worth noting the tenor of generalization with respect to the exclusion of cross-action in the passage above: counterclaims cannot be used by a respondent as a means of referring to an international court (not the International Court of Justice) claims that exceed its jurisdiction or of presenting any claims the respondent chooses. In this respect the Court appears to express accurately the practice concerning the making of counterclaims before other international tribunals, where a degree of connection and the existence of jurisdictional link are required. What matters, though, is that it not only excludes cross-action in its own proceedings but it also considers it as an abuse of process with respect to any proceedings. It is submitted that the basic factor for this stance of the Court seems to rest on the consensual nature of its jurisdiction.127 If cross-action were allowed as counterclaim in the same proceedings then this would effectively overrule the

125

PCIJ Ser. D No 2 (Third Addendum) (1936), 111. ICJ Rep. 1997, 243, at 257–258, paras 30–31. See also Oil Platforms case, Order of 10 March 1998, ICJ Rep. 1998, 190, at 203, para 33; Congo v. Uganda case, Order of 29 November 2001, ICJ Rep. 2001, 660, at 678, para 35. 127 Cf. ICJ Rep. 1997, 243, at 268–269 (per Judge ad hoc Krec´a). Judge Krec´a took the view that the distinction between counterclaims and cross-action (or ‘‘cross-claims’’ in his words) was premised on the requirement of direct connection, especially, the connection in law between the principal claim and the counterclaim. 126

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consensual basis of the Court’s jurisdiction as the central and most important feature of the settlement of disputes between States before this particular institution. States are willing to have recourse to the Court on the conviction that the Court shall deal only and exclusively with matters that are the object of their express consent. The likelihood that a State may be confronted with any claim the other party may have against it in proceedings that were instituted to settle another dispute will possibly discourage States from submitting disputes to the Court.128 The rejection of the counterclaim of Italy in the Jurisdictional Immunities case is illustrative. The Court ruled that the counterclaim did not fall under its jurisdiction (based on Article 1 of the European Convention for the Peaceful Settlement of Disputes (1957)) because it related to facts and situations antedating the entry into force of the Convention between the parties which were excluded by virtue of the general temporal limitation in Article 27 (a) of the Convention. Had the Court ruled otherwise, as Judge Cançado Trindade forcefully argued in his dissenting opinion, and allowed the counterclaim of Italy then this would have been a case of cross-action: By ruling in favor of the existence of a dispute going beyond the jurisdictional framework of the European Convention the Court would have pronounced admissible something ‘‘new’’; a claim, which even though apparently connected with the principal application, fell outside the jurisdictional parameter of Article 80 of the Rules.

3.2.6 Counterclaims before the ICJ and Claims at Set-Off By a claim at set-off by the respondent aims at reducing, balancing or neutralizing in its entirety a monetary claim by the applicant. In many municipal law systems it is treated as a separate, independent objection to the suit brought by the applicant, rather than as an instance of a counterclaim as an alternative to a separate application instituting a new set of proceedings. It is not inconceivable that in proceedings before the Court a request for damages by the principal applicant may be confronted with a claim for compensation by the respondent, the claims in both instances arising from the alleged responsibility of each party toward the other. In this case, though it would be more accurate to speak of set-off instead of a counterclaim there is nothing to prevent this course of action by the respondent from not falling under the general requirements for counterclaims.129 A ‘‘counterclaim’’ as a concept is broader in character than a ‘‘set-off’’. It may include not only strictly speaking monetary claims but also claims consisting solely of violations of international obligations by the applicant toward the respondent. In the Diversion of the River Meuse case Belgium, the respondent,

128

See Congo v. Uganda (Counterclaims), ICJ Rep. 2001, 660, Judge ad hoc Verhoeven (declaration), 684–685. 129 See the treatment of set-offs by the Iran–US Claims Tribunal, supra Chap. 2.

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raised by way of counterclaim the violation by the Netherlands, the applicant, of the bilateral treaty regulating the management of the waters of the Meuse between the two States, the same treaty the alleged violations by which Belgium constituted the cause of action on the part of the Netherlands. In the Asylum case Peru invoked by way of counterclaim the alleged violation by Colombia of the Havana Convention on Granting Asylum. Equally, in the US Nationals in Morocco case the USA presented a counterclaim against France arising from pre-existing treaty obligations between the two countries. In the Bosnian Genocide case Yugoslavia asserted by way of counterclaim the charge that Bosnia and Herzegovina also incurred responsibility for the commission of genocide against the Bosnian Serbs on its territory. In the Oil Platforms case the USA raised by way of counterclaim against Iran the allegation of unlawfully using force against US-owned or USbound shipping and cargo in the Persian Gulf during the last stages of the Iran–Iraq war of 1980–1988. Similarly, in the Cameroon v. Nigeria case Nigeria counterclaimed the responsibility of Cameroon for a series of armed clashes along their common border. Finally, in the Congo v. Uganda case the first counterclaim presented by Uganda alleged violations of the rule of non-use of force by the Congo for providing assistance to armed bands operating against it. Thus, in the majority of cases in which both the PCIJ and the ICJ were faced with counterclaims presented by the respondent States their object was responsibility for violation of international obligations and not strictly monetary claims. The only case where the Court encountered a counterclaim bearing the marks of a set-off is the Chorzów Factory (Merits) case. In this case, as already noted above, the Permanent Court considered that Poland’s submission, even though it was formulated ‘‘in the form of counterclaim, since its object is to obtain judgment against the Applicant for the delivery of certain things to the Respondent’’, was rather an objection toward off-setting its alleged financial rights in Oberschlesishe acquired from Germany under the Treaty of Versailles against the compensation claimed in the application instituting proceedings. In this manner, as the Court understood, Poland aimed at reducing the compensation ‘‘to an amount corresponding to the damage actually sustained.’’130 Moreover, the Iran-US Claims Tribunal that has drawn the distinction between counterclaims and set-off in its jurisprudence adopted the view that the admissibility of a set-off should be judged on the basis of the requirements for the admissibility of counterclaims.131 The Court for its part has never made such a distinction in principle, but it appears from the Chorzów Factory (Merits) Judgment that it treats ‘‘counterclaims’’ as a generic concept under the requirements of admissibility of which a claim at set-off may be evaluated and ruled upon.

130

Case Concerning the Factory at Chorzów (Merits), PCIJ Ser. A (1928), 38–39. See also supra 3–4. 131 See supra Chap. 2.

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3.2.7 A Counterclaim is not a Plea of ‘‘tu quoque’’ The issue that arises under this rubric is whether the presentation of a counterclaim by the respondent State may serve as allegation that the principal applicant ‘‘has done the same’’ as it contends against the respondent in its application instituting proceedings. The question becomes particularly poignant in the case where the original application which initiates the litigation alleges violations of peremptory norms of international law or rules that give rise to obligations erga omnes. The matter arose in the Bosnian Genocide case with respect to the counterclaim of Yugoslavia that Bosnia, the applicant, was responsible for genocide against the Serb population of the country. In its written observations of 9 October 1997 on the counterclaim of Yugoslavia, Bosnia maintained, as the Court understood, that given the erga omnes and non-reciprocal nature of the obligations under the Genocide Convention and the fact that there was no ‘‘logic of reciprocity’’ in the system enunciated by it ‘‘… it cannot be envisaged that the judicial finding of a violation of the Convention committed by a State could in the event be influenced by the fact that a second violation—of which the State in question is allegedly the victim—had been perpetrated …’’132 In a communication of 23 October 1997 concerning its own observations on both the admissibility of its counterclaim and the observations submitted by Bosnia, Yugoslavia stated that it agreed ‘‘… with the Applicant that a breach of the Genocide Convention cannot serve as an excuse for another breach of the same Convention.’’133 However, it added that both States were in dispute with respect to the breach of the Convention, namely, whether genocide had been committed against the Muslim and non-Serb population of Bosnia. Moreover, Yugoslavia maintained that the facts constituting the basis of the counterclaim, namely, genocide committed against the Serb population in Bosnia, were ‘‘part and parcel of the circumstances of the situation’’ and essential for the Court to reach a better understanding, on the one hand, of the ‘‘motives and intentions of individuals who committed crimes vis-à-vis Muslims’’, and on the other, on the ‘‘proper qualification of the acts alleged by the Applicant.’’134 The Court ruled that … Bosnia and Herzegovina was right to point to the erga omnes character of the obligations flowing from the Genocide Convention … and the Parties rightly recognized that in no case could a breach of the Convention serve as an excuse for another; … however, the argument drawn from the absence of reciprocity in the scheme of the Convention is not determinative as regards the assessment of whether there is a legal connection between the principal claim and the counterclaim, in so far the two Parties pursue, with their respective claims, the same legal aim, namely the establishment of legal responsibility for violations of the Genocide Convention. …135

132 133 134 135

ICJ Rep. 1997, 243, at 253, para 12. Id., 255, para 21. Ibid. Id., 258, para 34.

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In his separate opinion, Judge ad hoc Sir Elihu Lauterpacht excluded the possibility that the Court could exercise its discretion and consider the substance of the counterclaim of Yugoslavia at a stage subsequent to the consideration of the claim of Bosnia. In his view the material supporting Yugoslavia’s counterclaim was also essential to the defence to the principal claim of the applicant and it was impossible at that stage of the case to assess whether this material could or could not be used as a defence to Bosnia’s claim. He then, in a single phrase and without elaboration, alerted the Court to ‘‘the possibility that the Yugoslav CounterMemorial is advancing a tu quoque argument.’’136 It was Judge Weeramantry who expressed the strongest objection to the admissibility of the counterclaim of Yugoslavia on the basis of whether ‘‘offences under the [Genocide] Convention are of such nature that they can be used to counter each other … in the context of the provision regarding counter-claims in Article 80 of the Rules of the Court’’, notwithstanding the fact that there was general agreement that a violation of the Genocide Convention could not be invoked to justify another breach thereof.137 The learned Judge has laid emphasis on the criminal nature of the acts the Genocide Convention seeks to suppress and argued that a concept such as ‘‘counterclaims’’, which was particular to civil law, could not be invoked to offset ‘‘one criminal act against another’’. In his words: ‘‘An act of genocide by the applicant cannot be a counter-claim to an act of genocide by the respondent.’’138 Judge Weeramantry has argued that this is a position of principle because of the gravity of the crime of genocide and the erga omnes character of the obligations flowing from its prohibition and, consequently, it may never be the object of ‘‘balancing individual State interests’’ by way of counterclaim. It could only be the subject of separate proceedings.139 The plea of tu quoque purports to be a defence to an allegation of a violation of an obligation and it’s premised on the principle of reciprocity. It is not admitted as such in the context of individual criminal responsibility in international law and neither does it constitute a generic and universally applied ground of precluding the wrongfulness of an act that gives rise to State responsibility. In the latter contingency wrongfulness may be precluded under specific grounds that operate under strict and restrictively interpreted conditions, such as self-defence, countermeasures and consent, the invocation of which is excluded if they conflict with a rule of jus cogens.140 Moreover, in the specific context of treaty relations, a treaty may be terminated or suspended in case of a material breach,141 but this is not admissible with respect to provisions ‘‘relating to the protection of the human

136 137 138 139 140 141

Id., 285, para 20. Id., 288. Id., 292. Id., 292–293. See J. Crawford 2002, Articles 20–27. Article 60, Vienna Convention on the Law of Treaties (1969).

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person contained in treaties of a humanitarian character.’’142 Although the invocation of tu quoque does not constitute a ground of precluding wrongfulness it does have an arresting impact and the end result may be a mitigation of responsibility. In the field of international criminal justice tu quoque may not be admissible as a defence precluding individual criminal responsibility but may result in the non-sentencing of a defendant.143 However, the latter contingency must not be taken to constitute an inevitable outcome of the invocation of the plea and everything depends on the judicial discretion of a tribunal. In the Bosnian Genocide case both Parties were in agreement that as a matter of principle the commission of genocide did not justify another commission of genocide. Therefore, the presentation of the counterclaim by Yugoslavia alleging the responsibility of Bosnia for genocide against the Serb population of the country did not and could not have the function of a defence aiming at precluding the responsibility of Yugoslavia for the genocide allegedly committed against the nonSerb population of Bosnia. On the other hand, it appeared to constitute a sensational public relations move that would result in the diminution of the impact of Bosnia’s accusation against Yugoslavia, again in the field of wider impression upon the media and the public at large. But does this mean that a counterclaim on the commission of genocide in the face of a principal claim having the same subject is in principle inadmissible as a matter of law?144 It is submitted that the answer must be in the negative.145 This is because a counterclaim does not have the position or the function of a defence on the merits. Judge Weeramantry appears to have taken the view that a counterclaim is of the nature of a defence and, therefore, a counterclaim of genocide against a principal claim of genocide would be impermissible and would be best brought by way of separate application forming the subject of separate proceedings. This is a cogent and correct position provided that a counterclaim functions as defence on the merits. But essentially it does not. It is a proper and autonomous claim in its own right, raised by the respondent against the applicant even though, as in the case of Yugoslavia’s counterclaim, it is premised on the same facts as the defence on the merits of the principal application instituting proceedings. Indeed, the same factual basis underlying both the defence and counterclaim of Yugoslavia in conjunction with the fact that it was the Bosnian Serbs that initiated an armed uprising against the newly independent State of Bosnia-Herzegovina, managed to place under their control a large portion of its territory and consolidated their control by way of ethnically ‘‘cleansing’’ this territory of non-Serbs gives at first sight a high degree of credence to Judge Weeramantry’s concerns.

142

Article 60 (5), Vienna Convention on the Law of Treaties (1969). See the case of Admiral Doenitz in the Nuremberg Trial; International Military Tribunal, Nuremberg, Judgment, October 1, 1946, 41 AJIL (Suppl.) 172 (1946), at 305. 144 See Thirlway 2001, 176: ‘‘…Factually Yugoslavia’s counter-claim was a mere tu quoque. But did this prevent it being a counter-claim in law? …’’ Also see Salerno 1999, 352. 145 Contra Lopes Pegna 1998, 732–734. 143

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But at the same time it does not in principle preclude the submission of a counterclaim having the same subject as the principal application in the course of proceedings arising from a context of violence along ethnic grounds such as the conflict that erupted as a result of the dissolution of the former Socialist Federal Republic of Yugoslavia. What the Court was called upon was to assess the merits of both claim and counterclaim and reach a judgment and the admissibility of Yugoslavia’s counterclaim as such would in no circumstances have pre-empted this judgment. Had Yugoslavia not withdrawn its counterclaim in 2001,146 the Court would have to evaluate both allegations of State responsibility for genocide on their respective merits in the course of the same proceedings and would have apportioned responsibility either to one of the Parties or a measure of responsibility to both of them. But this would be a matter to be decided by the Court at the stage of the merits. The alternative suggested, namely, that the counterclaim of Yugoslavia should be the subject of separate proceedings would not alter the possible outcomes, as suggested immediately above. It would only spare the Court and the proceedings the shadow of a mere impression of considerable sensational effect, that a State alleging the responsibility of genocide against another State is being faced with the same charge by the alleged wrong-doer, especially when this determination had already been established not by a Court of law but by world public opinion.147 Furthermore, the Court has taken the view that international norms giving rise to obligations erga omnes do not affect by their special status the question of State consent as the basis of its jurisdiction. Thus, in the East Timor case the Court rejected the application of Portugal because it could not exercise its jurisdiction as a result of the operation of the Monetary Gold principle, even though it recognized that the right of self-determination of peoples that the respondent Australia allegedly violated gave rise to obligations erga omnes.148 It is submitted that, in a similar fashion, the requirements for the admissibility of a counterclaim stipulated in Article 80 (1) of the Rules, namely, the jurisdiction of the Court and direct connection with the subject-matter of the principal claim, are not subject to the substantive content of an international norm which entails obligations erga omnes. With respect to jurisdiction the ruling of the Court in the East Timor case applies. As for direct connection, it will be seen in the next Chapter, that this represents a connection both in fact and in law. It may be said at this stage that what is required under Article 80 (1) of the Rules for connection in fact is that the subject-matter of both the principal claim and the counterclaim is based on facts of the same nature that belong to the same factual complex, while connection in law is assessed on the basis of the legal aim (arising from the same juridical relationship) pursued by 146

See infra Chap. 5. Cf. Thirlway 1999, 228: ‘‘… The problem facing the Court was not so much one of procedural law as of political justice. To refuse to hear the counter-claim of Yugoslavia would undoubtedly mean that the Court would have to examine and give judgment on only part of the overall picture of what had been happening in the former Yugoslavia …’’ 148 The East Timor Case (Portugal v. Australia), ICJ Rep. 1995, 90, at 102, para 29. 147

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both the principal applicant and the counter-claimant. These are requirements of procedure concerning the admissibility or not of a counterclaim. International norms giving rise to obligations erga omnes have a totally distinct position and function. They are primary rules of substantive obligation. Their special denomination entails that their violation is the subject of concern of the international community as a whole and that the effect of such violation exceeds, in terms of State responsibility, the strict bilateral relationship between the wrong-doing State and the direct victim of the wrongful act.149 If, moreover, these rules have the character of peremptory norms (jus cogens) then States are not allowed to suspend them or contract out of them by way of treaty.150 Therefore, what one is faced with is two totally distinct contingencies: the admissibility of counterclaims, on the one hand, and the function of rules giving rise to obligations owed to the international community as a whole, on the other.151 An Order of the Court allowing the admissibility of a counterclaim of the respondent alleging a violation by the applicant of the same rule giving rise to erga omnes obligations that constitutes the subject of the principal claim is not an instance of contracting out of this rule by implication. It merely incorporates in the same proceedings an allegation to be adjudged at the stage of the merits as the applicant’s contention.

References Anzilotti D (1930) La Demande Reconventionelle en Procédure Internationale. J du Droit International 57:857 Crawford J (2002) The International Law Commission’s Articles on State Responsibility. Cambridge University Press, Cambridge Genet R (1938) Les Demandes Reconventionelles et la Procédure de la Cour Permenente de Justice Internationale. 19 Révue de Droit International et de Législation Comparée 145 Guyomar G (1983) Commentaire du Réglement de la Cour Internationale de Justice Adopté le 14 Avril 1978. Pedone, Paris Larchan B, Mirfendereski G (1986–1987) The Status of Counter-claims in International Law, with Particular Reference to International Arbitration Involving a Private party and a Foreign State. 15 Denver J. Int’l L. and Pol’y 11 p 11 n. 1 Lauterpacht Sir H (1927) Private Law Sources and Analogies of International Law, London. Reprinted in 2002 by The Law Book Exchange Union, New Jersey Lauterpacht Sir H (1958) The Development of International Law by the International Court, London. Reprinted in 1982 by Grotius, Cambridge Lopes Pegna O (1998) Counter-Claims and Obligations Erga Omnes before the International Court of Justice. EJIL 9:724 Murphy SD (2000) Amplifying the World Court’s Jurisdiction through Counter-Claims and Third-Party Intervention. 33 Geo. Wash. Int’l L. Rev. 5

149

See ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001), Articles 41, 48. 150 Article 53 of the Vienna Convention on the Law of Treaties (1969). 151 Thirlway loc. cit. supra n. 144.

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Renteln AD (1986–1987) Encountering Counter-claims. 15 Denver J. Int’l L. and Pol’y 379, p 380 n. 2 (reference to Black’s Law Dictionary, 5th ed. 1979, p 315) Rosenne S (2000) Counter-claims in the International Court of Justice Revisited. In: Armas Barea CA et al (eds) Liber Amicorum ‘In Memoriam’ of Judge José Maria Ruda. Kluwer, The Hague, pp 459–467 Rosenne S (2007) Essays on International Law and Practice. M. Nijhoff, Ch. 16 Salerno F (1999) La Demande Reconventionelle dans la Procedure de la Cour Internationale de Justice. RGDIP 103:329 Thirlway H (1999) Counterclaims before the International Court of Justice: the Genocide and Oil Platforms Decisions. 12 LJIL 197 Thirlway H (2001) The Law and Procedure of the International Court of Justice 1960–1989, Part Twelve. 72 BYIL 38 Whiteman M (1968) Digest of International Law, vol 12 Yee S (2006) Article 40, in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary, Oxford University Press, Oxford p. 907

Chapter 4

Admissibility of Counterclaims

Article 80 (1) of the Rules of the Court introduces two requirements for the admissibility of counterclaims in proceedings before the Court: (1) that the counterclaim comes within the jurisdiction of the Court and (2) that the counterclaim is directly connected with the subject-matter of the principal claim. These requirements must apply cumulatively for a counterclaim to be joined to the proceedings already pending before the Court. The rationale underlying both conditions of admissibility of counterclaims is to counter-balance the right of States to present counterclaims by restricting this right so as to preclude States from presenting any counterclaim they wish.1 This is brought about by the overall effect of the accumulation of the jurisdiction of the Court and, especially, the direct connection with the subject-matter of the principal claim. It is worth emphasizing that both requirements must be present and that the existence of one does not imply the existence of the other. Hudson took the view that ‘‘once established the jurisdiction of the Court would seem to extend to any claim directly connected with the subject of the application.’’2 The suggestion was that direct connection would with certainty imply the existence of jurisdiction under the assumption that the counterclaim must be premised on the same jurisdictional basis as the original application; however, it does not appear that this is the established view or to be generally shared by other jurists.3 Moreover, once both requirements are present the Court is bound to rule that a counterclaim is admissible and does not have the

1

Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, 6, para 15. 2 Hudson 1943, 292–293. 3 Anzilotti 1930, 868–869, where the author stresses that the identical nature of the jurisdictional basis does not necessarily guarantee the existence of direct connection and, equally, that connection may exist even though the jurisdictional basis may not be the same. Also see, Genet 1938, 174–175; Thirlway 1999, 203–204, 213–215; S. Yee 2006, 911. C. Antonopoulos, Counterclaims before the International Court of Justice, DOI: 10.1007/978-90-6704-790-6_4,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

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discretion to decide the opposite.4 As Thirlway states ‘‘… [T]he question is not one of the ‘reasonable application’ of a Rule: if the text lays down certain conditions for the validity of a procedural step, states are entitled to act on the basis that those conditions are exhaustive, and that the Court does not preserve a residual discretion to ‘adjust the application’ of the Rule unless the Rules themselves say so. …’’5 Finally, if the Court finds that either (as opposed to both, consecutively) of the two requirements is not met it rejects the presentation of the counterclaim. Thus, in the Jurisdictional Immunities case the Court found that the counterclaim of Italy did not fall within its jurisdiction and that it ‘‘need not address the question whether that counter-claim is directly connected with the subject-matter of the claims presented by Germany.’’6 In the subsequent sections the present author shall deal with, first, the requirement of jurisdiction and, secondly, the one of direct connection.

4.1 The Jurisdiction of the Court 4.1.1 The Extent of the Subject-Matter Jurisdiction of the Court As the Court has ruled in the Corfu Channel case7 the exercise of its jurisdiction is possible only on the basis of the consent of the parties to the dispute. The question that arises in relation to counterclaims appears to be twofold: (a) Does the ‘‘jurisdiction requirement’’ in Article 80 (1) of the Rules mean that the basis of consent of the parties with respect to a counterclaim must be identical with the basis of consent to hear the principal claim? Or, (b) Does it mean that the Court is empowered to hear a claim by the respondent as counterclaim, provided that any basis of consent of the parties and ‘‘direct connection’’ with the subject-matter of the principal claim is present? An affirmative answer to question (a) would imply that counterclaims must fall under the jurisdiction of the Court only to the extent it was delineated between the original applicant and respondent either ipso jure by virtue of Article 36 (6) of the Statute of the Court or in a Judgment overruling the Preliminary Objections of the original respondent. This means, in particular, that the competence to hear the counterclaim must not only be premised on the consent of both parties but it must

4

Bosnian Genocide case, ICJ Rep. 1997, 243, at 264 (Declaration of Judge ad hoc Krec´a). Contra ICJ Rep. 1997, 243, 284 para 18 (Separate Opinion of Judge ad hoc Lauterpacht). 5 Thirlway 1999, 223. 6 Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, 11, para 32. 7 The Corfu Channel Case (UK v. Albania) (Preliminary Objection), ICJ Rep. 1948, 15, at 27. See also, East Timor Case (Portugal v. Australia), ICJ Rep. 1995, 90, at 101, para 26.

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also fall under both the same basis of the jurisdiction of the Court and the precise subject-matter of the principal claim over and to the extent of which the jurisdiction of the Court has already been established. In other words, once the Court has found that it has jurisdiction (namely, that the consent of both parties is present) with respect to a specific matter that forms the object of the dispute, then the counterclaim must come under the same jurisdictional basis and conform with the precise matter constituting the object of the principal claim. On the other hand, an affirmative answer to question (b) would imply that the coming of the counterclaim under the jurisdiction of the Court may be more extensive, provided that there is the requisite consent. This in turn gives rise to two further issues, namely, (b) (i) whether the counterclaim may fall under the same jurisdictional basis on which the principal claim is premised but its object may be other than the one originally identified by the Court or (b) (ii) whether it may be premised on a basis of consent other than the one originally upheld by the Court provided, in both instances, that the requirement of direct connection is present and no limitation to the consent of the parties (for instance, a reservation to the Court’s jurisdiction) exists. Thus, it appears that this is a matter of the extent of the consent given and, in turn, depends on the basis on which this consent is expressed. Moreover, it raises the question of whether the basis of jurisdiction upheld by the Court in relation to the principal claim must continue to form the basis of jurisdiction of the counterclaim and whether a different basis of jurisdiction may not be invoked provided that the requirement of direct connection is satisfied. The text of Article 80 (1)—‘‘if it comes within the jurisdiction of the Court’’— does not shed much light on the above issues and it prima facie appears to imply that a counterclaim as an independent claim raised by the respondent must only be premised on the consent of both parties in order to fall under the jurisdiction of the Court. Judge Higgins in her separate opinion in the Oil Platforms (Counterclaim) case appears to have taken this view (see infra). The opinions expressed by authors vary. Anzilotti8 expressed the view that the argument according to which the Court must have jurisdiction on the same basis with respect to both principal claim and counterclaim would be untenable and could only be justified with respect to establishing a connection between the original claim and the counterclaim; however, the identity of the jurisdictional basis for both the principal claim and the counterclaim does not automatically guarantee the existence of connection. Genet9 has taken the view that the requirement of jurisdiction aimed at preventing a counterclaim from extending the jurisdiction of the Court beyond the parameters delimited by it with respect to the principal claim; at the same time the existence of connection was not sufficient to remedy the lack of jurisdiction. Rosenne10 has considered that the requirement of jurisdiction is self-evident—‘‘[T]he Court can

8

Anzilotti 1930, 868–869. Genet 1938, 174–175. 10 Rosenne 2000, 458. 9

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only decide claims that come within its jurisdiction’’—and means that the counterclaim ‘‘must come within the jurisdiction of the Court as is established for the particular case’’. However, he appears to consider that this position applies only to cases where the jurisdiction of the Court has been established in preliminary objections proceedings and concedes that ‘‘[H]ow the Court would deal with a counterclaim when its jurisdiction has not been established formally is an open question.’’11 Thirlway12 has suggested that the meaning of the jurisdiction requirement is that ‘‘… a jurisdictional title must exist such that the claim presented as counter-claim in proceedings already instituted could equally well have been brought before the Court by way of an application instituting separate proceedings …’’ Moreover, Salerno13 has stated that a counterclaim must rest on the same jurisdictional basis as the principal claim because this is required, first, by procedural connection between claim and counterclaim, secondly, the protection of the principal applicant against unpredictable counterclaims and, thirdly, the respect for the consensual nature of the Court’s jurisdiction. Furthermore, Murphy14 has taken the view that the Court would not be inclined to find jurisdiction on a counterclaim ‘‘resting on a treaty provision not already before the Court in the case.’’ Finally, Yee15 maintains by relying on the natural meaning of the text of Article 80 (1) of the Rules that ‘‘a counterclaim may rest upon any valid jurisdictional basis whether or not relied upon by the original claimant.’’ Although there is prima facie no express requirement that the requisite basis of consent to hear the counterclaim must be identical to the jurisdictional basis to adjudge upon the principal claim and the only fundamental restriction imposed upon a respondent intended to bring any outstanding claims it has against the principal applicant is the direct connection to the subject matter of the original claim, it is submitted that ‘‘jurisdiction’’ in Article 80 (1) of the Rules means the basis of consent of the parties with respect to the principal claim. The Court has consistently treated the consent of States to its jurisdiction as a matter of overarching importance.16 Therefore, whenever a dispute is submitted to the Court either by two States jointly or by one State unilaterally and this submission premises the Court’s jurisdiction on a specific basis, it is only within the parameters of

11

Rosenne 2000, 468. See also Rosenne 2001, 85; Rosenne 2006, 1234. Thirlway 1999, 202. 13 Salerno 1999, 366–368. 14 Murphy 2000, 17. 15 S. Yee 2006, 911. 16 The Court insists on being satisfied beyond any doubt that consent to its jurisdiction is present on the part of both litigant States. Instances of approaching this matter in a flexible manner have occasionally took place, as in the Nicaragua case, but they seem to constitute the exception rather than the rule. By contrast, the Monetary Gold principle is premised on this rigid approach to the existence of consent. In the East Timor case the Court applied the principle and declined to proceed to the stage of the Merits notwithstanding the allegation of Portugal that Australia had violated the right of self-determination of the people of East Timor, a right that the Court recognized giving rise to obligations erga omnes, including Australia. 12

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this basis that the Court’s jurisdiction is established. The selection of a particular basis of the jurisdiction of the Court is a matter of either necessity, for only a single such basis may exist, or judicial strategy, in case more than one basis exists. In any event once a particular basis of consent is opted for and upheld by the Court (whether proprio motu under Article 36 (6) of the Statute or as a result of preliminary objections proceedings) it defines the parameters of the Court’s jurisdiction. To hold otherwise would mean that a respondent could invoke any other basis of the jurisdiction of the Court and bring as counterclaim in the course of the same (namely, the original or principal) proceedings a claim it has against the applicant. Even though this contingency may in a strict sense conform to the rationale of counterclaims it appears to be contrary to their designation as an incidental matter to proceedings already pending. To hold otherwise would recognize to a counterclaimant respondent a right that the principal applicant does not possess: namely, to introduce additional grounds of the jurisdiction of the Court at any stage of the proceedings. Although, the Court has admitted this contingency on the part of the Applicant State, it appears from its jurisprudence that it would be allowed at an early stage of the proceedings and, even in this case, it would be far from certain that the Court would uphold it. In the Nicaragua (Preliminary Objections) case the Court upheld the introduction as an additional basis of its jurisdiction of the bilateral Treaty of Friendship, Commerce and Navigation (1956) by Nicaragua in its Memorial: … The Court considers that the fact that the 1956 Treaty was not invoked in the Application as a title of jurisdiction does not in itself constitute a bar to reliance being placed upon it in the Memorial. Since the Court must always be satisfied that it has jurisdiction before proceeding to examine the merits of a case, it is certainly desirable that the ‘legal grounds upon which the jurisdiction of the Court is said to be based’ should be indicated at an early stage in the proceedings, and Article 38 of the Rules therefore provides for these to be specified ‘as far as possible’ in the application. An additional ground of jurisdiction may however be brought to the Court’s attention later, and the Court may take it into account provided the Applicant makes it clear that it intends to proceed upon that basis, and provided also that the result is not to transform the dispute brought before the Court by the application into another dispute which different in character …17

Moreover, in the Bosnian Genocide (Provisional Measures) case the Court ruled that, on the one hand, an applicant cannot invoke additional grounds of jurisdiction by only reserving a right to amend or supplement its application, but on the other, an applicant could introduce additional grounds of jurisdiction on the basis of the requirements articulated in the Nicaragua (Preliminary Objections) case; still: … the Court thus concludes that, for the purposes of a request for indication of provisional measures, it should therefore not exclude a priori such additional bases of jurisdiction from consideration, but it should consider whether the bases relied upon may, in all the

17

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) (Preliminary Objections), ICJ Rep. 1984, 392, 426–427, para 80. (emphasis added).

