JURISDICTION OF INTERNATIONAL TRIBUNALS
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JURISDICTION OF INTERNATIONAL TRIBUNALS
by
CHITTHARANJAN F. AMERASINGHE
KLUWER LAW INTERNATIONAL THE HAGUE / LONDON / NEWYORK
Published by Kluwer Law International, P.O. Box 85889, 2508 CN The Hague, The Netherlands
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Printed on acid-free paper ISBN 90-411-1838-1 © 2003 Kluwer Law International Kluwer Law International incorporates the imprint Martinus Nijhoff Publishers. This publication is protected by international copyright law: All rights reserved. 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. Printed and bound in Great Britain by MPG Books Limited, Bodmin, Cornwall.
CONTENTS Acknowledgement Table of Cases Abbreviations
xv xvii iv
Part I Introductory CHAPTER 1 INTERNATIONAL ADJUDICATORY DISPUTE SETTLEMENT—NATURE AND DEVELOPMENT International disputes International tribunals Third party judicial settlement—development of arbitration Structure of peaceful dispute settlement in modern international relations Adjudicatory methods (i) Arbitration (ii) Settlement by a court Proliferation of adjudicatory dispute settlement Representation before tribunals Status of international tribunals Scheme of study
3 9 12 16 18 19 26 33 34 41 44
Part II General Principles CHAPTER 2 MEANING OF JURISDICTION IN INTERNATIONAL JURIDICAL USAGE Diversity of connotation National legal systems compared with the international system
49 56
vi
Contents Usage and applicability Primary connotation of the term Other areas examined Seisin and its relationship to jurisdiction
58 64 66 66
CHAPTER 3 CONSENT AS THE BASIS OF JURISDICTION OF INTERNATIONAL TRIBUNALS The requirement Requirements for effective consent (a) Consent in more than one step (b) Form of consent (c) Consent be subsequent conduct or by subsequent agreement Derivative or indirect consent International war crimes tribunals and consent Consent and individuals The relationship of consent to inherent jurisdiction Jurisdiction to render advisory opinions and rulings of law Irrelevance of consent Parameters of consent
69 77 77 82 86 89 90 93 95 97 97 98
CHAPTER 4 INTERPRETATION OF CLAUSES SUBMITTING TO JURISDICTION The contra proferentem rule Restrictive interpretation Sovereignty Positive principles applicable
102 105 115 119
CHAPTER 5 LA COMPETENCE DE LA COMPETENCE History Initial rationale and explanations of the rule Current status—general jurisprudence Current status—jurisprudence of the World Court Current status—conclusion
121 124 130 135 141
Contents
vii
Possible limitations (1) International arbitrations (2) Established courts Raising proprio motu the issue of la competence de la competence Finality of the determination on la competence de la competence Jurisdiction of other tribunals to decide on the competence of a tribunal The issue of conflict of interest
142 142 150 154 155 157 159
CHAPTER 6 COMPETENCE—THE CONSTITUTION OF THE TRIBUNAL The Commonwealth Secretariat International Arbitral Tribunal Case International arbitrations Two international cases (a) International administrative tribunals (b)ThelCTY Other tribunals CHAPTER 7
164 168 169 169 178 187
COMPETENCE TO SETTLE DISPUTES
Forum prorogatum and competence The judgment on competence and res judicata Identifying matters of competence Time for raising issues of competence Sources of jurisdiction (a) Multiple sources (b) Validity in time (c) Termination of validity Scope of primary jurisdiction Fundamental limitations on the scope of primary
198 200 202 205 207 207 209 210 213
jurisdiction
222
(a) The need for a dispute which is legal (b) The requirement of an interest (c) Mootness or absence of object
223 227 228
viii
Contents (d) Constitution of the tribunal (e) The rule in the Monetary Gold Case (f) Conclusion (g) Criminal proceedings Exercise of jurisdiction and discretion Proof of jurisdiction
CHAPTER 8
ADMISSIBILITY
Grounds for inadmissibility A. General B. Nationality of Claims C. Exhaustion of local remedies Waiver and estoppel (a) Express waiver (b) Implied waiver (i) The Optional Clause (ii) Submission by states to international adjudication, including arbitration (iii) The issue of arbitrability (iv) Arbitration agreements between states and private parties (v) Failure to raise preliminary objection (vi) Request for declaratory judgment (c) The principles of estoppel and good faith Time for raising objections to admissibility CHAPTER 9
230 231 236 236 238 239
245 246 259 284 286 288 290 291 291 294 295 303 303 305 308
INCIDENTAL JURISDICTION
(A) Intervention (1) Consent of the principal parties (2) Other requirements (3) Scope and procedures (4) The special case of the CJEC (B) Interim measures (1) Basic jurisdiction
314 315 329 335 339 344 345
Contents
ix
(2) The principles underlying the exercise of the jurisdiction (a) The CJEC (b) The PCIJ and the ICJ (c) Arbitrations (d) Conclusion (3) The legal effect of orders of interim measures CHAPTER 10
JURISDICTION vis-A-vis REMEDIES
Agreement and specific provision Interpretation of specific provisions Inherent or implied jurisdiction A. Interpretation of express provisions B. Absence of provision (i) The PCIJ and ICJ (ii) Arbitral tribunals (a) Negative injunctions (b) Restitutio in integrum (c) Specific performance (d) Damages (e) Satisfaction (f) Declaratory judgments (iii) Conclusion The principle of non ultra petita and jurisdiction CHAPTER 11
358 360 368 375 377 377
390 392 394 394 396 397 406 410 410 415 416 417 419 421 422
JURISDICTION TO REOPEN CASES
(1) Resjudicata and finality (2) Reopening cases (i) Appeal (a) The CJEC (b) International criminal tribunals (ii) Review (a) Review on discovery of new facts (b) An inherent jurisdiction
426 441 441 442 444 449 450 454
x
Contents (c) Review of UNAT and ILOAT judgments by the ICJ (iii) Fraud and corruption (iv) Rectification (v) Interpretation (vi) Annulment (a) Express provision (b) Partial nullity and resjudicata (c) Inherent jurisdiction to annul
CHAPTER 12
466 474 477 491 491 491 497 502
ADVISORY JURISDICTION
The limitation that requests must be within the scope of an organization's activities The requirement that the question be legal (a) Abstract or political nature (b) Object and purpose (c) The relevance of hypothetical answers (d) Concrete questions (e) Questions of fact Specific terms of reference The judicial character of the Court The exercise of the discretion to give an opinion: the Court's status as a principal organ Jurisdiction to reopen advisory opinions (a) Interpretation (b) Revision
510 521 522 525 525 526 526 527 527 537 542 542 543
Part III SPECIFIC COURTS AND TRIBUNALS CHAPTER 13 THE PERMANENT COURT OF INTERNATIONAL JUSTICE AND THE INTERNATIONAL COURT OF JUSTICE A. Forum Prorogatum General Considerations The principle and its evolution
549 550 552
Contents
xi
The maturation of consent or agreement Procedure evolved Conclusion B. Jurisdiction under the Optional Clause (1) The content of Article 36(2) and (3) (2) Reciprocity (3) Reservations (i) Content and application of reservations ratione materiae (ii) Subjective reservations (iii) Reservations ratione temporis (iv) The validity of reservations and declarations (4) Interpretation of declarations and reservations— special considerations
555 566 568 568 572 578 584 587 592 595 603 611
CHAPTER 14 ARBITRAL TRIBUNALS OF THE INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES Rationale for the International Centre for Settlement of Investment Disputes (ICSID) Outline of the System under the ICSID Convention (a) Proceedings for arbitration (b) Special features of ICSID Institutional Jurisdiction—its Scope and Limitations (i) Interpretation (ii) Consent (iii) Competence ratione materiae (iv) Competence ratione personae CHAPTER 15
617 621 621 624 626 626 631 635 643
INTERNATIONAL ADMINISTRATIVE TRIBUNALS
(1) Fundamental considerations (2) Jurisdictional competence (a) Competence ratione temporis (b) Competence ratione personae (c) Competence ratione materiae
669 674 674 675 680
xii
Contents (3) Irreceivability or inadmissibility (a) Ratione temporis (i) Mandatory nature of time-limits (ii) Extension by agreement between the parties (iii) Exceptional circumstances (iv) The terminus a quo (b) Other reasons than tempus (i) Insufficient clarity of grounds (ii) Agreement of release (iii) Scope of claims (iv) Exhaustion of internal remedies (v) Inappropriate respondent (4) Jurisdiction in regard to granting remedies (a) Inherent powers (b) General nature of remedies (i) Annulment, rescission and specific performance (ii) Compensation (a) Material loss and moral injury (b) Quantum of compensation (iii) Remand (iv) Costs (5) Jurisdiction to review (a) Res judicata (b) Review
686 686 687 689 690 692 693 693 694 696 696 700 700 702 704 705 706 707 708 711 711 715 715 716
CHAPTER 16 THE EUROPEAN COMMISSION AND COURT OF HUMAN RIGHTS Matters Strictly of Competence (1) Competence ratione loci (2) Competence ratione temporis (3) Restrictions on acceptances of jurisdiction pursuant to Articles 25 and 46 (4) Competence ratione personae (A) Inter-state applications (B) Individual applications (i) Being a "victim"
730 730 732 734 735 735 738 739
Contents (C) Passive legitimation with regard to both kinds of applications (5) Competence ratione materiae Matters of Admissibility Proper (1) Inadmissibility on the ground that the application was anonymous (2) The application must not constitute an abuse of the right of complaint (3) The application must not be substantially the same as a matter which has already been examined by the Commission or has already been submitted to another procedure of international investigation or settlement unless it contains relevant new information (4) The application must not be incompatible with the provisions of the Convention (5) The application must not be manifestly ill-founded (6) Domestic remedies must have been exhausted (a) Basic considerations (b) The relevance of the direct injury (c) Jurisdictional connection (d) Scope of the rule (e) Limitations on the rule (f) Raising the objection based on domestic remedies (g) The time at which remedies must be exhausted (h) The continuing situation (i) The burden of proof (7) The six-months rule The Function and Jurisdiction of the Court under the Old and New System
xiii 750 755 757 757 758
761 764 767 770 771 779 780 782 792 799 801 801 803 803 807
CHAPTER 17 THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES (A) Enforcement Actions against Member States
812
xiv
Contents (B) The Jurisdiction to Review (1) Annulment (2) Action for inactivity (3) Illegality (C) Plenary Jurisdiction (1) Contractual actions (2) Non-contractual actions against the Community (3) Liability arising from legislation (4) Period of limitation (5) Jurisdiction in regard to remedies (6) Concurrent liability of the Communities and the member states (D) Preliminary Rulings (1) Jurisdiction ratione materiae (2) Preliminary rulings on validity (3) Who may refer (a) Courts of last resort (b) Inferior national courts
Index
819 819 834 835 838 839 841 842 842 843 844 847 849 852 855 855 859 865
ACKNOWLEDGEMENT I should like to express my gratitude to Laura Crow, a friend, who assiduously and attentively typed the entire manusript of this work. Washington, D.C. July 2002
C. F. Amerasinghe
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TABLE OF CASES Al Decision, The Islamic Republic of Iran v. The United States of America 218-19 Acosta Andres, Azola Blanco and Veliz Garcia (No. 2) 440, 716, 718, 719 Adams v. Commission 843 Administrative Decision No. V 281 Advisory Opinion No. 1 505 Advisory Opinion No. 12 505 Aegean Sea Case: see Aegean Sea Continental Shelf Case Aegean Sea Continental Case 4-5, 105, 108-9, 349, 350, 405, 611, 614 Aegean Sea Continental Shelf Case (Provisional Measures) 372-3 Aelvoet and Others 682 Aerial Incident (Israel v. Bulgaria): see Aerial Incident of 27 July 1955 Case Aerial Incident Cases 567, 571 Aerial Incident of 10 August 1999 Case 572, 605-7 Aerial Incident of 10 August 1999 Case (Jurisdiction): see Aerial Incident of 10 August 1999 Case Aerial Incident of 19 March 1953 Case 30, 567 Aerial Incident of 27 July 1955 Case 140, 576-7, 592 Aerial Incident of 27 July 1955 Case (USA v. Bulgaria) 593, 605 Afawubo 490 Affaire Losinger and Co.: see Losinger Case A-G v. Mobil Oil NZ Ltd. 133 Aglion 699 Agodo 671, 672, 677 Agrotexim Hellas Case 747-8, 806 Ainsworth Case 281 Air Service Agreement Case 20 Air Transport Agreement Case 20 Airey: see Airey Case Airey Case 393, 768 Airport Transit Visas Case 821-2 Akdivar Case 794, 798, 803 Alabama Arbitration: see Alabama Claims Alabama Claims 21, 24, 122, 123 Alfieri 694 Alfred Haber, P.A. Case 215 Algera 684 Ali Khan (No. 2) 696, 698 Ali Khan (No. 4) 719
xviii
Table of Cases
Alonzo 685 Alvarez-Santullano et al. 679 Ambatielos Arbitration 24, 158-9, 406, 787 Ambatielos Case (Jurisdiction) 138, 158-9, 405, 553, 554, 557, 561-2, 563, 566 Ambatielos Case (Merits) 71, 158-9, 405 Ambatielos Case (Obligation to Arbitrate) 257, 294 Ambatielos Case (Preliminary Objection): see Ambatielos Case (Jurisdiction) Ambatielos Case: see Ambatielos Case (Obligation to Arbitrate) Ambatielos Claim: see Ambatielos Arbitration Ambrozy 685 Amco Arbitration (Resubmitted Case: Jurisdiction) 200 Amco Arbitration: see Amco v. Indonesia Amco Case: see Amco v. Indonesia Amco v. Indonesia 109-10, 132, 395, 492, 497-502, 627, 628, 650-2, 653, 655-9 American Bell International Inc. Case 465 American Farm Products International, Inc. Case 219 American Housing International, Inc. Case 219 Amesz and Others 683 AMINOIL Arbitration 6 Amministrazione della Finanze dello stato v. Essevi and Salengo 814 Amoco International Finance Corp. Case 395 Amoco International Finance Corp. Case, Partial Award 246 Andres (No. 8) 429 Andres (No. 10) 429 Angelopoulos, Decision No. 58 722, 723 Angelopoulos, Decision No. 63 723 Angelopoulos, Decision No. 74 722 Angelopoulos, Decision No. 78 685-6 Angelopoulos, Decision No. 79 430 Angelopoulos, Decision No. 83 430 Angelopoulos, Decision No. 84 430 Angelopoulos, Decision No. 91 727, 723 Angelopoulos, Decision No. 97 727-2 Anglo-French Continental Shelf Case 235 Anglo-Iranian Oil Co. Case 73, 74-5, 101, 104, 105, 108, 109, 212, 295, 296, 349, 369, 554, 557-8, 560, 562-3, 571, 579, 581, 587-8, 592, 601, 611, 613-14 Anglo-Iranian Oil Co. Case (Interim Protection) 377, 374 Anglo-Iranian Oil Co. Case (Preliminary Objection): see Anglo-Iranian Oil Co. Case Anglo-Iranian Oil Co., Order of July 5th, 1952 57
Table of Cases
xix
Anglo-Norwegian Fisheries Case 402 Antal 677 Antarctica Cases 567 Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal Case 28 Application for Review of Judgment No. 158 of the UNAT Opinion: see Judgment No. 158 Opinion Application for Revision and Interpretation Case 28, 73 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf: see Application for Revision and Interpretation Case Application for Revision and Review Case 452-4, 479, 481-2, 483 Application for Revision Case: see Application for Revision and Review Case Application of Genocide Convention Case (Provisional Measures) 207 Application of the Genocide Convention Case (Further Provisional Measures) 564-5 Application of the Genocide Convention Case (Preliminary Objections) 555, 560, 564-5, 576 Application of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters 29 Agreement of 26 June 1947 Opinion Appl. 62/55, X v. FRG 751 Appl. 100/55, X v. FRG 746 Appl. 113/55, W v. Ireland 746 Appl. 115/55, Xv. FRG 790 Appl. 176/56, Greece v. UK: see Appls. 176/56 and 229/57, Greece v. UK Appl. 202/56, X v. Belgium 761 Appl. 214/56, De Becker v. Belgium 733, 766-7, 768, 784, 796, 804, 806 Appl. 214/56, De Becker Case: see Appl. 214/56, De Becker v. Belgium Appl. 222/56, X v. FRG 796 Appl. 225/56, X v. FRG 787 Appl. 235/56, X v. FRG 732 Appl. 244/57, X v. FRG 759 Appl. 250/57, Kommunistische Partei Deutschland 765-6 Appl. 262/57, X v. Czechoslovakia 757 Appl. 263/57, X v. FRG 788 Appl. 297/57, X v. FRG 785, 796 Appl. 299/57, Greece v. UK: see Appl. 299/57, Second Cyprus Case, Greece v. UK Appl. 299/57, Second Cyprus Case, Greece v. UK 784, 797, 793 Appl. 302/57, (unpublished) 783 Appl. 332/57, Lawless v. Ireland 758, 784, 785, 795 Appl. 343/57, Schouen Nielsen v. Denmark 732, 774, 782, 783, 791, 792, 796, 805
xx
Table of Cases
Appl. 343/57: see Appl. 343/57, Schouen Nielsen v. Denmark Appl. 352/58, X v. FRG 787 Appl. 361/58, X v. Ireland 758 Appl. 434/58, X v. Sweden 790 Appl. 458/59, X v. Belgium 784 Appl. 473/59, X v. Austria 730 Appl. 493/59, X v. Ireland 782, 786 Appl. 499/59, X v. FRG 762 Appl. 512/59, X v. Belgium 805 Appl. 524/59 777 Appl. 556/59, X v. Austria 768 Appl. 568/59, X v. FRG 796 Appl. 596/59, Petaki Case 768 Appl. 613/59, X v. Belgium 807 Appl. 627/59, X v. FRG 788 Appl. 645/59, X v. FRG 804 Appl. 704/60, X v. FRG 796 Appl. 712/60, Retimag v. FRG: see Appl. 712/60, Retimag S.A. v. FRG Appl. 712/60, Retimag S.A. v. FRG 767, 794, 800 Appl. 722/60, X v. FRG 790 Appl. 788/60, Austria v. Italy 732, 736, 737, 771-2, 774, 777-8, 779, 786, 789, 795, 796, 797 Appl. 852/60, X v. FRG 752 Appl. 867/60, X v. Norway 741 Appl. 898/60, Y v. Austria 746 Appl. 918/60, X v. FRG 784, 791, 805 Appl. 945/60, X v. FRG 787 Appl. 968/61, X v. FRG 795, 804 Appl. 1053/61, X v. Austria 797 Appl. 1086/61, X v. FRG 785 Appl. 1103/61, X v. Belgium 788 Appl. 1135/61, X v. Austria 784 Appl. 1192/84, Moution v. France 785 Appl. 1216/61, X v. FRG 805 Appl. 1234/61, X v. Austria 790 Appl. 1270/61, Use Koch v. FRG 759 Appl. 1452/62, X v. Austria 730, 757, 769 Appl. 1468/62, Iversen v. Norway 755, 759, 507 Appl. 1468/62, X v. Norway: see Appl. 1468/62, Iversen v. Norway Appl. 1474/62, 23 Inhabitants of Alsemberg and of Beersel v. Belgium: see Inhabitants of Alsemberg and of Beersel v. Belgium Appl. 1478/62, Y v. Belgium 746
Table of Cases Appl. 1611/62, X v. FRG 732 Appl. 1706/62, X v. Austria 747, 752 Appl. 1727/62, Boeckmans v. Belgium 800 Appl. 1739/62, X v. Sweden 784, 785, 792, 805 Appl. 1936/63, Neumeister v. Austria 793 Appl. 1965/61, X v. Belgium 731 Appl. 1983/63, X v. the Netherlands 741 Appl. 1994/63, Inhabitants of Louvain and Environs v. Belgium 799 Appl. 2002/63, X v. Norway 787, 789 Appl. 2095/63, X v. Sweden, FRG and Other States 732 Appl. 2201/64, X v. FRG 785 Appl. 2257/64 785 Appl. 2322/64, X v. Belgium 789 Appl. 2333/64, Inhabitants of Leeuw-St. Pierre v. Belgium 769 Appl. 2358/64, X v. Sweden 745 Appl. 2366/64, X v. FRG 787 Appl. 2370/64, X v. Austria 784-5 Appl. 2413/65, X v. FRG 752 Appl. 2547/65, X v. Austria 799 Appl. 2614/65, Ringeisen v. Austria 785, 786, 789 Appl. 2686/65, Kornmann v. FRG 793 Appl. 2689/65, Delcourt v. Belgium 789 Appl. 2694/65, X v. FRG 805 Appl. 2854/66, X and Y v. Austria 784, 787 Appl. 2991/66 777 Appl. 3001/66, X v. Austria 788 Appl. 3059/67, X v. UK 753 Appl. 3071/67, X v. Sweden 807 Appl. 3505/68, X v. UK 797-2, 804 Appl. 3591/68, X v. Austria 805 Appl. 3651/68, Xv. UK 794 Appl. 3780/68, X v. Belgium 761 Appl. 3788/68, X v. Sweden 785 Appl. 3789//6S, X v. Belgium 753 Appl. 3798/68, Church of X v. UK 758 Appl. 3893/68, X v. Sweden 792, 805 Appl. 3897/68, X and Y v. FRG 787 Appl. 3972/69, X v. Austria 785, 791, 792, 805 Appl. 3979/69, X v. FRG 792 Appl. 4046/69, X v. FRG 785 Appl. 4125/69, X v. Ireland 754, 786 Appl. 4149/69, X v. FRG 807 Appl. 4256/69, X v. FRG 762
xxi
xxii
Table of Cases
Appl. 4311/69, X v. Denmark 784, 792, 805 Appl. 4319/60, Samer v. FRG 788 Appl. 4340/69, Simon-Herold v. Austria 786 Appl. 4445/70, X v. FRG 785 Appl. 4448/70, Denmark, Norway and Sweden v. Greece 734, 736-7, 797 Appl. 4448/70, Second Greek Case, Denmark, Norway, Sweden v. Greece: see Appl. 4448/70, Denmark, Norway and Sweden v. Greece Appl. 4451/70, Golder v. UK 777 Appl. 4464/70, Syndicat National de la Police Beige v. Belgium 782 Appl. 4475/70, Lotsforbundet v. Sweden: see Appl. 4475/70, X v. Sweden Appl. 4475/70, Svenska Lotsforbundet v. Sweden: see Appl. 4475/70, Lotsforbundet v. Sweden Appl. 4475/70, X v. Sweden 786, 791, 805 Appl. 4511/70, X v. Austria 785 Appl. 4515/70, X and the Association of Z v. UK 753 Appl. 4517/70, Huber v. Austria 762, 806 Appl. 4653/70, X v. FRG 741 Appl. 4771/71, Kamma v. the Netherlands 786, 788 Appl. 4859/71, X v. Belgium 792 Appl. 5006/71, X v. UK 786 Appl. 5029/71, Klass v. FRG 742 Appl. 5095/71, V and A. Kjeldsen v. Denmark 744, 794, 798 Appl. 5095/71, Kjeldsen v. Denmark: see Appl. 5095/71, V and A. Kjeldsen v. Denmark Appl. 5172/71, X v. FRG 785 Appl. 5207/71, Raupp v. FRG 759 Appl. 5310/71, Ireland v. UK: see Appls. 5310/71 and 5451/72 Appl. 5442/72, X v. UK 769 Appl. 5560/72, X v. Austria 788, 792, 805 Appl. 5920/74, Busk Madsen v. Denmark 798 Appl. 5926/72, Pedersen v. Denmark 798 Appl. 6181/73, Xv. FRG 806 Appl. 6231/73, Use Hess v. UK 732 Appl. 6242/73, Briickman v. FRG 784 Appl. 6317/73, X v. Austria 806 Appl. 6452/74, Sacchi v. Italy 764 Appl. 6701774, X v. Austria 793 Appl. 6821774, Huber v. Austria 762 Appl. 6832/74, X v. Sweden 761 Appl. 6878/75, Le Compte v. Belgium 762 Appl. 6930/75, Krzycki v. FRG 807 Appl. 6956/75, X v. UK 757 Appl. 6959/75, Bruggemann and Scheuten v. FRG 741
Table of Cases
xxiii
Appl. 7011/75, Becker v. Denmark 746, 793 Appl. 7045/75, X v. Austria 741 Appl. 7049/73, X v. FRG 784 Appl. 7230/75, X v. the Netherlands 737 Appl. 7238/75, Van Leuvan and De Meyere v. Belgium 762 Appl. 7438/76, Ventura v. Italy 796 Appl. 7465/76, X v. Denmark 793 Appl. 7467/76, X v. Belgium 746 Appl. 7601 /76, Young and James v. UK 754 Appl. 7629/76 807 Appl. 7640/76, Greece v. Switzerland 768 Appl. 7742/76, A.B. Company A.S. v. FRG 732 Appl. 7743/76, J.Y. Cosans v. UK 752 Appl. 7806/77, Webster v. UK 741, 754 Appl. 7826/77, X v. UK 748 Appl. 8007/77, Cyprus v. Turkey 737, 760 Appl. 8030/77, Confederation Francaise Democratique du Travail v. European Communities 757 Appl. 8206/78, X v. UK 761 Appl. 8233/78, X v. UK 762 Appl. 8261/78, X v.Italy Appl. 8290/78, A, B, C and D v. FRG 749 Appl. 8307/78, De Klerck v. Belgium 744 Appl. 8317/78, McFeeley v. UK 758 Appl. 8416/78, X v. UK 741 Appl. 8435/78, Orchin v. UK 796 Appl. 8440/78, Christians against Racism and Fascism Case 805 Appl. 8701/79, X v. Belgium 733 Appl. 8858/80, G v. FRG 748 Appl. 8865/80, Verband Deutscher Flugleiter and Others v. FRG 748 Appl. 9013/80, Farrell v. UK 782, 786 Appl. 9013/80, The Farrell Case: see Appl. 9013/80, Farrell v. UK Appl. 9028/80, X v. FRG 762 Appl. 9107/80, G v. Belgium 798 Appl. 9174/80, Zamir v. UK 793 Appl. 9266/81, Yarrow P.L.C. and Others v. UK 784 Appl. 9320/81, D v. FRG 740, 746 Appl. 9348/81, W v. FRG 746 Appl. 9471 /81, X and Y v. UK 798 Appl. 9578/81, X v. France 734 Appl. 9621/81, Vallon v. Italy 762 Appl. 9639/82, B, R and J v. FRG 746 Appl. 9697/82, J and Others v. Ireland 744, 793
xxiv
Table of Cases
Appl. 9742/82, X v. Ireland 759 Appl. 9908/82, X v. France 805 Appl. 9990/82, Bozano v. France 734 Appl. 9991/82, Bozano v. Italy 805 Appl. 10039/82, Leigh and Others v. UK 747-2 Appl. 10078/82, M v. France 785, 786 Appl. 10092/82, Baraona v. Portugal 748 Appl. 10103/82, Farragut v. France 748 Appl. 10230/82, X v. Sweden 805 Appl. 10243/83, Times Newspapers Ltd. and Others v. UK 761 Appl. 10308/83, Altern v. FRG 805 Appl. 10400/83, Z v. the Netherlands 785 Appl. 10799/84, Radio X, S, W & A v. Switzerland 742 Appl. 10899/84, C v. Italy 805 Appl. 10983/84, Confederation des Syndicats Medicaux Francais and Federation Nationale des Infirmiers v. France 758 Appl. 11603/85, Council of Civil Service Unions and Others v. UK 764 Appl. 12945/87, Hatjianastasiou v. Greece 774 Appl. 13134/87, Costello-Roberts v. UK 743 Appl. 13156/87, Byrn v. Denmark 748, 749 Appl. 13284/87, M v. UK 759 Appl. 13365/86, Ajinaja v. UK 761 Appl. 13524/88, F v. Spain 760 Appl. 14056/88, Aarts Case 805 Appl. 14229/88, Y v. UK 753 Appl. 14461/88, Chave nee Julien v. France 803 Appl. 14807/89, Agrotexim Helles S. A. v. Greece: see Agrotexim Hellas Case Appl. 15070/89, Modinos v. Cyprus 744 Appl. 15090/89, Ayuntamiento M. v. Spain 739 Appl. 15213/89, M v. Belgium 803 Appl. 15404/89, Purcell v. Ireland 770 Appl. 16358/90, Cereceda Martin and Others v. Spain 764 Appl. 16839/90, Remli v. France 786 Appl. 17004/90, Herez v. Norway 741 Appl. 17262/90, A v. France 745 Appl. 17512/90, Calcerrada Fornielles and Cabeza Mato v. Spain 763-4 Appl. 17599/90, Kelly v. UK 803 Appl. 17669/91, Van Laak v. the Netherlands 749 Appl. 19217/91, Durini v. Italy 751 Appl. 19373/92, Voulfovitch and Oulianova v. Sweden 745 Appl. 21962/93, A.D. v. The Netherlands 761 Appl. 21987/93, Aksoy v. Turkey 759, 798
Table of Cases
xxv
Appl. 21987/93, Aksoy Case: see Appl 21987/93, Aksoy v. Turkey Appl. 22654/93, Grice v. UK 757 Appl. 25781 /94, Cyprus v. Turkey 73 7 Appls. 176/56 and 299/57, Greece v. UK 737, 797 Appls. 3321-3/67, 3344/67, First Greek Case, Denmark, Norway, Sweden, the Netherlands v. Greece: see Appls. 3321-3323 and 3334/67, Denmark, Norway, Sweden, the Netherlands v. Greece Appls. 3321-3323 and 3334/67, Denmark, Norway, Sweden and the Netherlands v. Greece 736-7, 760, 797, 798, 806 Appls. 5070, 5171, 5186/71, X. v. FRG 759 Appls. 5310/71 and 5451/72, Ireland v. UK 737, 797, 798 Appls. 5351/72 and 6579/74, X v. Belgium 757 Appls. 5577-83/72, Donnelly and Others v. UK: see Appls. 5577/72-83/72, Donnelly et al. v. UK Appls. 5577-83/72, Donnelly et al. v. UK 740, 762, 763, 793, 798 Appls. 6780/74 and 6950/75, Cyprus v. Turkey 737, 738 Appls. 7289/75 and 7349/96, X v. Switzerland: see Appls. 7289/75 and 7349/76, X andY v. Switzerland Appls. 7289/75 and 7349/76, X and Y v. Switzerland 732, 75P Appls. 8022/77, 8025/77, 8027/77, McVeigh, O'Neill and Evans v. UK 794 Appls. 8348 and 8406/78, Glimmerreen and Hagenbeek Case 765, 766 Appls. 8560/79 and 8613/79, X and Y v. Portugal 733 Appls. 8805/79 and 8806/79, De Jong and Baljet Case 785, 786 Appls. 9214/80, 9473/81 and 9474/81,The X, Cabales and Balkandali Case 746 Appls. 9362/81, 9363/81,9378/81, Van der Sleuijs, Zuiderveld and Klappe v. the Netherlands 785 Appls. 9940-44/82, France, Norway, Denmark, Sweden and the Netherlands v. Turkey 736, 737-8, 767 Appls. 15299/89, 15300/89 and 15318/89, Chrysostomos, Papachrysostomos and Loizidou v. Turkey 734, 736 Appls. 17550/90 and 17825/9, V and P v. France 745 Arab Republic of Egypt Case 733 Aramco Arbitration 779 Arbitral Award Made by the King of Spain on 23 December 1906: see Arbitral Award of the King of Spain Case Arbitral Award of the King of Spain Case 28-9, 405 Arbitral Award of 31 July 1989 Case 140, 143, 392, 571, 587 Arbitral Award of 31 July 1989 Case (Provisional Measures) 374 Argentina-Chile Frontier Case 20 Arrest Warrant of 11 April 2000 Case 226-7, 230, 404, 406, 422 Arrest Warrant of 11 April 2000 Case (Provisional Measures) 357, 374 Arthur J. Fritz Case 279
xxvi
Table of Cases
Arthur Young and Co. Case 249 AS v. Iran-United States Claims Tribunal 41-4 Asghar Case 275 Asmussen and Others 694 Asocarne v. Council 832 Aspeby 429 ASSIDER and Another v. Commission 835 Asylum Case 323, 422, 431-2, 434 Asylum Case (Interpretation) 433, 434, 435-6, 481, 483, 486, 637-8 Aubert and 14 Others 772 Avco Corp. Case 478 Award No. 93-2-3 293 Ayyangar (No. 2) 719 B 684 Bambinelli (No. 3) 779 Bambinelli (No. 4) 429 Banchero Case 862 Barayagnije Case 447 Barcelona Traction Co. Case 282, 662 Barcelona Traction Co. Case (Preliminary Objection): see Barcelona Traction Company Case (Preliminary Objection) Barcelona Traction Company Case (Preliminary Objection) 207, 426 Baron de Neufliza Case 456 Barr and Montrose Holdings 855 Bartel (1981) 724 Bartel (1982) 725 Barthez de Monfort Case 268 Bauer 688 Bauta y Delgado 684 Beagle Channel Arbitration 20, 25 Beelen 693 Behring International, Inc. Case 247, 358 Belchamber 681 Belfiore 688, 689 Belgian Linguistics Case 777, 809 Bellintani and Others 720, 727, 724 Bendone-Devossi International Case 62, 354-5 Berg, A. (No. 2) 430, 715, 721, 724, 725 Berg, Klaus 695 Bering Sea Case 24 Bernard and Cofino 681 Bernot 682
Table of Cases
xxvii
Berti 681, 696 Berube 684 Betsey Case 727-2, 124-6, 145, 160 Biswas 694 Birnbaum, Harold, Case 464-5, 476-7, 478 Blondel Case 722 Blount Brothers Corp. Case 216 Bluefin Tuna Case 33, 132, 222 Blumenthal Case 268 Bock v. Commission 828 Bode 699 Bohn and Others 679 Bonneau 719 Bonneau (No. 2) 719 Border and Transborder Armed Actions Case 226, 227, 229, 239, 255-7, 313, 572 Border and Transborder Armed Actions Case (Jurisdiction and Admissibility): see Border and Transborder Armed Actions Case Bosnian Genocide Convention Case (Provisional Measures): see Genocide Case Bosnian Genocide Convention Case (Provisional Measures), Order of 8 April 1993: see Genocide Case Bosnian Genocide Convention Case (Provisional Measures), Order of 13 September 1993 370, 374, 380 Bourgaux 671 Bouvaist-Hayes 674 BP v. Libya 410, 416 Brache 675 Branckaert 699 Breard Case (Provisional Measures): see Breard Case, Order Breard Case, Order 350-7, 372, 374 Breuckmann 698 Brisco 672 Briscoe 194 British Property in the Spanish Zone of Morocco Case 227, 412-3 Broemser 702 Brower Case 420 Brown 688 Brozano Case 803 Brunetti and Others 681 Bulsara 720, 723 Buralux and Others v. Council 830, 832 Buranavanichkit 702, 706, 712 Burey 674
xxviii
Table of Cases
Burton Marks and Harry Umann Case 71, 86, 195 Buscarini v. San Marino 760, 795, 807 Bustos 677 Cabral et al. 681 Calpak v. Commission 828 CAM v. Commission 828 Camargo 678 Camouco Case 113, 120 Campbell and Cosans Case 752 Campo 682 Canino Case 200 Carbognani and Coda Zabetta 684 Cardot Case 786, 794, 810 Carthage Case 418, 420-1 Casablanca Deserters Case 414-5 Case 24 and 97/80R, Commission v. France 361, 366-7 Case 42/82 R 360, 632-3, 364-6 Case 61/77R Commission v. Ireland 360, 362, 364, 365 Case 171/83 R 360, 365, 366 Case Concerning the Arbitral Award of 31 July 1989 350 Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria 350, 352-3 Case No. A/18 269-70, 271-2 Cases 31/77 and 53/77R Commission v. United Kingdom 360-1, 363-4, 365 Cases Nos. Al and A2, the Islamic Republic of Iran v. the United States 215 Cases of Dual Nationality (No. 22) 58, 61, 111, 190-1 Castro 672, 682 Cayuga Indians (GB v. USA): see Cayuga Indians Case Cayuga Indians Case 420, 646 CCE de la Societe Generate des Grandes Sources and Others v. Commission 828 CCE de Vittel and Others v. Commission 828 Celebici Case 447 Central Rhodopie Forests 61, 110 Central Rhodopie Forests Arbitration: see Central Rhodopie Forests Certain Expenses of the United Nations Opinion 29 Cession of Vessels and Tugs for Navigation on the Danube 118 Chad/Libya Territorial Dispute Case 234 Chadsey 678 Charbin 430 Charbin (No. 2) 440, 715, 716 Charbonnieras 680
Table of Cases
xxix
Charles J. Jansen Case 169 Chemins de fer Zeltweg Case: see Chemins de fer Zeltweg-Wolfsberg et Unterdrauberg-Woellen Case Chemins de fer Zeltweg-Wolfsberg et Unterdrauberg-Woellen Case 143, 294 Chen 430 Chen (No. 2) 429-30 , 676, 715-16 Chernobyl Case 825-6 Chevreau Case 214 Chisman and Others 683 Chorzow Factory (Jurisdiction) Case 106, 303-4, 305-6, 390, 397-8, 398-9, 400, 402-3 Chorzow Factory Case 28, 370 Chorzow Factory Case (Interpretation) 427, 428, 438, 439-40, 481, 483, 486-7 Chorzow Factory Case (Merits) 395, 399, 410, 554 Chris Foods Case 342 Church of Scientology v. Sweden 739 CILFIT v. Ministry of Health 85 7-9 Cisneros 674 Civet Case 785 Claim of the United States and the Paraguay Navigation Co. 122 Codorniu v. Council 831, 832 Colombian Bond Cases 722 Combustion Engineering et al. Case 249 Comitology Case 825, 826 Commission v. Belgium, Case 156/77 838 Commission v. Belgium, Case 186/85 814 Commission v. Belgium, Case C-207/97 815 Commission v. Council, Case 22/70 820 Commission v. Council, Case C-170/96 821 Commission v. Denmark, Case C-52/90 817 Commission v. Germany, Case 325/82 814 Commission v. Germany, Case C-191/95 813 Commission v. Germany, Case C-191/95 815 Commission v. Germany, Case C-272/99 815 Commission v. Germany, Case C-422/92 815-16 Commission v. Greece, Case 226/87 838 Commission v. Greece, Case C-29/90 814 Commission v. Greece, Case C-347/88 816 Commission v. Italy, Case 39/72 814 Commission v. Italy, Case C-362/90 814, 815 Commission v. the Netherlands, Case 96/81 816-17 Commission v. Zoubeck 840-1
xxx
Table of Cases
Compagnie d'electricite de Sofia et Bulgaria Case 348 Compagnie d'electricite de Varsovie Case 58, 214 Compagnie d'electricite de Varsovie Case (Interlocutory Award) 214 Compagnie d'electricite de Varsovie Case (Jurisdiction): see Compagnie d'electricite de Varsovie Case Compagnie du Port des Quais et des Entrepots de Beyrouth and the Societe Radio-Orient Case 296 Compagnie Internationale des wagons-lits Case 318 Competence of the International Labour Organization in the Matter of the Regulation of Conditions of Work of Persons Employed in Agriculture Opinion 106 Competence of the International Labour Organization to Regulate, Incidentally, the Personal Work of Employers: see Personal Work of Employers Opinion Computer Sciences Corp. Case 248-9 Comte Andrassy v. Czechoslovak State 318 Confederation Francais Democratique de Travail v. European Communities 195 Connolly-Battisti 681 Constitution of the Maritime Consultative Organization Opinion 29 Cook et al. 671 Corfu Channel Case 32, 138, 207, 313, 400-1, 434 Corfu Channel Case (Compensation) 201, 431-2, 434 Corfu Channel Case (Merits): see Corfu Channel Case Corfu Channel Case (Preliminary Objection) 54, 72-3, 77-8, 84, 313, 554, 555-6, 558-9, 560-1, 563 Costa Rica v. Nicaragua 316 Costa v. ENEL 848 Costello-Roberts Case 753 Council v. Parliament, Case 34/86 821 Crapon de Caprona 684 Crawford et al. 489 Culmsee and Others 700 Curio 40 Cuvillier and Others 683 Da 682 Da Costa v. Nederlandse Belastingadministratie 856-7, 858 Dallal, Mark v. The Islamic Republic of Iran 476 Dallal Case 275 Dalmas Case 837 Dames and Moore Case 476, 477 Danzenbrink 676 Danzig Legislative Decrees Opinion 509
Table of Cases Darricades 670, 676 Dayan 696 de Agiiero 430, 681, 715 De Becker Case: see Appl. 214/56, De Becker v. Belgium de Born Case 275 de Bruyn 681 de Dapper and Others 680 De Franceshi S.p.A. Monfalcone v. Council and Commission de la Pradelle Case 794 de Merode 6, 673, 683 de Peganow 682, 691 De Roubaix 679 de Villegas 689 de Villegas (No. 4) 461, 717, 718, 719 de Villegas (Nos. 8, 9 & 10) 718 de Villegas (No. 11) 718, 719 De Wilde, Ooms and Versyp Case 394 Decision No. DEC 67-REF 35-2 (22 Dec. 1988) 220 Decision No. 3 (2nd Appeal) (ESRO) 430, 715 Decision No. 4 (ESRO) 689 Decision No. 5 (ESRO) 689, 690 Decision No. 5 (NATO) 676 Decision No. 6 (ESRO) 691 Decision No. 9 (ELDO) 683 Decision No. 10 (ELDO) 679, 683 Decision No. 11 (ELDO) 679, 683 Decision No. 12 (ELDO) 679, 683 Decision No. 12 (OEEC) 673, 676 Decision No. 13 (OEEC) 673 Decision No. 13(b) (NATO) 722 Decision No. 15(a) (NATO) 725 Decision No. 15(b) (NATO) 722 Decision No. 16(a) (NATO) 724 Decision No. 19 (OEEC) 722, 723 Decision No. 24 (NATO) 703 Decision No. 26 (NATO) 676 Decision No. 32 (ESRO) 679, 680 Decision No. 33 (ESRO) 688, 691 Decision No. 36 (NATO) 683 Decision No. 37 (NATO) 692 Decision No. 38 (NATO) 682 Decision No. 43 (NATO) 724 Decision No. 46 (NATO) 684
xxxi
843
xxxii
Table of Cases
Decision No. 53(a) (NATO) 676 Decision No. 53(b) (NATO) 676 Decision No. 66 (NATO) 724 Decision No. 78 (OECD) 686 Decision No. 95 (NATO) 684 Decision No. 97 (NATO) 692 Decision No. 98 (NATO) 724 Decision No. 109 (NATO) 725 Decision No. 114 (NATO) 722 Decision No. 116 (NATO) 722-3 Decision No. 137 (NATO) 723 Decision No. 140(b) (NATO) 725 Decision No. 151 (NATO) 723 Decision No. 165 (NATO) 725 Decision No. 166 (NATO) 724 Decision No. 169(b) (NATO) 430, 683, 715 Decision No. 170 (NATO) 724 Decision No. 206 (NATO) 672 Decision No. 207 (NATO) 688 Decisions Nos. 8 & 10 (ESRO/CR/52) 720, 724 Decisions Nos. 8 & 10 (ESRO/CR/58) 724 Decisions Nos. 8 & 10 (ESRO/CR/86) 724 Decisions Nos. 9 & 10 (ESRO/CR/91) 724 Decisions Nos. 174 to 180, 182, 184 to 186, 188 to 195 (NATO) 682 Degreef 696 Delagoa Bay Case 24 Delbez and Others 688 Delimitation of the Continental Shelf Case 70 Delimitation of the Continental Shelf Case (Application for Interpretation) 478-9, 488 Delimitation of the Frontier-line Case 488 Deshormes 699 Desplanque 689-90 Deutsche Lebensmittelwerke v. Commission 828, 831 Deutz und Geldermann v. Council 828 Diaz Acevedo 774 DIG of Delaware, Inc., et al. Case 277 Didier Case 724 Dietz v. Commission 846 Difference Relating to Immunity Opinion 508-9, 538 Diversion of Waters from the Meuse Case 403 Domon and Lhoest 681 Donnelly and Others v. UK 305
Table of Cases
xxxiii
Dores and Silveira v. Portugal 748 Dorin de Rosiere, Paul, Case 441, 488, 489 Draft Agreement Establishing a European Laying-Up Fund for Inland Waterway Vessels Case 342 Dreyfus freres et Cie et al. Case 124, 258 Drier Case ({Catherine M.) 450 Drozd and Janousek 732 Duberg 681 Durrant-Bell 707 Dymock 38 Dzodzi v. Belgium 850, 851, 852, 862 East African Asians Cases 750 East Timor Case 73, 225, 226, 232-3, 572, 576 Eastern Carelia Opinion 72, 527-8, 530, 535-6 Eastern Extension, Australasia and China Telegraph Co. Ltd. Case 58, 214 Eastman Kodak Co. Case 246 Eckle Case 394 Economy Forms Corp. Case 216 Edgar Protiva, et al. Case 258 Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Opinion: see Effect of Awards Opinion Effect of Awards of Compensation Opinion: see Effect of Awards Opinion Effect of Awards Opinion 29, 134, 138, 169, 173-5, 184, 452, 489-90, 671 Eichmann Case 92 Einthoven 671, 683 El Salvador v. Nicaragua 410, 412 Electricite de Beyrouth Co. Case 296 Electricity Company of Sofia and Bulgaria Case 136, 143, 207, 208, 571, 576, 579, 581, 596-7, 598-9 Electricity Company of Sofia and Bulgaria Case, Order 369 Electricity Company of Sofia Case (Preliminary Objection): see Electricity Company of Sofia Case Electricity Company of Sofia Case (Provisional Measures) 374 Electricity Company of Sofia Case: see Electricity Company of Sofia and Bulgaria Case Elettronica Sicula S.p.A. (ELSI) Case 292, 307-8 Elf Aquitaine Iran v. National Iranian Oil Company 297-8 El-Far 697 Elle 682 El-Tawil 690 Elveson 710 Elz (1961) 430-1, 715
xxxiv
Table of Cases
Elz (1969) 686 Elz (1977) 724 Emanuel Too Case 279 Engel: see Engel Case Engel Case 394, 765 Englert 782 Equal Opportunities Commission 863 Eric H. Hermann Case 355, 358 ERTA Case 820-1 Esahak Saboonchian Case 249 Esphanian Case 269-70, 271-2 Espinola (No. 2) 719 E-Systems, Inc. Case 348, 358, 376 Eurico Italia and Others 848, 859-60 European Commission on the Danube Opinion 575 European Parliament v. Council, Case 13/83 824, 834 Exchange of Greek and Turkish Populations Opinion 118, 509 Exportation des Sucres v. Commission 828 Extramet Industries v. Council 831 Fabiani Case 437 Fairen Garbi and Solis Corrales (Preliminary Objections) Case 777, 290 Fairen Garbi and Solis Corrales Case: see Fairen Garbi and Solis Corrales (Preliminary Objection Case) Falciola Case 860 Farcot and Others 679 Farrall 694 Fasla 468, 702, 724 Feme et al. 682 Filetting within the Gulf of St. Lawrence 702 Finnish Ships Arbitration 787-8 First Admissions Opinion 506-7, 510, 522, 523-4, 640, 641 First Cyprus Case: see Appl. 176/86, Greece v. UK Fisheries Jurisdiction (UK v. Iceland) Case (Jurisdiction) 140, 349, 350 Fisheries Jurisdiction (Germany v. Iceland) Case 401 Fisheries Jurisdiction (Spain v. Canada) Case (Jurisdiction) 141, 239-40, 572, 578, 585-6, 589, 611-13, 614-16 Fisheries Jurisdiction Case (FRG v. Iceland, Interim Measures) 29, 369, 371 Fisheries Jurisdiction Case (UK v. Iceland, Interim Measures) 29, 369, 371 Fisheries Jurisdiction Case: see Fisheries Jurisdiction (Spain v. Canada) Case (Jurisdiction) Fisheries Jurisdiction Cases (Interim Protection) 374 Fisheries Jurisdiction Cases (Jurisdiction of the Court) 212-13, 571
Table of Cases
xxxv
Flegenheimer Case 263-4, 265, 266, 275, 647 Flex-Van Leasing, Inc. Case 284 Flutie Case 265 FMC Corp. Case 217-8 Foglia v. Novello Cases 860 Fonzi 680 Ford Aerospace and Communications Corporation Case 488 Ford Werke AG and Ford of Europe Inc. v. Commission 363 Foremost Tehran Inc., et al. Case 216 Foto-Frost v. Hauptzollamt Lubeck-Ost 853, 854-5, 859 Fournier d'Albe (No. 2) 681 Fournier d'Albe 694 Framatonee S.A. et al. Arbitration 119 France v. Comafrica and Dole 833 France v. Commission, Case C-57/95 821 France v. Commission, Case C-366/88 820 France v. United Kingdom, Case 141/78 813, 817 Free Zones Case 18, 110-11, 403, 627 Free Zones of Upper Savoy and the District of Gex Case: see Free Zones Case Freeman (No. 2) and Malcolm (No. 2) 681 Frelinghuysen v. Key 438 French Co. of Venezuela Railroads Case 110, 273 French-Tunisian Arbitral Council Case 169 Frontier Dispute (Burkina Faso/ Mali) Case: see Frontier Dispute Case Frontier Dispute Case 234, 313 Frontier Dispute Case (Burkina Faso/Mali) (Provisional Measures) 374, 380 Fruit en Groentenimporthandel v. The Commission 343-4 Furundzija Case 447 Gabcikovo-Nagymoros Project Case 313, 392 Gamble 694 Garcia and Marquez (No. 2) 431, 698, 716 Garofolo and Others v. Ministero della Sanita 855 Geisler (No. 2) and Wenzel (No. 3) 696 Geist 723 GEM A v. Commission 835 General Motors Corp. Case 284 Genocide Case 357, 370, 373, 374, 380, 383 George Turnbull, Manoa Co. (Ltd.), Orinoco Co. (Ltd.) Case 413 George W. Hopkins Case 415-16 German Interests in Polish Upper Silesia Case (1925) 136, 303 597, 639 German Interests in Polish Upper Silesia Case (1926): see German Interests in Polish Upper Silesia Case (Merits)
xxxvi
Table of Cases
German Interests in Polish Upper Silesia Case (Jurisdiction): see German Interests in Polish Upper Silesia Case (1925) German Interests in Polish Upper Silesia Case (Merits) 544, 642 German Settlers in Poland Opinion 510, 544 Ghaffar 772 Giannini 679 Gilbert and Others 681 Giloy v. Hauptzollamt Frankfurt am Main Ost 852, 862 Giovanni Cervetti Case 415 Giroud (No. 2) and Lovrecich 683 Giry 686 Giussi 677 Glorioso (No. 2) 430, 699, 716 Glucoseries Reunies v. Commission 828 Gmurzynska-Bscher v. Oberfinanzdirektion Koln 850 Godinez and Cruz (Preliminary Objections) Case 111, 290 Godinez and Cruz Case: see Godinez and Cruz (Preliminary Objection) Case Gold of the National Bank of Albania 61, 119 Golder v. UK 777 Gomez 675 Goodrum 691 Graneros 681 Graselli 679 Grau Gomis and Others 849 Great Belt Case (Provisional Measures): see Great Belt Case, Order Great Belt Case, Order 370 Greco-Turkish Agreement Opinion 59 Greek Powder and Cartridge Co. Case 329 Green, A.A., Case 457 Greenpeace and Others v. Commission , Case C-321/95 833 Greenpeace and Others v. Commission, Case T-585/93 832-3 Grimaldi v. Fonds des Maladies Professionelles 820, 850 Groppera Radio AG Case 747, 747 Grover 675 Gruen Associates, Inc. Case 276 Guano Case 375-76, 329-30, 332 Guardianship of Infants Case 405, 592 Gubin and Nemo 699 Gulf of Maine Case 234-5,313 Gut Dam Arbitration 288, 406 Guyon and Nicolas 689 Guzzardi Case 786 Gyamfi 777
Table of Cases
xxxvii
Haegeman v. Belgium 342 Haegeman v. Commission 845 Hakin (No. 4) 699 Hakin (No. 9) 429 Harpingnies 714 Harrington and Associates, Inc. Case 258 Harrison 700 Hasan v. Bulgaria 799 Haya de la Torre Case 28, 201, 323, 330, 433, 554, 561, 563 Hayward 684 Hebrant 680 Heim et Chemant Case 454-6 Heltzel 675 Henry F. Teichmann, Inc., et al. Case 216-7 Hermes v. FHT 849 Herpels 699 Herzegfalvy Case 739 Hill and Others 690 Hilpern 792, 676 Hilti Actiengesellshaft Case 344 Hoefnagels 714 Hoffland Honey Co. Case 248 Holiday Inns Arbitration: see Holiday Inns Case Holiday Inns Case 358, 359, 376, 650, 654-5, 656 Holiday Inns S.A., Occidental Petroleum Corporation et al. v. Government of Morocco: see Holiday Inns Case Horst Pufurst Case 86, 193, 195, 199, 200 Hostages Case 227, 639, 401-2, 403-4, 576 Hotel Metropole Case 412 Houston Contracting Case 478 Howlader 724, 725 Hubeau 428-9, 430, 716 Humblet 676 Hungarian Optants Case 126 Hunt 688 I.VE.M. Case (No. 183) 496 IBM v. Commission 821 Icelandic Fisheries Jurisdiction Case: see Fisheries Jurisdiction (UK v. Iceland) Case (Jurisdiction) Ido 698 Ido (No. 2) 718
xxxviii
Table of Cases
ILOAT Judgments Opinion: see Judgments of the I.L.O. Administrative Tribunal Opinion I'm Alone Case 418, 419 IMCO Opinion 510, 526 Importazione Bestiame Carni v. Commission 845 Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden 739 Inhabitants of Alsemberg and of Beersel v. Belgium 787, 806 Interhandel Case 62, 63, 139-140, 141, 146, 147, 192, 226, 289, 291, 294, 305, 306, 349-50, 370, 405, 582, 586, 590-1, 592, 594, 602, 605, 607, 639 Interhandel Case (Interim Protection) 374 Interhandel Case (Preliminary Objections): see Interhandel Case International Administratie Kantoor N.V c. Republique federal d'Allemagne (No. 160): see International Administratie Kantoor N.V v. Federal Republic of Germany International Administratie Kantoor N.V v. Federal Republic of Germany 61, 112 International Fruit Company v. Commission 828 International Fruit Company v. Produktschap voor Groenten en Fruit 852 International Institute of Agriculture v. Profili 176 International Schools Services, Inc. Case 465 International Status of South West Africa Opinion 29, 32 International Systems and Controls Corp. Case 217 International Technical Products Corp., et al. Case 258 Interpretation of Article 79, §6(c), of the Peace Treaty (No. 196) 61, 101-2, 111, 112 Interpretation of the Agreement of 25 March 1951 between WHO and Egypt Opinion 29 Interpretation of the Greco-Bulgarian Agreement (1927) Opinion 509 Interpretation of the Greco-Turkish Agreement Opinion 135, 143 Interpretation of the Peace Treaties Opinion: see Peace Treaties Opinion Interpretation of the Statute of the Memel Territory Case 250-1 Interpretation of the Treaty of Neuilly Arbitration 106 Inze Case 749-50 Iranian Hostages Case: see Hostages Case Iran-United States Case No. A/18 204 Iran-United States, Case No. A/1 58, 214 Ireland v. United Kingdom 736 Irish Creamery Milk Suppliers Association v. Ireland 860 Isaac Harrington Case 722 Island of Palmas Case 22 Italy v. Council and Commission 838
Table of Cases ITEL International Corp. Case
xxxix 277
Jadoul 684 Jalal Morin Case 249 Jan Mayen Case 235, 572, 577 Jarwozine Opinion 457, 487, 509 Joaquin and Navarette 675 Joined Appls. 5767/72, 5922/72, 5929-5931/72, 5984-5988/73 and 6011/73, Austrian Municipalities v. Austria 739 Judgment No. 158 Opinion 468, 470-1, 472, 529, 671, 682, 713 Judgment No. 273 of the UNAT Opinion 467, 468, 471, 472-3, 529 Judgment No. 273 Opinion: see Judgment No. 273 of the UNAT Opinion Judgment No. 333 of the UNAT Opinion 466-7, 468-9, 471, 474 Judgment No. 333 Opinion: see Judgment No. 333 of the UNAT Opinion Judgments of the Administrative Tribunal of the I.L.O. Opinion: see Judgments of the I.L.O. Administrative Tribunal Opinion Judgments of the I.L.O. Administrative Tribunal Opinion 6, 51, 113-14, 138, 143, 192, 204, 469-70, 510, 526, 527, 527, 529, 531, 534-5, 538-9, 669-70, 676, 677, 681, 685, 708, 726 Judgments of the ILOAT Opinion: see Judgments of the I.L.O. Administrative Tribunal Opinion Julien Chevreau Case 58 Jurado 682 Jurado(No. 10) 681 Justin 676, 677-8, 709 K. Haji-Bagherpow Case 275 Kahal 677, 684 Kahale 699 Kahane (Successor) v. Parisi and the Austrian State 646 Kahane Case: see Kahane (Successor) v. Parisi and the Austrian State Kampffmeyer v. Commission 845 Kanyabashi 60, 113 Kaplan 747 Karl Wisser Case 58-9, 221 Kasikili/Sedudu Island Case 392 Kavoukas and Parham 193-4, 204, 692 Kennedy (1978) 678 Kennedy (1981) 725 Kennedy (1982) 725 Khalil 426, 441, 442, 490, 715, 716, 720 Khedrian 724
xl
Table of Cases
Kingdom of the Hellenes v. FRG 335 Kirk 694 Kirkwood Case 744-5 Klass Case 740, 742-3, 810 Kleinwort Benson v. City of Glasgow District Council 850-1, 852 Klockner Case: see Klockner v. Cameroon Klockner v. Cameroon 732, 492 Knickerbocker Insurance Company of New York Case 227 Knox 695, 700 Korter 680 Krankenvesorgung der Bundesbvahnbeantem, Frankfurt Case 318 Krohn v. Commission 846-7 Kronprins Gustaf Adolf Arbitration 106 Krug 682 Kummerow et al. Case 58, 213 Kundra 691 Kuster 684 Kiisterk 686 "La Constancia" Case 722, 723, 143 LaAbraCase 457 La Croix 693-4 La Grand Case 377-52 La Grand Case (Provisional Measures): see La Grand Case, Order La Grand Case Order 350-7, 356-7, 372, 374 La Masica Case 409 L'Affaire de la Societe Radio-Orient 412 Lafuma 679, 680 Lake Lanoux Arbitration 27 Lakey 696 Lamadie 772 Lamadie (No. 2) and Kraanen 681, 683 Lamming 691 Land and Boundary between Cameroon and Nigeria Case (Provisional Measures) 374, 380 Land and Maritime Boundary between Cameroon and Nigeria Case (Preliminary Objection) 83, 484, 572, 613 Land, Island and Maritime Frontier Dispute Case 225, 327-8, 332-3, 336-7, 338, 339 Land, Island and Maritime Frontier Dispute Case (Application to Intervene) 74, 312, 313, 325-6, 335-6 Larbathe 678 Lassalle v. The European Parliament 341
Table of Cases Lawless 765, 766-7 Lawless Case: see Lawless Lazare Case 457 Le Compte, Van Leuven and De Mujare Case 393 Le More Case 123 Lebaga 40 Leclerc-Siplec v. TF1 Publicite and M6 Publicite 863-4 Legal Consequences for States of the continued Presence of South Africa in Namibia Opinion 29 Legality of Nuclear Weapons Opinion: see Legality of the Threat of Use of Nuclear Weapons Opinion Legality of Use of Force Case (Provisional Measures) 73, 352, 357-8 Legality of the Threat or Use of Nuclear Weapons Opinion 29, 227, 506-7, 510, 518, 520-1, 522, 523, 525-6, 530, 538, 539-40 Leger (No. 2) 718 Leguin 690 Le High Valley Railroad Company et al. Case 474-5, 477, 478 Lemmerz-Werke GMBH v. High Authority 343 Lena Goldfields Arbitration 6 Les Verts Case: see Les Verts v. Parliament Les Verts v. European Parliament: see Les Verts v. Parliament Les Verts v. Parliament 821, 824-5, 830-1 Lesieur Cotelle S.A. v. Commission 845 LETCO Arbitration 628, 650, 653-4, 655-9 Leur-Bloem v. Inspecteur der Belastingdienst/Odernemingen Amsterdam 2 852, 862 Levis & Levis & Veerman Case 318-19 Levy 700 LIAMCO v. Libya: see LIAMCO v. Libyan Arab Republic LIAMCO v. Libyan Arab Republic 6, 10,297 Liberian Eastern Timber Corporation v. Liberia: see LETCO Arbitration Libya/Malta Case 74, 325, 326, 328 Libya/Malta Continental Shelf Case: see Libya/Malta Case Licata 696 Lighthouses Arbitration 406-7 Lighthouses Case 434 Lighthouses in Crete and Samoa Case 434 Lillian Byrdine Grimm Case 112, 215 Lindsey 684 Lingham 702 List 683, 686 Lockerbie Case 193, 227, 372, 373-4 Lockerbie Case (Provisional Measures): see Lockerbie Case
xli
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Table of Cases
Loizidou Case 732, 735 Loroch(No. 2) 430,715,717 Loroch (No. 5) 694 Loroch (No. 6) 719 Losinger and Cie, S.A., Case 169 Losinger Case 272, 295, 296, 576 Lotus Case 105,117 Lubelski v. Etat de Burudi 119 Liidi Case 741 Lutticke v. Commission 835 Maag 700 Mackprang v. Commission #35 Maizena v. Council 824 Malatesta and Others 688 Management of Alcan Case 284 Manouka Case 418, 420-1 Marckx Case 740, 743-4 Marenco and Others 677 Maritime Delimitation and Territorial Questions between Qatar and Bahrain Case 392 Maritime Delimitation between Guinea-Bissau and Senegal Case 572 Maritime Safety Committee Opinion: see IMCO Opinion Marrett 690 Martini Case 412 Mascetti 686 Matznetter Case 777 Maudet 679 Maugain (No. 5) 719 Maugis (No. 3) 719 Mavridis 698 Mavrommatis Case (Preliminary Objections): see Mavrommatis Palestine Concessions Case (Preliminary Objection) Mavrommatis Case: see Mavrommatis Case (Preliminary Objections) Mavrommatis Palestine Concessions Case (2) 551-2 Mavrommatis Palestine Concessions Case (Jurisdiction): see Mavrommatis Palestine Concessions Case (Preliminary Objection) Mavrommatis Palestine Concessions Case (Preliminary Objection) 63, 72, 99-100, 135-6, 143, 197, 203, 209-10, 224-5, 250, 398, 559, 560, 561, 595, 597, 598, 599, 636-7 Mavrommatis Palestine Concessions Case: see Mavrommatis Palestine Concessions Case (Preliminary Objection) McGoffCase 393
Table of Cases
xliii
Meilicke v. ADV/ORGA 860-1 Melten (No. 4) 429 Memel Territory Case 642 Mendaro 674, 681, 692 Mendez 691 Merge Case 269, 271, 274-5 Merkur Case 844 Meroni v. Higher Authority 83 7 Mertens (No. 2) 683 Meta Bengston Case 169 Methanex Corp. Case 320 Mexican Eagle Company Case 282 Michel 686 Middle East Management and Construction Corp. Case 219 Mihaly Case 636 Miles Druce and Co. Ltd. v. Commission 361 Miliani Case 419 Military and Paramilitary Activities in and against Nicaragua Case: see Nicaragua Case (Jurisdiction and Admissibility) Mine Case 493-6 Minority Schools (Upper Silesia) Case: see Minority Schools Case Minority Schools Case 56-7, 72, 84, 135, 243-4, 552-3, 554, 560, 561, 566 Minquiers and Ecrehos Case 597 Mirossevich 681, 687 Miss B 699 Miss M 686 Miss X [1960] 39, 691-2 Miss Y 691 Modinos Case 744 Mohsin Case 160-1, 165-8 Monastery of Sain Naoum Opinion 438, 452, 457, 459 Monetary Gold Case 74, 99, 137-8, 231-2, 233, 235-6, 238, 326, 528, 536-7 Monin Automobiles Case 862 Morgan 88-9 Morina 696 Morris, Henry v. The Government of the Islamic Republic of Iran 476 Mortished 468 Mortished 690 Moser 684 Moustaquim Case 750 Moverie Case 722 Mox Plant Case 355-6, 357 Mr. and Mrs. D 676
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Table of Cases
Mr. X 40, 690, 692 Mr. Y 694, 695 Mrs. O. v. Commission 343 Muller 683 Miiller (CJEC Case 28/64 Rev.) 725 Muller (CJEC Case 4/67) 689, 691 Miiller-Collignon v. Commission 844 Miillers 689 Musema Case 447
Namibia Case 171, 313, 507, 526-7 Namibia Opinion: see Namibia Case National Carbonising Co. Ltd. v. Commission 361 Nationality Decrees in Tunis and Morocco Opinion 261 Nederlandse Spoorwegen v. Minister Verkeer en Waterstaat 855 Nesic (No. 4) 719 Neumeister Case 394 Neumeister v. Austria 803 Neuville 677 Ngoma 672, 683 Nicaragua Case: see Border and Transborder Armed Actions Case Nicaragua Case (Jurisdiction and Admissibility) 30, 59, 140, 207, 227, 233-4, 239, 242, 251-5, 571, 572, 583-4, 585, 588-9, 593 Nicaragua Case (Merits) 60, 212, 388, 402, 422 Nicaragua Case (Order) 323, 337-8 Nicaragua Case (Provisional Measures) 62, 350, 369, 372, 373 Nicaragua v. Honduras: see Border and Transborder Armed Actions Case Nielsen 688, 689 Nielsen Case (ECHR) 739 Nielsen v. Denmark: see Appl. 343/57, Schour Nielsen v. Denmark Nomination of the Netherlands Workers' Delegate Opinion 27 Noor 696 Norberto Paquet Case 415 Norris Case 744, 754-5 North American Dredging Co. of Texas Case 260 North Sea Continental Shelf Cases 18, 234, 313 North Transylvania Nationality Case 648 Northern Cameroons Case 100, 197, 203, 211, 228-9, 242, 250-1, 348, 554 Northern Cameroons Case (Preliminary Objection): see Northern Cameroons Case Norwegian Loans Case 104, 138-9, 141, 143, 146, 152, 283, 290, 291, 571, 576, 579, 581-2, 586, 592, 593-4, 603, 604-5, 607, 611 Nottebohm Case 59, 60, 67-8, 136-7, 140, 141, 143, 144, 211-12, 555, 571, 592, 646, 647-8
Table of Cases Nottebohm Case (Preliminary Objection): see Nottebohm Case Nottebohm Case (Second Phase) 62-3, 192-3, 203, 263, 264, 268-9, 271, 276, 277-81, 563-4 Nour v. Burgenlandische Gebietskrankenkasse 862 Novak 674, 688 Nuclear Tests Case (Australia, Interim Measures) 29, 380 Nuclear Tests Case (New Zealand) 67 Nuclear Tests Case (New Zealand, Interim Protection) 380 Nuclear Tests Cases 100, 197, 203, 212, 224, 228-9, 342, 349, 350, 369, 403, 571, 584 Nuclear Tests Cases (Interim Protection): see Nuclear Tests Cases, Orders Nuclear Tests Cases, Orders 370, 374 Nuremberg Judgment 91 Obes Polled 692 Odvidian 691 Office francais v. Office allemand 335 Ogley 40 Oil Platforms Case (Preliminary Objection) 225 Olsson I 756 Olsson II 756 Ooms and Others 683 Opal H. Sether Case 216 Open Door and Dublin Well Women Case 746-7 Orinoco Steamship Company Case 436, 437-8, 459, 496-7 Osman 723, 725 OZDEP Case 740, 725 Ozdep v. Turkey: see OZDEP Case Ozorio (Nos. 1 & 2) 698 Pajzs, Csaky, Esterhazy Case (Preliminary Objection) 277 Pakistani Prisoners of War Case 3 70 Panavezys-Saldutiskis Railway Case 260, 281, 291 Panis 725 Papamichalopoulos Case 733 Parfumerie-Fabrik 4711 v. Provide 860 Parker Case 283 Parliament v. Council, Case 377/87 816 Parliament v. Council, Case C-295/90 823, 825, 826 Parviz Karim-Panaki Case 249 Passage through the Great Belt Case 350, 572 Patrimoine Clement Raoul Boccara (No. 245) Case 478 Partillo 723 Peace Treaties Case (1): see Peace Treaties Opinion
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Table of Cases
Peace Treaties Opinion 73, 138, 225, 506, 507, 508, 510, 518-19, 522, 528, 530, 531-2, 538, 539, 592, 598, 636 Peace Treaties Opinion (First Phase): see Peace Treaties Opinion Peirsack Case 394 Pellegrini v. Commission 840 Pelletier 676 Pensions of Officials of the Saar Territory Case 103, 104 Pepsico, Inc. Case 488 Pereira Roque v. Lieutenant Governor of Jersey 855 Perrasse 697 Personal Work of Employer Opinion 171, 509 Perucho 690, 691 Petel 703 Petrimoine Giuseppe Camino Case (No. 266) 348, 376 Petrolane Inc. Case 61, 271 Pfunders Case: see Appl. 788/60, Austria v. Italy Phibro Corp. Case 218 Philadelphia-Girard National Bank Case 460 Phillips Petroleum Co. Iran Case, Interlocutory Award 246 Phosphates in Morocco Case 101, 107, 212, 579, 580-1, 584, 585, 596, 598, 599, 600-1, 602, 603, 611, 612 Phosphates Lands In Nauru Case 73, 235, 566, 572, 574, 587 Piermont Case 737 Pig Producers Case 818 Pilleboue 680 Pinochet Case 162 Pious Fund Case of Californias 124, 427, 436 Piraiki-Patraiki v. Commission 827, 829-30 Plattform "Arzte fur das Leben", v. Austria 739 Plaumann v. Commission 362, 828, 843 Polish Agrarian Reform Case 3 70 Polish Agrarian Reform Case (Provisional Measures) 374 Polish Postal Service in Danzig Opinion 427, 438 Polish Upper Silesia Case 60, 637 Porrini and Others 677 Poulin 678 Powell (CJEC) 700 Powell (UNAT) 683, 714 Powell and Rayner Case 770 Prelle 430 Press 681 Pretore di Said v. Persons Unknown 855
Table of Cases
xlvii
Prince von Pless Administration Case: see Prince von Pless Case (Preliminary Objection) Prince von Pless Case (Preliminary Objection) 60, 196 Privileges and Immunities Convention Opinion 507, 511, 522, 526, 528, 529-30, 532-4 Prince von Pless Cases, Order 3 70 Producteurs de Fruits v. Council 828 Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica Opinion 261-2, 263 Pulau Ligitan and Pulau Sipadan Case 326-7, 333-4, 337 Purcell v. Ireland 740 Qatar and Bahrain Case (Jurisdiction and Admissibility) 68, 83, 85, 140-1 Qatar and Bahrain Maritime Delimitation and Territorial Questions Case (Jurisdiction and Admissibility): see Qatar and Bahrain Case (Jurisdiction and Admissibility) Quemarais 723-4, 725 Question of Jaworzina Opinion 438 Racke v. Hauptzollamt Main 852 Racz 692 Raina 688, 689 Ram International Industries, Inc. Case 463-5 Rann of Kutch Arbitration 20, 25 Rau v. De Smedt 860 Ray Go Wagner Award (Second) 218 RayGo Wagner Equipment Co. Case 277 Reinarz 696 Reparation for Injuries Opinion: see Reparation Opinion Reparation Opinion 73, 171, 172, 268, 270 Republic of Somalia v. Woodhouse 282 Request for Examination of the Situation Case: see Request for Reexamination Case Request for Interpretation of the Judgment of 11 June 1998 Case 435-6, 483-5 Request for Interpretation of the Judgment on the Asylum Case of 20 November 1959 Case 28 Request for Reexamination Case 67, 241, 313, 351, 353, 354, 555 Reservations to the Genocide Convention Opinion 506, 518-20, 529, 539, 540-2, 586 Responsibility for Acts of Germany Committed Subsequent to July 31, 1914, and before Portugal Entered the War (Arbitration) 221
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Table of Cases
Responsibility of Germany Case 58 Restrictions to the Death Penalty Opinion 393 Review of Judgment No. 158 Opinion: see Judgment No. 158 Opinion Review of Judgment No. 273 Opinion: see Judgment No. 273 Opinion Rexnord, Inc. Case 277, 246 Reynier and Erba 431, 716 Rheinmuhlen v. Einfuhr-und Vorratsstelle Getreide 860 Rheinmuhlen-Diisseldorf v. Einfuhr-und Vorratsstelle Getreide 860 Rhodopie Forests Case 409, 414 Ribeiro 680 Richez-Parise 725 Right of Passage Case (Merits) 107, 224, 403, 585, 599-600 Right of Passage Case (Preliminary Objections) 30, 67, 140, 212, 571, 573, 575, 577, 579, 581, 586, 597-8, 599, 600, 607-8, 609-10 Right of Passage Case: see Right of Passage Case (Merits) Right of Passage Case: see Right of Passage Case (Preliminary Objections) Right of Passage over Indian Territory Case (Preliminary Objections): see Right of Passage Case (Preliminary Objections) Right of Passage over Indian Territory Case: see Right of Passage Case (Preliminary Objections) Ringeisen Case 394, 400, 790, 792, 801, 809 Ringeisen v. Austria: see Ringeisen Case Rio Grande Irrigation and Land Company Case: see Rio Grande Irrigation and Co. Case Rio Grande Irrigation and Land Co. Case 124, 141, 142, 195-6 Rio Grande Irrigation and Land Company, Ltd. v. USA 59 Robert 681 Robinson 772 Roquette Freres v. Council 340 Roquette Freres v. Council 824 Roumanian Minister of War Case: see Roumanian Minister of War v. Turkish Government Roumanian Minister of War v. Turkish Government 629, 630 Roy 40 Russian Indemnity Case 124 S.S. Wimbledon: see The Wimbledon Case SA du charbonnage Frederic-Henri Case 318 Sabbatini v. European Parliament 837 Sabotage Cases 457-8 Sacchi, Case 155/73 764 Saidi 774 Saiga Case 75, 113, 120, 134,193, 222
Table of Cases Saini 38 Salem Case 110, 119, 143, 265, 275 Salmouni Zarhouni 676 Salonia v. Poidomam 860 Sanchez Case 420, 421 Sapphire International Petroleum Ltd. Arbitration 6 Saravia 698 Saudi Arabia v. Aramco 6, 10, 20 Savarkar Case 414 Schloh 680 Schots-Kortner and Others v. Council, Commission and Parliament Schuerer 725 Schulz 699 Schumann 772, 714 Scuppa 677, 679 Second Admissions Opinion 506, 509, 522, 523, 640, 641 Sedco, Inc. Case 441, 488-9 Sehgal 702 Sehgal (No. 2) 440, 719 Selmouni Case 785, 795 Selmouni v. France: see Selmouni Case Sergy 697 Serio 724 Serushago Case 447 Sforza-Chrzanowski (1981) 724 Sforza-Chrzanowski (1985) 725 Shannon and Wilson, Inc. Case 219 Sharif 671 Silenzi di Stagni 678 Silow 676 Simmenthal v. Commission 836-7 Sinochem Heilongjiang v. Council 827 Skandera 676, 720, 724 Slethholt 676 Smith 718 Smith Scott 193-4 Snell 682 SNUPAT v. Higher Authority 835 SOABI Arbitration 628, 650, 652-3, 655-9 Societe anonyme "Chemins de fer Zeltweg-Wolfsberg et Unterdranburg-Woellan" Case 329 Societe anonyme generate sucriere v. The Commission 341 Societe Commerciale de Belgique Case 28, 250, 438, 566
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1
Table of Cases
Societe des Grands Moulins des Antilles v. Commission 845 Societe Quest Africaine des Betons Industriels v. Senegal: see SOABI Arbitration Societe "Radio-Orient" Arbitration 59, 142 Societe "Radio-Orient" Case: see Societe "Radio-Orient" Arbitration South West Africa Cases 30, 224-5, 405, 544-5, 598, 636, 637, 638, 640 South West Africa Cases (1961) 313 South West Africa Cases (1965) 313 South West Africa Cases (Second Phase) 797, 203, 226, 228,405, 638 South West Africa Committee Opinion 542, 543 South West Africa Voting Opinion 509, 510, 524, 542-3 South-Eastern Greenland Case (Provisional Measures) 374 Southern Bluefin Tuna Arbitration: see Bluefin Tuna Case Southern Bluefin Tuna Cases 357, 359 South-West Africa Cases (Preliminary Objections): see South West Africa Cases SPP (Middle East) Ltd. and Southern Pacific Properties Ltd. v. Arab Republic of Egypt and Egyptian General Company for Tourism and Hotels 732-3 SPP(ME) Ltd. and SPP Ltd. v. Egypt (Jurisdiction) 732 Springer Case 274 Stamoulakatos Case 733 Stanovic Case 275 Star Fruit v. Commission 813 Status of South West Africa Opinion 542, 544 Steiner and Gross v. Polish State 292 Steinke 194 Stevenson Case 419 Stogmiiller v. Austria 802-3 Sully Case 722 Syndicat general du personnel v. The Commission 341 Swiss Confederation v. FRG (No. 1) 63, 241 Taba Arbitration 26 Tadic 52-4, 59, 60, 112-13, 120, 133-4, 135, 141, 144, 145, 163, 169, 178-87, 220-1, 237-8, 448 Tadic (sentencing-1999) 447 Tadic (sentencing-2000) 447, 448 Tadic Case (re Counsel, Milan Vujin) 396 Tadic Case: see Tadic Tarrab (No. 5) 684 Tarrab (No. 6) 430 Tarrab (No. 9) 698 Tarrab (No. 10) 430, 440, 716, 717 T.C.S.B. Case 274
Table of Cases Teixeira 678, 724 Telemarsicabruzzo v. Circostel 861-3 Temple of Preah Vihear Case 30, 107, 140, 207, 405, 571, 584 Temple of Preah Vihear Case (Preliminary Objections): see Temple of Preah Vihear Case Testa and Modesti Cases 862 Terrain 692 Tevoedjre 679, 682 Texaco v. Libya 20 The Government of the Islamic Republic of Iran v. The Government of the US A 772 The Macedonian 413 The Wimbledon Case 27, 106, 117-18, 324, 390, 397 The World Bank Staff Association: see World Bank Staff Association Thevenet 429, 430, 717 Thomasdiinger v. Oberfinanzdirektion Frankfurt am Main 851 Thorn (No. 2) et al. 681 Thornton 722 Thresher 700 Time, Inc. Case 216, 246 Times Newspapers Ltd., Giles, Knightly and Potter v. the United Kingdom 739, 742 TME International Inc. Case 249 Toepfer v. Commission 828 Tordeur and Others 682 Toth Case 807 Touhami 725 Trail Smelter Arbitration (1938) 27, 58, 214, 408, 410 Trail Smelter Arbitration (1941) 42 7, 436-8, 439-40, 456-60 Trail Smelter Arbitration (Final Award): see Trail Smelter Arbitration (1941) Trail Smelter Case: see Trail Smelter Arbitration (1938) Tranter 426, 430, 715, 717 Tre Traktover AB Case 739 Treatment of U.S. Aircraft and Crews in Hungary Cases 567 Treaty of Lausanne Opinion 530-7 Treaty of Neuilly Case (Interpretation) 480, 482 Tunis and Morocco Nationality Decrees Opinion 590, 591 Tunisia/Libya Continental Shelf Case 324-5, 331, 333 Tunisia/Libya Continental Shelf Case (Intervention) 375, 318 Tunisia/Libya Continental Shelf Case (Revision) 226 TWD Textilwerke Deggendorf Case 854-5 Tyrer Case 737
li
Hi U.S. Nationals in Morocco Case 313, 571, 593 U.S.A. v. The Islamic Republic of Iran 112 Uiterwyk Case: see Uiterwyk Corp., et al. Case Uiterwyk Corp., et al. Case 218, 219, 478, 488 Uiterwyk Corporation Case: see Uiterwyk Case Uiterwyk Inc. Case: see Uiterwyk Case Ultrasystems Inc. Case 216 UN Expenses Opinion 140, 172, 173, 506, 507, 508, 510, 521-2, 523, 524, 526, 532, 539, 640, 641 UN Headquarters Agreement Opinion 225, 522, 526 Ungarische Landes-Central Sprakassa Case 317-8 Ungarishe Erdges A.G. v. Etat remain 348 Unidyne Corp. Case 249 United Fruit Company Case 412 United Nations Expenses Case: see UN Expenses Opinion United Nations Expenses Opinion: see UN Expenses Opinion United Parcel Service Case 320 United Technologies International Inc. Case 359, 375-6 URBSFA and Others v. Bosnian and Others 863 V and P Case 745 Vacuum Salt Products Ltd. Arbitration 664-7 Vagrancy Cases 809 Van den Brink 749 Van der Leer Case 739 Van der Mussele 752 van der Peet (No. 9) 429 van der Peet (No. 12) 671 van der Peet (No. 13) 671 Vandervyvere 676 van Eick, CJEC Case 13/69 430 van Eick, CJEC Case 57/70 430, 715 Van Gend en Loos v. Nederlandse Administratie der Belastingen 850, 856 van Gent 430, 715, 720, 721, 724 van Gent (No. 4) 430, 714, 715 van Gent (No. 5) 430, 714 van Gent (No. 6) 714 van Gent (No. 7) 714 van Gent (No. 8) 727, 725 Van Oosterwijck Case 810 Vandenheede 700 Vaneetoveld 863
Table of Cases
Table of Cases Vanhove 39 Vassilou 698 Velasquez Rodriguez (Preliminary Objections) Case 111, 195, 290 Velasquez Rodriguez Case: see Velasquez Rodriguez (Preliminary Objection) Case Verdrager (No. 3) 718 Verdrager (No. 5) 718 Verdrager (No. 6) 718 Verein Kontakt Information Therapie and Hagen v. Austria 739 Vermaat 39, 685 Verron (No. 3) 718 Vervos 696 Viviano Gallardo Case 290 Volz 675 von Wiillerstorf und Urbair 698 Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa Opinion 29 Walfish Bay Boundary Case 20, 59, 124, 143 Wallfish Bay Boundary Arbitration: see Walfish Bay Boundary Case Walter Fletcher Smith Case 414 Wasa and Others v. Sweden 748 Weil, Benjamin, Case 457, 475 Wemhoffv. FRG 777 Western Sahara Opinion 29, 32, 227, 522, 525, 527, 529-30, 535-6 Whittaker Case: see Whittaker Corp. Case Whittaker Corp. Case 218, 219 WHO Nuclear Weapons Opinion 141, 227, 511-18, 520, 522 Wiggins Case 731 Wilfo v. Belgian State 854 William Ray Hollyfield Case 219-20 Williams 671 Wilson 429 Wimbledon: see The Wimbledon Case Wintershell A.G. et al. v. The Government of Qatar 189 Winterwerp Case 393, 739, 757 Wohrmann Case 837 Wolfson 703, 707 World Bank Staff Association 677, 672, 677 Worrigham and Humphreys v. Lloyds Bank 863 Worsdale 38 Wright 676 Wiinsche v. Germany 849
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liv X v.Austria (1972) 759 X v. Czechoslovakia 195 X v. FRG (1973) 759 Yacgi and Sargin Cases 733 Yakimetz 469 Yarrow Case 748 Yeager Case 275 Young Case: see Young Plan Case Young Plan Case 70-1, 86, 143, 196, 199-200 Zabala Erasun and Others 862 Zayed 677 Ziante (No. 2) 718 Zihler 699 Zuckerfabrik Schoppenstedt v. Council 842, 844 Zuiderveld and Klappe 749
Table of Cases
ABBREVIATIONS American Bar Association Journal African, Caribbean and Pacific Annual Digest Asian Development Bank ADB Administrative Tribunal African Development Bank AfDB Administrative Tribunal Annuaire francais de droit international Annuaire de 1'Institut de droit international American Journal of International Law American University Journal of International Law and Policy Arb. International Arbitration International Aust. LJ Australian Law Journal British JPol.Sc. British Journal of Political Science Brooklyn JIL Brooklyn Journal of International Law BYIL British Yearbook of International Law C.IJ. See CIJ Calif. WILJ California Western International Law Journal Canadian YBIL Canadian Yearbook of International Law CDE Cahiers de Droit Europeen CE Doc. Council of Europe Document CEDH Cour europeen des droits de rhomme CIJ Cour International de Justice CJEC Court of Justice of the European Communities CLJ Cambridge Law Journal CML Rev. Common Market Law Review CMLR Common Market Law Reports COE Council of Europe COE Doc. COE Document COEAB COE Appeals Board COEAT COE Administrative Tribunal Coll. Collection of Decisions of the EComHR CSAT Commonwealth Secretariat Administrative Tribunal ABA Journal ACP AD ADB ADBAT AfDB AfDBAT AFDI AIDI AJIL Am. UJILP
Ivi CSD D&R DH Dickinson JIL Duke LJ EC ECB ECHR ECLR EComHR ECOSOC ECR ECSC EEC ELDO ELDOAB ELR ELRev EPIL EPO ESA ESAAB ESRO ETS EU EURATOM Euratom European JIL FILJ FYBIL G.A. GA GATT German YBIL Hague Recueil
Harv. ILJ
Abbreviations Claims Settlement Declaration (Iran-US) Decisions and Reports of the EComHR Droit de 1'homme Dickinson Journal of International Law Duke Law Journal European Communities European Central Bank European Court of Human Rights European Competition Law Review European Commission on Human Rights Economic and Social Council European Court Reports European Coal and Steel Community European Economic Community European Launcher Development Organization ELDO Appeals Board European Law Review See ELR Encyclopedia of Public International Law European Patent Organization European Space Agency ESA Appeals Board European Space Research Organization European Treaty Series European Union European Atomic Energy Agency See EURATOM European Journal of International Law Foreign Investment Law Journal Finnish Yearbook of International Law See UNGA See UNGA General Agreement on Trade and Tariffs German Yearbook of International Law Recueil des Cours de 1'Academic de Droit International de la Hague Harvard International Law Journal
Abbreviations HRC HRJ HRLJ I.C.J. I.L.O. I/A Court H.R. IACHR lAComHR IAT IBRD ICC ICCPR ICJ ICLQ ICM ICMAT ICSID
ICTR ICTY IDB IDBAT IIA IJIL ILA ILC ILM ILO ILOAT ILQ ILR IMCO IMF IMFAT
Ivii Human Rights Committee Human Rights Journal Human Rights Law Journal See ICJ See ILO See IACHR Inter-American Court of Human Rights Inter-American Commission on Human Rights International Administrative Tribunal International Bank for Reconstruction and Development International Chamber of Commerce International Covenant on Civil and Political Rights International Court of Justice International and Comparative Law Quarterly International Committee on Migration ICM Administrative Tribunal International Centre for Settlement of Investment Disputes International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia Inter-American Development Bank IDB Administrative Tribunal International Institute of Agriculture Indian Journal of International Law International Law Association International Law Commission International Legal Materials International Labour Organization ILO Administrative Tribunal International Law Quarterly International Law Reports International Maritime Consultative Organization International Monetary Fund IMF Administrative Tribunal
Iviii IMT IPI Iran-US CTR Italian YBIL ITLOS
IYBIA J. Int'lArb. JDI JPA JUNAT LDA Leiden JIL LJIL LN LNT LNTS LQR MAT Mich. LR MIGA MNC Moore, History and Digest
NAFO NAFTA National LJ NATO NATOAB Neth. Quarterly HR NILR Nordic RDI Nuremberg Judgment
Abbreviations Institute for Management of Technology International Patent Institute Iran-US Claims Tribunal Reports Italian Yearbook of International Law International Tribunal for the Law of the Sea Indian Yearbook of International Affairs Journal of International Arbitration Journal de Droit International Jurisprudence de Port d'Anvers Judgments of the UNAT London Debt Agreement See LJIL Leiden Journal of International law League of Nations LN Tribunal LN Treaty Series Law Quarterly Review Mixed Arbitral Tribunal Michigan Law Review Multilateral Investment Guaranty Agency Multinational Corporation Moore, History and Digest of the International Arbitrations to which the United States has been a Party (1898), 6 vols. Northwest Atlantic Fisheries Organization North Atlantic Free Trade Agreement National Law Journal North Atlantic Treaty Organization NATO Appeals Board Netherlands Quarterly on Human Rights Netherlands International Law Review Nordic Journal of International Law Nazi Conspiracy and Aggression, Opinion and Judgment, Office of United States Chief of Counsel for Prosecution of Axis Criminality
Abbreviations NYBIL NYILJ NYJICL
Netherlands Yearbook of International Law New York International Law Journal New York University Journal of International and Comparative Law NYUJIL New York University Journal of International Law Organization of American States OAS OASAT OAS Administrative Tribunal Organization for European Cooperation and OECD Development OECDAT OECD Administrative Tribunal OEEC Organization for European Economic Cooperation OZOR Osterreich Zeitschrift fur Offentliches Recht See PCIJ P.C.I.J. PAHO Pan-American Health Organization PCA Permanent Court of Arbitration PCIJ Permanent Court of International Justice Polish YBIL Polish Yearbook of International Law R.A.I. Lapradelle et Politis, Recueil des arbitrages internationaux RBDI Revue Beige de Droit International RDILC Revue de droit international et de legislation comparee Rec. TAM See Recueil TAM Recueil TAM Recueil des decisions des Tribunaux Arbitraux Mixtes Reports Reports of Judgments and Decisions (Publication of the case-law of the EComHR and the ECHR) Rev. Hellen DI See RHDI RGDIP Revue general de Droit International Public RHDI Revue Hellenique de Droit International RTDE Revue trimestrielle de Droit Europeen SC See UNSC SG See UNSG
lix
Ix
Statutes and Rules
Sydney LR TEU Texas ILJ TRIPS
U. Day. LR US.C.A. UCLA Law Review UN UNAT UNCITRAL UNCLOS UNDoc. UNEF UNESCO
UNGA UNRIAA UNSC UNSG UNTS UNYB WB WHAT WEU WHO Yale LJ YBCom.Arb. YBECHR YBECHR
Abbreviations Amerasinghe (ed.), Statutes and Rules of Procedure of International Administrative Tribunals (1984), 5 vols. Sydney Law Review Treaty of European Union Texas International Law Journal Trade-Related Aspects of Intellectual Property Rights (within the GATT and subsequent negotiations) University of Daytona Law Review United States Code Annotated University of California at Los Angeles Law Review United Nations UN Administrative Tribunal UN Conference on International Trade Law UN Convention on the Law of the Sea UN Document UN Emergency Force United Nations Educational Scientific and Cultural Organization UN General Assembly UN Reports of International Arbitral Awards UN Security Council UN Secretary General UN Treaty Series UN Yearbook World Bank WB Administrative Tribunal Western European Union World Health Organization Yale Law Journal Yearbook of Commercial Arbitration Yearbook of the European Convention on Human Rights Yearbook of the ECHR
Abbreviations YBILC YEL ZAORV ZaoRV
Yearbook of the International Law Commission Yearbook of European Law Zeitschrift fur auslandisches offentliches Recht und Volkerrecht See ZAORV
Ixi
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I INTRODUCTORY
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1 INTERNATIONAL ADJUDICATORY DISPUTE SETTLEMENT—NATURE AND DEVELOPMENT
INTERNATIONAL DISPUTES Dispute settlement which is "international", strictly could be described as such only in disputes between "nations" which means that this is a post-nation-state phenomenon. However, there certainly were before the rise of the nation state identifiable groups, which had relations with each other and consequently had disputes which needed to be settled, whether the princely states on the Indian subcontinent, the city states in ancient Greece, the groupings in the era of the Roman civilization, the kingdoms of Africa or the entities in East Asia, including China, are considered. Further, in the modern world of international relations, the relationship between modern states and aliens (apart from that between states and nationals) or between internal groups which are not states and states or even between individuals of different nationalities has come to be subsumed under the caption "international". In addition disputes between states and their own nationals can now generate international disputes. Inter-governmental organizations may also be parties to international disputes.
4
Chapter 1. International adjudicatory dispute settlement
The term "international", as applied to disputes, does not seem to be a term of art! However, whether a dispute is characterized as international depends on two considerations. The first relates to the parties to the dispute, the second relates to the law alleged to have been violated. (a) In terms of parties to a dispute, generally today for a dispute to be international in public international relations there must be at least one state or inter-governmental organization involved in the dispute. However, other subjects of international law, less than states, could qualify as the other parties. One of the other parties is normally also a state or inter-governmental organization or other subject of international law less than a state but like a state. However, this may not always be the case. Certainly disputes between individuals, even nationals of different states, are not to be included in the concept of international disputes in public international relations. Although these may in a sense be considered "international" to the extent that they involve nationals of different states, they are not the subject of public international relations and are not considered as disputes which are to be resolved in the context of the public international legal system. On the other hand, disputes between states and individuals (natural or legal persons) or groups as such, including their own nationals, may certainly be characterized as "international" and in the public realm insofar as there are rights and obligations involved which flow from legal relations between states. What is being said is that, though international disputes are primarily disputes the parties to which are all states or inter-governmental organizations or certain entities less than states, other entities than states, including individuals or groups that are not even aliens, may be parties to such disputes by virtue of the operation of rules and norms which are established, in whatever manner, as between two or more states in their public international relations. Generally these norms are created by conventions (treaty) but there is nothing to prevent customary law or general principles of law from being their source. Disputes between states, on the one hand, and individuals or groups, whether foreign or national, on the other, become international disputes because, as between states members of the international
International disputes
5
community, there are rules or norms applicable which vest in such individuals or groups rights or impose on them obligations which can be characterized as being in themselves international and are viable in the public realm. It is necessary, thus, to regard a dispute concerning the violation of an alien's rights by a state, a violation of human rights by a state or a violation of humanitarian law or of the law of genocide by an individual as in the public international legal realm. Peaceful settlement of international disputes in modern public international relations, therefore, covers a wide range of disputes beyond purely "inter-state" disputes but excludes the settlement of some disputes, numerous though they may be, which also have what may be described as "international" features. There have been disputes between states (or international organizations) and individuals (whether natural or juridical persons) per se which have been settled by arbitration. These are not "international" disputes in the true sense, although attempts may have been made to place them on a par with the latter. They may be described as "transnational" disputes but not properly as "international" disputes. They can only become "international", in the true sense, for example, when two or more states (or international organizations) become involved in them (and their solution), and the dispute becomes in reality one between states (or international organizations). This can happen also when the dispute is covered structurally by an international arrangement between states such as the ICSID Convention or Chapter XI, Section B of the NAFTA. Disputes which are not "international" in the sense defined can at best be "transnational", even if they involve a state as one of the parties, while the other is not a state. The resolution of the dispute by arbitration, for example, is not within the international system but within the "transnational" system—a system which is within and at the level of national systems of law.1 This distinction between purely 1
This concept of the transnational system as a system separate from both national systems and the international system but more on the level of national systems was discussed by this author in 1967: Amerasinghe, State Responsibility for Injuries to Aliens (1967) pp. 108 ff. Other writers have adverted to it: e.g., works cited in Amerasinghe, ibid, in footnotes to pp. 109-11. It is to be noted that
6
Chapter 1. International adjudicatory dispute settlement
transnational disputes and truly international disputes is important. The fact that (public) international law is chosen as the law to govern a "transnational" contract between a state or international organization and a private party does not have significance in determining whether a dispute which arises is international. That is a choice of law and does not affect the legal system to which the contract belongs or make the dispute an international dispute. Disputes between international organizations and their staff concerning employment matters are on a special footing. Because international organizations are made up of states as members, even though they have their own separate international personalities, the internal legal regime of the organization acquires an international status and becomes a part of true international law. Thus, employment disputes between staff and their organizations are international disputes which may be settled by international tribunals, namely international administrative tribunals (lATs). In the Judgments of the I.L.O. Administrative Tribunal Opinion the ICJ categorically stated that it accepted the position that the ILOAT "is an international tribunal".2 The WBAT, following the precedent set by the ICJ, said that it "is an international tribunal" whose function was Jessup who perhaps first introduced the term "transnational": Transnational Law (1956) p. 2, used it in a different sense to cover any relationship which transcended borders. Coussirat-Coustere and Eisemann, 1 Repertory of International Arbitral Awards p. xxi, refer to "transnational arbitrations" as distinct from true international arbitrations. These are arbitrations in "disputes between a subject of international law and a private entity". The distinction is similar to the one made in the text above. The first case that could be described as arising from a transnational dispute was perhaps the Compagnie Universelle du Canal de Suez v. Egypt Case (1864), La Fontaine, Pasicrisie Internationale 1794-1900 p. 123. Other transnational arbitrations arising from disputes of a transnational and not of an international nature were all post World War I. The earliest was the Lena Goldfields Arbitration (1930), 36 Cornell Law Quarterly (1950) p. 42. Later transnational arbitrations included Saudi Arabia v. Aramco (1958), 27 ILR p. 117; the Sapphire International Petroleum Ltd. Arbitration (1963), 35 ILR p. 136; LIAMCO v. Libyan Arab Republic (1977), 62 ILR p. 141; the AMINOIL Arbitration (1982), 66 ILR p. 519. 2 1956 ICJ Reports at p. 97. See the discussion of the subject in Amerasinghe, 1 The Law of the International Civil Service (1994) pp. 22-5.
International disputes
1
"to decide internal disputes between the Bank and its staff within the organized legal system of the World Bank", while applying the internal law of the Bank.3 The explanation lies in the fact that the legal system governing these employment relations is derived from and dependent on acts emanating from the treaty-making power of states and therefore is part of the international legal system, so that disputes arising within that system are correctly characterized as international. The short point is that individuals (natural or juridical persons) or groups are normally not subjects of international law so that their being involved in disputes per se can generate an "international" dispute. There are situations, however, where such persons may become subjects of international law either directly or indirectly or be given an international status so that their being a party to a dispute could give rise to an "international" dispute. It must be noted that as a result of the rise of inter-state (international) organizations as a phenomenon of international life in the 20th century, international disputes have come to include disputes in which international organizations are involved. Such disputes may be between such organizations, between such organizations and states or even between such organizations and individuals. The fact that a dispute involving states or international organizations may be settled by national courts, for instance, does not make the dispute any less international. National courts and other national methods may well be means of settling disputes which are international in the sense referred to above. On the other hand, while international disputes may sometimes be referred to national courts, such courts, though in a sense instruments of the international legal system in the settlement of such disputes, are not international adjudicatory bodies as such. The means of settlement does not necessarily affect the character of a dispute as an international dispute. Further, the fact that a dispute remains unsettled does not make it any the less international, if it is international according to other criteria. 3
de Merode, WHAT Reports [1981], Decision No. 1 at pp. 12-13.
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Chapter 1. International adjudicatory dispute settlement
The conclusion proposed is that disputes involving a state or international organizations are generally to be characterized as international, whatever the means of settlement adopted, the other party to the dispute being a state or an organization or even, in certain circumstances, individuals or groups of individuals. As a general rule disputes not involving states or organizations are not international. Further, not all disputes in which only one party is a state or international organization, such as certain disputes arising from contracts intended purely to be within a national (or transnational) legal system, are necessarily international. (b) A second element which is relevant to the concept of "international dispute" concerns the requirement that the dispute must be about an alleged violation of public international law. The requirement of parties having been satisfied, the law allegedly violated must be public international law. Thus, if the dispute is between two private parties, whether of the same nationality or not, the dispute, not being about a violation of public international law, would not strictly qualify as an international dispute. Similarly, if one of the parties is a state or international organization but the dispute is not about a violation of public international law, but about a pure contravention of national laws, e.g., of contract, the dispute could not be characterized as international. Conceivably, a dispute between two states or between a state and an international organization or between two international organizations, if, for example, it is only about the violation of contractual rights which emanate from national law, or are at the level of national law, would not be an international dispute in the strict sense. The contrast is between disputes arising from alleged violations of public international law and those that do not, for example, because they concern violations of national laws or their equivalent only. Disputes involving only contraventions of private international law provisions, which are in fact provisions recognized by and within national legal systems, are characterized often as international disputes but for the purposes of this study and in generic terms these are different from the disputes in which the violation alleged is of public international law. They, therefore, are not
International tribunals
9
covered by the concept of international dispute. This is so, even if the governing law of contract, for example, is partially or fully public international law or general principles of law as the chosen law. In such a case the norms which govern may be derived from public international law but they are relevant as norms recognized by national legal systems in which the contract is placed. There cannot be a private or public contract which is not placed in a national legal context. The contract may be described as a "transnational" contract but alleged violations of it are not violations of public international law. (c) There are other descriptions of international disputes which are current, especially among authors who are more involved with private international legal matters4 and in the practice which is concerned with private international legal disputes. These descriptions cover a broader canvass than the concept of international disputes which has been outlined above. They include, for example, as such, disputes between persons of different nationalities and disputes between a state and a person who is a national of a different state, and do not make a distinction between disputes between, e.g., states and individuals which are international and those that are not, according to the concept described above. But, while such descriptions may be serviceable for private international law and its practice, it is a fundamental necessity that generally, and particularly, for the purposes of the present study the distinctions made herein should be recognized and acknowledged.
INTERNATIONAL TRIBUNALS The concept of international dispute described above is very relevant to the identification of international tribunals as such. There is a view that arbitral tribunals which settle disputes between parties of 4
See, e.g., Redfern and Hunter, International Commercial Arbitration (1999) pp. 14 ff.
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Chapter 1. International adjudicatory dispute settlement
different nationalities (neither of whom are states or international organizations) are international tribunals.5 Somehow, according to this view, a national court which settles the same kind of dispute is not an "international tribunal" in any sense nor does it perform a function in the international legal system, but an arbitral tribunal which does is an "international tribunal", which is a strange situation. Then again, an arbitral tribunal which settles disputes between a state (or an international organization) and an individual who is of a different nationality than that of that state, as such, is described as an "international tribunal".6 The use of the term "international tribunal" for any tribunal which settles a dispute involving the nationalities of two different states in any sense may be a matter of taste but its scientific accuracy is questionable, when there are substantive and material differences between the different kinds of tribunals which settle the variety of disputes which have connections with more than one nationality. These distinctions arise from the source from which tribunals come into existence or are created. It is clear that by reference to this quality the tribunals which deal with disputes with multinational features may be more accurately distinguished and characterized for functional and practical purposes. In order that a tribunal may be characterized as an international tribunal, it must be created by states or international organizations which, though they may have international legal personalities of their own, are, nevertheless, composed principally of states. Tribunals created by international organizations may be regarded as
5
See, e.g., the content of, and the terminology used, by writers, in such works as Redfern and Hunter, ibid., Lew (ed.), Contemporary Problems in International Arbitration (1987), Sornarajah, International Commercial Arbitration (1980), Lillich and Brower (eds.), International Arbitration in the 21st Century (1993), Carbonneau, "Darkness and Light in the Shadows of International Arbitral Adjudication", in Lillich (ed.), Fact-Finding before the International Tribunals (1991) p. 153, and in French, Fouchard, L'Arbitrage Commercial International (1965), David, L'Arbitrage dans le commerce Internationale (1982). 6 See such tribunals as that in Saudi Arabia v. Aramco (1958), 27 ILR p. 117, and in LIAMCO v. Libyan Arab Republic (1977), 62 ILR p. 141.
International tribunals
11
derivatively created by states. The creators must be entirely states or international organizations or both, as parties to the act of creation. As a consequence, arbitral tribunals created by the consensual acts of a state, on the one hand, and a foreign private individual (or even a national of the state), on the other, are not international tribunals, though they may conveniently be described as "transnational" tribunals. On the other hand, that private individuals, whether national or legal persons, may appear, because of the agreement of the creators, before what are international tribunals, does not make them any the less international tribunals. Such persons may be claimants (as before the human rights courts or claims tribunals) or defendants (as in war crimes or humanitarian crimes tribunals). That certain arbitrations are described as "mixed international arbitrations", because private individuals are involved in them in some way, as creators of tribunals or otherwise, is not of consequence. The term is often used to cover both tribunals which are genuinely international and those that are not. The important factor for the characterization of an international tribunal is the source of the creation of the tribunal which must be as described above. There are, and have been, standing courts which, by virtue of the source of their creation, are or have been genuine international tribunals, such as the PCIJ, the ICJ, the lATs, the ITLOS, the CJEC, the ECHR, and the IACHR. Ad hoc tribunals such as the ICTY, the ICTR and the Iran-US Claims Tribunal would also qualify as international tribunals. International arbitration tribunals are those created by states or international organizations or both or emanate from the latter derivatively as those responsible for the creation of the tribunals. Thus, the 1C SID tribunals or those created under the NAFTA would qualify as international tribunals. Needless to say ad hoc arbitral tribunals created by two or more states would fall into the same category, whether they are long-standing or not. In principle that a tribunal adjudicates on disputes which are based on violations of national laws as contrasted with public international law does not make it any less an international tribunal, if it falls into that category, because it satisfies the requirements. Thus, ICSID or NAFTA tribunals and the Iran-US Claims Tribunal are international, although in a given case they may deal with what are
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Chapter 1. International adjudicatory dispute settlement
purely alleged violations of national laws. In this respect international tribunals may sometimes deal with disputes that are not "international" in the true sense. To the extent that an international dispute as described in the previous section is presented for settlement to a national court, the national court becomes an instrument of the international legal system. However, this does not mean that it is an international tribunal, because it does not satisfy the definition which requires a particular mode of creation.
THIRD PARTY JUDICIAL SETTLEMENT— DEVELOPMENT OF ARBITRATION As long as there have been identifiable separate groups in the world, there have been methods of peacefully settling disputes between them. Clearly some form of negotiation or consultation between the parties to the dispute was the most elementary form of dispute settlement. The use of these methods can be found in the pre-Christian era, whether in the west or the east. There is also evidence that settlement of disputes akin to the modern international dispute with the intervention of a third party, whether by mediation, conciliation or arbitration, was also known in early times. More particularly there were systems of arbitration which have been documented going back to the Greek city states and even early civilizations in other parts of the world. The history of the development of arbitration as a method of peaceful settlement of disputes between groups and later between nation-states demonstrates how third party intervention became accepted as a legitimate means of settling disputes. However, arbitration in its modern form does not bear a resemblance to these early forms of arbitration. Judicial settlement in its institutionalized form in international relations is, on the other hand, a comparatively modern phenomenon. Though it may have been inspired by the experience and development of arbitration as a form of third party settlement, it traces its origin in international relations to the establishment by the society of nations in the early 20th century of the Permanent Court of
Third party judicial settlement
13
International Justice which was succeeded after the 2nd World War by the International Court of Justice. Now there are several institutionalized international courts or tribunals that dispense adjudicatory justice. History shows that third party settlement is not a modern phenomenon, although it never existed in its modern forms until recently, and its development into the current systems of arbitration and adjudication took a long time.7 Much of the evidence available concerns dispute settlement in the western world. Whatever may have been the position in other parts of the world, that did not influence modern developments. The settlement of disputes by arbitrators in its pre-modern form between groups such as city-states and later other polities occurred from pre-classical antiquity in the west down to the late Middle Ages. The importance of this kind of arbitration varied at different times. It was very different from modern international arbitration, and did not influence significantly the structure of international arbitration as prevails today. The Hellenic system of arbitration is known from inscriptions, from a number of actual decisions, e.g., the arbitration between Athens and Mytilene by Periander of Corinth concerning the possession of the strategically important fortress of Sigeion on the Hellespont and that between Athens and Megara by a tribunal of Salamis (both around 600 B.C.) and from events within the Hellenic Amphiktyony. The mechanism was through regional religious organizations exercising a limited jurisdiction under sacral law.8 The arbitrations among the non-hegemonial confederacies, however, were closer to arbitration in the modern sense. In the second half of the fifth century B.C. Athens and Sparta concluded treaties with some provision for the settlement of disputes by arbitration but they were never applied, since no arbitrator was prepared to make a decision between the two powers, and the hegemony of one subsequently prevented the use of these provisions. Arbitrations are also to be found in the period from 7
See on the development of arbitration Schlochauer, "Arbitration" in Bernhardt (ed.), 1 Encyclopedia of Public International Law (1981) at pp. 15 ff. 8 Lammasch, Die Lehre von der Schiedsgerichtsbarkeit in ihrem ganzen Umfange (1914) p. 24.
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Chapter 1. International adjudicatory dispute settlement
the battle of Chaironeia (338 B.C.), which put an end to the independence of the Greek communities in foreign relations, to the beginning of Roman rule (168 B.C.).9 These arbitrations were, however, clearly based on the dominance of Macedonian and, later, Roman tribunals. Similarly, in Roman times arbitral awards were, as a general rule, made either in the exercise of the sovereignty of Rome over other political bodies or as imperial measures to maintain the Pax Romana; Rome itself was never party to arbitration. A thousand years later in the Middle Ages there arose a form of arbitration which became widespread in the later Middle Ages. Again this was nothing like modern international arbitration. It occurred first between the city-states of Italy, between Italian princes and communities and between Swiss cantons, and was later used between smaller political communities. On rare occasions it was to be found between other states. Medieval arbitration was generally characterized by the fact that it was either a substitute for decision by the courts, similar to trial by ordeal, or in the nature of a feudal court to decide between parties of equal status, or jurisdiction claimed by the Emperor or by the Pope in virtue of his spiritual authority for himself or for his representative which can be traced to the idea of a Respublica Christiana. It was only in a formal sense an arbitration. Popes Innocent III and Boniface VII sought unsuccessfully to introduce a system of compulsory arbitration with the Pope as an independent arbitrator. In the kind of disputes which are typical of modern arbitration, such as frontier disputes, the exchange of prisoners of war and compensation for breaches of the peace by illegal acts of war, there was no clear dividing line between arbitration and diplomatic methods of settling the disputes. The position of the arbitrator was frequently that of a conciliator or amiable compositeur. Awards were generally based on rules borrowed from canon law, modified in part by legal scholars, or on principles taken from Roman private law and applied to questions of public and international law. In the course of the 15th century, as a result of 9
Some of these concerned territorial disputes on the borders of the Hellenic empire, e.g., the disputes between Crete and the Aegean island states: see Lammasch, ibid.
Third party judicial settlement
15
the political changes principally, there was an increase in the nonobservance of arbitral awards and this led to the decline of the medieval system of arbitration and its ultimate demise in the 16th century. As early as 130610 scholars and statesmen began to consider plans for an international peace organization, in which the establishment of arbitral tribunals would play a decisive part. Later Georg von Podebrad, for example, in his plan for a perpetual peace alliance (1462) recommended the creation of a Court for the Maintenance of Peace and the Duke of Sully suggested the settlement of disputes by arbitration within the framework of a world organization.11 There were also similar suggestions by Emeric Cruce12 and, at the time of the Peace of Utrecht by Abbe Saint Pierre.13 Hugo Grotius and later Jeremy Bentham considered arbitration and judicial settlement to be the most effective means for maintaining the peace.14 The same idea inspired the Quakers15 in the New World. The conditions for the use of international arbitration in its modern form were only created with the gradual breaking up of the medieval world from the 17th century onwards and the rise of nation-states in a society of independent, sovereign states. The idea of arbitration was promoted by the existence side by side of equal powers maintaining legal relations with one another, and also by the gradual recognition of their interdependence. It was not till the 18th century that disputes between states were submitted to impartial bodies deciding according to objective rules. The development of modern international arbitration began in Anglo-American international legal relations and on the American continent. Its origin can be traced to the conclusion of the Jay Treaty of 1794 between 10
See, e.g., Pierre Dubois, De recuperatione terrae sanctae (1306). See de Bethune, Memoires (between 1617 and 1635). 12 Le nouveau Cynee (1623). 13 Projet pour rendre la paix perpetuelle en Europe (1713). 14 "Plan for an Universal and Perpetual Peace" in Principles of International Law (1787). 15 See Penn, Essay towards the Present and Future Peace of Europe (1693). 11
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Chapter 1. International adjudicatory dispute settlement
Great Britain and the U.S.A. Numerous other similar treaties followed.16 After that arbitration was referred to in numerous treaties and it became a common feature of international relations in the west, principally. In 1899 and 1907 the Hague Peace Conference produced a codification of the existing international law on arbitration and attempted to develop them further. These conferences produced the Conventions for the Pacific Settlement of International Disputes of 1899 and 1907. In the 20th century international arbi tration developed further and has been frequently used.
STRUCTURE or PEACEFUL DISPUTE SETTLEMENT IN MODERN INTERNATIONAL RELATIONS The starting point for a consideration of the modern structure of peaceful settlement for international disputes is the Charter of the UN and the declarations and resolutions of the General Assembly implementing and applying the Charter. Article 1(1) of the Charter states that it is a purpose of the UN to maintain international peace and security and to that end, among other things, "to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace." Article 2(3) provides that all member states "shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered." Article 33(1) requires parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, to seek a solution, first of all, "by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies and
16
See La Fontaine, "Histoire sommaire et chronologiques des arbitrages internationaux (1794-1900)", 34 RDILC (1902) pp. 349-80, 558-82, 623-48. For a short but very perceptive description of the evolution of international tribunals, including permanent courts, from 1794 to 1944 see Hudson, International Tribunals (1944) pp. 3-14.
Structure of Peaceful Dispute Settlement
17
arrangements, or other peaceful means of their own choice.17 The principal GA resolutions dealing with the matter had annexed to them the Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations18 and the Manila Declaration on the Peaceful Settlement of International Disputes19 both of which elaborated on and reaffirmed the principles contained in the Charter. These two declarations referred to various other principles of international law, such as the principle that states shall in their international relations refrain from the threat or use of force against the territorial integrity or political independence of any state and the principle that states have a duty to cooperate with one another in accordance with the Charter, to which the principle of the peaceful settlement of international disputes is linked.20 Modern international relations contemplate, as indicated in Article 33(1) of the Charter, a variety of methods of peaceful dispute settlement. The first one listed, negotiation, involves only the parties to the dispute.21 As stated by the International Court of 17
For some reflections on the methods of settling international disputes peacefully, particularly in the context of the judicial settlement of disputes which has become somewhat more prominent in recent times, see Guillaume, "The Future of International Judicial Institutions", 44 ICLQ (1995) p. 848. See also on these methods Merrills, International Dispute Settlement (1998) and Collier and Lowe, The Settlement of Disputes in International Law (1999) pp. 19^44. 18 Annex to GA Rs 2625(XXV) of October 24, 1970: see 9 ILM (1970) p. 1292. 19 Annex to GA Rs 37/10 of 1982: see 21 ILM (1982) p. 449. 20 For a listing of these principles see United Nations, Handbook on the Peaceful Settlement of Disputes between States (1992) pp. 4 ff. (hereinafter referred to as UN Handbook). 21 Recently negotiation has, unnecessarily perhaps, been enshrouded in the rubric "alternative dispute resolution (ADR)" mechanism: See Orrego Vicuna and Pinto, "The Peaceful Settlement of Disputes: Prospects for the Twenty-First Century" (1999)—Report prepared for the 1999 Centennial Commemoration of the First Peace Conference, paras. 96 ff. On negotiation see particularly Raiffa, The Art and Science of Negotiation (1982) and Plantey, La negociation Internationale, principes et methodes (1994). Negotiation is closely associated with consultation and exchange of views.
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Chapter 1. International adjudicatory dispute settlement
Justice, "there is no need to insist upon the fundamental character of this method of settlement",22 and negotiation which leads to "the direct and friendly settlement of... disputes between parties" is universally accepted.23 All other methods of peaceful settlement involve a third party. However, only arbitration and judicial settlement are adjudicatory methods. Arbitration preceded judicial settlement proper, and is still a popular and accepted method of dispute settlement. Judicial settlement, however, is now resorted to more often than before.
ADJUDICATORY METHODS There are two kinds of settlement methods consisting of adjudication. The first and earlier of the two is arbitration, characterized by choice of adjudicators (arbitrators) by the parties and the absence of a permanent bench of arbitrators. The second is judicial settlement by an international court which enjoys a permanent status, or may even be ad hoc, the judges not being chosen by the parties. In both cases now the common characteristic is that settlement is according to law, i.e., by the application of legal rules, although in both it is possible that settlement may occur on the basis of extra-legal considerations, as where settlement is ex aequo et bono. But the latter happens only by specific agreement between parties, the basic principle being that settlement is, unless otherwise agreed, according to law. In both cases also, unlike the other methods of settlement referred to above, decisions given by the judicial or arbitral bodies are binding as such on the parties. Settlement is by a third party and is dispositive, in that sense. As a prelude to the discussion of jurisdiction in regard to these adjudicatory methods a short description of the principal features of the two methods is given here.
22
North Sea Continental Shelf Cases, 1969 ICJ Reports at p. 48. Ibid. The same view was taken by the PCIJ in the Order of 19 April 1929 in the Free Zones of Upper Savoy and the District ofGex Case: PCIJ Series A, No. 22 at p. 13. 23
Adjudicatory methods
19
(i) Arbitration As was seen earlier in this chapter, "arbitration" has a long history. However, in its modern form it dates back to the late 18th century— to the Jay Treaty, between the UK and the USA. Further, the commissions set up under the Jay Treaty, as also some other commissions established subsequently,24 were supposed to blend juridical with diplomatic considerations to produce what was in effect a negotiated settlement. Also the earlier practice of having a dispute arbitrated by one sovereign head of state or government led to the practice of answers being given to questions without reasons being given, so that it was impossible to identify the legal considerations underlying the decisions. It is only from the beginning of the twentieth century that the juridical element not only predominated but became potent. The 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes described the object of international arbitration as the settlement of disputes between states by judges chosen by the parties themselves and on the basis of respect for law.25 They further provided that recourse to the procedure implied submission in good faith to the award of the tribunal. These treaties established two basic characteristics of arbitration— decisions binding upon the parties and on the basis of law. That the organs of decision are referred to as "tribunals" does not as such differentiate them from the permanent courts of the international system in regard to these two aspects. However, while both arbitration and judicial settlement are similar in these respects, they are structurally different from each other. Arbitration is resorted to by mutual consent of the states parties to a specific dispute where such parties retain considerable control over the process, particularly through the power of appointing arbitrators of their own choice.26 By contrast, judicial settlement relies 24
See, e.g., the commissions established under the Treaty of Ghent (USA and UK) of 1814. 25 See Article 15 of the 1899 Hague Convention and Article 37 of the 1907 Hague Convention. 26 Sometimes the parties may be bound by advance agreement to appoint arbitrators from a pre-existing list: see the 1907 Hague Convention and the 1982
20
Chapter 1. International adjudicatory dispute settlement
upon pre-constituted international courts or tribunals, the composition of which is not in principle subject to control by the parties to the dispute. Arbitration generally or basically has as parties states or international organizations or such international entities. But sometimes arbitration in the international sphere pertaining to international disputes may be between states, international organizations or such entities, and individuals or juridical persons, provided these arbitrations are constituted under international treaties or agreements to which the above entities are parties. Strictly arbitrations between states, international organizations or such entities and individuals as are not under the aegis of an international treaty or agreement as far as their sponsorship goes are not international arbitrations but are in the realm of national legal systems. While these27 are important in across-the-border relations they are not international arbitrations of the international legal system as such. Apart from the 1899 and 1907 Hague Conventions, arbitration, as a means of peaceful settlement of disputes between states, is provided for in a number of multilateral treaties of global or regional character and also in several bilateral treaties.28 Arbitration, thus, emerged as one of the third-party procedures most frequently chosen for settling, for example, territorial and boundary disputes,29 disputes concerning interpretation of conventions or treaties,30 and UN Convention on the Law of the Sea (UNCLOS) in Article 2 of Annex VII and Article 2 of Annex VIII. 27 See, e.g., the Texaco v. Libya arbitration (1977), 53 ILR p. 389; the Saudi Arabia v. Aramco arbitration (1958), 27 ILR p. 117. 28 See, e.g., arbitration under the auspices of the ICSID established under the Convention for the Settlement of Investment Disputes between States and Nationals of Other States (1965): 4 ILM (1965) p. 532, and the Iran-US Claims Tribunal established under the Algiers Accords: 20 ILM (1981) p. 224. 29 See, e.g., the Rann ofKutch arbitration (India v. Pakistan) (1968), 7 ILM p. 633, Argentina—Chile Frontier Case (1966), 16 UNRIAA, pp. 109-81; the Beagle Channel arbitration (Chile v. Argentina) (1978), 52 ILR, p. 93; the Walfish Bay Boundary Case (Germany v. GB) (1911), 11 UNRIAA, pp. 263-308. 30 See, e.g., the Air Transport Agreement Case (USA v. France) (1963), 16 UNRIAA, pp. 5-71; Air Service Agreement Case (USA v. France) (1978), 18 UNRIAA, pp. 417-53.
Adjudicatory methods
21
those relating to any violation of international law.31 The 1899 and 1907 Hague Conventions established the PC A to facilitate the settlement of disputes which diplomacy had failed to settle. In practice there are types of disputes which states have excluded from arbitration made available under a particular treaty, such as disputes arising from facts or events which occurred prior to the treaty establishing the arbitral procedure in question, disputes relating to questions which are within the exclusive jurisdiction of a state, disputes which concern the territorial integrity of a state, disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes in respect of which the Security Council of the United Nations is exercising the functions assigned to it in the Charter of the United Nations, unless the Security Council decides to remove the matter from its agenda or calls upon the parties to settle it by another peaceful procedure. Consent of the parties to arbitration may be expressed prior to or after the occurrence of a dispute. Parties may agree to submit all or special categories of future disputes to arbitration. This may be done through multilateral or bilateral treaties of a general nature or by the inclusion of a compromissory clause in a treaty which covers disputes in general arising from the treaty or by special agreement or a compromis subsequent to the occurrence of the dispute. Compromissory clauses, which are generally drafted in general terms, while expressing the consent of the parties to submit all or certain types of disputes to arbitration, often lack specificity as to the rules of establishment and operation of the tribunal. In addition to the compromissory clause the parties concerned must usually enter into a special compromis which deals with the constitutional aspects of the arbitral tribunal to be established. Thus, in such a compromis the parties to the dispute may deal with such issues as 31
See, e.g., the Alabama Claims (USA v. UK), Moore, 1 History and Digest of the International Arbitration to which the United States has been a Party (1898), p. 653; the 7hz// Smelter Arbitration (USA v. Canada), 3 UNRIAA, pp. 1907-1982; Lake Lanoux Arbitration (France v. Spain), 12 UNRIAA, pp. 281-317, and generally cases reported in 1-9 UNRIAA.
22
Chapter 1. International adjudicatory dispute settlement
the composition of the tribunal, including the size and the manner of appointments and the filling of vacancies; the appointment of agents of the parties to the dispute; the questions to be decided by the tribunal; the rules of procedure and method of work of the tribunal including, where applicable, the languages used; the applicable law; the seat and administrative aspects of the tribunal, the financial arrangements for the expenses of the tribunal and the binding nature of the award of the tribunal and obligations and rights of the parties relating thereto. Not all these matters are always dealt with in compromis and sometimes other issues are addressed. Arbitration as a third-party procedure may be performed by one individual appointed by the parties to the dispute, as a sole arbitrator or umpire,32 or by a group of individuals appointed to form an arbitral tribunal. In most cases an odd number of arbitrators is usually provided for: some require five arbitrators33, while the most common practice has been arbitral tribunals of three members.34 Each party to the dispute has then the right to appoint either one of the three arbitrators, or two of the five arbitrators as the case may be. The third or the fifth arbitrator, who is also often designated chairman, is normally appointed by a joint decision of parties to the dispute and, in some cases, by a joint decision of the respective arbitrators already appointed by the parties. Where difficulties arise in the appointment of either the third or the fifth member, thus preventing the completion 32
See, e.g., the appointment of the King of Italy as the sole arbitrator under the treaty of 6 November 1901 between the United Kingdom and Brazil regarding the boundary dispute between British Guyana and Brazil, 12 UNRIAA p. 17; and the Island ofPalmas Case, 2 UNRIAA p. 830. 33 See, e.g., Geneva General Act for the Pacific Settlement of International Disputes, Article 22, 93 UNTS, p. 345. The Compromis of 11 September 1986 between Egypt and Israel regarding their boundary dispute in the Taba beachfront established a five-member tribunal. Each party appointed one member and the three other members, one of which was the president, were appointed by the parties jointly: Article 1 of the Compromis, 26 ILM p. 1. 34 See, e.g., International Convention for the Protection of New Varieties of Plants of 2 December 1961, Article 36, 815 UNTS p. 89; Protocol on Privileges and Immunities of the European Space Research Organization of 31 October 1963, Article 27, 805 UNTS p. 279.
Adjudicatory methods
23
of the composition of the tribunal, the parties to the dispute may assign the right of making the necessary appointment in such a case to a third state, or a prominent individual.35 Some compromis, after specifying certain rules of procedure, leave the determination of the remaining procedural questions entirely to the arbitration tribunal. For example, one compromis provided that "the Tribunal shall subject to the provisions of this compromis, determine its own procedure and all questions affecting the conduct of the arbitration".36 Some compromis, on the other hand, have used a more restrictive language in granting full competence to the tribunal to set rules of procedure. For example, one compromis, after specifying rules of procedure for the arbitration tribunal, provided that: "In determining upon such further procedure and arranging subsequent meetings, the tribunal will consider the individual or joint requests of the agents of the two governments".37 Another agreement instructs the tribunal to ascertain the views of the parties before determining a particular rule of procedure.38 Parties to an arbitration may agree on the law that the tribunal should apply to their disputes. Some arbitration agreements require
35
See, e.g., Article 45 of the 1907 Hague Convention for the Pacific Settlement of International Disputes, in which the task is assigned to a third state, and Article 23 of the 1949 Revised General Act for the Pacific Settlement of International Disputes, in which that appointment task is first assigned to a third state and then to the President of the International Court of Justice. 36 Article V of the Compromis of 22 January 1963 between France and the US regarding the interpretation of the Air Transport Services Agreement, 16 UNRIAA p. 9. Similarly, a broad competence was provided for another tribunal. The Compromis of that tribunal stated that "the Court shall, subject to the provisions of this Agreement, determine its own rules of procedure and all questions affecting the conduct of the arbitration": Article 3 of the Compromis of 19 July 1975 (France and UK), 18 UNRIAA p. 5. 37 The Convention of 3 August 1935 between the United States and Canada Concerning the Settlement of Difficulties Arising from Operation of a Smelter at Trail, 3 UNRIAA p. 1907. 38 The Treaty for Conciliation, Judicial Settlement and Arbitration (with annexes) of 7 July 1965 between the United Kingdom of Great Britain and Northern Ireland and Switzerland, 605 UNTS p. 205.
24
Chapter 1. International adjudicatory dispute settlement
that specific rules be applied,39 and some only make a general reference to the applicable law. Many arbitration agreements in some way specifically stipulate international law as the applicable law.40 Some arbitration agreements have remained silent on this issue, in which case the assumption is that international law in general shall be applicable. Other arbitration agreements have chosen principles of equity, justice, equitable solution, etc., as applicable to the dispute.41 Parties to a dispute submitted to an arbitral tribunal are represented by agents whose appointment and powers may be stipulated in the compromis indicating the time-period within which they are to be appointed.42 Such agents are usually entitled to nominate an assistant agent as occasion may require, and may be further assisted by such advisers, counsel and staff as the agent deems necessary. The agents of the parties to the dispute file written pleadings which may be limited to memorials and counter-memorials43 and which may be submitted in the order and within the time-limits determined by the tribunal. Such determination may also be made by the tribunal with respect to the oral proceedings and relevant documentary evidence. As appropriate, arbitral tribunals have also heard witnesses on behalf of parties to the dispute and have also made use of expert witnesses providing expert opinion to the tribunal on a given issue, as may be explicitly stated in a compromis.^ The arbitrators as well as the 39
See the Treaty of Washington of 6 May 1871, which constituted the basis for establishing the Alabama Claims tribunal between the United States and the United Kingdom, in Moore, 1 International Arbitrations, p. 547. 40 See, e.g., those mentioned in Systematic Survey of Treaties for the Pacific Settlement of International Disputes, 1928-1948 (UN Publication). 41 See, e.g., the "equitable solution" principle applied by the 1872 arbitral tribunal in the Delagoa Bay Case (GB v. Portugal), Moore, 5 International Arbitrations p. 4954; the 1893 Bering Sea Case (GB v. US), 6 AJIL (1912) p. 233. See also the 1949 Revised General Act, Article 28: 71 UNTS p. 101, which recommends the application of these principles. 42 Some compromis do not do either. 43 See, e.g., Article 5 in the Ambatielos Arbitration, 12 UNRIAA p. 8. 44 See, e.g., Articles 9 and 10 of the 30 July 1954 Compromis between the UK and Saudi Arabia, 201 UNTS p. 317.
Adjudicatory methods
25
parties to the dispute have the right to cross-examine such witnesses in the manner stipulated in a compromis.45 The seat of the arbitral tribunal is usually specified in the compromis. Where there is no such specification, the tribunal itself may, as recommended by its president,46 determine where to conduct its business. Arbitral tribunals are usually assisted by a secretariat or a registry to be responsible for the administrative arrangements for the arbitration. Two kinds of expenses are involved in an arbitration proceeding. One relates to the preparation of each party's case and its presentation to the arbitral tribunal. These expenses are borne by the parties themselves. Other expenses include the common expense of the arbitral tribunal, such as the arbitrators' fees, the salary of the registrar and the staff of the arbitral tribunal, interpreters, clerical facilities and such like. Parties to the dispute share the administrative costs of the tribunal. Generally the arbitrators' fees are borne equally by both parties. Occasionally, however, some compromis provide that each party pay the fees of their appointed arbitrator.47 Awards of arbitral tribunals are binding upon the parties to the dispute. Invariably, in all the compromis, parties to the dispute also stipulate that they undertake to abide by the decision of the arbitral tribunal. However, after an award has been rendered, it may be subject to correction or revision in connection with obvious errors such as clerical, typographical or arithmetical errors.48 An award may also be subject to interpretation. Article 82 of the 1907 Hague Convention provides for a general competence for the arbitral tribunal which 45
See, e.g., the 30 June 1965 Compromis between India and Pakistan regarding boundary arbitration, 17 UNRIAA p. 9, and the 16 July 1930 Compromis between Guatemala and Honduras, 2 UNRIAA p. 1312. 46 See, e.g., Article 5 of the 10 July 1975 Compromis between France and the UK in the case concerning the delimitation of the continental shelf, 18 UNRIAA pp. 5 and 6. 47 See, e.g., Article 12 of the Convention for Arbitration of Questions Regarding the Jurisdictional Rights in Bering Sea of 29 February 1892, in Moore, 5 International Arbitrations., p. 4762. 48 See Article 31 of the ILC Model Rules, in the Work of International Law Commission, 4th ed. (UN Publication) p. 154.
26
Chapter 1. International adjudicatory dispute settlement
rendered the award to interpret it. There are also circumstances in which an award may be annulled, e.g., for fraud, or reviewed but there is generally no appeal from an award. Arbitration in its modern form began as an attempt to bring into the international system the rule of law and to replace with a technique of litigation resort to the use of armed force in the settlement of disputes. Since the establishment of the PCIJ and ICJ resort to arbitration in strictly inter-state disputes has been less frequent. However, there are examples of significant inter-state arbitrations, especially in territorial disputes, such as the Rann of Kutch arbitration (India v. Pakistan] in 1968,49 the Beagle Channel arbitration (Chile v. Argentina} of 197850 and the Taba arbitration (Egypt v. Israel)51 of 1988, but also in other kinds of disputes, such as those involving the interpretation of treaties. What is to be noted, though, is that the number of arbitrations involving a state as only one party, the other being an individual or juristic person, which have taken place under some kind of treaty between states, has increased. Arbitration may also now be institutionalized. The first attempt to do this was in the Hague Conventions of 1899 and 1907 pursuant to which the PCA was created. But the PCA was not a court nor did the institutionalization associated with it have any compelling nature. Much later, pursuant to the ICSID Convention of 1965, the ICSID was created with a true institutionalized and cogent structure for a particular kind of dispute. (ii) Settlement by a court States parties to a dispute may seek a peaceful settlement by submitting the dispute to a pre-constituted international court (or tribunal) composed of independent judges whose function is to determine claims on the basis of international law and render decisions which are binding upon the parties.52 The judges are basically, if not 49
(1968), 7 ILM p. 633. (1978), 52 ILR p. 39. 51 (1988), 80 ILR p. 224. 52 On judicial settlement in general see, e.g., UN Handbook pp. 66 ff., Merrills, op. cit. note 17 pp. 121 ff., Collier and Lowe, op. cit. note 17 pp. 87 ff., 50
Adjudicatory methods
27
entirely, not chosen by the parties to the dispute as such. This method is referred to in Article 33 of the UN Charter and is generally described as judicial settlement. The designation of the court as a tribunal, as is the case with ITLOS, does not make it any less a court. The first international court of a universal scale was the PCIJ, which came into existence in February 1921, was established by the League of Nations and gave its first Advisory Opinion (No. 1, Nomination of the Netherlands Workers' Delegate) in July 1922 and its first contentious judgment (the S.S. Wimbledon) in August 1923. It was succeeded by the ICJ, created in 1946 under the Charter as a principal organ of the United Nations. Under Article 36 of its statute the ICJ has jurisdiction in "all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force." Another international institution for judicial settlement of a permanent nature is the ITLOS, established under the 1982 United Nations Convention on the Law of the Sea53 with jurisdiction over the law of the sea disputes. There are other courts of a permanent nature set up by states under treaties and agreements to settle a variety of disputes, such as the CJEC,54 the ECHR,55 and the IACHR.56 The above-mentioned courts unlike the ICJ and ITLOS are regional. They all have jurisdiction over individuals or non-state entities as well under the conventional arrangements. 124 ff. On the ICJ in particular see ibid, and Rosenne, 1-4 The Law and Procedure of the International Court 1920-1966 (1997). 53 Article 287(1 )(a) and Annex VI, Article 1. For the Convention see 21 ILM (1982) p. 1245. On dispute settlement by the ITLOS and the drafting history of its statute in general see Adede, The System for the Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987) passim, and pp. 210 ff., particularly. 54 See Schermers and Waelbroeck, Judicial Protection in the European Communities (1987). 55 See Jacobs and White, The European Convention on Human Rights (1996) pp. 380 ff., (now 2002 edition). 56 This began to function in 1979, having been established under the American Convention on Human Rights of 1969: see 9 ILM p. 673. Seventeen states have accepted the Court's jurisdiction to date. See also other courts referred to in UN Handbook pp. 69-70.
28
Chapter 1. International adjudicatory dispute settlement
Judicial settlement involves recourse to an independent judicial body to obtain binding decisions. It has this in common with arbitration. Arbitral tribunals, however, are themselves essentially of an ad hoc nature, and are composed of judges, by and large selected by the parties to a dispute who may also determine the procedural rules and the law applicable to the case concerned. This is so, even if the arbitration system is institutionalized. International courts, whether called courts or tribunals, on the other hand, are pre-constituted inasmuch as they are judicial organs whose composition, jurisdictional competence and procedural rules are predetermined by or under their constitutive treaties. They are generally permanent but may be ad hoc, in the sense that they are for a particular situation confined in time. It is also clear that generally the decisions of international courts are final and without appeal.57 The only exceptions to the rule concern questions of scope or execution of the judgment, or appropriate review, which may be subject to further decision, though of the same court. Thus, for example, Article 60 of the ICJ statute provides further that "in the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party".58 In the case of arbitral tribunals, however, whether their decisions are final depends on what is agreed upon in the compromis, which may provide for the possibility of decision being subject to appeal.59 57
Article 60 of the ICJ statute, Article 52 of the European Convention for the Protection of Human Rights: 213 UNTS p. 221, Article 67 of the American Convention on Human Rights: 9 ILM p. 673, and Article 296 of the UNCLOS: 21 ILM p. 1245. 58 See, e.g., the Chorzow Factory Case (Germany v. Poland), PCIJ Series A, No. 13, p. 4; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case Concerning the Continental Shelf (Tunisia v. Libya), 1985 ICJ Reports, p. 192; Request for Interpretation of the Judgment on the Asylum Case of 20 November 1959 Case (Colombia v. Peru), 1950 ICJ Reports, p. 395 (request declared not admissible); Haya de la Torre Case (Colombia v. Peru), 1951 ICJ Reports, p. 71. 59 See, e.g., Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal Case (Hungary v. Czechoslovakia), PCIJ Series A/B, No. 61, p. 208; Societe Commerciale de Belgique Case (Belgium v. Greece), PCIJ Series A/B, no. 78, p. 160; Arbitral Award Made by the King of Spain on 23 December
Adjudicatory methods
29
The fact that courts are pre-constituted make them better suited than ad hoc arbitral tribunals—which take longer to constitute—to deal with urgent matters such as request for interim (provisional) measures of protection.60 Further, a permanent international court is more capable of developing uniform jurisprudence of international law. The ICJ has developed such while exercising jurisdiction on legal questions referred to it under its statute.61 A court (such as the CJEC) has also been found more suitable for ruling on questions of international law raised in cases before domestic courts, where jurisdiction to do so has been conferred upon it.62 1906 (Honduras v. Nicaragua), 1960 ICJ Reports, p. 191. "Finality" does not necessarily mean that the case may not be reopened in the appropriate circumstances: see Chapter 11. 60 See, e.g., Article 41 of the ICJ Statute and paragraph 5 of Article 290 of the UN Law of the Sea Convention. A substantial number of cases involving interim measures of protection exist. In the case of the International Court of Justice, such cases include: Nuclear Tests Case (Australia v. France), Order re Interim Measures, 1973 ICJ Reports, p. 135; Fisheries Jurisdiction Case (UK v. Iceland), Order re Interim Measures, 1972 ICJ Reports, p. 12; Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), Order re Interim Measures, 1972 ICJ Reports, p. 30. See also the recent ITLOS cases published in ILM. 61 See, e.g., ICJ advisory opinions on the International Status of South West Africa, 1950 ICJ Reports, p. 128 (dispute between the Union of South Africa and certain members of the United Nations relating to the application of the mandate to South West Africa); Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 1954 ICJ Reports, p. 47; Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa, 1955 ICJ Reports, p. 23; Constitution of the Maritime Consultative Organization, 1960 ICJ Reports, p. 150; Certain Expenses of the United Nations, 1962 ICJ Reports, p. 15; Legal Consequences for States of the continued Presence of South Africa in Namibia, 1971 ICJ Reports, p. 16; Western Sahara, 1975 ICJ Reports, p. 12; Interpretation of the Agreement of 25 March 1951 between WHO and Egypt, 1980 ICJ Reports, p. 730; Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, 1988 ICJ Reports, p. 12; Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Reports p. 226. 62 See, e.g., the functions of the Court of Justice of the European Communities under Article 177 of the Treaty Establishing the European Economic Community of 25 March 1957, infra, note 68. Under this provision, the court may be concerned with questions of interpretation (of the Treaty, of acts
30
Chapter 1. International adjudicatory dispute settlement
A variety of cases between states and involving international organizations have been referred to the PCIJ and 1CJ. The CJEC and the human rights courts also have been resorted to frequently and with success. In general, the invocation of international courts, whether universal or regional, has resulted in the effective settlement of disputes and the reduction of tension. Jurisdiction to settle disputes in contentious cases can be assumed by international courts basically, if such jurisdiction is accepted by the parties to the dispute. In that sense jurisdiction is consensual.63 The recognition of jurisdiction may be by special agreement between the states parties to a dispute relating to a particular dispute, or by a compromissory clause providing for agreed or unilateral reference of a dispute to a court, or by some other means. In the event of a dispute as to whether a court has jurisdiction, the matter is settled by the decision of the court.64 Where the jurisdiction or competence is questioned it rules on such objections.65 With respect to the ICJ, states parties to the statute of the Court have the option of making a declaration under Article 36, paragraph 2, of the statute by which they accept in advance the jurisdiction of the Court "in all legal disputes concerning (a) the of Community institutions and of the statutes of bodies set up by the Council) or with questions of the validity (of acts of Community institutions). 63 For cases in which the International Court of Justice found that it could not accept jurisdiction because the opposing party did not recognize its jurisdiction, see ICJ Yearbook 1987-1988, p. 51, note 1. 64 ICJ Statute, Article 36, paragraph 6. 65 Objections to jurisdiction have been taken in the International Court of Justice on several grounds, such as: (a) that the instrument conferring jurisdiction is no longer in force (see e.g., Temple of Preah Vihear Case (Cambodia v. Thailand), 1961 ICJ Reports p. 17), or not applicable (e.g., Aerial Incident of 19 March 1953 Case (US v. Czechoslovakia), 1956 ICJ Reports p. 6); or the dispute is excluded by virtue of a reservation to the instrument (Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v. US), 1984 ICJ Reports p. 392); (b) that the dispute is not admissible for reason of jus standi (e.g., South West Africa Cases (Ethiopia v. South Africa, Liberia v. South Africa), 1962 ICJ Reports p. 319); or non-exhaustion of local remedies (e.g., Interhandel Case (Switzerland v. US), 1957 ICJ Reports p. 105); or non-existence of a dispute (e.g., Right of Passage over Indian Territory Case (Portugal v. India), 1957 ICJ Reports p. 125).
Adjudicatory methods
31
interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation". This declaration binds states only vis-d-vis states which have also made a declaration. The declaration may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. Optional clauses relative to compulsory jurisdiction also exist in connection with the ECHR66 and the IACHR.67 Some treaties establishing international courts automatically confer jurisdiction on these courts over the scope of its activities. The states parties do not need, and do not have the option, to make a declaration of acceptance of compulsory jurisdiction. Thus, in connection with the Treaties Establishing the European Communities, member states by becoming parties to the Treaties automatically subject themselves to the jurisdiction of the CJEC in respect of disputes connected with the application and interpretation of the Treaties.68 States parties to the UNCLOS automatically accept the compulsory jurisdiction of various forums for the settlement of law of the sea disputes, which include the ITLOS, though they have to make a declaration on the choice of a particular forum.69 The composition of the court and of a particular bench for a case, the manner in which proceedings are instituted, the rules of procedure, matters such as intervention by third parties, administration and bearing of expenses are determined by the constitutive instrument of the court, subsidiary instruments enacted by virtue of the constitutive instrument and by the court itself.70 International courts may additionally be empowered to give advisory opinions on legal question relating to existing international 66
Article 46 of the constitutive instrument. Article 62 of the constitutive instrument. 68 Treaty Establishing the European Coal and Steel Community, Article 33; Treaty Establishing the European Atomic Energy Commission, Article 142; Treaty Establishing the European Economic Community, Article 170. 69 Articles 286 and 287. 70 For discussion of these matters in the context of the ICJ see Rosenne, 1 op. cit. note 52 pp. 636 ff, and 3 ibid. 67
32
Chapter 1. International adjudicatory dispute settlement
disputes between states referred to them by designated bodies.71 The opinion is not binding on any entity. However, such advisory opinions embody judicial pronouncements which, while not binding, are authoritative statements of the law and could have wide-ranging practical consequences. Contentious proceedings involving international disputes result in decisions which are final and binding on the parties. In a majority of cases the judgments require their performance, but sometimes a court may be requested to render declaratory judgments in which the court determines the guiding legal principles to be followed in dealing with a particular dispute, without giving a dispositive decision on the dispute.72 Courts of a non-permanent nature which are, nevertheless, established, standing courts rather than arbitration tribunals are the two international criminal courts (tribunals) established by resolution of the UNSC, the ICTY and ICTR. Both have features which are non-arbitral and are associated with an established court, although they are not intended to be permanent but deal only with 71
E.g., Permanent Court of International Justice (Covenant of the League of Nations, Article 14); International Court of Justice (Charter of the United Nations, Article 96; statute of the Court, Article 65); European Court of Human Rights (Protocol No. 2 to the European Convention on Human Rights). In the case of the International Court of Justice, the General Assembly has requested 14 advisory opinions of the Court, some of which were related to existing disputes between states, for example: International Status of South West Africa Opinion (1949) (a dispute between the Union of South Africa and certain members of the United Nations relating to its application of the mandate to South West Africa); Western Sahara Opinion (1975). The Security Council also requested an advisory opinion of the Court concerning the legal consequences for states of the continuing presence of South Africa in Namibia notwithstanding Security Council Resolution 276 (1970) of 30 January 1970. The Economic and Social Council also requested an advisory opinion of the Court concerning the question of the applicability of Article VI, Section 22 of the Convention on the Privileges and Immunities of the United Nations in the case of Mr. Mazilu as Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The ICJ gave its advisory opinion on the question on 15 December 1989 (see E/1990/15/Add. 1 and 1989 ICJ Reports p. 177). Advisory opinions have been requested from the PCIJ and ICJ by other international organizations such as the ILO and IMCO. 72 See, e.g., Corfu Channel Case, 1949 ICJ Reports p. 4.
Adjudicatory methods
33
specific situational disputes. Preceding these two criminal courts were the international Nuremberg and Tokyo war crimes courts (tribunals) which were non-permanent and directed at a specific situation. The exercise of criminal jurisdiction by an international court or tribunal up to now of a non-permanent nature, unlike, e.g., the PCIJ, the ICJ, the ITLOS, the ECHR, the IACHR and the CJEC, has become a common feature of international relations. Such bodies are courts, even if called tribunals, while they do not have a permanent character. PROLIFERATION OF ADJUDICATORY DISPUTE SETTLEMENT Adjudicatory dispute settlement began in a modest way in the modern era—with the Jay Treaty of 1794. For over a century international adjudication proper, through arbitration admittedly, which this epoch saw initiated was entirely ad hoc. With the advent of the PCA an attempt was made to institutionalize arbitration, though this forum was little used and its structure as an institution was essentially rudimentary. Towards the end of the first quarter of the twentieth century the idea of a court distinguishable from arbitral tribunals in many respects, and a permanent one at that, took root and the PCIJ was created. The ICJ succeeded the PCIJ and, furthermore, more permanent courts have now come into existence. There was a vast growth in the use of adjudicatory methods of dispute settlement in the twentieth century. There was also a proliferation of tribunals, not only arbitral but also of an established nature. On the arbitral side, developments resulted for the first time in the creation of institutionalized arbitration systems, such as the 1C SID, which became popular and much used in the areas in which they were intended to operate, unlike the PCA which is still little used. The institutionalized arbitral system under the UNCLOS has also been used,73 though much less. Moreover, long-term arbitral bodies of an ad hoc nature, such as the Iran-US Claims Tribunal have 73
See the first such arbitration, the Southern Blue/in Tuna Arbitration (2000), 39 ILM p. 1359.
34
Chapter 1. International adjudicatory dispute settlement
functioned successfully, though they are not permanent bodies. This form of arbitration perhaps had its origin in the Claims Commissions of the nineteenth century but the modern phenomenon is of a more structured and sophisticated nature, almost comparable to a one-time institution, functions for a longer period and is of a broader nature in terms of jurisdiction. At the same time it is clear that the essentially ad hoc, one-time arbitration continues to survive and be resorted to on a frequent basis.74 Established or standing courts have become a common feature, whether they are permanent or ad hoc. Since the formal establishment of the PCIJ in 1920 there has been a permanently established or standing World Court, now the ICJ. But in addition there are other courts of a permanent and standing nature, such as the ITLOS and the regional courts mentioned above, which may or may not be called courts, that have been functioning effectively. The ITLOS has a jurisdiction which clearly overlaps with that of the ICJ but this does not appear to be a problem of any dimension. The observations to be made are that adjudicatory settlement of international disputes has become a common feature of international relations, has taken effective shape and has developed into one of the most viable means of international dispute settlement, even though it may not be the only one to which resort is had; and now manifests itself in two forms—the arbitration and the standing court—both forms consisting of a diverse content. REPRESENTATION BEFORE TRIBUNALS An important aspect of effective adjudicatory procedures is representation for the parties. Generally parties may be represented before tribunals by persons of their choosing. There is no international bar as such to which persons who represent parties must belong, nor is it necessary that representatives belong to a national bar. As a consequence a legal qualification of any kind, let alone a 74
See Coussirat-Coustere and Eisemann, 1-4 op. cit. note 1, for numerous examples.
Representation before tribunals
35
qualification in international law, is not required even as a minimum for such representation. There are no general rules relating to representation which are binding on and govern international tribunals as such, though it is in the interests of the parties to have persons to represent them who are qualified and competent in the relevant law, which is international law or some aspect of it. Exceptionally the rules of a tribunal (sometimes, the statute or basic instrument) has provisions dealing with representation. In particular ad hoc arbitral tribunals do not generally have strict provisions governing representation. A few examples will be examined here. In the statute of the ICJ, Article 42 requires that the parties, i.e., states, be represented by agents but this is representation not for the purpose of arguing the case but for responsibility with regard to formal actions to be taken in the proceedings. As for the argument of cases, Article 41(2) does not require representation by "qualified" legal counsel but is framed in terms of permission to have counsel or advocates assist the parties. Again, there is no particular qualification, professional, academic, or otherwise, such as membership in a national bar or a university degree in law, required. While states may, thus, technically choose whomsoever they wish to assist them, when counsel or advocates are retained, it is to be expected that they will have appropriate legal qualifications, academic or professional. The ICJ has not had problems with party representation to argue cases. The UNCITRAL rules which are model rules for arbitration provide in Article 4 specifically that the parties may be represented or assisted by persons of their choice. Here there is no reference even to counsel or advocates which terms generally imply some kind of legal qualification in the person representing or assisting. The Iran-US Tribunal retains this UNCITRAL rule as Article 4 of its own rules of procedure.75 The ITLOS which is a permanent tribunal has provisions in its rules adopted in 1997 which are similar to Articles 42 and 41(2)of the ICJ statute.76 75
2 Iran-US CTR p. 411. Article 53: see Lee and Hayashi (eds.), New Developments in the Law of the Sea: Global Developments (1998), 17 B. 5 pp. 19-20. 76
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The ICTY and the ICTR, as ad hoc tribunals adjudicating on international crimes, have specific provisions in their rules of procedure and evidence77 which deal with counsel engaged by suspects and accused. Article 44 of the rules specifies that counsel shall be considered qualified, if the counsel satisfies the Registrar of the court that counsel is admitted to the practice of law in a state or is a university professor of law. There is also provision in the rules for assignment of counsel in the case of indigent suspects or accused (Article 45). The statutes of the two human rights courts do not have specific provisions regarding representation of the parties. However, their rules of procedure have such provisions. For example, the current rules of court of the ECHR provide as follows: Rule 35 (Representation of Contracting Parties) The Contracting Parties shall be represented by Agents, who may have the assistance of advocates or advisers.
1.
2.
3.
4.
77
Rule 36 (Representation of applicants) Persons, non-governmental organisations or groups of individuals may initially present applications under Article 34 of the Convention themselves or through a representative appointed under paragraph 4 of this Rule. Following notification of the application to the respondent Contracting Party under Rule 54 § 3(b), the President of the Chamber may direct that the applicant should be represented in accordance with paragraph 4 of this Rule. The applicant must be so represented at any hearing decided on by the Chamber or for the purposes of the proceedings following a decision declaring the application admissible, unless the President of the Chamber decides otherwise. (a) The representative of the applicant shall be an advocate authorised to practise in any of the Contracting Parties and resident in the territory of one of them, or any other person approved by the President of the Chamber. Van der Wyngaert (ed.), International Criminal Law (2000) pp. 83 ff.
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(b) The President of the Chamber may, where representation would otherwise be obligatory, grant leave to the applicant to present his or her own case, subject, if necessary, to being assisted by an advocate or other approved representative. (c) In exceptional circumstances and at any stage of the procedure, the President of the Chamber may, where he or she considers that the circumstances or the conduct of the advocate or other person appointed under the preceding sub-paragraphs so warrant, direct that the latter may no longer represent or assist the applicant and that the applicant should seek alternative representation. 5. The advocate or other approved representative, or the applicant in person if he or she seeks leave to present his or her own case, must have an adequate knowledge of one of the Court's official languages. However, leave to use a non-official language may be given by the President of the Chamber... The statute of the CJEC provides in Article 17: The States and the institutions of the Community shall be represented before the Court by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer entitled to practise before a court of a Member State. Other parties must be represented by a lawyer entitled to practise before a court of a Member State. The statutes or rules of procedure (or both) of the lATs generally have provisions relating to the representation of parties. The statutes or rules of procedure of most lATs provide for representation before them of the applicant staff member, generally by legal counsel or by another staff member. Significant exceptions are the statutes and rules of procedure of the COEAB and of the OECDAT which merely refer to the right of the parties to be assisted and represented at the oral hearings.78 But in the case of both these tribunals applicants have had no difficulty in having legal counsel 78
Article 9.4 of the statute of the COEAB: Amerasinghe (ed.), Documents on International Administrative Tribunals (1989) at p. 123; Articles 7(b) of the statute of the OECD: Amerasinghe (ed.), ibid, at p. 112.
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represent them.79 Apart from the statutes of the CJEC which make the retention of legal counsel mandatory,80 most statutes or rules of procedure or both refer only to the right of the applicant to be represented.81 Representation is usually described in terms of other staff members or counsel but could more generally cover any kind of assistance. The general right of staff members to be represented either by counsel, by another staff member, or by someone else has not been questioned before any tribunal, though the content of the right may be qualified by the facilities expressly provided by the respondent organization, as is the case with the UN, where there exists a panel of counsel consisting of staff members. The rules of procedure of some tribunals, such as the UNAT, have provisions requiring legal counsel, in the event one is chosen to represent the applicant, generally with certain exceptions, to be authorized to practice in any country a member of the organization which is the respondent (Article 13 of the UNAT rules). There have been some cases decided by the ILOAT and the UNAT of which the content of the right of representation has been directly or indirectly the subject. In Saini82 the ILOAT's refusal to award the costs of travel of the applicant for a hearing of the tribunal was based on its understanding that the exercise of the right to be represented by counsel at the hearing precluded the need for the applicant to be heard personally at the hearing, unless the tribunal had made an order to that effect. The retention of counsel thus had the effect of negating the right of the applicant to appear in person at the hearing. 79
See, e.g., Wbrsdale, COEAB, Appeal No. 41 [1975], Case Law Digest (1985) p. 62; Dymock, Decision No. 66, OECD [1978], Recueil des decisions 63 a 82 (1980) p. 13. 80 ECSC Treaty, statute, Article 20; Euratom Treaty, statute, Article 17; EEC Treaty, statute, Article 17. 81 Statutes: NATOAB, Article 4.72: Amerasinghe (ed.) op. cit. note 78 at p. 141; ESRO regulation 43(e): ibid, at p. 190; rules: UNAT Article 13: ibid, at p. 19; ILOAT, Article 7.2: ibid, at p. 38; WBAT, rules 7.7 and 14: ibid, at pp. 53, 56; IDBAT, Article 31: ibid, at p. 81; OASAT, Article 22: ibid, at p. 101; LNT, Article 7: ibid, at p. 183; ELDOAB, Articles 7(b) and 9(c): ibid, at pp. 200-2; statute and rules: ESAAB, regulation 41.9 and rule 41.9/1: ibid, at p. 154. 82 ILOAT Judgment No. 93 [1966].
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The UNAT has conceded that once counsel has been appointed by the applicant he must have access to both the jurisprudence of the UN Appeals Board in previous cases and the records of discussions of the Board with respect to his case.83 In Vermaat84 the applicant had requested that the UN appoint a competent counsel to assist him and provide for the payment of counsel's fees, if such counsel were not provided. The UN replied that its written rules did not make provision for such a designation and refused to do so. The tribunal held that, though the applicant may have had the impression that an injustice had been done him, on the basis of the applicable texts the UN had not violated the applicant's rights.85 In Miss X86 the respondent argued that, since counsel appointed ex officio by the tribunal under the relevant written law had refused to acquaint the applicant with the documents regarding the psychiatric aspect of her case, notwithstanding her explicit request, the case should be dismissed as irreceivable. The tribunal held that, since the applicant had not requested that counsel be relieved of his functions and since, further, the tribunal possessed the broadest powers of requesting from the parties any documents and information necessary for the consideration of a case, the assistance given by the duly designated counsel was in accord with the statute and rules of the tribunal and the motion for dismissal could not be granted. The same tribunal has also held that the UN is under no obligation to pay the travelling expenses of the applicant's counsel with a view to the applicant's securing an oral hearing, because the tribunal could under its rules conduct a procedure without oral proceedings, the tribunal being empowered to elicit information on all points which are not made clear in the statements of the parties.87 83
Vanhove, UNAT Judgment No. 14 [1952], JUNAT Nos. 1-70 at p. 42. On the facts of the case the UNAT found that the rights of the applicant had not been infringed. 84 UNAT Judgment No. 118 [1968], JUNAT Nos. 114-66 p. 43. 85 It is possible that in the absence of written rules the same conclusion might have been reached by the application of general principles of law. 86 UNAT Judgment No. 81 [1960], JUNAT Nos. 71-86 p. 67. 87 Vanhove, UNAT Judgment No. 14 [1952], JUNAT Nos. 1-70 p. 37.