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4 Admissibility of Counterclaims circumstances, including the considerations stated in the decision quoted above [the Nicaragua case] afford a basis on which the jurisdiction of the Court to entertain the Application might prima facie be established …18

By contrast, in the Legality of the Use of Force (Yugoslavia v. Belgium) and the Legality of the Use of Force (Yugoslavia v. The Netherlands) cases the Court adopted the opposite position. In these cases the plaintiff (Yugoslavia) invoked in its application as bases of the jurisdiction of the Court the Optional Clause (Article 36 (2) ICJ Statute) and Article IX of the Genocide Convention (1948). However, during the second round of the oral hearings on its request for indication of provisional measures it introduced as additional bases of jurisdiction Article 4 of the Convention of Conciliation, Judicial Settlement and Arbitration (1930) between the Kingdom of Yugoslavia and Belgium, and Article 4 of the Convention of Conciliation, Judicial Settlement and Arbitration (1931) between the Kingdom of Yugoslavia and The Netherlands.19 In its Orders the Court declined to admit these additional grounds of its jurisdiction: … the invocation by a party of a new basis of jurisdiction in the second round of oral argument on a request for the indication of provisional measures has never before occurred in the Court’s practice; … such action at this late stage, when it is not accepted by the other party, seriously jeopardizes the principle of procedural fairness and sound administration of justice; … in consequence the Court cannot, for the purpose of deciding whether it may or it may not indicate provisional measures in the present case, take into consideration the new title of jurisdiction which Yugoslavia sought to invoke on 12 May 1999 …20

Thus, it becomes clear that the principles of equality of the parties, procedural fairness and sound administration of justice make it highly unlikely that a counterclaimant respondent would be allowed to rely on a jurisdictional basis different from the one relied on by the principal applicant, unless the applicant itself introduces new grounds of jurisdiction that are upheld by the Court or the principal applicant does not object to the invocation of a different basis of jurisdiction by the counterclaimant party. To admit this right as a general proposition might widen the jurisdiction beyond what the Court has determined its scope to be either in a Preliminary Objections judgment or by applying Article 36 (6) of the Statute21; it would deprive in effect the jurisdiction of the Court of its essentially

18

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (Provisional Measures), Order of 13 September 1993, ICJ 1993, 325, 427, para 80. 19 Case Concerning Legality of the Use of Force (Yugoslavia v. Belgium) (Provisional Measures), ICJ Rep. 1999, 124, 130, para 14; Case Concerning Legality of the Use of Force (Yugoslavia v. The Netherlands) (Provisional Measures), ICJ Rep. 1999, 542, 548, para 14. 20 ICJ Rep. 1999, 124, 139, para 44; ICJ Rep. 1999, 542, 556–557, para 44. 21 Cf. Rosenne supra n. 10; Yee 2006, 911–912: ‘‘Article 80 (1) does not expand or contract the jurisdiction of the Court; it merely permits a counterclaim within the jurisdiction of the Court to be presented in the proceedings by the claimant’’; a restrictive interpretation of the jurisdiction requirement ‘‘would amount to a further restriction of Article 80 (1) and would displace the normal operation of jurisdictional principles.’’

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consensual nature; it would for all practical purposes supplant the original proceedings with new ones because the principal applicant would have the right to raise preliminary objections to the jurisdiction of the counterclaim brought on a different jurisdictional basis; and it may alter the character of the original proceedings into something different from what initially pursued, thus rendering dispute settlement before the International Court of Justice a highly unpredictable endeavor. This is the view adopted by the Court in the Bosnian Genocide (Counter-Claims) case: … Whereas the Respondent cannot use a counter-claim as a means of referring to an international court claims which exceed the limits of its jurisdiction as recognized by the parties …22

What is more, as long as the Court has established its jurisdiction it becomes redundant for a respondent State to seek another jurisdictional basis on which to premise its counterclaim. This is supported by the practice of counterclaimant States. They have consistently relied on the jurisdictional basis of the principal claim, while the principal applicant States, with the exceptions of Iran in the Oil Platforms case and Germany in the Jurisdictional Immunities case, have disputed only the existence of a ‘‘direct connection’’ with the subject-matter of the dispute rather than jurisdiction. The real issue is whether within the parameters of the same jurisdictional basis a respondent or the other litigant (in case of a special agreement) may present a counterclaim that may exceed the precise boundaries of the subject-matter of the dispute as they have been determined by the Court when it established its jurisdiction. It is submitted that this issue must be discussed by reference to the modes by which consent to the jurisdiction of the Court is expressed and to its practice with respect to the requirement of jurisdiction as it concerns counterclaims. It may be stated at the outset that the practice of the Court in this respect is very limited23 for, with the exception of the Oil Platforms and Jurisdictional Immunities cases, its jurisdiction to hear a counterclaim has not been disputed by the principal applicant. The present writer proposes to inquire into jurisdiction as a requirement of admissibility to hear a counterclaim by reference to the bases of expressing consent to the jurisdiction of the Court. Moreover, as the practice of the Court indicates, notably in the Oil Platforms case, the principal applicant’s objections to the jurisdiction of the Court to consider a counterclaim presented by the respondent are not treated as preliminary

22

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)) (CounterClaims), Order of 17 December 1997, ICJ Rep. 1997, 243, 257, para 31. 23 As Judge Cançado Trindade stated in his dissenting opinion in the Jurisdictional Immunities case, a review of the practice of the Court on the matter of counterclaims shows that such practice ‘‘is still in the making’’, Jurisdictional Immunities of the State (Germany v. Italy) (CounterClaim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/ files/143/16027.pdf, Judge Cançado Trindade (diss. op.), para 28.

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objections to be ruled upon at the stage of the counterclaims incidental proceedings, if jurisdiction has been established by the Court in a Preliminary Objections Judgment antedating the counterclaims proceedings. Rather, they are treated as objections to the jurisdiction not of a preliminary character and are joined to the Merits. This contingency raises the question of the nature of the requirement of jurisdiction in Article 80 (1) of the Rules: Must the Court satisfy itself that it has prima facie jurisdiction to allow the counterclaim in a manner analogous to the Provisional Measures proceedings? Or is it more than this, namely, that it must be essentially satisfied that it does have jurisdiction, even though it adopts the extraordinary step of doing this with finality at the stage of the Merits? By contrast, the position adopted by the Court in the Jurisdictional Immunities case indicates that in cases where an objection to the jurisdiction of the Court is raised for the first time with respect to a counterclaim then the Court treats it as a preliminary objection and disposes of it at the stage of counterclaims. Moreover, what is interesting is that the Court is called upon to determine its own jurisdiction not upon the initiative of the original respondent but the principal applicant a propos the counterclaim of the respondent. The end result of this reverse process remains, however, the same for the jurisdiction of the Court is a matter identical with respect to both claim and counterclaim. The present writer shall discuss this in the final sub-section on the requirement of jurisdiction.

4.1.2 Jurisdiction on Counterclaims from the Point View of the Bases of Expressing Consent The consent of States to the jurisdiction of the Court is established on the basis of any of the following grounds: (1) A special agreement or compromis (Article 36 (1) ICJ Statute) (2) A compromissory clause in a treaty or agreement in force (Articles 36 (1) and 37 ICJ Statute) (3) A declaration under the Optional Clause (Article 36 (2) and 36 (5) ICJ Statute) (4) The principle of forum prorogatum 4.1.2.1 Special Agreement or Compromis Two States may refer a specific dispute to the Court by concluding an agreement which most often takes the form of a treaty. In it they agree to have their dispute settled by the Court and they determine (in the sense of outlining) the subject-matter of the dispute. This may include the entirety or part of the dispute between those two States. The advantage of submitting a dispute to the Court by way of special agreement is precisely that the interested States may draft the agreement in such a way as to formulate the subject-matter of the dispute to include issues that they consider not too much affecting vital interests or do not arouse the sensitivities of

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domestic constituencies.24 Equally, if they wish an entire dispute to be settled with finality by the Court then they expressly state their intention in the agreement. It has been a matter of contention whether a counterclaim may be presented in the case of disputes submitted to the Court by way of special agreement. Judge Anzilotti has maintained that in cases submitted to the Court by way of special agreement there was no question of counter-claims but of reciprocal claims.25 This position appears to assume that every special agreement concluded between two parties to a dispute delineates with rigid precision these parties’ respective claims and by this feat it renders inadmissible as a matter of principle any further claim not included in the agreement.26 Indeed, the above view has influenced the revision of the Rules of the Permanent Court in 1936 and was maintained in the Rules of the present Court until 1978 in that counterclaims were allowed to be presented only in the event a dispute was submitted to the Court by way of application. This point of view is cogent, but it is submitted that it conveys only part of the picture. First, as a matter of principle, it is not excluded by the terms of Article 80 (1)27 and, at any event, this is a matter that depends on the terms of the special agreement whether a counterclaim may be raised by either of the parties.28 For it is not inconceivable that such an agreement may be formulated in broader terms if this reflects the will of the parties to have a multi-faceted dispute settled with finality by the Court. Thus, State A and State B conclude an agreement to have a dispute concerning the delimitation of the continental shelf between them to the Court. The area under delimitation is defined as ‘‘the area extending beyond the outer limit of each party’s territorial sea’’. Both State A and B have opposite coasts with the coast of State B fringed by a number of islands belonging as a matter of 24

This appears to constitute a particular aspect of the general question of States opting for a particular method of settlement to resolve particular disputes. See generally, Collier and Lowe 1999, 8–10. 25 PCIJ Ser. D No. 2 (Third Addendum) (1936), 109. 26 Thirlway 2001, 175 and n. 502, has expressed the view that in disputes submitted to the Court by special agreement ‘‘the two conditions of admissibility [of counterclaims, namely, jurisdiction and direct connection] will overlap or be no more than two expressions of the same idea … claims by each party against the other are in effect foreseen by the terms of the special agreement and it is artificial or meaningless to refer to some as ‘claims’ and some as ‘counter-claims’; their direct connection is obvious from their being part of the whole dispute as defined in the special agreement, which at the same time confers jurisdiction on them all … if a party attempts to bring in by way of counter-claim some matter not contemplated by the special agreement … such an attempt would fall foul automatically of both the two requirements for admissibility of counterclaims …’’; Thirlway 1999, 201. 27 Rosenne 2001, 85: ‘‘… the use of the term ‘other party’ implies that Rule 80 can apply whatever the basis of the Court’s mainline jurisdiction …’’ 28 Cf. Rosenne 2000, 475; Rosenne 2007, pp. 291–292. Rosenne takes the view that counterclaims may be presented under ‘‘framework agreements’’ such as the one concluded between Colombia and Peru in the context of the Asylum dispute. These are agreements that define a dispute in broad terms and the presentation of counterclaims may help, according to Rosenne, clarify the precise nature of the dispute.

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territorial sovereignty to State A by virtue of a treaty of peace concluded at the beginning of the twentieth century and numerous rocks and islets the territorial status of which has not been determined by that treaty. Is it not possible that State B could present a counterclaim in which it asserts territorial sovereignty over these rocks and islets and states that they constitute the baseline of its territorial sea? The formulation of the dispute to be settled by the Court in the special agreement is such that it does not appear to exclude a priori the presentation of this counterclaim, for if the outer limit of the territorial sea of one of the parties is contested then no delimitation of the continental shelf between them may be effected. A fortiori this is the case when the territorial status of these rocks and islets has been the object of a dispute between States A and B for a considerable period of time. Thus, the consent in the manner in which it was expressed with respect to the delimitation of the continental shelf between States A and B does not exclude the determination of title to territorial sovereignty if this a conditio sine qua non for addressing the subject-matter of the dispute. Secondly, the conclusion of a special agreement does not per se exclude the submission of a particular dispute to the Court by way of unilateral application. This is the case if the special agreement in the form of bilateral treaty or another informal ground of expressing consent (such as an exchange of notes, a joint communiqué, or the minutes of a meeting between the parties) either expressly provides or, at least, does not expressly exclude the unilateral recourse to the Court by either of the parties. Thus, in the Asylum case the consent to refer the dispute between Colombia and Peru to the Court was premised on a special agreement between the two States, the Act of Lima of 31 August 1949 [Article 1].29 Article 2 of the Act of Lima provided that the parties, having been unable to agree on the terms of referring the dispute to the Court jointly, they agreed that either of them may institute proceedings by way of application.30 Thus, it is important to establish both that the special agreement constitutes an expression of consent to the jurisdiction of the Court and the manner by which the dispute is submitted to the Court. In the Aegean Sea Continental Shelf case Greece instituted proceedings against Turkey by way of unilateral application relying in part on a joint communiqué issued after a meeting between the Prime Ministers of both States in Brussels on May 31st, 1975. The crucial passage in the communiqué read: ‘‘They [the two Prime Ministers] decided that those problems [between the two countries] should be resolve peacefully by means of negotiations and as regards the continental shelf of the Aegean Sea by the International Court in The Hague.’’ Greece argued that this passage constituted an autonomous basis of consent to the jurisdiction of the Court and established the obligation of the parties to conclude an agreement to refer the dispute to the Court jointly, failing which either of the parties had the right to submit the dispute to the Court by way of unilateral application. By contrast, Turkey asserted that the joint communiqué did not constitute a basis of consent to the jurisdiction of the Court and

29 30

The Asylum case (Colombia/Peru), ICJ Rep. 1950, 266, at 268. Cf. Rosenne 2001 supra n. 27. Ibid.

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in any event did not introduce an obligation to have recourse to the Court without a compromis or gave the right of unilateral application. The Court interpreted the text of the Brussels communiqué, evaluated the subsequent practice of the parties and ruled that the joint communiqué was merely an ‘‘agreement to agree’’ the terms of a compromis to refer the dispute to the Court and therefore not a basis of consent to its jurisdiction.31 Moreover, in the Qatar-Bahrain case the issue that the Court faced was whether the two parties had concluded an agreement that allowed either of them to institute proceedings against the other unilaterally. The consent to the jurisdiction of the Court as such was not contested. The Court interpreted the minutes of a tripartite meeting between Qatar, Bahrain, and Saudi Arabia in Doha in December 1990 (the Doha Minutes) and ruled on the basis of Article 31 of the Vienna Convention on the Law of Treaties (the ordinary meaning of the terms) that either of the parties had a right to refer the dispute to the Court unilaterally.32 In the first phase of the Jurisdiction and Admissibility stage of the dispute and after having been established by the Court that there had been an agreement between the parties to submit the dispute to the Court, Bahrain argued that Qatar submitted only part of the overall dispute that both States had agreed to refer to the Court for settlement; Qatar stated that this alleged irregularity could be amended if Bahrain either made a separate application or presented a counterclaim.33 The Court took note of this argument and did not in principle overrule it; it, however, ruled that on the basis of the agreement reached the dispute had to be submitted to it in its entirety and it offered the parties the opportunity to submit the whole of the dispute.34 Thirdly, Judge Anzilotti’s position appears to be heavily influenced by the institution of ad hoc arbitration between States, where the entire process has been under the close control of the parties to the dispute. Thus, it introduces the expectation that the dispute to be settled by an arbitral tribunal or a Claims Commission is to be so strictly and precisely delineated that the ultimate result is indeed a set of reciprocal claims excluding the possibility of presenting any counterclaims. However, as has been seen supra the raising of counterclaims in the context of ad hoc arbitration may not be ruled out in all instances.35 Moreover, the treatment of a special agreement concerning arbitration as identical to a special agreement to submit a dispute to the International Court of Justice appears to fail to take into consideration the institutional character of the Court and its independent power to be the ultimate arbiter of its own jurisdiction in accordance with Article 36 (6) of the Statute. For whatever the terms of a special agreement are and

31 The Aegean Sea Continental Shelf Case (Greece v. Turkey) (Jurisdiction and Admissibility), ICJ Rep. 1978, 3 at 37–44, paras 94–108. 32 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility), ICJ Rep. 1995, 6, at 17–21, paras 32–40. 33 ICJ Rep. 1994, 112, at 124, para 36. 34 Id., 124–125, paras 37–38. 35 See supra Chap. 2.

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although they may be very strict, they are not informed by an a priori element of absolute control over an institutional body as the Court.

4.1.2.2 Compromissory Clause in a Treaty in Force A compromissory clause is a provision in a treaty or agreement in force by virtue of which any dispute arising between two contracting parties concerning the application or interpretation of the treaty shall be submitted to the International Court of Justice. A contracting party may restrict the application of the compromissory clause or exclude it entirely by making a reservation to it. For instance, in the Legality of the Use of Force (Yugoslavia v. Spain) case the Court found that Spain had made a reservation to Article IX of the Genocide Convention (1948)— the compromissory clause—by virtue of which it excluded its application in toto.36 Moreover, in the Legality of the Use of Force (Yugoslavia v. USA) case the Court found that the United States had made a reservation to Article IX of the same Convention which made the application of the compromissory clause conditional upon the ‘‘specific consent of the United States in each case’’.37 Furthermore, a compromissory clause constitutes an independent basis of expressing consent to the Court’s jurisdiction even though it may be phrased identically with the Optional Clause (Article 36 (2) of the Statute. In this case if both litigant States to a dispute are contracting parties to both the treaty and the Optional Clause and the declaration of either of them under the latter contains reservations to the jurisdiction of the Court whereas there are no reservations to the compromissory clause, the unqualified acceptance of the jurisdiction of the Court subsists and is not affected by any reservations under the Optional Clause. In the Nicaragua v. Honduras (Preliminary Objections) case Nicaragua established the jurisdiction of the Court by relying on Article XXXI of the Pact of Bogota by virtue of which the High Contracting Parties recognized in accordance to Article 36 (2) of the ICJ Statute in relation to any other American State the jurisdiction of the Court ipso facto and without the need for any special agreement for as long as the pact remained in force. Honduras had accepted the jurisdiction of the Court by virtue of a declaration under Article 36 (2) of the Statute of the Court (the Optional Clause) that included reservations to the jurisdiction of the Court.38 Honduras argued that the scope of the acceptance of the jurisdiction of the Court by a State party under Article XXXI of the Pact of Bogota which at the same time had made a declaration under the Optional Clause had to be evaluated by reference to scope of the acceptance of the Court’s jurisdiction under the Optional Clause. The Court did 36

Legality of the Use of Force Case (Yugoslavia v. Spain) (Provisional Measures), ICJ Rep. 1999, 761, at 773, paras 29–30. 37 Legality of the Use of Force Case (Yugoslavia v. USA) (Provisional Measures), ICJ Rep. 1999, 961, at 923, paras 21–25. 38 The declaration of Honduras was filed on 20 February 1960 and was amended on 28 May 1986 by inserting reservations to the jurisdiction of the Court.

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not accept the Honduran contention and ruled that Article XXXI of the Pact constituted an independent basis of expressing consent to the jurisdiction of the Court by virtue of Article 36 (1) of the Statute of the Court and was not in any way conditioned or affected by the terms of the declarations of the American States that existed alongside this compromissory clause.39 The issue of presenting counterclaims in disputes concerning the application or the interpretation of a treaty in the event the jurisdiction of the Court is premised on the compromissory clause of the treaty arose in the Oil Platforms case and in the Jurisdictional Immunities case. Moreover, the position adopted by the Court in Oil Platforms on the US counterclaim and the objections to this position articulated by Judge Higgins in her separate opinion are relative to the question of the jurisdiction of the Court in general under any of the bases expressing consent. Iran instituted proceedings against the USA on 2 November 1992 on the basis of a dispute arising from the attack and destruction by the US Navy of three oil platforms operated for commercial purposes by the National Iranian Oil Company during the Iran-Iraq war in October 1987 and April 1988. Iran asserted that the US acts violated the bilateral Treaty of Amity, Economic Relations and Consular Rights of 1955 between the USA and Iran and in its application asserted as basis of the jurisdiction of the Court Article XXI (2) of the Treaty: Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means.

The USA raised a preliminary objection to the jurisdiction of the Court which was rejected in the Judgment of 12 December 1996 in which the Court ruled that: … it has jurisdiction on the basis of Article XXI, paragraph 2, of the Treaty of 1955, to entertain the claims made by the Islamic Republic of Iran under Article X, paragraph 1, of that Treaty …40

In 1997 the USA filed its Counter-Memorial that included a counterclaim against Iran by virtue of which the USA requested the Court to adjudge and declare that: first, ‘‘in attacking vessels, laying mines in the Gulf and otherwise engaging in military actions in 1987–1988 that were dangerous and detrimental to maritime commerce, the Islamic Republic of Iran breached its obligations to the United States under Article X of the 1955 Treaty’’ and, secondly, Iran was liable to reparation to the USA for breach of the 1955 Treaty. At the same time the United States informed the Court that its request to Iran to settle the claim for reparation by negotiations was countered by an invitation on the part of Iran to enter into negotiations to settle ‘‘a broader range of subjects’’ that the United States had

39

Case Concerning Border and Transborder Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility), ICJ Rep. 1988, 69, at 82–88, paras 29–41. 40 Oil Platforms (Iran v. USA) (Preliminary Objection), ICJ Rep. 1996, 803, 820, 821, para 53 and operative para (2) of the dispositif.

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rejected Iran’s proposal and therefore the counterclaim could not be settled through negotiations. In this manner the United States alluded to the compromissory clause of Article XXI (2) of the 1955 Treaty in order to establish the jurisdiction of the Court to hear the counterclaim. Moreover, the United States appears to have taken the view that the issue of jurisdiction was beyond any doubt for in a communication to the Court on 20 October 1997 it stated that the submissions of the parties to be considered by the Court were to be limited to the connection of the counterclaim to the principal claim in accordance with Article 80 (3) of the Rules. Iran objected to the view expressed by the United States and counter-suggested that it was open to it to dispute that the US counterclaim met the conditions stipulated in Article 80 (1) of the Rules. In particular, Iran raised objections to the US counterclaim coming under the jurisdiction of the Court. First, Iran argued that the US counterclaim was ‘‘of a sweeping and general character’’ because it asserted violations of Article X (in particular, paragraphs 2–5) and was not restricted to Article X (1) of the 1955 Treaty which the Court ruled in its Preliminary Objections Judgment of 1996 that it constituted the subject-matter of the dispute. More specifically, Iran asserted that the United States had attempted to widen the dispute to provisions of the 1955 Treaty that were not the subject of the main proceedings and concerned the general conduct of Iran during the last 2 years of the Iran-Iraq war. Secondly, Iran argued that the seven attacks that were stated in the US counterclaim were not committed against US but third State vessels and therefore fell outside the scope of the 1955 Treaty. The United States retorted that the objections of Iran to the jurisdiction of the Court aiming at confining the US counterclaim within the frame of Article X (1) of the 1955 Treaty were a matter to be eventually decided by the Court at a later stage (the Merits stage) when the Court would decide on the interpretation and application of this provision. Moreover, the United States argued that Article X, paragraphs 2–5 as the subject-matter of its counterclaim was pertinent even though these provisions were ‘‘not limited to vessels involved in trade between the United States and Iran’’. Furthermore, the United States asserted that the exclusion of warships in paragraph 6 of Article X was not applicable to paragraph 5 of the same Article and, therefore, the attacks against US warships escorting US commercial vessels had the effect of ‘‘endangering and denying access to those commercial vessels as well.’’ In its Order the Court ruled … the counter-claim presented by the United states alleges attacks on shipping, the laying of mines, and other military actions said to be ‘dangerous and detrimental to maritime commerce’; … such facts are capable of falling within the scope of Article X, paragraph 1, of the 1955 Treaty as interpreted by the Court; and… the Court has jurisdiction to entertain the United States counter-claim in so far as the facts alleged may have prejudiced the freedoms guaranteed by Article X, paragraph 1; …41

41

Oil Platforms (Iran v. USA) (Counter-claim), Order of 10 March 1998, ICJ Rep. 1998,190, 204, para 36.

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The interpretation given by the Court to Article X (1) in its 1996 Judgment on Jurisdiction was that, first, the term ‘‘commerce’’ meant ‘‘commercial activities in general’’ and, secondly, that the above provision protected ‘‘freedom of commerce.’’42 The above ruling of the Court was criticized by Judge Higgins in her Separate Opinion to the Order. Judge Higgins began by making an observation of a general character concerning the requirement that a counterclaim must come within the jurisdiction of the Court: … It may thus be that while Article X, paragraph 1, is the sole basis of jurisdiction identified by the Court, paragraphs 2–6 still have relevance to the task of ascertaining the freedoms guaranteed under paragraph 1 … …the inarticulate assumption that the jurisdictional basis established for a claim necessarily is the only jurisdictional basis for, and sets the limits to, a counter-claim, is open to challenge. In both civil and common law domestic systems, as in the Rules of the Court, a defendant seeking to bring a counter-claim must show that the Court has jurisdiction to pronounce upon them. But it is not essential that the basis of jurisdiction in the claim and in the counter-claim be identical. It is sufficient that there is jurisdiction. (Indeed, were it otherwise, counter-claims in, for example, tort could never be brought, as they routinely are, to actions initiated in contract… There is nothing in the Rules or practice of the Court to suggest that the very identical jurisdictional nexus must be established by a counter-claimant. The travaux préparatoires to the various formulations of what is now Article 80 of the Rules of the Court contain no suggestion whatever that this was thought of as a requirement… Attention was focused on the one hand on the required ‘‘connection’’ and on the other on certain matters relating to jurisdiction, notably (in 1922) whether counter-claims were limited to compulsory jurisdiction cases and whether objections to counter-claim jurisdiction would be allowed. At no stage was it even proposed, much less accepted, that the jurisdictional basis for the claim and the counter-claim must be identical. Nor does the wording of Article 80, paragraph 1, suggest this. It requires that a counterclaim ‘‘comes within the jurisdiction of the Court’’, not that it was ‘‘within the jurisdiction established by the Court in respect of the claims of the applicant’’. Of course, the very requirement of a direct connection with the subject-matter of the claim is likely to bring a counter-claimant into the same general jurisdictional area, i.e., the same treaty may well form the basis of the claimed jurisdiction for the bringing of a counter-claim. But that is all. The view of the Committee for the Revision of the Rules, when deciding to retain the phrase ‘‘and that it comes within the jurisdiction of the Court’’ from the old Rule, was that the phrase meant that a counter-claim could not introduce a matter which the Court would not have had jurisdiction to deal with had it been the subject of an ordinary application to the Court. And that remains the position under Article 80 of the present Rules of Court … The correct and necessary procedure in the present case would have been for the Court to enquire whether it would have had jurisdiction to deal with the claims of the United States,

42

Oil Platforms (Iran v. USA) (Preliminary Objection), ICJ Rep. 1996, 803, 819, paras 49–50.

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The above passage from Judge Higgins’ separate opinion may reasonably convey the message that a counterclaimant respondent may invoke a jurisdictional basis for its counterclaim, different from the one invoked by the principal claimant and upheld by the Court. However, this is not the case; for what Judge Higgins really suggests later in her opinion is that a counterclaimant may rely on the same jurisdictional basis as the applicant but brings claims that do not fall exactly under the same subject-matter of the principal claim as specified by the Court. In other words, the parameters of a basis of expressing consent to the jurisdiction of the Court may be wide or flexible enough to allow a counterclaimant State the possibility to bring on the same jurisdictional basis a claim that does not fall under exactly the same subject-matter; but this is a question that depends on the specific jurisdictional basis invoked by the principal applicant. The relevant passages read: … Implicit in the Court’s unexplained reliance on Article X, paragraph 1, as the apparent sole basis of jurisdiction is the thought that a counter-claim can only arise out of an initial claim, and therefore cannot be on a wider jurisdiction basis than the initial claim. But it is not a question of a counter-claimant being able to ‘‘expand’’ the jurisdiction initially established by the Court. The Court first establishes its jurisdiction by reference to the facts as alleged by the claimant. But that does not mean to say that it may not have jurisdiction in relation to allegations brought by the defendant under other clauses of the same treaty. … What matters in a counter-claim is the jurisdiction mutually recognized by the parties under the Treaty—not the jurisdiction established by the Court in respect of particular facts initially alleged by the claimant … … If an initial claim could have been brought [by the United States] claiming breaches of these provisions [Art. X, paragpaphs 2–5] that cannot be taken away by virtue of the fact that the Court has already established its jurisdiction, in respect of another provision (Art. X, para 1) in respect of claims articulated by Iran. This would in effect revise treaty jurisdiction ‘‘as recognized by the parties’’ through a judicial finding on jurisdiction relating to an initial claimant under a particular provision. If, arguendo, the treaty provisions of Article X, paragraphs 2–5, would have founded jurisdiction in an initial claim the presumably the United States could still bring a claim de novo even if it is not allowed to do so as a counter-claim under the Court’s Order. Such a result is hardly consistent with the stated purpose of counter-claims, namely, convenience of court management. It underlines that what is required under Article 80, paragraph 1, of the Rules is that a counter-claim ‘‘comes within the jurisdiction of the Court’’ by reference to the normal jurisdictional principles rather than by reference to the particular basis of jurisdiction that the initial claimant happens to have relied on in relation to its own particular facts …44

43

Oil Platforms (Iran v. USA) (Counter-claim), Order of 10 March 1998, ICJ Rep. 1998, 190, pp 218–219 (sep. op. Judge R. Higgins) [emphasis in the original]; contra id., 234, Judge ad hoc Rigaux (dissenting opinion): ‘‘The Rules of the Court do not contemplate any extension of jurisdiction in favour of the admissibility of the counter-claim: to be admissible, the counterclaim must fall within the jurisdiction of the court before which the original claim is pending.’’ 44 Id., 220–221.

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It is submitted that the points raised by Judge Higgins constitute the better view on the issue and may be applied under all bases of expressing consent to the Court’s jurisdiction. Thus, if a dispute between two States is brought before the International Court by establishing consent to the jurisdiction of the Court on the basis of a treaty provision and the dispute falls under the terms of the treaty, there is nothing to prevent the respondent State from raising a counterclaim alleging a violation by the principal applicant of a provision other than the one for the breach of which the latter instituted proceedings before the Court. This is supported by the practice of the Permanent Court. In the Chorzów Factory case the PCIJ ruled that the counterclaim of Poland which was premised on Article 256 of the Versailles Peace Treaty was admissible although the principal claim of Germany was submitted to the Court under the Geneva Convention on Upper Silesia, the compromissory clause in which constituted the basis of the Court’s jurisdiction. The decision of the Permanent Court on Poland’s counterclaim may lead to the conclusion that if a counterclaim is admissible even though it is premised on a treaty other than the one constituting the basis of the subject-matter jurisdiction of the Court, then it may be possible, as a matter of principle, to present a counterclaim under other provisions of the same treaty. The crucial factor in this instance is not a consent to the jurisdiction of the Court but the existence of ‘‘direct connection’’ between the counterclaim and the subject-matter of the principal claim. The jurisdiction of the Court already exists by virtue of the compromissory clause that concerns any dispute with respect to the application and interpretation of the treaty. To restrict the jurisdictional basis notwithstanding the requisite consent already adhered to only to the precise provision of the treaty of which the applicant alleges a violation by the respondent subverts the entire rationale of the consensual basis of the Courts jurisdiction on the basis of a compromissory clause by subjecting it to an unwarranted conditioning process by the requirement of ‘‘direct connection’’. It means in effect that for the purposes of a particular dispute concerning the application or interpretation of a treaty the compromissory clause allows a contracting party to have recourse to the Court about a dispute with another party to the treaty and subsequently to succeed in limiting the effect of the compromissory clause only to the particular facts it alleges that gave rise to the dispute. This would in turn result in the preclusion of the respondent contracting State from bringing a counterclaim under the same compromissory clause about a dispute premised on a different set of facts. The outcome in this instance is that the particular facts constituting the basis of the principal claim and restricting the subject-matter jurisdiction of the Court to a particular provision of the treaty are elevated to be the determining factor of direct connection which in turn supersedes jurisdiction as a requirement for the admissibility of counterclaims. However, both jurisdiction and ‘‘direct connection’’ are of equal value and there is nothing in Article 80 (1) to suggest a hierarchical relation between them. Moreover, the implied restriction on a respondent to present counterclaims beyond the subject-matter of the dispute covered by the jurisdiction of the Court as determined in a particular case amounts to a deprivation of right, namely, the right

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of a contracting party to a treaty to seize the Court and seek judgment against another contracting party for a breach of a treaty or an adverse interpretation of its provisions and such a deprivation must not be presumed as being immediately and absolutely effective. Indeed, in the context of declarations under the Optional Clause, the Court has in the Cameroon v. Nigeria (Preliminary Objections) case ruled that the termination of a declaration could not have immediate effect because the other States accepting the Court’s jurisdiction under the same basis would be deprived of a vested right.45 In the context of compromissory clauses, the restriction of the jurisdiction of the Court concerning the admissibility of a counterclaim to the jurisdiction upheld in relation to the facts alleged by the principal applicant would render the entire faculty of counterclaims devoid of much, if any, of its significance: The respondent State would not be allowed to present a counterclaim alleging the violation of another provision of the same treaty while it would have the right to submit the same dispute to the Court by way of a separate application. At any event, in Oil Platforms, the Court has adopted a very restrictive approach that appears to have had an impact on the attitude of the counterclaimant respondent. At the Merits stage of Oil Platforms the Court has dealt with the preliminary objections of Iran to the jurisdiction and admissibility of the US counterclaim. The third preliminary objection of Iran contended that ‘‘the United States counter-claim extends beyond Article X, paragraph 1, of the 1955 Treaty, the only text in respect of which the Court has jurisdiction, and that the Court cannot therefore uphold any submissions falling outside the terms of paragraph 1 of that Article.’’46 The Court rejected this objection because in its final submissions the United States ‘‘substantially narrowed the basis of its counter-claim’’ restricting it to Article X (1) of the 1955 Treaty and, consequently, bringing it in line with the Court’s rulings both in the 1996 Preliminary Objections Judgment and the 1998 Counterclaims Order.47 At the same time there is no reason to withhold criticism from what at present constitutes no more than an indication, as opposed to consistent practice, of the attitude of the Court with respect to jurisdiction. For, in addition, the Court is prepared to adopt the opposite approach in relation to ‘‘direct connection’’. In the Congo v. Uganda (Merits) case it has been dealt with an objection to admissibility raised by the DRC to Uganda’s second counterclaim concerning the attacks on the Embassy of Uganda in the Congolese capital. The DRC maintained that the counterclaim failed to meet the ‘‘direct connection’’ criterion because Uganda attempted to enlarge the subject-matter of the dispute beyond the context of the use of force by invoking for the first time the

45

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Jurisdiction and Admissibility), ICJ Rep. 1998, 275, at 295, para 34. 46 Case Concerning Oil Platforms (Iran v. USA) (Merits), Judgment of 6 November 2003, ICJ Rep. 2003, 161, at 211, para 111. 47 Id., 211–212, para 111.

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1961 Vienna Convention on Diplomatic Relations in its Rejoinder.48 The Court rejected the objection and ruled that ‘‘[A]s the jurisprudence of the Court reflects, counter-claims do not have to rely on identical instruments to meet the ‘connection’ test of Article 80.’’49 Finally, in the Jurisdictional Immunities case the Court appears to move away from the very strict position adopted in Oil Platforms. In Jurisdictional Immunities the Court has dealt with its jurisdiction for the first time as a result of the objection of Germany with respect to the counterclaim of Italy. The Court rejected this counterclaim by focusing on the terms of the compromissory clause and its temporal limitation (Articles 1 and 27 (a) of the 1957 European Convention) rather than the precise parameters of the subject-matter of the dispute formulated by Germany in its unilateral application. Thus, it is submitted that by implication the Court appears to indicate that, absent a prior determination of its jurisdiction in a Preliminary Objections Judgment, this is to be evaluated on the basis of the parameters of consent in the compromissory clause and not of the coincidence of fact in the principal claim and counterclaim.

4.1.2.3 The Optional Clause The Optional Clause gives the right to a State to accept the compulsory jurisdiction of the Court without the requirement of a special or other agreement in relation to any other State accepting the same obligation and on the basis of reciprocity.50 The acceptance of the jurisdiction of the Court on this basis is realized by way of a declaration which is communicated to the Secretary General of the United Nations by the State making it. This declaration is subsequently communicated by the Secretary General to the other member-States of the United Nations and it receives wide publicity. In the Right of Passage case the Court ruled that a declaration under the Optional Clause establishes a contractual bond which takes effect immediately upon the communication of the declaration to the UN Secretary General and not the notification to the respondent State.51 By contrast, as the Court ruled in the Nicaragua (Preliminary Objections) case and the Cameroon v. Nigeria (Preliminary Objections) case, the termination of the declaration does not have immediate effect and the lapse of reasonable time is required for this to happen. Immediate effect of the termination of a declaration is possible only if it is expressly reserved by the terms of the declaration. The reason for this is that by withdrawing its declaration under the Optional Clause a State deprives the rest of

48

Case Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda) (Merits), Judgment of 19 December 2005, ICJ Rep. 2005, 168, at 274, para 322. 49 Id., 275, para 326. 50 See Article 36 (2) of the ICJ Statute. See also Article 36 (5) of the ICJ Statute. 51 Case Concerning Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections), ICJ Rep. 1957, 125, at 146–147.

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the parties to the Clause of a vested right to have recourse to the Court in order to have a dispute settled.52 Moreover, the acceptance of the jurisdiction of the Court under the Optional Clause may be either unqualified, namely, for every type of dispute, or qualified, that is for specific categories of disputes excluding other classes of disputes by making reservations ratione personae, ratione temporis, and ratione materiae.53 An example of an unqualified acceptance of the jurisdiction of the Court under the Optional Clause is the declaration of Haiti of 4 October 1921: On behalf of the Republic of Haiti, I recognize the jurisdiction of the Permanent Court of International Justice as compulsory.54

An example of a qualified declaration accepting the jurisdiction of the Court under the same basis is that of India which contains no less than twelve reservations excluding wide categories of disputes from the Court’s jurisdiction.55 The reservations to the jurisdiction of the Court are opposable to the other party on the basis of reciprocity and this means that the jurisdiction of the Court is established on the basis of the narrower of the two declarations accepting its jurisdiction. The Optional Clause offers the requisite jurisdictional basis for both the principal claim and the counterclaim to the extent of acceptance reflected in the respective declarations of the parties to the dispute. Thus, in a litigation premised on unqualified declarations of both parties the jurisdictional basis is wide to allow for the presentation of any counterclaim provided that direct connection with the subject-matter of the principal application is proven. By contrast, in the case where the jurisdiction of the Court is based on declarations that are qualified by reservations a counterclaim is not allowed if it falls within the ambit of a reservation. In other words, if a reservation precludes the respondent from bringing its claim by way of a separate application it equally precludes the presentation of the same claim as counterclaim. Therefore, the only available avenue to a principal applicant to oppose the respondent’s counterclaim if jurisdiction is established (or, at least, not disputed) is to prove before the Court that no direct connection exists. Thus, in the Congo v. Uganda (Counter-Claims) case Congo, the principal Applicant did not dispute that the three counterclaims presented by Uganda fulfilled the jurisdictional condition stipulated in Article 80 (1) of the Rules.56 By contrast, it strongly opposed the counterclaims of Uganda with respect to the requirement of direct connection. In the same case Judge ad hoc Verhoeven stated in a Declaration to the Order of the Court that:

52

See loc. cit. supra n. 45. Reservations ratione personae seek to exclude disputes with specific States. Reservations ratione temporis concern the time the dispute or the facts giving rise to it emerged and reservations ratione materiae are relative to the subject-matter of the dispute. 54 See International Court of Justice Yearbook 2002–2003, No 57, 141. 55 See id., 143–145. 56 In this case the jurisdiction of the Court was established on the basis of the Optional Clause. 53

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…it is a specific feature of the International Court of Justice that its jurisdiction has to date been purely voluntary. … There is thus a possibility that the Court, absent agreement, might not be able to assume jurisdiction tomorrow in respect of a claim of which it is seized today by a way of counter-claim. Are we accordingly to conclude that the Court should adopt a particularly ‘‘liberal’’ approach when ruling on the admissibility of a counter-claim and, in particular, on the requirement that the counter-claim be directly connected to the subject-matter of the principal claim? I seriously doubt it. It is true that the peaceful settlement of disputes could be enhanced by it such an approach. However, the risk is that it would encourage States to avoid a court which springs too many ‘‘surprises’’ on them. Further, the internal logic of a system of voluntary jurisdiction undoubtedly requires—irrespective of any considerations of jurisdictional policy— particular rigor in regard to evaluation of the connection which the counter-claim must have with the principal claim if it is not to be ruled inadmissible…57

The above view appears to imply that the lack of flexibility that informs the examination by the Court of its jurisdiction must also be applied to the evaluation of the direct connection requirement. This position seems to have been expressed in relation to the Court’s ruling that Uganda’s second counterclaim (concerning the attacks on Uganda’s Diplomatic Mission in the Congolese capital Kinshasa, Ugandan diplomatic staff and nationals) was admissible. One may discern an attempt in Judge Verhoeven’s Declaration to establish a link between the jurisdiction of the Court and direct connection, in the sense that the latter may condition or affect the extent of the former in relation to the counterclaim. What in effect the learned Judge’s Declaration conveys is that whenever the Court examines the direct connection requirement it must do so having in mind that consent is the basis of jurisdiction. In other words, that any objections to the direct connection of a counterclaim to the subject-matter of the dispute has direct bearing on the extent of the jurisdiction of the Court in the specific proceedings as perceived by the objecting litigant. Thus, the determination of its jurisdiction by the Court on the basis of the facts invoked by the principal applicant is perceived as final and it is only by reference to these facts that direct connection is to be examined. In the Congo v. Uganda context this would imply that the Court would have had to restrict its jurisdiction only to facts relative to the use of force, military occupation, and violation of the human rights of Congolese nationals in the regions of the Congo specifically identified by it and evaluate direct connection only with respect to this factual framework. Therefore, the extension of the factual complex to be evaluated for ‘‘direct connection’’ so as to include alleged acts directed against the Ugandan Embassy in the capital of the State (namely, thousands of miles away from the areas identified by the Congo as the theatre of Uganda’s alleged violations of the law) would exceed the factual parameters of the Court’s jurisdiction. This would have as far-reaching effect the reluctance of States to submit disputes to the Court for fear that a prospective respondent may present counterclaims premised on facts different from those alleged by the applicant in relation to the jurisdiction of the Court. 57

Case Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda) (Counter-Claims), Order of 29 November 2001, ICJ Rep. 2001, 660, 684–685.

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It is submitted that the concern expressed to this effect is misplaced. It is true that the jurisdiction of the Court is based on consent. However, in the context of the Optional Clause this means consent which is expressed in advance to have any dispute or certain categories of disputes settled by the Court. This includes both the claims brought to the attention of the Court by the principal applicant and the counterclaims that the respondent may present. The direct connection requirement, which as will be seen in the relevant section infra, is based on both connection in fact and law and aims at restricting the faculty of presenting any counterclaim. Once there is consent to the jurisdiction of the Court then a counterclaim by the respondent shall be ruled upon as admissible if it is connected in fact and law with the subject-matter of the principal claim. But, as the Court has ruled, connection in fact does not mean connection to identical facts invoked by the principal applicant; it means forming part of the same factual complex, a term flexible enough to include facts giving rise to a counterclaim by the respondent other than those identified in the principal claim.58

4.1.2.4 The Principle of Forum Prorogatum The operation of the principle of forum prorogatum is of particular importance in the case of presenting counterclaims. For there may be cases where the counterclaimant respondent brings by way of counterclaim a claim that rests on an expanded invocation of the same jurisdictional basis on which the principal claim is premised.59 There may also be cases where the jurisdiction of the Court to entertain the principal claim may rest on the principle of forum prorogatum itself. In this case the question arises whether the respondent may raise a counterclaim establishing the jurisdiction on the same basis provided that the requirement of direct connection is present. Before addressing these issues the present writer shall review the stance adopted toward the principle in the jurisprudence of the International Court. Sir Hersch Lauterpacht60 has described the principle of forum prorogarum in these terms: … Exercise of jurisdiction by virtue of the principle of forum prorogatum takes place whenever, after the initiation of proceedings by joint or unilateral application, jurisdiction is exercised with regard either to the entire dispute or to some aspects of it as the result of an agreement, express or implied, which is given by either or both parties and without which the Court would not be in a position to exercise jurisdiction. …

58

See infra Sect. 4.2 of this Chapter. See also supra the discussion of Jurisdictional Immunities in the context of compromissory clauses. 59 Contra Salerno 1999, 368, where the author maintains that forum prorogatum is not sufficient to transform the autonomous character of the Court’s jurisdiction with respect to the principal claim. 60 Lauterpacht 1958, 103. [footnote omitted].

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… For, in conditions in which the obligatory jurisdiction of the Court operates by way of exception rather than otherwise, the principle of forum prorogatum often makes possible the exercise of or submission to the jurisdiction of the Court through a method less formal than express acceptance of it. Moreover, inasmuch as it provides some justification for initiation of proceedings in circumstances in which the initial absence of jurisdiction is apparent—and often admitted—it may, in some cases, pave the way for the acceptance of jurisdiction by the party to which an invitation is made in this way …

Forum prorogatum is a principle of municipal law according to which the jurisdiction of a court may be extended by way of agreement of the parties to cover matters that would otherwise fall beyond it.61 While in municipal law the principle operates to extend the already existing jurisdiction of a Court, on the international plane, and in particular before the International Court, it has a wider function: it establishes the jurisdiction of the Court in cases where no other basis of expressing consent to it exists. In the words of Judge M. Bedjaoui, former President of the Court: … The judges of The Hague have in reality conferred an added value upon the traditional concept of forum prorogatum, by reason of the non-binding character of the jurisdiction of the Court. This means that forum prorogatum possesses, in the international legal order, a broader content than in the internal legal order. … [It] does not relate to a mere extension of a—already existing—jurisdiction of the Court but serves as basis for it. In other words the forum prorogatum serves here … to ‘regularize’ the jurisdiction of the international tribunal a posteriori …62

Moreover, forum prorogatum constitutes an informal basis of consent to the jurisdiction of the Court. This is consonant with Article 36 (1) of the Statute of the Court that provides that the Court has jurisdiction upon all cases that the parties ‘‘refer to it’’, without specifying the means by which this referral is to take place. It is also consonant with Article 40 (1) of the Statute that provides that the Court may be seized by special agreement or application which must indicate the parties and the subject of the dispute, not the precise ‘‘legal provision on which the Applicant State claims to found the jurisdiction of the Court.’’63 Finally, Article 38 (2) of the Rules of the Court requires a State submitting a dispute to the Court by application to specify as far as possible (not precisely) the basis on which the applicant establishes the jurisdiction of the Court. Thus, consent to the jurisdiction of the Court may be established on the basis of the conduct of a State or even tacitly, but consent established in this manner must be unequivocal and indisputable. As the Permanent Court ruled in the Rights of Minorities in Polish Upper Silesia (Minority Schools) case:

61

See ‘‘The Forum Prorogatum Before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism’’, Address delivered by the President of the ICJ to the Sixth Committee of the General Assembly on 4 November 1996, ICJ Yearbook 1996–1997, No 51, 216, at 217. 62 Id., 218. 63 Id., 221.

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4 Admissibility of Counterclaims … There seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it. …64

In this case, Poland, the respondent State, after it had discussed the merits of the case in its Counter-Memorial, raised objections to the jurisdiction of the Court for the first time in its Rejoinder. The Permanent Court rejected the objection of Poland to its jurisdiction by ruling that having presented arguments on the merits in the Counter-Memorial Poland manifested beyond doubt an intention to have judgment on the merits; the Permanent Court also ruled that ‘‘… the acceptance by a State of the Court’s jurisdiction in a particular case is not, under its Statute, subordinated to the acceptance of certain forms, such as, for instance, the conclusion of a special agreement…’’65 In the Corfu Channel case the United Kingdom instituted proceedings against Albania although there was no formal basis of the consent of Albania to the jurisdiction of the Court. On 23 July 1947 Albania communicated a letter dated 2 July 1947 to the Court in which it stressed the irregularity of instituting proceedings on the part of the United Kingdom because in its view the Security Council Resolution recommending the submission of the dispute between the two States to the Court did not envision a unilateral but a joint referral of the case. In the same letter the Albanian government made also clear that notwithstanding this irregularity it was prepared to appear before the Court. Following the communication of the letter by Albania the Court issued an Order fixing the deadlines for the submission of the Memorial by the United Kingdom and the CounterMemorial by Albania. It was within the time-limit for the submission of its Counter-Memorial that Albania raised a preliminary objection according to which the application of the United Kingdom was ‘‘inadmissible’’ because it contravened Articles 40 and 36 of the Statute of the Court. However, by referring to Article 36 of the Statute what in effect Albania objected to was the jurisdiction of the Court. The Court rejected the preliminary objection of Albania and ruled that by virtue of its communication it had voluntarily and indisputably accepted the jurisdiction of the Court. Moreover, the Court noted that although consent is the only basis to confer jurisdiction upon it, this consent may not be expressed in a specific form.66 Moreover, the Court ruled in the Haya de la Torre case that its jurisdiction could be established on the basis of the conduct of the parties:

64

Rights of Minorities in Polish Upper Silesia (Minority Schools), PCIJ Ser. A No 15 (1928), 24. PCIJ Ser. A No 15 (1928), 23. Also see Mavromatis Jerusalem Concessions case, PCIJ Ser. A No 5 (1925), 27. In Mavromatis the Permanent Court exercised jurisdiction on the basis of Protocol XII of the Treaty of Lausanne (1923) although the dispute was referred to the Court on the basis of Article 26 of the Palestine Mandate. However, in this case the United Kingdom, the respondent State, expressly consented to the invocation of Protocol XII as jurisdictional basis. 66 The Corfu Channel Case (UK v. Albania) (Preliminary Objection), ICJ Rep. 1948, 15, 19, 27–29. 65

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… The Parties have in the present case consented to the jurisdiction of the Court. All the questions submitted to it have been argued by them on the merits, and no objection has been made to a decision on the merits. This conduct of the Parties is sufficient to confer jurisdiction on the Court. …67

In the Anglo-Iranian Oil Co. (Jurisdiction) case the Court expressed the meaning of the principle in dealing with a submission by the United Kingdom, according to which Iran had submitted in its Conclusions a number of questions which were not objections to the jurisdiction of the Court and could only be decided if the Court had jurisdiction. Therefore, in the view of the UK, by adopting this course Iran expressed its consent to the jurisdiction of the Court on the basis of the principle of forum prorogatum: …the principle of forum prorogatum, if it could be applied to the present case, would have to be based on some conduct or statement of the Government of Iran which involves an element of consent regarding the jurisdiction of the Court. But that Government had consistently denied the jurisdiction of the Court …68

Moreover, in the Bosnian Genocide (Provisional Measures) case the Court after having issued an Order of Provisional Measures on 8 April 1993, it received an application filed by Bosnia-Herzegovina on 27 July 1993 requesting the indication of additional Provisional Measures going beyond the Genocide Convention69 on the basis of which the Court had already found in relation to its April Order that it had prima facie jurisdiction. Therefore, Bosnia sought to expand the Court’s prima facie jurisdiction in order to persuade it to grant the additional measures it had requested. In attempting to do so, Bosnia invoked the principle of forum prorogatum by arguing that in April 1993 Yugoslavia had requested the Court to order provisional measures that went beyond the context of the Genocide Convention. The Court rejected the arguments of Bosnia premised on forum prorogatum by finding that the attitude of Yugoslavia was far from manifesting ‘‘an unequivocal indication’’ of ‘‘a voluntary and indisputable’’ acceptance of the ‘‘Court’s jurisdiction’’.70 Furthermore, in the Congo v. Rwanda (Preliminary Objections) case the Applicant invoked eleven grounds to establish the jurisdiction of the Court. The third ground presented by the Congo was the principle of forum prorogatum. The argument advanced by the Applicant was that since the Respondent, Rwanda, 67

Haya de la Torre Case (Colombia v. Peru), ICJ Rep. 1951, 71, 78. Anglo-Iranian Oil Co. case (Jurisdiction), ICJ Rep. 1952, 93, 113–114. 69 The Provisional Measures requested by Bosnia additional to those indicated by the Court in its Order of 8 April 1993 included the cessation on the part of Yugoslavia of all acts aiming at the dismemberment of Bosnia and Herzegovina, a statement of illegality of annexation of territory by force and the acquisition by Bosnia of the means to prevent and defend the State and its people from acts of genocide, dismemberment and partition. See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) (Provisional Measures) (Further Request), Order of 13 September 1993, ICJ Rep. 1993, 325, 332–333, para 6. 70 Id., 341–342, para 34. 68

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participated in proceedings before the Court in order to contest the jurisdiction of the Court this indicated acceptance of jurisdiction on the Merits.71 The Court reaffirmed its jurisprudence and that of the Permanent Court to the effect that ‘‘… neither the Statute nor the Rules require that this consent should be expressed in any particular form …’’ and ‘‘… there is nothing to prevent the acceptance of jurisdiction … from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement …’’; it then ruled that: … The attitude of the respondent State must, however, be capable of being regarded as ‘‘an unequivocal indication’’ of the desire of that State to accept the Court’s jurisdiction in a ‘‘voluntary and indisputable’’ manner …72

Finally, in the Djibouti v. France case the Court dealt with an application filed by Djibouti against France in January 2006 alleging that France had violated its obligations under the Convention on Mutual Assistance in Criminal Matters (1986) between the two States and other international obligations by declining to execute an international letter rogatory in relation to the transmission to the judicial authorities of Djibouti of the record concerning the criminal investigation by the French authorities of the murder of Judge Bernard Borrel. Moreover, the application of Djibouti alleged violations of the bilateral Treaty of Friendship and Co-operation (1977) between the two States, the rules of the Vienna Convention on Diplomatic Relations (1961) concerning diplomatic privileges and immunities and the rules of customary law concerning immunities of Heads of State and other high-ranking officials as a result of witness summonses to the Head of State and other senior officials of Djibouti and the arrest warrants issued against the Head of National Security and the procureur géneral of Djibouti. The application invoked as basis of the jurisdiction of the Court Article 38 (5) of the Rules of the Court because there existed no other basis on which the consent of France to the Court’s jurisdiction could be established. Article 38 (5) of the Rules provides that: When the applicant State proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the State against which such application is made, the application shall be transmitted to that State. It shall not, however, be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application is made consents to the Court’s jurisdiction for the purposes of the case

In July 2006 France informed the Court that it consented to the jurisdiction of the Court ‘‘… pursuant to and solely on the basis …’’ of Article 38 (5) of the Rules and that its consent was ‘‘… valid only for the purposes of the case, within the meaning of Article 38, paragraph 5, i.e. in respect of the dispute forming the subject of the Application and strictly within the limits of the claims formulated therein …’’ France argued, moreover, that the dispute between the parties in this 71

Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) (Jurisdiction—Admissibility), Judgment of 3 February 2006, ICJ General List No 126, www.icj-cij.org, para 19. 72 Id., para 21.

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sense was delineated in the section of Djibouti’s application entitled ‘‘Subject of the dispute’’ and it concerned only its decline to execute the international letter rogatoty and nothing further. In its Judgment the Court ruled that neither its Statute nor the Rules require that consent to its jurisdiction is expressed in a specific form and that it may be deduced from certain acts ‘‘… thus accepting the possibility of forum prorogatum…’’73 The Court went on to state that the consent to its jurisdiction had to be certain and this also applied to the principle of forum prorogatum as a basis of its jurisdiction. Therefore, …the attitude of the respondent State must be ‘capable of being regarded as ‘an unequivocal indication’ of the desire of that State to accept the Court’s jurisdiction in a ‘voluntary and indisputable’ manner. For the Court to have jurisdiction on the basis of forum prorogatum, the element of consent must be either explicit or clearly to be deduced from the relevant conduct of a State …74

The Court subsequently dealt with the scope and purpose of Article 38 (5) of the Rules. It stated that this provision served a dual purpose. First, procedural economy and sound administration of justice because prior to the adoption of this Rule in 1978 an application instituting proceedings against a State that did not accept the Court’s jurisdiction on any other basis would be entered into the General List only to be removed at a subsequent stage because the Court plainly lacked the jurisdiction to entertain the case. Secondly, it provides States that do not consent to the jurisdiction of the Court the opportunity to do so by specifying the ‘‘aspects of the dispute which’’ they ‘‘agree to submit to the judgment of the Court.’’ Thus, The deferred and ad hoc nature of the Respondent’s consent, as contemplated by Article 38, paragraph 5, of the Rules of the Court, makes the procedure set out there a means of establishing forum prorogatum.75

Furthermore, the Court ruled that Article 38 (5) was to be interpreted in the light of Article 38 (2) of the Rules, in the sense that while an application instituting proceedings may indicate ‘‘as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based’’ this is not possible with respect to the ‘‘precise nature of the claim’’, ‘‘the facts and grounds on which the claim is based’’, the State against which proceedings are instituted and the subject of the dispute. In other words precision and specificity are required for all the particulars of an application except the grounds of consent to the jurisdiction of the Court:

73

Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ General List No 136, www.icj-cij.org, paras. 60–61. 74 Id., para 62. 75 Id., para 63; also see ‘‘The Forum Prorogatum Before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism’’, Address delivered by the President of the ICJ to the Sixth Committee of the General Assembly on 4 November 1996, ICJ Yearbook 1996–1997, No 51,216, at 217.

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… while doubts may previously have existed in this respect, since the revision in 1978, the wording of Article 38, paragraph 2, excludes the possibility of the phrase ‘‘as far as possible’’ also being applied to the statement of ‘‘the precise nature of the claim’’ or of the ‘‘facts and grounds on which the claim is based’’. … No applicant may come to the Court without being able to indicate, in its Application, the State against which the claim is brought and the subject of the dispute, as well as the precise nature of that claim and the facts and grounds on which it is based …76

Having said that, the Court proceeded to point out that while the expression of consent to the Court’s jurisdiction by way of forum prorogatum was one matter, the extent of this consent was quite another. In other words the subject-matter of the dispute upon which the Court had jurisdiction to adjudge was to be determined by discerning the extent to which the jurisdiction of the Court has been accepted. The Court did not accept as a matter of principle the French contention that the subject of the dispute was defined exclusively in the Section 2 of Djibouti’s application entitled ‘‘Subject of the dispute’’. It ruled that ‘‘… while it is desirable that what the applicant regards as the subject-matter of the dispute is specified under the heading in the Application, nonetheless, the Court must look at the Application as a whole …’’.77 However, this is not the end of the matter, because in the case of application of forum prorogatum ‘‘… great care must be taken regarding the scope of the consent as circumscribed by the respondent State …’’78 In other words, the Court appears to imply that it is the respondent State that determines the precise parameters of the subject-matter of the dispute upon which jurisdiction is conferred upon the Court through its reply to an application launched against it in the knowledge that it does not accept the Court’s jurisdiction. In this manner, a respondent State may accept the jurisdiction of the Court by way of forum prorogatum within bounds that are narrower than the subject-matter as identified in the application, as it may do the opposite, namely, accept the jurisdiction of the Court on the entire subject-matter as this is defined in the application. In the context of counterclaims the principle of forum prorogatum offers the counterclaimant respondent an opportunity to succeed in including within the subject-matter jurisdiction of the Court claims that are not covered by it on the basis of the original application, when the jurisdiction of the Court is premised on any of the bases of Article 36 of the Statute. This may be the case if the original applicant raises no objection. In this way, by its conduct, the principal applicant accepts that the Court has jurisdiction over the subject-matter of the counterclaim. But is forum prorogatum the only way by which a respondent may bring by way of counterclaim claims not falling under the subject-matter jurisdiction of the Court as it is circumscribed in the original application? This author has submitted in the preceding section that this not the case, provided that the requirement of direct connection is present. The Court, on the other hand, appears to take the opposite 76

Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ General List No 136, www.icj-cij.org, para 64. 77 Id., para 67. See also paras 68–69. 78 Id., para 87.

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view by its treatment of the requirement of jurisdiction in the Oil Platforms case with respect to the counterclaim presented by the United States. Thus, according to the Court, once the subject-matter jurisdiction has been determined by it with regard to the principal claim in a Preliminary Objections Judgment no extension of it may be allowed and the counterclaim is admissible, as far as jurisdiction is concerned, only if it fits the parameters of subject-matter jurisdiction as defined by the Court. The attitude of the Court in Oil Platforms, thus, appears to advocate the position that forum prorogatum is the only avenue open to a counterclaimant respondent to bring claims that do not exactly come under the subject-matter jurisdiction concerning the original application as this is finally defined by the Court. However, the unexplained attitude of the Court in this particular dispute, may lead one to conclude that even if Iran had not objected to the jurisdictional basis of the counterclaim the Court would have adopted the same stance. This may seem likely, because to admit the subject-matter of the US counterclaim as it was formulated might effectively amount to a revision of its 1996 Judgment on Jurisdiction and Admissibility. Moreover, as the Court has shown in the Bosnian Genocide (Merits) case it is very reluctant to adopt a course that would question the finality of its Judgments on Preliminary Objections to Jurisdiction and Admissibility.79 Furthermore, in the case where the original application comes under the jurisdiction of the Court on the basis of forum prorogatum it is the respondent that has wide discretion to define the precise subject-matter of the dispute falling within the Court’s jurisdiction when it unequivocally and indisputably expresses consent to the jurisdiction of the Court. The question then arises whether a respondent in this case may by presenting a counterclaim extend by way of forum prorogatum the subject-matter of the dispute at bar which it itself has originally delineated. In this situation the original applicant has the position of respondent and the reversal of roles gives it the discretion either to accept the extension of subject-matter unequivocally, voluntarily and indisputably or expressly refute the counterclaimant respondent’s assertion. In particular, it is submitted that the principle of equality of the parties would require that if jurisdiction over the original claim were based on forum prorogatum by virtue of Article 38 (5) of the Rules, the same procedure should be applied on the part of the principal applicant in respect of the respondent’s counterclaim. In other words, incidental proceedings must not commence with respect to the counterclaim unless the principal applicant specifically consents to the jurisdiction of the Court to discuss the counterclaim. Otherwise, the principal claimant may find itself in a very disadvantaged position in having his claim severely circumscribed by the original respondent while facing a wider and more comprehensive counterclaim. It is submitted that only if the counterclaim comes under the subject-matter jurisdiction 79

Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) (Merits), Judgment of 26 February 2007, ICJ General List No 91, www.icj-cij.org, paras. 80–141, esp. para 121 et seq.

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based on forum prorogatum as was determined by the Court with regard to the original application would it fulfil the requirement of jurisdiction in Article 80 (1) of the Rules. However, it is the Court that will ultimately rule on this matter. Its practice indicates that an objection of the original applicant that a counterclaim exceeds the jurisdiction of the Court with respect to the subject-matter of the dispute, if already determined by the Court, shall not be discussed in the counterclaims but in the merits stage of the proceedings. Therefore, unless the Court rules in the counterclaims stage that the requirement of direct connection is lacking, the original applicant must wait until the stage of the merits to find out whether its objection is successful or not. Moreover, the original applicant must also persevere and be extremely cautious lest its conduct be interpreted by the Court as indicating unequivocally and indisputably accepting the extension of the subject-matter jurisdiction of the Court by way of forum prorogatum with regard to the counterclaim. Furthermore, in the Djibouti v. France case the Court adopted a rather unclear approach toward the question of the subject-matter of the dispute falling under its jurisdiction on the basis of forum prorogatum as delineated by the respondent in its expression of consent. It ruled that it had jurisdiction to entertain a claim by Djibouti concerning a summons addressed to the President of Djibouti on 14 February 2007 to testify as witness, namely, after the application had been filed, because it constituted in its view a repetition of an earlier summons of the same subject issued in 2004, namely, prior to the filing of the application. In addition, the Court found that the reply of France accepting the jurisdiction of the Court under Article 38 (5) of the Rules did not restrict its jurisdiction on the basis of forum prorogatum temporally but only in respect of the subject-matter of the claims brought by Djibouti. Moreover, in the opinion of the Court a communication by a respondent State under Article 38 (5) of the Rules accepting the jurisdiction of the Court with respect to an application and strictly within its limits is to be interpreted by reference to the application as a whole, rather than on a particular and restrictive interpretation of the respondent’s communication accepting jurisdiction. Furthermore, in cases where jurisdiction is established on forum prorogatum any subsequent claims by the applicant are to be assessed by reference to the subject-matter of its claim as defined at the time of the application and restricted to the text of this application. By this the Court deviated from previous jurisprudence concerning disputes premised on bases of consent to its jurisdiction other than forum prorogatum by treating the subsequent invocation of facts and events as pertaining to the limits of its jurisdiction ratione temporis and not ratione materiae.80 Thus, the Court treated Djibouti’s claim on the summons issued to the President of the country as falling within its jurisdiction, namely, not as a new claim ratione materiae, while it excluded from it another claim

80

Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ General List No 136, www.icj-cij.org, paras. 83, 87–88.

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concerning arrest warrants issued against high-ranking officials in 2007 as constituting a new claim ratione materiae. The conclusion to be reached is that when jurisdiction is based on forum prorogatum established under Article 38 (5) of the Rules this jurisdiction is limited by the content of the application which may be further restricted by the respondent to certain aspects of it. If such restriction takes place it must be express both ratione temporis and ratione materiae. Otherwise, there appears to be an element of unpredictability with respect to the extent of consent by way of forum prorogatum because a respondent may find itself consenting to the Court’s jurisdiction more extensively than he originally intended.81 In other words, unless the respondent restricts the forum prorogatum jurisdiction of the Court ratione temporis it may be subject to the Court’s jurisdiction with respect to claims posterior to the application but being identical ratione materiae to claims concerning facts and events antedating the application. By contrast, claims that are unrelated ratione materiae to the subject-matter of the application shall not be entertained by the Court, irrespective of whether these claims are or are not posterior to the application, or the respondent restricted the scope of its acceptance of the jurisdiction of the Court ratione temporis or not. In the context of counterclaims against a principal applicant that has succeeded in basing the jurisdiction of the Court on forum prorogatum this would imply that the principal claimant as counter-respondent could not restrict the subject-matter of the counterclaim if it comes within the extended scope of consent with regard to the principal application. Moreover, a counterclaimant respondent can only bring a counterclaim falling within the extended scope of forum prorogatum upheld by the Court only if jurisdiction is the subject of incidental proceedings on Preliminary Objections, namely, before the filing of the respondent’s Counter-Memorial on the Merits. Otherwise, if the Court discusses its jurisdiction at the stage of the merits, namely, after the filing of the Counter-Memorial, the counterclaimant respondent faces the prospect of having its counterclaim rejected as being beyond the jurisdiction of the Court.

4.1.3 The Position of Third States The position of third States vis á vis the litigation between two other States may affect the proceedings before the International Court of Justice in a twofold manner: First, the Court shall decline to exercise the jurisdiction it possesses to

81 The conclusions of the Court attracted criticism in this respect by certain Judges. See id. per Judges Ranjeva (separate opinion), Tomka (separate opinion) and Judge ad hoc Guillaume (declaration). By contrast Judge Owada (declaration) considered the approach of the Court as too restrictive because in his view the arrest warrants issued against high-ranking officials of Djibouti should have fallen under the Court’s jurisdiction on the basis of forum prorogatum as the distinction that the Court drew between its earlier jurisprudence on the basis of other forms of consent and the latter was unwarranted.