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Chapter 1. International adjudicatory dispute settlement
The UNAT also had to consider the issue of representation of the respondent. In Roy88 the applicant in a letter addressed to the President of the tribunal had requested that members of the Office of Legal Affairs be prevented from representing the respondent in the proceedings. The tribunal held that the respondent had the right to choose who should represent the UN and, therefore, rejected the request. The UNAT has considered issues connected with the right to representation in connection with its jurisdiction to review judgments. The question has been whether the applicant could successfully assert that a new fact had been discovered after a judgment, because of certain alleged defects in the conduct of counsel. The tribunal has held that such a claim could not be sustained purely on the ground that after the event the applicant believed that another course should have been followed in the presentation of his case than that taken by counsel in circumstances in which there were differences of opinion about the course to be followed between his counsel and him nor purely on the ground that certain evidence had not been presented by counsel, when the applicant was kept fully informed during the proceedings of the reasons for the course taken by counsel, so that he could not claim that advantage had been taken of his good faith.89 The discovery by the applicant that his counsel, a UN staff member, was on the verge of retirement has also been held not to be a fact of such a nature as to precipitate the review of an earlier judgment.90 On the other hand, the withdrawal of counsel from a case before the application had been filed and while it was being prepared has been held to be an exceptional circumstance under the statute of the WBAT warranting the extension of the time-limit for the filing of an application.91 Insofar as cases have awarded costs for legal assistance to applicants this has a bearing on the right to representation in 88
UNAT Judgment No. 368 [1986]. Fasla, UNAT Judgment No. 177 [1973], JUNAT Nos. 167-230 p. 77. 90 Ogley, UNAT Judgment No. 216 [1977], ibid. p. 473. 91 Mr. X, WBAT Reports [1984], Decision No. 16. There have also been some decisions on the right to due process before a final decision is taken by the organization and strictly not to the right to representation before the tribunal, though they may have some relevance by analogy: see, e.g., Cunio, UNAT Judgment No. 317 [1983]; Lebaga, UNAT Judgment No. 340 [1984] (IMO). 89
Status of international tribunals
41
so far as by allowing reimbursement of costs, at least in certain circumstances, they recognize that an applicant has a right to retain counsel. Representation of parties has generally not posed a problem in international adjudication. The approach has been to give the parties as much freedom as possible while also enabling them to use legally qualified persons to represent and assist them. Because legal expertise in the international legal field, whatever the area, is not dependent on admission to a national bar, such expertise being often located in persons with academic experience of some kind, rightly no insistence has generally been placed on national legal professional qualifications. On the other hand, while maximum freedom may be desirable, the need for some legal experience and qualifications, not necessarily professional or related to a national bar, cannot be denied, if parties are to be effectively represented. Tribunals in general by not having restrictive applicable provisions but having very general provisions, if at all, have made it possible for the parties to opt for efficient representation, if they so wish. STATUS OF INTERNATIONAL TRIBUNALS It is significant that towards the end of the twentieth century, ostensibly because international tribunals, whether arbitral tribunals or standing courts, had become a common feature in the life of the international community, but also because, it may be suggested, such international tribunals were an important and core aspect of international relations in the context of the preservation of peace and the securing of international justice, the issue of the international personality and immunities of international tribunals came into the limelight. The matter had not been discussed by text writers but it was not only adverted to but faced head-on in the Dutch case, AS v. Iran-United States Claims Tribunal, a case which went up to the Supreme Court of the Netherlands.92 92
(1983), Local Court, The Hague, 15 NYIL p. 429 (English translation), 94 ILR p. 323 (English); (1984), District Court, The Hague, 16 NYIL p. 471
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In AS v. Iran-United States Claims Tribunal the local court held that the defendant tribunal was an international organization with a legal personality derived from international law and that as a consequence of that and the applicable law derived from international law and Dutch legislation the tribunal was entitled to the relevant immunity from jurisdiction enjoyed by international organizations. The Dutch court said: The parties have not contested, and can thus be deemed to have accepted, that the defendant, the Tribunal, was instituted by the Claims Settlement Agreement between the Islamic Republic of Iran and the United States of America. This Agreement is embodied in the Declaration of the Algerian Government of 19 January 1981 concerning the settlement of claims by the Government of the United States and the Government of the Islamic Republic of Iran (Trb. 1981 No. 155). The parties have also accepted that the Tribunal is a joint institution of the two States concerned, with a legal personality derived from international law. Furthermore, it has been established that the Netherlands Government takes the view that the Tribunal enjoys the usual immunity from jurisdiction of international organizations, which is necessary for the performance of the tasks for which they have been instituted. This view has been derived from the draft Agreement between the Netherlands, the United States of America and the Islamic Republic of Iran, Article 17, 18, and 19 of which confer immunity upon the Tribunal and the letter of the Secretary-General of the Tribunal, dated 2 February 1983 [...] in which the Netherlands offered the Tribunal the prospect of immunity at an earlier date, commencing on 18 May 1981, and admitted the Tribunal to the Netherlands on that date.93 The court referred to the fact that the parties had not contested either the legal personality before the court of the tribunal or its entitlement to immunity. This, however, does not affect the holdings of the court. Both issues being matters relating to jurisdiction could have been examined by the court as jurisdictional issues if the view (English translation), 94 ILR p. 326 (English); (1985), Supreme Court, 18 NYIL (1987) p. 357 (English translation), 94 ILR p. 327 (English). 93 (1983), 94 ILR at pp. 323^.
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of the law as agreed was unsound. The District Court and the Supreme Court agreed with the local court on the law on the points mentioned above94 It is important that the personality was primarily international personality deriving from the international acts of two states in reaching an international agreement to create the tribunal with certain powers and functions which were essentially judicial but also entailed administrative acts. This case would, therefore, support the position that international tribunals, whether arbitral tribunals or standing courts, created by the agreement of states enjoy international personality because their functions, being essentially judicial, are similar in nature to those entrusted to the Iran-US Claims Tribunal. Where the court is constituted under the aegis of a wider treaty creating an international organization, such as the UN Charter, it would share in the international personality of the international organization or be endowed with a personality of its own, as the case may be, on the basis of the constitutive treaty or instrument. Thus, the ICJ and the ICTY and ICTR, fall into this category as do lATs. Tribunals or courts such as the ITLOS, the human rights courts and the CJEC also depend on wider treaties for their personality. 1CSID tribunals would benefit from the coverage of the 1CSID Convention but each tribunal created under it would have personality.95 As for immunity from national court jurisdiction, this also derives not only from the attribution of international personality to tribunals but also from the application of the international law relating to the immunities of international organizations, whether conventional or otherwise. As was said by the Dutch Supreme Court in the AS Case, it must be assumed that even where there is no treaty... it follows from unwritten international law that an international organization is 94
94 ILR at p. 326, 94 ILR at p. 327, respectively. International personality as an attribute of international organizations and the recognition of the personality of such organizations in national courts is discussed by, among others, the present author: see Amerasinghe, Principles of the Institutional Law of International Organizations (1996) pp. 67 ff., and other authors mentioned therein. 95
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Chapter 1. International adjudicatory dispute settlement entitled to the privilege of immunity from jurisdiction on the same footing as generally provided for in the treaties... This means that, according to unwritten international law as it stands at present, an international organization is in principle not subject to the jurisdiction of the courts of the host State in respect of all disputes which are immediately connected with the performance of the tasks entrusted to the organization in question.96
The immunity recognized, as pointed out by the same court, is a functional and restrictive one.97 The brief survey above which shows that it is being recognized that international tribunals have international legal personality and are entitled to a certain immunity from national court jurisdiction leads to the conclusion that the importance of international adjudication through international courts and tribunals is fully conceded and is being progressively recognized as entailing significant consequences in international organizational law. SCHEME OF STUDY It will become apparent in the next chapter that the scope of the concept of jurisdiction is neither an agreed nor a rigid quantity and may be determined by subjective preferences. For this study certain limits have been selected, not arbitrarily, but in the context of and for the purpose of a discussion of the jurisdictional powers of international tribunals in certain areas of fundamental significance and importance. In the first general section the areas identified in Chapter 298 as being important will be examined largely with a view to seeing how tribunals and consensual arrangements have approached problems and to elucidating any general principles that may emerge. There is a good deal of practice that is involved which may not 96
18 NYIL (1987) at p. 360, 94 ILR at p. 329. Immunities of international organizations applicable in national jurisdictions are discussed in Amerasinghe, op. cit. note 95 pp. 369 ff. 98 The discussion of and expose of these areas appears at the end of Chapter 2. 97
Scheme of study
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always be uniform but it is thought that certain general principles can be found in many areas which are capable of elaboration. The practice itself provides precedents which are generally rational and viable. The intellectual studies have on the whole, with some exceptions, not been very helpful in terms of general applicability of principle, nor indeed, are they numerous or complete. None have made a systematic general study of the areas here identified. Most have been devoted to particular or some tribunals. They are, again with exceptions, descriptive. In the next section particular aspects of the "jurisdiction" of some specific tribunals will be studied. The object is to analyze and elaborate on the special aspects of jurisdiction which have in practice attracted and exercised attention in these tribunals. The specific problems and practice are important enough to merit individual treatment. Five tribunals, or groups of tribunals, have been selected for study. The choice of tribunals has, again, not been arbitrary but based on the distinctive character of the tribunals in the context of modern international legal relations. Further, considerations of space, i.e., of keeping the work within reasonable dimensions, have influenced the selection and resulted in the exclusion of other tribunals that may conceivably have been included. The tribunals selected for special treatment are the PCIJ and ICJ, the ICSID arbitration tribunals, the lATs, the ECHR and the CJEC. The PCIJ and ICJ have been selected because of their undeniable primacy in international adjudication and the importance of the particular principles to be considered which have been developed in their jurisprudence. The arbitration system under the ICSID Convention is of special significance as an experiment in institutionalized international arbitration. Other institutionalized arbitration systems, such as those under the PCA or the UNCLOS, are not used as much in truly international arbitration and have not developed as elaborately in practice nor is there a jurisprudence of importance relating to jurisdiction which has been developed in connection with them and their significantly special jurisdictional scheme. lATs are very unique tribunals in the international system connected specifically with international organizations proper and with a highly sophisticated and developed jurisdictional scheme.
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Their selection needs no justification." The ECHR and CJEC have been selected because they are regional experiments which have had considerable success and are firmly established. The ECHR is also the best example of a genuine international human rights court, while the CJEC is the court of the only international organization which comes close to being essentially supra-national and has very special features from a jurisdictional angle. Tribunals, such as the ITLOS, the two humanitarian crimes tribunals (the ICTY and ICTR), the IACHR and the Iran-US Claims Tribunal have not been given special treatment, not only for reasons of space but also, because they are either fairly recent creations and have little jurisprudence on jurisdictional problems (ITLOS) or are a poorer example (IACHR) of a tribunal which has been given special treatment (ECHR) or are too specialized and have had few jurisdictional problems which cannot be dealt with in the general section (ICTY and ICTR) or are ad hoc, also very limited in their scope, are too specialized in many respects from the point of view of jurisdiction and are such in terms of jurisdictional interest that they can be treated adequately in the general section (Iran-US Claims Tribunal).
99
It should be noted that the first permanent IAT established was the first standing international court to be established after the PCIJ—the LNT whose existence was continued by the ILOAT. The second IAT with permanent status to be established was the UNAT which is of prime importance as the IAT of the UN, and has had a significant impact on IAT jurisprudence. The third permanent IAT of a universal international organization to be established was the WBAT (1980) whose jurisprudence has become very important. The present author was the Registrar and Director of the Secretariat of this tribunal from 1981 to 1996 and was responsible for establishing it on a firm footing and inserting it in the framework of respected lATs. There are fifteen principal lATs today whose judgments are published and accessible. Apart from the three referred to above the others are all regional tribunals, but for two. They are the IMFAT, the ICM tribunal, the CJEC, the NATO Appeals Board, the OECD tribunal, the ESA Appeals Board, the COE tribunal, the ADBAT, the AfDBAT, the OASAT, the IDBAT and the CSAT.
II GENERAL PRINCIPLES
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2 MEANING OF JURISDICTION IN INTERNATIONAL JURIDICAL USAGE
DIVERSITY OF CONNOTATION Questions relating to "jurisdiction" in a broad sense have frequently been raised before or in connection with international tribunals, whether they be established courts, such as the ICJ, the ITLOS, the two human rights courts, and international administrative tribunals, or arbitral and other tribunals. But in the history of modern adjudication which begins with the Jay Treaties of 1794 there has been no attempt by tribunals to explain systematically the ramifications of the concept. Jurisdiction has been found to exist or it has not generally, without analysis of the concept, while the term has been used in different senses. This may in terms of results not be a serious drawback, inter alia, because from the context it is possible to identify the sense intended, but in practical terms and not merely theoretical terms it is useful to have a clearer understanding of what the concept represents. It is not a matter of defining the concept or attempting to establish parameters but of having a clearer idea of what are its implications.
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Chapter 2. Meaning of jurisdiction
Before the advent of the first permanent international court, the PCIJ, in February 1921, there had been over three hundred arrangements for arbitration with many more arbitral decisions given pursuant to them1 but it was only in a handful of reasoned (motivee) cases that questions of jurisdiction had been raised.2 After the creation of the PCIJ there have been many more jurisdictional matters raised before and dealt with by both established courts and other tribunals, including arbitral tribunals. What emerges from the experience of the PCIJ, ICJ and the post 1921 period, particularly in about the last 56 years since the creation of the ICJ, is that parties in international disputes are somewhat concerned about international tribunals exceeding their jurisdiction or exercising a jurisdiction when they should not be doing so. Since the end of the second world war there have not only been numerous cases before the ICJ in which issues of jurisdiction in one form or another have been raised or dealt with3 but there have been numerous truly international arbitral decisions in which matters of jurisdiction have been discussed.4 There have also been issues of jurisdiction raised before other permanent tribunals, such as the CJEC, the two human rights courts, lATs, ITLOS, and also the two existing international criminal courts (ICTY and ICTR).5 1
See Stuyt, Survey of International Arbitrations 1794-1989 (1990) pp. 1-344. See Coussirat-Coustere and Eisemann, 1 Repertory of International Arbitral Jurisprudence 1794-1918 (1989) pp. 390-4, 395 and 405-10. As the authors of this work stated many of the earlier arbitrations were not reasoned (motivee): ibid. pp. xxii-xxv. Thus, it is not possible to identify the ratio decidendi nor the general principles of international law applied. Such cases are not included in this assessment. Nine arbitrations raised issues concerning jurisdiction in general, one concerning the propriety of the tribunal's constitution and two concerning jurisdiction over interventions. Hudson considered briefly and generally the jurisdiction of international tribunals including arbitral tribunals in Hudson, International Tribunals (1944) pp. 67-83 and passim. But he concentrated on the PCIJ, because at that time there was little else to be considered. 3 See Rosenne, 2 & 3 The Law and Practice of the International Court, 1920-1996 (1997) passim. 4 See Coussirat-Coustere and Eisemann, 3 op. cit. note 2—1946-1988 pp. 1399^49, 1485-524 and passim. 5 On the PCIJ see Hudson, The Permanent Court of International Justice 1920-1942 (1945) pp. 383-524; Frachiri, The Permanent Court of International 2
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The term "jurisdiction" does not seem to be a term of art in the sense that it is used to connote matters of a single genus or species. It has been applied to many areas of a court's activity which may appear to be unconnected. For example, the determination that the parties have truly consented to the tribunal's deciding on substantive rights and obligations in a given case has been regarded as a matter of jurisdiction as has the question whether the tribunal has authority to award damages for moral injury. The idea of jurisdiction in fact runs through the whole of a court's judicial activity. The question whether a tribunal has the authority to commence and continue the examination of a dispute (as opposed to the actual examination of the dispute on the merits) is regarded as much a matter of jurisdiction6 as is the question whether a tribunal may interpret a judgment once given or review it. The dissimilar questions whether a tribunal may exercise judicial authority over a third party who seeks to intervene and whether a tribunal may only issue a declaration of rights and obligations rather than go further have both been described as questions of jurisdiction. An example of the usage of the term "jurisdiction" to connote the power or authority to commence and continue the examination of a dispute is the reference in Article XII of the ILOAT statute to confirmation of its jurisdiction by the ILOAT. In the Judgments of the Administrative Tribunal of the I.L.O. Opinion, the question whether the ILOAT was "competent... to hear" certain complaints by staff members against UNESCO was referred by the ILO to the ICJ. The ICJ said: The words "competent to hear" used in the Request for an Opinion mean that the question is one of determining whether the Administrative Tribunal was legally qualified to examine the complains submitted to it and to adjudicate on the merits of the claims set Justice (1932) pp. 62-106. On the ICJ see particularly Rosenne, 2 The Law and Practice of the International Court 1920-1996 (1997) passim. On the ECHR see van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights (1998) pp. 98-165, 193-213. On the CJEC see, e.g., Brown and Kennedy, The Court of Justice of the European Communities (1994) pp. 101-226. On lATs see Amerasinghe, 1 The Law of International Civil Service (1994) pp. 201-53. 6 1956 ICJ Reports at p. 87.
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Chapter 2. Meaning of jurisdiction out therein. The circumstance that the Tribunal may have rightly or wrongly adjudicated on the merits or that it may have rightly or wrongly interpreted and applied the law for the purposes of determining the merits, in no way affects its jurisdiction. The latter is to be judged in the light of the answer to the question whether the complaint was one the merits of which fell to be determined by the Administrative Tribunal in accordance with the provisions governing its jurisdiction. That distinction between jurisdiction and merits is of great importance in the legal regime of the Administrative Tribunal. Any mistakes which it may make with regard to its jurisdiction are capable of being corrected by the Court on a Request for an Advisory Opinion emanating from the Executive Board. Errors of fact or of law on the part of the Administrative Tribunal in its Judgments on the merits cannot give rise to that procedure.7
A clear distinction was made between the jurisdiction to act judicially and the actual judicial action on the merits. But this is only one sense in which the term has been used. The term "jurisdiction", derived as it is from the Latin, "ius dicere", in its pure sense refers to the authority to declare the law or the legal position, i.e., to pronounce on rights and obligations. For this reason it can be given a broad connotation so as to cover the total activity of a tribunal. It covers more than the term "competence" (in French, competence) as used to refer to the basic authority to examine a dispute. In Tadic the ICTY Appeals Chamber in addressing the contention that the validity of the constitution of the ICTY could not be questioned as a matter of jurisdiction stated the scope of "jurisdiction" in no unclear terms: 10. In discussing the Defence plea to the jurisdiction of the International Tribunal on grounds of invalidity of its establishment by the Security Council, the Trial chamber declared: There are clearly enough matters of jurisdiction which are open to determination by the International Tribunal, questions of time, place and nature of an offence charged. These are properly described as jurisdictional, whereas the validity of the creation of 7
Ibid.
Diversity of connotation
53
the International Tribunal is not truly a matter of jurisdiction but rather the lawfulness of its creation [...]" (Decision at Trial, at para 4.) There is a petitio principii underlying this affirmation and it fails to explain the criteria by which the Trial chamber disqualified the plea of invalidity of the establishment of the International Tribunal as a plea to jurisdiction. What is more important, that proposition implies a narrow concept of jurisdiction reduced to pleas based on the limits of its scope in time and space and as to persons and subject-matter (ratione temporis, loci, personae and materiae). But jurisdiction is not merely an ambit or sphere (better described in this case as "competence"); it is basically—as is visible from the Latin origin of the word itself, jurisdictio—a legal power, hence necessarily a legitimate power, "to state the law" (dire le droif) within this ambit, in an authoritative and final matter.8
More specifically in regard to the contention raised it said: 11. A narrow concept of jurisdiction may, perhaps, be warranted in a national context but not in international law. International law, because it lacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a number of tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the others. In international law, every tribunal is a self-contained system (unless otherwise provided). Of course, the constitutive instrument of an international tribunal can limit some of its jurisdictional powers, but only to the extent to which such limitation does not jeopardize its "judicial character", as shall be discussed later on. Such limitations cannot, however, be presumed and, in any case, they cannot be deduced from the concept of jurisdiction itself. 12. In sum, if the International Tribunal were not validly constituted, it would lack the legitimate power to decide in time or space or 8
ICTY: Judicicial Reports 1994-1995 at p. 365. The Court cited two English law dictionaries, Stroud's and Black's, at p. 367, to illustrate the broad meaning of the term. Sirey, Dictionnaire de la Terminologie du Droit International (1960) at pp. 354-55, does not refer to such a broad connotation as such, but gives examples of different usages which illustrate and support a broad connotation.
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Chapter 2. Meaning of jurisdiction over any person or subject-matter. The plea based on the invalidity of constitution of the International Tribunal goes to the very essence of jurisdiction as a power to exercise the judicial function within any ambit. It is more radical than, in the sense that it goes beyond and subsumes, all the other pleas concerning the scope of jurisdiction. This issue is a preliminary to and conditions all other aspects of jurisdiction.9
It is important that in French the term "jurisdiction" is generally translated competence and rarely juridiction. But this usage does not hide the nature of the problem. Jurisdiction must be taken to cover a large area concerned with the authority of international tribunals. Judge Daxner in his dissenting opinion in the Corfu Channel Case (Preliminary Objection) in a different way pointed to one of the difficulties connected with the term "jurisdiction", when he referred to certain aspects of the jurisdiction of the ICJ: In my opinion, the word "jurisdiction" has two fundamental meanings in international law. This word is used: (1) to recognized the Court as an organ instituted for the purpose jus dicere and in order to acquire the ability to appear before it; (2) to determine the competence of the Court, i.e., to invest the court with the right to solve concrete cases.10
The above opinions identify the possible diversity of the connotation of the term jurisdiction and are a good introduction to and reason for an examination of the scope of the term in the light of what is being considered in this study. While it is unnecessary to indulge in the luxury of finding a definition for the concept of jurisdiction which may be elusive, the 9
ICTY: Judicial Reports 1994-1995 at p. 367. Corfu Channel Case (Preliminary Objection), 1948 ICJ Reports at p. 39. Judge Daxner explained clearly what he meant at pp. 39—41. Fitzmaurice adopted the same distinction in less clear terms after Judge Daxner's opinion in this case: 1 The Law and Procedure of the International Court of Justice (1986) pp. 109-11, which was a reprint of an article published in 27 BYIL (1950) p. 1. While Judge Daxner did see two distinct steps, so to speak, for jurisdiction or competence to be complete, he did not confuse the issue by introducing the notions of generality and particularity, as Fitzmaurice did. 10
Diversity of connotation
55
term has so many connotations in the practice and theory of international adjudication that it is necessary to identify what is being examined or studied under the rubric "jurisdiction". It would be useful and even necessary in the process to identify, first, some of the different senses in which the term has been used and, secondly, what is the subject of examination in the study. Initially it may be said, although this is not a matter of scientific analysis, that in broad terms there are several distinct matters which are included in the sense in which the term "jurisdiction" is applied, when it is used to connote the authority of a tribunal to proceed judicially to decide an international dispute, which involves both application of rules of procedure and of substance. The three matters identified concern in general terms, first, the authority to proceed to exercise the power to apply rules of procedure and substance to decide the dispute referred to the tribunal, secondly, the power to grant what in the broadest terms may be called remedial measures once a decision has been taken on the merits and, thirdly, sometimes to select particular rules of substance or procedure in deciding the merits, i.e., what it may do in settling the dispute once it has been established that it has the authority to do so. The first category covers issues as to whether a tribunal has been properly and lawfully constituted, or whether it may decide a dispute to which an international organization is a party, i.e., rationepersonae, or whether because local remedies have not been exhausted the tribunal may assert its power to examine the dispute. An example of the second category is issues as to whether damages may be awarded or an order of specific performance should be made. The third category refers to what law should or should not be applied in relation to substance or procedure. Because international tribunals, including established courts, are judges d'exception with juridiction d'attribution (limited and assigned jurisdiction) and not juridiction de droit commun (general jurisdiction),11 the questions whether a court or tribunal is properly constituted and has authority or jurisdiction to proceed to adjudicate 1
' See ibid, at p. 97, for the distinction. The Court mentioned the distinction in connection with lATs which it agreed were international tribunals. The distinction applies to all international tribunals.
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Chapter 2. Meaning of jurisdiction
or act in a certain manner in adjudicating become important. No international tribunal can claim that it has general jurisdiction which would obviate any issues as to whether it has been properly constituted and has the authority to adjudicate and as to what it can do when it adjudicates. Generally jurisdiction is derived from the statute, instrument or compromis which established the tribunal and any subsidiary instruments flowing from those sources. Those sources are dependent ultimately, and either directly or indirectly, upon the consent or agreement of states and inter-state organizations which are composed of states. The matter of consent will be discussed in a later chapter. Here it is relevant to observe that jurisdiction in its many ramifications flows from a basic instrument to which is referred its establishment together with any relevant subsidiary instruments.12 What has been said about the limited nature of the jurisdiction of international tribunals raises further questions as to how instruments assigning jurisdiction, in the sense particularly of the authority or power to adjudicate, are to be interpreted. These issues will be discussed in Chapter 4. NATIONAL LEGAL SYSTEMS COMPARED WITH THE INTERNATIONAL SYSTEM It may be relevant to advert here to the statement of the PCIJ in the Minority Schools (Upper Silesia} Case made in the course of dealing with the argument that there could be a conflict between the Court's jurisdiction and that of the League of Nations' Council which would exclude the Court's jurisdiction, in order to note with the PCIJ that there are differences between national courts and international courts in regard to the position vis-a-vis jurisdiction, entailing consequences. The Court said: The Court's position, in regard to jurisdiction, cannot be compared to the position of municipal courts, amongst which jurisdiction is 12
The doctrine of forum prorogation may raise problems with the above general explanation. Its relationship to written agreements or instruments will be considered in the chapter on competence (7).
National legal systems
57
apportioned by the State, either ratione materiae or in accordance with a hierarchical system. This division of jurisdiction is, generally speaking, binding upon the Parties and implies an obligation on the part of the Courts ex officio to ensure its observance. Since in such cases the raising of an objection by one Party merely draws the attention of the Court to an objection to the jurisdiction which it must ex officio consider, a Party may take this step at any stage of the proceedings.13
The PCIJ was addressing one possible distinction between national and international tribunals. In the Anglo-Iranian Oil Co., Order of July 5th, 1952 in connection with the jurisdiction of the ICJ to grant interim measures Judges Winiarski and Badawi Pasha, albeit in a dissenting opinion, pointed out that: The question of the jurisdiction of the national tribunal does not in practice arise; the application is made to the competent tribunal; if the tribunal has no jurisdiction it will not order interim measures. But, in municipal law, there is always some tribunal which has jurisdiction.14
The judges went on to state that there may be circumstances in international law where interim measures could not be secured at all because of the lack of consent which is the ultimate basis of a tribunal's jurisdiction in international law. Thus, the consensual basis of jurisdiction may result in other differences between national and international tribunals. It would be incorrect, however, to state that in national systems some court will always be able to exercise jurisdiction in its primary sense while in the international system this may not always be the case. While in the international system there may be more reason to have the existence of jurisdiction in this sense established positively in general, there may certainly be circumstances in national law where no court could properly exercise jurisdiction, e.g., because the claim is barred from being receivable by a statute of limitations. The differences between national systems and the international system lie not in the availability in all cases of a court with jurisdiction but in the source of that jurisdiction. In the case of the international 13 14
PCIJ Series A, No. 15 at p. 23. 1951 ICJ Reports at pp. 96-7.
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Chapter 2. Meaning of jurisdiction
system the source of jurisdiction is ultimately consent, while in national systems the source is generally binding legislation. USAGE AND APPLICABILITY As already noted, "jurisdiction" covers many aspects of judicial activity.15 (i) The term has been used to denote the initial power of a tribunal to determine whether it may determine (or has the authority 15
In the Cases of Dual Nationality (No. 22) (1954, Italy v. UK), 14 UNRIAA at p. 36, the arbitral tribunal strangely said "Procedure, competence, jurisdiction are technical words with a precise meaning." As far as "competence" and "jurisdiction" are concerned, it is clear that the words apply to more than one situation, even though the application may be specific within each situation. In Iran-United States, Case No. A/1 (1982), 1 Iran-US CTR at p. 152, the Iran-US Claims Tribunal referred to the "large variety of situations in which matters of jurisdiction may arise", as a result of the complicated nature of the jurisdictional provisions of the Algiers Declarations. In several arbitral decisions certain powers or functions of a tribunal to act in particular ways have been referred to, the powers or functions being broadly describable as matters of jurisdiction: see, e.g., the Kummerow et al. Case (1903, Germany v. Venezuela), 10 UNRIAA at p. 789— "The functions of the Commission are strictly judicial. They have nothing to do with questions of statecraft and diplomacy."; the Eastern Extension, Australasia and China Telegraph Co. Ltd. Case (1923, UK v. USA), 6 UNRIAA at p. 118— "the duty of the Tribunal... is not to lay down new rules."; the Compagnie d'electricite de Varsovie Case (1929, France v. Poland), 3 UNRIAA at p. 1675,— "1'arbitre... est competent en ce qui concerne 1'interpretation d'une disposition quelconque de la Convention"; the Responsibility of Germany Case (1930, Germany v. Portugal), 2 UNRIAA at p. 1077—"il est evident qu'en confiant a un arbitre le soin de fixer le montant..., les Hautes Parties contractantes n'ont pas entendu 1'investir d'un pouvoir repressif"; the Trail Smelter Arbitration (1940, Canada v. USA), 3 UNRIAA at p. 1973,—"Since the Tribunal has the power to establish a regime, it must equally possess the power to provide for alteration, modification or suspension of such regime."; the Julien Chevreau Case (1931, France v. UK), 2 UNRIAA at pp. 1137-38,—"Uarbitre a done estime que 1'intention des Parties a etc de soumettre a son examen les questions relatives a la detention de M. Chevreau, sans en exclure celle qui regardent la periode on la detention a eu lieu hors de Perse...".; the Karl Wisser Case (1961, Austria v. Germany), unpublished—see Cousirrat-Coustere and Eisemann, 3 op. cit. note 2
Usage and Applicability
59
to determine) that it has the appropriate authority to begin and continue judicial examination of a case. The term used in English generally is "jurisdiction", though occasionally the word "competence" has been used to describe the power to decide whether a tribunal has this authority. The French term used generally is "competence". In Tadic the Appeals Chamber of the ICTY referred to its power to determine whether it had the power to determine that it was properly constituted and therefore had authority to proceed to consider criminal cases as the incidental "jurisdiction" to examine whether it had the authority to determine that it was properly constituted by the SC and, therefore, had primary jurisdiction over the case before it.16 It also used the French term competence in referring to the competence de la competence of an international tribunal.17 In the Nicaragua Case (Jurisdiction and Admissibility) the ICJ referred to its "jurisdiction" to declare that it lacked jurisdiction to rule on the merits.18 In French the Court referred to the question whether it was competente only to pronounce on its incompetence in regard to the merits.19 In the statutory instruments of tribunals, while there are at p. 1419, No. 3717,—"one cannot take example from the international tribunals which,..., urged States to take particular measures, basing this on economic or moral considerations ...." 16 See the ICTY: Judicial Reports 1994-1995 at pp. 371 and 373. 17 Ibid. The tribunal also referred to the German "Kompetenz—Kompetenz": ibid, at p. 371. In the Wolfish Bay Boundary Case (1911, Germany v. UK), 11 UNRIAA at p. 307, the arbitral tribunal merely referred to "powers to settle questions" as to the competence of the tribunal. Similarly in the Rio Grande Irrigation and Land Company, Ltd. v. USA (1923, UK v. USA), 6 UNRIAA at p. 136, the arbitral tribunal said that it was "authorized" to declare its competence to interpret the compromis. In the Nottebohm Case, 1953 ICJ Reports at p. 119, the ICJ referred to an international tribunal's "right to decide as to its own jurisdiction" without referring to its "jurisdiction" to do so: see also the Greco-Turkish Agreement Opinion (1928), PCIJ Series B No. 16 at p. 20. 18 1984 ICJ Reports at p. 23. 19 Ibid. In judgments drafted in French also tribunals and courts have merely referred to the fact that the tribunal or court is ajuge de sa propre competence: Societe "Radio-Orient" Arbitration (1940, Egypt v. Syria and Lebanon), 3 UNRIAA at p. 1878, or they have used language avoiding the use of the word competent or competence: see Nottebohm Case, 1953 ICJ Reports at p. 119; Greco-Turkish Agreement Opinion (1928), PCIJ Series B No. 16 at p. 20.
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references to the authority to decide on a tribunal's own competence, generally the provisions are drafted both in English and French without the use of the term "competence" or "jurisdiction" to describe the authority to decide on a tribunal's competence.20 In English the terms "jurisdiction" and "competence" are both used to describe the power to decide whether a tribunal has the authority judicially to proceed with a case, while in French the word usually used is competence. (ii) The term "jurisdiction" is also used to describe the power that a tribunal possesses to examine whether it may or may not proceed judicially with a case, or certain aspects of it, whether as a result of its being properly or improperly established or constituted or because the constitutive instruments do or do not give it authority to proceed judicially with the particular case. In this connection the term "competence" is also used in English. The ICTY described its authority to proceed judicially as covered by the terms primary, original or substantive "jurisdiction".21 The French word used was competence in the same context.22 The PCIJ and ICJ have generally used the terms "jurisdiction" and competence in English and French in the same context.23 Judge Daxner in his dissenting opinion in the Corfu Channel Case (Preliminary Objection) used the term 20
See, e.g., Article 39(6) of the ICJ statute which states that "In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court"; Article 2(3) of the UNAT statute—"In the event of a dispute as to whether the Tribunal has competence, the matter shall be settled by the decision of the Tribunal." See also Article 11(7) of the ILOAT statute and Article III of the WBAT statute. The statutes of the ILOAT and WBAT are reproduced in Amerasinghe (ed.), Documents on International Administrative Tribunals (1989) pp. 31 ff. and pp. 45 ff. The ICSID Convention states in Article 41(1) "The Tribunal shall be the judge of its own competence" (French—"Le Tribunal est juge de sa competence"; Spanish—"El Tribunal resolvera sobre su propia competencia"). 21 Tadic, ICTY: Judicial Reports 1994-1995 at p. 369. 22 Ibid, at p. 368. The ICTR used the same terms in English and French as the ICTY: Kanyabashi, ICTR Reports 1995-1997 pp. 238 (English), 239 (French). 23 See, e.g., Polish Upper Silesia Case (1925), PCIJ Series A No. 6 at p. 22; Prince von Pless Case (Preliminary Objection) (1933), PCIJ Series A/B No. 52 at p. 15; Nottebohm Case 1953 ICJ Reports at p. 119; Nicaragua Case (Merits), 1986 ICJ Reports at p. 23.
Usage and Applicability
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"competence" in the same connection to describe an aspect of the jurisdiction of the 1CJ.24 The Iran-US Claims Tribunal has consistently used the terms "jurisdiction" and "competence" in this context.25 Arbitrators in their decisions have used the terms "jurisdiction" and "competence" in English to describe the authority of tribunals to proceed to judge the case, while in French the term competence has been consistently used.26 The issue whether a tribunal should allow an intervention by a third party may also involve a question of "jurisdiction" or competence in regard to an aspect of a case insofar as it concerns the tribunal's authority to proceed judicially with that aspect. (iii) In regard to the ordering of provisional or interim measures, because such orders are generally made before the tribunal determines that it has jurisdiction to proceed judicially or proceeds to consider the merits of a case, the issue arises whether, particularly where an objection to its jurisdiction or competence has been raised, the tribunal has the authority to order provisional measures, considering that it has not taken a decision on its jurisdiction. Strictly speaking there is a need in these circumstances for the tribunal to decide whether it has the necessary jurisdiction to exercise powers in relation to provisional measures, a matter which is separate from the question whether it has jurisdiction to proceed to examine the case on the merits. The decided cases do not specifically refer to this exercise of 24
1948 ICJ Reports at p. 38. It appears that he was using the word as synonymous with "jurisdiction" and not as distinct from it. 25 See, e.g., the Petrolane Inc. Case (1991), 27 Iran-US CTR at pp. 70, 71. 26 There are several other cases extracted in Coussirat-Coustere and Eiseman, 1-3 Repertory of International Arbitral Jurisprudence (1989) in which the terms have been used. See, e.g., competent, competence, incompetence, etc. in French: particularly Central Rhodopia Forests (1931, Bulgaria v. Greece), 3 UNRIAA at p. 1403 (en faveur de la competence}; Interpretation of Article 79,§6(c), of the Peace Treaty (No. 196) (1955, France v. Italy), 13 UNRIAA at p. 431 (concerne la competence); Gold of the National Bank of Albania (1953, France, Italy, UK, USA), 12 UNRIAA at p. 35 (competence}; Cases of Dual Nationality (No. 22) (1954, Italy v. UK), 14 UNRIAA at p. 33 (competence); International Administrate KantoorN.Vc. Republique federale d'Allemagne (No. 160) (1967), 9 Entscheidungen und Gutachten at p. 258 (relatives a la competence). The terms used thus are sometimes said to describe the power to decide the merits of a case.
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Chapter 2. Meaning of jurisdiction
power as one in relation to "jurisdiction" or competence to order provisional measures but they do recognize in effect that this is a matter of special "jurisdiction" or competence. To the extent that tribunals refer to "a prime facie showing that it (the tribunal) has jurisdiction",27 there is a recognition that the issue is one of "jurisdiction" or competence which may be termed an "incidental jurisdiction". The latter term was used perhaps for the first time to describe the PCIJ's power to indicate provisional measures under its statute.28 (iv) Even if a tribunal has "jurisdiction" or competence to proceed judicially with a case, there may be circumstances in which it may be prevented from doing so, because the case is "irreceivable" or "inadmissible" (non recevable). Such irreceivability arises from defects which are different and are less fundamental than those which deprive a tribunal of "primary jurisdiction", so to speak. In the Interhandel Case29 the ICJ was faced with five preliminary objections. The first two, as the Court regarded them, were objections ratione temporis to its "jurisdiction" (competence} and were rejected. Another, regarded in the same way as an objection to jurisdiction based on considerations of domestic jurisdiction, was also rejected. Thus, upon the rejection of these three objections the Court had jurisdiction, provided no other objection to jurisdiction was upheld. Another objection to "jurisdiction" was not considered because of the Court's approach to the fifth objection. It found, upon examination of the fifth and last objection which was based on the rule of local remedies and which it described as an objection not to jurisdiction but "admissibility" (recevabilite), although framed by the respondent, the USA, as an objection to jurisdiction, that the objection was good and that the application of the claimant was "inadmissible" (irrecevable) not that it had no jurisdiction. In the Nottebohm Case (Second Phase) the ICJ took the view that "the real issue in the case was the admissibility (recevabilite) of the claim" in respect of Nottebohm and held 27
See, e.g., Nicaragua Case (Provisional Measures), 1984 ICJ Reports at p. 179; the Bendone-Devossi International Case (1984), 6 Iran-US CTR at p. 131. 28 See Hudson, The Permanent Court of International Justice 1922-1942 (1943) at p. 408. 29 1959 ICJ Reports at pp. 20 ff.
Usage and Applicability
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ultimately that the claim submitted by the claimant state was inadmissible (irrecevable), because Nottebohm could not be said to have properly had the nationality of the claimant state.30 The general practice has been to regard matters pertaining to inadmissibility as not being matters relating to jurisdiction or competence. However, as was seen with respect to the argument of the respondent state in the Interhandel Case,31 on very rare occasions such matters are characterized as going to jurisdiction.32 This is really erroneous, because, as will be seen in a later chapter, obstacles relating to jurisdiction have different properties in the context of the powers of tribunals and of the parties from obstacles to admissibility. The ICJ was correct in pointing out in the Interhandel Case that admissibility (recevabilite) should not be confused with absence of jurisdiction (competence). In the Mavrommatis Case (Preliminary Objections), however, the PCIJ said: "in particular it (the Court) need not consider whether "competence" and "jurisdiction", incompetence and fin de non recevoir should invariably and in every connection be regarded as synonymous expressions."33 While it is not necessary to define the terms "jurisdiction" or "competence" and "irreceivability" (fin de non recevoir), it is certainly useful and advisable to keep separate the notions of "competence" (jurisdiction) and "receivability" which have different properties. (v) There are two other areas of the process of adjudication in which tribunals have had to determine their powers or authority, namely in regard to remedies and revision or review of judgments. (a) In connection with the exercise of powers in regard to remedies rarely have the terms "jurisdiction" and "competence" 30
1955 ICJ Reports at pp. 16, 25. 1959 ICJ Reports at p. 26. 32 See Swiss Confederation v. FRG (No. 1) (1958), 25 ILR at p. 42, where the arbitral tribunal said that the object of the contention based on the local remedies rule was to prove that the tribunal "is not competent (competent) to deal with and to decide this case." The French text of the award is to be found in Entscheidungen und Gutachten (1958) pp. 7-52 at p. 18. 33 (1924), PCIJ Series A No. 2 at p. 10. The French "fin de non recevoif refers to an objection to admissibility. 31
64
Chapter 2. Meaning of jurisdiction been used in practice, whether in judgments of tribunals or in constituent instruments. Generally, if there has been a consideration of the authority to grant remedies or a particular remedy, the term "power" has been used.34 In fact, however, the heart of the question in regard to remedies granted by international tribunals relates to the "jurisdiction" to grant particular kinds of remedies or to the "jurisdiction" to grant remedies to the extent granted or requested. While the terms used may be unimportant in the particular context of remedies, it is necessary to keep in mind that these are issues as to jurisdiction or competence in connection with remedies, (b) In regard to review and revision of judgments the terminology used is also not consistent. "Jurisdiction" to review or revise in particular circumstances or for particular purposes is often referred to35 but generally the term "power" is used as frequently both in judgments and constituent instruments in this connection.36 The important point is that the power to review or revise whatever its content in given circumstances is really a jurisdictional power.
(vi) The conduct of judicial proceedings and determination of the substance (merits) of disputes by the application of law has generally not been associated with the terms "jurisdiction" or "competence". The exercise of powers in these areas have in general been regarded strictly and purely as the exercise of judicial power. These areas can, therefore, be legitimately excluded from the compass of the terms "jurisdiction" and "competence". PRIMARY CONNOTATION OF THE TERM The first area of concern is the authority of a tribunal to settle the dispute brought before it. When the term "jurisdiction" is used to 34 35 36
See discussion in Amerasinghe, 1 op. cit. note 5 (1994) pp. 444 ff. See Rosenne, 3 op. cit. note 3 pp. 1669 ff. See Amerasinghe, 1 op. cit. note 5 pp. 245 ff.
Primary Connotation of the Term
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cover this area, it is perhaps being used in its primary sense. There are five subordinate areas which this usage of the term covers.37 When a tribunal addresses matters of jurisdiction, it may have to decide (1) whether it has the authority to decide whether it has the authority to proceed to inquire into and settle the dispute by pronouncing on any aspect of it, i.e., la competence de la competence', (2) whether it has been properly and legally established; (3) whether there are certain fundamental deficiencies, express or inherent, in the submission of the dispute to it in the light of the constitutive instruments which prevent it from examining the case further at all with a view to settling the dispute or any part of it judicially, i.e., to decide whether it has competence or is incompetent (competence); (4) even if there are no fundamental deficiencies in the submission of the dispute, whether there are other obstacles to its proceeding judicially to settle the dispute which relate to the receivability or admissibility of the dispute (recevabilite)— the term "jurisdiction" is better not used in this context. (5) whether it may exercise the power to act in regard to important aspects of incidental jurisdiction. The rationale for making the distinction made above between (3) and (4) which is based on civil law notions and has been accepted in international law but is unfamiliar to common lawyers will emerge when those areas are examined.38 The five matters referred to above cover what may be called the primary connotation of the term "jurisdiction". However, certain other matters referred to as jurisdictional will be considered after 37
This analysis is not based on any theoretical preconceptions but on what happens in the practice of international tribunals. In that sense it is deductive. 38 La competence de la competence will be discussed in chapter 5 and the succeeding two chapters will address the questions of competence and recevabilite and the chapter after that the problem of competence in relation to incidental matters, such as interim measures and intervention.
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Chapter 2. Meaning of jurisdiction
these five have been discussed in order to complete the picture of tribunal powers. The choice and application of substantive and procedural rules in the settlement of the merits, particularly, will not be considered, because it is generally recognized that this area is not usually regarded as concerned with jurisdiction as such. OTHER AREAS EXAMINED In addition to the primary senses described above in which the term "jurisdiction" has been used and adopted here, there are other connotations which have been given the term, as already pointed out. In this study there are three other areas which will be examined which concern jurisdiction in a broad sense and which are important in the functioning of international tribunals. These three areas are (i) remedies; (ii) reopening judgments already given; and (iii) advisory opinions.
SEISIN AND ITS RELATIONSHIP TO JURISDICTION The ICJ has had occasion to draw a distinction between seisin of the Court which concerns the formal step by which the proceedings were instituted and its jurisdiction in any accepted sense.39 The validity of seisin depends on such factors as the procedural law of the Court as reflected in its statute and rules and may not depend on the consent of the parties, although the parties may agree on certain procedures and conditions which affect seisin. The sources of jurisdiction are different from the source of seisin. 39
On seisin of the court in relation to the ICJ see Weil, "Competence et saisine: un nouvel aspect du principe de la juridiction consensuelle", in Makarczyk (ed.), Theory of International Law at the Threshold of the Twenty First Century (1996) p. 833.
Seisin its relationship to jurisdiction
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A party to a dispute may initially have recourse to (i.e. seize) the Court, though the Court may not have jurisdiction in one or more senses and may later find that this is the case. Once the Court is seized of the dispute, whether validly or not, it has authority, first of all, to determine whether it has been validly seized. It is clear that this authority does not depend on its having "jurisdiction". Secondly, if it decides that it has been validly seized according to the relevant instruments, it may, nevertheless, determine that it does not have "jurisdiction" in one or more senses. Thirdly, it may be that the Court decides that it has not been validly seized of the case according to the rules governing seisin but that it would have "jurisdiction" to proceed with the case even to the extent of deciding the merits, if the question of jurisdiction were dealt with and decided.40 In this case the existence of valid jurisdiction is of no effect and irrelevant, as long as and because the Court has not been validly seized of the case.41 On the other hand, defects in seisin may be cured, because they are purely procedural. The appropriate action resulting in valid seisin would then activate the Court's jurisdiction to decide on its own jurisdiction and to exercise an appropriate incidental jurisdiction and would enable the Court to decide that it has primary jurisdiction, if such jurisdiction has been questioned. In the Nottebohm Case (Preliminary Objection), where the title to jurisdiction pertained to the compulsory jurisdiction of the Court under Article 36(2) of its statute, the Court said that "the filing of the Application is merely the condition required to enable the clause of compulsory jurisdiction to produce its effects in respect of the claim 40
The decision on seisin could conceivably be taken pursuant to Article 48 of the statute which enables pre-adjudicatory proceedings. This is a matter of discretion for the Court. Pre-adjudicatory proceedings under Article 48 were resorted to in the Request for Reexamination Case, 1995 ICJ Reports p. 288, which was the result of the judgment in the Nuclear Tests Case between New Zealand and France, 1974 ICJ Reports p. 457. 41 In the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at p. 47, the Court discussed the relationship of seisin to the principle of reciprocity basic to the compulsory jurisdiction of the Court under Article 36(2) of its statute.
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Chapter 2. Meaning of jurisdiction
advanced in the Application", and that "Once this condition has been satisfied, the Court must deal with the claim;..."42 These statements confirm the effect of valid seisin described above. Furthermore, in the Qatar and Bahrain Case (Jurisdiction and Admissibility} the Court described of what seisin consists and the relationship between it and jurisdiction as described above and referred to the fact that seisin may be unilateral, when it said: It is true that, as an act instituting proceedings, seisin is a procedural step independent of the basis of jurisdiction invoked and, as such, is governed by the Statute and the Rules of Court. However, the Court is unable to entertain a case so long as the relevant basis of jurisdiction has not been supplemented by the necessary act of seisin: from this point of view, the question whether the Court was validly seised appears to be a question of jurisdiction. There is no doubt that the Court's jurisdiction can only be established on the basis of the will of the Parties, as evidenced by the relevant texts. But in interpreting [the relevant texts], the Court has reached the conclusion that it allows a unilateral seisin. Once the Court has been validly seised, both Parties are bound by the procedural consequences which the Statute and the Rules make applicable to the method of seisin employed.43
It is to be noted that the Court said that valid seisin appears to be a question of jurisdiction and not that it was. In fact the two notions though connected are best kept separate. As far as is known, seisin has not arisen as a matter to be dealt with before arbitral tribunals or standing or other tribunals besides the ICJ. There is no reason why the same basic principles applicable to seisin and its relationship to jurisdiction that have been applied by the ICJ should not be applied by these tribunals.
42 43
1953 ICJ Reports at p. 123. 1995 ICJ Reports at p. 23.
3 CONSENT AS THE BASIS OF JURISDICTION OF INTERNATIONAL TRIBUNALS
THE REQUIREMENT In national systems the jurisdiction of tribunals is determined by enacted legislative instruments or the common law of the land. Agreement or consent of the parties to a dispute which is adjudicated is not the basis of the jurisdiction of the tribunal concerned. If agreement or consent is permitted to be the basis of jurisdiction of a tribunal, such as an arbitral tribunal, related to the legal system, it is because it is expressly and exceptionally permitted to be so by the law of the land. In any case such a tribunal is ultimately controlled in one way or another by a national tribunal whose jurisdiction is not based on consent of the parties to the dispute but on the legitimate law of the land. This is so whether the law of the land is based on an international treaty such as the New York Convention or on another source. Even a truly transnational arbitration which is based on consent has effectiveness and validity within a national legal system only because it is given such recognition by the law of the land whatever the source of that law and such an arbitration would
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Chapter 3. Consent as the basis of jurisdiction
generally be controlled even minimally by the courts of the national legal system whose jurisdiction would not be based on the consent of the parties. This is not the case with international tribunals. Their jurisdiction in contentious matters certainly, whether they are ad hoc tribunals, long standing ad hoc tribunals, such as the Iran-US Claims Tribunal or Claims Commissions, or established or standing courts, such as the ICJ or ITLOS, is based on the consent of states which are generally parties to the dispute, or have some connection through consent in some form with the establishment of the tribunal and the formulation of its jurisdiction, e.g., if one party to the dispute is not a regular international legal subject but is, for instance, an individual.1 This is the general principle. International arbitral tribunals have affirmed this principle consistently and constantly, in one way or another, from the very inception of modern arbitration under the Jay Treaty. In the Delimitation of the Continental Shelf Case between France and the UK a five judge tribunal of the ICJ stated quite categorically that "The Court necessarily derives its competence from the consent of both the Parties to the present arbitration."2 As a result the tribunal took the view that it was insufficient to establish the Court's competence that one party considered an area to be continental shelf subject to delimitation because the other party, not unreasonably, at the same time maintained that any delimitation of a boundary in that area would inevitably involve a delimitation of territorial sea. What had to be clear was that the parties had agreed under the compromis or arbitration agreement to the delimitation by determining basepoints in the given area, the jurisdiction given to the tribunal not being a general one to determine any base-points for the purpose of delimitation. Consequently, upon examining Article 2(1) of the compromis the tribunal held that it had no jurisdiction to delimit the seabed and subsoil boundary in a certain area. In the Young Plan Case a seven judge arbitral tribunal held that it had competence only to the extent contemplated and conferred upon 1 2
See, e.g., the ECHR, IACHR, ICTY, and ICTR. (1977), 18 UNRIAA at p. 24; French text, ibid, at p. 152.
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it by the London Debt Agreement by which the tribunal had been established. It said that not even a subsequent agreement between the parties could confer on the tribunal a jurisdiction which was not contemplated by the London Debt Agreement.3 In the Burton Marks and Harry Umann Case the Iran-US Claims Tribunal referred to the jurisdictional boundaries established by the parties (Iran and the USA) to the Claims Settlement Declaration of January 19, 1981 under which the tribunal was established as "absolute" and stated that the Declaration alone delimited that jurisdiction.4 In the Ambatielos Case (Merits) the ICJ referred to the principle "to the effect that a state may not be compelled to submit its disputes to arbitration without its consent,"5 in concluding that in the case before it the two parties had an obligation to submit their dispute to arbitration because there was agreement to do so between them in written instruments. 1C SID tribunals, which function under an institutionalized system (and the 1C SID Convention) have made it quite clear that consent is the basis of the jurisdiction of these tribunals. What is required for consent is discussed further below and in Chapter 15. Other arbitration systems such as those under UNCLOS and involving the PCA also are based on the consent of the parties. Arbitral decisions have been quite unequivocal. In connection with judicial settlement by arbitration it was said, inter alia, at the First Hague Peace Conference of 1899 in explaining the rationale for the basis of consent: A voluntary system of jurisprudence in origin as well as in jurisdiction, it agrees with the just demands of sovereignty, of which it is only an enlightened exercise. For, if there is no power superior to the States which can force a judge upon them, there is nothing to oppose their selection of an arbitrator by common agreement to settle their disputes, thus preferring a less imperfect means of securing justice to a method more problematical and more burdensome.6 3
(1980), 59 ILR at p. 524. (1985), 8 Iran-US CTR at pp. 296-7. 5 1953 ICJ Reports at p. 19. 6 Report by Baron Descamps: J.B. Scott, Reports to the Hague Conferences of 1899 and 1907 (1917) at p. 55. 4
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In the history of international adjudicatory dispute settlement arbitration came first. The result was that the general principle of consent which underlay arbitration died hard. The principle was accepted as the basis for adjudicatory settlement by established courts and even ad hoc tribunals other than arbitration tribunals, even though early, albeit tentative, attempts were made to use domestic judicial experience as a guide to the jurisdiction of such international courts.7 The PCIJ and ICJ have on more than one occasion adverted to the principle. The PCIJ as early as 1923, about 2 years after it was established, in the Eastern Carelia Opinion stated that: It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States... to arbitration, or to any other kind of pacific settlement.8
As a result of the principle the Court refused to give an advisory opinion, because the issue raised touched specifically on the rights of states, so that an opinion would have in effect solely decided a dispute between states—a contentious matter—,though the states in question had not consented to the exercise of the contentious jurisdiction of the Court under the relevant provisions of the statute of the Court by properly with an appropriate title of jurisdiction instituting contentious proceedings before the Court. In the Minority Schools Case the same Court said that "The Court's jurisdiction depends on the will of the Parties."9 In several cases the ICJ has had occasion to refer to the basic principle. As early as 1948 in its first judgment in the Corfu Channel Case (Preliminary Objection) the Court referred to the fact 7
See the Report of L. Bourgeois on the Draft of the Advisory Committee of Jurists for the Establishment of a Permanent Court of International Justice (1920), in Societe des Nations, Cour Permanente de Justice Internationale (1920) at p. 23. 8 (1923), PCIJ Series B No. 5 at p. 27. 9 (1928), PCIJ Series A No. 15 at p. 22. See also the Mavrommatis Case (1924), PCIJ Series A No. 2 at p. 16, where the PCIJ referred to the consent of the respondent as an essential requirement for its jurisdiction.
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that it was the consent of the parties that conferred jurisdiction on it.10 The Court interpreted the various instruments, considering an UNSC recommendation as relevant, and found that the jurisdiction of the Court was accepted by both parties pursuant to Article 36(1) of its statute which specifies an agreement between the parties as a title to jurisdiction, even though the acceptance by the parties was by two separate and successive acts, instead of jointly and beforehand by a formal agreement.11 In 1952 in the Anglo-Iranian Oil Co. Case the Court stated that Article 36 of the statute dealing with the Court's jurisdiction was "based on the principle that the jurisdiction of the Court to deal with and decide on a case on the merits depends on the will of the parties".12 The Court found that neither the claim that it had compulsory jurisdiction under Article 36(2) was well founded, because the respondent, Iran, had at no stage entered into an agreement with the UK, the claimant, covered by its Declaration under that Article and after it had made that Declaration as required by the Declaration, giving the Court jurisdiction over the particular dispute submitted to the Court by the UK, nor had Iran by its subsequent conduct agreed to the assumption of jurisdiction by the Court over the dispute (forum prorogatum). In the East Timor Case more recently the Court referred to one of the fundamental principles of its statute that "it cannot decide a dispute between States without the consent of those States to its jurisdiction".13 10
1948 ICJ Reports at p. 27. Ibid, at p. 28. 12 1952 ICJ Reports at p. 103. 13 1955 ICJ Reports at p. 101. See also the Phosphate Lands in Nauru Case, 1990 ICJ Reports at p. 260; Application for Revision and Interpretation Case, 1985 ICJ Reports at p. 216; the Reparation Opinion, 1949 ICJ Reports at p. 178; the Peace Treaties Opinion, 1950 ICJ Reports at p. 71. Most recently the principle of consent was referred to in a general way by the ICJ in the ten Legality of Use of Force Cases (Provisional Measures) 1999 ICJ Reports at pp. 140, 273, 374, 432, 492, 557, 671, 773, 839, 925. The Court stated in each case: "Whereas there is a fundamental distinction between the question of acceptance by a state of the Court's jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction...". 11
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In two cases concerned with intervention of third states the Court referred to the general principle on which the jurisdiction of the Court was based.14 In the Land, Island and Maritime Frontier Dispute Case (Application to Intervene), the Court said that it would consider the general principle of consensual jurisdiction in relation to the institution of intervention and asserted that there "could be no doubt of the importance of this general principle, upon which the State seeking to intervene has itself,..., laid considerable emphasis".15 The Court held that the requirement of consent on the part of the intervenor and the two parties to the dispute was satisfied by the signature of the statute of the Court by all three, the consent being to intervention in accordance with the terms of the statute dealing with intervention. So fundamental is the consensual basis of the jurisdiction of international tribunals that the ICJ has held in the Monetary Gold Case16 that where the real subject matter of the dispute involves the rights or legal position of a state which is not a party to the proceedings, the principle applicable is that jurisdiction cannot be exercised, even though the parties before it have consented to its jurisdiction in the case. There the issue in the case was whether it was Italy or the UK that had better claim to some gold. While they were parties to the proceedings, it was revealed that Albania had a claim to the gold. Albania was not a party to the proceedings. The Court said that the dispute could not be decided without the consent of Albania because deciding the case would be deciding on the international responsibility of Albania.17 In the Anglo-Iranian Oil Co. Case Judge Alvarez in a dissenting opinion proposed a revolutionary view of the jurisdiction of the ICJ as the principal judicial organ of the UN. Referring to various provisions of the UN Charter he proposed the theory that under the Charter regime, whether a state was a member of the UN or not, 14
The Libya/Malta Case, 1984 ICJ Reports at p. 22; Land, Island, Maritime Frontier Dispute Case (Application to Intervene), 1990 ICJ Reports at p. 133. 15 Ibid. 16 1954 ICJ Reports p. 19. 17 The ramifications of this principle are discussed in Chapter 7 in the context of the competence of international tribunals.
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because there was a universal obligation to settle disputes peacefully and the ICJ was the principle judicial organ of the UN, all states were per se under an obligation to submit their disputes to the ICJ which therefore had a universal jurisdiction.18 The theory was confined to the jurisdiction of the ICJ and was clearly not based on the consent of states to the regime of the UN Charter, because it embraced states that were not members of the UN. It also ignored the specific and express requirements of Article 36(1) and (2) of the statute of the ICJ. The theory has been accepted neither by the Court nor international juristic opinion in general. In the case of another standing court, the ITLOS, it has been understood that the jurisdiction of the court is governed by the provisions relating to jurisdiction in the governing instruments of the court to which the parties to the governing instruments had consented by accepting those instruments. The parties to disputes before ITLOS are always parties to the governing instruments. In the Saiga Case,19 the first case to be instituted before the ITLOS, the tribunal considered whether it had jurisdiction under Article 292 of the UNCLOS to which both parties to the dispute before it, Saint Vincent and the Grenadines and Guinea, were contracting parties. The assumption was that there was consent to Article 292, the source of jurisdiction, and the question was how what had been consented to was to be applied. As regards the ECHR, the IACHR and the CJEC where the disputes between states are brought by states before these courts, their jurisdiction is based on the consent to their jurisdiction of the disputant states arising from the fact that they have become parties to the international conventions creating, and giving jurisdiction over them to, these courts. The consent lies in the acceptance of the jurisdiction of these courts by the states parties to the constitutive treaties. There has been no dispute before these courts as to this basis for their jurisdiction nor have they had occasion to pronounce on it. But the position is clear. Where states are not parties or the sole parties before these courts, as can occur, the explanation for 18 19
1952 ICJ Reports at pp. 130 ff. (1998), 37 ILM (1998) at pp. 368-9.
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jurisdictional authority is a bit more complicated. This will be discussed below. The jurisdiction of lATs may also be traced to consent, although lATs themselves have not addressed this issue. Insofar as the organizations enact the statutes of these tribunals and the instruments determining their jurisdiction, they certainly consent to the jurisdiction of the tribunals. There can be no better source of consent than being responsible for the formulation of jurisdictional provisions and putting them in place, even if there is consultation with others before this is done. As for the staff members or individuals who are plaintiffs in the cases that come before lATs their consent would clearly be given at least when they invoke the jurisdiction of the tribunals by filing applications, if not before. The jurisdiction that is applicable and to which they consent can be no other than what is reflected in the jurisdictional instruments of which they are or should be aware. They in fact consent before filing applications. To the extent that at the time a staff member becomes a staff member of the organization he is deemed to accept the legislative authority and power of the organization in respect of his relationship with the organization as a staff member, he accepts both the legal regime prevalent at the time he joins the staff of the organization and any changes to it that may be made subsequently. In some organizations this is an explicit contractual condition of becoming a staff member. But even if the condition is not explicit, it would certainly be an important implied term of the staff member's appointment, whether the relationship between the staff member and the organization is based on contract or status.20 Where the concept of the persons who may have access to the tribunal covers a wider range than staff members proper, while certainly invoking the tribunal's jurisdiction would be sufficient consent to the established jurisdictional authority of the tribunal, it may be argued that such persons consent to the tribunal's jurisdiction 20
For a discussion of status and contract as the basis of staff relations with organizations and the employment relationship, see Amerasinghe, 1 The Law of the International Civil Service (1994) pp. 82 ff.
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insofar as it exists at the time they enter into a relationship with the organization, on the assumption that the tribunal's authority is brought to their attention. That there is always a relationship into which such persons enter cannot be doubted because the jurisdiction of lATs is basically contractual, though sometimes an accepted status implying a general consent may be the source of the consent. REQUIREMENTS FOR EFFECTIVE CONSENT (a) Consent in More than One Step Generally a single consent by the parties to the proceedings is sufficient effectively to invoke the jurisdiction of international tribunals. However, there are circumstances in which the constitutive instruments of the tribunal require, for example, a two-step consent. Two examples of this are adverted to here. In the case of the ICJ the states parties to the dispute must, first, have become parties to the statute of the ICJ by either becoming a member of the UN or by accepting the statute itself, if it is not a member of the UN, and, secondly, have accepted the Court's jurisdiction pursuant to Article 36(1) or (2).21 Judge Daxner in a dissenting opinion in the Corfu Channel Case (Preliminary Objection) adverted to the duality necessary for the incidence of the jurisdiction of the Court: First, I must point out that it is necessary to make a clear difference between two notions: 1. Ability to appear before the Court; 2. Competence of the Court. Ability to appear before the Court depends on the fulfillment of two conditions: (a) only States (Article 34(1) of the Statute) and not other juridical nor physical persons may appear before the court;(Z?) such States must be parties to the Statute, i.e., must accept the jurisdiction of the Court... 21
The position with the PCIJ was similar.
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Chapter 3. Consent as the basis of jurisdiction In my opinion, the word 'jurisdiction' has two fundamental meanings in international law. This word is used: (1) to recognize the Court as an organ instituted for the purposey'ws dicere and in order to acquire the ability to appear before it; (2) to determine the competence of the court, i.e., to invest the court with the right to solve concrete cases. In the first meaning, the word jurisdiction has been used in the Protocol of Signature of December 16th, 1920. By this Protocol, the States accepted 'the jurisdiction of the Court', but nobody has ever been of the opinion that this should be construed as acceptance of the compulsory jurisdiction of the Court for a concrete case. With the same meaning, the word jurisdiction has been used in the Resolution of the council of the League of Nations of May 17th, 1922, as well as in the Resolution of the Security Council of October 15th, 1946. According to these resolutions, the acceptance of the jurisdiction of the Court is a preliminary condition to be able to appear before the Court. By this act (declaration), the competence of the Court is not of course yet established. The condition for the establishment of the competence of the Court is a special agreement (compromis) or the acceptance of the compulsory jurisdiction in treaties or conventions (Article 36(1) and 36(2) of the Statute).22
Judge Daxner in practical terms gives a fair description of the factual position. In fact, while he makes the point that only states may be parties in contentious cases before the court as a separate issue, it is really partially relevant to the first consensual step in the precipitation of the Court's jurisdiction. The first step is that states, which are the only international subjects that may do so, because, among other things, only they can appear before the Court but also, and more potently, because only states can in whatever way accept the statute, must in one of those ways have accepted to be bound by and become parties to the statute. The second consensual step is the acceptance of the jurisdiction of the Court under Article 36(1) or (2). Much has been made of Judge Daxner's explanation and characterizations by some text-writers. Judge Daxner used the terms 22
1947 ICJ Reports at pp. 38-40.
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"jurisdiction" and "competence" in connection with the identification of these two steps and, indeed, text-writers have followed suit.23 The latter have also characterized the distinction in terms of "generality" and "particularity". To do Judge Daxner justice, while he did use the terms "jurisdiction" and "competence" and limited the latter term to the scope of the second step in giving the Court jurisdiction, he also used the term "jurisdiction" in connection with each of these steps.24 He also refers to "concrete" cases in regard to the second step thus probably prompting the distinction made by text-writers. There are some difficulties with this approach. While it is correct to state that the first step has a certain generality and the second step has some bearing on whether the concrete case before the Court has been covered, as was pointed out by Judge Daxner, the real point is that the second step is a necessary condition for jurisdiction whether it is ultimately framed in particular terms or general terms. What is significant is that the second step could have a "general" bearing rather than a "particular" one, even though what the Court tries to ascertain is whether the concrete case has been included in the second step (with a possible variety of ramifications). The second step would be "general", if it purports simply to submit all a state's disputes to the jurisdiction of the Court. There certainly would not be any "particularity" in this kind of acceptance of the Court's jurisdiction, which is perfectly a possible option. The relevance of the concrete case before the Court in the context of the second step, however, cannot be gainsaid. On the other hand, it is unnecessary and confusing to describe the procedures in terms of generality and particularity. What matters is that the second step has been completed as required by Article 36. It is simply a second step, though highly important, and purports to ensure that states intend to submit to the Court the disputes which are covered by the 23
See, e.g., Fitzmaurice, "The Law and Procedure of the International Court of Justice: International Organizations and Tribunals", 29 BYIL (1952) at pp. 40 ff.; Heiskanen, "Jurisdiction v. Competence: Revisiting a Frequently Neglected Distinction", 5 FYBIL (1994) at pp. 1 ff.; Rosenne, 2 The Law and Practice of the International Court 1920-1996 (1997) pp. 543. 24 1947 ICJ Reports at p. 39.
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second step. In short, the first step does not by itself complete the submission—there must be a second step which may be "general" or "particular" in its content. In the same connection the distinction between jurisdiction and competence which was made apparently by Judge Daxner and has been made by text-writers in this context is not only unnecessary but inaccurate. The two-step procedure as a whole alone generates jurisdiction which may be described as competence and which would certainly be described as competence in French, as opposed to recevabilite particularly. To state that the first step generates jurisdiction and the second competence has no significant meaning. Both steps are necessary for jurisdiction (or competence). One without the other generates nothing. If the second step is completed without the first, can it be said that the Court has competence but no jurisdiction? The second step generates nothing, unless the first has been completed. Similarly it is inaccurate and misleading to characterize the first step as creating jurisdiction as such. If it does create jurisdiction, to do what is the jurisdiction? Jurisdiction means to "pronounce the law" (ius dicere) but the Court does not have the power to do anything by virtue of the first step, let alone "pronounce the law" on anything. What the first step does is to create an inchoate jurisdiction (or competence) which is brought to fruition by completion of the second step. The point being made is that the two steps are an integral part of a single procedure for creating jurisdiction (or competence). It just happens that two steps are necessary in the case of the ICJ. It is unnecessary and inaccurate to give the two steps two separate essences when they are essentially aspects of the same concept. One without the other is not effective and has no significance by itself for the purpose of generating the Court's activity, whichever comes first, but is correctly to be considered part of a larger integral whole. They are aspects of a single jurisdiction-related (or competence-related) procedure. It is important to recognize the unity in essence of the two step procedure rather than to dissolve the significance of the unity by giving separate characterizations to the two steps which lead only to confusion and inaccuracy. It does not make sense to give two different names to what are in fact only two separate but indispensable steps in a unified procedure
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and the run the risk of obfuscation by a misleading diagnosis, particularly when the two steps have no significance, each by itself, for the activity of the Court but are only meaningful for such activity when taken together with the result that they have a single impact. To say that the first step creates "jurisdiction" as such in the court has no significance for the activity of the Court. It is only when the second step is added to the first step that the first step matures, so to speak, and creates a situation which affects the activity of the Court. The activity in terms of what is called "jurisdiction" in this context by text-writers can be precipitated only once—after the second step has been taken (assuming that the first has already been taken) and the whole procedure completed. The truth is that neither step by itself creates "jurisdiction" or anything like it but both together generate jurisdiction or competence (competence). It may be noted that Article 35(1) from which comes the requirement of the first step states that "The Court shall be open (ouverte) to the States parties to the present Statute." There is no reference here to "jurisdiction" or "competence" which in fact is to be generated by the second step taken under Article 36(1) and (2), where the term used is "jurisdiction" or "competence'", after the first step is completed. Indeed, to use terms such as "jurisdiction" in connection with the first step alone is strictly also an abuse of language. With the oneness of the two step procedure and its impact may be contrasted the distinction between competence, or jurisdiction (competence} and admissibility or receivability (recevabilite). The two-step jurisdiction-related procedure has a single impact on the Court's activity. Matters of competence have a separate impact on the Court's activity from matters of receivability. At the relevant stage of the proceedings the Court's activity is separately motivated. The second example of a two step procedure makes the point made above even better. In the case of arbitration under the ICSID Convention, as will be seen in Chapter 14, there are two requirements for consent to be made effective. First, as expressed in Article 25(1), the state party to the arbitration and the state whose national is a party to the dispute must be parties to the ICSID Convention. They must have given their consent to the tribunal exercising jurisdiction by this act but their act does not by itself create jurisdiction in any
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tribunal. It is no more than inchoate jurisdiction. It is significant that the Convention does not describe this consent as creating jurisdiction, just as the ICJ statute does not describe the first step taken by the states parties to a dispute as creating jurisdiction. Article 25(1) of the ICSID Convention then requires a second step by which consent to the jurisdiction of an ICSID tribunal is given by the parties to the dispute. It is true that one of the parties in this instance is not the same as one of the parties that acted in the context of the first step. But this is of no consequence. The second step taken together with the first creates jurisdiction in the tribunal. Indeed, the second step may be taken in time before the first.25 This does not affect its effectiveness when the first step is taken. The point is that it is only by the combination of the two steps that jurisdiction in the ICSID tribunal can be created. It is significant, perhaps, that Article 25(1) of the ICSID Convention describes the "jurisdiction" (competence in the French text) of the Centre as extending to any dispute in respect of which the two steps referred to above have been completed. It does not refer to "jurisdiction" being created by the first step and "competence" being created by the second. The Convention envisages the existence of jurisdiction (competence) only after both steps are on the record books, in whichever order they may take place. In the case of the ICSID Convention the two steps do not involve the same parties at each step unlike the situation under the ICJ statute. (b) Form of Consent There may be specific requirements as to form of consent in the governing instruments of tribunals or courts, or there may not. For example, in the ICSID Convention Article 25(1) states that the consent between the state party to the dispute and the national of the other state should be in writing. This is the only specific requirement relating to consent which leaves open a considerable number 25
See below Chapter 14 and Amerasinghe, "Submissions to the Jurisdiction of the International Centre for Settlement of Investment Disputes," 5 Journal of Maritime Law and Commerce (1974) at p. 213.
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of options to the parties concerned in regard to the manifestation of their mutual consent.26 In the absence of specific requirements, parties clearly have considerable freedom in manifesting consent to the submission of a dispute to the tribunal concerned. In the case of international arbitrations the question of the form of consent has not exercised tribunals, because the practice is for the states parties to have an arbitration agreement or compromis which is written and expresses the consent of the parties to the arbitration. There have been no arbitration cases in which the issue of form has created a problem. As the ICJ said in relation both to arbitration (and other judicial settlement), there was "no rule of international law which might preclude a joint communique from constituting an international agreement to submit to arbitration... "27 This was a comment on whether a particular form was required for a consent to arbitration, a joint communique being in issue in the case. In the case of standing or established tribunals, such as the ECHR, the CJEC and ITLOS, the question of form does not arise because consent to jurisdiction is given by signature and acceptance of a written treaty. In the case of an ad hoc war crimes tribunal like the ICTY the statute of the tribunal which is subject to derivative consent, as will be seen, and is part of an UNSC resolution is in written form and has not raised problems. The original consent by states is in the Charter of the UN, a written document, and what is consented to after the UNSC has acted takes the form of a written Council resolution. In the case of lATs, while there are no set requirements of form, the consent of the organization is given when the legislative organ 26
See below Chapter 14 pp. 631 ff., and Amerasinghe "Model Clauses for Settlement of Foreign Investment Disputes", 28 The Arbitration Journal (1973) at p. 236. 27 1978 ICJ Reports at p. 39. See also the Qatar and Bahrain Case (Jurisdiction and Admissibility), 1994 ICJ Reports at pp. 120-1, inter alia, citing the above case. In the Land and Maritime Boundary between Cameroon and Nigeria Case (Preliminary Objections), 1998 ICJ Reports at pp. 290 ff, the ICJ discussed the manner of filing declarations under Article 36(2) of the Court's statute which is slightly different from the form in which consent is given.
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promulgates the statute by resolution or the equivalent and the consent is to the statute, a written document, while the consent to the statute of the staff member is given beforehand when the staff member becomes a member of the staff insofar as he consents to the legislative acts of the organization governing staff relations. The consent is an implied one based on a prior act which is in writing. Certainly when the staff member invokes the jurisdiction of the tribunal by filing an application in writing which most tribunals require he consents to the tribunal's jurisdiction. The statute of the ICJ gives in Article 36(2), (3) and (4) some indication of the form declarations made pursuant to Article 36(2) should take.28 Clearly the requirement that they must be deposited with the UNSG implies that they must be in writing. It is possible that recorded verbal messages, for instance, could be deposited but it is unlikely that this interpretation would be permitted except perhaps exceptionally! The other express statements in those provisions permit a certain latitude. The acceptance of the Court's jurisdiction under Article 36(1) may be in any form which enables the Court to determine the existence of mutual consent to the exercise of its competence, insofar as the provision states that the Court has competence over "all cases which the parties refer to it", in addition to "all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force". As was stated by the Court in the Corfu Channel Case (Preliminary Objection}'. "While the consent of the parties confers jurisdiction on the Court, neither the Statutes nor the Rules require that this consent should be expressed in any particular form".29 The PCIJ earlier had made a concurring statement in the Minority Schools Case in regard to provisions in its statute which were similar.30 28
The provisions of Article 36 are dealt with in Chapter 13 from the point of view of their implementation. 29 1948 ICJ Reports at p. 27. 30 "The acceptance by a State of the Court's jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement." (1928) PCIJ Series A No. 15 at p. 23. In the Aegean Sea Continental Shelf Case, 1978 ICJ Reports
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Clearly, because the consent is part of an international agreement ultimately it must satisfy the legal requirements, e.g., relating to capacity, for such an agreement. Modern diplomacy has developed a variety of methods of concluding agreements and expressing consent.31 Any of these must suffice as far as the Court is concerned. While the usual method derived from arbitral practice is to have a special formal agreement dealing with jurisdiction, such as a compromis this is certainly not the only method used. Whatever the form used, it is always a question for the Court to determine whether in the circumstances of the particular case there was a valid consent to its jurisdiction and the scope of that consent. As the Court has said in regard to a communique, it is not the form that matters but whether the document constitutes an agreement, which "depends on the nature of the act or transaction to which the Communique gives expression".32 The conclusion is that where a specific form is not indicated, the consent required may be given in any form which evidences consent on the part of the entity concerned to submit to the jurisdiction of the tribunal or accepting the relevant jurisdictional prescriptions of the tribunal. For example, in the modern context, it is conceivable that consent to arbitration of a dispute may not be in writing but be recorded on a recording machine. What is relevant is to establish that the consent is validly given and obviously is mutual and is to the same content of jurisdictional provisions. at p. 39, the Court said: "On the question of form, the Court need only observe that it knows no rule of international law that might preclude a joint communique from constituting an international agreement to submit a dispute to arbitration or judicial settlement..." See also the Qatar and Bahrain Case (Jurisdiction and Admissibility), 1994 ICJ Reports at pp. 120-1. 31 The Vienna Treaty Convention in Article 3 (taken with Article 2) makes it quite clear that international agreements may be in forms other than the written form. 32 The Aegean Sea Continental Shelf Case, 1978 ICJ Reports at p. 39. This case also demonstrates that the limits of consent generally emerge from the agreement, whatever form it takes, and that then interpretation becomes important. On the aspect of limitations in this case see Robol, "Jurisdiction. Limits of Consent. The Aegean Sea Continental Shelf Case" 18 Harv. ILJ (1977) p. 349.
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(c) Consent by Subsequent Conduct or by Subsequent Agreement Where consent has not been given, generally by only one of the parties, to the jurisdiction of the tribunal before the proceedings are begun, the question arises whether the consent may be given after the proceedings have begun, e.g., by conduct (forum prorogatum). In regard to arbitration it has explicitly been stated that arbitral tribunals do not recognize the principle of'forum prorogatum as applicable to their jurisdiction.33 In the Young Case the tribunal stated that "Not even an explicit agreement by the parties could confer on the Tribunal a jurisdiction that is not contemplated by the LDA (London Debt Agreement)... ,"34 Later in the Burton Marks and Harry Umann Case the Iran-US Claims Tribunal, in dealing with the argument that the respondent in the case, Iran, had by its subsequent conduct waived the jurisdictional boundaries established by the compromis, the tribunal said that "These jurisdictional boundaries established by the Covenants of the United States of America and the Islamic Republic of Iran in adhering to the Claims Settlement Declaration, are absolute and cannot be waived or modified unilaterally by an arbitrating party or parties."35 These tribunals clearly applied the principle that no subsequent agreement, formal or otherwise, or conduct, such as explicit waiver or failure to raise an objection could give an arbitral tribunal a jurisdiction which had not been established in the agreement concluded before the institution of proceedings by the parties to submit the dispute to arbitration. That rule seems to be unequivocally accepted. It would apply even in the case of ICSID arbitrations which are institutionalized. In any event the intent of Article 25(1) of the ICSID Convention which requires consent in writing to submit to the jurisdiction of ICSID and other provisions would seem to preclude any consent being perfected after the proceedings before the ICSID tribunal have been instituted. 33
The Horst Purfurst Case, Arbitral Commission on Property, Rights and Interests in Germany, (1958), 1 Entscheidungen at p. 142. 34 (1980), 59 ILR at p. 524. 35 (1985), 8 Iran-US CTR at p. 297.
Requirements for effective consent
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In fact, arbitral tribunals have on several occasions used the principle to recognize their duty to raise jurisdictional questions proprio motu at any stage of the proceedings. Arbitral tribunals have said on more than one occasion that it is their responsibility to determine, ex officio or proprio motu, their competence to act.36 Most established or standing tribunals have one step jurisdictional provisions. Neither has the issue of consent by conduct after the institution of proceedings been raised in those cases nor have tribunals dealt with the matter. It is unlikely that such tribunals would recognize that subsequent conduct could give rise to consent to jurisdiction. The situation is the same as for arbitral tribunals. Another relevant factor for not permitting subsequent conduct to affect the jurisdiction of the tribunal in these instances is that the jurisdiction of the tribunal is established by a statutory instrument which in most cases purports to be unchangeable except by agreement of all the parties to that instrument. In some cases, such as lATs or the ICTY, the statute is a legislative act which naturally can only be varied by a similar legislative act. On the other hand, in the case of the World Court, the issue has been discussed and the view has been taken by the Court that conduct subsequent to the institution of proceedings could give rise to consent to jurisdiction. This principle known as forum prorogatum will be discussed in Chapter 13, in connection with the competence of the ICJ. The practice of the ICJ is exceptional. The reason that it is possible to admit the principle in the case of the PCIJ and ICJ is that jurisdiction is a two step procedure and the provisions of Article 36 which deal with the second step connected with jurisdiction make it possible for the principle to be admitted in connection with the second step in the acceptance of jurisdiction. It has never been argued before the court or elsewhere that, for instance, it would be admitted in connection with the first step—the signature of the statute. The principle may be accepted in connection with the second step, inter alia, because the second step concerns the specific parties to the dispute unlike the first step which is participation in a multilateral instrument. 36
See cases cited in footnotes 34 and 35.
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In this connection the distinction between competence (competence) and admissibility (recevabilite) is very relevant. Where subsequent conduct cannot be recognized as giving rise to consent it is only in connection with competence that this applies. Matters of inadmissibility, as will be seen in Chapter 8, are generally subject to waiver arising from conduct after the institution of proceedings which results in consent being given to the proceedings going forward, whether the tribunal is an arbitral tribunal or standing tribunal or court. As already seen, in the three arbitration cases discussed above the view was taken that not even a subsequent agreement, whether formal or not, between parties, made after the institution of proceedings could alter the jurisdictional authority of the arbitral tribunal given to it under the jurisdictional agreement applicable to it. In the case of standing courts which have statutes governing their jurisdiction the situation would be the same, partly because in most cases the subsequent agreement between the parties cannot affect the content of an instrument established among several parties of which the parties before the tribunal are only two. But the arbitration principle seems to be a firm one applicable generally. In the case of lATs, for instance, where the statutes are established by international organizations, there is no reason why the same principle could not apply as in arbitrations. Even though the parties to disputes are the organizations and staff members of the organization and an agreement between them would be an agreement to which the organization which had created the statute was a party, the fact that the statute, through a legislative act of the organization, established the jurisdiction of the IAT results in the statute being unchangeable except through a further legislative act. This position was acknowledged in the case of Morgan (1992)37 where the WBAT, because the dispute was outside its jurisdiction ratione personae, indicated that, even though both parties were agreeable to have the dispute submitted to the tribunal, the tribunal could not under the WBAT statute decide the case as the WBAT. Consequently, the parties agreed to submit the dispute for settlement to an ad hoc tribunal composed of 37
Unpublished.
Derivative or indirect consent
89
the same seven judges that formed the bench of the WBAT without all the provisions of the statute, as such, being applicable. The dispute was submitted to the ad hoc tribunal by a separate agreement between the parties. DERIVATIVE OR INDIRECT CONSENT Consent may be given to the establishment of a tribunal and to its jurisdiction indirectly or derivatively. This is a new concept in the identification of consent. The consent given by the two states concerned, namely Yugoslavia and Rwanda, to the creation of the ICTY and the ICTR respectively illustrates this kind of consent. The two tribunals were established by resolutions of the UNSC38 acting under Chapter VII of the Charter which gives the UNSC power to make resolutions which are decisions binding on the member states of the UN (see Article 25). Yugoslavia and Rwanda did not expressly and directly agree to the establishment of the tribunals or their jurisdiction over their nationals or their territories in connection with crimes against humanity, war crimes and the like. The decisions were imposed on them by virtue of the UNSC's powers under the UN Charter. Their consent to the establishment and jurisdiction of the tribunals, if it was required, was, however, indirectly or derivatively given, because by signing the Charter and becoming members of the UN they agreed to the UNSC taking decisions under Chapter VII that were binding on them. Their consent given at that point to such possible actions of the UNSC must, therefore, be construed to include consent to the establishment and jurisdiction of the tribunals pursuant to the powers vested in the UNSC by Chapter VII of the Charter, on the assumption that the UNSC was acting intra vires39 It would not have mattered that Yugoslavia and Rwanda individually 38
SCRs. 827 of 25 May 1993 (Yugoslavia) and SCRs. 995 of 8 November 1994 (Rwanda). The resolutions are to be found in 32 ILM (1993) p. 1203 and 33 ILM (1994) p. 1602 respectively. 39 The question of vires is discussed in Chapter 6.
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opposed or voted against the resolutions. Their irrevocable consent given at the time of signing the UN Charter was to binding decisions taken by the UNSC, irrespective of their particular agreement.40 The consent thus given by Yugoslavia and Rwanda was to the exercise of jurisdiction over their nationals and persons who had committed war crimes and the like in their territory. The question of consent in relation to international criminal tribunals of this kind and the position of individuals in respect of such consent is discussed below. INTERNATIONAL WAR CRIMES TRIBUNALS AND CONSENT Apart from the question whether individuals or legal persons in national legal systems need to consent to the jurisdiction of international tribunals in circumstances in which such tribunals have jurisdiction over them according to their jurisdictional instruments, there remains the question whether the consent of states is required to international war crimes tribunals exercising jurisdiction over their nationals or war crimes committed in their territory. In the case of the Nuremberg International War Crimes Tribunal and the Tokyo International War Crimes Tribunal established by the Allies after the second world war, no question of consent by Germany and Japan was raised. The Nuremberg Tribunal itself commenting on the charter that established the tribunal stated: The making of the charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally 40
There has been a good deal written on these tribunals but the matter of consent has not been properly discussed, if broached at all. See, e.g., O'Brien, "The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia" 87 AJIL (1993) p. 639, Szasz, "The Proposed War Crimes Tribunal for Yugoslavia", 25 NYUJIL p. 405, Morris and Scharf, An Insiders Guide to the International Criminal Tribunal for the Former Yugoslavia (1995), 2 volumes, particularly pp. 17-48 on the questions of establishment and jurisdiction, Meron, "International Criminalization of Internal Atrocities", 89 AJIL (1995) p. 554, Lee, "The Rwanda Tribunal", 9 LJIL (1996) p. 37, Alchavan, "The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment", 90 AJIL (1996) p. 501.
International war crimes tribunals and consent
91
surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal... it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law. The Signatory Powers created this Tribunal, defined the law it was to administer, and made regulations for the proper conduct of the trial. In doing so, they have done together what any one of them might have done singly; for it is not to be doubted that any nation has the right thus to set up special courts to administer law. With regard to the constitution of the court, all that the defendants are entitled to ask is to receive a fair trial on the facts and law.41
The premise on which the tribunal's establishment and jurisdiction was based was the legislative power of the allied powers over the occupied territories deriving from the unconditional surrender of the defeated state. The consent of the conquered state would be irrelevant in this regard on the premise established, unless the argument was made that, insofar as there was an unconditional surrender, this implies consent to the occupation of and exercise of legislative power over the territories of the conquered state, an argument that deserves respect. The same reasoning would apply to the Tokyo International Tribunal. It would appear that even in these two cases which were cases of jurisdiction of an international tribunal in respect of defeated states that had surrendered unconditionally the acceptance of jurisdiction could be traced to consent. But a more significant question is whether these tribunals were truly international tribunals, in spite of their titles, because they were established in the exercise of the power of the victor states to legislate for the defeated state. It is true that the legislative power flowed from international norms relating to war and not from German or Japanese constitutional law but it is arguable that the tribunals were, nevertheless, an exercise of internal power within the defeated states. Nevertheless, the tribunals 41
Nuremberg Judgment (1949) at p. 48.
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were established under special powers attributed by international law and at the utmost the tribunals may be considered international of a sui generis nature deriving from the international laws of war.42 In the case of the ICTY and the ICTR there was no surrender to a victorious enemy on the part of Yugoslavia or Rwanda. The tribunals were established by the UNSC after the termination of hostilities but without specific agreement to their establishment by the two states concerned. There was no question of exercise of legislative power by victorious states over defeated states. The UNSC acted in the exercise of its authority to maintain international peace and security under the UN Charter. In these circumstances the argument is cogent that the consent of the states in respect of whom the international tribunals had jurisdiction (ratione personae, ratione loci, etc.) was required. The consent was a derivative one, as already seen, but it is a consent that needed to be given. A corollary would be that it would be inadequate for some states, or, e.g., a majority of the international community acting on its own without a binding decision of the UNSC to establish an international tribunal to try war crimes and similar criminal cases, if the states concerned in respect of whom jurisdiction was being assumed did not consent to the jurisdiction of that tribunal. This does not prejudice the authority recognized by international law of national courts to try war crimes and similar criminal cases pursuant to the accepted principles relating to criminal jurisdiction of international law.43
42
The Commission of Experts connected with the Nuremberg Tribunal made the following comment: "At the same time there is nothing in the paragraph (Art. 49(2)) to exclude the handing over of the accused to an international penal tribunal, the competence of which is recognized by the contracting Parties. On this point the Diplomatic Conference declined expressly to take any decision which might hamper future developments of international law." Jean S. Pictet, ed., Commentary to Geneva Convention (1952) at p. 366. 43 In so far as these principles flow from customary international law, is there not "consent" to the exercise of that jurisdiction? The Eichmann Case (1961) 36 ILR p. 5 and (1962) on appeal, 36 ILR 277, illustrates the exercise of this jurisdiction by Israel. The issue of "consent" was not clearly addressed.
Consent and individuals
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CONSENT AND INDIVIDUALS Since the inception of adjudicatory dispute settlement in international relations with the Jay Treaties, individuals, whether natural or juridical persons under national laws, have appeared before international tribunals. The early Claims Commissions of the nineteenth century admitted jurisdiction over individuals. Since then individuals have appeared before international tribunals constituted in one way or another pursuant to the consent of states. The issue is what is the relationship between the jurisdiction that tribunals exercise in these circumstances and the consent of the individuals over whom they exercise such jurisdiction. There are several different categories of situation that may be identified. First, there are consents given by the individual's national state and the other state party whereby the individual per se is admitted as a party to proceedings, generally as the plaintiff or claimant. No formal consent is given by the individual, though there is a consent given when he institutes proceedings before the tribunal. This is the case with, for example, Claims Commissions, such ad hoc tribunals as the Iran-US Claims Tribunal, the human rights courts and even the CJEC. The point is that the consent of the state party to the proceedings and of the other state, generally the national state of the individual who is a party, is what matters. The jurisdiction of the tribunal is based on these consents and not on the consent of the individual as such, though in effect that consent also generally exists. As individuals per se do not have international personality in general, this is a situation in which states by agreement give them the right to appear before international tribunals and, thus, they enjoy a measure of international personality, but only because the states concerned have agreed to accord them this. The jurisdiction of the international tribunal in the situation is to be attributed primarily, if not solely, to the consent of the states concerned. Secondly, there is one clear example of a situation in which not only must there be consent to jurisdiction as a first step between the states concerned but there must also be consent to jurisdiction between the individual and the state which is the other party to the
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dispute—the case of arbitrations under the ICSID Convention.44 There must, first, be consent to the ICSID arbitration system by signature and ratification of the ICSID Convention by the states concerned. Secondly, there must be consent to the jurisdiction of the arbitral tribunal given again by the state party to the dispute and the individual party to the dispute. Here the consent of the individual is a reality and a needed requirement, laid down by the original agreement between states. The third situation is illustrated by international war crimes tribunals and the proposed International Criminal Court.45 The individual in these cases is the defendant in cases brought before the tribunals. His consent may or may not be forthcoming to the jurisdiction of the tribunal concerned. But it is clear that this consent is not a requisite condition for the exercise of the jurisdiction by the tribunal in these cases. What is required is consent to the jurisdiction of the tribunal ratione materiae, personae, temporis, loci and so on by the state with which the individual is connected according to that consent. This is the sole requirement. Consent is required, either direct or derivative, as has been seen, on the part of the connected state but not of the individual over whom the tribunal exercises jurisdiction. The jurisdiction of the tribunal is defined, circumscribed and effected solely by the consent of the connected state and other states parties to the convention, treaty or agreement establishing the tribunal. The case is prosecuted by representatives of the totality of states parties to that convention, treaty or agreement against the individual on the basis that the connected state has consented to jurisdiction. Fourth, in the case of lATs, their jurisdiction which is established by a legislative act of an organization, whether the jurisdiction is 44
See Chapter 14. For the International Criminal Court see Sarooshi, "The Statute of the International Criminal Court", 48 ICLQ (1999) p. 387, Crawford, "The ILC's Draft Statute for an International Criminal Tribunal" 88 AJIL (1994) p. 140, Zimmerman, "The Creation of a Permanent International Criminal Court", 2 Max Planck Yearbook, U.N. Law (1998) p. 169. For the text of the convention see the website of the UN. See also for the ILC draft statute 33 ILM (1994) p. 253. 45
The relationship of consent to inherent jurisdiction
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created by that act or is merely accepted by the organization, is based on the consent of the organization concerned and on the consent, direct or indirect, of the staff members or individuals over whom they assume jurisdiction. Insofar as the individual who appears before an IAT has agreed to accept the legislative authority of the organization that creates the jurisdiction of the tribunal over him by, e.g., entering into an employment contract or status with the organization, he is deemed to have accepted the jurisdiction of the tribunal on the basis that that jurisdiction has been created by the legislative act of the organization. The consent of the individual is clearly operative in this case, without any particular intervention of a state with which he is connected.46 THE RELATIONSHIP OF CONSENT TO INHERENT JURISDICTION Assuming the parties have consented to the jurisdiction of an international tribunal, to what do they consent? Clearly the details of what has been consented to will not be completely or explicitly stated in the consent given. It is usual to state that what they have consented to is jurisdiction to settle the dispute by the application of substantive and procedural rules of law. In any case it may be asked what these rules are, because these are not usually spelled out or referred to in the instrument of consent or agreement. In addition there are other matters relating to jurisdiction which arise and raise issues as to their relation to consent. Tribunals have often referred to their "inherent" and "incidental" jurisdiction in certain respects to the exercise of which explicit 46
There may be circumstances in which persons who are not connected in any way with the member states of the organization come within the jurisdiction of an IAT, e.g., because they become staff members of an organization. It is not possible in this case to attribute to the consent, by being a member of the organization, of a state with which he is connected to the legislative authority creating the jurisdiction of the IAT the acceptance of the lAT's jurisdiction, so to speak, in respect of that person. The fact of the matter is that the acceptance of jurisdiction by implication or otherwise by the person is crucial to the lAT's exercise of jurisdictional authority.
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consent does not need to be given.47 Whether this jurisdiction is described as inherent or based on implied consent does not really matter because whichever way it is looked at what is relevant is that (a) it does not require express consent for its exercise and (b) there are circumstances in which by agreement of the parties the jurisdiction may be limited or modified. The real issue is the extent to which the jurisdiction may be so limited or modified. That it exists cannot be doubted. Its source is referable to general principles of law. It is, perhaps, better to describe the jurisdiction as inherent rather than as based on implied consent to the extent that the international law applicable in certain respects to the admissibility of consent as a limiting or modifying factor may itself control the scope of that consent in so imposing limitations and modifications. The particular areas where inherent jurisdiction exists will be discussed in subsequent chapters and not only will the extent of that jurisdiction be the subject matter of those chapters, but where appropriate the relevance of and scope of consent in limiting and modifying that jurisdiction will also be considered. These areas are principally: (i) la competence de la competence—the jurisdiction of the tribunal to determine its own jurisdiction (Chapter 5); (ii) the incidental jurisdiction to order provisional or interim measures (Chapter 8); (iii) the jurisdiction in regard to interventions (Chapter 10); (iv) jurisdiction in regard to remedies (Chapter 11); (v) jurisdiction in regard to reopening a case (Chapter 12). Consent may also affect the choice of substantive law or procedural law applied to the extent that agreement between the parties may determine the law applicable. On the other hand, there may be limits imposed on the admissibility of such agreement, if it violates, e.g., basic or fundamental principles of international law which are ius cogens, or frustrates the proper administration of justice by an international tribunal. As already pointed out in the previous 47
p. 371.
See, e.g., the Tadic Case (1995), ICTY: Judicial Reports 1994-1995 at
Irrelevance of consent
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chapter, matters of choice of substantive and procedural law are not being discussed here. Initial competence and the questions of recevabilite are also capable of being affected by consent. Indeed, basically, initial competence is dependent on consent. The question then is what are the legal limitations on the scope of this consent. This issue will be addressed in Chapter 7. In regard to recevabilite, consent may also be relevant to determine both the extent of limitations on recevabilite and the exceptions thereto. The problem will be discussed in Chapter 8.
JURISDICTION TO RENDER ADVISORY OPINIONS AND RULINGS OF LAW The exercise of jurisdiction in contentious proceedings results in a tribunal rendering a binding decision relating to the dispute that disposes of the case referred to it. International tribunals have sometimes been given jurisdiction apart from this kind of contentious jurisdiction. Examples are the advisory jurisdiction of the ICJ and the jurisdiction of the CJEC to give rulings on reference by a national court. This kind of non-contentious jurisdiction is special and must be particularly and expressly assigned to the tribunal by the instrument or the agreement establishing it. The relevance of consent in regard to the jurisdiction to give advisory opinions and the parameters of its applicability will be discussed in Chapter 12 and Chapter 17.
IRRELEVANCE OF CONSENT Consent as a basic requirement on the part of states for founding the jurisdiction of international tribunals may not be relevant in a situation requiring the reference of a dispute to an international tribunal by the combined application of Article 2(6), Article 2(3) and Chapter VII of the Charter. A non-member of the UN who does not consent to anything under the Charter may be obligated to settle a dispute by reference to an international tribunal by a decision taken by the UNSC under Chapter VII of the Charter in regard to
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measures for the preservation of international peace and security because Article 2(6) by implication requires them to observe the principle set down in Article 2(3) that disputes should be settled by peaceful means. However, this is uncharted ground.48 Whereas an UNSC decision of this kind under Chapter VII would be binding on a member of the UN by virtue of Article 25 which makes such decision binding on it and that member would have given a derivative or indirect consent to it by signing the Charter, Article 25 does not apply to non-members, non-members have given no consent, derivative or otherwise, to any action under Chapter VII and the import of Article 2(6) and (3) is not clear in relation to Chapter VII action as far as it affects non-members. But given that non-members could be bound by the provisions of Article 2(6) and therefore that they may be bound by Chapter VII action taken by the UNSC, this is certainly a situation where a state may be subject to an international tribunal's jurisdiction in principle without its consent. PARAMETERS OF CONSENT The first general principle is that as a general rule consent of the parties to the dispute who submit the dispute to the tribunal is the basis for the tribunal's jurisdiction. The second principle that emerges is that, while consent to settlement of the dispute by the tribunal by the exercise of its jurisdiction must exist, there are inherent aspects of the exercise of its jurisdiction to which the consent of the parties to the dispute need not expressly be given, such inherent jurisdiction being determined by norms pertaining to jurisdiction which have been developed and which apply unless in certain instances there is consent to the contrary on the part of the parties to the dispute. 48
See the discussion in Simma (ed.), The Charter of the United Nations (1995) pp. 72 ff. on Article 2 of the UN Charter and literature there cited particularly on p. 132. The point raised here in relation to non-member states of the UN has not been discussed hitherto anywhere. It would not be feasible to discuss it here in detail, as it is without practical precedent in any case.
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There is a third principle which is relevant and which will be demonstrated to the extent that it is applicable in some of the chapters that follow. In certain situations, though the parties may have consented, at least ostensibly, to the exercise of contentious jurisdiction by the tribunal to adjudicate on the dispute, there are circumstances flowing from general norms of international law relating to jurisdiction which may render this consent ineffective, if the norms are successfully applied. This is the principle that applies, for instance, when the rule of non-exhaustion of local remedies may be invoked as a bar to recevabilite in cases where the rule is applicable (this rule is discussed in the context of recevabilite in Chapter 8) or when the rule in the Monetary Gold Case is applied to preclude the exercise of jurisdiction to settle a dispute between parties that have consented to the tribunal's exercise of jurisdiction, because on account of the interests of third parties there is a lack of competence in the tribunal (see the discussion of this rule in Chapter 7). The source of these principles is the general principles of law relating to the judicial function. There is a fourth point to be made. On the one hand, while consent is generally the basis of the jurisdiction of international tribunals, subject to certain inherent powers that they have, conversely, a principle is to be recognized that there are certain limitations on the contentious jurisdictional authority of such tribunals which cannot be waived even by consent, whether express or implied, between or among the parties to the dispute. Proof of consent to confer jurisdiction on the tribunal even though certain requirements are absent could not give the tribunal jurisdiction. There have been no specific decisions of tribunals, as far as is known, on the question of whether consent can cure the absence of these requirements, but it is clear that there are certain fundamental requirements that are so inextricably involved with the judicial function of international tribunals that their absence would be an absolute bar to the assumption of jurisdiction by such tribunals. Examples of such requirements are the existence of a dispute49 and the need for the claim to have an 49
In the Mavrommatis Palestine Concessions Case (Preliminary Objection) (1924), PCIJ Series A No. 11, the question whether a "dispute" had been presented
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object and not be moot.50 Further, the legal nature of the dispute may also be a fundamental requirement, irrespective of whether settlement ex aequo et bono is requested or not. Again, the source of this principle is to be found in a general principle of law applicable to the judicial function in international law. The last two principles flow from general principles of law pertinent to the international judicial function and are extremely important in the context of the general consensual basis of contentious jurisdiction. One of them limits the scope of consent in that it does not permit consent to enlarge a jurisdiction which intrinsically an international tribunal does not have on account of the nature of its judicial function. The other does not permit consent to derogate from certain elements of jurisdiction which an international tribunal intrinsically has based on the character of its judicial function.
to the PCIJ was discussed in the judgment where it was found that there was a dispute. Had the Court found that there was no dispute as defined by it, the consent of the parties to adjudication would not have cured that defect. 50 The Nuclear Tests Cases, 1974 ICJ Reports at pp. 253 and 457, were dismissed on this ground as was the Northern Cameroons Case, 1963 ICJ Reports at p. 38. These limitations inherent in the judicial function are discussed further in Chapter 7.
4 INTERPRETATION OF CLAUSES SUBMITTING TO JURISDICTION
It is to be supposed that the general principles of interpretation1 of treaties would apply equally to instruments submitting to the jurisdiction of international tribunals. According to these principles the ordinary meaning of the text in context would be given a certain primacy with good faith and teleology having an important place. In the Anglo-Iranian Oil Co. Case the ICJ referred to interpreting a declaration under Article 36(2) of the statute of the Court accepting the Court's jurisdiction "as it stands, having regard to the actual words used."2 Not only has the ICJ (and its predecessor, the PCIJ) adhered to these principles but arbitral tribunals have applied them in interpreting compromissory clauses. In the Interpretation of Article 79, §6(c) of the 1947 Peace Treaty (No. 196} the arbitrators stated that in the international field there was no room for a 1
See Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties. For the Convention see 8 ILM (1969) p. 679; 63 AJIL (1969) p. 875. 2 1952 ICJ Reports at p. 105. See also the Phosphates in Morocco Case (1938), PCIJ Series A/B No. 74 at p. 23.
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"specially extensive" interpretation of arbitration clauses presumably meaning that the natural meaning must be accepted.3 There are other principles that are applicable within the scope of the above three principles while there are supplementary rules of interpretation referred to in Article 32 of the 1969 Vienna Treaty Convention. In interpreting a jurisdictional clause to a large extent the relevant principles would be applicable to the particular case taking into account all the circumstances. There are variations on the theme in given cases but the particular problem that requires attention in regard to jurisdictional clauses is whether there is a rebuttable presumption at least, if not an imperative, that such clauses must be interpreted restrictively. As an aspect of the restrictive principle of interpretation may also be considered the rule of interpretation alleged to be applicable that clauses of treaties must be interpreted contra proferentem, i.e., in case of doubt, against the party responsible for proposing or drafting the disputed clause. THE CONTRA PROFERENTEM RULE The problem has arisen particularly in relation to unilateral declarations under the Optional Clause, Article 36(2) of the statute of the ICJ (and the preceding provision of the PCIJ statute). Consequently it will be adverted to again in the chapter on the ICJ. Here it is relevant to state that neither a restrictive theory of interpretation of jurisdictional clauses nor a principle based on interpretation contra proferentem in case of doubt has in effect been accepted in the jurisprudence of the World Court, whatever has been stated or whatever lip service has been paid to those principles. Neither of the principles, moreover, are referred to at all in the 1969 Vienna Treaty Convention. The practice of arbitral tribunals has, on the other hand, 3
(France v. Italy, 1955), 13 UNRIAA at p. 431. In Filleting within the Gulf of St. Lawrence (Canada v. France, 1986), 110 RGDIP (1986) at p. 730, the tribunal referred to the common intention of the parties as the basis of the compromis and emphasized that it was "dans les termes de ce compromis" rather than in the conclusions of the parties submitted to the tribunal that the scope of the tribunal's jurisdiction was to be found.
The contra proferentem rule
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raised some doubts only about the inapplicability of the restrictive principle. It has been argued that the principle verba ambigua accipiuntur contra proferentem (ambiguities are to be construed against the party which has stipulated) is a general principle of law since it is common to the Roman, the Civil and the Common law.4 It has also been proposed that, while the rule is not applicable to some kinds of treaties, it applies to other kinds of treaties.5 However, it does not seem to have been recognized as a general rule in practice. The justification for this practice emerges from an explanation given by the arbitrator in the Pensions of Officials of the Saar Territory Case which in fact conceded that it may be applicable in certain circumstances but not where the agreement was the object of lengthy negotiations, precisely in regard to the question of officials' pensions, and the parties came to mutual agreement on their proposals step by step. In such a case, which party it was that drafted the final text is, from the standpoint of this rule of interpretation, irrelevant, quite apart from the fact that... neither in the letter nor in the spirit of Article 10 can there be any doubt as to the rule contained in it.6
In that case the contra proferentem rule was not applied. Treaties, except those imposed by force or "unequal" treaties, are the result of common effort and the product of negotiations. They do not generally result from drafts imposed by one party. Thus, even though a particular provision may be based on a draft proposed by one negotiator, there is no reason to assume that that party was so forceful as to have without input from the other party looked after his own interests in such a way that it becomes necessary in interpreting the text to safeguard, by way of compensation, the interest of the other 4
See H. Lauterpacht, "Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties", 26 BYIL (1949) at pp. 56 ff. 5 See, e.g., Rousseau, 1 Droit international public (1970) pp. 297-8, 304-5. See also for the principle in general: Oertman, "Interests and Concepts": in Schoch (ed.), The Jurisprudence of Interests (1948) at p. 63. 6 (Germany v. Saar Territory, 1934), 3 UNRIAA at pp. 1564-5.
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party. Even if treaties originate from drafts proposed by one party there is no reason to suppose that the text was imposed on the other. There is no reason to make an exception of, for example, unilateral declarations under Article 36(2) of the statute of the ICJ. This is particularly so because the ICJ has made it clear that the declarations must be interpreted "as they stand, having regard to the words actually used".7 No attempt has been made by the Court possibly to expand or narrow its jurisdiction by interpreting these declarations contra prof erentem, though they are an obvious case in which the rule may be applied, if at all, because the party making the declaration controls the language and the situation entirely. Thus, there is little justification to apply the principle at all in the interpretation particularly of jurisdictional clauses and no evidence that this has been done. What is important is to give the text of the clause its "intended" meaning, without exercising a bias against the proposer, as such. In any event a pertinent observation is that, as applied to jurisdictional clauses, the rule contra proferentem gives rise to contradictions which make its relevance highly questionable, indeed unacceptable. Where there is evidence that one party was somehow responsible for the end product in the jurisdictional clause, the rule would require that, if that party is the complainant in the proceeding, in case of doubt the clause would have to be interpreted against that party's interest so as to exclude jurisdiction. On the other hand, where that party is the respondent disputing jurisdiction and the claimant is arguing for jurisdiction, the application of the rule would result in the clause being interpreted so as to give the tribunal jurisdiction. This duality does not make sense at all. Thus, the rule could in reason not be a candidate in any circumstances for application to jurisdictional clauses. The qualification made in dicta in some decided cases8 that the rule may be applicable in certain situations cannot, therefore, be relevant to jurisdictional clauses at all. Further, there is no evidence that those qualifications were intended to cover jurisdictional clauses. 7
Anglo-Iranian Oil Co. Case, 1952 ICJ Reports at p. 105. See also the Norwegian Loans Case, 1957 ICJ Reports at p. 27. 8 See the Pensions of Officials of the Saar Territory Case, supra note 6.
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The argument that the contra proferentem rule should be applied to unilateral declarations under Article 36(2) of the ICJ statute, because those declarations are entirely the creation of the proponents of the declarations, had the same drawbacks pointed out in the previous paragraph. Moreover, the World Court has never given any indication that these declarations should be interpreted contra proferentem. On the contrary, the approach of that Court to interpretation has been to attempt to find out, where there is a reason to, i.e., generally when there is evidence that the contextual ordinary meaning taking into account object and purpose is ambiguous or was not the intended meaning, what the makers of the declarations intended to state in the light of all the surrounding circumstances. As will be seen in the discussion of the cases in later paragraphs dealing with restrictive interpretation, this is what the ICJ and the PCIJ did in several cases and with particular effect in the Anglo-Iranian Oil Co. Case9 and the Aegean Sea Continental Shelf Case.10 In both cases an examination of surrounding circumstances resulted in the declarations being interpreted so as to exclude jurisdiction. This is just the reverse of interpreting declarations contra prof erentem. What is important is not the interpretation contra proferentem but the interpretation with a view to establishing a meaning for the text which gives effect to the "intentions" of the single proponent by applying the recognized principles of interpretation. RESTRICTIVE INTERPRETATION
The principle of restrictive interpretation in respect of treaty law in general, if such exists, is based on the notion that "restrictions on sovereignty cannot be presumed" which emanated in regard to the creation of customary international law in general from a pronouncement of the PCIJ in the Lotus Case.1! Certain authors have in the past contended that, because jurisdictional clauses are 9 10 11
1952 ICJ Reports at p. 105. 1978 ICJ Reports at pp. 28-9. PCIJ Series A No. 10 at p. 18.
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particularly in derogation of "sovereignty", they must be interpreted restrictively.12 But the weight of evidence is against the application, as such, of any restrictive principle to jurisdictional clauses, whatever may be the case with other treaty provisions,13 though lip service may have been paid to the principle. The starting point for the consideration of the problem is the Chorzow Factory (Jurisdiction) Case in which the PCIJ, in dealing with a submission to the Court under jurisdictional provisions of the Treaty of Versailles, said: It has been argued repeatedly in the course of the present proceedings that in case of doubt the Court should decline jurisdiction. It is true that the Court's jurisdiction is always a limited one, existing only in so far as States have accepted it; consequently, the Court will, in the event of an objection—when it has automatically to consider the question—only affirm its jurisdiction provided that the force of the arguments militating in favour of it is preponderant. The fact that weighty arguments can be advanced to support the contention that it has no jurisdiction cannot of itself create a doubt calculated to upset its jurisdiction. When considering whether it has jurisdiction or no, the Court's aim is always to ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it. The question as to the existence of a doubt nullifying its jurisdiction need not be considered when, as in the present case, this intention can be demonstrated in a manner convincing to the Court.14
12
See Rousseau, op. cit. note 5 pp. 273-4; Guggenheim, 1 Traite de Droit international public (1967) pp. 256-8. 13 See, e.g., the joint dissenting opinion of Judges Anzilotti and Huber in The Wimbledon Case (1923), PCIJ Series A No. 1 at p. 37, the statement of counsel for France in the Competence of the International Labour Organization in the Matter of the Regulation of Conditions of Work of Persons Employed in Agriculture Opinion (1922), PCIJ Series C No. 1, at pp. 174-5, the statement of the sole arbitrator in the Kronprins Gustaf Adolf Arbitration (USA v. Sweden, 1930), 2 UNRIAA at p. 1254, and the argument of counsel for Bulgaria in the Interpretation of the Treaty of Neuilly Arbitration (Bulgaria v. Greece, 1933), 3 UNRIAA at p. 1400. 14 (1927), PCIJ Series A No. 9 at p. 32.
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Again in the Phosphates in Morocco Case the court said of the French declaration accepting the compulsory jurisdiction of the Court: The declaration, of which the ratification was deposited by the French Government on April 25th, 1931, is a unilateral act by which that Government accepted the Court's compulsory jurisdiction. This jurisdiction only exists within the limits within which it has been accepted. In this case, the terms on which the objection ratione temporis submitted by the French Government is founded, are perfectly clear: the only situations or facts falling under the compulsory jurisdiction are those which are subsequent to the ratification and with regard to which the dispute arose, that is to say, those which must be considered as being the source of the dispute. In these circumstances, there is no occasion to resort to a restrictive interpretation that, in case of doubt, might be advisable in regard to a clause which must on no account be interpreted in such a way as to exceed the intention of the States that subscribed to it.15 In both these cases the PCIJ took the view that the object of interpretation was to give effect to the intention of the parties. If this intention emerges clearly from the text of the clause being interpreted, cadit quaestio. The references to restrictive interpretation were thus obiter and in any case the Court did not categorically state that the principle of restrictive interpretation was relevant to the interpretation of jurisdictional clauses. In both the Right of Passage Case (Merits)16 and the Temple of Preah Vihear (Preliminary Objections) Case11 the ICJ took a view similar to that expressed by the PCIJ that there is no need to go beyond the clear intention expressed in the text of the jurisdictional clause which in both cases was a declaration accepting the compulsory jurisdiction of the Court under Article 36(2). In two other cases in dealing with unilateral declarations under Article 36(2), while adverting to the fact that the declarations were 15 16
17
(1938) PCIJ Series A/B No. 74 at pp. 23-4. 1960 ICJ Reports at p. 34. 1961 ICJ Reports at p. 34.
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not the result of negotiated settlements but were unilaterally conceived and drafted and, therefore, must be interpreted so as to give effect to the intention of the party making the declaration as expressed in the text and in the light of surrounding circumstances, the ICJ did not refer to a preference for restrictive interpretation so as to exclude jurisdiction. On the contrary, it made clear that the object was to give a fair interpretation of the text in the light of the ascertainable intention of the party making the declaration. In the Anglo-Iranian Oil Co. Case the Court said: The Government of the United Kingdom... asserts that a legal text should be interpreted in such a way that a reason and a meaning can be attributed to every word in the text. It may be said that this principle should in general be applied when interpreting the text of a treaty. But the text of the Iranian Declaration is not a treaty text resulting from negotiations between two or more States. It is the result of unilateral drafting by the Government of Iran, which appears to have shown a particular degree of caution when drafting the text of the Declaration. It appears to have inserted, ex abundanti cautela, words which, strictly speaking, may seem to have been superfluous. This caution is explained by the special reasons which led the Government of Iran to draft the Declaration • • in a very restrictive manner. 18 In the Aegean Sea Continental Shelf Case it said: In this connection, it invokes the jurisprudence of this Court and the Permanent Court concerning the interpretation of unilateral declarations of acceptance of the Court's jurisdiction (Anglo-Iranian Oil Co., I.C.J. Reports 1951, p. 104; Rights of Minorities in Upper Silesia, P.C.I.J., Series A, No. 15, p. 22; Phosphates in Morocco, P.C.I.J., Series A/B, No. 74, pp. 22-24). According to this jurisprudence it is indeed clear that in interpreting reservation (b) regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and it was with that jurisprudence in mind that the Court asked the Greek Government to 18
1952 ICJ Reports at p. 105.
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furnish it with any available evidence of explanations of the instrument of accession given at that time.19
Any restrictions that arose flowed not from the application of a restrictive theory of interpretation but from the ascertainable intention of the party making the declaration reflected in the drafting of the jurisdictional clause. The evidence so far examined of specific treatment of the restrictive principle is against the application of a restrictive theory of interpretation to jurisdictional clauses, including those which emanate from unilateral action. More so it is clear that theories of state sovereignty have not been invoked in the interpretation of jurisdictional clauses of any kind in order to resort to restrictive interpretation. In all the cases discussed above with the exception of the Anglo-Iranian Oil Co. Case and the Aegean Sea Continental Shelf Case the interpretation of the jurisdictional clause resulted in the tribunal assuming jurisdiction. In the two excepted cases, without applying a restrictive principle of interpretation the ICJ found that in fact the declaration accepting its jurisdiction had been drafted in such a way that its jurisdiction was excluded and with the intention of achieving this in the circumstances. In practice what is done by tribunals in interpreting jurisdictional clauses is appropriately reflected in the statement made by the arbitral tribunal in the Amco v. Indonesia arbitration that: In the first place, like any other conventions, a convention to arbitrate is not to be construed restrictively, nor, as a matter of fact, broadly or liberally. It is to be construed in a way which leads to find out and to respect the common will of the parties: such a method of interpretation is but the application of the fundamental principle pacta sunt servanda, a principle common, indeed, to all systems of internal law and to international law. Moreover—and this is again a general principle of law—any convention, including conventions to arbitrate, should be construed in good faith, that is to say by taking into account the consequences of 19
1978 ICJ Reports at pp. 28-9.
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their commitments the parties may be considered as having reasonably and legitimately envisaged.20
The restrictive theory was rejected as such as was any liberal view of interpretation. Emphasis was placed on ascertaining the common will of the parties and on good faith. In that case jurisdiction was found to exist.21 On the other hand, the statement of principles of interpretation was somewhat incomplete, in that the proper reference to the intention or common will as expressed in the actual words used in the instrument taken in context and the relevance of the object and purpose of the instrument were not mentioned. These together with good faith are the basic constituent elements of interpretation reflected in Article 31 of the Vienna Treaty convention and there is no reason why they should not be applied to the interpretation of jurisdictional clauses to the exclusion of any restrictive principle. It may also be observed that the European and American regional established tribunals have not subscribed to any restrictive view of interpretation. The ECHR has not said anything to contradict the above position in its approach to the interpretation of jurisdictional instruments before it, while the IACHR in its very first judgment cited the Free Zones Case decided by the PCIJ in 192922 to uphold 20
(1983), 1 ICSID Reports at p. 394. The decision in the arbitration on the merits was later partially annulled but not on the jurisdictional aspect: (1986), 1 ibid. pp. 509 ff. The resubmitted case did not involve any challenge to the decision on jurisdiction made in the first case in 1983: (1988) 1 ibid. pp. 543 ff. In some arbitrations decided in the early 20th century a restrictive interpretation was not adopted: see French Co. of Venezuela Railroads Case (1905, France v. Venezuela), where the view was taken that, while the relevant protocol may impose limits on competence, within those limits the tribunal had wide powers, 10 UNRIAA at p. 348. In the Central Rhodopia Forests Arbitration (1931, Bulgaria v. Greece) the tribunal took the view that the arbitration clause should, in case of doubt, be interpreted "en faveur de la competence" rather than in the opposite sense, 3 UNRIAA at p. 1403. In the Salem Case (1932, Egypt v. USA) the tribunal stated that the object was to establish the common will of the parties at the time the compromis was concluded and in doing so it may refer to discussions and negotiations, i.e., the travaux preparatories, 2 UNRIAA at p. 1181. 22 1929 PCIJ, Series A No. 22 at p. 13. 21
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its approach of interpreting its jurisdictional authority under the American Convention on Human Rights so as to give the Convention "its full meaning and to enable the system for the protection of human rights... to attain its appropriate effects"23—a teleological approach emphasizing effectiveness through recognizing objects and purposes, rather than a restrictive one. The CJEC has also not said anything supporting a restrictive view of interpretation for its jurisdictional instrument. There are, however, a few arbitrations decided mainly in the latter half of the 20th century in which the restrictive approach to interpretation of jurisdictional clauses has been adopted. In a case decided by a chamber of the Arbitration Commission on Property, Rights and Interests in Germany the arbitrators said: In respect of competence, however, special considerations must be taken into account. In the interest of international arbitration in particular so as not to discourage the States, through unintended and unexpected extensions of the competence provisions, from concluding future agreements—it is necessary to interpret such competence provisions in a strict sense. It should also be borne in mind that the rules of interpretation of the various law systems do by no means coincide but, as far as interpretations beyond the mere wording are concerned, are quite different from each other due to the stage of development and the style of each law system. In regard to the competence of the Commission, the application of Article 8 of the Charter must be limited to exceptional cases, because an ambiguous delimination of competence, not contemplated by the contracting States, would jeopardize the very basis of international arbitration, namely, the well considered and carefully limited surrender of sovereign rights.24 23
Velazquez Rodriguez (Preliminary Objections) Case (1987), IACHR, Series C, Decision and Judgments No. 1 at p. 56. The idea was repeated verbatim in subsequent cases: see Fairen Garbi and Solis Corrales (Preliminary Objections) Case (1987), IACHR, Series C, Decision and Judgments No. 2 at p. 61; Godinez and Cruz (Preliminary Objections)Case (1987), IACHR, Series C., Decisions and Judgments No. 3 at pp. 56-7. 24 (1967), Coussirat-Coustere and Eisemann, 3 Repertory of International Jurisprudence (1991) p. 421. See also Interpretation of Article 79, §6(c), of the 1947 Peace Treaty (No. 196} (France v. Italy, 1955), 13 UNRIAA at p. 431; Cases of Dual Nationality (No. 22) (Italy v. UK, 1954), 14 UNRIAA ibid, at p. 36.
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The Iran-US Claims Tribunal has also expressed in more than one case a preference for the restrictive approach to interpretation of jurisdictional provisions. In U.S.A. v. The Islamic Republic of Iran the tribunal said: It is a well established principle of international law that provisions conferring jurisdiction upon an arbitral tribunal shall be interpreted in a restrictive manner. The question as to whether the Tribunal has jurisdiction over the claims in this case must be decided on the basis of this principle.25
In view of the approach taken by the established courts it must be concluded that the views expressed in such arbitrations as these do not reflect the better view. They also conflict with the views expressed in other arbitrations, some of which have been discussed above. There is no functional reason, besides, to distinguish between established courts and arbitral tribunals. Consent is at the heart of the jurisdiction of both. Both the ICTY and ICTR, international criminal tribunals with limited jurisdiction, have had to consider challenges to their jurisdiction. In Tadic the ICTY Appeals Chamber categorically rejected any notion that the sovereignty of states with consequent restrictions upon jurisdiction was relevant to the attribution of jurisdiction to the tribunal.26 This was not in connection with the interpretation of the jurisdictional instrument but in regard to general principles relating to the exercise of jurisdiction by the ICTY. However, the rejection 25
(1984), 5 Iran-US CTR at p. 99. See also The Government of the Islamic Republic of Iran v. The Government of the U.S.A. (1984), 5 ibid, at p. 80, and Lillian Byrdine Grimm (1983) 2 ibid, at p. 80, decided by the same tribunal. There are some other arbitrations, one decided in 1900, in which the tribunal has leaned towards a restrictive interpretation: Cases of Dual Nationality (No. 22) (1954, UK v. Italy), 14 UNRIAA at p. 36, Interpretation of Article 79, §6(c), of the 1947 Peace Treaty (No. 196) (France v. Italy, 1955), 13 UNRIAA at p. 431—"ne peut pas interpreted extensivement", International Administrie Kantoor N. V. v. Federal Republic of Germany (1967), Coussirat-Coustere and Eisemann, 3 op. cit. note 24 at p. 1421—"it is necessary to interpret such competence provisions in a strict sense." 26 ICTY: Judicial Reports, 1994-1995 at pp. 411-19.
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of the relevance of sovereignty in the general context is support for the view that it would be even less relevant to the interpretation of jurisdictional instruments. In Kanyabashi,21 following Tadic, the ICTR took a similar view. In contrast both these tribunals, as will be seen, have adopted the basic general principles of interpretation, rather than restrictive principles, in interpreting their jurisdictional instruments. The ITLOS also in considering its jurisdiction under Article 292 of the UNCLOS has not adverted to any restrictive theory of interpretation.28 Some further elaboration of the applicable principles of interpretation in relation particularly to the relevance of the concept "state sovereignty" was made by the ICJ in its Judgments of the Administrative Tribunal of the I.L.O. Opinion where the interpretation of the jurisdictional provisions of the statute of ILOAT was in issue. The Court stated: The Court has not lost sight of the fact that both before the Administrative Tribunal and in the statements submitted to the Court it has been contended, on the one hand, that the Administrative Tribunal was an international tribunal and, on the other hand, that it was a Tribunal of limited jurisdiction ("juridiction d'attribution") and not of general jurisdiction ("juridiction de droit commun"). That contention has been put forward with a view to achieving a restrictive interpretation of the provisions governing the jurisdiction of the Tribunal. The Court does not deny that the Administrative Tribunal is an international tribunal. However, the question submitted to the Tribunal was not a dispute between States. It was a controversy between Unesco and one of its officials. The arguments, deduced from the sovereignty of States, which might have been invoked in favour of a restrictive interpretation of provision governing the jurisdiction of a tribunal adjudicating between States are not relevant to a 27
ICTR, Reports of Orders, Decisions and Judgments, 1995-1997 at pp. 238-42. 28 See, e.g., the Saiga Case, (St. Vincent and the Grenadines v. Guinea, 1997), 37 ILM (1998) at pp. 368-9; the Camouco Case (Panama v. France, 2000), 39 ILM (2000) at pp. 676-7.
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situation in which a tribunal is called upon to adjudicate upon a complaint of an official against an international organization.29
The Court went on the state that in interpreting the provisions it had "relied on the wording of the texts in question as well as on their spirit, namely the purpose for which they were adopted".30 The latter statement could be taken to encapsulate two of the three basic ingredients of interpretation expressed in the 1969 Vienna Treaty Convention, namely the meaning of words in their context and object and purpose. What is missing is reference to good faith. Applying the principles rightly chosen, the Court came to the conclusion that the ILOAT had properly assumed jurisdiction in the case under review. What is also important is that the court dismissed restrictive interpretation as such as irrelevant. However, it did say that restrictive interpretation (i) flowed from the doctrine of the sovereignty of states and (ii) "might have been invoked" in a dispute between states in connection with the interpretation of jurisdictional provisions. In traditional terms it was perhaps inevitable that the Court related the theory of restrictive interpretation of jurisdictional clauses to the doctrine of sovereignty of states but it is to be noted that on the second point it was more cautious. It merely said that the restrictive theory "might have been invoked" in the circumstances envisaged. It did not say that restrictive principles were necessarily applicable even in those circumstances. If it had, it would have contradicted what, as has been shown above, it said in other cases. The dicta in the case, for such they were, do not, therefore, clearly support the application of a restrictive theory even to jurisdictional clauses in disputes between states or involving states. If at all the statements were made for the sake of argument, because of the contentions put forward by parties. In connection with the Court's use of the relevance of the doctrine of sovereignty of states to the interpretation of the statute of the ILOAT, while it is true that the ILO, the organization promulgating the statute, has an international personality which is separate and distinct from the personalities of its member states which are 29 30
1956 ICJ Reports at p. 97. Ibid, at p. 98.
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sovereign,31 it is arguable that, because it is an entity composed entirely of sovereign states, it has the right to have its submissions to jurisdiction treated in the same way as those of its member states. The consequence would be that, if a restrictive theory of interpretation were applicable to jurisdictional submission by states, it should also be applicable to such submissions by international organizations. Clearly the ICJ did not see the matter in this way, but it must be recognized as a possible argument. In addition, because the submission to the jurisdiction of an international administrative tribunal by an international organization is an unilateral act, a restrictive theory, if applied to states, may become relevant. The answer to the problem is to reject as such the relevance of a restrictive theory of interpretation in relation to jurisdictional clauses. When an entity agrees to submit to the jurisdiction of an international tribunal there is no reason to suppose that it is not acting in good faith in regard to the submission with a view to or with the object and purpose, to use the language of the 1969 Vienna Treaty Convention, of having the tribunal exercise jurisdiction rather than not exercise it. In short the general principles of interpretation enshrined in the 1969 Vienna Treaty Convention are totally appropriate and adequate for jurisdictional clauses as such. As general principles which international tribunals apply, it may be said, negatively restrictive principles of interpretation and the contra proferentem rule are not relevant while positively the principles reflected in Articles 31 and 32 of the Vienna Treaty Convention of 1969 are applicable to the interpretation of jurisdictional clauses submitting to international tribunals. SOVEREIGNTY It would not be appropriate to discuss in detail here the doctrine of state sovereignty32 and its shortcomings, but a word must be said 31
See Amerasinghe, Principles of the Institutional Law of International Organizations (1996) at pp. 77 ff. 32 The doctrine grew up in relation to the internal nature of the state but developed into one relevant to international law in the 20th century: see Oppenheim, 1 International Law (1955) pp. 120-3.
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about it, particularly because the ICJ referred to it in connection with jurisdictional clauses, even though the tendency in modern international legal thought is to regard the doctrine as outmoded and irrelevant.33 As already noted, in the Lotus Case the PCIJ invoked the doctrine to infer that there was no presumption of restrictions on the freedom of states to act in general, though the case dealt in particular with the exercise of criminal jurisdiction over persons. The relevant aspect of the doctrine to the subject being considered here concerns the notion that international obligations may not be imposed upon a state without its consent.34 Hence, comes the conclusion that states have the freedom to act as they wish and any limitations on such freedom cannot be presumed but must be proved by showing that the state properly consented to them. Transposed to the realm of jurisdiction of international tribunals the doctrine supposes that submission to the jurisdiction of such tribunals by a state must be positively and incontrovertibly proved, because it is assumed that its submission was limited by its desire to preserve its freedom to act, its consent being required, because the exercise of jurisdiction by an international tribunal over a state is a limitation on its freedom of action and, therefore, cannot be "presumed". From that premise the conclusion is reached, logically or not, that instruments submitting to the jurisdiction of international tribunals to which a state is a party must be restrictively construed. The point is that these conclusions are strictly a non sequitur. On the assumption that consent is the source of limitation on a state's freedom to act (which is not entirely clear because a state can be bound by general principles of law which may not essentially emanate from its consent), the question is whether consent must be given such a narrow connotation in relation to the freedom to act as to result in acceptance of restrictions on its freedom, including submissions to the jurisdiction of international tribunals, being
33
See literature cited in Oppenheim, 1 International Law (1992) pp. 119 and 124 note 1 and Brownlie, Principles of Public International Law (1998) p. 289 note 1. 34 See Brownlie, ibid, at p. 289.
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restrictively construed. The freedom to act which seems to be regarded as sacrosanct in the doctrine of state sovereignty must include the freedom to act in such a way as to impose limitations on its freedom to act, e.g., through submission to the jurisdiction of international tribunals. The freedom to limit freedoms is just as much a part of the freedom to act as the freedom to act positively without limitations. This means that, when a state freely consents to limit its freedoms by submitting to the jurisdiction of an international tribunal, there is no reason to assume that this submission is to be regarded as having been given unwillingly or stingily, so as to imply that the submission is to be considered a presumptively limited submission. On the contrary it should be logical or reasonable to conclude that the submission was made in good faith to be construed on the assumption not that it was a restricted submission but one that was intended to be effective in the light of the terms of the submission. It would appear then that even on the view that a theory of state sovereignty is relevant to the interpretation of submissions to the jurisdiction of international tribunals the conclusion that it entails a restrictive theory of interpretation of such instruments does not hold water. In spite of its statement on sovereignty in the Lotus Case the same Court stated in The Wimbledon Case in regard to treaties: The argument has also been advanced that the general grant of a right of passage to vessels of all nationalities through the Kiel Canal cannot deprive Germany of the exercise of her rights as a neutral power in time of war, and place her under an obligation to allow passage through the canal of contraband designed for one of the belligerents; for, in this wide sense, this grant would imply the abandonment by Germany of a personal and imprescriptible right, which forms an essential part of her sovereignty and which she neither could nor intended to renounce by anticipation. This contention has not convinced the Court; it conflicts with general considerations of the highest order. It is also gainsaid by consistent international practice ... The court declines to see in the conclusion of any Treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any convention creating an obligation of this kind places a restriction upon the exercise of the
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sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right of entering into international engagements is an attribute of State sovereignty.35 The view has been adopted by international arbitral tribunals. In the Cession of Vessels and Tugs for Navigation on the Danube the arbitral tribunal held that The duty which the Arbitrator is compelled to perform by the explicit and unqualified language of the Treaties, which duty is made doubly imperative by the history and manifest objects of the provision, is the most delicate and difficult task which he is called upon to perform under any of the Treaties, but in discharging this duty the Arbitrator is not undertaking to interfere in any sense with the sovereign rights of any of the States. On the contrary, he is discharging this grave duty solely because all the States which have signed the Treaties have each, by its sovereign act, called upon the Arbitrator to do so.36 These views support the approach to sovereignty elaborated above. 35
(1923), PCIJ Series A No. 1 at p. 25. See also for a similar statement the Exchange of Greek and Turkish Populations Opinion (1925), PCIJ Series B No. 10 at p. 21:
The principle reason why the Turkish Delegation has maintained the theory of an implicit reference to local legislation appears to be that, in their opinion, a contrary solution would involve consequences affecting Turkey's sovereign rights. But, as the Court has already had occasion to point out in its judgment in the case of the Wimbledon, "the right of entering into international engagements is an attribute of State sovereignty". In the present case, moreover, the obligations of the contracting States are absolutely equal and reciprocal. It is therefore impossible to admit that a convention which creates obligations of this kind, construed according to its natural meaning, infringes the sovereign rights of the High Contracting Parties. 36
(1921, Allied Powers v. Germany, Austria, Hungary and Bulgaria), 1 UNRIAA at p. 103. There are some transnational (not international} arbitrations in which statements along the lines of the views expressed in the citations in the
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POSITIVE PRINCIPLES APPLICABLE As for the principles positively applicable to the interpretation of jurisdictional texts, there is no need to look beyond the 1969 Vienna Treaty Convention. As already mentioned, pursuant to Article 31(1) of that Convention finding the ordinary meaning in context and in the light of object and purpose on the assumption of good faith is basic to construction of treaties and will be primarily applied in interpreting jurisdictional instruments. Furthermore the rest of Article 31 (i.e., paras. (2)-(4)) is no doubt applicable to interpretation of jurisdictional clauses. Supplementary means referred to in Article 32 of the Vienna Treaty Convention may be used in the appropriate circumstances. These include reference to the travaux preparatories and the circumstances of the conclusion of the jurisdictional clause. As an example of the resort to such supplementary means may be cited the Salem Case which was decided before the Vienna Treaty Convention came into effect, where the tribunal said: [IJnterpretation is however only admissible if the wording of the compromise allows of several meanings of which none can be recognized as the clear will and purpose of the parties. In this case the Arbitral Tribunal has to investigate which meaning agrees with what has been the joint will of the parties when they concluded the compromise. Now, in order to ascertain the joint will of the parties, an arbitral tribunal is likewise entitled, according to the predominating international practice, to refer to the discussions and negotiations which led to the compromise.37
text above have been made: see, e.g., the Aramco Arbitration (1958) 27 ILR at pp. 152-3; the Framatome S.A. et al. Arbitration (1982), an ICC case with the Atomic Energy Organization of Iran as the other party, 111 JDI (1984) at p. 75 (where the tribunal stated that "sovereignty" does not mean that a state cannot submit to arbitration). 37 (1932, Egypt v. USA), 2 UNRIAA at p. 1181. In a transnational arbitration involving a state as a party surrounding material was considered relevant to interpretation: see Lubelski v. Etdt du Burundi (1968), 113 JPA at p. 88. See also for a similar approach in a true international arbitration, the Gold of the National Bank of Albania (1953), 12 UNRIAA at p. 35.
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But there is no need to elaborate on these principles, for they are the principles applicable to the interpretation of treaties in general. In Tadic the Appeals Chamber of the ICTY38 applied the principles of interpretation set out in the Vienna Treaty Convention by invoking the literal approach together with the teleological. In applying the latter the ICTY concluded that "To the extent possible under existing international law, the Statute should be construed to give effect to that purpose"39 and made a logical and systematic interpretation of Articles 2, 3 and 5 of its statute to find that the tribunal had jurisdiction in the case.40
38
ICTY: Judicial Reports, 1994-1995, p. 353. Ibid, at p. 441. 40 The ITLOS also appears to have used a traditional approach to the interpretation of its jurisdiction under Article 292 of the UNCLOS: see, e.g., the Saiga Case (St. Vincent and the Grenadines v. Guinea, 1997), 37 ILM (1998) at pp. 368-9; the Camouco Case (Panama v. France, 2000), 39 ILM (2000) at pp. 676-7. 39
5 LA COMPETENCE DE LA COMPETENCE
The first question that may face an international tribunal is whether it has jurisdiction (competence) to determine its own jurisdiction (competence), i.e., whether it has power to decide whether it may proceed with the judicial settlement of the particular case (competence de la competence). It is not a question that generally must be decided unless the matter is raised. Indeed, in many cases, tribunals have simply decided on their jurisdiction. HISTORY As early as 1796 in the proceedings in the Betsey Case decided under the Jay Treaty of 1794 between Great Britain and the USA there arose for the first time a difference of opinion especially as to the power of the Commission to determine for itself to what cases its jurisdiction extended.1 While there was disagreement among the Commissioners the Lord Chancellor of Great Britain expressed the 1
See Moore, 4 International Adjudications, Modern Series (1931) p. 82.
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view that any doubt respecting the authority of the commissioners to settle their own jurisdiction was absurd and that they must necessarily decide whether cases are within or without their competency.2 The matter did not go any further and the tribunal on the basis that the disagreement did not exist anymore whether among the commissioners or between the parties proceeded to settle the question of its jurisdiction.3 However, the principle itself that a tribunal has jurisdiction to decide on its own jurisdiction did not come to be accepted immediately in litigation, as the subsequent history of the Jay Treaty arbitrations themselves shows.4 There were, nevertheless, several subsequent arbitrations in which the principle was followed without much discussion or was asserted by the tribunal.5 In 1866 in the "La Constancia" Case the Mixed Commission stated that certain facts adduced were "insufficient to absolve the commission from examining whether, consistently with the principles of international law, they can or not assume jurisdiction" over certain claims.6 Yet, in the Alabama Arbitration a statement made by the arbitrators was the result of agreement between the parties after an exchange of views, the agreement being that the tribunal should be allowed to determine its own jurisdiction, while the parties did not 2
Moore, ibid. p. 85. In an earlier arbitration under the Jay Treaty the issue of la competence de la competence had arisen and resulted in arbitrators withdrawing because of disagreement: see Moore, 3 History and Digest of International Arbitrations (1898) p. 2277. In the Betsey Case the two American Commissioners expressed views in favour of la competence de la competence: (1797) Moore, 3 ibid. pp. 2278 ff. In the result their views were accepted because the British government agreed with them. 4 See the Sully Case (1798), Moore, 3 ibid. pp. 2304 ff. Problems were still solved diplomatically and politically rather than judicially. 5 See, e.g., the Claim of the United States and the Paraguay Navigation Co. (1859, USA v. Paraguay), Moore, 2 ibid. pp. 1485 ff.; the Isaac Harrington Case (1962, USA v. Costa Rica), Moore 2 ibid. pp. 1551 ff.; the Colombian Bond Cases (1866, USA v. Colombia), 4 ibid. pp. 3614 ff.; the Blondel Case (1869, GB v. Venezuela), Lapradelle—Politis, 2 R.A.I, pp. 535 ff. 6 Moore, 3 op. cit. note 3 at p. 2743. See also the Moverie Case, referred to in Ralston, The Law and Procedure of International Tribunals (1926) at pp. 47-8, referring to Lobo's Brazilian—Bolivian Arbitral Tribunal. 3
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have to accept the tribunal's determination unless they assented to it.7 This was not a true judicial determination of the issue. Several authors treat this arbitration as the starting point for the acceptance of the legal principle that tribunals have the competence judicially to determine their own competence.8 While in reality the principle was not judicially applied as a legal principle in that case, it had already been applied as such in the "La Constancia" Case which was decided by the Colombia-US Mixed Commission in 1855, several years before the Alabama Arbitration which was decided in 1872. In the late nineteenth and early twentieth centuries many arbitration treaties, both multilateral and bilateral, included an express provision that tribunals had la competence de la competence? There were also several arbitrations in which the principle of la competence de la competence was expressly acknowledged and applied. It was recognized in 1884 in the Le More Case where the claim was dismissed for want of jurisdiction after one of the parties insisted 7
Moore, 1 op. cit. note 3 at p. 647. Cavare, 2 Le Droit International Public Positif (1962) p. 230, Berlia, "Le Jurisprudence des Tribunaux Internationaux en ce qui concerne Leur Competence", 88 Hague Recueil (1955) at pp. 199,122; Rousseau, 5 Droit International Public (1983) p. 324 (view expressed originally in 1953); Fitzmaurice, 2 The Law and Procedure of the International Court of Justice (1986) p. 452 (article originally published in 1958); Rosenne, 2 The Law and Practice of the International Court of Justice (1997) pp. 848-9. Indeed, the ICJ seems to have adopted the view espoused by these authors in the Nottebohm Case (Preliminary Objection): 1953 ICJ Reports at p. 119. 9 See, e.g., Hague Convention No. 1 for the Pacific Settlement of Disputes (1899), Article 48; Hague Convention on the Pacific Settlement of International Disputes (1907), Article 73; Arbitration Treaty (1902) among Argentina, Bolivia and Other States; Compromis d'Arbitrage (1914) between France and Peru, Article 3 (see 1 UNRIAA at p. 217); Convention for the Submission to Arbitration of Certain Claims against the Government of Costa Rica (1922) between Great Britain and Costa Rica, Article 1 (see 1 UNRIAA at p. 372); Agreement Related to the British Properties in Spanish Morocco (1923) between Spain and Great Britain, Article 2 (see 2 UNRIAA at p. 621); Compromis (1925) between the USA and the Netherlands, Article 5 (see 2 UNRIAA at p. 833); Compromis (1930) between Germany, Belgium and Other Powers, Article 15(8) (see 3 UNRIAA at p. 1373); Compromis Concerning the Tardien Accord (1936) between Belgium and France, Article 2 (see 2 UNRIAA at p. 1703). 8
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that the tribunal decide on its jurisdiction and the tribunal did so.10 Later in 1900 in the Dreyfus freres et Cie et al. Case between Chile and France, where the constitutive document referred to the principle, the tribunal said "la doctrine at la jurisprudence sont unanimes pour admettre que les Tribunaux internationaux apprecient euxmemes leur competence..." and applied the principle.11 In the Wolfish Bay Boundary Case of 1911 the tribunal said, in applying the principle, "it is a constant doctrine of public international law that the arbitrator has powers to settle questions as to his own competence by interpreting the range of the agreement "12 When the issue arose in 1923 in the Rio Grande Irrigation and Land Co. Case13 and more recently in 1940 in the Societe "RadioOrient" Arbitration,14 both decided after the 1907 Hague Convention had come into force, the tribunals, and the latter a PCA arbitral tribunal, had no hesitation in asserting the principle. In the former case the tribunal referred specifically to Article 73 of the Hague Convention15 and in the latter the tribunal stated: "tout tribunal d'arbitrage international est juge de sa propre competence".16 INITIAL RATIONALE AND EXPLANATIONS OF THE RULE The two commissioners in the Betsey Case who took the view that the tribunal had the power to decide on its own jurisdiction when the 10
(1884, USA v. France), Moore, 2 op. cit. note 3 p. 1133 at pp. 1 1 4 3 - 4 e e also the Didier Case (1892, Chile v. USA), Moore, 4 ibid, at p. 4331 where the tribunal's competence de la competence was exercised, though it was not a serious issue. 11 (1900, Chile v. France), 15 UNRIAA at p. 99. 12 (1911, Germany v. UK), 11 UNRIAA at p. 307. 13 (1923, UK v. USA), 6 UNRIAA at p. 131. 14 (1940, Egypt v. Syria and Lebanon), 3 UNRIAA p. 1874. 15 6 UNRIAA at p. 136. 16 3 UNRIAA at p. 1878. In several cases decided by the PCA tribunals the principle was applied without argument: see, e.g., the Pious Fund Case of Californias (1902, Mexico v. USA), 9 UNRIAA p. 11; the Russian Indemnity Case (1912, Russia v. Turkey), 11 UNRIAA p. 431. There was no objection to its application.
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principle was questioned for the first time gave the following reasons in their opinions in support of the principle on the basic understanding that the power was self-evident and incident to the powers conferred on the Commission:17 (i) It was clear that the parties did not envisage a future reference back to themselves to determine the cases which should be submitted to the Commission because the parties had neglected to mention it.18 (ii) If the Commission could not decide itself on its jurisdiction and was not asked to refer the question to the parties, the consequence would be that it should either assume that the case was within its jurisdiction, or refer it to some other tribunal to determine this issue. Neither consequence was acceptable, the former because it would work injustice in the absence of an examination of the question and the latter because there was no authority for it in the treaty of submission and there was no tribunal or person authorized to make this determination.19 (iii) The power to decide whether the claim was a case described in the arbitration treaty was implied in, if not explicitly understood from, the very power to decide on the justice of the claim, a denial of this being a contradiction.20 (iv) The Commission had previously dismissed several claims upon the sole ground of want of jurisdiction after the respondent had questioned its jurisdiction, which was the proper exercise of the Commission's powers.21 (v) In view of (iv) above, the absence of competence to determine jurisdiction would be an exception which is subject to proof.22 (vi) The analogy with municipal (national) experience showed that courts of justice must decide on their jurisdiction whenever such jurisdiction is questioned.23 (vii) If there was a danger in allowing the Commission this power, the answer was to be found in the Law of Nations, the Common Law of England and common sense, namely that a party is not bound by the decision of arbitrators in a case outside the 17 18 19 20 21 22 23
Moore, 3 op. cit. note 3 pp. 2282, 2293, 2298, 2303. Moore, 3 ibid. p. 2279. Moore, 3 ibid. p. 2282. Moore, 3 ibid. p. 2289. Moore, 3 ibid. pp. 2298, 2303. Moore, 3 ibid. p. 2299. Moore, 3 ibid. p. 2297.
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submission, such a decision would be a dead letter, and it would be no decision.24 Some late 19th century authors envisaged arbitration as a limited means of solving international disputes. It was resorted to by agreement and then the arbitrator was a "mandatory" who would violate his strict mandate if he arrogated to himself the right to adjudicate on his own competence or to interpret the compromis.25 As international tribunals exercised their competence de la competence more frequently, authors referred to the existence of a controversy about that power and in general it was agreed that its exercise was both proper and necessary.26 However, while there was general agreement on the general principle there was a diversity of explanations for its existence.27 In some respects there was a repetition of the arguments of the two arbitrators in the Betsey Case.28 However, basically there were two views. One view referred the competence de la competence to the will of the parties (real or constructive). Accordingly, the parties were presumed to have agreed to 24
Moore, 3 ibid. p. 2290. E.g., Heffter, Le Droit International de I'Europe (Bergson's translation, 1883) p. 238 note 5; Holtzendorf. Elements de Droit International Public (translated by Zographos, 1891) p. 523; Bonfils, Manuel de Droit International Public (1st ed. 1894) p. 523. Later authors have also characterized the compromis as a mandate: see Borel, "Les Voies de Recours Centre les Sentences Arbitrates," 52 Hague Recueil (1935—11) at p. 72. 26 See, e.g., Rolin-Jaequemyns, "Quelques Mots sur la Phase Nouvelle du Differend Anglo-Americain", 4 RDILC (1872) at pp. 137, 139; Fiore, 2 Trattato di Diritto Internazionale Pubblico (1888) pp. 574-5; Martens, 3 Traite de Droit International (1887 Translation by Leo) p. 153; Piedelievre, 2 Precis de Droit International Public (1895) p. 68; Merignhac, Traite Theorique et Pratique de L'Arbitrage International (1898) pp. 245-5; Calvo, 3 Droit International (1896) p. 481; Oppenheim, 2 International Law (1906) p. 25; Moore, 2 op. cit. note 3 p. 1241; Politis, La Justice Internationale (1924) p. 79. 27 laccarino, "Delia c.d. Competenza sulla Competenza dei Tribunali Internazionali", 14 Diritto Internazionale (1960) at pp. 363-75. 28 See the discussion of the Hungarian Optants Case on the theoretical justification of the competence de la competence'. Scelle, "La Litige RoumanoHongrois devant le Conseil de la Societe des Nations," in La Reforme Agraire Roumanie en Transylvanie devant la Justice Internaitonale et le Conseil de la Societe des Nations—Quelques Opinions (1928) at p. 309. 25
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confer on the tribunal the power to determine its jurisdiction.29 The power could not be exercised by the tribunal if the parties agreed to reserve it to themselves or to another organ. The silence of the parties resulted in a rebuttable presumption that the tribunal had la competence de la competence.30 The second view, which was more common, regarded the competence de la competence as a power that was both inherent in every judicial organ, and independent of the will of the parties.31 Without this power the tribunal would not be able to act at all.32 Because the power was the basis for the functioning of the tribunal, it could not be reserved by one party or by the agreement of both. Because the judge had the power to interpret the compromis in order to reach a decision on the merits, he should also have the power to interpret the compromis in order to come to a decision on jurisdiction. The principle was a general principle valid for national tribunals as well as for international tribunals.33 The power was a characteristic of a court of justice. Moreover, if it were denied to international tribunals, there could be no one else, for practical purposes, to decide 29
See, e.g., Pradier-Fodere, 6 Traite de Droit International Public (1894) p. 424; Lapradelle, "L'Exces de Pouvoir de 1'Arbitre", 2 Revue de Droit International (1928) at p. 32; Bosco, Rapporti e Conflitti fra Giurisdizioni Internazionali (1932) p. 45. 30 Berlia, "La Jurisprudence des Tribunaux Internationaux en ce qui concerne leur Competence", 88 Hague Recueil (1955) at p. 118. 31 See Cavare, 2 Le Droit International Public Positif (1962) at. p. 228; laccarino, loc. cit note 27 at pp. 375,399,402; Carlston, The Process of International Arbitration (1946) pp. 74-5, 76; Balasko, Causes de Nullite de la Sentence Arbitrate (1938) pp. 182-3, 185, 186; Rousseau, "Le conflit Italo-Ethiopien," 44 RGDIP at 22-5 (1937); Ralston, op. cit. note 6 pp. 47-8; Calvo, op. cit. note 26 p. 381. 32 Ralston, op. cit. note 6 pp. 47-8; laccarino, loc. cit. note 27 at p. 403; Carlston, op. cit. note 31 pp. 74-5, Salvioli, "Sul Potere dell' Arbitro a Pronunciarsi sulla Competenza," 13 Diritto Internazionale (1959) at pp. 121-2. 33 Bos, Les Conditions du Proces en Droit International Public (1957) p. 271; Hudson, International Tribunals (1944) p. I l l ; Balasko, op. cit. note 31 p. 183; Wittenberg, L'Organisation Judiciaire, la Procedure et la Sentence Internationales (1937) pp. 368, 409; Politis, op. cit. note 26 p. 79. See also the Ambatielos Case (Preliminary Objections), 1952 ICJ Reports at p. 55, Judge Spiropoulos in a separate opinion.
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the issue. There was no higher court nor were the parties in agreement. In order, therefore, that the dispute on jurisdiction and consequently the one on the merits be settled, the tribunal must itself exercise this power which was inherent. Arbitration was not to be governed by diplomatic action. As the substantive jurisdiction of the tribunal was limited by the parties' own agreement, there was no danger in letting the tribunal exercise this power. Should there be such a danger it would certainly be materially less serious and practically less probable than the dangers involved in permitting the defendant to decide the issue.34 The two views had different consequences. One excluded the right of the parties to limit the tribunal's jurisdiction to decide on its own jurisdiction, while the other, basing itself purely on consent, permitted agreed reservations which would take away that jurisdiction from the tribunal and vest it in one of the parties. However, in the practice of arbitration treaty making it became common to include a clause permitting a party and not the tribunal to decide whether ratione materiae the dispute or part of it should be submitted to the arbitral tribunal (the clause contraire}. It then came to be acknowledged that the clause contraire had the effect of taking away the competence de la competence of the tribunal to the extent of the reservation but once the party concerned had exercised the right of reservation under the clause the tribunal would have the power and duty to exercise its competence de la competence.35 Conceivably, though, the reservation of the right by a party to determine whether the dispute was subject to the tribunal's jurisdiction could have the effect of completely depriving the tribunal of jurisdiction to determine its jurisdiction in cases in which the party 34
Cavare, 2 op. cit. note 31 p. 228; Balasko, op. cit. note 31 p. 186. Guggenheim, 2 Traite de Droit International Public (1954) pp. 107, 147; Wilson, "Reservation Clauses in Agreements for Obligatory Arbitration", 23 AJIL (1929) at p. 83. Examples are cited in United Nations, Systematic Survey of Treaties for the Pacific Settlement of International Disputes, 1928-1948 pp. 27, 32, 39. Reservations were often made of questions relating to "national honour, vital interests and the interests of third states": Scott, The International Conferences of American States 1889-1928 (1931) pp. 40, 41. See also Cory, Compulsory Arbitration of International Disputes (1932) passim for discussion of this matter. 35
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exercised the right to decide that the whole dispute was in its opinion within the reserved clause and, therefore, solely by its volition outside the tribunal's jurisdiction. While it is possible that, if a party with good legal effect withdrew under the clause contraire only a part of the dispute from the tribunal's jurisdiction and yet contested the tribunal's jurisdiction in relation to another part, the tribunal would have had la competence de la competence and the right to determine whether it had that competence de la competence in respect of the part of the dispute which had not been unilaterally withdrawn but in regard to which objections to the jurisdiction had been raised, it was also possible that both the question of la competence de la competence and the right to decide whether the tribunal had this competence be completely taken away from the tribunal by an exercise of will by one of the parties. Sometimes this dichotomy was not recognized by authors. The result was that they denied totally the implied or inherent power of the tribunal to decide on its jurisdiction, where there was no provision to the contrary in the arbitration treaty.36 It was only where the treaty included a clause contraire that the tribunal would have any jurisdiction to decide on its competence and that outside the limits of the exercise of a party's will under the reservation. The 1899 and 1907 Hague Conferences attempted in part to address the problems that were being faced. The 1907 Hague Convention on the Pacific Settlement of International Disputes provided in Article 73 that tribunals had la competence de la competence. This provision applied to arbitrations under the auspices of the PCA to which resort has, however, not often been had. The ILC took up the issue when it examined the subject of arbitral procedure from 1949 to 1958. After formulating more than one draft consequent upon discussions within the ILC and in the GA and the comments of 36
Delbez, Les Principes Generaux du Contentieux International (1962) p. 70. See for a discussion of this, Simpson and Fox, International Arbitration (1959) pp. 15-16; Brierly, "Vital Interests and the Law", 21 BYIL (1944), at p. 51; Kelsen, "Compulsory Adjudication of International Disputes", 37 AJIL (1943) at pp. 403; Barclay, The New Method of Adjusting International Disputes in the Future (1917) p. 67. The non-existent power would include the right to decide whether the tribunal had the competence de la competence.
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governments, the ILC submitted to the GA a draft with a commentary, in Article 3 of which it was provided: 1. If, before the constitution of an arbitral tribunal, the parties to an undertaking to arbitrate disagree as to the existence of a dispute, or as to whether the existing dispute is wholly or partly within the scope of the obligation to arbitrate, such preliminary question shall, failing agreement between the parties upon the adoption of another procedure, be brought by them within three months either before the Permanent Court of Arbitration for summary judgement, or, preferably, before the International Court of Justice, likewise for summary judgment of for an advisory opinion 3. If the arbitral tribunal has already been constituted, any dispute concerning arbitrability shall be referred to it.37
It is clear that even in 1958 there was much disagreement among states on the nature of arbitration—whether it was a diplomatic means of settlement or a judicial method. As a result the GA adopted a reservation on November 14, 1958 (Rs 1262 (XIII)) in which, inter alia, it merely brought the ILC draft articles to the attention of member states for consideration and use.38 However, since then there have been developments in practice and jurisprudence which show that the position has changed and that there is a certain tendency to adopt a practical approach which recognizes both the autonomy of the parties to a degree and the judicial nature of the international arbitral process so that la competence de la competence of arbitral tribunals including their power to decide whether they have that competence is in principle acknowledged. CURRENT STATUS—GENERAL JURISPRUDENCE Currently and perhaps for the better part of the twentieth century there has been no serious issue raised about the competence de la 37
2 YBILC (1958) at p. 5. The draft was in a report submitted by Scelle, the rapporteur for the ILC. 38 Rs. 1262 (XIII) of November 14, 1958, 1958 UNYB at p. 385.