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settle the dispute between two States if in order to settle the dispute between the original litigants it must adjudge as a prerequisite on the rights and obligations of a third State which has not consented to be party in the proceedings. Secondly, a third State may have a right of a legal nature that is likely to be affected by the Judgment of the Court in a dispute between two other States. In this case, the third State has the right to apply to intervene in the proceedings. The first situation is addressed by application of the Monetary Gold principle that has been formulated by the Court in the course of its jurisprudence and the fundamental requirement of consent to its jurisdiction lies in its core. The second contingency is expressly provided in Articles 62 and 63 of the ICJ Statute. The Monetary Gold Principle was in introduced by the Court in the Case of the Monetary Gold Removed from Rome in 1943. In this case the Court ruled that Italy, the plaintiff, could not claim Albanian Monetary Gold as reparation for the damage allegedly suffered by Italian nationals unless it was first established that Albania had incurred international responsibility for the nationalization by the Albanian Government of the assets of the Central Bank of Albania. In other words the determination of the responsibility of Albania was a prerequisite for deciding the claim of Italy. Therefore, the interests of Albania constituted the subject-matter of the case and in view of the absence of Albania from the proceedings the Court declined to exercise jurisdiction. The Court ruled that ‘‘… 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. … 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 …’’82 The principle articulated by the Court was applied 40 years later in the East Timor case, where the Court was requested by Portugal to adjudge that a treaty concluded between Australia and Indonesia concerning the joint exploration and exploitation of the Timor continental shelf violated the right of self-determination of the people of East Timor. The Court ruled that Australia’s conduct could not be assessed without determining the grounds on which Indonesia could not have concluded the 1989 treaty: ‘‘… the very subject-matter of the Court’s decision would necessarily be a determination whether, having regard to the circumstances in which Indonesia entered and remained in East Timor, it could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of the continental shelf. The Court could not make such a determination in the absence of the consent of Indonesia …’’83

82

Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, UK and USA), ICJ Rep. 1954, 19, 32. 83 Case Concerning East Timor (Portugal v. Indonesia), ICJ Rep. 1995, 90, 102, paras 28–29.

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The Court has generally approached the Monetary Gold principle with considerable circumspection by adopting a rather strict view with respect to the circumstances allegedly requiring its application. In Nicaragua (Jurisdiction and Admissibility) the USA asserted that the Court could not decide on Nicaragua’s claim without adjudicating, on the rights and obligations of other States, in particular Honduras, in the absence of their consent to the jurisdiction of the Court.84 The Court rejected the US contention by ruling that Nicaragua’s claim against the USA constituted an autonomous claim on its merits, in the sense of not being dependent on the prior determination of a third State’s claim. Moreover, the Court ruled that there was in principle no ‘‘indispensable parties rule’’ that was admissible under its Statute. The Court stated that Honduras and other neighboring States of Nicaragua did not have the position of Albania in the Monetary Gold case so as to be truly indispensable in the proceedings at bar.85 In the Nauru case the Court outlined a narrow framework within which it would apply the Monetary Gold principle. It ruled that although the administration of Nauru had been entrusted jointly to Australia, New Zealand and the UK the determination of the responsibility of Australia did not require the prior determination, as logical prerequisite, of the responsibility of either New Zealand or the UK.86 Intervention of third parties in proceedings already pending between two States is allowed under Articles 62 and 63 of the Statute of the Court. Article 63 concerns intervention in a case the subject-matter of which is the interpretation of a multilateral treaty and gives the right to any contracting party other than the litigant States to apply to intervene in the proceedings. In this contingency the interest of legal nature is identified as the interpretation to be given by the Court to specific provisions of the treaty and the consequence for the intervening contracting party is that this interpretation is binding upon it. Article 62 regulates intervention when a third party has an interest of a legal nature that is likely to be affected by the proceedings. In the El Salvador-Honduras (Nicaragua Intervening) case87 the Court outlined the requirements for the admissibility of an application to intervene. It ruled that the intervening State had to prove (a) the existence of a specific, as opposed to a general, interest of a legal nature that (b) might be affected, as opposed to it being definitely affected. Moreover, the Court ruled that the right of a

84

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) (Jurisdiction and Admissibility), ICJ Rep. 1984, 392, 430, para 86. 85 ICJ Rep. 1984, 392, 431, para 88. 86 Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections), ICJ Rep. 1992, 240, 261, para 55. Contra id. 301–302 (per Judge Jennings); 326–328 (per Judge Ago); 329–343 (per Judge Schwebel). The Court admitted that implications for the legal situations of third parties may arise but ruled that Article 59 of the ICJ Statute sufficiently guarantees the protection of third parties’ interests that may be affected by litigation. Article 59 of the ICJ Statute provides that: ‘‘The decision of the Court has no binding force except between the parties and in respect of the particular case.’’ 87 Land, Island and Maritime Frontier Dispute (El Salvador-Honduras) (Nicaragua Intervening), ICJ Rep. 1990, 92, 107–135, paras 35–101.

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third State to seize the Court by applying to intervene was premised on Article 62 of the Statute and did not require a jurisdictional bond with the incumbent litigant States on the basis of Article 36 of the Statute. The result of this would be that if an application to intervene were successful, the intervening party would not acquire the status of litigant and would merely have the Court acknowledge in its Judgment the existence of the right of the third State. A further consequence is that the Judgment delivered by the Court in the dispute between the original litigants would exclude parts of the subject-matter of the dispute relative to the intervening State’s right. What is interesting is that the Court has adopted this stance even in disputes where applications of third States to intervene were rejected (viz. LibyaTunisia Continental Shelf Case (Malta Intervening)88 and Libya-Malta Continental Shelf Case (Italy Intervening)).89 The position of third States with regard to the presentation of counterclaims has been the object of attention and concern since the time of the original drafting and the subsequent revision of the Rules of the Permanent Court of International Justice. The Coordination Commission stated in its Report of 14 May 1934 that there had been concern about presenting a counterclaim not by separate application but in the Counter-Memorial. The focus of concern had been the fact that while by virtue of Article 40 of the Statute of the Permanent Court an application would be transmitted to third States to enable them to consider whether to intervene or not, a notice of counterclaims would not be notified as it would be included in the respondent’s Counter-Memorial. This concern was voiced by Judge Negulesco who raised the issue of the form counterclaims should take.90 In particular, he suggested that counterclaims should be presented in the form of separate application so as to bring them in conformity with Article 40 of the PCIJ Statute, because the lack of an express provision allowing the presentation of counterclaims in the Counter-Memorial would result in their not being notified to third States.91 The opposite view was expressed by Judge Anzilotti, who said that notification to third States was essentially unimportant because under the PCIJ Rules third States had the right to be apprised of the written proceedings between the litigant parties.92 In other words, a third State not party to the proceedings had the opportunity to be informed about the presentation of a counterclaim on its own initiative, rather than upon notification, and the implication was that failure to do so would be at its own risk.93 In its early jurisprudence the present Court appears to have subscribed to the view expressed by Anzilotti for in neither the Asylum case not the US Nationals in

88

ICJ Rep. 1981, 3. ICJ Rep. 1984, 3. 90 See supra Chap. 3. 91 PCIJ Ser. D No. 2 (Third Addendum) (1936), 105. 92 Id., 106; also see Anzilotti 1930, 863–864. 93 Anzilotti 1930, 864 expressing the view that it is a matter of diligence on the part of third _ States (Etat diligent) to be apprised of the content of the written proceedings. 89

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Morocco case did it express itself on the need that third States had to be notified rather than informing themselves of the counterclaims presented, respectively, by Peru and the USA. It was only in counterclaims proceedings under Article 80 of the 1978 Rules that the Court appears to have modified its position by expressly addressing the issue of third State knowledge of the counterclaims. In the Bosnian Genocide (Counter-claims) case the court expressly ruled that …in order to protect the rights which third States entitled to appear before the Court derive from the Statute, the Court instructs the Registrar to transmit a copy of this Order to them…94

This passage has been reproduced verbatim in the Oil Platforms (Counterclaim) case,95 the Cameroon v. Nigeria (Counterclaims) case96 and the Congo v. Uganda (Counterclaims) case.97 It is noteworthy that the Court while not upholding the view expressed by Judge Anzilotti, namely, that third States are expected to persevere and acquire knowledge of the content of a counterclaim presentation on their own initiative it did not suggest that the section of a respondent’s CounterMemorial containing the counterclaim be transmitted to third States. Rather, it is the Order of the Court ruling that a counterclaim is admissible that is to be notified. In this manner, the Court appears to have taken the view that it would be too inequitable to expect of third States to take all necessary steps to inform themselves of the written proceedings between the original litigants but at the same time it would be too premature to transmit to them the relevant part of the CounterMemorial of the respondent. It is submitted that the position adopted by the Court is very balanced in that third States are to be notified but only if the Court by an Order rules that a respondent’s counterclaim(s) is (are) admissible. Indeed it would not serve any real purpose to allow a third State to exercise its rights under the Statute of the Court if the Court has not reached a decision with respect to the counterclaim of the respondent. In other words, what would be the utility of making an application to intervene in relation to counterclaim at the stage of the submission of the Counter-Memorial if the latter is rejected as inadmissible? In any event, although Article 80 of the Rules, both as it was originally adopted in 1978 and after its amendment in 2001, is silent on the matter of notification of third States, the Court’s consistent and uniform practice so far of transmitting its Orders by virtue of which counterclaims are held to be admissible to third States, may lead to the conclusion that third States may have the legitimate expectation of being notified on a counterclaim upon the initiative of the Court.

94

Case Concerning Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Counter-claims), ICJ Rep. 1997, 243, 259, para 39. 95 Case Concerning Oil Platforms (Iran v. USA) (Counter-claim), ICJ Rep. 1998, 190, 205 para 42. 96 Cameroon v. Nigeria Case (Counter-claims), ICJ Rep. 1999, 983, 986. 97 Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Counter-claims), ICJ Rep. 2001, 660, 681 para 47.

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Moreover, the above passage indicates that third party intervention is in principle allowed in relation to counterclaims. For it may not be inconceivable that a counterclaim, as an independent claim, may affect a right of a legal nature of a third State. In addition, the Statute of the ICJ provides in Article 40 (3) that an application instituting proceedings or a special agreement submitting a dispute to the Court shall be notified to members of the UN and ‘‘any other States entitled to appear before the Court’’ the purpose being to allow third states to exercise their right to intervene under Articles 62 and 63 of the Statute. Indeed, it would be rather unfair that third States would be denied the right to knowledge by notification that they possess with respect to the principal claim in the case of counterclaims simply by reason of lack of express provision in the Statute. Once there is an Order of the Court allowing a counterclaim as admissible then the door opens for a third State to intervene in the proceedings in relation to the counterclaim. The subject of intervention may be the provision of a treaty that constitutes the subject of the counterclaim and the third party may be any contracting party to the treaty other than the principal applicant and the counterclaimant respondent. It may also be a right of a legal nature that is likely to be affected by the ruling of the Court on the counterclaim. In either case, it is submitted that the procedure of the Court shall be the same as in cases of intervention under Articles 62 or 63 with regard to the principal application. This means that the intervening State does not have to prove the existence of a jurisdictional bond between itself, on the one hand, and the principal applicant and the counterclaimant respondent, on the other; it must prove that right of a legal nature is a right of a specific rather than of general nature and that it might be, not that it shall definitely be affected; it does not become a party to the proceedings but in the case of intervention under Article 63 the interpretation given by the Court to a particular provision of a treaty shall be binding on the State intervening in relation to a counterclaim. Apart from the question of intervention, the Court may apply the Monetary Gold principle in relation to the presentation of a counterclaim. The application of this principle is a matter directly pertinent to the requirement of consent as the basis of the jurisdiction of the Court. This means that if a ruling on the counterclaim by the Court requires as a prerequisite a ruling upon the rights and obligations of a third State not party to the original proceedings, then Court shall decline to exercise its jurisdiction with respect to the counterclaim, even though a jurisdictional basis exists for it to entertain the counterclaim under Article 80 (1) of the Rules. In the Bosnian Genocide case the counterclaim presented by Yugoslavia alleging the commission of genocide by the authorities of Bosnia included allegations of perpetration of the crime by the authorities of Croatia as well. Bosnia did not object to the jurisdiction of the Court with respect to the counterclaim of Yugoslavia and the Court restricted itself simply to acknowledge this fact. The question then arises why the Court refrained from exercising its competence de la competence under Article 36 (6) of the Statute with respect to the counterclaim of Yugoslavia. The answer appears to be twofold. First, the principal applicant, Bosnia, did not raise a preliminary objection on the basis of the Monetary Gold principle. But this would not appear to be a sufficient reply given the great

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importance the Court gives to consent to its jurisdiction and which would justify an examination of the existence of this consent in relation to a third party whether there existed a preliminary objection or not. Secondly, it may be presumed that the Court did indeed evaluate the allegations of Yugoslavia concerning Croatia and reached the conclusion that they were not of such import as to require the application of the principle. Judge ad hoc Sir Elihu Lauterpacht pointed that the allegations of perpetration of genocide on the part of Croatia in the counterclaim of Yugoslavia appeared to bring into the case the issue of responsibility of a State which was not party to the proceedings. However, he took the view that the Court treated this contingency as not sufficient to decline to exercise its jurisdiction with respect to the counterclaim due to the small number of situations in which the allegations against Croatia were made.98 By contrast, Judge Weeramantry took the view that the prospect of the counterclaim of Yugoslavia involving the rights and obligations of third State would have an adverse effect upon the rationale of counterclaims, namely, achieving convenience and judicial economy.99 In any event, the Monetary Gold principle is invoked by way of a preliminary objection to the jurisdiction of the Court and the admissibility of the application. In the case of counterclaims and in the light of the Order in the Jurisdictional Immunities case it appears that such an objection is more likely to be evaluated not at the stage of the Merits but at the stage of incidental proceedings.

4.1.4 Preliminary Objections to Jurisdiction and Admissibility Concerning Counterclaims Objections to the jurisdiction of the Court or to the admissibility of a dispute signify a dispute as to these matters. According to Rosenne such dispute concerns at least three issues: ‘‘(a) a dispute regarding the conformity of the seisin with the agreements in force between the parties or regarding the receivability of the proceedings without any implication regarding the Court’s jurisdiction over the Merits; (b) a dispute regarding the jurisdiction over the merits on the basis that the Court has been properly seized of the case; and (c) a dispute regarding the admissibility of the case on the merits, the decision on which implies that the Court has been validly seized of and has jurisdiction over the merits but in the circumstances cannot or should not exercise this jurisdiction.’’100 The purpose of

98

Case Concerning Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Counter-claims), ICJ Rep. 1997, 243, 285 (sep. op. Judge ad hoc Sir E. Lauterpacht). 99 Id., 297 (diss. op. Judge Weeramantry). 100 S. Rosenne 2006, 817–818.

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raising objections to the jurisdiction of the Court and admissibility of the case is to preclude the Court from adjudicating upon the merits of a dispute.101 Preliminary objections are dealt with in Article 79 of the Rules of the Court (as amended in 2000), paragraph 9 of which provides that ‘‘After hearing the parties, the Court shall give its decision in the form of a judgment, by which it shall either uphold the objection, reject it, or declare that the objection does not possess, in the circumstances of the case, an exclusively preliminary character’’.102 In the latter case the Court joins the objections of non-exclusively preliminary character to the stage of the merits of a dispute.103 Rosenne104 has suggested that the distinction between objections of a preliminary character and objections not possessing an exclusively preliminary character lies in their impact on the final judgment: If an objection aims at interrupting further proceedings on the merits and for this reason it would be more appropriate that the Court deals with it before the stage of the merits then it is of preliminary character. If, on the other hand, it does not have this objective but it is formulated, after pleading on the case, as an objection to the final submissions of one of the parties either because they do not fall within the jurisdiction of the Court or because they do not offer the basis of the existence of a legal interest of the applicant then the objection is not of preliminary character. In the latter case it appears that the purpose of the party raising the objection is defensive, aiming at securing the rejection of the claim without inquiring into the merits. The decision as to whether an objection to the jurisdiction or admissibility is or is not of an exclusively preliminary character lies with the Court as part of its competence to determine its jurisdiction in accordance with Article 36 (6) of the Statute.105 What the Court appears to take into account is the intention of the objecting State as manifested by the latter’s choice of procedure and its decision is reached after evaluating this intention. If the enquiry of the Court with regard to this intention is that the objecting State does not aim at the interruption and discontinuance of the proceedings then it considers this objection to be no obstacle for it to continue dealing with the dispute at the stage of the merits.106 In the Avena case the Court found that ‘‘…Article 79 applies only to preliminary objections, as indicated by the title of the subsection of the Rules which it constitutes. As the Court observed in the Lockerbie cases, ‘‘if it is to be covered by Article 79, an objection must … possess a ‘preliminary’ character’’, and ‘‘paragraph 1 of Article 79 of the Rules of Court characterizes as ‘preliminary’

101

Id., 819. Rosenne op. cit. supra n. 100, 887 et seq. 103 The Court has expressed a variety of options it has in the Barcelona Traction Case (Preliminary Objections), ICJ Rep. 1964, 6, at 43. 104 Rosenne op. cit. supra n. 100, 820–821. 105 Id., 822. 106 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) (Jurisdiction-Admissibility), ICJ Rep. 1984, 392, at 425 para 76; id., ICJ Rep. 1986, 14, at 29 para 37. 102

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an objection ‘the decision upon which is requested before any further proceedings’’’ … ‘‘and the effect of the timely presentation of such an objection is that the proceedings on the merits are suspended (paragraph 5 of Article 79). An objection that is not presented as a preliminary objection in accordance with paragraph 1 of Article 79 does not thereby become inadmissible. There are of course circumstances in which a party failing to avail itself of the Article 79 procedure may forfeit its right to bring about a suspension of the proceedings on the merits, but can still argue the objection along with the merits …’’107 Article 79 (9) repeats a new provision that was first introduced in Article 67 of the 1972 Rules and maintained in Article 79 (7) of the 1978 Rules. The innovation of Article 67 of the 1972 consisted in the apparent abandonment by the Court of its long-standing practice to join preliminary objections to jurisdiction and admissibility to the merits of the case if this was required by the interests of sound administration of justice and if there was risk of adjudicating on questions appertaining to the merits of the dispute.108 In other words what had hitherto constituted an exercise of discretion embodied in an Order of the Court was transformed into a declaration that an objection did not possess an exclusively preliminary character embodied in a Judgment on Preliminary Objections. In the Nicaragua case the Court expressed the view that the practice of the Court prior to the revision of the Rules in 1972 and 1978 entailed the risk of deciding a case on the preliminary objection while requiring the parties to plead on the merits. On the other hand, as the Court suggested, to dispose of all preliminary objections by absolutely excluding a joinder to the merits would overlook the fact that in some cases preliminary objection are bound up with the merits. Therefore, the Court concluded, Article 79 (7) [now Article 79 (9)] of the Rules offered the Court a margin of discretion to decide whether a certain objection could be disposed of at a preliminary stage or be joined to the merits.109 Indeed, by presenting the preexisting practice of discretion to join a preliminary objection to the merits as overburdening the parties and transplanting this discretion in the context of the formalized procedure of article 79 (7) [now (9)], the Court appears to surmise that no change in substance, but rather of policy, has taken place. An eminent commentator has suggested the view that ‘‘[T]he intimation that the Court might decide that in the circumstances an objection does not possess an exclusively preliminary character—a severe test indeed—would add nothing to what the Court already has the power to do and which the Permanent Court has done … In that hypothesis, the question arises why the Court should have gone to such lengths to announce what is no more than a policy of not availing itself, as far as possible, of its option to join an objection to the merits …’’110

107

Case Concerning Avena and Other Mexican Nationals (Mexico v. USA), ICJ Rep. 2004, 12, 29 para 24. 108 Panevezys-Saldutiskis Railway Case, PCIJ Ser. A/B No 75 (1939), 56. 109 ICJ Rep. 1986, 14, 29–31, paras 37–41 et seq. 110 Rosenne op. cit. supra n. 100, 890–891.

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The present writer has ventured on a brief excursus into the matter of objections to the jurisdiction of the Court and admissibility of the application as constituting objections of not an exclusively preliminary character because in two cases the Court has taken the view that issues of jurisdiction and admissibility of a counterclaim are not conclusively dealt with at the counterclaims incidental proceedings but at the stage of the merits. At the same time, in its Order in the Jurisdictional Immunities case the Court adopted the opposite stance and treated the objection of Germany to the jurisdiction of the Court in relation to the counterclaim of Italy as a preliminary objection to be dealt with at the stage of incidental proceedings. The issue was raised by Judge R. Higgins in her separate opinion in the Oil Platforms (Counterclaim) case.111 She pointed that the Order of the Court failed to resolve a question that Iran had considered to be a matter that was relative to the jurisdiction of the Court, namely, that the US counterclaim concerned the destruction of vessels rather than oil platforms. In her view, the question of whether Article X (1) of the 1955 Treaty was limited to commerce between Iran and the USA that had not been discussed in the Preliminary Objections stage, resurfaced in the counterclaims stage in the form of a disagreement between the parties whether the US vessels were engaged in commerce between the two States. Moreover, the issue of whether the Court had jurisdiction in relation to the US contention of damage to warships had to be decided at the counterclaims stage. Judge Higgins appears to consider, on the one hand, that the principle of equality of the parties was to an extent not observed112 and, on the other, that the Court suggested that objections to jurisdiction with regard to a counterclaim were by definition of not of a preliminary character.113 The latter point, in particular, was said to be due to the silence of Article 80 (3) of the Rules [prior to the revision of 2001] with respect to holding a hearing in the event of doubt concerning the Court’s jurisdiction as a requirement of the admissibility of counterclaims under Article 80(1). Judge Higgins was very critical of what she perceived as a ‘‘standing exception to Article 79, paragraph 6, of the Rules (or, put differently, a counter-claim where jurisdiction is contested would always and necessarily be treated as not having an exclusively preliminary character under Article 79, paragraph 7).’’114 She thought that such a position was unwarranted by the travaux of the Rules, that the silence of Article 80 (3) was not intentional to distinguish between objections relating to ‘‘connection’’ and those to ‘‘jurisdiction’’, and that Article 79 (7) [now 9] should be applied ‘‘sparingly’’.115 111 Case Concerning Oil Platforms (Iran v. USA) (Counter-claim), ICJ Rep. 1998, 190, 221–223 (Judge R. Higgins sep. op.). 112 Id., 222: ‘‘Parties to litigation should be treated in a comparable manner. But, from the silence of the Court in the present Order, it seems that what it saw as a jurisdictional question when determining United States preliminary objections to the main claim it treats as a matter for the merits when considering Iran’s response to the counter-claims’’. 113 Id., 222. 114 Ibid. 115 Id., 222–223.

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During the pleadings on the merits in the same case Counsel for Iran stated that ‘‘[T]he Order of 10 March 1998 did not settle all preliminary issues involved in the counterclaim. The Court could have done so. But it decided otherwise by ruling that the counter-claim was admissible as such, namely, the 1998 Order did not decide the issues of admissibility not falling directly within the terms of Article 80 of the Rules nor the issues of jurisdiction arising out of specific US claims.’’116 In its Judgment on the Merits the Court addressed the matter by distinguishing between jurisdiction as a procedural requirement for the admissibility of a counterclaim and jurisdiction and admissibility as to the merits of a counterclaim. The Court ruled that: …it is open to Iran at this stage of the proceedings to raise objections to the jurisdiction of the Court to entertain the counter-claim or to its admissibility other than those addressed by the Order of 10 March 1998. When in the Order the Court ruled on the ‘‘admissibility’’ of the counter-claim, the task of the Court at that stage was only to verify whether or not the requirements laid down in Article 80 of the Rules of the Court were satisfied, namely, that there was a direct connection of the counter-claim with the subject-matter of the Iranian claims and that … the counter-claim fell within the jurisdiction of the Court. The Order of 10 March 1998 therefore does not address any other question relating to jurisdiction and admissibility not directly linked to article 80 of the Rules. This is clear from the terms of the Order, by which the Court found that the counter-claim was admissible ‘‘as such’’ and in paragraph 41 of the Order the Court further stated that a decision on the admissibility of a counter-claim on the basis of the requirements of Article 80 ‘in no way prejudges any question which the Court will be called upon to hear during the remainder of the proceedings’…117

Following the Court’s Order of 29 November 2001 in the Congo v. Uganda case, by which the counterclaims presented by Uganda were (all but one) ruled admissible the Applicant State, the Congo, raised objections to the admissibility of Uganda’s counterclaims. The Congo stated that it applied by analogy Article 79 of the Rules of the Court to counterclaims, namely, that it submitted the objections to the counterclaims in the first written pleadings following both the submission of the counterclaims by Uganda in its Counter-Memorial and the Order whereby the Court ruled on the admissibility of those claims as counterclaims. Uganda opposed the objections raised by the Congo arguing that the issue of admissibility of its counterclaims had been definitively determined by the Order of 29 November 2001 in accordance with Article 80 of the Rules. The Court referred to its ruling in the Oil Platforms case (quoted above)118 and addressed the matter in a clearer manner:

116

Case Concerning Oil Platforms (Iran v. USA) (Merits), ICJ Pleadings 2003, CR 2003/14, 17 www.icj-cij.org. 117 Case Concerning Oil Platforms (Iran v. USA) (Merits), Judgment of 6 November 2003, ICJ Rep. 2003, 161, at 210, para 105. 118 Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Merits), ICJ General List No 116, paras 270–272, www.icj-cij.org; cf. S. Rosenne 2007, 288.

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The enquiry under Article 80 as to the admissibility is only in regard to the question whether a counter-claim is directly connected with the subject-matter of the principal claim; it is not an over-arching test of admissibility. Therefore, the Court in its Order of 29 November 2001 intended only to settle the question of a ‘‘direct connection’’ within the meaning of Article 80. With regard to Uganda’s contention that the preliminary objections of the DRC are inadmissible because they failed to conform to article 79 of the Rules of the Court the Court would observe that Article 79 concerns the case of an ‘‘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’’. It is inapplicable to the case of an objection to counter-claims which have been joined to the main proceedings. The Court notes that nonetheless, the DRC raised objections to the counter-claims in its Reply, i.e. the first pleading following the submission of Uganda’s Counter-Memorial containing its counterclaims. In light of the findings above, the Court concludes that the DRC is still entitled, at this stage of the proceedings, to challenge the admissibility of Uganda’s counter-claims119

In an entirely different approach, the Court in the Jurisdictional Immunities case dealt with the objection of Germany to its jurisdiction to deal with Italy’s counterclaim as a preliminary objection at the stage of the incidental proceedings. The Court has offered no explanation of this deviation from its practice in the earlier two cases. It may be deduced, however, that unlike the Oil Platforms case, in Jurisdictional Immunities the jurisdiction of the Court was not contested by way of preliminary objections leading to a Judgment of the Court delineating the boundaries of its jurisdiction. Moreover, the subject-matter of the counterclaim was not stated with clarity and precision in the Counter-Memorial of Italy or in any consultation between the parties120 and as the Court found, it consisted of the extent of the obligation of Germany to make reparation to Italian nationals. As such the subject-matter of the counterclaim fell outside the jurisdiction of the Court on the basis of the 1957 European Convention. It is submitted that the treatment by the Court of objections to jurisdiction and admissibility of a counterclaim gives rise to a number of conclusions. First, objections to jurisdiction and admissibility with respect to the merits of a counterclaim are permissible. Secondly, of these, objections to the jurisdiction of the Court may be expected, reasonably but not conclusively, to be dealt with by the Court at the stage of the Merits. This is the position adopted by the Court, as well as by the objecting States in Oil Platforms and Congo v. Uganda. Iran did not insist on the matter nor did it criticize the Court for not dealing with its objections to jurisdiction of the US counterclaim during the incidental proceedings stage. It simply remarked during the oral pleadings on the merits that the Court could have enquired into its objections at that stage of the proceedings. The Congo raised its objections to the 119

Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Merits), ICJ General List No 116, paras 270–272, www.icj-cij.org paras 273–275. 120 Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judges Keith and Greenwood (sep. op.) paras 3–9.

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admissibility of Uganda’s counterclaims after the Court had made its decision on the admissibility of the counterclaims and, although it invoked Article 79 of the Rules of the Court, it is not clear whether it expected a suspension of the course of proceedings until the Court would dispose of its objections. It may be argued that objections to the admissibility of a counterclaim (qua preliminary objections to the admissibility of an application instituting proceedings) because of the absence of an objective requirement (for instance, the existence of legal interest) are more likely to be dealt with at the stage of the Merits. This is because the text of Article 80 of the Rules does not include in the requirements of the admissibility of counterclaim, ‘‘admissibility’’ with respect to its merits. At the same time, a counterclaim as an autonomous claim has the position of an application even though it is presented in the course of the same proceedings. Therefore, it may not be excluded in principle that the Court may decide, should it consider it proper for the sake of procedural economy, to dispose of this type of preliminary objection at the stage of counterclaim proceedings. Thirdly, the Order of the Court in Jurisdictional Immunities indicates that objections to the jurisdiction and admissibility of a counterclaim are technically preliminary objections in the sense of Article 79 of the Rules in a case where jurisdiction has not been determined in a Judgment of the Court following Preliminary Objections proceedings or where the counterclaim manifestly falls outside the jurisdiction of the Court. At the same time, the stance adopted by the Court in Oil Platforms and Congo v. Uganda indicates that objections to jurisdiction and admissibility are only functionally objections of ‘‘not exclusively preliminary character’’. If one accepts the position of Judge Higgins, no matter how legitimate and rational this is, and determines the nature of objections to jurisdiction and admissibility of a counterclaim as standing objections of not exclusively a preliminary character, this implies that such objections would in principle be preliminary objections the effect of which would be to suspend the ordinary course of proceedings. However, the Court appears to have expressly ruled this out in the Congo v. Uganda case. Therefore, while the Court has given the impression that it treats objections to jurisdiction and admissibility of counterclaims as not preliminary objections in the formal or technical sense at the same time it enquires into their substance before dealing with the merits of a counterclaim.121 Fourthly, it appears that in Oil Platforms and Congo v. Uganda the Court has opted for an as expeditious counterclaim proceedings as possible without, however, ignoring the objections of the principal applicant. Indeed, it seems very likely that even though declining to enquire into objections to jurisdiction and admissibility of counterclaims by treating them as preliminary objections that interrupt the normal course of proceedings the Court is conscious of the judicial economy factor underlying the admission in principle of the right to present counterclaims. In other words, the Court appears unwilling to introduce further incidental

121

Rosenne op. cit. supra n. 100, 897.

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proceedings on jurisdiction and admissibility in within the framework of the already existing incidental proceedings of counterclaims. Thus, it may only be assumed that the main proceedings would be marginalized and overridden by successive incidental proceedings. Fifthly, prior to the Jurisdictional Immunities Order the fact that a counterclaim is evaluated solely on the basis of the two requirements laid down in Article 80 (1) of the Rules would lead to the conclusion that the jurisdiction of the Court as one of these requirements would not be conclusively determined at the stage of the incidental proceedings. Indeed, in the oral pleadings on the Merits in the Oil Platforms case Counsel for Iran expressed his concern on the matter by remarking that the Court in its Order of 10 March 1998 recognized that it had ‘‘a certain measure of jurisdiction’’ to entertain the US counterclaim because it ruled that it possessed jurisdiction with regard to the US counterclaim ‘‘in so far as’’ the facts presented by the USA may have violated the freedoms guaranteed in Article X (1) of the 1955 Treaty. He insisted that the phrase ‘‘in so far as’’ had to be understood as ‘‘only thus far’’122 and that the position of the Court implied that the issue of jurisdiction had not been settled with finality.123 In Counsel’s view the ‘‘equality of the parties requires that as in 1996 the Court ascertained the existence or not of its jurisdiction in relation to Iran’s Application so it must do the same in relation to the US counter-claim.’’124 If the Court were not to determine conclusively the question of jurisdiction of a counterclaim at the incidental proceedings stage the question may arise whether jurisdiction as a requirement stipulated in Article 80 (1) of the Rules has the position of prima facie jurisdiction as in the proceedings of provisional measures. It is submitted that it does not. In the case of provisional measures the Court deals with situations of urgency very early in the proceedings of a case before it has had the opportunity to enquire into its jurisdiction. As Judge Sir Hersch Lauterpacht said in his separate opinion in the Interhandel (Provisional Measures) case the Court at this early stage in the proceedings must satisfy itself that there exists an instrument that prima facie confers jurisdiction on the Court and which does not incorporate any reservations excluding the jurisdiction of the Court.125 It is not the same situation in the case of counterclaims for they are not presented very early in the proceedings and the Court may have already determined the existence of its jurisdiction in relation to the principal application, as was the case in Oil Platforms. In this particular situation, when a counterclaim is presented, this takes place within an already determined framework of jurisdiction. Moreover, a counterclaim is nothing else than an independent claim that could be brought by way of separate application.

122

Case Concerning Oil Platforms (Iran v. USA) (Merits), ICJ Pleadings 2003, CR 2003/14, 19 www.icj-cij.org. 123 Id., CR 2003/19, 13. 124 Id., CR 2003/19, 13–14. 125 Interhandel Case (Switzerland v. USA) (Provisional Peasures), ICJ Rep. 1957, 107, 118–119 (Judge Sir H. Lauterpacht separate opinion).

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Therefore, the presentation of a counterclaim does not merely seek protection of the rights of the counterclaimant until the final settlement of the dispute but relief on a claim against the principal applicant. This cannot be entertained by the Court without the consent of both parties to its jurisdiction. In this respect, even though jurisdiction to entertain the principal claim has already been established, this appears as not being final under the terms of Article 80 (1). At the same time the Court has conveyed the message that any objections to the jurisdiction with regard to the counterclaim would not usher in a further incidental stage of preliminary objections of the principal claimant against the counterclaim of the original respondent. Thus, it is submitted that it is more accurate to speak of the Court being satisfied at the counterclaims stage of the proceedings as having essential rather than prima facie jurisdiction. By contrast, in Jurisdictional Immunities the Court was faced with a different situation. In this case jurisdiction had not been determined prior to the presentation of the counterclaim in a Judgment to which the principles of finality and res judicata apply (Articles 59 and 60 of the ICJ Statute). Therefore, an objection to the jurisdiction of the Court by the principal applicant with respect to the counterclaim of the respondent constitutes a first opportunity for the Court to examine whether a counterclaim falls within its jurisdiction in circumstances of express contestation thereof. In the absence of a prior Judgment on Preliminary Objections the Court performs its evaluation from essentially a tabula rasa. There is no prior determination which would serve as a prejudgment of either to dismiss the counterclaim for total lack of jurisdiction or revisit the issue at the stage of the Merits by determining that for the purposes of Article 80 of the Rules the counterclaim essentially falls within its jurisdiction. In any event, the evaluation by the Court of a preliminary objection to jurisdiction at the stage of counterclaim proceedings in Jurisdictional Immunities indicates that it is moving away from treating all objections to jurisdiction as objections of nonpreliminary character. That an objection to jurisdiction may be considered at the stage of the Merits may not be excluded, but it may be reasonably expected that this will happen in accordance with Article 79 of the Rules.