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competence of international tribunals. It has been discussed occasionally in the cases but in general the principle has been applied consistently. There have been several significant developments in the second half of the twentieth century. First, following the example of the PCIJ statute, Article 36 of which expressly stated that, "In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court", the constituent instruments of many permanent or established tribunals have express provisions which in one form or another state the principle of la competence de la competence. Thus, Article 36(6) of the statute of the ICJ has exactly the same content as the provision relating to the principle of la competence de la competence in the statute of the PCIJ. The statutes of most lATs have provisions relating to the principle. Thus, Article 2(3) of the UNAT statute states: "In the event of a dispute as to whether the Tribunal has competence, the matter shall be settled by the decision of the Tribunal."39 The European Convention on Human Rights provides in Article 49 that the ECHR shall decide disputes as to its competence.40 Second, some institutional arbitration arrangements also provide in their constitutive instruments that tribunals shall be judges of their own competence. The ICSID Convention provides as much in Article 41(1). As already seen the 1907 Hague Convention had the equivalent provision for arbitrations through the PC A.41 39
UN Doc. A/C.6/55/L.18 of 14 December 2000 at p. 3. See also for similar provisions Article 11(7) of the ILOAT statute: Amerasinghe (ed.), Documents on International Administrative Tribunals (1989) p. 32; Article 11(5) of the OASAT statute: Amerasinghe (ed.), ibid. p. 84; Article 4 of The COEAT statute; Article III of the WBAT statute: Amerasinghe (ed.), ibid. p. 46. A few statutes, such as the IDBAT statute and the NATOAB statute, do not have such express provisions. 40 The American Convention on human rights does not have such an express provision for the IACHR. 41 Chapter XI of NAFTA by incorporating ICSID Arbitration impliedly accedes to the provision in the ICSID Convention. The Algiers Declaration (Claims Settlement) of 1981 which established the Iran-US Claims Tribunal says nothing about the competence de la competence of the tribunal.
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Third, the incidence of challenges to the principle of la competence de la competence before permanent courts or arbitral tribunals has been infrequent, whether the principle is expressly enshrined in the constitutive instrument or compromis or not, although challenges to jurisdiction itself in a broad sense may be less infrequent.42 This signifies that by and large the principle is accepted. In the Bluefin Tuna Case which was an ad hoc arbitration under Annex VII of UNCLOS objections were raised by the respondent party to the jurisdiction of the tribunal which were ultimately upheld but there was never any issue as to whether the tribunal could pronounce on its own jurisdiction.43 Before the Iran-US Claims Tribunal the issue of the competence de la competence of the tribunal has never arisen although sometimes jurisdiction has been hotly contested. It has also not been agitated before 1C SID tribunals. While the matter has been discussed by permanent courts, such as the ICJ, it has not been a significant issue in their work. In several ICSID arbitrations the principle which is enshrined in Article 41 of the ICSID Convention has been affirmed, while it has also been recognized by the tribunals that there had been no objection to the application of the principle. In Klockner v. Cameroon the tribunal constituted to consider annulment of the original award stated "It is neither contestable nor contested that the arbitrators have 'the power to determine their own jurisdiction' (la competence de la competence) ,..".44 In the arbitration by the ICC of the case SPP (Middle East) Ltd. and Southern Pacific Properties Ltd. v. Arab Republic of Egypt and Egyptian General Company for Tourism and Hotels, which was not, however, an international arbitration proper, the tribunal pointed out that Egypt did not dispute the competence 42
As Berlia points out, there is a "simple contestation de competence" and a "double contestation de competence"', loc. cit. note 30 at pp. 110—11. On the power to contest the jurisdiction of a tribunal to decide on its own jurisdiction see also Salvioli, loc. cit. note 32 p. 119. 43 (2000, Australia and New Zealand v. Japan), 39 ILM p. 1359. 44 (1985, Annulment), 2 ICSID Reports at p. 103. See also for mention of the principle in other ICSID arbitrations—Amco v. Indonesia (1983, Jurisdiction), 1 ICSID Reports at p. 391; SPP(ME) Ltd. and SPP Ltd. v. Egypt (1988, Jurisdiction), 3 ICSID Reports at pp. 152-5.
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of the tribunal to rule upon and decide in a binding manner whether it had competence in the case.45 In Tadic46 the Appeals Chamber of the ICTY applied the principle because the issue had been raised both in the Trial Chamber and before it as to whether the tribunal could decide whether it had the jurisdiction or competence to proceed with the case judicially because it had not been legally established. The prosecutor argued that there was a fait accompli, that the legality of the tribunal's establishment could not be questioned and that the tribunal could not decide the matter but had to accept the legality of its establishment. The Trial Chamber took the view that it could not be inferred that "it was intended that the International Tribunal be empowered to question the legality of the law that established it" and that, therefore, it had "no authority to investigate the legality of its creation by the Security Council".47 The Appeals Chamber overruled the Trial Chamber on the point, stating: This power, known as the principle of "kompetenz—kompetenz" in German or "la competence de la competence" in French, is part, and indeed a major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal, consisting of its 'jurisdiction to determine its own jurisdiction'. It is a necessary component of the judicial function and does not need to be expressly provided for in the constitutive documents of those tribunals, although this is often done 48
The tribunal concluded that it had to exercise its "competence de la competence" and examine the jurisdictional plea of the defence relating to the legality of the tribunal's establishment, in order to ascertain whether it had jurisdiction to hear the case on the merits.49 45
(1983), 3 ibid, at p. 57. The French Court of Appeal in the same case on appeal affirmed the principle for arbitrations: Arab Republic of Egypt Case (1984), 3 ibid, at p. 85. Another domestic court in New Zealand in relation to a case in which 1C SID arbitration was invoked asserted the principle: A-Gv. Mobil Oil NZ Ltd. (1987), 4 ibid, at pp. 128, 133. 46 (1995), ICTY: Judicial Reports 1994-1995 p. 353. 47 (1995), ibid, at p. 69. 48 (1995), ibid, at p. 371. 49 Ibid, at p. 374.
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This jurisdiction to determine its own jurisdiction was described as an "incidental" jurisdiction to ascertain the tribunal's own "primary" jurisdiction over the case before it.50 The Tadie case supports fully the view that the competence de la competence of a tribunal does not need to be expressly provided for in its constitutive instrument or compromis. Conversely, as was pointed out by the ICJ in the Effect of Awards Opinion, one of the essential attributes of a tribunal of a judicial nature is the competence to determine its own jurisdiction, so that if the constitutive instrument provides for that power this is a strong indication that a judicial function was intended.51 It is to be noted, though, that the ICJ did not state that any body that had la competence de la competence was a judicial tribunal. For, some bodies, such as conciliation commissions and investigative commissions (e.g. human rights) may have that power, while not being judicial. What the ICJ did say was that the presence of the competence was an important indication of judicial nature. On the other hand, it could be inferred that a body could not be a judicial tribunal unless it did have that power. In the case of ITLOS, the permanent tribunal established under UNCLOS, while neither the statute of the tribunal expressly refers to the competence de la competence of the tribunal, nor has the matter of this jurisdiction been raised as an issue before the tribunal, the tribunal has exercised its jurisdiction to determine its own jurisdiction.52 Arbitral and other tribunals have exercised the competence de la competence, where this competence has not been questioned.53 This has been done whenever an objection to primary jurisdiction has been raised. 50
Ibid, at p. 374. 1954 ICJ Reports at pp. 51-2. 52 See, e.g., the Saiga Case (1997, Saint Vincent and the Grenadines v. Guinea) 37 ILM at pp. 368 ff., paras. 37 ff. The issue was jurisdiction under Article 292 of UNCLOS. 53 See, e.g., some of the cases excerpted in Coussirat-Coustere and Eisemann, 1 Repertory of International ArbitralJurispmdence (1989) pp. 390-5, 395-6, 398-9, 2 ibid. pp. 647-56, 656-7, 668-71, 3 ibid. pp. 1399-1450, 1453-78, 1485-1525. 51
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It may be concluded that the principle became fully accepted in international law and jurisprudence that a judicial tribunal has the inherent jurisdiction to determine its own jurisdiction (la competence de la competence), whether the authority is expressly granted in its constitutive instrument or not. As was explained by the ICTY in the Tadic Case, this is an incidental jurisdiction to determine its primary jurisdiction which (the latter) may have many facets to it. CURRENT STATUS—JURISPRUDENCE OF THE WORLD COURT It had not been contested before the PCIJ that the Court does have the jurisdiction to determine its own jurisdiction. There was never a dispute between parties on this point. In fact the statutes of both Courts, as has been seen, have provisions stating that the Court has such jurisdiction. The general principle was, however, confirmed by the PCIJ and by individual judges of the PCIJ in individual opinions. In the Interpretation of the Greco-Turkish Agreement Opinion, the Court, in dealing with the question raised of the powers of the Mixed Commission (not its own powers), stated that "as a general rule, any body possessing jurisdictional powers has the right in the first place to determine the extent of its jurisdiction" and that, therefore, the Mixed Commission must settle any questions affecting its own jurisdiction.54 In its judgment in the Minority Schools Case the Court decided in fact on its own jurisdiction to deal with the merits.55 Though its authority to decide on its own jurisdiction was not questioned, the action it took implemented the principle of la competence de la competence. Apart from these cases which clearly support the principle being discussed, there were several individual judges of the PCIJ who expressed opinions in support of the principle. In his individual opinion in the Mavrommatis Palestine Concessions Case, the second case decided by the PCIJ, Judge Moore stated that it was an elementary conception common to all systems of law that a court of 54 55
(1928), PCIJ Series B No. 16 at p. 20. (1928), PCIJ Series A No. 15.
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justice must not hear and adjudge the merits of a cause over which it has no jurisdiction and must therefore verify if jurisdiction is lacking.56 In the Electricity Company of Sofia and Bulgaria Case Judge Urrutia stated clearly in his individual opinion that it was not only the right but the duty of the court, even ex qfficio, to make sure of its jurisdiction to take cognizance of a case.57 The ICJ has paid considerable attention to this principle—la competence de la competence—in its judgments. In fact, while the incorporation of the principle in Article 36(6) of the Court's statute has been acknowledged, it was argued by the respondent, Guatemala, in the Nottebohm Case (Preliminary Objection) that the principle there embodied had a limited application to determinations relating specifically to categories enumerated in Article 36(2) and was not of general application. The Court, rejecting this argument, came down heavily and forcefully in favour of the view that it had a general unlimited jurisdiction to decide on its own jurisdiction, as required by the general principles of international law. It said: Paragraph 6 of Article 36 merely adopted, in respect of the Court, a rule consistently accepted by general international law in the matter of international arbitration. Since the Alabama case, it has been generally recognized, following the earlier precedents, that, in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments which govern that jurisdiction The Rapporteur of the Convention of 1899 had emphasized the necessity of this principle,... as being "of the very essence of the arbitral function and one of the inherent requirements for the exercise of this function". This principle has been frequently applied and at times expressly stated. 56
(1924), PCIJ Series A No. 2 at pp. 57-8. Judge Moore dissented from the Court's conclusion but the Court said nothing to contradict this point. 57 (1939), PCIJ Series A/B No. 77 at pp. 102-3. The Court did not disagree on this point. See also the dissenting opinions of Judge Van Eysinga: ibid, at p. 109, and Hudson: ibid, at p. 118, and the dissenting opinion of Judge Anzilotti in the German Interests in Polish Upper Silesia Case, PCIJ Series A No. 6 at p. 30.
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This principle, which is accepted by general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal constituted by virtue of a special agreement between the parties for the purpose of adjudicating on a particular dispute, but is an institution which has been preestablished by an international instrument defining its jurisdiction and regulating its operation, and is, in the present case, the principal judicial organ of the United Nations. Consequently, the Court has not hesitated to adjudicate on the question of its own jurisdiction in cases in which the dispute which had arisen in this respect went beyond the interpretation and application of paragraph 2 of Article 36 Article 36, paragraph 6, suffices to invest the Court with power to adjudicate on its jurisdiction in the present case. But even if this were not the case, the Court, "whose function is to decide in accordance with international law such disputes as are submitted to it" (Article 38, paragraph I, of the Statute), should follow in this connection what is laid down by general international law. The judicial character of the court and the rule of general international law referred to above are sufficient to establish that the Court is competent to adjudicate on its own jurisdiction in the present case.58 The Court proceeded to adjudicate on whether it had jurisdiction in the case. The implication of the Court's pronouncement is quite clear. Article 36(6), even if it was limited in its application and referred specifically to a jurisdiction to decide on jurisdiction in circumscribed cases, which it did not, did not in any case infringe on or derogate from the general principle of international law that a tribunal has la competence de la competence. Not only was the principle asserted as part of the ratio decidendi of the case but it was asserted as a general principle of international law pertaining to international tribunals of a judicial nature. In the Monetary Gold Case, where the jurisdiction of the Court was challenged but the claimant objected by filing a preliminary question to the Court's jurisdiction to decide upon the objection, the Court held that it did not consider itself lacking in jurisdiction to adjudicate upon the issues raised (which 58
1953 ICJ Reports at p. 119.
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were issues relating to competence), because it fell within the Court's judicial task to do so.59 There were several other cases decided by the ICJ in which it proceeded to determine its own jurisdiction whether this jurisdiction had been challenged or not. Thus, in the Corfu Channel Case (Merits) the Court decided the issue whether it had jurisdiction to assess the amount of compensation, an issue which related to the interpretation of a Special Agreement.60 In the Ambatielos Case (Jurisdiction) the Court adjudicated upon a dispute as to its jurisdiction which related to the interpretation of a jurisdictional clause in a treaty. It is true that in both cases the dispute had nothing to do with Article 36(2) of the statute and no objection had been raised to the exercise of the competence de la competence.61 There are several cases in which the principle was invoked and the Court acknowledged it, although there was strictly no issue in regard to it. In the Interpretation of Peace Treaties Opinion the Court stated that the principle applied both in relation to itself and to the Commissions to be established pursuant to the treaties.62 In the Effect of Awards Opinion the Court referred to the power to decide upon its jurisdiction as an attribute of the judicial character of an international court or tribunal and mentioned that the related principle was one of the general rules of judicial character generally laid down in statutes and laws issued for courts of justice.63 The principle has been referred to with particular emphasis in individual opinions in three cases. In the Judgments of the Administrative Tribunal of the I.L. O. Opinion Judge Cordova described the competence de la competence of a judicial body as an obligation of the body.64 In the Norwegian Loans Case Judge Lauterpacht in a separate 59
1954 ICJ Reports at pp. 28-9. The Court found the objection raised had been properly and validly raised and decided on the matter of its competence that it had no jurisdiction to adjudicate on the merits of the case. 60 1949 ICJ Reports at pp. 23-6. 61 1952 ICJ Reports at p. 28. 62 1950 ICJ Reports at p. 72. 63 1954 ICJ Reports at p. 163. 64 1956 ICJ Reports at p. 163. He referred to the "obligation... to ascertain its own competence". This was a dissenting opinion but there was no express disagreement on the point made here.
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opinion in dealing with an issue with which the Court thought it unnecessary to deal because it found that it had no jurisdiction on other grounds stated: In the reservation in question the Government of France says in effect: If a Government brings an application before the Court in reliance on the French acceptance of the jurisdiction of the Court and if the Government of France maintains that the Court has no jurisdiction on the ground that the subject-matter of the dispute is essentially within the domestic jurisdiction of France, then the Court has no power to decide upon that particular allegation; it must accept as binding the French understanding of the legal position on the subject. If that type of reservation is valid, then the Court is not in the position to exercise the power conferred upon it—in fact, the duty imposed upon it—under paragraph 6 of Article 36 of its Statute. That paragraph provides that 'in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by a decision of the Court'. The French reservation lays down that if, with regard to that particular question, there is a dispute between the Parties as to whether the Court has jurisdiction, the matter shall be settled by a decision of the French Government. The French reservation is thus not only contrary to one of the most fundamental principles of international—and national—jurisprudence according to which it is within the inherent power of a tribunal to interpret the text establishing its jurisdiction. It is also contrary to a clear specific provision of the Statute of the Court.... 65 In the Interhandel Case Judge Lauterpacht reiterated the views he had expressed in the Norwegian Loans Case, stating that the principle enshrined in Article 36(6) of the Statute was declaratory of one of the most firmly established principles of international and judicial practice, namely that "in the matter of its jurisdiction, an international tribunal, and not the interested party, has the power of 65
1957 ICJ Reports at p. 44. The opinion was not a dissenting opinion. See also the dissenting opinion of Judge Guerrero. He pointed out that the French reservation conflicted with Article 36(6) which stated a principle that was "common to all arbitral and judicial tribunals of an international character": ibid, at pp. 68-9.
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decision whether the dispute before it is covered by the instrument creating its jurisdiction".66 In different circumstances, that is, in relation to the powers of arbitral tribunals and not in regard to its own powers particularly, the Court in the Arbitral Award of 31 July 1989 Case61 referred to "the rule accepted by general international law in the matter of international arbitration", that, "in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction...", citing its pronouncement in the Nottebohm Case (Preliminary Objection). It is significant that, while the Court referred to the presence of a provision in the arbitration agreement giving the tribunal the power to determine its own jurisdiction, it also said that that provision "confirmed" the existence of the power, implying that even in the absence of an express provision the power would certainly have existed. There are several cases (both contentious and advisory) in which the competence de la competence has been exercised by the Court, where no objection has been raised to its exercise.68 It has been assumed that the power exists. 66
1959 ICJ Reports at p. 104. This was said in a dissenting opinion. See also for similar views the separate opinion of Judge Spender: ibid, at p. 56, and the dissenting opinion of Judge Armand-Ugon: ibid. at p. 92. In the UN Expenses Opinion the Court, while not dealing with the ICJ or international tribunals as such, stated that in international organizations "each organ must, in the first place at least, determine its own jurisdiction": 1962 ICJ Reports at p. 168. This is not exactly the same principle as the one that relates to judicial tribunals because the raison d'etre of the rules are different. The organs of international organizations are not judicial bodies. They must have the authority, if needs be, to determine their own jurisdiction in the first place in order that they may function efficiently and promptly. 67 1991 ICJ Reports at pp. 68-9. In the case the arbitration agreement gave the tribunal the power to determine its own jurisdiction. 68 See, e.g., the Right of Passage over Indian Territory Case (Preliminary Objections), 1957 ICJ Reports p. 125; the Aerial Incident (Israel v. Bulgaria), 1959 ICJ Reports p. 127; the Temple of Preah Vihear Case (Preliminary Objections), 1961 ICJ Reports p. 17; the Fisheries Jurisdiction (UK v. Iceland) Case (Jurisdiction), 1973 ICJ Reports p. 3; the Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports p. 392; the Qatar and Bahrain Maritime
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CURRENT STATUS—CONCLUSION The jurisprudence of international tribunals, whether permanent or not, supports the view that an international tribunal has the jurisdiction to decide on its own jurisdiction, whether the constitutive instrument expressly gives it that power or not. It is a general principle of international judicial law. Text-writers do not disagree that there is such a general principle. The rule itself relates to an "incidental" jurisdiction, as was pointed out in, among other cases, the Tadic Case. It is an incidental jurisdiction to decide principally on whether the tribunal has primary or principal jurisdiction which relates generally to the merits but may not always be so restricted. The competence may relate, for example, to deciding on the jurisdiction to grant provisional or interim measures or to permit an intervention. It would be true to assert also that the competence is not based necessarily on the consent of the parties to the dispute. It is rather an incident of the exercise of judicial power which inheres in a tribunal by virtue of its creation or establishment as a judicial tribunal.69 Both the ICJ in the Nottebohm Case and Judge Lauterpacht in the Norwegian Loans Case and in the Interhandel Case, as has been seen, described the power as an "inherent" power. It is possible to argue that the principle, where it is not stated in the constitutive instrument of the tribunal, is dependent on the implied consent of the parties to the extent that it is not diluted in any way by the express agreement of the parties but this may not be an accurate representation of the position, as will be seen later in this chapter. It is better and more logical to regard the jurisdiction as an incidental one that inheres in all international tribunals of a judicial character, Delimitation and Territorial Questions Case (Jurisdiction and Admissibility), 1994 ICJ Reports p. 112; the WHO Nuclear Weapons Opinion, 1956 ICJ Reports p. 66; the Fisheries Jurisdiction (Spain v. Canada) Case (Jurisdiction), 1998 ICJ Reports p. 432. 69 In the Rio Grande Irrigation and Land Co. Case (1923, UK v. USA), 6 UNRIAA at pp. 135-6, the arbitration tribunal described the power as "inherent". The source of the principle, la competence de la competence, could be either custom which has developed or general principles of law.
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which may, however, as a result of recognition of pragmatic needs, be affected or diluted by agreement of the relevant parties in appropriate circumstances. POSSIBLE LIMITATIONS (1) International Arbitrations The general principle of la competence de la competence has been formulated in regard to international arbitration in different ways. The evidence on qualifications of the principle is as follows: (a) In arbitrations, generally ad hoc, tribunals have stated the principle to be applicable to international arbitral tribunals, unless derogated from by agreement of the relevant parties, i.e. unless there is a clause contraire. Thus, in the Societe "Radio-Orient" Case the tribunal stated that "en dehors des case ou les Parties en sont convenues autrement, tout tribunal d'arbitrage international est juge de sa propre competence".70 In the Rio Grande Irrigation and Land Co. Case the tribunal said: there is inherent in this and every legal Tribunal a power, and indeed a duty, to entertain, and, in proper cases, to raise for themselves, preliminary points going to their jurisdiction to entertain the claim. Such a power is inseparable from and indispensable to the proper conduct of business. This principle has been laid down and approved as applicable to international arbitral tribunals In our opinion, this power can only be taken away by a provision framed for that express purpose.71
Inter-state arbitrations such as these have specifically referred to the qualification arising from express derogation from the principle of la competence de la competence. (b) There are many arbitral decisions in which the principle of la competence de la competence has been stated without the 70 71
(1940, Egypt v. Syria and Lebanon), 3 UNRIAA at p. 1878. (1923, UK v. USA), 6 UNRIAA at pp. 135-6.
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qualification of express derogation. In the Walfish Bay Boundary Arbitration, for example, the tribunal merely stated that "it is a constant doctrine of public international law that the arbitrator has powers to settle questions as to his own competence .. ."72 and no more. In the Young Plan Case the arbitral tribunal stated without reference to express derogation that "it still remains the responsibility of the Tribunal to determine,..., its competence to act."73 (c) In regard to arbitrations specifically the ICJ in stating the principle of la competence de la competence has referred to "the absence of any agreement to the contrary" between the parties,74 while in stating the general principles in relation to international arbitral tribunals, the PCIJ referred to the principle without reference to the qualification based on the clause contraire in the constitutive instrument.75 Individual judges in both the PCIJ and the ICJ have referred to the general principle applicable to all international tribunals without reference to a qualification based on the clause contraire.76 72
(1911, Germany v. UK), 11 UNRIAA at p. 307. (1980, Belgium, France, Switzerland, UK and USA v. FRG), 59 ILR at p. 524. Other cases in which no qualification was mentioned include the Salem Case (1932, Egypt v. USA), 2 UNRIAA at p. 1181; the "La Constancia" Case (1866), Moore, 3 op. cit. note 3 at p. 2743. There are some transnational arbitrations in which no qualification was mentioned: e.g., the Chemins defer ZeltwegWolfsberg et Unterdrauberg-Woellen Case (1934), 3 UNRIAA at p. 1803. 74 See the Nottebohm Case (Preliminary Objection), 1953 ICJ Reports at p. 119, Arbitral Award of 31 July 1989 Case, 1991 ICJ Reports at pp. 68-9. 75 Interpretation of the Greco-Turkish Agreement Opinion (1928), PCIJ Series B No. 16 at p. 20. While prior to the establishment of the PCIJ (1921) the clause contraire may have been included in arbitration treaties from time to time, it became much less common to include such a clause in arbitration treaties after that date. The Systematic Survey of Treaties for the Pacific Settlement of International disputes, 1928-1948, published by the UN contains over 200 treaties. Only about six incorporate the clause contraire. 76 See, e.g., Judge Moore in the Mavrommatis Palestine Concessions Case (1924), PCIJ Series A No. 2 at pp. 57-8; Judge Urrutia in the Electricity Company of Sofia and Bulgaria Case (1939), PCIJ Series A/B No. 77 at pp. 102-3; Judge Cordova in the Judgments of the Administrative Tribunal of the I.L.O. Opinion, 1956 ICJ Reports at p. 163; Judge Lauterpacht in the Norwegian Loans Case, 1957 ICJ Reports at p. 44; Judge Guerrero, ibid. at p. 68-9. 73
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(d) In the Tadic Case the ICTY stated that It is true that this power (to determine the tribunal's own jurisdiction) can be limited by an express provision in the arbitration agreement or in the constitutive instruments of the standing tribunals, though the latter possibility is controversial, particularly where the limitation risks undermining the judicial character or the independence of the Tribunal. But it is absolutely clear that such a limitation, to the extent to which it is admissible, cannot be inferred without an express provision allowing the waiver or the shrinking of such a well-entrenched principle of general international law.77
The qualification was mentioned but in a rather guarded way. (e) Most text-writers appear to mention the principle of la competence de la competence in regard to international arbitral tribunals without reference to the possibility of a qualification, based on a clause contraire.78 (f) Institutionalized international arbitral tribunals, such as ICSID tribunals and tribunals operating under the aegis of the PCA, have never referred to any qualification of their power to determine their own jurisdiction. In both cases the governing instruments state quite clearly that tribunals shall have the power to determine their own jurisdiction, as has been seen. (g) There is no evidence that tribunals have had to decide on qualifications of their jurisdiction to determine their own jurisdiction or, indeed, that parties to arbitration agreements and compromis since the establishment of the PCIJ have made reservations to the jurisdiction of a tribunal accompanied by a provision that the decision on whether a dispute falls within the reserved area shall be made not by the tribunal but by the party concerned. This is the kind of qualification that is in issue—the clause contraire; when the parties not only reserve certain matters so that they are outside the 77
(1995), ICTY: Judicial Reports 1994-1995 at p. 374. See, e.g., Ralston, op. cit. note 6 pp. 44 ff.; Rousseau, 5 op. cit. note 8 p. 324; Fitzmaurice, 2 op. cit. note 8 pp. 451-4. Although the latter cites the Nottebohm Case (Preliminary Objection) where the clause contraire is referred to in his discussion, he does not advert to it as a possibility even in relation to arbitration. 78
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jurisdiction of the tribunal but further provide that the determination of whether the dispute in hand falls within the reserved area shall be made by the party concerned and not by the tribunal. There have been cases, as early as the Betsey Case,19 in which areas have been reserved and it has been recognized by the tribunal that the dispute or disputes fell within the reserved areas, but this is not the same situation as would arise if the parties specifically stated that the determination of whether the dispute or disputes were excluded from the tribunal's jurisdiction was taken out of the hands of the tribunals and left with one of the parties. The evidence is not conclusively in favour of the full effectiveness of a clause contraire in international arbitrations. Not only has there not been a case in which a tribunal has in effect not exercised its competence de la competence as the result of the inclusion of a clause contraire in the governing instruments, but the other evidence is conflicting, even if there are some dicta, for such they are, which support the view that a clause contraire in an arbitration agreement can have the effect of excluding the power of a tribunal to determine its own jurisdiction. The question is how is the evidence to be evaluated. The following analysis may be made. (i) It cannot be said with certainty that a clause contraire in an arbitration agreement which purports to deprive a tribunal of the power of determining its own jurisdiction in regard to a reserved domain, even though partial, has that particular effect. Recognizing this effect would undermine "the judicial character and independence of the tribunal" and would involve a contradiction in invoking third party settlement of a dispute. It will be recalled that in Tadic the ICTY adverted to this matter even in regard to arbitration. Such recognition could practically negate the submission to arbitration as a mode of third-party settlement. Even though the reservation may be partial, giving effect to the subjective element in it would deprive the judicial intervention of the third party in arbitration of any effect because the submission to which consent had been given by both parties to the dispute may be 79
(1797): see Moore, 3 op. cit. note 3 pp. 2278 ff.
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reversed by the choice of one party. All such clauses, however partial, would unfortunately have this effect. Whatever the clause, it would leave legal withdrawal from the arbitration on jurisdictional grounds in the hands of one party. This is inconsistent with the choice of adjudication as a mode of settlement of a dispute. Thus, one possible conclusion is that a clause contraire is totally without effect insofar as and because it is inconsistent with submission to adjudicatory settlement by arbitration, even though such submission is based on the consent of the parties. The views expressed by Judges Guerrero, Armand-Ugon and Lauterpacht, among others, in the ICJ on the effect of the automatic reservation under Article 36(6) of the ICJ Statute which have been mentioned earlier and which refer to the case of the ICJ's jurisdiction support the position taken above, if those views are transposed to the case of arbitration. What the effect of recognizing the ineffectiveness of the clause is seems to be ambiguous. It could be argued first, that the clause itself could be severed from the rest of the arbitration agreement and that the whole reservation clause will not be applied because it is invalid, while the rest of the arbitration agreement will remain valid. It is also possible, as a second alternative, that the subjective element alone in the clause be struck down as invalid, while the substance of the reservation itself, to be pronounced upon jurisdiction-wise by the tribunal alone, and the arbitration agreement stand. A third alternative is that the whole arbitration agreement is to be treated as invalid because of the presence of an element which militates against the judicial character and independence of the tribunal. In regard to such a reservation (automatic) in respect of acceptances of the jurisdiction of the ICJ, on the understanding that it is defective and cannot stand, while the Court has not addressed the matter, Judge Lauterpacht on the first occasion80 opted for the third alternative, while on another81 he consistently did the same. Judge Guerrero apparently may have opted for the first alternative,82 in so far as he did not mention the declaration as such at all but referred 80 81 82
Norwegian Loans Case, 1957 ICJ Reports at p. 44. Interhandel Case, 1959 ICJ Reports at pp. 101-2. Norwegian Loans Case, 1957 ICJ Reports at pp. 68-70.
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only to the invalidity of the reservation, Judge Armand-Ugon opted for the first alternative83 and Judge Spender in effect opted for the third alternative.84 Thus, judicial opinion is divided, if the analogy of submissions to the ICJ's jurisdiction is used in the case of arbitration agreements. There is some attraction in the third alternative, because the clause contraire may be considered an integral condition for the acceptance of arbitral adjudication. On the other hand, a subjective reservation as a whole may be severed and regarded as out of court because parties are deemed to have known that such a reservation as a whole derogates from the judicial function and must fall in itself. The theory of implied knowledge may equally lead to the acceptance of the second alternative. The ultimate choice of alternative does not reveal itself clearly. In order to give the arbitration agreement some effect, which was undoubtedly intended, the choice may lie between the first and second alternatives. At the same time, if the third alternative (Judge Spender) is the correct one, tribunals would be under an obligation proprio motu to declare that the arbitration agreement is invalid and that there was no valid submission to arbitration, regardless of whether the parties raise the issue or not. For the most effective results, i.e., to give the arbitration agreement a chance of surviving, while recognizing the wishes of the parties to some extent, the second alternative would serve the best. (ii) Exactly the opposite alternative is to permit the clause contraire to have full effect but in practice this does not ever seem to have happened in the jurisprudence of international arbitration, though there appear to be dicta supporting the position. (iii) There is a third possibility, which, however, has not been adopted in practice whether in decisions of arbitral tribunals or in obiter dicta, the reason being that the issue has neither been argued nor decided upon in litigation. This is that an appropriate clause contraire is to be recognized as valid to the extent that it involves the exercise of a discretion which the tribunal has the power to review and, therefore, control in the exercise of its jurisdiction to 83 84
Interhandel Case, 1959 ICJ Reports at p. 93. Ibid, at p. 57.
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determine its own jurisdiction. There are two matters of importance in this regard. First, the clause contraire cannot be so wide and general that it becomes impossible for a tribunal effectively to review the discretion incorporated in the clause. Secondly, a limited subjective reservation in a clause contraire would be controlled by reference to the principle of abuse of discretion which is known, inter alia, in international administrative law. The tribunal would not be substituting its own judgment for that of the party concerned but would verify that the discretion had been exercised in good faith, inter alia, and without abuse. If this degree of control over jurisdiction, where there is a clause contraire, were allowed to prevail, it is possible to reconcile giving some effect to the clause contraire with the requirement of not "undermining the judicial character or independence of the tribunal". While recognizing the autonomy of the parties to an appreciable extent, the power of the tribunal to determine its own jurisdiction is also to some extent, though not totally, respected. The consequence of having a clause contraire which is too general and wide would still be that it is to be regarded as invalid, because it becomes impossible for the tribunal to exercise any control at all over determining its own jurisdiction, while a limited clause contraire would be valid, because it permits control by the tribunal over an exercise of discretion, thus safeguarding in large measure the judicial character and independence of the tribunal. (iv) Certainly in the case of arbitration which is institutionalized the situation will be different. Institutionalized arbitration systems, such as PCA and ICSID, have in common that the principal governing instruments provide that arbitral tribunals shall have the power to decide on their own jurisdiction. In the face of such an express provision, arbitration agreements submitting to arbitration within these institutionalized systems are not permitted to have a clause contraire. If they do, it is likely that only the subjective element in the reservation would be struck down, while the substantive part would be allowed to stand subject to the power of the tribunal to decide whether the dispute falls within the reservation so as to exclude its jurisdiction rather than the whole arbitration agreement or clause be declared invalid or the whole reservation be struck down. The reason for this is that in the face of the express statement
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of the principle that the tribunal has jurisdiction to determine its own jurisdiction, it is only the attempt to take away this power from the tribunal that needs to be thwarted. Though reservations may be permitted by agreement, the parties are deemed to be aware of the prohibition against depriving the tribunal of its competence de la competence. As a result, the inclusion of what is prohibited is to be treated as a faux pas, so to speak, and is to be disregarded. There is no reason also in this case to treat the clause contraire as valid to the extent that it contemplates the exercise of a discretion which the tribunal has the power of controlling and reviewing, because of the express prohibition in the governing instruments of any dilution of the tribunal's competence de la competence. In the case of institutionalized arbitration systems, such as under Annex VII of UNCLOS, where the governing instrument is silent on the matter of la competence de la competence, the general principle that tribunals have jurisdiction to determine their own jurisdiction would be implied as an inherent attribute of arbitral tribunals. The question of the effect of a clause contraire is somewhat more difficult than in the case of ad hoc tribunals. Difficulties arise because the tribunals are established under a multilateral agreement and not under an agreement solely made between the parties. In these circumstances it is questionable whether a reservation of the kind envisaged, even though made with agreement among the particular parties to an arbitration, which takes the form of a clause contraire can be recognized as having any effect at all. The clause contraire in an arbitration agreement which is covered by the system established by the UNCLOS is not a reservation made at the time of signature or ratification of the UNCLOS nor made afterwards in pursuance of the provisions of the Convention and is, therefore, not covered by Section 2 of the 1969 Vienna Convention on Treaties. It is an agreement between the parties made in circumstances where that agreement as a part of the arbitration agreement is covered by the UNCLOS arbitration system, which was established by multilateral agreement. Thus, the agreement incorporating the clause contraire cannot contain anything which is contrary to the express provisions or fundamental premises of the arbitration system except as the UNCLOS as the source of the arbitration
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system provides. The UNCLOS does not expressly permit derogations from the fundamental premise, inherent and not expressly stated though it is, that tribunals have the competence to determine their own jurisdiction. The fact that the parties to an arbitration specifically agree to them becomes irrelevant then. The conclusion is ineluctable, therefore, that the clause contraire cannot take away the power of the tribunal to determine its own jurisdiction. This conclusion raises another problem, namely to what extent the clause contraire is invalid. The better view is that, while agreed limitations on jurisdiction may be permitted, only the power to determine whether the limitations are applicable in a given case or not may not be taken away from the tribunal and placed in the hands of the parties. Thus, it is only the part of the limitation on jurisdiction which takes that power away from the tribunal that will be struck down, the limitation itself being permitted to survive subject to judicial determination by the tribunal. In the case of institutionalized arbitration the multilateral nature of the establishment of the system may be taken to result in attributing by implication to parties the knowledge that derogation from the inherent principle of la competence de la competence is not permitted. Consequently, it is only the attempt to derogate from this principle that is to be thwarted and not the attempt to impose a limitation on jurisdiction. (2) Established Courts The constitutive instrument of a court established by multilateral action may or may not have an express provision giving the court power to determine its own jurisdiction. As already seen the PCIJ, ICJ, ECHR and most IATs, for example, have express provisions in their statutes conferring on the courts this power, while the ITLOS, ICTY and ICTR, for example, do not. None of the established courts have determined the issue as part of a ratio decidendi, i.e., as a conclusion or part of a conclusion required for the disposition of the case in hand, whether a clause contraire, or its equivalent, such as the "automatic reservation", intended to have effect between parties to a case, is or is not valid. However, as seen in the discussion of the clause contraire before
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arbitral tribunals, there have been some judges in the ICJ who have addressed the issue, and the ICTY made a statement on the issue. The ICTY indicated that certainly in the case of standing or established courts a clause contraire or its equivalent would only be permitted, if express provision had been made for it. It is possible to gainsay this statement at least partially. Where the constitutive instrument specifically provides for la competence de la competence, as in the case of the ICJ or ECHR, even an express provision could arguably not have full effect to the extent that it contradicts and is incompatible with the fundamental principle of the court's power to determine its own jurisdiction which is explicitly stated in the constitutive instrument. The problem then becomes one of interpretation of provisions that apparently are inconsistent with each other. Short of striking down the express exception, if an attempt were made teleologically to give affect to both principles which appear to contradict each other, i.e. ut magis valeat quam pereat, certainly full effect could not be given to the permission to incorporate a clause contraire. At the most the express exception, because it would, if given full effect, negate the express provision for la competence de la competence, would have a qualified effect. That effect is what has been stated to be permitted in the case of ad hoc arbitration, namely that the subjective determination of jurisdiction by a party is to be treated as an exercise of discretion which is subject to control or review by the tribunal. This is, indeed, the only reasonable solution that could be adopted in the circumstances. The implication of the statement made by the ICTY is that, absent an express provision for a clause contraire, as between parties to a dispute brought before an established court such as the ICJ, a clause contraire or an "automatic reservation" which gives a party the power to determine jurisdiction and deprives the court of this power would be without effect. The issue has been addressed by some individual judges of the ICJ, but the Court itself has not had to decide it. All the judges who have addressed the issue without exception, as has been seen, took the view that acceptances of the compulsory jurisdiction of the Court under Article 36(2) which expressly permitted reservations to jurisdiction could not place the
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determination of the question whether the reservation to jurisdiction applied to deprive the Court of jurisdiction in the hands of one of the parties, this being a matter for the Court under the express provision of Article 36(6) which incorporated the principle of la competence de la competence. This view left the question what was the effect of the ineffectiveness of the subjective element in the automatic reservation to be decided. As was concluded above in connection with arbitration on the understanding that a clause contraire is impermissible, where the automaticity of a reservation is rejected, the reservation of jurisdiction should be allowed to stand, the "automatic" element in the reservation alone being regarded as inoperative, rather than the total submission to jurisdiction being struck down.85 The important question is whether the alternative solution proposed for ad hoc arbitration by which a clause contraire would have limited effect can be accepted in the case of submission to the jurisdiction of established courts, such as the ICJ, whatever the source of submission, i.e. whether the submission is, for example, by ad hoc agreement (Article 36(1) of the ICJ Statute) or by acceptance of the Optional Clause pursuant to Article 36(2) of the ICJ Statute. Judge Lauterpacht discussed the possibility that the "automatic reservation" be given effect to, provided the determination that the dispute fell within the reserved category was made in good faith.86 85
See above p. 147. Norwegian Loans Case 1957 ICJ Reports at pp. 52 ff. Judge Lauterpacht did not express a view on the issue whether, if the decision to exclude a matter from the Court's jurisdiction were subject to examination by the Court in order to ascertain whether it had not been made in good faith, the automatic reservation would have been partially effective. He merely stated that the reservation did not leave the Court with this power, so that it was defective anyway. It is possible to take the view, however, that even if the clause contraire or the automatic reservation does not explicitly say so, it must in order to give it effect, be interpreted to permit control and review by the tribunal of the exercise of the discretion to exclude the jurisdiction of the Court in order to ascertain whether the discretion had been abused. Fitzmaurice examined Judge Lauterpacht's view on "good faith" and reservation to jurisdiction but did not pay much attention to the problems connected with the "automatic reservation" and Judge Lauterpacht's approach: 2 op. cit. note 8 at pp. 612 ff. 86
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Good faith is one aspect of the proper exercise of a discretion. As pointed out in relation to arbitration, a clause contraire may have limited effect if the discretion involved in deciding on jurisdiction is exercised without abuse by the party concerned and the tribunal had the power to decide whether the discretion had been abused. Thus, the issue raised by Judge Lauterpacht may be framed more broadly in terms of abuse of discretion rather than of absence of good faith alone. Whichever way the matter is framed, it is arguable that even this limited effect cannot be accorded to the subjective element in a reservation to jurisdiction such as the "automatic reservation". The reason for taking this position is that standing courts, such as the ICJ and ITLOS, have been established by multilateral action and the jurisdictional aspects of their functions are subject to multilateral agreement which cannot be affected by bilateral arrangements or those based on unilateral action with multilateral effects, even though such arrangements in one form or another may additionally be required or permitted for the incidence of valid jurisdiction. Permitting any dilution of what is expressed or implied by the multilateral arrangement and is fundamental to its object, purposes and intent by such arrangement is not consistent with the proper interpretation of the multilateral arrangements nor with their structure. Bilateral arrangements or those based on unilateral action with multilateral consequences, relating to jurisdiction of this kind, are not strictly on a par with reservations to multilateral treaties which are made at the time of signature or ratification of the treaties and are governed by Article 2(1 )(d) and Article 19 to 23 of the 1969 Vienna Convention on Treaties. Such arrangements or their equivalent are subsidiary arrangements made pursuant to the multilateral treaty or permitted by the latter and must be considered as such. Thus, they cannot be given an effect which is not contemplated by the multilateral agreement or is fundamentally inconsistent with it. Even if they were regarded as reservations proper it is necessary that they must not be incompatible with the object and purpose of the treaty (Article 19(c) of the 1969 Vienna Convention). It is arguable that a clause contraire or an "automatic reservation", however it is given effect to, is incompatible with a fundamental object and purpose of the multilateral arrangement, namely to vest in the tribunal
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the unqualified power to determine its own jurisdiction—an attribute which is fundamental to the judicial character of tribunals. But this approach may be countered, as will be seen in Chapter 13, by the view of the clause contraire taken above. RAISING PROPRIO MOTU THE ISSUE OF LA COMPETENCE DE LA COMPETENCE The issue here is whether the question whether the tribunal has the power to decide on its own jurisdiction (la competence de la competence) may be raised proprio motu by the tribunal, if it is not raised by the parties. This issue must be distinguished from the issue whether the tribunal may raise proprio motu the question whether it does have jurisdiction, if the parties do not address the issue in a particular case. It is a subtle but important distinction.87 The question whether a tribunal has la competence de la competence is not a question that generally must be decided if the tribunal is to proceed with the case. Indeed, in many cases tribunals have simply decided on their jurisdiction. The question whether the issue of la competence de la competence may be raised proprio motu by the tribunal has, therefore, not generally been argued before tribunals. What has happened is that, when the issue of its competence to deal with its competence has been raised before the tribunal, it has addressed it but, where it has not, it proceeded more recently on the assumption that it had such competence to deal with its own competence. The fact that tribunals have proceeded to address issues relating to their competence without always raising proprio motu the issue whether they had the competence to decide on their own competence does not necessarily mean that they may not do so. 87
Some authors confuse these issues in dealing with a court's power to decide whether it has la competence de la competence: see, e.g., Shihata, The Power of the International Court to Determine its own Jurisdiction (1965) pp. 56-68, where in a chapter dealing mainly with the establishment of la competence de la competence the author discusses the question whether the question of competence, i.e., once the competence to decide on competence has been established and the competence to decide on competence is being exercised, may be raised proprio motu. The issue discussed here has not been discussed before.
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Where, if this were possible, there is a reasonably apparent issue arising from the circumstances of the case or instruments of submission to jurisdiction whether such competence to decide on competence did or did not exist, a tribunal could still act proprio motu. The reason why tribunals have so far not acted proprio motu is that their experience has most likely been that such an issue has not been reasonably apparent, whenever the issue has not been raised by one of the parties. As will be seen in a later chapter, questions of competence itself may, and must, generally be raised proprio motu by tribunals. Where exceptionally this may not be done, the exceptional circumstances must be established before the tribunal. If questions of competence may be raised proprio motu generally, there is no reason why the question of la competence de la competence may not be raised proprio motu where this is called for in an appropriate case, in order to dispel any doubts and state the legal position clearly. There may, indeed, be circumstances in which this is called for, although these may be extreme, particularly where the instruments of submission have indications that the tribunal was to be (either partially or fully) deprived of the power to decide on its jurisdiction. The tribunal must then raise the issue proprio motu and decide how far the attempt to deprive it of that power has effect.
FINALITY OF THE DETERMINATION ON LA COMPETENCE DE LA COMPETENCE In this regard also a distinction must be made between the finality of determination by a tribunal that it has or has not the jurisdiction to decide on its own jurisdiction and the finality of its determination on its own jurisdiction. Determinations on la competence de la competence would generally be final to the extent that any determination of the tribunal, particularly relating to its competence or jurisdiction are final. Thus, if such a decision may not be reviewed by another tribunal, and there must be explicit provision for this, or by the tribunal itself, under the provision of the constitutive instrument or under general principles of law, the decision will be final. Article XII of the statute of the ILOAT provides for a review by the ICJ of the decision of the tribunal confirming its jurisdiction
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through the mechanism of the advisory opinion of the Court. Clearly a challenge to an affirmative decision by the tribunal on its jurisdiction on the ground that the tribunal had no competence de la competence in the circumstances of the case could theoretically be taken before the ICJ by this mechanism. The decision of the ICJ would be final on the matter and not that of the ILOAT. However, this possibility may be moot because Article 11(7) of the statute of the ILOAT gives the tribunal full competence de la competence. It is to be noted that Article XII does not provide for review by the ICJ, if the ILOAT decides in a given case that it has no competence de la competence (in opposition to Article 11(7)). The ICSID Convention provides in Article 51 for review of an arbitral award in limited circumstances and in Article 52 for annulment of an award where the tribunal has manifestly exceeded its powers. Review is to be by the same tribunal or by another tribunal if the same tribunal cannot be reconstituted, while annulment is to be by another tribunal (committee). In both cases there is a theoretical possibility of the decision on la competence de la competence taken by a tribunal being reopened. However, because the ICSID Convention in no uncertain terms confers on tribunals the power to decide on their competence (Article 41(1)), the possibility that a determination by the tribunal that it had competence to decide on its own competence by a simple application of Article 41(1) could successfully be questioned is moot. In the case of an ICSID tribunal a holding by the tribunal that it had no jurisdiction to decide on its competence could clearly be questioned under the provisions of the constitutive instrument by recourse to the methods there established. In this connection it is unlikely that provisions for review contained in the ICSID Convention could be used for this purpose because the conditions for review are very limited and do not pertain to wrongful exercise of power by the tribunal without the discovery of a new fact.88 88
Similar provisions for review in IAT statutes could conceivably not be used for this purpose because of the requirement of a discovery of a new fact; for statutes of IATs see Amerasinghe, Documents on International Administrative Tribunals (1989) passim. In the ICJ statute the review provision which is similar is Article 61.
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The finality of judgments of international tribunals may be subject to general principles of law relating to review and annulment of tribunal judgments, where the constitutive instruments of the tribunals do not, because of their express provisions, rule out such review or annulment. These principles are discussed in a later chapter on review and annulment. To the extent that a general principle on review or annulment would be applicable in the circumstances of the case to a particular tribunal's decision, the express provisions of its constitutive instrument do not exclude such review or annulment of a decision on la competence de la competence and it is possible to invoke or find a forum for such review or annulment, such decision would not necessarily be final. For example, where a constitutive instrument clearly states that a tribunal has power to decide its own competence and the tribunal refuses to exercise that power, if there is a relevant applicable general principle for review or annulment of the tribunal's decisions, such a decision could be a subject for review or annulment. Equally, where the constitutive instrument is silent on the tribunal's power to decide on its competence and the tribunal decides that it has or has not competence to decide on its own competence, general principles may apply. The finality of decision on jurisdiction of other kinds, e.g., decisions on competence and recevabilite are considered separately in later chapters. There may be different considerations involved.
JURISDICTION OF OTHER TRIBUNALS TO DECIDE ON THE COMPETENCE OF A TRIBUNAL It is possible that as a result of agreement between the parties to a dispute a tribunal other than the tribunal selected to decide the merits of a dispute may have jurisdiction in regard to the competence of the latter or certain aspects of it. It will be recalled that the 1958 draft of the ILC on Arbitral Procedure provides in Article 3(1) that the ICJ could decide on whether a dispute should be submitted to arbitration, if a dispute arose in regard to that obligation before the tribunal was constituted. The course of action suggested by the ILC draft was by an interpretation of the relevant instruments found to
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have been prescribed in the Ambatielos Case (Preliminary Objection).89 In that case the Court held that expressly or by necessary implication the provisions of the relevant agreements and other instruments gave it jurisdiction to decide whether the substantive dispute between Greece and the UK should be submitted to arbitration. It said, further, that the Court would decide whether there was a dispute which had to be submitted to arbitration while "the Commission of Arbitration would decide on the merits of the difference".90 In the Ambatielos Case (Merits)91 the Court found that there was an obligation to arbitrate the dispute. In this case it was on a particular aspect of the jurisdiction of the arbitral tribunal that the ICJ was required to pronounce. There were other aspects of competence and admissibility on which the arbitral tribunal itself would continue to have jurisdiction. Eventually in the Ambatielos Arbitration92 after the dispute was submitted to an arbitral tribunal, that tribunal examined a question of admissibility raised by the respondent and found that the claim was not admissible because local remedies had not been exhausted by the national in respect of whom the claim was made by the claimant state. The precedent of the Ambatielos case in all its phases shows, firstly, that it is possible for aspects of la competence de la competence to be submitted to another tribunal than the tribunal constituted to decide the principal dispute and, secondly, that the determination on that aspect of competence by the other tribunal is binding on the parties to the dispute and the principal tribunal. Clearly this transfer of jurisdiction requires the agreement of the parties to the dispute and is not lightly to be presumed. The ICJ took great care to establish its jurisdiction to decide on the particular aspect of jurisdiction by examining all the relevant documents, instruments and the surrounding circumstances. Further, the ruling of the ICJ could not be upset by a contrary ruling on the same matter by the principal tribunal, though 89 90 91 92
1952 1CJ Reports p. 28. Ibid. at p. 44. 1953 ICJ Reports p. 10. (1956, Greece v. UK), 12 UNRIAA p. 119.
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on other matters of competence, as has been seen, it had complete power to decide its own jurisdiction. In the Ambatielos case only a particular aspect of jurisdiction was submitted to a different tribunal. However, there is no reason why by agreement the whole issue of la competence de la competence of an arbitral tribunal or a large measure of it cannot be submitted to a different tribunal, such as the ICJ, for settlement, thus effectively depriving the arbitral tribunal of its competence de la competence. It must be emphasized that this may only be done by unequivocal agreement between the parties to the arbitration, the presumption being that the arbitral tribunal inherently has la competence de la competence until limitations are proven. Further, other than the Ambatielos case there are no cases which have come up for decision in which the competence de la competence of a tribunal or part of it has been transferred to another tribunal. Clearly, where there are difficulties in proceeding with the arbitration because there are differences as to competence such as the basic arbitrability of the dispute, the mechanism of reference to an established court would facilitate the settlement of not only the preliminary dispute but the dispute as a whole. A reference of this kind could include the power of deciding whether the tribunal has competence to decide its own competence.
THE ISSUE OF CONFLICT OF INTEREST The idea that a tribunal has the authority both to determine whether it has jurisdiction to determine its own jurisdiction (of whatever kind) and to determine whether it has jurisdiction (of whatever kind) in a given case has within it a possibility that a conflict of interest may in principle exist. Because in both instances the tribunal, whether of one judge or more, may have an interest in preserving its own jurisdiction and it makes the decision on the issue, it is possible to postulate an inherent conflict of interest. However, in spite of this reality, it has been the practice to recognize in the case of both national and international tribunals their legal authority to make these determinations, whether there is an appeal to a higher tribunal
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or not, though in general in national systems there is some control by a higher judicial authority. In the international system the authority has now in principle come never to be questioned to the extent that it may exist according to law in a given case. The alternative to having the tribunal decide matters of jurisdiction is to have another independent tribunal determine it for the tribunal. But this would, inter alia, involve delays and be a very cumbersome procedure, whenever an objection to jurisdiction is raised. The fact, however, is that the possibility of a conflict of interest as such has never been faced.93 That having been said, the question may be asked whether, granting that the mere vesting in a tribunal of authority in relation to jurisdiction does not call for rejection as illegal because of a conflict of interest the exercise of the authority to determine matters connected with its jurisdiction, the exercise of that authority could exceptionally be unlawful and invalid because of a conflict of interest. That there is a possibility of a serious conflict of interest in certain circumstances cannot be doubted. An example of an actual case is considered here.94 In brief, a tribunal composed of three judges appointed from a panel of five by the President of the tribunal, pursuant to the provisions of the statute of the CSAT and including the President, was replaced by order of the President in mid-stream, i.e., after the written proceedings had been completed and in the course of the oral proceedings, by a tribunal of one of the three judges, ostensibly in 93
In the Betsey Case the two commissioners whose conclusion was subsequently accepted did refer to the possibility of another tribunal determining the issue of la competence de la competence: Moore, op. cit. note 3 p. 2282. However, this alternative was not mentioned in the context of a possible conflict of interest. The commissioners referred to two alternatives to recognizing la competence de la competence, one being reference to another tribunal, the other being the simple assumption that in any case the tribunal had jurisdiction. Reference back to the parties was not considered a viable alternative because this was said not to have been requested. Reference to another tribunal was regarded as not having been authorized by the treaty of submission and the alternative of assuming that the tribunal had jurisdiction in any case was said to be an unjust solution. 94 The Mohsin Case (2001), CSAT Judgement No. 3.
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accordance with the statute and the rules of the tribunal. The third judge dissented from the order made by the President giving reasons on the ground that it was illegal and invalid. The single judge tribunal proceeded to decide the case on the merits. Apparently, the issue of the jurisdiction of the tribunal was not raised by the parties or proprio motu by the single judge, so that it could be addressed by the parties. The judgment on the merits referred to the order of the President reconstituting the tribunal by replacement as a single judge tribunal. There are two issues in the case. The first is whether the jurisdictional question is res judicata, even though it was not raised. This question is discussed in a later chapter (Chapter 7) and the conclusion reached there is that it is not res judicata. The second is whether the reconstituted tribunal of one judge could decide the question of its own jurisdiction arising from the circumstances of its constitution which arguably resulted in its being unlawfully constituted. It will be noted in this connection that the single judge supported the President's order reconstituting the tribunal and the single judge was the judge appointed as a consequence of the order. It is unnecessary to discuss the merits of the issue of constitutionality. What is relevant is that the circumstances in which the single judge was appointed were open to question, raised an issue of the validity of the reconstitution of the tribunal and the single judge was not only involved in the decision making the appointment and supported it but was the judge appointed. Certainly in these circumstances the single judge did not have the lawful authority to decide the question of the constitution of the tribunal on the answer to which rested the resolution of the issue of jurisdiction, because there was a clear conflict of interest. Whether the issue of jurisdiction, therefore, was raised or not, the judgment on the merits could be contested as being null and void by one or both of the parties because the tribunal's implied decision to assume jurisdiction was tainted as a result of a conflict of interest. It is irrelevant that the one or both parties did not object to the tribunal's exercising jurisdiction. The existence of a conflict of interest would taint the exercise of jurisdiction in any case, whether there was an explicit decision on jurisdiction following
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argument by the parties or not, and whether there was tacit acquiescence on the part of one or both of the parties. An absence of jurisdiction, as will be seen in Chapter 7, cannot by cured by default. The result would be that the judgment on the merits has no validity and could be annulled, basically because of a conflict of interest,95 even though in general and usually the position may be accepted that there is not a sufficiently serious conflict of this nature when a tribunal decides matters of jurisdiction.
95
There are circumstances in national jurisdictions where the exercise of jurisdiction by a court has been declared null and void because of a conflict of interest in one of the judges of the court: see the Pinochet Case (1999), 38 ILM p. 432, a decision of the House of Lords of the UK in which a different bench of judges to the House set aside a judgment of the House in an earlier case on the same matter and between the same parties (Pinochet Case (1999), 38 ILM p. 581).
6 COMPETENCE—THE CONSTITUTION OF THE TRIBUNAL
In Tadic the ICTY unequivocally stated that it had power, in exercising its competence de la competence to decide whether the ICTY was legally established.1It is clear that it regarded all matters relating to its establishment as matters relating to competence. In fact all matters relating to the constitution of an international tribunal, and not only matters relating to the legality of its establishment, are to be considered matters relating to competence. The question whether a tribunal is properly and legally constituted is inextricably inherent in the question whether the tribunal has competence or basic jurisdiction. The constitution of a tribunal includes, inter alia, the legality of its establishment, the proper constitution of the bench of judges according to the constitutive instruments and even matters relating to disqualification of judges, e.g., for conflict of interest. It covers any matter that concerns the legal and proper functioning of the tribunal, as it is constituted. To the extent that the tribunal is not 1
(1995), ICTY: Judicial Reports 1994-1995 at p. 374.
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properly constituted in accordance with the requirements of the law it has no competence to act judicially in the settlement of the dispute. Seldom has the competence of a tribunal been questioned on the ground that it was not constituted according to law for whatever reason. However, undoubtedly there are not only the contents of the agreement establishing the tribunal to be considered in this context but also general principles of law and rules from customary or conventional international law which may determine answers to the questions raised. Thus, a question may be raised as to the validity of the compromis, e.g., where a party contends that one of the parties lacked capacity to enter into the agreement because of an absence of authority, a fact which was unknown and could not be known at the time the compromis was concluded. Another source of a defect in constitution may be the fact that one of the judges of the tribunal, e.g., had given legal advice to one of the parties at an incipient stage in the dispute, thus creating a conflict of interest. An appointment of a judge by an inappropriate authority or of a judge who lacked a required qualification would also cause a defect in the constitution of the tribunal.
THE COMMONWEALTH SECRETARIAT INTERNATIONAL ARBITRAL TRIBUNAL CASE An illustration may be taken from the implementation of the provisions of the law governing the constitution of a tribunal pursuant to the statute of the Commonwealth Secretariat International Arbitral Tribunal. The panel from which a tribunal is chosen consists of five members (Article IV(5)). A tribunal may consist of one member, generally the President, or of three members at the discretion of the President (Article IV(1) and (2)). Rule 1(2) of the Rules of the Tribunal states that all three members of the tribunal with the President as chairman must hear cases (sic) (Rule 1(2)). Rule 23 states that the President or the Tribunal, when it is in session, may modify the Rules in exceptional circumstances. In one instance a tribunal of three was officially constituted by the President and proceedings including oral hearings were begun.
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In the course of the proceedings the President, referring to Article IV(1), issued an order appointing one of the three members to continue with the proceedings and adjudicate the case and in effect dissolving the original tribunal. He also referred to Rule 23 and invoked it to modify Rule 1(2) so that one judge could hear and decide the case. The issue is whether the constitution of a single judge tribunal in this case was legal in the circumstances. As will be pointed out in the next chapter, issues of competence may be raised proprio motu by the tribunal, if the parties do not raise the issue. The issue is, therefore, clearly one which the tribunal (single judge) must address. One of the judges who was not the judge appointed by the President to act later as a single judge2 recorded a written statement which was a dissent from the President's order and pointed out that the appointment made by the President was contrary to law and invalid, even though it was argued that a certain expeditiousness was desirable which was not to be achieved because at least one of the members of the tribunal (the President) was not available to continue with the proceedings for a period of six months, the time allotted for the current session of the tribunal having been exhausted. The dissent was as follows: 1. I should like to make some serious reservations concerning the Order of the President of the three-member Tribunal, in this case 2
This judge was I, the present author. The dissent was released to the parties with the approval of the President of the tribunal who also stated that he had no objection to the dissent being sent to any other person or persons. The statement is, thus, not confidential. The dissent is part of the record, although the tribunal, wrongly, did not itself communicate it to the parties as a part of the order. The dissenting opinion was later attached to the judgment (Mohsin Case) by the single judge tribunal in the case in question as Annex A4: see CSAT/3, dated September 2001. In the judgment the decision reflected in the President's order to constitute a single judge tribunal was adverted to but the matter was not properly raised proprio motu by the single judge as an issue of jurisdiction which it was, nor did the parties raise it, nor was argument heard on it. Thus, the issue of jurisdiction was not raised and, as will be shown in Chapter 7, in these circumstances the jurisdiction of the tribunal (single judge) has not been properly established. The jurisdiction of that tribunal may, therefore, be questioned at any time.
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I record these reservations, because, if I did not, I should be guilty of acquiescing in illegality by default.... 3. I want to state clearly and emphatically that I disagree with the order and that it is contrary to law and invalid in terms of the Statute. 4. In regard to the Order itself I point out that (c) Article VII(2) of the Statute3 cannot modify Article IV.1 and 2 as interpreted in accordance with the principles of international administrative law (Article XIV.1) which apply to all cases concerning contracts of service and obviously include general principles of international administrative procedural law, where the Statute is silent, to the extent that the interpretation deprives Article IV.1 and 2 of its basic meaning. I will explain this impliedly further below. (d) The Rules (particularly Rule 23) are irrelevant in this matter to the extent that they may lead to a conflict with the Statute. I believe the envisaged modification of Rules 1(1) and (2) by the Order is improper because it is in conflict with Article IV.1 and 2 properly interpreted in accordance with the principles referred to in (c) above. This will be dealt with again impliedly below. (e) If Article IV.1 and 2 does not provide for the situation that has arisen, it must be interpreted in the light of the general principles of international administrative law relating to the constitution of tribunals which are based on the principles of public 3
Article VII(2) of the statute provides that the tribunal proceed "as expeditiously as the circumstances permit." Article IV(1) of the statute provides: "The Tribunal shall normally be composed of one member who shall be the President or if the President is for any reason unable to sit some other member of the Tribunal designated by the President." Article IV(2) reads: "In exceptional cases where in the opinion of the President the complexity of the matter requires it, the Tribunal shall sit as a three-member Tribunal empanelled by and including the President but no two nationals shall be nationals of the same country." Rule 1(1) reads: "The President shall direct the work of the Tribunal...." Rule 1(2) reads: "No application shall be heard and adjudged by the Tribunal except under the chairmanship of the President and in the presence of the other two members." Rule 23 provides: "The Tribunal, or, when the Tribunal is not in session, the President after consultation where appropriate with the members of the Tribunal may: (1) in exceptional cases modify the application of these rules "
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international law. The interpretation given by the Order, as will be seen, is untenable according to these principles. 5. As pointed out by me... there were two options in effect available, this considering that none of the members had, e.g., resigned or died, in which case different general principles would apply. (i) Terminate oral proceedings (under Rule 15.3)4 and decide and deliver judgment in the case because the documentation was considered adequate, which is what I advocated, (ii) Properly to dissolve the Tribunal of three and reconstitute a Tribunal (whether of one or three) under Article IV.1 and 2 of the Statute. To use Rule 1.2 (as amended ad hoc under Rule 23) to deprive a properly constituted tribunal of three (under Article IV of the Statute) of the right to "adjudge" (not merely "hear") a case (even if the Tribunal is truncated) without the agreement, particularly in the circumstances of this case, of the relevant members, is a violation of Article IV and makes nonsense of it. The application of the Rules in this way is clearly in conflict with the Statute. It amounts to accepting that the President can terminate at will the functions of a 3-member tribunal properly constituted under Article IV2. The reasons given for the action are clearly not such as are valid for a termination of functions of a Tribunal without agreement and particularly when one member was ready to give judgment immediately and lawfully under the Rules and Statute. The exercise of power was an abuse of authority, among other things. In any case using Rule 23 to change procedures in this manner after the "adjudication" process had begun is a violation of the principle of the integrity of proceedings which is protected by the fundamental principles of international administrative law, indeed, of any law, according to which the Rules must be interpreted. 6. Of the two options referred to above, the President evidently did not accept the first. The second could only be implemented, if the three members of the Tribunal in the circumstances formally agreed to cease to be members of the 3-member Tribunal. This is what the general principles of public international law, which are applicable to international administrative law, required. A formal 4
Under Rule 15.3 the tribunal "may also limit oral testimony where it considers the written documentation adequate".
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Chapter 6. Competence—the constitution of the tribunal agreement was necessary. This could have been obtained but was not. I, at any rate, have not formally given my agreement to this. Then the President could have acted under Article IV.1 of the Statute and appointed a single judge to decide the case, that judge not being bound by the previous procedure at all but being free to follow the procedure he thought fit in accordance with the Statute and Rules as appropriately interpreted. 7. In my case I was unavailable to come to London but I was prepared to decide the case on the evidence I had which could have been done from Washington. I did not die or resign nor was I totally incapacitated because of illness from acting, in which case different principles would have been applicable. It is to be noted that the Tribunal had already met as a body in London. In those circumstances the Tribunal could only be dissolved by agreement 9. In the circumstances, I conclude that the appointment made under Article IV.1 is invalid. The original Tribunal has never been properly dissolved and Article IV could not be applied.... 10. I am not called upon to given my opinion on what would happen if there is a truncated tribunal (e.g. because of total incapacity, because of illness of the President or any other member) or a "hung" Tribunal as a consequence. There are general principles of public international law, applicable as general principles of international administrative law, which would apply in that case.
The point being made in effect rested on the duty to interpret the statute and rules in accordance with the general principles of international adjudicatory procedure, where there was no express and clear derogation from them in the language of the statute as was the case here. These principles aimed at preserving the integrity of the proceedings of a tribunal which would have been affected by the action taken and therefore rendered the constitution of the single judge tribunal illegal and invalid. INTERNATIONAL ARBITRATIONS There have been a few arbitrations in which the status of arbitrators and, thus, the constitution of the tribunal have been questioned before arbitral tribunals but without success. The grounds on which
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such status has been questioned generally related to prejudice, conflict of interest or related factors.5 Two INTERNATIONAL CASES There are two cases in which the legality of the establishment of non-arbitral tribunals have been discussed. The first is the Effect of Awards Opinion6 where the ICJ in giving an advisory opinion on the effect of awards of the UNAT discussed the establishment of the tribunal and ruled that it had been lawfully and validly established. The ruling was not given in a case before the UNAT but the discussion of the issue by the ICJ not only would have pointed the way for the UNAT in the event that its establishment was questioned before it but provides a basis for IATs in general to find that their establishment is valid and lawful. The second case is the Tadic Case7 in which the ICTY had to decide objections to its jurisdiction based on the invalidity of its establishment. (a) International Administrative Tribunals The issue of the legality of establishment of lATs which may be raised as a jurisdictional issue provokes several questions.8 The first question relates to principles of interpretation of the constitutional instruments of international organizations from which the power to establish IATs must be derived. Where constitutions of international 5
See, e.g., the Charles J. Jansen Case (USA v. Mexico, 1876), 3 Moore, History and Digest (1898) p. 2902, Decision No. 21 (France v. Mexico, 1929), 5 UNRIAA p. 511, French-Tunisian Arbitral Council Case (France v. Tunisia, 1957), 12 UNRIAA p. 277, the Meta Bengston Case (Arbitral Commission on Property, Rights and Interests in Germany, 1959), 2 Entscheidungen p. 216. A similar issue arose in the Losinger and Cie, S.A., Case (1935), reported in PCIJ Series C, No. 78 p. 105, which was, however, a transnational and not an international arbitration. 6 1954 ICJ Reports p. 47. 7 (1995), ICTY: Judicial Reports 1994-1995 p. 353. 8 What follows on this subject is based on Amerasinghe, 1 The Law of the International Civil Service (1994) pp. 31 ff.
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organizations expressly provide for the establishment of an internal court such as an administrative tribunal, or a judicial organ which can function as an administrative tribunal, as is the case with the treaties creating the EEC, EURATOM, and the ECSC,9 the statute of UNIDROIT,10 and the Agreement establishing OAPEC,11 no problems of interpretation arise in order to derive the authority of the organization to set up an administrative tribunal or an organ which may function as an administrative tribunal. Conversely, where the constitutive instrument of an international organization expressly or implicitly prohibits or contains some legal impediment to the establishment of an international administrative tribunal, it is clear that the organization would not have the authority to set up such a tribunal. In fact, there are no known constitutive instruments of this kind. It is where the constitutive instrument of an organization neither expressly nor implicitly prohibits nor contains any legal impediment to the establishment of an administrative tribunal that principles of interpretation need to be invoked. In reality, as far as is known, all extant organizations, except the few mentioned earlier which have specific provision in their constitutive instruments to establish tribunals, have constitutive instruments of this kind. Indeed, all the organizations which have established administrative tribunals or have agreed to submit their internal employment disputes to an administrative tribunal established by another organization belong to this category. The principle of functional or teleological interpretation12 is well recognized in international jurisprudence. By the application of this principle, where constitutive instruments are silent, it has long 9
See Articles 164 ff. of the EEC Treaty, Articles 136 ff. of the EURATOM Treaty, and Article 31 of the ECSC Treaty which set up the CJEC. 10 See Articles 7 bis ff.: Amerasinghe (ed.), 2 Statutes and Rules of Procedure of International Administrative Tribunals (1984) p. 133. 11 See Articles 21 ff.: Amerasinghe (ed.), 2 ibid. p. 151. 12 This principle is also referred to as the principle of effective interpretation. For the principle see H. Lauterpacht, "Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties", 26 BYIL (1949) p. 48 at pp. 67 ff. For treaty interpretation in general see works cited in Brownlie, Principles of Public International Law (1979) p. 623 n. 6.
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been accepted that those constitutional documents must be interpreted in the light of the doctrine of implied powers. Not only has the practice of international organizations supported this approach to interpretation but as early as 1949 the ICJ upheld this view in its advisory opinion in the Reparation for Injuries Opinion.13 There it said, speaking of the UN in particular: "Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties."14 This principle is equally applicable generally. In the same judgment the Court explained further that "the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implicit in its constituent documents and developed in practice."15 The application of the doctrine of implied powers which emerged from the Reparation for Injuries Opinion has been developed subsequently and has been given effect to on a teleological basis.16 As a consequence of this principle the competence of international organizations has been considerably expanded beyond the express terms of their constituent instruments, because resort has been had to interpretations according to which the exercise of powers in accordance with the expressed purposes of an organization is regarded as being intra vires.17 In the implementation of the principle a flexible and effective approach has been advocated and considered justifiable in so far as it relates to the 13
1949 ICJ Reports p. 174. Ibid, at p. 182. See also Fitzmaurice, "The Law and Procedure of the International Court of Justice: International Organizations and Tribunals", 29 BYIL(1952)p. 1 at pp. 5 ff. 15 1949 ICJ Reports p. 180. See also the advisory opinion on Competence of the International Labor Organization to Regulate, Incidentally, the Personal Work of Employers (1926), PCIJ Series B, No. 13 at p. 18. 16 For an explanation of the doctrine see Seyersted, "International Personality of Intergovernmental Organizations", 4 IJIL (1964) pp. 1 ff. 17 See, e.g., Bishop, International Law: Cases and Materials (1971) p. 262, and the Namibia Case, 1971 ICJ Reports at pp. 47 ff., 52, 132 (Judge Petren), 150, 163 ff. (Judge Dillard), 184 ff. (Judge de Castro), 223 ff., 279 ff. (Judge Fitzmaurice), 338 ff. (Judge Gros). 14
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interpretation of a constitution of an organization.18 In practice, the doctrine of implied powers has been interpreted by international organizations to permit not only the attribution of such powers to an international organization as arise by necessary intendment from the constitutional provisions,19 but also the implying of powers relating to the purposes and functions specified in the constitution.20 The doctrine of implied powers as applied to the constituent instruments of international organizations has been somewhat modified subsequently but not entirely transformed. Thus, in the United Nations Expenses Opinion the ICJ did make the statement that "when the Organization takes action which warrants the assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization".21 This would seem to be slightly different from the position it took in the earlier Reparations for Injuries Opinion. It is not fundamentally different, however, in so far as it does retain the reference to the stated purposes of the organization as a touchstone for determining whether a power may be exercised by an organization or not. However, the Court did not explicitly use the concept of "implied powers" in this case in deriving its conclusions. This could warrant a further refinement of the doctrine of implied powers in relation to international organizations. Indeed, one author has ventured to propound the view that it is not a theory of "implied powers" that is applicable to the constitutions of international organizations but a principle of "inherent powers" or "inherent capacity".22 It is not readily apparent what the distinction between the two views is, but in effect there are certain differences both in result and in the technique of deriving powers that do exist. However, both 18
See Vallat, "The Competence of the United Nations General Assembly", 97 Hague Recueil (1959) p. 207 at pp. 249 ff. 19 See Seidl-Hohenveldern, "Die volkerrechtliche Haftung fur Handlungen internationaler Organisationen in Verhaltnis zu Nichtmitgliedstaaten", Osterreichische Zeitschrift fur ofjentliches Recht (1961) p. 467. 20 Seyersted, Objective Personality of International Organizations (1963). 21 1962 ICJ Reports p. 151 at p. 168. 22 See Seyersted, op. cit. note 16 at p. 22.
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views do relate the non-express powers and capacity of international organization to the stated purposes of the organizations. Just as the ICJ in the United Nations Expenses Opinion referred to the "stated purposes" of the organizations as being the criterion for determining whether a power could be exercised by the organization, it has been stated that The constitutions of all intergovernmental organizations as opposed to those of States, define and thereby limit the purposes of the organization. The organization is therefore not constitutionally entitled to perform acts designed to further other purposes.23
Both theories also agree that an organization may not perform acts or exercise powers which are expressly forbidden by its constitution. In spite of the differences between the two theories which in fact are fairly limited, clearly the exercise of a power which would be permitted by either theory would be intra vires the organization concerned. The second issue is whether the UNAT in particular was legally established under the UN Charter. In the view of the ICJ the General Assembly of the UN had the power to establish an administrative tribunal. In the Effect of Awards of Compensation Opinion the Court explained the reasons for its conclusion at length and justified it as follows: When the Secretariat was organized, a situation arose in which the relations between the staff members and the Organization were governed by a complex code of law. This code consisted of the Staff Regulations established by the General Assembly, defining the fundamental rights and obligations of the staff, and the Staff rules, made by the Secretary General in order to implement the Staff Regulations. It was inevitable that there would be disputes between the Organization and staff members as to their rights and duties. The Charter contains no provision which authorizes any of the principal organs of the United Nations to adjudicate upon these disputes and Article 105 secures for the United Nations jurisdictional immunities in national 23
Ibid, at p. 23.
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courts. It would, in the opinion of the Court, hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them. In these circumstances, the Court finds that the power to establish a tribunal, to do justice as between the Organization and the staff members, was essential to ensure the efficient working of the Secretariat, and to give effect to the paramount consideration of securing the highest standards of efficiency, competence and integrity. Capacity to do this arises by necessary intendment out of the Charter.24
The court based its conclusion clearly on the principle which has been discussed above, namely that the organization must be deemed to have those powers which, though not expressly provided in the constituent instrument, were conferred upon it by necessary implication as being essential to the performance of its duties.25 Although it did not in that explanation mention a particular article of the Charter, it is apparent that it also based its conclusion on the fact that Article 101 of the Charter required giving effect to the paramount consideration of "securing the highest standards of efficiency, competence and integrity". It is of importance that the ICJ in the Effect of Awards Opinion took the view that the UN had the authority to establish a true judicial organ with independence and the capacity to give binding decisions like any court of a national state. The administrative tribunal set up by the UN was not a subsidiary organ of the General Assembly of the UN exercising delegated powers. The argument that the tribunal was subordinate to the General Assembly, which could not be bound by its judgments, was rejected by the Court.26 The conclusion reached was that the UN had authority to create a judicial body, namely an administrative tribunal, which could 24
1954 ICJ Reports at p. 57. Ibid, at p. 56, citing the Reparations for Injuries Opinion, 1949 ICJ Reports at p. 182. 26 "This view assumes that, in adopting the Statute of the Administrative Tribunal, the General Assembly was establishing an organ which it deemed necessary for the performance of its own functions. But the Court cannot accept this 25
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decide disputes relating to employment and could bind the organization, including the principal organ of the organization which created it, namely the General Assembly. It is also of significance that the Court in its advisory opinion did express the view that, though provision could be made by the General Assembly which had established the tribunal for the review of future judgments of the administrative tribunal (which in any case would be binding, until thus reviewed), as had not been done up to that time, the General Assembly itself, in view of its composition and functions, could hardly act as a judicial organ—considering the arguments of the parties, appraising the evidence produced by them, establishing the facts and declaring the law applicable to them—all the more so as one party to the disputes is the United Nations Organization itself.27
This confirms the position that the administrative tribunal was a judicial organ whose judgments could only be reviewed by another basic assumption. The Charter does not confer judicial functions on the General Assembly and the relations between staff and Organization come within the scope of Chapter XV of the Charter By establishing the Administrative Tribunal, the General Assembly was not delegating the performance of its own functions: it was exercising a power which it had under the Charter to regulate staff relations. In regard to the Secretariat the General Assembly is given by the Charter a power to make regulations, but not a power to adjudicate upon, or otherwise deal with, particular instances. It has been argued that an authority exercising power to make regulations is inherently incapable of creating a subordinate body competent to make decisions binding its creator The contention that the General Assembly is inherently incapable of creating a tribunal competent to make decisions binding on itself cannot be accepted. It cannot be justified by analogy to national laws, for it is common practice in national legislatures to create courts with the capacity to render decisions legally binding on the legislatures which brought them into being. The question cannot be determined on the basis of the description of the relationship between the General Assembly and the Tribunal, that is, by considering whether the Tribunal is to be regarded as a subsidiary, a subordinate, or a secondary organ, or on the basis of the fact that it was established by the General Assembly. It depends on the intention of the General Assembly in establishing the Tribunal, and on the nature of the functions conferred upon it by its own Statute. An examination of the language of the Statute of the Administrative Tribunal has shown that the General Assembly intended to establish a judicial body; moreover, it has the legal capacity under the Charter to do so." (1954 ICJ Reports at p. 61). 27 Ibid, at p. 56.
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body of a judicial nature, the creation of such organs to settle disputes in the field of employment relations being well within the powers of the organization. The mere fact that the deliberative and legislative organ of the organization created such bodies did not result in the former having control over them as subsidiary organs. They may be "subsidiary", but not "subordinate". Even on a theory of inherent powers and capacity it is easy to see that the conclusions reached by the ICJ are supportable. The constituent instrument did not expressly prohibit the purpose for which the administrative tribunal was set up and, indeed, it was consistent with the object of achieving stated purposes of the organization (and no purposes other than these) that the administrative tribunal in the form of a judicial organ with capacity to give decisions final and binding on the organization be established. It does not need much argument to show that the authority to establish an administrative tribunal by its very nature flowed from the inherent or implied capacity of the UN. It may be noted that it was not the burden of the ICJ's argument that the provisions of Article 101 of the Charter were necessary to give the UN the authority to establish an administrative tribunal in the form in which it was established. The Court clearly used the express provisions of that article to buttress its reasoning. More basic was the notion of essentiality for the performance of its duties or functions. In this connection, it is significant that, though the League of Nations and the International Institute of Agriculture did not have provisions in their constitutions like Article 101 of the UN Charter, they both established administrative tribunals without having their authority to do so ever questioned. In fact in the case of the International Institute of Agriculture the Italian Court of Cassation in a case decided two years before the administrative tribunal of the organization was established, pointed out that the League of Nations had already set up a tribunal and that the Institute ought to do likewise, without doubting the competence of either to set up tribunals.28 28
See International Institute of Agriculture v. Profili (1931), 5 AD (1929-1930), Case No. 254, p. 413.
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The general arguments used by the ICJ in connection with the UNAT are applicable mutatis mutandis to other lATs. While some international organizations have specific provisions in their constituent instruments giving the organizations power to conduct their personnel relations, other organizations do not. In the case of the World Bank Group, for example, the Articles of Agreement of all institutions give the President responsibility for the organization, appointment, and dismissal of the staff, subject to the general control of the Executive Directors or Board of Directors.29 It would seem to be implied in this responsibility and control given to the President and Executive Directors or Board of Directors that the setting up of a judicial entity to settle disputes in staff matters would be permissible, reasonable, and functionally justifiable. The situation in this respect is comparable to that in the United Nations, where in fact Chapter XV of the Charter is less explicit than the Articles of the Bank Group on the functions of the Secretary General and General Assembly vis-d-vis the staff. In both cases, however, it is clear that functionally the chief executive and a legislative or quasi-legislative organ have responsibility in staff maters. Thus, deriving a power vested in the organizations to set up an administrative tribunal is not difficult. On the other hand, the absence of express provisions dealing with the staff and personnel relations in the constituent instrument of an organization does not detract from such a power because it is within the accepted purpose and function of all international organizations to employ staff and conduct smooth and effective personnel relations. Thus, whether the theory of implied powers or the doctrine of inherent powers or capacity is applied, in either case an international organization would have the necessary authority to set up an administrative tribunal or submit to the jurisdiction of a judicial organ established by another international organization, both with the power to give, in the manner of a true judicial organ, decisions binding on the organization concerned, including its
29
Article V(5)(g) of the IBRD's Articles, Article IV(5)(b) of the IFC's Articles and Article VI(5)(b) of the IDA's Articles.
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deliberative or legislative organ which decided to establish the tribunal or submit to the jurisdiction of the tribunal. (b) The ICTY In the Tadic Case,30 decided by the ICTY, the accused adduced several arguments raising a series of constitutional issues which all turned on the limits of the powers of the UNSC under Chapter VII of the UN Charter and on what action or measures could be taken under this Chapter resulting in the establishment of an international criminal tribunal. More specifically the principal questions raised in connection with the legality of the establishment of the ICTY were: (i) Was there really a threat to the peace justifying the invocation of Chapter VII as a legal basis for the establishment of the ICTY? (ii) Assuming such a threat existed, was the UNSC authorized, with a view to restoring or maintaining peace, to take any measures at its own discretion, or was it bound to choose among those expressly provided for in Articles 41 and 42 (and possibly Article 40)? (iii) In the latter case, how could the establishment of an international criminal tribunal be justified, as it did not figure among the measures mentioned in those Articles, and was of a different nature?31 The ICTY dealt with these issues in the following manner: (i) In regard to the power of the UNSC to act under Chapter VII, Article 39 which opens Chapter VII of the Charter determines the conditions of application of this Chapter. It provides: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. It is clear that the UNSC plays a pivotal role and exercises a very wide discretion under this Article. But its powers are not unlimited. 30 31
(1995), ICTY: Judicial Reports 1994-1995 p. 353. See ibid, at pp. 381-95 where these three questions are answered.
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The UNSC is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization. The UNSC is thus subject to constitutional limitations that may exist, however broad its powers under the constitution may be. In any event those powers cannot exceed the limits of the UN's powers at large, not to mention other specific limitations or those which may derive from the internal division of power within the Organization. Neither the text nor the spirit of the Charter conceives of the UNSC as free from limitations of the law. In particular, Article 24, after declaring, in paragraph 1, that the members of the UN "confer on the Security Council primary responsibility for the maintenance of international peace and security", imposes on it, in paragraph 3, the obligation to report annually (or more frequently) to the UNGA, and provides, more importantly, in paragraph 2, that: In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.
There is a clear indication that the Charter vests specific powers in the UNSC and does not grant an unfettered discretion. Under Article 39 the UN has certain powers but the question really is what are the limits on those powers. The UNSC plays the central role in the application of both parts of the Article. First, it is the UNSC that makes the determination that there exists one of the situations justifying the use of the "exceptional powers" included in Chapter VII. Then it is the UNSC also that chooses the reaction to such a situation: it either makes recommendations (i.e., opts not to use the exceptional powers but to continue to operate under Chapter VI) or decides to use the exceptional powers by ordering measures to be taken in accordance with Articles 41 and 42 with a view to maintaining or restoring international peace and security. The situations justifying resort to the powers provided for in Chapter VII are a "threat to the peace", a "breach of the peace" or an "act of aggression". While an "act of aggression" is more amenable to a legal determination, a "threat to the peace" is a more subjective concept which may have political overtones. But the determination that there
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exists such a threat is not a totally unfettered discretion, as it has to remain, at the very least, within the limits of the Purposes and Principles of the Charter. In the case of the situation in Yugoslavia whatever the limits of the discretion of the UNSC to determine that a "threat to the peace" existed, there were good reasons to support the determination that such a threat existed. First, an armed conflict (or a series of armed conflicts) had been taking place in the territory of the former Yugoslavia long before the decision of the UNSC to establish the ICTY, so that, if the conflict were regarded as an international armed conflict, there could have been no doubt that it was literally a "breach of the peace" between the parties or, at the very least, that it was a "threat to the peace" of others. Secondly, even if it had been considered only an "internal armed conflict", it would still have constituted a "threat to the peace" according to the settled practice of the UNSC and the common understanding of the UN membership in general. There had been many cases of civil war or internal strife which the UNSC had classified as "threats to the peace" and dealt with under Chapter VII, with the encouragement or even at the behest of the UNGA, such as the Congo crisis at the beginning of the 1960s and, more recently, the situation in Liberia and Somalia. Thus, it could be said that there was a common understanding manifested by the "subsequent practice" of the UN that the term "threat to the peace" in Article 39 could include internal armed conflicts. There could be no question that there was both a "breach of the peace" and a "threat to the peace" for the purposes of Chapter VII.32 (ii) If the UNSC determines that a particular situation poses a threat to the peace or that there exists a breach of the peace or an act of aggression, it enjoys a wide discretion to choose what course of action to take. As stated above, it can either continue, in spite of its determination, to act via recommendations, i.e., as if it were still acting under Chapter VI which relates to the pacific settlement of disputes or it can exercise its exceptional powers under Chapter VII. It would then, under Article 39, "decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security". 32
See ibid, at p. 383.
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It may be asked, however, whether the choice of the UNSC is limited to the measures provided for in Articles 41 and 42 of the Charter (as the language of Article 39 suggests), or whether it has an even wider discretion in the form of general powers to maintain and restore international peace and security under Chapter VII at large. If the latter were the case, it would not be necessary that every measure decided upon by the UNSC fall within the express terms of Articles 41 and 42 (or possibly Article 40). In any case, whichever interpretation is correct the UNSC has a sufficiently broad discretion in deciding on the course of action and evaluating the channeling through Articles 41 and 42 of the very broad and exceptional powers of the UNSC under Chapter VII. These two Articles attribute to the UNSC such a wide choice as not to warrant searching, on functional or other grounds, for even wider and more general powers than those already expressly provided for in the Charter. It should be noted also that not only are these coercive vis-a-vis the culprit state or entity but they are also mandatory vis-a-vis the other member states, who are under an obligation to cooperate with the Organization (Article 2(5) and Articles 25, 48) and with one another (Article 49), in the implementation of the action or measures decided by the UNSC. (iii) As with the determination of the existence of a threat to the peace, a breach of the peace or an act of aggression, the UNSC has a very wide discretion under Article 39 to choose the appropriate course of action and to evaluate the suitability of the measures chosen, as well as their potential contribution to the restoration or maintenance of peace. But this discretion also is not unfettered and it is limited to the measures provided for in Articles 41 and 42. In its Resolution 827, the UNSC considered that "in the particular circumstances of the former Yugoslavia", the establishment of the International Tribunal "would contribute to the restoration and maintenance of peace" and indicated that, in establishing it, the UNSC was acting under Chapter VII,33 though it did not refer to a particular Article as the basis for this measure. As a result three principal arguments were raised against the legality of this decision, 33
SC Res. 827, UN Doc. S/RES/827 (1993).
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namely (a) that the establishment of such a tribunal was never contemplated by the framers of the Charter as one of the measures to be taken under Chapter VII, because it figures nowhere in the provisions of that Chapter, and more particularly does not figure in Articles 41 and 42 which detail these measures; (b) that the UNSC is constitutionally or inherently incapable of creating a judicial organ, because it is conceived in the Charter as an executive organ, which does not possess judicial powers which can be exercised through a subsidiary organ; and (c) that the establishment of the ICTY has neither promoted, nor was capable of promoting, international peace, as demonstrated by the current situation in the former Yugoslavia. As for (a), the establishment of an international criminal tribunal is not expressly mentioned among the enforcement measures provided for in Chapter VII, and more particularly in Articles 41 and 42. Obviously, the establishment of the ICTY was not a measure under Article 42, as these are measures of a military nature, implying the use of armed force. Nor can it be considered a "provisional measure" under Article 40. These measures, as the Article indicates, are intended to act as a "holding operation", producing a "standstill" or a "cooling-off" effect, "without prejudice to the rights, claims or position of the parties concerned". They are akin to emergency police action rather than to the activity of a judicial organ dispensing justice according to law. Moreover, not being enforcement action, according to the language of Article 40 itself, such provisional measures are subject to the Charter limitation of Article 2, paragraph 7, and the question of their mandatory or recommendatory character is subject to great controversy; all which renders inappropriate the classification of the ICTY under these measures. Prima facie, the creation of the ICTY matched perfectly the description in Article 41 of "measures not involving the use of force". But in this connection could it be objected that the establishment of a war crimes tribunal was not intended, because the examples mentioned in this article focus upon economic and political measures and do not in any way suggest judicial measures? Could it also be argued that the measures contemplated under
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Article 41 are all measures to be undertaken by member states, which is not the case with the establishment of the ICTY? Article 41 reads as follows: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
It is evident that the measures set out in Article 41 are merely illustrative examples which obviously do not exclude other measures. All the Article requires is that they do not involve "the use of force". This is a negative qualification. That the examples do not suggest judicial measures goes some way towards the other argument that the Article does not contemplate institutional measures implemented directly by the UN through one of its organs but, as the given examples suggest, only action by member states, such as economic sanctions (though possibly coordinated through an organ of the Organization). However, nothing in the Article suggests the limitation of the measures to those implemented by states. The Article only prescribes what these measures cannot be. Beyond that it does not say or suggest what they must be. Moreover, even a simple literal analysis of the Article shows that the first phrase of the first sentence carries a very general prescription which can accommodate both institutional and member state action. The second phrase can be read as referring particularly to one species of this very large category of measures referred to in the first phrase, but not necessarily the only one, namely, measures undertaken directly by states. It is also clear that the second sentence, starting with "These (measures)" not "Those (measures)", refers to the species mentioned in the second phrase rather than to the 'genus' referred to in the first phrase of this sentence. Again, logically, if the Organization can undertake measures which have to be implemented through its members, it can a fortiori undertake measures which it can implement directly through its organs, if it happens to have the resources to do so.
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Thus, the establishment of the ICTY was possible pursuant to the powers of the UNSC under Article 41, as far as nature of the power was concerned. In regard to (b) the argument that the UNSC, not being endowed with judicial powers, cannot establish a subsidiary organ possessed of such powers is untenable. It results from a fundamental misunderstanding of the constitutional set-up of the Charter. The UNSC is not a judicial organ and is not provided with judicial powers (though it may incidentally perform certain quasi-judicial activities such as making determinations or findings). The principal function of the UNSC is the maintenance of international peace and security, in the discharge of which it exercises both decision-making and executive powers. The establishment of the ICTY by the UNSC did not signify, however, that it had delegated to the ICTY some of its own functions or the exercise of some of its own powers. Nor did it mean that the UNSC had arrogated to itself part of a judicial function which did not belong to it but to other organs of the UN according to the Charter. The UNSC had resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia. By analogy it may be pointed out that the UNGA did not need to have military and police functions and powers in order to be able to establish the United Nations Emergency force in the Middle East ("UNEF") in 1956, nor powers in order to be able to establish the UNAT. As was ruled in the Effect of Awards Opinion by the ICJ: [T]he Charter does not confer judicial functions on the General Assembly... By establishing the Administrative Tribunal, the General Assembly was not delegating the performance of its own functions: it was exercising a power which it had under the Charter to regulate staff regulations.34
With respect to (c) which attacks the exercise of discretionary power by the UNSC in evaluating the appropriateness of the chosen 34
Effect of Awards Opinion, 1954 ICJ Reports at p. 61.
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measure and its effectiveness for achieving its objective, the restoration of peace, Article 39 leaves the choice of means and their evaluation entirely to the UNSC, which enjoys wide discretionary powers in this regard; and it could not have been otherwise, as such a choice involves political evaluation of highly complex and dynamic situations. It is a total misconception of what are the criteria of legality and validity in law to test the legality of such measures ex post facto by their success or failure to achieve their ends in the present case, the restoration of peace in the former Yugoslavia, in pursuance of which the establishment of the ICTY was but one of many measures adopted by the UNSC. The ICTY thus concluded that its establishment was lawful under the UN Charter, particularly Chapter VII. Apart from the question of constitutionality discussed above the argument was raised that the ICTY had not been established by law. The accused cited provisions of several international human rights instruments which require that a criminal charge must be decided by a tribunal established by law and argued that this requirement was a general principle of law recognized by civilized nations.35 The tribunal discussed the meaning of "established by law" in the context of the separation of powers in national legal systems, the need, therefore, for tribunals in such systems to be established by the legislature and the absence of a strict separation of powers in international organizations such as the UN and concluded: It is clearly impossible to classify the organs of the United Nations into the above-discussed divisions which exist in the national law of States. Indeed, Appellant has agreed that the constitutional structure of the United Nations does not follow the division of powers often found in national constitutions. Consequently the separation of powers element of the requirement that a tribunal be "established by law" finds no application in an international law setting. The aforementioned principle can only impose an obligation on States concerning the functioning of their own national system.36 35 36
ICTY: Judicial Reports 1994-1995 at p. 396 ff. Ibid, at p. 399.
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The tribunal also mentioned a second possible interpretation of the words "established by law" as referring to establishment of international courts by a body which, though not a Parliament, had a limited power to take binding decisions and pointed to the UNSC when, acting under Chapter VII of the United Nations Charter, and making binding decisions by virtue of Article 25 of the Charter, as such a body. The question that arose then was whether there must be something more than that for a tribunal to be "established by law". The accused took the position that, given the differences between the UN system and national division of powers, the conclusion must be that the UN had no capacity to create the ICTY unless there was an amendment to the UN Charter. The tribunal said that it did not follow from the fact that the UN had no legislature that the UNSC was not empowered to set up the ICTY, if it had been acting pursuant to an authority found within its constitution, the UN Charter. As already seen, the UNSC was endowed with the power to create the tribunal as a measure under Chapter VII in the light of its determination that there existed a threat to the peace.37 A third possible interpretation of the requirement that the ICTY be "established by law" was that its establishment must be in accordance with the rule of law. The tribunal thought that this appeared to be the most sensible and most likely meaning of the term in the context of international law. For a tribunal such as this one to be established, therefore, according to the rule of law, it must be established in accordance with the proper international standards and it must provide all the guarantees of fairness, justice and even-handedness in full conformity with internationally recognized human rights instruments.38 The important consideration in determining whether a tribunal had 37
In addition, the tribunal pointed out that the ICTY had been repeatedly approved and endorsed by the "representative" organ of the UN, the UNGA, and that this body not only participated in its setting up, by electing the judges and approving the budget, but also expressed its satisfaction with, and encouragement of the activities of the ICTY in various resolutions: See G.A. Res. 48/88 (20 December 1993) and G.A. Res. 48/143 (20 December 1993), G.A. Res. 49/10 (8 November 1994) and G.A. Res. 49/205 (23 December 1994). 38 The tribunal examined the ICCPR and its travauxpreparatories to explain this statement: ICTY: Judicial Reports 1994-1995 at p. 401.
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been "established by law" was not whether it had been pre-established or established for a specific purpose or situation. What was important was that it had been set up by a competent organ in keeping with the relevant legal procedures, and that it observed the requirements of procedural fairness.39 The tribunal concluded that an examination of the statute of the ICTY and of the Rules of Procedure and Evidence adopted pursuant to that statute led to the conclusion that it had been established in accordance with the rule of law.40 For all these reasons the ICTY came to the conclusion that it had been properly "established by law." On all counts the conclusion was reached that the establishment and constitution of the tribunal was not flawed but was legal. OTHER TRIBUNALS The constitution of the tribunal, whether in arbitrations or in the case of established or standing courts, has rarely been contested as a matter relating to competence before the tribunal itself. Constitution questions have never come up before the ICJ or ITLOS, for example.41
39
The tribunal examined the practice of the HRC on the interpretation of the phrase "established by law" and also referred to the practice of the lAComHR: ibid, at p. 403. 40 Ibid. 41 The same arguments apply to the legality of the establishment of the ICTR.
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7 COMPETENCE TO SETTLE DISPUTES
By basic or primary jurisdiction is meant the competence to proceed to settle the dispute on the merits. As will be seen, there is a jurisdiction relating to the performance of other acts than this in connection with the settlement of the dispute which will often be governed by somewhat different considerations. The requirements for the existence of primary jurisdiction in a given case must be fulfilled for the exercise of that jurisdiction. If they are not, the jurisdiction does not exist and may not be exercised. On the other hand, as was said in Winter shell A.G. et al. v. The Government of Qatar, a transnational arbitration, it is not necessary that the claimant party prevail on the merits in order that a tribunal have jurisdiction.1 The statement applies to all international tribunals as well. While in general the basis of this jurisdiction is consensual, not only must the 1
(1988), 28 ILM at p. 812. On objections to jurisdiction generally see Malloy, "Objections to Adjudication in Contentious Cases before the International Court of Justice", 5 Brooklyn JIL (1979) p. 262, Prott, "Avoiding a Decision on the Merits in the International Court of Justice", 7 Sydney LR (1976) p. 433.
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tribunal examine the instruments in or sources through which this consent is expressed in order to establish the legal definition of its jurisdictional authority but it must ascertain whether the facts of the situation satisfy that legal definition. Primary (or basic) competence is derived principally from an instrument (or instruments) which applies to the international tribunal to which a dispute is submitted. It may be a general multilateral convention such as UNCLOS or the ICSID Convention, a bilateral treaty such as an investment treaty, or the arrangement between Iran and the US that created the Iran-US Claims Tribunal, a compromis creating an ad hoc tribunal for the particular dispute, such as the agreement submitting to arbitration the Beagle Channel dispute between Argentina and Chile which was decided in 1977, a statute attached to an international convention, such as the ICJ statute, or a statute flowing from a decision of an international organization, such as the statutes of IATs or the statute of the ICTY and ICTR, or, indeed, any other kind of instrument which legally creates or applies to the tribunal concerned. Because international tribunals have a juridiction attribue and not ajuridiction de droit commun, the terms of the governing instruments will determine the basic or primary jurisdiction or competence of the tribunal. On the other hand, as will be seen in subsequent chapters, once the basic jurisdiction is determined there are matters in regard to which the international tribunals have an incidental or inherent jurisdiction, even though the governing instrument may be silent on these matters. Such matters include the authority to control the proceedings, to decide on remedies and the like. Already discussed was the inherent jurisdiction to decide on the tribunal's own competence. There are also matters such as the order of provisional measures in regard to which the tribunal has a certain incidental jurisdiction, even though it may not ultimately have full competence to decide the merits and even if the existence of the latter has not been decided. Primary competence to proceed generally with the settlement of the dispute submitted rests on the instruments governing the functioning of the tribunal. First, in the interpretation of these instruments, as was said in the Cases of Dual Nationality (No. 22) decided by a Commission established under the Peace Treaty of 1947,
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"No interpretation must ever arrive at a solution other than that which emerges formally from the Treaty, unless, obviously, this latter leads to an absurd result."2 Secondly, as was said in regard to jurisdiction in the same case: The provisions of a treaty must be interpreted in such a way that they may conform as much as possible with the rules established by international law rather than derogate from these rulings. And let us say once for all that the arbitrator cannot substitute the legislator.3
Thus, interpretation of jurisdictional clauses must be formal and yet constructive (because interpretation must not lead to absurdity) while at the same time the judge must not turn legislator. These two principles apply equally to arbitral tribunals of whatever nature and to standing or established courts. The general approach to interpretation has been discussed in a previous chapter. Suffice it to note here that the two principles stated above are particularly important in regard to jurisdiction. While interpretation is not restrictive, it is equally not excessively liberal. While a functional or teleological approach may be warranted in the appropriate circumstances, generally there are limits to functionalism which turn on the avoidance of legislating. Competence also concerns fundamental matters. Thus, jurisdictional limitations relating to competence depend on what pertains to basic legal qualifications of a tribunal to examine complaints submitted and to adjudicate on their merits.4 This is as opposed to matters of receivability (recevabilite), for instance, which are not fundamental. Also an application may be within a tribunal's competence but still be irreceivable, or it may be receivable but not subject to the competence of the tribunal. The characteristic is important because, among other things, an objection relating to recevabilite may be waived or the opportunity to raise it lost, whereas a defect in jurisdiction can technically never be cured as far as the tribunal's 2
(1954, Italy v. UK), 14 UNRIAA at p. 36. Ibid. 4 Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 87. 3
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functioning in the case before it is concerned. Other consequences of the characteristic are that, as will be seen, an objection to competence may be raised proprio motu by the tribunal, if it is not raised by the parties, it is possible that the tribunal has an obligation to raise proprio motu such objections, and such objections may be raised at any time. These are examples of the consequences of the fundamental or essential nature of matters relation to primary competence. The line between lack of competence and irreceivability or inadmissibility is sometimes difficult to draw. The result of both is to render the case incapable of being decided on the merits. However, the rules relating to competence may be stricter than those pertaining to irreceivability or inadmissibility. The distinction was implicitly recognized by the UNAT in Hilpern,5 where the objections raised to jurisdiction were that the application had been filed too late and that the applicant was not a staff member. The latter objection related to the tribunal's competence, while the former argument concerned inadmissibility.6 It is to be noted that the ICJ in particular has been especially careful in recognizing clearly the distinction between competence and recevabilite, to the extent that it has criticized the use of terms by a party which blurred that distinction. In the Interhandel Case in discussing the objection of the respondent (USA) that the claimant state's (Switzerland) national had not exhausted local remedies as required by international law the Court said: Although framed as an objection to the jurisdiction of the Court, this Objection must be regarded as directed against the admissibility (recevabilite) of the Application of the Swiss Government. Indeed, it is to be regarded as a plea which would become devoid of object if the requirement of the prior exhaustion of local remedies were fulfilled.7
In the Nottebohm Case (Second Phase) the Court regarded and referred to the objection that Nottebohm did not have the 5 6 7
See Hilpern, UNAT Judgment No. 57 (1955), JUNAT Nos. 1-70 p. 296. Ibid. 1959 ICJ Reports at p. 26.
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nationality of the respondent state as related to admissibility (recevabilite) and not to competence.8 On the other hand, in the Lockerbie Case, for example, the Court described as objections to jurisdiction the objections that there was no legal dispute and that the requisites of Article 14 of the Montreal Convention relating to settlement by the ICJ had not been satisfied. An objection based on the incidence of an UNSC resolution was in contrast treated as a matter of admissibility (recevabilite).9 International tribunals, including international arbitral tribunals, are careful about the characterization of objections to jurisdiction and admissibility. ITLOS, for instance, deals with objections involving Article 292 of UNCLOS as matters pertaining to jurisdiction.10 However, sometimes a tribunal may by implication characterize an objection inaccurately. Thus, for example, while the UNAT is very careful about how it characterizes objections and does not confuse jurisdictional objections with objections to admissibility, using different language in regard to the two categories,11 the WBAT did in its first year use confusing language. In two cases objections ratione temporis which were based on the explicit provisions of the statute of the tribunal relating to the date (January 1, 1979) before or after which a dispute may have arisen were treated as objections to admissibility and not as objections to jurisdiction. In Kavoukas and Parham and Smith Scott the issue was whether the tribunal had jurisdiction because the dispute allegedly arose before the relevant date mentioned in the statute after which disputes had to have arisen, if the tribunal was to have jurisdiction. Even though the statute of the tribunal used the term "competent" in the context of disputes which arose after January 1, 1979, thus indicating that the tribunal had no such competence in respect of disputes which 8
1955 ICJ Reports at p. 12. The other two objections relating to the failure to negotiate and to exhaust local remedies were also properly characterized as objections to admissibility (recevabilite): ibid. 9 1992 ICJ Reports p. 3. 10 See, e.g., the Saiga Case (1997), 37 ILM at pp. 368-9. 11 For some UNAT cases see Amerasinghe, 1 the Law of the International Civil Service (1994), pp. 202 ff. and 216 ff.
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arose before that date, the tribunal dismissed the applications on the ground that they were "inadmissible".12 However, even in such cases the reasoning in the case (e.g., the WBAT referred to its competence) discloses the proper content of the objection. In any case this kind of lapse is rare in practice. The ECHR and the European Commission of Human Rights (before it ceased to function as a judicial body in 1998) have treated true questions of jurisdiction and those of admissibility indiscriminately, dealing with both under the rubric "admissibility" (recevabilite).13 In the original European Convention on Human Rights (before the recent amendments came into effect in 1998) Section III dealing with the European Commission and its powers did not refer to jurisdiction (competence) as such, questions about which could undoubtedly have arisen, while it did refer to inadmissibility in certain circumstances (Article 27). What was referred to in Article 27(1) apparently concerned competence while Article 27(2) referred to inadmissibility in regard to circumstances which genuinely generated inadmissibility. Article 26, dealing with exhaustion of domestic remedies, did not refer either to jurisdiction or inadmissibility. The original Section IV and the present Section II of the Convention which deals with the ECHR uses both the term "jurisdiction" (e.g., original Articles 45 and 49, present Article 32) in relation to certain matters and the term "admissibility" (e.g., present Articles 29 and 35). But the usage in the Convention permits no conclusions to be drawn either as to the totality of matters pertaining to competence or as to the totality of matters relating to admissibility. Nevertheless, such matters as the temporal or territorial scope of the Convention and its application ratione personae, to mention a few examples, have been considered by the Commission 12
WBAT Reports (1981), Decision No. 3 at p. 11, and Decision No. 4 at p. 6. Later the terminology used by the WBAT was more accurate: see, e.g., Briscoe, WBAT Reports (1982), Decision No. 118, particularly at p. 11, and Decisions No. 119 to 126 decided in the same year (jurisdiction), Steinke, WBAT Reports (1989), Decision No. 79, particularly at p. 8 (inadmissibility). 13 Van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights (1998) p. 108, agrees with this assessment.
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and the ECHR as matters of admissibility, thought it is clear that they were dealing with matters of competence (jurisdiction).14 While the terminology may not generally be accurate, the substance of the cases before the Commission and the ECHR, however, reflect an understanding of the distinction between competence (jurisdiction) and recevabilite (admissibility). The consequences of the failure to distinguish terminologically have not been disastrous. Yet it is unfortunate that the distinction in terminology which reflects a conceptual difference was not observed.15 There are several arbitral decisions in which tribunals have asserted their right to raise for themselves orproprio motu questions relating to competence. In the Horst Purfurst Case the arbitral commission stated that it "like any other international tribunal—must examine ex officio questions concerning its own jurisdiction (sa propre competence) ..."16 In the Burton Marks and Harry Umann Case, the Iran-US Claims Tribunal made it quite clear that: Claimant's argument that Respondent has waived its jurisdictional objections by not raising them is unavailing. Article 21(3) of the Tribunal Rules does not purport to preclude the Tribunal from raising jurisdictional issues on its own motion.17
In the Rio Grande Irrigation and Land Company Case the tribunal stated: Whatever be the proper construction of the instruments controlling the Tribunal or of the rules of procedure there is inherent in this 14
See, e.g., X v. Czechoslovakia, Appl. 262/57, 1 YBECHR (1955-57) p. 170, Confederation Francais Democratique du Travail v. European Communities, Appl. 8030/ 77, 21 ibid. (1978) p. 530, both decided by the Commission. 15 The same confusion of terminology occurs in the jurisprudence of the IACHR: see, e.g., the Velasquez Rodriguez (Preliminary Objections) Case, (1987) Series C: Decisions and Judgments, No. 1. In this case reference was made constantly to the jurisdiction (jurisdiccion in Spanish) and the competence (competencia in Spanish) of the Court and to its contentious jurisdiction (competencia contenciosa in Spanish) (see para. 29), but the preliminary objections, which were rejected, all related to admissibility. 16 (1958, Arbitral Commission on Property, Rights and Interests in Germany), 1 Eintscheidungen at p. 142. 17 (1985), 6 Iran-US CTR at. p. 296.
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and every legal Tribunal a power, and indeed a duty, to entertain, and, in proper cases, to raise for themselves, preliminary points going to their jurisdiction to entertain the claim. Such a power is inseparable and indispensable to the proper conduct of business.18 In the Young Plan Case the tribunal said that "Though the parties have raised no jurisdictional issue it still remains the responsibility of the Tribunal to determine, ex officio, its competence to act."19 These statements make the point quite clearly. Text-writers generally have agreed with the view expressed above in regard to arbitral tribunals.20 Standing or established courts take the same view, with the exception that where the doctrine of forum prorogatum is applicable it may be pointless for the court to raise matters of jurisdiction proprio motu because the parties may cure any defect in jurisdiction by subsequent conduct which demonstrates agreement or consent to the exercise of jurisdiction in the instant case. The PCIJ where the doctrine of forum prorogatum applied has raised in one case questions of jurisdiction proprio motu. In the Prince von Pless Administration Case the Court did proprio motu raise matters of jurisdiction, after preliminary objections had been raised by one party to its jurisdiction, when dealing with those objections, explaining that one of the claims in the application of the claimant state raised a question of the Court's jurisdiction and that was connected with another question which the Court felt it was called upon to raise proprio motu and join to the merits as it did other preliminary objections to jurisdiction.21 This case was discontinued, however, before a decision was given by the Court. The ICJ, on the other hand, has not specifically raised a matter of jurisdiction proprio motu, by requesting the parties to argue a defined question of jurisdiction—possibly because the doctrine of forum prorogatum is applicable before it. A few cases decided by 18
(1923, UK v. US), 6 UNRIAA at p. 135. (1980, Belgium, France, Switzerland and UK v. FRG), 59 ILR at p. 524. 20 See, e.g., Ralston, International Arbitral Law and Procedure (1926) at pp. 21 ff. 21 (1933), PCIJ Series A/B 52 at pp. 15 ff. 19
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the Court show, however, that there are circumstances in which, in spite of the possibility of forum prorogatum, the Court may not have jurisdiction because of the particular nature of the obstacles to competence. In the South West Africa Cases (Second Phase)22 a point relating to competence was raised in the course of the deliberations of the Court. This point pertained to the existence of a dispute between the parties. The point was discussed in the judgment but the Court found that a dispute did exist between the parties, though the claimants lost the case because another preliminary objection raised by the respondent was upheld. In this case the bar to jurisdiction was the absence of a dispute.23 Such a defect cannot be cured by the agreement of the parties that there is a dispute, whether by conduct subsequent to the institution of proceedings or otherwise. Hence, forum prorogatum would be irrelevant to a jurisdictional defect of this kind. The other cases are the Nuclear Tests Cases where the Court relied on events which had occurred after the proceedings had been closed to conclude that the application had no object, i.e., had become moot, and that the Court was not "called upon to give a decision thereon".24 When an application is moot or becomes moot and is devoid of object, a tribunal has no jurisdiction to decide the case. This kind of obstacle to competence also cannot be cured by a forum prorogatum, if that did occur. Even if a forum prorogatum is possible, there is nothing to prevent the Court (or any other tribunal to which the doctrine is applicable) from raising matters of jurisdiction proprio motu which a tribunal has the right to do. The objection thus raised may be defeated by forum prorogatum, if the principle is applicable, but the tribunal, nevertheless, has the authority to raise the matter. Moreover, as shown above, there are certain matters relating to jurisdiction on whichforum prorogatum has no impact. For example, 22
1962 ICJ Reports at p. 328. On this ground for the absence of competence see the Mavrommatis Palestine Concessions Case (Preliminary Objection), (1924), PCIJ Series A No. 2 p. 11. 24 1974 ICJ Reports at pp. 253 and 457. See also the Northern Cameroons Case, 1963 ICJ Reports at p. 15. 23
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while a limitation ratione materiae may be subject to forum prorogatum, the jurisdictional defect caused by the absence of a dispute or the mootness of the issue contested are not, as would be the objection to jurisdiction based on the non-legality of a dispute or the failure of the party concerned to subject itself properly to the statute of the tribunal, as in the case of the ICJ, the latter being a defect ratione personae. Forum prorogatum in any case can only have an effect on a jurisdictional defect, where the defect relates to the absence of agreement or consent as such and not to more fundamental requirements of competence inherent in the international judicial function. The right of a tribunal to raise questions of competence proprio motu may be of particular importance in the case of certain tribunals from the angle of doing justice and affording a party his or her rights. In the case of war crimes tribunals, such as the ICTY or the ICTR, it is important that defendants not be subjected to trial in situations where the tribunal has no jurisdiction. If they were, this would be a violation not only of the rights of the individual but of a state or states consenting directly or indirectly to the transaction creating the tribunal. Thus limitations on jurisdiction or competence of whatever nature—ratione personae, ratione materiae, ratione temporis, ratione loci, etc.—are of such importance in these cases that they may be addressed undoubtedly proprio motu by the tribunal. FORUM PROROGATUM AND COMPETENCE Forum prorogatum as a title to jurisdiction involves the completion of a jurisdictional requirement by subsequent conduct. First, it relates to the jurisdictional requirement of consent or agreement of the parties and not to requirements inherent in the judicial function.25 That is to say the doctrine applies only where the absence of consent given before the institution of proceedings is curable by implied consent flowing from conduct subsequent to the institution 25
See Chapter 3 above.
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of proceedings. Second, it would appear that the doctrine is not applicable to the jurisdiction of all tribunals. In regard to the first point, the existence of limitations to jurisdiction inherent in the judicial function has been discussed at the end of Chapter 3. Thus, in regard, for example, to the issue whether a dispute exists which is a matter of this nature it is not possible that the argument that there has been forum prorogatum can succeed. Similarly, where the claim is moot, the doctrine of forum prorogatum would not be relevant. With respect to the second point, first, the doctrine has been accepted categorically, as will be seen, in the case of the World Court but this is the only tribunal in which it has been applied with success. The application of the principle will be discussed in Chapter 11. Secondly, the relevance in principle of the doctrine in arbitration has been denied. In the Horst Purfurst Case, for instance, the tribunal which was an arbitral tribunal stated that "the principle of forum prorogatum does not apply to bodies of international jurisdiction charged with the performance of special functions."26 The statement was qualified by reference to cases in which there was a provision in the constitutive Convention specifically permitting jurisdiction over questions subsequently referred to the tribunal by special agreement. In the Young Plan Case, however, the tribunal stated that "Not even an explicit agreement by the parties could confer on the Tribunal a jurisdiction that is not contemplated by the LDA (London Debt Agreement)."27 Thus, there seems to be a minor conflict between these cases. While conduct subsequent to the institution of proceedings which falls short of an explicit agreement may be inadequate as a forum prorogatum to create jurisdiction in an arbitral tribunal, which was absent in the first place, there is some disagreement on whether a subsequent special or explicit agreement may do so. The better view is that expressed in the Young Plan Case for the reason that, if conduct subsequent to 26
(1958, Arbitral Commission on Property, Rights and Interests in Germany), 1 Eintscheidungen at p. 142. 27 (1980, Belgium, France, Switzerland, UK v. FRG), 59 ILR at p. 524. The LDA established the tribunal.
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the institution of proceedings is unacceptable as a source of consent, there is no reason why a special or explicit agreement which also gives rise to subsequent consent may do so. It is noted that the reference in the Horst Purfurst Case to tribunals "charged with the performance of special functions" does not in effect restrict only to certain kinds of arbitral tribunals the principle that the doctrine of forum prorogatum does not apply. The bodies referred to in that case are clearly arbitral tribunals as such because arbitral tribunals are entrusted with special functions and in addition have juridiction attribue and not a general jurisdiction. The language used to describe arbitral tribunals in that case is unfortunate but the implication of the language is clear. It is apparent that the language was not intended to cover a court such as the ICJ, because, among other things, though the ICJ has a juridiction attribue it is possible under Article 36 for parties to agree that its jurisdiction is not limited to "specific functions" but is of a general or universal nature. THE JUDGMENT ON COMPETENCE AND RES JUDICATA The principle of res judicata as a general principle of law of international adjudication, whether arbitral or otherwise, seems to be well accepted. It has been said by an arbitral tribunal that "D'apres les principes generaux du Droit international, la revision de la sentence du juge international n'est ouverte que lorsqu'elle est prevue par des dispositions procedurales precisant la but et les limites de cette institution...",28 implying that in the absence of a contrary indication judgments of international tribunals are res judicata, even if this principle is not specifically expressed in the constitutive instruments of the tribunal. In the Amco Arbitration (Resubmitted Case: Jurisdiction) the statement was made that "the principle of res judicata is a general principle of law:...."29 28
The Canino Case (1959, France v. Italy), 13 UNRIAA at p. 447. (1988), 1 ICSID Reports at p. 549. IATs have regarded the principle as applicable to their judgments generally because of express provision in their statutes, but it is applicable as a general principle of law: see Amerasinghe, 1 The 29
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In the case of the ICJ, Article 60 of its statute incorporates expressly the principle of res judicata (subject to Article 61) which has been specifically applied to decisions on jurisdiction by the Court. In the Corfu Channel Case (Compensation) Albania challenged the jurisdiction of the Court with respect to the assessment of damages. The Court held that: The court may confine itself to stating that this jurisdiction was established by its Judgment of April 9th, 1949, that, in accordance with the Statute (Article 60), which, for the settlement of the present dispute, is binding upon the Albanian Government, that Judgment is final and without appeal, and that therefore the matter is res judicata.30
Though the question of jurisdiction referred to in that case concerned the competence to assess damages, which is slightly different from the authority to decide the merits of the case as such, both matters involve the consideration of competence and the applicable rule is the same. The practice of the ICJ shows that under its statute the principle of res judicata applies equally to matters pertaining to competence in general as it does to the judgment on the merits of the case, though this is not expressly stated in the statute itself. There is no reason why the same interpretation of the principle should not be applicable to the general principle of international law of res judicata, even where constitutive instruments are silent on the matter. The subsidiary question that arises is how the principle of res judicata would be applied, if the particular issue of jurisdiction had been overlooked both by the parties and the tribunal, or not addressed by one or the other, and the merits had been consequently judged. The question is important because, while a finding that a tribunal has jurisdiction where the issue has been fully addressed may be res judicata, however wrong it may be thought to be by anyone, it may be argued that, if the particular issue relating to jurisdiction Law of the International Civil Service (1994) pp. 241 ff. The ICJ statute, Article 60, incorporates the principle which has been discussed in several cases: see, e.g., the Corfu Channel Case (Compensation), 1949 ICJ Reports at p. 248, Haye de la Torre Case, 1951 ICJ Reports at p. 80. 30 The Corfu Channel Case (Compensation), 1949 ICJ Reports at p. 248.
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had not been raised before the tribunal, there can be no finality of a decision on the issue because there was no decision, following argument or at least notice to the parties, on the issue. Particularly because the existence of jurisdiction cannot lightly be presumed and there is a duty upon the tribunal to raise proprio motu jurisdictional matters, the question assumes a different complexion from the similar question asked in relation to decisions on the merits or in regard to the substance or remedies and the like, where, inter alia, the tribunal has no responsibilities in regard to the raising of issues. It is cogently arguable that, because an international tribunal's jurisdiction needs to be established and cannot be assumed, it cannot have jurisdiction by default. The acceptance of this argument would lead to the conclusion that, as a general principle, in the circumstances described above the principle of resjudicata is to be interpreted in such a way that the issue that was not addressed could be litigated and decided and that this would be the case also where there is express provision for the application in general of the principle to the judgments of the particular tribunal. In the absence of an express contrary indication in the jurisdictional instruments of a tribunal— and the effect of express indication to the contrary may, indeed, be a matter for discussion—the above interpretation of the principle of resjudicata in respect of judgments on competence would be applicable as the appropriate interpretation of the general principle of res judicata. It is important to note that the result flows from the appropriate interpretation of the principle of res judicata and not from the recognition of an exception to it. Further, without a doubt the omission from the proceedings or the judgment already given of the issue which is being raised must be strictly proved. It is an issue relating to jurisdiction that must have been omitted. It is insufficient that what is in question are arguments or contentions and not a specific issue. This may be a very fine distinction but it must be drawn.
IDENTIFYING MATTERS OF COMPETENCE Generally the instruments governing the functioning of a tribunal will indicate what are the matters concerning competence, i.e., what
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is the extent and what are the limits of the tribunal's authority in settling the dispute on its merits. But there are certain general principles relating to matters of competence that may be applicable in the absence of specific mention in these instruments, such as the principles relating to the requirement of non-mootness31 or to the presence of a dispute.32 Indeed, some principles may be so fundamental that even consent among the parties to the dispute or explicit provisions in the governing instruments do not have a countervailing effect. This point is discussed further below. These fundamental principles aside, tribunals look entirely to the content of their governing instruments and their interpretation to determine the extent and scope of their jurisdiction and the limitations on it. The question of some importance that arises in respect of jurisdiction is how to distinguish matters of competence from matters of recevabilite. The first point is that much will depend on the interpretation of the governing instruments, which means that there is some flexibility and some discretion left to the parties. This is so to the extent that what is a matter of recevabilite for one tribunal or in one situation may be a matter of competence for another or in another situation. A good example of this is the nationality of claims rule or variations of it which in customary international law is regarded as a rule relating to recevabilite and not to competence where it is applicable.33 In the case of the arbitrations which take place before the Iran-US claims Tribunal pursuant to the Algiers Declaration and connected international instruments between Iran and the USA the nationality of claims rule as interpreted by the 31
See, e.g., the Nuclear Tests Cases, 1974 ICJ Reports at pp. 253 and 457, and the Northern Cameroons Case, 1963 ICJ Reports at p. 15. 32 See, e.g., the Mavrommatis Palestine Concessions Case (Preliminary Objection), (1924), PCIJ Series A No. 2 at p. 11, and the South West Africa Cases (Second Phase), 1962 ICJ Reports at p. 328, for this ground of the absence of jurisdiction. 33 See the Nottebohm Case (Second Phase), 1955 ICJ Reports at pp. 12 and 26. In upholding the objection raised by the respondent based on the failure to meet the requirements of the nationality of claims rule on the part of the claimant state the ICJ declared the claim inadmissible (irrecevable).
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tribunal appears to be treated as a matter of jurisdiction, meaning competence,34 because presumably the nationality of the claim is so fundamental under the governing instruments to the jurisdiction of the tribunal. For this reason, among other things, it would not be possible for the respondent state to waive the application of the rule. Restrictions ratione temporis, to take another example, often could be matters of competence or matters of recevabilite depending on how the governing instruments are framed in the given case.35 The second point is that there could be situations in which the question is answered by the tribunal by interpreting the governing instruments. Thirdly, because of the nature of competence as a juridiction attribue, it is likely that there is a basic presumption of interpretation that what is regarded by the tribunal as a matter of fundamental importance in the light of the governing instruments or their interpretation will be treated as a matter of competence rather than as a matter of recevabilite. The approach taken by the ICJ in the ILOAT Judgments Opinion in discussing the basic legal qualifications of the ILOAT to decide the merits of disputes36 would seem to indicate this conclusion. Competence was, in effect, described in terms which related to the basic legal qualifications of a tribunal in a given situation to decide the merits of disputes. 34
See, e.g., Iran-United States Case No. A/I8 (1984), 5 Iran-US CTRp. 251, where the issue of nationality of the individual claim was treated as related to the tribunal's jurisdiction based on the express provisions of the instruments governing the tribunal (Article VII(l) and Article II of the Claims Settlement Declaration of 1981). The provision of Article II referring to the need for the claim to have the nationality of one of the parties was basic to the jurisdiction of the tribunal according to Article II. Generally matters of standing (locus standi) are concerned with jurisdiction and not receivability. On standing before the ICJ see Sonborn II, "Standing before the International Court of Justice: The Question of Palestinian Statehood Exemplifies the Inconsistencies of the Requirement of Statehood", 7 Calif. WILJ (1977) p. 454. 35 In the case of the WBAT statute, for instance, one restriction ratione temporis in Article II is a matter of competence (see the restriction applied in Kavoukas and Parham, WBAT Reports (1981), Decision No. 3), while another relating to the time limits for the filing of applications is a matter of receivability. 36 See 1954 ICJ Reports at p. 87.
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TIME FOR RAISING ISSUES OF COMPETENCE If, as has been pointed out above, absence of competence cannot be cured, e.g., by default of the parties or of the tribunal, because competence is a matter which is fundamental, then technically it would follow that (i) it is reasonable and in keeping with proper adjudicatory procedure and justice that issues as to competence may be raised at any time and do not necessarily have to be raised at a particularly early stage in the proceedings, and (ii) unless the issues are in fact raised by the parties or by the tribunal and the parties are given an opportunity to address the issues, the issues can never become res judicata. An exception has to be made, however, where the doctrine of forum prorogatum is applicable, in which case unless the issue of lack of competence is raised at the appropriate time and before the subsequent conduct giving rise to consent to competence can take effect, the consent given by subsequent conduct would cure any defects in jurisdiction. Forum prorogatum has been applied as a source of consent to competence hitherto only by the World Court. As pointed out, it has been denied any significance in regard to international arbitrations and its relevance has not been addressed by other standing or ad hoc tribunals as a consequence of which its effectiveness in relation to those tribunals cannot be assumed. Thus, with the exception of the PCIJ and the ICJ, for all practical purposes there is no mandatory time limit for the filing of objections relation to competence before other international tribunals, even if the procedures or rules of the tribunals require that such objections be filed at a particular time or before a certain point in the proceedings. Because of the fact that competence cannot be pre-empted by a default, among other things, such procedural requirements relating to the filing of objections cannot result in the restoration of competence to tribunals and are no more than rules provisionally to facilitate the conduct of proceedings by the tribunals. While the issue of the effect of provisions in the rules of procedure on the substantive content of competence and its recognition has not been addressed or pronounced on by tribunals in general, with the exception of the World Court which by implication has done so by promulgating the effectiveness of forum
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prorogatum in relation to its own competence in its judgments, logic and justice would require the solution proposed above. In the Rules of the Iran-US Claims Tribunal it is stated in Rule 21(3) that pleas as to jurisdiction must be raised no later than in the statement of defense, or in the reply to a counter-claim where applicable.37 In general this is probably the common practice in arbitral tribunals. In the Rules of a standing tribunal, the ITLOS, objections to jurisdiction are required to be made within 90 days from the institution of proceedings.38 In the Rules of Procedure of the ITCY and ITCR, both ad hoc tribunals, on the other hand, no mention at all is made of preliminary objections to jurisdiction, including competence.39 Rule 44 of the Rules of Procedure of the European Commission of Human Rights adopted in 1955 required that the Commission give notice of an application to the respondent state and invite observations on admissibility.40 According to Rule 55 of the current Rules of Court of the ECHR any plea of inadmissibility must, "in so far as its character and the circumstances permit, be raised by the respondent... in its written or oral observations on the admissibility of the application...",41 and under Article 51 the Court after an inter-state application is filed must invite the respondent to submit its observations in writing on admissibility.42 It is clear that these are rules of procedure of tribunals that provide for the early submission of pleas on jurisdiction. However, as a matter of principle, a rule of procedure cannot affect or change the jurisdictional authority of the tribunal which is a matter of substantive law deriving from the relevant international legal sources of
37
1 Iran-US CTR p. 78. 2 New Directions in the Law of the Sea: Global Developments (1996), 17.B(5).34. 39 Van de Wyngaert (ed.), International Criminal Law (2000) p. 83 ff. 40 European Commission of Human Rights: Documents and Decisions (1959) pp. 74-6. 41 Clayton and Tomlinson, The Law of Human Rights (2000) p. 95. 42 Clayton and Tomlinson, ibid. p. 94. 38
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jurisdictional law. That is to say, these rules of procedure, while facilitating the orderly conduct of business, cannot by their strict application change the jurisdictional authority of the tribunal which is basic nor can they deprive the parties of the right to have the tribunal respect its own jurisdictional limitations.43 SOURCES OF JURISDICTION (a) Multiple Sources The source or sources of jurisdiction of an international tribunal are the instruments or other modalities through which the consent of the parties, whether direct, indirect, implied or imputed, is expressed.44 Generally these sources consist of, in the case of arbitration, the treaty or compromis instituting the arbitration, or in other cases a statute or other instrument creating the tribunal, or sometimes even in a consent not expressed in written form. There is no formal or standard requirement for a source and sources may be sought in any place where they may be located. In fact there may be several sources from which may flow the jurisdictional authority of a tribunal and which may not only be multiple but be successive or possibly introduced at a later stage in the proceedings.45 43
The position in the ICJ is referred to in Chapter 13. Preliminary exceptions before the ICJ are discussed in Herczegh, "Exceptions preleminaires dans la pratique recente de la Cour internationale de Justice", 5 Romanian JIL (1999) p. 214. 44 Sources are sometimes referred to as "titles". 45 Multiplicity of sources has arisen before the PCIJ and ICJ: see, e.g., the Electricity Company of Sofia Case (1939), PCIJ Series A/B No. 77, the Corfu Channel Case, 1947-48 ICJ Reports p. 15. Successive sources have been addressed in the Barcelona Traction Company Case (Preliminary Objection), 1964 ICJ Reports p. 6, Temple of Preah Vihear Case (Preliminary Objection), 1961 ICJ Reports p. 17. There have been several cases before the ICJ in which additional titles introduced during the proceedings have been discussed: see, e.g., the Nicaragua Case (Jurisdiction andAdmissibility), 1984 ICJ Reports p. 392, the Application of the Genocide Convention Case (Provisional Measures), 1993 ICJ Reports p. 3.
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Such matters have given rise to issues mainly before the ICJ. A word will be said here regarding multiple sources as such. The details and complexity of the situation arising from the invocation of several sources for jurisdiction have been discussed by the ICJ. However, the basic general principle which applies to multiple sources is the same for all tribunals and both it and its application were best explained by the PCIJ in the Electricity Company of Sofia Case: In its opinion, the multiplicity of agreements concluded accepting the compulsory jurisdiction is evidence that the contracting Parties intended to open up new ways of access to the Court rather than to close old ways or to allow them to cancel each other out with the ultimate result that no jurisdiction would remain. In concluding the Treaty of conciliation, arbitration and judicial settlement, the object of Belgium and Bulgaria was to institute a very complete system of mutual obligations with a view to the pacific settlement of any disputes which might arise between them. There is, however, no justification for holding that in so doing they intended to weaken the obligations which they had previously entered into with a similar purpose, and especially where such obligations were more extensive than those ensuing from the Treaty. It follows that if, in a particular case, a dispute could not be referred to the Court under the Treaty, whereas it might be submitted to it under the declarations of Belgium and Bulgaria accepting as compulsory the jurisdiction of the Court, in accordance with Article 36 of the Statute, the Treaty cannot be adduced to prevent those declarations from exercising their effects and disputes from being thus submitted to the Court. It is necessary therefore in the first place to consider whether the objections raised by the Bulgarian Government to the jurisdiction of the Court under the Treaty are well-founded or not. Should they prove well-founded, the court will then consider the objections raised by that Government under the declarations above mentioned. Only if both these sets of objections are alike held to be well-founded will the court decline to entertain the case.46
46
(1939), PCIJ Series A/B No. 77 at p. 76.
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While there may be more than one source, they are generally cumulative in effect and not exclusive, unless there is a contrary intention. (b) Validity in Time A source of jurisdiction is effective from the date on which it enters into force until the date on which it ceases to be in force. When the source is a treaty or a written document, these dates will be determined, in case of uncertainty, by application of the general principles of interpretation of such instruments. The main problem that arises is when the proceedings have been instituted outside the two dates referred to above—the commencement date and the termination date—in regard to written instruments. The issue does not concern the mention in the treaty of specific dates before the commencement date and after the termination date which relates to a temporal factor in the content or scope of jurisdiction but a matter of the date of validity of the source of jurisdiction. There are circumstances in which it has been recognized that jurisdiction may exist where proceedings have been instituted before the source of jurisdiction becomes valid, i.e., when there is no indication within the source that the coverage of the instrument extends antecedently beyond the date of validity. The issue concerns a formal element ostensibly as contrasted with a matter of substance and it has been disposed of very practically by the PCIJ in the Mavrommatis Palestine Concessions Case (Jurisdiction): it must also be considered whether the validity of the institution of proceedings can be disputed on the ground that the application was filed before Protocol XII had become applicable. This is not the case. Even assuming that before that time the Court had no jurisdiction because the international obligation referred to in Article II was not yet effective, it would always have been possible for the applicant to re-submit his application in the same terms after the coming into force of the Treaty of Lausanne, and in that case, the argument in question could not have been advanced. Even if the grounds on which the institution of proceedings was based were defective for the reason stated, this would not be an adequate reason for the dismissal of the applicant's suit. The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they
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Chapter 7. Competence to settle disputes might possess in municipal law. Even, therefore, if the application were premature because the Treaty of Lausanne had not yet been ratified, this circumstance would now be covered by the subsequent deposit of the necessary ratifications.47
It will be observed that, while the Court mentioned the existence of the source of jurisdiction, the Treaty of Lausanne, and the treaty had been signed, thus having an inchoate validity, so to speak, the Court did not place much emphasis on this fact. What it did focus on was the fact that the institution of proceedings had taken place before the coming into force of the source of jurisdiction. It would, thus, hardly seem to be of significance that there was an inchoate validity of some kind of the source, the important feature being that the institution of proceedings took place at a time when the source of jurisdiction was not applicable because the international obligation relating to dispute settlement "was not yet effective" (n 'etait pas encore en vigeur) with the result that at the time of institution of the proceedings the Court had no jurisdiction (la juridiction de Court n 'existaitpas). Thus, the principle that would seem to emerge is that, whenever proceedings before an international tribunal are instituted before the operative source of jurisdiction is effective, any defect that may exist because the institution of proceedings is premature, which would be fatal, if the defect were not cured by the time the case is taken up for adjudication, will not cause the failure of jurisdictional authority, if the defect in the validity of the source is "covered" (couvert) by subsequent events which give the source the necessary validity before the case is taken up for adjudication. This is, of course, subject to an express contrary indication in the source. (c) Termination of Validity The general principle applied by the ICJ and applicable to the jurisdiction of other tribunals is that the termination of the source of jurisdiction is effective for the future and makes invalid proceedings not instituted before the effective date of the termination. In the
47
(1924), PCIJ Series A No. 2 at p. 34.
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Northern Cameroons Case, where the source of jurisdiction, the Trusteeship Agreement, was terminated on June 1, 1961, the ICJ said that "Article 19 of the Agreement which provided for the jurisdiction of the Court..., was terminated with all other Articles of the Agreement, so that after 1 June 1961 it could not be invoked as a basis for the Court's jurisdiction".48 The statement clearly refers to the date of the institution of proceedings and not, for example, to the date of the events giving rise to the dispute. The two complementary aspects of the principle may be reflected in the propositions that (i) reliance cannot be placed on a source of jurisdiction that has terminated before the proceedings are instituted and is no longer in force, and (ii) where proceedings relying on a source of jurisdiction are instituted before the validity of that source of jurisdiction terminates, the continuation of the proceedings so instituted is not affected by the termination of validity of the source of jurisdiction. The first proposition was clearly supported in the Pajzs, Csaky, Esterhdzy Case (Preliminary Objection), where the PCIJ confirmed the submissions agreed upon by both parties that, because the acceptance of the Optional Clause of the Court's statute by one of the parties had lapsed without being renewed before the application of the claimant party had been filed, the acceptance of the Optional Clause by that party had ceased to be binding on it when the application was filed, with the result that the Court had no jurisdiction over it.49 The second proposition was contested by the respondent in the Nottebohm Case (Preliminary Objection) where one party's acceptance of the Optional Clause of the ICJ's statute had lapsed shortly after the proceedings were instituted. The Court said: At the time when the Application was filed, the Declarations of Guatemala and of Liechtenstein were both in force. The regularity of the seising of the Court by this Application has not been disputed. The subsequent lapse of the Declaration of Guatemala, by reason of the expiry of the period for which it was subscribed, cannot invalidate 48 49
1963 ICJ Reports at p. 35. (1936), PCIJ Series A/B No. 66 at p. 5.
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Chapter 7. Competence to settle disputes the Application if the latter was regular: consequently, the lapse of the Declaration cannot deprive the Court of the jurisdiction which resulted from the combined application of Article 36 of the Statute and the two Declarations. When an Application is filed at a time when the law in force between the parties entails the compulsory jurisdiction of the Court— which was the case between Guatemala and Liechtenstein on December 17th, 1951—the filing of the Application is merely the condition required to enable the clause of compulsory jurisdiction to produce its effects in respect of the claim advanced in the Application. Once this condition has been satisfied, the Court must deal with the claim; it has jurisdiction to deal with all its aspects, whether they relate to jurisdiction, to admissibility or to the merits. An intrinsic fact such as the subsequent lapse of the Declaration, by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established.50
An incidental question that may arise is whether there is a presumption that treaties relating to judicial settlement or declarations of acceptance of the Optional Clause in the ICJ's statute may be unilaterally denounced in the absence of express provision to the contrary. The ICJ stated on this matter: The above observations suffice to dispose of a possible objection based on views expressed by certain authorities to the effect that treaties of judicial settlement or declarations of acceptance of the compulsory jurisdiction of the Court are among those treaty provisions which, by their very nature, may be subject to unilateral denunciation in the absence of express provisions regarding their duration or termination. Since those views cannot apply to a case such as the 50
1953 ICJ Reports at pp. 122-3. In several other cases before both the PCIJ and the ICJ the situation was comparable but the parties did not contest the issue: see the Losinger Case (1936), PCIJ Series A/B No. 67, the Phosphates in Morocco Case (1938), PCIJ Series A/B No. 74, the Anglo-Iranian Oil Co. Case (Preliminary Objection), 1952 ICJ Reports p. 93, the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at p. 142, the Nuclear Tests Cases, 1974 ICJ Reports at pp. 253, 457, the Nicaragua Case (Merits), 1986 ICJ Reports at p. 28.
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present one, the Court does not need to examine or pronounce upon the point of principle involved. It is sufficient to remark that such views have reference only to instruments in which the parties had assumed a general obligation to submit to judicial settlement all or certain categories of disputes which might arise between them in the unpredictable future. The 1961 Exchange of Notes does not embody an agreement of this type. It contains a definite compromissory clause establishing the jurisdiction of the Court to deal with a concrete kind of dispute which was foreseen and specifically anticipated by the parties. In consequence, when a dispute arises of precisely the sort contemplated, and is referred to the Court, the contention that the compromissory clause has lapsed, or is terminable, cannot be accepted.51
SCOPE OF PRIMARY JURISDICTION Often the extent of jurisdiction and the limits on such jurisdiction under the instruments granting jurisdiction has been the subject of dispute. Needless to say, the answers in such situations generally depend on the interpretation of the instruments granting jurisdiction. Some examples of the delineation of jurisdiction in arbitration may be considered. In an early 20th century arbitration the tribunal held that what it was authorized to do was to settle the dispute by deciding according to law, the functions of the tribunal being strictly judicial,52 while in another of the same period the tribunal asserted that within the limits of the compromis (the protocol) its powers were wide, but outside those limits it had no powers at all.53 In an arbitration between the UK and the USA the tribunal made it quite clear that its function under the compromis was "not to lay down new rules" but to apply "the principles of international law, applicable to maritime warfare, existing in 1898", which were "sufficient 51
Fisheries Jurisdiction Cases {Jurisdiction of the Court), 1973 ICJ Reports at pp. 15 and 60 respectively. 52 Kummerow et al. Case (1903, Germany v. Venezuela), 10 UNRIAA at p. 399. 53
French Co. of Venezuela Railroads Case (1905, France v. Venezuela), 10 UNRIAA at p. 348.
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to enable it to decide this case".54 In an arbitration between France and Poland the tribunal held that it had competence to interpret the relevant convention granting it jurisdiction and not merely apply it.55 Tribunals have held that they had authority under their respective governing instruments to establish rules of procedure for the instant arbitration,56 to provide for the "alternating modification and suspension" of a regime where it was given the power to establish a regime,57 and to include in the adjudication consideration of a detention of an individual which was not specifically mentioned in the compromis but which, as neither of the parties had objected, could be regarded as within the competence of the tribunal.58 In a more recent case, where the issue was whether the doctrine of perpetuatio fori applied so that the tribunal's jurisdiction was not excluded, it held that there was no conflict of jurisdictions at the time the proceedings took place because the competing tribunal had not been established at the time of the constitution of the present one.59 In another the tribunal held that interpreting domestic law where needed was within its jurisdiction.60 In two cases the Iran-US Claims Tribunal made it quite clear that it had no jurisdiction beyond that conferred upon it by the "declarations" of the two states parties establishing the tribunal and that these instruments had to be interpreted in the context of the situation in a given case.61 In another case the same tribunal held that it had jurisdiction under its constitutive instruments to adjudicate on claims arising out of measures affecting "property" rights. Consequently, while it did not 54
The Eastern Extension, Australasia and China Telegraph Co., Ltd. Case (1903), 6UNRIAA at p. 118. 55 The Compagnie d'electricite de Varsovie Case (Jurisdiction) (1929), 3 UNRIAAp. 1675. 56 The Compagnie d'electricite de Varsovie Case (Interlocutory Award) (1932, France v. Poland), 3 UNRIAA at p. 1682. 57 The Trail Smelter Case (1941, Canada v. USA), 3 UNRIAA at p. 1973. 58 The Chevreau Case (1931, France v. UK), 2 UNRIAA at p. 1674. 59 The Swiss Confederation v. FRG (No. 1) (1958), 25 ILR pp. 54-5. 60 The Springer Case (1966, Arbitral Commission on Property, Rights and Interests in Germany),9 Entscheidungen at p. 128. 61 Iran-United States, Case No. A/1 (1982), 1 Iran-US CTR at p. 152, the T.C.S.B Case (1982), 1 ibid. at p. 266.
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have jurisdiction over pure personal injury claims it did have jurisdiction over tortious acts such as expulsion which affected property rights.62 The Iran-US Claims Tribunal also faced in connection with establishing its competence the task of interpreting and applying a jurisdictional provision of the governing instruments which required that the respondent be one of the two governments involved, namely the USA or Iran, and defined references to the two governments as meaning the government, any political subdivision, and any agency, instrumentality, or entity controlled by the government or any political subdivision (Article VII(3) and (4)). In response to a request by Iran the tribunal first held in Cases Nos. A1 and A2, The Islamic Republic Iran v. The United States,63 that the tribunal had no jurisdiction over claims by Iran against US nationals as such. The tribunal said that the General Declaration did not confer jurisdiction independently of the Claims Settlement Declaration, which was clear and limiting. Subsequent to the decision in that case the question that came up from time to time with respect to the tribunal's jurisdiction over respondents was whether they were "controlled" by the government. While most cases involved control by the executive institutions of the Iranian government, the tribunal decided that control by the legislative or judicial branches of the government also constituted control by the government.64
62
The Yeager Case (1987), 17 ibid. at pp. 98 ff. On lack of jurisdiction of the tribunal over personal injury claims proper, see, e.g., the Lillian Byrdine Grimm Case (1983), 2 ibid. p. 78, the International Systems and Controls Corp. Case (1986), 12 ibid. p. 239. An express exclusion in the governing instrument gave the tribunal no jurisdiction over a claim related to the seizure of particular US nationals: see the K. Haji-Bagherpow Case (1983), 2 ibid. p. 38. 63 (1982), 1 ibid. p. 101. On the tribunal's jurisdiction in this respect see also Avanessian, Iran-United States Claims Tribunal in Action (1993) passim. For other claims included and excluded as such from the tribunal's jurisdiction and thus establishing limits to it see ibid. p. 79 ff. and passim, and Aldrich, Jurisprudence of the Iran-United States Claims Tribunal (1996) passim. 64 The Alfred Haber, PA. Case (1989), 23 Iran-US CTR p. 133.
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In establishing control the tribunal referred, first, to Iranian laws. In the Gruen Associates, Inc. Case65 the tribunal found the Iran Housing Company to be within the definition of "Iran". The clinching evidence was the text of a law which provided, in Article 7, that the Company was removed from the Ministry of Health and shall be "administered under the supervision of the Social Security Organization". Secondly, the tribunal relied on ownership of the entity. In the Ultrasystems Inc. Case66 the tribunal held that Information Systems Iran (Isiran) was controlled by the government of Iran on the basis of admissions by Isiran that 100 per cent of its capital stock was owned by the government through its ownership of Iran Electronics Industries Corp. In the Economy Forms Corp. Case the tribunal disposed of the argument that an entity owned indirectly by the government through another entity was not controlled by the government, stating that "no distinction is made in Article VII, paragraph 3, between direct and indirect control by the Government," and concluding that "the separate juridical status of an entity two or more levels removed from the Government itself is not a sufficient basis from which to conclude that the entity conducts its operations free of the control of the Government".67 In the Blount Brothers Corp. Case,68 the tribunal accepted evidence of ownership that the stock of a respondent company had been nationalized in 1979 and a director had been appointed by the government of Iran. In the Time, Inc. Case69 it was held that ownership of the stock of an Iranian company by an Iranian bank that was nationalized was sufficient to establish control of the company by the government. In the Henry F. Teichmann, Inc., et al. Case70 the tribunal found the respondent a controlled entity on the basis of evidence that a government-owned 65 66 67 68
(1983), (1983), (1983), (1983),
3 ibid. p. 97. 2 ibid. p. 100. 3 ibid. p. 47. 3 ibid. p. 225. See also the Opal H. Sether Case (1988), 18 ibid.
p. 275. 69
(1984), 7 ibid. p. 8. See also the Foremost Tehran Inc., et al. Case (1986), 10 ibid. p. 229. 70 (1986), 13 ibid. p. 124.
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bank owned 62 per cent of the respondent's shares and appointed the chairman of its Board of Directors. Thirdly, the tribunal has consistently held that an entity was controlled by the government of Iran whenever it was established that the entity was managed, administered, or supervised by persons appointed by the government or by another controlled entity. In the Ray Go Wagner Equipment Co. Case71 there was conflicting evidence, which the tribunal did not resolve, as to whether the Star Line, being the respondent, had been nationalized. The tribunal based its finding of control on evidence that, since the Islamic revolution, Star Line had been administered by persons appointed by some public authority and not by its registered Manager and Board of Directors. The tribunal stated that this established prima facie evidence of government control which was not sufficiently rebutted by the assertion that no formal changes have been officially registered in Iran with regard to the company. Thereafter the tribunal has held that, where the government had appointed managers in charge of day-to-day operations, the entities were "controlled" by the government, even though they had not been nationalized or expropriated.72 The tribunal has also on occasion cited the nature of the activity performed by a respondent as evidence that it was controlled by the government, but in all such cases there was also other evidence to support the conclusions reached. For example, in the RayGo Wagner Equipment Co. Case73 the tribunal supported its conclusion that the respondent was a controlled entity by noting that Article 44 of the Constitution of the Islamic Republic of Iran provides that the state sector of the economy is to include, inter alia, the shipping industry. In the FMC Corp. Case74 the tribunal held that the Social Services Organization was a controlled entity. The respondents argued that it 71
(1982), 1 ibid. p. 411. See, e.g., the Rexnord, Inc. Case (1983), 2 ibid. p. 6, the DIC of Delaware, Inc., et al. Case (1985), 8 ibid. p. 144, the Petrolane, Inc. Case (1991), 27 ibid. p. 64. 73 (1983), 2 ibid. p. 141. 74 (1987), 14 ibid. p. 111. See also the ITEL International Corp. Case (1990), 24 ibid. p. 272. 72
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was a non-profit organization, not a state organization. In addition to evidence that the entity had been dissolved by a formal legislative enactment in 1982 and that government liquidators had been appointed, the tribunal pointed to evidence that the government had removed all health and medical facilities from the entity in 1979 and placed them under the Ministry of Health and Well Being. Moreover, assertions made previously by the entity have been used by the tribunal in deciding whether it was government controlled. In the second RayGo Wagner Award,75 the tribunal referred to the evidence that, in a lawsuit in the USA between the same parties, the respondent argued that it was a sovereign entity immune from the jurisdiction of US courts. The tribunal considered this evidence supportive of its conclusion, reached on other grounds, that the respondent was controlled by the Iranian government. In several cases the question arose whether the fact that an Iranian respondent had previously been a respondent in another case that was settled by the issuance of an Award on agreed terms was dispositive of the question whether it was an entity controlled by the Iranian government. In the Al Decision, The Islamic Republic of Iran v. The United States of America the Full Tribunal, recognizing that it had only such jurisdiction as was provided in the Algiers Accords, stated its intentions with respect to Awards on Agreed Terms somewhat ambiguously: Therefore, if requested to make an award on agreed terms, the Tribunal will make such examination concerning its jurisdiction as it deems necessary. However, the Tribunal holds that it would be neither appropriate nor feasible to establish, in abstracto, without reference to the situation in any particular case, a general rule concerning the extent of the examination as to jurisdiction that may be needed.76
While the mere fact that a respondent had been a respondent in a case settled by an Award on Agreed Terms did not necessarily mean 75
(1983), 2 ibid. p. 141. See also the Whittaker Corp. Case (1987), 14 ibid. p. 263, the Uiterwyk Corp., et al. Case (1988), 19 ibid. p. 107, the Phibro Corp. Case (1991), 26 ibid. p. 15. 76 Decision No. 8-A1-FT (1982), 1 ibid. at p. 152.
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that the tribunal had considered whether it was, in fact, a "controlled" entity, yet it cited such Awards on Agreed Terms as supporting evidence in the Whittaker Case and Uiterwyk Case.77 Decisions by the tribunal holding a respondent not controlled by the government are relatively few. In two cases involving cooperative societies of employees, the tribunal found no evidence that the societies were controlled by the governmental organization whose employees they served or that they were acting as agents for those organizations.78 A far more difficult question concerning a different sort of co-operative society arose in the Arthur J. Fritz Case79 There the Co-operative Society was that of construction companies, rather than of employees, and according to the evidence from July 1979 until September 1981 a Revolutionary Prosecutor controlled the disposition of the assets of the Society. Apparently his involvement resulted from the failure of the Society to pay debts owed to nationalized Iranian banks and the evidence showed that nearly all the inventory of the Society was sold under his direction. Nevertheless, the tribunal held that the claimant had failed to prove that the Society was controlled by the government on the relevant date and the tribunal stressed that the evidence showed that the Society's Board of Directors continued to function and that, while the extent of the Prosecutor's authority remained unclear, no evidence had been presented of any action not directly related to the attachment and the sale. In several cases, the claimant submitted essentially no evidence that a respondent was a "controlled" entity. The tribunal held against the claimant in these cases on jurisdiction ratwne personae. In the William Ray Holly field Case81 the tribunal held that a claim against the General Systems Company (GSC) was not a claim 80
77
See note 75 above. See the American Housing International, Inc., Case (1984), 5 ibid. p. 235, the Middle East Management and Construction Corp. Case (1985), 9 ibid. p. 340. 79 (1989), 22 ibid. p. 170. 80 See, e.g., the Shannon and Wilson, Inc. Case (1985), 9 ibid. p. 397, the American Farm Products International, Inc. Case (1988), 18 ibid. p. 175, the Emanuel Too Case (1989), 23 ibid. p. 378. 81 (1989), 23 ibid. p. 276. 78
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against the Iranian government. The tribunal pointed out that GSC worked on a sensitive military project in Iran and that the control exercised over its activities by the Iranian military did not go beyond that which one could expect for such a project. In several tribunal decisions the tribunal refused to reverse earlier decisions by the Co-Registrars of the tribunal refusing to file claims by Iranian claimants against American companies.82 In all these cases the tribunal established the limits of its jurisdiction ratione personae under the governing instruments by interpreting them. In the Tadic Case the ICTY was confronted with an objection to its jurisdiction ratione materiae.83 The argument was that the statute of the tribunal gave it jurisdiction over crimes committed in the context of an international armed conflict and not an internal armed conflict. It was contended that, firstly, there had to be an armed conflict and, second, that conflict had to be international. The tribunal had no problem in holding on the facts that in answer to the first point there clearly was an armed conflict in the former Yugoslavia when the crimes took place. As to the second point the tribunal regarded the answer as depending on an interpretation of certain articles of the tribunal's statute. The tribunal held that, while one article of the statute (Article 2), dealing with violations of the 1945 Geneva Conventions, did not include crimes committed in internal conflicts, another which listed violations of the laws and customs of war gave the tribunal jurisdiction over acts (such as those alleged in the indictment of the accused), regardless of whether they had occurred within an internal or international armed conflict. Article 5 of the statute which listed crimes committed against a civilian population referred specifically to both international and internal armed conflicts and, therefore, gave the tribunal jurisdiction in the instant case over such crimes. The tribunal concluded, therefore, that the tribunal did have jurisdiction ratione materiae over all the alleged crimes.
82 83
See, e.g., Decision No. DEC 67-REF 35-2 (22 Dec. 1988), 17 ibid. p. 331. ICTY: Judicial Reports 1994-1995 at pp. 423 ff.
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On another point the ICTY in the same case had to decide whether it had jurisdiction to decide the merits of the dispute by the application of treaties as well as customary international law.84 The tribunal held that on a reasonable interpretation of its statute it had jurisdiction "to apply, in addition to customary international law, any treaty which: (i) was unquestionably binding on the parties at the time of the alleged offense; and (ii) was not in conflict with or derogated from preemptory norms of international law, as are most customary rules of international humanitarian law".85 In connection with the remedies that may be granted, arbitral tribunals have examined and pronounced on their jurisdictional authority. In the Karl Wisser Case the tribunal explicitly rejected the proposition that it had jurisdiction to make a recommendation of an ex gratia payment to one party by the other.86 In the arbitration between Germany and Portugal on the Responsibility for Acts of Germany Committed Subsequent to July 31, 1914, and before Portugal Entered the War the tribunal concluded that it had power to award an indemnity for "prejudice materiel ni meme moral" but not to inflict a sanction by way of retribution which would be a "pouvoir repressif".87 In the Knickerbocker Insurance Company of New York Case the tribunal made it clear that it had been given exclusive and final jurisdiction in respect of the original claimant's right to recover but that it had no jurisdiction to decide controversies over the asserted right to receive payment of certain successor and derivative claimants.88 The jurisdictional scope of particular tribunals, such as the ICJ, is discussed in later chapters. Apart from decisions which determined by interpreting the governing instruments the scope of jurisdiction of a tribunal, there are those decisions which examine the factual situation and apply the provisions of the jurisdictional instruments to them. For example, in 84
Ibid, at p. 505. Ibid. 86 (1961, Austro-German Arbitral Tribunal), unpublished but excerpted in Coussirat-Coustere and Eiseman, 3 Repertory of International Arbitral Jurisprudence (1991) p. 1419. 87 (1930), 2 UNRIAA at pp. 1076-77. 88 (1928, Germany v. USA), 8 UNRIAA at p. 49. 85
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the Saiga Case the ITLOS determined whether a certain condition required by Article 292 of UNCLOS relating to its jurisdiction had been fulfilled. This was the requirement that the question of release of the seized vessel must be submitted to the ITLOS within 10 days of the time of detention. On an examination of the facts the tribunal found that the condition had been satisfied.89 In the Southern Bluefln Tuna Arbitration the tribunal both interpreted a 1993 Convention which the parties to the arbitration had ratified and the UNCLOS and examined the facts in order to ascertain whether the facts satisfied the conditions required by their interpretation of the two conventions for the instant tribunal not having jurisdiction. The tribunal concluded that the provisions of the 1993 Convention (Article 16) "exclude(s) any further procedure" within the contemplation of Article 281(1) of the UNCLOS and also that the facts of the situation did trigger the exclusion of any such further procedure.90 FUNDAMENTAL LIMITATIONS ON THE SCOPE OF PRIMARY JURISDICTION The existence of certain limitations on jurisdiction arising from such matters as mootness or the absence of a dispute has been mentioned earlier in this chapter. While the matter has not been discussed in specie by tribunals, it is possible, indeed, likely, that there are some principles relating to jurisdiction which are so fundamental that even consent between or among the parties to the dispute or explicit provisions in the governing instrument do not have a countervailing effect. The first question is whether it is correct to acknowledge the existence of unchangeable fundamental principles, i.e., virtually a ius cogens, relating to certain limitations on the jurisdiction of international tribunals in general. The second endeavor is to identify these principles as far as possible or at least give some indication of what they may be. 89 90
(1998), 37 ILM at pp. 292 ff. (2000, Australia and New Zealand v. Japan), 39 ILM at pp. 1388 ff.
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As far as ius cogens is concerned, it is difficult not to recognize that, for example, the principle that there must be a dispute or the matter before the tribunal must not be moot, thus making an adjudication without purpose, is fundamental. It would seem that such principles as those mentioned above are so fundamental to the proper and just exercise of the judicial function that it is impossible to conceive of a judicial body not only not being permitted to apply them but having to do other than to apply them in making an initial determination that it has jurisdiction to proceed with the adjudication at all. The crux of the problem really is whether these principles may be altered by the consent of the parties, in addition to there being a compelling effect as a result of their fundamental character. Thus, if a matter brought before the tribunal is moot, it would be without purpose to adjudicate on it. If the tribunal finds that this is so, even if there is agreement between or among the parties that the adjudication should proceed, for example, because they would like to have a declaration of the law for future reference, would the tribunal be bound to recognize and give effect to that agreement and not refrain from exercising its jurisdiction which it would otherwise refrain from doing? The answer seems ineluctable that it does not make sense to concede that the agreement must be given effect to, that the tribunal must refrain from applying the limitation on its jurisdiction and that the principle is, therefore, not so fundamental as to be ius cogens. The point is that principles such as this one are so inherently basic to the appropriate and just exercise of the judicial function that they must always be at the disposal of tribunals to apply. In any event, it is to be expected that, in keeping with general principles of interpretation, tribunals will interpret their governing instruments in such a way as to conform to such basic principles. A more difficult question is what are these fundamental principles. (a) The Need for a Dispute Which is Legal The first principle that may be identified relates to the requirement that there be a dispute and the second principle refers to the related requirement that the dispute be legal. The two principles may be considered together.
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There had been much discussion by the ICJ (and the PCIJ) of the requirement that there be a dispute in order that the Court may have jurisdiction. The requirement has not been related by the Court specifically to any provision in its governing instruments. The statute refers to disputes in numerous provisions,91 and there is a specific reference to "legal disputes" (les differends d'ordre juridique) in connection with the recognition of the court's compulsory jurisdiction pursuant to Article 36(2), while Article 36(1) dealing with the Charter of the UN, treaties and conventions as sources of jurisdiction uses the term "cases" (les affaires). Not much rests on the specific use of the terms "dispute" or "legal dispute" in the governing instruments of the Court. It is clear that the requirement is a general one which relates to all international judicial bodies, regardless of the language used in the governing instruments and of whether there is reference to such concepts in those instruments. The discussion which follows of the World Court's treatment of the matter reveals that this is the case, so that the two requirements are entrenched in the general principles of law applying to international tribunals. As the Court has stated: "the existence of a dispute is the primary condition for the Court to exercise its judicial function".92 The classic definition of "dispute" is that given by the PCIJ in the Mavrommatis Palestine Concessions Case (Preliminary Objection): "A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons."93 The Court 91
See, e.g., Articles 36,38,40 and 60 of the statute. See also Mosler, "Political and Justiciable Legal Disputes: Revival of an Old controversy" in Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger (1988) p. 216, McWhinney, Judicial Settlement of International Disputes: Jurisdiction, Justiciability and Judicial Law-Making of the Contemporary International Court (1991) pp. 189 ff., Sugihara, "The Judicial Function of the International Court of Justice with Respect to Disputes Involving Highly Political Issues", in Muller (ed.), The International Court of Justice (1997) p. 117. 92 The Nuclear Tests Cases, 1974 ICJ Reports at pp. 271 and 476. 93 (1924), PCIJ Series A2 at p. 11. There are several other ICJ cases in which this view was adopted: see, e.g., the Right of Passage Case (Merits), 1960 ICJ Reports at p. 34, South-West Africa Cases (Preliminary Objections), 1962 ICJ
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satisfies itself that a dispute in those terms exists by examining, inter alia, the positions of the parties as expressed in the diplomatic history of the matter, including discussions in organs of the UN and the pleadings, and in general refers to the relevant circumstances. The facts leading to the crystallization of a dispute as such may simply be a meeting or a series of meetings of an UN body which leads to a vote which the claimant finds unsatisfactory or unacceptable. In the Oil Platforms Case (Preliminary Objection), where the parties differed on the question whether the impugned actions constituted a violation of a treaty, the dispute being as to the interpretation or application of that treaty, the ICJ said in deciding whether there was a dispute of the required nature: In order to answer that question, the Court cannot limit itself to noting that one of the Parties maintains that such a dispute exists, and the other denies it. It must ascertain whether the violations of the Treaty of 1955 pleaded by Iran do or do not fall within the provisions of the Treaty of 1955 and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain, pursuant to Article XXI, paragraph 2 (of the Treaty).94
Thus, whether a dispute exists or not is a matter for the Court to determine. That is to say, it is dependent neither upon the subjective assertion by one party that a dispute exists,95 nor upon an equally subjective denial by another party that a dispute exists.96 For the purpose of this enquiry the Court must make an objective determination97 that there exists an international dispute, that is, that the claim of one party is positively opposed by the other, as the Court Reports at pp. 328, 343, East Timor Case, 1955 ICJ Reports at p. 99. The definition really relates to a "legal dispute". The references to "law" and "legal" being removed, the nature of a "dispute" would emerge. 94 1996 ICJ Reports at p. 810. 95 South-West Africa Cases (Preliminary Objections), 1962 ICJ Reports at p. 328, East Timor Case, 1995 ICJ Reports at p. 100. 96 Land, Island and Maritime Frontier Dispute Case, 1992 ICJ Reports at p. 555, Peace Treaties Opinion, 1950 ICJ Reports at p. 74, UN Headquarters Agreement Opinion, 1988 ICJ Reports at p. 27. 97 Peace Treaties Opinion, 1950 ICJ Reports at p. 74.
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pointed out in the South-West Africa Cases (Second Phase).98 The Court made it quite clear that it is not adequate simply to show that the interests of the two parties are in conflict." The dispute must also be legal. In this connection that the proceedings have been politically inspired, as a means of exerting pressure on a state, does not affect the legal character of the dispute. In the Border and Transborder Armed Actions Case the Court said: The Court is aware that political aspects may be present in any legal disputes brought before it. The Court, as a judicial organ, is however only concerned to establish, first, that the dispute before it is a legal dispute, in the sense of a dispute capable of being settled by the application of principles and rules of international law, and secondly, that the Court has jurisdiction to deal with it, and that that jurisdiction is not fettered by any circumstance rendering the application inadmissible. The purpose of recourse to the Court is the peaceful settlement of such disputes; the Court's judgment is a legal pronouncement, and it cannot concern itself with the political motivation which may lead a State at a particular time, or in particular circumstances, to choose judicial settlement.100
In the Interhandel Case the Court pointed out that "the divergent views of the two Governments were concerned with a clearly defined legal question."101 That the legal nature of the dispute is 98
1966 ICJ Reports at p. 33. See also the East Timor Case, 1955 ICJ Reports at p. 100. 99 1966 ICJ Reports at p. 33. In this case the Court raisedproprio motu the question whether any dispute existed at all. See also on the question of a dispute as a requirement for the Court's jurisdiction: Jennings, "Reflections on the Term Dispute", in Macdonald (ed.), Essays in Honour of Wang Tieya (1994) p. 91. There is no requirement of formality in the opposing views for a dispute to arise and exist: Tunisia/Libya Continental Shelf Case (Revision), 1985 ICJ Reports at p. 192; the UN Headquarters Agreement Opinion, 1988 ICJ Reports at pp. 28, 30. Matters connected with the existence of a dispute become relevant where jurisdiction depends on the date on which the dispute came into existence: see, e.g., the UN Headquarters Agreement Opinion, ibid.; the Mariposa Development Company Case (1933), 6 UNRIAA at p. 341. 100 1988 ICJ Reports at p. 91. 101 1959 ICJ Reports at p. 21. In the Arrest Warrant of 11 April 2000 Case (2002), www.cij-icj.org, paras. 23-8, the Court held that, because there was a
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defined in terms of capability of being settled by the application of principles and rules of international law has been confirmed by the Court in general advisory opinions in regard to which opinions the need for a "legal" question to be submitted to the Court has been required. In the Western Sahara Opinion, for instance, the Court said: The questions submitted by the General Assembly have been framed in terms of law and raise problems of international law... These questions are by their very nature susceptible of a reply based on law; indeed, they are scarcely susceptible of a reply otherwise than on the basis of law. In principle, therefore, they appear to the Court to be questions of a legal character.102 It may also be pointed out in passing, though this issue has not been addressed by the Court, that whether a settlement is requested by the application of law or whether an ex aequo et bono solution is requested does not affect the question of the legal nature of the dispute. (b) The Requirement of an Interest A third unalterable principle is that the claimant party must have an interest recognized by law in the subject matter of the dispute. In the "legal dispute" at the time the Court was seized of the case, on which fact the parties agreed, its jurisdiction was not taken away merely by subsequent events which changed the situation. 102 1975 ICJ Reports at p. 18. See also the Legality of Nuclear Weapon Opinion, 1996 ICJ Reports at p. 236 ff., the WHO Nuclear Weapons Opinion 1996 ICJ Reports at pp. 74 ff. and opinions cited in those opinions, and the British Property in the Spanish Zone of Morocco Case (1925), 2 UNRIAA p. 615 (Judge Huber). It is also the case that the fact that political issues surround a dispute that is otherwise legal does not make the dispute non-legal and therefore nonjusticiable: the Hostages Case, 1980 ICJ Reports at p. 20, the Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports at p. 439, Nicaragua v. Honduras, 1988 ICJ Reports at p. 91. Also that other settlement procedures of a political nature have been resorted to simultaneously is no obstacle to the justiciability of a dispute: the Hostages Case, 1980 ICJ Reports at p. 21, the Nicaragua Case, 1988 ICJ Reports at pp. 92 ff., the Lockerbie Case, 1992 ICJ Reports p. 3. On this case see Lowe, "Lockerbie—Changing the Rules during the Game", 51 CLJ (1992) p. 408.
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South- West Africa Cases (Second Phase) the ICJ applied this principle in coming to the conclusion that "the Applicants cannot be considered to have established any legal right or interest appertaining to them in the subject matter of the present claims... ,"103 the subject matter of the claim being related to the mandate that South Africa had had over South West Africa, even though the claimants had been members of the LN which established the mandate. The Court was careful to distinguish between a general interest which lay behind an actio popularis and could not be recognized and a particular interest which could. The claimant must, it is clear, be able to show some involvement giving rise to a direct interest in the subject matter of the claim and that it is not merely an academic party to the dispute, even if that involvement does not entail the protection of its own legal rights. There is no better defined description of a "legal interest" in international jurisprudence than that given above, though there is apparently a distinction between legal rights and legal interests. It is to be noted that lATs have consistently emphasized the need for the applicant's having a legal interest in the claim or dispute presented to the tribunal.104 (c) Mootness or Absence of Object Mootness or absence of object in adjudication is another fundamental reason for a tribunal's not assuming jurisdiction in a particular case. In both the Nuclear Tests Cases105 and the Northern Cameroons Case106 the ICJ held that it could not proceed with the merits of the case because the issues raised were moot and there was no purpose served by doing so. In the former two cases the claimants in effect requested the Court to find that the carrying out of the nuclear tests in the South Pacific Region giving rise to radioactive fall out was a violation of international law. After the filing of the applications the respondent by unilateral declaration undertook not to carry out atmospheric nuclear tests in the South 103
1966 ICJ Reports at p. 51. See chapter 15 below. 105 1974 ICJ Reports at pp. 253 and 457. See Ruiz, "Mootness in International Adjudication: the Nuclear Tests Cases", 20 German YBIL (1977) p. 358. 106 1963 ICJ Reports at p. 15. 104
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Pacific Ocean. Even though in both cases only a declaratory judgment was sought, because the Court found that the dispute had ceased to exist by the time it was ready to give its decision as a result of the unilateral declaration made by the respondent, so that the object of the claim had been achieved by other means, it decided that no further judicial action was required. In the latter case the claimant sought a declaration that the respondent as mandatory was in breach of the Trusteeship Agreement for the Cameroons under British Administration. The respondent raised the issue that at the time the case was taken up there was no dispute and that the claim was without object. After the filing of the application the Trusteeship Agreement came to an end. The Court held that the case was moot and devoid of object because of the latter fact. It made it clear that even though only a declaratory judgment was requested adjudication on the merits would be inconsistent with the judicial function. It explained that the Court observes that if in a declaratory judgment it expounds a rule of customary law or interprets a treaty which remains in force, its judgment has a continuing applicability. But in this case there is a dispute about the interpretation and application of a treaty—the Trusteeship Agreement—which has now been terminated, is no longer in force, and there can be no opportunity for a future act of interpretation or application of that treaty in accordance with any judgment the Court might render.... The Applicant, however, seeks to minimize the importance of the forward reach of a judgment of the Court. It has maintained that it is seeking merely a statement of the law which would "constitute a vital pronouncement for the people of Cameroon". It has indeed asked the Court not to consider the aftermath of its judgment Whenever the Court adjudicates on the merits of a dispute, one or the other party, or both parties, as a factual matter, are in a position to take some retroactive or prospective action or avoidance of action, which would constitute a compliance with the Court's judgment or a defiance thereof. That is not the situation here.107 107
Ibid. at pp. 37 ff. In the Border and Transborder Armed Actions Case, 1990 ICJ Reports at p. 95, the Court stated that "subsequent events may render an application without object". But subsequent events, even though the facts and
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The explanation of what the Court understood mootness to mean in terms of the possibility of retroactive or prospective action or avoidance thereof is important, as is the approach in the circumstances to a declaratory judgment. The principle enunciated and explained by the ICJ is applicable to other tribunals as well. Although the Court may have regarded the matter as one involving its discretion to adjudicate on the merits,108 the issue is properly regarded as a fundamental aspect of competence. Ascertainment of mootness depends on the circumstances of the case. Factors such as the nature of the remedy requested and its relationship to the change in circumstances, the changed circumstances themselves and considerations of practicality undoubtedly are relevant. In the ultimate analysis a finding of mootness or absence of purpose involves an exercise of judgment. However, this does not mean that once the determination of mootness or absence of purpose is made there needs to be a discretion vested in the Court as to whether it should proceed to examine the merits. Once such a determination is made the Court has no alternative but not to exercise its jurisdiction to adjudicate on the merits. lATs, as will be seen in a later chapter, have applied the principle of mootness in their jurisprudence. (d) Constitution of the Tribunal A relevant defect in the constitution of the tribunal would prevent the tribunal from having competence, as has been seen in an earlier chapter (Chapter 6). It is another reason of a fundamental nature for a tribunal's not assuming jurisdiction. That a tribunal must be properly and legally constituted for a tribunal to have competence is, thus, a principle of ius cogens. situation may have changed, may not necessarily make an application moot. That the decision of the case will be without object must be clearly established for the Court's jurisdiction not to exist: the Arrest Warrant of 11 April 2000 Case (2002), www.cij-icj.org, paras. 29-32. 108 Ibid. at pp. 37, 38. Some writers regard mootness as a ground for the exercise of a discretion: see Rosenne, 2 The Law and Practice of the International Court, 1920-1996 (1996) pp. 546 ff.
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(e) The Rule in the Monetary Gold Case The rule in the Monetary Gold Case109 also lays down a principle that is fundamental to the exercise of jurisdiction by an international tribunal. In that case both Italy and Albania had claims to the gold in question and the issue contested was whether either of those claims, and if so which, had priority over the British claim to the gold which was made in order to satisfy the judgment in another case. Italy claimed priority over Albania. Albania was not party to the proceedings in the case. The Court took the view that in order to decide the issue raised it was necessary to determine whether certain Albanian legislation of 1945 was contrary to international law. In the determination of that question, only Albania and Italy were interested. The Court said that to go into the merits of such questions would be to decide a dispute between Italy and Albania and that The Court cannot decide such a dispute without the consent of Albania. But it is not contended by any Party that Albania has given her consent in this case either expressly or by implication. To adjudicate upon the international responsibility of Albania without her consent would run counter to a well-established principle of international law embodied in the Court's Statute, namely, that the Court can only exercise jurisdiction over a State with its consent.
Albania has not submitted a request to the Court to be permitted to intervene. In the present case, Albania's legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania.
Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third State, the Court cannot, without
109
1954 ICJ Reports p. 19.
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The Court accordingly found that the jurisdiction conferred upon it in that case could not, in the absence of consent by Albania, be exercised in respect of that Italian submission, that is, that it was not authorized to adjudicate upon that submission. On a second issue which involved the question of priority as between Italy and the United Kingdom to receive the gold, the Court again asked whether it could adjudicate on that claim. It pointed out that this claim, unlike the first, might seem to concern only Italy and the United Kingdom, both of which had accepted the jurisdiction of the Court. However, according to the jurisdictional instruments the issue of priority between Italy and the United Kingdom would only arise when it had been decided that, as between Italy and Albania, the gold belonged to Albania. The Court found, therefore, that the second Italian claim was dependent on the first, and that, because it could not adjudicate on the first Italian claim, it had to refrain from examining the question of priority. The Court held that it could not adjudicate on the second submission. The Court faced a similar situation in the East Timor Case.111 There in a case brought by Portugal against Australia arising from the 'Timor Gap' treaty between the two states for the delimitation of the continental shelf between Australia and East Timor occupied by Indonesia, questions arose relating to the legal position of Indonesia, in light of a series of resolutions adopted by the General Assembly and the Security Council relating to the situation in East Timor. Indonesia was not an original party to the proceedings nor had applied to intervene. The Court said: The Court finds that it cannot be inferred from the sole fact that the above-mentioned resolutions... refer to Portugal as the administering 110
Ibid. at pp. 32 ff. 1995 ICJ Reports p. 90. See Sybesma-Knol, "The Indispensable Parties Rule in the East Timor Case", in Reflections on International Law from the Low Countries in Honour of Paul de Waart (1998) p. 442, Torres Bernardez, "The New Theory of "Indispensable Parties" under the Statute of the International Court of Justice", in Wellens (ed.), International Law (1998) p. 737. 111
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Power of East Timor that they intended to establish an obligation on third States to treat exclusively with Portugal as regards the continental shelf of East Timor Without prejudice to the question whether the resolutions under discussion could be binding in nature, the Court considers as a result that they cannot be regarded as "givens" which constitute a sufficient basis for determining the dispute between the Parties. It follows from this that the Court would necessarily have to rule upon the lawfulness of Indonesia's conduct as a prerequisite for deciding on Portugal's contention that Australia violated its obligation to respect Portugal's status as administering Power, East Timor's status as a non-self-governing territory and the right of the people of the Territory to self-determination and to permanent sovereignty over its wealth and natural resources.112 The Court emphasized that it was not necessarily prevented from adjudicating when the judgment which it was asked to give might affect the interests of a state which is not a party to the case, and further stated: However, in this case, the effects of the judgment requested by Portugal would amount to a determination that Indonesia's entry into and continued presence in East Timor are unlawful and that, as a consequence, it does not have the treaty-making power in matters relating to the continental shelf resources of East Timor. Indonesia's rights and obligations would thus constitute the very subject-matter of such a judgment made in the absence of that State's consent. Such a judgment would run directly counter to the "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".113 The Court concluded that it could not exercise the jurisdiction it had because, in order to decide all the claims of Portugal, it would have to rule, as a prerequisite, on the lawfulness of Indonesia's conduct in the absence of that state's consent. The Court has also clarified the limits of the rule in the Monetary Gold Case. In the Nicaragua Case (Jurisdiction and 112
Ibid. at p. 104. Ibid. at p. 105. The Court made an obiter statement that the rule would apply to cases involving erga omnes obligations: ibid. at p. 102. 113
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Admissibility) it was argued by the respondent that the application was inadmissible as Nicaragua had failed to bring before the Court parties whose presence and participation was necessary. Dismissing that contention, the Court said: There is no doubt that in appropriate circumstances the Court will decline... to exercise the jurisdiction conferred upon it where the legal interests of a State not party to the proceedings "would not only be affected by a decision, but would form the very subject-matter of the decision".... Where however claims of a legal nature are made by an Applicant against a Respondent in proceedings before the Court, and made the subject of submissions, the Court has in principle merely to decide upon those submissions, with binding force for the parties only, and no other state, in accordance with Article 59 of the Statute. As the Court has already indicated... other States which consider that they may be affected are free to institute separate proceedings, or to employ the procedure of intervention. There is no trace, either in the Statute or in the practice of international tribunals, of an "indispensable parties" rule of the kind argued for by the United States, which would only be conceivable in parallel to a power, which the Court does not possess, to direct that a third State be made a party to the proceedings. The circumstances of the Monetary Gold case probably represent the limit of the power of the Court to refuse to exercise its jurisdiction....114 The Court has recognized the limitations on the rule in other cases. For instance, in cases of delimitation of land frontiers, it has refused to see in the existence of a tripoint with a third state a reason for not proceeding to the determination of the frontier between the two states properly before it.115 This would not prejudice the position of that third state as regards the tripoint and its relations with the other two states. The judgment would not bind the third state.116 114
1984 ICJ Reports at p. 431. See the Frontier Dispute Case, 1986 ICJ Reports at p. 576, and the Chad/Libya Territorial Dispute Case, 1984 ICJ Reports at p. 33. 116 See also, apart from the cases cited in the previous footnote, the North Sea Continental Shelf Cases, 1969 ICJ Reports p. 3, the Gulf of Maine Case, 1984 115
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In connection with a dispute relating to the administration of a Trusteeship Agreement for which there were technically three administering authorities, one of which was the 'active' partner— the Phosphate Lands in Nauru Case—the Court refused to see in the absence from the case of the other two administering authorities a ground for it not to exercise jurisdiction, while recognizing that the absence of those two states might have an influence on the responsibility of the respondent, a matter for the merits. The Court said: A State, however, which is not a party to a case is free to apply for permission to intervene in accordance with Article 62 of the Statute... But the absence of such a request in no way precludes the Court from adjudicating upon the claims submitted to it, provided that the legal interests of the third State which may possibly be affected do not form the very subject-matter of the decision that is applied for In the present case, a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other states concerned, but no finding in respect of that legal situation will be needed as a basis for the Court's decision on Nauru's claims against Australia. Accordingly, the Court cannot decline to exercise its jurisdiction.117
The existence of this rule as a principle of the general international law of jurisdiction seems not to be in doubt. It does not apply as was said in the Phosphate Lands in Nauru Case, when "the legal interests of the third state which may possibly be affected do not form the very subject matter of the decision" which would result if the merits were adjudicated upon. Where this is not the case, the Court has jurisdiction to decide the merits of the case between the parties to the proceedings. There has been some controversy on the nature of the rule in the Monetary Gold Case, as defined and delimited by the Court. ICJ Reports p. 246, and the Jan Mayen Case, 1993 ICJ Reports p. 38, where this was regarded as the correct position. See also the Anglo-French Continental Shelf Case (1977), 18 UNRIAA p. 3. 117 1992 ICJ Reports at pp. 260 ff.
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The view has been expressed that it is a matter of the discretion of the Court that the rule reflects and that it is not a rule defining jurisdiction. The Court used ambiguous language in that it referred to not being authorized to adjudicate, not being able to adjudicate, not being able to exercise its jurisdiction and being precluded from adjudicating upon claims without using the expression that it had no jurisdiction. There were also assertions by judges of the Court in individual opinions that the rule reflected a discretion. In spite of this, the better view is that the rule states a distinct limit on jurisdiction, and a fundamental one at that, which must be applied when the appropriate circumstances are present, leaving no room for a discretionary decision not to apply it.118 This position does not entail rejecting the limits placed upon the scope of the rule by the Court. The rule, though developed and applied by the ICJ, should be of general application, where it is relevant. It would appear, however, that, while the basis in consent of the rule is clear, it is still open to discussion what the exact limits are of the rule. (f) Conclusion The above exposition shows that there are, indeed, certain principles which are important and fundamental enough to be regarded as ius cogens in relation to competence. The jurisprudence of international tribunals have dealt with these principles that have been discussed above and they certainly qualify to be regarded as ius cogens, as has been argued. On the other hand, there may be other such principles which have not been encountered in international jurisprudence which would also qualify. (g) Criminal Proceedings In regard to international criminal proceedings there may be special principles of jurisdiction that are so fundamental that they cannot be derogated from in any way, even by express provision in the constituent instruments of the tribunal. One such principle is the 118
L. Gross, "Limitations on the Judicial Function", 58 AJIL (1964) at p. 424, agrees with this view.
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rule non bis in idem, the rule that prevents a tribunal from assuming jurisdiction in a case if the accused is in danger of being tried a second time for an alleged crime for which he has already been tried (prevention of "double jeopardy"). In the Tadic Case the Appeals Chamber of the ICTY dealt with several objections to the jurisdiction of the ICTY. One of the objections related to the issue whether international tribunals had primacy over national courts.119 The arguments in favor of the objection rested on principles of domestic jurisdiction, sovereignty of states and ius de non evocando.120 The objection was that the express attribution by its constitutive document of primacy to the ICTY over the national courts of the accused was a violation of the above three principles which were so fundamental that they could not be disregarded in the attribution of jurisdiction to the ICTY. A jurisdiction so attributed could not be recognized. The Appeals Chamber held that the recognition of the primacy of the ICTY over national tribunals was not a violation of the principle ius de non evocando because the ICTY was an international tribunal validly constituted and not a special national tribunal and that the other two principles had no relevance in the context of the jurisdiction of international criminal tribunals in regard to serious violations of international humanitarian law. Hence, in effect the 119
ICTY: Judicial Reports 1994-1995 at p. 405 ff. There has been much written on the ICTY, including the provisions relating to its jurisdiction: e.g., Lescure, Le tribunal penal international I'ex-Yougoslavie (1994), Bassiouni, The Law of the International Criminal Tribunal for the Former Yugoslavia (1996), Morris and Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (1995), Clark and Sann (eds.), The Prosecution of International Crimes (1996), Lescure and Trintignac, Une justice international pour l'ex-Yougoslavie: mode d'emploi du Tribunal penal international de la Haye (1996), Scharf, Balkan Justice: the Story behind the First International War Crimes Tribunal Since Nuremberg (1997), Vitucci, II Tribunale ad hoc per la ex lugoslavia e il conseno degli stati (1998), Bu Zubar, Le Tribunal penal pour I'ex-Yougslavie (1999). 120 This is the principle that a person may not be "removed" without his or her consent from his or her "natural judge" assigned to him or her by the established law. The "natural judge" is the one instituted by the national law.
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tribunal took the view that there was no fundamental principle of jurisdiction which was unchangeable pursuant to which national tribunals had primacy over properly established international tribunals in relation to serious violations of international humanitarian law.
EXERCISE OF JURISDICTION AND DISCRETION In the discussion of limitations of a fundamental nature on jurisdiction in the previous section it emerged that some matters, such as mootness, which result in a tribunal not exercising its jurisdiction have sometimes been linked to a tribunal's discretion not to exercise its jurisdiction on grounds such as propriety. In spite of the language used in judgments, principally of the ICJ, the better view is that the two instances where this association has up to now been made, namely mootness or absence of object or purpose and the rule in the Monetary Gold Case, represent instances of fundamental limitations on jurisdiction which are peremptory rather than involving the exercise of discretion on the part of a tribunal. The reasons, basically connected with the nature of the judicial function, for the respect shown by tribunals for those limitations point to peremptory exclusions from a jurisdiction a court might otherwise have rather than to the exercise of a discretionary authority. There is a question which remains, however, namely whether, where a tribunal has jurisdiction (competence) it may choose not to exercise it on the basis of an exercise of a discretion, however much the discretion is less than absolute and subject to measures of control of some kind. Only the two examples mentioned above have been used as a basis for postulating the existence of such a discretion. These have been explained as not being cases of discretion. In contentious cases at any rate the recognition of a discretion in regard to jurisdiction, as suggested by some, would tend to weaken the adjudicatory authority of judicial tribunals insofar as such authority would come to be regarded as not based on compelling grounds once jurisdiction is vested in them but controlled by an element of choice which leaves adjudication as an instrument for dispute settlement in a state of uncertainty. It makes no difference that
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the jurisdiction is international and not national and is basically consensual. The recognition of a discretion in this regard weakens the credibility and efficacy of a dispute settlement system based on adjudicatory methods and would detract from its character which distinguishes it from other modes of dispute settlement. PROOF OF JURISDICTION While jurisdictional authority cannot be preempted and courts not only may but must, when necessary, raise issues of jurisdiction proprio motu, as pointed out earlier, an important question is whether a burden of proof exists and who bears it. The issue has been addressed by the ICJ and the conclusion reached is categorical. There is strictly no burden of proof. The principle is that the tribunal examines all the evidence and reaches the appropriate conclusion. In the Fisheries Jurisdiction Case the parties took different positions on who bore the burden of proof in regard to jurisdiction, both claiming that one or the other had a burden of proof in regard to various aspects. The Court unequivocally stated: 36. As Spain sees it, Canada has in principle accepted the jurisdiction of the Court through its declaration under Article 36, paragraph 2, of the Statute, and it is for Canada to show that the reservation contained in paragraph 2 (d) thereto does not exempt the dispute between the Parties from this jurisdiction. Canada, for its part, asserts that Spain must bear the burden of this showing why the clear words of paragraph 2 (d) do not withhold this matter from the jurisdiction of the Court. 37. The Court points out that the establishment or otherwise of jurisdiction is not a matter for the parties but for the Court itself. Although a party seeking to assert a fact must bear the burden of proving it (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101), this has no relevance for the establishment of the Court's jurisdiction, which is a "question of law to be resolved in the light of the relevant facts" (Border and Trans border Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 76, para. 16).
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38. That being so, there is no burden of proof to be discharged in the matter of jurisdiction. Rather, it is for the Court to determine from all the facts and taking into account all the arguments advanced by the Parties, "whether the force of the arguments militating in favour of jurisdiction is preponderant, and to 'ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it'" (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 76, para. 16; see also Factory at Chorzow, Jurisdiction, Judgment No, 8, 1927, P.C.I.J. Series A, No. P, p. 32).121
There can be no doubt that this principle applies to the burden of proof in jurisdictional matters in any kind of international tribunal, including criminal tribunals. Jurisdiction or competence is a matter of law not of fact as such. Moreover, it is to be noted that the Court's statement assumes that even in regard to the facts relevant to the issue of jurisdiction there is strictly no allocation of the burden of proof, insofar as it said that it makes its determination "from all the facts". The assumption is that the parties must produce whatever evidence they have relevant to the issue. The Court then determines whether it has jurisdiction. Further, because jurisdiction may not be preempted but must exist, what a tribunal decides is whether it has jurisdiction (competence) not whether it does not have jurisdiction.
121
1998 ICJ Reports at pp. 450-51. On this case see, e.g., "The Fisheries Jurisdiction Case (Spain v. Canada): Judgment on Jurisdiction of 4 December 1998", 48 ICLQ (1999) p. 664.
8 ADMISSIBILITY
Admissibility of applications must be distinguished from questions relating to competence (competence). In a given case a tribunal may have competence to proceed with the merits, but may not be able to do so because of defects in or connected with the application which render it inadmissible (irrecevable). Conversely, though an application may not be rejected on the ground of inadmissibility the tribunal may be without competence to proceed to deal with the merits. As examples may be taken, for competence, the claim that there is no legal dispute or that the matter is one for domestic jurisdiction or that the issue in the application is moot, which would, if established render the tribunal without competence to proceed with the merits; for admissibility in an appropriate case the claim that the rule of nationality of claims has not been satisfied or that local remedies had not been exhausted or that, where a judgment has been given concerning atmospheric nuclear tests and reexamination is requested, the dispute relates to underground tests,1 which would, if 1
See the Request for Reexamination Case, 1995 ICJ Reports at p. 306. On receivability in the ICJ in general see Giuffrida, La ricevibilita generale nella giurispmdenza della Corte Internazionale di Giustizia (1995).
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established, render the application inadmissible, though the competence of the tribunal may not be affected. The distinction is not always formally observed in the practice before and of international tribunals. As will be seen in Chapters 16 and 17 the two European tribunals, the CJEC and the ECHR, formally regard all objections to the tribunals' proceeding with the merits as relating to admissibility, though in discussing such objections references may be made to jurisdiction or competence and receivability and the distinction is in effect recognized. In the Nicaragua Case (Jurisdiction and Admissibility) the ICJ admitted to the fact that sometimes grounds of inadmissibility were presented as (or confused with) matters of competence, when it said: The Court now turns to the question of the admissibility of the Application of Nicaragua. The United States of America contended in its Counter-Memorial that Nicaragua's Application is inadmissible on five separate grounds, each of which, it is said, is sufficient to establish such inadmissibility, whether considered as a legal bar to adjudication or as "a matter requiring the exercise of prudential discretion in the interest of the integrity of the judicial function". Some of these grounds have in fact been presented in terms suggesting that they are matters of competence or jurisdiction rather than admissibility...2
While the Court did not seem to think it of importance that the confusion had occurred, it dealt with the five grounds as what they were in fact and was not itself affected by the fact that there was some confusion. The Court had already referred to the confusion between admissibility and competence that has occurred in the pleadings in practice in the Northern Cameroons Case (Preliminary Objections) where it pointed out: the Court does not find it necessary... to determine whether all of them are objections to jurisdiction or to admissibility or based on other grounds. During the course of the oral hearing little distinction if any was made by the Parties themselves between "jurisdiction" and "admissibility".3 2 3
1984 ICJ Reports at p. 429. 1963 ICJ Reports at p. 27.
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The distinction is, however, of importance and has validity in the context of the exercise of jurisdiction by international tribunals. An important consequence of the distinction is that in a case, where a tribunal has no competence in a dispute, the defect cannot be cured in relation to that particular dispute as framed and presented to the tribunal, given the governing instruments concerned, while in a case where the matter is inadmissible, it is possible that the defect may be cured, especially if the defect is of a procedural nature. Thus, the application may be successfully brought before the tribunal at a later date once the defect is cured. For example, absence of justiciability or "legality" in a dispute would, because it relates to competence, not be curable and the dispute as framed would always remain outside the jurisdiction of the tribunal. On the other hand, failure to exhaust local remedies relates to admissibility and, though the application may be declared inadmissible because there was such failure, if and when local remedies have been exhausted, the application could be declared admissible and the merits decided. Similarly, where a procedural defect renders the application inadmissible, it would be admissible once the appropriate procedure is followed. A second consequence of the distinction is that failure to raise a question of admissibility (recevabilite) at the appropriate time before the merits are taken up will result in a waiver of the right to rely on the objection based on inadmissibility. This issue has rarely been addressed by international tribunals, though the matter has arisen in connection with the rule of local remedies particularly, and lATs, as will be seen in chapter 15, have addressed the issue. Waiver does not occur in the case of objections to competence, particularly where the objection is not raised in time, as was seen in the previous chapter. Reference is made in this connection to the Minority Schools Case where the PCIJ said quite categorically in dealing with the question of preliminary objections and the effect of Article 38 of the 1926 Rules of Court (now Article 79 of the 1978 Rules of Court): The object of this article was to lay down when an objection to the jurisdiction may be validly filed, but only in cases where the objection
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Chapter 8. Admissibility is submitted as a preliminary question, that is to say, when the Respondent asks for a decision upon the objection before any subsequent proceedings on the merits. It is exclusively in this event that the article lays down what the procedure should be and that this procedure should be different from that on the merits. ... the raising of an objection by one Party merely draws the attention of the Court to an objection to the jurisdiction which it must ex officio consider. A party may take this step at any stage of the proceeding."4
The implication is clear. Objections to competence may be raised at any stage in the proceedings and they are not subject to the doctrine of waiver. Conversely, matters of admissibility, if not raised before the merits are taken up, will be regarded as subject to the doctrine of waiver. Further, the issue does not hinge on whether the rules of the tribunal indicate when preliminary objections should be raised. While such rules will have the effect of implementing for the purposes of proceedings before the specific tribunal the rule that objections to admissibility must be raised before the merits stage, they cannot as such take away the rights of the parties to rely on the doctrine of waiver, if objections to admissibility are not raised in time. The significance, meaning and consequences of the application of the waiver principle will emerge particularly in the discussion of the objection based on the rule of local remedies. What is eminently clear, however, is that tribunals will not hesitate to regard as waived the right to rely on an objection to admissibility where the objection is not raised in time during the proceedings. It goes without saying that such waiver may take place also by express or implied consent to such waiver at any relevant stage before or during the proceedings by the party who may rely on the objection to admissibility. It should also follow that while a unilateral waiver will be effective, whatever the form, in the case of objections to admissibility, 4
(1928), PCIJ Series A No. 15 at pp. 22, 23.
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where conditions relating to jurisdiction are so changed that an objection to jurisdiction may not be relied on, the changes will have to be achieved through the agreement of all the parties before the proceedings are commenced so that the jurisdiction of the tribunal is clearly established. As seen in the previous chapter, such changes, even if agreed upon by all the parties, are not effective, if made after the commencement of proceedings. The decision of a tribunal on admissibility will be res judicata to the extent that the matter was raised and a conclusion was reached upon it. The finding of admissibility or inadmissibility will not only be binding, as a decision of the tribunal, but it will determine the issue finally. However, in the event that the finding is one of admissibility, this will not affect the ability of the claimant to file a different claim on the facts, which again may or may not be admissible depending on the circumstances, or to file the same claim after the cause of inadmissibility has been removed, if this were possible. The res judicata, in other words, is not the merits of the case but the matter of admissibility. The merits still remain open for consideration. Moreover, the issue of admissibility may be canvassed again, if the facts surrounding such issue have changed.
GROUNDS FOR INADMISSIBILITY A claim's inadmissibility depends on the grounds, which may vary from case to case and which are available, for declaring the claim inadmissible. Two very important grounds for inadmissibility are to be found in connection with claims in respect of individuals in regard to diplomatic protection whether the individuals themselves are the claimants in the case before the tribunal or a state claims before the tribunal in respect of injuries to such individuals. These relate to the nationality of the individual who is the subject of the claim and to the exhaustion of local remedies. An adaptation of the latter has also become involved with the protection of human rights, in the jurisprudence of both the ECHR and the IACHR. Both these grounds for inadmissibility in general international law will be considered in particular later in this chapter.
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A. General At this point some examples of grounds of inadmissibility before some tribunals will be examined. It should also be noted that inadmissibility before the lATs and the ECHR is discussed in chapters 15 and 16. Several grounds for inadmissibility have been raised in arbitration before the Iran-US Claims Tribunal. First, it has been argued that claims are inadmissible because local remedies were available and had not been exhausted. The tribunal without difficulty rejected Iran's contention that the special commission established by its Single Article Act of 8 January 1980 retained sole jurisdiction over oil nationalization claims despite the Algiers Declarations, which excluded implicitly the need to resort to local remedies.5 The tribunal took the view that one purpose of the Algiers Declarations was, as stated in General Principle B of the General Declaration, to terminate all litigation as between the Government of each party and the nationals of the other, and to bring about the settlement and termination of all such claims through binding arbitration. Nor, as the tribunal has held, do the currency of proceedings before local courts, as in the case of liquidation and bankruptcy, render the applications inadmissible. In the Rexnor, Inc. Case the tribunal said in respect of both procedures: Tchacosh and Siporex (respondents) have both alleged that they are currently under liquidation in Iran and that the Claimant may present its Claims to the liquidators. The process of liquidation in Iranian law is to be distinguished from the process of bankruptcy. The Claims Settlement Declaration does not exclude claims which may be brought under either of these processes. The mere availability of a local remedy, whether judicial or otherwise, cannot preclude the Tribunal from jurisdiction.6 5
See Phillips Petroleum Co. Iran Case (1982), Interlocutory Award, 1 IranUS CTR p. 487, the Amoco International Finance Corp. Case (1987), Partial Award, 15 ibid. at pp. 196-7. 6 (1983), 2 ibid at p. 10. See also the Time, Inc. Case (1984), 7 ibid. at p. 10, the Eastman Kodak Co. Case, 27 ibid. p. 21.
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In the Behring International, Inc. Case the tribunal denied the claimant's request for a stay of the proceedings before the tribunal on the ground that it had petitioned for bankruptcy in the US. The tribunal stated: Irrespective of the provisions of the United States Bankruptcy Act, neither the Algiers Accords nor the Tribunal Rules anywhere contemplate that proceedings here can in any way be regulated by the municipal law of either the United States or Iran. Indeed, the very purpose of establishing the Tribunal was to remove certain claims from the jurisdiction of the courts of the States Parties to this international forum. Plainly, permitting United States law to continue to regulate proceedings with respect to claims filed here and otherwise within our jurisdiction would contravene such intent.7 Secondly, the tribunal has tended to regard certain claims as inadmissible, because they raised political questions, so that deciding 7
8 ibid. at p. 258. The tribunal added: Moreover, the Tribunal observes, but does not decide, that the automatic stay provision of the United States Bankruptcy statute, 11 U.S.C.A. § 362 (West Supp. 1985), does not purport to stay proceedings commenced by, as opposed to against, the debtor. Such stay also appears not to extend extraterritorially, as a matter of United States law, to foreign arbitral proceedings, at least those involving a foreign party lacking minimum current contacts with the United States. In Fotochrome, Inc. v. Copal Co., Ltd., 517 F.2d, 516 (2d Cir. 1975) (applying Bankruptcy Act of 1938), the United States Court of Appeals for the Second Circuit held that a bankruptcy court's order could not operate to stay arbitral proceedings pending in Japan, commenced by a Japanese corporation against the debtor in bankruptcy, where the bankruptcy court lacked personal jurisdiction over the Japanese corporation. The court also held that the resulting arbitration award was recognizable and enforceable, subject to confirmation as such by a United States court pursuant to the provisions of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards without review of the underlying claim by the bankruptcy court. It seems all the more unlikely that a United States court would venture to interfere directly with an arbitral proceeding before an international tribunal established with the agreement of the United States Government. ibid. at pp. 258-9.
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them would require the tribunal to substitute its judgment for that of government agencies or officials, or because they were based on laws that could not be enforced extraterritorially. In the Hoffland Honey Co. Case the tribunal rejected on the merits a claim based upon an allegation that the respondent had sold oil which had been used to make agricultural chemicals, the use of which in Wisconsin had damaged many colonies of the claimant's bees, on the ground that the oil sales were not the proximate cause of Hoffland's losses. But it added: Finally, Hoffland's claim is essentially a political claim, and thus inherently incapable of judicial resolution. Hoffland admits, for example, that the use of the specific agri-chemicals in question has been sanctioned by United States 'Environmental Protection Agency rulings(s) and Department of Agriculture recommendations.' Hoffland further notes that questions of national economic policy may be implicated in any decisions concerning oil imports. While we are sympathetic to Hoffland's difficulties and understand its distress both at its losses and its inability to obtain compensation elsewhere, it is plain that the two Governments did not contemplate our intrusion into their political decisions in order to express our views, in monetary awards, as to the relative importance to each country of honey, corn, oil, and wheat.8 In the Computer Sciences Corp. Case the tribunal refused to admit a claim that the tribunal determine that the claimant was entitled to an Iranian tax clearance certificate. The tribunal said: Such a claim is essentially a request that this Tribunal enforce the tax laws of a sovereign state, that what it seeks is a binding declaration of the taxes owed by the Claimant. Under Article V of the Claims Settlement Declaration, the Tribunal is bound to apply those 'choice of law rules and principles of... international law' that it finds are applicable to the case at hand. It is a 'universally accepted rule that public law cannot be extraterritorially enforced.' Tax laws are manifestations of jus imperii which may be exercised only within the borders of a state. In addition, revenue laws are typically enormously complex, so much so that their enforcement is frequently assigned to specialized courts or administrative agencies. For these reasons, 8
(1983), 2 ibid. at pp. 42-3.
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actions to enforce tax laws are universally limited to their domestic forum. It makes little difference for present purposes whether the rule is considered one of public or private international law. States may of course vary the rule by treaty, but 'in view of the firmly established practice and the deeply rooted and universally accepted conviction of the international unenforceability of claims jure imperil, any qualification of the customary rule will presuppose the clearest possible expression of the international legislators' intention.' No such explicit expression appears in the Claims Settlement Declaration, and the Tribunal considers that it would be unwise to imply one.9
Thirdly, the tribunal has taken the view that claims were inadmissible, when they were so vague that they failed to state a cognizable claim or cause of action.10 Two subsequent cases considered what constituted a cognizable claim. In the Unidyne Corp. Case it was held that a claim for loss of equipment and furniture that had been left behind when the company's personnel left Iran must fail because the information provided about the equipment and what happened to it fell short of what was necessary to establish a cognizable claim.11 On the other hand, in the Jalal Moin Case it was noted that defects or gaps in the claimant's written pleadings had led to doubts concerning the existence of the claim but that evidence and arguments presented at the hearing were adequate to remove those doubts so that the tribunal could take up a claim allegedly arising out of measures affecting the claimant's property rights.12 9
(1986), 10 ibid. at pp. 312-13. The tribunal described the situation as an absence of jurisdiction but the matter pertained to admissibility. The tribunal subsequently came to the same conclusion, where a claimant sought a ruling that it had fulfilled its Iranian social security obligations: the Arthur Young and Co. Case (1987), 17 ibid. at pp. 263-64. In one case the tribunal even used similar reasoning to dismiss a claim for reimbursement of funds withheld pursuant to a contract to guarantee payment by the claimant of its social security dues: the TME International Inc. Case (1990), 24 ibid. at pp. 144-48. But see contra, e.g., the Combustion Engineering et al. Case (1991), 26 ibid. at p. 78. 10 Esahak Saboonchian Case (1991), 27 ibid. at p. 254, and the Parviz Karim-Panaki Case (1992), 28 ibid. at pp. 227-8. 11 (1993), 29 ibid. p. 310. 12 (1994), 30 ibid. at p. 74.
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There are in addition three cases decided by the ICJ which concern objections based on inadmissibility which repay detailed examination. In that way the incidence of inadmissibility will not only be illustrated but will be better understood. In the Northern Cameroons Case the Court rejected an objection of inadmissibility based on the then Article 32 of the Rules of Court, which concedes that a failure to follow that Rule in substance could lead to the claim's being inadmissible, though matters of form could be dealt with, with a degree of flexibility. It said: The other preliminary objection, that the Court finds it convenient at this stage to deal with, is based on Article 32(2) of the Rules of Court which provides that when a case is brought before it by means of an application, the application must not only indicate the subject of the dispute as laid down in Article 40 of the Court's Statute but it must also "as far as possible" specify the provision on which the Applicant founds the jurisdiction of the Court, and state the precise nature of the claim and the grounds on which it is based. In the Observations and Submissions of the Republic of Cameroon, this objection is treated separately as one to the admissibility of the Application and the Memorial. The Court cannot be indifferent to any failure, whether by Applicant or Respondent, to comply with its Rules which have been framed in accordance with Article 30 of its Statute. The Permanent Court of International Justice in several cases felt called upon to consider whether the formal requirement of its Rules had been met. In such matters of form it tended to "take a broad view". (The "Societe Commerciale de Belgique", P.C.I.J., Series A/B No. 78, p. 173.) The Court agrees with the view expressed by the Permanent Court in the Mavrommatis Palestine Concessions case (P.C.I.J., Series A No. 2, p. 34): "The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law." The Court is quite conscious of the Applicant's deeply felt concern over events referred to in its pleadings and if there were no other reason which in its opinion would prevent it from examining the case on the merits, it would not refuse to proceed because of the lack of what the Permanent Court in the case of the Interpretation of the
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Statute of the Memel Territory, called a "convenient and appropriate method in which to bring the difference of opinion before the Court" (P.C.I.J., Series A/B, No. 49, p. 311). The Court notes that whilst under Article 40 of its Statute the subject of a dispute brought before the Court shall be indicated, Article 32(2) of the Rules of Court requires the Applicant "as far as possible" to do certain things. These words apply not only to specifying the provision on which the Applicant founds the jurisdiction of the Court, but also to stating the precise nature of the claim and giving a succinct statement of the facts and grounds on which the claim is based. In the view of the Court the Applicant has sufficiently complied with the provisions of Article 32(2) of the Rules and the preliminary objection based upon non-compliance therewith is accordingly without substance.13
In the Nicaragua Case (Jurisdiction andAdmissibility) the US as respondent adduced five grounds for inadmissibility of which the first relating to the absence of an essential party pertained to competence14 rather than admissibility. The second ground of inadmissibility was dismissed by the court because it was a misinterpretation of the Charter and the Court's powers in the context of the Charter. The Court said of this ground that The United States regards the Application as inadmissible because each of Nicaragua's allegations constitutes no more than a reformulation and restatement of a single fundamental claim, that the United States is engaged in an unlawful use of armed force, or breach of the peace, or acts of aggression against Nicaragua, a matter which is committed by the Charter and by practice to the competence of other organs, in particular the United Nations Security Council. All allegations of this kind are confided to the political organs of the Organization for consideration and determination; the United States quotes Article 24 of the Charter, which confers upon the Security 13
1963 ICJ Reports at pp. 27-8. The Court in effect recognized this fact when it referred to its "power to refuse to exercise its jurisdiction" (rather than its power to declare the application inadmissible) in the circumstances: 1984 ICJ Reports at p. 431. On this case see Lang, L'affaire Nicaragua/Etats-Unis devant la Cour Internationale de Justice (1990). 14
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Of the third objection which in fact was dealt with and discussed together with the second the Court observed that it was argued that the Court should hold the Application of Nicaragua to be inadmissible in view of the subject-matter of the Application and the position of the Court within the United Nations system, including the impact of proceedings before the Court on the ongoing exercise of the "inherent right of individual or collective self-defence" under Article 51 of the Charter. This is, it is argued, a reason why the Court may not properly exercise "subject-matter jurisdiction" over Nicaragua's claims. Under this head, the United States repeats its contention that the Nicaraguan Application requires the Court to determine that the activities complained of constitute a threat to the peace, a breach of the peace, or an act of aggression, and proceeds to demonstrate that the political organs of the United Nations, to which such matters are entrusted by the Charter, have acted, and are acting, in respect of virtually identical claims placed before them by Nicaragua. The United States points to the approach made by Nicaragua to the Security Council on 4 April 1984, a few days before the institution of the present proceedings: the draft resolution then presented, corresponding to the claims submitted by Nicaragua to the Court, failed to achieve the requisite majority under Article 27, paragraph 3, of the Charter. However, this fact, it is argued, and the perceived likelihood that similar claims in future would fail to secure the required majority, does not vest the Court with subject-matter jurisdiction over the Application. Since Nicaragua's Application in effect asks the Court for a judgment in all material respects identical to the decision which 15
1984 ICJ Reports at pp. 431-2.
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the Security Council did not take, it amounts to an appeal to the Court from an adverse consideration in the Security Council.16 The fourth objection was described in the following terms: The fourth ground of inadmissibility put forward by the United States is that the Application should held inadmissible in consideration of the inability of the judicial function to deal with situations involving ongoing conflict. The allegation, attributed by the United States to Nicaragua, of an ongoing conflict involving the use of armed force contrary to the Charter is said to be central to, and inseparable from, the Application as a whole, and is one with which a court cannot deal effectively without overstepping proper judicial bounds. The resort to force during ongoing armed conflict lacks the attributes necessary for the application of the judicial process, namely a pattern of legally relevant facts discernible by the means available to the adjudicating tribunal, establishable in conformity with applicable norms of evidence and proof, and not subject to further material evolution during the course of, or subsequent to, the judicial proceedings. It is for reasons of this nature that ongoing armed conflict must be entrusted to resolution by political processes. The situation alleged in the Nicaraguan Application, in particular, cannot be judicially managed or resolved; continuing practical guidance to the Parties in respect of the measures required of them is critical to the effective control of situations of armed conflict such as is there alleged to exist... The United States does not argue that the Application must be dismissed because it presents a "political" question rather than a "legal" question, but rather that an allegation of an ongoing use of unlawful armed force was never intended by the drafters of the Charter to be encompassed by Article 36, paragraph 2, of the Statute.17 The Court dismissed the objection on the basis that (i) any judgment on the merits in the case would be limited to upholding such submissions of the parties as had been supported by sufficient proof of relevant facts, and were regarded by the Court as sound in law; (ii) a situation of armed conflict was not the only one in which 16 17
Ibid. at pp. 432-3. Ibid. at pp. 436-7.
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evidence of fact might be difficult to come by; (iii) ultimately it was the litigant seeking to establish a fact who bore the burden of proving it and in cases where evidence might not be forthcoming, a submission might in the judgment be rejected as unproved, but was not to be ruled out as inadmissible in limine on the basis of an anticipated lack of proof; (iv) as to the possibility of implementation of the judgment, this question would have to be assessed also on the basis of each specific submission, and in the light of the facts as then established; and (v) at the preliminary stage any judicial contribution to the settlement of the dispute could not be ruled out a priori by declaring the application inadmissible. The fifth objection was that Nicaragua had failed to exhaust the established processes for the resolution of conflicts in Central America. The Court continued: In the contention of the United States, the Contadora process, to which Nicaragua is a party, is recognized both by the political organs of the United Nations and by the Organization of American States, as the appropriate method for the resolution of the issues of Central America. That process has achieved agreement among the States of the region, including Nicaragua, on aims which go to the very heart of the claims and issues raised by the Application. The United States repeats its contention (paragraph 89, above) that the Contadora process is a "regional arrangement" within the meaning of Article 52, paragraph 2, of the Charter, and contends that under that Article, Nicaragua is obliged to make every effort to achieve a solution to the security problems of Central America through the Contadora process. The exhaustion of such regional processes is laid down in the Charter as a precondition to the reference of a dispute to the Security Council only, in view of its primary responsibility in this domain, but such a limitation must a fortiori apply with even greater force with respect to the Court, which has no specific responsibility under the Charter for dealing with such matters. Nicaragua is, it is claimed, under a similar obligation under Articles 20 and 21 of the Charter of the Organization of American States. Furthermore, Nicaragua is asking the Court to adjudicate only certain of the issues involved in the Contadora process, and this would have the inevitable effect of rendering those issues largely immune to further adjustment in the course of the negotiations, thus disrupting the balance of the negotiating process. The
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Nicaraguan Application is incompatible with the Contadora process and, given the commitment of both Parties to that process, the international endorsement of it, and its comprehensive, integrated nature, the Court should, it is contended, refrain from adjudicating the merits of the Nicaraguan allegations and hold the Application to be inadmissible.18
The Court held that it was unable to accept either that there was any requirement of prior exhaustion of regional negotiating processes as a precondition to seizing the Court or that the existence of the Contadora process constituted in this case an obstacle to the examination by the Court of the Nicaraguan Application and judicial determination in due course of the submission of the parties in the case. In the Border and Transborder Armed Actions Case (Jurisdiction and Admissibility)19 the Court had to deal with several objections to admissibility based on factors particular to the dispute before it. It dismissed these either on the legal interpretation of relevant legal instruments or on the facts after an extensive examination of each and held that there were no grounds for inadmissibility. It is sufficient to state the content of the objections to admissibility which demonstrates what the nature of such content could be. The first objection made by Honduras against the applicant, Nicaragua, was that the application was a politically inspired, artificial request which the Court should not entertain consistently with its judicial character and that Nicaragua was attempting to use the Court, or the threat of litigation before the Court, as a means of exerting political pressure on the other Central American states. The first part of this objection was held not to be proven by the facts and the second part was held to be bad in law as conceived. The second objection was based largely on the statute and rules of Court. It was that the application was vague and the allegations contained in it were not 18
Ibid. at p. 438. 1988 ICJ Reports p. 69. On this case see Decaux, "L'arret de la C.I.J. dans 1'affaire des actions armees frontalieres et transfrontalieres, Nicaragua contre Honduras, competence et recevabilite, 20 Decembre 1988", 34 AFDI (1988) p. 147, TchalakofF, "La competence de la Cour Internationale de Justice dans Faffaire des "Actions frontalieres et transfrontalieres" (Nicaragua-Honduras)", 93 RGDIP(1989)p. 623. 19
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properly particularized, so that the Court could not entertain it without substantial prejudice to Honduras. In support of this Honduras asserted that a large number of the matters put forward by Nicaragua did not constitute concrete acts or omissions, identifiable by reference to place and to time but concerned indeterminate situations or opinions about intentions; that another large group of these matters were referred to only by the year in which they took place without geographical location; and that the application confused facts of a different nature and attributable to different causes. This objection was found to be unfounded on the facts. The third and fourth objections which were dismissed on the facts, though in law the relevant provisions of the treaty in issue were applicable, were based respectively on the provision of Articles II and IV of the Pact of Bogota. Article II stated that: The High Contracting Parties recognize the obligation to settle international controversies by regional pacific procedures before referring them to the Security Council of the United Nations. Consequently, in the event that a controversy arises between two or more signatory States which, in the opinion of the parties (in the French text "de 1'avis de 1'une des parties"), cannot be settled by direct negotiations through the usual diplomatic channels, the parties bind themselves to use the procedures established in the present Treaty, in the manner and under the conditions provided for in the following articles, or, alternatively, such special procedures as, in their opinion, will permit them to arrive at a solution.
Article IV reads: Once any pacific procedure has been initiated, whether by agreement between the parties or in fulfillment of the present Treaty or a previous pact, no other procedure may be commenced until that procedure is concluded.
A fifth objection was closely related to the fourth objection. The Court did not commit itself to determining whether the objection was good in law but took the view that in any case the facts did not support it. The Court stated: The Court has also to deal with the contention of Honduras that Nicaragua is precluded not only by Article IV of the Pact of Bogota
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257
but also "by elementary considerations of good faith" from commencing any other procedure for pacific settlement until such time as the Contadora process has been concluded. The principle of good faith is, as the Court has observed, "one of the basic principles governing the creation and performance of legal obligations (Nuclear Tests, I.C.J. Reports 1974, p. 268, para. 46; p. 473, para. 49)"; it is not in itself a source of obligation where none would otherwise exist. In this case however the contention of Honduras is that, on the basis of successive acts by Nicaragua culminating in the Esquipulus Declaration of 25 May 1986..., Nicaragua has entered into a "commitment to the Contadora process"; it argues that by virtue of that Declaration, "Nicaragua entered into a commitment with which its present unilateral Application to the Court is plainly incompatible". The Court considers that whether or not the conduct of Nicaragua or the Esquipulus Declaration created any such commitment, the events of June/July 1986 constituted a "conclusion" of the initial procedure both for purposes of Article IV of the Pact and in relation to any other obligation to exhaust that procedure which might have existed independently of the Pact.20 Matters ratione personae are generally not questions of admissibility. As a rule these matters concern competence. For example, Article 34 of the statute of the ICJ confines locus standi before the Court in contentious cases to states. Cases brought by individuals or international organizations or against them would be rejected because the Court lacked competence, not because the cases were inadmissible. Likewise under Article 20 of the statute of the ITLOS, if a state not a party to the UNCLOS were to bring suit, the tribunal would hold that it did not have competence, not that the suit was 20
1988 ICJ Reports at pp. 105-106. In the Ambatielos Case (Obligation to Arbitrate) the Court described as objections to admissibility those raised by the respondent, the UK. These objections were that (i) local remedies had not been exhausted, (ii) there was undue delay in presenting the claim, (iii) in view of compulsory jurisdiction being possible for a considerable time, the claimant's actions caused undue delay and abuse of process of the Court: 1953 ICJ Reports at pp. 22-23. The Court dealt with the abuse of process allegation holding that there was none but said that the other arguments related to the principal claim which was not before it.
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inadmissible. On the other hand, this issue of competence ratione personae is not to be confused with matters relating to persons who have substantive rights or obligations in various situations. These are matters of substance which properly must be treated as questions for the merits. Thus, before the Iran-US Claims Tribunal, issues concerning beneficial ownership,21 assignees,22 inheritors23 and the like have arisen. These are matters for the merits concerning the substance of the claim because the issue is who has the substantive right, and have been treated by the tribunal as such, though sometimes it has regarded the matters as concerning admissibility.24 Issues of competence or admissibility ratione personae are clearly distinguishable from the issue of substance about who has the rights in issue.25 On the other hand, the matter of nationality of a person, natural or legal, in a claim brought in the exercise of state's right to protect its nationals is generally a subject concerning admissibility. This is how the matter has been regarded in the law of diplomatic protection. However, in a given situation the question of nationality may be made a matter of competence rather than admissibility by agreement between the parties, because they regard it as a fundamental consideration for the adjudication. This seems to be the position under the constitutive instruments of the Iran-US Claims Tribunal as pointed out in Chapter 7. This may be so, though the law
21
See, e.g., the International Technical Products Corp., et al. Case (1991), 27 Iran-US CTR p. 206. 22 See, e.g., the DIC of Delaware, et al. Case (1985), 8 ibid. p. 144. 23 See, e.g., the Edgar Protiva, et al. Case (1995), 31 ibid. p. 89. 24 See, e.g., the Harrington and Associates, Inc. Case (1987), 16 ibid at p. 302. 25 It is a different matter that the issue of whether the person or persons concerned have the right to claim must be decided before the rest of the merits. There is some lack of clarity and confusion in the discussion of the matter of persons claiming rights before the Iran-US Claims Tribunal in Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996) pp. 124-128, 133-136, where the issues are dealt with broadly as relating to "standing". While the treatment of the relevant issues by the tribunal has been equally unclear and confused, a discussion of the subject should put them in the appropriate perspective especially where the tribunal has clearly erred in its characterization.
Grounds for inadmissibility
259
applicable to the determination of the nationality of the claim for the purposes of competence of the tribunal may be the same as for the purposes of admissibility in the law of diplomatic protection in general. This points to the conclusion that matters which are usually matters of admissibility may in the circumstances of the case become matters of competence. The criterion of whether this is so is whether the agreement of the parties reflected in the constitutive instruments of the tribunal has resulted in a change in what is the usual position. There are two matters of admissibility that are of particular importance because they have become associated with international litigation as it has developed. These are examined here in some detail. In the case of international disputes arising from injuries to persons, natural or juridical, there are two principles relating to admissibility which are of particular importance. The first is the principle, which is one of general international law, that in broad terms claims in the exercise of diplomatic protection for injuries to such persons may be brought only by the national state of the injured person; the second is the principle that local remedies available in the wrongdoing state must be exhausted before such a claim may be brought. B. Nationality of Claims In regard to the nationality of claims rule there are several issues which have arisen and been addressed or do arise. These may be listed as follows: (i) (ii) (iii) (iv) (v)
the determination of nationality; the various consequences of dual or multiple nationality; the relevance of the "effective link" theory; the relevance of continuous nationality; and the special problems with the nationality of juridical persons.
There are some other matters such as problems created by a change in the vesting of claims as such and the consequences of statelessness or refugee status which arise but these are subsidiary to the main issues.
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A state's right to exercise diplomatic protection is based on the link of nationality between the injured individual and the acting state. Thus, the general rule is that a state may not extend its protection to or espouse claims of non-nationals.26 In litigation a respondent state may raise the objection to admissibility that the individual concerned does not have the nationality of the claimant state or, where individuals are permitted to bring claims, that the individual does not have the nationality of the relevant state party to the agreement instituting the tribunal. On the other hand, while the general rule is as stated above, the fact that an individual has the nationality of the claimant state or the relevant state does not always result in the state's having the right to espouse his claim or in the individual's having the right to bring a claim. Thus, correctly stated, the general rule has both a negative and positive aspect. A state may not espouse claims of non-nationals (nor may non-nationals bring claims), while also a state may espouse claims of nationals (or nationals may bring claims). The positive side of the rule was referred to by the PCIJ first in the Panevezys-Saldutiskis Railway Case.27 In regard to diplomatic protection the Commission in the North American Dredging Co. of Texas Case referred to it as a "privilege which one state under the rules of international law can extend or withhold in behalf of its nationals"28 The rule that nationality is the appropriate ground for the espousal of claims by states or for individuals to bring claims before tribunals where they have locus standi in cases based on a violation of customary international law has never been questioned. 26
For more judicial authorities on the rule see Van Panhuys, The Role of Nationality in International Law: An Outline (1959) pp. 59-73, Garcia Amador, "Third Report to the ILC", 2 YBILC (1956) at p. 66, Orrego Vicuna, The Changing Law of Nationality of Claims (unpublished manuscript) p. 8, Jessup, A Modern Law of Nations (1968 reprint) p. 99, Ohly, "A Functional Analysis of Claimant Eligibility", in Lillich (ed.) International Law of State Responsibility for Injuries to Aliens (1983) p. 284, Amerasinghe, State Responsibility for Injuries to Aliens (1967) pp. 61 ff., Amerasinghe, Local Remedies in International Law (1991) pp. 59 ff. 27 (1939), PCIJ Series A/B No. 76 at p. 16. 28 (1947), 4UNRIAAp. 26.
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(i) In regard to the determination of nationality the general rule is that "questions of nationality are in principle within the reserved domain."29 While a state's determination on possession of nationality is not lightly to be questioned, its right to determine an individual's nationality is not absolute. This was made clear by PCIJ in the Nationality Decrees in Tunis and Morocco Opinion when it stated that the question whether a matter was "solely within the jurisdiction of a State", including the conferment of nationality "is essentially a relative question; it depends upon the development of international relations."30 Moreover, even if a state in principle has an absolute right to determine nationality it is arguable that other states may challenge this determination where, e.g., there is insufficient connection between the state of nationality and the individual or where nationality has been improperly conferred,31 that is, where the conferment is vitiated for acceptable reasons. There are now conventions, particularly in the field of human rights, which require states to comply with international standards in the granting of nationality.32 The IACHR in its Proposed 29
The Nationality Decrees in Tunis and Morocco Opinion (1923), PCIJ Series B No. 4 at p. 24. This principle was confirmed by Article 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws: "It is for each State to determine under its own law who are its nationals", (179 LNTS p. 89). More recently it has been endorsed by the 1997 European Convention on Nationality (ETS No. 166, Art. 3) and it is difficult to resist the conclusion that it has acquired the status of customary law: see Bar-Yaacov, Dual Nationality (1961) p. 2. 30 (1923), PCIJ Series B No. 4 at p. 24. 31 Hudson, "Nationality, Including Statelessness, Report", 2 YBILC (1952), document A/C 4/50 at p. 10; Verdross and Simma, Univerzelles Volkerrecht: Theorie und Praxis pp. 788 and 789. Article 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws recognized the possibility of limitations by qualifying its proclamation that "it is for each State to determine under its own law who are its nationals" with the provision that: "This law shall be recognized by other States in so far as it is consistent with international conventions, international custom and the principles of law generally recognized with regard to nationality." 179 LNTS at p. 89. See also Article 3(2) of the 1997 European Convention on Nationality, ETS No. 166. 32 See Article 20 of the American Convention on Human Rights, Article 5(d)(iii) of the International Convention on the Elimination of All Forms of
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Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica Opinion held that it was necessary to reconcile the principle that the conferment of nationality falls within the domestic jurisdiction of a state "with the further principle that international law imposes certain limits on the State's power, which limits are linked to the demands imposed by the international system for the protection of human rights."33 International custom and general principles of law would appear to accept that there are limits on the conferment of nationality by describing the linkages between state and individual that will result in the nationality conferred by a state being recognized by international law for the purpose of diplomatic protection in so far as both descent and naturalization are specifically the connections generally recognized by international law.34 Whether in addition to one of these connecting factors, and particularly in the case of naturalization, there must be a genuine or effective link between state and individual is a more difficult question. If this were the case such a link would require adequate definition so as to be identifiable and not too limiting. That international law does not recognize naturalizations in all circumstances is clear. For example, fraudulently acquired naturalization will not be recognized.35 Recognition would be withheld also in the case of forced naturalization, whether or not it reflected a substantial connection between state and individual.36 Racial Discrimination, Article 9 of the Convention on the Elimination of All Forms of Discriminating against Women. See also the "ILC Draft Articles on Nationality in Relation to Succession of States": A/CN.4/L.58 I/Add.1. 33 79 ILR at p. 296. 34 For the general law see Bar-Yaacov, op. cit. note 29 p. 2. 35 See Brownlie, Principles of International Law (1998) p. 402; Weiss, Nationality and Statelessness in International Law (1979) pp. 218-20, 244, Bar Yaacov, op. cit. note 29 p. 143, the Flegenheimer Case (1958), 25 ILR at pp. 98-101; the Salem Case (1932) 2 UNRIAA at p. 1184; the Esphahanian Case (1983), 2 Iran-US CTR at p. 166. 36 Fitzmaurice, "The General Principles of International Law Considered from the Standpoint of the Rule of Law," 92 Hague Recueil (1957) at pp. 196-201; Jones, British Nationality Law and Practice (1956) p. 15.
Grounds for inadmissibility
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There is, on the other hand, a presumption in favour of good faith on the part of the state. Moreover, as the IACHR said in the Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica Opinion, the state conferring nationality must be given a "margin of appreciation" in deciding upon the connecting factors that it considers necessary for the granting of nationality.37 However, a general statement made by the ICJ in the Nottebohm Case (Second Phase) on the nature of nationality was to the effect that: According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is the legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the state conferring nationality than with that of any other state.38
This would seem to indicate that there was a general rule requiring an effective link for the conferment of nationality. But the Court, in fact, did not purport to pronounce on the status of Nottebohm's Liechtenstein nationality vis-a-vis all states. It carefully confined its judgment to the right of Liechtenstein to exercise diplomatic protection on behalf of Nottebohm vis-a-vis Guatemala. The ItalianUnited States Conciliation Commission in the Flegenheimer Case limited the applicability of the "effective link" principle to cases involving dual nationals, stating that: When a person is vested with only one nationality, which is attributed to him or her either jure sanguinis or jure soli, or by a valid naturalization entailing the positive loss of the former nationality, the theory of effective nationality cannot be applied without the risk of causing 37 38
79 ILR at pp. 302-03. 1955 ICJ Reports at p. 23.
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Chapter 8. Admissibility confusion. It lacks a sufficiently positive basis to be applied to a nationality which finds support in a State law.39
The Commission furthermore stated that it was doubtful that the ICJ "intended to establish a rule of general international law" in the Nottebohm Case.40 That states are unwilling to support such a broad principle is evidenced by the failure in practice of the attempt to apply the genuine link principle as such to ships,41 a field in which social and economic considerations probably justify such a rule. Available state practice also shows little support for such a broad rule.42 Academic opinion is divided on this issue. Some writers do not accept the genuine link requirement as a rule of customary international law.43 Many of them have pointed out that there is often little connection between the individual upon whom nationality has been conferred and jus soli or sanguinis and that it is difficult to limit the genuine link requirement to cases of naturalization. Other writers are well disposed towards the genuine link requirement.44 Support for the general principle of the effective link is to be found also 39
(1958), 25 ILR at p. 150. Ibid at p. 148. 41 Article 91 of the 1982 United Nations Convention on the Law of the Sea; 1986 Convention on Conditions for the Registration of Ships. See also Article 3(3) of the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1994), 33 ILM p. 968. 42 See Warbrick, "Protection of Nationals Abroad: Current Legal Problems", 37 ICLQ (1988) at p. 1006. 43 See, e.g., Geck "Diplomatic Protection," in 3 EPIL (1992) at p. 1050, Randelzhofer, "Nationality," in 3 EPIL at p. 507, Parry, "Some Considerations upon the Protection of Individuals in International Law", 90 Hague Recueil (1956) at p. 707, Jones, "The Nottebohm Case", 5 ICLQ (1956) at pp. 239-40, 243-4. 44 Van Panhuys, op. cit. note 26, pp. 158, 161. Fitzmaurice, loc. cit. note 36 at pp. 206-207, Ruzie, "Nationalite, Effectivite et Droit Communitaire", RGDIP (1993) at p. 113, de Castro, "La Nationalite, la Double et Supra-Nationalite", 102 Hague Recueil ((1961) at p. 582, Bojars, Grazhdanstvo gosudarstv mira (1993) pp. 308-10. 40
Grounds for inadmissibility
265
in the ILC where several members gave it their support in the fifth session debate on nationality, including statelessness.45 In 1965 the Institut de droit international adopted a resolution on the national character of an international claim presented by a state for injury suffered by an individual, which gives some support to the genuine link principle: An international claim presented by a state for injury suffered by an individual may be rejected by the respondent state or declared inadmissible when, in the particular circumstances of the case, it appears that naturalization has been conferred on that individual in the absence of any link of attachment.46
It may be concluded that general international law recognizes that a nationality acquired by fraud, negligence or serious error may not be recognized,47 and that it is the function of an international tribunal, with due regard to the presumption in favour of the validity of a state's conferment of nationality and allowance for a margin of appreciation on the part of the state of nationality, to investigate and, if necessary, set aside a conferment of nationality.48 This position may be encapsulated as a requirement of good faith. 45
See 1 YBILC (1953) at pp. 180, 186, 239 (Yepes), pp. 181, 218 (Zourek), pp. 184, 237 (Francois), p. 239 (Amado). 46 Garcia Amador proposed codification of a similar rule in article 23(3) of his last report to the ILC in 1961: "A State may not bring a claim on behalf of an individual if the legal bond of nationality is not based on a genuine connexion between the two" (2 YBILC (1961) at p. 49). See also more recently Orrego Vicuna who has proposed the following rule as one that reflects contemporary "realities" and "trends": "The link of nationality to the claimant State must be genuine and effective" (loc. cit. note 26 at p. 27). He does, however, recognize that the rule will have to be applied with "greater flexibility and adaptation to changing needs" (ibid. at p. 12). 47 The Flegenheimer Case (1958), 25 ILR at pp. 112, 153, the Salem Case (1932), 2 UNRIAA at p. 1185, Bar-Yaacov, op. cit. note 29 pp. 150-52, 158, Brownlie, op. cit. note 35 p. 422. 48 The Flegenheimer Case (1958), 25 ILR at pp. 96-112, the Flutie Case, reported in Ralston and Doyle, Venezuelan Arbitrations of 1903 p. 34, Van Panhuys, op. cit. note 26 pp. 153-6.
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Thus, a conferment of nationality will be recognized (for the purpose of diplomatic protection) provided it is not made in bad faith, the onus of proof being on the respondent state to produce evidence of such bad faith.49 Beyond that it cannot be said that a general effective link theory has been accepted. There are two questions which have been addressed. First, discussion has been in terms of whether the conferment of nationality which is a domestic matter has limits imposed by international law which will affect the validity of the conferment in general and for all purposes. Second, a narrower issue has been the focus of attention, namely whether the conferment of nationality has limits for the purpose of the nationality of claims rule in diplomatic protection. While the first issue raises fundamental questions the answer to which will affect the enjoyment of nationality for all purposes by a person, whether he or it is a natural person or a juridical person, the second question is more limited. Suffice it to say here that what is relevant for the purpose in hand is the answer to the second question, whatever is the answer to the first question, the answer to the latter having effects which may be broader and more serious than the answer to the more confined second question. Both text writers and tribunals have apparently not generally kept the two matters separate in their statements and conclusions. However, it is the better approach to confine what has been said above to the effects of a conferment or acquisition of nationality for the rule of nationality of claims in diplomatic protection. (ii) (a) In regard to dual nationality, on the assumption that the nationalities concerned are recognizable for the purposes of diplomatic protection, an issue that has risen is whether one national state may exercise diplomatic protection against another national state of the same person in the application of the nationality of claims rule. That a person may have two or more recognizable nationalities is acknowledged.50
49
The Flegenheimer Case (1958), 25 ILR at pp. 99, 107 and 110. See Article 3 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws: 179 LNTS at p. 89. 50
Grounds for inadmissibility
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There is no settled opinion in the sources in support of the view that the state of dominant nationality, however defined, may espouse a claim against another state of nationality, nor in support of the converse principle that a claim may not be brought against a state of nationality. The 1929 Harvard Draft Convention on Responsibility of States for Damage Done in Their Territory to the Person or Property of Foreigners provides in Article 16(a) that "A state is not responsible if the person injured or the person on behalf of whom the claim is made was or is its own national." This principle was endorsed by the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws, which provided in Article 4 that "A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses." That the concept of dominant or effective nationality was to be considered in the treatment of dual nationals who did not have the nationality of the respondent was made clear by Article 5 of the same Convention, which provided that Within a third State, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third Sate shall, of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.
The treaty came into force in 1937. 51 51
Only 20 states are parties to this treaty (referred to herein as the 1930 Hague Convention). The 1960 Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens, (referred to herein as the 1960 Harvard Draft) does not clearly permit or deny the right of the state of nationality. However, it leans against such a claim by providing in Article 23(5) that: "A State is entitled to present a claim of its national arising out of the death of another person only if the person was not a national of the State alleged to be responsible": see Sohn and Baxter "Responsibility of States for Injuries to the Economic Interests of Aliens," 55 AJIL (1961) at p. 548. A further attempt to formulate a rule on this subject was made by the Institut de droit international in
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There were many early arbitrations in which the principle of dominant nationality has been applied, vis-d-vis another national state, though in most of them the result was that the claimant state's nationality was found not to be the dominant of the two nationalities.52 There were several arbitrations in which the principle was rejected as such and not applied, the claimant thus losing the case on admissibility.53 In two cases in which the facts did not call for the consideration of an application of the principle as such the ICJ seems to have implied or indicated conflicting preferences. In Reparation for Injuries Opinion the Court referred to the practice of the states not to protect their nationals against another state of nationality as the ordinary practice,54 while in the Nottebohm Case (Second Phase) the Court stated: International arbitrators have decided in the same way numerous cases of dual nationality, where the question arose with regard to the exercise of diplomatic protection. They have given their preference to the real and effective nationality, that which accorded with the facts, that
1965. Article 4(a) of a resolution adopted provided that: "An international claim presented by a State for injury suffered by an individual who possesses at the same time the nationalities of both claimant and respondent States may be rejected by the latter and is inadmissible before the court (jurisdiction) seized of the claim.": Resolutions de I'lnstitut de droit international, 1957-1991, (1992) at p. 56. The present author was of the view in 1967 that the law as it stood was that the claim was inadmissible, if the person had the nationality of the respondent state, irrespective of dominance or effectiveness of the other nationality: Amerasinghe, op. cit. note 26 on State Responsibility p. 63. 52 See the account in Dugard, "First Report on Diplomatic Protection" to the ILC, UN Doc. A/CN.4/506 paras. 128-136. Of the 11 cases there mentioned only in three was the dominant nationality found to be that of the claimant state: the Hein Case (1921), AD 1919-22, No. 148, the Blumenthal Case (1923), Receuil.des Decisions des Tribunaux Mixtes p. 616, the Barthez de Monfort Case (1925), AD 1925-26, No. 206. 53 See Dugard, loc. cit. note 52 paras 138-40. It is not known what the resu would have been had the principle been applied. The tribunals simply decided not to apply the principle. 54 1949 ICJ Reports at p. 186.
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based on stronger factual ties between the person concerned and one of the States whose nationality is involved.55
Neither of these cases applied either the principle of dominant nationality or its reverse, because the cases did not involve the claimant's national having the nationality of the respondent state. There are some arbitrations, decided after the Nottebohm Case, in which the principle of dominant or effective nationality has been applied in cases of dual nationality where the person involved had the nationalities of both states involved in the litigation, sometimes to exclude the claim as inadmissible, sometimes with the reverse effect. These were decided by the Italian-United States Conciliation Commission (1955) and the Iran-US Claims Tribunal (1981 to present).56 55
1955 ICJ Reports at p. 22. The key cases were the Merge Case in the Conciliation Commission (1955), 16 UNRIAA p. 247 (para.V5), and the Esphanian Case and Case No.A/18 in the second chamber of the Iran-US Claims Tribunal (1983), 2 Iran-US CTR at pp. 166 ff. and (1984), 5 ibid. p. 251. The above commission was a conciliation commission where the nationality of claims rule was applicable but, nevertheless, it was not an arbitral body in every respect. In the Iran-US Tribunal in the Esphanian Case the tribunal of 3 arbitrators described the tribunal as not being the "typical exercise of diplomatic protection" because the state did not espouse claims: (1983), 2 ibid. at p. 165. This, however, is a distinction without a difference. Most of the tribunals in which the nationality of claims rule has been applied to admissibility were similar to the Iran-US tribunal. The rule has been regarded as applicable without a difference or distinction whether the claimant was the state itself or whether persons had locus standi before the tribunal, subject to express provisions to the contrary or modifying the rule, in the constitution of the tribunal. The Iran-US Tribunal clearly had to apply the same rule applicable to adjudications in which states were parties before the tribunal. It is significant that in Case No. A/18 the full tribunal of 9 (with 3 dissenting) made no reference to the distinction made earlier by the tribunal of 3. The rule applied by the tribunal was the same rule applicable to cases of diplomatic protection in which states were the direct parties, and the correctness of the rule applied must stand or fall by the same criteria applicable to those cases. It has never been denied that the Iran-US Claims Tribunal, in so far as it covered claims by persons against either of the states involved, was adjudicating cases of diplomatic protection to which the nationality of claims rule was applicable subject to the express or implied provisions of the constitutive instruments. The fact that persons were 56
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While two rapporteurs of the ILC57 (and one of ILA58) take the view that the rule of the dominant or effective nationality with its effect favouring claimants, where otherwise their claims would clearly be inadmissible, should be applied in the case of dual nationality, text writers have not shown such a consensus.59 The little state practice that there is on the exercise of diplomatic protection is also ambiguous, though it may demonstrate a move away from the restrictive principle of non-recognition of the dominant nationality to its recognition as an answer to inadmissibility. Both the UK and the USA have demonstrated this trend.60 On the other hand, in the 1970s, the Chilean government refused diplomatic protection against another state of nationality.61 At the same time, the FRG was not opposed to the informal exercise of such protection,62 whereas Switzerland, although considering non-responsibility to be the general rule, did not deny the possibility of protection against another state of nationality in exceptional cases.63 It is also to be noted that, as already pointed out, in 1949 the ICJ in the Reparation for Injuries Opinion took the view that claims could not be brought against the state of nationality. The trend is unclear but there seems to be some evidence that in the case of the person with dual nationality having the nationality of the respondent state the principle of the dominant or effective nationality is favoured claimants as opposed to their national states, as in the case of the 19th and 20th century claims commissions, made no material difference. However, there were conceivably some other special circumstances connected with the settlement of the disputes brought to the tribunal and which were reflected in the constitutive instruments of the tribunal. 57 Garcia Amador, "Third Report to the ILC", 2 YBILC (1958) at p. 61 and Dugard, loc. cit. note 52 at pp. 42-54. 58 Orrego Vicuna, loc. cit. note 26 at p. 51. 59 See the writers referred to in Dugard, loc. cit. note 52 at pp. 49, 52. 60 See Bar-Yaacov, op. cit. note 29 pp. 64-72, 147-55, Brownlie, op. cit. note 35 p. 404, Warbrick, loc. cit. note 42 at p. 1007. 61 See Orrego Vicuna, loc. cit. note 26 at p. 141. 62 Seidl-Hohenveldern, "Federal Republic of Germany", in Lauterpacht and Collier (eds.), Individual Rights and the State in Foreign Affairs: An International Compendium (1977) at p. 247. 63 Caflisch, "Switzerland", in ibid. at p. 499.
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to some extent in determining admissibility of the claim. In the event that this is the applicable principle, what the ICJ said about the determination of the dominant nationality becomes relevant: Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.64 Because the rule applied in the recent cases had earlier been rejected or was in doubt, it was only after the Merge series of cases,65 decided by a conciliation commission (and not a solely arbitral body), that the rule applied came to be respected. Also since many important authorities were against the rule as applied, the claim of the rule to be established may be questioned. It will also be noted that the six arbitrators in the majority in Case No. A/1866 in the IranUS Claims Tribunal were the three US arbitrators and the three European non-party arbitrators.67 Moreover, dissenting arbitrator Shafeiei's opinions both in the Esphanian Case and in Case No. A/18 64
The Nottebohm Case (Second Phase), 1955 ICJ Reports at p. 22. (1955), 16 UNRIAA p. 247 (para. V5). 66 (1984), 5 Iran-US CTR p. 251. 67 They were Lagergren, Mangard, Riphagen and from the US, Aldrich, Holtzmann, Mosk. It is questionable whether the opinion of these six arbitrators, admittedly a majority but no more, could establish a precedent for customary international law in general. First, the context of the Iran-US Claims Tribunal was special in terms of the treatment of nationality in relation to claims. Secondly, the opinion took a position which was contradictory to the earlier trends and what was regarded as the better and more authoritative view—and that, without a particularly well reasoned argument of policy in favour of its position. Thirdly, in those circumstances the opinion, being given by 6 western judges in favour of the US and against a non-western respondent state, could be interpreted as being motivated by partisanship. Moreover, the standing of the 6 arbitrators in the majority as international jurists may be questioned, particularly because the opinion took such a stand which bucked the trends. Lagergren had failed twice (in 1981 and 1983) to be elected to the Institut de droit international. The other five have never been proposed as candidates for the Institut, membership of the 65
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were far more thorough and well-reasoned than the opinions of the six in the majority.68 In the circumstances it is necessary to consider the basic principles involved, particularly because the absence of clear agreement on the principle applied raises some questions about the soundness of the rule as applied recently. As pointed out by the present author in 1967, diplomatic protection is postulated on the reconciliation of conflicting interests.69 The rule supported by more cogent authority at the time and not clearly rejected later, that Institut being tantamount to recognition as a competent international jurist. They are also not known as significant jurists in the international field. For that matter, however, Shafeiei and his two Iranian colleagues could hardly be said to be recognized international jurists either. The difference is that, first the dissenting opinion of the 3 Iranian arbitrators (which is based on Shafeiei's opinion in the earlier case) is much better reasoned, and, secondly, it has more prestigious authority to support it. 68 The dissent of the 3 Iranian arbitrators is to be found in Case No. A/18 (1984), 5 Iran-US CTR at pp. 257-337. The original dissent of arbitrator Shafeiei is in Esphanian (1983), 2 ibid. at p. 178. 69 These are principally the interests of the injured national state, of the injured alien, of the defendant state and of competing national states. Each of these interests has been given prominence in the choice of the different relevant rules, as pointed out by the present author. Indeed, it cannot be said that the interests of a national state and of the injured alien are necessarily given preference always to the detriment of the defendant state: See for a discussion of these matters, Amerasinghe, op. cit. note 26 on State Responsibility pp. 66—65. As was said there: It is evident that the rules relating to diplomatic protection have not been developed by reference to the single principle that the right or interest violated is that of the national state, so that this principle can be called the sole basis of diplomatic protection, in spite of the emphasis given to it in international jurisprudence. The notion that the alien's interest is injured has also played a significant role in the formation of certain rules. Also at times the interest of the defendant State or other national States are given preference to the rights of some national State, and at other times the interests of entities such as international organizations are given value. These conflicting interests have been resolved in practice in relation to specific rules by choices in favour of one or the other without any apparent order or scheme referable to a hierarchy of social policy values. Thus, it is not possible to assert with any conclusiveness
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the injured person must not have the nationality of the respondent state was, perhaps, the only rule in the law of diplomatic protectio which clearly recognized the interests of the respondent state. The reason for this was that diplomatic protection was conceived as a concession to foreign states and foreign nationals in circumstances in which there was no general reason not to recognize the prerogatives of domestic jurisdiction. The fundamental underpinning is still valid. Thus, the interests of the international community and the interests of the respondent (host) state would require that at present the person concerned should, negatively, not have the nationality of the respondent state, it being irrelevant that he had or did not have another nationality. that one or the other of these interests is necessarily superior to any of the others." (pp. 64-5). See also Amerasinghe, op. cit. note 26 on Local Remedies pp. 53-66. The point is that it is not the protection of the injured person or an injured national state that is always paramount. The systems for the protection of human rights are not in issue. They are generally based on conventions and create obligations owed to all the parties to the specific convention. This is apart from any recognition there may be by general principles of law or customary international law of substantive human rights as such. Earlier it was recognized that the rule that the injured alien must not be a national of the respondent state for any other state to exercise diplomatic protection was fully recognized, as was pointed out by this author (op. cit. note 26 on State Responsibility p. 63). Any qualification to the rule as thus stated negatively was a weak minority view. Thus, the change that has taken place must be appropriately justified by altered circumstances in international society. As far as this author knows, no such circumstances relating to diplomatic protection can be identified. The fact that a conciliation commission and a group of 6 judges all from capital exporting countries (the Iran-US Claims Tribunal) that could have a vested interest in asserting the law in the manner it was stated formulated a new rule makes the rule highly suspect. Moreover, none of the six were international jurists of universal repute in international legal society (see footnote 67 above). The fact that such judges purported to assert with firmness a rule that, to say the least, had been in grave doubt, and was supported by less cogent authority than the reverse of the rule, makes it undeniably suspect. To do so would have required a rejection of the view that the interests of the defendant state were important at all, because the reverse of the rule applied was the only circumstance in fact in which those interests were given a clearly affirmative recognition.
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As an exception, the possession of another nationality in addition to that of the host state could only be given value, if there are cogent reasons for not recognizing that the possession of the respondent state's nationality rules out any opportunity for diplomatic protection by other states. In this context the possession of a dominant (or effective) nationality is clearly not the only reason, for it has nothing to do with the respondent state or its conduct. Circumstances in which the negative rule could be qualified would only be, if the context requires that in addition to the possession of a dominant nationality between two by the person concerned which gives the other state of nationality some claim to protect, the right of the respondent state to treat the person as one of its nationals for the purposes of the rule has in some respect been forfeited. This would occur, for example, if the conduct of the respondent state is so heinous or uncivilized that the person merits to be protected by the other national state. The term "uncivilized" is used intentionally, though the connotation is more fundamental than was envisaged in the 18th and early 19th century when civilization was equated with the value systems of a limited group of countries which paradoxically included the approval of such conduct as inhuman and oppressive colonial exploitation and the like, and different standards from those applied to those countries themselves were used in judging whether civilization existed or not. Clearly such conduct as denying freedom of religious conscience, use of mutilation or torture, degrading and inhuman treatment, such as stoning for adultery, and failure to grant adequate protection for the right to life would now qualify as heinous and uncivilized. On the other hand, the mere taking of property would not, although here again the deprivation of a total livelihood may do so. The conclusion is that a dominant nationality, properly proved, is one but not the only consideration to be taken into account in modifying the rule that a person must not have the nationality of the respondent state. The other factors connected with the conduct of the respondent state are also relevant.70 70
The "First Report to the ILC" (2000) by its rapporteur, loc. cit. note 52 at p. 42, supports the rule as enunciated in the Merge Case and the Iran-US Claims Tribunal Cases. While that report also suggests that on the merits for good reason
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(ii) (b) Dual or multiple nationality, where the nationalities involved do not include the respondent's nationality, also raises problems. The issue is whether the respondent state can object that the dominant nationality is that of a third state and not that of the claimant state or the state connected with the claim, as an obstacle to the admissibility of the claim. In such cases the dominant nationality theory has been applied by tribunals to identify which national state has the right of claim.71 The 1930 Hague Convention72 and several draft codification proposals73 also incorporate the principle. On the other hand, there is some authority for the rule that there is no need to show dominant nationality, it being sufficient that the person injured has the nationality of the claimant state, irrespective of other nationalities than that of the respondent state.74 A compromise rule has been offered by the Iran-US Claims Tribunal, namely that in the case of dual or multiple nationality, dominance need not be proved, provided there is a bona fide link between the injured person and the claimant state.75 an award may be denied if the lack of nationality of the respondent has been abused (at pp. 53-4), this is not a matter for admissibility and does not need to be considered. There are modern authors who support the view taken in that report: see Aldrich, op. cit. note 25 pp. 76-79, Brower and Brueschke, The Iran-United States Claims Tribunal (1998) pp. 296-322. 71 See the de Born Case, (1926) AD 1925-1926, No. 205, and the Uiterwyk Corporation Case (1988), 19 Iran- US CTR at p. 118, the Asghar Case (1990), 24 ibid, at pp. 242-243, among cases decided by the Iran-United States Claims Tribunal. 72 Article 5, loc. cit. note 50 at p. 89. 73 See Article 4(b) of the 1965 resolution of the Institut de droit international, loc. cit. note 51 at p. 56, Article 23(3) of the 1960 Harvard Draft, loc. cit. note 51 at p. 548. See also Amerasinghe, op. cit. note 26 on State Responsibility p. 63, op. cit. note 26 on Local Remedies p. 61, where the same view is reflected. 74 See, e.g., the Salem Case (1932), 2 UNRIAA at p. 1188, the Flegenheimer Case (1958) 25 ILR at p. 149, the Stanovic Case (1963), 40 ILR at p. 155, the Merge Case (1955), loc. cit. note 56. 75 See, e.g., the Dallal Case, (1983), 3 Iran-US CTR p. 10. See Bederman, "Nationality of Individual Claimants before the Iran-United States Claims Tribunal", 42 ICLQ (1993) at pp. 123-4.
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In this case of dual or multiple nationality it is true that the interests of the respondent state are not particularly prejudiced, unless it is subjected to more than one claim for the same injury. Therefore, the rule that any state of nationality may bring a claim which is in effect a new rule which has been supported recently may be recognized, provided it is also made a condition that the filing of a claim by one state bars the filing of a claim by any other national state. This proviso is important and is a defence to admissibility whether the original claim has been successful, unsuccessful, withdrawn or otherwise dealt with after it was filed. The filing of a joint claim by two or more national states may also be permitted with the above proviso. The application in addition, as a proviso of a genuine link theory, as a general principle (apart from the rule in the Nottebohm Case), may be useful. Thus, the interests of the respondent state will be given added protection in circumstances where it is really the interests of the injured person that are given special recognition.76 (ii) (c) A problem arises, for example, where the person has the nationality of the respondent state and also two or more other nationalities. The question is, whether the theory of the dominant nationality is to be applied as between the two other nationalities, if it is recognized that in certain circumstances a claim may be brought against a national state. If the rule is that a claim may never be brought against a national state, cadit quaestio. There is no reason why in the circumstances postulated the theory of the dominant nationality as between the two other nationalities should not be applied, in the circumstances where a national state other than the respondent state may bring a claim against the latter. Vis-a-vis the respondent state this would mean that only the state of the truly dominant nationality could bring a claim. The matter has not been discussed either in decided cases or by text writers nor have relevant situations appeared in state practice. However, the application of a dominant (or more dominant) nationality theory would protect both the respondent state and the person injured. 76
The "First Report on Diplomatic Protection" to the ILC (Dugard) in Article 7 adopts the principles stated above without the proviso which is significantly important: loc. cit. note 52 at p. 54.
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Clearly, if the view expressed in (b) above is adopted, in addition to the claimant being the state of dominant nationality or the person claiming having the nationality as between the two other nationalities, the respondent state (of nationality) would have to have been guilty of some "heinous" conduct. (iii) Where the respondent state is not a state of nationality what has come to be called the rule in the Nottebohm Case77 permits a defence to admissibility, even if the claimant is a state of nationality or the person claiming has the relevant nationality. There has been some difficulty in identifying exactly what is the rule. The case, which involved Liechtenstein and Guatemala, concerned the former's claim to restitution and compensation on behalf of Nottebohm for actions of Guatemala alleged to be in violation of international law. Nottebohm was a German national when in 1939 he applied for and was granted naturalization in Liechtenstein. He was at all material times a permanent resident of Guatemala. His only connection with Liechtenstein was the residence of his brother in Vaduz. He paid certain sums of money and taxes to Liechtenstein and took an oath of allegiance to the reigning prince. He returned to Guatemala on a Liechtenstein passport after a visit to Vaduz to complete the formalities. He had lost German nationality.78 The issue was whether Liechtenstein could espouse his claim before the Court in the exercise of diplomatic protection. This involved the question whether the nationality conferred on him by Liechtenstein could be successfully invoked against the respondent state. The Court explained broadly that: According to the practice of the States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, 77
1955 ICJ Reports p. 4 (Second Phase). See Judge Read's dissenting opinion, ibid. at. p. 42. There is no reason to question Judge Read's statement of this fact. 78
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Chapter 8. Admissibility either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-a-vis another State, if it constitutes a translation into juridical terms of the individual's connection with the State which has made him its national.79
The Court pointed out that Nottebohm had connections with his family members, and business connections with, Germany. It was said that He had been settled in Guatemala for 34 years. He had carried on his activities there. It was the main seat of his interests. He returned there shortly after his naturalization, and it remained the centre of his interests and of his business activities. He stayed there until his removal as a result of war measures in 1943. He subsequently attempted to return there, and he now complains of Guatemala's refusal to admit him. There, too, were several members of his family who sought to safeguard his interests. In contrast, his actual connections with Liechtenstein were extremely tenuous. No settled abode, no prolonged residence in that country at the time of his application for naturalization: the application indicates that he was paying a visit there and confirms the transient character of this visit by its request that the naturalization proceedings should be initiated and concluded without delay. No intention of settling there was shown at that time or realized in the ensuing weeks, months or years—on the contrary, he returned to Guatemala very shortly after his naturalization and showed every intention of remaining there. If Nottebohm went to Liechtenstein in 1946, this was because of the refusal of Guatemala to admit him. No indication is given of the grounds warranting the waiver of the condition of residence, required by the 1934 Nationality Law, which waiver was implicitly granted to him. There is no allegation of any economic interests or any activities exercised or to be exercised in Liechtenstein, and no manifestation of any intention whatsoever to transfer all or some of his interests and his business activities to Liechtenstein. It is 79
Ibid, at p. 23.
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unnecessary in this connection to attribute much importance to the promise to pay the taxes levied at the time of his naturalization. The only links to be discovered between the Principality and Nottebohm are the short sojourns already referred to and the presence in Vaduz of one of his brothers: but his brother's presence is referred to in his application for naturalization only as a reference to his good conduct. Furthermore, other members of his family have asserted Nottebohm's desire to spend his old age in Guatemala.80
On the basis of these facts the Court concluded that "Liechtenstein... is not entitled to extend its protection to Nottebohm vis-a-vis Guatemala and its claim must, for this reason, be held to be inadmissible,"81 explaining further that "These facts clearly establish, on the one hand, the absence of any bond of attachment between Nottebohm and Liechtenstein and, on the other hand, the existence of a long-standing and close connection between him and Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on any real prior connection with Liechtenstein, nor did it in any way alter the manner of life of the person upon whom it was conferred in exceptional circumstances of speed and accommodation. In both respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be entitled to be respected by a State in the position of Guatemala. It was granted without regard to the concept of nationality adopted in international relations. Naturalization was asked for not so much for the purpose of obtaining a legal recognition of Nottebohm's membership in fact in the population of Liechtenstein, as it was to enable him to substitute for his status as a national of a belligerent State that of a national of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of becoming wedded to its traditions, its interests, its way of life or of assuming the obligations—other than fiscal obligations—and exercising the rights pertaining to the status thus acquired."82 80 81 82
Ibid. at pp. 25-6. Ibid. at p. 26. Ibid.
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There has been considerable writing and different views expressed on the case,83 but it is difficult to conclude that the case is authority for the proposition that the nationality of the person who has the claimant state's nationality must always be an effective one with a "genuine link", as described by the Court. In the Nottebohm Case Nottebohm (a) had already had the nationality of another state which he had lost, and (b) the action by the state of his current nationality, Liechtenstein, was against a third state with which he had for some time had, and at the current time did actually have, a closer connection than with either Liechtenstein or the state of his former nationality. These two special features may restrict the scope of any general principle of "genuine link". The "effective or genuine link" principle as enunciated in the Nottebohm Case is at least limited to situations where, firstly, the person concerned has no genuine or effective connection with the claimant state and, secondly, where his connection with the respondent state is clearly genuine and more effective, even though he may not have the nationality of that state. Not only is the second requirement a necessary feature of the rule but it is clear that relevance of a genuine link becomes one based on a comparison between the person's relationship with the respondent state and the claimant state.84 There is also some problem with how much value should be given to the fact that a person has lost the nationality of a third state which he previously had, perhaps by acquiring the nationality of the claimant state, while he had continuing connections with that third state. In short the Nottebohm Case seems to be a very special case and the rule extracted from it may have a broad extension or a very narrow application based on the detailed facts of the case, depending on the 83
See, e.g., Jones, "The Nottebohm Case", 5 ICLQ (1956) p. 230, Makarov, "Das Urteil des Internationalen Gerichtshofes im Fall Nottebohm", 16 ZAORV (1956) p. 407; Maury, "L'arret Nottebohm et la Condition de la nationalite effective," 23 Zeitschrift fur auslandisches und Internationales Privatrecht (1958) p. 515; de Visscher, "L'affaire Nottebohm", 60 RGDIP (1956) p. 238; Van Panhuys, op. cit. note 26 passim. 84 The same point was made by the present author in Amerasinghe "The Jurisdiction of the International Centre for the Settlement of Investment Disputes", 19 IJIL (1979) at pp. 202-3.
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approach taken to diplomatic protection. It would seem, however, that there is no good reason to construe the rule as being as broad as to require a genuine or effective link in the abstract between the person and the state of nationality making the claim. At the least, the relationship between the respondent state and the person must be taken into account on a comparative basis. The reason for not recognizing a broad rule is that the rule has the effect of curtailing the protection granted to injured persons through the institution of diplomatic protection, while also limiting the right of a national state to protect. The interests of respondent states which are protected by the rule do not need so much protection at the expense of national states and injured persons as to warrant a broad extension of the rule, (iv) A rule generally said to be recognized is that the injured person or his derivatives must both (a) have the nationality of the claimant state from the time of the injury continuously up to the time of the filing of the claim (or, according to some, up to the time of the award), and (b) not have the nationality of the respondent state during that time.85 However, the above formulation of the rule 85
There is support for this view of the rule in the text writers and international case law. The Iran-United States Claims Tribunal applies a variation of the rule, pursuant to the express terms of Article VII(2) of the Claims Settlement Declaration governing its jurisdiction, in determining its competence as opposed to the admissibility of claims brought to it. See for rejection by the application of the modified rule, the Ainsworth Case (1988), 18 Iran-US CTR p. 95, the International Systems and Controls Corp. Case (1986), 12 ibid. p. 239, and for discussion of the cases of the tribunal see Aldrich, op. cit. note 25 pp. 45-6, Brower and Brueschke, op. cit. note 70 pp. 76-80. See the Panavezys-Saldutiskis Railway Case (1938), PCIJ Series A/B No. 76 at p. 16. See also, on the customary rule, e.g., Borchard, "The Protection of Citizens Abroad and Change of Original Nationality", 43 Yale LJ (1933-4) at pp. 372 ff.; Hurst, "Nationality of Claims", 7 BYIL (1926) at pp. 162 ff.; Hyde, 2 International Law (1945) p. 893. However, the rule, as stated, has been questioned: O'Connell, 2 International Law (1970) p. 1119. For a slightly different view of the rule see Sinclair, "Nationalit of Claims: British Practice", 27 BYIL (1950) at pp. 125 ff., Wyler, La Regie Dite de la Continuite de la Nationalite dans le Contentieux International (1990) pp. 35-36, Geek, "Diplomatic Protection", EPIL (1992) p. 1055, Leigh, "Nationality and Diplomatic Protection", 20 ICLQ (1971) p. 456. See also Administrative Decision No. V, AJIL (1925) at pp. 613-14.
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has been contested and there are various modifications of it that have been proposed but never apparently applied in the practice of tribunals.86 But a rule of continuous nationality in some form may be assumed to exist. (v) In regard to the nationality of juridical persons, while in principle what has been said in (i) to (iv) above applies, there has been some difficulty in determining their nationality in certain circumstances.87 The clearest rule is that a corporation does not necessarily have the nationality of the majority of its shareholders. It will ordinarily have the nationality of the state in which it is incorporated and has its seat of management.88 In the Barcelona Traction Co. Case the ICJ took the view that in certain circumstances the nationality of its shareholders may be relevant and the shareholders' national state might be permitted to bring a claim. The most notable instances are, first, cases where the corporation has ceased to exist as a legal person, as where it has been wound up and/or struck from the register of corporations, and secondly, where the corporation's national state lacks the capacity to act on its behalf.89 Thirdly, the ICJ noted that there was a theory according to which the shareholders' national state might be permitted to bring a claim where the wrongdoing state is itself the state of incorporation. The Court did not, however, decide whether the theory was correct, but the theory has been affirmed in cases.90 86
Dugard has given an account of the variety of approaches, loc. cit. note 52 Addendum, UN Doc. A/CN. 4/506/Add.l at pp. 4-12. He suggests in Article 9 of his draft, by way of development of the law, very far reaching changes to the rule as stated above: ibid at p. 2. The problems connected with the issue cannot be discussed here. 87 See the discussion in the Barcelona Traction Co. Case, ICJ Pleadings (1970) passim. 88 See the Barcelona Traction Co. Case, 1970 ICJ Reports p. 3, particularly at p. 43. What happens when the state of incorporation and the seat of corporate management are not the same was not settled by the Barcelona Traction Co. Case judgment. 89 E.g., where the national state has no effective government (see Republic of Somalia v. Woodhouse, Drake (1993) Q.B. p. 54. 90 See the Mexican Eagle Company Case (1938), Cmd. 5758; see also Wortley, "The Mexican Oil Dispute 1938-1946", Transactions of the Grotius
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International tribunals ordinarily apply the rules as described above. However, the constitutive documents of certain tribunals do refer to control as such of the corporation as a relevant consideration. Both the significant modern instances treat the nationality rule as one of competence rather than admissibility but the considerations involved could very well be relevant to the nationality rule in the context of admissibility. The provisions of the ICSID Convention are discussed in chapter 14. There the concept of "control" is treated as an advantageous alternative to the usual means of determining nationality. But the content of the concept may be of value for the customary law. The Iran-US Claims Tribunal, on the other hand, has a rule which, instead of following the normal rule of allowing all corporations incorporated in Iran or the United States to be treated as Iranian or United States nationals imposes a further "genuine link" condition in Article VII (2) of the Claims Settlement Declaration. It requires not only that the corporation be incorporated under Iranian or US law, but also that 50 per cent or more of the stock be held by Iranian or US nationals, as the case might be. No such additional condition of the validity of grants of nationality to corporations is established in customary international law, and cannot be regarded as practice giving rise to customary law, because it is incorporated in a special treaty as a special condition. The condition has been dealt with by the tribunal in a series of cases. The approach that has been taken in establishing control is to operate on the basis of presumptions.91 If the claimant can establish a prima facie case that 50 per cent of its stock is held by nationals, and the respondent offers no evidence in rebuttal, the claim to nationality is regarded as proved. Otherwise other evidence is required.92 Society (1957) p. 15, and Rule VI of the UK Rules regarding the Taking Up of International Claims by Her Majesty's Government, July 1983, 54 BYIL (1983) at p. 520. 91 This has been the practice of international tribunals in applying the customary law; see the Parker Case (1926), 4 UNRIAA p. 39; the Norwegian Loans Case, 1957 ICJ Reports at pp. 39-40. 92 The tribunal was assisted by the existence of requirements under US law that the names and addresses of holders of all holdings of more than 5 per cent of
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These provisions apart, international tribunals follow the usual rules concerning the nationality of claims. However, the question whether "control" may be relevant to determining the "nationality" of a juridical person for the purposes of diplomatic protection and how and when it may be so relevant has not been finally settled.93 In the event that "control" is a relevant concept, the approach of ICSID tribunals to its definition discussed in chapter 14 will particularly be of use in establishing how "control" may be demonstrated. The practice of the Iran-US Claims Tribunal will also be helpful for this purpose. C. Exhaustion of Local Remedies The general rule applicable in cases of diplomatic protection is that local remedies in the wrongdoing state must be exhausted by the injured person as a pre-condition for admissibility of a claim before an international tribunal. The development, application and content, including limitations and exceptions, of the rule and other matters connected with have been extensively treated in a treatise by the the shares in a US corporation be notified to US authorities, and by statistical data showing that only 4.3 per cent of portfolio investments by small shareholders in US corporations are owned by foreigners and only 0.2 per cent had more than 50 per cent of their shares owned by foreigners. The tribunal has accordingly been satisfied that the US nationality in this narrow sense is established where the claimant has produced a certificate that the corporation in question is incorporated in the USA and where the total number of shares owned by holders of blocks of 5 percent or more of the shares is less than 40 per cent of the shares in the corporation. In such cases, because of the likelihood that only around 4.3 per cent of shares will be held by foreign shareholders (giving 40 per cent plus around 4.3 per cent as possibly foreign-owned), it "will draw the reasonable inference that more than 50 per cent of such stockholders are US citizens": see the Flex-Van Leasing, Inc. Case (1982), 70 ILR at pp. 504-505. If the holders of such blocks together own more than 40 per cent of the shares in the corporation, the claimants must produce additional evidence to satisfy the tribunal that the necessary number of holders are US nationals: see the Management ofAlcan Case (1983), 2 Iran-US CTR p. 294; General Motors Corp. Case (1983), 3 ibid. p. 1. 93 See Bederman, "Beneficial Ownership of International Claims," 38 ICLQ (1989) p. 924 and references therein.
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present author, Local Remedies in International Law.94 Thus, suffice it to say here that the rule is well established in customary or general international law as an objection to admissibility. The main features of the rule are: (i) as in the case of the law of diplomatic protection, there are several interests that converge and conflict and must be accommodated;95 (ii) the incidence of the rule is determined by concepts such as that of the "direct injury" and that of "jurisdictional connection;"96 (iii) in determining the scope of the rule the availability of remedies, the nature of the remedies available, the adequacy and effectiveness of the remedies available, whether the remedies are normally used, the raising of substantive issues in the local proceedings, the persons involved in the use of the rule and the need for a final decision are relevant considerations;97 (iv) there are limitations on the scope of the rule based on such concepts as obvious futility;98 (v) the question of the need to use procedural resources and the extent to which they need to be used is relevant and has been addressed by tribunals;99 (vi) the rule may be waived or estoppel may operate to exclude the invocation of the rule;100 (vii) the burden of proof in connection with the application of the rule is a relevant factor in its implementation;101 94
Amerasinghe, op. cit. note 26 on Local Remedies. A second edition is being prepared at the request of the publisher. 95 Ibid. pp. 53-76. 96 Ibid. pp. 107-49. 97 Ibid. pp. 151-85. 98 "Obvious futility" is not the only limitation which results in exemption from the need to exhaust remedies: see ibid. pp. 187-214. 99 Ibid. pp. 215-49. 100 Ibid. pp. 251-75. 101 Ibid. pp. 277-91.
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A significant feature of objections to admissibility is that they may be waived or the right to raise them be forfeited for various reasons. Thus, an examination of the merits may validly take place in certain circumstances, even if there were obstacles to admissibility. In this 102
Ibid. pp. 300-1,310-14. Ibid. pp. 319-54. In addition to the literature cited in the present author's 1991 treatise on the rule of local remedies the following more recent literature may be noted: Adler, "The Exhaustion of the Local Remedies Rule after the International Court of Justice's Decision in ELSI", 39 ICLQ (1990) p. 641. The most recent survey of the current law with suggestions for development is to be found in Dugard, "Second Report on Diplomatic Protection" to the ILC, UN Doc. A/CN.4/514 (2001). It must be pointed out that the conclusion reached in this document on the nature of the rule of exhaustion of local remedies is patently wrong, because it fails to distinguish between exhaustion of local remedies which takes place in respect of an initial wrong which is a violation of international law, whether it is a wrong in terms of the local law or not, and mere resort to the first available local remedy, which may be so described, and which is usually necessary before any international wrong may occur by a denial of justice, and takes place when the initial wrong is a wrong in terms of only the local law and is not a violation of international law. Dugard comes to the conclusion that the view that the rule of exhaustion of local remedies is one of procedure sometimes and one of substance sometimes "is, logically, the most satisfactory" (ibid at p. 32, para. 63). In fact "logically" it is the most unsatisfactory and untidy, because it fails to distinguish between exhaustion and mere resort to local remedies, and does not consequently recognize that the rule, as understood in current international law, is "of the exhaustion of local remedies" and not merely "of the resort to local remedies" but confuses the two situations. 103
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respect such objections differ from objections relating to competence (sometimes called "jurisdiction"). The latter may be raised at any time during the proceedings, the right to raise them may not be forfeited or waived and the absence of competence may never be pre-empted, as was pointed out in chapter 7. Before the ICJ, it will be recalled from chapter 4, there exists a doctrine of forum prorogatum in the appropriate circumstances. In the context of the failure to raise questions of admissibility the application of this doctrine results in the prorogation of jurisdiction on the merits to the extent that, because a question or questions of admissibility have not been raised, the respondent has consented to the exercise of jurisdiction over the merits. Thus, the issue of admissibility becomes defunct and cannot be raised in future. The situation in the ECHR, for instance, is somewhat different. As will be seen in chapter 16 the ECHR may raise proprio motu all questions which pertain to the prevention of the exercise of jurisdiction on the merits, i.e., admissibility (recevabilite) in a broad sense, whether they pertain to competence or admissibility proper. Thus, if an objection to admissibility proper is not raised by the respondent, the Court now (the EComHR before 1998) may raise the objection, if it notices the problem. However, this still means that the effect of the failure to address the objection or objections to admissibility remains an issue. In general it may be said that the principles of consent and good faith would be relevant to the law relating to issues of admissibility in so far as objections to admissibility may be excluded by the operation of either of them. The application of the principle of consent results in the exclusion of objections on the basis that they have been waived, either expressly or impliedly, by the respondent state, while the principle of good faith has the effect of excluding the application of the rule in circumstances such as where the doctrine of estoppel or its equivalent would operate. There are many aspects to waiver and estoppel. However, they have been addressed by jurists, arbitrators and judges mainly in regard to the rule of local remedies. Hence that experience is the basis of the examination of the problems. What is said of the objection based on the rule of local remedies will apply mutatis mutandis to other objections to admissibility.
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(a) Express Waiver Express waiver takes place where the respondent state expressly agrees that the objection to admissibility will not apply to a particular dispute or particular disputes. This may take place either before or after the dispute has arisen and may even be by a unilateral act by the respondent state. Such waivers may be given in both multilateral treaties and bilateral treaties. These do not raise any real problems. Examples of such waivers of the rule of local remedies in bilateral treaties are to be found in those that set up the Mixed Arbitral Tribunals and Mixed Claims Commissions between the two World Wars. Particular reference may be made to Article V of the Convention of 1923 establishing the US-Mexican General Claims Commission.104 A later example is the treaty between Canada and the US setting up the Gut Dam Arbitration in 1965.105 The ICSID Convention is an example of a multilateral treaty which excludes the operation prima facie of the rule. By virtue of Article 26 of that Convention, where a host state and an alien whose national state is a party to the Convention agree to submit to international arbitration under the auspices of ICSID, established under the Convention, there is no need for the alien to exhaust local remedies before seeking arbitration unless specific provision is otherwise made for such recourse. This is also a case where the waiver has been given before the dispute arises, unlike in respect of most bilateral treaties.106 104
See Feller, The Mexican Claims Commission 1923-1934 (1983) p. 34; Nielsen, International Law Applied to Reclamations (1933) p. 70; Eagleton, "L'epuisement des recours internes et le deni de justice, d'apres certaines decisions recentes", 16 RDILC (1935) at pp. 518-19, 525-6. 105 See Erades, "The Gut Dam Arbitration", 16 NILR (1969) p. 161. Garcia Amador recognized an express waiver by agreement in 1958 in Article 17 of his draft to the ILC: "International Responsibility, Third Report", 2 YBILC (1958) at pp. 55, 57-8, 72. 106 It may be noted that in the area of adjustment or settlement of environmental disputes, there is a marked tendency towards waiver of the rule: for a discussion of this see, e.g., Hoffman, "State Responsibility in International Law and Transboundary Pollution Injuries", 25 ICLQ (1976) at pp. 513 ff.; Poulantzas, "The Rule of Exhaustion of Local Remedies and Liability for Space Vehicle Accidents", 17 RHDI (1964) at pp. 103-4; Jenks, "Liability for Ultra-Hazardous Activities in International Law", 117 Hague Recueil (1966) at pp. 191 ff.
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Where such an express waiver of the rule of local remedies is given in a bilateral or multilateral treaty and after or before the dispute arises it is normally irrevocable, although it may be revoked by the agreement of the parties or with the consent of the state of the alien affected. In the case of the ICSID Convention the express terms of the waiver permit revocation by unilateral act of the respondent or host state at any time before it submits to arbitration under the Convention, which has to be done by a separate act of consent in writing and with the agreement of the other party, after it has become a party to the Convention. Thus, while agreement to arbitrate raises a presumption that there has been an express waiver of the rule of local remedies, that presumption is rebuttable by a unilateral act by the host or respondent state, or by agreement between the alien and the state who are parties to the dispute, provided the revocation is done before or at the time that the consent or arbitration is given by the host or respondent state. Where there is a bilateral or multilateral agreement between states to submit to arbitration or international judicial settlement disputes between their nationals and host states, there has generally been no understanding that the rule of local remedies was waived by the very fact of such submission to arbitration or judicial settlement. As is evidenced by the numerous decided cases in which disputes were submitted to such arbitration or judicial settlement under such agreements, no reference was made to the specific inclusion of the rule in the treaties or agreements, and the rule was held to be prima facie applicable.107 This issue is discussed further below in regard to implied waiver. Difficulties arise in connection with express agreements made between host states and aliens excluding the rule or express renunciations of the rule. In the case of the above express agreements or renunciations the question is whether such agreements or renunciations may be unilaterally revoked. Clearly, if the agreement or renunciation is governed by a law other than that of the host state, no revocation according to the law of the host state can take place. But what if, for instance, the agreement appears in a contract governed by the law of the host state which was legally terminated 107
See the Interhandel Case, 1959 ICJ Reports p. 6.
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according to the law of the host state? Can the alien or his national state then rely on the express waiver of the rule by the host state? The answer would seems to hinge on whether parts of a contract could be governed by a different law from that which governs other parts. In the case of arbitration clauses in state contracts with aliens, it seems possible to take the view that cancellation of the contracts does not result in the cancellation of the arbitration clause, probably on the basis that the arbitration clause stands on its own and is not subject to the total law of the host state. While it may be interpreted in accordance with that law, it cannot be unilaterally and arbitrarily terminated under the law, although there may be refinements of this rule. A similar principle may be applicable to a waiver of the rule of local remedies in a state contract with an alien or a simple renunciation of the rule by a unilateral act in respect of an alien.108 (b) Implied Waiver The question that really arises is whether and when a waiver of an objection to admissibility can be implied. This question obviously raises problems of interpretation, and as a rule each situation should be looked at individually to determine whether there has been a waiver.109 Clearly, to the extent that there has been a waiver, there 108
The 1956 resolution of the Institut de droit international clearly stated: "La regie ne s'applique pas:... (b) au cas ou son application a etc ecartee par 1'accord des Etats interesses", 46 AIDI (1956) at p. 358. But in fact what is really required is the consent of the host or respondent state, given in any form either generally or to the alien or to his national state. Such consent constitutes an express waiver. For the express waiver of the rule before the EComHR and the ECHR see chapter 16. The IACHR has stated that the requirement of admissibility based on the exhaustion of internal remedies may be waived either expressly or tacitly, because it was a means of defense and that such a waiver would be irrevocable: see the Viviano Gallardo Case (1981), IACHR Series A at p. 88; the Velasquez Rodriguez Case (1987), IACHR Series C at p. 77; the Fairen Garbi and Solis Corrales Case (1987), IACHR Series C at pp. 82 ff.; the Godinez and Cruz Case (1987), IACHR Series C at pp. 75 ff. 109 See the argument of the French government in the Norwegian Loans Case which related to the existence of an implied waiver of the rule of local remedies: 1 ICJ Pleadings (1957) at pp. 407 ff.
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can generally be no room for unilateral determination of the waiver. The view taken above of express waivers would support this opinion. Further, while the existence of a waiver will usually have to be determined on the merits of each case, there has been some practice on the question in relation to the rule of local remedies which warrants discussion. (i) The Optional Clause In connection with signatures of the optional clause under Article 36 of the statute of the ICJ, the PCIJ in the Panavezys-Saldutiskis Railway Case took the view that such a signature of the corresponding clause under its statute did not involve an implied waiver of the rule of local remedies by the signatories.110 The issue was not raised as such by the applicant state in the Norwegian Loans Case111 or in the Interhandel Case,112 where the ICJ was confronted with the question of local remedies, although signatures of the Optional Clause under Article 36 of the statute of the Court were involved. Since the acceptance of the compulsory jurisdiction of the ICJ does not basically militate against the preservation of the jurisdiction of national courts, the view may be taken that the opinion of the PCIJ has validity. Certainly the signature of the Optional Clause has never been regarded as a waiver of the right to raise objections to admissibility in general, as is shown by the jurisprudence of the PCIJ and ICJ. (ii) Submission by States to International Adjudication, including A rbitration Submission to international adjudication (including arbitration), by agreements between states entered into before the dispute has arisen, probably stand on the same footing as acceptance of the Optional Clause under Article 36 of the statute of the ICJ. There is a direct analogy between the two situations. In regard to general arbitration treaties, whether they are entered into before or after the 110 111 112
(1939) PCIJ Series A/B No. 76. 1957 ICJ Reports p. 9. 1959 ICJ Reports p. 6.
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dispute arises, the case-law is contradictory. There are some cases which regard the agreement to arbitrate as a waiver of the rule of local remedies, while the majority seem to take the opposite view.113 It would seem that the view of the minority, as a general principle, would contradict the cogent analogy to be drawn from the cases decided by the ICJ relating to Article 36, at any rate in so far as the case of an arbitration treaty signed before the dispute arises is concerned. Hence, to this extent it would be less persuasive. It is to be noted that in the Elettronica Sicula S.p.A. (ELSI) Case a Chamber of the ICJ held that an agreement in a treaty to submit to adjudication by the ICJ, entered into before the dispute arose, did not by itself imply a waiver of the rule of local remedies.114 The Chamber made it quite clear that implying a waiver in these circumstances was not an easy matter in the absence of a clear intention to do so. On the other hand, the situation is not quite the same in regard to treaties signed after disputes have arisen. In fact, it would seem that the PCIJ and the ICJ have not addressed themselves to this situation, in so far as the situation has not arisen in the cases decided by them. However, in so far as the two Courts have enunciated an undifferentiated general principle which supports the view of the majority taken in other decisions, there is added support for that view. In the last analysis, it would seem that the better view is that whether such treaties are signed before or after disputes arise, no waiver of the rule of local remedies may be generally implied. Even in the case of general treaties to settle by arbitration, however, it may be possible, in the absence of an express waiver, to find from the natural meaning of the text or the circumstances surrounding the agreement that waiver of the rule of local remedies was in fact intended. For example, if it is stated that there shall be direct settlement by arbitration or international adjudication, the natural meaning of the text indicates that the rule has been waived.115
113
See Law, The Local Remedies Rule in International Law (1961) p. 97. The weight of textual authority also favours the latter view: ibid. pp. 95 ff. 114 1989 ICJ Reports at p. 42. 115 See Steiner and Gross v. Polish State, AD 1927-8 at pp. 472 ff.
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An example of implied waiver of local remedies in an agreement between states which was concluded after the disputes arose is to found in connection with the agreement which set up the Iran-US Claims Tribunal. Article II of the Claims Settlement Declaration stated that the parties had agreed that an international tribunal would be set up for the purpose of deciding claims of nationals of the United States against Iran and claims of nationals against the United States, and any counterclaim which arises out of the same contract, transaction or occurrence that constitutes the subject matter of the national's claim, if such claims and counterclaims are 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 arising under a binding contract between the parties specifically providing that any disputes thereunder shall be within the sole jurisdiction of the competent Iranian courts.... 116
Article VII then provided that: "Claims referred to the arbitration Tribunal shall, as of the date of filing of such claims with the Tribunal, be considered excluded from the jurisdiction of the courts of Iran, or of the United States, or of any other court."117 There was no specific and express exclusion of the rule of local remedies, but the combined effect of these two provisions apparently led the Tribunal to conclude that the Declaration granted jurisdiction to the Tribunal "notwithstanding that exhaustion of local remedies... doctrines might otherwise be applicable".118 The tribunal did not explain how it came to this conclusion, but it was clear that the waiver of the rule must have been implied from the circumstances surrounding the Declaration and particularly the two provisions cited above, which describe reference to the courts of the two states parties to the arbitration arrangement as irrelevant and also exclude their jurisdiction. 116 117 118
1 Iran-US CTR at p. 9 (italics added). 1 Iran-US CTR at p. 11. Award No. 93-2-3 (1983), 4 Iran-US CTR at p. 102.
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In the case of other objections to admissibility than those based on the rule of local remedies submission to international adjudication or arbitration certainly does not by itself imply a waiver of the right to raise those objections. (in) The Issue of Arbitrability An implied waiver may be construed to take effect as a result of the circumstances surrounding an agreement between states where the issue to be decided by an international tribunal concern the arbitrability of the dispute. In this situation the ICJ has held that the rule of local remedies is not applicable.119 On the other hand, a conflicting decision seems to have been pronounced by the same Court. In the Interhandel Case the Court refused to determine the question of arbitrability because local remedies had not been exhausted.120 However, in this case there were some strong dissenting opinions121 which took the view adopted in the earlier Ambatielos Case that the local remedies rule was not applicable to the issue of arbitrability. It would seem that the better view is that the question of arbitrability may be decided without local remedies having been exhausted, in particular since the issue does not relate to the merits or to material compensation or restitution.122 Also it is important in this connection that, even if a pronouncement is made on the issue of arbitrability, this does not pre-empt the arbitral tribunal from making a determination on the question whether local remedies had been exhausted.123 In this situation, however, it must be noted that it may be expressly agreed that local remedies should be exhausted before an international tribunal decides the issue of arbitrability. The same principles would arguably apply to other objections to admissibility.
119
The Ambatielos Case, 1953 ICJ Reports p. 16. See also the Chemins de Per Zeltweg Case (1934) (Austria v. Yugoslavia), 3 UNRIAA at p. 1803. 120 1959 ICJ Reports at p. 29. 121 See 1959 ICJ Reports at p. 32 per Judge Carry, at p. 82 per Judge Klaestad, at p. 84 per Judge Winiarski and at pp. 120 ff. per Judge Lauterpacht. 122 See Judge Lauterpacht in the Interhandel Case, 1959 ICJ Reports at p. 120. 123 See the Ambatielos Case, 1953 ICJ Reports p. 16.
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(iv) Arbitration Agreements between States and Private Parties The question whether and to what extent there has been an implied waiver of the rule of local remedies may arise in connection with arbitration clauses which are included in ordinary state contracts with aliens. Such contracts would not be on a par with treaties,124 nor strictly would they be contracts within the international legal system, nor between international persons, although they might be governed by transnational law.125 A preliminary question that must be answered is whether arbitration clauses included in such contracts would become ineffective, if the contracts themselves are terminated or cease to have effect for some reason. The question is of some importance, since, if arbitration clauses could become ineffective in this way, the question of whether there has been an implied waiver of the rule of local remedies may often become moot. The problem becomes particularly significant where, for example, the contract is governed by the national law of the state party to the contract and the contract is terminated under the law, perhaps by legislation. In an arbitration between Yugoslavia and a Swiss national, it was argued by Yugoslavia that the cancellation of the contract between Yugoslavia and the alien resulted in the cancellation of the arbitration clause and thus terminated the right of recourse to arbitration. The arbitral tribunal rejected the submission.126 The decision was by an arbitral tribunal which was not an organ of the international legal system, which it would have been had the dispute been between states, but one instead which was set up by a state and an alien to settle a dispute between them. Hence, its decision probably does not share the prestige and value of an international decision or award. However, in the absence of any international cases on the matter this decision may have some persuasive force. The rationale of the decision would seem to lie in postulating that an arbitration clause in 124
See the Anglo-Iranian Oil Co. Case, 1982 ICJ Reports at p. 93. See e.g., the discussion in Amerasinghe, op. cit. note 26 on State Responsibility pp. 108 ff. and authorities there cited. 126 See the Affaire Losinger and Co., Pleadings, Oral Statements and Documents (1936), PCIJ Series C No. 78 at pp. 119 ff. 125
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a contract between a state and an alien stands on its own and is separable from the contract as such, whatever may be the position under the national law of that state applicable to arbitration clauses in contracts between the state and an individual or between two individuals. The arbitration clause may have to be interpreted according to a national law, but the issue of its termination falls to be determined outside particular national systems of law, probably by some general principles of law applicable to international contracts or treaties. Importance really attaches to the negative conclusion reached above, even if there is no clear support for the positive suggestion. If the above were not the case, the purpose of having an arbitration clause in the contract between a state and an alien would be defeated. Because it seems to be the better view that arbitration clauses survive contracts between states and aliens, the substantive issue whether and to what extent a waiver of the rule of local remedies can be implied where such an arbitration clause occurs assumes importance. There appear to be many cases in which arbitration has been resorted to under a state contract with an alien and in which the argument has not been raised by the respondent state that the alien has not exhausted local remedies before seeking arbitration.127 In a few cases concerning this kind of arbitration which came before the PCIJ and the ICJ the issue was raised by the respondent state and the plaintiff state argued for a waiver of the rule, but in none of the cases was the issue decided.128 The fact that the issue of local remedies has not been contested in the majority of cases may lend some support to the view that an arbitration clause does imply a waiver of the rule of local remedies, at least in regard to the merits of the dispute, although it may not be conclusive. The absence of an 127
See Schwebel and Wetter, "Arbitration and Exhaustion of Local Remedies", 60 AJIL (1966) pp. 486 ff. 128 The Affaire Losinger and Co. (1936), PCIJ Series A/B No. 67, Pleadings, Oral Statements and Documents (1936), PCIJ Series C No. 78; Anglo-Iranian Oil Co. Case, 1952 ICJ Reports p. 93, ICJ Pleadings (1951); the Electricite de Beyrouth Co. Case, 1954 ICJ Reports p. 107, ICJ Pleadings (1954); the Compagnie du Port des Quais et des Entrepots de Beyrouth and the Societe Radio-Orient Case, ICJ Pleadings (1960).
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international decision to the contrary would also not militate against this position. Indeed, it would be reasonable to conclude from the fact that arbitration has been chosen as the means of settling disputes that it was intended to withdraw the merits of disputes from the jurisdiction of the local courts and institutions at least until the arbitral award had been given. It would seem to be difficult to find acceptable arguments for the opposite view. There is some support for this view in other authorities. In LIAMCO v. Libya the sole arbitrator asserted: As the arbitration clause and the procedure outlined there are binding upon the contracting parties, and the procedure outlined there being imperative, the Arbitral Tribunal constituted in accordance with such clause and procedure should have exclusive jurisdiction over the issues of the dispute. No other tribunal or authority, local or otherwise, has competence in the matter. The exclusive and compulsory character of the arbitration process in such case is widely admitted in international law. It has been affirmed by international arbitral precedents... and has also been incorporated by the Convention of 1966 on the Settlement of Investment Disputes between States and Nations of other States.129 In Elf Aquitaine Iran v. National Iranian Oil Company the sole arbitrator made the following statement in response to the argument that the plaintiff company could have used a procedure of redress available under the law of Iran: The International Court of Justice has declared that 'The rule that local remedies must be exhausted before the international proceedings may be instituted is a well-established rule of customary international law', Interhandel case (Switzerland v. United States of America) (1959) I.C.J. Reports, at page 27. This rule of local remedies or redress that would require ELF to present its claims to the Special Committee before turning to an international remedy does, however, govern only complaints made by a state in the exercise of its right of diplomatic protection of its nationals, cf e.g., Manual of Public 129
(1977), 62 ILR at pp. 179-80. This was a transnational, and not an international arbitration.
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International Law, 1958, edited by Max Sorensen, p. 582, and not, as pointed out by Maurice Bourquin in an article in The Business Lawyer, Volume XV (1960) p. 860 et seq., to a request from a party to an agreement on arbitration to initiate arbitral proceedings under that agreement. The parties have by choosing arbitration established a procedure for settlement of disputes which excludes the national legal remedies provided for in national legislation. The established procedure also implies that each party is entitled to have disputes settled by arbitration without evoking diplomatic protection and thus without fulfilling conditions to be met in order for their government to exercise diplomatic protection. The Sole Arbitrator has therefore reached the conclusion that the rule of local redress does not apply in this case, and the ELF is not obliged to submit its claims to the Special Committee, before these claims can be adjudicated by arbitration under the agreement.130 Such opinions as these were given in arbitrations which were neither inter-state arbitrations nor arbitrations established under an arrangement governed by international law as such. However, they may be considered as relevant. There are also several textual authorities which support the view taken that there is an implied waiver where arbitration is chosen as a means of settling disputes between states and individuals.131 The views reflected above are quite acceptable, since it is acknowledged, as implied in the last case, that such arbitrations are not instituted in the exercise of diplomatic protection. While it may be clear that some waiver of the local remedies rule may readily be implied, the extent of the waiver is not so clear. The evidence referred to above is not inconsistent with a partial waiver. It is compatible with the view that where there is an arbitration 130
11 YBCom.Arb. (1986) at pp. 104-5. This was also a transnational, and not an international arbitration. 131 For recent authorities, see particularly the Report of the International Law Commission on its twenty-ninth session, 2 YBILC (1977), Part II, at p. 49; Schwebel, International Arbitration: Three Salient Problems (1987) pp. 117-21. The latter author gives two more reasons for the inapplicability of the rule of local remedies to the arbitration situation, pp. 116-17, 121-22, but the best explanation is that of the implied waiver. See also Schwebel and Wetter, loc. cit. note 127 at pp. 499 ff.
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clause, resort to local remedies may be required before an international forum is invoked, even though the alien has indicated his willingness to arbitrate, or after the arbitration. The choice of arbitration as a means of dispute settlement does not exclude the possibility that the alien is expected, where possible, to exhaust local remedies in the event of a refusal to arbitrate on the part of the host state in order to secure enforcement of the obligation to arbitrate, or where the award has been rendered in favour of the alien, in order to secure enforcement or interpretation of the award, or where the award has been rendered against the alien, in order to have the award upset.132 Whether local remedies need not be exhausted for such purposes would then generally depend on other exceptions to the rule of local remedies, and not on any theory of implied waiver. On the other hand, the question may be raised whether the implied waiver could not be extended to cover even the situations and remedies excluded above, depending on the nature of the arbitration clause. It has been suggested that where the arbitral process is intended to be governed by a law other than the national law of the host state, a waiver of resort to all local remedies is implied.133 This argument may well be based on the view that by choosing a different law from its own for the settlement of disputes by arbitration, the host state has impliedly agreed that resort to the remedies offered by its own legal system is not necessary. Be that as it may, this conclusion is not inescapable for the postulated situation, per se, in the absence of other indications of waiver. It is quite compatible with such a choice of a different law from that of the host state to govern the arbitral process that the intention was that resort should had to the remedies of the host state, if available, for the purpose of enforcing the obligation to arbitrate, or of enforcing or interpreting the award, or of upsetting the award. The choice of a different legal system for the particular purpose of the arbitral 132
A similar view is espoused by Sohn and Baxter in the commentary to their draft Convention on the International Responsibility of States for Injuries to Aliens: see Garcia Amador, Sohn and Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (1974) pp. 264—5. 133 See Schwebel and Wetter, loc. cit. note 127 at p. 499.
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process does not necessarily involve the renunciation of local remedies, which may be relevant for other purposes, if they are available. Nor can an implied waiver of the remedy relating to the obligation to arbitrate be assumed on the ground that the host state would lack the means to enforce a decision that there is an obligation to arbitrate because enforcement must take place outside its territory. In such a situation the mere decision on the issue may have the desired effect on the host state, and for that reason it could very well have been contemplated that resort should be had to local remedies on that issue. Whatever the force of these arguments, the view has also been clearly expressed that there are no limitations at all on the extent of the implied waiver.134 One reason given for this is that in those situations where it is envisaged that the implied waiver does not operate, the action taken by the host or respondent state would be "a denial of justice", in relation to which in any case there would be no obligation to exhaust local remedies.135 While this reasoning results in the exclusion of the rule, the exclusion would flow not necessarily from an implied waiver, but from some other limitation. The theory based on "denial of justice", obviously used in a very broad sense, has yet to be tested.136 The above analysis shows that, while the basic notion of an implied waiver in case of arbitration agreements such as are referred to may be accepted, the extent of the waiver is not settled. The understandings underlying two conventions involving arbitration between states and individuals or their subrogees would seem to support the views expressed above that an agreement to arbitrate between a state and an individual implies a waiver of the requirement that local remedies should be exhausted. The ICSID Convention, which came into force in 1966, deals essentially with 134
See Garcia Amador, "International Responsibility, Fifth Report", YBILC (1960) at p. 57; Luzzato, "International Commercial Arbitration and the Municipal Law of States", 157 Hague Recueil (1977) at p. 94. 135 See Schwebel, op. cit. note 131 pp. 115 ff. 136 This exception is different from those exceptions based on absence of access to courts and the like, which give rise to obvious futility. It is evidently a new ground for making an exception to the rule. The ground is not yet recognized.
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such agreements to arbitrate, although these are institutionalized and given a special status under international law. The Convention, in Article 1(2) and later in Article 27(1), makes this clear by providing that a state whose national has agreed to submit a dispute to arbitration under the Convention shall not give diplomatic protection to such national, which indicates that the arbitration under the auspices of ICSID, although described as an "international" arbitration is not an arbitration instituted in the pursuit of diplomatic protection. While Article 26 explicitly excludes the rule of exhaustion of local remedies where an arbitration under the auspices of ICSID has been agreed to, unless the exhaustion of such remedies had been made a condition precedent to such arbitration, paragraph 32 of the Report of the Executive Directors on the Convention, which is appended to the Convention and therefore has some interpretative value, states that: It may be presumed that when a State and an investor agree to have recourse to arbitration, and do not reserve the right to have recourse to other remedies or require the prior exhaustion of other remedies, the intention of the parties is to have recourse to arbitration to the exclusion of any other remedy.137
It may be concluded both that what is referred to as a rule of interpretation in substance reflects the rule of the implied waiver discussed above and that its incorporation as the implicit basis of Article 26 of the Convention reinforces the autonomy or general nature of that rule. The Report of the Executive Directors on the Convention may be regarded as part of the travaux preparatories to which parties to the Convention subscribe when they sign and ratify the Convention. Thus, the view of the implicit waiver reflected in that Report may be taken to reflect the practice of such states at least, although, because the Convention explicitly incorporates the implicit waiver, that view is not essential for the application of the Convention. The Convention Establishing the MIGA does not specifically refer to the implicit waiver of the rule either in its Article 57 or in 137
See Doc. ICSID/2 at pp. 10-11 of the Report. Are local remedies relevant here?
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Annex II to the Convention, but there is a reference to the principle involved in the Commentary on the Convention Establishing the MIGA which may be treated as part of the tmvaux preparatories and is of interpretative value. In paragraph 76 of the Commentary it is provided that disputes between host states and the Agency as subrogee of an investor should be settled in accordance with a set procedure or by special agreement between the parties. In the case of a negotiated agreement it is stated that "the agreement could, for example, provide that the Agency first seek remedies available to it under the domestic laws of the host country and seek recourse to arbitration only if it has not obtained relief under such remedies within a specified period of time".138 This statement assumes that an agreement to arbitrate between MIGA as the subrogee of an alien investor and a host state would normally imply waiver of the rule of local remedies unless reference to the need for exhaustion of such remedies is expressly made. Here, as in the case of the ICSID Convention, the understanding reflected is subscribed to by parties to the Convention as being of interpretative value. The same inferences may be made in this case as in the case of the ICSID Convention. These Conventions and their travaux preparatoires amply support the view taken earlier of the implicit waiver of the rule of exhaustion of local remedies where arbitration is agreed to between a host state and an alien. However, the extent of the rule of implicit waiver supported is not so evident. It is significant that in connection with both Conventions, what the interpretative texts purport to refer to is the rule of implicit waiver as understood in customary international law, whatever the terminology used. Therefore the proper definition of the limits of that rule is left to customary international law and is not affected by the provisions of these Conventions or anything contained in their travaux preparatories which may be in conflict with such definition. Apart from the general support given the existence of the rule of implicit waiver in such arbitration cases, these documents do not really provide any 138
See Convention Establishing the MIGA and Commentary on the Convention (1985) at p. 22 of the Commentary.
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assistance in establishing the exact parameters of the rule. In regard to these, whatever disagreement there is has not been dispelled. The application of these principles to other objections to admissibility in the case of the arbitration agreements being considered has not been canvassed. There is no reason for their general application where they result in an implication of waiver. (v) Failure to Raise Preliminary Objection The right to object to admissibility of a claim before an international court or tribunal may be waived because of the failure on the part of the respondent state to raise at the proper time in the international proceedings the objections to admissibility (including those based on the rule of local remedies). This is an implied waiver of the application of the rule on the basis of a procedural position taken by the respondent state and takes place during the international proceedings. Once the waiver has taken place it is irrevocable. The forfeiture of the right to rely on the objections is grounded in a general principle that applies to the raising of preliminary objections.139 (vi) Request for a Declaratory Judgment As a consequence of two judgments of the PCIJ on jurisdiction, it has been concluded that a request for a declaratory judgment precludes the raising of the objection by the respondent state that local remedies have not been exhausted. In the German Interests in Polish Upper Silesia Case the PCIJ held that the rule did not apply where the plaintiff state requested only an "interpretation of certain clauses of the Geneva Convention".140 The decision was explained in the subsequent Chorzow Factory (Jurisdiction) Case where the Court said that the application in the first case "only asked the Court for a 139
Rosenne, 2 The Law and Practice of the International Court, 1920-1996 (1997) pp. 864-5 discusses "Time for Raising a Matter of Jurisdiction" which presumably includes both matters relating to competence and admissibility, but does not refer to the effect of failure to raise an objection, particularly to admissibility. In fact, even the jurisprudence of the PCIJ and ICJ has not discussed this matter in relation to objections to admissibility as such. 140 (1925), PCIJ Series A No. 6 at p. 20.
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declaratory judgment between States, which only the Court could give, whereas the present Application seeks an indemnity...."141 The distinction, thus, lies between cases in which a judgment merely declaring a violation of international law is sought and that in which a remedial right is asserted.142 This view is based on the notion that since the initial act alleged to be the cause of the wrong would be a breach of international law by the respondent state, and not merely a breach of local law, a declaratory judgment on that issue would not be inapt and would in fact help to bring about a speedy solution of the dispute. The correlation implied in this reasoning between a judgment by an international tribunal and a breach of international law is easy to accept. So is the idea that, while a judgment on the merits for damages would, in such a case, be barred, it would not be unreasonable to allow a declaratory judgment. The conclusion does strike a compromise between the interests of the respondent state and those of the claimant and his state. By seeking and obtaining a declaratory judgment that the respondent state was in breach of international law, the claimant would be able to establish its position in international law, deriving all the psychological advantage of such a position, while the respondent state would not be prejudiced in its chances of remedying the injury through local means. The plaintiff state retains the advantage of having the law on its side, if the respondent state is in violation of the law, while the latter retains the right of using its own means of redressing the wrong to the individual—a right which is a recognition of its responsible sovereign character—before being subjected to an international directive to perform its secondary obligation of redress in a particular way. However, in so far as the exception is based on the theory of an implied waiver, the waiver could be expressly reserved, provided it is done at the appropriate time. 141
(1927), PCIJ Series A No. 9 at pp. 26-7. See Beckett, "Les questions d'interet general au point de vue juridique dans la jurisprudence de la Cour permanente de Justice internationale", 39 Hague Recueil (1932) at p. 164; de Visscher, "Le deni de justice en droit international", 52 Hague Recueil (1935) at p. 425; Kaufmann, "Regies generales du droit de la paix", 54 Hague Recueil (1935) at p. 456. 142
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Among textual authorities the matter is not regarded as settled,143 while in its oral argument in the Interhandel Case the US Government apparently did not categorically take the view that the waiver was unqualified.144 The ILC, on the other hand, appears to have supported the view that the rule of local remedies does not apply where a declaratory judgment alone is sought.145 The better view seems to be that taken by the ILC. It is not clear whether the same reasoning is applicable across the board to all objections to admissibility. In general it would seem that it is not so applicable. Exceptionally, on an ad hoc basis a waiver may be implied if an intention to waive can be shown to exist by implication. (c) The Principles of Estoppel and Good Faith The principles of estoppel and good faith may operate to exclude objections to admissibility, including those based on the application of the rule of local remedies. The doctrine of estoppel in broad terms prevents one party from taking advantage of another when the former by his actions has let the latter to act in a certain manner detrimental to the larter's own interests. The principle of good faith is at the root of this doctrine. The exact scope of the doctrine in international law is not fully defined. For the purpose of the application of the rule of local remedies, the statement in the Chorzow Factory (Jurisdiction) Case, which purported to advert to an aspect of this doctrine, is a good starting point. The PCIJ said: "It is, moreover, a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one party cannot avail himself of the fact that the other has not fulfilled some obligation or 143
See the discussion in the Institut de droit international: 46 AIDI (1956) at pp. 302 ff. 144 ICJ Pleadings (1959) at pp. 501 ff. 145 Report of the Commission to the General Assembly on the work of its twenty-ninth session: 2 YBILC (1977), Part II, at p. 50. The EComHR has taken the opposite view that declaratory relief, even by way of interpretation, may not be given unless local remedies have been exhausted: Donnelly and Others v. UK, Applications Nos. 5577-83/72, COE Doc. 43.662-06.2 at p. 83.
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has not had recourse to some means of redress, if the former party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him."146 The Court pointed to an illegal act in particular. However, the principles of good faith and estoppel have a broader coverage than that. In fact, any conduct on the part of one party which is intended to lead, and induces, the other party to act in a manner which is detrimental to his interests could qualify, there being no special requirement that the conduct be illegal. While the principles of estoppel and good faith may in appropriate cirumstances have a general application to the exclusion of objections to admissibility, including objections based on the rule of local remedies, the manner in which they are applicable apparently has a strict definition. For example, in the case of the rule of local remedies there must be cogent evidence that the conduct was not only intended to lead the person to believe that local remedies need not be further exhausted, for whatever reason, but also that the latter could reasonably be expected to rely on that conduct, did rely on it and for that reason did not resort to the local remedies which were available. Thus, in the Interhandel Case the ICJ did not consider that the conduct of the US Government was of this nature when it said: The Court does not consider it necessary to dwell upon the assertion of the Swiss Government that the "United States itself has admitted that Interhandel had exhausted the remedies available in the United States courts". It is true that the representatives of the Government of the United States expressed this opinion on several occasions, in particular in the memorandum annexed to the Note of the Secretary of State of January llth, 1957. This opinion was based upon a view which has proved unfounded. In fact, the proceedings which Interhandel had instituted before the courts of the United States were then in progress.147 It would appear that in the circumstances of the case the Court considered that it was not reasonable to expect that the alien would 146 147
(1927), PCIJ Series A No. 9 at p. 31. 1959 ICJ Reports at p. 27.
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rely on the opinion of the US Government, which was a party to the dispute and had no control on the US courts, and whose opinion on the existence of remedies was not necessarily an expert one. What is required for the principle of good faith and estoppel to operate is not merely that the host or respondent state express a general view about the existence of remedies, but that it conduct itself in such a way that a reasonable opponent would conclude that he was relieved of the duty to exhaust local remedies or that the rule would not be invoked. In the Elettronica Sicula S.p.A. (ELSI) Case a Chamber of the ICJ dealt with the argument that the rule of local remedies had been excluded by estoppel. While not denying that estoppel could have been relevant to the matter in hand, the Chamber held that estoppel did not operate to exclude the rule on the facts of the case. It explained the doctrine of estoppel and its application to the facts as follows: 53. There was a further argument of the Applicant, based on estoppel in relation to the application of the local remedies rule, which should be examined. In the "Memorandum of Law" elaborating the United States claim on the diplomatic plane, transmitted to the Italian Government by Note Verbale of 7 February 1974, one finds that the whole of Part VI (pp. 133 et seq.) deals generally and to some length with the "Exhaustion of Local Remedies". There were also annexed the opinions of the lawyers advising the Applicant, which dealt directly with the position of Raytheon and Machlett in relation to the local remedies rule. The Memorandum concluded that Raytheon and Machlett had indeed exhausted "every meaningful legal remedy available to them in Italy"... In view of this evidence that the United States was very much aware that it must satisfy the local remedies rule, that it evidently believed that the rule had been satisfied, and that it had been advised that the shareholders of ELSI had no direct action against the Italian Government under Italian law, it was argued by the Applicant that Italy, if it was indeed at that time of the opinion that the local remedies had not been exhausted, should have apprised the United States of its opinion. According to the United States, however, at no time until the filing of the Respondent's Counter-Memorial in the present proceedings did Italy suggest that Raytheon and Machlett should sue in the Italian courts on the basis of the Treaty. The written aide-memoire of 13 June 1978, by which Italy rejected the 1974
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Claim, had contained no suggestion that the local remedies had not been exhausted, nor indeed any mention on the matter. 54. It was argued by the Applicant that this absence of riposte from Italy amounts to an estoppel. There are however difficulties about drawing any such conclusion from the exchanges of correspondence when the matter was still being pursued on the diplomatic level. In the Interhandel case, when Switzerland argued that the United States had at one time actually "admitted that Interhandel had exhausted the remedies available in the United States courts", the Court, far from seeing in this admission an estoppel, dismissed the argument by merely observing that "this opinion was based upon a view which has proved unfounded" (Interhandel, Judgment, I.C.J. Reports 1959, p. 27). Furthermore, although it cannot be excluded that an estoppel could in certain circumstances arise from a silence when something ought to have been said, there are obvious difficulties in constructing an estoppel from a mere failure to mention a matter at a particular point in somewhat desultory diplomatic exchanges.148
There are no clear examples of the application of the principles of estoppel and good faith in favour of a person in regard to the objection based on local remedies. While there is every reason why the principles should be relevant to the application of the rule of local remedies, it will naturally depend on the circumstances of each case whether the application of the principles should result in the exclusion of the rule. By analogy, on the basis of the above jurisprudence, the principles of estoppel and good faith may be applied to other objections to admissibility in the appropriate circumstances. Generally the issue would be whether the respondent state can rely on some factor which entitles it to conclude that the particular objection would not or could not be raised. TIME FOR RAISING OBJECTIONS TO ADMISSIBILITY The rules of arbitration tribunals may or may not deal with the time at which objections to admissibility must be filed. However, the 148
1989 ICJ Reports at pp. 43-4.
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Rules of 1978 of the ICJ in Article 79 address the question specifically. The English text states: 1. Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing within the time-limit fixed for the delivery of the Counter-Memorial. Any such objection made by a party other than the respondent shall be filed within the time-limit fixed for the delivery of that party's first pleading.
The French text which is clearer states: 1. Toute exception a la competence de la Cour ou a la recevabilite de la requete ou toute autre exception sur laquelle le defendeur demande une decision avant que la procedure sur le fond se poursuive doit etre presentee par ecrit dans le delai fixe pour le depot due contrememoire. Toute exception soulevee par une partie autre que le de defendeur doit etre exposee dans le delai fixe pour le depot de la premiere piece de procedure emanant de cette partie. The clarity lies in the use of the terms competence and recevabilite. It is made quite clear that there are two kinds of objections which relate to juridiction (jurisdiction) in a broad sense, one relating to competence and one relating to admissibility. As was seen in chapter 7, the ICJ itself stated that objections to competence could be raised at any time, implying that Article 79(1) of the Rules was not absolute in regard to them in the sense that if such objections were not raised at the time indicated in Article 79, the right to raise them would be lost as having been waived or forfeited. The matter of objections to admissibility has not specifically been addressed by the Court—as opposed to objections relating to competence. Nor has it been discussed in other courts or tribunals. Article 79(1) reflects what would be a general principle of law as far as objections to admissibility are concerned. The point is that such objections must be raised before the discussion of the merits is initiated by the filing of a pleading or in such a way that the Court is apprised of them not subsequent to the filing of the first pleading
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on the merits. Whether the rules or other instruments of a tribunal or court state this principle expressly, it is one which would be applicable procedurally but with substantive effects. Thus, if the objection is not filed within the time limit referred to above, the right to raise this objection (to admissibility) would be lost or forfeited. There would be an implied waiver of the objection to admissibility. This would be so, even where the doctrine of forum prorogatum which is applicable to the jurisdiction of the ICJ does not apply. The reason is that even in the case where forum prorogatum is not applicable, as in the case of arbitration in general, the tribunal would regard the possible right to object to admissibility with the objection not raised as simply having been forfeited or waived, there being no need to invoke a general doctrine of forum prorogatum. The above reasoning does not need the authority of decided cases to support it. The conclusion flows from the application of general principles. What is significant is that the critical time for the filing of objections to admissibility is as described above.
9 INCIDENTAL JURISDICTION
Apart from jurisdiction to deal with the merits, a tribunal may have to deal with other matters which are only connected with the case on the merits. The jurisdiction to deal with these matters comes within the scope of the incidental jurisdiction of the tribunal.1 Part III, Section D, of the 1978 Rules of Court of the ICJ deals with "Incidental Proceedings". It covers matters such as interim protection, preliminary objections, counter-claims, intervention, special reference to the Court and discontinuance. Interpretation and revision of a judgment, for example, as post-adjudication phases, are dealt with separately, although they are connected with the principal proceedings and may, thus, be regarded as incidental. A Chamber of the Court stated that incidental proceedings by definition must be 1
See Briggs, "The Incidental Jurisdiction of the International Court of Justice as Compulsory Jurisdiction", Volkerrecht und rechtiliches Weltbild. Festchscriftfur Alfred Verdross (1960) p. 89, Briggs, "La competence incidente de la Cour Internationale de Justice en tant que competence obligatoire", 64 RGDIP (1960) p. 217. The term "incidental jurisdiction" in connection with the PCIJ first appeared apparently in Hudson, The Permanent Court of International Justice: A Treatise (1934) p. 360.
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those which are incidental to a case which is already before the Chamber (or the Court, as the case may be) and thus, an incidental proceeding cannot be one which transforms that case into a different case with different parties.2 In the Haya de la Torre Case, the Court, using the term "incidental", stated that "every intervention is incidental to the proceedings in the case",3 thus describing the matter of intervention as being incidental to the proceedings. In terms of jurisdiction, there are questions which arise in connection with incidental proceedings, particularly relating to the relevance of consent. The characteristic feature of jurisdiction over incidental proceedings is that it depends, first, upon the subject-matter of the incidental proceedings having a legal connection with the principal proceedings on the merits. The conditions for a tribunal's having jurisdiction over them may differ and depend on several factors. An important point is that this jurisdiction (in the absence of an expressed intention in the jurisdictional instruments) which is not invalid for any reason and can be given effect to, depends on general principles of law applicable to the international juridical process. As will be seen, in the case of interim measures jurisdiction to order them may not depend on the establishment of the conditions for consensual jurisdiction over the merits, while in other cases, such as the admission of an intervention, consent as such to the intervention in one form or other may be relevant. Many jurisdictional instruments such as the statutes of the ICJ and the ITLOS contain express provisions relating to incidental matters but these may have to be interpreted in the light of general principles in terms of their jurisdictional impact. That jurisdiction to deal with the merits is not always necessary for jurisdiction in respect of, at least, some incidental matters has been seen to have been accepted, for example, in connection with la competence de la competence. The relationship to jurisdiction over the merits to the jurisdiction to deal 2
Land, Island and Maritime Frontier Case (Application to Intervene), 1990 ICJ Reports at p. 134. 3 1951 ICJ Reports at p. 76. See also Land, Island and Maritime Frontier Case (Application to Intervene), 1990 ICJ Reports at p. 4.
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with incidental matters may vary with the nature of the particular incidental matters. Indeed, occasionally, again as has been seen in relation to la competence de la competence, jurisdiction over incidental matters may inhere in a tribunal as a result of the judicial character of the tribunal. The authority to control the conduct of the case is also inherent in an international tribunal subject, to some extent, to the express agreement of the parties. This is not strictly to be regarded as incidental jurisdiction. In the case of the ICJ, Article 48 of the statute specifically gives the Court this authority when it states, inter alia, that the Court "shall make orders for the conduct of the case...". Apart from fixing time-limits for the written proceedings, Article 48 has been used for several purposes. Matters for which the article has been used include the appointment of experts both before the judgment4 and after the judgment to assist the parties in its implementation,5 the joinder of cases,6 discontinuance of both principal and incidental proceedings (preliminary objections7 and requests for provisional measures8), challenges to the presence of Judges of the Court on the bench,9 requests for the appointment of an ad hoc judge,10 requests for an inspection in loco,11 whether an application for permission to intervene in a case being heard by an ad hoc Chamber should be determined by the full Court or by the Chamber,12 and whether an application has been effective to commence proceedings.13 Such an action taken under Article 48 may be 4
See the Corfu Channel Case 1947-1948 ICJ Reports p. 124, 1949 ICJ Reports p. 237, the Gulf of Maine Case, 1984 ICJ Reports p. 165. 5 The Frontier Dispute (Burkina Faso/Mali) Case, 1986 ICJ Reports at p. 648. 6 The South West Africa Cases, 1961 ICJ Reports p. 13, North Sea Continental Shelf Cases, 1986 ICJ Reports p. 9. 7 The U.S. Nationals in Morocco Case, 1951 ICJ Reports p. 109. 8 The Border and Transborder Armed Actions Case, 1988 ICJ Reports p. 9. 9 The South West Africa Cases, 1965 ICJ Reports p. 3. 10 See the Namibia Opinion, 1971 ICJ Reports p. 12. 11 The South West Africa Cases, 1965 ICJ Reports p. 9, GabcikovoNagymaros Project Case, 1997 ICJ Reports p. 3. 12 The Land, Island and Maritime Frontier Dispute Case (Application to Intervene), 1990 ICJ Reports p. 3. 13 The Request for Reexamination Case, 1995 ICJ Reports p. 288.