4.1.5 Evaluation of the Jurisprudence of the Court The approach of the International Court toward its jurisdiction as a requirement of the admissibility of counterclaims is evinced only in two precedents, the Oil Platforms case and the Jurisdictional Immunities case. Although this is hardly an adequate basis to articulate a general conclusion it offers at least a preliminary indication that the Court views jurisdiction for the purposes of evaluating the admissibility of counterclaims in a very restrictive manner in the event of a prior Judgment on preliminary Objections in the case at bar (viz. Oil Platforms case). Its position in Oil Platforms suggests that the phrase ‘‘if it [the counterclaim] comes within the jurisdiction of the Court’’ in Article 80 (1) of the Rules is perceived by the Court in the sense of a counterclaim coming within the subject-matter

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jurisdiction of the principal claim as this is determined by the Court with respect to the specific dispute before it. Therefore, it does not appear to indicate that the jurisdiction requirement will be satisfied solely upon the basis of consent to the jurisdiction of the Court on which the principal claim is premised leaving the issue of the precise subject-matter of the counterclaim to be evaluated only by reference to its direct connection with the subject-matter of the principal claim. The Court appears to require an additional element to consent, that of the counterclaim falling within the precise parameters of the object of the specific dispute as delineated by the Court. In other words, it is not enough to establish consent ratione materiae on one of the generally recognized bases of jurisdiction; it is further required of a counterclaimant respondent to accommodate the subject-matter of its counterclaim into the exact subject-matter of the principal claim upon which the Court has determined to have jurisdiction in the specific case. This approach deviates considerably from the position adopted by the Permanent Court in the Chorzów Factory case and has been strongly and rightly criticized by Judge Higgins in her separate opinion in Oil Platforms. It narrows to a great extent the right of a respondent to present a counterclaim within the parameters of the jurisdictional basis invoked by the applicant that meets the requirement of direct connection but does not fit exactly within the precise subject-matter framework of the principal claim. Moreover, in Oil Platforms the Court appears to draw a distinction between jurisdiction for the purposes of counterclaims incidental proceedings and jurisdiction for the purposes of adjudicating upon the merits of a counterclaim. In this respect, the Court treats the objections of an original applicant to its jurisdiction with respect to a counterclaim not as preliminary objections to be disposed of at the counterclaims stage but objections essentially of a non-preliminary character to be dealt with at the stage of the merits.126 This conveyed the impression that this indicates that at the counterclaims stage of the proceedings it is sufficient for the Court to satisfy itself that it has not merely prima facie jurisdiction but that it essentially but not necessarily finally or definitively has jurisdiction. At the same time, a counterclaim is an independent claim the settlement of which also requires the consent to the jurisdiction of the Court. This leads to the conclusion that the Court is expected under Article 36 (6) of its Statute to ascertain ex officio the existence of this consent. However, the Court has never in its practice with regard to counterclaims so far referred to this provision of the Statute and this may convey the impression that if the principal applicant fails to object to the jurisdiction of the Court with respect to the counterclaim a definitive and final settlement of the issue is effected at the counterclaims stage of the proceedings. Unless there is a situation where the principle of forum prorogatum applies (and this depends exclusively on the conduct or the express statements of the principal claimant) then the Court may appear to presume the existence of consent to its

126

This position has been adopted by the Court twice in its jurisprudence, in the Oil Platforms case (jurisdiction) and in the Congo v. Uganda case (admissibility).

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jurisdiction to be seized with a counterclaim. This may render counterclaims a very unpredictable procedure in practice with all it may entail about the willingness of States to submit disputes to the Court. On the other hand, bearing in mind the rigor with which the Court approaches the matter of consent of States to its jurisdiction it may simply be assumed that the Court does exercise its competence de la competence with respect to counterclaims. The course of action described above appears to have been overturned in the Jurisdictional Immunities case. There the Court has dealt with the objection of Germany as a preliminary objection at the counterclaim stage of the proceedings. The Court has not explained this change of addressing the issue. This writer has submitted that the absence of a prior determination of jurisdiction in a Preliminary Objections Judgment appears to be important as well as the fact that the counterclaim of Italy manifestly fell outside the jurisdiction of the Court as this was formulated by the 1957 European Convention. This development gives rise to two further observations: First that the requirement of jurisdiction under Article 80 of the Rules appears to constitute a formidable hurdle for a counterclaimant respondent for the Court approaches jurisdiction with much greater rigor than ‘‘direct connection’’. Therefore, a principal applicant that wishes to have a counterclaim overruled has more chances to succeed in its goal if it raises objections to the jurisdiction of the Court. Secondly, if the objection to jurisdiction is upheld then the principal applicant achieves a much wider goal: it is likely to be protected in perpetuity from proceedings before the ICJ because the same claim may not be brought against it by way of separate application. Thus, a state may be shielded from an unwelcome litigation in the future if it succeeds in having a claim against it rejected summarily127 as a counterclaim in proceedings where it is the principal Applicant.128

4.2 Direct Connection The ‘‘direct connection’’ with the subject-matter of the principal claim constitutes the second requirement for the admissibility of a counterclaim in the main proceedings of a case. It is noteworthy that particular importance has been given to direct connection as a restricting factor on presenting counterclaims in the sense

127

It is the consistent practice of the Court so far not to hold hearings in counterclaim proceedings. 128 On this point see Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judge ad hoc Gaja (declaration): ‘‘In case of a denial of jurisdiction, the defendant State would be effectively prevented from bringing to the Court the inadmissible counter-claim as a separate claim.’’

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that had jurisdiction been the only requirement it would not be sufficient to prevent a respondent from presenting any counterclaim it wished.129 The requirement of ‘‘direct connection’’ has its origin in the Chorzów Factory case in which the Permanent Court ruled that the counterclaim presented by Poland was ‘‘juridically connected with the principal claim’’130; the requisite connection between the principal claim of Germany and the Polish counterclaim lay in the objection raised by Poland to the merits of the claim of Germany with regard to the extent of the indemnity due to it.131 It is worth noting that the subjectmatter of Poland’s counterclaim was not premised on the Geneva Convention on Upper Silesia that constituted the basis of both the principal claim and the jurisdiction of the Permanent Court, but on Article 256 of the Treaty of Versailles. Moreover, under Article 40 of the Rules of Procedure in force at the time of the judgment the Court had only to satisfy itself that both claim and counterclaim came within its jurisdiction. It seems that the ‘‘juridical connection’’ requirement was formulated as an acknowledgment of the fact that there was a substantive connection between claim and counterclaim, although Germany did not object to the jurisdiction of the Court on the grounds that the subject-matter of the counterclaim of Poland concerned a treaty other than the one the interpretation and application of which the Court had jurisdiction to be seized with.132 The position taken by the Permanent Court in this regard appears more flexible than the position adopted by its successor with respect to the US counterclaim in the Oil Platforms case.133 Be it as it may, the articulation of ‘‘juridical link’’ in Chorzów was espoused by Anzilotti in his classical article134 and proposed as additional requirement for the admissibility of counterclaims. This proposal was adopted, apparently under Anzilotti’s influence, by the Court in the course of the revision of its Rules in 1936. Article 63 of the revised Rules added ‘‘direct connection’’ to the jurisdiction of the Court as a requirement for the admissibility of counterclaims.135 It appears, moreover, that connection to the subject-matter of the principal claim was viewed

129 Genet 1938, 165, 177–178 expressed the view that ‘‘direct connection’’ appeared an inflexible concept having the potential of restricting the making of counterclaims; id., 166–167 taking the view that connection is manifested by the fact of unity of the object of litigation. 130 PCIJ Ser. A No 17 (1928), 38. 131 See supra Chap. 3. 132 Cf. Thirlway 1999, 209–210, maintains that Poland had invoked Article 256 of the Treaty of Versailles both as a defence on the merits and a basis of counterclaim. As a result ‘‘the counterclaim was connected with the principal claim via the defence … this was a counterclaim that could not but be examined in justice to the respondent.’’ In other words, according to Thirlway, the Permanent Court by applying the ‘‘juridical connection’’ appears to have addressed a particular contingency in the circumstances of the specific case before it rather than introducing an additional requirement for the admissibility of counterclaims. 133 See supra Sect. 4.1.2.2. 134 Anzilotti 1930, 870. 135 See supra Chap. 3.

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by the Judges of the Permanent Court in 1936 as a restricting factor rather than as an enabling device to introduce counterclaims of substantive similarity under two different instruments after having established the jurisdiction of the Court on only one rather than on both of them. Therefore, the introduction of direct connection as a requirement for the admissibility of counterclaims was perceived as extending beyond the coordination of the Rules with the jurisprudence of the Court as it existed at the time. It was viewed as a further limitation on the right to present counterclaims. During the preparatory work of the 1936 Rules Judge Schücking raised the issue of whether counterclaims could be presented even if they had no connection with principal claim and referred to the silence of the original 1922 Rules on the matter.136 Judge Anzilotti replied that the question of connection had been settled by the Court in ‘‘one of its judgments’’, namely the Chorzów Factory judgment.137 However, the import of direct connection was discussed in greater detail after the submission of a draft provision on counterclaims that eventually became Article 63 of the 1936 Rules of the PCIJ. Judge Negulesco, one of the sponsors of the new provision, stated that the purpose of direct connection was to exclude ‘‘cross-action’’ from the ambit of counterclaims. He illustrated this position by giving the example of the collision of two vessels belonging to two different States and the presentation of a claim of damages by one of them that is countered by a counterclaim of damages by the other. Judge Negulesco asserted a very narrow concept of counterclaims on the basis of direct connection, namely that they constituted the defence to the main proceedings and it was only in this regard that they could be presented.138 Judge Fromageot, another sponsor, stated that direct connection meant only a connection of fact, namely, that the same factual basis would underlie both the principal claim and the counterclaim. He also remarked that a connection in law could not be ruled out—for instance, two opposing claims based on the same treaty provision—but in this case the presentation of a demand by way of counterclaim would not be admissible.139 A rather less strict view was suggested by Judge Schücking, namely, that the concept of direct connection was sufficiently flexible so that it would be articulated by the jurisprudence of the Court and that it generally would mean a connection of both fact and law.140 Furthermore, Judge Anzilotti remarked that to define precise criteria of direct connection was a complex task better to be determined by the Court itself in the course of its jurisprudence and only after the emergence of a consistent approach to the matter by the Court should a definition of direct connection be attempted.141 Judge Fromageot returned to the matter and stated that

136 137 138 139 140 141

PCIJ Ser. D No. 2 (Third Addendum) (1936), 105. Ibid. PCIJ Ser. D No. 2 (Third Addendum) (1936), 111. Id., 112. Ibid. Id., 113. Judge van Eysinga expressed the same view, ibid.

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direct connection meant that a remote connection would not suffice142 and that it concerned the nature of the claim.143 Finally, Judge Wang expressed the view that the requirement of direct connection sought to reconcile two opposing aspects concerning the right to present counterclaims, namely, the unqualified admissibility of counterclaims and the total prohibition of counterclaims.144 The Permanent Court in its jurisprudence subsequent to the revision of the Rules in 1936 did not embark upon defining the concept of ‘‘direct connection’’ possibly because such connection was conspicuous in the cases where counterclaims were presented and at any event no objections were raised by the principal claimant with regard to the requirement of direct connection. Thus, in the Diversion of the Water of the River Meuse case the counterclaim presented by Belgium concerned breaches of the same treaty and with regard to the same factual context, namely, the use of the waters of the Meuse, that the interconnection between the principal claim and the counterclaim was plainly evident. In its judgment the Court simply remarked: ‘‘As this claim [the counterclaim of Belgium] is directly connected with the principal claim, it was permissible to present it in the Counter-Memorial.’’145 Furthermore, in the Eastern Greenland case the Court did not even acknowledge the existence of a direct connection between the claim of Denmark and the counterclaim of Norway; again this would appear superfluous as both claim and counterclaim concerned the same legal and factual object, namely, title to sovereignty over the same territory.146 The present Court adopted verbatim Article 63 of the PCIJ Rules in the counterpart Article 63 of the 1946 Rules and had the opportunity to enquire into the direct connection requirement for counterclaims in the Asylum case. Peru presented a claim in which it requested the Court to ‘‘adjudge and declare as a counter-claim under Article 63 of the Rules of Court, and in the same decision, that the grant of asylum by the Colombian Ambassador at Lima to Victor Raul Haya de la Torre was made in violation of Article 1, paragraph 1, and Article 2, paragraph 2, item 1 … of the Convention on Asylum signed in 1928, and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty.’’147 The Court stated that Colombia had objected to the admissibility of the counterclaim on the basis of Article 63 of the [1946] Rules of the Court by asserting that it was not directly connected with the subject-matter of the application. In particular, as the Court understood, Colombia argued that the

142

Ibid. Id., 115. 144 Id., 114. 145 PCIJ Ser. A/B No 70 (1937), 28. 146 PCIJ Ser. A/B No 53 (1933), 24. 147 Asylum Case (Colombia/Peru), ICJ Rep. 1950, 266, at 280. It must be noted that the last phrase ‘‘in any case the maintenance of the asylum constitutes at the present time a violation of that treaty’’ did not appear in the counterclaim as was formulated in the Counter-Memorial of Peru, but was inserted for the first time during the oral proceedings. 143

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counterclaim of Peru had raised new issues, beyond the principal claim, and tended to alter the grounds of the dispute. The Court rejected Colombia’s objection in these terms: The Court is unable to accept this view. It emerges clearly from the arguments of the Parties that the second submission of the Government of Colombia, which concerns the demand for a safe-conduct, rests largely on the alleged regularity of the asylum, which is precisely what is disputed by the counter-claim. The connexion is so direct that certain conditions which are required to exist before a safe-conduct can be demanded depend precisely on facts which are raised by the counter-claim. The direct connexion being thus clearly established, the sole objection of the admissibility of the counter-claim in its original form is therefore removed.148

What may be inferred from the above ruling is that the direct connection between claim and counterclaim is a connection in both law and fact. In the particular case the second submission of Colombia’s claim with regard to the alleged obligation of Peru to grant safe-conduct to Haya de la Torre presupposed the lawfulness of granting asylum on the premises of the Colombian Embassy in Lima. It was precisely the issue of the lawfulness of the specific grant of asylum in the context of the same circumstances that was disputed by Peru in its counterclaim with the aim to divest itself of the obligation it allegedly incurred. In the US Nationals in Morocco case France instituted proceedings against the USA claiming inter alia the right to levy taxes on US nationals with particular reference to the consumption taxes introduced by the Royal Decree (Shereefian Dahir) of 28 February 1948. The United States presented a counterclaim according to which, first, by virtue of Article 95 of the Act of Algeciras the value of goods imported from the United States had to be assessed for the purposes of customs duties on the basis of the goods’ purchase value in the USA and not in the Moroccan market and, secondly, the US nationals enjoyed immunity from taxation and, in particular, from the consumption taxes provided in the Decree of 28 February 1948.149 The Court did not make any pronouncements on the admissibility of the US counterclaim (jurisdiction and direct connection) possibly because France raised no objections. It went on to reject the part of the counterclaim concerning immunity from taxation on its merits and to uphold its part on the assessment of the value of goods in the USA but not as the sole basis of determining their purchase value for customs purposes.150 It was in the jurisprudence of the Court following the introduction of Article 80 of the Rules in 1978 where the concept of ‘‘direct connection’’ was more extensively discussed.

148

ICJ Rep. 1950, 266, at 280–281. Case Concerning Rights of Nationals of the United States of America in Morocco (France v. USA), ICJ Rep. 1952, 176, at 181. 150 Id., 203–213. In the dispositif the Court ruled with regard to the latter issue that ‘‘in applying Article 95 of the General Act of Algeciras, the value of merchandise in the country of origin and its value in the local Moroccan market are both elements in the appraisal of its cash wholesale value delivered at the custom-house.’’ 149

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In the Bosnian Genocide case Bosnia and Herzegovina objected to the counterclaim of Yugoslavia (that Bosnia had itself committed genocide against the Bosnian Serbs) arguing that it lacked direct connection with the subject-matter of Bosnia’s original application. Bosnia adopted a very narrow approach to the concept of direct connection based on absolute factual and normative reciprocity. It asserted that the facts underlying the counterclaim of Yugoslavia were completely different from the facts on which the claim of Bosnia was based because they involved acts, perpetrators and victims that were unique in each set of facts. Therefore, the examination of each set would have no bearing upon the judicial analysis of the other and ‘‘could not affect its outcome in any way whatsoever.’’151 Moreover, Bosnia argued that the specific nature of the obligations under the Genocide Convention, namely, their non-reciprocal and erga omnes character would, as a matter of principle, preclude Yugoslavia from requesting the Court to find a relationship between the two claims and, in any event, the judicial finding of a violation of the Genocide Convention was totally unrelated to the fact that a second violation was committed.152 Yugoslavia expressed a broad view of direct connection and contended that the principal claim and the counterclaim were premised on the same legal basis, namely the Genocide Convention and the rules of general international law on State responsibility; moreover, the relevant facts underlying Bosnia’s claim and Yugoslavia’s counterclaim, though not identical, constituted part of the same conflict and took place in the same territorial and temporal context.153 Furthermore, Yugoslavia argued it was not problematic that identical facts would support both its defence against the allegations made by Bosnia of its responsibility for acts of genocide committed by the Bosnian Serbs and its counterclaim, and agreed with Bosnia that a breach of the Genocide Convention cannot justify another breach of this Convention stressing at the same time that the subject of the dispute between the parties was the existence of a breach of the Convention.154 The Court proceeded to elaborate for the first time on the concept of ‘‘direct connection’’: …the Rules of the Court do not define what is meant by ‘‘directly connected’’; …it is for the Court, in its sole discretion, to assess whether the counter-claim is sufficiently connected to the principal claim, taking account of the particular aspects of each case; and … as a general rule, the degree of connection between the claims must be assessed both in fact and in law; …155

The Court found with respect to connection in fact that in the case at bar the claim and counterclaim rested ‘‘on facts of the same nature’’ that ‘‘form part of the same factual complex’’, namely facts that have taken place on the same territory 151 152 153 154 155

ICJ Rep. 1997, 243, at 252 para 11. Id., 252–253 para 12. Id., 254 para 18. Id., 255 paras 20–21. Id., 258 para 33.

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during the same period of time.156 As to connection in law the Court ruled that the absence of reciprocity under the Genocide Convention was not determinative in relation to legal connection between the principal claim and counterclaim; rather, the critical factor was whether the parties pursued the same legal aim, which in this case was the establishment of responsibility for breaches of the Genocide Convention.157 In other words, the connection in law rested not on the substantive or primary obligations of the parties under the Convention but on the consequences premised on the secondary rules of State responsibility because of the alleged breach of the primary obligations. The content of ‘‘direct connection’’ was discussed at some length by the two Judges ad hoc for Bosnia and Yugoslavia, respectively, Judge Sir Elihu Lauterpacht and Judge Krec´a. Judge Krec´a took the view that ‘‘connection’’ did not signify ‘‘identity’’ of the subject-matter of the principal claim and counterclaim as connection exists as a matter of common sense between things that exist separately: ‘‘One thing cannot have a connection with itself for in that case it would not be a separate thing, but just a relationship between things.’’158 As to ‘‘direct’’ connection he stated that it was only a qualification that defined the ‘‘quality of the connection.’’159 He then expressed the view that the Court had tacitly given preponderance to connection ‘‘in law’’ over connection ‘‘in fact’’ and explained that the former creates the basis of complementarity between claim and counterclaim arising out of the same facts which may not exist in every case; the complementary relationship established by connection ‘‘in law’’ would exclude the possibility of ‘‘cross-action’’ in the course of the same proceedings and dispense with the subjective perception of the facts of the case which might be maintained by each party.160 As a result he was in agreement with the Court on evaluating connection ‘‘in fact’’ on the basis not of specifically identified or isolated facts but of a general ‘‘factual complex’’ or ‘‘factual background.’’161 Sir Elihu Lauterpacht pointed at the difference of approach of the parties toward the concept of ‘‘direct connection’’. He highlighted, on the one hand, the ‘‘restrictive’’ approach adopted by Bosnia that argued for identity of victims and perpetrators of genocide that would result in judicial analysis in the context of which ‘‘the facts in the counter-claim must have a relationship to, or must be of help in, the examination of the facts of the original claim’’, and on the other, the ‘‘broad’’ approach of Yugoslavia for whom it was ‘‘sufficient that the counterclaim ‘raised the question of genocide of the Serbs as one relevant to contradicting facts presented by the Applicant as being relevant for attributing alleged acts to the

156 157 158 159 160 161

Id., para 34. Id., para 35. Id., 268. Ibid. Id., 268–270. Id., 270.

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Respondent.’’’162 Judge Lauterpacht then agreed with the approach adopted by the Court stating that the broad approach should be opted for because of the nature of the concept of genocide as an accumulation of criminal acts (and not constituting a single criminal act): ‘‘It is sufficient that the acts invoked as constituting the basis of the counter-claim should be directly connected with the principal claim by reason of their occurrence in the same conflict. The policy underlying the prohibition of genocide favors the broader view since the particular obligations of respect for human rights embodied in the Genocide Convention are ones which rest with equal weight upon all persons involved.’’163 In the Oil Platforms case the Court adopted the same position on ‘‘direct connection’’ that it had articulated in the Bosnian Genocide case. The counterclaim presented by the United States alleged that Iran had breached its obligations under Article X of the 1955 Treaty between Iran and the USA by laying mines and attacking vessels in the Persian Gulf in the period 1987–1988 ‘‘that were dangerous and detrimental to maritime commerce.’’164 Iran raised objections to the US counterclaim with regard to its direct connection with the subject-matter of its application alleging, first, lack of specificity which would enable the Court to consider the existence of direct connection, and, secondly, the lack of direct connection as such.165 In particular, Iran alleged that the US counterclaim constituted a general assertion of violation by Iran of the freedom of commerce and navigation between the two States which failed to establish even remotely ‘‘a legal and factual connection between such a violation and the attacks on the platforms.’’166 Moreover, Iran argued that six of the incidents invoked by the USA did not concern vessels engaged in commerce or navigation between the two States, the seventh incident involving the tanker Texaco Caribbean related to a vessel that was not US-flagged and only two incidents involved US vessels (the Bridgeton and the Sea Isle City) on the assumption (disputed by Iran in relation to the requirement of jurisdiction) that there was a sufficient legal link between Article X (1) on freedom of commerce (the sole basis of the jurisdiction of the Court to hear Iran’s claim) and Articles X (3–5) on freedom of navigation of the 1955 Treaty.167 The USA countered that the requirement of direct connection in Article 80 of the Rules referred to the ‘‘subject-matter’’ of the claim not the claim itself; therefore a counterclaim need not be identical (‘‘a mirror image’’) to the principal claim or be premised on precisely the same facts but be sufficiently linked to the facts on which the principal claim rests.168

162 163 164 165 166 167 168

Id., 281. Id., 282. ICJ Rep. 1998, 190, at 193 para 4. Id., 197, paras 15–16. Id., para 17. Id., para 18. Id., 200–201 para 23.

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The Court repeated its ruling of the Bosnian Genocide counterclaim Order (quoted supra) and found that in the case before it, first, the claims of Iran and the USA rested on facts of the same nature; secondly, they formed part of the same factual complex since they allegedly occurred in the same territorial context (i.e. the Persian Gulf) during the same period of time (i.e. the final stage of the Iran-Iraq war); thirdly, the USA suggested its intention to rely on the same facts so as to deny the allegations of Iran and obtain judgment against it; and, finally, both parties pursued the same legal aim, namely, the responsibility for violations of the 1955 Treaty.169 On the basis of this reasoning the Court reached the conclusion that the counterclaim of the United States was admissible. Judge ad hoc Rigaux took the view that the jurisprudence of the PCIJ and the ICJ at the moment of the deliberation of the Court indicated that the requirement of direct connection should be applied restrictively.170 He explained that the restrictive approach required that connection should be very close, namely, when both claim and counterclaim are based on the same facts or when the counterclaim arose from the same contract or facts upon which the principal claim was premised.171 Expressing a very extreme version of the restrictive approach, he stated that in the dispute between Iran and the USA there was ‘‘no unity of action’’ because there was a factual and qualitative difference between the attacks against oil platforms and the attacks against vessels sailing in other parts of the Persian Gulf.172 In the Cameroon v. Nigeria case the original Applicant (Cameroon) raised no objections to Nigeria’s counterclaims that alleged the responsibility of the former for a series of armed incidents along the disputed border between the two States. The Court ruled that the counterclaims were admissible as directly connected with the subject-matter of Cameroon’s claim. The Court’s Order stated that the counterclaims were premised on facts of the same nature as Cameroon’s claims, namely, all the acts that occurred along the common border between the two States and that both claim and counterclaim pursued the same legal purpose, which was the establishment of responsibility and the determination of reparation.173 In the Congo v. Uganda case the Respondent, Uganda, presented three counterclaims against the principal Applicant, the Democratic Republic of the Congo (the DRC). First, it alleged that the Congo was responsible for acts of aggression against it for the period 1994–2001; secondly, that the Congo was responsible for attacks on the Embassy of Uganda in the Congolese capital Kinshasa and the maltreatment of the diplomatic personnel and other Ugandan nationals; and, thirdly, that the Congo was responsible for violations of the Lusaka Agreement of

169 170 171 172 173

Id., 204–205 paras 37–38. Id., 227–230. Id., 234. Id., 235. ICJ Rep. 1999, 983, at 985.

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10 July 1999 concerning the termination of the conflict in the Congo between the central Government and various dissident armed groups. The Congo objected to all three counterclaims arguing that they lacked direct connection with the subject-matter of the principal claim. At the outset it introduced a general objection for lack of direct connection maintaining that in principle counterclaims should not only be connected ‘‘in fact and in law’’ with the principal claim but with the defence on the merits as well.174 It then raised specific objections to each of the three counterclaims. With regard to the first of Uganda’s counterclaims, the Congo asserted that it was directly connected to the principal claim only with regard to the alleged acts of force occurring in the period between May and August 1998. The Congo maintained that the acts of force that allegedly took place prior to May 1998 were not directly connected because they occurred prior to the creation of the DRC and not during the same period as the events in its application.175 Moreover, with respect to the counterclaim concerning the attacks on the Ugandan Embassy, Ugandan diplomatic staff and nationals, Congo argued that they lacked connection with the principal claim either in law or in fact because they were not facts of the same nature and the parties did not pursue the same legal aim.176 Finally, the Congo objected to the direct connection of the counterclaim concerning alleged violations of the Lusaka Agreement because they did not constitute facts of the same nature. Moreover, as the Agreement had not been concluded at the time of the DRC’s application, the third counterclaim related to legal rules manifestly different from those constituting the basis of the DRC’s application and would result in the broadening the subject-matter of the dispute.177 In its Order of 29 November 2001 the Court began by making a general pronouncement on the requirement of ‘‘direct connection’’ essentially repeating its position in the Bosnian Genocide case in 1997: …the Rules of Court do not however define what is meant by ‘‘directly connected’’; …it is for the Court to assess whether the counter-claim is sufficiently connected to the principal claim, taking into account the particular aspects of each case; …as a general rule, whether there is the necessary direct connection between the claims must be assessed both in fact and in law; …178

The Court then proceeded to consider each of Uganda’s counterclaims separately. With respect to the first counterclaim the Court ruled that it was admissible because both it and the principal claim related to facts of the same nature, namely the use of force and the provision of material assistance to armed bands; both claim and counterclaim constituted part of the same factual context because they related to a conflict which had been in progress between the two States since 1994; and, finally, both claim and counterclaim were connected in law as both States pursued 174 175 176 177 178

ICJ Rep. 2001, 660, at 667 para 10. Id., 667–668 paras 11–12. Id., 668 para 13. Id., 669–670 para 14. Id., 678 para 36.

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the same legal aims, namely, the establishment of their respective responsibility.179 Moreover, with respect to the second counterclaim the Court ruled that it was admissible because the attacks on the Embassy of Uganda, its diplomatic personnel and its nationals took place after the alleged invasion of the DRC by Uganda in 1998 and each party held the other responsible for various acts of oppression that accompanied the use of force. Consequently, the facts underlying claim and counterclaim constituted facts of the same nature, they formed part of the same factual complex (namely, the conflict in the DRC) and the parties pursued the same legal aims.180 Finally, the Court rejected the third counterclaim of Uganda as inadmissible for lack of direct connection with the principal claim and in this respect had the opportunity to elaborate further on the concept of connection in both fact and law. The Court pointed that the third counterclaim of Uganda referred not to facts related to the conflict as such but to methods for resolving the conflict whereas the principal claim of the DRC had as its subject-matter the alleged responsibility of Uganda for acts that occurred in the course of the conflict between the two States. As a result, the counterclaim of Uganda was premised on facts of a different nature and both claim and counterclaim did not form part of the same factual complex. Furthermore, the Court found that the parties did not pursue the same legal aims because each of the parties sought to establish the responsibility of the other for violation of different rules; namely, the DRC aimed at having the Court to adjudge that Uganda was responsible for violations of the rules on the non-use of force, non-intervention, the humanitarian law of armed conflict and the protection of human rights, while Uganda aimed at establishing the responsibility of the DRC for violations of the Lusaka Peace Agreement.181 In his Declaration Judge ad hoc Verhoeven expressed the view that the Court should not apply the criteria concerning direct connection in a ‘‘mechanical manner’’, losing sight of the rationale underlying the right to present counterclaims, namely procedural economy and better administration of justice, Also, he warned against the adoption by the Court of a liberal approach toward the evaluation of the direct connection requirement by drawing a link between the requirement of connection with the consent of the parties to the jurisdiction of the Court.182 At the stage of the Merits of the Congo v. Uganda case the Court revisited the objections of the DRC to the first and second counterclaims of Uganda as preliminary objections to admissibility with respect to the merits of these counterclaims. The objection raised by the DRC against the first counterclaim of Uganda was partial as it concerned only the contention that Zaire (as the name of the country then was) had provided material assistance to and failed to exercise vigilance in preventing the armed activities of anti-Ugandan guerrilla organizations from its

179 180 181 182

Id., Id., Id., Id.,

678–679 paras 38–39. 679–680 paras 40–41. 680 paras 42–43. 684 (Judge ad hoc Verhoeven, declaration).

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territory in the period between 1994 and 1997.183 The DRC argued that Uganda had renounced its right to invoke the responsibility of the DRC because, first, it had neither attributed responsibility to Zaire, nor had it expressed any intention of doing so; furthermore, the friendly relations between the two countries and their close cooperation in security matters between May 1997 and July 1998 led the DRC to reasonably believe that no such claim would ever be brought by Uganda.184 The Court at the outset made clear that the Order on the Ugandan counterclaims of November 29, 2001 ‘‘does not deal with questions of admissibility outside the scope of Article 80 of the Rules’’185 and then rejected the objection ruling that there had been nothing in the conduct of Uganda that suggested either an express or implicit and unequivocal waiver of its right to bring a counterclaim asserting the responsibility of the DRC; moreover, the Court pointed out that the existence of friendly relations between two States does not affect their legal rights.186 As to the second counterclaim of Uganda, the DRC contented that it was inadmissible with respect to its alleged responsibility for violations of the Vienna Convention on Diplomatic Relations (1961) (elaborated in the Rejoinder of Uganda) because by invoking it Uganda ‘‘breaks the connection with the principal claim’’, namely the alleged violation of the obligations of non-use of force, nonintervention and the rules of the Hague and Geneva Conventions on the protection of individuals and property in time of armed conflict and military occupation.187 The Court, again, rejected the objections of the DRC in so far as its alleged responsibility under the 1961 Vienna Convention was concerned, which involved the forcible take-over of the Ugandan Embassy in the capital of the DRC, Kinshasa, the expropriation of movable property, the maltreatment of individuals on the Embassy premises and the maltreatment of Ugandan diplomats at the Kinshasa international airport.188 The Court reasoned that the counterclaim of Uganda on the basis of the 1961 Vienna Convention was directly connected with and did not widen the subject-matter of the dispute as this was delineated by the principal claim for in its Order on counterclaims of November 29, 2001 it found that direct connection existed because ‘‘each Party holds the other responsible for various acts of oppression allegedly accompanying an illegal use of force’’ and ‘‘each Party seeks to establish the responsibility of the other by invoking, in

183 Namely, prior to the overthrow of the government of President Mobutu Sese Seko and the renaming of the State as DRC in May 1997. 184 Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Merits), ICJ General List No 116, para 281, www.icj-cij.org 185 Id., para 291. 186 Id., paras 293–294. 187 Id., para 314; the DRC also contended that the claim concerning the inhumane treatment of Ugandan nationals was inadmissible because the requirements for the exercise of diplomatic protection had not been met, id., para 315. 188 Id., paras 327–332. By contrast, the Court ruled that the claim concerning the maltreatment of Ugandan nationals not enjoying diplomatic status at the Kinshasa international airport was inadmissible because it did not meet the requirements of the exercise of diplomatic protection.