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taken after or before jurisdiction of the Court to decide the merits has been established. The principal cases of incidental jurisdiction which require further discussion and examination are jurisdiction in relation to interventions by third parties, and the jurisdiction to order interim or provisional measures. These will be dealt with below. In the process of settling a dispute on the merits, even before an international tribunal has established whether it has jurisdiction, based on competence or admissibility, to proceed with such settlement, it may have to decide certain incidental matters in connection with (i) intervention by third parties to the dispute and (ii) the ordering of provisional or interim measure in connection with the dispute and prior to its settlement. The issue that arises in connection with the jurisdiction of the tribunal is whether and on what basis and conditions the tribunal has authority to recognize interventions and order provisional measures. The question of jurisdiction thus formulated is separate from any substantive issue that may arise, for example, in regard to what provisional measures may be ordered in a given situation. But even in respect of the latter issue the question of the scope of the authority to order provisional measures and the basis on which they may be ordered could be regarded as a matter of jurisdiction, though what particular measures are ordered in a given case would truly and entirely be a matter of substance. Similarly, in regard to intervention what an intervenor may be permitted to do, if allowed to intervene, may be regarded as a matter of jurisdiction.
A. INTERVENTION In the case of interventions there are three principal questions relating to jurisdiction which arise when a third party seeks to participate as an intervenor in proceedings between two (or more) other parties. The first issue concerns the relevance of consent on the part of the principal parties to the dispute in determining whether the tribunal has jurisdiction to admit an intervention and the nature and extent of the consent in question, if any is required. The second issue is what other requirements are there for an intervenor to be
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allowed legitimately to take part in proceedings. The third is what an intervenor may properly do in the proceedings in the context of, e.g., raising issues and arguments. These matters may rightly be regarded as jurisdictional matters insofar as they pertain to the authority of the tribunal to accept an intervenor's participation in the case and its authority to determine the scope of that intervention. It is interesting that in an early arbitration the tribunal said categorically that "il n'existe pas de principes generaux absolus en matiere d'intervention".14 It is important to note, in fact, that the statement refers to "absolute" principles as such. While there are no absolute principles, there are principles which are not so much flexible as opposed to absolute but, as will be seen, are to be adapted to situations. (1) Consent of the Principal Parties In arbitration the principle was generally accepted that interventions could not be entertained without the agreement in some way of the principal parties to the dispute who had submitted it by agreement to the tribunal, and that third parties had no inherent right to intervention.15 The agreement of the parties could be given in the compromis or arbitration agreement or subsequently orally or in writing or even perhaps by implication, e.g., not objecting. In a case decided in 1901 the tribunal made an important statement of principle in this regard. In the Guano Case between Chile and France, where a French national was suing the Chilean government under the interstate arbitration agreement the tribunal stated: Attendu que les regies ordinaires relatives a 1'intervention en matiere d'Arbitrage international, d'apres lesquelles "l'intervention spontanee d'un tiers n'est admissible qu'avec le consentement des Parties qui ont conclu le Compromis" (Reglement propose par l'Institut de dr. int., Art. 16; Merignhac, Traite de I'Arbitrage international, 14
The Guano Case (Chile/France) (1901), 15 UNRIAA at p. 315. In that case the tribunal applied some "principles" in relation to intervention. 15 The principle clearly generates locus standi ratione personae (legitimation) and pertains to jurisdiction ratione personae. See also the argument of Malta in the Tunisia/Libya Continental Shelf Case (Intervention), 3 ICJ Pleadings p. 448.
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§268), independamment du fait qu'elles n'ont ete acceptees par aucun Etat et n'ont, en consequence, aucun caractere obligatoire pour le Tribunal de ceans, sont sans application en 1'espece; qu'en effet ces regies ont prevu le case le plus frequent, ou les Parties qui conviennent de soumettre un litige aux Arbitres sont en meme temps celles entre lesquelles la contestation est nee, tandis que le Tribunal Arbitral francochilien a ete institue par le Chili, la France et la Grande-Bretagne, avec 1'adhesion du Perou, pour permettre a des tiers, savoir aux creanciers du Perou garantis par le guano, de fair valoir leurs preventions respectives aux sommes deposes et a deposer par le Chili....16
The general principle in its negative form was clearly stated, although in the instant case it did not apply for the reasons given: Peru was a party to the arbitration agreement. Thus, third parties (the creditors of Peru who were guaranteed by the guano) were permitted to submit their respective claims to the sum deposited or to be deposited by Chile. It follows that the arbitration agreement in question does not need to state the general principle itself whether in its positive form or in the converse, the principle being implied in the agreement. A corollary is that, if the arbitration agreement expressly modifies the principle or incorporates an amendment to it, this agreement will be respected by the tribunal. The modification or amendment may accrue to the advantage or disadvantage of third party intervenors. There are no ready examples of such modification or amendment but a question that may arise, in the event that such modification or amendment is made, is whether a tribunal, while interpreting it to accord as far as possible with the fundamental principles of international adjudication, has the authority not to apply the modification or amendment to the extent that it violates such fundamental principles in any respect. There is no reason to 16
(Chile/France) (1901), 15 UNRIAA at p. 315. The principle is dealt with in the 1875 Rules on Arbitration of the Institut de droit international (Art. 16). See Darby, International Tribunals (1904) p. 488. See also Costa Rica v. Nicaragua, decided by the Central American Court of Justice where the same view of the principle was expressed: Hudson, The Permanent Court of International Justice 1920-1942 (1943) pp. 64-6.
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deny the tribunal this authority, as the integrity of the adjudicatory system is an important fundamental value in international law. There have been many claims on intervention before various Mixed Arbitral Tribunals. Most of these tribunals were established after the first World War to settle claims arising out of the war.17 They did not provide for pure inter-state arbitration in the sense that states were the actual parties in cases, since individuals had standing before them, but they were inter-state in that they were created by national agreements. States provided by agreement between them a forum for consideration of their respective nationals' claims against the other state. This was the model for the Iran-US Claims Tribunal. But what is of significance is that individuals have standing before those MATs as a result of inter-state agreements which created genuinely international tribunals.18 The Rules of tribunals such as the Anglo-Austrian, AngloHungarian, and Anglo-Bulgarian Mixed Arbitral Tribunals allowed for third party proceedings where the "defendant claimed to be entitled to indemnity, or contribution or other right arising out of or connected with the subject matter of the claim against any other defendant or any person who is not at the time a party to the cause...". The rules of procedure of some of the MATs allowed any person with "a legitimate interest to intervene" in the case.19 Intervention was, thus, permitted in cases before many MATs. In the Ungarische Landes-Central Sprakassa Case20 it was held that intervention should be permitted on the basis of a juridical 17
Jurisdiction was granted to these tribunals by the Treaty of Versailles, Articles 296-7, 304-5, to hear claims by the nationals of allied or associated powers arising out of the exceptional war measures taken by Germany in respect of property or contractual claims. See Simpson and Fox, International Arbitration: Law and Practice (1959) p. 50; Wuhler, "Mixed Arbitral Tribunals", in Bernhardt (ed.), 2 Encyclopedia of International Law (1981) at pp. 142-6. 18 Brownlie agrees with this view: "The Individual before Tribunals Exercising International Jurisdiction", 11 ICLQ (1962) p. 701 ff. On MATs see Lauterpacht, The Function of Law in the International Community (1933) p. 188. 19 E.g., the Franco-German MAT Rules, Article 20, 21, 22; the HungarianCzech MAT Rules 29, 30. 20 (1927), 4 AD (1927-1928) p. 478. The Czechoslovak State was the respondent.
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interest, and that no other justification need be shown. Other cases required the intervener to show a legitimate interest, rather than a legal interest.21 In the Compagnie Internationale des wagons-lits Case22 intervention was allowed, despite party opposition after proceedings had been instituted, where the intervener had an interest in the property subject of the claim separate from that of the parties. The tribunal accepted that the intervener's interest did not need to coincide with that of the defendant, provided it arose out of the same subject matter. In that case both Germany and the Compagnie had an interest in the wagon-lits; Germany wanted indemnification, while the Compagnie sought to protect its property. In this case and the SA du charbonnage Frederic-Henri Case23 where again there was party opposition to the intervention, it was held to be sufficient if the intervener believed that it would suffer prejudice if the alleged facts were upheld by the tribunal. The tribunal permitted intervention on the basis of alleged, not proven, facts. Before the AustrianGerman Tribunal, established in 1957,24 intervention was allowed by any party "substantially interested in the outcome of a dispute between two parties", and the intervener was regarded as "on the side of a party whose interest was identical to his own".25 In the Levis & Levis & Veerman Case26 a request to intervene was rejected, where there were two cases with similar facts pending before the tribunal, and the second case was being deferred until the first had been decided. The plaintiff in the second case requested to intervene in the first, anticipating that the arbitral tribunal would act consistently in both cases. The tribunal held that it had no power to apply by analogy provisions with respect to intervention that applied to other international tribunals, in particular those of the ICJ, as they 21
E.g., Comte Andrassy v. Czechoslovak State, 7 Rec TAM p. 880. (1921), referred to in the Tunisia/Libya Continental Shelf Case (Intervention), 3 ICJ Pleadings p. 331. Germany was the respondent. 23 (1921), Decision of the French-German Tribunal, 1 ILR p. 227. 24 The Austrian-German Treaty of 15 June 1957: See Seidl-Hohenveldern, The Austrian-German Arbitral Tribunal (1972) p. 129. 25 The Krankenvesorgung der Bundesbahnbeantem, Frankfurt Case, Case No. 37, (1962) ibid. p. 146. 26 (1959), 28 ILR p. 587. FRG was the respondent. 22
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were applicable to states, not individuals.27 An individual must establish a legitimate interest to be permitted to intervene, which did not exist on these facts. The appropriate time to raise the relevant arguments was during the second case. Clearly the required interest was lacking, though intervention was available as a possibility. The proper procedure was consolidation, if at all, not intervention. 78 It would appear that in some cases intervention was permitted before MATs in spite of party opposition and on the basis of rules of procedure. It could be that the parties to the compromis in the rules of procedure as adopted agreed to intervention on the terms incorporated in the rules of procedure. This is a possible explanation. Then the consent thus given could not be withdrawn by specific opposition. Even in the case of MATs the general principle that consent of the parties to the instrument setting up the tribunal to intervention is necessary would apply as a rule. It is not a convincing argument that MATs are different from the usual inter-state tribunal or court because individuals are given locus standi before them.29 Indeed, the practice is reconcilable with the opposite view, as shown above. The fact that the issue of consent was not referred to by the tribunal does not mean that consent was not required. The existence of consent could very well have been assumed in the circumstances of the tribunal cases. In the case of arbitral tribunals which have an extended existence the above principles would be equally applicable, because they are arbitral tribunals. It is significant that the constitutive documents of the Iran-US Claims Tribunal contain no explicit reference to interventions,30 nor do the Rules of Procedure of the tribunal contain any reference to interventions,31 although it is conceivable that interventions may take place in relation to the kind of claims over 27
The distinction between this case and the practice of the ICJ is not apparent as the practice of the ICJ discussed below shows. 28 On consolidation see Rubino-Sammartano, International Arbitration Law (1990) p. 185, which deals with the Iran-US Claims Tribunal. 29 See Chinkin, Third Parties in International Law (1993) pp. 269-70. 30 See 1 Iran-US CTR (1983) passim. 31 See 2 ibid. (1984) pp. 405 ff.
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which the tribunal has jurisdiction. The absence of any reference to intervention means that the general principles stated above would apply and interventions would not be permitted in the absence of specific agreement between the parties to arbitration. The ICSID Convention in Chapter IV dealing with arbitration has no express provisions dealing with intervention. Therefore, the general principles referred to above would apply, as being implied.32 The UNCITRAL Model Law on International Commercial Arbitration, though a model for private international and transnational arbitrations also where states are involved, is often used as a basis for the settlement of disputes by international arbitral tribunals, viz., the Iran-US Claims Tribunal. It does not contain any reference to intervention. The implication, again, is that the general principles would apply in the absence of explicit incorporation or exclusion, as outlined above. In the case of standing or established courts, there is no reason to deny or question the application of the general principle in one form or other depending on the structure of the jurisdictional provisions of their statutes. In the case of ITLOS the only express provisions concerning intervention, whether in relation to one or other method of juridical settlement, are to be found in Articles 31 and 32 of the statute of the tribunal (in Annex VI of UNCLOS), which read as follows: Article 31 Request to intervene
1. Should a State Party consider that it has an interest of a legal nature which may be affected by the decision in any dispute, it may submit a request to the Tribunal to be permitted to intervene. 2. It shall be for the Tribunal to decide upon this request.
32
In two decisions (the Methanex Corp. Case and the United Parcel Service Case: see www.cyberus.ca/tweiler/naftaclaims) in ICSID arbitrations, under Chapter 11 of the NAFTA, interventions were permitted by virtue of the agreement of the parties to the ICSID Convention flowing from Article 1128 of the NAFTA which allows a party to the NAFTA to "make submissions to a tribunal on a question of interpretation of this Agreement (NAFTA)".
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3. If a request to intervene is granted, the decision of the Tribunal in respect of the dispute shall be binding upon the intervening State Party in so far as it relates to matters in respect of which that State Party intervened. Article 32 Right to intervene in cases of interpretation or application 1. Whenever the interpretation or application of this convention is in question, the Registrar shall notify all States Parties forthwith. 2. Whenever pursuant to article 21 or 22 of this Annex the interpretation or application of an international agreement is in question, the Registrar shall notify all the parties to the agreement. 3. Every party referred to in paragraphs 1 and 2 has the right to intervene in the proceedings; if it uses this right, the interpretation given by the judgment will be equally binding upon it.33
It is clear that it is expressly provided that states parties to the UNCLOS and, thus, to the statute of the tribunal, have a right to submit requests for intervention. The provisions further, by implication, permit only states parties to make such requests. The formulation of the provisions is to be interpreted in an exclusionary manner in keeping with the general principles relating to intervention. While it is not necessary that parties to a particular dispute submitted to the tribunal specifically agree to interventions, being a party to the UNCLOS signifies acceptance of the provisions that permit any state party to the UNCLOS to intervene in proceedings between or among two or more states parties before the tribunal and this is sufficient to provide the agreement between or among parties to proceedings that interventions by other states parties to the UNCLOS are contemplated. The circumstances in which intervention is permitted or states parties have a right to intervene are spelled out in Articles 31 and 32 and are therefore defined, the
33
See United Nations, The Law of the Sea (1983) p. 147. On intervention under the UNCLOS see Wolfrum, "Intervention in the Proceedings before the International Court of Justice and the International Tribunal for the Law of the Sea", in Gotz (ed.), Liber Amicorum Gunther Jaenicke-Zum85 (1998) p. 427.
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articles being subject to interpretation, inter alia, in the light of general principles relating to intervention. The general principle that there must be agreement, in whatever form or on whatever basis, between or among the parties to an arbitration, is, thus, respected in the UNCLOS and applied to the jurisdiction of a standing tribunal, in this case the ITLOS. It is the case that this principle applies basically to any standing international tribunal or court. The European Convention on Human Rights provides in articles dealing with intervention for limited intervention by states parties to the Convention in cases before the ECHR.34 The case of the ICJ is a good example of how the general principle has in fact been implemented. The statute of the ICJ has provisions dealing with intervention. Articles 62 and 63 make it clear that Article 62
1. Should a State consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. 2. It shall be for the Court to decide upon this request. Article 63
1. Whenever the construction of a convention to which States other than those concerned in the case are parties is in question, the Registrar shall notify all such States forthwith. 2. Every State so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.35
34
See Article 36 of the European Convention on Human Rights. Article 37 of the statute of the CJEC also permits interventions in appropriate circumstances. The Inter-American Convention on Human Rights does not seem to provide for intervention. For some arbitration treaties which provide for intervention by third parties see Chinkin, op. cit. note 29 pp. 267-9. See also Garner, "The New Arbitration Treaties of the United States", 23 AJIL (1929) pp. 595-602, 1 UN Systematic Survey for the Pacific Settlement of International Disputes (1928-48), passim. 35 I.C.J. Acts and Documents No. 5 (1989) p. 85. See Jessup, "Intervention in the International Court", 75 AJIL (1981) p. 903, Chinkin, "Third-party
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Under Article 63, in the case of the construction of a convention, locus standi to intervene is given to states parties to the convention, albeit on a condition. The ICJ not only has jurisdiction ratione personae to entertain interventions but must do so, as the provision gives states a "right" to intervene. In the Haya de la Torre Case,36 which was a sequel to the Asylum Case31 the Court recognized the right of Cuba to intervene in a case between Colombia and Peru on the basis that it was a party to the Havana Convention on Asylum of 1928 the interpretation of which was involved in the case. The right was recognized within narrow limits. While there is a "right" to intervene, the Court determines, as will be seen, whether the conditions for the incidence of the right exist both ratione materiae and in other respects and, thus, controls the recognition of the right. In the Nicaragua Case38 El Salvador sought to intervene at the stage at which preliminary objections to jurisdiction and admissibility had been raised on the basis that it was a party to multilateral conventions such as the UN Charter which were the subject of the case. The Court did not permit the intervention at that stage of the proceedings but not on the ground that El Salvador had no locus standi ratione personae, but on grounds connected with the substance of the intervention. It is clear that under Article 63 locus standi does not depend on the third state's signature of the statute of the ICJ or acceptance of jurisdiction as a second step under Article 36 of the statute. All that is required is being a party to the convention in issue. Under Article 62 there is no "right" to intervene as such but the intervenor is required to be a state. The question that has arisen is whether initially there is any other requirement such as a Intervention before the International Court of Justice", 80 AJIL (1986) p. 495. There is an interesting discussion of the law and Articles 62 and 63 of the ICJ statutes in Chinkin, op. cit. note 29 pp. 160-85. 36 1951 ICJ Reports pp. 76-7. 37 1950 ICJ Reports p. 266. 38 (Order), 1984 ICJ Reports p. 215. On this case see Sperduti, "Notes sur Fintervention dans le proces international", 30 AFDI (1984) p. 273, Sztucki, "Intervention Under Article 63 of the ICJ Statute in the Phase of Preliminary Proceedings: the 'Salvadoran Incident'", 79 AJIL (1985) p. 1005.
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"jurisdictional link" to establish locus standi, apart from any other requirements of an intrinsic nature that there may be. There are several cases which the ICJ decided in which claims to intervene were made under Article 62.39 In the Nuclear Tests Cases,40 in which Fiji sought to intervene in the cases brought by Australia and New Zealand against France, there was no jurisdictional link apart from signature of the statute between Fiji41 and France, one of the parties. Judge Ignacio Pinto referred to such a link but the case had become "moot", so that there was no case in which Fiji could intervene. Another member of the Court said that the state seeking to intervene "must be in a position in which it could itself bring the respondent before the Court".42 In the Tunisia/Libya Continental Shelf Case42 Tunisia and Libya specially agreed to ask the Court to lay down the principles and rules applicable to the determination of their continental shelf boundary, though the Court was not itself to determine the actual boundary. Malta was concerned about the likely effect on its own continental shelf claims. It had no jurisdictional basis on which it could have 39
On Article 62 in general see particularly Chinkin, loc. cit. note 35, Licari, "Intervention under Article 62 of the Statute of the I.C.J", 8 Brooklyn JIL (1982) p. 267, Stanczyk, "Permissibility of Intervention under Article 62 of the Statute before the International Court", 16 Polish YBIL (1987) p. 121, Jessup, loc. cit., note 35, Chinkin, op. cit. note 29 pp. 162-78, Rosenne, Intervention in the International Court of Justice (1993), Rosenne, 3 The Law and Practice of the International Court 1920-1996 (1997) pp. 1481 ff., Collier and Lowe, The Settlement of Disputes in International Law (1999) pp. 164 ff., Starke, "Locus Standi of a Third State to Intervene in Contentious Proceedings before the International Court of Justice", 58 Aust. LJ (1984) p. 383. It will be noted that Article 81 of the 1978 Rules of Court refer to "any basis of jurisdiction" between the intervening state and the parties. It must be recognized that, while the procedural requirement may be stated, a rule of procedure cannot change the substantive law of intervention under Article 62. 40 1974 ICJ Reports p. 320. In The Wimbledon Case (1923), PCIJ Series A No. 1, the PCIJ allowed Poland to intervene but said nothing about matters of principle. 41 Ibid. at p. 530. 42 Ibid. at p. 538 per Judge Jimenez d'Arechaga. 43 1981 ICJ Reports p. 3.
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instituted proceedings against Tunisia and Libya. The Court rejected Malta's application to intervene. It thought that Malta did not wish to be bound by the result of the case (indeed, Malta had expressly said this). Moreover, it held that Malta had not explained what was its legal interest and how it might be affected by a decision. The Court therefore did not have to give a decision about a jurisdictional link. In the Libya/Malta Continental Shelf Case44 Malta as a party opposed an Italian request to intervene in the case concerning the delimitation of the continental shelf, which Libya and Malta had submitted to the Court by special agreement. Malta argued that in a sense this was a "private" case between these two states and that this "privacy" would be lost by Italian intervention. The Court held that Italy could not intervene, because it had not demonstrated an interest of a legal nature which might be affected by its decision. In these two cases it was not decided whether a jurisdictional link was required. In the latter case the Court declined to decide the matter, although several judges expressed their views. A Chamber of the Court has subsequently rejected the necessity of showing the existence of a "jurisdictional link", as discussed in these two cases. In the Land, Island and Maritime Frontier Case (Application to Intervene)45 between El Salvador and Honduras Nicaragua requested the Chamber to be permitted to intervene. As the Chamber said, it might have to decide five issues concerning the frontier between two parties. As regards the land frontier, Nicaragua did not seek to intervene as this could not possibly affect it. The four other issues concerned the islands in the Gulf of Fonseca, the delimitation of the maritime frontier therein, the juridical status of the waters of the Gulf, and the status of and delimitation of the frontier in the waters beyond the Gulf. The Chamber permitted Nicaragua to intervene, but only as regards the question of the juridical status of the Gulf.46 The Court was considerably concerned about the 44
1984 ICJ Reports p. 3. On intervention in this case see McGinley, "Intervention in the International Court: the Libya/Malta Continental Shelf Case", 34 ICLQ (1985)p. 671. 45 1990 ICJ Reports p. 92. See the comment on the case in CLJ (1991) p. 216. 46 It was only in respect of that issue that it had a legal interest that might be affected by the decision.
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principle in the Monetary Gold Case41 that, if a third party's rights are the very subject matter in issue, the Court must decline to hear the case because the third party is not an actual party to the case and its relationship to intervention. On the question of the jurisdictional link the Chamber denied that the intervenor must show that there is a "jurisdictional link" between itself and the parties by reference particularly to Article 36 of the statute. The Chamber conceded that involvement in the proceedings by a third state could not normally take place without the consent of the parties but pointed out that: ... procedures for a "third" State to intervene in a case are provided in Articles 62 and 63 of the Court's Statute. The competence of the Court in this matter of intervention is not, like its competence to hear and determine the dispute referred to it, derived from the consent of the parties to the case, but from the consent given by them, in becoming parties to the Court's Statute, to the Court's exercise of its powers conferred by the Statute. There is no need to interpret the reference in Article 36, paragraph 1, of the Statute to "treaties in force" to include the Statute itself; acceptance of the Statute entails acceptance of the competence conferred on the Court by Article 62. Thus the Court has the competence to permit an intervention even though it be opposed by one or both of the parties to the case; as the Court stated in 1984, "the opposition [to an intervention] of the parties to a case is, though very important, no more than one element to be taken into account by the Court" (I.C.J. Reports 1984, p. 28, para. 46). The nature of the competence thus created by Article 62 of the Statute is definable by reference to the object and purpose of intervention, as this appears from Article 62 of the Statute.48
47
1954 ICJ Reports p. 19. 1990 ICJ Reports p. 133. Some writers incorrectly regard this case as ruling that consent is being avoided: see de Hoog, "Intervention under Article 62 of the Statute and the Quest for Incidental Jurisdiction Without the Consent of the Parties", 6 LJIL 1993 p. 17. The reference in the citation is to the Libya/Malta Continental Shelf Case, 1984 ICJ Reports p. 3. For the rejection of the concept of the "jurisdictional link" mooted in earlier cases now see also the Pulau Ligitan and Pulau Sipadan Case between Indonesia and Malaysia: 2001, Press Release, ICJ, 2001/28. 48
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The Court made it clear that consent to interventions on the part of the parties to a dispute came from being parties to the statute on their parts and not from an ad hoc consent given at the time of the proceedings. The Court did not deny the need for consent but found it in a state's being a party to the statute. Thus, it was also unnecessary that a jurisdictional link exist on the part of the intervening state in the form of the two-step consent to the contentious jurisdiction of the Court. It is also noteworthy that the Court did state that it could permit an intervention even if both, and not merely one, opposed it. In the case of both Articles 62 and 63 it is to be noted that the statute refers to qualified intervenors as "States" not as states parties to the statute of the ICJ. The implication is permissible that this reference covers any state, even if it is not a party to the statute. The matter has not come before the Court but it is to be noted that Article 36(1) itself does not confine the jurisdiction of the Court to parties to the statute necessarily, though it is arguable that the term "parties" in that provision is to be construed as "parties to the statute" and not "parties to the dispute". Even if this interpretation is accepted, the provisions of Articles 62 and 63 are quite clear— they give the Court jurisdiction in interventions over states as such and this jurisdiction is not restricted to states parties to the statute. The next question that arises is whether the intervening state is bound by the provisions of the statute and rules of the ICJ for the proceedings in which it intervenes, if it is not a party to the statute. The logical answer is that it is so bound by its acceptance of the Court's jurisdiction for the intervention to the extent that the statute and rules are applicable to it for the purpose of the proceedings. Intervention is not a substitute for contentious proceedings in any case. The intervenor, on its part, only acquires the right to be heard, not the other rights of a party to the case. Conversely, it does not acquire all the obligations of the parties to the proceedings, but only those pertinent to its intervention, clearly as determined by the Court and consonant with the provisions of the statute (and rules). It is to be noted that, for example, the Court in its judgment on the merits in the Land, Island and Maritime Frontier Dispute Case clearly stated that its finding that there was a condominium over the
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waters of the Gulf of Fonseca was not binding on the intervenor, Nicaragua.49 In regard to consent of the parties to intervention of the parties to the dispute there is no difference among arbitration, institutional arbitration and established court adjudication as to its requirement. Consent is always required. The difference lies in when and how that consent is given. In the case of institutionalized arbitration or adjudication by standing courts it is possible that the parties will be bound by a consent given before the proceedings are instituted or contemplated, indeed, long before, so that the consent cannot be revoked later.50 49
1992 ICJ Reports at p. 351. In the Libya/Malta Continental Shelf Case the Court, while rejecting Italy's intervention, expressly took note of the latter's continental shelf claims and said that it would in its judgment take account of the existence of other states having claims in the region and that it would in its decision expressly state that the decision did not prejudice Italy's declared interest: 1984 ICJ Reports at pp. 26 ff. In accord with this in the decision on the merits the Court stated: The delimitation contemplated by the Special Agreement is of course solely that between the areas of continental shelf appertaining to the Parties. It is no part of the task of the Court to define the legal principles and rules applicable to any delimitation between one or other of the Parties and any third State, let alone to indicate the practical application of those principles and rules to such delimitation. The Court is in fact aware of the existence of specific claims by a third State to areas which are also claimed by the Parties: these are the claims of Italy... The present decision must, as then foreshadowed, be limited in geographical scope so as to leave the claims of Italy unaffected, that is to say that the decision of the Court must be confined to the areas in which, as the Court has been informed by Italy, that State has no claims to continental shelf rights. The Court, having been informed of Italy's claims, and having refused to permit that State to protect its interests through the procedure of intervention, thus ensures Italy the protection it sought." (1985 ICJ Reports at pp. 24-6) 50
Collier and Lowe take a view that is contradictory to this, at least apparently: see op. cit. note 39, p. 165 note 193. In arbitration parties would be bound by an agreement in the compromis to permit intervention, even if at a later stage they oppose it individually or together, thus in effect conceding a "right" to intervention, although the right may be circumscribed by specific requirements.
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(2) Other Requirements In an early arbitration general principles of law relating to intervention were referred to and it was said that: ... certaines lois de procedure subordonnet la regularite de 1'intervention a la condition que 1'intervenant justife d'un interet juridique a la solution de proces, tandis que d'autres, le Code de procedure francais notamment, laissent au juge les pouvoirs d'appreciation les plus etendus, et sont interpretees par la jurisprudence en ce sens que 1'existence d'un interet materiel et de fait, ou meme d'un interet et de fait, ou meme d'un interet purement moral, est une cause suffisante de recevabilite...51
This "interet juridique" which is broadly defined has elsewhere in arbitration been described as "un interet legitime" (in English "a legitimate interest").52 Thus, in arbitration it was established that, apart from the consent of the parties to the arbitration being a condition for intervention, the intervenor had to satisfy the tribunal that it had a "juridical" or "legitimate" interest in the settlement of the dispute or which may be affected by the decision in the case. In the Societe anonyme "Chemins de fer Zeltweg-Wolfsberg et Unterdranburg-Woellan" Case interventions "presentees au nom des obligatoires" could not be admitted because of the absence of this legitimate interest.53 On the other hand, in the Guano Case the intervention of the Societe generale et la maison Leiden, Pumsel et Compagnie was admitted because of a legitimate interest on the part of the intervenor in the case between the parties on account of a contract with one of the parties, the tribunal holding that it "n'avait aucune raison de prononcer 1'econduction d'instance de la Societe
51
The Guano Case (Chile/France) (1901), 15 UNRIAA at p. 315-16. In the Societe anonyme "Chemins defer Zeltweg-Wolfsberg et Unterdranburg-Woellan" Case between Austria and Yugoslavia the tribunal used the term "interet juridique", as the tribunal did in the Guano Case: (1938), 3 UNRIAA at p. 1814. 52 The Greek Powder and Cartridge Co. Case (Greece v. Germany) (1958), 1 Entscheidungen at p. 238 (English at p. 136). 53 (1938), 3 UNRIAA at p. 1814.
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generate".54 The arbitration cases discussed at the beginning of the previous section also dealt with this issue and are relevant. The principle of "legitimate interest" is, in relation to intervention, thus, regarded as a general principle applicable to arbitrations which will be implied even if it is not explicitly stated. The legitimate interest was defined as not merely including "un interet materiel et de fait" but also "un interet purement moral". This gives the possible interest a very broad scope. Clearly whether there is the required legitimate interest is a matter for the appreciation of the tribunal. It also depends on the particular circumstances of the case. In the case of institutionalized arbitration (e.g., ICSID) or of standing courts (e.g., the ITLOS or ICJ) the principle would apply as a general principle of law, even where the relevant jurisdictional instruments are silent on the matter. But clearly also, whether in ad hoc arbitration, institutionalized arbitration or standing courts, express provisions may modify, define, or even exclude the general principle. Thus, insofar as Article 63(1) of the ICJ statute gives other states parties to a convention the construction of which is in question in the dispute the right to intervene, what has to be established is that the construction of a convention is in question and that the intervenor state is a party to it. No further "interest" need be proved. Further, the Court must recognize the right of a state to intervene, if these conditions are satisfied.55 The Court, however, must satisfy itself both that the construction of a convention is in issue and that the intervenor is a party to it. In the case of the ITLOS Article 32 of Annex VI of the UNCLOS (the ITLOS statute) gives states parties to the UNCLOS a right to intervene, where the interpretation or application of the UNCLOS is in question, and gives any state party to any international agreement the right to intervene, where the interpretation or application of the relevant agreement is in 54
(1901), 15 UNRIAA at p. 316. In the Haya de la Torre Case, 1951 ICJ Reports p. 71, the right of Cuba to intervene in a dispute between Colombia and Peru was recognized because it was clear that the construction of the Havana Convention on Asylum (1928) to which Cuba was a party was in issue. 55
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question. These are the only requirements for intervention both ratione materiae and ratione personae under Article 32, no other "interest" being relevant.56 Under Article 32 the decision relating to interpretation of the convention or treaty is binding on the intervening state. Under Article 62 of the ICJ statute and Article 31 of the statute of the ITLOS intervention is permitted where there is an "interest of a legal nature" which may be affected by the decision in the case. In the case of the ITLOS the decision of the tribunal in respect of the dispute is binding on the intervenor insofar as it relates to matters in respect of which the intervention took place. There is no such provision in Article 62 of the ICJ statute. In both cases the intervenor in the given circumstances has no right as such to intervention but its request is subject to the decision of the court. A reasonable construction of the provisions is that they do not mean that the tribunal has an unlimited discretion to refuse intervention or may act arbitrarily. What the court must do is to assess whether there is an "interest of a legal nature" and, if so, to grant the request for intervention. As the ICJ said in the Tunisia/Libya Continental Shelf Case: The Court observes that under paragraph 2 of Article 62 it is for the Court itself to decide upon any request for permission to intervene under that Article. The Court, at the same time, emphasizes that it does not consider paragraph 2 to confer upon it any general discretion to accept or reject a request for permission to intervene for reasons simply of policy. On the contrary, in the view of the Court the task entrusted to it by that paragraph is to determine the admissibility or otherwise of the request by reference to the relevant provisions of the Statute.57 56
See also Article 1128 of the NAFTA where there are specific requirements which obviously replace the requirement of "legitimate interest". In the case of ICSID arbitrations and the Iran-US Claims Tribunal, for instance, because the jurisdictional instruments are silent on the matter of interventions ratione materiae, the general principle of "legitimate interest" would apply. The same could be said of other courts such as the ECHR. 57 1981 ICJ Reports at p. 12.
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It is to be noted that the term used in the above provisions is "legal" interest and not "legitimate" interest. This may be a difference without a distinction, or it may mean that the above provisions include a narrower concept than does the general principle evolved in arbitration cases. There may be a question as to whether "un interet purement moral", which was referred to in the Guano Case, is included in the concept of "an interest of a legal nature". However that may be, the provision in Article 62 of the ICJ statute has been applied so as to permit intervention and also to exclude it. In the Land, Island and Maritime Frontier Dispute Case58 Nicaragua was permitted to intervene but only in relation to four of the five issues which were raised in the case. In its judgment on the application for permission to intervene the Chamber first described the difficulties which followed from the differences between the principal parties regarding the interpretation of the special agreement. In due course it addressed the question of the nature of Nicaragua's interest of a legal nature which might be affected by the decision in the case which Nicaragua had to show. It considered the possible effect on legal interests asserted by Nicaragua of its eventual decision on each of the different issues which might fall to be determined. It observed that: If a State can satisfy the Court that it has an interest of a legal nature which may be affected by the decision in the case, it may be permitted to intervene in respect of that interest. But that does not mean that the intervening State is then also permitted to make excursions into other aspects of the case.59
This was recognized by Nicaragua with regard to the land frontier. The Chamber then explained that, since the scope of any permitted intervention had to be determined, the Chamber had to consider the matters of the islands, the situation of the waters within the Gulf, the situation of the waters outside the Gulf, and the possible delimitation of the waters outside the Gulf. Whether all those matters were 58 59
1981 ICJ Reports at p. 92. Ibid, at p. 116.
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raised by the wording of the special agreement was itself disputed by the parties. The Chamber was satisfied that Nicaragua had demonstrated the existence of a legal interest which might be affected by the decision in the case in so far as concerned the waters of the Gulf but not in respect to any other matters raised by the special agreement. In the Tunisia/Libya Continental Shelf Case60 Tunisia and Libya by special agreement requested the Court to lay down the principles and rules applicable to the determination of their continental shelf boundary, though the Court was not itself to determine the actual boundary. Malta was concerned about the likely effect on its own continental shelf claims and, in fact, it had no jurisdictional basis on which it could have instituted proceedings against Tunisia and Libya. The Court rejected Malta's application to intervene. Among other things, it held that Malta had not explained what was its "legal interest" and how it might be affected by a decision. In the Libya/Malta Continental Shelf Case,61 Malta opposed an Italian request to intervene in the case concerning the delimitation of the continental shelf, which Libya and Malta had submitted to the Court by special agreement. Malta argued that in a sense this was a "private" case between these two States and that this "privacy" would be lost by Italian intervention. The Court held that Italy could not intervene, because it had not demonstrated an "interest of a legal nature" which might be affected by its decision. However, the Court expressly took note of Italy's continental shelf claims and said that it would in its judgment take account of the existence of other states having claims in the region and that its decision would expressly state that it did not prejudice Italy's declared interest. In both these cases the Court took the position that a general interest in the principles the Court might apply in determining the case was insufficiently specific. In the Pulau Ligitan and Pulau Sipadan Case62 between Indonesia and Malaysia, the Court considered the arguments of the parties that the application to intervene could not be granted for the 60 61 62
1981 ICJ Reports at p. 3. 1984 ICJ Reports at p. 3. ICJ Press Release 2001/28 (2001 ICJ Reports).
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reason, inter alia, that the Philippines, the intervenor, had not established the existence of an "interest of a legal nature" justifying the intervention sought. The Court recalled that the Philippines did not seek to intervene in the case, because it had a territorial interest on Sipadan and Ligitan islands, but because it believed that its claim of sovereignty over North Borneo might be affected by the Court's reasoning or interpretation of treaties in issue in the dispute between Indonesia and Malaysia. The Court took the view that the interest of a legal nature to be shown by a state seeking to intervene was not limited to the dispositif alone of a judgment but might also relate to its reasons. It went on to consider the question whether the interest invoked by the Philippines might be affected within the sense of Article 62 of the statute. It noted that, in outlining its claim, the Philippines had emphasized the importance of a document dated 22 January 1878 by which the Sultan of Sulu, with whom title, at least to part of Sabah (North Borneo) lay, had made a grant in that part to Messrs. Overbeck and Dent (which grant did not include Pulau Ligitan and Pulau Sipidan). This instrument, according to the Court, was said by the Philippines to be its "primal source" of title in North Borneo and was interpreted by it as a lease and not as a cession of sovereign title. The Court, however, found that neither Indonesia or Malaysia relied on the 1878 grant as a source of title to Ligitan and Sipadan islands. After considering other instruments adduced by the Philippines in support of its claim, the Court observed that as regards none of them had the Philippines been able to discharge its burden of demonstrating that it had an interest of a legal nature specific to it that may be affected, within the meaning of Article 62, by reasoning or interpretations of the Court in the main proceedings. The Court said that either such interests formed no part of the arguments of Indonesia and Malaysia or those parties' reliance on those arguments did not bear on the issue of retention of sovereignty by the Sultanate of Sulu in respect of its claim to North Borneo. Accordingly, it held that, notwithstanding that some of the objects indicated by the Philippines for its intervention were appropriate, it could not grant the application for intervention. It added, however, that it remained cognizant of the positions stated before it by Indonesia, Malaysia and the Philippines.
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The cases decided by the ICJ on intervention under Article 62 show that it takes a rather strict view of the requirement of legal interest. Nevertheless, its approach to the issue of legal interest provides a precedent for the interpretation of that concept in other instruments or under general principles of law. (3) Scope and Procedures (a) In arbitral procedure it is well established that the intervenor may not interfere with or change the pleas or the issues raised in the main proceedings. Thus, the intervention is admitted insofar as its object does not conflict with those issues or go outside of them. In Office francais v. Office allemand the Franco-German Mixed Arbitral Tribunal said: Attendu que s'agissant d'une action qui tend a etablir 1'existence d'un accord passe entre deux parties, il est manifeste qu'un tiers, etranger au dit accord, ne saurait valablement intervenir au proces, a moins d'adopter sans modification les conclusions de 1'une ou de 1'autre partie relativement a la teneur dudit accord; qu'il s'ensuit que les conclusions prises dans la presente affaire par la succursale de la Banque I.R.P. des Pays autrichiens ne sont recevables qu'en tant qu'elles concordant avec celles du demandeur; ...63
It also follows from this that, as the Arbitral Commission on Property, Rights and Interests in Germany said, it ... is a principle that a party intervening on behalf of one of the litigants must restrict itself to supporting the litigant's submissions, and is not entitled to submit new submissions or submissions differing from the main application.. ,64
(b) Closely connected with this principle relating to the scope of the intervention is the need for the object of the intervention not to be improper. The ICJ dealt directly with this principle in at least two cases. In the Land, Island and Maritime Frontier Dispute Case, the 63 64
1922, 1 Receuil TAM at p. 921. Kingdom of the Hellenes v. FRG (1958), 1 Entscheidungen at 172.
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Chamber of the Court refused to regard as improper the object of informing the Court of the nature of the legal rights of Nicaragua, the intervenor, which were in issue. The Court thought that that seemed to accord with the function of intervention. The Chamber concluded its judgment by stating: ... it appears appropriate to give some indication of the extent of the procedural rights acquired by the intervening State as a result of that permission (to intervene). This is particularly desirable since the intervention permitted relates only to certain issues of the many submitted to the Chamber. In the first place... the intervening State does not become a party to the proceedings, and does not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law. Nicaragua, as an intervener, has of course a right to be heard by the Chamber. That right is regulated by Article 85 of the Rules, which provides for submission of a written statement, and participation in the hearings ... The scope of the intervention in this particular case, in relation to the scope of the case as a whole, necessarily involves limitations of the right of the intervener to be heard. An initial limitation is that it is not for the intervener to address arguments to the Chamber on the interpretation of the Special Agreement... because the Special Agreement is, for Nicaragua, res inter alias acta.65 In the case Honduras, one of the parties, protested against the making of formal conclusions by Nicaragua. The Court stated: the Chamber must emphasize that States engaged in proceedings before the Court or a Chamber are under a duty to conform with all decision as to procedure, which the court is specifically empowered to make by Articles 30 and 48 of its Statute. At the same time, in the present case, in which questions of the legal status of waters within the Gulf have been presented by the Parties as closely bound up with the status of the waters outside the Gulf (and, in the presentation of Honduras, with questions of delimitation), the Chamber considers that no useful purpose would be served by endeavouring to single out in the present Judgment which of the contentions of Nicaragua were 65
(Application to Intervene) 1990 ICJ Reports at p. 135.
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squarely within the limits of its permitted intervention, and which might be said to have gone beyond those limits. The chamber has taken account of the arguments of Nicaragua only where they appeared to it to be relevant in its consideration of the legal regime of the waters of the Gulf of Fonseca. The same approach has been adopted in relation to the "formal conclusions" presented by Nicaragua... Since Nicaragua has not, by being admitted to intervene, become a party to the case, the Chamber does not see in those conclusions any definition of the petita reflecting the Chamber's mission. These conclusions were presented... as being "to aid the Chamber", and it is on that basis that the Chamber has taken note of them, to the extent that they relate to the permitted object of the intervention.66
The second case in which the question of object arose was the recently decided Pulau Ligitan and Pulau Sipidan Case referred to earlier. There the issue was raised by the parties that the object of the Philippine intervention would be inappropriate. The Court held against the intervention on the ground that the intervenor lacked the required legal interest but did address the matter of appropriate object and its relevance in its judgment by stating that only the first of the two objects adduced by the Philippines was appropriate.67 (c) A matter of some importance related to the appropriate time for intervention in a case. For instance, while it may be proper to permit intervention when the merits are being taken up, it may be too early to permit that intervention at an earlier stage before the merits are addressed. For this reason a premature intervention will be refused by the tribunal. The situation came up before the ICJ in the Nicaragua Case68 between Nicaragua and the USA. The Court held that at the stage when issues relating to jurisdiction and admissibility had been raised and needed to be addressed El Salvador's application to intervene could not be accepted. The Court said: 2. Whereas the Declaration of Intervention of the Republic of El Salvador, which relates to the present phase of the proceedings, 66 67 68
1992 ICJ Reports at p. 581. ICJ Press Release 2001/28. (Order), 1984 ICJ Reports at p. 215.
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addresses itself also in effect to matters, including the construction of conventions, which presuppose that the Court has jurisdiction to entertain the dispute between Nicaragua and the United States of America and that Nicaragua's Application against the United States of America in respect of that dispute is admissible; 3. Whereas the Court notes that in its Declaration of Intervention the Republic of El Salvador "reserves the right in a later substantive phase of the case to address the interpretation and application of the conventions to which it is also a party relevant to that phase";... THE COURT (ii)... Decides that the declaration of intervention of the Republic of El Salvador is inadmissible inasmuch as it relates to the current phase of the proceedings brought by Nicaragua against the United States of America, ...69
It is clear that, although this decision has been criticized, the Court was not rejecting the intervention outright but was merely stating that it had been requested at the wrong point in the proceedings in the light of the content of the intervention. It was possible, as a consequence, for the application for intervention to be filed and considered by the Court after, and in the even that, it decided that it could proceed with the examination of the merits. The decision was on a procedural point rather than a rejection of the intervention in substance. (d) It is also not a requirement that a dispute be defined in prior negotiations before an application can be made for permission to intervene, because the function of intervention is something wholly different from the determination of a further dispute between the state seeking to intervene and one or both of the parties.70
69
Ibid, at p. 216. See the Land, Island and Maritime Frontier Dispute Case, 1990 ICJ Reports at pp. 113-14. 70
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(e) A Chamber of the ICJ has also held that, where a question of intervention is raised by a third-party in a case brought before it, in the case of the ICJ, the Chamber and not the full Court must decide whether to permit the intervention.71 The basic principle involved is that the tribunal to which the dispute is submitted, as constituted for the hearing of the case, is the competent authority to decide on the admissibility of interventions. (4) The Special Case of the CJEC72 Article 37 of the statute of the CJEC provides: Member States and institutions of the community may intervene in cases before the Court. The same right shall be open to any other person establishing an interest in the result of any case submitted to the Court, save in cases between Member States, between institutions of the Community or between Member States and institutions of the Community. Submissions made in an application to intervene shall be limited to supporting the submissions of one of the parties.
Unlike the case of intervention before the ICJ there have been many claims to intervene before the CJEC. Some comparison may be made with the position in the ICJ. First, claimants to intervene before the CJEC are not restricted to states as they are before the ICJ. Community institutions and individuals also have such rights. However, the rights of member states and Community institutions are greater than those of individuals. On the other hand, the states parties to the EU Treaty have consented to intervention under Article 37. 71
Ibid. at p. 3 On intervention before the CJEC, see, e.g., Valentine, The Court of Justice of the European Communities (1965) pp. 57-60, Brown and Jacobs, The Court of Justice of the European Communities (1983) pp. 211-12, Brinkhorst and Schermers, Judicial Remedies in the European Communities (1977) pp. 252-7, Usher, European Court Practice (1983) pp. 289—303, Lasok, The European Court of Justice, Practice and Procedure (1984) pp. 96-114, Chinkin, op. cit. note 29 pp. 218-25. 72
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Under Article 37 member states and Community institutions can intervene in any case, and it is not specified that they need have an interest in the outcome of the case. Membership in the European Communities, or their constitutional position within them gives them the required interest. In Roquette freres v. The Council the European Parliament successfully intervened in a case against the Council.73 The case concerned a regulation which the Parliament maintained had been adopted by the Council without regard to the consultation procedures required by Article 43 of the Treaty of Rome. The Council argued that the Parliament had made the observance of the proper procedure impossible by its own behaviour. The Court concluded that the Council had not exhausted all the ways in which it could have obtained the Parliament's opinion, and, therefore, had breached a mandatory procedural requirement. The Regulation was therefore held to be void. The Court maintained the balance of power between the Community institutions constituted by the Treaty of Rome. Both the overall Community interest and the particular interest of the European Parliament were recognized by the grant of permission to intervene. Thus, it is clear that the right of intervention is open to all Community institutions and is not limited to those institutions entitled to bring a direct action for annulment or to submit observations on a reference for a preliminary ruling.74 Individuals, on the other hand, cannot intervene in cases between member states, between member states and institutions of the Community, or between Community institutions. Neither can they intervene in actions for preliminary rulings under Article 234 (ex 177), as these are not technically cases before the Court. In cases where individuals may intervene they must demonstrate that they have an interest in the result of the case. Natural or legal persons under Article 34 of the ECSC statute also had to establish an interest in the case. Article 37 made it quite clear that intervention could always have only one purpose: to support the submissions of one of the parties. Intervention is not therefore available to protect 73 74
[1980] ECR p. 3333. Usher, op. cit. note 72 p. 291.
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the interests of third party individuals, as such. They must be shared by one of the parties if they are to be protected. There have been a number of cases before the CJEC brought by members of the staff and concerning staff matters, where individuals, or professional associations acting on their behalf, have been able to put their case to the Court.75 The Court decided that, because Article 91 of the Staff Regulations does not allow for a direct action by a Staff Association, intervention was the appropriate method by which Associations could receive a hearing.76 These cases consequently raised the issue of who were "other persons" for the purposes of intervention. The Court took a liberal attitude on this subject rather than relying exclusively upon the technicalities of legal personality. It held that a body may intervene, provided it is sufficiently independent and responsible to function as a separate entity.77 This view had been carried over into cases not concerning staff matters. For example, in Societe anonyme generale sucriere v. The Commission the Court held that bodies not having legal personality may be permitted to intervene if they display the characteristics which are at the foundation of such personality.78 The major characteristics were said to be autonomy and responsibility. In that case, although the National Consumers' Union of Italy was not a legal person under the Italian Civil Code, its role in protecting and representing the interests of Italian consumers was sufficient to allow it to intervene in a number of joined cases. Other similar successful claimants to intervene include unincorporated associations, professional bodies, and trade organizations.79 The CJEC has generally been flexible in its approach towards the status of claimants to intervene. In particular, a non-member state has been allowed to do so. Non-members cannot claim the 75
See EU Treaty Article 236 (ex 179) as interpreted by Articles 90 and 91 of the Staff Regulations of Officials. 76 E.g., Syndicat general du personnel v. The Commission [1974] ECR p. 933. 77 Lassalle v. The European Parliament (1964) 10 ECR p. 57. 78 Societe anonyme generale sucriere v. The Commission [1973] ECR p. 1465. 79 See Lasok, op. cit. note 72 p. 98.
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privileged position of member states under Article 37 and do not share the member's common interest in the operation of the EU (EC). However, the Court has accepted that, although it is unusual for a non-member state to apply to intervene, such third state may have an interest in the result of a case in the same way as "other persons". In the Chris Foods Case80 Dominica, a non-member, was permitted to intervene in a case concerning decisions of the Commission authorizing the United Kingdom not to apply Community treatment to fresh bananas originating in certain dollararea countries and in free circulation in the other member states. Dominica indicated that it wished to intervene to support the Commission's conclusions. The Commission informed the Court that its decision was intended to protect the traditional UK market for bananas imported from ACP countries,81 including Dominica, and that Dominica therefore had an interest in intervening. This procedural approach reflects the reality that decisions of the Communities' institutions impact upon non-members as well as members and that the former should be able to express their interests before the Court.82 The CJEC has been ready to acknowledge that disputes brought before it impinge upon the concerns of entities of various kinds other than the parties.83 The statute of the CJEC presents a variety of potential claimants to intervene, and the Court has recognized this. The statute of the ICJ, on the other hand, limits the circumstances in which a state may intervene and excludes the possibility of effect being given to individual interests. 80
[1983] ECR p. 417. African, Caribbean, and Pacific States who are parties to the Lome Conventions; see, e.g. the Fourth ACP-EEC Convention, Lome, Togo, 15 Dec. 1989, 29 ILM (1990) p. 809. 82 It also accords with the substantive provisions of the Treaty of Rome, and decisions of the Court that the European Community has the capacity to enter into agreements with third states, and to co-operate with third states in establishing functional organizations: e.g., Draft Agreement Establishing a European Laying-Up Fund for Inland Waterway Vessels Case [1977] ECR p. 741, R. & V. Haegeman v. Belgium [1974] ECR p. 449. 83 See Valentine, op. cit. note 72 p. 56, Lasok, op. cit. note 72 p. 34. 81
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Individuals and "other persons" must, however, show an interest in the result of the case, and of course, their submissions must support the submissions of one of the parties.84 An applicant to intervene must support the conclusions reached by one of the parties against the conclusion of the other, but is not limited to making the same arguments as the parties. Additional arguments that tend towards that particular party's preferred outcome are admissible. Closely connected to the purpose of the intervention is the requirement that the applicant have an interest in the result of the case. The Court has held that the intervener's interest must be direct and real. An abstract interest is not sufficient. Legal and economic interests have been deemed sufficient, while a moral interest has not.85 However, while the Court has not accepted that any asserted interest is sufficient to justify the claim, it has not been particularly restrictive. For example, in Fruit en Groentenimporthandel v. The Commission86 the application to intervene was resisted by the parties on the grounds that the intervention did not support either of their submissions, but was concerned with the potential outcome. The Commission had decided that an agreement between the parties relating to the sale of citrus fruit imported into the Netherlands constituted an infringement of Article 85(1) of the Treaty of Rome, and had ordered the applicants to bring the infringements to an end. The applicants sought to have the Commission's decision annulled. Fruitunie, an importing firm, made an application to intervene on the basis that the annulment of the decision would compromise its business. Allowing the agreement to continue would prevent the intervener from operating independently as an importer, and would restrict its freedom of supply. Its asserted interest was therefore in the validity or otherwise of an agreement to which it was not a party, 84
Lemmerz-Werke GMBH v. High Authority [1965] ECR p. 835. See also Usher, op. cit. note 72 p. 293. 85 See Mrs. P. v. The Commission [1979] ECR p. 3299, where a divorced wife of a community official applied for a widow's pension after his death and his mother applied to intervene on the grounds, inter alia, that she had a "moral interest" in seeing that the former wife was not recognized as his widow. This basis for intervention was rejected: see Lasok, op. cit. note 72 p. 106. 86 [1974] ECR p. 1031.
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and in which it had no direct legal interest. Restrictive trade practices under the Treaty had given rise to a number of similar third party claims, based on the economic interests of the intervening parties. In the case the Court gave a liberal interpretation to Article 37, deciding that the intervener's interest lay in the advantages it would have in the operation of the Commission's decision. This amounted to support of the Commission's submission. Intervention was allowed in both the main proceedings and in preliminary interim proceedings, as even a short-term operation of the agreement would affect its interests. 87 The most important difference between the ICJ and the CJEC is that individuals are not excluded from intervening before the latter. Although individuals do not have an automatic right of intervention as do member states and Community institutions, there is a recognition that the decisions of the CJEC can impact upon individuals. Insofar as intervention is based on the provisions of the constitutive treaties of the CJEC and its statute, the basis for such intervention is the consent of the member states, not particularly of the parties to the litigation. But insofar as the parties to litigation must by implication accept the terms of the statute and constitutive instruments, if they submit disputes to the Court or are subject to its jurisdiction, they have in fact consented to the provisions relating to intervention incorporated in those instruments. There is, thus, strictly no problem with consent as the basis of the jurisdiction over interventions.88 What is extraordinary is the content of the facility to intervene. B. INTERIM MEASURES International tribunals generally have an incidental jurisdiction to order interim or provisional measures in cases submitted to them. In the case of this incidental jurisdiction it is necessary not only to 87
The effect of intervention is also special, including the result that the intervenor is bound by the judgment: see Chinkin, op. cit. note 29 pp. 223-4. See also the Hilti Acttiengesellshaft Case, [1990] ECR II—p. 163. 88 Chinkin, op. cit. note 29 pp. 224-5, takes a different view.
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know the basis for such jurisdiction, i.e., whether a tribunal has such a jurisdiction in a given case, but also to identify the broad content or extent of the jurisdiction, including the effect of its exercise, because the jurisdiction to order interim measures is only meaningful in relation to its content, extent and effect. Thus, there are three questions to be addressed: (1) Does the tribunal have jurisdiction to order interim measures and what is its basis? (2) What are the principles governing the exercise of the jurisdiction to order interim measures? (3) What is the effect of an order providing for interim measures made in the exercise of this jurisdiction? (1) Basis of Jurisdiction The first issue that arises concerns the source of the authority of a tribunal to order interim measures. Where there is express provision in the instruments setting up the tribunal, whether the tribunal is arbitral or a standing court, such provisions would govern the jurisdictional authority to order interim measures. Most standing courts have provisions relating to interim measures. Thus Article 41 of the ICJ statute gives the Court power to order interim measures. It states: The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.89 89
Articles 73 to 78 of the 1978 Court Rules lay down procedures relating to provisional measures and their invocation. On the international arbitral practice on interim measures of protection see Mendelson, 46 BYIL (1972-3) p. 259, Dumbauld, Interim Measures of Protection in International Controversies (1932), Guggenheim, Les Mesures provisoires de procedure Internationale et leur influence sur le developpement de droit des gens (1931), Elkind, Interim Protection: A Functional Approach (1981). While many agreements providing for the peaceful settlement of disputes contain express terms relating to interim measures, orders on them are infrequent.
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The UNCLOS provides in Article 290 in connection with compulsory settlement procedures that: If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.90 The EU Treaty provides in the current Articles 242 and 243 that: Article 242 (ex Article 185) Actions brought before the Court of Justice shall not have suspensory effect. The Court of Justice may, however, if it considers that circumstances so require, order that application of the contested act be suspended. Article 243 (ex Article 186) The Court of Justice may in any cases before it prescribe any necessary interim measures. Compromis submitting disputes to arbitration and constitutive instruments of institutionalized arbitral tribunals, such as ICSID, may or may not have such provisions. In the case of the ICSID Convention Article 47 provides in regard to arbitration that: Except as the parties otherwise agree, the Tribunal may, if it considers that the circumstances so require, recommend any provisional measures which should be taken to preserve the respective rights of either party. Care has been taken to distinguish provisions in rules of a tribunal from the provisions in the jurisdictional instruments of the tribunal. The former cannot as such change the provisions relating to interim 90
Article 25 of the statute of the ITLOS provides: In accordance with Article 290 (of UNCLOS) the Tribunal and its Sea-Bed Disputes Chamber shall have the power to prescribe provisional measures.
See also Article 292 of the UNCLOS.
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measures in the latter, nor can they affect the general principles of law relating to such measures where they are applicable, in the event, for example, the jurisdictional instruments are silent on the matter. Rules are subordinate to the jurisdictional instrument and general principles and can only be effective to the extent that they are consistent with the provisions of such instruments and general principles. Thus, the provisions of Article 26 of the rules of procedure of the Iran-US Claims Tribunal are of this nature, the jurisdictional instruments being silent on the matter of interim measures.91 The silence of jurisdictional instruments, such as those of the Iran-US Claims Tribunal, raises the subsidiary question what principles would govern the ordering of interim measures in these circumstances. It is clear that in the absence of a contrary intention expressed in the jurisdictional instruments, the general principles of law relating to interim measures would apply, which include the
91
See 1 Iran-US CTR, passim. The Claims Settlement Declaration (CSD) of 1981 did state in Article 111(2) that the tribunal should conduct its business in accordance with the UNCITRAL model arbitration rules, except as modified (1 ibid. p. 10). Article 26 of those rules, which was adopted without change by the tribunal, provides: 1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject-matter of the dispute, including measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods 2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security of the costs of such measures. 3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement. (2 ibid. p. 429) These are consistent with general principles to the extent that they merely provide for the taking of interim measures without defining their content. It is also clear that Article 111(2) of the CSD did not purport to affect the general international law relating to interim measures by permitting the tribunal to change these, rather than implement them, through adoption of rules of procedure.
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authority to order interim measures of protection. As was stated by the Iran-US Claims Tribunal, This Tribunal has an inherent power to issue such orders as may be necessary to conserve the respective rights of the Parties and to ensure that this Tribunal's jurisdiction and authority are made fully effective.92
There is an inherent power in tribunals to order interim measures, which include measures as envisaged by the Iran-US Claims Tribunal in that statement in its judgment. The power, however, is broader, as will be seen. Arbitral tribunals have proceeded on the assumption that they have jurisdiction to issue orders on interim measures even in the absence of express provision in the compromis or constitutive instruments.93 The scientific literature on the subject reflects the same view. Thus, in the Northern Cameroons Case (Preliminary Objection) Judge Fitzmaurice in a separate opinion stated in dealing with the incidental jurisdiction, inter alia, to decree interim measures: "Although much (though not all) of this incidental jurisdiction is specifically provided for in the Court's Statute,..., it is really an inherent jurisdiction, the power to exercise which is a necessary condition of the Court—or any court of law— being able to function at all."94 A question that has confronted the ICJ and also the Iran-US Claims Tribunal concerns the relationship between jurisdictional authority to decide the merits and jurisdiction to decree interim measures. The question may be framed as whether in order that a tribunal have jurisdiction to order interim measures it must also have 92
The E-Systems, Inc. Case (1983), 2 Iran-US CTR at p. 57. See, apart from the judgments of the Iran-US Claims Tribunal, e.g., the Compagnie d'electricite de Sofia et Bulgarie Case (1923), 2 Rec. TAM at pp. 926-7, Ungarische Erdgas A.G. v. Etat romain (1925), 5 Rec. TAM at p. 955, the Petrimoine Giuseppe Camino Case (No. 266), France v. Italy (1960), 13 UNRIAA at p. 451. 94 1963 ICJ Reports at p. 103. See also Elkind, op. cit. note 89 pp. 162-3, Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) p. 269, Dumbauld, op. cit. note 89 pp. 143-4, 181. Contra Sztucki, Interim Measures in the Hague Court (1983) pp. 61-67. 93
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jurisdiction to decide the merits of the case or whether something less is required. There are several possible approaches which have been mooted in the ICJ of which the last referred to here has been accepted by the Court. The first is that the Court must have a clearly established jurisdiction. The view was expressed by dissenting judges (though not the Court itself) in the Anglo-Iranian Oil Co. Case95 by dissenting Judge Forster in the Nuclear Tests Cases96 and in the separate opinion of Judge Morozov in the Aegean Sea Continental Shelf Case91 This view is, however, in conflict with the view taken by the Court discussed below. A second possible view is that the question of jurisdiction is irrelevant to the ordering of interim measures. Interim measures can be ordered irrespective of any jurisdictional issues. The view has not been accepted either by the Court or by any of its judges. A third test is that it must be reasonably probable that the Court has jurisdiction. This test was suggested in individual opinions in cases such as the Anglo-Iranian Oil Co. Case98 and the Icelandic Fisheries Jurisdiction Case.99 A fourth approach regards the question of jurisdiction as only one of the many circumstances to be considered. Judge Jimenez d'Arechaga suggested this in the Nuclear Tests Cases100 and the Aegean Sea Continental Shelf Case,101 basing his view on the belief that the Court's power, in respect of interim measures, is based on Article 41 of the statute and not on the subsequent jurisdictional instruments of the parties. Lastly, there is the "prima facie" test. Judge Lauterpacht suggested, in the Interhandel Case,102 that there must be an instrument 95
1951 ICJ Reports at p. 89. 1973 ICJ Reports at p. 99. 97 1976 ICJ Reports at p. 3. 98 1951 ICJ Reports at p. 97 per Judges Winiarski and Badawi Pasha dissenting. 99 1972 ICJ Reports at p. 21 ff. per Judge Padilla Nervo dissenting. 100 1973 ICJ Reports at p. 143. 101 1976 ICJ Reports at p. 16. 102 1957 ICJ Reports at p. 118-19. 96
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which prima facie confers jurisdiction on the Court and which contains no reservation which obviously excludes the dispute from that jurisdiction. This test was adopted by the Court in the Icelandic Fisheries Jurisdiction Case103 and Nuclear Tests Cases.104 In the Nicaragua Case105 Nicaragua attempted to found jurisdiction on the two states' optional clause declarations. Though the Court later held that it had no jurisdiction on this basis, it made an order indicating interim measures before considering the question of jurisdiction. It said that it need not satisfy itself as to its jurisdiction before so doing, but it must find, as it had done in the case, that there was a prima facie basis for it. In the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria, the Court said that it "may not indicate provisional measures unless the provision invoked by the Applicant appears, prima facie, to afford a basis on which the jurisdiction of the Court might be founded".106 A similar approach was taken by the ICJ in the Breard Case101 and the La Grand Case.108 In this connection what is important is that there must be a prima facie basis for the Court to proceed to decide the merits of the case. Thus, conversely, if it is clear that the case is inadmissible, 103
1972 ICJ Reports at p. 12. 104 1973 ICJ Reports at p. 99. See also the Case Concerning the Arbitral Award of 31 July 1989, 1990 ICJ Reports p. 64, and the Passage through the Great Belt Case, 1991 ICJ Reports p. 12, which was settled. The Court avoided the issue in the Aegean Sea Continental Shelf Case, 1976 ICJ Reports p. 3, because it took the view that it was not called upon to prejudge jurisdiction over the merits, in fact declining to make an order for other reasons. 105 (Provisional Measures) 1984 ICJ Reports p. 169. See on this case, Malloy, "Developments in the International Court of Justice: Provisional Measures in the Nicaragua Case", 6 NYJICL (1984) p. 55, Tama, "Nicaragua v. United States: the Power of the International Court of Justice to Indicate Interim Measures in Political Disputes", 4 Dickinson JIL (1985) p. 65. 106 1996 ICJ Reports at p. 21. 107 Order of 9 April 1998, 1998 ICJ Reports at p. 255. 108 Order of 3 March 1999, 1999 ICJ Reports at p. 15. On the Breard Case and the La Grand Case see Rieter, "Interim Measures by the World Court to Suspend the Execution of an Individual: the Breard Case", 16 Neth. Quarterly HR (1998) p. 475, Addo, "Interim Measures of Protection for Rights under the Vienna
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even if it had jurisdiction, the Court cannot issue orders for interim measures. In the Request for Examination of the Situation Case,109 New Zealand sought the indication of interim measures in the context of its claim that proposed French underground nuclear tests fell within the terms of paragraph 63 of the 1974 judgment, which stated that "if the basis of this judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute". Part of the basis of the judgment was the obligation which the Court had found that France unilaterally made not to engage in atmospheric testing. The Court found that, because the case concerned underground testing, it had no bearing on the 1974 judgment, which was confined to atmospheric testing, and dismissed the New Zealand request in limine. It said that it became unnecessary to discuss the possibility of the existence of jurisdiction.110 The explanation is that in the case it was clear that the case was inadmissible, irrespective of jurisdiction. Because it was clear that the Court had no authority to proceed with the merits of the case, because of an objection to admissibility, other considerations relating to jurisdiction became irrelevant.
Convention on Consular Relations", 10 European JIL (1999) p. 713. In the Arrest Warrant of 11 April 2000 Case (Provisional Measures) the Court said: 67. Whereas, when the Court has before it a request for the indication of provisional measures, it has no need, before deciding whether or not to indicate such measures, to satisfy itself beyond doubt that it has jurisdiction on the merits of the case, but whereas it cannot nevertheless indicate those measures unless the provisions invoked appear prima facie to constitute a basis on which its jurisdiction could be founded; 68. Whereas the Court concludes that the declarations made by the Parties pursuant to Article 36, paragraph 2, of its Statute constitute prima facie a basis on which its jurisdiction could be founded in the present case" (2000 ICJ Reports paras. 67-68). However, it found that there was no reason for ordering interim measures. 109 1995 ICJ Reports at p. 306. 110 Ibid, at p. 306.
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In the first of the ten Legality of Use of Force Cases (Provisional Measures), the Court examined the jurisdictional instruments and found that clearly there was no prima facie basis for jurisdiction. It said that it could not indicate provisional measures, Whereas the Court has found... that it had no prima facie jurisdiction to entertain Yugoslavia's Application, either on the basis of Article 36, paragraph 2, of the Statute or of Article IX of the Genocide Convention;111 Although it may appear that this finding may necessarily imply that the Court decided that it did not have jurisdiction at all over the merits of the case, the Court was careful to indicate in eight of the ten cases that its finding, which related to a prima facie basis of jurisdiction and which was a negative one, did not prejudge in any way the question of the Court's jurisdiction on the merits or any questions relating to admissibility,112 while in two cases, it did find that it manifestly did not have jurisdiction over the merits at all, and removed the cases from the list.113 Thus, it was open to find later in the relevant cases, after examining the merits in detail both on the law and facts, that it did have jurisdiction, although it may be thought that the chances of this were slim. Thus, positively there must be a prima facie basis for jurisdiction, i.e. for proceeding to decide the merits of the case, if the Court is to exercise jurisdiction to order interim measures. Conversely or negatively it follows that where it is clear that there is no basis for jurisdiction at all or that the case is clearly inadmissible, the Court cannot exercise the jurisdiction relating to interim measures. There are some difficulties with the Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria as to how these principles have been applied by the Court. In the face of an 111
1999 ICJ Reports at p. 139. The same conclusion was repeated in not necessarily the same words in the other 9 cases, because the basis for jurisdiction was not identical in all the cases: ibid. at pp. 273, 373,432,492, 557, 671, 773, 839, 925. 112 See ibid. at pp. 139-40, 273, 373, 433, 492, 557, 671, 839. 113 See ibid, at pp. 773 and 925. Thus, it is open for the Court to find that it does not have jurisdiction over the merits even in dealing with incidental jurisdiction on interim measures.
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objection by Nigeria that the Court did not have even prima facie jurisdiction over the substantive issues the Court held (i) that it in fact considered that "the declarations made by Parties in accordance with Article 36, paragraph 2, of the Statute constitute a prima facie basis upon which its jurisdiction in the present case might be founded"; and (ii) that in the case "the consolidated Application of Cameroon does not appear prima facie to be inadmissible in the light of the preliminary objections raised by Nigeria".114 The second statement made there could have been made per incuriam, as far as its formulation is concerned. If it were not, it would reflect a complete misunderstanding on the part of the Court of the principles involved. In this case the Court stated that there was no prima facie case of inadmissibility. In the Request for Reexamination Case115 it was held that there was no prima facie basis for proceeding with the merits, it being found that there was no doubt that the case was inadmissible because it concerned a matter which did not form the subject of the previous judgment. In the former case it was clear that there was not only insufficient evidence to upset the finding that there was a prima facie basis for jurisdiction but there was inadequate evidence even for a finding that there was a prima facie basis for inadmissibility. Once it emerges that there is a prima facie basis for jurisdiction as there was in this case, if a question of inadmissibility arises, surely what has to be done is to establish that the evidence of inadmissibility is such that it is insufficient to counter the finding that there was a prima facie basis for jurisdiction. This means that the evidence of inadmissibility must be such that not merely a prima facie basis for it is not established but inadmissibility is not supported by the evidence so that the finding of a prima facie basis of jurisdiction stands. To state that there must be no prima facie basis for inadmissibility makes what has to be established less strict than if the requirement was that the evidence of inadmissibility is such that it displaces the earlier finding that there is a sufficient basis for jurisdiction. In short, what must be 114
1996 ICJ Reports at p. 21. Later, 1998 ibid. p. 353 the ICJ found the case admissible. 115 1995 ICJ Reports p. 288.
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established is that there is a probability on a balance that the application is inadmissible for the Court to conclude that there is no prima facie basis for it to proceed with the decision on the merits. Thus, where a question of inadmissibility arises, more than that there is a prima facie basis for inadmissibility must be shown. In the Request for Reexamination Case there was a clear basis for inadmissibility, even if there was a prima facie basis for jurisdiction, so that from the facts it was possible to conclude that not merely a prima facie basis for inadmissibility existed, but that there was sufficient evidence of inadmissibility for it to be concluded that the Court had no authority to proceed on the merits. This case, thus, does not support the statement in the other case requiring a showing of a mere prima facie basis for inadmissibility but rather supports the view taken that what has to be shown is that the evidence in favor of inadmissibility must be such as to displace the finding that there exists a prima facie case for jurisdiction. The view taken by the ICJ on the requirement of a prima facie basis for jurisdiction (and by implication for the admissibility of the application) has been accepted in arbitration where the jurisdiction to order interim measures flowed from the inherent powers of the tribunal which were elaborated upon in the rules of procedure of the tribunal. In the Bendone-Derossi International Case, the Iran-US Claims Tribunal stated: In an appropriate case, an international tribunal will grant interim measures of protection before determining its jurisdiction over the merits of the claim, provided that it is satisfied that there is, at least, a prima facie showing that it has jurisdiction over the substantive claim. This test was most recently applied by the International Court of Justice in its Order of 10 May 1984 in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, ICJ Reports 1984, p. 169, 179. The Court stated, at paragraph 24 of the Order: [O]n a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, or, as the case may be, that an objection taken to jurisdiction is
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well-founded, yet it ought not to indicate such measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded... Without prejudice to the final determination of the jurisdictional issue, the Tribunal is not at present satisfied that it appears, prima facie, that there exists a basis on which it can exercise jurisdiction over the present claim.116 What was in issue in the case was the execution of an ICC arbitral award. The tribunal made it quite clear that its jurisdiction did not include this function in saying that: The Tribunal at this stage of the proceedings does not consider it a reasonable interpretation of the Algiers Declarations that it should act as a court issuing exequatur or that it should otherwise be empowered to enforce arbitral awards of other, independently constituted arbitral tribunals. This Tribunal is not a national court; it has a specific international character. It is not a manifestation of any one national public authority, and it cannot invest such other awards with any validity or status under any system of national law that those awards do not already possess.117 It was clear that a prima facie basis for jurisdiction did not exist because its constitutive instruments manifestly did not include the kind of function envisaged by the claimant.118 The principle was applied by the ITLOS, for instance, in the Mox Plant Case where the respondent contended that the tribunal had no jurisdiction to prescribe provisional measures. In applying the 116
(1984), 6 Iran-US CTR at pp. 131-2. Ibid at p. 133. See also the Eric M. Hermann Case (1958), 2 Entscheidungen at p. 134, where the international arbitral tribunal said that in spite of an objection to receivability being raised it was not prevented from ordering interim measures. 118 Article 290 of the UNCLOS gives a tribunal and ITLOS authority to prescribe provisional measures, explicitly where it "considers that prima facie it has jurisdiction" under the relevant provisions of the Convention. 117
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principle to the facts, the tribunal first examined the UK's argument, based on Article 282 of the UNCLOS, that the tribunal was not competent to prescribe provisional measures, since the main elements of the dispute were governed by regional agreements, including European Treaties, which provided for binding means of resolving disputes. The tribunal took the view that the dispute concerned the interpretation and application of the Convention and no other agreement. The UK also maintained that the requirements of Article 283 were not satisfied, since no exchange of views had taken place between the parties before the case was submitted to the tribunal. In response to this argument the tribunal considered that a state party is not obliged to continue with an exchange of views when it concludes that the possibilities of reaching agreement have been exhausted. It, therefore, found that the Annex VII arbitral tribunal would prima facie have jurisdiction over the dispute.119 In the case of the ICJ in the La Grand Case, the Court analyzed the jurisdictional instruments and facts concluding: 14. Whereas, Article I of the Optional Protocol, which Germany invokes as the basis of jurisdiction of the Court in this case, is worded as follows: Disputes arising out of the interpretation or application of the convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol; 15. Whereas, according to the information communicated by the Secretary-General of the United Nations as depository, Germany and the United States are parties to the Vienna Convention and to the Optional Protocol; 16. Whereas, in its Application Germany stated that the issues in dispute between itself and the United States concern Article 5 and 36 of the Vienna Convention and fall within the compulsory jurisdiction of the Court under Article I of the Optional Protocol; and whereas it concluded from this that the Court has the jurisdiction necessary to indicate the provisional measures requested; 119
(2001) See Press Release ITLOS/Press 62, 3 December 2001.
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17. Whereas, in the light of the requests submitted by Germany in its Application and of the submissions made therein, there exists prima facie a dispute with regard to the application of the Convention within the meaning of Article I of the Optional Protocol; 18. Whereas, the Court has satisfied itself that, prima facie, it has jurisdiction under Article I of the aforesaid Optional Protocol to decide the dispute between Germany and the United States.120
In the Genocide Case,121 the Court was faced with a question of jurisdiction rationepersonae over the merits. The issue was whether Serbia-Montenegro was a successor to the Federal Republic of Yugoslavia and thus a party to the Statute. The Court found that it prima facie had jurisdiction under Article 35(2) of the Statute. In view of the acceptance of the principle that in order to exercise the authority to issue orders for interim measures an international tribunal must have a prima facie basis for jurisdiction to decide the merits of the case, both by the ICJ and the ITLOS and in arbitration, it is to be concluded that this is a general principle of law. Moreover, as in the case of the UNCLOS, a tribunal other than the tribunal having jurisdiction over the merits may be authorized to order interim measures.122 In considering the sources or titles of jurisdiction at the stage of deciding on interim measures, where the tribunal finds that it has no prima facie basis for jurisdiction on the basis of the titles cited in the application or early in the case, it will not consider a claim that it has such jurisdiction on the basis of another title to jurisdiction introduced late in the proceedings on interim measures. Thus, in the first Legality of the Use of Force Cases (Provisional Measures], the ICJ stated: 44. Whereas 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 120
Order of 3 March 1999, 1999 ICJ Reports at pp. 13-14. 1993 ICJ Reports p. 3. 122 See Article 290(5) of the UNCLOS. In both the Mox Plant Case (2001), Press Release ITLOS/Press 62, 3 December 2001, and the Southern Blue/in Tuna Cases (1999), 38 ILM p. 1624, the ITLOS had to deal with requests for interim measures in cases referred to arbitral tribunals under Article 287(C) and Annex VII of the UNCLOS. 121
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provisional measures has never before occurred in the Court's practice; whereas such action at this late stage, when it is not accepted by the other party, seriously jeopardizes the principle of procedural fairness and the sound administration of justice; and whereas in consequence the Court cannot, for the purpose of deciding whether it may or 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;123
What is a late filing of such a claim is a matter of procedure to be decided by the tribunal, taking into account procedural fairness and the sound administration of justice. Although the matter has not arisen before any international tribunal, a question of importance is whether the tribunal has authority to and must raise proprio motu the issue whether it has incidental jurisdiction to decree provisional measures. The answer to the question must be in the affirmative, as the same principle applies to this aspect of competence (jurisdiction) as to any other. (2) The Principles Underlying the Exercise of the Jurisdiction Arbitral tribunals have referred, for example, to the "conservation of a right",124 stated that parties must abstain from all measures "likely to prevent definitely the execution of their obligations",125 or that "the full effectiveness of the Tribunal's decisions" must be ensured,126 or that "this particular form of relief or remedy, pendente lite, may be granted when the rights and/or property which the issuance of such 123
1999 ICJ Reports at p. 139. See also the sixth such case: ibid. at pp. 556-7. In the Holiday Inns Case (1978), which was later discontinued, in regard to an order for provisional measures, though issues of jurisdiction had been raised, the tribunal did not examine whether there was prima facie jurisdiction nor was the issue raised by the parties at the tribunal proprio motu (see 51 BYIL (1980) at pp. 135 ff.) This was patently incorrect, unless it was clear to all concerned that the tribunal had such jurisdiction. 124 The Eric M. Hermann Case (1958), 2 Entscheidungen at p. 134. 125 The Holiday Inns Case (1972), 51 BYIL (1980) at p. 136, an ICSID arbitration. 126 The E-Systems, Inc. Case (1983), 2 Iran-US CTR at p. 57, the Behring International, Inc. Case (1985), 8 ibid, at p. 276.
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measures is designated to protect are deteriorating in such a manner that irreparable harm may be done to the said rights and/or property... before a First Award is rendered".127 Provisions in constitutive instruments of tribunals, whether standing or arbitral, on the other hand, refer to "provisional measures which should be taken to preserve the rights of the parties" or use similar language.128 Some constitutive instruments are silent on when provisional or interim measures may be ordered.129 The UNCLOS specifically mentions in Article 290(1) preventing "serious harm to the marine environment" as one object of interim measures. This was the objective implemented in the orders of interim measures in the Southern Bluefin Tuna Cases made in 1999. Clearly, to the extent that a compromis or a constitutive instrument of a tribunal is specific, the order of interim measures will be governed by the principles stated there. But, first, where the constitutive instrument is silent on the principles, as in the case of the CJEC, the issue arises what are the underlying principles, objectives and limits of interim measures. Secondly, what is the implication of preserving the rights of the parties, which is mentioned in many constitutive instruments and is regarded as the object of interim measures, where an object must be implied, is a question that arises. The approach particularly of the CJEC and of the ICJ, which is 127
The United Technologies International Inc. Case (1986), 13 ibid. at p. 257. See, e.g., Article 41 of the ICJ Statutes, Article 290 of the UNCLOS, Article 47 of the ICSID Convention. In the Holiday Inns Case (1978), the ICSID Tribunal held that, because Article 26 of the ICSID Convention stated that the consent to arbitration was "to the exclusion of any other remedy", the ICSID tribunal was not prevented from exercising jurisdiction under Article 47 to order provisional measures simply on the grounds that the Moroccan Courts had exercised such jurisdiction: see Lalive, "The First World Bank Arbitration (Holiday Inns v. Morocco)—Some Legal Problems", in 1 ICSID Reports at pp. 656 ff. On provisional measures under the ICSID Convention, see also Delaume, "ICSID Tribunals and Provisional Measures", I FILJ (1986) p. 237, Friedland, "Provisional Measures and ICSID Arbitration", 2 Arb. International (1986) p. 335, Friedland, "ICSID and Court-Ordered Provisional Measures: An Update", 4 ibid. (1988) p. 161. 129 See, e.g., Article 243 (ex Art. 186) of the TEU which deals with the CJEC. Article 242 (ex Art. 185) provides for suspensory relief. 128
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extensive, and the manner in which they have dealt with problems that have arisen, are illuminative in this regard. (a) The CJEC As already pointed out, the TEU and the earlier agreements merely state that necessary interim measures may be prescribed. Cases against member states provide the best examples of the problems that have arisen. For long it remained controversial whether interim measures could be awarded against a member state in an action under the former Article 169 or 170 of the EEC Treaty or their equivalents, although there was a large number of decisions by the Court on interim measures against Community organs. The problem was that the Court seemed to be restricted to declaratory relief in its final judgments against member states. But former Articles 185 and 186 of the EEC Treaty (and the equivalents) did not impose any limits on the types of cases in which suspensory and other interim measures were permissible. In most of the earlier actions against member states such orders were unnecessary, as the defendant governments had displayed their willingness to comply with the decisions of the Commission. This was not so in Cases 31/77 and 53/77R Commission v. United Kingdom™ and 61/77R Commission v. Ireland.131 In the former the Commission brought an action under Article 93(2) of the EEC Treaty against the UK for providing aid to pig producers in violation of Article 92 and in the latter the Commission instituted proceedings under Article 167 of the EEC Treaty concerning fishery conservation measures. Also in Cases 42/82R132 and 171/83R133 France denied that it was under an obligation to end its restrictions on the entry of Italian wine or to end its aid to its textile and clothing industry. Interim measures were ordered against member states concerned in all these cases. The Advocate-General in Case 31/77 and 53/77R argued that it was no [1977] ECR p. 921. On the question of interim measures in the CJEC see, inter alia, Gray, Judicial Remedies in International Law (1987) pp. 137 ff. 131 [1977] ECR p. 937 and p. 1411. 132 [1982] ECR p. 841. 133 [1983] ECR p. 2621.
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beyond the Court's jurisdiction to order a defendant state to act in a certain way: The Court can only address an order to a Community institution or to a natural or legal person, not to a State... In view of the immunity of the States and having regard to the system laid down by Article 93 which does not confer on the Court any wider jurisdiction than Article 169, it is not possible to make the leap consisting in directly ordering a Member State to put an end to the grant of a national aid; at the most the Court could only declare the existence of a failure to fulfill an obligation arising from the Treaty, but, even in this case, it would only be for the Member State concerned to draw the consequences of the Court's decision.134
But this approach was not accepted by the Court. In order to preserve the effectiveness of its final judgment the CJEC exercises a wider jurisdiction so far as concerns orders of interim measures against member states. Later the Court was requested to order interim measures against France in Case 24 and 97/80R.135 The court had earlier given judgment against France in an Article 169 action for its unlawful restrictions on the import of mutton and lamb. France did not give effect to this judgment so the Commission started proceedings for breach of Article 171 and as part of those proceedings requested as an interim measure that the court should order "the French Republic to desist forthwith from applying any restriction and/or levying any charge on imports of mutton and lamb from the United Kingdom". The Court in this case refused interim measures. Four of the cases against member states which are important led to orders under Article 186 and such orders were rare in earlier cases. Apparently before 31/77 and 53/77R the Court had made orders under Article 186 in only two cases.136 The court's attitude 134
[1977] ECR at p. 934. Commission v. France, [1980] ECR p. 1319. 136 Case 160, 161, and 170/73R Miles Druce and Co. Ltd. v. Commission [1974] ECR p. 281, and Case 109/75R National Carbonising Co. Ltd. v. Commission [1975] ECR p. 1193. There have been a few decisions against Community organs. See also Gray, ELR [1979] p. 80. 135
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towards measures under Article 186 was cautious, as was illustrated in Case 25/62R Plaumann v. Commission.131 In the main action the applicant was seeking the annulment of a decision against Germany whereby the Commission had refused a request for authorization to suspend in part the customs duties on Clementines. It asked as an interim measure for a declaration that the defendant is required to authorize the Federal Republic of Germany to suspend provisionally to the extent of 3%, subject to security being given, the application of the customs duty in force for Clementines for the period from 1 January 1962 to 31 December 1962. The Court replied that: the applicant is thus asking for more than a mere suspension of the operation of the Decision which it is contesting. It seeks rather to prejudge the results by assuming beyond doubt that these will lead to a decision in its favour in the main action, that is to say, that the Commission will then be required in each case to grant the contested authorisation and, indeed, with retroactive effect. It is true that Article 186 of the EEC Treaty does not clearly exclude such measures; nevertheless so far-reaching an interim measure could be justified only by wholly exceptional circumstances and if there were very good reasons for thinking that the party concerned would otherwise suffer serious and irreparable damage.138
But in some actions the Court did not take a restrictive view of its powers under Article 186. In Case 61/77R the Irish Government argued that an application for interim measures was inappropriate in the course of proceedings in which the validity of a national law was at issue, as it tended to prejudge the main action, and that the power given to the Court by Article 186 was not wide enough to include a power to suspend the operation of a national law which was being contested in the main action. The Court decided to allow interim measures, thus implicitly rejecting the Irish argument.139 In Case 42/82R the Court issued an exhaustive and detailed order as to the 137
[1963] ECR p. 123. Ibid. at p. 124. 139 The Advocate-General gave express consideration to this question and also rejected the Irish Government view: [1977] ECR at p. 953. 138
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future conduct by France of its control of the entry of Italian wine.140 The CJEC showed itself willing to go beyond the brief and simple type of order it had made in the two earlier cases to lay down specific and detailed rules for the parties. In its earliest award of interim measures against a member state, in Case 31/77, the Court said almost nothing of the conditions for their award, nor did it discuss the large case-law on interim measures against Community organs. It simply said: Disregard of the provisions of the final sentence of Article 93, which is the means of safeguarding the machinery for review laid down by that article, interferes with the proper operation of that machinery to such an extent as to be capable by itself of giving rise to the application of Article 186.141
However, the Advocate-General in his opinion, having regard to the criteria required by the case law of the Court for the adoption of interim measures, asserted that interim measures should be urgently needed, that the main action should not be manifestly unfounded, and that it was necessary for the Court to examine the possibility of irreparable harm to either party caused by the grant or refusal of interim measures.142 The Court apparently had not developed any consistent theory to govern its awards of interim measures in cases against Community organs. The case-law contained many conflicting decisions. Thus, it is extremely difficult to deduce any generally applicable principles from these.143 The factors mentioned by the Advocate-General in Case 31/77 were variously interpreted and different factors were decisive in different cases. There are also differences among the Court's decisions against member states. 140
This type of very detailed order by the Court was made also in an order for interim measures under Article 186 against the Commission, Case 229 and 228/82R Ford Werke AG and Ford of Europe Inc. v. Commission [1982] ECR p. 3091. 141 Cases 31/77 and 53/77R, [1977] ECR at p. 924. See Wainwright, [1977] ELR p. 349, and also Gilmour, CML Rev. (1981) p. 63. 142 [1977] ECR at p. 928. 143 See Gray, ELR (1980) p. 80.
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In all four of those cases the Court considered whether there was a prima facie case on the merits. This was apparently considered as a necessary preliminary condition.144 However, in its earlier decisions on interim measures against Community organs it was only in a minority of cases that the existence of a prima facie case on the merits was treated by the Court as a decisive preliminary test.145 Again in all four of these cases, as in the cases against Community organs, the Court was concerned to balance the interests involved, to consider whether the harm likely to result from failure to award interim measures would be greater than that from their award. In Case 61/77R the Court took this into account after it had come to its decision that interim measures were justified. It said that, although suspension under Article 185 of the measures criticized by the Commission might appear justified in principle, it was appropriate to take into account the consequences for conservation of the proposed abolition of the Irish measures, and therefore deferred its decision on the application so as to give the parties an opportunity to agree upon an alternative solution which might be substituted for the measures forming the subject matter of the proceedings. In Case 31/77 the Court was influenced by the fact that the provisional measures sought would not necessarily have irreversible consequences, because, if the Commission's decision were annulled in the final judgment, the UK should still be in a position to provide aid retroactively. In this case the Court held that the fact that the Commission had originally tried to remedy the situation without recourse to the Court could not affect the gravity of the UK's behavior and thus exclude the application of Article 186. That is, the slowness of the Commission in seeking interim measures from the Court did not prevent their award. This seemed to move away from any requirement that interim measures should be urgently needed, and it contrasts with the strictness of the Court in some of the earlier cases. In Case 42/82R the Court rejected the French argument that interim measures by allowing free entry of Italian wine into France would threaten public health and might lead 144 145
The practice seems to be different from that of the ICJ. See Gray, loc. cit. note 136 at p. 87.
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to economic and political difficulties and that this damage outweighed the harm to those involved in the export of Italian wine. Finally, in Case 171/83R the Court found that the risk of harm to the common market in textiles and clothing outweighed any possible harm to French undertakings from the grant of interim measures. But there is a significant difference between the decision in Case 61/77 and Case 31/77 and that against France in Case 42/82. The major consideration for the Court in the first two cases was clearly the possibility of damage to the Community interest from failure to allow interim measures. The Court did not expressly demand that such harm should be irreparable, but seemed willing to accept that any alleged breach of Community law by a member state would constitute sufficient harm for the purpose of allowing interim measures. The Court regarded as sufficient the Commission's allegation of harm of a political nature, such as that the authority and effectiveness of the Community was being undermined by the behavior of the defendant member state. The Court did not pursue this approach in Case 42/82R. Here by contrast the Court considered only the harm to Italy threatened by the French restriction, even though the Commission had based its argument both on political harm to the Community and harm to Italy. In its decisions on interim measures against Community organs the Court demanded that the applicant be able to show the threat of harm to itself. It could not rely on harm that would affect third parties if interim measures were refused. The requirement appears to have been modified in Case 42/82R because of the different interests involved. In the cases against the UK and Ireland, although the parties in their arguments relied on harm to member states as well as harm to the Community, it was not until the final stage in the latter case that the Court made any reference to this. When the application for interim measures first came before the Court, the Court considered only the possible harm to the Community. It said that Ireland's measures might harm the negotiations on fisheries conservation within the Community, lead to unilateral measures by other member states, and prejudice the Community position on an international level. After the parties had failed to agree on an alternative regime to that unilaterally introduced by Ireland, the application for interim
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measures came before the Court again. Now the Court itself considered the possible harm to member states. It said, In view of the advanced stage of the fishing season only an interim measure having immediate effect is capable of preventing irreparable damage to the fisherman of the other Member States ... since it has emerged at the hearing before the Court that in the particular circumstances the damage caused by the unilateral introduction of the Irish measures in question need be suspended only vis-a-vis those States.146 These cases show that it was not clear whether it is enough for the Commission to show that political harm to the Community would be caused by the defendant state's behavior or whether it must fulfill the more difficult task of proving material or financial harm to member states.147 The Court did not consider this issue in its fourth decision on interim measures against a member state, but the AdvocateGeneral argued against making it too easy for the Commission to obtain interim measures against member states. He said that moral damage was not of a kind to justify interim measures as otherwise any action by the Commission for breach of Article 171 would automatically justify interim measures against the defendant state. There is, thus, uncertainty over the meaning of the requirement that interim measures should be necessary to prevent irreparable harm. There are two views. The wide view is that any threatened breach of international or Community law necessarily involves irreparable harm and the narrow view is that something more is needed. In Case 24 and 97/80R the Court for the first time refused to award interim measures against a member state. The result in this case can probably be explained by the particular circumstances; the Commission was suing France for non-compliance with a judgment of the Court declaring that French restrictions on the import of mutton and lamb violated Community law. As part of its action under the former Article 171 the Commission requested interim measures. 146
[1977] ECR at p. 1414. In Case 171/83R, [1983] ECR p. 2621, the Court mentioned "repercussions on markets of other member states" when it was considering the urgency of interim measures, but in its discussion of irreparable harm it spoke only of the effect—apparently material rather than political—on the common market. 147
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The Court summarized the arguments of the parties and then concluded that the purpose of the Commission in seeking interim measures was the same in substance as that of its original action under the former Article 169 and so the request was not covered by the former Article 186. It seems from this that orders of interim measures in proceedings for breach of Article 171, although theoretically possible, may not always be made.148 The Court apparently felt that an award of interim measures would not add anything to its earlier judgment under the former Article 169, i.e., that no irreparable harm had been shown to be possible by not ordering interim measures. The problems faced by the CJEC flow most obviously from the need to balance the harm from a refusal of interim measures against that from ordering them, the question as to what constitutes irreparable harm and the need not to prejudge the merits of the main claim. The very broad provisions of Article 243 (ex 186) have, thus, been construed in the light of these problems. The cases discussed above not only highlighted the problems that were faced but provided the background against which the Court has since developed its jurisprudence. All this was in the implementation of a provision that gave authority to prescribe "necessary interim measures". All the basic principles that have emerged in the jurisprudence of the CJEC in regard to "necessary" interim measures, whether in cases against Community organs or against member states, are reflected in the discussion above, as are the conflicts and difficulties that have presented themselves. While it has now been settled that interim measures may be ordered against member states as well as against Community organs, the basis for the prescription of such measures is not so clear, especially in the case of orders against member states. Orders may consist of specific and detailed rules or they may not. On the other hand, clear principles in many regards do not emerge. (i) While the existence of a prima facie case on the merits had been regarded in certain cases as a necessary condition for the prescription of interim measures, it has not always been so regarded. 148
See Hartley, ELR (1980) p. 363.
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Chapter 9. Incidental jurisdiction (ii) While it is a requirement, generally, that interim measures should be urgently needed, this has not always been regarded as a requirement. (iii) There is an attempt to balance interests involved to the extent that whether the harm likely to result from the failure to award interim measures would be greater than that from their award is a matter which is considered. (iv) Sometimes, but not always, the possibility of simple damage to the "Community interest" as such may be considered as sufficient to cause "irreparable harm" in deciding to order interim measures, whereas generally material or financial harm to member states is what is required to be proved, the former, which borders on moral damage, being easier to prove than the latter.
These developments show a very specialized approach to the question of ordering interim measures. They cannot really be compared item for item with the ordering of interim measures by the IC J or other tribunals, as will be seen. For these, certain better defined general principles may be applicable. In the case of the CJEC the interests considered may sometimes be broader than in the case of other tribunals, that is to say, they may go beyond the rights of the parties. Moreover, the relevance of a prima facie case on the merits is a completely individual feature. Finally, there seems to be a keen regard for balancing interests, particularly in relation to the effects of ordering and not ordering interim measures. The approach taken by the CJEC, it may appear, is somewhat different in objective from that of other tribunals, which, broadly stated, is to preserve the respective rights of the parties to the dispute pending the decision of the tribunal. (b) The PCIJ and ICJ In the case of the ICJ, as was the case of the PCIJ, the statute clearly states the object of interim or provisional measures as being that of preserving the respective rights of the parties. The PCIJ and the ICJ have regarded this in their practice as covering both what may be called positive and negative orders. They
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have not only ordered states to refrain, and ensure that others refrain, from certain behavior likely to aggravate or extend the dispute or to prejudice the rights that might result from the final judgment, as in the Electricity Company of Sofia and Bulgaria Case,149 the Nuclear Tests Cases,150 and the Nicaragua Case,151 but also have demanded certain positive actions by the parties. Thus, for example, in the Anglo-Iranian Oil Company Case152 the ICJ ordered that there should be "established by agreement between the Iranian Government and the United Kingdom Government a Board to be known as the Board of Supervision" and set out in detail the composition and duties of the Board. Again, in the Fisheries Jurisdiction Cases the Court said that the UK "should ensure that vessels registered in the United Kingdom do not take an annual catch of more than 170,000 metric tons of fish", and that the UK "should furnish the Government of Iceland and the Registry of the Court with all relevant information, orders issued, and arrangements made concerning the control and regulation of fish catches in the area".153 Both the PCIJ and the ICJ have not refused to order interim or provisional measures on the ground that jurisdiction over the merits 149
PCIJ Series A/B No. 79, Order of 5 December 1939. 1973 ICJ Reports at pp. 99 and 135. 151 (Provisional Measures) 1984 1CJ Reports p. 168. 152 1951 ICJ Reports p. 89. 153 1972 ICJ Reports pp. 12 and 30. See also the Iranian Hostages Case, 1979 ICJ Reports p. 7, where interim measures were ordered. Generally on interim measures of protection in the ICJ see: Sztucki, Interim Measures in the Hague Court (1983), Elkind, Interim Protection, a Functional Approach (1981). Mendelson, "Interim Measures of Protection in Cases of Contested Jurisdiction", 46 BYIL (1972-3) p. 258, Merrills, "Interim Measures of Protection and the Substantive Jurisdiction of the International Court", 36 CLJ [1977] p. 86 and "Interim Measures of Protection in the Recent Jurisprudence of the International Court of Justice", 44 ICLQ (1995) p. 90, Oda, "Provisional Measures: The Practice of the International Court of Justice", in Lowe and Fitzmaurice (eds.), Fifty Years of the International Court of Justice (1996) p. 541. See also Collins, "Provisional and Protective Measures in International Litigation", 234 Hague Recueil (1992) at pp. 224 ff., Collier and Lowe, op. cit. note 39 pp. 168 ff., Gray, op. cit. note 130 pp. 69 ff. 150
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or authority to proceed with the merits had to be proved. On the other hand, refusals have been based on the ground that interim measures were not necessary "to preserve the respective rights of either party". They have, thus, refused to indicate interim measures, for instance, where the effect of this would be to prejudice the merits of the main case, as in the Chorzow Factory Case,154 or where the protection requested in the application for interim measures would extend beyond the rights at stake in the main action, as in the Polish Agrarian Reform Case,155 or where the interim measures were no longer urgently required, as in the Pakistani Prisoners of War Case,156 or no longer necessary because of a declaration by the respondent state as to its future behavior, as in the Interhandel157 and Prince von Pless Cases.158 Most recently in two cases the Court refused to order interim measures because there was no urgency, no irreparable damage would be caused, and, thus, neither party would be prejudiced.159 What is of interest are the principles upon which interim measures have been ordered or refused. In the Nuclear Tests Cases160 the Court ordered certain interim measures, namely that no atmospheric nuclear tests should be carried out by France, without addressing any principles involved, but this is unusual. Generally, the Court has stated the relevant basic principles, whether it grants or refuses measures. In some cases the Court referred to the necessity of 154
PCIJ Series A No. 12. PCIJ Series A/B No. 58, Order of 29 July 1933. 156 1973 ICJ Reports p. 328. 157 1957 ICJ Reports p. 105. 158 PCIJ Series A/B No. 54, Order of 11 May 1933. On some other cases see Mendelson, op. cit. note 153. 159 See the Great Belt Case, 1991 ICJ Reports, Order of 29 July 1991 at p. 17 and the Bosnian Genocide Convention Case (Provisional Measures), 1993 ICJ Reports, Order of 13 September 1993, at p. 342 (the second order made after further interim measures were requested). The court in the latter case merely confirmed its earlier order, the Bosnian Genocide Convention Case (Provisional Measures), 1993 ICJ Reports, Order of 8 April 1993, p. 3. See Gray, 43 ICLQ (1994) p. 704. 160 Orders of 22 June 1973, 1973 ICJ Reports at pp. 99 and 135. 155
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preserving the respective rights of the parties,161 i.e., rights that may subsequently be adjudged to belong to the parties, or to ordering measures where action prejudicial to the rights of either party is likely to be taken before the final decision of the Court, there being a certain "urgency" for such measures.162 In the Bosnia Genocide Convention Case (Provisional Measures), the Court made an elaborate statement of the principles applicable, while ordering extensive measures. It said: 34. Whereas the power of the Court to indicate provisional measures under Article 41 of the Statute of the Court has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of dispute in judicial proceedings; and whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent; 35. Whereas the Court,... ought not to indicate measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment in the exercise of that jurisdiction;...163 The position was stated in somewhat different terms in the Fisheries Jurisdiction Cases (Interim Measures) where again extensive measures were ordered. The Court said that the object was to preserve the respective rights of the Parties pending the decision of the Court and presupposes that irreparable prejudice should not be caused to rights which are the subject of a dispute in judicial proceedings and that the Court's judgment should not be anticipated by reason of any initiative regarding the measures which are in issue;164 161
Anglo-Iranian Oil Co. Case (Interim Protection], Order of 5 July 1951, 1951 ICJ Reports at p. 93. In this case the Court referred to the breach of rights which would not be reparable by payment of compensation as a remedy. 162 Great Belt Case (Provisional Measures], Order of 29 July 1991, 1991 ICJ Reports at p. 17. 163 Order of 8 April 1993, 1993 ICJ Reports at p. 19. 164 Order of 17 August 1972, 1972 ICJ Reports at pp. 16 and 34. See for a similar statement the second Bosnia Genocide Convention Case (Provisional Measures], Order of 13 September 1993, 1993 ICJ Reports at p. 342.
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Again, most recently the Court stated in the La Grand Case (Provisional Measures): 22. Whereas the power of the Court to indicate provisional measures under Article 41 of its Statute is intended to preserve the respective rights of the parties pending its decision, and presupposes that irreparable prejudice shall not be caused to rights which are the subject of a dispute in judicial proceedings; whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant, or to the Respondent; and whereas such measures are only justified if there is urgency; 23. Whereas the Court will not order interim measures in the absence of "irreparable prejudice... to rights which are the subject of dispute..."165 Negatively the Court stated in the Nicaragua Case (Provisional Measures) that it cannot make definitive findings of fact, and the right of the respondent State to dispute the facts and to submit arguments in respect of the merits must remain unaffected by the Court's decision;166 The principles thus enunciated have been applied with varying results. For example, in the Aegean Sea Continental Shelf Case (Provisional Measures)161 the Court took a restrictive line. Greece sought an order to prevent any further Turkish activities in the disputed area on two grounds: (i) to preserve Greece's rights and prevent irreparable prejudice to them; (ii) to prevent Turkey aggravating the dispute and prejudicing friendly relations. As to the first ground, the Court could not identify what irreparable prejudice 165
Order of 3 March 1999, 1999 ICJ Reports at pp. 14-15. See also the Breard Case (Provisional Measures), Order of 9 April 1998, 1998 ICJ Reports at p. 251. On this case see "Agora: Breard", 92 AJIL (1998) p. 666. 166 Order of 10 May 1984, 1984 ICJ Reports at p. 180. See also the Lockerbie Case (Provisional Measures), Order of 14 April 1992, 1992 ICJ Reports at p. 14. 167 1976 ICJ Reports p. 3. On this case see Wallington, 35 CLJ (1976) p. 82.
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Greece might suffer. Turkish exploration did not affect Greece's legal rights since a violation of its rights over the shelf could be satisfied by a judicial declaration to that effect. As to the second, on the same day that Greece applied to the Court it put its case to the Security Council, which urged the two Governments to do all in their power to sort out the situations. This covered the ground that Greece was asking the Court to cover and it was not clear that either state would fail to comply with the Security Council resolution. The Court accordingly refused to order interim measures. In the Nicaragua Case (Provisional Measures) 168 Nicaragua asked the Court to order the United States to cease and desist from helping the Contras and to stop its own military action and use of force against Nicaragua. The Court ordered the United States to stop laying mines and blocking access to Nicaraguan ports and fully to respect Nicaragua's sovereignty and not to jeopardize it by military action of the use of force prohibited by the UN Charter. Further, unanimously, the Court ordered that no action be taken by either state which might extend or prolong the dispute or which would have an effect on such of the rights of the two states as might be determined by the Court's future judgment on the merits. The Court indicated provisional measures in the Bosnia Genocide Convention Case (Provisional Measures).169 It ordered the respondent to take all measures within its power to prevent the commission of genocide and to ensure that military, paramilitary or irregular armed units and other organizations or persons which might be subject to its direction or control did not indulge in genocidal conduct. It also stated, in what has become a common prescription, that neither state should take action which might aggravate or extend the dispute or make it more difficult of solution. The Court rejected an argument that it should not indicate interim measures while the Security Council was seized of the dispute. In the Lockerbie Case (Provisional Measures)170 the Court declined to indicate interim measures against the UK and USA at 168 169 170
Order of 10 May 1984, 1984 ICJ Reports p. 169. Order of 13 September 1993, 1993 ICJ Reports p. 3. Order of 14 April 1992, pp. 3 and 113.
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the request of Libya on the ground that certain SC resolutions (whose passing had been procured by those states) prevailed over the rights claimed by Libya under the 1971 Genocide Convention. Also, the Court considered that an indication of such measures would be likely to impair the rights of the UK and the USA under those resolutions.171 On the basis of the above exposition the following analysis may be made and conclusions reached about the Court's approach to interim measures.
171
There are several dissents and separate declarations and opinions. In the Arrest Warrant of 11 April 2000 Case (Provisional Measures) 2000 ICJ Reports para. 72, the Court refused to order interim measures stating: 72. Whereas, following the Cabinet reshuffle of 20 November 2000, Mr. Yerodia Ndombasi cease to exercise the functions of Minister for Foreign Affairs and was charged with those of Minister of Education, involving less frequent foreign travel; and whereas it has accordingly not been established that irreparable prejudice might be caused in the immediate future to the Congo's rights nor that the degree of urgency is such that those rights need to be protected by the indication of provisional measures; The more important cases in which Article 41 of the ICJ statute (and the PCIJ statute) have been discussed are the Land and Maritime Boundary between Cameroon and Nigeria Case (Provisional Measures) 1996 ICJ Reports at p. 21, South-Eastern Greenland Case (Provisional Measures) (1932), PCIJ Series A/B No. 48 at p. 283, Polish Agrarian Reform Case (Provisional Measures} (1933), PCIJ Series A/B No. 58 at p. 177, Electricity Company of Sofia Case (Provisional Measures) (1939), PCIJ Series A/B No. 79 at p. 199, Anglo-Iranian Oil Co. Case (Interim Protection), 1951 ICJ Reports at p. 93, Interhandel Case (Interim Protection), 1957 ICJ Reports at p. I l l , the Fisheries Jurisdiction Cases (Interim Protection), 1972 ICJ Reports at pp. 16 and 34, the Nuclear Tests Cases (Interim Protection), 1973 ICJ Reports at pp. 100, 136, the Frontier Dispute Case (Burkina Faso/Mali) (Provisional Measures), 1986 ICJ Reports at p. 8, the Arbitral Award of 31 July 1989 Case (Provisional Measures), 1990 ICJ Reports at p. 69, the Great Belt Case (Provisional Measures), 1991 ICJ Reports at p. 16, the Bosnia Genocide Convention Case (Provisional Measures), 1993 ICJ Reports at p. 19 and the later case on further measures, 1993 ICJ Reports at p. 342, the Breard Case (Provisional Measures), 1998 ICJ Reports at p. 257, the La Grand Case (Provisional Measures), 1999 ICJ Reports at pp. 14-15.
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(i) The object of interim measures is to preserve the respective rights of the parties and to prevent likely action that is prejudicial to the rights of either party being taken before the final decision of the Court. (ii) The object of interim measures presupposes that irreparable prejudice should not be caused to rights which are subject of a dispute. (iii) The Court's judgment should not be anticipated by reason of any initiative regarding the measures which are in issue. (iv) There must be some urgency requiring measures to be taken. As corollaries to these principal requirements, (a) Measures ordered must not impair rights of a party which appear prima facie to be enjoyed, e.g., by virtue of an SC resolution; and (b) the Court cannot make definitive findings of fact, the right of the respondent state to dispute the alleged facts and argue on the merits being unaffected by the Court's decision on interim measures. (c) Arbitrations The approach taken by arbitral tribunals which have not had to deal very often with requests for interim measures has been similar to that taken by the ICJ. The Iran-US Claims Tribunal has dealt in a few cases with the issue of interim measures, sometimes citing cases of the ICJ. Thus, in the United Technologies International Inc. Case the tribunal said 17. This article (Article 26 of the Tribunal Rules) embodies the generally accepted rule that an international arbitral tribunal is allowed to take interim measures. According to the practice followed by international arbitral tribunals, this particular form of relief or remedy, pendente lite, may be granted when the rights and/or property which the issuance of such measures is designated to protect are deteriorating in such a manner that irreparable harm might be done to said rights and/or property of the applicant before a Final Award is rendered.
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18. The circumstances in which interim measures can be granted have been clearly stated in several decision of the International Court of Justice. In the Anglo-Iranian Oil Co. Case the International Court of Justice, on 5 July 1951, issued an order indicating provisional measures and laid down, inter alia, the principle that the object of interim protection is "to preserve the respective rights of the Parties pending the decision of the Court". The Court also tends to consider that the violation of a right must cause "irreparable prejudice" to justify the granting of interim measures. On 17 August 1972 the Court, in the Fisheries Jurisdiction Case, granted interim measures requiring that the litigants ensure that no action be taken which might prejudice the rights of the other party. The same principle was repeated by the Court in its orders of 22 June 1973 in the Nuclear Test Case.172 In the E-Systems, Inc. Case the tribunal in ordering interim measures said: This tribunal has an inherent power to issue such orders as may be necessary to conserve the respective rights of the Parties and to ensure that this Tribunals'jurisdiction and authority are made fully effective. Not only should it be said that the award to be rendered in this case by the Tribunal, which was established by inter-governmental agreement, will prevail over any decisions inconsistent with it rendered by Iranian or United States courts, but, in order to ensure the full effectiveness of the Tribunal's decisions, the Government of Iran should request that actions in the Iranian Court be stayed until proceedings in this Tribunal have been completed.173 In the Holiday Inns Case an 1CSID tribunal applying the express provisions of the ICSID Convention said: The Parties were in agreement to recognize before the Tribunal that at the date of this Decision contractual relations remain in existence between them based on a series of commitments the foundation of which apparently is the Contract of December 5, 1966. It follows that the Parties are under an obligation to abstain from all measures likely to prevent definitely the execution of their obligations.174 172 173 174
(1986), 13 Iran-US CTR at pp. 257-8. (1983), 2 ibid. at p. 57. 51 BYIL(1980)at p. 136.
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In Patrimoine Giuseppe Camino Case (No. 266) a FrancoItalian tribunal said in respect of interim measures En attendant que la procedure arbitrale se deroule, le Gouvernement francais avait le devoir de maintenir les choses en 1'etat, en s'abstenant de toute initiative de nature a le placer dans 1'impossibilite de faire face a ses obligations Internationales telles qu'elles auraient ete definies par les arbitres.175
(d) Conclusion The jurisdiction to grant interim protection through the ordering of measures clearly involves in its exercise a measure of judgment on the part of a tribunal. The decision whether to order measures or not is, however, not based on the exercise of an arbitrary discretion. There are certain principles which have been applied and which require tribunals to take decisions based on them and exclusive of other considerations, such as political advisability or convenience. The principles applied depend on the express provisions of the constitutive instruments of the tribunal concerned but, where these are non-existent or require interpretation, the practice of the ICJ in its approach to the award of interim measures contains perhaps the best reflection of the basic principles. This is so, though the CJEC in interpreting the very broad provisions governing its jurisdiction in this matter, and perhaps with reason, has taken into account other considerations of particular relevance to the needs of the European Community. (3) The Legal Effect of Orders of Interim Measures Neither arbitral decisions nor judgments of standing courts have discussed the legal effect of orders of interim measures as a general rule. However, recently in the La Grand Case the ICJ, interpreting Article 41 of its statute, pronounced that such orders were legally binding in the same way as other decisions in its judgments and mandatory, and that they were not merely recommendations or 175
(France v. Italy) (1960), 13 UNRIAA at p. 451.
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hortatory. The Court made an extensive analysis of how Article 41 was to be interpreted: 98. Neither the Permanent Court of International Justice, nor the present Court to date, has been called upon to determine the legal effects of orders made under Article 41 of the Statute. As Germany's third submission refers expressly to an international legal obligation "to comply with the Order on Provisional Measures issued by the Court on 3 March 1999", and as the United States disputes the existence of such an obligation, the Court is now called upon to rule expressly on this question. 99. The dispute which exists between the Parties with regard to this point essentially concerns the interpretation of Article 41, which is worded in identical terms in the Statute of each Court (apart from the respective references to the Council of the League of Nations and the Security Council). This interpretation has been the subject of extensive controversy in the literature. The Court will therefore now proceed to the interpretation of Article 41 of the Statute. It will do so in accordance with customary international law, reflected in Article 31 of the 1969 Vienna Convention on the Law of Treaties. According to paragraph 1 of Article 31, a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of the treaty's object and purpose. 100. The French text of Article 41 reads as follows: 1. La Cour a le pouvoir d'indiquer, si elle estime que les circonstances 1'exigent, quelles mesures conservatoires due droit de chacun doivent etre prises a provisoire. 2. En attendant 1'arret definitive, l'indication de ces mesures est immediatement notifiee aux parties et au Conseil de securite. (Emphasis added.) In this text, the terms "indiquer" and "l''indication" may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words "doivent etre prises" have an imperative character. For its part, the English version of Article 41 reads as follows: 1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.
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2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council." (Emphasis added.) According to the United Sates, the use in the English version of "indicate" instead of "order", of "ought" instead of "must" or "shall", and of "suggested" instead of "ordered", is to be understood as implying that decisions under Article 41 lack mandatory effect. It might however be argued, having regard to the fact that in 1920 the French text was the original version, that such terms as "indicate" and "ought" have a meaning equivalent to "order" and "must" and "shall". 101. Finding itself faced with two texts which are not in total harmony, the Court will first of all note that according to Article 92 of the Charter, the Statute "forms an integral part of the present Charter". Under Article 111 of the Charter, the French and English texts of the latter are "equally authentic". The same is equally true of the Statute. In cases of divergence between the equally authentic versions of the Statute, neither it nor the Charter indicates how to proceed. In the absence of agreement between the parties in this respect, it is appropriate to refer to paragraph 4 of Article 33 of the Vienna Convention on the Law of Treaties, which in the view of the Court again reflects customary international law. This provision reads "when a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted". The Court will therefore now consider the object and purpose of the Statute together with the context of Article 41. 102. The object and purpose of the Statute is to enable the Court to fulfill the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to
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avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article. 103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of "the principle universally accepted by international tribunals and likewise laid down in many conventions... to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend the dispute" (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J. Series A/B, No. 79, p. 199). Furthermore measures designed to avoid aggravating or extending disputes have frequently been indicated by the Court. They were indicated with the purpose of being implemented (see Nuclear Tests (Australia v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 106; Nuclear Tests (New Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J. Reports 1973, p. 142; Frontier Dispute, Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 9, para. 18, and p. 11, para. 32, point IA; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 23, para. 48, and p. 24, para 52B; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 349, para. 57, and p. 350, para. 61(3); Land and Maritime Boundary between Cameroon and Nigeria, Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), pp. 22-3, para. 41, and p. 24, para. 49(1)). 104. Given the conclusions reached by the Court above in interpreting the text of Article 41 of the Statute in the light of its object and purpose, it does not consider it necessary to resort to the preparatory work in order to determine the meaning of that Article. The Court would nevertheless point out that the preparatory work of the Statute
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does not preclude the conclusion that orders under Article 41 have binding force. 107. The preparatory work of Article 41 shows that the preference given in the French text to "indiquer" over "ordonner" was motivated by the consideration that the Court did not have the means to assure the execution of its decisions. However, the lack of means of execution and the lack of binding force are two different matters. Hence, the fact that the Court does not itself have the means to ensure the execution of orders made pursuant to Article 41 is not an argument against the binding nature of such orders. 108. The Court finally needs to consider whether Article 94 of the United Nations Charter precludes attributing binding effect to orders indicating provisional measures. That Article reads as follows: 1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. The question arises as to the meaning to be attributed to the words "the decision of the International Court of Justice" in paragraph 1 of this Article. This wording could be understood as referring not merely to the Court's judgments but to any decision rendered by it, thus including orders indicating provisional measures. It could also be interpreted to mean only judgments rendered by the Court as provided in paragraph 2 of Article 94. In this regard, the fact that in Articles 56 and 60 of the Court's Statute, both the word "decision" and the word "judgment" are used does little to clarify the matter. Under the first interpretation of paragraph 1 of Article 94, the text of the paragraph would confirm the binding nature of provisional measures; whereas the second interpretation would in no way preclude their being accorded binding force under Article 41 of the Statute. The Court accordingly concludes that Article 94 of the Charter does not prevent orders made under Article 41 from having a binding character.
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109. In short, it is clear that none of the sources of interpretation referred to in the relevant Articles of the Vienna Convention on the Law of Treaties, including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context and in the light of the object and purpose of the Statute. Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect. 110. The Court will now consider the Order of 3 March 1999. This Order was not a mere exhortation. It had been adopted pursuant to Article 41 of the Statute. This Order was consequently binding in character and created a legal obligation for the United States.176
Thus, under Article 41 of the ICJ statute, orders for interim measures are binding in effect. This is so when they are intended to have this effect. The Court left open the possibility (see para. 110 of the judgment) for the Court to make non-binding decisions which would then be recommendatory. In fact the Court has never done this. All its orders of interim measures have been intended to be binding. The possibility that Article 41 prescribed non-binding orders arose because of the language used in the texts, particularly the English text. It is not at all clear that, had the texts been differently worded, for example, leaving the issue of legal effect or orders open or undefined, that the assumption could be made that such orders are merely hortatory and not binding. In the case of arbitration it cannot be said that this assumption has ever been made nor has the issue been properly addressed or settled by tribunals. The general approach implied has been that such orders are decisions taken by tribunals and are, like the decisions taken in the final judgment, binding. No distinctions of any kind have been made in the cases between such orders and the dispositifs of judgments of tribunals. Apart from the interpretative exercise performed by the ICJ, which was necessary in the circumstances, it is in keeping with the judicial function and process that orders of interim measures have legally binding effect, unless they are not intended to do so, rather than that presumptively they not have such binding effect. This is required, it may be asserted, by the demands of integrity and 176
2001 ICJ Reports paras. 98-104, 107-10.
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effectiveness for the judicial process. In the context of the general theory of adjudication this is not a position to justify which needs much argument or dialectic.177 In addition, what was said by the Court in its disquisition on Article 41 on the purpose and object of the statute (para. 102) could be extended to all judicial proceedings, including arbitrations whatever are the jurisdictional instruments. The "basic function of judicial settlement of international disputes by binding decisions" belongs to all international tribunals of a judicial nature, including arbitral tribunals, not only to the ICJ as a standing court. The object of interim measures in general, as was said to be the case under Article 41, is to prevent the tribunal "from being hampered in the exercise of its functions" particularly "because the respective rights of the parties to a dispute" before the tribunal "are not preserved". Thus, it follows from this object and purpose that "the power to order interim measures entails that such measures should be binding, insofar as that power is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determine by the final judgment" of the tribunal.
177
Fitzmaurice regarded as binding the orders of interim measures by the ICJ: see "The Law and Practice of the International Court of Justice, 1951-4: Questions of Jurisdiction, Competence and Procedure", 34 BYIL (1958) p. 1. Judge Ajibola agreed with this view: see the Bosnia Genocide Convention Case (Provisional Measures), 1993 ICJ Reports at p. 397. See also on the subject, H. Lauterpacht, Development of International Law by the International Court of Justice (1958) pp. 253-4. Collins disagrees with the view that such orders are binding in international litigation: see, "Provisional and Protective Measures in International Litigation", loc. cit. note 153 at pp. 216—20, and see the authorities reviewed there. See also Oda, loc. cit. note 153 at pp. 554-6. The view has been expressed that an order of interim measures cannot be enforced through the SC under Article 94(2) of the Charter, because that provision covers only "judgments": Mosler, in B. Simma (ed.), The Charter of the United Nations (1995) at pp. 103-4. But it is a question whether "judgments" in that Article excludes orders for interim measures which have the same binding force as the dispositifs of a final judgment on the merits or, for that matter, on competence or admissibility. Collier and Lowe agree with Mosler on this point: see op. cit. note 39 p. 175.
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10 JURISDICTION VIS-A-VIS REMEDIES
What is of concern here is the jurisdiction which international tribunals have to order remedies or to decide on what is to be done in terms of redress, if there has been a violation of the law, not particularly what they have actually done in the exercise of such jurisdictional authority. It may be the case that the exercise of choices once jurisdiction is established depends to some extent on the parameters of jurisdictional authority and that the former is inextricably linked with the latter. But it is possible to identify those broad parameters which define scope and leave some room for freedom in the exercise of the jurisdiction provided they are not exceeded.1 1
Remedies in international law in a variety of aspects have been discussed in various contexts by several authors but none have really addressed the basic jurisdictional issues that arise. Remedies as such have been considered, inter alios, by Personnez, La Reparation du prejudice en droit international public (1939), Reitzer, La Reparation comme consequence de I'acte illicite en droit international (1938), Schermers, Judicial Protection in the European Communities (1992), Gray, Judicial Remedies in International Law (1987), Gray, "Is there an International Law of Remedies?" 56 BYIL (1985) p. 25, Gross, "Limitations upon the Judicial Function", 58 AJIL (1964) p. 415. See further the bibliography in Gray, op. cit. above pp. 239-7.
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A second matter deserving attention is the source of the jurisdiction and particularly whether there is any inherent jurisdiction in the international judicial function to order remedies or particular types of remedies. Such inherent jurisdiction may or may not depend on the nature of the tribunal and the source of its establishment. A basic principle relevant to jurisdiction in relation to remedies is one that applies to international adjudication in general, namely that jurisdiction is consensual and depends basically on the agreement of the parties. Agreement in one form or another which is binding may define the scope of jurisdiction. One characteristic that needs to be noted in connection with possible inherent jurisdiction, however, is, as pointed out in other areas discussed earlier in this work, is that there is logically a general principle that anything agreed to by the parties in relation to jurisdiction which conflicts with the fundamental judicial character of an international tribunal cannot be recognized as having effect. A corollary to this principle is the proposition that a tribunal must enjoy the jurisdiction as inherent which its judicial character requires. But this principle has two aspects. First, the agreement of the parties may alter, modify or derogate from jurisdictional authority which would otherwise flow as inherent from the judicial character of a tribunal. Secondly, such change must not deprive a tribunal of what is inherently unalterable in its jurisdiction because of its judicial character. There is clearly here a ius cogens in the law of international adjudication. What the principle entails is that, where an agreement deprives a tribunal of jurisdiction to the extent that it ceases to be able to perform its judicial function as a judicial tribunal, that agreement is one which cannot be recognized or to which effect cannot be given.2 These principles are relevant to the law of jurisdiction in respect of remedies, as they apply elsewhere in the area of jurisdiction. Generally, problems in regard to them have not arisen nor have they often been discussed, particularly the principle flowing from ius cogens referred to above. In Chapter 15, the application in practice to IATs of the principle that, even in the absence of express provision in the constitutive instruments, a tribunal has certain inherent 2
On this see Chapter 3.
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jurisdictional authority to order certain remedies is discussed.3 There is no reason why the same principle should not apply to other tribunals, standing or ad hoc. There may be a question as to what is inherent in remedial jurisdiction and this may depend to some extent on the nature of the tribunal, e.g., whether it is the equivalent of a civil tribunal or whether it is a criminal tribunal, and what is the nature of its mandate, but the applicability of the general principle of inherence cannot be disputed, because not giving effect to it would render nugatory the existence of the judicial function in the international legal system. A problem may arise with distinguishing between the jurisdiction to order or award remedies and the principles of law and limits applicable to the content of such remedies, i.e. applying the distinction between jurisdictional authority and the principles relating to the implementation of jurisdictional authority. For example, the question whether a tribunal has jurisdiction to award damages can and must be distinguished from the question whether punitive damages may be awarded or damnum emergens may be included in an award of damages as an indirect injury, though the distinction may be a fine one. There may be other areas of remedies in which distinctions of this kind must be made. It is easy to see that the distinction applicable in the above kind of situation may not be as easy to apply as recognizing the similarity between the authority to award damages and the authority to order specific performance both of which can legitimately be regarded as matters of remedial jurisdiction. The kind of distinction identified must, however, be made as it corresponds to the distinction between competence and merits. Difficulties may also arise in identifying sources of jurisdictional authority. As already pointed out, consent is a basic source of remedial jurisdiction as it is for jurisdictional competence on the merits. This means that the consensual instruments relevant to a tribunal's establishment and functioning must be examined first to identify the scope of and limits on remedial jurisdiction.
3
IATs in particular will not be discussed in this chapter as such, though their jurisprudence may be considered peripherally.
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A question that may be raised is why a distinction should be drawn between competence to settle a dispute on the merits and competence (jurisdiction) to determine reparation in the same case. Could it not be argued that deciding the merits and determining reparation for any violation of the law are so closely linked that competence to deal with the former necessarily includes the competence to deal with the latter, because they both concern settlement of the dispute?4 Just as, once competence to settle the dispute is established within the agreed parameters, if relevant, the tribunal has jurisdiction to select and apply to the merits the substantive and procedural law which may, however, also be subject to agreement of the parties, so if such competence is established, must it not entail jurisdiction to select and apply the remedies and the law applicable to them, because that is a matter which is intrinsic to the judicial function of settling disputes in general? In the Nicaragua Case (Merits) the ICJ referred to the submissions of the claimant on the compensation to be paid as reparation as being submissions "on the merits".5 This statement, not incorrectly perhaps, apparently assimilates matters relating to remedies to matters of merits. In a sense matters relating to remedies may be regarded as relating to the merits insofar as they may be contrasted with jurisdictional matters which precede that taking up of the merits or matters of incidental jurisdiction but this does not preclude the treatment of remedies as distinct from the merits proper, particularly for the purposes of the analysis of jurisdictional aspects. It is also the case that constitutive instruments, whether of standing or ad hoc tribunals, do sometimes deal separately with jurisdictional 4
See possibly the statement of the ICJ in regard to reparation in the Nicaragua Case (Merits), 1986 ICJ Reports at p. 142. This statement may also be interpreted as relating to inherent jurisdiction. 5 Ibid: "The third submission of Nicaragua in its Memorial on the merits,..., requests the Court to adjudge and declare that compensation is due to Nicaragua... The fourth submission requests the Court to award to Nicaragua the sum of 370,200,000 United States dollars 'which sum constitutes the minimum valuation of the direct damages' claimed by Nicaragua."
Jurisdiction vis-a-vis remedies
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authority to grant remedies and authority to decide the merits proper of the case. While there is evidence of the assimilation of remedies to matters of merits, however, the history of adjudicatory settlement in the modern era (since the early nineteenth century, after the Jay Treaty of 1794) shows that remedial measures have, in large measure, where necessary, been separated from the settlement of disputes on the merits, particularly to the extent that by specific agreement on remedies apart from competence to settle disputes the parties may define the jurisdiction of tribunals within the limits referred to earlier in this chapter. In other words, once jurisdiction to settle a dispute is assigned to a tribunal, it does not necessarily mean that it has an unalterable inherent jurisdiction to select the remedies it may indicate. Clearly, where there is no explicit agreement on the extent of a tribunal's jurisdiction to choose remedies, such questions arise as whether there is an inherent jurisdiction to do so, what are its limits and how far all this depends on the genre of the dispute or proceeding. Where there is explicit agreement on remedies, the question that arises is how far this agreement is in accord with the principle that the fundamental judicial character and function of the tribunal must be respected (a ius cogens) and how the agreement is to be interpreted. These matters, while linked to the jurisdiction to settle the dispute on the merits, are regarded as sufficiently distinct from such jurisdiction as to be treated separately. In this context the distinction which is recognized between primary and secondary rights and obligations support the approach being taken. The former category of rights and obligations include only those of a substantive and procedural nature which the parties concerned enjoy in regard to the subject matter of the dispute. The latter category covers only the sanctions which may be applied under the relevant law where the primary rights and obligations have not been respected. It happens that this distinction has particular value in regard to adjudicatory settlement of international disputes, because the two categories of rights and obligations are often dealt with separately in the attribution of jurisdiction to international tribunals. It is the jurisdiction to settle disputes about, and to
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determine, secondary rights and obligations that is the subject of a consideration of remedial jurisdiction.6 AGREEMENT AND SPECIFIC PROVISION There are some extant standing tribunals the constitutive instruments of which refer specifically to and define clearly the remedies which the tribunals may order in the case of a breach of the law. The CJEC particularly is quite specific about the remedies available in different types of cases and the Court has had no problem with interpreting the relevant provisions and implementing them. There are several categories of litigation and the remedies available for each of them are different. There has never been any serious dispute in regard to the jurisdiction relating to remedies under these provisions. The assumption is that the remedies provided for in each category of proceedings are exclusive. The CJEC statute is a good example of generic remedies for which express and specific provision is made. Article 230 of the TEU (ex 173) provides for the review of the legality of certain acts of EU organs on the basis of certain defects and in actions brought by certain organs in certain circumstances. Article 237 (ex 180) (b) and (k) also gives the Court jurisdiction over certain disputes on the same basis of review. In actions for such review the only remedy provided is a declaration of partial or total voidness (Article 231 (ex 174)). Under Articles 232 (ex 175) and 233 (ex 176) failure to act in violation of the provisions of the TEU may be questioned before the Court by certain persons and in such cases the only remedy is a declaration to establish the infringement. Article 235 (ex 178) gives the Court jurisdiction to award compensation in disputes covered by Article 288. These 6
In the Chorzow Factory (Jurisdiction) Case Poland questioned the jurisdiction of the PCIJ to award damages, as a separate issue, although the Court's jurisdiction to deal with the merits of the dispute under the relevant convention was established: (1927), PCIJ Series A No. 9. In The Wimbledon Case the defendant state did not contest the jurisdiction of the PCIJ to award damages, even though the relevant treaty made no express provision for such an award and the Court exercised that jurisdiction: (1923), PCIJ Series A No. 1.
Agreement and specific provision
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provisions are examples of the specific grant of jurisdiction to grant certain remedies exclusively. There has not been any incidence of serious jurisdictional disputes in regard to them. There are other provisions which leave the remedial jurisdiction open. These will be referred to below.7 The European Convention on Human Rights also gives the ECHR a limited and specific jurisdiction in regard to remedies, as does the American Convention on Human Rights in respect of the judicial function of the IACHR. In both cases there have been no serious issues relating to remedial jurisdiction. Article 41 of the European Convention provides: "If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."8 Whether the ECHR has a wider jurisdiction by interpretation of the European Convention will be considered below. Article 63(1) of the American Convention gives the IACHR a somewhat broader jurisdiction but sill a limited jurisdiction. It provides: "If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party." In regard to criminal trials the statutes of the ICT Y (Article 24) and ICTR (Article 25) are quite specific on the jurisdiction that the tribunals enjoy in regard to penalties for violations of international criminal law. The former provides that: 1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia. 7 8
On remedies in the CJEC see Gray, op. cit. note 1 pp. 120 ff. On the implementation of this jurisdiction see Gray, ibid. pp. 153-60.
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Chapter 10. Jurisdiction vis-a-vis remedies 2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. 3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners.
The provisions of the ICTR statute are similar. Where the relevant jurisdictional instruments provide for virtual specific performance to be ordered by the Court in settling the dispute, the ICJ has accepted that jurisdiction as the many boundary (both land and maritime) cases show.9 The Court has accepted the function of delineating frontiers. Instances such as these where specific provision is made for remedial jurisdiction offer no difficulty nor have they given rise to disputes as to the exact scope of the jurisdiction.10 INTERPRETATION OF SPECIFIC PROVISIONS Where the reference of the specific provisions on remedial jurisdiction in the constitutive instruments of the tribunal is not specific enough, those provisions will have to be interpreted by the tribunal. Reliance may also be placed on inherent jurisdiction in interpreting these provisions. In either case reliance is placed on the existence of a jurisdiction which must be implied because the specific provision is not sufficiently clear. The IACHR, according to one view, has under the provisions of its constitutive instrument the jurisdiction to make declaratory 9
See, e.g., the Maritime Delimitation and Territorial Questions between Qatar and Bahrain Case, 2001 ICJ Reports p. 16, the Kasikili/Sedudu Island Case, 1999 ICJ Reports p. 1045. 10 The ICJ, for example, has been requested to indicate what the parties must do in regard to an arbitration in the Arbitral Award of 31 July 1989 Case, 1991 ICJ Reports p. 53, and to indicate what the parties would do and what compensation should be paid in the event of a finding of breach by either party in the Gabcikovo-Nagymaros Project Case, 1997 ICJ Reports at p. 7. It did what it was requested to in both cases.
Interpretation of specific provisions
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judgments in regard to remedies and award damages but may not make orders for injunctions or specific performance.11 Thus, that tribunal may not only pronounce on whether there have been violations of the American Convention on Human Rights but may indicate what steps may have to be taken to remedy such violations (declaratory judgments). However, it cannot order states what to do. This is an interpretation of Article 63 of the American Convention. The ECHR has the power to determine what may have to be done to remedy the violation but finally it was decided that it also has no power to issue orders under the present Article 41 of the European Convention (formerly Article 51). The question was in effect left open in Ireland v. UK,12 but was finally resolved in the Marckx Case,13 where the Court held that it had no power to annul or repeal municipal legislative provisions: "The Court's judgment is essentially declaratory and leaves to the State the choice of means to be utilized in its domestic legal system for performance of its obligation under Article 53." This limit on the Court's jurisdiction is confirmed in the many decisions under Article 41 where the Court has held that it is not empowered to direct states parties by issuing orders.14 Article 41 provides for "just satisfaction". Apart from holding that this does not include orders of specific performance, the Court has taken the view that this covers speedy reparation for violations of the Convention and, thus, it may be applied where the nature of the victim's injury makes restitutio in integrum impossible,15 though the Court may take into account the existence of a domestic remedy in 11
The Court mentioned this view and the issue in passing in its Restrictions to the Death Penalty Opinion (1984), 23 ILM p. 320. 12 ECHR Series A No. 25. 13 ECHR Series A No. 31, section 58. See also the Le Compte, Van Leuven and De Mujere Case, ECHR Series A No. 54, and the McGoff Case, ECHR Series A No. 83. 14 See the Airey Case, ECHR Series A No. 41, the Winterwerp Case, ECHR Series A No. 47. 15 See the Eckle Case, ECHR Series A No. 65. See also Gray, "Remedies for Individuals under the European Convention on Human Rights", Human Rights Review (1981) pp. 153-73.
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the assessment of just satisfaction.16 Reparation has included pecuniary satisfaction which the Court has either awarded or refused.17 However, satisfaction has also been held to be adequate as a result of the finding that there had been a violation of the Convention18 which means that the remedy does not lie in more than the finding on the merits. The ICJ, in interpreting the relevant enabling provisions in jurisdictional instruments, has not taken a narrow view of "reparation", where this is specified. It certainly has not taken the view that reparation is limited to satisfaction in the limited sense of a non-pecuniary remedy for injury to a state's honour and dignity which would take the form of a salute to the flag of the injured state or of a declaratory judgment itself representing just satisfaction. In the Nicaragua Case (Merits) the Court clearly stated that reparation provided for by acceptances under the Optional Clause and treaty provisions did include monetary compensation.19 INHERENT OR IMPLIED JURISDICTION There are two situations in which inherent jurisdiction may become relevant. First, in interpreting constitutive or jurisdictional instruments, tribunals may assume a jurisdiction by invoking a meaning which includes an implied jurisdiction, or by filling a gap in the express provisions by invoking its inherent jurisdiction. Secondly, where relevant instruments are silent on the question of remedies, the tribunal may, in effect, refer to its inherent jurisdiction, though often not in those terms. A. Interpretation of Express Provisions A good example of the first situation is the interpretation in practice of the term "award" used in constitutive instruments in arbitration. 16
See the Eckle Case, ECHR Series A No. 65, the Neumeister Case, ECHR Series A No. 17, the Peirsack Case, ECHR Series A No. 85. 17 See the DeWilde, Ooms and Versyp Case, ECHR Series A No. 14, the Ringeisen Case, ECHR Series A No. 15, the Neumeister Case, ECHR Series A No. 17. 18 See the Engel Case, ECHR Series A No. 22. 19 1986 ICJ Reports at p. 142.
Inherent or implied jurisdiction
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In the case of both the ICSID Convention and the relevant jurisdictional instruments of the Iran-US Claims Tribunal all that is clear is that there is to be an award.20 There is no reason why "award" should not mean simply a judgment declaratory of the rights and obligations of the parties to the dispute. However, in both these instances it has been assumed that the remedies cover compensation or damages as reparation. This is a common approach taken by arbitral tribunals in respect of the jurisdiction to make an award. Both the tribunals constituted under the ICSID and the Iran-US Claims Tribunal have consistently ordered the payment of compensation or damages.21 On the other hand, while in both cases tribunals have discussed restitutio in integrum, which is a form of specific performance, as a remedy, neither tribunal has ordered it. Moreover, an ICSID tribunal has expressed the view that it doubted that cancellation of a revocation, and restoration, of a license as restitutio in integrum was available as a remedy against a state.22 What these tribunals have done is to invoke an inherent jurisdiction to order damages or compensation, unless the contrary is stated. On the other hand, they have not been inclined to include specific performance in such a jurisdiction where the constitutive instruments do not refer to it. This exclusion may reflect a different perception of inherent jurisdiction from that of the ICJ, as will be seen. It may also reflect the particular circumstances of the arbitrations concerned. Some IATs have also, as will be seen in Chapter 15, assumed jurisdiction to award damages and compensation as such as a primary remedy, where their constitutive instruments do not specifically refer 20
See Section 4 of the ICSID Convention and Article IV of the 1981 Claims Settlement Declaration, 1 Iran-US CTR at p. 10. 21 See 1-4 ICSID Reports passim and 1-35 Iran-US CTR passim. 22 An ICSID Tribunal stated this in the Amoco Case (1984), 1 ICSID Reports at p. 473. The Iran-US Claims Tribunal discussed the relevance of restitutio in integrum in the context of an unlawful expropriation by referring at length to the statements of the PCIJ in the Chorzow Factory Case (Merits), 1928 PCIJ Series A No. 17 at pp. 47 ff. on the subject: the Amoco International Finance Corp. Case (1987), 15 Iran-US CTR at pp. 246 ff. However, in that case the subject was not an unlawful taking of property and the question of restitutio in integrum did not arise.
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to these remedies, though they refer to such remedies as rescission and specific performance and compensation only as a substitute, where such remedial action is refused by the respondent. In these cases the awards are against international organizations. But it must be noted that the CJEC in particular, acting as an IAT, has not expanded the explicit grant of jurisdiction to annul to include the award of damages or compensation by reference to an inherent jurisdiction. In the case of the ICTY, there is an explicit grant of jurisdiction only to impose the penalty of imprisonment for crimes which is a criminal penalty. The tribunal has assumed jurisdiction, evidently on an inherent basis, to impose the penalty of a fine for contempt of court.23 B. Absence of Provision What the position is where there is no reference to remedies at all has been discussed by the ICJ. The issue may arise in the case of a few tribunals, such as the ITLOS, where there is no reference to remedies at all. In arbitral practice, while seldom has there been a dispute as to the arbitral tribunal's jurisdiction in respect of remedies, the jurisdiction to order remedies has been exercised, even though no mention is made of it in the jurisdictional instruments. There are two questions. The first is whether a tribunal has an inherent jurisdiction to order remedies at all but must in the absence 23
See Judgment of January 31, 2000 of the Appeals Chamber in the Tadic Case (re Counsel, Milan Vujin): at para. 13: "There is no mention in the Tribunal's Statute of its power to deal with contempt. The Tribunal does, however, possess an inherent jurisdiction, deriving from its judicial function, to ensure that its exercise of the jurisdiction which is expressly given to it by that Statute is not frustrated and that its basic judicial functions are safeguarded. As an international criminal court, the Tribunal must therefore possess the inherent power to deal with conduct which interferes with its administration of justice. The content of that inherent power may be discerned by reference to the usual sources of international law." (see website http://www.un.org/icty) The content of the jurisdiction was discussed in ibid. paras. 14 ff.
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of an express attribution of jurisdiction confine itself to a declaratory judgment on the rights and obligations of the parties and leave the determination of remedies to them. The second relates to the scope of this jurisdiction, if it exists, that is, what generic remedies it covers, regardless of how the content of these remedies is determined in any given case. As seen above, that there is inherent jurisdiction of some kind, deriving from the judicial function, is evidenced in part by the conduct of tribunals in interpreting the express terms of constitutive and jurisdictional instruments by reference to inherent jurisdiction, whether explicitly or impliedly, to cover what is not expressly mentioned. But more importantly the ICJ has explicitly made statements supporting the view that there is some inherent jurisdiction in regard to remedies deriving from a grant of jurisdiction to settle a dispute on the merits. (i) The PCIJ and ICJ In The Wimbledon Case24 the PCIJ derived its jurisdiction from Article 387 of the Treaty of Versailles which stated, "In the event of violation of any of the conditions of Articles 380-386 or of disputes as to the interpretation of these Articles any interested power can appeal to the jurisdiction instituted for the purpose by the League of Nations." There was no reference to remedies. One of the claimant states, France, requested damages for injuries resulting from an alleged breach of treaty and the Court ordered that these must be paid even though the treaty made no express provision for such an award. The defendant state did not contest the Court's jurisdiction to award damages. In the Chorzow Factory (Jurisdiction) Case Poland raised the question of the Court's jurisdiction to award damages. The Court's jurisdiction was based on Article 23(1) of the Geneva Convention which provided that the Court could decide on "Differences of opinion resulting from the interpretation and the application of Articles 6 to 22". Poland argued that this did not contemplate
24
(1923), PCIJ Series A No. 1.
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disputes as to reparations claimed for violation of the Convention. The Court rejected this argument stating: It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations which may be due by reason of failure to apply a convention, are consequently differences relating to its interpretation.25 The suggestion of Poland that compromissory clauses should be narrowly interpreted so as to exclude claims for reparation, unless express provision was made for these, was dismissed by the Court as not supported by earlier arbitral practice nor by any recent developments. It said that, although some international arbitral tribunals were expressly given the power to decide on claims for pecuniary compensation, many more were only authorized to settle "all claims" and these tribunals did not find that they were prevented from fulfilling what were obviously the intentions of the parties and making awards of damages. In the Mavrommatis Palestine Concessions Case26 such a clause was assumed by the PCIJ to give it the same jurisdiction, although it did no discuss the question, as the point was not raised by the defendant state, even though it contested the Court's jurisdiction on other grounds. In the Chorzow Factory (Jurisdiction) Case the PCIJ supported its interpretation of the words "interpretation and application" by the argument that The decision whether there has been a breach of an engagement involves no doubt a more important jurisdiction than a declaration as 25
(1930), PCIJ Series A No. 9 at p. 21. The contrary opinion expressed by Judge Ehrlich, ibid. at p. 38, is clearly incorrect. 26 (1924), PCIJ Series A No. 2. Article 26 of the Mandate for Palestine provided: "The Mandatory agrees that if any dispute whatever should arise between the Mandatory and another member of the League of Nations relating to the interpretation or the application of the provisions of the Mandate, such dispute if it cannot be settled by negotiation shall be submitted to the PCIJ provided for by Article 14 of the Covenant of the League."
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to the nature or extent of reparation due for a breach of an international engagement the existence of which is already established.27
The Court gave several reasons for this conclusion, the most important of which was the reason that: An interpretation which would confine the Court simply to recording that the Convention had been incorrectly applied... without being able to lay down the conditions for the re-establishment of the treaty rights affected would be contrary to what would, prima facie, be the natural object of the clause; for a jurisdiction of this kind, instead of settling a dispute once and for all, would leave open the possibility of further disputes.28
This case held in narrow terms that a clause that gives jurisdiction over questions of the interpretation and application of a treaty includes the power to assess damages for the breach of that treaty, when these are requested by the claimant state. On a different point, in its decision on the merits of this case,29 the Court recognized that there were limits to jurisdiction over the actual assessment of damages. Germany had asked for a decision of principle to prevent the set off of a counterclaim against the indemnity fixed in the judgment or to allow such a set off in defined circumstances only. The Court held that, although jurisdiction as to the reparation due for a violation of an international convention involved jurisdiction as to the forms and methods of reparation, this principle might not be unjustifiably extended to enable the Court to take cognizance of any question of international law for the sole reason that the manner in which such a question was decided would have an influence on the effectiveness of the reparation which was requested. Here the possibility of a liquidated and undisputed claim against the indemnity awarded would not necessarily prejudice the effectiveness of reparation. But in the case the Court did not have to 27
(1930), PCIJ Series A No. 9 at p. 24. See also Lauterpacht, The Development of International Law by the International Court (1958) p. 246. 28 (1930), PCIJ Series A No. 9 at p. 24. 29 (1927), PCIJ Series A No. 13 at p. 59. Contra Judges Rabel and Nyholm, dissenting: ibid, at pp. 66 and 92 respectively.
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decide on the submission of Germany. This was a problem of where to draw the line between those questions directly affecting the form and method of reparation and those only remotely affecting its effectiveness. It has not arisen before the PCIJ or ICJ again but was discussed by the ECHR in the Ringeisen Case,30 where the Court took a wide view of its jurisdiction, similar to that of two judges who dissented in the Chorzow Factory (Jurisdiction) Case.31 The Corfu Channel Case (Merits)32 follows the Chorzow Factory (Jurisdiction) Case on the power to assess the amount of damages. In the Corfu Channel Case the ICJ had been given jurisdiction under a special agreement between Albania and the UK to decide, 1. Is Albania responsible under international law for the explosions in Albanian waters and for the damage and the loss of human life which resulted from them, and is there any duty to pay compensation? 2. Has the United Kingdom under international law violated the sovereignty of Albania by reason of the acts of its navy in Albanian waters and is there any duty to give satisfaction?
The United Kingdom claimed compensation for the loss of one ship and injury to another and for the pensions and other expenses incurred by the government in respect of the deaths and injuries of naval personnel. Albania contested the Court's power to decide on the amount of damages rather than just to establish the principle of responsibility. The Court held that it would be incompatible with the generally accepted rules of interpretation to decide that a clause which gives the Court jurisdiction to decide whether there is a duty to pay compensation did not also confer the power to assess the amount of damages payable. It also stated: If the Court should limit itself to saying that there is a duty to pay compensation without deciding what amount of compensation is due, 30
ECHR, Series A No. 16. In response to a request for the interpretation of its judgment of 22 June 1972 awarding Ringeisen DM 20,000 as just satisfaction the Court made it clear that its award was to be paid to Ringeisen personally and free from attachment. 31 See note 29 above. 32 1949 ICJ Reports p. 4.
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the dispute would not be finally decided. An important part of it would remain unsettled. As both parties have repeatedly declared that they accept the Resolution of the Security Council such a result would not conform with their declarations. It would not give full effect to the Resolution but would leave open the possibility of a further dispute.33
The question of the jurisdiction of the ICJ actually to award damages arose again in the Fisheries Jurisdiction (Germany v. Iceland) Case.34 Germany did not abandon its initial request for damages for the injury to German fishing vessels or to fishing operations caused by the interference of Icelandic coastal patrol boats. The Court's jurisdiction was based on an agreement of 1961 which provided that in case of a dispute relating to an extension of Iceland's fishing limits the matter shall, at the request of either party, be referred to the ICJ. The Court held that this covered Germany's fourth submission in its Memorial which requested the Court to declare that the acts of interference by Icelandic coastal patrol boats with fishing vessels registered in the FRG or with their fishing operations by the threat or use of force were unlawful under international law and that Iceland was under an obligation to make compensation therefor to the FRG. The Court in deciding that it had jurisdiction to decide this question said briefly that "The matter raised therein is part of the controversy between the Parties and constitutes a dispute relating to Iceland's extension of its fisheries jurisdiction".35 In the Iranian Hostages Case36 the ICJ accepted without comment that agreements providing it with jurisdiction over disputes as to the interpretation and application of treaties gave it the power to award damages. Thus, the Court has consistently, in its interpretation of compromissory clauses so far as the power to award damages 33
Ibid. at p. 26. The SC resolution was that the parties should refer the dispute to the Court. Five judges dissented on the Court's power to assess damages in the case: ibid. at pp. 57, 67, 73, 96, 128 respectively. 34 1974 ICJ Reports at p. 203. 35 Ibid. Dissenting on the point were Judges DeCastro, Gros and Petren, ibid. at pp. 225, 234 and 240 respectively. 36 1980 ICJ Reports p. 3.
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is concerned, in effect, accepted that it has an inherent jurisdiction to exercise such a power. In the Nicaragua Case (Merits) the ICJ quite categorically stated what it believed to be a general principle when it said "In general, jurisdiction to determine the merits of a dispute entails jurisdiction to determine reparation".37 But in that case it decided that it would leave the matter of the amount of compensation, which it decided was due, to the parties to negotiate as had partially been requested. As was said also in that case, where jurisdiction is based on the Optional Clause, that jurisdiction covers generally the power to decide on the nature and extent of reparation.38 In cases where application has been made for an award of damages, the Court has never questioned its power to make such an award and has never declined jurisdiction to do so on the ground that this would be outside its powers under Article 36(2) of its statute. It has apparently assumed that it would have jurisdiction to award damages but has, if necessary, refused jurisdiction on other grounds or accepted jurisdiction but determined that it did not have to decide on the award of damages.39 The scope of the Court's power to specify other remedies such as restitution or specific performance under a compromissory clause like that in the Chorzow Factory (Jurisdiction) Case, or under the Optional Clause has also been the subject of cases. In a few cases the claimant state has requested the Court to order the defendant state to act in a certain way. In the Iranian Hostages Case the Court made such an order but it has never discussed its power to do so. In the Chorzow Factory (Jurisdiction) Case Germany asked the Court to prohibit the export by Poland of certain products or, alternatively, to order that the Polish Government be obliged to cease working the factory concerned for the production of certain chemicals. Because neither of these measures could be included as 37 38 39
1986 ICJ Reports at p. 142. Ibid. Article 36(2) of the ICJ's statute provides for this. As in the Anglo-Norwegian Fisheries Case, 1951 ICJ Reports p. 116.
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a necessary part of the compensation due to Germany, the Court held that it was not necessary for it to decide Whether such a provision, although customary in contracts between individuals, might form the subject of an injunction issued by the Court to a government, even if that government were working as a state enterprise the factory of which export was to be limited, nor if the prohibition asked for would be fair and appropriate in the circumstances.40
In the Free Zones of Upper Savoy and the District of Gex Case,41 the Court made an order that France should withdraw its customs boundary in order to comply with its treaty obligations. However, express provision had been made for the Court to do at least this in the agreement from which it derived its jurisdiction. In the Right of Passage Case,42 where the ICJ had jurisdiction under the Optional Clause, Portugal requested that the Court should order that India respect its obligation to permit Portugal the right of passage. The Court gave a declaratory judgment without, however, denying that it had jurisdiction to make the order requested. In the Iranian Hostages Case the Court issued an order to the parties rather than merely a declaratory judgment in a case where the agreements between the parties made no reference to remedies. In its application the US had asked the Court to adjudge and declare that Iran had violated its legal obligations to the US; that Iran was under a particular obligation immediately to secure release of all US nationals currently being detained within the premises of the US Embassy in Tehran and to assure that all such persons and all other US nationals in Tehran were allowed to leave Iran safely; that Iran should pay reparation to the United States; and that the government of Iran submit to its competent authorities for the purpose of prosecution those persons responsible for the crimes committed against 40
(1927), PCIJ Series A No. 13 at p. 57. (1930), PCIJ Series A No. 24. 42 1960 ICJ Reports p. 6. See also the requests in the Nuclear Tests Cases, 1974 ICJ Reports at pp. 253 and 457 respectively, and the Diversion of Waters from the Meuse Case, PCIJ Series A/B No. 70. 41
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the premises and staff of the US Embassy and against the premises of its consulates. It is clear that, in spite of the unclear wording, an order of specific performance was in effect being requested. The Court found that Iran had violated its obligations to the US and unanimously held that it Decides that the Government of the Islamic Republic of Iran must immediately take all steps to redress the situation resulting from the events of 4 November 1979 and what followed from these events, and to that end: (a) must immediately terminate the unlawful detention of the United States Charge d'affaires and other diplomatic and consular staff and other United States nationals now held hostage in Iran, and must immediately release each and every one and entrust them to the protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations); (b) must ensure that all the said persons have the necessary means of leaving Iranian territory, including means of transport; (c) must immediately place in the hands of the protecting Power the premises, property, archives and documents of the United States Embassy in Tehran and of its Consulates in Iran; Decides that no member of the United States diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness.43 This was a case in which, although the word "ordered" was not used, the Court decided that the respondent should act in a certain way which is in effect an order of specific performance. It does not serve any purpose in this regard to make a distinction between a declaratory judgment stating that a party should act in a certain way and a judgment ordering or directing specific 43
1980 ICJ Reports at pp. 44-5. In the Arrest Warrant of 11 April 2000 Case, para 78(3), on www.cij-icj.org, the Court under the provisions of Article 36(2), assuming jurisdiction under the Optional Clause declarations of the parties, in effect exercised its jurisdiction to order specific performance (pursuant to the provisions of the Article which refers to reparation in general) by finding "that the respondent must, by means of its own choosing, cancel the arrest warrant of 11 April 2000 and so inform the authorities to whom the warrant was circulated".
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performance. The effect is the same, although formally there may be a difference. The Court makes a binding decision relating to specific action. A distinction would be without a material difference. In several cases the ICJ was asked to declare (rather than order) that the defendant state was under an obligation to act in a certain way in situations where the jurisdictional instruments did not specifically refer to such declarations or orders of specific performance.44 In the Temple of Preah Vihear Case, for instance, the Cambodian government had added a fifth submission at the end of the oral proceedings and asked the ICJ to adjudge and declare that the sculptures and other items which had been removed from the temple by the Thai authorities since 1954 were to be returned to the Cambodians by the Thai government. The Court, after formally admitting the late submission, found that the temple was situated in territory under the sovereignty of Cambodia and held in consequence that Thailand was "under an obligation to restore to Cambodia any objects of the kind specified in Cambodia's fifth submission which may since the date of the occupation of the Temple of Thailand in 1954 have been removed from the Temple or the Temple area by the Thai authorities".45 It is clear that, though formally in the nature of a declaration, what has been done in these cases in settling disputes under jurisdictional instruments which do not refer specifically to orders (or declarations) specifying actions to be taken or desisted from, the ICJ has decided in effect to indicate specific performance.46 Satisfaction has been recognized and awarded as a remedy by the ICJ at the request of the claimant, where the Court had jurisdiction 44
See the Guardianship of Infants Case, 1958 ICJ Reports p. 55, the Interhandel Case, 1959 ICJ Reports p. 6, the South West Africa Cases, 1962 ICJ Reports p. 319 and 1966 ICJ Reports p. 6, and the Aegean Sea Case, 1978 ICJ Reports p. 3. Judgments declaring that certain action should be taken were given in the Arbitral Award of the King of Spain Case, 1960 ICJ Reports p. 192 and the Ambatielos Case, 1952 ICJ Reports p. 28 and 1953 ICJ Reports p. 10. 45 1962 ICJ Reports at p. 37. 46 Mann, "The Consequences of an International Wrong in International and Municipal Law", 48 BYIL (1976-1977) p. 1 ff., agrees that specific performance should be readily available as a remedy.
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under the Optional Clause declarations of the parties pursuant to Article 36(2) of its statute which refers to "reparation" in general. In the Arrest Warrant of 11 April 2000 Case, after finding that the issue of an arrest warrant was a violation of the respondent's international obligations to the claimant, the Court stated that "the findings... constitute a form of satisfaction which will make good the moral injury complained of by the Congo".47 Satisfaction was clearly described as a remedy for moral injury. (ii) Arbitral Tribunals Arbitral tribunals have had to deal with such questions generally as the assessment of damages under instruments giving them jurisdiction to award damages rather than those dealing with the jurisdiction to award certain kinds of remedies or any remedies at all, where the relevant instruments are silent on the matter. Recently international arbitration, i.e., between states, whether involving claims by individuals or otherwise, has become less used as a method of settling disputes compared to the earlier situation. Since the Second World War there has been a marked decrease in the number of such arbitrations. Between 1945 and 1970 there were 23 arbitrations, fewer than one a year, in comparison with the average (of course, taken for a much longer period) of three a year between 1794 and 1945.48 Since 1970, apart from the cases before the Commissions set up under the 1947 Peace Treaties49 and before the Austrian-German Arbitral Tribunal,50 ICSID arbitrations51 and cases before the Iran-US Claims Tribunal,52 arbitrations generally involved requests for judgments which did not involve requests for damages or compensation. Requests for damages and their award were rare.53 Commissions set up to decide claims against Italy were 47
Para. 75 of the judgment on www.cij-icj.org. See Stuyt, A Survey of International Arbitrations (1990). 49 See UNRIAA, volumes 13, 14 and 16. 50 See Seidl-Hohenveldeon, The Austrian-German Arbitral Tribunal (1972). 51 See 1-4 ICSID Reports. 52 See 1-35 Iran-US CTR. 53 Damages were claimed in the Ambatielos Arbitration (1956), 12 UNRIAA p. 91, the Gut Dam Arbitration (1965): see Lillich, "The Gut Dam Claims 48
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controlled by the detailed provisions on damages in the Peace Treaty. Apart from the particular arbitrations referred to above most modern international arbitrations involve requests by the parties for declaratory judgments stating their legal position in terms of the violation of substantive obligations and the failure to respect substantive rights.54 The questions to be examined are whether arbitral law acknowledges that in the absence of reference to remedies in the jurisdictional instruments a tribunal may, pursuant to its inherent jurisdiction, pronounce on remedies and, if so, what are the generic remedies it may prescribe, or whether in the absence of such express provision a tribunal is confined to giving a judgment merely declaring the violations or otherwise of the substantive law. The remedies generally in issue are (i) restitutio in integrum, a form of specific performance, (ii) specific performance as such, (iii) negative injunctions, (iv) damages or compensation, which involves monetary payment and (v) satisfaction. It is clear that the parties may agree that a tribunal may prescribe all or some of these remedies. This power to attribute jurisdiction has never been questioned. The arbitral jurisprudence on inherent jurisdiction is, however, less easy to evaluate, because generally jurisdictional instruments indicate what remedies are permissible. Nevertheless, there is some evidence that may be examined. At the outset it may be remarked that there is some support for an element of inherent jurisdiction. The real issue is the generic extent. Agreement with Canada", 59 AJIL (1965) p. 892, the Lighthouses Arbitration (1956), 12 UNRIAA p. 155. They were only awarded in the last, the second being settled by a lump sum payment and the case in the first being dismissed on a preliminary objection. On the awards and settlement in the Lighthouses Arbitration see 63 RGDIP (1959) p. 248. The Commissions set up to decide claims against Italy were controlled by the provisions on damages in the Peace Treaty: see 13, 14, 16 UNRIAA passim, Surrey, "Problems of the Italian Peace Treaty: Analysis of Claims Provisions and Descriptions of Enforcement", Law and Contemporary Problems (1951) pp. 435-47. In the case of the USA the requirements of the Peace Treaty were elaborated and clarified by subsequent agreements: see 14 UNRIAA p. 67. 54 A writer commenting in 1938 had predicted to the contrary that the right to actual reparation would be developed with the increase in scope of the law relating to state responsibility: Personnez, op. cit. note 1 p. 330.
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It must also be observed that tribunals have not been particularly explicit about the source of their inherent jurisdiction, where they implement such jurisdiction. For example, in cases where remedies other than damages have been awarded, or a declaratory judgment has been given, this has been done without any reference to national systems of law as sources of general principles of law. It is significant that the differences which exist in this regard among national systems do not bring about much variation in result. Thus, in Germany (and in the Eastern European countries) specific performance is the primary remedy for breach of contract. In France, Italy and Switzerland the judge has the power to order either damages or specific performance as he thinks appropriate. Specific performance is an exceptional remedy in common law systems. It is an equitable remedy and therefore will only be awarded where this would not lead to injustice and where the common law remedies are inadequate. Similarly in delict restitutio in integrum is the primary remedy in German law, optional in French law, and exceptional in common law systems. But in fact the difference between the results produced by common law and civil law systems may not be very great because the restrictions on specific performance and restitutio in integrum in the latter ensure that they are rarely allowed, where they would not be allowed in common law countries. However, in international arbitration the question of remedies available seems to have been left often to the judgment of arbitrators. On the other hand, it is not unusual for the jurisdictional instrument not to contain specific provisions on the question of remedies at all.55 This is true not only of those instruments which provide for the settlement of just one or two claims but also of those establishing a commission to decide a large number of claims. Treaties such as that of 1829 between Brazil and Great Britain,56 which contains precise rules for the adjustment of claims for indemnities, and the 1923 agreements between Mexico and various European states,57 which 55
For an example of express provision for the award of remedies other than damages see the Trail Smelter Arbitration (1938), 3 UNRIAA p. 1905. 56 See Parry, 79 The Consolidated Treaty Series 1648-1918 p. 397. 57 See Feller, The Mexican Claims Commissions (1935) at pp. 412 ff.
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refer to damages (and give some guidance on the appropriate measure of damages), are rare. Most of the international arbitral tribunals were established to deal with claims for damages for injury to foreign nationals. These claims formed the largest single category of claims. For example, of the 435 arbitral tribunals between 1794 and 1972 listed in a repertory,58 at least 261 dealt with claims for damages. The remaining tribunals were generally charged with giving their interpretations of international law rather than prescribing remedies for its violation. They gave judgments declaratory of rights and obligations of the parties on the merits, except that, 85 tribunals of these handled boundary disputes or questions of title to territory. The judgments in these cases may be regarded as requiring a kind of specific performance. Further, remedies other than damages for breaches of international law were rare. The power of tribunals to award particular remedies depends on the agreements under which they are established, but in general states parties have not made express provision on this. Some arbitral tribunals were expressly given the power to decide on "claims for pecuniary satisfaction", but many were authorized simply to settle "all claims" and they made awards of damages.59 Jurisdictional problems do not arise when the tribunal is asked merely to interpret a treaty or otherwise declare the state of international law as applied to the case. But in the absence of express provision the jurisdiction to prescribe other remedies which are found in national legal systems, such as negative injunctions, specific performance, and restitutio in integrum, must depend on the practice of the tribunals themselves and on references to principle. It may also be observed that the award 58
Stuyt, A Survey of International Arbitrations (1990). E.g., the La Masica Case (1910), GB v. Honduras, 11 UNRIAA p. 551, the Rhodope Forests Case (1931), Greece v. Bulgaria, 3 UNRIAA p. 1389. In the latter case the tribunal derived its jurisdiction from Article 181 of the Treaty of Neuilly, which stated: "In cases of disagreement as to the application of this Article, the difference shall be submitted to an arbitrator appointed by the Council of the League of Nations." The Greek Government sought reparation for the confiscation of the property of their nationals and the arbitrator allowed this without any discussion as to whether he had jurisdiction to do so. 59
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of remedies other than damages by international arbitral tribunals is unusual. (a) Negative Injunctions. In the Trail Smelter Arbitration60 an injunction was ordered, but express provision had been made for such an order in the compromis. This stated that the tribunal should decide (1) Whether damage caused by the Trail Smelter in the State of Washington has occurred since 1 January 1932 and if so what indemnity should be paid therfor. (2) In the event of the answer to the first part of the preceding question being in the affirmative, whether the Trail Smelter should be required to refrain from causing damage in the State of Washington in the future, and, if so, to what extent?
In El Salvador v. Nicaragua,61 the Central American Court of Justice was asked to issue an order enjoining the defendant state from carrying out its obligations under the Bryan-Chamorro Treaty, because these were incompatible with the requirement of a prior treaty made with the claimant state. The Court did not state that such an order was necessarily outside its jurisdiction, but refused to give an injunction in this case, since one of the parties to the BryanChamorro Treaty was not subject to the jurisdiction of the Court. However, there has been no pronouncement either that a negative injunction cannot be issued. (b) Restitutio in Integrum. The PCIJ, in the Chorzow Factory Case (Merits), has explained that restitutio in integrum demands the re-establishment of the situation which would in all probability have existed if the illegal act had not been committed.62 Thus, it does not expressly require, though it may involve, an order for specific 60
(1938), 3 UNRIAA p. 1905. (1917), 11 AJIL(1917)p. 674. 62 (1928) PCIJ Series A No. 17. Some writers have equated restitutio in integrum to specific performance as such: See, e.g., Mann, loc. cit. note 46 at p. 13, the arbitrator (Lagergren) in BP v. Libya (1973), 53 ILR p. 297. 61
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performance, and it goes further than specific performance in that it may include the rectification of harm already caused by the illegal act. Restitutio in integrum is often divided by writers into two categories, legal and material.63 The former involves an order by a tribunal for the repeal or alteration of a measure of the defendant state's legislature, executive or judiciary, the latter typically involves an order for the restoration or repair of property unlawfully seized. There is rarely any specific provision for either type of restitutio in integrum in arbitration agreements. There are some writers who argue that restitutio in integrum is the primary remedy. As one writer says, "Depuis plus d'un siecle les commissions et tribunaux internationaux appliquent la regie qui prescript une restitution en nature au profit du lese et seulement en cas d'impossibility une indemnite pecuniaire."64 But the actual awards of restitutio in integrum in international arbitral practice are few. The view is based on principles found in national legal systems, though in the common law systems the remedy is an exceptional one.65 There is little evidence, however, to support the primacy of restitutio in integrum in international arbitral practice. A distinction must be made between those cases where express provision for the award of restitutio in integrum existed in the compromis and those where no such provision was made.66 It cannot be said that few cases of the former have created a general customary rule of international law 63
See, e.g., Garcia Amador, in Garcia Amador, Sohn and Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens (1974) at p. 100, Personnez, op. cit. note 1 p. 77. 64 Reitzer, op. cit. note 1 p. 171. 65 See Mann, loc. cit. note 46 at p. 13. 66 De Eulate, "La restitutio in integrum en la pratica y en la jurisprudencia internationales", 29-32 Revista de ciencia y tecnica juridica (1971-2) p. 11, gives a lengthy list of instances of restitutio in integrum in diplomatic and arbitral practice but he does not make this distinction. The arbitrator (Lagergren) in BP v. Libya, drew the distinction, and after surveying those arbitral agreements where express provision was made for restitutio in integrum concluded that "such treaties and compromis are not numerous and consistent enough to be regarded as evidence of a uniform state practice": see loc. cit. note 62 above. For restitution of property seized in war see Vasarhelyi, Restitution in International Law (1964), and Drucker, "Restitution in International Law", 15 ICLQ (1966) pp. 263-9.
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establishing the primacy of restitutio in integrum not only for the reason that they are not numerous, but because it is doubtful that their inclusion in such compromis was based on an opinio iuris. In some cases where no provision was made for it, "legal" restitutio in integrum was ordered, nevertheless. In the Martini Case, where no specific power to award restitutio in integrum was given in the compromis, the tribunal held that a Venezuelan court had acted unlawfully in demanding certain payments from Martini. Hence, it concluded: Bien que ce paiement n'ait jamais ete effectue, les obligations existent en droit. Ces obligations doivent etre annullees, a titre de reparation. En prononcant leur annulation le Tribunal Arbitral souligne qu'un acte illicite a ete commis et applique le principe que les consequences de 1'acte illicite doivent etre effaces.67
In El Salvador v. Nicaragua the Central American Court of Justice held that: The Government of Nicaragua, by availing itself of measures possible under the authority of international law, is under the obligation to re-establish and to maintain the legal status that existed prior to the Bryan-Chamorro Treaty between the litigant republics in so far as related to matters considered in this action.68
In L'Affaire de la Societe Radio-Orient69 the PCA directed the revocation of an order which they held had been made in violation of Egypt's treaty obligations.70 As for material restitution, the tribunal in the British Property in the Spanish Zone of Morocco Case ordered the Spanish Government to provide premises for use by the British consul at Tetuan to replace 67
(1930), 2 UNRIAA at p. 1002. (1917), 11 AJIL (1917) at p. 696. 69 (1940), 2 UNRIAA p. 1871 (Levant States v. Egypt). 70 Apart from cases settled by diplomacy, there are no other cases where "legal" restitutio in integrum was ordered without provision having been made for it expressly in the compromis (see the United Fruit Company Case and the Hotel Metropole Case, cited in de Eulate, loc. cit. note 66). 68
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those for whose unlawful destruction it was responsible.71 There are more examples of material restitution based on express provision in the treaty establishing the arbitral tribunal concerned or flowing from diplomatic settlement.72 On the other hand, where money unlawfully seized is ordered returned by an arbitral tribunal,73 this is really a case of the award of damages often with interest and not of true restitution because it is not the actual notes and coins seized which are ordered returned. It is significant that in many arbitration treaties made in the 1920s to which Germany was a party there was included a clause providing that, if, according to the constitutional law of the offending state, the effects of an act or decision found in violation of international law could not be rectified by administrative measures, the injured state should get appropriate relief in another form. Article 32 of the 1928 General Act includes this type of provision: If, in a judicial sentence or arbitral award it is declared that a judgment, or a measure enjoined by a court of law or other authority of one of the parties to the dispute, is wholly or in part contrary to international law, and if the constitutional law of that party does not permit or only partially permits the consequences of the judgment or measure in question to be annulled, the parties agree that the judicial sentence or arbitral award shall grant the injured party equitable satisfaction.74
This kind of provision points to the fact that a tribunal could in the first place order restitution. There are difficulties with material restitution in international law. For example, the length of time that has elapsed since the original unlawful act may make restitution difficult or impossible or restitution may not constitute an adequate 71
(1923), 2 UNRIAA at p. 722. See de Eulate, loc. cit. note 66 at pp. 20 ff. 73 There are several examples of this kind of case: see, e.g., The Macedonian (1958), USA v. Chile, Moore, History and Digest p. 1449, the George Turnbull, Manoa Co. (Ltd.}, Orinoco Co. (Ltd.} Case (1903), USA v. Venezuela, 9 UNRIAA p. 299. 74 See Hudson, 4 International Legislation (1931) p. 2529. 72
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remedy for all the damage involved and certainly it cannot repair moral or personal injury. Restitutio in integrum has also been refused by tribunals in several cases. Thus, in the Rhodope Forests Case75 Bulgaria had unlawfully confiscated forests belonging to Greek nationals. The choice whether to order restitutio in integrum or damages was left to the arbitrator who decided against the former on the ground that it would be unacceptable to compel Bulgaria to restore integrally the disputed forests as only some of the dispossessed owners had made claims and it was not likely that the forests were in the same position as they had been in 1918. Again, in the Walter Fletcher Smith Case76 the claimant United States requested either restoration of the property illegally seized and damaged by Cuba or pecuniary compensation. The arbitrator held simply that it was "for the best interests of the parties and of the public" that the remedy be damages. In two cases decided by the PCA, where it was held that there had been a breach of international law and where it might have seemed at first sight that restitution would be the appropriate remedy, this was refused. Thus, in the Savarkar Case77 the Court held that, while an irregularity had been committed in the arrest of Savarkar and his delivery to the British police by a French police officer, there was no rule of international law which imposed under the circumstances of the case any obligation on the state which had the custody of the prisoner to restore him because of a mistake made by the foreign agent who delivered him up. In the Casablanca Deserters Case78 the secretary of the German consulate was held guilty of a grave violation of his duties for obtaining the protection of the Consul for deserters not of German nationality. The tribunal further held that the French military authorities should have respected the authority of the German Consul by leaving the deserters in his possession until the question of jurisdiction could be decided. The use of force by the French soldiers to seize the deserters was declared to be 75 76 77 78
(1931), (1929), (1911), (1909),
3 UNRIAAp. 1389. 2 UNRIAAp. 913. 11 UNRIAAp. 252. 11 UNRIAAp. 119.
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unwarranted, but the tribunal declined to direct the surrender of the deserters. The cases show that sometimes, where there is a choice accorded by the jurisdictional instrument, tribunals may choose not to order restitution, and that sometimes where the constitutive instruments are silent the tribunal may simply not choose restitution at all. However, while the cases may not support the principle that restitutio in integrum is the primary remedy, they do support the principle that a tribunal may order such restitution, if it chooses, even if the constitutive instruments are silent on the specific remedy available or even on remedies in general.79 On the other hand, there are no identifiable principles as to when restitution must be chosen rather than some other remedy. (c) Specific Performance. International arbitral tribunals confronted with requests for specific performance of obligations or otherwise as a remedial measure have dealt with such requests differently. In the Giovanni Cervetti Case80 and the Norberto Paquet Case81 the claimant states requested the tribunal to order the payment of interest on payments by Venezuela that were overdue, as required by the treaty in issue. However, the question whether it could order specific performance of the treaty obligation was not decided by the tribunal in either of these cases, for it held that it was not able to award interest to run beyond the termination of its labors. In the George W. Hopkins Case, however, the Mexican Government had refused payment of six postal money orders issued by a revolutionary regime. As regards three of these orders, the tribunal ordered that The Government of the United Mexican States shall pay to the Government of the United States of America on behalf of George W. Hopkins the total amount of the orders . . . with interest at the rate of 6% p.a. to the date on which the last award is rendered by the Commission.82 79
Contra Baade, "Indonesian Nationalization Measures before Foreign Courts— a Reply", 54 AJIL (1960) p. 801, Feller, The Mexican Claims Commissions (1935) p. 290. 80 (1903), Italy v. Venezuela, 10 UNRIAA p. 496. 81 (1903), Belgium v. Venezuela, 9 UNRIAA p. 325. 82 (1926), USA v. Mexico, 4 UNRIAA at p. 219.
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This could very well be interpreted as an order for the specific performance of Mexico's obligation to honor the postal order. It could also be regarded as an award of damages. It is, thus, not clear from international arbitral practice whether specific performance is a remedy that is available in the absence of express provision. Text writers have expressed different views on the matter. One view is that there is no reason why an order of specific performance should not be made.83 On the other hand, it has been said that specific performance is not a suitable remedy for an international tribunal.84 These are differences of opinion based on policy considerations, apparently. The practice of tribunals is inconclusive. However, it is significant that, although tribunals have not specifically stated positively that they have the authority to order specific performance, neither have they denied in any way that they have such power. On the contrary, the George W. Hopkins Case could be seen as involving specific performance. This case, thus, provides more evidence in favor of the availability of specific performance than against it. In the other two cases, while the requests could have been dismissed on the ground that specific performance was not an option for the tribunal, if the requests were regarded as for specific performance, the tribunal did not do this. Rather it rejected the requests for other reasons. Thus, in no case has there been an open denial of the availability of the remedy of specific performance, although there may have been opportunities to do so, even if it is apparent that the issue as such has not been raised by either of the parties and has not been specifically addressed. (d) Damages. Damages have been awarded by tribunals without question, where they have been requested, even in the absence of express provision in the jurisdictional instruments. They are the 83
See Mann, loc. cit. note 46 at p. 13. See Ralston, International Arbitration from Athens to Locarno (1929) p. 61. The arbitrator in BP v. Libya took the same view as Ralston that specific performance was not an appropriate remedy: (1973) 53 ILR p. 297. This was not an international arbitration proper but a transnational one. 84
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commonest remedy in arbitral practice.85 It has never been argued that in the absence of express provision for the award of damages, tribunals are limited merely to declaring the rights and obligations of the parties on the merits, i.e., to giving a declaratory judgment, or to awarding some form of satisfaction not amounting to substantial damages. (e) Satisfaction. The vast majority of international arbitral decision on reparation, generally in the form of damages, clearly concern claims by states involving injury to their nationals. In the law of state responsibility a distinction is generally made between injuries to individuals ("private") and injuries to states ("public").86 In regard to the latter the injury to a state's honor and dignity claims prominence and often it is thought that the remedy for such injury is "satisfaction". However, the exact juridical status of this remedy and its relation to pecuniary compensation for injury to a state as such are not clear.87 The function of satisfaction is admitted to be repairing moral injury to a state,88 but it is not easy to determine when exactly such injury exists. Under the traditional theory of state responsibility every injury to a foreign national involves a moral injury to his state. In arbitral practice, however, states apparently claimed almost exclusively for injury to their nationals and rarely included separate claims on their own behalf. It has been found that satisfaction has been typically allowed in diplomatic practice in cases which include attacks on a state's territory, its agents, official residences, ships and 85
See the many cases extracted in Coussirat-Coustere and Eisemann, 1-3 Repertoire de la jurisprudence arbitrale Internationale (1991). 86 See the explanation by Garcia Amador, loc. cit. note 63 at p. 91, Personnez, op. cit. note 1 p. 16. 87 See Bissonnette, La Satisfaction comme mode de reparation en droit international (1952), Part II, Chapter 3, Brownlie, System of the Law of Nations: State Responsibility, Part I (1983) p. 208. 88 See, e.g., Bissonnette, op. cit. note 87, Garcia Amador, loc. cit. note 63 p. 89, Przetacznik, "La Responsabilite internationale de 1'etat a raison des prejudices de caractere moral et politique causes a autre etat", 45 RGDIP (1974) p. 919.
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flag.89 The most common types of satisfaction for these injuries may be divided into four groups: apologies, punishment of the guilty, assurances as to the future, and pecuniary satisfaction. However, satisfaction as a remedy is encountered much less in arbitral jurisprudence than in diplomatic practice.90 It is, nevertheless, a remedy which has been awarded. In diplomatic practice the distinction between satisfaction and pecuniary compensation for injury to a foreign national is usually clear, as the typical measures of satisfaction are non-pecuniary. In arbitral decisions, however, it is sometimes more difficult to make this distinction. Here again where the satisfaction is non-pecuniary there is no problem. Thus, in the Carthage Case91 and the Manouba Case92 a declaratory judgment was held to constitute adequate satisfaction for violation of state sovereignty. In the I'm Alone Case the tribunal recommended that the United States should apologize to the Canadian Government for its unlawful action in sinking a Canadian ship.93 It is obviously more difficult to distinguish pecuniary "satisfaction" from damages. Unlike the latter, pecuniary satisfaction is not necessarily calculated on the basis of the extent of the injury involved. But, where there has been a moral or personal injury to the individual, it is difficult to distinguish whether an award apparently in excess of mere compensation for his financial loss includes an element for the satisfaction of the state or whether it includes simply compensation for moral injury to the individual. It is often not easy to separate the two and, further, to distinguish them from punitive damages. But this is a matter for the substantive law of damages. 89
See Bissonnette, op. cit. note 88. State practice on the award of satisfaction shows the lack of objective standards in this area, much depending on political factors: see Bissonnette, ibid., Part II, Chapters 1 & 2. In the extensive diplomatic practice on satisfaction the emphasis is on the affront to the state, however caused, rather than on any breach of international law. 91 (1913), France v. Italy, 11 UNRIAA p. 449. 92 (1913), France v. Italy, 11 UNRIAA p. 463. 93 (1935), USA v. Canada, 3 UNRIAA p. 1609. 90
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Pecuniary "satisfaction", as opposed to other forms of satisfaction, has never been described as such by an international arbitral tribunal. When claims expressly based on indignity to the state have been made, these have been refused.94 There are cases where the amount awarded seems greater than necessary to compensate the injury to an alien, which is the substance of the claim, and in some of these it may be possible to infer an intention provide pecuniary "satisfaction" for the state. It is not clear sometimes whether the relevant cases in fact involved the award of money to the claimant state as opposed to its national. It could be that the monetary award was intended for the individual and the terms of the decision were also supposed to constitute satisfaction for the state.95 Certainly, in the I'm Alone Case,96 however, pecuniary satisfaction was awarded to a state in the form of an award of money for itself rather than in the form of an increased award to its national from which the state was to derive more intangible satisfaction. (f) Declaratory Judgments. A question which may be asked is whether the declaratory judgment has been used by arbitral tribunals as a remedy within a tribunal's jurisdiction for breaches of international law. Tribunals were often called upon to give judgments on the interpretation of a treaty or contract, or on the position of a boundary, or on sovereignty over a particular area, without pronouncing on breaches of international law, though in many cases such breaches are implicitly pronounced on in the judgments. A judgment which requires a certain course of behavior from the states involved is more in the nature of an indication of specific performance than a declaration. These are not in issue. Declaratory judgments merely that there had been a breach of international law were not common in international arbitration. These were rarely 94
See, e.g., the Miliani Case (1923), Mexico v. USA, 4 UNRIAA p. 173, and the Stevenson Case (1903), GB v. Venezuela, 9 UNRIAA p. 494. 95 See the discussion in Gray, op. cit. note 1 pp. 42-8, Bissonnette, op. cit. note 88. It may be noted that most interstate arbitrations since the Second World War have not involved claims for "satisfaction". 96 (1935), USA v. Canada, 3 UNRIAA p. 1609.
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requested, perhaps as a preliminary to a possible agreement on remedial action by the parties or to a later decision by the tribunal, or as a substitute for other remedies. There are awards of nominal damages but, while these judgments find a breach of international law, they purport also to establish that no substantial remedy is called for in the circumstances, though some recognition of a breach and the remedial consequences of such a breach is warranted.97 They are by no means simply declaratory. In the Sanchez Case the tribunal refused to give a declaratory judgment, as such, in the absence of evidence of damage which would have called for an award of damages. The Umpire on behalf of the tribunal said: The Umpire does not take up this question of responsibility, because in the supposition that it might be determined abstractly or in principle against Venezuela it would not be possible to fix these terms concretely in order to make it effective, because the claimant has not proved even one of the facts necessary to estimate and determine any indemnity.98
In the Cayuga Indians Case" the tribunal said that its powers were limited to making a monetary award and that it could not make a declaration "That the Cayuga Indians are entitled to the annuity for the future", but could only award a lump sum representing the present value of such an annuity. While this may appear to be in form a rejection of jurisdiction to give a declaratory judgment, it is clear that the tribunal opted for an assessment of damages and was in fact refusing to assume jurisdiction to make a finding that there was an obligation, which would have to be specifically performed over a period. It was rather a choice of damages as a remedy rather than specific performance. In the Carthage Case100 and the Manouba Case101 the tribunal considered that a declaration constituted satisfaction for 97 98 99 100 101
See, e.g., the Brower Case (1910), GB v. USA, 6 UNRIAA p. 109. (1903), Spain v. Venezuela, 10 UNRIAA at p. 755. (1910), GB v. USA, 6 UNRIAA p. 173. (1913), France v. Italy, 11 UNRIAA at p. 460. (1913), France v. Italy, 11 UNRIAA at p. 475.
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breach of an obligation, "Considering that in case a power should fail to fulfill its obligations whether general or special, to another power, the establishment of this fact especially in an arbitral award, constitutes in itself a serious penalty". The tribunal refused pecuniary compensation for insults to the French flag. This was a case of the declaratory judgment being used as satisfaction. The arbitral decisions do not show that the declaratory judgment is excluded per se as a remedy from the jurisdiction of tribunals. On the contrary there are decisions in which such judgments have been given. Whether a tribunal chooses to give a declaratory judgment rather than, for instance, damages or specific performance, is a matter of judicial policy, depending on the circumstances of the case. The fact that, as in the Sanchez Case, a tribunal may refuse to give a declaratory judgment establishing a breach of law at all is a matter of choice depending on the circumstances of the case rather than a result of an absence of jurisdiction to do so. In the Sanchez Case itself the tribunal was obviously concerned about the "effectiveness" of its judgment without a finding of injury warranting an award of damages in deciding not to give a declaratory judgment. There was no indication that the tribunal was without jurisdiction to do so. (Hi) Conclusion It would appear that both in arbitral jurisprudence and in the jurisprudence of the PCIJ and ICJ there is no indication that any of the forms of remedy discussed above in sections (i) and (ii) is, as such, outside the jurisdiction of tribunals. In principle all of these remedies are within their jurisdiction, in the absence of provision in the jurisdictional instruments to the contrary. That jurisdiction is inherent to the extent that such forms of remedy are not provided for expressly in the jurisdictional instruments. This applies both to arbitration and to standing courts. There may be differences of form, nevertheless. For example, specific performance may not be indicated in the language of an order but may take the form of a declaration or finding of what a party or the parties must do or refrain from doing. This does not affect the substance of the matter as far as the nature of the remedy which is inherent in a tribunal's jurisdiction is concerned.
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The above conclusions are important, for example, for the remedial jurisdiction of a tribunal such as the ITLOS, whose constitutive instrument does not have provisions on remedies available. Basically tribunals have as wide an inherent jurisdiction in regard to remedies as is appropriate to their judicial functions as international tribunals. Clearly this inherent jurisdiction may in certain circumstances depend on the kind of tribunal in question but by and large a starting point for the consideration of the remedial jurisdiction of a tribunal is the wide scope of jurisdiction portrayed above. This amounts to saying that inherent remedial jurisdiction exists, unless it is shown to be otherwise, whether because of the provisions of the constitutive instruments of the tribunal or the circumstances of the case. In this connection the statement made by the ICJ in the Nicaragua Case (Merits) that "In general jurisdiction to determine the merits of a dispute entails jurisdiction to determine reparation" holds good for all international tribunals. "Reparation" here clearly means "modalities to repair the wrong". There is no reason to restrict it to the award of damages.
THE PRINCIPLE or NON ULTRA PETITA AND JURISDICTION The non ultra petita principle is a recognized general principle of law. It has been referred to by the ICJ in connection with claims on the merits.102 It has some bearing on jurisdictional choices, especially where an inherent jurisdiction is being exercised. The principle requires that a judgment award as reparation no more than has been requested by the claimant. In relation to jurisdiction pertaining to remedies the application of the principle would require that a greater species of remedy not be chosen than the species requested, even if there is an inherent 102
In the Asylum Case, 1959 ICJ Reports at p. 402, the Court referred to its duty "to abstain from deciding points not included in the submissions". In the Arrest Warrant of 11 April 2000 Case (2002), para. 43, www.cij-icj.org, the Court referred to its statement in the Asylum Case and described it as the non ultra petita rule, in applying it to the case in hand.
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jurisdiction to select it. Hence, where, for example, only a declaratory judgment is sought, a tribunal may not, even if it has the inherent or expressed jurisdiction to do so, make an award of damages. Or, if compensation alone is sought in respect of an unlawful expropriation, a tribunal may not choose to order restitutio in integrum, even if it has the jurisdiction, inherent or otherwise, to do so. This presupposes a hierarchy of remedies, one being higher in the scale than another. It is possible to establish such a hierarchy on the basis of the importance of a remedy. Thus, restitutio in integrum would be at the top of the hierarchy, next would be placed specific performance, including negative injunctions which are a negative form of specific performance, next damages (which includes the lesser concept of compensation), next satisfaction less than damages and finally a declaratory judgment. In criminal jurisdiction, the same principle would apply to the penalties imposed. A court could not impose a greater penalty in kind or degree than what is requested.
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11 JURISDICTION TO REOPEN CASES
An international case (affaire) involving an international legal dispute which has been decided and disposed of by an international tribunal may be reopened and reexamined in certain circumstances. The nature of the reopening and reexamination will depend on a variety of factors. There are certain circumstances in which both the jurisdiction to reopen and the extent of the jurisdiction to reexamine will depend primarily and largely on the explicit agreement of the parties concerned as reflected, for example, in the compromis or the constitutive instrument of the tribunal. There is also an inherent jurisdiction in this regard which all international tribunals have subject to permissible modification, exclusion or variation in the constitutive instruments. In the history of adjudicatory dispute settlement in the international legal system there have evolved several methods of reopening a case. There are proceedings (i) on appeal; (ii) for review short of appeal; (iii) based on fraud or corruption;
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Chapter 11. Jurisdiction to reopen cases (iv) for rectification; (v) for interpretation; (vi) for annulment. (1) RES JUDICATA AND FINALITY
Before considering these available methods and their incidence, it is necessary to examine the implications of finality of a judgment and in this connection the principle of res judicata. The constitutive instruments of established courts generally expressly state that the judgments of the tribunals shall be final (and binding) and, sometimes, without appeal,1 and the compromis of arbitral tribunals may have the same or similar language. In these circumstances it is clear that the doctrine of res judicata is applicable. The doctrine means that the case or matter "is finally disposed of for good",2 as the ICJ has said, or that a judgment given by the tribunal closes without further recourse the proceedings brought under its jurisdiction,3 as the ILOAT has stated. The UNAT endorsed these views when it linked the general inability to reopen a case to the provision in the UNAT statute that judgments were final and without appeal.4 1
See Article 60 of the statute of the ICJ: "The judgment is final and without appeal". Article 67 of the American Convention on Human Rights dealing with judgments of the IACHR is similar. Article 52 of the European Convention on Human Rights dealing with judgments of the ECHR states that they "shall be final". For variations on this theme after laying down that judgments shall be "final" see Article 33 of Annex VI of the UNCLOS (on ITLOS), Article IV(1) of the Claims Settlement Declaration on the Iran-US Claims Tribunal (1 Iran-US CTR p. 10), Article 53 of the ICSID Convention on ICSID tribunals. The statutes of the major IATs refer to "finality" of judgments (see Amerasinghe, Documents on International Administrative Tribunals (1989) passim, particularly UNAT, ILOAT, WBAT, IDBAT, OASAT, ICMAB, LNT). The statute of the CJEC, and statutes of some European IATs are silent on the subject of finality though they refer to ways in which cases may be reopened: see Amerasinghe, ibid. passim. The statutes of the ICTY and ICTR say nothing about finality. 2 See the Barcelona Traction Co. Case (Preliminary Objection), 1964 ICJ Reports at p. 20. 3 See Tranter, ILOAT Judgment No. 37 [1958] at p. 2. 4 Khalil, UNAT Judgment No. 973 [2000] at p. 3. The present author wrote this judgment as a Judge of the UNAT. The principle of res judicata is a general
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There are two questions that arise: first, what are the implications of the principle, and, second, does it apply in the absence of clear indications in the constitutive instrument of the tribunal that it does apply. In regard to the second question, it is likely that the doctrine is generally applicable as a general principle of law, pursuant to the reference in Article 38(1) of the statute of the ICJ, even if the constitutive instrument makes no reference to it in one way or another. This is the better opinion. The view that the principle of res judicata is a general principle of law appeared in some statements made during the drafting of the statute of the PCIJ.5 Reference was there made to the arbitral award in the Pious Fund Case.6 In that case the issue raised in the compromis was whether as a consequence of a former decision a claim came within the governing principle of res judicata. There is no reason to interpret the compromis as indicating that the principle applied to the former decision, so that the later tribunal was precluded from finding that that decision was not covered by the principle. The tribunal did not question that the principle was applicable but applied it. It may be concluded that the tribunal applied it without question, not because if found that the compromis compelled it to recognize the principle as applicable, which it did not, but because it believed it to be applicable as a general principle. In the Polish Postal Service in Danzig Opinion, the PCIJ referred with approval to the manner in which the doctrine of res judicata had been applied in the Pious Fund Case, where the parties and the matter of the dispute had been the same.7 On the other hand, both the PCIJ and the ICJ and other tribunals have subsequently applied it when the need arose by reference to their constitutive instruments. In the case of the ICJ Article 60 incorporates the principle.8 principle of law: see David, L'Arbitrage dans le commerce international (1982) para. 339, Cheng, General Principles of Law (1987 reprint) p. 336, Judge Anzilotti (dissenting) in the Chorzow Factory Case (Interpretation) (1927), PCIJ Series A No. 13 at p. 27, Trail Smelter Arbitration (Final Award) (1941), 3 UNRIAA at pp. 1950 ff. 5 PCIJ, Proces verbaux at pp. 31, 333 and passim. 6 (1902), 9 UNRIAA p. 11. 7 (1925), PCIJ Series B No. 11 at p. 30. 8 Article 60 of the ICJ statute, as did the corresponding Article of the PCIJ statute, states that judgments of the ICJ are "final and without appeal".
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As regards the first question, Judge Anzilotti's dissenting opinion in the Chorzow Factory Case (Interpretation) enunciated the implications of the principle. In acknowledging that the principle applied, he stated: "we have here the three traditional elements for identification, persona, petitum, causa pretendi, for it is clear that "that particular case" (le cas qui a ete decide) covers both the object and the grounds of the claim".9 The explanation of this cryptic statement is that, when a plea that a complaint is barred by the doctrine or principle of res judicata is upheld, it means that a further ruling on claims is precluded, where such claims are identical in substance to claims on which the tribunal has already passed judgment,10 and that the doctrine becomes applicable where an earlier complaint has been dismissed, if three conditions are fulfilled simultaneously, namely that (a) the parties are the same; (b) the substance of the claim is the same; and (c) the cause of action is the same.11 In Hubeau, where the applicant questioned the step at which he had been placed upon being promoted, the respondent raised the plea of res judicata. The tribunal held that, even though the applicant was a party in both cases, the substance of the applicant's claim was not the same as that of the complaint in an earlier case challenging an agreement relating to the integration of the IPI into the EPO. The tribunal said: In this case the complainant seeks the quashing of a decision clearly of an individual nature and affecting his personal career. A claims for the quashing for misuse of authority of a measure which has the force of a rule is not the same in substance as one for the quashing on the 9
(1927), PCIJ Series A No. 13 at p. 23. Hubeau, ILOAT Judgment No. 574 [1983] at p. 3. For a discussion of res judicata, see Amerasinghe, 1 Law of the International Civil Service (1994) pp. 241 ff. See also, for an explanation of the meaning of res judicata from a different angle, Cheng, op. cit. note 4 pp. 336 ff. 11 Hubeau, ILOAT Judgment No. 574 [1983] at p. 4. 10
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same grounds of a decision taken in accordance with that measure. Even supposing that the complainant made the same pleas—though he does not—as those the Tribunal dismissed on 13 November 1978, the EPO was mistaken in relying on res judicata in the internal and in the present proceedings.12 A judgment with the force of res judicata is brought about when proceedings in an action filed by an applicant terminate. Proceedings would terminate in such a judgment, for example, for any of the following reasons: (a) where the respondent and the applicant agreed to terminate proceedings; (b) by a transaction between the applicant and the respondent; (c) by withdrawal of the complaint; or (d) by a final judgment from the court of jurisdiction.13 Thus, where the applicant had previously withdrawn his action which covered a series of requests and the withdrawal was accepted by the tribunal, the action became res judicata.14 As a consequence it was necessary that any subsequent action instituted by the applicant be substantiated by factual or legal circumstances arising subsequent to the date of the homologation of the withdrawal, since all previous actions were held to have been withdrawn. The doctrine of res judicata has been applied specifically by tribunals, especially IATs, to render applications "inadmissible". Thus, in Chen (No. 2)15 the ILOAT found that a claim relating to 12
Ibid. In, e.g., Andres (No. 8), ILOAT Judgment No. 785 [1986], and Wilson, ILOAT Judgment No. 897 [1988], also the ILOAT found that the conditions for admitting the plea of res judicata had not been met. In the following cases, for instance, the tribunal held that the conditions for admitting the plea had been met: Melten (No. 4), ILOAT Judgment No. 754 [1986], van derPeet (No. 9\ ILOAT Judgment No. 801 [1987], Bambinelli (No. 4) ILOAT Judgment No. 812 [1987], Hakin (No. 9) ILOAT Judgment No. 820 [1987], Aspeby, ILOAT Judgment No. 860 [1987], Andres (No. 70), ILOAT Judgment No. 879 [1988]. 13 Thevenet, OASAT Judgment No. 43 [1979]. 14 Ibid. 15 ILOAT Judgment No. 547 [1983].
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premature retirement made by the applicant was clearly res judicata, because in an earlier judgment16 the tribunal had dismissed his application against the refusal of WHO to renew his contract and the subsequent application was substantially the same. Similarly, in deAguero, the OASAT found that, in so far as it had considered the matter of extending the applicant's contract and had decided that the contract should be continued only until its termination, a claim that the applicant's contract should be extended beyond the date of the termination was inadmissible in effect because of the doctrine of res judicata.17 There are also cases in which tribunals have referred to and accepted the principle of res judicata but have found that the principle was inapplicable in the circumstances of the case with the result that the applications were admissible. Thus, in Glorioso (No. 2} the ILOAT found that a claim for the repayment of medical expenses was admissible, because, while in a previous judgment the fact that the Director of PAHO had endorsed the claim was recognized, the tribunal had not pronounced on the issue of the applicant's entitlement to the expenses in that judgment, so that that judgment did not have the authority of res judicata vis-a-vis that claim.18 16
Chen, ILOAT Judgment No. 356 [1978]. OASAT Judgment No. 51 [1980]. See also, e.g., Tranter, ILOAT Judgment No. 37 [1958], Tarmb (No. 6), ILOAT Judgment No. 467 [1982], Charbin, ILOAT Judgment No. 510 [1982], Tarmb (No. 10), ILOAT Judgment No. 555 [1983], Loroch (No. 2), ILOAT Judgment No. 620 [1984], Decision No. 3 (2nd Appeal), ESRO/CR/21, ESRO Appeals Board [1969], Angelopoulos, Decision No. 79, OECD Appeals Board [1980], Recueil des decisions 63 a 82 (1980) p. 47, Angelopoulos, Decision No. 83, OECD Appeals Board [1981], Recueil des decisions 83 a 102 (1983) p. 3, Angelopoulos, Decision No. 84, OECD Appeals Board [1981], ibid. p. 5, van Eick, CJEC Case 13/69 [1970] ECR p. 3, Prelle, CJEC Case 77/70 [1971] ECR p. 561, van Eick, CJEC Case 57/70 [1971] ECR p. 613 Decision No. 169(b), NATO Appeals Board [1984], Collection of the Decisions 135 to 171 [1984]. See also cases referred to in footnote 12 above, and van Gent, WBAT Reports [1983, Part II], Decision No. 13, van Gent (No. 4), WBAT Reports [1985], Decision No. 19, van Gent (No. 5), WBAT Reports [1985], Decision No. 20, Berg (No. 2), WBAT Reports [1990], Decision No. 87. 18 ILOAT Judgment No. 550 [1983]. See also, e.g., Hubeau, ILOAT Judgment No. 574 [1983], Thevenet, OASAT Judgment No. 43 [1979], Eh, CJEC 17
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Apart from the effects of the principle of res judicata whereby subsequent actions are rendered non-justiciable or inadmissible because of prior judgments, there is an important consequence of the doctrine which has been recognized. It has been made clear that the doctrine of res judicata had the effect of binding the respondent to the extent that it could not disregard the decision in the judgment given in its subsequent conduct, so that the respondent could not reopen such decision by ignoring it and having it contested later before the tribunal by the former claimant.19 It was in the Corfu Channel and Asylum series of cases that the ICJ explained the law as applied to situations that came before it. After the judgment on the merits in the Corfu Channel Case, which reserved for later consideration the question of compensation, Albania challenged the jurisdiction of the Court. In its written observations the UK pleaded on this issue that the matter was res judicata, citing Articles 36, paragraph 6, and 60 of the statute and the judgment on the merits. No observations were filed by Albania, which took no further part in this stage of the proceedings, and thus the issue of compensation came up for judgment by default. In its judgment in the Corfu Channel Case (Compensation) the Court applied the principle of res judicata to exclude a reexamination of the jurisdictional issue, stating: the Albanian Government disputed the jurisdiction of the Court with regard to the assessment of damages. The Court may confine itself to Cases 22 & 23/60 [1961] ECR p. 181, Reynier and Erba, CJEC Cases 79 & 82/63 [1964] ECR p. 259. In Garcia and Mdrquez (No. 2), ILOAT Judgment No. 496 [1982], the tribunal held that the fact that an application had been dismissed as irreceivable did not constitute a barrier to a second presentation, if the objection of inadmissibility could be overcome. See also cases referred to in footnote 12 above. 19 See, e.g., Angelopoulos, Decision No. 69, OECD Appeals Board [1979], Recueil des decisions 63 a 82 (1980) p. 22, Angelopoulos, Decision No. 92, OECD Appeals Board [1982], Recueil des decisions 83 a 102 (1983) p. 29. In Reynier and Erba, CJEC Cases 79 & 82/63 [1964] ECR at p. 266, the CJEC said that, because the EC was a single entity, it was inconceivable that a judgment of the Court which had the force of res judicata with regard to one institution would not have the same force with regard to the EC as a whole.
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Chapter 11. Jurisdiction to reopen cases stating that this jurisdiction was established by its Judgment of April 9th, 1949; that, in accordance with the Statute (Article 60), which, for the settlement of the present dispute, is binding upon the Albanian Government, that Judgment is final and without appeal, and that therefore the matter is res judicata.2®
The Court, thus, went ahead, interpreted the special agreement and awarded damages. The operative part of the earlier judgment decided the question of jurisdiction. That the parties had not argued the matter was not relevant, because they had the opportunity to argue it after it was raised. Where there is argument, such argument will affect the scope of the res judicata. No such problem arose in this case. In the Asylum Case the dispute followed a grant of diplomatic asylum to a political refugee by the Colombian Embassy at Lima. The Court was asked two legal questions relating to diplomatic asylum in Latin America and to the interpretation of certain relevant conventions. Neither the claim of Colombia nor the counter-claim of Peru asked specific questions as to the method of terminating the asylum. In its judgment of 20 November 1950 the Court gave its answers to the questions put to it in the submissions of the parties. It intimated that the question of the possible surrender of the refugee to the Peruvian authorities was not raised either in the diplomatic correspondence submitted to the Court by the parties or at any moment in the proceedings.21 It did not decide this issue nor does any mention of it appear in the operative clause of the judgment. Immediately after delivery of that judgment Colombia filed a request for interpretation under Article 60 of the ICJ statute on the ground that gaps existed in the judgment. One of the questions put to the Court in that request related to the qualification which in fact had been made by the Colombian Ambassador in Lima. The other questions related to the surrender of the refugee to the Peruvian authorities. When the Court gave its judgment in this second case, it indicated that the question of the qualification had not been raised 20 21
p. 280.
1949 ICJ Reports at p. 248. Asylum Case (Judgment of November 20th, 1950), 1950 ICJ Reports at
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in the submissions of the Colombian Government, and proceeded in fact to explain not what its decision meant, but what it actually had decided. As for the question of the possible surrender of the refugee, that was completely left outside the submissions of the Parties. The judgment in no way decided it, nor could it do so. It was for the Parties to present their respective claims on this point. The Court finds that they did nothing of the kind.22
The Court then proceeded to explain what Article 60 on interpretation meant. Following that judgment a further diplomatic exchange took place between the parties, and later in 1950 new proceedings were instituted by Colombia in the Haya de la Torre Case.23 Their object was to obtain the Court's decision on the question whether or not Colombia was bound to deliver the refugee to Peru and, thus, to terminate asylum. In early 1951 the Government of Cuba, which was a party to one of the conventions cited by Colombia in its application, invoked Article 63 of the statute on intervention and filed a declaration of intervention to which was attached a memorandum giving its views on the matter. That memorandum was almost entirely devoted to a discussion of the questions decided by the judgment of 20 November 1950. Peru objected to the admissibility of this intervention. The principle of res judicata became relevant both to the intervention and in connection with the merits. With regard to the merits both parties first requested the Court to state how its previous judgment should be executed. The Court's answer was that the previous judgment had defined the legal relations between the parties. Secondly, Colombia requested the Court to declare that Colombia was not bound, in execution of the judgment of 20 November 1950, to deliver the refugee to the Peruvian authorities. In answer the Court recalled what was stated in that judgment, namely that the 22 23
Asylum Case (Interpretation), 1950 ICJ Reports at p. 420. 1951 ICJ Reports p. 71.
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question had not been submitted to the Court, and consequently had not been decided by it. It said that no conclusion as to the existence or non-existence of such an obligation could therefore be drawn from that judgment, and this submission was rejected. Thirdly, and alternatively, the Court was asked, without specific reference to the previous judgment, whether Colombia was bound to deliver the refugee to the Peruvian authorities. As to this, the Court said: the question of the surrender of the refugee was not decided by the Judgment of November 20th. This question is new... There is consequently no resjudicata upon the question of surrender.24
It, therefore, dealt with that question and decided it. While a large part of this section of the judgment is in fact an interpretation of the previous judgment, or carries it a stage further by explaining its legal consequences, it is clear that the issue was not resjudicata. It may be noted that in the Lighthouses Cases,25 before the PCIJ, the judgment of 17 March 1934 expressly reserved a certain question which was decided in the judgment of 8 October 1937, while in the Asylum Case the earlier judgment contains no such express reservation, which gave rise to the issue ofresjudicata. In the Asylum Cases the problem concerned the scope of the judgment in terms of its finality, not whether a final judgment existed, as was the case in the Corfu Channel Cases. What is entailed in establishing the scope of a judgment was clearly explained in the judgment of 27 November 1950, in the second Asylum Case, on the question of the admissibility of the request for interpretation, where the Court found it necessary to analyze Article 60 of the statute. In doing this it explained that the real purpose of a request under that Article must be to obtain an interpretation of the judgment in question. This matter is discussed below in connection with interpretation.26 24
Ibid, at p. 80. Lighthouses Case (1934), PCIJ Series A/B No. 62 p. 2 and Lighthouses in Crete and Samos Case (1937), PCIJ Series A/B No. 71 p. 94. 26 This leads to the conclusion that the term "decision" (decision) in Article 59 of the statute, which states that decisions are binding only as between parties 25
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It is significant that in the Court's approach the scope of res judicata can only be determined by reference to the pleadings, and particularly, the submissions of the parties. As the Court said in its judgment of 27 November 1950 in the second Asylum Case, the limits of the judgment are fixed in advance by the parties themselves in their submissions.27 It is from these that it becomes possible to determine whether any part of the judgment would give rise to res judicata. In a later case, the Request for Interpretation of the Judgment of 11 June 1998 Case, the Court, when asked to interpret an earlier judgment, reiterated its approach to the principles of res judicata and the finality of judgments. It said: Article 60 of the Statute provides: "The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party."... The question of the admissibility of requests for interpretation of the Court's judgments needs particular attention because of the need to avoid impairing the finality, and delaying the implementation, of these judgments. It is not without reason that Article 60 of the Statute lays down, in the first place, that judgments are "final and without appeal". Thereafter, the Article provides that in the case of a "dispute as to the meaning or scope of the judgment", it shall be construed by the Court upon the request of any party. The language and structure of Article 60 reflect the primacy of the principle of res judicata. That principle must be maintained. The Court adheres to what it has previously held, namely that [t]he real purpose of the request must be to obtain an interpretation of the judgment. This signifies that its object must be solely to obtain clarification of the meaning and the scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided. Any other construction of Article 60 of the Statute would nullify the provision of the article that the judgment is final and without appeal. (Request for Interpretation to a case, has the same meaning as the term "judgment" (arret) in Article 60 and covers not merely the operative part of the judgment (the dispositif} but also its reasoning as well. 27 1950 1CJ Reports at p. 403.
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Chapter 11. Jurisdiction to reopen cases of the Judgment of 20 November 1950 in the Asylum Case, Judgment, I.C.J. Reports 1950, p. 402.)28
The applicability of the principle of res judicata has been adverted to by arbitral tribunals as well, in the course of dealing with applications for reopening cases. In the Orinoco Steamship Company Case a tribunal as early as 1910, referring to the finality of judgments, said: Whereas it is assuredly in the interest of peace and the development of the institution of International Arbitration, so essential to the wellbeing of nations, that on principle, such a decision be accepted, respected and carried out by the Parties without any reservation, as it is laid down in Article 81 of the Convention for the Pacific Settlement of International Disputes of October 18th 1907;29 In 1941, faced with a request for revision, a tribunal, while making an extensive review of the authorities, stated: That the sanctity of'res judicata attaches to a final decision of an international tribunal is an essential and settled rule of international law. If it is true that international relations based on law and justice require arbitral or judicial adjudication of international disputes, it is equally true that such adjudication must, in principle, remain unchallenged, if it is to be effective to that end. Numerous and important decisions of arbitral tribunals and of the Permanent Court of International Justice show that this is, in effect, a principle of international law. It will be sufficient, at this stage, to refer to some of the more recent decisions. In the decisions of an arbitral tribunal constituted under the statute of the Permanent Court of Arbitration concerning the Pious Funds of California (October 14, 1902, Hague Court Reports, 1916, p. 3) the question was whether the claim of the United States on behalf of the Archbishop of San Francisco and the Bishop of Monterey was governed by the principle of'res judicata by virtue of the arbitral award of Sir Edward Thornton. This question was answered in the affirmative. 28 29
1999 ICJ Reports at pp. 35-7. (1910), USA v. Venezuela, 11 UNRIAA at p. 238.
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The Fabiani case (French-Venezuelan Claims Commission, Ralston's Report, Decision of Umpire Plumley, p. 110) is of particular interest for the present case. There had been an award by the President of the Swiss Confederation allowing part of a claim by France on behalf of Fabiani against Venezuela and disallowing the rest. As the terms of reference to the second arbitral tribunal were broader than to the first, it was contended by the claimants "that of the sums denied allowance by the honorable Arbitrator of Bern there are certain portions so disposed of by him as to be still in force against the respondent government under the general terms of the protocol constituting this Commission". The first Arbitrator had eliminated all claims based on alleged arbitrary acts (faits du prince) of executive authorities as not being included in the matter submitted to his jurisdiction which he found limited by treaty to "denial of justice", a concept which he interpreted as confined to acts and omissions of judicial authorities. It was argued, on behalf of claimants, that "the doctrine and jurisprudence are for a long time unanimous upon this uncontestable principle that a declaration of incompetence can never produce the effect of res judicata upon the foundation of the law". Umpire Plumley rejected these contentions. "In the interest of peace", a limitation had been imposed upon diplomatic action by a treaty the meaning whereof had been "finally and conclusively" settled "as applied to the Fabiani controversy" by the first award. The definition of denial of justice and the determination of the responsibility of the respondent Government were not questions of jurisdiction. And the Umpire concluded that "the compromise arranged between the honorable Governments... followed by the award of the honorable President of the Swiss Confederation... were 'acting together' a complete, final and conclusive disposition of the entire controversy on behalf of Fabiani". Again in the case of the claim of the Orinoco Steamship Company between the United States and Venezuela, an arbitral tribunal constituted under the statute of the Permanent Court of Arbitration (October 25, 1910, American Journal of International Law, V, p. 230) emphasized the importance in international disputes of the principle of res judicata. The first question for the arbitral tribunal to decide was whether the decision previously rendered by an umpire in this case "in law" was "not void, and whether it must be considered to be so conclusive as to preclude a re-examination of the case on its merits". As we will presently see, the tribunal held that the decision was
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partially void for excess of power. This, however, was rigidly limited and the principle affirmed as follows: "... it is assuredly in the interest of peace and the development of the institution of international arbitration so essential to the well-being of nations, that, in principle, such a decision be accepted, respected and carried out by the parties without reservation". In three successive advisory opinions, regarding the delimitation of the Polish Czechoslovak frontier (Question of Jaworzina, No. 8, Series B, p. 38), the delimitation of the Albanian frontier at the Monastery of Saint Naoum (No. 9, Series B, p. 21, 22), and the Polish Postal service in the Free City of Danzig (No. 11, Series B, p. 24), the Permanent Court of International Justice based its appreciation of the legal effects of international decisions of an arbitral character on the underlying principle of resjudicata. The principle was affirmed in the judgment of the Court on the claim of Belgium against Greed on behalf of the Societe Commerciale de Belgique (Series A/B, No. 78, p. 174), wherein the Court said: "...since the arbitral awards to which these submissions relate are, according to the arbitration clause under which they were made, 'final and without appeal', and since the Court has received no mandate from the parties in regard to them, it can neither confirm nor annul them either wholly or in part". In the well-known case of Frelinghuysen v. Key (110 U.S. 63, 71, 72), the Supreme Court of the United States, speaking of an award of the United States Mexican Claims Commission, under the Convention of July 4,1868, whereby (Art. V) parties agreed, inter alia, to consider the result of the proceedings as a "full, perfect, and final settlement of every claim", said: "As between the United States and Mexico, the awards are final and conclusive until set aside by agreement between the two Governments or otherwise". There is no doubt that in the present case, there is resjudicata. The three traditional elements for identification: parties, object and cause (Permanent Court of International Justice, Judgment 11, Series A, No. 13, Dissenting Opinion by M. Anzilotti, p. 23) are the same. (Cf. Permanent Court of International Justice, Series B, No. 11, p. 30.)30
There is a problem with incidental decisions on preliminary points, and with decisions on matters of jurisdiction, the question 30
Trail Smelter Arbitration (1941), 3 UNRIAA at pp. 1952 ff.
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being whether they can be res judicata. In the Trail Smelter Arbitration*1 and the Chorzow Factory Case32 the view seems to have been taken or supported that incidental decisions on preliminary points were subject to the principle of res judicata. In the former case the tribunal said: Under the Statute of the Permanent Court of International Justice whereby (Article 59) "The decision of the Court has no binding force except between the parties and in respect of that particular case", the Permanent Court of International Justice, in an interpretative judgment (Judgment No. 11, Series A, No. 13, pp. 18, 20—Chorzow Case), expressed the opinion that the force of res judicata was inherent even in what was an incidental decision on a preliminary point, the ownership of the Oberschlesische Company. The minority judge, M. Anzilotti, pointed out that "under a generally accepted rule which is derived from the very conception of res judicata, decision on incidental or preliminary questions which have been rendered with the sole object of adjudicating upon the parties' claims are not binding in another case" (same decision, p. 26). Later on, in the same case (Judgment 13, Series A, No. 17, Dissenting Opinion of M. Ehrlich, pp. 75, 76), M. Ehrlich, the dissenting national judge appointed by Poland, adopted this statement. But M. Anzilotti (Judgment 11, Series A, No. 13, Dissenting Opinion, p. 27) did not expressly answer in the negative the question which he formulated, namely: Does this general rule also cover the case of an action for indemnity following upon a declaratory judgment in which the preliminary question has been decided? It is true that, when the case came up again on the question of indemnity (Judgment 13, Series A, No. 17, pp. 31, 32), the Court seems to have avoided—as M. Ehrlich pointed out—the assertion that there was res judicata and reserved the effect of its incidental decision "as regards the right of ownership under municipal law". But the Court said: "... it is impossible that the Oberschlesische's right to the Chorzow factory should be looked upon differently for the purposes of that judgment (the previous Judgment No. 7 wherein it was decided that the attitude of the Polish Government in respect of the Oberschlesische was not in conformity with international law) and in relation to the claim for reparation based on the same judgment", thus 31 32
(1941), 3UNRIAAp. 1938. (1927), PCIJ Series A No. 13.
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In regard to decisions on jurisdictional matters, the same tribunal said obiter that there was some authority for the proposition that a decision on jurisdiction may, under certain circumstances, be reversed by the same court.34 The ICJ, as has been seen, took a different view. Thus, the point may be regarded as not settled but, if the view that jurisdictional decisions are not resjudicata were correct, it would be a clear exception to the general application of the resjudicata principle which may be supported by reasons of policy relating to the desirability of making sure not only that international tribunals do not assume jurisdiction where they have no authority to do so, but also that they do exercise jurisdiction where there is such jurisdiction. There are situations in which a judgment which has been rendered and would otherwise be covered by the principle of resjudicata may be reopened, even if the constitutive instrument of the tribunal is silent on the matter. This was recognized in general in Charbin (No. 2).35 It has also been made clear in this context that pleas based on mistake of law or mistake in the appraisal of facts do not cause the exception to operate.36 There may be circumstances in which a previous judgment is examined, as will be seen, but these are to be regarded as exceptional and require good reasons for the reopening of the case. Because reopening a case is an exceptional procedure in relation to the principle of resjudicata, the power to do so is to be construed strictly, whether under general principles of law or in the interpretation of constitutive instruments.37 Such a power, being a derogation from the principle of resjudicata, becomes a limited power in many respects. A consequence of the principle of res judicata is that there is no inherent jurisdiction as such in the same or another tribunal to 33
(1941), 3 UNRIAA at p. 1954. Ibid. 35 ILOAT Judgment No. 510 [1982] at p. 2. 36 See, e.g., Tarrab (No. 10\ ILOAT Judgment No. 555[1983] at p. 1. See also, Acosta Andres, Azola Blanco and Veliz Garcia (No. 2), ILOAT Judgment No. 570 [1983] at p. 3, Sehgal (No. 2), ILOAT Judgment No. 579 [1983] at p. 1. 37 See Acosta Andres, Azola Blanco and Veliz Garcia (No. 2), ILOAT Judgment No. 570 [1983] at p. 2. 34
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entertain an appeal from a judgment of a tribunal. Such a jurisdiction may only be conferred by express agreement, i.e., in the constitutive instruments of the tribunal having such jurisdiction. As has been said by the UNAT, no party may come back to court "because that party is dissatisfied with the decisions of the Tribunal and wants a second round of litigation".38 The same idea has been reflected in the jurisprudence of the Iran-US Claims Tribunal, where the tribunal has reiterated that attempts in any form to reopen a case for reargument before it could not be permitted or succeed.39 There has been no clear analysis of what distinguishes an appeal from a review or revision. Even if certain appellate jurisdiction may be limited in some way, there is a point at which limitations will deprive such jurisdiction of its appellate character and cause it to be only a review or revision jurisdiction. A review or revision jurisdiction is significantly limited and certainly more limited that an appeals jurisdiction. The difference may even be one of kind rather than of degree. An appeal usually, as it may be conceived under a general principle of law, enables reexamination per se of the case as it was presented, on the merits, and may involve substitution of judgment. A review does not fundamentally set out to do this, in relation to the case as a whole as originally presented, though it may incidentally achieve this. Reexamining the case, as it was presented, on the merits per se is precisely what is not permitted as a result of the principle of resjudicata in respect of the judgments of international tribunals. (2) REOPENING CASES (i) Appeal Clearly, appeal from a judgment of an international tribunal, which is not a criminal tribunal, must be provided for in the constitutive instruments of the tribunal. It is an exceptional procedure. It may be regarded as a derogation from the principle of res judicata. The right of appeal, whether to the same tribunal (a different chamber, 38
Khalil [2000], UNAT Judgment No. 973 at p. 4. See the Sedco, Inc. Case (1987), 16 Iran-US CTR at pp. 283^, the Paul Donin de Rosiere Case (1987), 14 ibid, at p. 101. 39
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perhaps) or to another, does not flow from a general principle of international law. To support this is the statement that has been made by the UNAT that no party may come back to court "because that party is dissatisfied with the decision of the Tribunal and wants a second round of litigation".40 For this reason, appeals are permitted only to the extent provided generally, and within the parameters established, in the governing instruments. (a) The CJEC There are very few examples of provision for appeals from the judgments of a tribunal of a non-criminal nature in the international legal system. The provisions of the statute of the CJEC now make appeals possible from judgments of the Court of First Instance of the CJEC to the CJEC itself, within the limits, and with the effects, prescribed by the statute itself. The statute provides extensively: Article 49 (EC), 50 (Euratom) An appeal may be brought before the Court of Justice, within two months of the notification of the decision appealed against, against final decision of the Court of First Instance and decisions of that Court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility. Such an appeal may be brought by any party which has been unsuccessful, in whole or in part, in its submissions. However, interveners other than the Member States and the Community institutions may bring such an appeal only where the decision of the Court of First Instance directly affects them. With the exception of cases relating to disputes between the Community and its servants, an appeal may also be brought by Member States and Community institutions which did not intervene in the proceedings before the Court of First Instance. Such Member States and institutions shall be in the same position as Member States or institutions which intervened at first instance. Article 50 (EC), 51 (Euratom) Any person whose application to intervene has been dismissed by the Court of First Instance may appeal to the Court of Justice within two weeks of the notification of the decision dismissing the application. 40
Khalil [2000], UNAT Judgment No. 973 at p. 4.
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The parties to the proceedings may appeal to the Court of Justice against any decision of the Court of First Instance made pursuant to [Article 185 or 186 or the fourth paragraph of Article 192 of the EC Treaty, Article 157 or 158 of the third paragraph of Article 164 of the Euratom Treaty] within two months from their notification. The appeal referred to in the first two paragraphs of this Article shall be heard and determined under the procedure referred to in [Article 36, Article 37] in this Statute. Article 51 (EC), 52 (Euratom} An appeal to the Court of Justice shall be limited to points of law. It shall lie on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant as well as the infringement of Community law by the Court of First Instance. No appeal shall lie regarding only the amount of the costs or the party ordered to pay them.
Article 53 (EC), 54 (Euratom) Without prejudice to [Articles 185 and 186 of the EC Treaty, Articles 157 and 158 of the Euratom Treaty], an appeal shall not have suspensory effect. By way of derogation from [Article 187 of the EC Treaty, Article 159 of the Euratom Treaty], decision of the Court of First Instance declaring a regulation to be void shall take effect only as from the day of expiry of the period referred to in the first paragraph of [Article 49, Article 50] of this Statute or, if an appeal shall have been brought within that period, as from the date of dismissal of the appeal, without prejudice, however, to the right of a party to apply to the Court of Justice, pursuant to [Articles 185 and 186 of the EC Treaty, Articles 157 and 158 of the Euratom Treaty], for the suspension of the effects of the regulation which has been declared void or for the prescription of any other interim measure. Article 54 (EC), 55 (Euratom) If the appeal is well founded, the Court of Justice shall quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.
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Chapter 11. Jurisdiction to reopen cases Where a case is referred back to the Court of First Instance, that Court shall be bound by the decision of the Court of Justice on points of law. Where an appeal brought by a Member State or a Community institution, which did not intervene in the proceedings before the Court of First Instance, is well founded the Court of Justice may, if it considers this necessary, state which of the effects of the decision of the Court of First Instance which has been quashed shall be considered as definitive in respect of the parties to the litigation.
The CJEC has had no problem implementing these provisions. (b) International Criminal Tribunals The ICTY and the ICTR statutes have provision for appeals from decisions of a trial chamber to an Appeals Chamber of the same court. These are criminal tribunals. The special nature of an international criminal tribunal explains the need for appeals of this nature. The statute of the ICTY provides Article 25 Appellate proceedings 1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice. 2. The Appeals Chamber may affirm, reverse of revise the decisions taken by the Trial Chambers.41 41
See also Article 26 of the ICTR statute. The Rome Statute of the International Criminal Court provides for appeals. The basic provisions are: Article 81 Appeal against decision of acquittal or conviction or against sentence 1. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows: (a) The Prosecutor may make an appeal on any of the following grounds: (i) Procedural error (ii) Error of fact, or (iii) Error of law;
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The Nuremberg Charter provided that the decisions of the Nuremberg Tribunal were final.42 There was no right of appeal. There are certain considerations which may support excluding in general the right of appeal with respect to decisions of an international criminal tribunal, especially in contrast to those of a lower criminal court in a national judicial system. The international tribunal is the highest court with criminal jurisdiction over individuals. The pronouncements of such a court could be considered final and not subject to appeal, as is the case with the ICJ. The court is comprised of judges who are qualified for appointment to the highest judicial offices in their respective states. There may, thus, be less need to provide for appeals from the decisions of such a court than there is in respect of the decisions of a lower court composed of a single judge, as is the case with courts in national states. The higher (b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds: (i) Procedural error (ii) Error of fact (iii) Error of law, or (iv) Any other ground that affects the fairness or reliability of the proceedings or decision. Article 82 Appeal against other decisions 1. Either party may appeal any of the following decisions in accordance with the Rules of Procedure and Evidence: (a) A decision with respect to jurisdiction or admissibility; (b) A decision granting or denying release of the person being investigated or prosecuted; (c) A decision of the Pre-Trial Chamber to act on its own initiative under article 56, paragraph 3; (d) A decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial, and for which, in the opinion of the Pre-Trial or Trial Chamber, an immediate resolution by the Appeals Chamber may materially advance the proceedings. 42
Article 26 of the Nuremberg Charter stated that "The judgment of the Tribunal as to the guilt or the innocence of any defendant shall give reasons on which it is based, and shall be final and not subject to review."
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qualifications and more extensive experience of the judges of the international criminal court would arguably reduce the risk of error. But there are arguments favoring a contrary position also. The decisions of an international criminal court may have serious consequences for the persons who are brought before it. Regardless of the number of judges or their qualifications, there is always a possibility of error. Furthermore, the right of appeal in criminal cases had been recognized in various human rights instruments adopted since Nuremberg. The right of a person convicted of a crime to have the conviction and sentence reviewed by a higher judicial body is recognized in Article 14(5) of the ICCPR.43 However, there are no international standards concerning the requirements for filing an appeal or the grounds on which an appeal may be granted. According to Article 25 of the statute of the ICTY and Article 26 of the ICTR statute a trial chamber decision may be challenged on one of two grounds, namely: (1) an error on a question of law which invalidates the decision, or (2) an error on a question of fact which causes a miscarriage of justice. Thus, a trial chamber decision is subject to challenge only on the basis of a serious error of law which would invalidate the legal basis of the decision to such an extent as to result in a miscarriage of justice. These grounds apply with respect to the decision as to the guilt or innocence of the accused. As will be seen, they also apply to the decision as to the sentence.44 In this regard, the Appeals Chamber is authorized to affirm, reverse or revise the decisions of the trial chamber. The right of appeal is recognized with respect not only to the defence but also to the prosecution. The right of the prosecutor to appeal an acquittal is not recognized in the relevant international human rights instruments.45 The statute's recognition of this right 43
The ICCPR states in Article 14(5) that "Everyone convicted of a crime has the right to his conviction and sentence being reviewed by a higher tribunal according to law." The right of appeal of a prisoner of war is addressed in Article 64 of the 1929 Convention Relative to the Treatment of Prisoners of War and in Article 106 of Geneva Convention III. 44 See at footnote 49 below. 45 For a criticism of this right of the prosecutor to appeal see Morris and Scharf, 1 An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia (1995) pp. 295 ff.
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raises the question of the relief that may be granted by the Appeals Chamber in such a case. According to the statute, the Appeals Chamber may affirm, reverse or revise the judgment of the trial chamber. The Appeals Chamber is not expressly authorized to order the trial chamber that heard the case to reconsider the matter in the light of the determination by the Appeals Chamber that the lower court decision was based on a legal or factual error. Furthermore, the Appeals Chamber is not expressly authorized to order a new trial before a trial chamber. But the Appeals Chamber has determined the extent of its powers based on the statute, and international human rights standards and general principles of law. There are several cases in which the ICTY and ICTR Appeals Chambers have entertained appeals and counter-appeals from both the accused and the prosecutor and applied the standards in Article 25 (ICTY statute) and Article 26 (ICTR statute), with varying results on the merits.46 The Appeals Chamber of the ICTY has dismissed appeals, quashed the verdicts of guilty of the trial chambers, directed retrials or reconsideration of issues by remitting cases to the trial chambers and issued other orders in redress, including orders relating to appeals by the prosecutor which involved overturning an acquittal.47 The Appeals Chamber of the ICTR has also shown no hesitation in tailoring its decision to the needs of the appeals and cross-appeals.48 In short, these Appeals Chambers have not been hindered by the terms of their statutes (see Article 25(2)— ICTY, Article 26(2)—ICTR), which may be construed as being narrow, from giving whatever relief they think fit in the circumstances of the case. Thus, it may be concluded that, as far as the jurisdiction 46
See, e.g., in the ICTY, the Tadic Case (July 15, 1999), 38 ILM p. 1518, the Tadic Case (January 26, 2000), 39 ILM p. 365—sentencing appeals, the Celebici Case (February 20, 2001), 40 ILM p. 630, the Fumndzija Case (1999), see website—www.un.org/icty, in the ICTR, the Barayagnije Case (March 31, 2000), 39 ILM p. 1181, the Serushago Case (1999), website—www.ictr.org, the Musema Case (2000), ibid. On the question of appeals against acquittals see Nieto-Naria and Roche, "The Ambit of Powers under Article 25 of the ICTY Statute: Three Issues of Recent Interest", in Essays on ICTY Procedure and Evidence (2001) at pp. 473 ff. 47 See the cases referred to in footnote 46. 48 See the cases referred to in footnote 46.
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to give relief in appeals is concerned, these international criminal tribunals have recognized that their statutes are to be interpreted in the light of general principles of law, general civilized practices in international society and reasonable considerations which may not be pre-determined. The Appeals Chambers have also entertained appeals on sentencing in their practice.49 It is also significant that the ICTY entertained an appeal by the accused on a preliminary question of jurisdiction (relating to the legality of the constitution of the ICTY).50 Article 25(1) of the ICTY statute may be construed as permitting this expressly insofar as it refers to an "error on a question of law" invalidating the decision, but it is clear that such an appeal on a question of jurisdiction would have been permitted, even in the absence of specific enabling language. It is also clear that such appeals may take place on an interlocutory basis even before the decision on the merits of the case are decided, as may other appeals.51 Also to be mentioned is the jurisdiction recognized in the rules of the criminal tribunals to entertain appeals from states "directly affected by an interlocutory decision of a Trial Chamber". This is a special jurisdiction created by practical needs, which has been exercised in some cases,52 although there is no mention of it in the statute of the tribunals. It is not clear whether there is an inherent jurisdiction in international criminal tribunals in general to entertain such appeals. A question of some importance is whether, apart form explicit mention in the constituent instrument, there is an inherent jurisdiction in international criminal tribunals to entertain appeals from decisions in criminal cases. It will be recalled that Article 14(5) of the ICCPR gives a person convicted of a crime the right to have the conviction and sentence reviewed by a higher judicial body. This 49
See, e.g., the Tadic Case (January 26, 2000), 38 ILM p. 1518—ICTY. See the Tadic Case (1995), 35 ILM p. 32. 51 On this subject see Hocking, "Interlocutory Appeals before the ICTY", in op. cit. note 46 pp. 459 ff. 52 On such jurisdiction see Toufar, "State Request for Review", in ibid, pp. 525 ff. 50
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may result now in the recognition of a general principle of law that gives an international criminal court properly constituted as an appeals chamber the jurisdiction to entertain appeals against convictions and sentences, regardless of whether its statute recognizes such a jurisdiction in it or not. It is to be noted that the appeals would be limited to those of convicted persons and would be against convictions and sentences. They would not include appeals, for example, by prosecutors. This general principle is also probably in essence ius cogens. To the extent that Article 14(5) of the ICCPR is ius cogens, express provisions of constitutive instruments of tribunals would be construed to conform to it and anything to the contrary in such instruments would not be recognized. The explicit provision in the Nuremberg Tribunal Charter rendering the judgments of the tribunal "final" would consequently today be regarded either as unenforceable to the extent that it violates a ius cogens or would be construed as being subject to a right of appeal insofar as, and to the extent that, such right is recognized by the ius cogens. Thus, an appeals jurisdiction would be a matter of ius cogens to this extent. (ii) Review Review which is different from appeal is also an inroad into the principle of res judicata. An appeal ^appeF) intrinsically enables generally examination of the case de novo on the merits in the light of what was presented to the court in the first instance and, where necessary, substitution of judgment. This is the general thrust of an appeal, although express provisions in constitutive instruments could limit the scope of the appeal to particular matters. There may be limited strictures on this proposition by general principle. Review or revision, on the other hand, is a more limited function in principle. Particular aspects alone of the case as presented in the first instance are involved in review, although the case may be reopened and reexamined, but generally a fresh judgment on the merits is not delivered, though exceptionally, in effect, it may be because of particular defects. Alternatively review jurisdiction may be generated by matters extrinsic to the case as presented in the
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first instance, namely new facts, though here again, the jurisdiction, if it exists, results in a reopening and reexamination of the case and a fresh judgment on the merits. Clearly, where provision is made for review in constitutive instruments of tribunals, the jurisdiction to review will be recognized to the extent incorporated in, and pursuant to, the express provisions of those instruments. The best examples of, and the most resorted to, review jurisdiction is that of IATs. This had been explored in Chapter 15. However, there are other tribunals whose constitutive instruments provide, or provided, for review by the tribunals themselves. In the Katherine M. Drier Case53 the tribunal was requested pursuant to the governing arbitration agreement to consider reviewing the award and making an additional award. The tribunal reopened the case and found that there was no evidence that the arbitrators had abused their discretion or were guilty of manifest error. (a) Review on Discovery of New Facts The classic case of a review jurisdiction is in circumstances where a new fact is discovered. As will be seen in Chapter 15, most statutes of IATs have provisions dealing with such jurisdiction but there are constitutive instruments of other tribunals that have such provisions. Article 61 of the statute of the ICJ provides: 1. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence. 4. The application for revision must be made at latest within six months of the discovery of the new fact. 5. No application for revision may be made after the lapse of ten years from the date of the judgment.54 53
(1935), 8 UNRIAA p. 154. Article 99 of the Id's 1978 Rules describe the procedure to be followed for revision. 54
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Article 51 of the ICSID Convention provides in regard to ICSID arbitrations: (1) Either party may request revision of the award by an application in writing addressed to the Secretary-General on the ground of discovery of some fact of such a nature as decisively to affect the award, provided that when the award was rendered that fact was unknown to the Tribunal and to the applicant and that the applicant's ignorance of that fact was not due to negligence. (2) The application shall be made within 90 days after the discovery of such fact and in any event within three years after the date on which the award was rendered.
Most importantly Article 26 of the ICTY statute provides: Review proceedings Where a new fact has been discovered which was not known at the time of the proceedings before the Trial Chambers or the Appeals Chamber and which could have been a decisive factor in reaching the decision, the convicted person or the Prosecutor may submit to the International Tribunal an application for review of the judgment.55
The important general rules of these provisions are that (i) a new fact or evidence must be discovered; (ii) the fact or evidence must not have been unavailable at the time of the original trial or judgment; (iii) the unavailability of such fact or evidence must not have been due to negligence or fault of the party concerned; (iv) the fact or evidence would have in effect been a decisive factor. There is also often a time limit within which the application must be filed after the discovery of the fact and a much longer absolute time limit on the filing of applications. 55
Some other statutes or constitutive instruments which provide for review are the CJEC statute (Article 41, EC Treaty, Article 42, Euratom Treaty), the Rome statute of the International Criminal Court (Article 84), ICSID Convention (Article 51) for ICSID arbitrations, Article 27 of the ICTR statute.
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The ICJ had dealt with its power of revision (Article 61) in only one case, the Application for Revision and Review Case,56 flowing from the Tunisia/Libya Continental Shelf Case.51 However, in the Effect of Awards Opinion in dealing with the compatibility of a power of revision with the final and binding quality of a judgment which is without appeal, the Court had said that the rule that a judgment is final and without appeal cannot... be considered as excluding the Tribunal (UNAT) from itself revising a judgment in special circumstances when new facts of decisive importance have been discovered; and the Tribunal has already exercised this power. Such a strictly limited revision by the Tribunal itself cannot be considered as an "appeal"... and would conform with rules generally provided in statutes or laws issued for courts of justice, such as for instance in Article 61 of the Statute of the International Court of Justice.58 In the Application for Revision and Review Case in a single application Tunisia requested the revision of that judgment, its interpretation, and the correction of an error. The ICJ noted that the statute and Rules contemplate different procedures for a request for revision and for a request for interpretation. The Court then observed: While Article 61 of the Statute requires, as a first stage in a procedure on a request for revision, a judgment limited to the question of the admissibility of that request, there is, in the Court's view, no reason why that same judgment should not, in appropriate circumstances, deal with other requests made in the same application instituting proceedings. No provision in the Statute and Rules operates as a bar to such a procedure, which in the present case has practical advantages. Accordingly, in the present Judgment the Court will deal first with the question of admissibility of the request for revision, and will then, 56
1985 ICJ Reports p. 192. 1982 ICJ Reports p. 18. 58 1954 ICJ Reports at p. 55. The court addressed "fresh facts". These are to be distinguished from fresh documents which in themselves do not amount to newly discovered facts: see the Monastery of Saint Naoum Opinion (1924), PCIJ Series B No. 9 at p. 22. 57
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if appropriate in the light of its findings on that matter, examine the request for interpretation, sector by sector, and the request for correction of an error.59
In interpreting Article 61 of the statute the Court said: Article 61 ...provides that an application for revision of a judgment may be made only when it is based upon the discovery of a fact "which was, when the judgment was given, unknown to the Court and also to the party claiming revision". So far as knowledge of the fact in question could be derived from the pleadings and material submitted to the Court leading up to the original judgment, anything which was known to the Court must equally have been known to the party claiming revision. The Court must be taken to be aware of every fact established by the material before it, whether or not it expressly refers to such fact in its judgment; similarly, a party cannot argue that it was unaware of a fact which was set forth in the pleadings of its opponent, or in a document annexed to those pleadings or otherwise regularly brought before the Court.60
Then it stated in regard to the issue of "unknown" facts in the case before it: The Court must however consider whether the circumstances were such that means were available to Tunisia to ascertain the details of the co-ordinates of the concession from other sources; and indeed whether it was in Tunisia's own interests to do so. If such be the case, it does not appear to the Court that it is open to Tunisia to rely on those co-ordinates as a fact which was "unknown" to it for the purposes of Article 61, paragraph 1, of the Statute.61
The Court concluded that the co-ordinates were obtainable by Tunisia and that the fact that it was in its own interest to ascertain them signified that one of the essential conditions of admissibility of a request for revision laid down in Article 61, namely ignorance of a new fact not due to negligence, was lacking.62 59 60 61 62
1985 1CJ Reports at p. 197. Ibid, at p. 203. Ibid, at p. 205. Ibid, at p. 107.
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The Court next addressed the question whether the fact the discovery of which was relied on was "of such a nature as to be a decisive factor". The Court acknowledged that, once it was established that a request for revision failed to meet one of the conditions laid down in Article 61, the Court was not required to go further to investigate whether the other conditions had been fulfilled. However, in the special circumstances of this case, the Court considered this question. The Court examined the relevant parts of its earlier judgment and found that its reasoning would have been totally unaffected by the new evidence. It thereafter enunciated a very important principle in regard to this aspect of the case: what is required for the admissibility of an application for revision is not that the new fact relied on might, had it been known, have made it possible for the Court to be more specific in its decision; it must have been a "fact of such a nature as to be a decisive factor". So far from constituting such a fact, the details of the correct co-ordinates... would not have changed the decision of the Court as to the first sector of the delimitation.63
In the result the Court concluded that the application for revision was not admissible according to the terms of Article 61 of the statute. (b) An Inherent Jurisdiction An important question is whether, in the absence of express provision in the relevant instruments, a tribunal has jurisdiction to reopen a case for revision. The matter has been discussed in arbitral decisions. In the Heim et Chamant Case the mixed arbitral tribunal applied a rule permitting review, although the constitutive instruments said nothing about review. The rule in question was similar to the provisions discussed above. The tribunal explained why the jurisdiction to review was a matter of general principle and, therefore, inherent. This jurisdiction was limited, however, to the case of 63
Ibid. at p. 213.
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discovery of a new fact, as opposed to matters of law. The tribunal explained its views as follows: Attendu que le Reglement de procedure prevoit que la revision d'une sentence rendue par le Tribunal arbitral peut etre demandee a la suite de "la decouverte d'un fait nouveau qui eut ete de nature a exercer une influence decisive sur la sentence et qui, lors de la cloture des debats, etait inconnu du Tribunal lui-meme et de la partie qui demande la revision; Att. que le Reglement de procedure laisse au Tribunal le soin d'apprecier souverainement s'il y a un fait nouveau et si celui-ci eut ete de nature a exercer une influence decisive sur sa sentence; Att. que le Tribunal arbitral, en introduisant la revision dans son reglement de procedure, a voulu transposer dans 1'arbitrage international une institution de droit interne qui a sa signification propre; qu'il a eu essentiellement en vue les risques d'erreur auxquels il se trouverait expose, pour 1'application du Traite, dans la recherche exacte de faits souvent anciens et particulierement difficiles a etablir a raison des circonstances troubles qui les ont entoures; que c'est contre de tells risques d'erreur de fait que la revision prevue par le Reglement de procedure est destinee a fournir une garantie aux parties, en la limitant d'ailleurs a un delai d'un an au maximum apres le jour ou la sentence a ete rendue; Att. que, par 1'institution de la revision, le Tribunal arbitral n'a pas eu 1'intention de creer, par une voie indirecte, une deuxieme instance non prevue par le Traite de Versailles, par lequel les Hautes Parties contactantes ont convenu, au contraire, de considerer les decisions du Tribunal arbitral comme definitives (art. 304 g); que c'est uniquement pour 1'erreur de fait que le Reglement de procedure du Tribunal arbitral a institue la revision; Attendu que la notion defait, comme source possible de revision, ne parait toutefois pas devoir etre appreciee en procedure arbitrale internationale suivant des norms identiques a celles consacrees en droit interne; qu'en effet, en matiere de justice internationale, avec une instance uniques, ces norms paraissent devoir etre, a certains egards, moins strictes que cells admises par certaines legislations internes, dans des procedures offrant les garanties de deux ou
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plusieurs degres de juridictions; qu'a d'autres egards, ces norms sont plus restreintes dans le domaine international que dans une matiere relvant de la souverainete unique d'un seul Etat; que la notion defait ne doit etre prise ni dans un sens trop restrictif, qui nuirait a la cause meme de la justice internationale en privant les parties d'une garantie necessaire, ni dans un sens trop comprehensif, qui meconnaitrait soit les besoins de certitude et de stabilite auxquels la justice doit satisfaire, soit des prerogatives essentielles de la souverainete des Etats; Att. que la notion de fait ne doit pas etre mise en opposition absolue avec celle de droit, dont il n'est pas toujours facile de la distinguer, mais qu'elle doit s'entendre d'une facon plus large, embrassant aussi les moyens de preuve touchant au droit et exceptionnellement le droit lui-meme, lorsque le principe iura novit curia n'est pas applicable et que la preuve de droit incombe a la partie qui pretend pouvoir 1'invoquer; qu'en effet la condition essentielle pour qu'un fait nouveau puisse ouvrir la voie de la revision est qu'il eut etc de nature a exercer une influence decisive sur la sentence; que cette condition peut etre remplie soit de la preuve d'un tel fait, soit exceptionnellement d'un droit que le juge n'est pas presume connaitre et don't 1'existence apparait dan le litige comme un element de fait a prouver par la partie qui s'en prevaut;64 An important case that set forth the law relating to the inherent jurisdiction to review cases as an exception to the concept of res judicata was the Trail Smelter Arbitration. There was an extensive examination of the law on the subject, attention being paid to, inter alia, the absence of a contrary indication in the constitutive instruments, the distinction between errors of fact and errors of law, and cases where fraud was alleged and those where it was not. The application in the case was based on an error of law but apart from the finding that the tribunal had power to reopen the case where there were errors of law provided that they were "manifest", there was material on other aspects. The tribunal said: The United States does not contend that the previous decision is void for excess of power, but asks for reconsideration and revision, as far 64
(1922), Franco-German MAT, 3 Rec.TAM at p. 54. See also the Baron de Neufliza Case (1927), Franco-German MAT, 7 Rec. TAM at p. 632.
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as the costs of investigation are concerned, on account of a material error of law (Record, p. 6540). In the absence of agreement between parties, the first question concerning a request tending to revision of a decision constituting resjudicata, is: can such a request ever be granted in international law, unless special powers to do so have been expressly given to the tribunal? The Convention for the Pacific Settlement of Disputes signed at The Hague, October 18, 1907 (Article 83) says: "The parties can reserve in the compromis the right to demand the revision of the award." In that case only, does the article apply. But, on the other hand, the Statute of the Permanent Court of International Justice (Article 61) does not require the grant of such special powers to the Court. In the Jaworzina Case (Advisory Opinions, Series B, No. 8, p. 37), the Permanent Court of International Justice expressed the opinion that the Conference of Ambassadors, which had acted in a quasi-arbitral capacity, did not retain the power to modify its decision, as it had fulfilled the task entrusted to it by giving the latter. In the case of Saint Naoum Monastery, however (Advisory Opinions, Series B, No. 9, p. 21), the Court seemed less positive as to the possibility of a revision in the absence of an express reservation to that effect. Arbitral decisions do not give to the question an unanimous answer. Thus, in the United States Mexican Mixed Claims Commission of 1868, whilst Umpire Lieber, on a motion for rehearing, re-examined the case, Umpire Thornton, in the Weil, LaAbra, and other cases, refused a rehearing, inter alia, on the ground that the provision of the Convention in effect debarred him from rehearing cases which he had already decided (Moore, International Arbitrations, 1329, 1357). In the single case of Schreck, however, he granted a request of one of the Agents to reconsider his decision. The case also of A. A. Green (Moore, International Arbitrations, 1358) was reconsidered by the Umpire and that of G. Moore (Moore, International Arbitrations, 1357) by the two Commissioners. In the Lazare case (Haiti v. United States), the Arbitrator, Mr. Justice Strong, refused a rehearing, "solely for the reason", that in his opinion, his "power over the award was at an end" when it "had passed from his hands and been filed in the State Department". (Moore, International Arbitrations, 1793). In the Sabotage cases, before the American-German Mixed Claims Commission, the Umpire, Mr. Justice Roberts, granted a rehearing, although there was no express provision in the agreement empowering the Commission to do so (December 15, 1933,
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Chapter 11. Jurisdiction to reopen cases Documents, p. 1122, American Journal of International Law, 1940, pp. 154, 164). Whether final, in part, or not, the previous decision did not give final answers to all the questions. The Tribunal, by that decision, did not become functus officio. Part of its task was yet before it when the request for revision was presented. Under those circumstances, the difficulties and uncertainties do not arise that might present themselves where an arbitral tribunal, having completed its task and finally adjourned, would be requested to reconsider its decision.
As said above, the petition is founded upon an alleged error in law. It is contended by the United States that the Tribunal erred in the interpretation of the Convention when it decided that the monies expended for the investigation undertaken by the United States Government of the problems created in the United Sates by the operation of the Smelter at Trail could not be included within the "damage cause by the Trail Smelter" (Article III(1) of the Convention, Record, p. 6030). Statements by the Tribunal that the controversy did not involve "any such type of facts as the persons appointed" in the I'm Alone case "felt to justify them in awarding to Canada damages for violation of sovereignty" and that in cases where a private claim was espoused "damages awarded for expenses were awarded, not as compensation for violation of national sovereignty, but as compensation for expenses incurred by individual claimants in prosecuting their claims for wrongful acts by the offending Government" were also challenged, although petitioner added that possibly these further statements might be regarded as dicta. (Record, p. 6040.) It was further argued that the solution adopted by the Tribunal was not a "solution just to all parties concerned", as required by Article IV of the Convention. According to the Hague Convention (Article 83), a request tending to the revision of an award can only be made on the ground of the discovery of some new fact calculated to exercise a decisive influence upon the award and which at the time the discussion was closed was unknown to the Tribunal and to the party demanding the revision. It is noteworthy that, at the first Hague Conference, the United States Delegation submitted a proposal whereby every party was entitled to a second hearing before the same judges within a certain period of time "if it declared that it can call new witnesses or raise questions
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of law not raised or decided at the first hearing". This proposal was, however, considered as weakening unduly the principle of res judicata. The text, as it now stands, was adopted as a compromise between the American view and the views of those who, such as de Martens, were opposed to any revision. The Statute of the Permanent Court of Justice (Article 61) substantially coincides with the Hague Convention: "An application for revision of a judgment can be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence." In presenting this text, the report of the Advisory Committee of Jurists (Proces-Verbaux, p. 744) said very aptly: "The right of revision is a very important right and affects adversely in the matter of resjudicata a point which for the sake of international peace should be considered as finally settled. Justice, however, has certain legitimate requirements." These requirements were provided for in the text which enables the Court to bring its decision in harmony with justice in cases where, through no fault of the claimant, essential facts remained undisclosed or where fraud was subsequently discovered. No error of law is considered as a possible basis for revision, either by the Hague Convention or by the Statute of the Permanent Court of International Justice. The Permanent Court of International Justice left open, in the Saint Naoum Case (Series B, p. 21), the question whether, in the absence of express provision, an award could be revised "in the event of the existence of an essential error being proved or of new facts being relied on". A mere error in law is not sufficient ground for a petition tending to revision. The formula "essential error" originated in a text voted by the International Law Institute in 1876. From its inception, its very authors were divided as to its meaning. It is thought significant that the arbitral tribunal in the Orinoco Case avoided it; the Permanent Court in the Saint Naoum Case alluded to it. The Government of the Kingdom of the Serbs, Croats and Slovenes alleged essential error both in law and in fact (Series C, No. 5, II, p. 57, Pleadings of Mr. Spalaikovitch), but what the Court had in mind in the passage
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Chapter 11. Jurisdiction to reopen cases quoted above (see p. 36 of the present decision), was only a possible error in fact. The paragraph where this passage appears begins with the words: "This decision has also been criticized on the ground that it was based on erroneous information or adopted without regard to certain essential facts." The Tribunal is of opinion that the proper criterion lies in a distinction not between "essential" errors in law and other such errors, but between "manifest" errors, such as that in the Schreck Case or such as would be committed by a tribunal that would overlook a relevant treaty or base its decision on an agreement admittedly terminated, and other errors in law. At least, this is as far as it might be permissible to go on the strength of precedents and practice. The error of interpretation of the Convention alleged by the petitioner in revision is not such a "manifest" error. Further criticisms need not be considered. The assumption that they are justified would not suffice to upset the decision.65
There is, thus, it appears, some inconsistency in the views expressed by arbitral tribunals on the inherent jurisdiction to review or revise of an international tribunal. There are standing tribunals, such as ITLOS, ECHR and IACHR, and modern ad hoc arbitral tribunals, such as the Iran-US Claims Tribunal, whose constitutive instruments do not contain provisions on review and the inherent jurisdictional authority would be relevant for them, whether their rules provide for review or not. In any case the rules of a tribunal, as such, could not derogate from such inherent jurisdiction, nor, for that matter, augment it. What appears agreed in the arbitral decisions is that discovery of a new fact does activate an inherent jurisdiction to review in the appropriate situations. These situations are similar to what is reflected in the statutes of lATs and the ICJ statute with some minor variations, particularly, perhaps, as regards time-limits. Beyond that 65
(Final Award—1941), Canada v. USA, 3 UNRIAA at pp. 1952 ff. On this case see Read, "The Trail Smelter Dispute", 1 Canadian YBIL (1963) p. 213. See also the Philadelphia-Girard National Bank Case (1930), USA v. Germany, 8 UNRIAA at pp. 70 ff., where a distinction was made between mere newlydiscovered evidence (which was insufficient) and an error of fact on the evidence earlier presented to the tribunal, as a basis for jurisdiction to review.
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the question is whether errors of fact or law in themselves could generate such a jurisdiction. One view is that errors of law certainly cannot. It is arguable, on the other hand, that manifest errors of law alone are subject to review, as are also manifest errors of fact alone. On the other, mere discovery of evidence has clearly been regarded as inadequate to support a review, if it does not establish the conclusion that a new fact has been discovered.66 The jurisprudence on review of the ILOAT whose statute has no provisions on the matter affords another dimension. This is discussed in Chapter 15.67 Suffice it to summarize here what the jurisprudence reflects. The power to review judgments is regarded as a derogation from the principle of resjudicata and, consequently, is strictly construed by that tribunal, in its case, as a general principle of law. While the ILOAT initially tended to the view that, since its statute did not give it the power, it could not review its judgments at all, in later cases the tribunal changed its view and decided that there were circumstances in which it could do so. It has said in general terms that the grounds on which it would exercise jurisdiction to review and reexamine a case decided by it must be such as to affect the tribunal's decision. They include an omission to take account of particular facts; a material error, i.e., a mistaken finding of fact, which, unlike a mistake in appraisal of the facts, involves no exercise of judgment; an omission to pass judgment on a claim; and the discovery of a so-called 'new' fact, i.e., a factor which the complainant discovered too late to cite in the original proceedings.68 Most of the decided cases have involved the discovery of new facts. In regard to the discovery of new facts there have been cases in which it has been held that the claim was inadmissible, because no plea had been made that the facts were not and could not have been discovered in time to cite in the original proceedings or because the new facts were either known to the applicant at the time 66
See also Simpson and Fox, International Arbitration (1959) pp. 258 ff. for an account of some of the problems in arbitral practice. 67 See Chapter 15, pp. 716 ff. for a detailed discussion of the subject with references to the judgments. 68 de Villegas (No. 4\ ILOAT Judgment No. 442 [1981] at p. 2.
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of the original proceedings or were accessible to him. Sometimes the tribunal has pointed out that the fact alleged to have been discovered must be material or relevant for the judgment to be reviewed. The tribunal has held that the willingness to adduce new evidence by itself was not a ground for review, if that evidence was irrelevant to the outcome of the decision. The ILOAT has not been slow to point out what in its opinion would be inadmissible and admissible grounds for review. It has said that an alleged mistake of law or an alleged mistake in the appraisal of facts would not render a judgment susceptible of review, that allegations that there had been a failure to admit evidence or that the tribunal had failed to comment on pleas submitted by the parties were not valid reasons for review of judgments, and that pleas that the applicant had made an error or omission in the earlier case, that the respondent wished to dispute facts that had not been disputed before, that the applicant had failed to admit evidence, or that there were objections to the reasoning of the tribunal were not good grounds for admissibility of a case for review. The tribunal has, further, pointed out that admissibility for review also hinged on whether the alleged flaws had an effect on the earlier decision of the tribunal. The tribunal has held, for example, that a plea that there had been an omission on the part of the tribunal to hear a claim for compensation for moral prejudice, a plea that there had been a failure to take account of particular facts in the earlier case, and a plea that a new fact had been discovered in the form of a post description of which the applicant was unaware were good grounds for reopening a case for review. The approach of the ILOAT is broader than that of arbitral tribunals in terms of what grounds could generate a review under inherent jurisdiction. However, that tribunal would exclude error of law entirely as a ground for review. But apart from the discovery of a new fact as a ground for review its approach includes more grounds for review than that of arbitral tribunals as analyzed above. Perhaps, manifest error of law should be allowed as a ground for review, in accordance with the jurisprudence of arbitral tribunals. On the factual side, apart from the discovery of a new fact, its inclusion of an omission to take account of relevant facts and material
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error of fact are acceptable grounds for review. Also its inclusion of an omission to pass judgment on a claim is a noteworthy addition. On the other hand, on the negative side the exclusions referred to by it and described above must be acknowledged as unacceptable grounds for the incidence of the inherent jurisdiction to review. It is to be noted that the inherent jurisdictional power to review is always subject to augmentation or reduction by express provision in constitutive instruments of tribunals. On the other hand, the mere provision that judgments are "final" or "final and binding" or "final and without appeal" does not take away from a tribunal its inherent jurisdiction to review. In the case of the Iran-US Claims Tribunal the rules of the tribunal provide for reopening and rehearing of a case where there is a request for interpretation, rectification or claims presented had been omitted from the award.69 Because only the rules are so limiting in terms of revision (where the case is not one of interpretation or rectification), it is conceivable that appropriately the tribunal has a broader inherent power to review under general principles of law, in view of the fact that the constitutive instruments do not state anything to the contrary. Some cases decided by the tribunal support this view that the scope of review available to the tribunal is not limited by the provision of the Rules (Articles 35, 36 and 37) but is broader under the general principles of law, which are applicable in the absence of exclusion in the constitutive instruments of which the Rules are not a part. There are two cases where the stand taken by the tribunal on the issue was part of the ratio decidendi of the case, so to speak. In the Ram International Industries, Inc. Case the tribunal made an extensive examination of the authorities, both judicial and textual. The tribunal concluded that: one requirement, namely, that an application for revision of an award "may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor" follows closely the language of all reviewed legal provisions, judicial decisions and views of 69
Articles 35, 36, and 37 respectively.
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Chapter 11. Jurisdiction to reopen cases learned writers. Therefore, the Tribunal holds that for the purpose of a revision the new fact has to be decisive, in the sense that when placed alongside the other facts of the case, earlier assessed, it seriously upsets the balance, and consequently the conclusions drawn by the tribunal.70
This statement taken in context was not limited to cases of fraud or corruption particularly. In the Harold Birnbaum Case the tribunal made it quite clear that there was no provision in the instruments of the tribunal for rearguing with a view to having the award reviewed or reasons for the award explained and that appeals were excluded. The tribunal then made this general statement: Where revisions are permitted, they are normally provided for in an express rule of procedure... There is not much room for reading implied powers into a contemporary bilateral arrangement; for its authors are aware of past experience. It is to be expected that today, two States that intended to allow the revision of awards rendered by a tribunal established pursuant to a treaty between them would do so by an unequivocal expression of their common will. Clearly Iran and the United States did not so provided in the Algiers Declarations. As noted, the final and binding force of an award does not necessarily exclude the possibility of a revision thereof. But the existence of express rules providing that the award is "final and binding", coupled with the silence of the contracting Parties concerning the possibility of revision, makes it difficult to conclude that any inherent power to revise a final award exists. Although the Tribunal believes that, in the absence of exceptional circumstances, for example, allegations of fraud or perjury, it need not decide whether it has an inherent or implied power to revise its final and binding awards, it will nonetheless, for the sake of completeness, deal also with that part of the request which refers specifically to the Decision in Ram.11 70
(1993), 29 Iran-US CTR at p. 390. (1995), 31 ibid, at pp. 289 ff. In some cases the tribunal had expressed the view obiter that the tribunal could not act outside the Rules to revise or review 71
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The tribunal, first, did concede that in cases of fraud or perjury there was an inherent power to revise its decisions. Secondly, all it said was that it did not need to decide the question whether it had a broader inherent power than that while not denying that one may exist. It has already been pointed out that in the Ram International Industries, Inc. Case the tribunal did not limit its view of inherent powers to revise to cases of fraud or perjury, although in the Harold Birnbaum Case the tribunal said that in the former case the tribunal did so limit it.72 It is, further, clear that in the former case the tribunal did expressly admit as a holding the possibility of review in the case of the presentation of a new fact that was decisive. But what is of greater importance is that in the conclusions reached in its judgment in the latter case it concluded after examining the facts that "quite apart from the absence of any allegation of fraud or perjury", the alleged error is in no way "decisive" nor does it "seriously upset the balance" of the Award...".73 The tribunal here conceded that fraud or perjury was not in issue but proceeded to examine the other allegation made relating to facts which would justify a revision and concluded that the error in question was not of a kind that would justify revision of its judgment. Does not this mean that it conceded that it had an inherent power to revise or review in certain circumstances (such as those alleged to exist in the case which did not involve fraud or perjury) but found on the facts that there was no cause for changing its earlier judgment? The Harold Birnbaum Case is, therefore, clear authority, apart from the Ram Industries International, Inc. Case, that the tribunal has accepted the view that it had an inherent jurisdiction to review or revise, particularly in the context of newly discovered facts (as was made clear in the Ram Industries International, Inc. Case), even though it said it did not need to decide this point and expressed some doubts about the existence of such a power. awards: the International Schools Services, Inc. Case (1987), 14 ibid, at p. 70, the American Bell International Inc. Case (1987) ibid, at p. 174. 72 Ibid, at pp. 291-2. The tribunal in this case also cited other cases decided by the tribunal in which it had "reserved" its position: ibid, at p. 291. 73 Ibid, at p. 292.
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The tribunal has made heavy weather of the fact that the Rules do not expressly permit review except as provided for in Article 35, 36 and 37. This, however, reflects a complete misunderstanding of the relevance of tribunal rules to the issue of jurisdiction. Rules are made by the tribunal and do no have the same status as the constitutive instruments. They are not constitutive instruments of a tribunal. They cannot, therefore, limit the jurisdictional powers of a tribunal, where the constitutive instruments expressly give those powers or do not take them away when they are inherent powers. An inherent jurisdictional power remains such a valid power, even if the rules do not expressly recognize it.74 (c) Review of UNAT and ILOAT Judgments by the ICJ A special form of limited review was permitted to the ICJ under Article 11(1) of the UNAT statute and is still permitted under Article XII of the ILOAT statute. The former has now been abolished. In both cases the review was not by the same tribunal and was available through a special procedure and was through the mechanism of a request for an advisory opinion. The view that the jurisdiction was and is a "review" jurisdiction and not an "appeal" jurisdiction is supported both by the fact that the jurisdiction assigned the ICJ is limited to examining certain defects in the judgments of the tribunal concerned and by the view expressed by the ICJ itself that in what it called the "review proceedings" the object was not "to retry the case and to substitute its own opinion on the merits for that of the Tribunal", although in an appropriate case the Court may be called upon to review the actual substance of the decision in applying the law applicable in the review.75 74
Rule 58 of the Rules of Court of the ECHR is similar in its formulation to Article 61 of the ICJ statute. Again, this is a rule. The ECHR had the inherent power reflected in it even before it was formulated. On the permissibility of revision in general see Simpson and Fox, op. cit. note 66 p. 242, Reisman, Nullity and Revision (1971) pp. 208-12, Carlston, The Process of International Arbitration (1972) pp. 57-8, 224-8, 232, Sandifer, Evidence before International Tribunals (1975) p. 426, E. Lauterpacht, Aspects of the Administration of International Justice (\99l) p. 100. 75 See, e.g., the Judgment No. 333 of the UNAT Opinion, 1987 ICJ Reports at p. 33. That the notion of appeal was rejected by the Court appears from the
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Article 11(1) of the UNAT Statute, as it was amended in 1955, provided: If a Member State, the Secretary-General or the person in respect of whom a judgment has been rendered by the Tribunal (including any one who has succeeded to that person's rights on his death) objects to the judgment on the ground that the Tribunal has exceeded its jurisdiction or competence or that the Tribunal has failed to exercise jurisdiction vested in it, or has erred on a question of law relating to the provisions of the Charter of the United Nations, or has committed a fundamental error in procedure which has occasioned a failure of justice, such Member State, the Secretary-General or the person concerned may, within thirty days from the date of the judgment, make a written application to the Committee established by paragraph 4 of this article asking the Committee to request an advisory opinion of the International Court of Justice on the matter. Article XII of the ILOAT statute provides In any case in which the Governing Body of the International Labour Office or the Administrative Board of the Pensions Fund challenges a decision of the Tribunal confirming its jurisdiction, or considers that a decision of the Tribunal is vitiated by a fundamental fault in the procedure followed, the question of the validity of the decision given by the Tribunal shall be submitted by the Governing Body, for an advisory opinion, to the International Court of Justice. In both cases the reference is made by an organ of the organization concerned and is not a facility automatically or directly available to the staff member, party to the case before the tribunal concerned. In separate opinion of Judge Oda who disagreed on the point made above by the Court and referred to the Court as an "appellate court vis-a-vis the Tribunal": ibid at p. 89, and Judge Schwebel's dissenting opinion in which similar views are expressed. In the Judgment No. 273 of the UNAT Opinion the Court specifically said its role was not that of a court of appeal to retry the issues on the merits of the case, particularly because the mechanism of an advisory opinion was being used in what was a contentious case and the absence of equality between the parties: 1982 ICJ Reports at p. 356. On the review jurisdiction of the ICJ in relation to the UNAT and the ILOAT see Amerasinghe, 1 Law of the International Civil Service (1994) pp. 252 ff.
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the case of UNAT judgments the Committee (of the UN) made the reference, in the case of the ILOAT the Governing Body of the ILO makes it.76 The grounds on which the review jurisdiction may be invoked in the case of UNAT judgments are that the tribunal has (i) exceeded its jurisdiction or competence; or (ii) failed to exercise jurisdiction vested in it; or (iii) erred on a question of law relating to the provisions of the UN Charter; or (iv) committed a fundamental error in procedure which has caused a failure of justice. In the case of ILOAT judgments, the grounds for review are (i) challenge of a judgment confirming ILOAT's jurisdiction; or (ii) fundamental fault in the procedure followed which initiates the judgment. Thus far the review has unsuccessfully been requested in respect of three judgments rendered by the UNAT and one rendered by the ILOAT. In the Judgment No. 158 Opinion,11 the decision of the UNAT in Fasla78 was questioned on the grounds that (i) the UNAT had not exercised the jurisdiction vested in it; and (ii) there had been a fundamental error of procedure which occasioned a failure of justice. The ICJ found that none of the contentions were proven. In the Judgment No. 273 Opinion 79 the question related to the effect of a General Assembly resolution pertaining to repatriation grants upon which the UNAT had pronounced in Mortished.80 The ICJ interpreted the question as requiring it to determine whether the UNAT had exceeded its jurisdiction or competence or had erred on a question of law relating to the provisions of the Charter of the UN. On both questions the ICJ found in the negative. In the Judgment No. 333 Opinion81 the questions related to (i) whether the UNAT had not exercised jurisdiction vested in it; or (ii) whether the UNAT had 76
Arrangements have been made for other organizations which have subscribed to the ILOAT statute to seek review of ILOAT judgments by the ICJ. Article XII(2) states that the opinion given by the ICJ shall be binding. The provisions of Article 11(3) of the UNAT statute on the same matter were different. 77 1973 ICJ Reports p. 166. 78 UNAT Judgment No. 158 [1972], JUNAT Nos. 114-66 p. 355. 79 1982 ICJ Reports p. 325. 80 UNAT Judgment No. 273 [1981], JUNAT Nos. 231-300 p. 426. 81 1987 ICJ Reports p. 18.
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erred on questions of law relating to provisions of the Charter in Yakimetz.82 The case concerned the failure to extend the employment of the applicant. The ICJ in answering both questions found that the UNAT had acted properly. The Judgments of the ILOAT Opinion^ concerned the jurisdiction of the ILOAT to determine certain questions which arose in connection with several cases brought against UNESCO relating to the non-renewal of fixed-term contracts. The ICJ held that the ILOAT had acted properly in exercising jurisdiction in regard to all these questions. In each of the cases there was no challenge to the jurisdiction of the ICJ to give the opinion requested under the relevant constitutional instruments of the UNAT and ILOAT and the ICJ's own statute or to the exercise of that jurisdiction, but the Court did, because it was giving an advisory opinion in review in contentious cases, address the issue of its competence to do so. In the first case, the Judgments of the ILOAT Opinion?84 the Court considered from the point of view of its jurisdiction, problems arising from (i) the fact that its advisory opinion would be binding, (ii) the contentious nature of the proceedings involved, and, (iii) connected with (ii), the issue of the equality of the parties. On (i) it noted that under Article XII of the ILOAT's statute the opinion would be binding, an effect which went beyond the scope attributed by the Charter of the UN and by the statute of Court to an advisory opinion. However, it thought that a provision which was a rule of conduct for the Executive Board of UNESCO in no way affected the way in which the Court functioned. On the second and third points the Court noted that the advisory procedure appeared as serving the object of a recourse85 against the judgments of the ILOAT. The advisory proceedings which thus took the place of contentious proceedings 82
UNAT Judgment No. 333 [1984]. 1956 ICJ Reports p. 77. 84 Ibid, at pp. 84-5. 85 The Court used the word "appeal" in English, whereas the French version which is authoritative used the term "recours". The translation "recourse" is better. As pointed out above, the recourse to the ICJ is not in essence an appeal. 83
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were designed to provide that certain challenges relating to the validity of judgments rendered by the tribunal in proceedings between an official and the international organization concerned should be brought before the Court whereas under the statute of the Court only states may be parties in contentious cases before it. The Court considered the question whether its statute and its judicial character did or did not stand in the way of its participating in this arrangement. It was true that, contrary to accepted practice, the advisory proceedings which had been instituted in the present case involved a certain absence of equality between UNESCO and the officials concerned. First, under the provisions of the statute of the ILOAT only the Executive Board of UNESCO was entitled to institute these proceedings. But this inequality, the Court said, was antecedent to the examination of the question by the Court and did not affect the manner in which the Court undertook that examination. Secondly, in connection with the actual procedure before the Court, although the statute and Rules of Court made available to UNESCO the necessary facilities for the presentation of its views, in the case of the officials, the position was different. But this difficulty, the Court said, was met, on the one hand, because the observations of the officials were made available to the Court through the intermediary of UNESCO and on the other because the oral proceedings had been dispensed with. Thus, the Court concluded that there was no reason for it not to give an opinion. In the Judgment No. 158 Opinion the Court examined not only its competence to give the opinion requested but also the propriety of doing so in the exercise of the discretion it had to give or refuse to give an opinion under its statute, although there had been no challenge on either ground.86 The question of propriety will be dealt with later. As to the Court's competence, the principal issue was whether the Committee on Applications for Review could be considered one of the "organs of the UN" entitled to request advisory opinions under Article 96 of the Charter of the UN, and had any activities of its own which enabled it to be considered as requesting advisory 86
1973 ICJ Reports at pp. 171-5.
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opinions on legal questions arising within the scope of its activities, as provided by Article 96. The Court concluded that the Committee was such an organ. It followed that the Court was competent under Article 65 of its statute to entertain a request for an advisory opinion from the Committee made within the scope of Article 11 of the statute of the UNAT. In the Judgment No. 273 Opinion the Court dealt with the question in relation to its competence arising from the fact that the application for review originated from a member state. It recalled that the request was the first to arise from the Committee's consideration of an application by a member state, the previous case having resulted from the application of a staff member. The Court found that these special features of the proceedings leading up to the request did not afford any grounds for the Court to depart from its previous position that it had competence to entertain a request from the Committee.87 In the Judgment No. 333 Opinion the issues it addressed in regard to its competence related to the source of the application and the nature of the questions asked. The Court recalled that its competence to deliver an advisory opinion at the request of the Committee was derived from several provisions: Article 11, paragraphs 1 and 2, of the statute of the tribunal, Article 96 of the UN Charter and Article 65, paragraph 1, of the statute of the Court. It has already had occasion to examine the question of its competence under these provisions, whether the request for opinion originated, as in the present case, from an application by a staff member or from an application by a member state. In both cases, it said, it had concluded that it possessed competence. In the present case its view was that the questions addressed to it were clearly legal questions arising within the context of the Committee's activities and that for these reasons it had competence.88 In all four cases the Court dealt with several issues which might have provided obstacles to its jurisdictional competence to give an advisory opinion, raising them proprio motu in effect. In all 87 88
1982 ICJ Reports at pp. 331-4. 1987 ICJ Reports at pp. 30-1.
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four cases it found that there were no obstacles in principle arising from any possible juridical defects to its having the required competence. In the three opinions emanating from references against UNAT judgments the ICJ considered the question of whether it should properly exercise the discretion which it had to give an opinion in the circumstances. In the Judgment No. 158 Opinion the Court considered whether the character of certain features of the review procedure should lead it in the exercise of its discretion to decline to answer the request for an opinion. It found that there did not appear to be anything in the character or operation of the Committee which required the Court to conclude that the review procedure was incompatible with the general principles governing the judicial process, and it rejected the objections based upon what was said to be an inherent inequality between the staff member who made the application, on the one hand, and the SG and member states on the other. While not considering that the review procedure was free from difficulty, the Court, nevertheless, found that its discretion to give an opinion should be exercised.89 In the Judgment No. 273 Opinion the Court considered extensively90 possible reasons why, even though it had competence, it should not exercise its discretion to give an opinion, having regard to the requirements of its judicial character, and the principles of the due administration of justice, to which it must remain faithful in the exercise of its functions, as much in advisory as in contentious proceedings. The Court first rejected several objections based on the following considerations: whether an application for review made by a member state constituted an intervention by an entity not a party to the original proceedings; whether the conclusive effect of the opinion to be given by the Court was a valid objection to the exercise by the Court of its advisory jurisdiction; whether a refusal by the Court to give the opinion would put in question the status of the judgment of the UNAT in issue; and whether an application for review by a member state was in contradiction with certain articles 89 90
1973 ICJ Reports at pp. 178-83. 1982 ICJ Reports at pp. 334-8.
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of the UN Charter or impinged upon the authority of the SG under other articles. Next, great importance was attached by the Court to the question whether real equality was ensured between the parties, notwithstanding any seeming or nominal absence of equality resulting from Article 66 of the Court's statute, which confined to states and international organizations the power to submit written or oral statements. In that respect it noted that the views of the staff member concerned had been transmitted to it through the SG, without any control over the contents being exercised by the latter, and that the Court had decided to dispense with oral proceedings in order to ensure actual equality. With regard to the state of the proceedings involving the Committee, the Court noted that it was no more than an organ of the party which had been unsuccessful before the tribunal, that is to say the UN. Thus, that party was able to decide the fate of the application for review made by the other party, the staff member, through the will of a political organ. That fundamental inequality entailed for the Court a careful examination of what the Committee had actually done when seized of the application of the US. With regard to the discussions in the Committee, the Court pointed out that they involved a number of notable irregularities showing the lack of rigour with which the Committee had conducted its proceedings. Those irregularities related to its composition at its twentieth session, the application submitted to it by the US, and the conduct of its meetings. Despite those irregularities, and the failure of the Committee to show the concern for equality appropriate to a body discharging quasi-judicial functions, the Court considered that it should comply with the request for an advisory opinion. While the irregularities which featured throughout the proceedings could be regarded as "compelling reasons" for refusal by the Court to entertain the request, the stability and efficiency of international organizations were of such paramount importance to world order that the Court felt that it should not fail to assist a subsidiary body of the UNGA, the UNAT, in putting its operation upon a firm and secure foundation. Furthermore, such a refusal would, in the opinion of the Court, leave in suspense a very serious allegation against the UNAT: that it had in effect challenged the authority of the UNGA.
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Finally, in the Judgment No. 333 Opinion, the Court again took up the question of the propriety of giving an opinion.91 It emphasized the need for it to participate in the activities of the UN and the presumption against refusal of an opinion, therefore, and referred to the matters it had discussed in the earlier two opinions. Particularly because it should secure the judicial protection of officials, it decided that it should give the opinion requested. The Court was concerned about such matters as the fairness of the procedure before the Committee and the equality of the parties to the adjudication before the UNAT in the proceedings before it but decided to exercise its discretion to give an opinion, particularly because it should secure the judicial protection of officials and promote the stability and efficiency of international organizations. (iii) Fraud and Corruption There has been no doubt that a judgment may be reopened in cases of fraud or corruption. The fraud or corruption may be attributable either to the tribunal or any of those who constitute it or to witnesses. It is a matter of whether the fraud or corruption tainted the proceedings or judgment of the tribunal. It is very rarely, however, that a judgment has been reopened on the ground of fraud or corruption. It must first be recognized that constitutive instruments rarely contain provisions relating to the reopening of cases where there is fraud and corruption. The ICJ statute, the ITLOS statute, the CJEC statute, the ICSID Convention, the European Convention on Human Rights and the American Convention on Human Rights, for example, are silent on the matter. There are some decisions, however, in which the issue has been addressed. The most important of these is the Lehigh Valley Railroad Company et al. Case. The arbitral tribunal in a second petition was confronted with the allegations by one party that certain witnesses proposed by the other (Germany) furnished the tribunal fraudulent, incomplete, collusive, and false evidence which unfairly misled the tribunal and unfairly prejudiced the claimant's case and that evidence had come to light showing collusion between certain witnesses, including some who had 91
1987 ICJ Reports at pp. 31-3.
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already testified, who could give evidence to show that the tribunal's earlier decision was erroneous. The arbitrator, while refraining from examining the evidence at that stage of the proceedings, addressed the question of jurisdiction to reopen the case on the basis of these allegations. The arbitrator conceded that the jurisdiction depended on the constitutive agreement and instruments establishing the tribunal but found that there was nothing in them to stand in the way of the tribunal in justice and equity reopening the case in appropriate circumstances. Basing himself on general principles of inherent jurisdiction in interpreting the constitutive instruments, especially where they were silent, he stated: The petition, in short, avers the Commission has been misled by fraud and collusion on the part of witnesses and suppression of evidence on the part of some of them. The Commission is notfunctus officio. It still sits as a court. To it in that capacity are brought charges that it has been defrauded and misled by perjury, collusion, and suppression. No tribunal worthy its name or of any respect may allow its decision to stand if such allegations are well-founded. Every tribunal has inherent power to reopen and to revise a decision induced by fraud. If it may correct its own errors and mistakes, a fortiori it may, while it still has jurisdiction of a cause, correct errors into which it has been led by fraud and collusion. I am of opinion, therefore, that the Commission has power to reopen these cases, and should do so, in order that it may consider the further evidence tendered by the American Agent and, dependent upon its findings from that evidence and any that may be offered in reply on behalf of Germany, either confirm the decisions heretofore made or alter them as justice and right may demand.92 Much earlier in the Benjamin Weil Case a tribunal had held that it could not rehear the case, even though the respondent requesting a rehearing had produced circumstantial evidence which, if not refuted by the claimant, would certainly have contributed to the suspicion that perjury had been committed and that the whole claim was a fraud.93 92 93
(1933), USA v. Germany, 8 UNRIAA at p. 190. (1876), Mexico v. USA, Moore, 2 International Arbitrations (1898) p. 1324.
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The matter has been addressed largely obiter by the Iran-US Claims Tribunal. The tribunal has never found that it had to entertain a legitimate claim to reopen a judgment on the ground of fraud or perjury but there were several occasions upon which the tribunal noted that a question existed whether it had an inherent or implied power to do so. In all but two cases the tribunal found it unnecessary to address that question. In the Dames and Moore Case the tribunal rejected a request by Iran that it reopen and set aside its earlier Award on the ground that it was, in part, based upon forged invoices and perjured testimony. The tribunal was not persuaded that there was any merit to the allegations and consequently found it unnecessary to decide whether it had any inherent or implied power to reopen and reconsider the case. However, it said: In the absence of an express grant of authority to the Tribunal to reopen and reconsider cases on the merits after issuance of an award, the question has been posed as to whether an "inherent power" to do so may exist "under exceptional circumstances", at least where an award "was based on forged documents or perjury". See Mark Dallal v. The Islamic Republic of Iran, Decision No. 30-149-1 (12 January 1984) and Henry Morris v. The Government of the Islamic Republic of Iran, Decision No. 29-200-1 (16 Sept. 1983). The implied or inherent power of an international claims tribunal in this area is an issue which has been subjected to learned analysis and limited judicial scrutiny, with wholly inconsistent results. The instant request for reopening and reconsideration, however, falls well short of justifying any such effort to ascertain the precise balance struck between finality of Tribunal dispositions, on the one hand, and the integrity of its processes on the other.94
In the Harold Birnbaum Case the tribunal rejected a request for revision unconnected with fraud or perjury but noted that "in the absence of exceptional circumstances, for example, allegations of fraud or perjury, it need not decide whether it has an inherent or 94
(1985), 8 Iran-US CTR at p. 117 (footnotes omitted). In the two cases referred to in the citation the tribunal had concluded that it found it unnecessary to examine the question whether it had inherent power to revise an award under exceptional circumstances.
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implied power to revise "awards which were final and binding".95 The Iran-US Claims Tribunal has, thus, prevaricated and its statements are inconclusive either way in regard to revision or reopening for fraud or perjury (or corruption in general). Clearly, the judicial authorities do not present a clear attitude. On the other hand, the decision (ratio decidendi} in the Lehigh Valley Railroad Company et al. Case supports the view that a case may be reopened where there are allegations of fraud or perjury. The other statements, particularly made by the Iran-US Claims Tribunal, are obiter dicta in contrast to rationes decidendi. It may even be concluded that, insofar as that tribunal in the Dames and Moore Case addressed the evidence in concluding that the allegations of fraud and perjury were baseless, it implicitly reopened the case to make those findings and, thus, conceded that fraud and perjury were good grounds for reopening a case. If there was no inherent jurisdiction to reopen the case on the basis of fraud or perjury, the tribunal should simply not have examined the evidence of such fraud or perjury and dismissed the request for reopening, because it had no jurisdiction to entertain it. The tribunal, it should be noted, did not even specifically say that, even if had jurisdiction, it, nevertheless, found that there was no evidence of fraud or perjury, which is a course it should not have properly taken anyway, because, if it had no jurisdiction, it should not have examined the evidence at all. In any case, general principles of law and justice would seem to demand that such a jurisdiction exist. The result of reopening a case where there are allegations of fraud or corruption, needless to say, may be to reverse the award, modify it or confirm it. (iv) Rectification Very rarely do the constitutive instruments of tribunals provide for correction or rectification of a judgment which involves reopening the case. While the constitutive instruments of the Iran-US Claims Tribunal make no reference to rectification the Rules of the tribunal 95
(1995), 31 ibid. p. 291.
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refer in Article 36 to the power of the tribunal to reopen a case to rectify a judgment. This jurisdiction has never been questioned before that tribunal which invites the conclusion that the jurisdiction is inherent. The rules of the tribunal merely recognize this jurisdiction and implement the procedures for invoking it. Article 36 of the rules permits a party within 30 days of the receipt of the award to request the tribunal to "correct... any errors in computation, any decimal or typographical errors, or any errors of similar nature". The statement of what kind of correction the jurisdiction relates to accurately reflects what the jurisdiction covers. The tribunal has rejected efforts to reargue issues decided in the award but in the Avco Corp. Case96 corrected a clerical error in the figures in one paragraph of the award. In the Houston Contracting Case91 the tribunal exercised its jurisdiction to correct several computational errors that increased the amount awarded to the claimant by about $240,000, plus interest. In the Uiterwyk Corp., et al. Case98 the tribunal exercised its jurisdiction to correct, at the request of the respondents, several computational errors. In the Lehigh Valley Railroad Company Case the arbitral tribunal conceded in a general statement that, where the tribunal had made a mistake in calculation or where the decision "does not comport with the record as made", the tribunal had the duty and power to reopen and make the necessary corrections." This was a recognition of an inherent jurisdiction. In the Patrimoine Clement Raoul Boccara (No. 245} similarly the tribunal said that it "pourrai corriger apres coup une erreur materielle, c'est-a-dire d'expression, de calcul, de copie".100 96
(1988), 19 ibid. p. 253. (1988), 20 ibid. p. 171. See also the Harold Birnbaum Case (1995), 31 ibid. p. 287. 98 (1988), 19 ibid. p. 171. 99 (1933), 8 UNRIAA at p. 188. 100 (1959), France v. Italy, 13 UNRIAA at p. 464. See also the Delimitation of the Continental Shelf Case (Application for Interpretation) (1978), 18 UNRIAA at p. 300, where the tribunal adverts to the tribunal's jurisdiction in this respect. The tribunal said that the power to rectify need not be mentioned in the compromissory clause. In circumstances where the parties agreed that there existed a discrepancy 97
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As will be seen in Chapter 15, IATs have recognized the inherent jurisdiction, even in the absence of explicit mention in statutes, of tribunals to make rectifications of the kind being discussed. In the case of the ICJ the statute does not provide for the correction of clerical errors and the like but the Court has conceded that, nevertheless, it has the inherent jurisdiction to make such corrections. In the Application for Revision and Review Case it said: The Court does of course have the power to correct, in one of its judgments, any mistakes which might be described as "erreurs materielles". That power would not normally be exercised by way of a judgment, since the very nature of the correction of such an error excludes any element of contentious procedure; yet there is no reason why a judgment devoted to another purpose should not also deal with a request connected therewith, for such a correction.101
There can be no question, therefore, that tribunals have an inherent jurisdiction to correct clerical and technical and similar errors. However, a tribunal may have to decide, in the appropriate circumstances, what exactly is "a technical error", which may be a difficult task sometimes. Clearly, clerical and grammatical mistakes may be such errors. But, if as has been held, a mistake in calculation which is a form of error in logic, is such an error, the question may be asked, whether errors in logic, for example, flowing from the drawing of erroneous conclusions from the reasoning or reasons given in the judgment, which may or may not be the result of oversight, may be characterized as technical errors. There are obviously some limitations, jurisdictionally, which apply to this kind of error in respect of whether it may be rectified. (v) Interpretation Interpretation of a judgment which involves reopening a case, even if to a very limited extent, and is an inroad into the notion of finality between the earlier reasoning of the tribunal and the relevant operative provision of the award the tribunal proceeded to rectify an error in the dispositif. 101 1985 ICJ Reports at p. 198. "Erreurs materielles" is the term used usually for technical errors.
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and res judicata has been expressly permitted in constitutive instruments of international tribunals, whether standing courts or arbitral tribunals. For example, the ICJ statute states in Article 60 (as did in substance the relevant provision of the PCIJ statute) that "In the event of a dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party". A somewhat differently formulated provision is Article 40 EC (Article 37 ECSC, Article 41 Euratom) of the statute of the CJEC which states "If the meaning or scope of a judgment is in doubt, the Court shall construe it on application by any party or any institution of the Community establishing an interest therein." Article 50(1) of the ICSID Convention provides, for ICSID arbitrations, that "If any dispute shall arise between the parties as to the meaning or scope of an award, either party may request interpretation of the award...". The statute of the ITLOS provides in Article 12(1) that "Any controversy which may arise between the parties to the dispute as regards the interpretation... of the award may be submitted by either party for decision to the arbitral tribunal which made the award." These are examples of ad hoc arbitration treaties which have incorporated provisions for interpretation.102 Clearly, where interpretation is expressly provided for in constitutive instruments, the terms of those provisions would govern the jurisdiction to interpret. Cases have come up before the PCIJ and ICJ in which it has had to determine its jurisdiction to interpret under the provisions of Article 60 of its statute. The interpretation given the provisions of Article 60 by the Court is important and in some respects is relevant to any inherent jurisdiction to interpret that may exist under general principles of law. With regard to interpretation the general principle is that interpretation cannot go beyond the limits of the judgment. If the original case was instituted by notification of a special agreement, the limits of the judgment will be determined by the special agreement.103 It is possible that the final submissions of the parties determine the scope 102
See, e.g., Article 10 of the Arbitration Agreement on the Delimitation of the Continental Shelf between France and UK which resulted in the interpretative decision by the arbitral tribunal of 1978 (see 18 UNRIAA p. 271). 103 The Treaty of Neuilly Case (Interpretation) (1925), PCIJ Series A No. 4.
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of the judgment: they make clear the points which had been settled with binding force and also establish whether a particular point has or has not been decided with binding force.104 Importantly, if the object of the request for interpretation is to obtain an answer to questions not so decided, it will be declared inadmissible.105 Interpretation relates entirely to ascertaining or clarifying what constitutes the binding decision (or the resjudicata) and cannot go beyond those limits. For that reason, a judgment involving interpretation cannot consider new facts arising or becoming known after the principal judgment. In the Application for Revision and Review Case the ICJ said in regard to interpretation: The jurisdiction of the Court to give an interpretation of one of its own judgments, on the other hand, is a special jurisdiction deriving directly from Article 60 of the Statute. Thus the Court has in any event to consider whether the conditions for the existence of that jurisdiction are fulfilled. Furthermore, the Parties to this case, in becoming parties to the Statute of the Court, have consented to that jurisdiction without any pre-condition.106 In the same case the Court explained that the provisions of Article 60 on interpretation were presumptively binding on the parties and could not unilaterally be changed by a party. It did not decide whether Article 60 could be waived or modified by the agreement of all parties to the case. The Court noted the provision in the original special agreement requiring the parties jointly to refer to the Court any request for any explanations or clarifications of its judgment. Libya contended that this was in pan materia with Article 60. The Court, however, dismissed that contention stating that its effect would be to make the right of each Party to request an interpretation— a right exercisable unilaterally—subject to prior employment of a 104
The Chorzow Factory Case (Interpretation) (1927), PCIJ Series A No. 12
at p. 11. 105 106
The Asylum Case (Interpretation), 1950 ICJ Reports at p. 402. 1985 ICJ Reports at p. 216.
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Chapter 11. Jurisdiction to reopen cases procedure requiring the participation of both Parties. In other words, the exercise of the right of one party to seek an interpretation unde Article 60 of the Statute would be effectively blocked by the other party, if that party chose not to co-operate. Whether or not such an agreement could validly derogate—as between the parties thereto— from the Statute, it is not lightly to be presumed that a State would renounce or fetter its right under Article 60 of the Statute to request an interpretation unilaterally. Accordingly, the Court is unable to interpret the Special Agreement in that sense, and does not consider that the request made by Tunisia for interpretation in reliance on Article 60 of the Statute is affected by the existence of... the Special Agreement.107
The Court apparently interpreted the special agreement in the way it did, though the agreement clearly referred to a joint reference for interpretation, while indicating that it was not deciding whether a special agreement could validly derogate from Article 60. The facts of the case were such that the conclusion cannot be avoided that because the special agreement did clearly derogate from the express provisions of Article 60, though the Court thought that it did not, an agreed derogation from such provisions is never permitted. The Court has addressed the relationship between res judicata which implies the binding force of judgments and interpretation as provided for in Article 60. In the Treaty of Neuilly Case (Interpretation)108 the PCIJ considered first the dispute as defined by the parties. It found in the request for interpretation an element which showed a conception which was not reflected in the special agreement by which the original case was instituted. Therefore, it stated that an interpretation given pursuant to Article 60 of a previous judgment could not go beyond the limits of that judgment itself, which were defined in that case by the special agreement. Consequently the request for interpretation was not granted. It is only what is res judicata by the previous judgment that may be subjected to interpretation. 107 108
Ibid. (1925), PCIJ Series A No. 4 at p. 7.
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The ICJ elaborated in the Asylum Case (Interpretation) on the consequences of the above relationship between res judicata and interpretation, when it said: The real purpose of the request must be to obtain an interpretation of the judgment. This signifies that its object must be solely to obtain clarification of the meaning and scope of what the Court has decided with binding force, and not to obtain an answer to questions not so decided. Any other construction of Article 60... would nullify the provision of the article that the judgment is final and without appeal. [O]ne must bear in mind the principle that it is the duty of the Court not only to reply to the questions as stated in the final submissions of the parties, but also to abstain from deciding points not included in those submissions.109 In the Request for Interpretation of the Judgment of 11 June 1988 Case the ICJ explained that request for interpretation might refer to judgments on preliminary objections while clarifying the relevance of the reasons for the judgment in relation to the operative part of the judgment in connection with interpretation: By virtue of the second sentence of Article 60, the Court has jurisdiction to entertain requests for interpretation of any judgment rendered by it. This provision makes no distinction as to the type of judgment concerned. It follows, therefore, that a judgment on preliminary objections, just as well as a judgment on the merits, can be the object of a request for interpretation. However, the second sentence of Article 60 was inserted in order, if necessary, to enable the Court to make quite clear the points which had been settled with binding force in a judgment,... a request which has not that object does not come within the terms of this provision (Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzow), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 11). 109
1950 ICJ Reports at p. 402. See now also the Application for Revision Case, 1985 ICJ Reports at p. 217 and the Request for Interpretation of the Judgment of 11 June 1988 Case, 1999 ICJ Reports at p. 37.
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Chapter 11. Jurisdiction to reopen cases In consequence, any request for interpretation must relate to the operative part of the judgment and cannot concern the reasons for the judgment except in so far as these are inseparable from the operative part. 11. In the case concerning the Land and Maritime Boundary between Cameroon and Nigeria, Nigeria had put forward a sixth preliminary objection "to the effect that there is no basis for a judicial determination that Nigeria bears international responsibility for alleged frontier incursions". In its Judgment of 11 June, the Court summarized Nigeria's position on this point: Nigerian contends that the submissions of Cameroon do not meet the standards required by Article 38 of the Rules of Court and general principles of law regarding the adequate presentation of facts... [W]hat Cameroon has presented to the Court does not give Nigeria the knowledge which it needs... Similarly, in Nigeria's view, the material submitted is so sparse that it does not enable the Court to carry out fair and effective judicial determination ... While Nigeria acknowledges that a State has some latitude in expanding later what it has said in its Application and in its Memorial, Cameroon is said to be essentially restricted in its elaboration to the case as presented in its Application. (I.C.J. Reports 1998, p. 317, para. 96.) In the operative part of its Judgment on 11 June 1998, the Court "Rejects the sixth preliminary objection". The reasons for this are set out in paragraphs 98 to 101 of the Judgment. These deal in detail with Cameroon's rights as regards the presentation of "facts and legal considerations" that it might wish to put forward in support of its submissions seeking a ruling against Nigeria (ibid., p. 318, para. 99). These reasons are inseparable from the operative part of the Judgment and in this regard the request therefore meets the conditions laid down by Article 60 of the Statute in order for the Court to have jurisdiction to entertain a request for interpretation of a judgment.110
The Court in that case also examined in some detail the requests for interpretation in terms of both the reasons for the previous judgment 110
Ibid, at pp. 35-6.
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and the operative part and came to the conclusion that: It follows from the foregoing that the Court has already clearly dealt with and rejected, in its Judgment of 11 June 1998, the first of the three submissions presented by Nigeria at the end of its request for interpretation, namely that: (a) the dispute before the Court does not include any alleged incidents other that (at most) those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994. The Court would therefore be unable to entertain this first submission without calling into question the effect of the Judgment concerned as resjudicata. The two other submissions, namely that: (b) Cameroon's freedom to present additional facts and legal considerations relates (at most) only to those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994, and that: (c) The question whether facts alleged by Cameroon are established or not relates (at most) only to those specified in Cameroon's Application of 29 March 1994 and Additional Application of 6 June 1994, endeavor to remove from the Court's consideration elements of law and fact which it has, in its Judgment of 11 June 1998, already authorized Cameroon to present, or which Cameroon has not yet put forward. In either case, the Court would be unable to entertain these submissions. It follows from the foregoing that Nigeria's request for interpretation is inadmissible.111 In regard to the first submission inadmissibility was related to the principle of resjudicata in that it requested a reopening of the merits which had been clearly examined and decided. In regard to the other two submissions the Court took the view that there was no cause for interpretation because the judgment was unambiguous, which relates to the element of uncertainty or ambiguity required to be present in the previous judgment.
in Ibid, at pp. 38-9.
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The PCIJ also dealt with the impact and meaning of the term "dispute" used in Article 60. It said in regard to the relevance of negotiations between the parties: In so far as concerns the word "dispute", the Court observes that, according to the tenor of Article 60 of the Statute, the manifestation of the existence of the dispute in a specific manner, as for instance by diplomatic negotiations, is not required. It would no doubt be desirable that a State should not proceed to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome. But in view of the wording of the article, the Court considers that it cannot require that the dispute should have manifested itself in a formal way; in the Court's view, it should be sufficient if the two Governments have in fact shown themselves as holding opposite views in regard to the meaning or scope of a judgment of the Court.112
In the same case it addressed the concept of "meaning or scope of the judgment" found in Article 60: In order to realize the meaning of the expression "meaning or scope of the judgment" in Article 60 of the Statute, this expression should be compared with the terms of the preceding article of the Statute, which states that a decision of the Court has no binding force except between the Parties and in respect of the particular case decided. The natural inference to be drawn is that the second sentence of Article 60 was inserted in order, if necessary, to enable the Court to make quite clear the points which had been settled with binding force in a judgment, and on the other hand, that a request which has not that object does not come within the terms of this provision. In order that a difference of opinion should become the subject of a request for an interpretation under Article 60 of the Statute, there must therefore exist a difference of opinion between the Parties as to those points in the judgment in question which have been decided with binding force. 112
Chorzow Factory Case (Interpretation) (1927), PCIJ Series A No. 13 at p. 10. See also the Application for Revision Case, 1985 ICJ Reports at p. 218.
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That does not imply that it must be beyond dispute that the point the meaning of which is questioned is related to a part of the judgment having binding force. A difference of opinion as to whether a particular point has or has not been decided with binding force also constitutes a case which comes within the terms of the provision in question, and the Court cannot avoid the duty incumbent upon it of interpreting the judgment in so far as necessary in order to adjudicate upon such difference of opinion.113
The question is whether in the absence of explicit consent or provision in the constitutive instrument a tribunal has inherent jurisdiction to interpret its previous judgments. The PCIJ cast some doubt on the existence of such an inherent jurisdiction. In the Jaworzina Opinion the Court dealt with the duties of the Conference of Ambassadors which had been instructed by the Supreme Allied Council to divide the three territories of Teschen, Orava and Spisz. The Court concluded that this task had been fulfilled by the Conference, when it set up a Delimitation Commission and defined its powers. The Court said: The duties of the Conference... had some points in common with those of an Arbitrator entrusted by two Sates with the settlement of a frontier dispute between them. But in the absence of an express agreement between the parties, the Arbitrator is not competent to interpret, still less modify his award by revising it.114
It is possible to limit the statement to the kind of arbitration involved in the case, an ad hoc arbitration for the settlement of land frontier disputes,115 or even to restrict the particular arbitration before the Court but the statement was a general one. In fact the practice of standing courts and arbitral tribunals since that case contradicts the general position adopted in that statement. While there have been arbitrations where interpretation of a previous judgment 113
(1927), PCIJ Series A No. 13 at p. 10. (1923), PCIJ Series B No. 8 at p. 38. 115 See Rosenne, 3 The Law and Procedure of the International Court 1920-1996 (1997) p. 1670. 114
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by a tribunal, whether the same or another, has taken place on the basis of specific explicit agreement between the parties,116 there have also been instances of arbitral tribunals and standing courts exercising jurisdiction to interpret their own judgments even in the absence of explicit provision in the relevant instruments. Two examples are the Iran-US Claims Tribunal, an arbitral tribunal, and lATs, which are standing courts. In the case of the Iran-US Claims Tribunal its constitutive instruments are silent on the jurisdiction to interpret its own judgments. However, the Rules of the tribunal (which are not constitutive instruments but emanate from the tribunal itself) in Article 35 enable either party in a case to request an interpretation of the award in the case. This Article clearly reflects the view of the tribunal that it has the inherent jurisdiction to interpret its judgments. In fact in several cases requests for interpretation were made but the tribunal, while never disclaiming the jurisdiction to interpret, has found that there was no ambiguous language to interpret, it being its clear view that the jurisdiction to interpret could only be exercised where there was ambiguous language.117 In short a prima facie case must be made that there is an ambiguity in the dispositif, if jurisdiction is to be exercised. In the Uiterwyk, Inc. Case the respondent in seeking an interpretation raised the argument that the sequestration of a certain amount was implied in the award. The tribunal held that the matter of sequestration had never been raised or argued in the original case, the award was quite clear and unambiguous and that the request for interpretation was an attempt to reargue the case which would not be permitted.118 In the Sedco, Inc. Case the arguments on which the 116
See, e.g., Delimitation of the Frontier-line Case (1966), Argentina v. Chile, 16 UNRIAA at p. 174, Delimitation of the Continental Shelf (Application for Interpretation) (1978), France v. UK, 18 UNRIAA at pp. 285-7, 289. 117 See, e.g., the Ford Aerospace and Communications Corporation Case (1986), 12 Iran-US CTR at p. 305, the Pepsico, Inc. Case (1986), 13 ibid, at pp. 329-30, the Paul Dorin de Rosiere Case (1987), 14 ibid. at p. 101, the Sedco Inc. Case (1987), 16 ibid, at p. 284, the Uiterwyk Corp et al. Case (1988), 19 ibid. at p. 173. 118 Ibid.
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request for interpretation was based referred to "procedural and legal errors". The tribunal, while pointing out that there was no ambiguous language which required interpretation, stated that the request amounted to an attempt to make an appeal from the previous judgment or secure its review which was not permitted.119 In the Paul Dorin de Rosiere Case the request asked for a clarification of the term "status quo" used in the award. The tribunal again affirmed emphatically that the language of the award was quire clear and unambiguous and that the request was an attempt to reopen the case for reargument which was not permissible.120 In the case of the IATs the jurisdiction to interpret previous judgments has been exercised without question. The earliest UNAT case involving a request for interpretation where the jurisdiction was exercised was Crawford et al. In that case the UNAT stated: Although the Statute of the Administrative Tribunal does not contain an express provision relating to the interpretation of judgements, both Parties agreed during the oral proceedings to admit that competence to interpret was inherent in the judicial function which the International Court of Justice, in its advisory opinion of 13 July 1954, declared the Tribunal to possess. The Parties have further agreed that the Tribunal... is competent to interpret the judgements in question. The Tribunal finds that the competence of national and international courts to interpret their own judgements is generally recognized... The Tribunal therefore holds itself competent to consider the Motion requesting an interpretation of the judgements referred to above... 121
The tribunal's reference to the Effect of Awards Opinion of the ICJ seems to be in error, insofar as the ICJ, in that opinion, while holding that the UNAT was an international court with authority to 119
(1987), 16 ibid. at pp. 283-4. (1987), 14 ibid. at p. 101. 121 [1955], UNAT Judgment No. 61, JUNAT Nos. 1-70 at p. 355. The judges ware Bastid, Petren and Loutfi. 120
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pronounce judgments which were final and binding, did not specifically advert to its jurisdiction to interpret its own judgments, though it did refer to the jurisdiction to revise judgments in general.122 However, the conclusion reached by the UNAT on the jurisdiction to interpret cannot be faulted and has been recognized not only by the UNAT in subsequent cases but by other IATs. In Khalil the UNAT described the power to interpret its own judgments as an inherent power. It said that the express grant in certain circumstances of a power of review of a judgment by Article 11 of the UNAT statute did not "impliedly deprive the Tribunal of certain inherent powers it has in any case..." and that "The inherent powers of the Tribunal relate to instances such as when an interpretation of a judgment... is requested.. ,"123 The inherent authority to interpret judgments of an international tribunal is similar to the power given by Article 60 of its statute to the ICJ to interpret its own judgments. Thus, all that has been said above about the Id's statutory jurisdiction to interpret its judgments must apply in principle also to the inherent jurisdiction of tribunals. That is to say, the formulation of Article 60 in principle covers the content of the inherent jurisdiction as well. The emphasis place on the need for the existence of "ambiguity" by the Iran-US Claims Tribunal is a useful addition which is not in conflict with 122
1954 ICJ Reports p. 47. The Court referred only to the UNAT's power of revising its own judgments, even though the judgments were final and without appeal (Article 10(2)): at p. 55. It is unlikely that the Court intended to include interpretation in the concept of revision, as the power of revision to which it referred and which had earlier been exercised, if at all, was the power to review a judgment in regard to certain aspects. There had not been any instances before the ICJ's 1954 judgment of interpretation of a judgment of the UNAT. In short, the ICJ was not referring to interpretation at all. 123 [2000], UNAT Judgment No. 973 at p. 3. The judges were Gabay, Amerasinghe and Echols. See also Afawubo [2000], UNAT Judgment No. 949 at pp. 3-4 (judges Gabay, Haugh, Echols) where, however, the tribunal again misquoted (ibid.) the ICJ judgment in the Effect of Awards Opinion, 1954 ICJ Reports p. 47, which, as pointed out in footnote 122 above, did not refer to interpretation as such at all. No reference was made by the UNAT to the ICJ's Effect of Awards Opinion in Khalil.
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Article 60 of the ICJ statute but complements it and may be implied in that provision also. (vi) Annulment Jurisdiction to annul judgments of an international tribunal may specifically be provided for by its constitutive instruments. Apart from that there remains the question whether a tribunal has an inherent jurisdiction to annul, subject to a contrary indication in the constitutive instruments. (a) Express Provision Where annulment of judgments of a tribunal are provided for by its constitutive instruments, these provisions govern the jurisdiction to annul. Even though the constitutive instruments may provide that the judgments are binding and without appeal or have similar effect, the instrument may provide that annulment is possible. The ICSID Convention provides in Article 53 that arbitral judgments are binding and without appeal but also provides in Article 52 that annulment is possible by another tribunal (Committee) constituted under the Convention. Where such provision is made, judgments may be reopened and annulled (or not) following the procedure set out in the constituent instrument. Article 52(1) of the ICSID allows either party to the arbitration proceedings to request the annulment of the award on one or more of the following grounds: the tribunal was not properly constituted; it manifestly exceeded its powers; there was corruption on the part of a member of the tribunal; there was a serious departure from a fundamental rule of procedure; or the award failed to state the reasons upon which it was based.124 124
The request for annulment is referred to the Secretary-General of ICSID who then appoints an ad hoc committee of three members (tribunal) from the panel of arbitrators; however, arbitrators who participated in the tribunal which rendered the controversial award may not be appointed. The enforcement of the award could be delayed until a decision is rendered regarding its validity, either by means of a request made by the applicant, or at the initiative of the committee. If the applicant requests a stay of enforcement of the award in his application for annulment, enforcement is delayed provisionally until the Committee has ruled on the request.
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The annulment jurisdiction of ICSID has been exercised in three cases: one arbitral award of the Centre was completely annulled, and two awards were partially annulled. The first annulment ruling was made in the Klockner Case,125 where the annulling tribunal decided that the award was to be completely annulled since the previous tribunal did not apply the law that it ought to have applied in accordance with the ICSID Convention, and thus exceeded its authority. In the Amco Case126 the annulling tribunal ruled that the award was to be partially annulled, because the previous tribunal erred in calculating the sum of money actually invested, in that it did not compute the sum as required in accordance with Indonesian law. The tribunal had, thus, manifestly exceeded its powers. The second tribunal took the view that the deviation from the agreed amount was in fact substantive and justified the termination of the agreement by Indonesia. In the Mine Case127 Guinea requested the annulment of 125
(1985), 2 ICSID Reports p. 95. (1986), 1 ibid. p. 509. 127 (1989), 4 ibid. p. 79. The annulment decisions in the three cases but particularly in the Klockner Case and the Amco Case have been examined by Pirwitz, "Annulment of Arbitral Awards under Article 52 of the Washington Convention on the Settlement of Investment Disputes", 23 Texas ILJ (1988) p. 73, Reisman, "The Breakdown of the Control Mechanism in I.C.S.I.D. Arbitration", 4 Duke LJ (1989) p. 739, Branson, "Annulments of 'Final' ICSID Awards Raise Questions about the Process", National LJ (1986) p. 25, Feldman, "The Annulment Proceedings and the Finality of ICSID Arbitral Awards", 2 FILJ (1987) p. 85, Schatz, "The Effect of the Annulment Decision in Amco v. Indonesia and Klockner v. Cameroon on the Future of the International Centre for Settlement of Investment Disputes", 3 Am.UJILP (1988) p. 481, Thompson, "The Klockner v. Cameroon Appeal: A Note on Jurisdiction", 3 J.Int'l Arb. (1986) p. 93, Curtis, "Amco v. Indonesia", 83 AJIL (1988) p. 106, Gaillard, "Amco v. Indonesia: Introductory Note", 25 ILM (1988) p. 1339, E. Lauterpacht, op. cit. note 74 pp. 101 ff., Sturzenegger, "ICSID Arbitration and Annulment for Failure to State Reasons—The Decision of the Ad Hoc Committee in Maritime International Nominees Establishment v. The Republic of Guinea", 9 J.Int'l Arb. (1992) p. 173, Hirsch, The Arbitration Mechanism of the International Centre for the Settlement of Investment Disputes (1993) pp. 34 ff. Many of these authors on account of these three annulment cases in which annulment did take place express concerns about the utility of the annulment mechanism under the ICSID Convention, because particularly it leads to the absence of instant finality and also causes 126
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the award against it. The second tribunal dismissed the request for annulment of that part of the award which held that Guinea had been in breach of contract; however, it granted the request for annulment of the ruling with respect to damages. In the first two proceedings on annulment, the jurisdiction of the ad hoc tribunal was not questioned nor did the tribunals address the issue of jurisdiction. In the Mine Case, however, there were some issues raised about the jurisdiction of the ad hoc tribunal and the tribunal made some statements on this matter. On the concern for finality of ICSID arbitration decisions and the jurisdiction to reopen cases the tribunal took the view that, while the ICSID Convention described the awards of tribunals as binding and not subject to appeal (Article 53), there were clear exceptions to this by express provision in the Convention. It said: A. Finality of ICSID Awards 4.02 Article 53 of the Convention provides that the award shall be binding on the parties "and shall not be subject to any appeal or to any other remedy except those provided for in this Convention". The postaward procedures (remedies) provided for in the Convention, namely, addition to, and correction of, the award (Art. 49), and interpretation (Art. 50), revision (Art. 51) and annulment (Art. 52) of the award are to be exercised within the framework of the Convention and in accordance with its provisions. It appears from these provisions that the Convention excludes any attack on the award in national courts. The award is final in that sense. It is also final in the sense that even within the framework of the Convention it is not subject to review on the merits. It is not final, on the other hand, in the sense that it is open to being completed or corrected, interpreted, "revised", or annulled. It is to this last remedy that Guinea has had recourse in the present case.128
The ad hoc tribunal also explained the limited nature of the remedy of annulment which was based only on five grounds and expressed delays. But the answer to this is that the primary aim should be to secure justice, even if it is at the expense of quick "fixes". Indeed, the grounds for annulment under Article 52 of the Convention are specifically limited and the results of the application of that Article have not been unfair or improper. 128 (1989), 4 ICSID Reports at p. 84.
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clear views on the manner in which Article 52(1), particularly subparagraphs (b) and (d), should be construed. It said: 4.04 Article 52(1) makes it clear that annulment is a limited remedy. This is further confirmed by the exclusion of review of the merits of awards by Article 53. Annulment is not a remedy against an incorrect decision. Accordingly, an ad hoc Committee may not in fact reverse an award on the merits under the guise of applying Article 52. 4.05 The fact that annulment is a limited, and in that sense extraordinary, remedy might suggest either that the terms of Article 52(1), i.e., the grounds for annulment, should be strictly construed or, on the contrary, that they should be given a liberal interpretation since they represent the only remedy against unjust awards. The Committee has no difficulty in rejecting either suggestion. In its view, Article 52(1) should be interpreted in accordance with its object and purpose, which excludes on the one hand, as already stated, extending its application to the review of an award on the merits and, on the other, an unwarranted refusal to give full effect to it within the limited but important area for which it was intended. 4.06 The Committee notes that it is not inconsistent with the foregoing, and that it is in fact incumbent on an ad hoc Committee, to give full effect to the wording of Article 52(1) which defines and delimits the grounds for annulment. Thus, Article 52(1 )(b) does not provide a sanction for every excess of its powers by a tribunal but requires that the excess be manifest which necessarily limits an a d hoc Committee's freedom of appreciation as to whether the tribunal has exceeded its powers. Again, the text of Article 52(1 )(d) makes clear that not every departure from a rule of procedure justifies annulment; it requires that the departure be a serious one and that the rule of procedure be fundamental in order to constitute a ground for annulment.129 The tribunal took the view that it had jurisdiction to annul the award partially rather than fully, and that for this reason, Guinea's request for partial annulment was clearly admissible. Guinea sought the annulment of the portion of the award adjudging MINE'S claim, and not annulment of the portion of the award adjudging Guinea's counter-claim. Annulment of that portion had not been requested by 129
Ibid. at p. 85.
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MINE, either. As a result, that portion of the award would, in the tribunal's view, remain in effect regardless of the annulment in whole or in part of the portion of the award in respect of which Guinea had formulated its request for annulment. In case of a resubmission of a dispute after annulment in part of the original award, the new Tribunal would not reconsider any portion of the award not annulled.130 The ad hoc tribunal also conceded and acknowledged that the jurisdiction to annul was subject to a discretion on the part of the tribunal which, however, was based entirely on avoiding annulment, where it was not required to remedy procedural injustice and where it would unjustifiably erode the binding force and finality of ICSID awards, and not on the consideration that a series of annulments might impair the effectiveness and integrity of ICSID: 4.09 Article 52(3) provides that an ad hoc Committee "shall have the authority to annul the award or any part thereof on any of the grounds set forth in paragraph (1)". The Convention does not require automatic exercise of that authority to annul an award whenever a timely application for its annulment has been made and the applicant has established one of the grounds for annulment. Nor does the Committee consider that the language of Article 52(3) implies such automatic exercise. 4.10 An ad hoc Committee retains a measure of discretion in ruling on applications for annulment. To be sure, its discretion is not unlimited and should not be exercised to the point of defeating the object and purpose of the remedy of annulment. It may, however, refuse to exercise its authority to annul an award where annulment is clearly not required to remedy procedural injustice and annulment would unjustifiably erode the binding force and finality of ICSID awards. 4.11 In the course of the proceedings, MINE has advanced the argument that a series of annulments if ICSID awards might impair the effectiveness and integrity of ICSID as an international institution for settlement of disputes between States and foreign investors. The Committee was accordingly urged to keep this consideration in mind in its examination of Guinea's application. 130
Ibid.
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There are some other examples of the exercise of annulment jurisdiction on the bases of explicit agreement, generally by reference to a different tribunal. In the I. V.E.M. Case (No. 183} the request for annulment was based on the "vice d'ultrapetita". The tribunal found that the terms of the award did not "depassent les limites de 1'acte de citation (ici, de la requet)".132 In the Orinoco Steamship Company Case the jurisdiction to annul a fresh tribunal was created by an agreement between two states concerned subsequent to the decision of the first tribunal.133 The respondent state argued that the original decision was valid, because there had been no excess of power, nor alleged corruption of judges, nor any "essential error" in the decision. Although on one of the claims the second tribunal held Whereas the appreciation of the facts of the case and the interpretation of the documents were within the competence of the Umpire and as his decisions, when based on such interpretation, are not subject to 131
Ibid, at pp. 85-6. The ICSID annulment mechanism had been criticized on a variety of grounds in the literature: see footnote 127 above. However, the possibility of annulment which is recognized, as will be seen, as an inherent jurisdictional power, in general international law, cannot be criticized. Rather must the scope of the jurisdiction be reasonably conceived. The scope of the ICSID jurisdiction to annul does not appear to be too wide and has been reasonably interpreted. The mechanism of arbitral annulment in national systems of law, particularly in private international law systems, has been examined by van den Berg, "Annulment of Awards in International Arbitration", in Lillich and Brown (eds.), International Arbitration in the 21st Century (1992) p. 133. 132 (1955), 13 UNRIAA at p. 376. 133 (1910), 11 ibid. p. 237.