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connection with the alleged illegal use of force, certain rules of conventional or customary law relating to the protection of persons and property.’’189 In an interesting passage of the Judgment on the Merits of 19 December 2005 the Court adopted a very flexible and broad position on what it considered to constitute a connection with the subject-matter of the principal claim, namely, the alleged violations by Uganda of the jus ad bellum and the jus in bello. The Court ruled that its decision in the counterclaim proceedings was … sufficiently broad to encompass claims based on the Vienna Convention on Diplomatic Relations, taking note that the new claims are based on the same factual allegation, i.e. the alleged illegal use of force. The Court was entirely aware, when making its Order, that the alleged attacks were on Embassy premises. Later reference to specific additional elements, in the context of an alleged illegal use of force, does not alter the nature or the subjectmatter of the dispute. It was the use of force on Embassy premises that brought this counter-claim within the scope of Article 80 of the Rules, but that does not preclude examination of the special status of the Embassy. … counter-claims do not have to rely on identical instruments to meet the connection test of Article 80 …190

This passage echoes the Judgment of the PCIJ in the Chorzów Factory case on the matter of connection; it is submitted, however, that it goes a step further in that it has allowed the admissibility of a counterclaim that appears to be premised on facts not immediately but incidentally connected with the alleged violations of Article 2 (4) of the Charter and of the law of armed conflict. The fact that the Ugandan Embassy premises were forcibly occupied by DRC troops does not automatically or necessarily render this episode an integral part of the facts constituting an alleged breach of the prohibition of the use of force or a violation of the laws of armed conflict as the literal meaning of the term direct connection may indicate.191 It was rather part of the general context of relations that developed between the two States as a result of the breaches alleged in the principal claim. Be it as it may, the fact that the breaches of the 1961 Vienna Convention were to a certain degree peripheral to the subject-matter of the DRC claim did not appear to weigh on the ruling of the Court. It, moreover, exposes a discrepancy in rigor by which the Court treats the requirements of jurisdiction and direct connection under Article 80 of the Rules.192

4.2.1 Evaluation of the Jurisprudence of the Court The practice of the Court with regard to the requirement of direct connection of a counterclaim with the subject-matter of the principal claim warrants a number of observations.

189

ICJ Rep. 2001, 660, at 679, para 40. Armed Activities on the Territory of the Congo (D.R. Congo v. Uganda) (Merits), ICJ General List No 116, para 326, www.icj-cij.org 191 See Thirlway 1999, 217. 192 See ICJ Rep. 2001, 660, at 684 (Judge ad hoc Verhoeven, declaration), supra n. 182. 190

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First, the Court reserves a margin of discretion with respect to the existence of direct connection between principal claim and counterclaim.193 This is essentially an exercise in appreciation of the particular aspects of each specific case. In this respect the deliberate lack of definition of ‘‘direct connection’’ in the Rules, as suggested by Judge Anzilotti in the 1930s, has allowed the Court to develop a framework of evaluation that it has consistently applied in incidental proceedings under Article 80 of its Rules. Secondly, the starting point of evaluation is that direct connection must exist both in fact and law.194 Moreover, these two criteria are applied cumulatively.195 Thirdly, with respect to ‘‘connection in fact’’ the Court appears to adopt a broad approach. It does not require identity of facts underlying both claim and counterclaim as Judge Negulesco had proposed. To do otherwise would narrow considerably the right to present counterclaims as the same fact would be required to constitute the basis of both claim and counterclaim like, for instance, a collision of vessels on the high seas (the example used by Judge Negulesco). The result, as it becomes clear from the views expressed in relation to the counterclaim of Yugoslavia in the Bosnian Genocide case, it would be impossible to a respondent to address by way of counterclaim alleged violations by the principal applicant of the same treaty the alleged breach of which constitutes the subject-matter of the main proceedings against it.196 By contrast, the Court seeks to ascertain (a) that the facts are of the ‘‘same nature’’ and (b) ‘‘form part of the same factual complex’’. Facts of the same nature appear to be events of the content which falls into the same type of conduct irrespective of the identity of actor and its repercussions on people or objects, or the same type of situation. Thus, in the Bosnian Genocide case the Court did not accept the contention of Bosnia that the facts underlying the counterclaim of Yugoslavia were totally different from the facts on which its application was premised, in the sense that the former set concerned alleged acts of genocide with specific perpetrators and specific victims whereas the counterclaim related to acts of genocide involving different perpetrators and victims.197 By contrast it treated both sets of facts as relative to the same type of alleged conduct, namely, the issue of the violation of the Genocide Convention. Moreover, in the Oil Platforms case both the destruction of the Iranian oil platforms and the alleged attacks by Iran on commercial vessels in the Persian Gulf were facts that concerned conduct involving the use of force. Finally, the rejection by the Court of the 193

According to Salerno 1999, 351 this is the conclusion to be drawn by appreciating direct connection in the light of the principle of procedural economy; however, this does not give the Court an absolutely unlimited discretion to act as it deems necessary; id., 360–361, 364–365. 194 Genet 1938, 166–167 taking the view that connection is manifested by the fact of unity of the object of litigation. 195 Contra Salerno 1999, 349; Yee 2006, 913. 196 See Lopes Pegna 1998, 735. 197 The additional argument advanced by Bosnia, namely, that the non-reciprocal and erga omnes nature of the crime of genocide sought to reinforce the position on lack of direct connection.

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third counterclaim of Uganda in the Congo v. Uganda case throws more light into the meaning of ‘‘facts of the same nature’’. In this case the Court treated the alleged violations of the Lusaka Agreement as facts concerning a type of situation (namely, the process of resolving the conflict in the Congo) different from the acts of force imputed to Uganda in the DRC application which related to the actually ongoing conflict in the Congo. As for the criterion of the ‘‘same factual complex’’ it appears from the jurisprudence of the Court that the facts underlying claim and counterclaim must have taken place within the same temporal and territorial setting.198 Thus, in the Bosnian Genocide case this setting consisted of the conflict on the territory of Bosnia and Herzegovina during the period from 1992 to the date of the application in 1993; in the Oil Platforms case it was the Iran-Iraq war of 1980–1988 and, in particular, the maritime phase of the conflict in the Persian Gulf during the last 2 years of the war (1987–1988); in the Cameroon v. Nigeria case the ‘‘factual complex’’ comprised the incidents that took place along the common frontier of the two States over an extended period of time; and, in the Congo v. Uganda case it was the conflict that occurred on the territory of the DRC in the period from 1994 to the date of the application. It appears that again the criteria of factual connection must apply cumulatively, for there may exist facts of the same nature that do not form part of the same factual complex. In this case what would be presented as counterclaim would in reality be a cross-action, a contingency that has been expressly excluded by the Court. Fourthly, with regard to connection ‘‘in law’’ the Court has adopted the position that this is established if the parties pursue the ‘‘same legal aim’’. According to the Court this consists in seeking the establishment of the responsibility, on the one hand, of the respondent through the institution of the main proceedings by the original applicant and, on the other, of the latter through the presentation of the counterclaim by the respondent. However, the responsibility of the other party which constitutes the purpose of both claim and counterclaim must be the result of the violation of obligations based on the same treaty or rule of customary law.199 Thus, in the Congo v. Uganda case the Court rejected the third counterclaim of Uganda alleging the breach by the Congo of obligations arising from the Lusaka

198 Cf. Thirlway 1999, 217: ‘‘The mere simultaneity of facts occurring on the same territory would be insufficient to make claims based on them ‘part of the same factual complex’ for the purposes of establishing a direct connection; if Yugoslavia alleged that one of its diplomats had been treated in a manner inconsistent with his immunities the facts of the outrage would have fulfilled this test of the ‘factual complex’ but it must be questionable whether a claim based on it would have been admissible as a counterclaim’’. Thirlway appears to support a rather narrow version of the ‘‘factual complex’’ concept; however, the contingency he invokes by way of example constituted the subject-matter of Uganda’s second counterclaim in Congo v. Uganda and the Court ruled in favour of its admissibility indicating a more flexible approach to the issue. By contrast, Rosenne 2000, 476 takes the view that the ‘‘factual complex’’ criterion is very wide comprising many factors, such as, the title to jurisdiction, the time-span of the counterclaim in relation to the time-span of the principal claim, the territorial aspect, the instruments invoked in the counterclaim, the objective of restoring legality in the relations of the parties to the dispute. 199 Cf. Salerno 1999, 351–352.

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Agreement as not pursuing the same legal aim as the original application in which the Congo sought to establish the responsibility of Uganda for violations of the rule of the prohibition of the use of force.

References ‘‘The Forum Prorogatum before the International Court of Justice: The Resources of an Institution or the Hidden Face of Consensualism’’, Address delivered by the President of the ICJ to the Sixth Committee of the General Assembly on 4 November 1996, ICJ Yearbook 1996–1997, No 51, p 216 Anzilotti D (1930) La Demande Reconventionelle en Procédure Internationale. J du Droit International 57:857 Collier J, Lowe V (1999) The Settlement of Disputes in International Law. Oxford University Press, Oxford Genet R (1938) Les Demandes Reconventionelles et la Procédure de la Cour Permenente de Justice Internationale. Révue de Droit International et de Législation Comparée 19:145 Hudson MO (1943) The Permanent Court of International Justice 1920–1942. Macmillan, New York Lauterpacht Sir H (1958) The Development of International Law by The International Court, London. Reprinted in 1982 by Grotius, Cambridge Lopes Pegna O (1998) Counter-claims and Obligations erga omnes before the International Court of Justice. EJIL 9:724 Murphy SD (2000) Amplifying the World Court’s Jurisdiction through Counter-claims and Third-Party Intervention. Geo Wash Int’l L Rev 33:5 Rosenne S (2000) Counter-claims in the International Court of Justice Revisited. In: Armas Barea CA et al (eds) Liber Amicorum ‘In Memoriam’ of Judge José Maria Ruda. The Hague, Kluwer Rosenne S (2001) The International Court of Justice: Revision of Articles 79 and 80 of the Rules of the Court. LJIL 14:77 Rosenne S (2006) The Law and Practice of the International Court 1920–2005 Vol. III (Procedure), 4th edn. M. Nijhoff, Boston Rosenne S (2007) Essays on International Law and Practice. M. Nijhoff, Boston Ch. 16 Salerno F (1999) La Demande Reconventionelle dans la Procédure de la Cour Internationale de Justice. RGDIP 103:329 Thirlway H (1999) Counterclaims before the International Court of Justice: the Genocide Convention and the Oil Platforms Decisions. LJIL 12:197 Thirlway H (2001) The Law and Procedure of the International Court of Justice 1960–1989, Part Twelve. BYIL 72:38 Yee S (2006) Article 40. In: Zimmermann A et al (eds) The Statute of the International Court of Justice. A Commentary. Oxford University Press, Oxford Zimmermann A et al (eds) (2006) The Statute of the International Court of Justice. A Commentary. Oxford University Press, Oxford

Chapter 5

Procedure

The procedural steps that a respondent is required to take in order to present a counterclaim are provided in Article 80, paragraphs 2 and 3, of the Rules of the International Court of Justice. Moreover, other aspects of procedure are regulated by applying other provisions of the Rules of the Court by analogy. In this chapter the present author shall deal with certain procedural aspects of counterclaims that have arisen in the practice of the Court: (1) the presentation of counterclaims in the Counter-Memorial of the respondent State; (2) the question of the equality of the parties in the course of the counterclaims procedure; (3) the issue of holding or not oral hearings in case of objections to the admissibility of counterclaims; (4) the possible delay in the main proceedings because of the presentation of counterclaims; (5) the notification of counterclaims to third States; and (6) the withdrawal of counterclaims.

5.1 Presentation of Counterclaims in the Counter-Memorial The relevant provisions of the Rules of the Permanent Court and the present Court stipulate that counterclaims may be presented by a respondent State in its CounterMemorial. Thus, Article 40 of the 1922 Rules of Procedure of the PCIJ provided that a Counter-Case (i.e., a Counter-Memorial) shall contain, inter alia, submissions which may include counterclaims provided that the latter came within the jurisdiction of the Court. Article 63 of the Rules of the Permanent Court as they were amended in 1936 provided that ‘‘… a counter-claim may be presented in the submissions of the Counter-Memorial …’’ provided that it came within the jurisdiction of the Court and was directly connected with the subject-matter of the original application. This provision was maintained unchanged in the Rules of Procedure of the International Court—Article 63 (1946 Rules) and Article 68 (1972 Rules)—until 1978. Article 80 (2) of the Rules of the Court currently in force which were adopted in 1978 and amended in 2000 provides: C. Antonopoulos, Counterclaims before the International Court of Justice, DOI: 10.1007/978-90-6704-790-6_5,  T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

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… A counter-claim shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein. …

The question that arises is whether a counterclaim must be presented in the Counter-Memorial as a matter of obligation or, conversely, whether a respondent has the right to present a counterclaim at a stage prior to or even subsequent to the filing of the Counter-Memorial. A textual interpretation of the Rules of the Permanent Court and the International Court, until 1978, appears to leave the matter open. However, the preparatory work that led to the revision of the Rules of the Permanent Court in 1936 reveals that, whereas the presentation of a counterclaim prior to the filing of the Counter-Memorial might be procedurally admissible this would probably not be the case at a subsequent stage in the proceedings. Toward the final stages of the revision process Judge Anzilotti addressed the issue of whether the wording of Article 63 of the Rules introduced an obligation to present a counterclaim in the Counter-Memorial depriving a respondent to do so earlier.1 In his view to exclude the possibility of presenting counterclaims earlier than the filing of the Counter-Memorial would be ‘‘contrary to the interests of the parties and of the Court itself.’’ The matter was pursued further by Judge Schücking who raised the point that ‘‘the wording of the proposed Article 63 did not make clear whether a counter-claim, which fulfilled the conditions laid down therein, could be presented at a stage of the proceedings subsequent to the presentation of the Counter-Memorial.’’2 The President of the Court replied to Judge Schücking that ‘‘such a claim might be filed in the form of an additional application, which the Court might or might not join to the main application.’’3 Moreover, Judge van Eysinga suggested, in agreement with Anzilotti, that the presentation of counterclaims should not be restricted to the Counter-Memorial but be allowed until the end of the written proceedings, this presumably being the filing of the CounterMemorial. The only conceivable way that a counterclaim could be presented prior to the Counter-Memorial is by separate application concerning the same subjectmatter as the original application with the request that this is joined to the main proceedings and provided that there is the requisite jurisdictional basis to seize the Court.4 Thus, an application by State A instituting proceedings against State B asserting title to territorial sovereignty over a particular piece of land may be countered by a separate application of State B against A asserting sovereignty over the same piece of territory. Also, an application by State C against State D claiming reparation arising from the alleged breach of a bilateral treaty on commerce and navigation may be met by a separate application of State D against C advancing the same claim. Be it as it may, the wording of Article 80 (2) of the present Rules of the Court appears to stipulate in mandatory terms that counterclaims ‘‘shall’’ be made in the Counter-Memorial and ‘‘shall’’ appear as part of the 1 2 3 4

PCIJ Ser. D Third Addendum to No 2 (1936), 440. Id., 441. Ibid. See Anzilotti 1930, 875.

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submissions therein. The text of this provision appears to imply, in other words, that the presentation of counterclaims shall be made only in the Counter-Memorial and not before or after its filing.5 This is supported by the express reference of the Court to Article 80 as amended in 2000 in the Jurisdictional Immunities Order: ‘‘nor is it disputed that the claim has been ‘made in the Counter-Memorial and [appears] as part of the submissions contained therein’ in accordance with Article 80, paragraph 2, of the Rules of Court.’’6 There has been to date no case either before the Permanent Court or the International Court in which a counterclaim was presented at a stage earlier than the filing of the Counter-Memorial. By contrast all counterclaims that have been considered by the Court have been presented in the Counter-Memorial. At the same time the practice of the Court as well as the litigants’ points at the conclusion that counterclaims presented or modified at a stage subsequent to the filing of the Counter-Memorial will probably not be entertained by the Court. The present writer uses the word ‘‘probably’’ because the Court far from being explicit it has rather been silent on the matter. In the Asylum case Peru presented a counterclaim in its Counter-Memorial in which it requested the Court ‘‘[T]o adjudge and declare as a counter-claim under Article 63 of the Rules of the Court, and in the same decision, that the grant of asylum by the Colombian Ambassador at Lima to Victor Raul Haya de la Torre was made in violation of the Article 1, paragraph 1, and Article 2, paragraph 2, iitem I (inciso primero) of the Convention on Asylum signed in 1928.’’ However, in the oral proceedings Peru modified its counterclaim by adding at the end of the sentence the phrase ‘‘and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty.’’7 The Court took note of this later-in-time addition but considered the counterclaim in its original version and rejected it upon its merits8; it did not evaluate the counterclaim in its expanded form which was presented for the first time in the oral proceedings. There has only been one case where a counterclaim appears to have been presented in its entirety at a stage of the proceedings subsequent to the filing of the Counter-Memorial. In the final round of oral pleadings in the Djibouti versus France case France appears to have raised a counterclaim alleging a violation by Djibouti of the 1986 Convention on Mutual Assistance in Judicial Matters. Counsel for France argued that the investigation in the case of the death of Judge Bernard Borrel (that constituted the subject of the proceedings before the Court) and the investigation for subornation of perjury initiated against two high officials of Djibouti were two separate cases. He then argued that the summonses served on the latter to appear as witnesses had been transmitted to the Ministry of Justice of

5

Rosenne 2000a, 458. Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, 6, para 13. 7 Asylum Case (Colombia-Peru), ICJ Rep. 1950, 266, at 280. 8 Id., 280 et seq. 6

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Djibouti in accordance with the 1986 Treaty and that Djibouti failed to respond. Counsel for France then asserted that ‘‘[B]y refusing to respond to them, the Republic of Djibouti failed in its obligations under the Convention and, in particular, those resulting from paragraphs 1 and 2 of Article 3 … By prohibiting the two individuals concerned from responding to the summons by the judge in Versailles, with no legal justification whatever, the Republic of Djibouti clearly acted in breach of the 1986 Convention on Mutual Assistance, by which it claims to set such store …’’9 In its Judgment of 4 June 2008 the Court passed over in silence the above allegation made by France. Moreover, it may not be deduced with certainty that the Court will allow the presentation of counterclaims at a later stage from the filing of the CounterMemorial even if the counterclaimant respondent expressly reserves the right to introduce further claims. The issue in this regard is whether a decision on the admissibility of the initial counterclaim is sufficient to cover all subsequent counterclaims. In the Oil Platforms case Iran expressly disputed in principle the right reserved by the USA to introduce further instances of attacks by Iran against US vessels in the Persian Gulf during the final year of the Iran–Iraq war by asserting that ‘‘no counter-claim may be filed after the submission of the CounterMemorial’’; however, it also argued in case that the Court might allow the presentation of further US claims following the submission of the Counter-Memorial that ‘‘in any event, in the case of each such instance which the United States may subsequently seek to introduce, it would be necessary to apply the test of admissibility under Article 80 of the Rules.’’10 In three out of five cases11 of presentation of counterclaims which the Court considered in the context of the incidental proceedings introduced by Article 80 of the 1978 Rules the Court expressly has taken note of the fact that the principal claimant has not disputed that the counterclaim or counterclaims were presented in the Counter-Memorial and as part of the submissions therein.12 In the fourth case, the Congo v. Uganda, the Court dealt with an objection raised by the Congo according to which the counterclaims presented by Uganda in its CounterMemorial did not fulfill the requirement set by Article 80 (2) that the counterclaims had to appear as part of the submissions in the Counter-Memorial. 9

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Pleadings, CR 2008/7 (translation), Public Sitting of 28 January 2008, 43–44, paras 26, 28. 10 ICJ Rep. 1998, 190, at 197 para 15. 11 Namely, the Bosnian Genocide Case, the Oil Platforms Case and the Cameroon v. Nigeria Case. 12 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Counter-Claims) Order of 17 December 1997, ICJ Rep. 1997, 243, 258 para 32; Case Concerning Oil Platforms (Iran v. USA) (CounterClaim), Order of 10 March 1998, ICJ Rep. 1998, 190, 203 para 32; Case Concerning the Land and maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Order of 30 June 1999, ICJ Rep. 1999, 983, 985; Jurisdictional Immunities of the State (Germany v. Italy) (CounterClaim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, 6, para 13.

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According to the Congo the counterclaims of Uganda were vague (‘‘perfunctory and incomplete’’) because it could not be determined from the Counter-Memorial what precisely it was requested from the Court to adjudge and declare. The Congo took particular issue with respect to the assertion of Uganda that it would ‘‘reserve the issue of reparation in relation to the Counter-claims for a subsequent stage of the proceedings’’; it argued that the right to reparation as opposed to the modalities of reparation should have been expressly included as a claim in the CounterMemorial because otherwise Uganda would not be entitled to present any counterclaims at a later stage.13 In this case the Congo asserted that the Court should ‘‘either … presume a claim not appearing in the submissions or to dismiss those submissions as defective.’’14 The Court in its Order rejected the objection of the Congo in these terms: … Whereas Uganda’s counterclaims could have been presented in a clearer manner; whereas, however, their presentation does not deviate from the requirements of Article 80, paragraph 2, of the Rules of the Court to such an extent that they should be held inadmissible on that basis; whereas, moreover, it was permissible for Uganda to refer to a request for reparation without the modalities thereof being stated at this stage; …15

What may be inferred from the above passage is that the Court is prepared to excuse a measure of indeterminacy in the formulation of counterclaims but it is not inclined to accept an extensive or manifest deviation from the requirements of Article 80 (2) of the Rules. The Court did not explain what would constitute a permissible deviation from those requirements. The only logical conclusion that may be drawn is that the counterclaims must be included in the Counter-Memorial but their analytical exposition may not necessarily appear in the final section thereof which includes the submissions of the respondent State. Moreover, the Court upheld Uganda’s request to defer the matter of reparation with respect to the counterclaims at a later stage of the proceedings. The Court appears to have taken the view that a claim of reparation had been made, even though perfunctorily, and the only matter remaining to be settled was to determine the modalities of that reparation. However, this is not the conclusion that would have been drawn beyond any doubt from the formulation of this specific aspect of Uganda’s counterclaim and indeed it has not been the conclusion reached by the Congo. A similar situation arose in the Navigational Rights (Costa-Rica v. Nicaragua) case where in its Reply Costa-Rica took issue with two reservations of right that were included in the Counter-Memorial of Nicaragua. In particular, Nicaragua reserved the right, first, to claim that the Colorado River (of which the San Juan River that constituted the subject of the proceedings was a tributary) was an

13

Case Concerning Armed Activities on the Territory of the Congo (D. R. Congo v. Uganda), Order of 29 November 2001, ICJ Rep. 2001, 660, 665 paras 5–7. It appears that the principal reason for this objection was that the counterclaims of Uganda were not analytically included in the submissions but in Section C, Chapter XVIII of the main text of its Counter-Memorial. 14 Id. para 7. 15 Id., 677 para 33.

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international waterway subject to general international law and not to a particular treaty regime, if the Court determined the claims of Costa-Rica on rules of international law beyond those included in bilateral agreements. Secondly, Nicaragua reserved the right to bring claims against Costa-Rica for ecological damage to the waters of the San Juan River and the diversion of its traditional water flow.16 Costa-Rica asserted in no uncertain terms that ‘‘These ‘‘reservations’’ are of course not counter-claims. Nicaragua’s right to bring a counter-claim expired with the filing of NCM [Nicaragua’s Counter-Memorial].’’17 Moreover, Costa-Rica also pointed out that even if these reservations had constituted counterclaims the requirement of ‘‘direct connection’’ was lacking.18 In the oral proceedings Counsel for Costa-Rica returned to the matter and stressed that those ‘‘reservations are not counter-claims nor do they relate to or arise from any relief sought by Costa-Rica. … If Nicaragua wishes to present these claims or to sustain any argument based upon them, they ought to have been presented properly in these proceedings or in a new Application.’’19 The Court in its Judgment of 13 July 2009 made no reference to the ‘‘reservations’’ of Nicaragua. Moreover, Nicaragua in the submissions in its Counter-Memorial, its Rejoinder as well as in its final submissions at the end of the hearings requested the Court to make a declaration in its Judgment on five issues. Points three and five of Nicaragua’s request referred, respectively, to the obligation of Costa-Rica ‘‘to comply with all reasonable charges for modern improvements in the navigation of the river with respect to its situation in 1858’’ and to the right of Nicaragua to dredge the San Juan River.20 The Court in its Judgment of 13 July 2009 ruled that on the one hand it was doubtful whether the entirety of Nicaragua’s request for a declaration could be considered as ‘‘formal submissions’’ because it requested that the declaration be included in any part of the Judgment, not exclusively in the operative part.21 At the same time the Court pointed with respect to points (iii) and (v) of Nicaragua’s request for a declaration that ‘‘on the assumption’’ that they constituted counter-claims, Costa-Rica had disputed their admissibility on the basis of lack of direct connection with the subject-matter of its application.22 The Court did not deal with the issue of whether the third and fifth

16

Case Concerning the Dispute Regarding Navigational and Related Rights (Costa-Rica v. Nicaragua), Reply of Costa-Rica, vol. 1, 15 January 2008, 7, para 1.16, notes 35, 36. 17 Id. para 1.17. 18 Id. 7 (n. 37): ‘‘Quite apart from the requirement of timeliness, Article 80 requires a counterclaim to be ‘‘directly connected with the subject-matter of the claim of the other party’’: see Article 80 (1). Nicaragua’s ‘‘reservations’’ even if they had been timely presented as counterclaims would not have satisfied this requirement’’. 19 Case Concerning the Dispute Regarding Navigational and Related Rights (Costa-Rica v. Nicaragua), CR 2009/3, Public Sitting held on 3 March 2009, 69 para 26. 20 Case Concerning the Dispute Regarding Navigational and Related Rights (Costa-Rica v. Nicaragua), Judgment of 13 July 2009, para 153. 21 Ibid. 22 Id. para 155. Also see Reply of Costa-Rica, vol. 1, 15 January 2008, 203–206, paras 5.26–5.31.

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part of Nicaragua’s request for a declaration were indeed counterclaims in the sense of Article 80 of the Rules; neither did it discuss their admissibility according to the terms of this provision, namely, the requirements of falling within the jurisdiction of the Court and being directly connected with the subject-matter of Costa-Rica’s claim.23 It rejected them on the basis of the Arbitral Award made by US President Cleveland in 1888 that had settled these issues between Nicaragua and Costa-Rica and on the failure of the former to explain why the Cleveland Award was not a sufficient basis for determining the rights and obligations of the parties with regard to these questions.24 It is submitted that this constitutes an unsatisfactory and barely persuasive treatment by the Court of the third and fifth points of Nicaragua’s request for a declaration. As the Court has demonstrated in the Congo v. Uganda case there is a distinction between the admissibility of a counterclaim on the basis of Article 80 of the Rules and the admissibility of the same claim with respect to its merits. In the former situation the Court examines only the requirements stipulated in Article 80. In the latter contingency it deals with objections to the admissibility of a counterclaim at the stage of the merits in a manner analogous to the preliminary objections phase of the proceedings. The position adopted by the Court in the Navigational Rights case appears to have done precisely this without, however, pronouncing on the admissibility of the alleged counterclaim to become part of the main proceedings on the basis of the requirements in Article 80 of the Rules. For the ruling that the matters forming the substance of the third and fifth points of Nicaragua’s declaration had been settled by the Cleveland Award in the nineteenth century constitutes nothing else than ruling that these claims were inadmissible because they were moot. This raises a number of questions: Is an assumption that these claims of Nicaragua were of the character of counterclaims sufficient to precede the consideration of their admissibility as to their merits? Is one to deduce that by dealing with the admissibility as to their merits the Court has taken for granted that these claims were indeed counterclaims and admissible on the basis of Article 80? Is a hypothesis on the matter sufficient ground to dispose of the objections of Costa-Rica with respect to their nature and admissibility as counterclaims? Or, to put it otherwise, is a hypothesis sufficient ground of the convergence of the requirements of Article 80? It appears that the Court has approached the matter of counterclaims with a high degree of formalism. For, unless a respondent specifically labels a claim as counterclaim or expressly states that this is part of its formal submissions the Court is not inclined to treat it as a counterclaim in the sense of Article 80, even though, like the request of Nicaragua, it is formulated as an independent claim and there is an express request to have a declaratory judgment by the Court. A consequence of restricting the presentation of counterclaims only in the respondent’s Counter-Memorial is that it excludes the possibility of raising

23 24

Id. para 155. Ibid.

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counterclaims by the original applicant to the counterclaims of the original respondent. Apart from causing undue delay in and widening the scope of the proceedings excessively it raises the question of expanding the subject-matter of the principal claim at a stage as late as after the filing of the respondent’s CounterMemorial. This contingency appears to be possible prior to the written proceedings. In Cameroon v. Nigeria the Applicant, Cameroon, filed an additional application on 6 June 1994 extending the subject-matter of its initial application of 29 March 1994 to cover the area of Lake Chad. Cameroon requested the Court to treat its second application as a separate one and join it with its initial application in single proceedings; at the same time it alternatively proposed that its second application should be treated as an amendment to its initial one. The Court upheld this proposal only after Nigeria had consented to it.25 It is doubtful, whether this would be possible after the initiation of the written proceedings. Certainly, an expansion of the subject-matter of the initial application would be treated as a new application giving rise to separate proceedings. Furthermore, the contingency of presenting a counterclaim to a counterclaim has been expressly disputed by the USA in the Oil Platforms case. The US expressly denied any basis to the argument advanced by Iran that ‘‘… it too could have made a counter-claim, pointing out that ‘Iran initiated [these proceedings], asserting claims that it alone selected.’…’’26 In any event, if an original applicant is precluded to amend the subjectmatter of its application then the principle of equality of the parties would require that a counterclaimant respondent would be precluded from introducing or reserving the introduction of additional counterclaims beyond those in its CounterMemorial.27 The principle of equality of the parties is of particular importance to the subject of counterclaims and the present writer shall now turn to it in the following section.

5.2 Equality of the Parties The principle of the equality of the parties in judicial proceedings is a fundamental principle on both the municipal and international planes. According to Kolb: …It defines the structure of the proceedings, which must be adversarial (equality of arms); the same rights must be granted to all parties, and there must be constant dive to equalize eventual unevenness among the parties to the extent that it may influence the possibility of 25

Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Order of 16 June 1994, ICJ Rep. 1994, 105. 26 ICJ Rep. 1998, 190, at 202 para 28. 27 Cf. id., 215, para 8 (Judge Oda dissenting opinion). Judge Oda expressed the view that the principle of the equality of the parties might not be observed even in the case where the respondent’s counterclaim ‘‘is broadened beyond the original contention in the claim of the applicant State. While an applicant State is not itself allowed to bring additional claims, why then may a respondent State be permitted to bring a new claim if this counter-claim is not directly connected with the subject-matter of the Applicant’s claim?’’