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revision by this tribunal, whose duty it is not to say if the case had been well or ill judged, but whether the award must be annulled; that if an arbitral decision could be disputed on the ground of erroneous appreciation, appeal and revision, which the Conventions of The Hague of 1899 and 1907 made it their object to avert would be the general rule;134
On certain other points, however, the second tribunal held void the award of the first tribunal for excessive exercise of power which in the case consisted not "in deciding a question not submitted to the arbitrators" but "in misinterpreting the express provisions of the relevant agreement in respect of the way in which they were to reach their decisions, notably in regard to the legislation or the principles of law to be applied".135 (b) Partial Nullity and Res Judicata The issue that has arisen after the series of arbitral decisions in the Amco Case136 is that of res judicata and the implications of the application of the principle in the face of partial nullity declarations in respect of the judgment of the first arbitral tribunal by a subsequent tribunal pursuant to the annulment procedures provided for in the ICSID Convention. This is the only instance in which the issue has arisen. It arose under the ICSID Convention but there is no good reason why any solutions should not apply to partial nullity findings in general. The dispute in the case giving rise to the First Award arose out of a project to develop a hotel property in Jakarta, the Kartika Plaza. Amco Asia's investment in the project was authorized by an investment license issued by Indonesia's Capital Investment Coordination 134
Ibid. at p. 239. Ibid. 136 The three relevant awards were (1) the Award on the Merits (1984), 1 ICSID Reports p. 413 (referred to here as the First Award), (2) Award on the Annulment Application by Indonesia (1986), 1 ibid. p. 509 (referred to here as the Annulment Case), (3) Resubmitted Case, Decision on Jurisdiction (1988), 1 ibid. p. 543 (referred to here as the Jurisdiction Case). On this case see also Curtis, "International Investment Disputes—Res Judicata Effect of Partially Annulled ICSID Award", 83 AJIL (1989) p. 106. 135
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Board (BKPM). In addition, construction and management of the hotel were governed by a joint venture agreement between Amco Asia and an Indonesian corporation, P.T. Wisma, which was affiliated with the Indonesian army. Following a management dispute with Amco Asia, P.T. Wisma seized control of the hotel with the assistance of Indonesian military forces. Some 3 months later the BKPM revoked Amco Asia's investment license, relying in part on the ground that Amco Asia had failed to invest the minimum $3 million of foreign equity capital required by the license. In the First Award it was held that P.T. Wisma's takeover of the hotel constituted illegal self-help and that the support lent by the Indonesian military violated both Indonesian law and international law. In addition, the tribunal determined that Amco Asia had been denied due process in the proceedings that culminated in the revocation of its investment license, and that the revocation was substantively unjustified: Amco Asia had invested much more equity capital than the BKPM gave it credit for. The BKPM's action therefore violated Indonesian law, as well as the international law principles of pacta sunt servanda and respect for acquired rights. The tribunal made several findings and arrived at several conclusions of law in the course of making the award. Indonesia in the Annulment Case adduced various grounds for annulment of the whole of the First Award. The second tribunal in that case rejected most of these grounds but it held that to qualify as meeting the requirements of the investment license sums invested by Amco Asia were required by Indonesian law to be recognized and registered by the competent Indonesian authority, the Bank of Indonesia, and that most of Amco Asia's investment failed to meet that criterion. The second tribunal, consequently, held that the first tribunal had clearly failed to apply the relevant provisions of Indonesian law and had "manifestly exceeded its powers" in this regard.137 That finding was, therefore, annulled. The second tribunal, further, concluded that the first tribunal, in addition to overlooking the registration requirement, had contradicted itself in calculating the amount of Amco Asia's investment; the tribunal, 137
1 ICSID Reports at p. 536.
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therefore, held that the first tribunal had "failed to state reasons" for its calculation and annulled that finding as well.138 Because the revocation of Amco Asia's investment license was substantively justified, the second tribunal concluded that the finding that Amco Asia could recover damages accruing after the date of its cancellation was flawed. Affirming the illegality of P.T. Wisma's seizure of the hotel with the support of the Indonesian military prior to that date, the second tribunal found that Amco Asia would have been entitled to damages accruing between the date of the seizure and the date of revocation. However, it noted that the first tribunal's award of damages was not segregated as to time period, but rather represented the capitalized present value, as of the date of the seizure of Amco Asia's expected future earnings on the project. The second tribunal, as a consequence, annulled the award of damages as a whole. In the Jurisdiction Case the principal issue before the third tribunal was what treatment was to be given to those portions of the First Award that had been annulled. The tribunal rightly held in the first place that matters decided by the first tribunal in the First Award which had not been annulled by the second tribunal were res judicata and could not be reopened and reargued. This applied to all the matters of this nature which had been raised as issues in the Jurisdiction Case about which there was dispute as to whether they had been annulled or not. In the second place, in this regard, it held that, although the conclusions which had not been annulled were res judicata, the reasoning upon which those conclusions were based was not res judicata.139 The consequence of this was that that 138
Ibid, at pp. 537-8. The third tribunal conceded that there was disagreement between systems of national law as to whether the principle adopted by the tribunal was established, citing, for the principle, de Visscher, Aspects recents de droit procedural (1966) at p. 179 and a study which concluded that the principle was accepted in the civil law systems: Millar, "The Premises of the Judgment as Res Judicata in Continental and Anglo-American Law", 39 Mich.L.R. (1940) at pp. 8-9—see 1 ICSID Reports at pp. 550-1. It proceeded to apply the principle stated in the text because, in its view, the system enabling partial declarations of nullity entrenched in the ICSID Convention required and warranted it: ibid at pp. 551 ff., but in fact it is most probable that the principle is accepted as a general principle applicable in international adjudication. 139
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reasoning was not binding to the extent that it could not be reopened and relitigated. In regard to those conclusions that had been annulled the tribunal held that they were not resjudicata and could be relitigated. There was also a long list of conclusions of the first tribunal produced principally by Amco Asia Corporation, the claimant, which had not been raised in the annulment proceedings and in relation to which the question was asked whether relitigation could take place because they were res judicata, because they had been reached by the first tribunal and had not been subjected to annulment in any case, though the reasoning behind these conclusions was not resjudicata.140 It was in regard to the questions raised by Indonesia, the respondent, as to whether certain findings in the reasoning of the second tribunal, the annulling tribunal, which related to the conclusions annulling certain parts of the original award that the issue of res judicata was cogently pertinent. Following the principle that reasoning behind a holding was not resjudicata, the third tribunal categorically held that some of the ancillary findings in the reasoning behind the conclusions of annulment were not res judicata and could be reopened and relitigated in the proceedings before the third tribunal. The argument adduced by the respondent, Indonesia, that matters in the reasoning which were "integral to" the conclusions which were annulled could not be relitigated, because they had become res judicata by virtue of the res judicata character of the conclusions of annulment, was not accepted. There are some difficulties with the approach of the tribunal to conclusions of annulment and the reasoning behind them. The point is that such conclusions are not conclusions of the same nature or genre as the conclusions in the first or original award which were the subject of annulment. The conclusions of annulment erased certain conclusions in the original award and left open the issues relating to them as undecided and open to litigation and settlement in a future arbitration, if necessary. What they did was not to insert the opposite conclusion to the conclusions reached in the original award 140
Ibid. at pp. 556-7.
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but merely to remove the latter so that the position was that the conclusions were never reached. Thus, while it is not meaningless to say that the annulment conclusions are res judicata to the extent that they did in fact establish as a matter that was "chose juge" that the conclusions in question in the original award did not exist, there is no sense in giving them any value as establishing positive or negative conclusions in regard to the respective claims raised in the original or first arbitration. Those annulling conclusions are not res judicata in a substantive sense in regard to claims and issues raised in the first arbitration and in regard to which the conclusions reached were annulled. Hence, the question of res judicata ("chose juge") in regard to these annulled conclusions, and by the same token the reasoning behind them, is irrelevant to the issue of what is res judicata and what is not in the first arbitral award, and what may be reopened and relitigated. In fact, the consequence of the partial annulment is simply that (i) all the conclusions of the first award which were not annulled are res judicata, (ii) all the reasoning behind those conclusions is not res judicata, and (iii) everything else, particularly those conclusions and issues related to them which were annulled are not res judicata and are completely open to relitigation, irrespective of the reasoning behind the annulment decisions and also the reasoning behind the matters that are res judicata as a result of being conclusions under the first award which still stand. More difficult, the above having been said, is to distinguish between conclusions (or "findings") which are res judicata in a given judgment of a tribunal and what is part of the "reasoning" leading to such conclusions which is not res judicata, particularly when some conclusions or findings have been annulled and some have not, and still stand, whether they were the subject of the annulment proceedings or not. The issue may certainly arise where no annulment proceedings have taken place after an arbitration or adjudication and a related dispute is litigated in a later arbitration or adjudication between the same parties but the problem is particularly acute in cases where there has been partial annulment, as occurred in the Amco Case. In the Amco Case the rulings of the third tribunal as to what "findings" were conclusions that were res judicata may or may not
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be questioned on grounds related to the problem raised above, but that problem is of a general nature and it is one which is difficult to solve in the abstract. Solutions will relate to the circumstances of a particular case. It may not be always the answer to identify the final conclusion or finding or final conclusions or findings which lead directly to the prescription of a remedy as the only element that is resjudicata. As the Amco Case shows, there may be findings prior to those final conclusions or findings which are sufficiently important for them to be regarded as res judicata. Not all of the matters identified as res judicata were final conclusions leading directly to the prescription of the remedy. Many of them were not of this nature but were findings or conclusions which were made in the course of coming to the final conclusions that there were breaches of contract. Hence, there is still a question the answer to which requires the exercise of judgment, namely what matters are "findings" or "conclusions" that are to be resjudicata as contrasted with conclusions or findings that are not to be so regarded. (c) Inherent Jurisdiction to Annul There are no instances where the question has arisen whether the same tribunal has an inherent jurisdiction to annul its previous judgments, i.e., where the constitutive instruments are silent on the matter. The question does not arise in relation to a different tribunal. The latter would not have an inherent jurisdiction to annul judgments which are not its own. The international system does not permit this, unless there is specific agreement to this among the parties concerned directly, indirectly or derivatively. If a tribunal has a limited inherent jurisdiction to revise or review its judgments, as has been pointed out in an earlier section, there is no good reason why it should not have a similar jurisdiction to annul its judgments, wholly or partly, which is a lesser exercise. Indeed, the conclusion may be stated conversely. If a tribunal has a certain inherent jurisdiction to review its own judgments in certain circumstances, it is logical that it has an inherent jurisdiction similar in scope to annul its own judgments. The scope of this jurisdiction will depend on what is determined to be the scope of the inherent jurisdiction to review which, it has been shown, exists in the current international adjudicatory system.
12 ADVISORY JURISDICTION
The idea of a judicial body having advisory jurisdiction is not known to all national systems of law. The common law systems are unfamiliar with it. It is extant, however, in the civil law systems. In the international legal system a judicial tribunal does not have inherent advisory jurisdiction unless its constitutive instruments expressly give it that jurisdiction. Equally the advisory jurisdiction, if expressly attributed to a tribunal, will be confined to the express grant of jurisdiction and only to the extent and within the limits expressly established in such grant. The issues implied above have not been addressed by any international tribunal but it seems that the position reflected here flows automatically from the concept of the judicial function in public international law. In fact there are today only a few international tribunals which have an advisory function expressly assigned to them. Possibly the first tribunal to which such a function was officially assigned was the PCIJ in it statute. Today the ICJ and three regional tribunals, the CJEC, the ECHR and the IACHR, have such a function assigned to them. It is noteworthy that in principle no IAT of the sixteen best known has or had this function.
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Chapter 12. Advisory jurisdiction
The provisions of the ICJ statute are found in Article 65: The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Article 300 (ex 228) of the TEU provides in the case of the CJEC: The Council, the Commission or a Member State may obtain the opinion of the Court of Justice whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union. Before the TEU came into force Article 228 of the EEC Treaty had a similar provision and Article 95 of the ECSC Treaty and Articles 103-105 of the Euratom Treaty provided for advisory opinions in certain circumstances by the CJEC. Articles 47 and 48 of the present European Convention on Human Rights provides in regard to the ECHR: (Art. 47) 1. The Court may, at the request of the Committee of Ministers, give advisory opinions on legal questions concerning the interpretation of the Convention and the protocols thereto. 2. Such opinions shall not deal with any question relating to the content or scope of the rights or freedoms defined in Section I of the Convention and the protocols thereto, or with any other question which the Court or the Committee of Ministers might have to consider in consequence of any such proceedings as could be instituted in accordance with the Convention. (Art. 48) The Court shall decide whether a request for an advisory opinion submitted by the Committee of Ministers is within its competence as defined in Article 47. Article 64 of the American Convention on Human Rights provides for the IACHR: 1. The member states of the Organization may consult the Court regarding the interpretation of this Convention or of other treaties
Advisory jurisdiction
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concerning the protection of human rights in the American states. Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organization of American States, as amended by the Protocol of Buenos Aires, may in like manner consult the Court. 2. The Court, at the request of a member state of the Organization, may provide that state with opinions regarding the compatibility of any of its domestic laws with the aforesaid international instruments.
The three regional tribunals have had no serious jurisdictional issues to deal with and have generally given advisory opinions when requested.1 The IACHR, for instance, has refused the request for an advisory opinion only once.2 It is the ICJ (with the PCIJ) that has developed a jurisprudence on its jurisdiction to give advisory opinions. This jurisprudence also sets some standards and interpretations which may apply in the appropriate case to the advisory jurisdiction of other tribunals.
1
On the practice of the CJEC in the exercise of its advisory jurisdiction, see, e.g., Macleod, Hendry and Hyett, The External Relations of the European Communities (1986) pp. 111-15; Gray, "Advisory Opinions and the European Court of Justice", 8 ELR (1983) p. 24. On the ECHR see, e.g., Drzemczewski, "Advisory Jurisdiction of the European Human Rights Court: a Procedure Worth Retaining?" in Cancado Trinidade (ed.), The Modern World of Human Rights (1996) p. 493. On the IACHR see, e.g., Can9ado Trinidade, "The Operation of the Inter-American Court of Human Rights" in Harris and Livingstone (eds.), The Inter-American System of Human Rights (1998) at pp. 141-5, Gomez, "The Interaction between the Political Actors of the OAS, the Commission and the Court", in ibid, at pp. 180-82, Buergenthal, "The Advisory Practice of the InterAmerican Human Rights Court", in La Corte Interamericana de Derechos Humanos (1999) p. 27, and 79AJIL (1985) p. 1. 2 The advisory jurisdiction of the IACHR was described in Advisory Opinion No. 1 as being particularly wide and "more extensive ... than that enjoyed by any international tribunal in existence today." I/A Court H.R. Series A No. 1 (1982), 3HRLJ at p. 140. In the case in which the request for an opinion was denied the Court gave as the reason that for the Court to give the requested opinion would have undermined its contentious jurisdiction and impaired the human rights of the complainants in cases that were pending before the Commission: Advisory Opinion No. 12, I/A Court H.R. Series A No. 12 (1991), 13 HRLJ at p. 149.
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As already seen in chapter 11, the ICJ had explained its approach to advisory jurisdiction in cases referred to it from the UNAT and ILOAT. Those explanations of the Court apply specifically to cases from those two tribunals referred to it. In general, the PCIJ and ICJ have evolved an extensive jurisprudence on their advisory jurisdiction under their statutes.3 The general practice of the Court is first to establish that it has competence to give a requested advisory opinion, and then to examine whether it should exercise or not the discretion it enjoys to give that opinion. As the Court has said: "The Court cannot exercise discretionary power if it has not first established that it has jurisdiction in the case in question: if the Court lacks jurisdiction, the question of exercising its discretionary power does not arise."4 The Court also explained that Article 65(1) of the statute was more than an enabling provision. As the Court has repeatedly emphasized, the Statute leaves a discretion as to whether or not it will give 3
The ICJ has issued 24 advisory opinions as of December 31, 2001, including two in the Peace Treaties case. 4 First Admissions Opinion, 1948 ICJ Reports at p. 61. See also the Second Admissions Opinion, 1950 ICJ Reports at p. 6, the Peace Treaties Opinion (First Phase), 1950 ICJ Reports at p. 71, the Reservations to the Genocide Conventio Opinion, 1951 ICJ Reports at p. 19. The Court's reference to "jurisdiction" is no doubt to its "competence": see the UN Expenses Opinion, 1962 ICJ Reports at p. 153, the Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 234-6. On the advisory function of the PCIJ and ICJ see, e.g., de Visscher, "Les avis consultatifs de la Cour Permanente de Justice Internationale", 26 Hague Recueil (1929) p. 23, Negulesco, "L'Evolution de la procedure des avis consultatifs de la Cour Permanente de Justice Internationale", 57 Hague Recueil (1936) p. 1, Goodrich, "Advisory Opinions of the Permanent Court of International Justice", AJIL (1938) p. 738, Fitzmaurice, "International Organizations and Tribunals 1947-1951", in 1 The Law and Procedure of the International Court of Justice (1986) pp. 114-24, and "Questions of Jurisdiction, Competence and Procedure, 1951-1954", in 2 ibid. pp. 564-75 (both reprinted from 27 BYIL (1950) p. 1 and 34 BYIL (1958) p. 1), Keith, The Extent of the Advisory Jurisdiction of the International Court of Justice (1971), Pratap, The Advisory Jurisdiction of the International Court (1972), Pomerance, The Advisory Function of the International Court in the League and United Nations Eras (1973), Sugihara, "The Advisory Function of the International Court of Justice", 18 Japanese
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an advisory opinion requested of it, once it has established its competence to do so.5 However, the two matters of competence and jurisdiction are not always kept separate. The Court has stated that by becoming a party to the Charter of the UN and statute of the Court, a state has given its consent to the exercise of the advisory jurisdiction.6 Article 65 (1) indicates then two of the elements of the advisory jurisdiction, namely that the request must be made by a duly authorized organ and that the Court must be asked to give an opinion on a "legal question". Though the statute and the Charter are silent on the matter, the Court has explained that an advisory opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an "organ of the United Nations", represents its participation in the activities of the Organization, and, in principle, should not be refused.7
Annual of International Law (1974) p. 23, Jimenez de Arechaga, "The Participation of International Organizations in Advisory Proceedings before the International Court of Justice", 14 Communicazioni e Studi (1975) p. 411, Schwebel, "Authorizing the Secretary-General of the United Nations to Request Advisory Opinions of the International Court of Justice", 78 AJIL (1984) p. 869, and "Was the Capacity to Request an Advisory Opinion Wider in the Permanent Court of International Justice than it is in the International Court of Justice", 62 BYIL (1991) p. 77, Higgins "A Comment on the Current Health of Advisory Opinions", in Lowe and Fitzmaurice (eds.), Fifty Years of the International Court of Justice (1996) p 567, Rosenne, 2 The Law and Practice of the International Court 1920-1996 (1997) pp. 985 ff, Seidl-Hohenveldern, "Access of International Organizations to the International Court of Justice", in Muller (ed.), The International Court of Justice (1997) p. 189. 5 The Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 234-6. 6 The Namibia Opinion, 1971 ICJ Reports at p. 23, the Western Sahara Opinion, 1975 ICJ Reports at p. 24. 7 The Peace Treaties Opinion (First Phase), 1950 ICJ Reports at p. 71. See also the UN Expenses Opinion, 1962 ICJ Reports at p. 155, the Privileges and Immunities Convention Opinion, 1989 ICJ Reports at p. 189.
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In giving an advisory opinion the Court makes judicial pronouncements which do not possess "binding force" as between parties, as is the case in contentious cases. The Court also acts independently of any need for a second consent on the part of the states, as is required in contentious cases. Further, an advisory opinion is not final in the sense that a judgement is final, pursuant to Article 59 of the statute. An advisory opinion is neither final nor binding as those terms are used in contentious cases. As was said in the Peace Treaties Opinion, an advisory opinion is strictly advisory and an opinion.8 An advisory opinion does not, therefore, attract the obligation of compliance. However, by virtue of collateral agreements not affecting the manner in which the Court functions, there may be agreement to accept, as a form of judicial settlement, an advisory opinion as decisive and binding, either as an alternative to a judgment rendered after contentious proceedings or where no contentious jurisdiction exists. For example, in the Difference Relating to Immunity Opinion9 the Court observed that this was the first time that it had received a request for an advisory opinion that referred to Article VIII, Section 30, of the General Convention on Privileges and Immunities. That section provides for the exercise of the Court's advisory function in the event of a difference between the UN and one of its members. The Court said that the existence of such a difference did not change the advisory nature of the Court's function, which was governed by the terms Article 96 of the UN Charter and Article 65 of the Court's statute. A distinction, thus, had to be drawn between the advisory nature of the Court's task and the particular effects that parties to an existing dispute may wish to attribute, in their mutual relations, to an advisory opinion of the Court, which, as such, had no binding force. These particular effects, extraneous to the Charter and the statute which regulated the functioning of the Court, were derived from separate agreements, in that case Article VIII, Section 30, of the General Convention which provided that the opinion given by the Court shall be accepted as decisive by 8
1950 ICJ Reports at p. 71. See also the UN Expenses Opinion, 1962 ICJ Reports at p. 168. 9 1999 ICJ Reports p. 62. See particularly ibid. at pp. 75-7.
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the parties. In fact, the Court pointed out, that consequence had been expressly acknowledged by the UN and by Malaysia. In any case judicial pronouncements on the law, whether they have "binding force" in the particular case or not, have a distinct value as authoritative statements of the law. Before dealing with the Court's competence and exercise of discretion it is useful to note that the limits of the function conferred on the Court in a given case to give an opinion are determined in advance, and outside the Court proceedings, by the organ making the request. This feature had been noted by the PCIJ. In the Interpretation of the Greco-Bulgarian Agreement (1927) Opinion, the Court explained that since the right to request opinions was given only to the two organs, namely the LN Assembly and the Council, mentioned in the Covenant, the Court was "therefore bound by the terms of the questions as formulated in this case by the Council".10 In line with this, the PCIJ has refused to deal with a point which had been discussed in an earlier diplomatic phase, but which had not been specifically mentioned in the request.11 Similarly, the PCIJ regarded it as beyond its competence to "essay to consider controversial cases, actual or hypothetical, on which its opinion is not asked, and to intimate what, in its judgment, the decision on them should be".12 The ICJ has also emphasized the need of keeping within the terms of the request.13 The Court will not, also, as in contentious cases, normally discuss points of law which are not necessarily connected with the reply to the question put.14 On the other hand, the terms of the request are not exclusively limitative in their relation to the Court's exercise of its jurisdiction and, as in the case of its contentious jurisdiction, the PCIJ has asserted its 10
(1932), PCIJ Series A/B No. 45 at p. 87. See, e.g., the Exchange of Greek and Turkish Populations Opinion (1925), PCIJ Series B No. 10 at p. 17, the Danzig Legislative Decrees Opinion (1935), PCIJ Series A/B No. 65 at p. 54. 12 The Personal Work of Employer Opinion (1926), PCIJ Series B No. 13. 13 See the Second Admissions Opinion, 1950 ICJ Reports at p. 9, the South West Africa Voting Opinion, 1955 ICJ Reports at p. 72. 14 See the Jarwozina Opinion (1923), PCIJ Series B No. 8 at p. 25. See also the South West Africa Voting Opinion, 1955 ICJ Reports at p. 74. 11
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jurisdiction to consider other questions which are incidental to the questions put to it for an advisory opinion.15 There is no question that, being inherent in the quality of the Court as a judicial organ, the power to interpret any request for an advisory opinion may be exercised by the Court. The Court may establish both the object for which the question was put and the meaning to be given to the question itself. The Court is not obliged, should doubts arise over the intention of the requesting organ, to apply to the requesting organ for clarification.16 The problem has arisen but the Court has never acted in that way. In itself interpreting the meaning of the questions, the Court has paid attention to many different features, including the circumstances in which the request came to be made, the terms of the resolution embodying the request, discussions in the organ making it (including proposals for amendment which were not adopted and other procedural votes), and occasionally possible divergences between the English and French official versions of the resolution embodying the request. In interpreting the request the Court seems concerned to place such a meaning on the question as will bring the particular case, in the light of the circumstances as presented to the Court, within the scope of the judicial function as applied in advisory cases. The Court has invariably resorted to processes of liberal interpretation of the question when there was a possible discrepancy between the questions as framed and the actual legal questions as developed in the written and oral proceedings.17 THE LIMITATION THAT REQUESTS MUST BE WITHIN THE SCOPE OF AN ORGANIZATION'S ACTIVITIES Article 96 (2) of the UN Charter which authorizes the requesting of opinions from the ICJ by international organizations refers to 15
See the German Settlers in Poland Opinion (1923), PCU Series B No. 6 at p. 26. 16 The request has been interpreted in e.g., the First Admissions Opinion, the Peace Treaties Opinion (First Phase), the South West Africa Voting Opinion, the Maritime Safety Committee Opinion, the UN Expenses Opinion, the Legality of Nuclear Weapons Opinion. 17 See ILOAT Judgments Opinion, 1956 ICJ Reports at p. 148 per Judge Read.
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matters "arising within the scope of their activities" as being the subject of such requests. The implications of this requirement were first examined in the Privileges and Immunities Convention Opinion18 in relation to activities of a subsidiary organ of the UN. In this case, the request was formally made by ECOSOC. It concerned the activities of a subsidiary organ of a functional commission, the Commission on Human Rights, of ECOSOC—the Subcommission on Prevention of Discrimination and Protection of Minorities which initiated the action that led to the request. The Court had no difficulty in holding that the legal question on which its advice was requested was one arising within the scope of activities of ECOSOC and that the request met the conditions of Article 96(2) of the UN Charter. In the WHO Nuclear Weapons Opinion19 the Court decided that it could not give the requested opinion because asking the question was not within the scope of the activities of the organ making the request. The Court made a detailed analysis of the implications of the requirement of Article 96(2) and their impact on its competence to give an opinion. The first question of importance or, indeed, one of prime importance, was whether by duly adopting a resolution pursuant to the proper procedures the WHO could influence the issue whether the resolution was intra vires the organization. The Court took the position that procedural propriety and the question of ultra vires were two separate issues. As it said, the mere fact that a majority of States, in voting on a resolution, have complied with all the relevant rules of form cannot in itself suffice to remedy any fundamental defects, such as acting ultra vires 20 Referring to the powers of organs vis-d-vis their competence, the Court said: as the Court has stated, each organ must, in the first place at least, determine its own jurisdiction. It was therefore certainly a matter for 18
1989 1CJ Reports p. 177. 1996 ICJ Reports p. 66. On this case see Amerasinghe, "The Advisory Opinion of the International Court of Justice in the WHO Nuclear Weapons Case: A Critique", 10 LJIL (1997) p. 3. 20 1996 ICJ Reports at pp. 82-3. 19
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Chapter 12. Advisory jurisdiction the World Health Assembly to decide on its competence—and, thereby, that of the WHO—to submit a request to the Court for an advisory opinion on the question under consideration, having regard to the terms of the Constitution of the Organization and those of the Agreement of 10 July 1948 bringing it into relationship with the United Nations. But likewise it is incumbent on the Court to satisfy itself that the conditions governing its own competence are met; through the reference made, respectively, by Article 96, paragraph 2, of the Charter to the 'scope of activities' of the Organization and by Article X, paragraph 2, of the Agreement of 10 July 1948 to its 'competence', the Court also finds itself obliged, in the present case, to interpret the Constitution of the WHO.21
There are some significant problems that may arise in connection with the question who may finally interpret the constitution of an organization or interpret with binding effect,22 but while it is correct that, in the first place at least, the relevant organ must interpret the constitution in the course of its work, there can be no doubt that the organ could not in the present case bind the Court and that the Court could decide, particularly with binding effect, for the purpose in hand, at any rate, how the constitution was to be interpreted. The Court also adverted to the action of the GA in supporting the request of the WHO. The Court concluded that such action did not confirm the competence of the WHO to request the opinion but merely lent political support to it. It may be asked what the position might have been, if the GA had, indeed, expressed the view that the WHO was within its competence. The better view is that this would not have bound the ICJ. The GA would merely have been a third party, expressing a point of view. Finality in the circumstances was the prerogative of the ICJ clearly, because the matter concerned its own competence to give an advisory opinion. Subject to an indication to the contrary, an international court, and particularly the ICJ, must have the competence to determine its own competence.
21 22
Ibid.
See Amerasinghe, Principles of the Institutional Law of International Organizations (1996) pp. 24-32.
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The Court correctly regarded the issue of the competence of the WHO as a matter of constitutional interpretation. Among other things, it examined as a supportive source the practice of the WHO and came to the conclusion that the WHO had never regarded the issue of the legality of the use of nuclear weapons as a matter with which it had to concern itself. Practice is only a supportive source. Had the practice of the WHO been otherwise, would this have influenced the Court? Such practice may have been a factor to be taken into account but it could not of itself correct what was clearly ultra vires from other primary indications into an intra vires act. Were this not the position, organizations would by consistent subsequent practice virtually amend their constitutions.23 In interpreting the provisions of the Constitution of the WHO relating to the competence of the WHO the Court, applying the textual approach to interpretation, came to the conclusion that interpreted in accordance with their ordinary meaning, in their context and in the light of the object and purpose of the WHO Constitution, as well as of the practice followed by the Organization, the provisions of its Article 2 may be read as authorizing the Organization to deal with the effects on health of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in. The question put to the Court in the present case relates, however, not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects. Whatever those effects might be, the competence of the WHO to deal with them is not dependent on the legality of the acts that caused them. Accordingly, it does not seem to the Court that the provisions of Article 2 of the WHO Constitution, interpreted in accordance with the criteria referred to above, can be understood as conferring upon the Organization a competence to address the legality of the use of nuclear weapons, and thus in turn a competence to ask the Court about that The causes of the deterioration of human health are numerous and varied; and the legal or illegal character of these 23
Amerasinghe, ibid. p. 53.
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causes is essentially immaterial to the measures which the WHO must in any case take in an attempt to remedy their effects. In particular, the legality or illegality of the use of nuclear weapons in no way determines the specific measures, regarding health or otherwise (studies, plans, procedures, etc.), which could be necessary in order to seek to prevent or cure some of their effects. Whether nuclear weapons are used legally or illegally, their effects on health would be the same. Similarly, while it is probable that the use of nuclear weapons might seriously prejudice the WHO's material capability to deliver all the necessary services in such an eventuality, for example, by making the affected areas inaccessible, this does not raise an issue falling within the scope of the Organization's activities within the meaning of Article 96, paragraph 2, of the Charter. The reference in the question put to the Court to the health and environmental effects, which according to the WHO the use of a nuclear weapon will always occasion, does not make the question one that falls within the WHO's functions.24 The distinction between issues of legality and of effects of the use of nuclear weapons was well taken. The effects, and such matters as prevention of adverse effects, of the use of nuclear weapons could be addressed without determining the legality or illegality of their use. In this context the Court referred to a principle which has apparently not been discussed before. It was regarded as a qualifying principle of interpretation relating to the implication of powers. In explaining application of the principle of "speciality" the Court said: the Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the "principle of speciality", that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them It follows from the various instruments mentioned above that the WHO Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account 24
1996 ICJ Reports at pp. 76-7.
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not only of the general principle of speciality, but also of the logic of the overall system contemplated by the Charter. If, according to the rules on which that system is based, the WHO has, by virtue of Article 57 of the Charter, 'wide international responsibilities', those responsibilities are necessarily restricted to the sphere of public "health" and cannot encroach on the responsibilities of other parts of the United Nations system. And there is no doubt that questions concerning the use offeree, the regulation of armaments and disarmament are within the competence of the United Nations and lie outside that of the specialized agencies. Besides, any other conclusion would render virtually meaningless the notion of a specialized agency; it is difficult to imagine what other meaning that notion could have if such an organization need only show that the use of certain weapons could affect its objectives in order to be empowered to concern itself with the legality of such use.25
The principle which was said to have been referred to by the PCIJ was not really expressed by the PCIJ26 in these terms. Thus, the ICJ for the first time in effect gave expression to the principle in the form in which it was stated. The Court also spoke of "the logic of the overall system" of the Charter which becomes an additional subsidiary principle of interpretation in the interpretation of the constitutions of the UN specialized agencies, among others. These two allied principles cannot be questioned either in their articulation or the manner in which they were applied in the circumstances. They could be useful as supplementary means of interpretation and, indeed, were properly resorted to by the Court in the case. If express terms of a constitution go against the principles or what might be clear and necessary implications point in the opposite direction, there will be an additional question raised of the conflict of treaties. The specific issue whether the question should have been answered (as not being outside the scope of WHO's activities), because it touched upon the obligations of member states under the 25
Ibid. at pp. 78-9. Ibid., where the European Commission on the Danube Opinion (1927), PCIJ Series B No. 14 at p. 64, is cited as the source for the principle. 26
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WHO Constitution, and therefore, was within the scope of WHO's activities was a more difficult one. The Court dismissed the issue by simply stating virtually that the reference to the WHO Constitution did not make a difference.27 But in fact put in these terms the question does assume a different dimension. There are really two parts to the resolution of this issue. First, the question must be faced whether, if there were an obligation owed to the WHO by member states (under the Constitution) which would be violated by the use of nuclear weapons, the question put by the WHO would be within its competence. Secondly, if the WHO would be acting within its competence in these circumstances, the question arises how should the Court approach the issue whether the matter concerns obligations under the WHO Constitution. The Court did not approach the problem in this way, though in effect the refusal to give an opinion, because the WHO lacked competence to ask the question, may have been justified in the circumstances. It merely dismissed the issue out of hand, as has been seen. In answering the first question it needs to be considered initially whether, in order to determine what are the rights and obligations between itself and a member state, the WHO has competence to request an advisory opinion as to whether, in producing a situation calling for action by the WHO, that member state may have breached its obligations under the Constitution of the WHO. In the course of carrying out its activities, the WHO can be confronted with the constraining effects of the conduct of a member state. If that conduct constitutes a breach by that member state of its obligations under the Constitution of the WHO, the latter could take or initiate appropriate remedial measures to remove any resulting impediment to the carrying out of its activities. Hence, a legal question as to whether there has been such a breach can arise within the scope of WHO's activities. Thus, to seek an opinion on whether member states were in violation of an obligation under the WHO's Constitution could have been within the WHO's competence. The second question is more difficult. The Court's analysis of the Constitution of the WHO led it to conclude that the WHO had 27
1996 1CJ Reports at p. 82.
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no competence to address the question of the legality of the use of nuclear weapons. This meant that, under the Constitution of the WHO, a member state had no obligation not to use weapons, such as nuclear weapons, which could result in health and environmental effects, because, if a member state had such an obligation, the WHO would clearly have had competence to address the question of the legality of a use of weapons which might have occurred in breach of that constitutional obligation. It is only, if a member state had no obligation under the Constitution of the WHO not to use weapons, such as nuclear weapons, which could result in health and environmental effects, that it could not, in using such weapons, be in breach of any obligation under that Constitution. In dealing with the question in this way and categorically concluding that member states had no obligation under the Constitution not to use weapons such as nuclear weapons the Court decided the question asked by WHO on the merits, although the issue was whether the Court had jurisdiction to examine the merits.28 The question may seem academic, because, first, in principle the holding that there was no violation of an obligation owed to the WHO by member states, because there were no obligations under the Constitution of the WHO not to use nuclear weapons, may have been correct, and, secondly, the finding that there was no such violation because of the absence of obligations implied that there was no prima facie evidence that there were such obligations. However, to be consistent, the Court should not have examined what were in fact the merits of the question, in finding that it had no jurisdiction in the matter. What the Court should have done was to examine, as a matter connected with jurisdiction, whether there was prima facie evidence that there could be an obligation relating to the use of nuclear weapons under the WHO Constitution. If there was, then this was sufficient for it to conclude that the question asked was within the scope of the WHO's activities. If not, it became clear that the question was not within such scope. On the arguments presented to the 28
Judge Shahabudeen makes a similar point in his dissenting opinion but not so obviously. On the other hand, his view led him to conclude that the Court had jurisdiction which was not correct: see ibid, at pp. 99 ff.
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Court and by an examination of the WHO Constitution it was possible to conclude that there was no prima facie evidence that the obligation contended for relating to nuclear weapons arose under that Constitution. The question whether there was an obligation not to use nuclear weapons and whether that obligation had been breached, if there were one, would not have been answered as such, as it was a question on the merits, though in effect the answer given by the Court would have been the same as holding that there was no constitutional obligation with the specified content. This is the manner in which the question should have been handled to avoid a finding on the merits. The finding that the Court had no jurisdiction was correct not for the reason given but because the answer to the proper question relating to constitutional obligations was clear, that there was no prima facie evidence of the required obligations. In the Legality of Nuclear Weapons Opinion the Court's jurisdiction was challenged again on the ground that the GA and the SC were not entitled to ask for opinions on matters totally unrelated to their activities, and that as in the case of other organs and the specialized agencies, they could ask for an advisory opinion on a legal question only within the scope of their activities. The Court rejected the contention holding that in the present case, the General Assembly has competence in any event to seise the Court. Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to "any questions or any matters" within the scope of the Charter. Article 11 has specifically provided it with a competence to "consider the general principles... in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments". Lastly, according to Article 13, the General Assembly "shall initiate studies and make recommendations for the purpose of... encouraging the progressive development of international law and its codification".29
In the Peace Treaties Opinion30 and the Reservations to the Genocide Convention Opinion31 the Court's competence also arose. 29 30 31
1996 ICJ Reports at pp. 232-3. (First Phase), 1950 ICJ Reports p. 65. 1951 ICJ Reports p. 15.
Scope of an organization's activities
519
In those cases it was argued on various grounds that the action of the GA in dealing with the agenda item out of which the requests emerged, or the decision to request the opinion itself, were ultra vires the GA. In the former case that view was based on the contention that, in dealing with the question of human rights and fundamental freedoms in what were then ex-enemy states, the GA was contravening the domestic jurisdiction provisions of the Charter, a contention which had been rejected in the GA. Another related argument put forward was that no right to control the execution of its provisions was conferred by the Peace Treaty on the GA. In the latter case it was argued that the request for the opinion constituted an inadmissible interference by the GA and by states hitherto strangers to the Convention, as only states which are parties to the Convention are entitled to interpret it or to seek an interpretation of it. The Court answered those contentions in different ways in the two cases. The object of the request in the former case was directed solely to obtaining from the Court certain clarifications of a legal character regarding the applicability of the procedure for the settlement of disputes under the terms of the Peace Treaties which, for this purpose, conferred certain functions upon the SG or the UN. As to the right of the GA to concern itself with this matter, having regard to the domestic jurisdiction clause, the Court agreed with the view expressed by the GA in justifying itself its own resolution on the matter, namely the basis of Article 55 of the Charter. For the Court the interpretation of the terms of a treaty for the purpose concerned could not be considered as a question essentially within the domestic jurisdiction of a state. It was a question of international law which by implication was within the scope of the GA's activities to consider.32 The Court then held that, because the matter was not within the domestic jurisdiction of states, the Court itself was not contravening the provisions of Article 2 (7) of the Charter in declaring itself competent.33 In the Reservations to the Genocide Convention Opinion the Court pointed out that not only did the GA take the initiative in respect of the Genocide Convention, draw up its terms and open it 32 33
The Court did not exactly express itself in this way. 1950 1CJ Reports at p. 71.
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for signature and accession, but that express provisions of the Convention associated the GA with the life of the Convention, and that the GA had actually associated itself with it by certain actions it had taken. In these circumstances it held that there could be no doubt that the precise determination of the conditions for participation in the Convention constituted a permanent interest of direct concern to the United Nations which had not disappeared with the entry into force of the Convention. The Court also indicated that the power of the GA to request an advisory opinion in no way impaired the rights of the parties to the Convention in the matter of its interpretation. This right was independent of the GA's power. Furthermore, states which were parties to the Convention could invoke, if need be, the contentious jurisdiction of the Court in accordance with the Convention.34 In both cases the Court did not deny that valid arguments could not be advanced against the jurisdiction of the Court based upon an alleged incompetence of the GA to deal with the matter which led it to request the advisory opinion. The Court did decide that the arguments were inapplicable in these two cases. The matter was clearly regarded as one concerned with ultra vires in both cases. These cases emphasize in a general way that the Court must be satisfied, in the process of establishing its own competence, that the organ requesting the opinion was competent to do so. The views of the UNGA on the question of a specialized agency's competence cannot enlarge that competence or the jurisdiction of the Court.35 The question arose in the WHO Nuclear Weapons Opinion. The resolution of the GA when it made the request in the Legality of the Nuclear Weapons Opinion contained a preamble in which the GA had noted with approval the request of the World Health Assembly (WHO). On the effect of this preamble, the Court said: Nor can the Court accept the argument that the General Assembly of the United Nations, as the source from which the WHO derives its 34
1951 ICJ Reports at pp. 19-20. The same applies to the organization's or organ's views on the propriety of the Court's giving an opinion. 35
The requirement that the question be legal
521
power to request advisory opinions, has... confirmed that competence of that organization to request an opinion on the question submitted to the Court... In expressing this opinion, the General Assembly clearly reflected the wish of a majority of States that the Assembly should lend its political support to the action taken by the WHO, which it welcomed. However, the Court does not consider that, in doing so, the General Assembly meant to pass upon the competence of the WHO to request an opinion on the question raised. Moreover, the General Assembly could evidently not have intended to disregard the limits within which Article 96, paragraph 2, of the Charter allows it to authorize the specialized agencies to request opinions from the Court—limits which were reaffirmed in Article X of the relationship agreement of 10 July 1948.36
THE REQUIREMENT THAT THE QUESTION BE LEGAL The decision of the requesting organ to avail itself of Article 96 of the Charter and to make a request for an advisory opinion may imply that it regards the question put as a legal question. However, that determination of the characteristic of the question is not binding on the Court. Article 65 of the Court's statute permits the court to give an advisory opinion on "any legal question", and therefore it has to satisfy itself that it has a legal question before it.37 This is a matter of its competence. In the UN Expenses Opinion the Court apparently differentiated between the provisions of Article 96 of the UN Charter and Article 65 of its statute by making a distinction between the right of an organ to request an opinion and the competence of the Court to give the opinion requested. It pointed out that in accordance with Article 65 of its statute, the Court can give an advisory opinion only on a legal question. If the question is not a legal one, 36
1996 ICJ Reports at pp. 83-4. The PCIJ statute referred to "any dispute or question", not to a "legal question". 37
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the court has no discretion in the matter; it must decline to give the opinion requested.
But if the question was a legal one, then the question of the Court's discretion might arise.38 The Court did not refer to Article 96 of the Charter but the implication was that the issue of "legal question" under the statute's Article 65 was not finally settled by the organ making a decision to request an opinion under Article 96. (a) Abstract or Political Nature Most of the requests for advisory opinions have turned on the interpretation of the Charter or of other legal texts. In this connection the Court has stated that it cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task, the interpretation of a treaty provision.39 This includes the application of a treaty to a given situation of fact.40 In the Western Sahara Opinion the Court explained its understanding of the concept of "legal question": The questions submitted... have been framed in terms of law and raise problems of international law... These questions are by their very nature susceptible of a reply based on law; indeed, they are scarcely susceptible of a reply otherwise than on the basis of law. In principle, therefore, they appear to the Court to be questions of a legal character.41 38
1962 ICJ Reports at p. 155. On the aspects of this case pertaining to advisory jurisdiction see Amerasinghe, "The United Nations Expenses Case—A Contribution to the Law of International Organization", 4 IJIL (1964) at pp. 226-32. 39 See, e.g., the First Admissions Opinion, 1948 ICJ Reports at p. 61, the Second Admissions Opinion, 1950 ICJ Reports at p. 6, the UN Expenses Opinion, 1962 ICJ Reports at p. 157. 40 See, e.g., the Peace Treaties Opinion (First Phase), 1950 ICJ Reports at p. 71, the UN Headquarters Agreement Opinion, 1987 ICJ Reports at p. 26, the Privileges and Immunities Convention Opinion, 1989 ICJ Reports at p. 187. 41 1975 ICJ Reports at p. 18. See also the WHO Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 73-4, the Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 233-4.
The requirement that the question be legal
523
The contention that in the concrete case the question was not a "legal question" within the contemplation of the Charter and statute has been raised in relation to advisory opinions concerned with the interpretation of the Charter. In that connection, the Court has proceeded by establishing that the Charter is an international treaty, that the interpretation of an international treaty comes within the normal scope of the exercise of the judicial function, and that there were no particular reasons to prevent the Court from performing that normal judicial function in relation to the Charter in the concrete case. The Court has also stressed that, because it can answer any legal question put to it by the GA, the Court's determination that it was asked an abstract question does not lead to the conclusion that it may not answer the question. The Court has indicated very clearly that the fact that the question does not relate to a specific dispute should not lead the Court to decline to give the opinion requested.42 The most important advisory opinions on all these aspects are the First Admissions Opinion43 and the Second Admissions Opinion.44 In those cases the Court also held that, if the question was one which came within the normal scope of the judicial function, it was not concerned with the motives which prompted the decision to make the request. However, the Court has consistently regarded the object of the request, as it appears in the resolution containing the request, a matter of concern. This object is frequently employed as a guide to the interpretation of the question. In the First Admissions Opinion the Court explained its approach to abstract questions, practical questions and motives: It has ... been contended that the question put must be regarded as a political one and that, for this reason, it falls outside the jurisdiction of the court. The Court cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an 42
See the Legality of Nuclear Weapons Opinion, ibid. at pp. 236-7. 1948 ICJ Reports at p. 61. See also the Second Admissions Opinion, 1950 ICJ Reports at p. 6, UN Expenses Opinion, 1962 ICJ Reports at p. 155, Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at pp. 233-4. 44 1950 ICJ Reports at pp. 25-6. The answer in the operative part of the opinion turned out, in a sense, not to be exactly an answer to the question put to the Court. 43
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essentially judicial task, the interpretation of a treaty provision. It is not concerned with the motives which may have inspired this request, nor with the considerations which, in the concrete cases submitted for examination to the Security Council, formed the subject of the exchange of views which took place in that body. It is the duty of the Court to envisage the question submitted to it only in the abstract form which has been given to it; nothing which is said in the present opinion refers, either directly or indirectly, to concrete cases or to particular circumstances. It has also been contended that the Court should not deal with a question couched in abstract terms. That is a mere affirmation devoid of any justification. According to Article 96 of the Charter and Article 65 of the Statute, the Court may give an advisory opinion on any legal question, abstract or otherwise. Lastly, it has also been maintained that the Court cannot reply to the question put because it involves an interpretation of the Charter. Nowhere is any provision to be found forbidding the Court, "the principal organ of the United Nations", to exercise in regard to Article 4 of the Charter, a multilateral treaty, an interpretive function which falls within the normal exercise of its judicial powers.45 While a question may be abstract, on the other hand, the Court may in a given situation have considerable regard to the circumstances prevailing at the time, as it did in the South West Africa Committee Opinion.46 That the subject matter may involve political ideas does not prevent the question from being a legal one, provided it is legal according to the required criteria. The principle emerged from the First Admissions Opinion41 and was implicitly affirmed in the UN Expenses Opinion.48 45
1948 1CJ Reports at p. 61. 1956 ICJ Reports p. 23. See also the South West Africa Voting Opinion, 1955 ICJ Reports p. 67. 47 1948 ICJ Reports at p. 61. 48 1962 ICJ Reports at p. 151. The implication arises because Judge Koretsky, dissenting, ibid. at p. 254, in concluding that there was no jurisdiction, adverted to the fact that the opinion "might be used as an instrument of political struggle". Insofar as the Court found that the Court was competent, it rejected this notion as relevant to its competence. 46
The requirement that the question be legal
525
(b) Object and Purpose In regard to object and purpose, in the Western Sahara Opinion the Court indicated that its advisory function is to give an opinion based on law, "once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and, consequently, are not devoid of object or purpose".49 If the issues in question have become moot, the Court has no competence to give an opinion. This principle is comparable to the one that prevails in regard to the Court's competence in contentious cases. (c) The Relevance of Hypothetical Answers That an abstract question may involve the possibility of hypothetical answers is not a relevant consideration in determining the competence of the Court over a legal question, though the Court will not indulge in hypothesizing. In the Legality of Nuclear Weapons Opinion the Court explained: In contending that the question put to the Court is vague and abstract, some States appeared to mean by this that there exists no specific dispute on the subject-matter of the question. In order to respond to this argument, it is necessary to distinguish between requirements governing contentious procedure and those applicable to advisory opinions. The purpose of the advisory function is not to settle—at least directly—disputes between States, but to offer legal advice to the organs and institutions requesting the opinion... The fact that the question put to the Court does not relate to a specific dispute should consequently not lead the court to decline to give the opinion requested. Moreover, it is the clear position of the Court that to contend that it should not deal with a question couched in abstract terms is a "mere affirmation devoid of any justification", and that "the Court may give an advisory opinion on any legal question, abstract or otherwise"... Certain States have however expressed the fear that the abstract nature of the question might lead the Court to make hypothetical or speculative declarations outside the scope of its judicial function. The court does not consider that, in giving an advisory opinion in the 49
1975 ICJ Reports at p. 37.
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present case, it would necessarily have to write "scenarios", to study various types of nuclear weapons and to evaluate highly complex and controversial technological, strategic and scientific information. The Court will simply address the issues arising in all their aspects by applying the legal rules relevant to the situation."50
(d) Concrete Questions In the ILOAT Judgment Opinion51 and the IMCO Opinion52 both put to the Court on the basis of Article 96, paragraph 2, of the statute, the questions clearly concerned concrete situations. In the UN Expenses Opinion the Court, after analysing the request, concluded that it was asked to give its opinion on a concrete legal question.53 Both the UN Headquarters Agreement Opinion and the Privileges and Immunities Convention Opinion54 concerned very concrete matters which, although contentious, were contentious between a state and the UN. In the first of these, the question itself was whether the USA was under an obligation to proceed to arbitration. The concreteness of the answer required does not make the question any less legal and the Court has not held itself incompetent in these circumstances. (e) Questions of Fact In the Namibia Opinion, the Court, referring to Article 96 of the UN Charter, stated that the contingency that there may be factual issues underlying the question posed does not alter its character as a legal question as envisaged in that provision of the Charter. It said: The reference in this provision to legal questions cannot be interpreted as opposing legal factual issues. Normally, to enable a court to pronounce on legal questions, it must also be acquainted with, take into 50 51 52 53 54
1996 ICJ Reports at pp. 236-7. 1956 ICJ Reports at p. 77. 1960 ICJ Reports p. 150. 1962 ICJ Reports at pp. 155-6. 1988 ICJ Reports p. 12, and 1989 ICJ Reports p. 174, respectively.
The judicial character of the Court
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account and, if necessary, make findings as to the relevant factual issues.55
In the Western Sahara Opinion, a case in which facts presented difficulties, the Court looked at this matter from the point of view both of Article 96 of the Charter and of Article 65 of its statute. It said: a mixed question of law and fact is none the less a legal question within the meaning of Article 96, paragraph 1, of the Charter and Article 65, paragraph 1, of the Statute... [T]o assert that an advisory opinion deals with a legal question within the meaning of the Statute only when it pronounces directly upon the rights and obligations of the States or parties concerned, or upon the conditions which, if fulfilled, would result in the coming into existence, modification or termination of such a right or obligation, would be to take too restrictive a view of the Court's advisory jurisdiction.. ,56
SPECIFIC TERMS OF REFERENCE There may be circumstances in which the Court's advisory jurisdiction is further defined in the relevant legal instruments. Then the terms of those instruments will have a bearing on the competence of the Court and limit its competence, if that is the case. Thus, in the ILOAT Judgments Opinion the ICJ found that one question put to it was outside its special jurisdiction, defined in the statute of the ILOAT, which was applicable in the case.57 In such a situation the Court simply had no competence in respect of the question. THE JUDICIAL CHARACTER OF THE COURT The PCIJ held that where the request for a opinion related to a legal question in a dispute actually pending between two states, the power 55 56 57
1971 ICJ Reports at p. 27. 1975 ICJ Reports at pp. 19-20. 1956 ICJ Reports at p. 99.
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of the Court to give the advisory opinion could not be exercised without the consent of the states parties to the dispute, and that since that consent was not forthcoming, the Court could not give the opinion.58 That view was based upon the general principle of international law concerning the consensual basis of the Court's jurisdiction in contentious judicial proceedings. The principle has been considered to emanate from Article 68 of the statute which provides that "in the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable". It is not absolutely clear whether the Court regards the principle as relating to competence or to the propriety of exercising a discretion to give an opinion. Insofar as it is not specifically referred to in the statute of the ICJ or the Charter as a condition for competence, it could conceivably be treated as relating to propriety and discretion.59 However, because the principle relates to an inherent aspect of the judicial function, even though it is opinions that are given and not judgments in contentious cases, and because of the provisions of Article 68 of the statute, it should properly be regarded as a matter pertinent to competence. Of the principle in the Monetary Gold Case which was discussed in Chapter 760 and was found to emanate from inherent limitations to competence flowing from the judicial character of the Court's function, it is difficult to see why the principle in the Eastern Carelia Opinion should not be related to the same source. They both concern the rights of a party which has not consented to the adjudication of a particular legal dispute as such. It is true that the principle in the former case related specifically to competence in contentious proceedings, while that in the latter opinion pertained to the exercise of jurisdiction in giving advisory opinions. But the 58
The Eastern Carelia Opinion (1923), PCIJ Series B No. 5 at p. 29. In the Peace Treaties Opinion (First Phase) the ICJ specifically related the requirements of Article 68 to a discretion and not to competence: 1950 ICJ Reports at p. 72. See also the Privileges and Immunities Convention Opinion, 1989 ICJ Reports at p. 188. 60 See above pp. 231 ff. 59
The judicial character of the Court
529
latter principle was applied to advisory opinions, because it had some bearing on consent to what for all practical purposes had turned out to be contentious proceedings, although they did not take that form. Thus, it would be reasonable to infer that its relationship to the absence of consent would have made the latter principle one that concerned competence rather than discretionary authority just as the former principle was related to competence, because it was based on consent or the absence of it. In fact the manner in which the Court has dealt with the issue, when it has arisen, of the judicial character of the Court in general and the implications in this connection of Article 68 of the statute has not been very clear. In two of the seven cases in which the strict question of the consequences of the judicial character of the ICJ have been put in issue, it has been treated clearly as a matter which concerns entirely the permissive nature of the advisory function and, therefore, the discretionary authority of the Court.61 In two cases the issue was dealt with together with other issues which clearly pertain to competence in generally answering the question whether the Court should comply with the request for an opinion.62 In the Reservations to the Genocide Convention Opinion it is not clear how the Court regarded the issue.63 On the other hand, in two cases, the Review of Judgment No. 273 Opinion64 and the Privileges and Immunities Convention Opinion65 the Court has decided the issue clearly as one of competence per se. There is support here for treating the matter as one of competence and not as one pertaining to the Court's general discretionary authority to give advisory opinions, in spite of the Peace Treaties Opinion and the Western Sahara
61
The Peace Treaties Opinion (First Phase), 1950 ICJ Reports at p. 72, the Western Sahara Opinion, 1975 ICJ Reports at pp. 22-7. See on the former case the Note by J.-F. Lalive in 77 JDI (1950) p. 1246. 62 The ILOAT Judgments Opinion, 1956 ICJ Reports at p. 86, the Review of Judgment No. 158 Opinion, 1973 ICJ Reports at pp. 18 ff. 63 1951 ICJ Reports at p. 189. 64 1982 ICJ Reports at p. 337. 65 1989 ICJ Reports at p. 189. The matter was raised as an objection to competence.
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Opinion in which it was unequivocally treated as one pertaining to the Court's discretionary authority.66 The Eastern Carelia principle has been explained in the Legality of Nuclear Weapons Opinion in such a way that is has an apparently narrower application than seems to have been expressly defined in the Eastern Carelia Opinion. In the Legality of Nuclear Weapons Opinion the Court said: The Permanent Court of International Justice took the view on only one occasion that it could not reply to a question put to it, having regard to the very particular circumstances of the case, among which were that the question directly concerned an already existing dispute, one of the States parties to which was neither a party to the Statute of the Permanent Court nor a member of the League of Nations, objected to the proceedings, and refused to take part in any way (Status of Eastern Carelia, P.C.I.J., Series B, No. 5).67
The Court made a point of the fact that one of the states party to the dispute (i) was not a party to the statute of the PCIJ, (ii) was not a member of the LN and (iii) refused to take part in any way in the proceedings. If the principle is confined to the extent implied in this case, it would have a very narrow application. The broader principle, however, has been discussed by the ICJ in the Peace Treaties Opinion (First Phase),68 the Western Sahara Opinion,69 and the Privileges and Immunities Convention Opinion70 in order to establish how it could be applied to different situations involving states and international organizations. It is also important that in the Treaty of Lausanne Opinion the PCIJ had made it plain that the mere absence of the consent of one of the states directly concerned was not in itself sufficient to prevent the rendering of an advisory 66
Fitzmaurice, 1 op. cit. note 4 at p. 122 and Rosenne, 2 op. cit. note 4 pp. 1013 ff. take the view that the matter of judicial character relates to the discretion to refuse opinions. No writer, unlike the present author, takes the categorical view that the matter is one of competence. 67 1996 ICJ Reports at pp. 235-6. 68 1950 ICJ Reports p. 65. 69 1975 ICJ Reports at pp. 22-7. 70 1989 ICJ Reports p. 177.
The judicial character of the Court
531
opinion on a question of procedure and the interpretation of the Covenant of the LN.71 In the ILOAT Judgment Opinion72 the related issue of "equality of arms" between parties to a dispute was discussed in the context of the judicial nature of the Court's function, the problem being one specifically touching upon the broad principle of contentious adjudication, audi alteram partem. In the Peace Treaties Opinion the Court first explained the difference between the principles governing contentious proceedings and those applicable to advisory opinions. It admitted that the consent of states, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases, but pointed out that this was not so in advisory proceedings, even where the request related to a legal question actually pending between states. The reason given for this was that the Court's reply was only one of an advisory character and as such had no binding force, so that no state, whether a member of the UN or not, could prevent the giving of an advisory opinion which the UN considered to be desirable in order to obtain enlightenment as to the course of action it should take. The Court emphasized, inter alia, its duty to participate in the activities of the organization. It was also aware that there were limits to this duty deriving from the Court's position as the principal judicial organ. Recognizing that it was on this account that its authority to answer the request had been challenged, it explained the implications of Article 65 of the statute. It said: Article 65 of the Statute is permissive. It gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the Request. In the opinion of the Court, the circumstances of the present case are profoundly different from those which were before the Permanent Court of International Justice in the Eastern Carelia case ... when that Court declined to give an Opinion because it found that the question put to it was directly related to the main point of a dispute actually pending between two States, so that answering the question would be substantially equivalent to deciding the dispute between the parties, and that 71 72
(1925), PCIJ Series B No. 12. 1956 ICJ Reports p. 77.
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at the same time it raised a question of fact which could not be elucidated without hearing both parties. As has been observed, the present Request for an Opinion is solely concerned with the applicability to certain disputes of the procedure for settlement instituted by the Peace Treaties, and it is justifiable to conclude that it in no way touches the merits of those disputes. Furthermore, the settlement of these disputes is entrusted solely to the Commissions provided for by the Peace Treaties. Consequently it is for these Commissions to decide upon any objections which may be raised to their jurisdiction in respect of any of these disputes, and the present Opinion in no way prejudges the decisions that may be taken on those objections. It follows that the legal position of the parties to these disputes cannot be in any way compromised by the answers that the Court may give to the Questions put to it. It is true that Article 68 of the Statute provides that the Court in the exercise of its advisory functions shall further be guided by the provisions of the Statute which apply in contentious cases. But according to the same article these provisions would be applicable only "to the extent to which it recognizes them to be applicable". It is therefore clear that their application depends on the particular circumstances of each case and that the Court possesses a large amount of discretion in the matter. In the present case the Court is dealing with a Request for an Opinion, the sole subject of which is to enlighten the General Assembly as to the opportunities which the procedure contained in the Peace Treaties may afford for putting an end to a situation which has been presented to it. That being the object of the Request, the Court finds in the opposition to it made by Bulgaria, Hungary and Romania no reason why it should abstain from replying to the Request.73 The case contains a good explanation of the juridical principle involved. In the Privileges and Immunities Convention Opinion Romania had made a reservation regarding the jurisdiction of the Court in its 73
1950 ICJ Reports at p. 72. The general principle of respect for the judicial character of the Court was referred to with approval in the UN Expenses Opinion, where the Court said that it had always been guided by that principle: 1962 ICJ Reports at p. 155.
The judicial character of the Court
533
instrument of accession to the General Convention on the Privileges and Immunities of the United Nations of 1946. In the advisory proceedings Romania argued that because of that reservation the Court could not give the advisory opinion without its consent. The Court simply said in answer: The jurisdiction of the Court under Article 96 of the Charter and Article 65 of the Statute, to give advisory opinions on legal questions, enables United Nations entities to seek guidance from the Court in order to conduct their activities in accordance with the law. These opinions are advisory, not binding. As the opinions are intended for the guidance of the United Nations, the consent of States is not a condition precedent to the competence of the Court to give them.74 Having dealt with the issue of competence in the context of the argument, the Court considered whether the absence of Romania's consent had any effect on the propriety of the Court's giving the opinion. It said: It is well settled in the Court's jurisprudence that when a request is made under Article 96 of the Charter by an organ of the Untied Nations or a specialized agency for an advisory opinion by way of guidance or enlightenment on a question of law, the Court should entertain the request and give its opinion unless there are "compelling reasons" to the contrary. ... In view of the emphasis placed by Romania on its reservation to article 30 of the General Convention and the absence of its consent to the present request for advisory opinion, the Court must consider whether in this case "to give a reply would have the effect of circumventing the principle that the State is not obliged to allow its disputes to be submitted to judicial settlement without its consent". The Court considers that in the present case to give a reply would have no such effect. Certainly the Council, in its resolution requesting the opinion, did conclude that a difference had arisen between the United Nations and the Government of Romania as to the applicability of the Convention to Mr. Dumitru Mazilu. But this difference, and the question put to the Court in the light of it, are not to be confused with the 74
1989 ICJ Reports at p. 188.
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dispute between the United Nations and Romania with respect to the application of the General Convention in the case of Mr. Mazilu. In the present case, the Court thus does not find any compelling reasons to refuse an advisory opinion.75
The distinction between "applicability" and "application" is subtle and somewhat inconspicuous. However, what the Court did was to interpret the Convention in the light of the situation presented to it and not to apply it to the facts of the situation to settle the dispute. It was merely stating principles of law emanating from its understanding of the provisions of the Convention. While this distinction was tenable in order to enable it to give an opinion in that case "by way of guidance or enlightenment on a question of law" to assist the UN, there may be situations involving even international organizations in which the Eastern Carelia principle would apply so as to exclude the rendering of an opinion.76 In the ILOAT Judgments Opinion the Court examined the question whether there was anything that would conflict with its judicial character in general, if it gave an opinion in the case. Article 34(1) of the statute77 was the source of the difficulty. Because none other than states could be parties before the Court, there was no way in which the parties to the case before the ILOAT could appear as parties before the Court. There resulted before the Court a procedural inequality between the Executive Board of UNESCO, representing UNESCO, and the officials of UNESCO, the parties to the ILOAT case being the officials and UNESCO. The inequality was two-fold. It related both to the origin and to the progress of the advisory proceedings. The Court apparently regarded as irrelevant the inequality that was antecedent to the examination of the question by the Court, 75
Ibid, at p. 191. It must be emphasized that immunities under the Convention in question cannot be regarded as essentially a matter of the internal law of the UN: contra Rosenne, 2 op. cit. note 4 p. 1020. Therefore, the case cannot be explained as creating an exception because of its being concerned with internal law. Moreover, the Court clearly did not take the view that the matter was one of internal law which, therefore, merited an exception being made. 77 This provision states that "Only states may be parties before the Court." 76
The judicial character of the Court
535
on the ground that it did not affect the manner in which the Court undertook that examination. It did not matter how the matter was brought before the Court. In regard to the actual procedure, it showed some concern but found that any difficulties that may have existed had been met by the procedure followed and had not given rise to any objections on the part of those concerned. It said: The question of equality between Unesco and the officials arises once more in connexion with the actual procedure before the Court. Here the absence of equality flows not from any provision of the Statute of the Administrative Tribunal but from the provisions of the Statute of the Court. In the form of advisory proceedings, the Court has before it a challenge the result of which will affect the right of the officials to the benefit of the Judgements of the Tribunal, and the obligation of Unesco to comply with them. The judicial character of the Court requires that both sides directly affected by these proceedings should be in a position to submit their views and their arguments to the Court.78
In the Western Sahara Opinion79 the Court made some important qualifications to the significance of the absence of consent of a state party to a dispute. While not questioning the validity of the Eastern Carelia principle, as interpreted by it, and the necessity for not jeopardizing the judicial nature of the Court's function, as such, it held that the Eastern Carelia principle did not apply with adverse effects in the case before it, because in all the circumstances the judicial nature of the Court's function would not be prejudiced by its rendering an opinion. The Court conceded that, where circumstances disclose that giving an opinion in the case would have the effect of circumventing the principle that a state's consent is necessary for its dispute to be submitted for judicial settlement, it should not give an opinion. However, it pointed out that the situation in the case before it did not circumvent the principle involved for several reasons. First, the controversy arose during proceedings in the GA and in relation to matters with which it was legitimately dealing. 78 79
1956 ICJ Reports at p. 86. 1975 ICJ Reports at pp. 22-9.
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Secondly, Spain, the state objecting to the rendering of an opinion on the ground that the opinion would settle without its consent a dispute to which it was a party, was a member of the UN and had accepted the authority of the GA to deal with decolonisation under the UN Charter and had also accepted the provisions of the Charter and the ICJ statute on advisory opinions. It pointed out in this connection that the situation in the Eastern Carelia Opinion was different in that the state objecting to the giving of an opinion by the PCIJ was not even a member of the LN. Thirdly, the narrow legal questions referred to the Court for an answer were located in a broader frame of reference than the settlement of a specific dispute and embraced other elements. Moreover, the Court had been furnished with extensive documentary evidence of the facts so that the Court had sufficient information and evidence before it to arrive at the necessary judicial conclusion in reply to the questions asked. Clearly, the principle flowing from the judicial character of the Court has other implications than the ones already dealt with and noted by the Court. For example, if the Court finds that it could not do substantial justice in the matter, e.g., because essential facts could clearly not be made available to the Court by means at its disposal, it would have to find that it lacked competence to proceed. The basic idea is that it must be able to do substantial justice, in the circumstances of the case, as a judicial body. In implementing the principle that it must not act in a manner which would jeopardize its judicial character, the court has not been too rigid in its approach to the requirement of Article 68 of its statute that it should, where appropriate, apply in giving advisory opinions the provisions of the statute relating to contentious proceedings. While the approach taken by the Court (both the PCIJ and the ICJ) to the implementation of the principles flowing from its judicial character cannot be faulted, it is important to emphasize that in regard to its authority to give advisory opinions the principles relate to competence and not to discretionary authority to give opinions, as has been the view taken by the Court in several cases. As pointed out in chapter 7, the principle in the Monetary Gold Case, which also flowed from the Courts' judicial character, related to inherent
The exercise of the discretion to give an opinion
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limitations on its competence arising from its judicial character. Similarly, in regard to the advisory jurisdiction of the Court, particularly by virtue of Article 68 of the statute, but even otherwise, the same inherent limitation is applicable to confine its competence. The judicial character of the Court demands competence be limited by such a principle appropriately interpreted in the circumstances of advisory opinions. There is no other way of looking at the matter. If it finds that its judicial character is being prejudiced, it must refuse to exercise jurisdiction. There is no discretion to do so! An important feature of the Court's approach to the principle that the judicial character of its functions should not be jeopardized is that it also recognizes another principle which is relevant and protects a different interest, namely the interests of the organization concerned, generally the UN. This principle is that the Court must participate, as the principal judicial organ, in the work of the organization, whether the UN or others. The latter principle may sometimes conflict with the principle relating to the Court's judicial character, whose object is to protect a different interest, namely its own. The Court's attitude so far has been to satisfy the interests of the organizations in this regard. However, it cannot be said that it has done this at the expense of its own interest in preserving its judicial character. What it has done is to take a sagacious approach to interpreting and applying the principle that its own judicial character must be protected.
THE EXERCISE OF THE DISCRETION TO GIVE AN OPINION: THE COURT'S STATUS AS A PRINCIPAL ORGAN It is logical that the Court cannot and should not consider the discretionary aspect of giving an advisory opinion until it is established that it has competence to give such an opinion. Though the issues may be distinct in the two cases, a distinction between them is often difficult to discern in the course taken by the Court in dealing with issues raised as objections to its giving an opinion. When the Court raises an issue proprio motu, however, this distinction is more palpably observed. In any case the discretion is not to give an
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opinion for good reason rather than that it must be demonstrated that there is good reason for the Court to give an opinion. The Court has operated on the basis that it must make every effort to assist the organizations which make requests for opinions in their work in observing the permissiveness of Article 65(1) rather than not give opinions. The Court has said, for instance, that a particular objection should "not lead the Court to decline to give an opinion."80 Once the Court's competence is established there is a reasonable presumption that it should give an opinion. The Court's discretion is controlled by two provisions of the statute. The permissive wording of Article 65 gives the Court a general discretion whether or not to answer the question put to it even if it has the competence to do so. Thus, the Court would appear to have a broad discretion to refuse or not an opinion. It is also significant that the ICJ has never refused to give an opinion as a result of the exercise of its discretion.81 In some cases it simply notes that it "finds no compelling reasons not to give the advisory opinion requested".82 The PCIJ and the ICJ after it seem to have developed the general principle which tends toward liberality that, because the Court is a principal organ of the UN, it is under a duty to co-operate with other organs and as a consequence, a request for an advisory opinion should not in principle be refused. Thus, only compelling reasons could lead the Court to refuse to give the requested opinion. The principle was referred to in the Peace Treaties Opinion. The Court said that its opinion, given to the requesting organ, "represents its participation in the activities of the Organization, and, in principle, should not be refused".83 In the ILOAT Judgments Opinion the Court, after extending the scope of the function to include co-operation with specialized agencies authorized to request advisory opinions, reformulated it as follows: "Notwithstanding the permissive character of Article 65 of the Statute in the matter of advisory opinions, only 80
The Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at p. 236. See the Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at p. 235 per the Court. 82 See the Difference Relating to Immunity Opinion, 1999 ICJ Reports at p. 79. 83 1950 ICJ Reports at p. 71. 81
The exercise of the discretion to give an opinion
539
compelling reasons could cause the Court to adopt in this matter a negative attitude which would imperil the working of the regime established by the Statute of the Administrative Tribunal for the judicial protection of officials."84 In the UN Expenses Opinion the Court examined in a case put to it by the General Assembly whether any such compelling reasons existed.85 Because of the structured relation now existing between the Court and the UN, the Court regards itself as being under the duty of participating, within its competence, of course, in the activities of the organization. An objection put forward in the Peace Treaties Opinion86 was that, were the Court to exercise its advisory function, the advisory procedure would take the place of the procedure instituted in the Peace Treaties for the settlement of disputes. In the Reservations to the Genocide Convention Opinion87 a similar argument was developed further. There it was contended, that as the Genocide Convention has its own compromissory clause conferring jurisdiction on the Court, and as there was no dispute in the present case, the effect of the compromissory clause was to deprive the Court not only of any contentious jurisdiction, except in conformity with that clause, but also of any power to give an advisory opinion. The Court pointed out in the former case that as far as the Peace Treaties were concerned the object of the request was to facilitate the application of the disputes articles by seeking information for the GA as to their applicability in the circumstances of the case. In the latter case a similar answer was given. In both cases the discretion not to give an opinion was not exercised. A good example of how the court has responded to objections to the exercise of its discretion to give an opinion is the Legality of Nuclear Weapons Opinion88 In that case it said that (i) the fact that there was no specific dispute was not a viable objection which should lead the Court to decline to give an opinion; (ii) it was no 84
1956 ICJ Reports at p. 86. The case-law is referred to in the Legality of Nuclear Weapons Opinion, 1996 ICJ Reports at p. 235. 85 1962 ICJ Reports at pp. 155-6. 86 1950 ICJ Reports p. 65. 87 1951 ICJ Reports p. 15. 88 1996 ICJ Reports at pp. 236-8.
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obstacle that the GA had not explained to the Court for what precise purpose it sought the opinion; (iii) the origins or political history of the request or the distribution of votes in respect of the resolution requesting the opinion were not relevant factors; (iv) in the light of the argument that an opinion might adversely affect disarmament negotiations and, therefore, be contrary to the interests of the UN, the conclusions in any opinion the Court might give, whatever they be, would have relevance for the continuing debate on the subject involved in the GA and could present an additional element in the negotiations on the matter; and, (v) while the Court would not take upon itself a legislative function, its task here clearly was to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable to the threat or use of nuclear weapons. For these reasons it found that there was no compelling reason "to exercise its discretion not" to give an opinion.89 It is significant that the Court referred to its discretion not to give an opinion rather than stating the converse proposition. This confirms what was said earlier that the Court's approach is that once its competence is established the presumption is that it will render an opinion unless it is for a good reason not to do so. The Court will not regard the mere fact that it must interpret a treaty at the request, inter alia, of interests other than or transcending those of the actual parties to the treaty as a ground for refusing to exercise its discretion to exercise its advisory jurisdiction. In this connection the Court made the following statement in the Reservations to the Genocide Convention Opinion: It must be pointed out that, not only did the General Assembly take the initiative in respect of the Genocide Convention, draw up its terms and open it for signature and accession by States, but that express 89
On the exercise of the jurisdiction to given an opinion in this case see AbiSaab, "On Discretion—Reflections on the Nature of the Consultative Function of the International Court of Justice", in Boisson de Chazournes and Sands (eds.), International Law, the International Court of Justice and Nuclear Weapons (1999) p. 36, Lailach, "The General Assembly's Request for an Advisory Opinion from the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons", 8 LJIL (1995) p. 401.
The exercise of the discretion to give an opinion
541
provisions of the Convention (Articles XI and XVI) associate the General Assembly with the life of the Convention; and finally, that the General Assembly actually associated itself with it by endeavouring to secure the adoption of the Convention by as great a number of States as possible. In these circumstances, there can be no doubt that the precise determination of the conditions for participation in the Convention constitutes a permanent interest of direct concern to the United Nations which has not disappeared with the entry into force of the Convention. Moreover, the power of the General Assembly to request an Advisory Opinion from the Court in no way impairs the inherent right of States parties to the Convention in the matter of its interpretation. This right is independent of the General Assembly's power and is exercisable in a parallel direction. Furthermore, States which are parties to the Convention enjoy the faculty of referring the matter to the Court in a manner provided in Article IX of the Convention.90
In the same case the Court made the point that it would not refuse, in the exercise of its discretionary authority, to interpret a treaty merely because the treaty contained a clause making specific provision for the settlement of disputed points of interpretation. It said: Another objection has been put forward to the exercise of the Court's advisory jurisdiction: it is based on Article IX of the Genocide Convention which provides that disputes relating to the interpretation, application or fulfilment of that Convention shall be submitted to the International Court of Justice at the request of any of the parties to the dispute. It has been contended that there exists no dispute in the present case and that, consequently, the effect of Article IX is to deprive the Court, not only of any contentious jurisdiction, but also of any power to give an Advisory Opinion. The existence of a procedure for the settlement of disputes, such as that provided by Article IX, does not in itself exclude the Court's advisory jurisdiction, for Article 96 of the Charter confers upon the General Assembly and the Security Council in general terms the right to request this Court to give an Advisory Opinion "on any legal question".91 90
1951 ICJ Reports at pp. 19-20. Ibid. at p. 20. The ground mentioned also does not affect the competence of the Court. 91
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The Court, as pointed out already, has never exercised its discretion to refuse to render an opinion. It is apparent that it leans heavily in favour of not refusing rather than refusing an opinion. Clearly, there must be a good reason of judicial policy to induce it to exercise its discretion to refuse an opinion. JURISDICTION TO REOPEN ADVISORY OPINIONS (a) Interpretation The interpretation of a previous advisory opinion by the Court is only possible through a request for a subsequent advisory opinion or in the event that the opinion needs to be interpreted in a later opinion, even though a formal interpretation of the previous opinion is not requested. In the South West Africa Voting Opinion92 and the South West Africa Committee Opinion93 the question of interpretation arose before the ICJ. No issue of jurisdiction was raised proprio motu by the Court or otherwise. The request in the first of these cases cited a section of the 1950 Status of South West Africa Opinion94 and stated that some elucidation of that opinion was desirable. The question asked whether a special rule of procedure to be followed by the GA in taking decisions on questions relating to reports and petitions concerning South-West Africa constituted a correct interpretation of the 1950 opinion. In the second case the question was whether it would be consistent with the 1950 Opinion for the Committee on South-West Africa to grant oral hearings to petitioners on matters relating to South-West Africa. In both cases the questions asked were expressly related to the 1950 Opinion, thus obviously raising questions of interpretation. The jurisdiction to answer the question was exercised in both cases. The Court answered the specific questions asked, while in the process of doing so it interpreted the previous Opinion. In the South West Africa Voting Opinion the Court did not make a 92 93 94
1955 ICJ Reports p. 67. 1956 ICJ Reports p. 23. 1950 ICJ Reports p. 128.
Jurisdiction to reopen advisory opinions
543
formal interpretation of the 1950 Opinion but answered the question, ostensibly by a process of interpretation, whether the GA was bound by the voting provisions of Article 18 of the Charter when dealing with reports and petitions from South-West Africa. In the South West Africa Committee Opinion it considered whether the institution of oral hearings would add to the obligations of the mandatory power. But in a sense both questions could be seen as separate matters standing on their own. In the case of advisory opinions the doctrine of res judicata is not formally applicable because they do not settle disputes that come before the Court through a contentious procedure. Thus, there is no reason why interpretation should not be requested directly as a matter of interpretation or by a separate request for another advisory opinion. There is no express provision in the statute for interpretation of an opinion but just as an international tribunal has an inherent jurisdiction to interpret its own judgments in contentious cases, so the Court should all the more have such an inherent jurisdiction in regard to advisory opinions in regard to which there is no problem of res judicata.95 (b) Revision No specific provision appears in the statute of the ICJ relating to revision of its advisory opinions which corresponds to Article 61 of the statute relating to revisions in a limited situation of its judgments in contentious cases. The question of formal revision of an opinion for whatever reason has not arisen. Theoretically, there is no reason why the Court should not have the same inherent jurisdiction, which exists in the absence of specific provision, to revise cases as international tribunals in general have and has been discussed in chapter 11. In subsequent contentious proceedings, however, the Court (both the PCIJ and the ICJ) has been confronted with situations in which the revision of previous opinions has been considered. In 95
See Chapter 11 for the inherent jurisdiction to interpret. Rosenne, 2 op. cit. note 4 pp. 1045 ff., concedes that the Court may interpret its own opinions but by a more limited procedure based on different sources of law.
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principle the doctrine of res judicata is not applicable to advisory opinions and in any case those contentious proceedings have not strictly consisted of formal requests for revision of a previous opinion in the same way as a request for revision of a judgment in a contentious case which would be confined to affecting the earlier judgment as a settlement of a dispute between the parties which was the subject of the earlier judgment and which was binding only as between the parties to that dispute. However, in all the cases the Court has expressed the view that there was a reason for it to alter its opinion on the matter in dispute which had been expressed in the earlier opinion. In the judgment on the merits in the German Interests in Polish Upper Silesia Case (Merits), the PCIJ, referring to an argument based on an interpretation of article 256 of the Treaty of Versailles, pointed out that it had already considered the question in the German Settlers in Poland Opinion96 and had given an interpretation of that provision and that nothing has been advanced in the course of the present proceedings calculated to alter the Court's opinion on this point.97 In the South West Africa Cases (Preliminary Objections) it was argued that the ICJ need not follow certain conclusions reached in the 1950 Status of South West Africa Opinion, but that in effect it could reverse them on the basis of some new facts alleged to have come to light since. The Court rejected those contentions. On the effect of the dissolution of the League of Nations on article 7 of the Mandate (the compromissory clause), the Court referred to the unanimous holding of the Court in 1950, which continues to reflect the Court's opinion today. Nothing has since occurred which would warrant the Court reconsidering it. All important facts were stated or referred to in the proceedings before the Court in 1950.98
In the same case dealing with the meaning of the phrase "another Member of the League of Nations" in that compromissory 96 97 98
(1924), PCIJ Series B No. 6. (1926), PCIJ Series A No. 7 at p. 31. 1962 ICJ Reports at p. 334.
Jurisdiction to reopen advisory opinions
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clause, the Court again saw no "valid ground for departing from the conclusion reached in the Advisory Opinion of 1950 to the effect that the dissolution of the League of Nations has not rendered inoperable Article 7 of the Mandate".99 On all three points met in these cases the Court was merely responding in the negative to the arguments raised on the understanding that it had authority to revise its previous opinions which were by and large on points of law or their application. There was no real issue of a tribunal being requested to review conclusions which would revise the previous case or its outcome. Further, what was happening in these situations was that the Court was being requested in different cases to take a further look at its previous holdings, just as a court may be requested in a subsequent case to overrule a conclusion reached in an earlier case. This situation is completely different from the situation of review or revision discussed in chapter 11 and "review" in these circumstances does not require any authorization in the constitutive instruments or from any other source.100
99
Ibid. at p. 338. Rosenne, 2 op. cit. note 4 pp. 1046 ff., unnecessarily confuses the two situations. 100
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III SPECIFIC COURTS AND TRIBUNALS
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13 THE PERMANENT COURT OF INTERNATIONAL JUSTICE AND THE INTERNATIONAL COURT OF JUSTICE
There are two aspects of the jurisdiction of the PCIJ and ICJ which merit special treatment, because they are somewhat singular. These are forum prorogation as a source of jurisdiction and the so-called compulsory jurisdiction of the Court under Article 36(2) of the ICJ statute (Article 36 of the PCIJ statute). A. FORUM PROROGATUM Prorogated jurisdiction is always based on consent, as is the jurisdiction of international tribunals in principle, but the special feature of it is that the consent of one party is consolidated after the institution of proceedings, whereas it did not exist at that point. Thus, not all consensual jurisdiction is prorogated, while prorogated jurisdiction is a form of consensual jurisdiction. It would be wrong to identify prorogated jurisdiction, as understood in international law,
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with the totality of jurisdiction based on consent.1 On the other hand, whether the prorogation occurs in respect of a particular aspect of jurisdiction ratione materiae2 or it covers elements which relate to matters personae, materiae, loci, temporis, etc. seems not to be critical or to make a basic difference for the principle of prorogation. The point is that, where there was no consent (on the part of one party) generally at the time of the institution of proceedings, such consent being necessary, consent becomes present subsequently by whatever means recognized by or acceptable to the tribunal. The focus is on the subsequent appearance of the consent. There is no evidence or reason for restricting the application of the doctrine to materiae or any other aspect. General Considerations The doctrine assumes significance because, prior to the establishment of the World Court (PCIJ and then the ICJ), international tribunals did not even contemplate admitting the relevance of the doctrine for the purposes of their jurisdiction. Even after the establishment of the PCIJ and ICJ other tribunals than these courts have in general, as has been seen in Chapter 7, regarded the doctrine as inapplicable to their jurisdiction. This is so, even if a finding of an absence of jurisdiction may be only of formal significance in that the parties could go back 1
E.g., John Erskine's definition of prorogated jurisdiction as jurisdiction "conferred upon a judge who, without such consent, would be incompetent": 1 Institute of the Law of Scotland (1871 ed.) p. 49, does not make the point about forum prorogatum which is inherent in the concept for international law. Again Justinian's Digest VI.I. citing Ulpian, which refers to consent in general as the basis of jurisdiction does not make the distinction relevant for the purposes of international law. Both Erskine and Ulpian were dealing with a situation where the usual basis of jurisdiction was not consent but other legal factors. Their reference to consent as a source of jurisdiction was a general one in the context of a non-consensual system of jurisdiction. What they had to say did not concern consent given after the institution of proceedings as such. 2 See the discussion in the Interpretation of the Treaty of Lausanne Opinion (1925), PCIJ Series B, No. 12 at p. 27. On forum prorogatum see also Waldock, "Forum Prorogatum or Acceptance of a Unilateral Summons to Appear before the International Court", 2 ILQ (1948) p. 377, H. Lauterpacht, The Development of International Law by the International Court (1958) pp. 103-7.
Forum prorogatum
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and formalize their agreement or mutual consent and, thus, give either the same tribunal or another tribunal jurisdiction. Because forum prorogatum relates to consent, it is only where the immediate consent of the party in issue is required that the principle may be invoked. Where the immediate consent of the party in issue is not relevant for the tribunal's jurisdiction, as is the case, for example, with jurisdiction over war crimes, the doctrine is clearly inapplicable in limine. Moreover, while the question has not been raised before, it is very likely that the application of the doctrine could validly be excluded by the agreement of the relevant parties before the institution of proceedings, that is, in the jurisdictional instrument, precisely because the doctrine relates to the presence and evidence of consent, and the parties may determine beforehand to what extent they will permit a consent to be taken to exist or be evidence subsequently to the mutual consent to the tribunal's jurisdiction or to the institution of proceedings. These general remarks do not, however, detract from the acceptance of the doctrine by the PCIJ and the ICJ to the extent that it has been accepted nor do they affect the particular interpretation the Court has given the doctrine. But a question that does arise, again one that had not been asked either by the Court, or, indeed, before, is whether the facility with which both the PCIJ, commencing with the Mavrommatis Palestine Concessions Case(2),3 and the ICJ have accepted the doctrine is not to be explained by the requirement of a two step acceptance by the same parties of the Court's jurisdiction. It is significant that the doctrine has never been applied in respect of the first step in the acceptance of the Court's jurisdiction, namely becoming a party to the statute of the Court. It is only to the second step of jurisdictional acceptance, namely acceptance of jurisdiction under Article 36, whether of the PCIJ or ICJ statute, that the doctrine has been applied. Technically, once accepted as relevant, the doctrine could be applied to any head of jurisdiction in that Article, whether it be, e.g., under paragraph (i) or (ii). It is simply a matter of identifying mutual consent to the Court's jurisdiction after the first step has been taken, whether that mutual consent was manifest 3
(1925), PCIJ Series A, No. 5.
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at the time of the institution of the proceedings or it was consolidated at an acceptable point thereafter, irrespective of the manner in which the consent of one of the parties, generally the claimant, was expressed originally. The Principle and its Evolution The first case in which the issue of prorogated jurisdiction arose before the PCIJ was the Mavrommatis Palestine Concessions Case. While the Court's jurisdiction was initially attributable to the Mandate for Palestine, an issue arose which was outside the terms covered by the Mandate. The Court then rested its jurisdiction on an implied special agreement. It said that "It is not by reason of the jurisdiction conferred on the Court under Article 26 of the Mandate; but in consequence of an agreement between the Parties resulting from the written proceedings, that the Court has jurisdiction..."4 This was clearly a reference to the formation of an agreement by conduct after the institution of proceedings, in respect of the particular matters in issue which were not covered by the Mandate. In the Minority Schools Case the Court, accepting the principle enunciated in the Mavrommatis Palestine Concessions Case, clearly explained that submission of arguments on the merits, i.e., without raising an objection to jurisdiction, supplies the consent that may have been lacking in the first place. The case arose ostensibly out of the Upper Silesia Convention to which Germany and Poland were parties. The respondent submitted arguments on the merits without raising an objection to jurisdiction. The Court held: ... 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. It seems hard to deny that the submission of arguments on the merits, without making reservations in regard to the question of jurisdiction, must be regarded as an unequivocal indication of the desire of a State to obtain a decision on the merits of a suit...
4
Ibid. at p. 27.
Forum prorogatum
553
... there is nothing in this Convention or in the principles governing the Court's jurisdiction to prevent questions not falling within the category of those in respect of which compulsory jurisdiction is established, from being submitted to the Court by agreement between the Parties, notwithstanding the fact that the suit has been brought on the basis of the clause conferring compulsory jurisdiction... there is no rule laying down that consent must take the form of an express declaration rather than that of acts conclusively establishing it. If, in a special case, the Respondent has, by an express declaration, indicated his desire to obtain a decision on the merits and his intention to abstain from raising the question of jurisdiction, it seems clear that he cannot, later on in the proceedings, go back upon that declaration.5 In the case the subsequent consent of the respondent was held to be sufficient for the incidence of jurisdiction. Thus, first, the doctrine of forum prorogatum became accepted in the jurisdiction of the Court; second, the Court made it clear that the principle involved could be activated even where the initial ostensible source of jurisdiction was derived from action taken under Article 36(2) insofar as compulsory jurisdiction was mentioned; third, it was patently stated that consent which was originally lacking once given by subsequent conduct could not be withdrawn. Indeed, any other view of the effect of consent attributable to subsequent conduct would have made nonsense of the doctrine of forum prorogatum. In the same case the Court added that the consent apparently given would be effective, only if the conditions under which the act manifesting consent, in this case a declaration, had been made were such as to invalidate the expression of intention or if the applicant had, subsequent to the expression of consent, essentially modified the relevant aspect of the case so that the original consent could not reasonably be regarded as applicable to the claim in its new form.6 It also pointed out that, when the intention of submitting a matter to the Court for decision had been implicitly evidenced by the fact that the merits had been argued without reserving the question of 5
(1928), PCIJ Series A, No. 15 at pp. 24-5. The ICJ has adopted this view in the Ambatielos Case (Preliminary Objections): 1952 ICJ Reports at p. 39. 6
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jurisdiction, there was no reason to find that consent was lacking. In the Chorzow Factory Case (Merits) this view was reaffirmed.7 It must be pointed out that, if the principle of substantive law which permits the maturation of consent not originally given by subsequent acts is admitted and recognized as valid, it is irrelevant that the procedural rules of the Court reflect a position which contradicts the position accepted to be governing in the substantive law. The issue of whether jurisdiction may be prorogued is a matter of substance and not one of procedure, it relates to the requirements for the presence of consent. Thus, the discussions which took place in the Court relating to the Rules of the Court but concentrated on the issue of consent by prorogation8 were misguided in that they were aimed at undermining a substantive principle of law applying to consensual jurisdiction by the formulation of a rule of procedure. Such a rule, if enacted, would have been untenable to displace the substantive principle of law, assuming that the principle had been accepted which had been done. It is significant, however, that the present Article 38(2) of the Rules of Court states only that the application to the Court "shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based".9 The ICJ first applied the principle as early as 1947 in the Corfu Channel Case (Preliminary Objection).10 Subsequently, as will be seen, there have been several cases in which the principle has been accepted as being valid.11 7
(1928), PCIJ Series A No. 17 at p. 37. There were several dissents from the position taken by the Court and reaffirmed in this case: see, e.g., Judge Huber in the Minority Schools Case (1928), PCIJ Series A No. 15 at pp. 48 ff., Judge Nyholm, ibid, at pp. 57 ff., Judge Negulesco, ibid. at p. 67. Sometimes there was confusion between the authority of a principle of law and that of a rule of procedure. 8 See the account of these discussions in Rosenne, 2 The Law and Practice of the International Court, 1920-1926, (1996) pp. 702-5. See also Waldock, loc. cit. note 2 at p. 385. 9 See for the application of this provision the Northern Cameroons Case, 1963 ICJ Reports at p. 28. 10 1947-1949 ICJ Reports at pp. 26ff. 11 The other leading cases are the Haya de la Torre Case'. 1951 ICJ Reports p. 71, the Ambatielos Case (Preliminary Objections): 1952 ICJ Reports p. 28, the Anglo-Iranian Oil Co. Case (Preliminary Objections): 1952 ICJ Reports p. 93,
Forum prorogatum
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The Maturation of Consent or Agreement An application may or may not indicate legal grounds upon which the jurisdiction of the Court is said to be based and on which the applicant is relying. In a given case the applicant may, on the other hand, make it clear that through the application it is leaving it open for the respondent to agree to the attribution of jurisdiction to the Court for the particular case. As was said in the Corfu Channel Case (Preliminary Objection): While the consent of the parties confers jurisdiction on the Court, neither the Statute nor the Rules require that this consent should be expressed in any particular form... Furthermore, there is nothing to prevent the acceptance of jurisdiction, as in the present case, from being effected by two separate and successive acts, instead of jointly and beforehand by a special agreement. As the Permanent Court of International Justice has said in its Judgment No. 12, of April 26th, 1928, page 23: 'The acceptance by a State of the Court's jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement'.12
In effect the claimant's consent may be given by a unilateral application to the Court under Article 40 of the statute and the present Rule 38 of the Rules of Court. The respondent may then in turn consent to the jurisdiction by accepting it. In the Corfu Channel Case the respondent contended that, since neither party was compelled to agree to recourse to the Court, the proceedings could only be commenced by a special agreement or compromis, and that the claimant's filing of a unilateral application was incorrect. The Court did not accept this argument and stated: In submitting the case by means of an Application, the Government of the United Kingdom gave the Albanian Government the opportunity the Nottebohm Case (Preliminary Objection): 1953 ICJ Reports p. 1ll, the Request for Examination of the Situation Case: 1995 ICJ Report p. 288, the Application of the Genocide Convention Case (Preliminary Objections): 1996 ICJ Reports p. 595. 12 1948 ICJ Reports at pp. 27-8.
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Chapter 13. PCIJ and ICJ of accepting the jurisdiction of the Court. This acceptance was given in the Albanian Government's letter of July 2nd, 1947. Besides, separate action of this kind was in keeping with the respective positions of the parties in proceedings where there is in fact a claimant, the United Kingdom, and a defendant, Albania.13
There is some practical value in the forum prorogatum principle thus envisaged, particularly because parties may not be able to agree on the exact terms of a compromis or special agreement, and, therefore, it may be otherwise difficult to get the matter before the Court at all. This kind of jurisdiction arises, where, there being no basis on which the Court's jurisdiction, whether compulsory or by special agreement, can be invoked, one party to a dispute makes an application to the Court, or takes some other step implying consent to, or recognition of the Court's jurisdiction in the case, and the other party thereupon is given the opportunity to accept or submit to the jurisdiction and does so explicitly or can be held to have done so, either by signifying acceptance in an appropriate manner or by taking some step in the proceedings. There are some cases other than the Corfu Channel Case in which the issue of forum prorogatum did feature, although the judgment may not have used that terminology or the matter was not addressed because it was regarded as irrelevant, though the claimant had left it open for the principle to operate. In the Haya de la Torre Case the Court was requested to indicate in what manner an earlier judgment might be carried out, and what steps the party responsible for doing so ought to take for that purpose, because the parties had not been able to reach any agreement on the matter. There was no specific provision in the statute which authorized the Court to accede to such a request, and in view of the doubt as to whether it could be regarded as an inherent part of the original litigation, the jurisdiction of the Court required to be separately founded for the purpose. There was no specific agreement between the parties to refer the matter to the Court and proceedings were begun by means of a unilateral application on the part of the party responsible for 13
Ibid.
Forum prorogatum
557
carrying out the basic judgment of the earlier case. The other party then responded by acknowledging the claim, appointing an agent and complying with all the orders of the Court as to the filing of pleadings, and the like. In the judgment in the case the Court stated: These are the circumstances giving rise to the present case which has been brought before the Court by the Government of Colombia by Application of December 13th, 1950. 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.14
Although the language is not clear, the circumstances and the absence of any evidence of prior agreement or understanding between the parties to accept a reference to the Court makes it possible to treat the case as one of prorogated jurisdiction. The case endorses the general proposition that conduct, as well as written acceptance, is sufficient to found jurisdiction on the basis of consent. In the Ambatielos Case an alternative submission contained in the Greek (claimant) memorial stated that the UK (respondent) was under an obligation as a member of the UN to conform to the provisions of Articles 1(1) and 36(3) of the Charter, the dispute in question being a "legal dispute susceptible of adjudication by the Court". This submission was later abandoned. Consequently the Court did not have to deal with it. The UK, however, dealt with this suggestion in the memorial, to reject it, stating clearly that, consequent upon this rejection, there was no question of the Court acquiring jurisdiction on the basis of forum prorogatum.15 In the Anglo-Iranian Oil Co. Case the claimant (UK) concluded in its application that: Alternatively, whether or not the Court has the right to exercise jurisdiction in this case by virtue of the... declaration... the Government 14 15
1951 ICJ Reports at p. 78. Ambatielos Case, ICJ Pleadings at p. 284.
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of the United Kingdom expects that Iran, as a Member of the United Nations... mindful of the principle that 'legal disputes should as a general rule be referred... to the... Court...' will agree to appear before the Court voluntarily in order to hear and answer on their merits the arguments of the Government of the United Kingdom. (Forum prorogation; Corfu Channel Case (Preliminary Objection)).16 This invitation to appear and answer the merits was declined by the respondent and the issue of jurisdiction fell to be decided solely by reference to the other grounds upon which the jurisdiction was sought to be based. Nevertheless, the Court, despite the rejection of this invitation and the intimation which it received from Iran that the jurisdiction of the Court was contested, and without considering whether a prima facie case for jurisdiction was made out, held, following some earlier cases, that it could entertain a request for interim measure of protection because ratione materiae "it cannot be accepted a priori" that the claim itself "falls completely outside the scope of international jurisdiction".17 Thus, the existence of a possibility of forum prorogation was a ground for concluding that the Court had prima-facie jurisdiction in a general sense, which enabled it to order interim measures of protection, this being a matter of incidental jurisdiction. The following analysis may be made of the position relating to forum prorogatum. (a) The institution of proceedings by unilateral application is not confined to cases of compulsory jurisdiction. The Court stated in the Corfu Channel Case (Preliminary Objection): The Albanian contention... is essentially founded on the assumption that the institution of proceedings by application is only possible where compulsory jurisdiction exists and that, where it does not, proceedings can only be instituted by special agreement. This is a mere assertion... Article 32, paragraph 2, of the Rules does not require the Applicant, as an absolute necessity, but only 16 17
Anglo-Iranian Oil Co. Case, ICJ Pleadings at p. 17. Anglo-Iranian Oil Co. Case, 1951 ICJ Reports at p. 93.
Forum prorogatum
559
'as far as possible', to specify in the application the provision on which he founds the jurisdiction of the Court. It clearly implies, both by its actual terms and by the reasons underlying it, that the institution of proceedings by application is not exclusively reserved for the domain of compulsory jurisdiction.18 (b) It is possible that a formal agreement giving the Court jurisdiction over the case may be made within a reasonable time after the respondent receives notice of the application. This agreement does not need to satisfy any particular form. This was the view taken in the Mavrommatis Palestine Concessions Case. An application will not be rejected for lack of jurisdiction, simply because at the time it is filed the legal grounds for jurisdiction on which it is based have not yet been realized or that such legal grounds have not been stated. The rule of forum prorogatum would, thus, become applicable at the latest, if the respondent pleads to the merits without raising an objection to the jurisdiction of the Court. It follows that an agreement, if one is made, must be reached or a unilateral consent must be given at the latest before the date for the filing of the respondent's counter-memorial or preliminary objection. This would give the Court jurisdiction to the extent of the consent or agreement. On the other hand, in the Corfu Channel Case a special situation arose. An agreement was reached on jurisdiction after the argument on the preliminary objections but before judgment was given. This was a formal agreement made in the course of the proceedings which to some extent transformed the case. It governed the proceedings on the merits which followed and introduced a possible counter-claim. While forum prorogatum gave the Court jurisdiction on the basis of the claims in the application anyway, the subsequent agreement gave the Court a wider jurisdiction. (c) A subsidiary point that arises concerns the effect of the respondent's pleading on matters involved in the Court's exercise of an incidental jurisdiction, such as the jurisdiction to order provisional measures. The ordering of provisional measures does not necessarily result in forum prorogatum in respect of the merits of the 18
1948 ICJ Reports at p. 78
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Chapter 13. PCIJ and ICJ
dispute, especially if rejection of jurisdiction has been the constant attitude of the respondent. In the Application of the Genocide Convention Case, the respondent, both in respect of the merits and the requests for the indication of provisional measures, had consistently denied the jurisdiction of the Court. Then in the provisional measures phase it advanced its own request for an indication of provisional measures and argued all the issues. The Court refused to interpret the respondent's pleading in this way at that stage of the case as an unequivocal indication of a voluntary and indisputable acceptance of jurisdiction on the merits.19 (d) While (c) may be true, the fact that the application by the claimant contemplates clearly a possibility of forum prorogatum has created an adequate prima facie case for jurisdiction over the merits to give the Court incidental jurisdiction to order provisional measures.20 (e) Jurisdiction may be conferred upon the Court by an informal agreement between the parties, expressed through successive acts during the proceedings. This could be a unilateral consent given later which results in agreement. The application which must state both the subject of the dispute and the precise nature of the claim contains the questions over which jurisdiction must be established. That forms the basis of the invitation to the respondent, to agree or consent to jurisdiction. Successive acts after that in the course of the pleadings resulted in forum prorogatum in both the Mavrommatis Palestine Concessions Case (Preliminary Objections) and the Minority Schools Case, for example. In the Corfu Channel Case (Preliminary Objection) there were two successive acts. They were the communication to the respondent of the application followed by a letter to the Court, not being one of the formal documents of the written proceedings, from the Deputy Minister for Foreign Affairs of Albania. In that letter the respondent state indicated that notwithstanding certain irregularities, it was prepared to appear 19 20
earlier.
1996 ICJ Reports at p. 621. See the Anglo-Iranian Oil Co. Case, 1951 ICJ Reports at p. 93, discussed
Forum prorogatum
561
before the Court in the case. The Court held that this constituted "a voluntary and indisputable acceptance of the Court's jurisdiction". Jurisdiction was conferred, inter alia, ratione personae and ratione materiae. (f) Jurisdiction may be conferred by the tacit consent of the relevant party, deduced from its conduct in pleading to the merits of a claim (including a counter-claim) without raising the question of jurisdiction. This proposition rests on the Mavrommatis Palestine Concessions Case (Preliminary Objection) and the Minority Schools Case and was developed in later cases. The characteristic feature of this aspect of the forum prorogatum is that, for the Court to assume jurisdiction, it has to be satisfied of the absence of conditions or equivocation on the part of the respondent. This may require a more extended examination of its conduct and intentions than is necessary when there is informal consent. Hence, the two forms of consent must be distinguished. The point was well made in the Haya de la Torre Case: 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.21
(g) The implication of consent must be clear in order to found jurisdiction by forum prorogatum. In two cases the Court indicated that an apparent invocation of its jurisdiction, or recognition of it when invoked, was insufficient to found jurisdiction, if effected in circumstances which did not permit a clear inference of consent to be drawn. In its Counter-Memorial in the Ambatielos Case (Preliminary Objection) the UK had stated that, if the Court should find that it had jurisdiction to decide on the obligation of the UK to submit the Greek claim to a commission of Arbitration and Greece was not 21
1951 ICJ Reports at p. 78.
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Chapter 13. PCIJ and ICJ
precluded by lapse of time from making the claim, then the UK would accede to a proposal made earlier by Greece that the Court should substitute itself for the Commission of Arbitration to determine the merits of the claim. But later the UK, though repeating this statement, made some qualification about the effectiveness of its consent. The Court said: The Hellenic Government's final submissions refer to an offer of the United Kingdom Government (through its Counsel), upon certain conditions, that the Court itself should undertake the function of arbitration. It is true that the United Kingdom Government has made some such offer, but the conditions attached to it are not very clear These conditions (mentioned by Counsel) seem to go beyond those in the Counter-Memorial This discrepancy throws some doubt on the existence of any unequivocal agreement between the parties on this matter. The Court has however no doubt that in the absence of clear agreement between the parties in this respect, the Court has no jurisdiction to go into all the merits of the present case.... 22
What was really in issue was whether the UK had given a clear and unequivocal response to the Greek invocation of the jurisdiction of the Court to deal with the merits in place of a Commission of Arbitration. On that basis, it was a question of forum prorogation. The matter was also considered by the Court in the AngloIranian Oil Co. Case. Although the main issue before the Court was a purely jurisdictional one, relating to the acceptance of compulsory jurisdiction by Iran, the Iranian pleadings and submissions did not confine themselves to this jurisdictional issue, but advanced several other objections which, though preliminary in character, related not to jurisdiction but to admissibility (e.g., non-exhaustion of local remedies). These objections could, however, only be heard and determined, if the Court in fact had jurisdiction in relation of the case as such. The Iranian conclusions nevertheless formally requested the Court to find that the claim was inadmissible on these grounds, apart form finding that the Court lacked jurisdiction. It 22
1952 ICJ Reports at pp. 38-9.
Forum prorogatum
563
was accordingly contended by the UK (though the contention was not pressed) that this procedure involved an invocation of a submission to the jurisdiction of the Court, thus constituting in effect the necessary response to the original UK action in seizing the Court, and was therefore sufficient to found jurisdiction forum prorogatum. The Court recognized that the UK contention was based on the principle of forum prorogatum and stated: 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 has consistently denied the jurisdiction of the Court. Having filed a Preliminary Objection for the purpose of disputing the jurisdiction, it has throughout the proceedings maintained that Objection. It is true that it has submitted other Objections which have no direct bearing on the question of jurisdiction. But they are clearly designed as measures of defence which it would be necessary to examine only if Iran's Objection to the jurisdiction were rejected. No element of consent can be deduced from such conduct on the part of the Government of Iran. Consequently, the Submission of the United Kingdom on this point cannot be accepted.23
It seems clear that forum prorogatum as a basis of jurisdiction will only be accepted where the inference of consent, or of recognition of, or submission to, the jurisdiction, is quite clear, as it was, for instance, in the Haya de la Torre Case and in the Corfu Channel Case. In particular, the Court in the Ambatielos and Anglo-Iranian Oil Cases showed an evident unwillingness to take advantage of technical errors of pleading or of possibly unguarded or premature statements made on behalf of a party. Another aspect of the requirement appears in the Nottebohm Case (Second Phase). In a communication challenging the jurisdiction of the Court in the earlier case the respondent had expressed its willingness to negotiate with the applicant in order to arrive at an amicable settlement. The claimant asserted in connection with the 23
1952 ICJ Reports at p. 114.
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objection based on the nationality of claims rule that, as that communication had referred to Nottebohm as a national of the claimant state, the respondent had recognized his nationality. The Court took the view that It would constitute an obstacle to the opening of negotiations for the purpose of reaching a settlement of an international dispute or of concluding a special agreement for arbitration and would hamper the use of the means of settlement recommended by Article 33 of the Charter... to interpret an offer to have recourse to such negotiations or such means as consent to participate in them or actual participation, as implying acceptance of any claim by the other party, when no such abandonment or acceptance has been expressed and where it does not indisputably follow from the attitude adopted.24
It was clear that the conduct of negotiations had to be permitted without prejudicing the respondent's conduct in relation to acceptance of jurisdiction. (h) As a consequence of (g), argument on the substance of provisional measures in proceedings before the Court, particularly without objecting to the jurisdiction of the Court to order such measures, does not result in forum prorogatum in respect of any aspect of the case. In the Application of the Genocide Convention Case, in its written observations on the first request for provisional measures, the respondent "requested" the Court to order the application of a series of provisional measures which did not mention the Genocide Convention itself, and which did mention the Geneva Conventions of 1949 and the Additional Protocols of 1977. On this the Court merely stated that it was confined to the consideration of such rights under the Genocide Convention as might form the subject-matter of a judgment in the exercise of its jurisdiction under that Convention. In the Further Provisional Measures phase of that case the matter was discussed at greater length. The Court, applying the principle of forum prorogatum, examined whether by that
24
1955 ICJ Reports at p. 19.
Forum prorogatum
565
request the respondent might have agreed that the Court should have a wider jurisdiction. The Court concluded that whereas ... the Respondent has constantly denied that the Court has jurisdiction to entertain the dispute, on the basis of [the Genocide] Convention or on any other basis; whereas in the circumstances the communication from Yugoslavia cannot, even prima facie, be interpreted as 'an unequivocal indication' of a 'voluntary and indisputable' acceptance of the Court's jurisdiction.. ,25 Because the finding in an order of provisional measures is of a provisional and prima-facie nature, the claimant raised the matter again in the preliminary objection phase. The Court found in favour of the respondent, stating: as Yugoslavia, on 1 April, 1993, itself called for the indication of provisional measures some of which were aimed at the preservation of rights not covered by the Genocide Convention, it was said, in accordance with the doctrine of forum prorogatum (stricto sensu), to have given its consent to the exercise by the Court, in the present case, of a wider jurisdiction than that provided for in Article IX of the [Genocide] Convention. Given the nature of both the provisional measure subsequently requested by Yugoslavia—which were aimed exclusively at the preservation of rights conferred by the Genocide Convention—and the unequivocal declarations whereby Yugoslavia consistently contended during the subsequent proceedings that the Court lacked jurisdiction—whether on the basis of the Genocide Convention or on any other basis—the Court finds that it must confirm the provisional conclusion that it reached on that subject in its Order of 13 September 1993.... The Court does not find that the Respondent has given in this case a 'voluntary and indisputable' consent... which would confer upon it a jurisdiction exceeding that which it has already acknowledged to have been conferred upon it by Article IX of the Genocide Convention.26 25
Application of the Genocide Convention Case (Further Provisional Measures), 1993 ICJ Reports at p. 341. 26 Application of the Genocide Convention Case (Preliminary Objections), 1996 ICJ Reports at pp. 620-1.
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(i) Also as a consequence of (f), it may be concluded that certain limitations apply to the prorogation of jurisdiction. One is that the applicant must accede to any conditions made by the respondent in its conduct from which its consent is implied.27 A second is that when, by successive steps in the pleadings, the case undergoes a substantial modification, the tacit consent to plead to the merits of a claim as submitted in the application or in the memorial will not necessarily bind the respondent, if the case is subsequently transformed into a different case. In such a case "consent given on the basis of the original claim could not reasonably be held to apply to" the transformed claim.28 Apart from procedural difficulties that may arise,29 as was pointed out in the Societe Commerciale de Belgique Case, "a complete change in the basis of the case submitted to the Court might affect the Court's jurisdiction".30 In that case the Court conceded implicitly that any defect in the Court's jurisdiction could be remedied by a proper forum prorogatum. In concluding "that the special circumstances of this case... and more especially the absence of any objection on the part of the Agent for the Greek Government, render it advisable that it (the Court) should take a broad view and not regard the present proceedings as irregular", it for all practical purposes applied the principle of prorogated jurisdiction and proceeded to exercise its jurisdiction.31 Procedure Evolved There have been attempts at the unilateral arraignment of states before the Court in reliance exclusively on the doctrine of prorogated 27
See, e.g., the Minority Schools Case (1928), PCIJ Series A No. 15 at p. 25, the Ambatielos Case (Preliminary Objections), 1952 ICJ Reports at p. 39. 28 See the Minority Schools Case (1928), PCIJ Series A No. 15 at p. 25. 29 The procedural problems arise from the application of Articles 40, 62 and 63 of the statute (and provisions of the Rules of Court) which concern amendments and interventions: See the Societe Commerciale de Belgique Case (1939), PCIJ Series A/B at p. 173, the Phosphates Lands in Nauru Case, 1992 ICJ Reports at p. 267. 30 (1939), PCIJ Series A/B at p. 173. 31 There is a "procedural" question as to which organ of the state consenting tacitly or informally in the forum prorogatum process has the authority to give that consent: see Rosenne, 2 op. cit. note 8 pp. 721 ff.
Forum prorogatum
567
jurisdiction. The USA filed two applications, one against Hungary and another against the USSR, instituting proceedings in the Treatment of U.S. Aircraft and Crews in Hungary Cases. The applications stated: The United States Government, in filing this application with the Court, submits to the Court's jurisdiction for the purposes of this case. The Hungarian/Soviet Government appears not to have filed any declaration with the Court thus far, and although it was invited to do so by the United States Government... it has not made any responsive reply to the invitation. The Hungarian/Soviet Government is, however, qualified to submit to the jurisdiction of the Court in this matter and may upon notification of this application by the Registrar, in accordance with the Rules of the Court, take the necessary steps to enable the Court's jurisdiction over both parties to the dispute to be confirmed. Thus the United States Government founds the jurisdiction of this Court on the foregoing considerations and on Article 36(1) of the Statute. Upon receipt of those applications the Registrar, pursuant to the statute and Rules of the Court, duly notified the respondent states (and all other states concerned). When the two respondent states intimated their unwillingness to submit to the jurisdiction of the Court, the Court, after deliberation, made orders for the cases to be removed from the General List, as was required under those Rules.32 Thereafter the same procedure has been followed to introduce the four Aerial Incident Cases of 1952, 1953 and 1954,33 and the two Antarctica Cases,34 and they, too, were removed from the list in similar circumstances.
32
1954 ICJ Reports at pp. 101 and 105. 1956 ICJ Reports at p. 11, 1956 ICJ Reports at p. 8, 1958 ICJ Reports at p. 161, 1959 ICJ Reports at p. 278. 34 1956 ICJ Reports at pp. 14 and 17 respectively. The cases involving the USA as claimant have been discussed in D'Amato and O'Connell, "United States Experience at the International Court of Justice", in Damrosch (ed.), The International Court of Justice at a Crossroads (1987) at pp. 409—10. 33
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In 1978 Article 38(5) of the Rules of Court was introduced. It provided 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 however be entered in the General List, nor any action be taken in the proceedings, unless and until the State against which such application has been made consents to the Court's jurisdiction for the purposes of the case.
This rule facilitates the filing of cases jurisdictionally based on the principle of forum prorogatum, apart from explicitly referring to the principle. Conclusion The Court has adopted an attitude of caution and taken a reasonable approach in accepting and applying the principle of forum prorogatum. Applied as the Court has done, the rule makes it possible for the Court to take a flexible and progressive approach to the question of its jurisdiction in contentious cases. It provides a process through which disputes can be brought before the Court in the type of case, where one of the parties may be unable or unwilling to agree beforehand to have recourse to the Court, but may not be unwilling to respond, if the dispute is taken there. The manner in which it has been applied indicates that it is not used as a trap in which to catch the insufficiently circumspect by imputing to them consents the reality of which is open to doubt.35 B. JURISDICTION UNDER THE OPTIONAL CLAUSE Jurisdiction originating under Article 36(2), (3) and (5), principally, of the ICJ statute which is referred to as "compulsory" jurisdiction 35
With this view Fitzmaurice agreed: see 2 The Law of Procedure of the International Court of Justice (1986) pp. 511-12 (reprinted article), as did H. Lauterpacht, op. cit. note 2 pp. 103-7 and p. 202. Rosenne has some reservations based mainly on political considerations about the principle as applied: 2 op. cit. note 8 at pp. 724-5.
Jurisdiction under the optional clause
569
under the Optional Clause is a particularly singular form of jurisdiction in the context of international tribunals. While it is not compulsory in a true sense, it came to be called that, because, as a source of jurisdiction, it is based on an act at a given point of time which extends an open and binding invitation on record of a legal nature by one state party to the statute to all other states, whether parties to the statute or not at the time, to accept by a subsequent and similar act, provided it is or becomes a party to the statute, the jurisdiction of the Court to the extent, either fully or partially, that the former state has accepted such jurisdiction or which results in the acceptance by such state of the jurisdiction of the Court vis-a-vis other states that have already accepted the jurisdiction of the Court to the extent that there is a coincidence between the acceptances of the former and the latter. The compulsory feature lies in the binding nature of a unilateral act of one state, as long as it remains on record, to create an obligation to accept the Court's jurisdiction as a result of the prior or subsequent acts or acts of another state. In other words, the unilateral act either potentially creates mutual consent to jurisdiction or actually consolidates mutual consent to jurisdiction between states, thus, having a legally binding effect as long as it stands on record. The use of this method of creating jurisdiction in an international tribunal was inaugurated in the statute of the PCIJ in 1920 and this is the first instance of its use in international adjudication.36 The current form of this jurisdiction with regard to the ICJ flows 36
For the development of the concept of optional clause jurisdiction beginning with the PCIJ statute, see Rosenne, 2 op. cit. note 8 pp. 727 ff. Various aspects of the optional clause jurisdiction and reservations have been discussed, inter alia, in Hudson, The Permanent Court of International Justice 1920-1942 (1943) pp. 190 ff., Briggs, "Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice", 93 Hague Recueil (1958) p. 229, Waldock, "Decline of the Optional Clause", 32 BYIL (1955-1956) p. 244, Lawson, "The Problem of the Compulsory Jurisdiction of the World Court", 46 AJIL (1952) p. 219, Anand, Compulsory Jurisdiction of the International Court of Justice (1961), Gordon, "Legal Disputes under Article 36(2) of the Statute", in Damrosch (ed.), op. cit. note 34 p. 183, Weiss, "Reciprocity and the Optional Clause", in Damrosch (ed.), ibid. p. 82, Merrills, "The Optional Clause Today",
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from the above mentioned articles of the ICJ statute. The provisions of Article 36(2) and (3) are basically similar to, though not exactly the same as, the article of the PCIJ statute dealing with the same source of jurisdiction—Article 36(2). The relevant parts of Article 36 of the ICJ statute state: 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. 3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. 5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be 50 BYIL (1979) p. 87, Reisman, "Termination of the United States Declaration under Article 36(2) of the Statute of the International Court", in Arend (ed.), The United States and the Compulsory Jurisdiction of the International Court of Justice (1986) p. 76, Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice (1995), Rosenne, 2 op. cit. note 8 pp. 727-836, Scott and Carr, "The ICJ and Compulsory Jurisdiction: The Case for Closing the Clause", 81 AJIL (1987) p. 57, Maus, Les Reserves dans les declarations d'acceptation de la juridiction obligatoire de la Cour Internationale de Justice (1959), Szafarz, The Compulsory Jurisdiction of the International Court of Justice (1993). See also Przetacznik, "The Compulsory Jurisdiction of the International Court of Justice as a Prerequisite for Peace", 68 RDI (1990) p. 39, Kebbon, "The World Court's Compulsory Jurisdiction under the Optional Clause—Past, Present and Future", 58 Nordic JIL (1989) p. 257, Verhoeven, "Jus Cogens and Reservations or "Counter-reservations" to the Jurisdiction of the International Court of Justice", in Wellens (ed.), International Law (1998) p. 195.
Jurisdiction under the optional clause
571
acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.37 37
The basic nature of optional clause jurisdiction has been adequately explained in the first paragraph of this section above: see also Briggs, loc. ci note 36 at p. 245, for a statement of its nature, and now Alexandrov, op. cit. note 36 pp. 9 ff. That it has the nature of a treaty or international agreement concluded in a special manner and is based on consent is apparent: see the Electricity Co. of Sofia Case (Preliminary Objections), (1939), PCIJ Series A/B No. 77 at p. 87, the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at p. 146, th Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports at p. 418, pe Judge Alvarez (dissenting but not on this point particularly) in the Anglo-Iranian Oil Co. Case, 1952 ICJ Reports at p. 125, andper Judge Read (dissenting but no on this point particularly), ibid. at p. 142. The notion has been supported by tex writers with separate explanations sometimes: see Hudson, op. cit. note 36 at p. 473, note 1, H. Lauterpacht, op. cit. note 2 at pp. 345-6, Waldock, loc. cit. not 36 at p. 254 ff. Also the declarations are registered under Article 102 of the Charter like treaties with the SG of the UN. However, they are not generally the result of negotiation (although there is nothing to prevent their being so). This has certain consequences for interpretation as will be seen later in this chapter. There is also an element of vulnerability and unpredictability in the sense that it is not known what other state not already a signatory of the optional clause will make an acceptance of the clause and to what extent such acceptance will coincide with the original declarant's acceptance: see the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at pp. 14 ff, the Nicaragua Case (Jurisdiction and Admissibility), 1984 ICJ Reports at pp. 415 ff. While there must be mutual consent, which in the case of international agreements in general, as in the case of declarations under Article 36(2), may be manifested at different times in different instruments, this mutual consent is determined on the basis of reciprocity and this has certain definite consequences, as will be seen: see also, inter alia, Briggs, loc. cit. note 36 at p. 245, H. Lauterpacht, op. cit. note 36 pp. 345-6. Finally, it will not necessarily be known at the time the declaration is made what are the precise obligations assumed by the declarant in regard to jurisdiction in a particular possible proceedings, because this may depend on future declarations, though it will be known in regard to past declarations. There are cases filed since 1946 with the ICJ, and either decided or dispose of, in which jurisdiction has been based at least partially on the optional clause of Article 36: the Fisheries Case, the Anglo-Iranian Oil Co. Case, the U.S. Nationals in Morocco Case, the Nottebohm Case, the Norwegian Loans Case, the three Aerial Incident of 27 July 1955 Cases, the Temple of Preah Vihear Case, the two Nuclear Tests Cases, the Arbitral Award of 31 July 1989 Case, the Passage
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(1) The Content of Article 36(2) and (3) There are several special features connected with these jurisdictional clauses. (a) The declaration is ipso facto and without special agreement. It is based not on a negotiated agreement as such but is a unilateral act with legal consequences which may vary with other circumstances. While the jurisdiction does not materialize without the interaction of an act already performed or to be performed in the future by another state and is, therefore, not truly obligatory or compulsory on account per se of the declaration, it is certainly not based on an agreement, as such, negotiated at some point of time, which is involved under the provisions of Article 36(1), though it could very well be that a declarant may have been induced to make a declaration in the form it did and with the particular content as a result of particular negotiations with a state or states that has or have already made a declaration.38 It may be described as compulsory or
through the Great Belt Case, the Nicaragua Case, the two Border and Transborder Armed Actions Cases, the Maritime Delimitation between GuineaBissau and Senegal Case, the Jan Mayen Case, the Phosphate Lands in Nauru Case, the East Timor Case, the Land and Maritime Boundary between Cameroon and Nigeria Case, the Fisheries Jurisdiction Case, the Aerial Incident of 10 August 1999 Case. By October 2001,75 contentious cases had been filed and disposed of by the Court. Thus, just over one third of the contentious cases have involved jurisdiction under the optional clause. Preliminary objections based, inter alia, on optional clause declarations have been examined in Malloy, "Objections to Adjudication in Contentious Cases before the International Court of Justice", Brooklyn JIL (1979) p. 262, Pratt, "Avoiding a Decision on the Merits in the International Court of Justice", 7 Sydney LR (1976) p. 433, Rosenne, "The Reconceptualization of Objections in the International Court of Justice", 14 Comun e Stud. (1975) p. 735, Villam, "Preliminary Objections in the New Rules of the International Court of Justice", 1 Italian YBIL (1975) p. 206, Queneuduc, "Observations sur le traitement des exceptions preliminaires par le C.I.J. dans les affaires de Lockerbie", 44 AFDI (1998) p. 312. 38 It is correct to say that negotiation is not necessary as such for the incidence of jurisdiction under Article 36(2), while it is still true that consent and agreement are the basis of the jurisdiction of the Court also under Article 36(2).
Jurisdiction under the optional clause
573
obligatory to the extent that, once the declaration is made and stands, an act already performed by another state or to be performed in the future by another state could per se result in the incidence of jurisdiction, such incidence, thus, not being dependent on any further cooperation by the original declarant. On the other hand, there is no difference as to the seisin of the Court when a case is instituted. What Article 36(2) does is to permit or preserve a procedure and form for the incidence or creation of jurisdiction in the Court which is different from those involved under Article 36(1), although in fact the acts and consent of all the parties to a dispute in which the jurisdiction of the Court is invoked by reliance on Article 36(2) are required just as under Article 36(1). The compulsory or obligatory feature of Article 36(2) certainly does not dispense with the element of consent or agreement. Article 36(2) itself describes the agreement that is needed as not special, thus indicating that agreement is not excluded as such as the basis of jurisdiction. In the Right of Passage Case (Preliminary Objections) the Court explained further some consequences of the ipso facto nature of the declaration under Article 36(2) and of the absence of special agreement in a statement that speaks for itself: The contractual relations between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established "ipso facto and without special agreement", by the fact of the making of the Declaration. Accordingly, every State which makes a Declaration of Acceptance must be deemed to take into account the possibility that, under the Statute, it may at any time find itself subjected to the obligations of the Optional Clause in relation to a new Signatory as the result of the deposit by that Signatory of a Declaration of Acceptance. A state accepting the jurisdiction of the Court must expect that an Application may be filed against it before the Court by a new declarant State on the same day on which that State deposits with the Secretary-General its Declaration of Acceptance. It is on that very day that the consensual bond, which is the basis of the Optional Clause, comes into being between the States concerned.39
39
1957 ICJ Reports at p. 146.
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The system of the optional clause includes the right of a state to institute proceedings against another state which is also a party to the system of the optional clause, and the obligation to accept jurisdiction invoked against it by such other state. This refers both to the states which at the time the state becomes party to the system are parties to the system, and to those which may become party to it later. By implication it does not include states which at some future date have ceased to be parties to the system, despite the fact that they were parties when the state concerned became a party to the system. Jurisdiction itself will depend on the coincidence of the declarations of the parties to a dispute submitted to the Court. While under Article 36(1) the jurisdiction is defined generally in one instrument but may be defined in more than one, provided it is clear that those instruments form a unit, under Article 36(2) always two instruments or more, depending on the number of parties to the dispute, must be considered in order to determine the jurisdiction of the Court in the dispute. (b) A declaration under the optional clause operates against any other state accepting the same obligation. The system of "compulsory" jurisdiction is available to the states parties to the statute in relation to any other state accepting the same obligation. Thus, the jurisdiction is effective only for disputes between states. In the Phosphate Lands in Nauru Case, the Court pointed out that declarations made pursuant to Article 36(2) "can only relate to disputes between States".40 The case concerned the process of decolonization. The Court was stating that, regardless of disputes that might have existed between the parties before Nauru became an independent state, only disputes arising after Nauru became independent and, therefore, a state, could come within the scope of the compulsory jurisdiction as accepted by the parties in that case. Moreover, this system of "compulsory" jurisdiction can only operate between the members of the UN and the other states that are parties to the statute under Article 93(2) of the Charter. In this
40
1992 ICJ Reports at p. 246.
Jurisdiction under the optional clause
575
context, "any other State" means another state that is itself a party to the statute, not any other state at large. Thus, the position would be different as regards states not parties to the statute, to which the Court is open under Article 35(2) of the statute. This was acknowledged in the resolution of the SC of October 15, 1946, which enabled such states to accept the "compulsory" jurisdiction of the Court provided, however, that such acceptances may not, without explicit agreement, be relied upon vis-a-vis states parties to the statute which have themselves accepted the compulsory jurisdiction. In the case of such states an explicit agreement on the part of a state party or states parties to the statute is required for their declarations to operate against the latter category of states as part of the system of "compulsory" jurisdiction. In the Right of Passage Case (Preliminary Objections) the Court interpreted the requirement that the other state must accept the same obligation, when it said: It is not necessary that the "same obligation" should be irrevocably defined at the time of the deposit of the Declaration of Acceptance for the entire period of its duration. That expression means no more than that, as between States adhering to the Optional Clause, each and all of them are bound by such identical obligations as may exist at any time during which the Acceptance is mutually binding.41
Though acceptances may take effect and cease to have effect at different times, it is only during the period of mutual validity that declarations could invoke the jurisdiction of the Court and only to the extent that they include identical obligations. As will be noted from this, there are two questions, one being whether the obligation of being included in the system has been accepted, the other whether there is reciprocity. The latter issue is addressed in Article 36(3), while Article 36(2) deals with the former. (c) There is a requirement that the declarations cover only legal disputes. Both the meaning of "dispute" and its legal nature have been discussed in an earlier chapter (Chapter 7). In principle the 41
1957 ICJ Reports at p. 144.
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declarations will be regarded as invoking jurisdiction only over disputes which are legal,42 even if this is not stated or the contrary is stated. Further, the disputes included must be covered by the categories listed in Article 36(2). No stipulation is to be found requiring that the judicial settlement, for instance, be based on the application of principles of law rather than be ex aequo et bono. Some problems that have arisen in regard to the three requirements being discussed pertain to whether the matter should be settled as a preliminary objection or be left to be decided after the merits have been examined. The issues, however, have concerned the interpretation or application of declarations and not whether they expressly did not satisfy the three requirements in their terms. In the Losinger Case43 the PCIJ found that, among other things, the plea could be regarded as being founded on arguments which might be employed for the purpose of that defense, and, therefore, joined the preliminary objections to the merits which were never decided, because the case was discontinued. In the Electricity Company of Sofia Case,44 where the Court found that the plea not only encroached on the merits but that to dispose of it required coming to a decision in regard to one of the fundamental factors of the case, it accordingly rejected the pleas as a preliminary objection, while leaving the parties free to take them up again in support of their case on the merits. This case was also discontinued. The argument that the dispute was not covered by any of the categories referred to in Article 36(2) of its statute was first raised before the ICJ in the Norwegian Loans Case45 as a preliminary objection. The parties agreed to join all the objections to the merits but the Court declined jurisdiction on other grounds. In the Aerial 42
In both the East Timor Case, 1995 ICJ Reports at p. 99, and the Application of the Genocide Convention Case (Preliminary Objections), 1996 ICJ Reports p. 595, the ICJ rejected contentions that there was no legal dispute between the parties. See also Lavalle, "The Notion of International Legal Dispute and the Assumption of Jurisdiction by the International Court of Justice in the Hostages Case", 35/36 Rev. Hellen. DI (1981-83) p. 97. 43 (1936), PCIJ Series A/B No. 67. 44 (1939), PCIJ Series A/B No. 77. 45 1957 ICJ Reports p. 9.
Jurisdiction under the optional clause
577
Incident of 27 July 1955 Case46 it was admitted that a dispute existed but it was argued that the dispute did not come within any of the categories referred to in Article 36(2) and in addition fell within the exclusive jurisdiction of the respondent. In the course of the preliminary objection proceedings, the respondent indicated that it was willing to have that objection joined to the merits, but the Court declined jurisdiction on other grounds. In the Right of Passage Case (Preliminary Objections) the issue of the absence of a legal dispute was presented in the form of a contention that a reasonably arguable case for decision in accordance with Article 38 of the statute had not been made. In the preliminary objection phase, where it appeared as part of the fifth objection, namely that the dispute came within the domestic jurisdiction of the respondent, the Court joined the objection to the merits, on the ground that it would not be possible to pronounce upon it at that stage without prejudging the merits.47 On the merits the contention was partly advanced in support of the outstanding objection and partly shifted to the merits. The objection itself was dismissed, and, dealing with the contention as a defence to the merits, the Court made the point that the existence of delicate questions of application was not a sufficient ground for holding that a right was not susceptible of judicial determination with reference to Article 38(1) of the statute.48 46
1959 ICJ Reports p. 127. 1957 ICJ Reports at p. 149. 48 1969 ICJ Reports at pp. 32, 36 ff. In the Jan Mayen Case the parties disagreed on the scope of the Court's jurisdiction. The disagreement related to whether in a case of maritime delimitation the Court should limit itself to a declaratory judgment or should proceed to define the delimitation line. In the course of its judgment the Court indicated that it was applying Article 38(1) of the statute in order the find the law and decided that its jurisdiction extended to defining the delimitation line in such a way that any questions which might still remain would be matters strictly relation to hydrographic technicalities which the parties, with the help of their experts, could certainly resolve: 1993 ICJ Reports at p. 78. The issue was really not one relating to whether a legal dispute which was covered by Article 36(2) existed but concerned the scope of jurisdiction under the declarations made under Article 36(2). 47
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The four categories listed in Article 36(2) are clearly sufficient to include international legal disputes of any kind.49 However, in the application of declarations under the Article the issues of whether there is a dispute, whether the dispute is legal or whether it is of international law could arise. This would be under the general principles relating to jurisdiction and would not depend on the wording of Article 36(2). What the Article does do is to preclude the express inclusion of derogations from the requirement that the declarations cover, formally at any rate, only disputes which are legal and fall into any of the four categories therein mentioned and that they cover, again formally, all such disputes.50 As will be seen, materially as opposed to formally, exclusions of disputes based on subject matter, temporal considerations and other such matters have been permitted probably by virtue of Article 36(3). (d) The Court has not disagreed with the view that states enjoy a wide liberty in formulating, limiting, modifying and terminating their declarations under Article 36(2).51
(2) Reciprocity The declarations may be made on the condition of reciprocity, according to Article 36(3). Particularly in regard to compulsory jurisdiction the Court has stated in general terms that—(a) reciprocity must not be confused with absolute equality; (b) reciprocity, and equality, must be related to some provision of the statute or the source of jurisdiction (which is integrated with the statute); and 49
Clearly, disputes which are about matters within domestic jurisdiction would not be covered, because they would not be disputes of international law. See further, H. Lauterpacht, The Function of Law in the International Community (1933, reprinted 1966) p. 281. Contra Fischer Williams, "The Optional Clause (The British Signature and Reservations)", 11 BYIL (1930) at p. 68. 50 The position may have been different under Article 36 of the PCIJ statute which has a slightly different wording. 51 See the Fisheries Jurisdiction Case, 1998 ICJ Reports at p. 452. See further on modification and amendment of declarations: Rosenne, 2 op. cit. note 8 pp. 815-17; on denunciation of declarations: Rosenne, 2 ibid.
Jurisdiction under the optional clause
579
(c) the principle of reciprocity does not have to do with the initial seisin of the Court, and does not operate as an equalizing factor for the seisin, but for determining the quite different matter of the scope of the jurisdiction.52 All the implications of this statement are not readily apparent, but it remains a statement of the Court. While states have in their declarations generally continued the practice begun under the regime of the PCIJ of including a reference to reciprocity, both the PCIJ and the ICJ have referred to the provisions of the statute in dealing with the "condition of reciprocity". The PCIJ frequently referred to Article 36(2) of its statute in connection with the condition of reciprocity.53 The ICJ has not always expressly invoked provisions of the statute but has referred to the condition of reciprocity in declarations,54 while sometimes referring to reciprocity and the principle of reciprocity without referring to a provision of the statute.55 There is no indication in what the two Courts had to say whether reciprocity is an implied condition always or whether it is a condition, only if it is mentioned in the declarations. Writers have differed on the incidence of reciprocity as a condition in this respect. Some consider the condition as implied,56 others regard it as possible to
52
See the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports p. 125. On reciprocity see, e.g., Enriques, "L"Acceptation sans Reciprocite de la Juridiction Obligatoire de la Cour Permanente de Justice Internationale", 13 RDILC (1932) p. 834, Briggs, loc. cit. note 36 at pp. 241 ff., Waldock, loc. cit note 36 at pp. 254 ff. See Thirlway, "Reciprocity in the Jurisdiction of the International Court", 15 NYBIL (1984) p. 92, Torres Bernardez, "Reciprocity in the System of Compulsory Jurisdiction and in Other Modalities of Contentious Jurisdiction Exercised by the International Court of Justice", Essays in Honour of Judge Taslim Olawala Elias (1991) p. 29. 53 See the Phosphates in Morocco Case (1938), PCIJ Series A/B No. 74 at p. 22, the Electricity Co. of Sofia Case (1930), PCIJ Series A/B No. 77 at p. 81. 54 See the Anglo-Iranian Oil Co. Case, 1952 ICJ Reports at p. 103, the Norwegian Loans Case, 1957 ICJ Reports at p. 24, the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at p. 143. 55 The Right of Passage Case (Preliminary Objections), ibid, at p. 144. 56 See Hudson, The Permanent Court of International Justice, 1922-1940 (1943) p. 465.
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exclude reciprocity, if a state so wishes.57 While no real problems have arisen in accepting reciprocity as a condition under the declarations that have come to the attention of the Court, there are several possibilities in interpreting the statute. First, reciprocity may be assumed to be implied unless there is express rejection of it. Second, reciprocity may be assumed not to be a condition unless it is expressly made one. Third, whether expressly mentioned or not, reciprocity is always a condition which can never be waived even by express rejection. The structure of the system of the optional clause and the general principles of consensual jurisdiction of the Court in particular, would seem to indicate that the first alternative is applicable. Thus, whether reciprocity is expressly made a condition or not, reciprocity will prevail. It is only if reciprocity is expressly rejected that it will not apply and, that too, only to the extent that it is expressly rejected. The formulation of Article 36(2) and (3) would also support this view, insofar as it is envisaged that reciprocity may or may not be made a condition. General principles would warrant the assumption that, in the absence of a clear indication, the condition of reciprocity is implied, rather than the converse, so that, because in Article 36 there is no express statement that a condition of reciprocity is assumed not to exist in the first place, it is necessary to interpret the article as implying that the condition of reciprocity is taken to be applicable as a general rule.58 The two Courts have addressed the question what reciprocity involves, principally in dealing with reservations. In the Phosphates in Morocco Case the PCIJ recognized that, by virtue of the principle of reciprocity, a reservation appearing in the acceptance of the 57
Hambro, "Some Observations on the Compulsory Jurisdiction of the International Court of Justice", 25 BYIL (1948) at p. 136; Hambro, "The Jurisdiction of the International Court of Justice", 76 Hague Recueil (1950—I) at p. 185. See also Briggs, loc. cit. note 36 at p. 240, Farmanfarma, The Declarations of the Members accepting the Compulsory Jurisdiction of the International Court of Justice (1952) p. 67, Maus, op. cit. note 36 p. 62, Szafarz, op. cit. note 36 p. 42, Alexandrov, op. cit. note 36 p. 33. 58 It is not clear whether Hudson would have agreed with this explanation but his view is certainly compatible with it: see op. cit. note 56 p. 465.
Jurisdiction under the optional clause
581
respondent state "holds good as between the Parties".59 In the Electricity Company of Sofia Case, on the other hand, the Court held, as was agreed between the parties, that the respondent was entitled to rely on a limitation appearing in the acceptance by the applicant.60 Those cases clearly establish that when recourse is had to the optional clause jurisdiction, the reservations of each declaration will be applicable to each party, so that each party is entitled to invoke to its benefit any relevant reservation appearing both in its own declaration and in that of the other party. The ICJ in the Anglo-Iranian Oil Case stated the principle that "jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it".61 The Court determined which of the two declarations was the more limited in scope, and decided that it must base its jurisdiction on that declaration. In the Norwegian Loans Case the Court, described its approach as follows: since two unilateral declarations are involved, such (optional clause) jurisdiction is conferred upon the Court only to the extent to which the Declarations coincide in conferring it. A comparison between the two Declarations shows that the French Declaration accepts the Court's jurisdiction within narrower limits than the Norwegian Declaration; consequently, the common will of the Parties, which is the basis of the Court's jurisdiction, exists within these narrower limits indicated by the French reservation France has limited her acceptance of the compulsory jurisdiction of the Court 'relating to matters which are essentially within the national jurisdiction as understood by the Government of the French Republic'.... In accordance with the condition of reciprocity.... Norway, equally with France, is entitled to except from the compulsory jurisdiction of the Court disputes understood by Norway to be essentially within its national jurisdiction.62
The Court stated that the "common will of the parties relating to the competence of the Court" was that the substance of the French 59 60 61 62
(1938), PCIJ Series A/B No. 74 at p. 22. (1939), PCIJ Series A/B No. 77 at p. 81. 1952 ICJ Reports at p. 103. 1957 ICJ Reports at pp. 23, 24.
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reservation was applicable to Norway as if Norway had made the reservation itself and as applicable to itself.63 In the Right of Passage Case (Preliminary Objections) the Court explained that as a result of the operation of reciprocity any jurisdictional rights which a state could continue to claim for itself could be invoked against it for the duration of its own acceptance.64 In the Interhandel Case the Court explained its position further: Reciprocity in the case of Declarations accepting the compulsory jurisdiction of the Court enables a Party to invoke a reservation to that acceptance which it has not expressed in its own Declaration but which the other Party has expressed in its Declaration. For example, Switzerland, which has not expressed in its Declaration any reservation ratione temporis, while the United States has accepted the compulsory jurisdiction of the Court only in respect of disputes subsequent to August 26th, 1946, might, if in the position of Respondent, invoke by virtue of reciprocity against the United States the American reservation if the United States attempted to refer to the Court a dispute with Switzerland which had arisen before August 26th, 1946. This is the effect of reciprocity in this connection. Reciprocity enables the State which has made the wider acceptance of the jurisdiction of the Court to rely upon the reservations to the acceptance laid down by the other Party. There the effect of reciprocity ends. It cannot justify a State,..., in relying upon a restriction which the other Party,..., has not included in its own Declaration.65
It is clear that each party is bound by the text of its own reservations and those of the other party as they stand, in the sense that each party is entitled to invoke any of them at will, provided it does so as each reservation stands. While the Court mentioned invocation of a reservation, the jurisdiction of the Court remains the same whether one or more reservations are invoked or not and does not depend on invocation as such. There is no reason to assume that the 63 64 65
Ibid. at p. 27. 1957 ICJ Reports at p. 144. 1959 ICJ Reports at p. 23.
Jurisdiction under the optional clause
583
Court meant otherwise. What is also clear is that, unless a relevant reservation is invoked whether by a party or on the motion of the Court, the jurisdiction of the Court will be subject to the operation of the principle of forum prorogatum. It must also be noted that nothing was said by the Court about its authority to raise proprio motu an issue arising from a reservation. There is no reason to assume that it would not have such authority which it would normally have. In a different connection in the Nicaragua Case (Jurisdiction and Admissibility) the Court pointed out that: The notion of reciprocity is concerned with the scope and substance of the commitments entered into, including reservations, and not with the formal conditions of their creation, duration or extinction. It appears clearly that reciprocity cannot be invoked in order to excuse departure from the terms of a State's own declaration, whatever its scope, limitations or conditions The maintenance in force of the United States Declaration for six months after notice of termination is a positive undertaking, flowing from the time-limit clause, but the Nicaraguan Declaration contains no express restriction at all. It is therefore clear that the United States is not in a position to invoke reciprocity as a basis for its action in making the 1984 notification which purported to modify the content of the 1946 Declaration. On the contrary it is Nicaragua that can invoke six month's notice against the United States—not of course on the basis of reciprocity, but because it is an undertaking which is an integral part of the instrument that contains it.... The United States argument attributes to the concept of reciprocity, as embodied in Article 36 of the Statute, especially in paragraphs 2 and 3, a meaning that goes beyond the way in which it has been interpreted by the Court, according to its consistent jurisprudence. That jurisprudence supports the view that a determination of the existence of the "same obligation" requires the presence of two parties to a case, and a defined issue between them, which conditions can only be satisfied when proceedings have been instituted The coincidence or interrelation of those obligations thus remain in a state of flux until the moment of the filing of an application instituting proceedings. The Court has then to ascertain whether, at that moment, the two States accepted "the same obligation" in relation to the subjectmatter of the proceedings, the possibility that, prior to that moment,
584
Chapter 13. PCIJ and ICJ the one enjoyed a wider right to modify its obligation than did the other, is without incidence on the question.66
This Court made it clear that what it seeks to establish in terms of reciprocity is whether both parties have consented to compulsory jurisdiction with regard to the specific dispute without applying reciprocity to the formal conditions of their declarations, which include duration and the cancellation or termination of declarations. While the point made by the Court about matters of form in relation to reciprocity must be noted, it emerges that what reciprocity which is inherent in the optional clause system means is that the jurisdiction of the Court is determined by the extent to which the declarations of the parties to the dispute overlap; that is, by what they have in common or by the common ground covered by them. This is the gist of the condition of reciprocity under the optional clause system. (3) Reservations Reservations are not expressly mentioned in Article 36(2) or (3). However, insofar as acceptance of the Court's jurisdiction pursuant to Article 36(3) may be made subject to conditions, the admissibility of reservations seems acceptable. A reservation to the acceptance of jurisdiction is essentially a condition on which jurisdiction is accepted in that it signifies that jurisdiction is accepted on condition that certain matters or areas are excluded from the acceptance of jurisdiction. Indeed, the Court has not made a distinction between conditions and reservations but has used the terms interchangeably and in considering reciprocity dealt with reservations as conditions made pursuant to Article 36(3), as was seen in the previous subsection.67 66
1984 ICJ Reports at pp. 419-21. The same issue of matters or conditions of form was the subject of the disputes in both the Phosphates in Morocco Case (Preliminary Objections), (1983), PCIJ Series A/B No. 74 at p. 25, and the Interhandel Case (Preliminary Objections), 1959 ICJ Reports at pp. 10-11, 14. In the former case the Court did not decide the issue, in the latter the Court held that reciprocity did not apply to the date of entry into force of the declarations. See also the Nuclear Test Cases, 1974 ICJ Reports at pp. 267 and 472 respectively. 67 See also the Temple of Preah Vihear Case (Preliminary Objections), 1961 ICJ Reports p. 17. On reservations to declarations under the Optional Clause see, inter alia, Briggs, loc. cit. note 36 and other text-writers cited in note 36 above.
Jurisdiction under the optional clause
585
While a reservation may be assimilated to a condition for the purposes of Article 36(3), what is important is to make a distinction between reservations that operate as effective conditions as such and conditions of form. The reason is that the latter are not covered implicitly by reciprocity under Article 36(3), while reservations that are conditions relating to substantive matters are, as also appeared from the discussion in the previous subsection and was pointed out in the Nicaragua Case (Jurisdiction and Admissibility) which was referred to there. Thus, not all conditions may be reservations, while all reservations relating to matters of substance would be conditions subject to reciprocity in the absence of express provision to the contrary. At the same time any distinction between reservations and conditions of a certain kind is relevant not to raise questions as to the validity of reservations but solely in relation to the issue of reciprocity. Again, while seen as a condition, a reservation as part of a declaration clearly helps to define the terms on which the declarant unilaterally accepts the jurisdiction of the Court under the optional clause system,68 and, indeed, does no more than that. In the Fisheries Jurisdiction Case the ICJ made it quite clear that there was freedom in limiting the acceptance of the Court's jurisdiction and this pursuant to Article 36(2). It said: It is for each State, in formulating its declaration, to decide upon the limits it places upon its acceptance of the jurisdiction of the Court: "This jurisdiction only exists within the limits within which it has been accepted" (Phosphates in Morocco, Judgment, 1938, P.C.I.J. Series A/B. No. 74, p. 23). Conditions or reservations thus do not by their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State's acceptance of the compulsory jurisdiction of the Court... all elements in a declaration under Article 36, paragraph 2, of the Statute which, read together, comprise the acceptance by the declarant State of the Court's jurisdiction, are to be interpreted as a unity, applying the same legal principles of interpretation throughout. 45. This is true even when, as in the present case, the relevant expression of a State's consent to the Court's jurisdiction, and the 68
See the Right of Passage Case (Merits), 1960 ICJ Reports at p. 34.
586
Chapter 13. PCIJ and ICJ limits to that consent, represent a modification of an earlier expression of consent, given within wider limits. An additional reservation contained in a new declaration of acceptance of the Court's jurisdiction, replacing an earlier declaration, is not to be interpreted as a derogation from a more comprehensive acceptance given in that earlier declaration; thus, there is no reason to interpret such a reservation restrictively. Accordingly, it is the declaration in existence that alone constitutes the unity to be interpreted, with the same rules of interpretation applicable to all its provisions, including those containing reservations.69
The validity of a reservation was raised as an issue in several cases. In each case it was argued that a particular reservation was incompatible with the optional clause, so that the whole declaration was ineffective to establish (compulsory) jurisdiction. Although the parties argued the cases on the basis of the compatibility of the reservation with the system of the optional clause (compulsory) jurisdiction, the Court did not look at the issue on that basis. It formulated the question as whether the reservation in issue was invalid. To answer that question the Court, when it did, examined the meaning and effect of the reservation by reference to its actual wording and applicable principles of law. In the Norwegian Loans Case, for instance, after interpreting the reservation, the Court examined its practical implications in terms of Article 36 of the statute and the principle of reciprocity and reached the conclusion that it was not inconsistent with the statute.70 Reservations in general have been regarded as acceptable in terms of their content. Their validity is to be determined on a case by case basis. 69
1998 ICJ Reports at p. 453. 1957 ICJ Reports at pp. 141 ff. In both this case and the Interhandel Case, 1959 ICJ Reports p. 6, the Court did not exercise its jurisdiction to examine the merits on other grounds. See also the Right of Passage Case (Preliminary Objections), 1957 ICJ Reports p. 125, where the Court discussed how it would determine the compatibility of a reservation with the optional clause system of Article 36. What it said there about the compatibility test is comparable with what the Court said about the acceptability of reservations in general in the Reservations to the Genocide Convention Opinion, 1951 ICJ Reports p. 15. 70
Jurisdiction under the optional clause
587
(i) Content and Application of Reservations Ratione Materiae The question of the application of a valid reservation can also arise. The Arbitral Award of 31 July 1989 Case concerned this question. The issue was whether the applicant was challenging the decision of the arbitral tribunal on its merits, in which case the dispute was excluded from the jurisdiction of the Court by the terms of the respondent's declaration. From the oral proceedings in a phase relating to provisional measures it emerged that, as the parties agreed, the case was not an appeal from the decision of the arbitral tribunal and was limited to the non-existence and the nullity of the award— matters that were within the Court's jurisdiction.71 Reservations are formulated in order to take care of the declarant's particular situation. In some declarations disputes are excluded in regard to which the parties have agreed to have recourse to some other method of pacific settlement.72 Several declarations have reservations which are worded along the following lines: Disputes concerning any question relating to or arising out of belligerent or military occupation or the discharge of any functions pursuant to any recommendation or decision of an organ of the United Nations, in accordance with which [declarant] has accepted obligations...73 In current declarations there is sometimes a reservation relating to the suspension of proceedings while a case is before the SC. It is really a suspensive condition and is subject to the principle of reciprocity. It only suspends the exercise of jurisdiction by the Court. A condition along these lines appeared in the Iranian declaration invoked as the source of jurisdiction in the Anglo-Iranian Oil Co. Case. Iran reserved the right to require the suspension of the proceedings, because the dispute before the Court had, in fact, been submitted to the SC and was under examination by that body. The SC, however, had suspended its debate which related to the provisional 71
1990 ICJ Reports at p. 62. See the Phosphate Lands in Nauru Case, 1992 ICJ Reports at p. 247. 73 See, e.g., the declarations of India (1959, 1974), Kenya (1965), Malta (1966), Mauritius (1968), Hungary (1992). 72
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measures indicated by the Court pending a decision of the Court on the question of jurisdiction. The claimant argued against the Iranian contention. Because there was no jurisdiction on other grounds, the judgment did not deal with this contention. In his dissent Judge Carneiro thought on this point that the proceedings before the Court should be suspended until a further decision by the Security Council,74 though he does not explain whether his conclusion was based on the Iranian reservation or not. A reservation included in declarations made by members of the Commonwealth, the "Commonwealth reservation", excludes from the Court's jurisdiction all disputes involving the declarant in respect of any state which is or has been a member of the Commonwealth of nations. Such a reservation came up for consideration in the Aerial Incident of 10 August 1999 Case (Jurisdiction)75 The Court held that the reservation could validly be invoked by the respondent as a condition ratione personae and that it had no jurisdiction under the declaration of the respondent (India). There are many other examples of special reservations being included in declarations, apart from those mentioned above.76 The Court has dealt with such reservations in several cases. In the Nicaragua Case (Jurisdiction and Admissibility) the Court was faced with a reservation made by the USA in respect of disputes arising under a multilateral treaty, unless all parties to the treaty affected by the decision were parties to the case before the Court and the government concerned has specially agreed to the jurisdiction. The Court found that the reservation in the United States declaration had some obscure aspects and that only when the general lines of the judgment to be given would become clear that the states "affected" could be identified. It accordingly decided that the matters raised should be examined and decided at the merits stage.77 In the merits phase the Court examined the issue more thoroughly. On the facts it found that a third state would be affected, 74 75 76 77
1952 ICJ Reports at p. 171. 2000 ICJ Reports paras. 30, 31, 34-46, (Pakistan v. India). For some significant ones see Alexandrov, op. cit. note 36 pp. 91 ff. 1984 ICJ Reports at p. 425.
Jurisdiction under the optional clause
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and in the operative clause of the judgment formally held that in adjudicating the dispute it was required to apply the multilateral treaty reservation.78 In the Fisheries Jurisdiction Case79 the reservation in the declaration of the respondent, Canada, excepted from the Court's jurisdiction "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures. While the respondent contended that the dispute, which arose from the boarding and seizure of a Spanish fishing vessel, was of the kind envisaged in that reservation and, therefore, the Court had no jurisdiction, the claimant, Spain, argued that the dispute fell outside the reservation because, first, the dispute fell outside the terms of the Canadian reservation by reason of its subject-matter; secondly, the amended Coastal Fisheries Protection Act and its implementing regulations could not, in international law, constitute "conservation and management measures"; thirdly, the reservation covered only "vessels" which were stateless or flying a flag of convenience; and fourthly, the pursuit, boarding and seizure of the vessel in question could not be regarded in international law as "the enforcement of..." conservation and management "measures". The Court examined the legislation and concluded that the "measures" taken by Canada in amending its coastal fisheries protection legislation and regulations constituted "conservation and management measures" in the sense in which that expression was commonly understood in international law and practice and had been used in the Canadian reservation,80 that the measures pertained to the area covered by the reservation and that the enforcement of the measures was also covered by the reservation. Reservations of domestic jurisdiction have attracted considerable attention by the Court. They may or may not include a subjective element. The reservation without the subjective element is to 78 79 80
1986 ICJ Reports at p. 29. 1998 ICJ Reports p. 432. Ibid. at pp. 463 ff.
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the effect that jurisdiction is excluded with regard to disputes which relate to matters falling within the domestic jurisdiction of the declarant. In the Tunis and Morocco Nationality Decrees Opinion the PCIJ had to deal with the issue of exclusion on account of domestic jurisdiction in relation to jurisdiction in an advisory opinion. The Court said: when once it appears that the legal grounds relied on are such as to justify the provisional conclusion that they are of juridical importance... and that the question whether it is competent for one State to take certain measures is subordinated to the formation of an opinion with regard to the validity and construction of these legal grounds, the provisions contained in paragraph 8 of Article 15 [of the Covenant] cease to apply and the matter, ceasing to be one solely within the domestic jurisdiction of the State, enters the domain governed by international law.81
The Court made a "provisional appreciation" of the grounds invoked. The ICJ used the same technique of making a provisional appreciation in the Interhandel Case where an objection based on domestic jurisdiction was raised. The Court established that in the preliminary objection phase the Court will not assess the validity of the grounds invoked on the merits but will confine itself to considering whether such grounds justify the provisional conclusions that they may be of relevance in the case, and, if so, whether questions relating to the validity and interpretation of those grounds are questions of international law.82 Hence, the practical consequence of the formal reservation of domestic jurisdiction appear to be little different from the practical consequence of the limitation of the jurisdiction to disputes concerning a breach of international law. The Court in that case treated an objection that the issues raised by the claimant related to matters essentially within the domestic jurisdiction of the respondent as an objection to the jurisdiction and not as an objection to the admissibility or a defense to the merits, though in fact neither of the declarations in question contained the reservation in express terms. Thus, it would appear that the broad 81 82
(1923), PCIJ Series B No. 4 at p. 26. 1959 ICJ Reports at p. 24.
Jurisdiction under the optional clause
591
exception of domestic jurisdiction is inherent in the system of jurisdiction under the optional clause as an objection to jurisdiction and in appropriate circumstances will be applied by the Court to bar its jurisdiction, even if neither declaration refers to it. Clearly, though, the express terms of a reservation will generally override the less precise inherent reservation to the extent that the reservation covers a wider area than the inherent exception.83 What does not come within the scope of the inherent exception of domestic jurisdiction was discussed in the Tunis and Morocco Nationality Decrees Opinion. Although concerned with the interpretation of the LN Covenant, that case is relevant in principle both to the interpretation of the somewhat broader provision of the Charter on the same matter and to the specific question of the jurisdiction of the ICJ. In dealing with Article 15(8) of the LN Covenant the PCIJ said the words used in the provision seem rather to contemplate certain matters which, though they may very closely concern the interests of more than one State, are not, in principle, regulated by international law. As regards such matters, each State is the sole judge. The question whether a certain matter is or is not solely within the jurisdiction of a State is essentially a relative question; it depends upon the development of international relations.84 While what is within domestic jurisdiction does not have an a priori definition, but is relative, certain principles have, nevertheless, been developed which apply to deciding a concrete case. It is accepted that, though a given subject prima facie falls within domestic jurisdiction, 83
The use of the words "solely" or "essentially" in a reservation of matters within domestic jurisdiction would seem not to widen the area of application of the reservation but, if at all, to narrow it. It is doubtful whether the use of those words could in general effectively narrow the content of the exception because matters within domestic jurisdiction as such would not be constitutive of "international legal" disputes which alone are within the Court's jurisdiction in any case. To state that the matters are solely or essentially within domestic jurisdiction would, therefore, not from this point of view, make much of a difference for the jurisdiction of the Court. 84 (1923), PCIJ Series B No. 4 at p. 23.
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there are other factors the presence of which could cause it to fall outside domestic and into "international" jurisdiction. Thus, where an international treaty is relevant to a case involving a subject which in principle falls within domestic jurisdiction, issues relating, e.g., to the validity, interpretation and application of that treaty involve the application of international law and this fact would result in the matter falling outside the scope of the domestic jurisdiction exception.85 The situation is the same, if the dispute involves (or prima facie appears to require) recourse to the principles of general international law, including custom, the validity of which depends on international law.86 The Nottebohm Case is a good example of the application of these principles. The ICJ held that, even when in principle a subject (in that case nationality) fell within domestic jurisdiction, the exception was likely to be excluded, if the consequences of the impugned act produced effects on the international plane and impinged on the rights of another state under international law, thus, causing general international law to be applicable.87 Clearly the principle evolved is that, if the dispute calls for the application of international law, from whatever source, for its solution, on the basis of the issue raised, i.e., raises issues of international law, it cannot be a matter for domestic jurisdiction. (ii) Subjective Reservations The US declaration of 1946 included a reservation which excluded from the jurisdiction of the ICJ "disputes with regard to matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America". Substantially the same kind of reservation, though the formulation
85
Ibid. at pp. 20, 29-31. See also decisions of the ICJ in the Guardianship of Infants Convention Case, 1958 ICJ Reports at p. 67, the Interhandel Case, 1959, ICJ Reports at p. 24 and the Peace Treaties Opinion, 1950 ICJ Reports at p. 70. 86 See the Interhandel Case, 1959 ICJ Reports at p. 25, the Right of Passage Case (Merits), 1960 ICJ Reports at p. 33. 87 1955 ICJ Reports at p. 21. The exception of domestic jurisdiction was raised and argued but not pronounced upon by the Court, inter alia, in the AngloIranian Oil Co. Case, the Norwegian Loans Case and the Aerial Incident of 27 July 1955 Case.