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a fair outcome of the trial. This equality is inherent in judicial proceedings, but it also flows from general international law, from the sovereign equality of states and from the principle of the free consent to jurisdiction of which it is a particular reflection. The principle of equality is also substantive, not only structural. It is rooted in the fundamental aim of material justice. In effect, conceptual reflection as well as practical experience show that no fair outcome can be expected from a trial where the two parties did not have the same possibilities to plead and present their case. The principle of equality in judicio is so evident and indispensable for modern legal thinking that it could well be termed a principle of ‘natural law of judicial proceedings’ …28

The observance of the principle of equality in counterclaim proceedings has been a matter of some concern since the work on the major revision of the Rules of the Permanent Court in the inter-war period. Judge Negulesco pointed to the fact that the existing Rule on counterclaims at the time (Article 40 of the 1922 Rules) would result in the inequality of the parties in the written proceedings because while in a normal case the applicant and the respondent would file two documents (Memorial and Reply, the former, Counter-Memorial and Rejoinder, the latter) in the case of presentation of a counterclaim in the Counter-Memorial the original applicant would file only a single document (the Reply) while the original respondent (the counterclaimant) could address the matter a second time in its Rejoinder.29 However, there was no further discussion of the issue with the requirement of direct connection occupying a prominent place in the debate. Equally Article 63 of the PCIJ 1936 Rules did not address the question of equality of the parties in written proceedings and this has remained the case with the ICJ Rules until the year 2001, namely, under Articles 63 of the 1946 Rules, 68 of the 1972 Rules and 80 of the 1978 Rules. It was only after the amendment of Article 80 of the Rules in 2001 that express provision was made with respect to the equality of the parties. Article 80, paragraph 2 now reads: 2. A counter-claim shall be made in the Counter-Memorial and shall appear as part of the submissions contained therein. The right of the other party to present its views in writing on the counter-claim, in an additional pleading, shall be preserved, irrespective of any decision of the Court, in accordance with Article 45, paragraph 2, of these Rules, concerning the filing of further written pleadings.30

This amendment appears to have been the result of the concern expressed by the principal claimants in the cases where Article 80 proceedings have taken place in relation to the presentation of counterclaims by the respondent States. In all these cases the Court conceded to the original applicants the right to present further written pleadings with respect to the counterclaims apart from their Replies. In the Bosnian Genocide case the Applicant, Bosnia and Herzegovina, expressed its concern that ‘‘… when…a counter-claim raises a question which is

28

Kolb 2006, 799. PCIJ Ser. D Third Addendum to No 2 (1936), 107. 30 Emphasis added. The relevant paragraph 2 of Article 80 prior to the amendment read: ‘‘2. A counter-claim shall be made in the Counter-Memorial of the party presenting it, and shall appear as part of the submissions of that party.’’ 29

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independent of the initial claim, any joinder of these claims must be avoided on the grounds that this could have detrimental effects, on the one hand, on the equality of the parties—since the Applicant could only respond once in writing, in its Reply, to the counter-claim—…’’31 The Court took note of this concern and ruled that …it is necessary, moreover, in order to ensure strict equality between the Parties, to reserve the right of Bosnia and Herzegovina to present its views in writing a second time on the Yugoslav counter-claims …32

Judge Weeramantry in his dissenting opinion after stating his concern on the observance of the principle of equality in the written proceedings noted approvingly of the ruling of the Court and said that ‘‘… this is an aspect that needs to be borne in mind whenever future counter-claims are involved …’’33 Moreover, in the Oil Platforms case Iran voiced a similar concern by arguing that ‘‘… in general, the State responding to the counter-claim is ‘at a significant disadvantage’ since ‘it is apparently confined to a single written pleading, whereas the counter-claimant will have both the first and the last written word on the matter’…’’34 Furthermore, Iran asserted on the basis of the principle of equality the right to introduce counterclaims to the counterclaims presented by the United States which in Iran’s view widened the scope of the dispute. However, as it has been seen in the preceding section, such right does not exist and therefore by operation of the principle of equality a widening of the subject-matter of the dispute by the counterclaimant respondent should be precluded. The Court again ruled that ‘‘…it is necessary, moreover, in order to ensure strict equality between the Parties, to reserve the right of Iran to present its views in writing a second time on the United States counter-claim …’’35 In the Cameroon v. Nigeria case, Cameroon did not raise any objections to the counterclaims of Nigeria. It did not even express any concerns about its disadvantaged position in the written proceedings as a result of not observing the principle of equality. Notwithstanding this the Court repeated almost verbatim the ruling in its two previous Orders: ‘‘…it is necessary, moreover, in order to ensure equality between the Parties to reserve the right of Cameroon to present, within a reasonable period of time, its views in writing a second time on the Nigerian counter-claims …’’36 Finally, in the Congo v. Uganda case, even though the Congo did not raise the matter of abiding by the principle of equality of the parties in the written proceedings, the Court again ruled that ‘‘…it is also necessary, in order to ensure strict

31 32 33 34 35 36

ICJ Rep. 1997, 243, at 253 para 15. Id., 260 para 42. Id., 296. ICJ Rep. 1998, 190, at 199 para 20. Id., 206. Also see p. 216 (Judge Oda dissenting opinion); p. 223 (Judge Higgins sep. opinion). ICJ Rep. 1999, 983, 986.

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equality between the Parties, to reserve the right of the Congo to present its views in writing a second time on the Ugandan counter-claims …’’37 It may be assumed that by the time of the Order of the Court in this case the above-quoted ruling of the Court had become a matter of legitimate expectation on the part of an original applicant State. In any event, the amendment of Article 80 (2) of the Rules in 2001 has formalized the observance of the principle of equality of the parties in counterclaim proceedings.

5.3 Oral Hearings Prior to Article 80 of the 1978 Rules of the International Court of Justice, the relevant provisions of the Rules of the Permanent Court (Article 63) and the Rules of the present Court (Article 63 of the 1946 Rules and Article 68 of the 1972 Rules) made no provision with respect to the holding of ‘‘hearings’’ in which the parties would be given the opportunity to express their views on the presentation of counterclaims. Article 63 of the PCIJ Rules did not contain any stipulation on how the Court would evaluate the admissibility of a counterclaim presupposing that this would take place in the stage of the merits, as indeed happened in all cases before the Permanent Court in which counterclaims had been presented. By contrast, Articles 63 of the 1946 Rules and 68 of the 1972 Rules provided that ‘‘…In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the application the Court shall, after due examination, direct whether or not the question thus presented shall be joined to the original proceedings.’’ The phrase ‘‘after due examination’’ is wide enough to give the Court ample discretion on how the evaluation of counterclaims would be effected, whether by way of oral hearings or not. The possibility of hearings was introduced in Article 80 (3) of the 1978 Rules in these terms: 3. In the event of doubt as to the connection between the question presented by way of counter-claim and the subject-matter of the claim of the other party the Court shall, after hearing the parties, decide whether or not the question thus presented shall be joined to the original proceedings.

Moreover, the text of Article 80 (3) as it was amended in 2001 reads: 3. Where an objection is raised concerning the application of paragraph 1, or whenever the Court deems necessary, the Court shall take its decision thereon after hearing the parties.

A first observation is that, unlike the 1978 version, Article 80 (3) covers not only the requirement of ‘‘direct connection’’ but of the ‘‘jurisdiction’’ of the Court as well. Indeed, one may discern in this amendment the experience gained from

37

ICJ Rep. 2001, 660, at 681–682, para 50.

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the practice of the Court. In the Oil Platforms case Iran raised strong objections to the argument advanced by the United States that what the Court was called under Article 80 (3) to decide was only whether the requirement of direct connection was met for the purposes of joining a counterclaim to the main proceedings. As the Order of the Court states Iran argued that …it is … not entirely clear from the language of Article 80, paragraph 3, of the Rules whether the hearing for which that paragraph provides extends to cover an objection … based on lack of jurisdiction; … the decision the Court is called to make under Article 80, paragraph 3, concerns exclusively the question of whether or not the counter-claim should be joined to the original proceedings and does not prejudice in any way the right of the party objecting to the counter-claim to make any defence relating either to the admissibility or to the merits of the counter-claim in a subsequent phase of the proceedings; … the fact that a counter-claim is plainly outside the Court’s jurisdiction is relevant for the purposes of Article 80, paragraph 3, in so far as, on the one hand a counter-claim which fails to satisfy the express requirement imposed by Article 80, paragraph 1, should not be joined to the original proceedings, whether the failure relates to lack of connection or lack of jurisdiction, and on the other hand, there may well be a link between an evident lack of jurisdiction and the lack of direct connection …38

It becomes clear that Iran attempted to bypass what was perceived as a normative deficiency in Article 80 (3) by advancing the cogent argument that it would be illogical of the 1978 version of the Rules to require a hearing on the joinder of a counterclaim to the main proceedings with respect to only one of the requirements of Article 80 (1). Judge Higgins in her separate opinion pointed succinctly at this discrepancy and took the view that the omission of doubt as to the jurisdiction of the Court from the text of Article 80 (3) was not intentional but inadvertent: … No provision is made to hear the parties in the event of doubt as to whether the counterclaim comes within the jurisdiction of the Court. It might be thought that this was perhaps deliberate, and that the intention was that the Court would resolve any doubts as to its jurisdiction only when it got to the merits. … In any event, the idea that ‘‘direct connection’’ within the meaning of Article 80, paragraph 1, should be disposed of as a preliminary matter, while the jurisdiction requirement in Article 80, paragraph 1, should be dealt with on the merits finds no support at all in the travaux préparatoires of the various versions of the Rules, including the present Rules. The failure of Article 80, paragraph 3, to ‘‘match’’ Article 80, paragraph 1, seems to have been inadvertent and there was no intention to distinguish between objections relating to ‘‘connection’’ and those to ‘‘jurisdiction’’ …39

This antinomy between Article 80 (3) and Article 80 (1) was remedied by the 2000 amendment of Article 80. The revision of this provision, however, does not seem to solve the issue of not holding oral hearings that arises from the practice of the Court. In all the Orders on counterclaims that have been made under Article 80 (its 1978 version) the Court took the view that:

38 39

ICJ Rep. 1998, 190, at 199 para 19 [Emphasis in the original]. Id., 222.

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…having received detailed written observations from each of the Parties, the Court is sufficiently well informed of the positions they hold with regard to the admissibility of the claims presented as counter-claims …; and …, accordingly, it does not appear necessary to hear the Parties further on the subject; …40

The Court has maintained this approach in Jurisdictional Immunities the first counterclaim case under the amended Rule 80 (3).41 The Court appears to interpret the term ‘‘hearing’’ broadly so as to have not only its natural meaning of ‘‘oral hearings’’ but also the meaning of ‘‘coming to the knowledge of the Court by other means’’, in this case the written observations of the parties. Although the text of both the 1978 and the 2001 versions of Article 80 (3) convey that the Court is bound to reach its decision after hearing the parties in a set of oral pleadings the Court has refrained from doing so. Even though a measure of judicial discretion must be allowed to the Court the sole reliance on the written counterclaim proceedings is hardly satisfactory. This has been pointed out by a number of Judges of the Court in declarations, separate and dissenting opinions. In the Bosnian Genocide case Judge ad hoc Krec´a thought that the decision of the Court not to hold hearings was a ‘‘rational’’ one ‘‘because it rests upon the founded belief that, through the written observations of the Parties, it obtained a complete picture of all relevant matters, which enabled to exercise its jurisdiction, on the basis of Article 80 of the Rules of the Court’’. However, he took the view that in spite of the reasonableness of the approach of the Court its decision not to hold hearings was at variance with the provision of Article 80 (3) [the 1978 version] under which the Court was duty-bound to hold oral hearings: It is highly doubtful whether the exchange of written statements by the Parties may be a substitute for ‘‘hearing’’, since ‘‘hearing’’ as a term of the procedure before the Court denotes, in the sense of Article 43, paragraph 5, and Article 51 of the Statute, oral proceedings before the Court. The exchange of written statements by the parties would suffice for hearings under Article 68 of the 1972 Rules of Court which instead of the phrase ‘‘after hearing the parties’’, contained the phrase ‘‘after due examination’’, a phrase leaving room for liberal interpretation. … There are reasonable grounds foe assuming that in future the Court may find itself in a situation where it has to choose between submission to rigid rules or flexibility, which opens the path to better administration of justice. Consequently, a revision of paragraph 3 of Article 80 … seems desirable to me, in order that the rational determination of the Court might not be at variance with the, in this case unnecessarily, rigid rule of procedure…42

In the same litigation, Judge ad hoc Sir Elihu Lauterpacht though recognizing a measure of discretion to the Court, was critical of the decision not to hold oral 40

See Bosnian Genocide Case, ICJ Rep. 1997, 243, at 256 para 25; Also see Oil Platforms Case, ICJ Rep. 1998, 190, at 203 para 31; Congo v. Uganda Case, ICJ Rep. 2001, 660, at 676 para 26. In Cameroon v. Nigeria Case there was no need to hold hearings because the original Applicant, Cameroon, raised no objections to Nigeria’s counterclaims with regard to either the jurisdiction of the Court or their direct connection with the subject-matter of the original applications. 41 Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, 4, para 7. 42 ICJ Rep. 1997, 243, at 267. Also see 276 (Judge Koroma sep. opinion).

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hearings, not so much on the basis of a textual interpretation of Article 80 (3) but on the more substantive issue of proper administration of justice because of the very important subject-matter of the particular dispute. He stated that: … Even if the Court retains a discretion to decide in a given case that that such proceedings need not be held, the present case is one in which the relative merits and the complexity of the issues involved would certainly have warranted giving the parties the additional opportunity of commenting orally on each other’s arguments and the Court the opportunity of the more extended consideration of the matter that would have been involved in the holding of a hearing and in the deliberations that would then have followed—the more so as such a step would also have met the expressed expectations of the Parties … It is, therefore, to be hoped that when the Rules of Court next come to be revised, the opportunity will be taken to eliminate the cause of the present division of opinion by ensuring that the word ‘‘hearing’’ is used consistently to convey the idea of oral proceedings and that when the Court intends to retain a discretion to determine that the exchanges between representatives of the parties are to be limited to written proceedings it will adhere to such wording as used elsewhere in the Rules (e.g. Arts. 46, para. 1, 53, paras. 1 and 2, 55 and 58, para. 2), namely, ‘‘after ascertaining the views of the parties’’ or, as in Article 76, paragraph 3, after affording ‘‘the parties an opportunity of presenting their observations on the subject’’ or, as in Article 79, paragraph 3, ‘‘the other party may present a written statement of its observations’’. …43

In the Oil Platforms case Judge Oda took issue with the decision of the Court not to hold oral hearings and stated: ‘‘… I wonder if it is quite proper to confirm the admissibility of the United States counter-claim and make it part of the whole proceedings without … (ii) having oral hearings on the basis of the complete exhaustion of the exchange of views indicated in the written proceedings … I wonder if the quick rendering of an Order by the Court is quite reasonable …’’44 In a more balanced approach to the issue of holding oral hearings on counterclaims Judge Higgins in her separate opinion in the same case expressed the view that in light of the ‘‘ample room for discretion’’ that the Court appears to possess with regard to counterclaims proceedings: Oral submissions are neither required by the terms of Article 80, paragraph 3, nor excluded. Further, the Court has also found sufficient freedom to decide, notwithstanding the apparently limiting terminology of Article 80, paragraph 3, that the Parties may be heard (whether in writing or orally) on the question of jurisdiction as well as on the question of connection.45

In the Jurisdictional Immunities case Judge Cançado Trindade and Judge ad hoc Gaja took particular issue with the stance of the Court not to hold hearings. Judge Cançado Trindade in his dissenting opinion took the view that the Court ‘‘should not have taken the present decision without first having heard the

43 44 45

Id., 279–280, paras 6–7. ICJ Rep. 1998, 190, at 215 para 9. Id. p. 223.

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contending parties’’. He supported his view by giving five reasons: (1) the sound administration of justice; (2) the autonomous character of counterclaims qua claims; (3) the strict observance of adversarial proceedings in evaluating claims and counterclaims; (4) the preservation of the equality of the parties and (5) the importance of the issues submitted before the Court in the dispute between Germany and Italy.46 In his declaration Judge ad hoc Gaja expressed the view that Article 80 (3) as amended in 2000 introduced an obligation binding on the Court to hold hearings: ‘‘the new text requires the Court to take a decision ‘‘after hearing the parties’’ … In the context of the Rules of the Court ‘‘hearing the parties’’ appears to imply that an oral hearing should be held. This seems particularly justified when an objection relates to jurisdiction, given the impact of a decision on jurisdiction …’’47 The revision of Article 80 (3) of the Rules in 2001, far from meeting the wish expressed by Judges Krec´a and Sir E. Lauterpacht has not dispensed with the issue of whether the Court is under a duty to hold hearings. At the outset, such a duty is not upheld by even the Judges who have been critical of the practice of the Court; a measure of discretion is unanimously acknowledged. And the Court has consistently so far taken the view that ‘‘hearing’’ the parties is subject to the exercise of this discretion to be satisfied exclusively on the basis of the exchange of written statements.48 While the holding of oral hearings may not in the future be excluded the wording of the revised Article 80 (3) has not precluded the Court from continuing to follow it’s hitherto practice of not holding oral hearings.49 This is unfortunate for oral proceedings to offer an opportunity of a more analytical exposition of the parties’ position on counterclaims and they would be of great benefit to a researcher. Moreover, the only explanation that may be given to this particular course of action opted by the Court is the concern to avoid a prolongation of the duration of the main proceedings50 which also applies to the consideration of preliminary objections to the jurisdiction and admissibility of counterclaims at the stage of the merits. On the other hand, if the admissibility of a counterclaim as part of the main proceedings has as a result the expansion of a dispute on its merits, then the prospect of undue delay may not be avoided altogether by the mere decline to hold oral hearings on the stage of counterclaims.

46

Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143 www.icj-cij.org/docket/files/143/16027.pdf, Judge Cançado Trindade (diss. op.), para 30. 47 Id. Judge ad hoc Gaja (declaration). 48 Cf. Thirlway 1999, 227 who maintains (with respect to the 1978 version of Article 80) that the formulation of the Rules expressly provides that the Parties must be heard and that ‘‘it is not for the Court to determine whether it is sufficiently well-informed’’ but ‘‘it is for each Party to determine whether it is satisfied that it has been given sufficient opportunity of enlightening the Court.’’ 49 See Rosenne 2001, 86; Salerno 1999, 371–374; Murphy 2000, 19. 50 S. Rosenne 2000b, 469.

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5.4 Undue Delay Proceedings before the International Court of Justice may last for a considerable period of time from the filing of an application until the final judgment on the Merits. Proceedings instituted by way of special agreement tend to be more expeditious, but this ultimately depends on the subject-matter of the dispute to be settled by the Court. A multifaceted dispute like the land, island and maritime dispute between El Salvador and Honduras may involve a very wide array of issues that may entail longer deadlines for the submission of the Memorial and Counter-Memorial and a considerable number of public sittings in the course of oral proceedings. One factor that may cause the prolongation of proceedings before the Court is incidental proceedings, such as the raising of preliminary objections to the jurisdiction and the admissibility of the application, the intervention of a third State and the presentation of counterclaims. However, the making of counterclaims as incidental proceedings does not appear to consume a great deal of time. What has the potential to prolong the proceedings because of the presentation of counterclaims is the prolongation of the merits stage as a result of the admissibility of a particular counterclaim. In other words the concern of undue delay in the proceedings refers mainly to the merits stage and is a combination of two factors: the subject-matter of a specific counterclaim and the decision of the Court to join it to the main proceedings. Such concern was voiced by a number of Judges in the Bosnian Genocide case. The reason lay chiefly in the subject-matter of the counterclaim of Yugoslavia, namely, that the principal Applicant, Bosnia and Herzegovina, had responsibility for the commission of genocide against the Bosnian Serb population. It was maintained that an already extensive subject-matter that was introduced by the application of Bosnia alleging the responsibility of Yugoslavia for the breach of the Genocide Convention (1948) would be magnified out of proportion by allowing the counterclaim of Yugoslavia that had the same subject with serious consequences on the proper administration of justice. Thus, Judge Koroma expressed the view that ‘‘… one cannot view with equanimity or fail to be concerned by the effect the Court’s decision to join the counter-claims to the original Application at this stage would appear to have on the sound and proper administration of justice, and in particular on the interests of the Applicant to have its claim decided within a reasonable time-frame… the Court in exercising its discretion under this provision [Article 80 (3) of the Rules], should have done so in such a way as to avoid further delay in such a serious matter and to avoid running the risk that its Order on the Respondent’s claims might appear to compromise the proper administration of justice…’’51 Moreover, Judge ad hoc Sir Elihu Lauterpacht stated in his separate opinion that it would be a matter of discretion for the Court to order the separation of the two claims, notwithstanding the 51

ICJ Rep. 1997, 243, at 276 (Judge Koroma, separate opinion).

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admissibility of Yugoslavia’s counterclaim: ‘‘The principal factor that could have been invoked to justify the separation of the treatment of the claims and counterclaims is the immense additional complexity to which the treatment of the counterclaims simultaneously with the claim is bound to give rise. … The assessment of the allegations and responses, if approached other than on a fairly general level … could take months of hearings and deliberation.’’52 Finally, Judge Weeramantry in his dissenting opinion argued in favor of the Court declining to join Yugoslavia’s counterclaim to the main proceedings because it would further delay the conclusion of the proceedings and would defeat the ends of justice by inter alia mitigating the substance of the Applicant’s (Bosnia) case: In the first place, the case of the Applicant has been pending before the Court since 1993, and now, at the end of 1997, when the case is nearly ripe for hearing, the Applicant is entitled to an expeditious disposal of this matter. What is sought to be introduced by way of counter-claim four years later, which is in reality another claim of the same magnitude as the claim of the Applicant, will necessarily have the effect of further delaying the hearing of the Applicant’s claim. Furthermore, not only will there be a delay in bringing the allegations of the Respondent to a state of readiness for hearing, but the actual process of hearing will itself be prolonged. The claim of Bosnia and Herzegovina is complex enough already, with vast numbers of allegations of fact to be probed and proved. … To combine this massive set of allegations with a fresh set of allegations of like magnitude will considerably lengthen the time necessary for the hearing of the case. Delay in actual hearing, added to delay in preparation for hearing, could well defeat the ends of justice … After hearing the extensive evidence that will no doubt be offered by the Applicant, the Court would have to reserve its conclusions thereon until it heard the extensive evidence which would similarly be offered by the Respondent. From a practical point of view, this would hamper the process of decision-making upon the first set of facts for so long a period that the impressions created by them upon the minds of the judges may well lose their freshness and immediacy. This can be very damaging to the process of fact-finding in a long drawn out enquiry.53

In addition Judge Weeramantry raised another issue, namely, the use of the counterclaim proceedings as a procedural strategy on the part of the original respondent in order to deliberately obstruct the smooth development of the proceedings: There is also a question of principle involved here, because if this Application should be allowed, it could open the door to parties who seek to delay proceedings against themselves to file, when the case is nearly ready for hearing, what is, in effect, another case against the applicant, with a view of delaying proceedings against itself. Where such application comes years after the original claim, this could have damaging effects upon the due administration of international justice.54

Whatever, the cogency of the above arguments, the Court appears to uphold the admissibility of counterclaims, for it appears that the proper and sound administration of justice would be equally observed if a counterclaim is presented and 52 53 54

Id. 284 para 19 but cf. 285 para 20. Id., 294–295. Id., 295.

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considered by the Court. At the same time it has consistently ruled that ‘‘… when the Court decides, in the interests of the proper administration of justice, to rule on the respective claims of the Parties in a single set of proceedings, it must not, for all that, lose sight of the interest of the Applicant to have its claims decided within a reasonable time-period …’’55

5.5 The Position of Third States The procedure with regard to the presentation of counterclaims as it is stipulated in Article 80 of the Rules of the International Court is not in harmony with the provision in Article 40 (3) of the Statute of the Court that the Members of the United Nations shall be notified of the special agreement or the application by which a case is brought before the Court. The purpose of this provision is to allow third States to be informed of the seizing of the Court with a particular dispute and consider whether to intervene in the proceedings if they have an interest of a legal nature that might be affected. A counterclaim as an independent claim of the respondent against the original applicant has the same function as an application instituting proceedings before the Court. Therefore, it may create the conditions for the exercise of intervention by a third State; but in this case this third State is in no position of having knowledge of the substance of the counterclaim in order to decide on its future course of action because the counterclaim is presented in the Counter-Memorial which is not required by the Statute to be notified to third States. This normative omission existed under the Rules of Procedure of the Permanent Court and was expressly identified by Judge Negulesco as a ground for not allowing a counterclaim to be introduced in the Counter-Memorial but, instead, to be presented by separate application.56 Judge Anzilotti, on the other hand, thought that this alleged drawback was unimportant because the Rules of the Permanent Court permitted third States to be informed with respect to the documents submitted by the litigant States and hence the Counter-Memorial containing a counterclaim.57 The matter was not pursued further during the process that led to the revision of the Rules of the PCIJ in 1936 and was virtually kept open until the consideration of the counterclaim of Yugoslavia in the Bosnian Genocide case and of the counterclaim of the USA in the Oil Platforms case. In Bosnian Genocide Bosnia and Herzegovina argued that ‘‘… when a counter-claim raises a question which is independent of the initial claim, any joinder of these claims must be avoided on the grounds that this could have detrimental effects … on the rights and

55

Id. 259–260 para 40; see also Oil Platforms case, ICJ Rep. 1998, 190, at 205 para 42; Congo v. Uganda case, ICJ Rep. 2001, 660, at 681 para 48. Cf. Thirlway 1999, 224. 56 PCIJ Ser. D Third Addendum to No 2 (1936), 105. 57 Id., 106.

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interests of third States—since those third States would not be informed of the counter-claim …’’58 Similarly, in the Oil Platforms case Iran asserted that ‘‘…if the case were to be widened in the way proposed by the United States, this might also prejudice third States’ interests, since Article 40, paragraph 3, of the Statute of the Court only provides that a new case is notified to third States and that no such provision is made with respect to counter-claims …’’59 In its Order in the Bosnian Genocide case the Court included a passage, to be repeated in all subsequent counterclaim Orders, by which, as evidence of consistent judicial practice, it has resolved the discrepancy between Article 40 (3) of the Statute and Article 80 of the Rules: …in order to protect the rights which third States entitled to appear before the Court derive from the Statute, the Court instructs the Registrar to transmit a copy of this Order to them …60

Thus, by communicating its Order that constitutes the decision of the Court on the admissibility of counterclaims to third States the latter are informed, first, of the substance of the counterclaim and, secondly, of the fact that it has become part of the main proceedings. Therefore, they are in a position to consider whether they have a right which might be affected by the counterclaim and exercise intervention.61 It is submitted that the concerns that were voiced with respect to rights and interests of third States had premised the issue on a faulty basis. Because by opting to communicate the Order to third States, as opposed the Counter-Memorial, the Court has adopted a course which is in absolute harmony with proper administration of justice. First, third States are informed of a counterclaim that is the object of a decision of the Court and not merely of an application included in the Counter-Memorial; to allow third States to intervene in the main proceedings on the basis of the Counter-Memorial (i.e., before the Court has reached a decision on whether the counterclaim will be part of the main proceedings) is to exercise intervention merely on the basis of an assumption. Secondly, they have reasonable time to reflect and decide on whether to intervene or not—they have this right until the end of the written proceedings on the counterclaim, which includes the Reply, the Rejoinder, and the second written document the original applicant is entitled to submit. Thirdly, third party intervention aims at having recognized a right of a legal nature that might be affected in the final judgment of the Court on the merits; therefore, since it is in the merits when the substance of the counterclaim shall be adjudicated it is procedurally proper to exercise the right to intervene on the basis

58

ICJ Rep. 1997, 243, at 253 para 15. ICJ Rep. 1998, 190, at 199 para 20. 60 ICJ Rep. 1997, 243, at 259 para 39; see also Oil Platforms case, ICJ Rep. 1998, 190, at 205 para 42; Cameroon v. Nigeria case, ICJ Rep. 1999, 983, at 986; Congo v. Uganda case, ICJ Rep. 2001, 660, at 681 para 47. 61 See Thirlway 1999, 227. 59

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of an Order of the Court deciding with finality that the counterclaim shall be joined to the merits, rather than the Counter-Memorial of the respondent.62

5.6 Withdrawal or Discontinuance of Counterclaims A counterclaim may be withdrawn either on the initiative of the party that has presented it, namely, the respondent in the main proceedings, or if the principal applicant notifies the Court its request to discontinue proceedings, that is, if it withdraws its application. In the first situation, the counterclaimant respondent, as applicant in the case of counterclaim has the right to request the Court to discontinue the proceedings with respect to the counterclaim. The steps to be taken are to be regulated by Article 89 (3) of the Rules that require that the other party (in this case the original applicant) must, within a period of time fixed by the Court, state whether it objects to the discontinuance of the counterclaim proceedings. If no objection is made within this time-period then its acquiescence to the withdrawal of the counterclaim is presumed. In this case the main proceedings on the basis of the original claim continue without the counterclaim. In the Bosnian Genocide case Yugoslavia, the counterclaimant party, notified the Court by a letter dated 20 April 2001 of its intention to withdraw the counterclaims presented in its Counter-Memorial. By a letter dated 12 July 2001 Bosnia and Herzegovina, the principal claimant, informed the Court that it had no objection to the withdrawal by Yugoslavia. In an Order dated 10 September 2001 the Court placed on record the withdrawal of Yugoslavia’s counterclaims.63 The case continued only with respect to Bosnia’s original Application and the Court delivered its final Judgment on the merits on 26 February 2007. In the second case, however, the discontinuance of the main proceedings as a result of the withdrawal of the original application by the principal claimant results in the demise of the counterclaim. This is because a counterclaim is intrinsically bound with the principal claim, for it is presented as a response to it, it is subject to the same scope of consent to the jurisdiction of the Court and is directly connected with the subject-matter of the principal claim. As a counterclaim is so closely bound with the principal claim both as a matter of procedure and merits it would be a distortion of the entire rationale underlying it to allow it to survive the withdrawal of the principal claim. A counterclaim may constitute an independent type of claim but procedurally may form part of the main proceedings under precise and strict requirements; in fact these requirements suggest that the only reason for allowing it to subsist within the bounds of the main proceedings is their very existence in the first place and not because it constituted an independent claim procedurally

62 63

See supra Chap. 4. ICJ Rep. 2001, 572, at 572–573.

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(as a separate application) that was simply joined to the main proceedings. Moreover, a counterclaimant respondent must, under Article 89 (3) of the Rules, not object so as the discontinuance of the main proceedings takes effect. Therefore, if the counterclaimant party wishes that the Court proceeds with the adjudication of its counterclaim it has no other avenue than to object to the withdrawal of the principal claim. During the debate on the revision of the PCIJ Rules in 1934 Judge Adaci raised the question of what the position of a counterclaim would be if the main action were withdrawn. Judge Fromageot replied that the withdrawal of the same action was valid only if the other party gave its consent; consequently, the fate of a counterclaim would depend on the stance adopted by the counterclaimant respondent: it would survive only if the main claim survived.64 It is submitted that this position is cogent and still applicable at present. A slightly different situation arises in the case where the Court rejects in its entirety the principal claim at the preliminary objections or the merits stage. The question would then be whether the counterclaim would survive and judgment could be passed upon it. The only precedent on the matter is the PanevezysSaldutiskis case before the Permanent Court and this suggests that the dismissal of the principal claim as inadmissible would inevitably result in the dismissal of the counterclaim. The Court has not expressly explained this contingency and it may only be submitted that even though a counterclaim is an independent claim in substance it is not independent as a matter of procedure. In the latter case there is interdependence which is expressed via the jurisdiction and direct connection requirements. In other words, it is the principal claim that may give birth to the counterclaim (for it lies with the discretion of the respondent to present it) to be incorporated in the same proceedings and with the former defunct the latter may not be expected to survive.65 At any event, the original counterclaimant respondent retains its right to present a separate application in order to pursue the substance of its counterclaim.

References Anzilotti D (1930) La Demande Reconventionelle en Procédure Internationale. J du Droit International vol. 57, p 857 Kolb R (2006) General Principles of Procedural Law. In: Zimmermann A et al (eds) The Statute of the International Court of Justice. A Commentary., Oxford Murphy SD (2000) Amplifying the World Court’s Jurisdiction through Counter-claims and Third-Party Intervention. 33 Geo. Wash. Int’l L. Rev. 5 Rosenne S (2000) Counter-Claims in the International Court of Justice Revisited. In: Armas Barea CA et al (eds) Liber Amicorum ‘In Memoriam’ of Judge José Maria Ruda. Kluwer Rosenne S (2001) The International Court of Justice: Revision of Articles 79 and 80 of the Rules of Court. 14 LJIL 77

64 65

PCIJ Ser. D Third Addendum to No 2 (1936), 110–111. Cf. Anzilotti 1930, 876–877; Thirlway 1999, 210.

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Salerno F (1999) La Demande Reconventionelle dans la Procédure de la Cour Internationale de Justice. RGDIP 103, p 329 Thirlway H (1999) Counterclaims before the International Court of Justice: the Genocide Convention and the Oil Platforms Decisions

Chapter 6

Conclusions

The right of a respondent to present counterclaims in the course of the same proceedings initiated by the applicant is admitted in the major systems of domestic law. The embrace of this right in international litigation constitutes an example of private law analogy in international law. It is remarkable that the introduction of the concept of counterclaims in the rules of procedure of international courts and tribunals has not met with serious objections as a matter of principle. This may be explained by the inherent indicia of the concept that admit its application on the international plane: first, the high degree of fairness surrounding it in allowing a respondent to present its own claims against the applicant; secondly, the possibility to do this in the course of the same proceedings, thus ensuring judicial economy; thirdly, its character as a tool of procedural strategy in balancing the effect of the principal application or by mutually neutralizing the substance of both claim and counterclaim with the result of depriving the principal claim of any effect. The adaptation of the concept of counterclaims on the international plane has generally been smooth; but a degree of adaptation has been necessary. This appears to be due to the particularities of international dispute settlement: its essentially consensual nature, especially when both or one of the litigant parties is a State; the absence of any link between or hierarchical structure among international courts and tribunals; the special category of disputes falling under the competence of the majority of international tribunals. Still there are certain common features concerning the right to present counterclaims. First, the right to present counterclaims is expressly provided in the rules of procedure of international tribunals. Although it is conceivable that counterclaims may be made in the absence of express stipulation as a direct application of general principles of law in the sense of Article 38 (1) (c) of the ICJ Statute, precedent is scant and the general practice is contrary. Secondly, a counterclaim must fall under the jurisdiction of the tribunal as the principal claim. Thirdly, a counterclaim must be connected with the subject-matter of the principal claim. Finally, a counterclaim must be presented in principle in the respondent’s counter-memorial or statement of defence,

C. Antonopoulos, Counterclaims before the International Court of Justice, DOI: 10.1007/978-90-6704-790-6_6, Ó T.M.C. ASSER PRESS, The Hague, The Netherlands, and the author 2011

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although some exceptional deviation is allowed in the context of institutionalized arbitration. In the context of arbitration (in particular institutionalized arbitration) the requirements of jurisdiction and connection are not expected to give rise to controversy for the terms of the jurisdiction of an arbitral tribunal are provided with clarity in the constituent documents and the disputes to be settled are of a particular and accurately defined category that makes connection readily identified. The situation is not the same in the case of the presentation of counterclaims in the International Court of Justice. The Rules of the International Court allow the presentation of counterclaims in Article 80 as amended in 2000. Indeed, the Permanent Court of International Justice, the predecessor of the present Court, was a pioneer in expressly providing in Article 40 of its Rules in 1922 the right to present counterclaims. The current Rule on counterclaims (Article 80) constitutes the final step of an evolutionary process concerning counterclaims that started in the context of the Permanent Court in the inter-war period. Initially, the only requirement for the admissibility of a counterclaim was that it would come within the jurisdiction of the Court but under the influence of the Permanent Court’s Judgment in the Chorzów Factory case the requirement of direct connection was added in a major revision of the Rules in 1936 (Article 63). The pair of jurisdiction and direct connection has remained ever since unchanged as the framework within which the admissibility of counterclaims is evaluated. The next important step was the introduction of Article 80 in its first version in 1978 by virtue of which the admissibility of counterclaims was to be the subject of incidental proceedings rather than, as was hitherto the case, a matter to be discussed at the stage of the Merits. It was in the course of dealing with counterclaims within the framework of incidental proceedings that the Court has reached a number of findings with respect to counterclaims in litigation before it. The case-law of the Court in relation to counterclaims is admittedly small compared with other instances of incidental proceedings such as provisional measures or preliminary objections to jurisdiction and admissibility. However, it presents a remarkable degree of consistency in spite of a considerable margin of discretion reserved by the Court and this allows the inference of certain conclusions on the right to make counterclaims at the International Court of Justice. First, the definition of counterclaims advanced by the Court suggests that they are a ‘‘reaction’’ to the principal claim and at the same time constitute ‘‘independent’’ claims in that they pursue objectives beyond the dismissal of the Applicant’s original claim. Therefore, counterclaims are to be distinguished from a ‘‘defence’’ on the merits. Indeed, the Court appears to depart from the position which is largely based on the Revision process of the PCIJ Rules and on earlier literature. In fact, it is implicit in the practice of the Court so far that counterclaims appear to function as a defence only functionally, namely, to the extent that they react to the principal claim but in substance they constitute an offensive means that aims at mitigating or neutralizing the substance of the principal claim. Secondly, the right to present counterclaims is premised on the rationale of procedural economy and sound administration of justice. In this respect, the raison d’ être of counterclaims before the International Court is the same as in municipal

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law. At the same time, however, the Court tends to subject procedural economy and sound administration of justice to the requirements of admissibility of counterclaims under Article 80 (1). This implies that the Court would be motivated by the two tenets of the rationale of counterclaims if it is satisfied that a counterclaim comes within the jurisdiction of the Court and has a direct connection with the subject-matter of the principal application. In other words, it is not the rationale of counterclaims that is the governing factor in allowing a counterclaim but the meeting of the requirements of Article 80 (1) of the Rules that makes cogent the invocation of this rationale. Thirdly, a counterclaim does not have the function of a plea of tu quoque. Thus, it may be allowed even if its subject-matter is the same with the subject-matter of the principal claim which alleges the violation of a peremptory rule of international law or a rule that gives rise to obligations to the international community as a whole. This is because the admissibility of counterclaims and the function of rules of jus cogens or rules giving rise to obligations erga omnes are two distinct contingencies. An Order of the Court allowing the admissibility of a counterclaim in this context does not constitute an instance of contracting out of such a rule by implication. Fourthly, under Article 80 (1) of the Rules a counterclaim may be entertained if two requirements are met: (a) the counterclaim comes within the jurisdiction of the Court and (b) is directly connected with the subject-matter of the principal claim. Both requirements apply cumulatively and, therefore, the absence of the one is not remedied by the presence of the other. (a) The jurisdiction of the Court with respect to the counterclaim must be premised on the same jurisdictional basis as the principal claim. This is implicit in the essentially consensual nature of the jurisdiction of the Court and its reluctance to allow Applicant States to introduce additional grounds of jurisdiction beyond those stated in the original application instituting proceedings. The question, however, is whether within the parameters of the same jurisdictional basis a counterclaimant respondent may present a counterclaim the subject-matter of which exceeds the subject-matter of the original claim but is directly connected with the subject-matter of the principal claim. This may not be excluded a priori, although the Court has suggested in the Oil Platforms case that if it circumscribes in a Preliminary Objections Judgment the precise parameters of its jurisdiction in relation to a particular aspect of the subject-matter of the principal application then the counterclaim must fall exactly within the same parameters with respect to its subject-matter. It appears that this reflects a concern on the part of the Court lest the finality of its Judgments is put to question. At the same time, in case the jurisdiction of the Court is not the subject of a Preliminary Objections judgment there is nothing to prevent in principle the presentation of a counterclaim that may have a subject-matter different from that of the principal application provided that it is premised on the same jurisdictional basis. This in turn is a matter to be resolved on the basis of the exact jurisdictional basis that is invoked in a specific dispute. (a) (i) The establishment of the jurisdiction of the Court on a special agreement does not in principle exclude the possibility of presenting counterclaims. However,

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this is contingent upon the precise terms of the special agreement concerning the particular aspects of the dispute submitted to the Court. (a) (ii) If the jurisdiction of the Court is based on the compromissory clause of a treaty there is nothing to exclude the presentation of a counterclaim arising from an alleged violation of a provision of the treaty other than the one constituting the subject of the principal claim. A possible exception would be the case where the Court has already ruled in a Preliminary Objections Judgment that it has jurisdiction only with respect to the violation of a particular provision. Moreover, the counterclaim must not be debarred by a reservation excluding the jurisdiction of the Court that is either contained originally in the compromissory clause or has been appended by the principal Applicant to it. (a) (iii) The Optional Clause offers a jurisdictional framework that may allow a wide range of opportunities to present counterclaims provided that they are not debarred by reservations excluding specific type of disputes. (a) (iv) The principle of forum prorogatum provides a counterclaimant Respondent the opportunity to succeed in advancing a claim the subject-matter of which is not covered by the jurisdiction of the Court with respect to the original application, when the jurisdiction of the Court is premised on any of the bases of Article 36 of the Statute. This may be the case if the original Applicant raises no objection. By contrast, if the principal Applicant’s claim comes under the jurisdiction of the Court on the basis of forum prorogatum, especially under Article 38 (5) of the Rules, then the terms of this provision must be applied with respect to the counterclaim. (a) (v) The Monetary Gold principle is applicable in the event of a presentation of a counterclaim, if the Court cannot rule upon its merits unless it first rules as a prerequisite on the rights and obligations of a third State not a party to the proceedings. (a) (vi) Preliminary objections to the jurisdiction and admissibility with respect to the merits of the counterclaim may be distinguished from jurisdiction as a requirement of admissibility of a counterclaim under Article 80 of the Rules. As such they are likely to be evaluated by the Court at the stage of the Merits as objections of non-preliminary character, if the Court has determined the parameters of its jurisdiction in a Judgment on Preliminary Objections. However, if this not the case and it is manifest that a counterclaim does not come under the jurisdiction of the Court that an objection thereto shall be disposed off at the incidental proceedings of Article 80 as preliminary objection (viz. Jurisdictional Immunities case). Thus, during these incidental proceedings it is not enough for the Court to be satisfied that it has prima facie jurisdiction over the counterclaim but that it essentially has jurisdiction to entertain the counterclaim. (b) The direct connection with the subject-matter of the principal claim is subject to the discretion of the Court which is an exercise in appreciation of the particular aspects of each case. The starting point of this evaluation is that direct connection must exist both in fact and in law. (b) (i) The Court appears to adopt a very broad approach with respect to connection in fact. It does not require identity of facts underlying both the claim

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and counterclaim. The Court seeks to ascertain, first, that the facts are of the same nature and, secondly, that they form part of the same factual complex. Facts of the same nature appear to be events the content of which falls into the same type of conduct (regardless of the identity of actor and its repercussions on people or objects) or the same type of situation. Secondly, the criterion of the ‘‘same factual complex’’ indicates that the facts underlying claim and counterclaim must have taken place within the same temporal and territorial setting. (b) (ii) With respect to connection ‘‘in law’’ the Court has adopted the position that the parties must pursue the ‘‘same legal aim’’. According to the Court this consists in the aim to establish the responsibility of the respondent by way of the institution of the main proceedings and, on the other, of the responsibility of the principal applicant through the presentation of the counterclaim by the respondent. However, the responsibility of either party which constitutes the purpose of both claim and counterclaim must be the result of the violation of obligations based on the same treaty or rule of customary law. Fifthly, an overall assessment of the case-law of the Court reveals that the jurisdiction of the Court, as requirement of the admissibility of counterclaims, appears to have acquired overarching importance over the requirement of direct connection. In the first place, if, and only if, the principal Applicant raises an objection to the jurisdiction of the Court with respect to the counterclaim, the Court shall evaluate it with a high degree of rigour and no flexibility at all. It insists that once its jurisdiction has been determined in a Preliminary Objections Judgment it is these precise parameters that must form the jurisdictional basis of the counterclaim. On the other hand, if there has not been any prior ruling on its jurisdiction it is prepared to evaluate an objection to it with regard to a counterclaim at the stage of incidental proceedings, especially when it is manifestly clear that it does not have jurisdiction to entertain the counterclaim. By contrast, the approach of the Court toward the requirement of direct connection is far more flexible and liberal. Therefore, unless the principal Applicant contests the jurisdiction of the Court over a counterclaim and its admissibility is evaluated only on the basis of direct connection, it is more likely that a counterclaim will be allowed. Finally, the procedure stipulated in Article 80 of the Rules reflects to considerable degree the experience gained by the case-law of the Court in recent years. First, it is mandatory that a counterclaim shall be presented by the Respondent in the Counter-Memorial. Although it has been suggested by eminent authority that counterclaims may be presented earlier than the filing of the Counter-Memorial this is not supported in the practice of litigants before either the PCIJ or the ICJ. Moreover, the presentation of counterclaims at a stage later than the filing of the Counter-Memorial is passed over in silence by the Court. Another consequence of restricting the presentation of counterclaims only in the Respondent’s CounterMemorial is that it excludes the possibility of raising counterclaims by the principal Applicant to the counterclaims of the Respondent. Secondly, the amendment of Article 80 in 2000 upholds the principle of equality of the parties by allowing the principal Applicant to file additional written pleadings with respect to counterclaims apart from its Reply. In this respect the Rules of the Court have met the

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concern expressed by all principal Applicants in counterclaim proceedings under the 1978 version of Article 80. Thirdly, the holding of oral hearings is subject to the discretion of the Court, now enshrined in the text of Article 80 of the Rules. The Court has never held oral hearings in counterclaims proceedings to date; this practice of the Court has become the object of criticism and is to be regretted. Fourthly, the right of third States to intervene under Articles 62 and 63 of the Statute of the Court if a right of legal nature may be affected by a counterclaim is preserved by the consistent practice of the Court (which has not been enshrined in the text of the Rules) to communicate the Orders on counterclaims to them. This gives third parties sufficient time to consider on the propriety to exercise the right of intervention or not. Finally, the withdrawal of a counterclaim is subject to the same requirement as the withdrawal of an Application (consent of the respondent State) and does not affect the proceedings that were initiated by the principal Applicant. Therefore the case may conclude with the final Judgment on the Merits. By contrast, the withdrawal or rejection of the principal claim leads to the demise of the counterclaim because of the intrinsic procedural relationship between them. Even though a counterclaim constitutes an independent claim as a matter of substance this is not the case as a matter of procedure. It is only via the procedural requirements of Article 80 (1) that a counterclaim may constitute part of the same proceedings instituted by submitting the principal claim to the Court. Therefore, the demise of the main proceedings cannot be supplanted by the counterclaim proceedings. It is only by making a separate application inaugurating a fresh litigation that the counterclaimant Respondent may present its claims.

Table of Cases

Permanent Court of International Justice Case Concerning the Factory at Chorzów (Claim for Indemnity) (Merits), PCIJ Ser. A No 17 (1928) 2, 38–42, 44, 46, 66, 89, 118, 120–121, 131,158 Legal Status of Eastern Greenland, PCIJ Ser. A/B No. 53 (1933) 41–42, 122 Diversion of Water from the Meuse (Netherlands v. Belgium), PCIJ Ser. A/B No. 70 (1937) 47, 65, 122 Panevezys-Saldutiskis Railway (Estonia v. Lithuania), PCIJ Ser. A/B No. 76 (1939) 47, 111 Rights of Minorities in Polish Upper Silesia (Minority Schools), PCIJ Ser. A No 15 (1928) 95–96 Mavromatis Jerusalem Concessions case, PCIJ Ser. A No 5 (1925) 96

International Court of Justice International Status of South-West Africa, Advisory Opinion of July 11, 1950, ICJ Rep. 1950, p. 128 7 The Asylum Case (Colombia/Peru), ICJ Rep. 1950, p. 266 48, 66, 82, 106, 122–123, 137 Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America), ICJ Rep. 1952, p. 176 48, 66 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) (Provisional Measures) (Further Request), Order of 13 September 1993, ICJ Rep. 1993, p. 325 78, 97 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Counterclaims), Order of 17 December 1997, ICJ Rep. 1997, p. 243 50,

163

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Table of Cases

52–53, 55–56, 60–62, 64, 66–67, 69, 74, 79, 107, 109, 124, 126, 128, 132–133, 138, 143, 147, 150, 152–154 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) (Merits), Judgment of 26 February 2007, ICJ General List No 91, http://www.icj-cij.org 101 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Counter-Claims), Order of 21 November 2001, ICJ Rep. 2001, p. 660 3, 49, 54, 58–59, 61–62, 64–66, 92–93, 107, 113–115, 127, 133, 138–139, 141, 144, 147, 152–153 Case Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda) (Merits), Judgment of 19 December 2005, ICJ Rep. 2005, p. 168 63, 90–91, 113–114, 118, 129–131 Case Concerning Oil Platforms (Iran v. USA) (Counter-Claim), Order of 10 March 1998, ICJ Rep. 1998, p. 190 3, 4, 19, 49, 55–56, 58, 63–64, 66, 75, 79, 85–88, 91, 101, 107, 112, 114–116, 118, 120, 126, 132–133, 138, 142, 144, 146–148, 152–153, 159 Case Concerning Oil Platforms (Iran v. USA) (Preliminary Objection), ICJ Rep. 1996, p. 803 85, 87, 117 Case Concerning Oil Platforms (Iran v. USA) (Merits), Judgment of 6 November 2003, ICJ Rep. 2003, p. 161 90, 113, 116 Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Jurisdiction and Admissibility), ICJ Rep. 1998, p. 275 90–91 Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) (Counter-Claims), Order of 30 June 1999, ICJ Rep. 1999, p. 983 3, 49, 54, 61, 66, 107, 127, 133, 138, 142, 144, 147, 153 US Diplomatic and Consular Staff in Tehran (Provisional Measures), ICJ Rep. 1979, p. 7 61 The East Timor Case (Portugal v. Australia), ICJ Rep. 1995, p. 90 70, 74, 76 Jurisdictional Immunities of the State (Germany v. Italy) (Counter-Claim), Order of 6 July 2010, ICJ General List No 143, http://www.icj-cij.org/docket/ files/143/16027.pdf 3, 10, 37, 49, 54, 56, 58–59, 62–63, 65, 73–74, 79–80, 85, 91, 94, 109, 111, 114–117, 119, 137–138, 147–149 The Corfu Channel Case (UK v. Albania) (Preliminary Objection), ICJ Rep. 1948, p. 15 74, 96 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) (Preliminary Objections), ICJ Rep. 1984, p. 392 76, 78, 91, 105, 111 Case Concerning Legality of the Use of Force (Yugoslavia v. Belgium) (Provisional Measures), ICJ Rep. 1999, p. 124 78 Case Concerning Legality of the Use of Force (Yugoslavia v. The Netherlands) (Provisional Measures), ICJ Rep. 1999, p. 542 78 Case Concerning Legality of the Use of Force Case (Yugoslavia v. Spain) (Provisional Measures), ICJ Rep. 1999, p. 761 84

Table of Cases

165

Case Concerning Legality of the Use of Force Case (Yugoslavia v. USA) (Provisional Measures), ICJ Rep. 1999, p. 961 84 The Aegean Sea Continental Shelf Case (Greece v. Turkey) (Jurisdiction and Admissibility), ICJ Rep. 1978, p. 3 82-83 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility), ICJ Rep. 1994, p. 112 83 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Jurisdiction and Admissibility), ICJ Rep. 1995, p. 6 83 Case Concerning Border and Trans-border Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility), ICJ Rep. 1988, p. 69 84–85 Case Concerning Right of Passage over Indian Territory (Portugal v. India) (Preliminary Objections), ICJ Rep. 1957, p. 125 91 Haya de la Torre Case (Colombia v. Peru), ICJ Rep. 1951, p. 71 96–97 Anglo-Iranian Oil Co. case (Jurisdiction), ICJ Rep. 1952, p. 93 97 Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) (Jurisdiction— Admissibility), Judgment of 3 February 2006, ICJ General List No 126, http:// www.icj-cij.org 97–98 Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment of 4 June 2008, ICJ General List No 136, http://www.icj-cij.org 98–100, 102, 138 Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, UK and USA), ICJ Rep. 1954, p. 19 104–105 Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia) (Preliminary Objections), ICJ Rep. 1992, p. 240 105 Land, Island and Maritime Frontier Dispute (El Salvador-Honduras) (Nicaragua Intervening), ICJ Rep. 1990, p. 92 105 Libya-Tunisia Continental Shelf Case (Malta Intervening), ICJ Rep. 1981, p. 3 106 Libya-Malta Continental Shelf Case (Italy Intervening), ICJ Rep. 1984, p. 3 106 The Barcelona Traction Case (Preliminary Objections), ICJ Rep. 1964, p. 6 110 Case Concerning Avena and Other Mexican Nationals (Mexico v. USA), ICJ Rep. 2004, p. 12 110–111 Interhandel Case (Switzerland v. USA) (Provisional Peasures), ICJ Rep. 1957, p. 107 116 Case Concerning the Dispute Regarding Navigational and Related Rights (CostaRica v. Nicaragua), Judgment of 13 July 2009, http://www.icj-cij.org 139–141

Permanent Court of Arbitration The Carthage (France v. Italy), PCA, Award of 6 May 1913, http://www.pca-cpa. org/upload/files/Carthage%20EN.pdf 13–14

166

Table of Cases

The Manouba (France v. Italy), PCA, Award of May 6, 1913, http://www.pcacpa.org/upload/files/Manouba%20EN.pdf 13–14 Dr. Horst Reineccius (Claim No. 1), First Eagle SoGen Funds Inc. (Claim No. 2), Mr. Pierre Mathieu and La Société de Concours Hippique de la Châtre (Claim No. 3) v. Bank for International Settlements, PCA, Award of 19 September 2003, http://www.pca-cpa.org 16–17 Barbados and the Republic of Trinidad and Tobago, PCA, Award of 11 April 2006, http://www.pca-cpa.org 17–18 Guyana and Suriname, Award of 17 September 2007, http://www.pca-cpa.org 18–19 Saluka Investments B.V. v. The Czech Republic, Decision on Jurisdiction over the Czech Republic’s Counterclaim, 7 May 2004, http://www.pca-cpa.org 19–22

Iran-US Claims Tribunal Case A/2, Request for Interpretation: Jurisdiction of the Tribunal with respect to claims by the Islamic Republic of Iran against Nationals of the United States of America, Decision No DEC1-A2-FT, 1 Iran-US CTR 101 (1982) 23 The Islamic Republic of Iran v. The United States of America, Case No. B1(Counterclaim), Interlocutory Award, September 9, 2004, Award No. ITL 83-B1-FT, 2004 WL 2210709 24–25 Reliance Group Inc. v. National Iranian Oil Company et al., Award No. 15-90-2, 8 December 1982, 1 Iran-US CTR 384 26 Thomas K. Khoshravi v. The Government of the Islamic Republic of Iran, Award No. 571-146-3, 20 June 1996, 1996 WL 1171806 26 Owens-Corning Fiberglass Corp. v. The Government of Iran et al., Interlocutory Award No. ITL 18-113-2, 13 May 1983, 2 Iran-US CTR 322 27 R. N. Pomeroy et al. v. The Government of the Islamic Republic of Iran, Award No. 50-40-3, 8 June 1983, 2 Iran-US CTR 372 27 Morrison-Knudsen Pacific Ltd. v. The Ministry of Roads and Transportation et al., Award No. 143-127-3, 13 July 1984, 7 Iran-US CTR 54 27 American Bell International, Inc. v. The Government of the Islamic Republic of Iran, Interlocutory Award No. ITL 41-48-3, 11 June 1984, 6 Iran-US CTR 74 27–28 Westinghouse Electric Corp. v. The Islamic Republic of Iran et al., Interlocutory Award No. ITL 67-389-2, 12 February 1987, 14 Iran-US CTR 104 27 Westinghouse Electric Corp. v. Islamic Republic of Iran Air Force, Award No. 579-389-2, 26 March 1997, 1997 WL 1175782 (Iran-US Cl. Trib.) 27–29 Kimberley-Clark Corp. v. Bank Markazi et al. Award No. 46-57-2, 25 May 1983, 2 Iran-US CTR 334 28

Table of Cases

167

Anaconda-Iran, Inc. v. The Government of the Islamic Republic of Iran et al., Interlocutory Award No. ITL 65-167-3, 10 December 1986, 15 Iran-US CTR 199 28

ICSID Arbitral Tribunals Sempra Energy International v. The Argentine Republic ICSID Case No. ARB/02/ 16 (Award), 2007 WL 5540331 (APPAWD) 30 Bevenutti and Bonfant SRL v. People’s Republic of Congo, ICSID Case No. ARB/ 77/2 (Award), 1980 WL 371579 (APPAWD) 30 Desert Line Projects LLC v. Republic of Yemen, ICSID Case No. ARB/05/17 (Award), 2008 WL 2912764 (APPAWD) 30–31 Klöckner Industrie-Anlagen GmbH v. United Republic of Cameroon and Société Camerounaise des Engrais (SOCAME), ICSID Case No. ARB/81/2 (Award), 1983 WL 510000 (APPAWD) 31 Rumeli Telekom A.S. and Telsim Mobil Telekomikasyon Hizmetleri A.S. v. Republic of Kazakhstan, ICSID Case No. ARB/05/16, 2008 WL 4819868 (APPAWD) 31 Maritime International Nominees Establishment (‘‘MINE’’) v. Republic of Guinea, ICSID Case No. ARB/84/4 (Award), 1988 WL 1103627 31 Amco v. Republic of Indonesia, ICSID Case No. ARB/81/1 (Resubmitted Case: Decision on Jurisdiction), 27 ILM 1281 (1988) 32

ICC Arbitral Tribunals Award in Case No. 3779 of 13 August 1981, ICCA Ybk, Vol. IX (1984) Award in Case No. 8486 (1996), ICCA Ybk, Vol. XXIVa (1999) 33 Award in Case No. 4567 (1985), ICCA Ybk, Vol. XI (1986) 33

33

Table of Treaties

Agreement on Encouragement and Reciprocal Protection of Investments between the Kingdom of the Netherlands and the Czech and Slovak Federal Republic (1991) 2242 UNTS 39914 19 Arbitration Treaty between Germany and Poland (1925), Annex D, Treaty of Mutual Guarantee between Germany, Belgium, France, Great Britain and Italy, Locarno (1925) 54 LNTS 1292 39–40 Djibouti—France Convention concerning Judicial Assistance in Criminal Matters (1986) 1695 UNTS 29220 98, 138 Genocide Convention (1948) viz. Convention on the Prevention and Punishment of the Crime of Genocide (1948) 78 UNTS 277 53, 67–68, 78, 84, 97, 124– 126, 132, 150 ICSID Convention (1965) viz. Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965) 575 UNTS 8359 21, 29, 32 Iran-USA Treaty of Amity, Economic Relations and Consular Rights (1955) 284 UNTS 93 85–86, 90, 112, 116, 126–127 Kingdom of Yugoslavia—Belgium Convention of Conciliation, Judicial Settlement and Arbitration (1930) 106 LNTS 2455 78 Kingdom of Yugoslavia—The Netherlands Convention of Conciliation, Judicial Settlement and Arbitration (1931) 129 LNTS 2952 78 Nicaragua—USA Treaty of Friendship, Commerce and Navigation (1956) 367 UNTS 5224 77 Pact of Bogota viz. Charter of the Organization of American States (1948) 119 UNTS 1609 The Hague Convention on the Complete and Final Settlement of the Question of Reparations (1930) 104 LNTS 2394 16–17 Treaty of Versailles (1919) viz. Treaty of Peace between the Allied and Associated Powers and Germany, Versailles, June 28, 1919, 13 AJIL Suppl. 151 (1919) 38–39, 40, 66, 120

169

170

Table of Treaties

UN Convention on the Law of the Sea (UNCLOS) (1982) 1833 UNTS 3 17– 18 Vienna Convention on the Law of Treaties (1969) 115 UNTS 331 24, 68–69, 71, 83

Table of Documents

Annex 61a, Draft for the Rules of the Permanent Court of International Justice, prepared by the Drafting Committee (Distr. 71), PCIJ Ser. D No. 2 (1922) 38 Annex 72a, Draft Rules of the Court, March 23rd, 1922, Third Reading (Distr. 109), PCIJ Ser. D No. 2 (1922) 38 Annex Ic, Rules of the Court, Draft Prepared by the Secretariat (Distr. II), PCIJ Ser. D No. 2 (1922) 38 Declaration of the Government of the Democratic and Popular Republic of Algeria Relating to the Commitments made by Iran and the United States of America, 19 January 1981, 20 ILM 224 (1981) 22 Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 19 January 1981, text in 20 ILM 230 (1981) 22 ILC Articles on Responsibility of States for Internationally Wrongful Acts (2001), Yearbook of the International Law Commission 2001, Volume Two, Part II, 31. 71 Iran-US Claims Tribunal Rules of Procedure, 3 May 1983, http://www.iusct. org/tribunal-rules.pdf 23 PCA Optional Rules for Arbitrating Disputes between States (1992), http://www. pca-cpa.org/upload/files/2STAENG.pdf 15 PCA Optional Rules for Arbitrating Disputes between Two Parties of which only One is a State (1993), http://www.pca-cpa.org/upload/files/1STAENG.pdf 15 PCA Optional Rules for Arbitration between International Organizations and Private Parties (1996), http://www.pca-cpa.org/upload/files/IGO1ENG.pdf 15 PCA Optional Rules for Arbitration Involving International Organizations and States (1996), http://www.pca-cpa.org/upload/files/IGO2ENG.pdf 15 PCA Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment (2001), http://www.pca-cpa.org/upload/files/ ENVIRONMENTAL(3).pdf 16

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Table of Documents

Report by Georges Scelle (Special Rapporteur) on Arbitral Procedure, Doc. A/CN.4/18 (1950), Yearbook of the International Law Commission 1950, Vol. II, 114 13 Rules of Procedure for Arbitration Proceedings of ICSID, ICSID Convention, Regulations and Rules, Washington DC 2003 29 The International Chamber of Commerce (ICC) Rules of Arbitration (1998) http://www.iccwbo.org 33 The International Law Commission’s Model Rules on Arbitral Procedure (1958), Yearbook of the International Law Commission 1958, Vol. II, p. 87 34 The World Trade Organization Understanding on Rules and Procedures Governing the Settlement of Disputes, http://www.wto.org/english/docs_e/legal_e/28-dsu_ e.htm 29 UNCITRAL Arbitration Rules (1976), http://www.uncitral.org/uncitral/en/ uncitral_texts/arbitration/1976Arbitration_rules.html 19–22

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Index

A Adaci, 45, 155 Admissibility, 1–5, 10–12, 19, 26, 30, 33–34, 40, 47–48, 50–51, 53, 59, 64, 66–68, 70–71, 73, 79, 81, 88–90, 93, 105, 109, 111–116, 118–120, 122–123, 129, 131, 133, 135, 138, 140–141, 145, 147–151, 153, 158–161 Analogies, 1, 4 Analogy private law, municipal law, 7, 10, 54–56, 59, 157 Anzilotti, 2–3, 8, 12–13, 38, 43–46, 51, 53, 57, 61, 73, 75, 81, 83, 106–107, 120, 132, 136, 152 Arbitration, 8–9, 12–19, 21, 28, 33 Article 40 ICJ Statute, 152–153 PCIJ Rules 1922, 37–40, 42–45, 135 Article 62 ICJ Statute, 105–106 Article 63 ICJ Rules 1946, 48, 122, 145 ICJ Statute, 105, 108 PCIJ Rules 1936, 42, 46–48, 120–122, 145 Article 68 ICJ Rules 1972, 48, 145 Article 36 (1) ICJ Statute, 80, 85, 95 Article 36 (2) ICJ Statute, 78, 80, 91 Article 36 (6) ICJ Statute, 74, 77–78, 83–84, 118 Article 38 (5) ICJ Rules 1978, 98–99, 101–103 Article 40 (3) ICJ Statute, 108

Article ICJ Article ICJ Article ICJ Article ICJ

79 Rules 1978/2000, 110–117 79 (7) Rules 1978, 111–112 79 (9) Rules 1978/2000, 111 80, 2–4, 6 Rules 1978, 49–50, 53–56, 58–62, 64–65, 68, 70 ICJ Rules 1978/2000, 73–76, 78, 80–81, 86–92, 102, 107, 112–117, 119, 123, 126, 130–132, 136–141, 143, 145–150, 152–153, 158–161

C Cançado Trindade, 37, 56, 58–60, 63, 65, 148–149 Claims Settlement Declaration (Iran-USA), 22–25, 28 Chorzów, 38–39, 41–42, 44, 46, 66 Compromissory clause, 80, 84–86, 89–90 Connection (also see direct connection), 40–41, 44–51, 53, 57, 59, 63–64, 67, 70 Connection ‘‘in law’’, 125, 133, 161 Connection in fact, 94, 124–125, 132, 160 Continental law, 11 Counter-Memorial presentation, 5, 135–136 Counter-counterclaims Iran-US Claims Tribunal, 12, 28–29 Counterclaim to a counterclaim counter-counterclaim, 142 Cross-action, 4, 45, 57, 63–64

175

176

Index

D Defence, 4, 41, 43–45, 50, 53, 55, 57–62, 68–69, 157–158 Definition, 48, 50–54 Direct connection, 50, 62–63, 70, 73–76, 79, 87, 89–90, 92–94, 100, 102, 113–114, 118–120, 122–128, 130–133, 159–161 Discontinuance see withdrawal

Jurisdiction, 37–39, 41–42, 45, 48–51, 56, 59, 64, 70, 73–161 jus cogens, 4, 68, 71

E Eastern Greenland, 41–42 English law, 11 Equality of parties, 5, 142–144, 149 erga omnes, 67–68, 70 Evolution PCIJ, ICJ, 2, 4, 37–50, 158

L Litigation strategy, 3 Lauterpacht Sir Elihu, 55, 68, 109, 125, 147, 149–150 Sir Hersch, 52, 54, 74, 8–10, 94, 109, 116

F Factual complex, 70, 93–94, 124–125, 127, 129, 132–133, 161 forum prorogatum, 80, 94–95, 97, 99–103, 118 Fromageot, 44, 46, 51, 56, 64, 121, 155

M McNair Sir Arnold, 7, 9 Monetary gold principle, 76, 104–105, 108–109, 160 Municipal law, 7, 9, 15, 21–22

G Gaja, 119, 148–149 General declaration Iran-USA, Algiers, 22–23 General principles of law, 7–8

H Higgins, 75, 85, 87–89, 112, 115, 118, 144, 146, 148

I ICC, 33 ICSID, 21, 29–32 ILC model rules arbitration, 34 Independent claim, 49–50, 62 Intervention, 105, 108 Iran-US claims tribunal, 21–23, 26 ITLOS, 24, 34

J Juridical connection, 2, 40, 45 Juridical economy, 157 Juridical link, 120

K Koroma, 58, 147, 150 Krec´a, 50, 55, 58–59, 64, 74, 125, 147, 149

N Negulesco, 43, 45, 64, 106, 121, 132 Non-intervention, 129–130 Non-use of force, 129–130

O Objections see preliminary objections Oda, 58, 142, 144, 148 Official counterclaims Iran-US claims tribunal, 24 Optional clause, 78, 80, 84, 90–92, 94

P Panevezys-Saldutiskis railway case, 47 PCA Permanent Court of Arbitration, 13–18 PCIJ, 37–44, 47–48, 51, 53, 56–57, 60–62, 64, 66, 160 Preliminary objections, 76–77, 90, 110–112, 114–115, 117–118, 129 Presentation, 136, 138–139, 141, 143, 145, 150, 152 Private law analogies see analogies

Index Procedure, 1, 5 Procedural strategy, 157

R Rationale, 45–46, 56–59 reconventio reconventionis non admittitur, 12 res judicata, 9, 12 Reservations, 84, 92, 116 Rigaux, 55, 88, 127 River Meuse judgment, 47, 65 Rule 80 amendment 2000 see Article 80

S Set-off, 4, 54, 57, 65–66 Iran-US claims tribunal, 26 Schücking, 44–46, 64, 121, 136 Special agreement, 79–84, 95–96, 98, 108 compromis, 12–13, 21, 34

177 T Third states, 5, 103, 106–108, 152–153 tu quoque, 4, 57, 67–69, 159

U UNCITRAL, 16, 19–21, 23 US law, 11 Undue delay, 150

V Van Eysinga, 43, 45–46, 121, 136 Verhoeven, 58–59, 65, 92–93, 129, 131

W Wang, 45–46, 64 Weeramantry, 54, 61, 68–69, 109, 144, 151 Withdrawal, 26, 46, 135, 154–155, 162 WTO, 29