Jurisdiction under the optional clause
593
may vary, has also been made at different times by France (1947), India (1956), Liberia (1952), Malawi (1966), Mexico (1947), Pakistan (1948, 1957), Philippines (1972), South Africa (1955), Sudan (1958).88 There are some current declarations that have such a reservation. The difference between the reservation of domestic jurisdiction which has been discussed, which is objective, and this kind of reservation which may be described as subjective in form is that in the former case the decision whether a matter falls within the reservation of jurisdiction is intended to be taken by the Court, while in the latter case the decision is intended to be taken by the declarant itself. On the basis of reciprocity another party to a dispute with the declarant could avail itself of the facility provided for in the declarant's declaration. Several cases in which the clause was invoked came before the Court. The U.S. Nationals in Morocco Case89 was instituted on the basis of declarations of both sides containing the subjective clause. The invocation of the compulsory jurisdiction was contested by one party, the USA, which, nevertheless, agreed ad hoc that the Court should exercise jurisdiction on the basis of forum prorogatum. The clause was not invoked by the USA, as respondent, in the Nicaragua Case (Jurisdiction and Admissibility).90 Bulgaria invoked the US reservation by way of reciprocity in the Aerial Incident of 27 July 1955 Case (U.S.A. v. Bulgaria) which was withdrawn.91 In the Norwegian Loans Case92 the respondent, Norway, invoked on the basis of reciprocity the subjective reservation of 88
The UK had originally (1957) made a subjective reservation in regard to disputes affecting its national security which were excluded from the Court's jurisdiction, if they were disputes affecting the UK's national security, "in the opinion of the Government of the United Kingdom". See also on "automatic reservations", Crawford, "The Legal Effect of Automatic Reservations to the Jurisdiction of the International Court", 50 BYIL (1979) p. 63, Lamm, "The Connally Reservation and Binding Jurisdiction of the International Court of Justice", 30 AJ (1987/88) p. 75 (in Hungarian with summary in French). 89 1952 ICJ Reports p. 176. 90 1984 ICJ Reports p. 392. 91 See Gross, "Bulgaria invokes the Connally Amendment", 56 AJIL (1962) p. 357. 92 1957 ICJ Reports p. 9.
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domestic jurisdiction in the claimant's (France) declaration. The Court said that it was not considering the validity of the French reservation but, on the basis that both parties did not contest the validity of the reservation or the declaration of France,93 held that the respondent could rely on the reservation in the claimant's declaration. Thus, the respondent could, because it considered the dispute a matter of domestic jurisdiction, successfully claim that the Court had no jurisdiction.94 In the Interhandel Case the subjective reservation of domestic jurisdiction contained in the respondent's (USA) declaration was directly raised as an objection to jurisdiction. The Court, however, held that the case was not admissible on other grounds (non-exhaustion of local remedies), avoiding the question of its jurisdiction raised by the respondent.95 What emerges from the discussion in Chapter 9 is that the presence of the subjective element in the reservation would not by itself, even if the reservation is invoked, deprive the Court of its incidental jurisdiction which includes the authority to indicate provisional or interim measures of protection. As already seen, in Chapter 5, it does not deprive the Court of la competence de la competence. There are questions which arise, such as, whether the subjective element is valid at all, whether the subjective element may be severed, and whether the presence of the subjective reservation makes the declaration invalid.96 These questions will be examined later in this chapter in connection with the validity of reservations in general. 93
Ibid. at p. 27. Ibid at pp. 23-4. 95 1959 ICJ Reports at p. 26. The UK reservation in its 1957 and 1958 declarations, which were later withdrawn, of matters of national security, had a subjective element similar to that considered above in connection with reservations of domestic jurisdiction: see 1957-1958 ICJ Yearbook at pp. 211-12 and 1958-1959 ICJ Yearbook at pp. 225-6. 96 It has been argued that the subjective reservation (of any kind) is an illusory acceptance of the optional clause jurisdiction and is contrary to the statute of the ICJ: see Yankov, "Les reserves dans les declarations d'acceptation de la juridiction obligatoire de la Cour Internationale de Justice et leur influence sur la competence de la Cour" 52 Annuaire de l'Universite de Sofia, Faculte de Droit (1961) 454 at p. 594 (summary in French). 94
Jurisdiction under the optional clause
595
(Hi) ReservationsRatione Temporis In the Mavrommatis Palestine Concessions Case the Court stated that "in cases of doubt, jurisdiction based on an international agreement embraces all disputes referred to it after its establishment" and that "the correctness of the rule enunciated above" was obvious, because "reservations made in many arbitration treaties regarding disputes arising out of events previous to the conclusion of the treaty seem to prove the necessity for an explicit limitation of jurisdiction".97 Hence, if the intention is to exclude disputes already existing at the time the declaration is made, there must be an explicit reservation to that effect. Accordingly, some reservations limit the acceptance of jurisdiction to disputes arising after a certain date. Others contain a further limitation that the situations or facts giving rise to a dispute must also be subsequent to that date. Both kinds of limitation were to be found in the Belgian declaration of 1925. Under the statute of the PCIJ many other declarations had similar limitations, while a smaller number only excluded disputes prior to a certain date without reference to situations or facts. Under the statute of the ICJ as of 1995 there were 48 declarations with both or the latter.98 Limitations, excluding disputes ratione temporis, may be formulated in different ways. Date of signature, of ratification, of entry into force or depositing of a declaration or of a previous declaration, a fixed date or a date or period relating to certain events may be used. The principle of reciprocity is applied to reservations ratione temporis which exclude disputes that arose before a certain date or from facts or situations which existed before that date. If such a reservation is made in the declaration of one of the parties, the other party could rely on it, so that the Court would have jurisdiction in the 97
(1924), PCIJ Series A No. 2 at p. 35. The Belgian formula has been criticized: see Briggs, loc. cit. note 36 at pp. 293-5, Hambro, loc. cit. note 36 at p. 144, H. Lauterpacht, "The British Reservation to the Optional Clause", 10 Economica (1930) at p. 140, De Pauw, "The So-called "Belgian" Reservation to Acceptances of Compulsory Jurisdiction of the World Court", in The Compulsory Jurisdiction of the International Court of Justice: A Turning Point? Roundtable in Honour of Louis B. Sohn (1991) p. 51. 98
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specific case, only if the dispute (or the facts or situations) has arisen after the exclusion date of the former party's declaration. If the declarations of both parties to the dispute contain such a reservation ratione temporis, pursuant to the principle of reciprocity the Court will have jurisdiction only with respect to disputes which are covered by the provisions of both declarations. What is relevant is the extent to which the parties have assumed identical obligations ratione temporis. This is the basis on which the Court has operated. In the Phosphates in Morocco Case the respondent, France, claimed the benefit of its own reservation limiting the acceptance of jurisdiction to "disputes, which may arise after the ratification of the present declaration with regard to situations or facts subsequent to such ratification". The Court, while referring to the principle of reciprocity which was not in issue in fact, stated that: This [the Applicant, Italy's] declaration does not contain the limitation that appears in the French declaration concerning the situations or facts with regard to which the dispute arose; nevertheless, as a consequence of the condition of reciprocity stipulated in paragraph 2 of Article 36 of the Statute of the Court, it is recognized that this limitation holds good as between the Parties."
In the Electricity Company of Sofia Case, on the other hand, Bulgaria, the respondent, claimed the benefit of a reservation ratione temporis contained in the declaration of the claimant, Belgium. The Belgian declaration contained a reservation excluding disputes, situations or facts prior to its ratification. The Court said: The Bulgarian Government relies on the limitation ratione temporis embodied in the Belgian declaration concerning the situations or facts with regard to which the dispute has arisen, in order to dispute the jurisdiction of the Court. Although this limitation does not appear in the Bulgarian Government's own declaration, it is common ground that, in consequence of the condition of reciprocity laid down in 99
(1938), PCIJ Series A/B No. 74 at p. 22.
Jurisdiction under the optional clause
597
paragraph 2 of Article 36 of the Court's Statute and repeated in the Bulgarian declaration, it is applicable as between the Parties.100
Once reciprocity was held to operate in regard to reservations ratione temporis, there were several other matters that arose. Determining the exclusion date referred to in the specific declaration and the relevant date of a dispute or the facts and situations that gave rise to the dispute became necessary. The exclusion date will have to be determined by reference to the formulation of the particular declaration. This may require interpretation. While it may sometimes be difficult to establish the exclusion date, because of imprecision of the formulation, it may also be difficult to establish the date when a specific dispute has arisen. In the Mavrommatis Palestine Concessions Case the PCIJ defined a legal dispute as "a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons".101 The Court also observed that a dispute is international, when such a disagreement arises between two states.102 The PCIJ in the German Interests in Polish Upper Silesia Case (Jurisdiction) noted that a dispute arose "as soon as one of the Governments concerned points out that the attitude adopted by the other conflicts with its own views".103 This conclusion has also been confirmed by the ICJ. In the Right of Passage Case (Preliminary Objections) the Court stated that the legal dispute crystallized when through preliminary diplomatic negotiations the parties presented claims and determined their grounds.104 While there was no requirement that diplomatic negotiations be 100
(1939), PCIJ Series A/B No. 77 at p. 81. See also per Judge Anzilotti, dissenting, ibid, at pp. 87, 89, per Judge Urutia, dissenting, at p. 103, per Judge van Eysinga, dissenting, at p. 109, per Judge ad hoc Papazoff, dissenting, at p. 146. All these judges agreed with the Court on this point. 101 The Mavrommatis Palestine Concessions Case (Jurisdiction), (1924) PCIJ Series A No. 2 at p. 11. The "critical date" at which a dispute arose was discussed, though not in connection with a reservation, in the Minquiers and Ecrehos Case, 1953 ICJ Reports at p. 59. For a review of this particular issue see Fitzmaurice, 1 op. cit. note 35 pp. 277 ff. 102 Ibid. 103 (1925) PCIJ Series A No. 6 at p. 14. 104 1957 ICJ Reports at pp. 148-9.
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exhausted before filing an application, it was necessary that the claims be opposed to each other in the context of the relations between the respective states.105 In the South West Africa Cases (Preliminary Objections) the Court said that it was not sufficient for one or other of the parties to affirm or deny the existence of a dispute but that "It must be shown that the claim of one party is positively opposed by the other".106 Thus, a dispute does not exist merely when an exchange of views has taken place, but when there are clearly defined opposing claims. When the reservation ratione temporis refers to disputes only and does not exclude the consideration of past facts or situations, the Court's jurisdiction over disputes arising subsequent to the exclusion date is not limited to situations or facts subsequent to that date.107 However, when the reservation excludes both disputes and facts or situations that have taken place prior to a certain date, the task of the Court is more difficult. The difficulty arises with establishing the facts or situations which are not subsequent to the exclusion date as a result of which the dispute arose. The Court's practice has been to consider the issues in the context of the specific case, seeking to establish the "essential facts", that is "the facts which really gave rise to the dispute...", and it has made it clear that "the only situations or facts falling under the compulsory jurisdiction are those which are subsequent to the [exclusion date] and with regard to which the dispute arose, that is to say, those which must be considered as being the source of the dispute".108 In the Electricity Company of Sofia Case, the Court observed: It is true that a dispute may presuppose the existence of some prior situation or fact, but it does not follow that the dispute arises in regard 105
See also on the existence of an international dispute the Peace Treaties Opinion, 1950 ICJ Reports at p. 74. 106 1962 ICJ Reports at p. 328. 107 The Mavrommatis Palestine Concessions Case (Jurisdiction), (1924) PCIJ Series A No. 2 at p. 35. 108 The Phosphates in Morocco Case, (1938) PCIJ Series A/B No. 74 at pp. 23, 24, 26.
Jurisdiction under the optional clause
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to that situation or fact. A situation or fact in regard to which a dispute is said to have arisen must be the real cause of the dispute.109
The Court examined specific facts and situations and decided whether they were relevant to the dispute in question. It held that an arbitral award prior to a dispute was not necessarily its source, although it certainly created a situation that continued at the time of the dispute. In the Phosphates in Morocco Case the Court found that "a refusal to settle this particular dispute in a certain way" does not, in itself, constitute "an unlawful international act giving rise to anew dispute".110 Sometimes it is difficult to establish whether certain facts or situations actually gave rise to the dispute before considering the merits of the case.111 In the Right of Passage Case (Preliminary Objections) both parties agreed that the situations or facts covered by the reservation ratione temporis were only those which gave rise to, or were the source of, the dispute, but they disagreed on whether the relevant situations or facts preceded the exclusion date. The Court decided to join this preliminary objection to the merits because it was not at that stage in possession of sufficient evidence to enable it to pronounce on the issue.112 In the merits phase the Court, first, dealt with the issue of the critical date of the dispute. The Court concluded that the dispute had a "threefold subject": (i) the disputed existence of a right of passage in favour of Portugal; (ii) the alleged failure of India in 1954 to com ply with its obligations concerning that right; (iii) the redress of the illegal situation flowing from that failure.113 On this basis the Court stated that the dispute could not arise until all its constituent elements had come into existence and found that, because India was 109 110
(1939) PCIJ Series A/B No. 77 at p. 82. The Phosphates in Morocco Case, (1938) PCIJ Series A/B No. 74 at
p. 28. 111
See the Mavrommatis Palestine Concessions Case (Jurisdiction), (1924) PCIJ Series A No. 2 at p. 35. 112 The Right of Passage Case (Preliminary Objections), 1957 ICJ Reports at p. 152. 113 Right of Passage Case (Merits), 1960 ICJ Reports at pp. 33-4.
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alleged to have placed the obstacles in the way of exercise of passage by Portugal in 1954, the dispute could not have originated until 1954. The Court found that before 1954 the passage was effected without the parties adopting clearly-defined legal positions as against each other and, therefore, the "conflict of legal views" had not yet arisen at that time. The Court concluded that the dispute arose after the date referred to in the reservation of the respondent.114 Next, the Court considered whether the facts and situations with regard to the dispute were subsequent to the exclusion date, February 5, 1930. The Court, following the jurisprudence of the PCIJ, was of the view that a dispute might presuppose the existence of some prior situation or fact, but it did not follow that the dispute arose in regard to that situation or fact. As a consequence, the Court drew a distinction between the situations or facts which constituted the source of the right of passage and the situations or facts which were the source of the dispute (India's failure to comply with obligations which, according to Portugal, were binding upon it). The Court held that it was from all this that the dispute arose and existed and that this whole, whatever may have been the earlier origin of one of its parts, came into existence only after February 5, 1930,115 which was the date referred to in the reservation ratione temporis and found that it had jurisdiction.116 The Right of Passage Case underlines the difficulty of establishing the critical date when the facts or situations referred to in a reservation ratione temporis emerged. The problem is particularly severe when such facts or situations are continuous over a period. In the Phosphates in Morocco Case it was claimed that facts and situations continued to exist both before and after the exclusion date. The respondent, France, admitted that the dispute arose subsequent to the exclusion date but contended that the situations and facts giving rise to it were not subsequent. The applicant, Italy, for its part, contended that acts which took place after the exclusion date, taken in conjunction with earlier acts to which they were closely linked, 114 115 116
Ibid. at pp. 34 ff. Ibid. at p. 35. Ibid. at p. 36.
Jurisdiction under the optional clause
601
constituted as a whole a single, continuing and progressive illegal act which had not been fully accomplished until after the crucial date and that acts prior to the exclusion date, though prior, had given rise to a permanent situation inconsistent with international law which had continued to exist after the said date. The Court was of the view that facts subsequent to the exclusion date were not sufficient to establish jurisdiction, if they merely presumed the existence of, or confirmed, or developed, prior situations or facts which were the source of the dispute, and that the actual intention of the French reservation was to exclude from the Court's jurisdiction "situations or facts dating from a period when the State... was not in a position to foresee the legal proceedings to which these facts and situations might give rise". It found in favour of the absence of jurisdiction.117 The intention of the declarant state which was referred to in that case was also referred to in the Anglo-Iranian Oil Co. Case. The Iranian declaration, ratified on September 19, 1932, accepted the compulsory jurisdiction with regard to "disputes arising after the ratification of the present declaration with regard to situations or facts relating directly or indirectly to the application of treaties or conventions accepted by Persia and subsequent to the ratification of this declaration". The UK argued that the Iranian declaration accepted compulsory jurisdiction with regard to disputes, situations or facts subsequent to the date of its ratification in relation to treaties or conventions regardless of their date of conclusion, so that the exclusion ratione temporis would not apply to the date of conclusion of treaties. The Court, however, examined the evidence and concluded that the "manifest intention of the Government of Iran" was to "exclude from the jurisdiction of the Court disputes relating to the application of treaties or conventions accepted by it before the ratification of the Declaration".118 117
The Phosphates in Morocco Case, (1938) PCIJ Series A/B No. 74 at pp. 23 ff. 118 Anglo-Iranian Oil Co. Case (Preliminary Objections), 1952 ICJ Reports at pp. 103-6. Briggs comments favorably on this conclusion: loc. cit. note 36 at p. 288. H. Lauterpacht thinks that the Court took a restrictive view of jurisdiction rather than interpreting the reservation restrictively: op. cit. note 2 at pp. 344-7.
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In two of the cases discussed above the conclusion reached was against the assumption of jurisdiction while in the other it was in favorem jurisdictionis. In all three cases the decision taken hinged on the interpretation of the reservation ratione temporis and the evaluation of the facts. Much depends on how the reservation is interpreted in the light of the apparent intention behind it. As the PCIJ pointed out in the Phosphates in Morocco Case: ... the intention which inspired it seems equally clear: it was inserted with the object of depriving the acceptance of the compulsory jurisdiction of any retroactive effects, in order both to avoid, in general, a revival of old disputes, and to preclude the possibility of the submission ... of situations or facts dating from a period when the State... was not in a position to foresee the legal proceedings to which these facts and situations might give rise.119,120
119
The Phosphates in Morocco Case, (1938) PCIJ Series A/B No. 74 at p. 24. The view has been expressed that reservations ratione temporis are imprecise and unsatisfactory: Alexandrov, op. cit. note 36 pp. 52-3. However, this is too sweeping a generalization. While there have been difficulties in implementing some of the current reservations of this kind, the Court's approach shows that they can be dealt with and applied satisfactorily. 120 The matter of the date of entry into force of a declaration has not caused great problems. Clearly, reciprocity does not apply to the matter: see the Interhandel Case (Preliminary Objections), 1959 ICJ Reports at p. 23 and passim. Unless otherwise stated, a declaration with its reservations enters into force on the date of deposit of the declaration with the SG of the UN pursuant to Article 36(4) of the statute of the ICJ. The Court has also faced the issue of the duration of declarations and their termination, by denunciation generally: see Alexandrov, op. cit. note 36 pp. 56—66, Hassan, "A Legal Analysis of the United States Attempted Withdrawal from the Jurisdiction of the World Court in the Proceedings Initiated by Nicaragua", 10 U. Day. LR (1985) p. 295, Quintana, "The Nicaraguan Case and the Denunciation of Declarations of Acceptance of the Compulsory Jurisdiction of the International Court of Justice", 11 Leiden JIL (1998) p. 97. For modification and amendment of a declaration see Rosenne, 2 op. cit. note 8 pp. 815 ff. The matter of the survival, and application by the ICJ, of optional clause declarations made under Article 36 of the statute of the PCIJ is addressed in Rosenne, 2 op. cit. note 8 pp. 745 ff.
Jurisdiction under the optional clause
603
(iv) The Validity of Reservations and Declarations While the making of reservations had been accepted, the validity of a reservation may be called into question in a given case, as was pointed out earlier. In the first place, as was stated in the Phosphates in Morocco Case, jurisdiction under the optional clause "only exists within the limits within which it has been accepted".121 Secondly, it is generally accepted that, while the right to append reservations is no longer in question, those reservations must not be inconsistent with the statute and, thus, for example, reservations as to the functioning and organization of the Court would not be permissible.122 A corollary is clearly that the whole declaration itself (including any reservations) must be consistent with the statute.123 Thirdly, there may be other circumstances than those flowing from the express terms of the statute in which a reservation's or declaration's validity may be questioned. These clearly must be examined on a case by case basis. For example, in an extreme case, where a declaration with its reservations clearly infringes the jurisdiction of the Court to such a degree that it deprives it of jurisdiction in any real sense, the declaration itself would be invalid. This touches on bona fides also. In the circumstances outlined above there was clearly no bona fides in invoking the Court's jurisdiction under Article 36(2). But apart from bona fides there may be objective circumstances in which the jurisdictional submission is vitiated and therefore invalid, because it deprives the Court of a vital part of its jurisdiction. Apart from these generalities, there are some cases in which the acceptability of reservations in terms of the optional clause system and their effect on validity have been discussed. The classic example of a possible conflict between a reservation and the appropriate acceptance of the Court's jurisdiction is the subjective reservation, referred to earlier, of domestic jurisdiction, of national security 121
(1938) PCIJ Series A/B No. 74 at p. 23. Norwegian Loans Case, 1957 ICJ Reports at pp. 45-6 per Judge Lauterpacht in a separate opinion. See also Briggs, loc. cit. note 36 at pp. 232-3, H. Lauterpacht, op. cit. note 36 at p. 346. 123 See Waldock, loc. cit. note 36 at p. 250. 122
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matters and the like. The effect of a subjective element in a reservation of jurisdiction in general (i.e. not particularly in relation to the optional clause jurisdiction of the ICJ) was discussed in Chapter 5. There it was suggested that such a subjective element could be allowed to stand provided it was interpreted as subjecting the exercise of the discretion involved in the implementation of the reservation to review by the tribunal for abuse. The same solution is proposed for the subjective reservation in declarations under Article 36(2) of the ICJ statute. None of the decided cases contradict this position and all of them are reconcilable with it. In the Norwegian Loans Case the Court applied the subjective reservation of domestic jurisdiction to exclude its own jurisdiction, as a result there of the application of the principle of reciprocity.124 The Court did so expressly, because neither party had questioned the validity of the reservation, which led it to let it stand and apply it accordingly. It specifically declined to make a pronouncement on the validity of the reservation, including in relation to Article 36(6) of the statute, and in effect applied it "if it be valid".125 It is to be noted that neither party questioned the application of the reservation to exclude jurisdiction on the ground that the discretion involved in 124
1957 ICJ Reports p. 9 at pp. 26 ff. There has been considerable discussion by text-writers of the subjective reservation and its effects: see Briggs, loc. cit. note 36, Dubisson, La Cour Internationale de justice (1964) pp. 187—9. Goldie, "The Connally Reservation: A Shield for an Adversary", 9 UCLA Law Review (1962) p. 277, Greig, International Law (1996) pp. 651-7, Holloway, Modern Trends in Treaty Law (1967) pp. 654-66, 683-97, Hudson, The TwentyFifth Year of the International Court of Justice, 41 AJIL (1947) at pp. 11-12, Hudson, The World Court: America's Declaration Accepting Jurisdiction, 32 ABA Journal (1946) p. 32, Jennings, "Recent Cases in 'Automatic' Reservations to the Optional Clause", 7 ICLQ (1958) p. 349, Maus, op. cit. note 36 at pp. 149-63, Merrills, loc. cit. note 36 at pp. 113-15, Preuss, "Questions Resulting from the Connally Amendment", 32 ABA Journal (1946) p. 660, Rogers, "The United States "Automatic" Reservation to Optional Clause Jurisdiction of the I.C.J.", 7 ICLQ (1958) p. 758, Rosenne, 2 op. cit. note 8 pp. 778-82, Waldock, "The Plea of Domestic Jurisdiction Before International Legal Tribunals", 31 BYIL (1954) p. 96, Wilcox, "The United States Accepts Compulsory Jurisdiction", 40 AJIL (1946) p. 699. 125 1957 ICJ Reports at p. 26.
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the implementation of the reservation had been abused. Indeed, on the facts it was a reasonable conclusion that the discretion had not been abused, i.e., was not manifestly a misuse of authority in the sense relevant, for example, to the exercise of administrative discretionary authority. As pointed out in Chapter 5, none of the judges who gave separate and dissenting opinions in that case or expressed views on the matter in the Interhandel Case (Preliminary Objection) expressly took this view as such,126 although they had opinions on the validity of the reservation and severability and the validity of the declaration. It is interesting that in the Aerial Incident of 27 July 1955 Case the USA began by advocating virtually the same view proposed by the present author against the respondent, Bulgaria, though not in exactly the same terms, using the concept of "arbitrariness", but later withdrew it and consequently discontinued the case.127 Before the issue of the effect of invalid reservations on the jurisdiction of the Court is considered, a recent case in which the effect of a particular reservation was placed in issue must be examined. In the Aerial Incident of 10 August 1999 Case128 Pakistan, the claimant, argued that the "Commonwealth reservation" in the respondent's (India's) declaration under Article 36(2) was not opposable to it, the implication being that it was not applicable, because it was invalid. The Court first addressed Pakistan's contention that the "Commonwealth reservation" was an extra-statutory reservation going beyond the conditions allowed under Article 36(3) of the statute. According to Pakistan, the reservation was neither applicable nor opposable to it in this case, in the absence of acceptance. The 126
Judge Read may have implied agreement with this view in the Norwegian Loans Case, when he referred to a "real understanding" and not a "fictitious" one: ibid, at p. 95. Hudson also, insofar as he thought that the Court could not declare the reservation invalid because it was, in his view, not a violation of Article 36(6) of the statute, may be regarded as impliedly permitting the approach taken in the text above: op. cit. note 36 p. 836. 127 ICJ Pleadings, Aerial Incident of 27 July 1955 (1959) at pp. 308, 323-325, 676. 128 2000 ICJ Reports paras. 30, 31, 34-46.
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Court observed that Article 36(3) of its statute had never been regarded as laying down in an exhaustive manner the conditions under which declarations might be made. Already, in 1928, the Assembly of the LN had indicated that "reservations conceivable may relate, either generally to certain aspects of any kind of dispute, or specifically to certain classes or lists of disputes, and... these different kinds of reservation can be legitimately combined" (resolution adopted on 26 September 1928). Moreover, it said, when the statute of the Court was being drafted, the right of a state to attach reservations to its declaration was confirmed, and this right has been recognized in the practice of states. The Court, thus, could not accept Pakistan's argument that a reservation such as India's Commonwealth reservation might be regarded as "extra-statutory", because it contravened Article 36(3) of the statute. The Court also did not accept Pakistan's argument that India's reservation was a discriminatory act constituting an abuse of right, because the only purpose of this reservation was to prevent Pakistan from bringing an action against India before the Court. It noted, in the first place, that the reservation referred generally to states which are or have been members of the Commonwealth. It added that states were in any event free to limit the scope, ratione personae which they wished to give to their acceptance of the compulsory jurisdiction of the Court. The Court next addressed Pakistan's contention that the "Commonwealth reservation" was obsolete, because members of the Commonwealth of Nations were no longer united by a common allegiance to the Crown and the modes of dispute settlement originally contemplated had never come into being. The Court rejected this contention as a reason for not applying the reservation, holding that the reservation was effective in the manner in which it was intended to take effect. While the Court has not denied that reservations may be contrary to the law, whether it be the statute or general international law, it has not decided that any reservations that have been invoked before it were invalid. Thus, it is not possible to infer what may be its attitude, if a reservation were found to be invalid. On the other hand, as pointed out in Chapter 5, judges of the ICJ who have given
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separate and dissenting opinions have expressed views on the matter, on the assumption that a reservation has been found to be invalid. Judge Lauterpacht, in the Norwegian Loans Case and the Interhandel Case, thought that an invalid reservation would vitiate the whole declaration, making the latter invalid and inapplicable,129 as did Judge Spender in the Interhandel Case.130 In the Norwegian Loans Case Judge Guerrero stated that the reservation was invalid. It is not entirely clear what view he took of the effect of the invalidity of the reservation but it would seem that, because he laid emphasis on the invalidity of the reservation, as such, and did not refer to the declaration or its invalidity, he intended to opt for the alternative of declaring the reservation alone invalid and striking it down, while the rest of the declaration would remain valid.131 Judge Armand-Ugon in the Interhandel Case emphatically was of the opinion that the whole reservation alone should be struck down.132 His view was that the reservation was severable from the declaration and that the rest of the declaration would remain valid. The Court itself may be regarded as having come close to taking this view, when in the Right of Passage Case (Preliminary Objections) in reply to the Indian (respondent's) argument that the whole Portuguese (claimant's) declaration was invalid, because it contained an invalid reservation, it said, "It is a rule of interpretation that a text emanating from a Covenant must, in principle, be interpreted as producing and as intended to produce effects in accordance with existing law and not in violation of it."133 But the text is not clear. It is possible that it merely meant that the reservation should be interpreted in favorem valoris and not the converse, so that an interpretation on 129
1957 ICJ Reports at p. 44 and 1959 ICJ Reports at pp. 101-2. Several text-writers agree with this view: see, e.g., Jennings, loc. cit. note 36 at pp. 361-3, Dubisson, op. cit. note 36 pp. 186, 189, Goldie, loc. cit. note 124 at p. 290, Maus, op. cit. note 36 pp. 160-2, Holloway, op. cit. note 124 pp. 687-8, Preuss, loc. cit. note 124 at p. 729, Waldock, loc. cit. note 124 at pp. 131-3. 130 Ibid. 131 1957 ICJ Reports at pp. 68-70. 132 1959 ICJ Reports at p. 93. 133 1957 ICJ Reports at p. 142.
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the lines suggested earlier in the present work of the subjective reservation which permits it to stand should be given to it rather than it be regarded as invalid. What course the Court would take, if it decided that a reservation was invalid, is, therefore, unclear. In principle there is no reason why, following the principle that it is unlikely that a state would propagate a text which is invalid, the approach should not be taken that, because as much of a text should be given effect to as intended to have force, only the whole reservation which is invalid should be struck down and not given effect to, unless, for example, it would, if this were done, make nonsense of the declaration taken as a whole or doing this would clearly contradict the intention of the declarant in submitting to the jurisdiction of the Court, in which case the whole declaration would have to be struck down. A possible alternative, where the situation permits it, is to strike down only that part of the reservation which makes the reservation invalid, if it were possible to sever this part of the reservation, and leave the rest of the reservation and the declaration to take effect. There is no reason to take a rigid approach to the effect of reservations which, as they are formulated, are tainted with illegality and are, therefore, not acceptable. Indeed, the only certain principle, as the Court has emphasized (e.g., in the Rights of Passage Case (Preliminary Objections)) is that there is a strong presumption that a declaration with its reservations is valid and that, consequently, every effort should be made in interpreting it to preserve that presumption.134 As pointed out, no declaration or reservation has yet been held by the ICJ to be invalid in the face of the strong presumption in favorem valoris. But assuming that a declaration or reservation is found defective and impermissible, the question is on what lines should the Court respond. Two broad situations may be distinguished. The first is that the declaration, irrespective or reservations or conditions, is basically tainted, as where the declaration purports to submit to the jurisdiction of the Court disputes which are not 134
See also the inconclusive discussion of this issue in Alexandrov, op. cit. note 36 pp. 76 ff., which concentrates on the subjective reservation of domestic jurisdiction.
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legal in an international sense, as the statute and jurisprudence of the Court requires. The second situation is where a reservation or condition is tainted and causes a conflict with the legal requirements of reservations and conditions. Where the declaration is tainted, in keeping with the principle of the Right of Passage Case in favorem valoris of a declaration, every effort will be made to give the declaration effect and not declare it invalid. This approach has two consequences. One is that in interpreting the declaration the presumption would be in favour of conformity with the law and of validity and only, if this is not possible, will it be concluded that there is illegality. The other is that, where the presumption of legality is rebutted in the circumstances, the Court will first look to severing the offending part which is invalid and give effect to the rest of the declaration. It is only if such severance would frustrate the intention of the declarant as objectively established, that the whole declaration will not be given effect to as being invalid. A similar approach would be appropriate in regard to reservations that are tainted. In the first place an attempt will be need to interpret them in favorem valoris. Secondly, if this is not successful, an attempt will be made to sever either a part of the reservation, if such part can be identified as a separate part, or all of it, provided the intention of the declarant as objectively established is not interfered with or made nonsense of by this procedure. Thirdly, it is only if this is not possible, that in the last resort the whole declaration will be held to be invalid and struck down on the ground that giving effect to the declaration without the reservation as part of it would defeat the intention of the declarant, in the sense that without the reservation or the offending part of it, it is clear that the declarant had no intention of accepting the jurisdiction of the Court. In dealing with this kind of invalidity it is clear that as a consequence of the dictum in the Right of Passage Case the Court is inclined to act in favorem jurisdictionis, whenever a declaration is made, and it is only if it cannot be avoided, that it will not give effect to a part of the declaration or all of it. A problem may arise with the approach taken in the Norwegian Loans Case, where the Court gave effect to the subjective reservation
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of domestic jurisdiction as if it were valid on the basis that neither party had questioned its validity. In that case, as has been pointed out above, it was possible to take the view that the subjective domestic jurisdiction reservation could have been recognized as being valid because it did not take away from the Court the power of review based on abuse of the discretion involved in the decision taken by the relevant party in determining that the matter in dispute was one of domestic jurisdiction. In addition it was possible on the facts to hold that that determination was not manifestly arbitrary or an abuse of discretion, even though the Court itself or an observer may not necessarily have agreed with the determination. However, the more important issue is whether, because the parties do not raise the issue of validity, partial or otherwise, of a declaration or reservation, the Court is precluded from raising proprio motu the issue and determining it. As pointed out in Chapter 7, issues of jurisdiction in the sense of competence cannot be preempted as such, because the parties ignore them or do not raise them. Thus, it is unlikely that in an appropriate situation the Court would be acting correctly in not itself establishing the validity or invalidity of a declaration or parts of it, merely because the parties have failed to raise the issue. In the Norwegian Loans Case, on the other hand, no damage was done because, as pointed out, the declaration or reservation or parts of them were, in fact, not tainted, so that, in regarding the declaration or reservation as not invalid, the Court was doing no more than the equivalent of confirming its understanding that there was no manifest invalidity. This is in keeping with the approach in favorem valoris and in favorem jurisdictionis. While this attitude can be appreciated, that the ultimate authority of the Court is to raise the issue of invalidity and determine it cannot be denied. The situation is, nevertheless, affected by the operation, in the Court's case, of the doctrine of forum prorogatum. If the issue of invalidity is not raised by the parties, when it is clear that the declarations or declaration cannot be given effect to, partially or totally, because of invalidity, whether total or partial, it may happen that by the respondent's not raising the issue it has consented by its subsequent conduct to the exercise of jurisdiction by the Court, even
Jurisdiction under the optional clause
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though by reference to the relevant declaration or declarations the Court may not have jurisdiction. Thus, in the appropriate situations the Court could have jurisdiction, even though the cited sources of jurisdiction may not, in fact, give it jurisdiction. (4) Interpretation of Declarations and Reservations—Special Considerations As was found in Chapter 4, basically the same principles apply to the interpretation of declarations, including reservations, as apply to the interpretation of jurisdictional clauses. That is the starting point. As was stated in the Anglo-Iranian Oil Co. Case (Preliminary Objection), a declaration "must be interpreted as it stands, having regard to the words actually used".135 This idea was reaffirmed in effect in regard to reservations in the Norwegian Loans Case, where the Court gave effect to a reservation "as it stands and as the Parties recognize it".136 In this connection, in particular, the contra proferentem rule has never been applied to the interpretation of declarations and reservations. This is not only a general principle applicable to jurisdictional provisions but it was confirmed unequivocally in the Fisheries Jurisdiction Case where the Court said that "the rule had no role to play... in interpreting a reservation contained in the unilateral declaration made...under Article 36, paragraph 2, of the Statute".137 Nor has the Court applied a theory of restrictive interpretation in the interpretation of declarations and reservations.138 However, it has been pointed out that, because declarations are unilateral acts, their interpretation requires a somewhat special approach in certain respects. In the Fisheries Jurisdiction Case the 135
1952 ICJ Reports at p. 105. 1957 ICJ Reports at p. 27. 137 1998 ICJ Reports at p. 455. 138 See, e.g., the Phosphates in Morocco Case (1938) PCIJ Series A/B No. 74 at pp. 23—4. The ICJ has never called in aid restrictive principles of interpretation. On the contrary it has referred to fair interpretation of the text: see the Anglo-Iranian Oil Co. Case, 1952 ICJ Reports at p. 105, Aegean Sea Continental Shelf Case, 1978 ICJ Reports at pp. 28-9. 136
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Court explained the nature of declarations and reservations under Article 36(2), referring particularly to the fact that they could not be interpreted restrictively: It is for each State, in formulating its declaration, to decide upon the limits it places upon its acceptance of the jurisdiction of the Court: "This jurisdiction only exists within the limits within which it has been accepted" (Phosphates in Morocco, Judgment, 1939 P.C.I.J., SeriesA/B, No. 74, p. 23). Conditions or reservations thus do not by their terms derogate from a wider acceptance already given. Rather, they operate to define the parameters of the State's acceptance of the compulsory jurisdiction of the Court. There is thus no reason to interpret them restrictively All elements in a declaration under Article 36, paragraph 2, of the Statute which, read together, comprise the acceptance by the declarant State of the Court's jurisdiction, are to be interpreted as a unity, applying the same legal principles of interpretation throughout. 45. This is true even when, as in the present case, the relevant expression of a State's consent to the Court's jurisdiction, and the limits to that consent, represent a modification of an earlier expression of consent, given within wider limits. An additional reservation contained in a new declaration of acceptance of the Court's jurisdiction, replacing an earlier declaration, is not to be interpreted as a derogation from a more comprehensive acceptance given in that earlier declaration; thus, there is no reason to interpret such a reservation restrictively. Accordingly, it is the declaration in existence that alone constitutes the unity to be interpreted, with the same rules of interpretation applicable to all its provisions, including those containing reservations.139 The Court also explained the consequences of the unilateral nature of declarations in relation to the general principles of interpretation of treaties provided for in the 1969 Vienna Convention on the Law of Treaties, although it conceded that the act established a consensual bond: A declaration of acceptance of the compulsory jurisdiction of the Court, whether there are specified limits set to that acceptance or not, is a unilateral act of State sovereignty. At the same time, it establishes 139
1998 ICJ Reports at p. 453.
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a consensual bond and the potential for a jurisdictional link with the other States which have made declarations pursuant to Article 36, paragraph 2, of the Statute, and "makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance" (Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, I.C.J. Reports 1998, p. 291, para. 25). The regime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties (ibid., p. 293, para. 30). Spain has suggested in its pleadings that "[t]his does not mean that the legal rules and the art of interpreting declarations (and reservations) do not coincide with those governing the interpretation of treaties". The Court observes that the provisions of that Convention may only apply analogously to the extent compatible with the sui generis character of the unilateral acceptance of the Court's jurisdiction.140
While the importance of construing the text as a whole was pointed out, (i) the importance of the intention of the state making the declaration as such, and (ii) the relevance of the context in which the clause was to be read and an examination of the evidence regarding the circumstances of the preparation of the declaration and the purposes intended to be served, could not, according to the Court, be ignored but had to be taken into account.141 In the case in point, explanations of the declaration given at the time it was made in the form of Canadian ministerial statements, parliamentary debates, legislative proposals and press communiques were considered. In the Anglo-Iranian Oil Co. Case the Court in examining reservations paid close heed to the reasons which prompted their inclusion, including the general political problems faced by the government which led it to make the reservation in question. The Court accepted, as an indication of that government's intentions, extraneous evidence of a type not normally admissible, such as a contemporary domestic law which paraphrased a declaration without reproducing it textually. It pointed out that the law in question 140
Ibid.
141
Ibid. at p. 454.
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was published in the corpus of Iranian laws and had, thus, been available for the examination of other governments during a period of almost twenty years, while also explaining that the law was not and could not be relied on, as such, as affording a basis for the jurisdiction of the Court, but had been filed with the sole purpose of throwing light on a disputed question of fact, namely, the intention of the Government of Iran at the time it made the declaration.142 In the Aegean Sea Continental Self Case the Court examined the general political circumstances which led to virtually identical reservations by Greece in its acceptance of the Court's jurisdiction under Article 36 of the PCIJ statute in 1930 and its ratification of the 1928 General Act on the Pacific Settlement of Disputes.143 The Court pointed out that: regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and... the Court asked the Greek Government to furnish it with any available evidence of explanations of the instrument of accession given at that time.144
In the Fisheries Jurisdiction Case the Court, in regard to the place that the principle of effectiveness had in the interpretation of declarations, also said: Certainly, this principle has an important role in the law of treaties and in the jurisprudence of this Court; however, what is required in the first place for a reservation to a declaration made under Article 36, paragraph 2, of the Statute, is that it should be interpreted in a manner compatible with the effect sought by the reserving State.145
Finally, at this point in the development of the approach to interpretation of declarations the Court addressed a special argument raised in the same case by the claimant state relating to consistency 142 143 144 145
1952 ICJ Reports at p. 107. 1978 ICJ Reports at p. 25. Ibid. at p. 29. 1998 ICJ Reports at p. 455.
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with international law of declarations and reservations. The Court said: 53. Spain has contended that, in case of doubt, reservations contained in declarations are to be interpreted consistently with legality and that any interpretation which is inconsistent with the Statute of the Court, the Charter of the United Nations or with general international law is inadmissible... Spain argues that... it is necessary to interpret the phrase "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the NAFO Regulatory area... and the enforcement of such measures" to refer only to measures which, since they relate to areas of the high seas, must come within the framework of an existing international agreement or be directed at stateless vessels. It further argues that an enforcement of such measures which involves a recourse to force on the high seas against vessels flying flags of other States could not be consistent with international law and that this factor too requires an interpretation of the reservation different from that given to it by Canada. 54. Spain's position is not in conformity with the principle of interpretation whereby a reservation to a declaration of acceptance of the compulsory jurisdiction of the Court is to be interpreted in a natural and reasonable way, with the appropriate regard for the intentions of the reserving State and the purpose of the reservation. In point of fact, reservations from the Court's jurisdiction may be made by States for a variety of reasons; sometimes precisely because they feel vulnerable about the legality of their position or policy. Nowhere in the Court's case-law has it been suggested that interpretation in accordance with the legality under international law of the matters exempted from the jurisdiction of the Court is a rule that governs the interpretation of such reservations... the fact that a State may lack confidence as to the compatibility of certain of its actions with international law does not operate as an exception to the principle of consent to the jurisdiction of the Court and the freedom to enter reservations. 55. There is a fundamental distinction between the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law. The former requires consent. The latter question can only be reached when the Court deals with the merits, after having established its jurisdiction...146 146
Ibid.
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The Court applied the particular principles of interpretation of declarations and reservations outlined above in the Fisheries Jurisdiction Case to a reservation in the Canadian declaration which excluded from the Court's jurisdiction "disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the...Area..., and the enforcement of such measures" (paragraph 2(d) of the Canadian declaration). It found, after considering the facts, on the three points which it determined had to be considered in coming to the conclusion that the dispute before it fell within that reservation that: (i) the "measures" taken by Canada in amending its coastal fisheries protection legislation and regulations constituted "conservation and management measures" in the sense in which that expression was commonly understood in international law and practice and had been used in the Canadian reservation;147 (ii) the conservation and management measures taken by Canada were with respect to vessels fishing in the NAFO Regulatory Areas, as defined in the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries, 1978;148 and (iii) the use of force authorized by the Canadian legislation and regulations fell within the ambit of what was commonly understood as enforcement of conservation and management measures and, thus, fell under the provisions of paragraph 2(d) of Canada's declaration, even though the reservation did not in terms mention the use of force, because boarding, inspection, arrest and minimum use of force for those purposes were all contained within the concept of enforcement of conservation and management measures according to a "natural and reasonable" interpretation of this concept.149 147 148 149
Ibid. at p. 463. Ibid. at pp. 463-5. Ibid. at p. 466.
14 ARBITRAL TRIBUNALS OF THE INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
RATIONALE FOR THE INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES (1CSID) The problem for developing countries particularly is how to harness foreign investment for their own development, and at the same time, limit the capacity and potential of foreign investors, especially multinational corporations (MNCs), for unlimited exploitation and influence. Clearly, as pointed out by the Report of the Group of Eminent Persons in 1974, there remains much to be done substantively through the medium of the international convention and international organization, both to promote the role of foreign investment, particularly through the MNC, in development and to control its operations in such a way as to ensure maximum protection and benefit for the host State's economy.1 However, no system of controls or 1
See Report of a Group of Eminent Persons, The Impact of Multinational Corporations on the Development Process and on International Relations,
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protection would be complete or effective without machinery for the settlement of disputes between investors and host countries.2 The existence of unresolved disputes could be an obstacle to the smooth transfer of resources from one country to another, whether developed or developing, but particularly from the developed to the less developed world through private organizations. Not only could these disputes affect relations between the parties to the disputes, but they could influence both present and future relations between the host countries concerned and other foreign investors. Therefore, future transfers of resources could also be affected. The prospect that disputes can finally be settled not only allows the foreign investor greater confidence in investing particularly in developing countries, but might act as a deterrent to host countries and investors indulging in wrangling or arbitrary behavior. It was in this spirit that the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention)3 was conceived and the International Centre for Settlement of Investment Disputes (ICSID) was established. As the Report accompanying the Convention states, the intention was to strengthen partnership among countries concerned with economic development4, while conceding that, irrespective of the Centre, private capital would continue to flow to attractive developing countries but that the adherence to the ICSID Convention by a prospective host state would induce and stimulate a large flow of private capital to it.5 International transactions, including investment transactions, are governed by legal regulation at the private level, as amongst the 13 ILM (1974) p. 800. For a discussion of private foreign investment as a fact of international life, see Amerasinghe, State Responsibility for Injuries to Aliens (1967) pp. 7 ff. 2 The Report referred to does mention The International Centre for Settlement of Investment Disputes as a mechanism for the settlement of disputes between multinational corporations and host states: loc. cit. note 1. 3 [1996] 575 UNTS 159 (the ICSID Convention). The Convention was concluded in 1965. 4 Report accompanying the Convention at p. 16 #2 (para. 9). Hereafter referred to as the Report. 5 Ibid. at p. 4 (para. 12).
Rationale for the ICSID
619
parties themselves, generally through contracts, at the national level, by the law of the national and host states involved in the transaction, and at the international level, by international legal norms which primarily bind states while impacting also private foreign corporations and individuals. Correspondingly, disputes arising from foreign investment may be settled by negotiated settlement between the parties, by national courts and arbitral bodies, or by tribunals set up between the parties to the investment agreement or transaction which have an international character, whether these tribunals are constituted under the aegis of an arbitration centre or not, but which do not operate on the international plane, or by international tribunals established between states in the context of diplomatic protection or lastly by institutions set up by states under international conventions to settle disputes in lieu of diplomatic protection by permitting an international forum to deal directly with the parties to the investment transaction so that the settlement takes place, so to speak, in the context of the international legal system. The drawbacks as perceived by foreign investors of settlement by domestic courts, whether real or not, are well known.6 Arbitration with a private international character instituted purely between parties, whether under the auspices of a body, such as the International Chamber of Commerce or the Kuala Lumpur or Colombo Arbitration Centre, or not, also has real weaknesses. Particularly, the effectiveness of the arbitration may be affected by the failure of a party to appoint an arbitrator or the failure of an arbitrator to act and, in any case, enforcement of the award given in whatever way, if the losing party refuses to execute it, is subject to national laws regarding the enforcement of arbitral awards, in the event that the state in whose courts enforcement is sought has not ratified and given effect to the Geneva Convention on the Implementation of Foreign Arbitral Awards of 1927 or the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958.7 Moreover, even if 6
See Hirsch, The Arbitration Mechanism of the International Centre for the Settlement of Investment Disputes (1993) p. 8 ff. 7 See Delaume, Transnational Contracts, Law and Practice (1998) pp. 199 ff., 337.
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those conventions are applicable, they still allow for significant exceptions in which the award will not be enforced.8 The ICSID Convention was designed to take care of some of the concerns generated by the existing state of affairs. The fear of political risks undoubtedly operates as a deterrent to the flow of private foreign capital to developing countries. Under customary international law, if an investor feels aggrieved by actions of the host government and has found no redress through the exercise of local remedies, he may seek the protection of his national government. Even if the investor's government is willing to give that protection, however, there is no guarantee that the host government will be willing to submit the dispute to the jurisdiction of an international tribunal or other arbitral body. Moreover, the investor's government may not be willing to take up a claim by the investor, because of fear that such an action would be regarded as an unfriendly act by the host government and interfere with bilateral relations on other matters. In an attempt to overcome these difficulties some large investors have negotiated arbitration agreements with host governments providing for detailed rules regarding the selection of arbitrators, the arbitral procedure, and in some cases, the law to be applied by the arbitral tribunal. The host government may, however, deny the validity of the arbitration agreement or repudiate it, and in that event the investor can ultimately resort only to such assistance through diplomatic protection as his own government may be willing to give him. The solution to the problem was, thus, seen to lie
8
These conventions are to be found respectively in 52 UNTS pp. 302 and 330 UNTS p. 138. Even these treaties admit significant exceptions to the obligation of enforcement, e.g., ultra vires acts on the part of the arbitrators, deficiencies in the arbitration procedure, the setting aside or suspension of the award by a court of the state in which the arbitration took place, the matter in dispute cannot be settled by arbitration under the law of the state in which enforcement is sought or the award is contrary to the public policy of that state: Article 2 of the above mentioned Geneva Convention, Article 5 of the above mentioned New York Convention. See also Delaume, op. cit. note 7 p. 342, David, Arbitration in International Trade (1985) pp. 396 ff.
Outline of the system under the ICSID Convention
621
in arrangements, embodied in a treaty, ensuring that arbitration agreements voluntarily entered into would be implemented.9 While the concern seems to have been with the investor's problems, it may be questioned whether host states' interests are adequately protected, considering that ICSID is closely associated with the World Bank which is dominated by the national states of the usual foreign investor. It would have been more equitable to establish a Centre not so connected so that host states would have had less pressure on them on the institutional side. But this raises issues which it is unnecessary to discuss here. In general it must be recognized that the ICSID Convention requires for arbitration under its auspices that (1) the host state and the national state of the foreign investor be parties to the Convention, i.e., have consented to the ICSID system, and (2) there be consent to submit to the arbitration system of ICSID on the part of both the host state and the investor, while there are some other requirements which are as basic and which must be satisfied.
OUTLINE OF THE SYSTEM UNDER THE ICSID CONVENTION10 (a) Proceedings for Arbitration The Convention provides two distinct types of proceedings for dispute settlement, conciliation (articles 28-35) and arbitration (articles 36-55). Parties to arbitration proceedings must "abide and comply with the terms of the award" (article 53(1)). If during the course of arbitration proceedings the parties reach agreement, they may request the tribunal to incorporate it into an award, with 9
See David, ibid. pp. 395 ff., Rubino-Sammartano, International Arbitration Law (1990) pp. 495 ff. 10 For the legislative history of the Convention see International Centre for Settlement of Investment Disputes, Convention on the Settlement of Investment Disputes Between States and Nationals of Other States—Analysis of Documents Concerning the Origin and the Formulation of the Convention (1970) [hereafter cited as History].
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the result that the provisions of the Convention relating to the enforcement of awards will be applicable.11 Arbitration proceedings are administered by ICSID, an international institution created by the Convention that has its seat in Washington, D.C. ICSID, which is essentially a secretariat, is governed by an Administrative Council to which each state that is a party to the Convention appoints a representative with one vote. The Council has an ex officio Chairman (without vote), the President of the World Bank. The Administrative Council adopts for arbitration proceedings under the auspices of ICSID, administrative and financial regulations, rules of procedure for the institution of proceedings (Institution Rules) and rules of procedure for arbitration proceedings (Arbitration Rules).12 The latter governs proceedings unless the parties agree otherwise.13 The principal officer of ICSID is the Secretary-General. He is also the registrar. ICSID maintains a Panel of Arbitrators. Each contracting state may designate to the panel four persons who may, but need not be, its nationals, and the Chairman of the Administrative Council may appoint ten persons to the panel. ICSID does not itself arbitrate. The proceedings are conducted by arbitrators appointed in accordance with the provisions of the Convention, and the parties themselves have broad discretion.14 However, a failure of agreement on their part will not thwart the constitution of an Arbitral Tribunal. The majority of the members of the tribunal must be of a nationality other than that of the state 11
International Centre for Settlement of Investment Disputes, "Rules of Procedure for Arbitration Proceedings", ICSID Regulations and Rules, (doc. ICSID/4), Rule 43(2) [hereafter cited as ICSID/4]. 12 See International Centre for Settlement of Investment Disputes, Model Clauses Recording Consent to the Jurisdiction of the International Centre for Settlement of Investment Disputes (Doc. ICSID/5), [hereafter cited as Model Clauses]. For a discussion of these clauses see Amerasinghe, "Model Clauses for Settlement of Foreign Investment Disputes", 28 Arbitration Journal (1973) p. 232. 13 The definitive Regulations and Rules were adopted by the Council on September 25, 1967, pursuant to Article 6(l)(a)-(e) of the ICSID Convention, and took effect on January 1, 1968. The current versions are reproduced in ICSID/4. 14 ICSID Convention, Art. 44.
Outline of the system under the ICSID Convention
623
which is a party to the dispute. The parties may only depart from this rule by agreement, if each member of the tribunal (or the sole arbitrator) has been appointed by agreement of the parties (Article 37(2)(a) and 39). If the parties have failed to appoint the tribunal within ninety days after registration by the Secretary-General of the request for arbitration, the remaining designations will be made by the Chairman of the Administrative Council (Article 38— arbitration). The parties may, but need not, appoint arbitrators from the Panels, but the Chairman is restricted to the Panels when he makes the appointments.15 The jurisdiction of arbitral tribunals set up under the auspices of ICSID, which is discussed here, is not only important but is of a special nature. The Convention provides that arbitral tribunals shall be the judges of their own competence. There are some special matters relating to arbitration. Unless the parties have given the tribunal the power to decide a dispute ex aequo et bono, the tribunal must decide in accordance with such rules of law as may be agreed by the parties. The Convention thus establishes complete party autonomy on the question of law to be applied by the tribunal. However, in the absence of agreement, the tribunal must apply the law of the state party to the dispute (including its conflicts rules) and such rules of international law as may be applicable (Article 42). A decision cannot be refused on the ground of non liquet (Article 42(2)). The Convention provides for an award to be rendered notwithstanding the default of one of the parties. It expressly states, however, that failure of a party to appear or to present its case shall not be deemed an admission of the other party's assertions. That party will, therefore, still have to prove its case (Article 45). The tribunal decides all questions by a majority vote of its members and its awards must be in writing, deal with every question submitted, and state the reasons upon which they are based (Article 48). The Convention provides three types of remedies against an award: (1) a request for interpretation (Article 50); (2) a request for revision on the basis of discovery of new facts (Article 51); and, 15
ICSID Convention, Art. 40.
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(3) a request for annulment on a limited number of grounds (Article 52). Subject to these remedies provided by the Convention itself, the award is final and binding on the parties (Article 53). Furthermore, each contracting state must recognize an award rendered pursuant to the Convention as binding, regardless of whether it, or one of its nationals, was a party to the dispute, and must treat the pecuniary obligations of the award, upon its certification by the SecretaryGeneral of ICSID, as if they were a final judgment of a court in that state. Moreover, they must enforce them as such (Article 54), subject to any exceptions permitted by its law on the ground of sovereign immunity (Article 55). There are special provisions for enforcement in federal states (Article 54). (b) Special Features of ICSID The Convention provides several apparent advantages for participating states. First, a host state that agrees to arbitrate a dispute with a foreign investor is assured that the investor's national state or states will not give him diplomatic protection or bring an international claim on his behalf,16 thereby minimizing the opportunities for intervention by other states in its affairs. Second, the host state may require the exhaustion of local remedies as a condition of its consent to the use of ICSID.17 Third, unless there is agreement between the parties on another law, the law applicable in an arbitration is that of the host state.18 Fourth, in view of the participation of state organs in proceedings under ICSID, the procedural requirements have been kept flexible enough to avoid automatically imposing on states any burdens they might consider unacceptable in view of their special status as parties to a litigation with a private person. Fifth, the Convention makes it possible for a contracting state to offer an investor an invulnerable disputes settlement procedure, without having to submit thereby to some foreign jurisdiction or undertake an inter-state litigation with the investor's state. Last, the host state also enjoys the certainty that a pecuniary arbitral award will be treated 16 17 18
ICSID Convention, Art. 27. ICSID Convention, Art. 26. ICSID Convention, Art. 42.
Outline of the system under the ICSID Convention
625
by the courts of any member state as if it were a final judgment of a court in that state.19 Host states are not the only ones to "benefit" from the Convention, however. The Convention affords private persons the only institutionalized international forum for litigating with states and its jurisdictional requirements concerning nationality are less restrictive than those of the nationality of claims rule.20 Also, private persons may invoke the jurisdiction of ICSID against state organs and constituent subdivisions.21 Further, private investors are in a position, though to a lesser extent than states, to secure execution of an arbitral award against their adversaries.22 Another feature rests in the fact that the clause dealing with settlement of disputes by ICSID in an agreement between host state and investor is firmly rooted in international law because of the coverage of the ICSID Convention. Even repudiation of the principal agreement would not deprive the other party of the right to resort to ICSID. The parties would also be certain that any proceeding properly instituted under the auspices of ICSID would actually take place and, in the case of arbitration proceedings, result in due course in an arbitral award. This result would hold true regardless of the other party's failure to participate in the constitution of the commission or tribunal or in the proceedings. Provision is also made in the Convention for a fall-back procedure, if the parties cannot, or do not, agree on a procedure.23 Similarly, a finding of non liquet on the ground of silence or obscurity of the law cannot be brought by a tribunal.24 The Convention also enables a state, whose investors might wish to seek its protection, to avoid the embarrassment of foreign conflicts by persuading or otherwise inducing them to rely on ICSID, removing any disputes from the inter-governmental level.25 19 20 21 22 23 24 25
ICSID Convention, Art. 54. ICSID Convention, Art. 25(2). ICSID Convention, Art. 25(1) and (3). ICSID Convention, Arts. 54, 55. ICSID Convention, Art. 44. ICSID Convention, Art. 42(2). ICSID Convention, Art. 27.
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INSTITUTIONAL JURISDICTION—ITS SCOPE AND LIMITATIONS The ICSID Convention refers to consent as a required basis of jurisdiction. As will be seen, consent has two aspects but the requirement of consent is in keeping with the fundamental principles of international adjudication. But beyond consent there are certain institutional limits imposed by the Convention itself on the jurisdiction of an arbitral tribunal, which are as basic and important. The provisions of the Convention specify in addition to consent broadly three other requirements which must be satisfied, if an arbitral tribunal constituted under the Convention is to have jurisdiction. These are reflected in Article 25 of the Convention.26 There are two institutional requirements under Article 25 which come under the head of jurisdiction ratione materiae: the dispute must be a legal dispute and it must arise directly out of an investment. The third requirement concerns the nature of the parties. One party must be a state (or one of its constituent subdivisions or agencies), while the other party must be a foreign national. This condition concerns jurisdiction ratione personae. There are two other sources of jurisdictional limitation which need to be mentioned. First, under Article 25(4) a state party to the Convention may at the time it becomes a party or at any time thereafter specify the class or classes of disputes it would submit to the Centre. Second, there may be exclusionary provisions in the consent given by a party to a dispute to submission of disputes to the Centre. The latter clearly may be overridden by a later act of unilateral or other consent but, as long as the exclusions remain unchanged, they would constitute jurisdictional limitations on an arbitral tribunal. All these jurisdictional limitations and requirements relate to competence, not to recevabilite. (i) Interpretation The general approach to interpretation of jurisdictional instruments has been discussed in Chapter 4. Significantly, in connection with 26
See Article 25(1) and (2).
Institutional jurisdiction—its scope and limitations
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ICSID arbitration, in the Amco Arbitration27 the tribunal in effect took the view that there was no presumption in interpreting the jurisdictional provisions of the ICSID Convention that these should be restrictively interpreted, but that they should be interpreted so as fully to respect the common will of the parties and the principle pacta sunt servanda. While it is true that an international tribunal, particularly in relation to sovereign states, is ajuge d'exception, it is also true that jurisdictional clauses must be interpreted teleologically—ut magis valeat quam pereat—so as to sustain as far as reasonably possible the existence of jurisdiction.28 The tribunal was correct in emphasizing that a broad interpretation of a jurisdictional clause is also not contemplated, although, if a restrictive approach is not adopted, one school of thought would have it, not necessarily correctly, that what is left is a broad and liberal approach. The tribunal was, thus, justified in trying to establish a via media and in stating that (i) the intrinsic object is to establish the common will of the parties and (ii) the principle of good faith should be applied. Clearly these principles of interpretation which are acceptable, though not exclusively complete, apply both to the construction of the ICSID Convention and to arbitration clauses submitting disputes to settlement. The approach taken by the tribunal in its interpretation would lead an analyst to affirm three basic principles.29 First, consent between the parties to the arbitration is very important for ICSID tribunals.30 One result of this is that, where the parties agree that a requirement of jurisdiction relating to the nature of the parties set 27
23 ILM (1984) p. 351 (Amco v. Indonesia). Free Zones of Upper Savoy and the District of Gex (1929) PCIJ Ser. A No. 22, at p.13. See also Lauterpacht, "Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties" 26 BYIL (1949) at pp. 48, 65, 71. 29 Amerasinghe, "Jurisdiction Ratione Personae under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States," 47 BYIL (1974-5) p. 227 at p. 229 particularly. 30 See Broches, "The Convention on the Settlement of Investment Disputes between States and Nationals of Other States" 136 Hague Receuil (1972) at p. 351. The writer uses the term "cornerstone of the jurisdiction" which is also to be found in the Report, at p. 8, para. 23. 28
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down in the jurisdictional clauses of the Convention is satisfied, such agreement would prima facie be respected, provided such agreement does not conflict either expressly or implicitly with the terms of the Convention. This also means that, where the parties agree to submit disputes to an ICSID tribunal's jurisdiction, there is a presumption, clearly rebuttable though it is, that these jurisdictional requirements have been satisfied. Second, where there is an agreement submitting disputes to an ICSID tribunal, the requirements of the ICSID Convention must be interpreted as defining the circumscribing parameters of an ICSID tribunal's jurisdiction, while leaving room for legitimate agreement. Third, as a consequence of these two principles, where there is an agreement to submit to ICSID arbitration, there is arguably a presumption in favorem jurisdictionis of an ICSID tribunal which has to be displaced. This third principle is further supported by the course of action relating to jurisdiction taken by the tribunals in the Amco Arbitration and two more recent arbitrations.31 The principle, however, is tempered in its application by reference to the statement made by the tribunal in the Amco Arbitration which espoused a via media requiring interpretation to be neither liberal or restrictive, and which precludes too broad and unlimited an interpretation of the principle.32 An important question that arises relates to the use of the preparatory work of the ICSID Convention in interpreting particularly the jurisdictional provisions of the Convention. A word needs to be said about the relevance and use of travaux preparatoires in treaty interpretation in general. The Vienna Convention on the Law of Treaties of 1969 makes it clear in Article 32 that resort to the preparatory work is essentially a subsidiary means of interpretation and permissible only when (i) the text is ambiguous or obscure or (ii) the meaning given to the text by the application of the primary rules of interpretation lead to manifest absurdity or a manifestly 31
Societe Quest Africaine des Betons Industries v. Senegal, 6 ICSID Review—Foreign Investment Law Journal (1991) p. 215 (SOABIArbitration), and Liberian Eastern Timber Corporation v. Liberia, 26 ILM (1987) p. 647 (LETCO Arbitration). 32 23 ILM (1984) at pp. 359 ff.
Institutional jurisdiction—its scope and limitations
629
unreasonable position. This provision reflects the better view of the pre-existing customary law. While preparatory work was frequently used, especially by the PCIJ and ICJ, to support or confirm the natural and ordinary meaning of a text,33 in general there was no precedent for its being used to modify the clear and precise provisions of a treaty.34 It had also been said, before the Vienna Treaty Convention, that where a common intention of the parties could be found in the travaux preparatoires which differed from the ordinary meaning of the text the travaux preparatoires could be used to modify the text.35 This is in conflict with Article 32 of the Vienna Treaty Convention. Since the ICSID Convention predates the Vienna Treaty Convention, it creates difficulty as to the position to be taken in relation to the interpretation of the ICSID Convention. On the other hand, the position taken in the Vienna Treaty Convention seems to have been that of the PCIJ and ICJ prior to the Convention, the approach of which demonstrated that the Court was reluctant to resort to the preparatory work, where the text was clear, except to support the interpretation given.36 Indeed, there is no evidence that the preparatory work has ever been used to controvert a meaning which is taken to be clear. Further, there is no evidence that the preparatory work has yet been resorted to to establish a meaning even in conformity with the conditions prescribed by Article 32 of the Vienna Treaty Convention. The problems encountered with the use of preparatory work raise questions principally with regard to (i) the identification of a common intention in the preparatory work, especially in the case of a multilateral convention such as the ICSID Convention, particularly where there are no agreed declarations or minutes, because often there is no clear expression of agreement with a view 33
See Waldock, Third Report on the Law of Treaties, 2 YBILC at p. 58. See, e.g., Roumanian Minister of War v. Turkish Government [1928], Case No. 297, AD 1927-8 at p. 433. 34
35 36
Ibid.
See McNair, Law of Treaties (1961) at pp. 412 ff. For an interesting, accurate, but somewhat incomplete discussion of the problems connected with preparatory work see Sinclair, The Vienna Convention on the Law of Treaties (1984) pp. 141 ff.
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expressed on the part of all participants and silence does not necessarily mean acquiescence, (ii) assuming that a common intention can be established, whether it should be taken account of at all, when it does not support the ordinary and natural meaning of the text but conflicts with it in circumstances which are not those referred to in Article 32 of the Vienna Treaty Convention, (iii) whether the travaux preparatoires, where agreement can be identified, can be used to fill in gaps in the final product, and (iv) the force of commentaries such as the Report in interpreting the Convention, whether the meaning of the text is clear or not. All four problems are highly relevant to the interpretation of the jurisdictional clauses of the ICSID Convention.37 Preparatory work can only be relevant where it reveals a common intention of the parties to the ICSID Convention. The principle was recognized in the Roumanian Minister of War Case.38 Thus, in the case of the ICSID Convention the application of this principle would strictly exclude the records of the work of the Legal Committees which were not intended to be composed of properly accredited government representatives, even if a common intention could appropriately be found, which is usually a difficult task anyway.39 As for the commentary attached to the Convention which was apparently approved, though not specifically, by consensus together with the Convention by the representatives of member states of the World Bank on the Board of Governors, the question really is, as already pointed out, how far what is said in the commentary can change the explicit meaning of the text of the Convention. While the views expressed therein may be regarded as "agreed", so that they conceivably reflect a common intention, it is not possible that they 37
The problem of statements made, even by parties to a treaty, in the preparatory work in relation to the establishment of a common intention which is what is required has not been thoroughly discussed hitherto. Apart from the recognition that statements made may have been implicitly abandoned in the end in order to reach an agreement, not much has been said on the positive side about how a common intention can be established other than that such intention may be recorded in a statement agreed to by all the parties to the negotiation. 38 See above note 34. 39 See footnotes 36 and 37 above.
Institutional jurisdiction—its scope and limitations
631
can change the ordinary and clear meaning of the text as construed by reference to the primary methods of interpretation, where there may appear to be a conflict. What is said above becomes relevant in establishing the true relationship between consent of the parties to a dispute brought to the ICSID and the fundamental restrictions contained in the earlier part of Article 25(1) of the ICSID Convention, which is discussed below. In the light of the above it would be a mistake to attribute too much weight to the ideas that consent is "the cornerstone of the jurisdiction of the ICSID" or that the Convention specifies only the "outer limits of jurisdiction" in the face of consent which are to be found in the Report.40 (ii) Consent There are two aspects to the requirement of consent. (a) First, in so far as Article 25(1) requires a dispute submitted to an ICSID tribunal to be "between a Contracting State...and a national of another Contracting State", both the state party to the dispute and the national state of the other party must have agreed to the jurisdiction of ICSID tribunals by becoming parties to the Convention. In other words, there must be a "consent" to arbitration between the states directly or indirectly related to the dispute, as parties to the ICSID Convention. The requirement of consent between states does not mean that, at the time the second requirement of consent between the actual parties to the dispute dealt with below is satisfied, the concerned states should already have given their consent to the exercise of jurisdiction by an ICSID tribunal. That consent could be given before or after the second requirement is satisfied but must clearly be given before the dispute is brought before an ICSID tribunal. While the ICSID Convention does not specifically deal with this situation, it is a reasonable interpretation—ut magis valeat quam pereat—that what is required under the Convention is that the two 40
See Report at p. 8.
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Chapter 14. Arbitral tribunals of the ICSID
sets of consent be coexistent at the time the relevant dispute is submitted for settlement to ICSID. In connection with the consent to ICSID's jurisdiction between the relevant states a question that arises is whether consent once given may be withdrawn. The Convention specifically states in Article 71 that the Convention may be denounced by a contracting state by written notice. The problem is whether such a denunciation, when it takes effect, can have an impact on the consents given inter se by potential parties to a dispute by depriving the latter consents of effect, because there is no longer consent to ICSID's jurisdiction between the relevant contracting states. Article 72 of the Convention addresses this problem by providing that such notice of denunciation by a contracting state "shall not affect the rights or obligations under the Convention of that State or of any of its constituent subdivision or agencies or of any national of that State arising out of consent to the jurisdiction of the Centre given by one of them before such notice" was given. The general principle of customary law, as stated in Article 42 of the 1969 Vienna Convention on the Law of Treaties, is that "the termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty...". Consequently, denunciation or withdrawal may only take place subject to Article 72 of the ICSID Convention. The effect of Article 72 is that the denouncing state continues to be a party to the Convention vis-a-vis the particular consents to arbitration already given under Article 25 of the Convention. Thus, the requirement of consent between states is fulfilled as regards these particular consents and the state concerned may be a complainant or respondent in arbitrations arising from such consents, while nationals of that state may similarly be such complainants or respondents, because the consent of their national state survives the denunciation and continues to be effective. Such nationals continue to be nationals of a state party that has agreed to the application of the arbitration system of the Convention in regard to the consents given by that national. There is one circumstance where the particular consent given under Article 25(1) of the Convention may become ineffective, not
Institutional jurisdiction—its scope and limitations
633
because the consent of the state party to the Convention is withdrawn impliedly but because of other circumstances. Where a state party to the Convention ceases to exist without state succession taking place, the consent given by it to being a party to the Convention terminates and any particular consents to arbitration given by it pursuant to Article 25 would cease to be enforceable or, indeed, valid, because it is no longer a party to the Convention. Its agreement to the Convention system has come to an end. Similarly its former nationals would not be able to take advantage of particular consents given by them or to them, because they have ceased to be nationals of a state party to the Convention as required by Article 25. They no longer have a national state which has agreed to the arbitration system of the Convention by being a party to it. (b) Second, there is a requirement that there be consent to submission of a dispute to ICSID arbitration by the parties to the dispute itself. This has been described dubiously, as already mentioned above, as the "cornerstone of the jurisdiction" of ICSID. This may be termed the secondary consent. Because it is secondary, at all times it must genuinely be subject to the conditions established for jurisdiction in the Convention by the primary consent between states. The latter cannot be described properly as only "outer limits" per se. The Convention requires only that this consent be in writing.41 Thus, it is not necessary that the consent of both parties be included in a single instrument. The consents may, indeed, be expressed in instruments of completely diverse character, and not necessarily addressed to the other party or made with particular reference to any dispute or arrangement with it.42 The consent of the host state may be expressed in some legislative act, such as an investment promotion law, or in a bilateral or multilateral agreement with the investor's own state. Both these possibilities have already been used to some extent, and ICSID has issued model clauses 41
ICSID Convention, Art. 25(1). Report at p. 8 (para. 24). It will be noted below that, if the party to a dispute is a constituent subdivision or an agency of the government, its consent must be approved by the contracting state concerned, unless such a state has already notified ICSID that its approval is not required. 42
634
Chapter 14. Arbitral tribunals of the ICSID
designed for the latter purpose.43 On the investor's part, unilateral expression of consent might appear in general form in a charter or other instrument of incorporation, or in a by-law or resolution. The consent of both parties must exist at the time a request for arbitration is filed with the Secretary-General. If such a request fails to show that both parties have consented, then he must refuse to register it.44 There is no requirement that the consents either precede or follow the incidence of a particular dispute. Thus, consent may be expressed in general terms to cover any future disputes that might arise out of a transaction. Consent may also be given after a dispute has arisen and be expressly limited to that dispute. It does not matter that the underlying transaction or even the dispute itself antedates the Convention. The considerable freedom allowed by the Convention for instruments of secondary consent does not mean that legal caution may be completely abandoned. For example, the consent to the jurisdiction of ICSID must be expressed unambiguously and in a manner which does not require further action by the "consenting" party. Thus legislative or charter provisions, which may ostensibly appear to be a general consent to submission of certain types of disputes to ICSID, may merely constitute an authorization for some appropriate organ of the state or the investor to submit to the jurisdiction of ICSID. Hence, even when such a provision contains an obligation to agree to submit, the view may be taken that this obligation is merely an internal matter, without external effect, until the competent organ has taken the necessary steps. Furthermore, when consent is expressed in diverse instruments, it is only where the language coincides that the consent is both effective and irrevocable. Thus, an investment promotion law might provide for the submission of any dispute relating to or arising out of the application of that legislation, while the investor may have agreed to submit any dispute arising out of the particular instrument under which his investment 43
International Centre for Settlement of Investment Disputes, Model Clauses Relating to the Convention on the Settlement of Investment Disputes; Designed for Bilateral Investment Treaties (Doc. ICSID/6). 44 ICSID Convention, Arts. 28, 36.
Institutional jurisdiction—its scope and limitations
635
was made. When an actual dispute arises, it may be found to come within the terms of one instrument but not the other. There are some special consequences of a valid consent under the Convention which should be noted. First, the consent will remain valid even though the larger agreement or arrangement in which it is found is not legally valid or has been legally terminated. This is true because the consent is not only governed by international law, but is also by its very nature an agreement sui generis under the Convention. Secondly, neither party can revoke its particular consent once given.45 The effect of the termination of primary consent has been discussed above. Thirdly, consent to arbitration is deemed to be an agreement excluding all other remedies, unless an express reservation is made.46 Fourth, the date of the consent tends to fix the mutual rights and obligations of the parties with respect to proceedings under the Convention. Thus, no subsequent amendment to that instrument, and no subsequent change in the Arbitration Rules, can be applied to a proceeding initiated pursuant to an earlier consent,47 even if the proceeding is not instituted until after the change in the Convention or the Rules has been performed, unless, of course, both parties agree to take account of such change. Last, once consent to arbitration has been given, the contracting state of which the private party is a national is precluded from giving "diplomatic protection," or from bringing "an international claim" with respect to such a dispute.48 (iii) Competence Ratione Materiae With regard to the nature of disputes within ICSID's jurisdiction, Article 25 requires that they arise directly out of an investment and concern legal disputes. (a) The Convention does not define the term investment.49 Nevertheless, a stipulation by the parties that they consider the transaction to be an investment would be helpful in settling the 45 46 47 48 49
ICSID Convention, Art. 25(1). ICSID Convention, Art. 26. ICSID Convention, Arts. 33, 44, 66(2), which states the matter correctly. ICSID Convention, Art. 27. See Report at p. 9 (para. 27).
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Chapter 14. Arbitral tribunals of the ICSID
question. The meaning of the term "investment" in the context of Article 25, however, cannot be said to be subjective. It is not without objective significance. There are limitations. Disputes may be of such a nature that they obviously do not relate to an investment. In such a case, despite express stipulation by the parties, ICSID would lack jurisdiction. However, the context of the Convention seems to suggest that a fairly broad approach to the interpretation of this term in Article 25 is warranted. Conceivably, all assets are not included in the definition of investment.50 Equally possible, however, is the inclusion of even consultants' contracts within the term "investment" under appropriate circumstances. The duration of the agreement, the regularity of profit or return,51 and the surrounding circumstances of the agreement would all be relevant factors in the decision. Thus, not only bonds, but a consultant's contract that is part of a production contract or of a larger complex of production contracts stretching over a considerable length of time could be considered an investment. Any transfer of resources, whether money, goods, services, or all three, could be an investment, depending, of course, on such other factors as return or profit motive, the spread out feature of return, duration and the like. An ordinary sales contract, therefore, would not normally be an investment.52 There must also be a "direct" connection between the dispute and the investment. (b) While it has been stated by the ICJ that the mere assertion by the claimant that a dispute exists53 or the mere denial by the respondent party that a dispute exists54 is not conclusive of either fact, a dispute has been defined in the Mavrommatis Case as a 50
See the comprehensive discussion of the meaning of "investment" in Amerasinghe, "The Jurisdiction of the International Centre for the Settlement of Investment Disputes," 19 IJIL (1979) at pp. 177 ff. 51 See Hanson, A Dictionary of Economics and Commerce (1974) p. 281 for a definition for the purpose of finance; Gilpin, Dictionary of Economic Terms (3d ed. 1973) p. 114. See now the Mihaly Arbitration (2002)-website www.world bank.org/iesid. 52 The fact that the Additional Facility attached to ICSID was created supports the idea of limitation. See now the Mihaly Case (ICSID, 2002), ICSID website. 53 The South West Africa Cases, 1962 ICJ Reports at p. 328. 54 The Peace Treaties Case (1), 1950 ICJ Reports at p. 74.
Institutional jurisdiction—its scope and limitations
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disagreement on a point of law or fact, a conflict of legal views or of interests between two parties.55 The question whether the requirement of disagreement or conflict is satisfied would often become moot, especially if a request and answer are filed with the Centre. The ICJ has stated that the mere existence of conflicting interests between the parties,56 a mere institution of proceedings,57 or a purely theoretical disagreement on a point of law or fact,58 is not conclusive of the existence of a dispute. What is required seems to be that the claim of one party must be positively opposed by the other,59 that a protest or claim should be made by the other party,60 or that the claim should be taken up directly with the other party.61 It may well be in a given situation that a positive requirement for the existence of a dispute is lacking, because the claim has not been taken up with the other party before the request was filed. In such a case it is doubtful whether the request by itself would constitute the necessary element, particularly if the dispute, as such, must exist at the time the request is filed.62 Theoretically, it would be possible for a tribunal to find proprio motu or otherwise that this positive element is lacking, but it is unlikely that the kind of situation in which such a finding would be made would arise. Thus, while the requirement may help to avoid two remote possibilities: first, that a request be filed without a genuine effort to inform the other party so that a settlement may emerge, and second, that a frivolous request be filed, when in fact the other party does not propose to oppose the claim but to acknowledge it, it would seem that the requirement being discussed is not likely to cause problems. Another point of more practical value which emerges from the jurisprudence of the ICJ is connected with the holding in the Asylum 55
PCIJ Series A, No. 2 at p. 11. See also the Polish Upper Silesia Case, PCIJ Series A, No. 6 at p. 14. 56 The South West Africa Cases, 1962 ICJ Reports at p. 328. 57 Judges Fitzmaurice and Spender, ibid. at pp. 547 ff. 58 Judge Morelli, ibid. at pp. 566 ff. 59 The Court, ibid. at p. 328. 60 Judge Morelli, ibid. at pp. 566 ff. 61 Judges Fitzmaurice and Spender, ibid. at pp. 547 ff. 62 Judge Morelli, ibid. at p. 566.
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Case (Interpretation)63 that, where an interpretation of a judgment is sought, there must be a divergence of view on specific points in the judgment rather than an assertion that the judgment is unclear when the other party finds it clear. In the context of the Convention the principle involved in this statement would warrant a requirement that the request disclose disagreement on the treatment of the claimant related to the investment. A condition for the existence of a dispute between the parties which has come into prominence recently is that the parties must have a right or interest in regard to the subject matter of the dispute. This condition was predicated by the ICJ in the South West Africa Cases (Second Phase).64 It means, among other things, that it is inadequate that someone other than the party concerned has the required right or interest. This requirement may also turn out to be academic in cases presented to the Centre, since the consent agreement submitting disputes to the Centre would normally relate to disputes arising from investments made by one party in the territory of the other. However, in a situation where, for example, a host state has made a general consent agreement with several persons submitting investment disputes to the Centre, the above rule might have the consequence that one of those persons could not submit to the Centre a disagreement arising from the treatment of the investment of another of those persons, because he did not have the required right or interest in regard to the host state's action. It is apparent that the request should disclose a dispute as being in existence at the time the request is filed.65 Hence, it would be inadequate that the requirement for the existence of such dispute is satisfied after the request was filed. In such a case the tribunal 63
1950 ICJ Reports at p. 403. 1966 ICJ Reports at p. 42. See also Judges Fitzmaurice and Spender in the South West Africa Cases, 1962 ICJ Reports at p. 547. A legal right or interest is not to be confused with a material interest which is not a prerequisite for the existence of a dispute between parties; see by implication the judgment of the Court in the same case, ibid. at p. 343. 65 See Judge Morelli in the South West Africa Cases, ibid. at p. 566, in relation to disputes before the ICJ. 64
Institutional jurisdiction—its scope and limitations
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would, nevertheless, be compelled to declare itself without jurisdiction, because there was no dispute. Negatively, some indication may be given of factors which clearly are not relevant to the finding that there is no dispute. One of the many suggestions made at the consultative meetings of legal experts held in connection with the formulation of the Convention was that disputes which had arisen before the consent to the jurisdiction of the Centre was given should be excluded from the purview of the Centre.66 The suggestion was finally not accepted. There is no reason, based on the text of the Convention, that the term "dispute", as used in Article 25(1), be construed as including only disputes which arise after the consent of the parties to the Centre's jurisdiction had been given. It has also been held in a separate opinion in the ICJ that for the purposes of deciding whether a justiciable dispute has arisen it is not necessary either that a final deadlock between the parties should have been reached,67 or that either party should have made a threat of judicial (or, for that matter, other) proceedings.68 The negative conclusions contained in this opinion are undoubtedly applicable to the jurisdiction of the Centre. Further, the PCIJ has held that diplomatic negotiations are not necessary in order to make a dispute justiciable by it.69 For the Centre's jurisdiction the holding clearly warrants the conclusion that not only are diplomatic negotiations between the states concerned not necessary to bring a dispute within the Centre's jurisdiction, but that even the conclusion or initiation of negotiations between the parties is not a sine qua non for this purpose, in the absence of express agreement between the parties. (c) Assuming there is a dispute, the next question raised is whether the dispute is legal. The qualification of legality imposed on disputes for jurisdictional purposes has some significance. Such a 66
See 2 History, pp. 468, 548, 565. Judge Spender in the Interhandel Case, 1959 ICJ Reports at p. 71. 68 Ibid. at p. 60. 69 See, e.g., the German Interests in Polish Upper Silesia Case (1925), PCIJ Series A No. 6 at p. 22. 67
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qualification exists in connection, among other things, with the advisory jurisdiction of the ICJ,70 and has been understood to be relevant to its contentious jurisdiction as well.71 The history of the formulation of the Convention shows that there was some disagreement as to what was meant by "legal" disputes and that ultimately at some point it was decided that no definition of "legal" should appear.72 A distinction was made between disputes which were economic, commercial or political and those which were legal.73 The view was expressed that a distinction on these lines should not be made,74 while it was also stated that the distinction was imprecise, because disputes that were legal could involve matters of politics or commerce.75 The explanation was then given that what was meant was that the dispute should be based on the breach of legal rights and that there should at least be a claim that legal rights had been violated.76 A reasonable interpretation is that the dispute must be concerned with a breach or violation of law in the fundamental sense that what is basically in dispute is the violation of legal rights and obligations.77 Thus, for example, a dispute merely as to whether certain measures were economically or morally justified or whether certain measures were politically desirable or in general as to the terms to be included in an agreement being re-negotiated would not be legal.78 70
See Article 65(1) of the statute of the ICJ. See the opinion of Judges Fitzmaurice and Spender in the South West Africa Cases, 1962 ICJ Reports at p. 466. 72 Several definitions were suggested at various stages; see e.g. 2 History, pp. 493, 703, 832, 833. 73 See 2 History, pp. 83, 259, 397, 495. 74 See 2 History, p.395. 75 See 2 History, pp. 88, 96. 76 See 2 History, p. 397. 77 See also the statement by the Executive Directors of IBRD: Report, at p. 9. 78 The ICJ has supported strongly the notion that only disputes about legal rights and obligations qualify as legal disputes: see the First Admissions Opinion, 1947-48 ICJ Reports at p. 61, Second Admissions Opinion, 1950 ICJ Reports at pp. 6, 7, United Nations Expenses Opinion, 1962 ICJ Reports at pp. 155, 156, South West Africa Cases, 1962 ICJ Reports at p. 466 per Judges Fitzmaurice and Spender and at p. 659 per Judge van Wyck. 71
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Questions have been raised whether for any reason a dispute about legal rights and obligations would in certain circumstances fall into the category of non-legal disputes. The issue was raised at the consultative meetings of legal experts whether disputes about legal rights and obligations which were of high political significance were justiciable under the Convention.79 A similar issue has been raised in a different context before the ICJ. Although some individual judges took the position that, if the dominant element in the issue litigated was its political character,80 or if, for example, the acts and organs involved were of a political character, the arguments were of a political nature and the purpose of the submission to the Court was political,81 the question would not fall within the jurisdiction of the Court, the Court itself took the view that neither did the political implications surrounding the question cause it to become a non-legal question82 nor was the existence of political motives relevant.83 Hence, there is good authority for the view that, in the absence of an express exclusion in or pursuant to the ICSID Convention itself, a dispute which is otherwise legal, such as one relating to expropriation, would not cease to be legal for the purposes of the Centre's jurisdiction on account of political significance, motivation or implications or other political associations or elements. Some queries were also raised where the dispute was as to a fact or facts per se as opposed to law.84 There is nothing in the travaux preparatoires which supports the view that it was intended to exclude disputes on facts per se from the Centre's jurisdiction. Since the determination of questions of fact is part of the normal judicial function, it is reasonable to interpret Article 25(1) as including factual questions within the Centre's jurisdiction. But there seems to be 79 80
See 2 History, pp. 500, 548. Per Judge Alvarez in the First Admissions Opinion, 1947-48 ICJ Reports
at p. 6. 81
Per Judge Zoricic, ibid. at p. 95 and Judge Krylov, ibid. at p. 107. See the First Admissions Opinion, ibid. at p. 61, the Second Admissions Opinion, 1950 ICJ Reports at pp. 6, 7. See also per Judge Azevedo in the First Admissions Opinion, 1947-48 ICJ Reports at p. 75. 83 See the United Nations Expenses Case, 1962 ICJ Reports at pp. 155, 156. 84 2 History, pp. 411, 655, 700, 703, 708. 82
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an obvious qualification which is inherent in the characterization of the disputes as legal. The fact or facts about which there is a dispute must be such that a legal right or obligations or the violation of a legal right or obligation depends on its—or their—establishment.85 A question that arises is whether an abstract question which is nevertheless a difference of opinion about legal rights and obligations falls within the Centre's jurisdiction. The situation may arise, for example, in which disputants want to resolve such a dispute before either of the parties actually acts in accordance with its opinion of what is right and wrong. The ICJ has decided that it has the jurisdiction to give advisory opinions on abstract legal questions.86 The question has in a sense also been decided in the affirmative in regard to the Court's contentious jurisdiction insofar as it has been held that it can give declaratory judgments.87 It would seem that there is little reason to make a distinction between the Id's jurisdiction and the Centre's power to settle legal disputes. It is in keeping with the Centre's function of settling disputes and its purposes, particularly that of promoting the flow of foreign private investment, that it should have the jurisdiction to settle disputes of law before they lead to what might become difficult situations. Equally, it seems foolhardy to insist that a party must act before it can have a dispute settled, even though it may be prepared to forego such action in order to have the dispute settled by resort to the Centre. 85
Thus, while the legal principles determining the amount of tax payable by an investor may not be disputed, the fact whether it received certain sums as income as a result of selling its products may be disputed. On the determination of this fact will depend the exact extent of the investor's obligation to pay tax. Hence it will be well within the Centre's jurisdiction to determine such a fact. On the other hand, if the dispute is about the actions of an investor which led to the host State's increasing taxes on corporations doing business in its territory, when there was clearly no obligation owed to the investor not to increase its taxes in the manner in which they were increased, this dispute would not fall within the jurisdiction of the Centre, since the ascertainment of a legal obligation of the host state would not hinge on its resolution. 86 See the German Interests in Polish Upper Silesia Case (1926), PCIJ Series A No. 7 at pp. 18, 19; the Memel Territory Case (1932), PCIJ Series A/B No. 49 at p. 311. 87 See the Memel Territory Case (1932), ibid.
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Clearly, however, the dispute must be presented as a claim with clearly identified issues, although it may not include a demand for damages or restitution.88 A distinction must surely be made between a request for an opinion on a general question of law and a request for a pronouncement on a specific claim which is disputed. Disputes which are legal would include disputes which involve national law. While some questions have been raised about the "legality" of such disputes,89 ICSID tribunals have regarded such disputes as legal. The fact that the dispute involves the legislative acts of a sovereign power does not result in its not being legal and within the Centre's jurisdiction.90 It may be noted that in the appropriate circumstances the exercise of a discretion, e.g., under a contract, may give rise to a legal dispute. The fact that a solution ex aequo et bono is sought does not make the dispute one that is not legal, especially because the Convention provides for arbitral settlement ex aequo et bono 91 (iv) Competence Ratione Personae (a) One of the adversary parties in the proceeding must be a state or a constituent subdivision or agency of a state.92 There are some limitations imposed by the Convention on the nature of this party. Article 25(1) requires that one of the parties must be not merely a state, but a contracting state. A non-contracting state cannot be a party to regular proceedings before ICSID. However, the crucial date for determining the status of a state is not the date on which a consent clause submitting to ICSID's jurisdiction is reduced to writing or embodied in an instrument, but the date on which the Secretary-General considers the request for conciliation or arbitration. Therefore, it is possible for a non-contracting state to be a party 88
See 2 History pp. 332, 498, 838, and p. 258, where this view is supported. See objections raised by the Portuguese nominee, 2 History p. 708. 90 See Article 42(3) of the ICSID Convention. 91 For detailed discussion see Amerasinghe, loc. cit. note 50 at pp. 181 if. 92 See Model Clauses No. X; and Amerasinghe, "Submissions to the Jurisdiction of the International Centre for Settlement of Investment Disputes", 6 Journal of Maritime Law and Commerce (1974) p. 213. 89
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to a contingent agreement calling for submission of a dispute to ICSID's jurisdiction, and this agreement would take effect automatically as soon as the state becomes a contracting state.93 The term "constituent subdivisions" purports to cover a fair range of subdivisions. Not only would it cover municipalities and local government bodies in unitary states, but it could cover semiautonomous dependencies, provinces, or federated states in nonunitary states and the local government bodies in such subdivisions. The term "agencies" was apparently intended to cover as wide a range of entities as possible.94 The main limitation would seem to be that the entity must act on behalf of either the government of the state concerned or one of its constituent subdivisions. Indeed, the use of the term "agencies" as opposed to "instrumentalities" may well indicate that the term was intended to include even certain government-owned companies or government-controlled corporations. On the other hand, mere ownership by the government of shares in a public company may be inadequate for the entity to qualify as an agency. Article 25(1) requires that the constituent subdivision or agency be "designated" to ICSID, if ICSID is to have jurisdiction over the case. If a contracting state designates a body to ICSID as an agency or constituent subdivision of that state, a strong presumption is raised that this body is such a constituent subdivision or agency. On the other hand, the Convention does not leave to the contracting state concerned the ultimate determination of whether a body falls within the concepts mentioned. This determination must ultimately be made on an objective basis by the tribunal. The Convention further requires in Article 25(3) that either the consent by a subdivision or agency of the contracting state to submit a dispute or disputes to ICSID must be approved by that state or that state must notify ICSID that no such approval is required. (b) Pursuant to Article 25(1), the other party to a proceeding before the Centre must be a national of another contracting state. 93
2 History p. 960, where this view is supported. See discussions in 2 History pp. 62, 63, 78, 202, 257, 259, 395, 399, 404, 497, 503, 528, 705, 710, 759, 760, 761, 762, 919, 976, 978, 979. 94
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The term "national of another contracting state" is defined further in Article 25(2). Are there any circumstances in which a government of another contracting state may appear as the other party described as a national of another contracting state? For example, when a contracting state and one of its nationals may both participate in an investment operation in the host state, a dispute may arise between the host state on the one hand and the other contracting state and the investor on the other. The Convention, as it stands does not provide for a state's government to appear in proceedings before the Centre even in these circumstances. A second situation in which a government may want to appear in proceedings before the Centre is where a contracting state had paid a claim of one of its nationals against the host state in circumstances in which it is subrogated in the rights of that national. The point was discussed by the preparatory bodies,95 but no special provision was made in the final draft of the Convention for this eventuality. The evidence in the travaux preparatoires indicates that the absence in the Convention of specific mention of the capacity of states to appear as subrogees in proceedings before the Centre must mean that this is not possible. Its seems to have been the understanding, according to the travaux preparatoires, that in the absence of specific provision for governments of states to appear as the other party, where nationals of other contracting states would appear, governments did not have such capacity to appear. This understanding confirms the clear meaning of the text. (c) A different question is whether agencies of the state, wholly government-owned corporations, or companies in which the government has equity or shares, can qualify as nationals of other contracting states. The discussions in the preparatory bodies show that such an entity may well qualify as a juridical person which has the nationality of another contracting state under Article 25(2).96 The circumstances in which this could happen are for the tribunal seized of the case to decide. 95
See 2 ibid. pp. 230, 1018. See also, e.g., Broches, loc. cit. note 30 at pp. 354 ff. 96 See further, e.g., Broches, ibid. at p. 356.
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While consent may raise a presumption that the nationality requirement of natural or juridical persons has been satisfied, because the Convention defines nationality specifically, the presumption can be overturned. In the case of natural persons the non-state party must not only have the nationality of a contracting state other than the state party to the dispute but must also not have the nationality of the state party to the dispute. There is a negative and a positive requirement.97 A stateless person would not have access to the Centre, since he does not have the nationality of another contracting state, unless for some reason such nationality is attributed to him, though the state does not recognize it.98 The term "nationality" of a natural person is not defined. In customary international law the position generally is that the laws of the state whose nationality is claimed determine whether the claimant is a national of that state. Where national law is not explicit as to the fact of nationality, an international tribunal may apply the definition of nationality given by the ICJ in the Nottebohm Case: Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties."
In the absence of any coherent rules on nationality in a given legal system, international tribunals have in the past determined that persons have had the nationality of a state on the basis of the above principles, even though it may not have been entirely clear whether the law of that state regarded them as nationals,100 and sometimes even where they were not regarded as citizens for domestic purposes.101 An ICSID tribunal could act in the same way. 97
See, e.g., the circumstances of Kahane (Successor) v. Parisi and the Austrian State, A.D. (1929-30), Case No. 131. 98 1955 ICJ Reports at p. 23. 99 Ibid. 100 Cayuga Indians (G.B. v. U.S.A.) (1926), 6 UNRIAA p. 173. 101 The Kahane Case: see above note 97.
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In the course of determining whether a natural person has or has not the relevant nationality, a tribunal may well decide to ignore a nationality involuntarily acquired by that person or a nationality of convenience. The possibility of ignoring a nationality involuntarily acquired is mentioned in the travaux preparatoires.102 Similarly, a tribunal may refuse to recognize a nationality of "convenience". It would seem from the Nottebohm Case103 that international law does to some extent, at least, delimit the jurisdiction of a state to claim a person as its national. In the Nottebohm Case the ICJ held that the bond of attachment between X and state A was not so strong as to be the real and effective qualification for nationality which would entitle state A to claim the right of diplomatic protection. There are two distinguishing characteristics of this decision, however, which are very relevant to the question as to how far what has come to be called the doctrine of the "effective link" is likely to be applied by a tribunal in determining its jurisdiction under the ICSID Convention. First, the decision related to nationality for the purposes of diplomatic protection and did not determine issues of nationality for other purposes. Second, in that case (a) X had already had the nationality of another state which he had lost, and (b) the action by the state of his current nationality (state A) was against a third state with which X had for some time had and at the current time did actually have a closer connection than with either state A or the state of his former nationality.104 These two special features may make the case of limited relevance to the question of nationality in relation to the Centre's jurisdiction and may for that purpose serve to restrict the scope of any general principle of
102
2 History pp. 445, 658, 705, 868, 874, 876, 877. 1955 ICJ Reports p. 4. 104 See the comments on the Nottebohm Case in Jones, "The Nottebohm Case," 5 ICLQ (1956) p. 230. The narrow view of the decision taken here is supported to a high degree by the approach to the decision taken in the Flegenheimer Claim (U.S.A. v. Italy, 1958) at p. 148, where it was said that the "effective link" in the Nottebohm Case could operate only in favor of Guatemala, the defendant state, with which the individual had a closer connection than with Lichtenstein, the claimant state. 103
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"effective link". As already pointed out, there is a distinction between diplomatic protection and jurisdiction for the purposes of the Convention. Hence, the meaning of nationality may be different in the cases. Moreover, even if the Nottebohm Case were to be used as an applicable precedent, it is arguable that an effective link is relevant to negating the existence of a nationality only in the particular circumstances of that case, or at any rate, in very limited circumstances.105 Conceivably, where the nationality of a contracting state is assumed by a person when he does not have a reasonable connection with that state just before the consent to jurisdiction is given and in circumstances in which he had both lost the nationality of a non-contracting state by that act and his closest connection has been for some time with the host state, it may be held that he does not have the nationality of a contracting state for the purposes of the Centre's jurisdiction. But what if the change of nationality was from that of one contracting state other than the host state to another's or if the new nationality was acquired from a condition of statelessness? In such a case the answer may well be different for the purpose of the Centre's jurisdiction. Certainly, if his closest connection has not been with the host state, it may be concluded that a tribunal will be justified in not disregarding the nationality of the natural person. In the case of a nationality acquired by fraud or mistake the usual rules of international law would operate to make such nationality ineffective. The fact that the host state has agreed at the time of consent to the Centre's jurisdiction on the nationality of a natural person or has tacitly recognized that he had the nationality of a particular contracting state may have some effect on the decision of a tribunal regarding its jurisdiction, because of the predominantly consensual nature of the Centre's jurisdiction. Agreement or recognition of this type would prima facie raise a presumption that the natural person had the nationality concerned and, at least, the burden of proving otherwise would rest on the party making that claim. While it is 105
p. 191.
See, e.g., the North Transylvania Nationality Case (1965), 43 ILR (1971)
Institutional jurisdiction—its scope and limitations
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ultimately for a tribunal to decide even proprio motu on nationality in the exercise of the power to determine its own competence, it will probably not lightly disregard an agreement or tacit recognition of nationality by the host state. In the case of dual or multiple nationality of a natural person under the Convention, if one of the nationalities is that of the host state, neither agreement on the part of the host state nor the fact that the nationality of another contracting state was the "effective" nationality nor the fact that the host state was aware of the fact that the person had its nationality nor any other fact would normally help to give the Centre jurisdiction. There is one circumstance, however, where the host state's nationality may not be an obstacle, namely where for special reasons it is held that such nationality should be disregarded and the person should be treated as if he did not have such nationality. Where a multiple nationality situation arises as a result of a person having two or more foreign nationalities, there is no question normally of a choice being made between or among these nationalities, in order to determine whether the person has the required nationality. What the Convention requires is that the person have the nationality of another contracting state, irrespective of whether he also has the nationality of a third contracting state or of a non-contracting state.106 The ICSID Convention requires that the nationality requirement should be fulfilled both at the time of the consent to jurisdiction as well as at the time at which the request for arbitration or conciliation is registered. In view of the fact that many ideas proposed at the earlier stages were rejected certain points may be emphasized about the current version of the Convention. First, it is clear that both the dates mentioned are relevant for the fulfillment of the nationality requirements. Second, both the negative and positive nationality requirements must be fulfilled on both these dates and it would be inadequate that both were fulfilled on one date but only one on the other. Third, there is no requirement of continuity in respect of the requirements so that it is not necessary that either the positive requirement or the negative requirement be satisfied continuously 106
See discussion in the preparatory work: op. cit. note 102 supra.
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from the first date to the second. All that is required is that both the positive and negative conditions be satisfied on each of the two dates. Fourth, there is no requirement that the natural person must have the same foreign nationality on the two dates. In more than one respect, therefore, there is a difference between the law of diplomatic protection and the law of the Convention. In the former, for instance, the alien must have the same foreign nationality continuously between two relevant dates. In the case of a juridical person, the requirement of Article 25(2)(b) is that such a person must have the nationality of a contracting state other than the host state on the date of consent to the jurisdiction of the Centre or that, if it has the nationality of the host state, the parties must have agreed that because of foreign control it should be treated as a national of another contracting state. Some of the problems arising from this provision have been hypothetically discussed before.107 But now the practical problems have been faced in at least three arbitral decisions.108 In the Amco Arbitration the basic issue raised was whether the claimant which was an Indonesian (host state) company could be regarded as a national of another contracting state (the U.S.) because there was an agreement relating to foreign control. The tribunal made three important points in its reasoning. The first point relating to interpretation109 has already been discussed above. Second, in regard to the issue raised that there was no formal and express indication in the arbitration clause that the parties had 107
Amerasinghe, loc. cit. note 29. See also, rather peripherally, Amadio, Le Contentieux International de l'lnvestissement Prive et la Convention de la Banque Mondiale du 18 Mars 1965 (1967) pp. 110 ff. 108 Amco Asia Corp. et al. v. Republic of Indonesia, 23 ILM (1984) p. 351 (ICSID) [hereafter Amco Arbitration]; Societe Ouest Africaine des Betons Industriels v. Republic of Senegal, 6 FILJ (1991) p. 123 [hereafter SOAB1 Arbitration]; Liberian Eastern Timber Corporation v. Government of the Republic of Liberia, 26 ILM (1987) p. 647 (ICSID) [hereafter LETCO Arbitration]. A pertinent issue was raised in Holiday Inns S. A., Occidental Petroleum Corporation et al. v. Government of Morocco (1978) [hereafter Holiday Inns Arbitration] but the decision on the jurisdictional issues in this case has not been published. 109 See loc. cit. note 108 at p. 359 for the discussion by the tribunal.
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agreed to treat the claimant which had been incorporated in the host state as a national of another contracting state, the tribunal was of the view that it was sufficient that the respondent knew of the foreign control and that it was "expressed" that the claimant would be treated as a foreign national.110 In fact, the agreement was not clearly expressed but was apparent from the context of the arbitration agreement. While explicitness could not be postulated, there was more in the arbitration clause and in the context of the agreement than a vague or veiled reference to the foreign nationality. The United States was referred to elsewhere, so that what may be said to have been done by the tribunal was that it found that by necessary implication there was agreement upon foreign control. Third, an objection was raised that there was no formal and express indication in the arbitration clause that a particular contracting state was to be regarded as the national state of the claimant. The tribunal held that it was clear from the application made by the claimant under the investment law of the respondent both that the nationality of the claimant was to be regarded as U.S. and that the respondent was aware of this fact. The tribunal said that there was no requirement in the Convention that the nationality of the controlling interest in the juridical entity be expressly stated in the arbitration agreement. The Tribunal also stated: Respondent contends that the true controller of P.T. Amco was not of [AJmerican nationality, since, it alleges, Amco Asia itself was controlled by Mr. Tan, a Dutch citizen residing in Hong Kong, through Pan American, a Hong Kong company of which said Mr. Tan was the sole or the main shareholder. To take this argument into consideration, the Tribunal would have to admit first that for the purpose of article 25-2(b) of the Convention, one should not take into account the legal nationality of the juridical or natural persons who control the controlling juridical person itself: in other words, to take care of a control at the second, and possibly third, forth [sic], or xth degree. Such reasoning is, in law, not in accord with the Convention. Indeed, the concept of nationality is there a classical one, based on the no Ibid. at pp. 359-60.
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Chapter 14. Arbitral tribunals of the ICSID law under which the juridical person has been incorporated, the place of incorporation and the place of the social seat. An exception is brought to this concept in respect of juridical persons having the nationality, thus defined, of the Contracting State party to the dispute, where said juridical persons are under foreign control. But no exception to the classical concept is provided for when it comes to the nationality of the foreign controller, even supposing—which is not at all clearly stated in the Convention—that the fact that the controller is the national of one or another foreign State is to be taken into account... Incidentally, the Tribunal would like to stress that the legal and factual reasons previously stated would amply suffice to reject the argument of the Respondent that it allegedly did not know the nationality of the remote controllers of the local company to be established, when agreeing to the Application and to the arbitration clause herein. The case could have been different if there would have been fraud or misinterpretation on this issue, which is not the fact herein.111
The tribunal seems to have said obiter that in determining whether there is a foreign controlling element, and what the nationality is, no search for foreign control is permissible under the Convention beyond the first step. Whether a search for foreign control was taken beyond the first step or not, for the Amco Arbitration it would not have made a difference, since all the possible foreign nationalities which could have been taken into account were of other contracting states. The reference to fraud or misrepresentation as to the controlling nationality, on the other hand, makes a useful point. In the SOARI Arbitration SOABI was incorporated in Senegal but was directly controlled by the Flexa Company, which was incorporated in Panama, a non-contracting state. The tribunal found on the evidence produced that the shares of the Flexa Company were owned by nationals of various contracting states, including the respondent, but that the controlling shareholding was Belgian. The respondent raised the objection that, since the foreign control over SOABI was exercised by the Flexa Company which was a Panamanian corporation, the requirements of Article 25 that the foreign control must be that of nationals of contracting states was not
111Ibid. at pp. 361-3.
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satisfied. While holding that it could not be disputed that the foreign interests which might serve as a basis for according foreign status to a company established under the law of the respondent should be those of contracting states, the tribunal came to the conclusion that, since indirect control of SOABI was exercised mainly by Belgian shareholders, the foreign control over SOABI not only was established but was also vested in nationals of other contracting states, since Belgium was a contracting state.112 Judge Mbaye, who dissented when the final award was rendered, stated that he was in disagreement with the decision to exercise jurisdiction, referring to the statements made in the Amco Arbitration which precluded the search for foreign control beyond immediate control.113 This dissent prompted the President of the tribunal in the SOABI Arbitration to append a declaration to the final award in which he stated: L'article 25(2)(b) de la Convention ne dit rien sur la nature, directe ou indirecte, du controle etranger qui peut amener l'Etat-hote et Finvestisseur etranger de traiter une societe de droit local comme "ressortissant d'un autre Etat contractant." Le tribunal dans 1'affaire Amco n'etait donc pas fonde a enoncer peremptoirement dans sa decision sur competence qu' "aucune exception au concept [classique de nationalite] n'est prevue lorsque l'on arrive a la nationalite de la personne exercant ce controle." Force est de reconnaitre que le control qui justifie 1'application de 1'article 25(2)(b) doit etre exerce par un ressortissant d'un Etat contractant, mais ce controle ne doit pas etre direct.114
The tribunal had held in the decision on the jurisdiction that on the facts the respondent had been aware of the ultimate control by nationals of another contracting state.115 In the LETCO Arbitration the arbitration simply stated that the parties agreed to submit to ICSID arbitration, LETCO being a company registered in the host state. The tribunal stated that there 112 113 114 115
SOABI Arbitration, loc. cit. note 108 at p. 125. Ibid. at p. 251. Ibid. at pp. 289-90. Ibid. at p. 226.
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should be a causal relationship between effective control and the agreement to arbitrate which must be proved, though, unless circumstances clearly indicated otherwise, it was to be presumed that where there existed foreign control the agreement to treat the company in question as a foreign national was because of this foreign control. The tribunal in effect found that there was a presumption because of French control that agreement to treat LETCO as French resulted from the fact of French control and that this presumption had not been rebutted. A prior question, however, was whether there had been an agreement under Article 25(2)(b) of the ICSID Convention to treat LETCO as a French national. The answer the tribunal gave was that, although there was no express agreement, an agreement could be implied where the specific circumstances would exclude any other interpretation of the orientation of the parties and that in this case there was adequate evidence to show that there existed an agreement to treat LETCO as a French national.116 The principal reason that it was clear that there was such agreement was, in the opinion of the tribunal, the fact that in its many dealings with LETCO the respondent had clearly indicated that it was dealing with a French national.117 The decision on jurisdiction in the Holiday Inns Arbitration has not been published but excerpts from the decision have been quoted and the decision discussed by one of the counsel in the arbitration.118 The tribunal held that the arbitration clause in the investment agreement did not cover the four locally registered subsidiary companies, because there had been no agreement that they should be treated as nationals of another contracting state on account of foreign control. The tribunal was of the view119 that the agreement relating to the treatment of the company as a foreign national because of foreign control must normally be expressed, though very 116
LETCO Arbitration, loc. cit. note 108 at p. 653. Ibid. at p. 654. One of the acts mentioned was the acceptance in the required annual registrations of LETCO of the description of its nationality as French. 118 See P. Lalive, "The First 'World Bank' Arbitration (Holiday Inns v. Morocco;—Some Legal Problems," 51 BYIL (1980) p. 123. 119 Ibid. at p. 141, quoting from para. 33 of the decision. 117
Institutional jurisdiction—its scope and limitations
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exceptionally and when any other interpretation would be excluded such agreement may be implied. In the case an agreement could not be implied. The facts were that the four subsidiaries had not been formed at the time the arbitration agreement was concluded. Some important issues were addressed in these cases. The tribunal in the LETCO Arbitration referred to the need for a causal connection between the effective control by foreign nationals and the agreement to arbitrate. As also pointed out, this imposes an almost insurmountable burden of proof on the claimant. However, the difficulties were mitigated by postulating a presumption of the necessary causality where there was in fact foreign control. The presumption certainly helps. But it seems that causality is a requirement under Article 25(2)(b). What Article 25(2)(b) states is that foreign nationality should be agreed upon on account of foreign control. This causal connection requires that the host state at least be aware of the foreign control at the time of the agreement. Once this is established, the burden of proof shifts to the host state, which must now show that the causal connection was not present. Even so, there could in most cases probably be a presumption arising from the existence of foreign control that the host state was aware of such control. As far as the burden of proof is concerned, it seems reasonable to make such a presumption which would shift the burden to the host state to show that it was unaware of foreign control. In both the Amco Arbitration and the SOABI Arbitration the tribunals stated that the respective host states were aware of the foreign control. A further question raised is whether the host state must be aware of the particular nationality of the foreign control, in addition to necessarily being aware of foreign control by nationals of other contracting states. Thus, could it be argued by the host state that it was aware of foreign control by nationals of state B, both states being contracting states, and therefore, had no awareness of the necessary foreign control? It would seem that this argument must fail. What is required is that the agreement to arbitrate be motivated by foreign control by nationals of another contracting state. Thus, it is sufficient if there was awareness of control by nationals of any other contracting state, knowledge of the specific nationality not being important, barring, of course, fraud. In the Amco Arbitration the
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tribunal entered a caveat to this position: where the host state would not have agreed to arbitration, say, for political reasons, had it known that the foreign control was vested in nationals of state B rather than state A, the fact that the host state did not have knowledge of the proper nationality of the foreign control could result in the vitiation of the agreement to arbitrate, because the causal connection was absent. The caveat is acceptable, provided the absence of awareness and its consequences are subject to proof by the host state. In the Amco Arbitration itself there was evidence that the host state was aware of the proper foreign nationality of the controlling interest. As was stated in the Amco Arbitration, it is not necessary that the state of the foreign nationality be specifically mentioned in the arbitration clause, in order that the arbitration clause based on foreign control be effective. The requirement of foreign control under Article 25(2)(b) is satisfied by the very fact that such foreign control exists. In the Amco Arbitration the position was clearly taken that there did not have to be an express clause incorporating the agreement of the parties to treat a juridical person which is a national of the host state as a national of another contracting state because of foreign control for the provisions of Article 25(2)(b) to operate. All that is necessary is that, first, the principle person be a national of the host state and, second, that the parties agree that this person, being under foreign control to the knowledge of the host state, is to be treated as a foreign national, i.e., a national of another contracting state. This was sufficient to create an express agreement. The tribunal, however, did not seem to be inclined to concede, as did the tribunals in the Holiday Inns Arbitration and in the LETCO Arbitration, that there could be an agreement which could be implied from all the surrounding circumstances of the case. The tribunal in the Holiday Inns Arbitration made it clear that, while in the normal case the agreement should be in an explicit form, because it was a derogation from the general rule expressed in the ICSID Convention, there were exceptional circumstances in which the agreement could be implied. The tribunal in the Amco Arbitration was correct in not requiring a formal and ritual agreement on the matter but found that
Institutional jurisdiction—its scope and limitations
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in the case in hand there was, nevertheless, express agreement.120 The other two arbitrations clearly support the view that an agreement may be implied and, indeed, in the LETCO Arbitration the tribunal did imply the existence of an agreement from the various surrounding circumstances. It would seem, therefore, that an agreement could be implied in the absence of an explicit and formal clause where, for example, as in the LETCO Arbitration, (i) the claimant has the nationality of the host state, (ii) the claimant is, nevertheless, controlled by foreign nationals belonging to other contracting states, (iii) the host state is aware of this fact, and (iv) the host state has dealt with and treated the claimant for all practical purposes as being controlled by foreign nationals belonging to other contracting states and has thus recognized the element of foreign control. The short point is that, where there is an agreement to submit to arbitration, and the claimant is a national of the host state, and where there is no formal or ritual agreement about foreign nationality on account of foreign control, there is a tendency on the part of tribunals to give effect to the arbitration clause, ut magis valeat quam pereat, and to recognize the jurisdiction of the ICSID by making every effort to imply an agreement on foreign nationality based on foreign control, on the understanding that otherwise the arbitration clause would have been purposeless.121 The situation may clearly be different, where there is no specific arbitration clause between the parties, as where an effort is made to establish jurisdiction under a bilateral investment or other treaty. In such a situation the case for implication of an agreement on foreign control under Article 25(2)(b), though possible, may be somewhat more difficult, because a specific meeting of the minds on the matter of foreign control between the parties is less likely to be proven. 120
Broches takes the view that the agreement was implied in this case: Arbitration Under the ICSID Convention (1990) at p. 4 (paper presented to the International Trade Law Conference in Canberra). This is contrary to the tribunal's view. 121 At the time the ICSID Convention was formulated the assumption was that agreements had to be express: see Amerasinghe, loc. cit. note 29 at p. 263. This is in keeping with the view taken in the Amco Arbitration.
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It was stated earlier that the jurisdictional provisions of the ICSID Convention are principally based on consent. It would not be correct to say, however, that they only lay down the outer limits of jurisdiction. Consent between a state and a "foreign" national, while important, cannot override the other basic requirements for jurisdiction reflected in the Convention, ratione materiae and ratione personae, particularly, which were established multilaterally, and not bilaterally, by a consent which has priority between states parties to the Convention. However, where there is an agreement relating to foreign nationality based on foreign control for the purposes of Article 25(2)(b), the agreement may prima facie be accepted as effective. For exceptional reasons, however, a tribunal may investigate the reality of foreign control, where it is possible that the purposes of the ICSID Convention are being abused. Clearly, as was stated in the Amco Arbitration, one reason for pursuing the issue would be fraud or misrepresentation. But, there is no reason why, when the issue is raised or evenproprio motu, a tribunal should not answer the question whether there is the requisite foreign control, where it is apparent that the requisite foreign control may not in reality be present. In some of the arbitral decisions discussed above the only point raised related to how far a tribunal should go in searching for the foreign control. There was some difference of opinion on this issue. In the Amco Arbitration the tribunal was of the view that it was permitted only to go one step behind the nationality of the host state to find out where the control lay. In the SOABI Arbitration the tribunal rejected this approach categorically,122 although there was a dissent by Judge Mbaye in which he supported the view taken in the earlier arbitration. The difference mattered in the SOABI Arbitration. If the tribunal had followed the ruling in the earlier arbitration, it would have found that a Panamanian corporation controlled the claimant which was registered in the host state and had host state nationality. Panama not being a contracting state, there would not have been 122
The President of the tribunal appended a declaration explaining why the approach taken in the Amco Arbitration was unacceptable. There is a conflict between the two cases on the statement of principle, as such.
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foreign control and the tribunal would not have had jurisdiction. Because the tribunal took the view that its duty was to establish who had real control over the claimant, it was able to go behind the incorporation in Panama to the majority shareholders who were foreign nationals of contracting states, principally Belgium. On the other hand, since reference to the first step in the Amco Arbitration established foreign control, it was unnecessary for the tribunal to refer to a further search or proceed further. Considering the principles of interpretation, it must be acknowledged that the approach taken in the SOABI Arbitration is more in keeping with the general objective of the Convention, namely, to permit the assumption of a foreign nationality on the basis of foreign control, where the claimant has the nationality of the host state because of incorporation in the host state. What is relevant is to establish foreign control by nationals of a contracting state, and it should be possible to do this by any reasonable means possible. Clearly, there is no reason to search further than is necessary in a given case, and it is appropriate that the search end when the proper foreign control has been established. It is, thus, unnecessary to limit the search to one step or even two steps. The question whether the host state had the required knowledge of the appropriate foreign control pertains to the causal link and will need to be addressed separately. There are other problems that may arise concerning the determination of foreign control where the claimant has the nationality of the host State. What has to be remembered is that Article 25(2)(b) does not refer to "effective" control but to control and, just as a flexible approach has been taken with regard to the search for the controlling elements, it is proper that a flexible approach be taken to the issue of control, particularly where there are competing controlling nationalities and agreement has been reached on a particular foreign nationality. The issue then is whether a tribunal can go behind that agreed nationality to make a finding on the existence of foreign control. One view is that it is only where it is apparent that the purposes of the ICSID Convention are being abused that this may be done.123 But this may be laying the emphasis in the wrong place. 123
See Broches, loc. cit. note 30 at p. 361.
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The tribunal must make an honest and objective assessment of the facts, where a question is raised or even proprio motu, in order to establish that the provisions of the Convention are being observed and not merely not abused. Primarily, there are five categories of situation that might arise: (a) the possible nationalities in competition apart from the agreement are all of the contracting states other than the host state; (b) the possible nationalities in competition apart from the agreement include a nationality of a non-contracting state, the others all being of contracting states other than the host state; (c) the agreed nationality is that of a contracting state, although the possible nationalities apart from the agreement are not those of contracting states other than the host state; (d) the possible nationalities in competition apart from the agreement include that of the host state, others not being based on foreign control; (e) the possible nationalities in competition apart from the agreement include that of the host state, the foreign nationalities being based on control. In the case of situation (a), an agreement on one or more of the nationalities would not affect the question of jurisdiction. Therefore, the agreement would be recognized. In situation (b), the nationality or nationalities of one or more contracting states may be chosen to the exclusion of that of the noncontracting state. Here also it does not affect the question of jurisdiction that the juridical person has in fact more than one nationality including the nationality of a non-contracting state. In case (c), the nationality of the contracting state which is agreed upon has no relevance to the realities of the situation. The agreement amounts to an unreasonable selection of nationality. A tribunal would be acting within its competence to disregard such an agreement. This is clearly a case, where the Convention would be used for purposes for which it was not intended.
Institutional jurisdiction—its scope and limitations
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In situation (d), the question may be raised whether a tribunal would examine the reality of the nationality of the juridical person, if the nationality of a contracting state other than the host state were agreed upon. Thus, a juridical person may be incorporated in the host state but have its center of control and administration in another contracting state, while not being "controlled" by foreign interests. In the unlikely event that this situation arises and the parties agree that the nationality of the juridical person is that of the contracting state other than the host state, a tribunal is not compelled to investigate whether this is the "genuine" or "effective" nationality of the juridical person. In the face of agreement between the parties it suffices that a possible nationality is chosen and there is no compelling need to accept the argument that the juridical person must have only one nationality which must be the "effective" one where one of the competing nationalities is that of the host state and where there is no agreement based on foreign control. On the other hand, it is clear that a tribunal would not be precluded from examining the issue whether the chosen nationality is a possible nationality under any of the available tests. That is to say, if it finds that the nationality chosen has in fact absolutely no connection with the juridical person, it may disregard the agreement in this extreme case. In situation (e), for reasons similar to those given in regard to situation (d), a tribunal is not likely to upset a choice of nationality by agreement which is based on a reasonably possible criterion. In this case, though, there is the added factor that agreement between the parties on a nationality based on foreign control is expressly provided for in the Convention. Under Article 25(2)(b), (i) the notion of control could be used as a basis for an explicit agreement between the parties to a dispute that the juridical person has the nationality or nationalities of one or more contracting states other than the host state, where it initially has the nationality of the host state, or (ii) it could be relevant in assisting a finding that a juridical person has the nationality of a contracting state other than the host state where there are competing nationalities including those of non-contracting states (provided it is not used against the nationality of the host state as a competing
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Chapter 14. Arbitral tribunals of the ICSID
nationality). An important question is how this concept of "control" is to be interpreted in each case. In relation to (i), when the question was discussed at the consultative meetings of legal experts, it was pointed out that the concept of "control" had numerous difficulties inherent in its application. No precise definition of "control" emerged from the discussions.124 In view of the absence of any guidance in the travaux preparatories and in the light of the theory behind the jurisdiction of ICSID the following points emerge in relation to the question of foreign control connected with (i) above. First, in view of the fact that the agreement of the parties is basic to ICSID's jurisdiction, agreement between the parties on a foreign nationality based on foreign control would raise a strong presumption that there was adequate foreign control on which to predicate a foreign nationality. Secondly, for the same reason it is only in the case where such foreign control cannot be postulated on the facts on the basis of the application of any reasonable criterion that a tribunal would not recognize an agreement on foreign nationality based on foreign control. Thirdly, there is no reason to suppose that, in deciding the question whether a reasonable criterion forms the basis for an agreement on foreign control, a tribunal will necessarily be bound by a single definition based on a majority shareholding or any other particular test. In the case of diplomatic protection, as understood by some authorities before the Barcelona Traction Co. Case,125 the concept of "control" appears to have been associated entirely with the nature of shareholding.126 In the case of ICSID's jurisdiction there is no requirement that similar limitations be observed. On the contrary, a tribunal may regard any criterion based on management, voting 124
2 History, pp. 359, 396, 447, 531. 1970 ICJ Reports p. 3. 126 Caflisch, La Protection des Societes Commerciales et des Interets Indirects en Droit International Public (1969) p. 89; Jones, "Claims on Behalf of Nationals Who Are Shareholders in Foreign Companies," 26 BYIL (1949) p. 225. 125
Institutional jurisdiction—its scope and limitations
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rights, shareholding, or any other reasonable theory as being acceptable for the purpose. The point is that the concept of "control" is broad and flexible, particularly because much should be left to the autonomy of the parties. The question is not whether the nationality with the most control according to a reasonable criterion has been agreed upon, but whether the nationality chosen represents an exercise of a reasonable amount of control to warrant its choice on the basis of a reasonable criterion. Thus, where nationals of a contracting state hold 35 per cent of the shares of a corporation and nationals of a non-contracting state hold 55 per cent of the shares, an agreement that the corporation has the nationality of the contracting state may well be upheld by a tribunal as being based on a reasonable amount of control. Such a decision could be supported particularly, if, for instance, a judicial action is available for the protection of minority shareholders. In relation to (ii), a tribunal should be guided by reasonable criteria similar to those relevant to (i). Where a tribunal uses the criterion of control to establish foreign nationality in the absence of agreement, it could give this concept a flexible content without limiting itself to any single criterion. The approach should perhaps incline towards interpreting the concept of "control" in favorem jurisdictions, since the parties have already agreed to invoke the jurisdiction of ICSID. Thus, where it is argued, in spite of such agreement, that the private party, being a juridical person, does not have the nationality of a contracting state other than the host state, it would not be inappropriate for an adjudicating body to find in the proper circumstances that the juridical person does have such nationality, even though it is not incorporated in, and does not have its place of administration in, or any other such connection with, a contracting state, on the basis of some element of control exercised by nationals of a contracting state other than the host state, such control being established not necessarily by reference to a majority shareholding but possibly by the application of some less exacting criterion. In the event that it is possible by the application of one or more of the several criteria to attribute control to more than one nationality, including the nationalities of non-contracting states, an adjudicating body could well avoid making a choice between
664
Chapter 14. Arbitral tribunals of the ICSID
nationalities and conclude that there is control by nationals of a contracting state, even though there may be an element of control vested in nationals of non-contracting states. It is only when it is clear that it cannot be said that nationals of a contracting state have adequate control over the entity that an adjudicating body should hold that it does not have the nationality of a contracting state. Thus, if shares are held, 36 per cent by nationals of state A, a contracting state other than the host state, 34 per cent by nationals of one non-contracting state, and 30 per cent by nationals of another noncontracting state, and if the management is vested mainly in nationals of the state A, a tribunal could well hold that there is "control" exercised by the nationals of the contracting state, without investigating the difficult question of whether the nationals of a contracting state have more control than the nationals of non-contracting states. On the same lines, if control can only be established by reference to a combination of two or more nationalities, if this combination consists of the nationalities of contracting states other than the host state, although control cannot reasonably be attributed to nationals of a single contracting state, it would be possible to hold that the juridical person had the nationality of contracting states other than the host state. In connection with (ii), where there is an agreement between the parties that the juridical person has the nationality or nationalities of one or more contracting states other than the host state and such agreement is evidently based on control, a tribunal is not bound to establish whether in its opinion the juridical person has a required nationality. It would be adequate if such agreement were based on any reasonable criterion or criteria of control. As in the case of (i), it is a question of whether it can be said that the nationality or nationalities agreed upon have an adequate amount of control over the juridical person, such control being based on any of the acceptable criteria. A tribunal should be less strict in passing judgment on control for the purposes of an express agreement based on control than in cases where it must decide on nationality in the absence of any kind of agreement on nationality. A case which addressed specifically the issue of foreign control for the purposes of Article 25(2)(b) is the Vacuum Salt Products Ltd.
Institutional jurisdiction—its scope and limitations
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Arbitration.121 The issue principally concerned the concept of "control". The foreign national concerned on whose control the foreign nationality would depend had a 20% shareholding in the claimant corporation and was clearly a technical advisor and specialist in it, but only that, without managerial capacity. The tribunal took the view that he was not in any sense "in charge", and that, therefore, he had not nearly the necessary control over the corporation in order to enable it to be characterized as foreign. In the course of the award the tribunal made some significant statements which support what has been said above and had been proposed by the present author elsewhere. On the matter of the limits of the Convention and the presumption of control the tribunal said: The reference in Article 25(2)(b) to foreign control necessarily sets an objective limit beyond which ICSID jurisdiction cannot exist and parties therefore lack power to invoke same no matter how devoutly they may have desired to do so. See Report of the Executive Directors on the Convention on the Settlement of Investment Disputes between States and Nationals of Other States... See also E. Gaillard, Some Notes on the Drafting of ICSID Arbitration Clauses, 3 ICSID Rev.— F.I.L.J. 136, 140 (1988) (the parties may not modify the limitations set forth in Article 25(2)(b)); A. Broches, The Convention on the Settlement of Investment Disputes between States and Nationals of other States, 136 Recueil des Cours 331, 360-361 (1972); C.F. Amerasinghe, Jurisdiction Ratione Personae Under the Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States, 1974-1975 Brit. Y.B. Int'l L. 227, 264-66. In addressing the present claim of jurisdiction grounded on the second clause of Article 25(2)(b) it is the task of the Tribunal thus to determine whether or not the Convention limit has been exceeded. ... In undertaking this task the Tribunal first must ascertain where that Convention limit lies. Here, too, consistent with the travauxpreparatoires of the Convention, the authorities are unanimous in placing great weight on the fact of the parties' consent. Convention History, Vol. II, 579... No detailed definition of "foreign control" has been developed either in the travaux preparatories of the Convention or in 127
(1994), 4 ICSID Reports p. 329.
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Chapter 14. Arbitral tribunals of the ICSID ICSID jurisprudence. See id. at 359, 360-361 (1972)... [I]t has been stated that the agreement of the parties "on a foreign nationality based on foreign control would raise a strong presumption that there was adequate foreign control on which to predicate a foreign nationality", C.F. Amerasinghe, Jurisdiction Ratione Personae Under The Convention On The Settlement Of Investment Disputes Between States And Nationals Of Other States, 1974-1975 Brit. Y.B. Int'l. L. 227, 264-266. Then it is "only... where such foreign control cannot be postulated on facts on the basis of the application of any reasonable criterion that a tribunal... would not [accept jurisdiction], because in such a case the parties would purport to use the Convention for purposes for which it was not intended." Id. ... [T]he words "because of foreign control" have to be given some meaning and effect. These words are clearly intended to qualify an agreement to arbitrate and the parties are not at liberty to agree to treat any company of the host State as a foreign national: They may only do so "because of foreign control". The Tribunal concludes that the existence of consent to an arbitration clause such as paragraph 36(a) of the 1988 Lease Agreement in circumstances such that jurisdiction could be premised only on the second clause of Article 25(2)(b) raises a rebuttable presumption that the "foreign control" criterion of the second clause of Article 25(2)(b) has been satisfied on the date of consent.128
On the issue of "control" itself the tribunal said: 43. The Tribunal notes, and itself confirms, that "foreign control" within the meaning of the second clause of Article 25(2)(b) does not require, or imply, any particular percentage of share ownership. Each case arising under that clause must be viewed on its own particular context, on the basis of all of the facts an circumstances. There is no "formula". It stands to reason, of course, that 100 percent foreign ownership almost certainly would result in foreign control, by whatever standard, and that a total absence of foreign shareholding would virtually preclude the existence of such control. How much is "enough", however, cannot be determined abstractly. Thus, in the course of the drafting of the Convention, it was said variously that "interests sufficiently important to be able to block major changes in the company" could amount to a "controlling interest" (Convention History, Vol. II, 128
Ibid. at pp. 342-4.
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447), that "control could in fact be acquired by persons holding only 25 percent of" a company's capital (id., 447-48); and even that "51% of the shares might be controlling" while for some purposes "15% was sufficient" (id., 538). As Amerasinghe has said, "the concept of 'control' is broad and flexible... [T]he question is ... whether the nationality chosen represents an exercise of a reasonable amount of control to warrant its choice on the basis of a reasonable criterion". C.F. Amerasinghe, Jurisdiction Ratione Personae Under The Convention On The Settlement Of Investment Disputes Between States and Nationals Of Other States, 1974-1975 Brit. Y.B. Int'l. 227, 264-65. 44. Nonetheless, it must be true that the smaller is the percentage of voting shares held by the asserted source of foreign control, the more one must look to other elements bearing on that issue. As one authority has said, "a tribunal... may regard any criterion based on management, voting rights, shareholding or any other reasonable theory as being reasonable for the purpose". Amerasinghe, supra, paragraph 43 (emphasis added).129
There is no definition of juridical person in the ICSID Convention. It is, therefore, within the competence of a tribunal to decide whether or not an entity is a juridical person to which the nationality requirements of Article 25(2)(b) apply. At the consultative meetings the point was made by one expert that the term "company" should not be extended to cover a mere association of persons such as unincorporated partnerships.130 The question of what was meant by the term "juridical person" was also raised by one government.131 On the other hand, the point was made at the consultative meetings that it was desirable to keep the definition of "juridical persons" as neutral as possible in order to take into account the fact that states might differ in the way national laws treated associations, groups, and the like,132 and also that it would be a matter for the host state to decide at the time it consented to ICSID's jurisdiction whether an association or group should be treated as having personality and, therefore, a nationality or whether the individuals forming it should be dealt with directly, because it 129 130 131 132
Ibid. at pp. 346-7. 2 History p. 538. 2 ibid. p. 661. 2 ibid. p. 359.
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was not a juridical person having nationality.133 This approach leaves much to the discretion of the host state. On the one hand, it is clear that where the host state decides to deal with the individuals forming a group or association, it can legitimately do so, and that too for the reason that it regards the association or group as not having juridical personality, but without necessarily having to decide that question. On the other hand, the related question arises of whether the fact that the host state has decided to treat the other party as a juridical person prevents the issue of whether the other party is a juridical person or a plurality of persons from being raised before and decided by a tribunal. Because of the consensual basis of jurisdiction under the ICSID Convention, it is perhaps a good argument that the recognition by the host state of the other party's juridical personality has some effect. In general, a tribunal can be expected to give considerable weight to such recognition. However, there may be circumstances in which a tribunal could disregard such an election. Apart from cases of fraud and circumstances leading to mistake, an adjudicating body may well decide to disregard such an election where, for instance, it is clear that neither according to the law of the host state nor according to the law of the state whose nationality is claimed does the party have juridical personality. While the above may be valid, the possibility must also be seriously considered that, since the ICSID Convention does not define the term "juridical person," there may be circumstances in which the tribunal will use its own, and possibly a flexible, definition of the term in applying Article 25(2)(b). Thus, the term may encompass juridical persons which do not have that status under the law of either the host state or the other contracting state.134
133
2 ibid. p. 284. The jurisdiction of ICSID has also been considered in different aspects by Tupman, "Case Studies in the Jurisdiction of the International Centre for Settlement of Investment Disputes", 35 ICLQ (1986) p. 813, Sturma, "Decision on Jurisdiction of the ICSID Tribunal in the Case Ceskotovenska obhodni banka v. Slovak Republic", 60 Heidelberg Journal of International Law (2000) p. 151. These works are more descriptive than analytical. 134
15 INTERNATIONAL ADMINISTRATIVE TRIBUNALS
(1) FUNDAMENTAL CONSIDERATIONS International administrative tribunals (IATs), like other international tribunals, generally are clearly tribunals of limited jurisdiction (jurisdiction d'attribution) and not of general jurisdiction (jurisdiction de droit commun), as was recognized by the ICJ specifically in relation to the ILOAT.1 Consequently, these tribunals have jurisdictional competence only to the extent that their statutes or governing instruments grant it. Basically, the international organization establishing tribunals or accepting their jurisdiction consents to their jurisdiction to the extent attributed by their statutes, insofar as they are always respondents in cases brought before the tribunal. The staff member or association consents to jurisdiction whenever jurisdiction is invoked by the staff member or association. On the other hand, as also conceded by the ICJ, the arguments deduced from the sovereignty of states, which might have been 1
Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 97.
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Chapter 15. International administrative tribunals
invoked in favour of a very narrow and restrictive interpretation of provisions governing the jurisdiction of a tribunal adjudicating between states, are not relevant to a situation in which a tribunal is called upon to adjudicate upon complaints brought by officials against international organizations.2 Thus, while the limitations upon competence must be observed,3 a fairly liberal approach may be taken to the interpretation of the provisions governing their jurisdiction of the basic instruments of tribunals. That limitations on jurisdictional competence are important was acknowledged by the ILOAT also when it held in Darricades that, as a court of limited jurisdiction, it was bound to apply mandatory provisions governing its competence, even though, as a result the applicant was deprived of any means of judicial redress against the particular injury.4 Apart from the distinction between competence and receivability, there is also a distinction, as has been seen, between the assumption of jurisdiction and the continuing exercise of jurisdiction.5 There have been decisions concerning the powers of IATs in this 2 3
Ibid.
Judge Hackworth recognized the importance of such limitations when he said, in regard to the ILOAT: The Tribunal is not clothed with plenary jurisdiction. Its jurisdiction is wholly statutory and of a limited character. It is not authorized to hear and to pass upon any and every kind of controversy that may arise in connection with the administration of the Organization. On the contrary, its competence, as just stated, is limited by paragraph 5 of Article II of its statute to the two categories of complaints there mentioned. Being a Tribunal of specifically delegated and limited jurisdiction it follows that it must keep within the orbit of that jurisdiction. Our first task, therefore, is to determine whether the complaints here in question fall within the compass of either of the two categories of complaints to which the competence of the Tribunal extends (ibid. at p. 117). Judge Hackworth's view was not in conflict with that of the Court. It merely emphasized the limited nature of the ILOAT's jurisdiction. 4 ILOAT Judgment No. 67 [1962] at p. 5. 5 See Judge Read in Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 143. In many instances tribunals, particularly the CJEC and OECD Appeals Board, have discussed matters of competence as matters of receivability. In fact generally the two tribunals mentioned describe matters relating to competence as being related to recevabilite. Whether a matter relates to competence or receivability must therefore be determined by reference to the real issue which is the subject matter of the ruling.
Fundamental considerations
671
broad sense. Thus, it has been held by the ICJ that the UNAT has power to render judgments binding upon the UN and particularly its General Assembly,6 and tribunals have held that they may not legislate or arbitrate by laying down general rules and establishing a timetable but must decide cases brought before them according to law,7 that they may not give advisory opinions or declaratory judgments,8 that they may not interfere with policy measures unless they involve an abuse of discretion,9 that annulment of a decision was within a tribunal's power where jurisdiction had been conferred by an arbitration clause,10 by implication that a tribunal was under no obligation to investigate or examine a plea that had not been made,11 that the kind of remedial action it may take may be defined and limited,12 and that a tribunal may not award compensation in excess of the maximum specified in its statute.13 However, limitations of jurisdiction of this nature relate to the broadest exercise of powers by tribunals. Jurisdictional competence in the primary sense being discussed here is more limited and concerns the power to assume jurisdiction in a given case. There is one respect of a general nature in which there is an implied restriction by general principle on the power of tribunals to assume jurisdiction. It is generally agreed that lATs in one way or another exercise jurisdiction only over administrative decisions of
6
Effect of Awards of Compensation Opinion, 1954 ICJ Reports p. 47. See Cook et al, IDBAT Reports [1985], Decision No. 5. 8 See The World Bank Staff Association, WBAT Reports [1987], Decision No. 40; Agodo, WBAT Reports [1987], Decision No. 41. 9 See Einthoven, WBAT Reports [1985], Decision No. 23. 10 See Bourgaux, CJEC Case 1/56 [1954-6] ECR p. 361. 11 See the Application for Review of Judgment No. 158 of the UNAT Opinion, 1973 ICJ Reports at pp. 206-7. 12 See Williams, UNAT Judgment No. 355 [1985]; Sharif, UNAT Judgment No. 358 [1985], van der Peet (No. 12), ILOAT Judgment No. 933 [1988], van der Peet (No. 13), ILOAT Judgment No. 934 [1988]. Tribunals are not permitted generally by their statutes to give advisory opinions or declaratory relief as such: The World Bank Staff Association, WBAT Reports [1987], Decision No. 40, Agodo, WBAT Reports [1987], Decision No. 41. 13 See the Effect of Awards of Compensation Opinion, 1954 ICJ Reports p. 47. 7
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organizations in respect of staff members. The legality of legislative or policy instruments are not pronounced on in the abstract and as such. Thus in Agodo it was stated: the Statute contemplates the making by the Respondent of a "decision" that adversely affects the applicant specifically and that will justify "compensations... for an injury individually sustained."... In all other cases decided by the Tribunal, the applicant has alleged some detriment to his own status, compensation or working conditions resulting from a specific Bank decision affecting him... 14 In Brisco the tribunal decided that it had no jurisdiction in the case on the grounds that the application was in effect directed against a general rule regarding employment benefits, rather than an individualized application of that rule to the applicant himself, and that the application was not directed at any specific decision by the Respondent denying him expatriate benefits.15 Jurisdictional competence has, whether by the written law governing IATs or by general principles of law, usually been limited by reference to time (ratione temporis), to person (ratione personae), or to subject matter (ratione materiae). The provisions dealing with and governing the Jurisdictional competence of the various tribunals vary. It is not the purpose here to examine these provisions individually and in detail. The object is to examine the main issues which have arisen in determining the Jurisdictional competence of lATs.16 14
WBAT Reports [1987], Decision No. 41 at pp. 14-15. See also The World Bank Staff Association [1987], Decision No. 40 at pp. 38-40. 15 WBAT Reports [1992], Decision No. 118 at p. 11. This case was followed on similar facts in WBAT Reports [1992], Decisions Nos. 119-26. For similar views see, e.g., Castro, IDBAT Reports [1985], Decision No. 5, Decision No. 20 NATO Appeals Board [1986]. More recently see e.g., Ngoma ILOAT Judgment No. 1134 [1992]. 16 As an example of provisions relating to competence Article 2 of the UNAT statute may be taken: 1. the Tribunal shall be competent to hear and pass judgment upon applications alleging non-observance of contracts of employment of staff
Fundamental considerations
673
Generally the statutes of IATs provide that the tribunals themselves have the power to settle any disputes as to their own competence.17 It does not seem that a dispute as to competence must always arise between the parties in order that the tribunal examine the question of its jurisdiction, as there are cases in which tribunals have pronounced on their jurisdiction proprio motu.18 In other words tribunals keep careful watch over the limits of their competence and may always determine whether they have jurisdictional competence or not before dealing with the merits of a case.
members of the Secretariat of the United Nations or of the terms of appointment of such staff members. The words 'contracts' and 'terms of appointment' include all pertinent regulations and rules in force at the time of alleged non-observance, including the staff pension regulations. 2. The Tribunal shall be open: (a) To any staff member of the Secretariat of the United Nations even after his employment has ceased, and to any person who has succeeded to the staff member's rights on his death. (b) To any other person who can show that he is entitled to rights under any contract or terms of appointment, including the provisions of staff regulations and rules upon which the staff member could have relied. 3. The Tribunal shall not be competent, however, to deal with any applications where the cause of complaint arose prior to 1 January 1950. Provisions of other statutes dealing with competence are, e.g., Article II of the ILOAT statute, Article II of the WBAT statute, Article II of the IDBAT statute, Articles 59 and 60 of the Staff Regulations of the Council of Europe and Article 5 of the statute of the Appeals Board of the Council of Europe, Article 4.21 of Annex IX of the NATO Civilian Personnel Regulations, Article 50 of the Staff Rules of WEU, Regulation 33 of the Staff Regulations of ESA, Article II of the statute of the Appeal Board of ICM, Article II of the statute of the OASAT, Regulation 22 of the Staff Regulations of OECD. These statutes and regulations are reproduced in Amerasinghe (ed.), Documents on International Administrative Tribunals (1989) passim. 17 See, e.g., Article 2(3) of the UNAT statute; Article 11(7) of the ILOAT statute, Article III of the WBAT statute, Article 4 of the statute of the Council of Europe Appeals Board: see Amerasinghe (ed.), op. cit. note 16. 18 See, e.g., de Merode, WBAT Reports [1981], Decision No. 1, Decision No. 12, OEEC Appeals Board [1952], Recueil des decisions 1 a 62 (1979) p. 40, Decision No. 13, OEEC Appeals Board [1952], ibid. p. 43. Some tribunals such as the OASAT pronounce on their jurisdiction as a matter of routine.
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Chapter 15. International administrative tribunals (2) JURISDICTIONAL COMPETENCE
(a) Competence Ratione Temporis The statutes of some IATs explicitly specify the operative date relating to their competence ratione temporis, that is, they state that causes of action arising before the establishment of the tribunal or before a certain date prior to its establishment may not be litigated before the tribunal.19 In such cases the general principle is that causes of action arising before the establishment of the tribunal or the date specified prior to the establishment of the tribunal are outside the competence of the tribunal, though the statute could provide for an earlier date.20 Where the statute of the tribunal is silent as to the operative date relating to its competence ratione temporis,21 the principle adopted by the IDBAT was that it was evident that the grievance system established was set up for complaints arising after the date of establishment of the tribunal, with the result that the tribunal would normally not have had jurisdiction over causes of action which had arisen before that date.22 19
See, e.g., Article 11(6) of the OASAT statute: Amerasinghe (ed.), op. cit. note 16 at p. 84, Article XVII of the WBAT statute: ibid. at p. 49. 20 See Bouvaist-Hayes, LNT Judgment No. 4 [1930]. See also Cisneros, OASAT Judgment No. 18 [1975], for a statute specifying an earlier date. See Novak, WBAT Reports [1982], Decision No. 8 at p. 4. But the conditions laid down by the statute must be satisfied: see Smith Scott, WBAT Reports [1981], Decision No. 4, Mendaro, WBAT Reports [1985], Decision No. 26. 21 See, e.g., the IDBAT statute: Amerasinghe (ed.), op. cit. note 16 p. 62, the statute of the Council of Europe Appeals Board: ibid. p. 121. 22 Burey, IDBAT Reports [1985], Decision No. 4. The general principles being incontestable, it is significant that the IDBAT did venture to suggest in the same case that there may be an exception to them. Without deciding the issue the tribunal held that, on the assumption that grave injustice with ramifying consequences over a long period of time might justify its exercising jurisdiction in a case where the cause of action arose before the operative date, there was insufficient evidence in the applicant's case to establish such grave injustice. If such an exception were contemplated it would, in all reason, apply equally to situations where the statute of the tribunal specified as the operative date a date prior to its establishment as to situations where the operative date was expressly or by implication the date of establishment of the tribunal.
Jurisdictional competence
675
This Jurisdictional competence ratione temporis must be distinguished from inadmissibility or irreceivability ratione temporis.23 (b) Competence Ratione Personae The statutes of most LATs contain provisions limiting explicitly or implicitly their competence ratione personae to staff members of the respondent organization and certain other persons or groups of persons.24 As for the respondent, it is generally the case that only the organization to which the tribunal belongs comes within its jurisdiction but in the case of some tribunals there are provisions in their statutes for other organizations to be brought within their jurisdiction.25 In regard to respondents, the ILOAT has had to decide some cases in which the competence of the tribunal was in issue. In two cases the tribunal held that, since the respondents cited were independent bodies which had not accepted its jurisdiction under the relevant provisions of its statute, the tribunal had no jurisdiction in the cases whether with them as respondents or with the organizations (WHO, UNESCO and PAHO respectively), which had accepted its jurisdiction and with which the independent bodies were alleged to have close links, as respondents.26 23
See below Section 3. See, e.g., Article 2(1) and (2) of the UNAT statute, Article 59 if the Staff Regulations of the Council of Europe: see Amerasinghe (ed.), op. cit. note 16. 25 See, e.g., Article II(5) of the ILOAT statute, Article XV of the WBAT statute: see Amerasinghe (ed.), op. cit. note 16. 26 Brache, ILOAT Judgments No. 137 [1969], Gomez, ILOAT Judgment No. 433 [1980], Joaquin and Navarette, ILOAT Judgment No. 650 [1985]. An officer working for the UN office in Geneva may, on the other hand, be a staff member of WHO and sue WHO: Grover, ILOAT Judgment No. 803 [1987]. In two other cases, the ILOAT held that it was competent to decide actions brought by former staff members of Eurocontrol against that organization, because Eurocontrol had accepted the jurisdiction of the tribunal by addressing to ILO a declaration under the statute of the tribunal recognizing the jurisdiction of the tribunal; Volz, ILOAT Judgment No. 493 [1982], Heltzel, ILOAT Judgment No. 500 [1982]. In the first case the tribunal said that the declaration constituted an international agreement establishing the tribunal's competence which prevailed over rules unilaterally adopted earlier by one of the parties: loc. cit. at p. 3. For the 24
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As for applicants, since the provisions of the statutes of the various tribunals differ, it will depend on the interpretation of those provisions whether an applicant comes within the competence of the tribunal. In most cases it is a question of determining whether the applicant comes within the definition of "staff member", "former staff member", or any remaining category or categories specifically mentioned. The interpretation of statutory provisions may vary. For example, some tribunals have regarded consultants as within the definition of'staff member' for the purposes of jurisdiction,27 while others have regarded them and temporary employees as outside such definition unless the institution had specifically extended the coverage of the tribunal's jurisdiction to them.28 Both the ICJ and the ILOAT have stated that applicants for new appointments who fail to obtain them cannot be regarded as staff members.29 The WBAT has
CJEC see Humblet, CJEC Case 6/60 [1960] ECR p. 1125, Mr. and Mrs. D, CJEC Case 1/82 [1982] ECR p. 3709. The CJEC used the terms "recevable" in this context whereas the matter was one of competence. 27 See Skandera, WBAT Reports [1981], Decision No. 2, Justin, WBAT Reports [1984], Decision No. 15. 28 See Decision No. 53(a), NATO Appeals Board [1973], Collection of the Decisions 46 to 73 (1976), Decision No. 53(b), NATO Appeals Board [1974], ibid., Decision No. 12, OEEC Appeals Board [1952], Recueil des decisions 1 a 62 (1979) p. 40, Decision No. 13, OEEC Appeals Board [1952], ibid. p. 43. The ILOAT has not exercised jurisdiction over non-staff members: Silow, ILOAT Judgment No. 171 [1970]. See also Danzebrink, LNT Judgment No. 21 [1939], where the tribunal held that it had no jurisdiction over a staff member of the Saar Commission who was not a staff member of the LN and brought an action against the LN, Pelletier ILOAT Judgment No. 68 [1964], Wright, ILOAT Judgment No. 117 [1968], Salmouni Zerhouni, ILOAT Judgment No. 449 [1981]. For other cases where there was no jurisdiction, see Sletholt, ILOAT Judgment No. 231 [1974], Darricades, ILOAT Judgment No. 67 [1962], Decision No. 5, NATO Appeals Board [1967], Collection of the Decisions (1972), Decision No. 26, NATO Appeals Board [1971], ibid. 29 Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 92, Chen (No. 2), ILOAT Judgment No. 547 [1983] at p. 3. On the other hand, unsuccessful candidates for posts in the European Communities may bring actions before the CJEC as a result of the express provisions of the written law; Vandervyvere, CJEC Case 23/64 [1965] ECR p. 157. For other situations in which the requirements rationepersonae have been applied, see Hilpern, UNAT Judgment No 57 [1955], JUNAT Nos. 1-70 p. 296. The CJEC has held
Jurisdictional competence
677
held that, while the Staff Association of the World Bank Group may appear as amicus curiae before the tribunal, it had no standing under the statute of the WBAT to file an application.30 A general requirement is that, even if the applicant falls within the definition of those who have standing before the tribunal, he or she must have an interest in the substance of the claim by being directly affected by the administrative decision contested.31 Two significant problems that have arisen concern former staff members whose fixed-term contracts have not been renewed and those who claim that they have a contract of employment with the respondent organization and are, therefore, staff members. In regard to the first category of persons the ICJ has held that the ILOAT did not exceed its jurisdiction in considering former fixed-term contract holders as former staff members who had standing to litigate before the tribunal and that the question whether the decision not to renew their contracts was properly taken.32 There are several cases dealing with the second category of persons. The conclusion reached in Justin33 reflects the general approach taken by those tribunals that have addressed the issue. that local employees who claimed to be employees of the European Communities had standing before it: Porrini and Others, CJEC Case 65/74 [1975] ECR p. 319. The CJEC's view of the statutory provisions governing standing are very broad. See also Kahal, ILOAT Judgment No. 46 [I960]. The CJEC has held that in accordance with the provisions governing its jurisdiction former staff members could file applications in regard to decisions affecting them which were taken while they were staff members: see Scuppa, CJEC Cases 4 & 30/74 [1975] ECR p. 919, Marenco and Others, CJEC Cases 81 to 88/74 [1975] ECR p. 1247. Neuville, ILOAT Judgment No. 394 [1980] (WHO), the applicant who was the brother of a deceased staff member of WHO was held not to have standing as a person deriving rights from the staff member. Much depends on the interpretation of the statute or Jurisdictional instrument concerned as regards the extent of the acceptance of jurisdiction ratione personae and often how the term "staff member", "official" or the equivalent is interpreted: see Zayed, ILOAT Judgment No. 868 [1987], Antal, ILOAT Judgment No. 967 [1988], Bustos, ILOAT Judgment No. 701 [1985], Giussi, ILOAT Judgment No. 702 [1985]. 30 The World Bank Staff Association, WBAT Reports [ 1987], Decision No. 40. 31 See Agodo, WBAT Reports [1987], Decision No. 41. 32 Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports p. 77. 33 WBAT Reports [1984], Decision No. 15.
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Chapter 15. International administrative tribunals
There it was held that, since the applicant alleged that a contract of employment existed between him and the organization (which he claimed had been breached), the tribunal had the power to consider the merits of the applicant's claim of contract formation for the limited purpose of determining its own jurisdiction. Thus, tribunals have assumed jurisdiction ratione personae in order to determine whether an applicant had a contract which would have entitled him to claim that his rights had been violated, even though it was not clear that the applicant was truly a staff member at the time for the purposes of their statutes. Consequently in many cases tribunals have assumed jurisdiction over persons who only claimed to be staff members and sometimes on the basis of a contract to employ them, even though they had not been given a formal appointment.34 The written law governing some tribunals explicitly requires that acts or omissions questioned before those tribunals should adversely affect the applicant in the proceedings.35 Others have slightly different language.36 Whatever the language, tribunals, when faced with the issue, have had no hesitation in holding that,
34
See Larbathe, ILOAT Judgment No. 307 [1977], Poulin, ILOAT Judgment No. 621 [1984]. It is not necessary here in connection with competence to deal with the details of how tribunals have approached the question of deciding whether there was a contract between parties which was actionable or even an appointment. Suffice it to say that the solution to this question has not been on uniform lines: see, e.g., Camargo, UNAT Judgment No. 96 [1965], JUNAT Nos. 87-113 p. 81, Teixeira, UNAT Judgment No. 230 [1977], ibid. p. 590, Silenzi di Stagni, ILOAT Judgment No. 71 [1964], Chadsey, ILOAT Judgment No. 122 [1968], Kennedy, ILOAT Judgment No. 339 [1978]. See also Amerasinghe and Bellinger, "Claimants to Staff membership before International Administrative Tribunals", 38 ICLQ (1988) p. 653. Staff Associations and Staff Unions in general do not qualify as staff members but may have standing as a result of special provisions in the instruments governing jurisdiction. 35 See, e.g., Article 59 of the Staff Regulations of the Council of Europe; Articles 90 and 91 of the Staff Regulations of the EC: Amerasinghe, (ed.), 4 Staff Regulations and Staff Rules of Selected International Organizations (1983) at pp. 25-6. 36 See, e.g., Article II(1) of the statute of the WBAT, Article 4.21 of Annex IX of the Civilian Personnel Regulations of NATO: Amerasinghe (ed.), 1 ibid. at pp. 114-15.
Jurisdictional competence
679
unless the applicant has an interest of a kind which the tribunal will protect,37 or is capable of being adversely affected by an act of the respondent,38 or is directly affected by a decision,39 the tribunal will not adjudicate upon the application. Unfortunately tribunals have referred to this ground as one relating to admissibility in that they have used the terms "inadmissible" and "admissible" (irrecevable and recevable) in dealing with this issue. Nevertheless, the issue relates to competence ratione materiae, as has been accepted in its practice by the ICJ (see Chapter 13). It is a matter for the appreciation of the tribunal and of interpretation by it whether a particular decision or implied decision resulting from an omission has or has not adversely affected the applicant or has or has not an interest for him of a kind which the tribunal will not protect. The decision will obviously depend to a large extent on the circumstances of each case.40 There are fewer cases in which tribunals have found that the applicants had no interests which were
37
See, e.g., Tevoedjre, ILOAT Judgment No. 580 [1983], Decision No. 32, ESRO/CR/81, ESRO Appeals Board [1973]. 38 See, e.g., Maudet, CJEC Cases 20 & 21/63 [1964] ECR p. 213, Grassel CJEC Case 23/80 [1980] ECR p. 3709. See also now Alvarez-Santullano et al, ILOAT Judgment No. 835 [1986], Bohn and Others, UNAT Judgment No. 378 [1986]. 39 See, e.g., Lafuma, Council of Europe Appeals Board, Appeal No. 7 [1972], Case-Law Digest (1985) p. 33, Decision No. 10, ELDO Appeals Board [1973]. 40 In Tevoedjre, the issue was whether the appointment of the incumbent to the post of Director General of ILO was in violation of the Staff Rule of the ILO on the retirement age. Because, inter alia, the candidacy of the incumbent increased the odds against the election of the applicant and a member government by withdrawing its support of the applicant on account of the incumbent's candidacy deprived him of at least one opportunity of standing for election, the tribunal held that alleged violation of the law was capable of doing him injury and, therefore, his application was admissible: ILOAT Judgment No. 580 [1983]. See also, e.g., Scuppa, CJEC Cases 4 & 30/74 [1975] ECR p. 919, Farcot and Others, Council of Europe Appeals Board, Appeals Nos. 52-75 [1983], Case-Law digest (1985) p. 84, Decision No. 11, ELDO Appeals Board [1973], Decision No. 12, ELDO Appeals Board [1974], De Roubaix, Case 25/77 [1978] ECR p. 108, Giannini, CJEC Case 265/81 [1982] ECR p. 3865.
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Chapter 15. International administrative tribunals
subject to protection by the tribunals and that, therefore, their applications were not admissible.41 (c) Competence Ratione Materiae While the exact subject-matter within a tribunal's competence must always rest on the terms and interpretation of its particular statute, in general some define that subject-matter by reference at least to the non-observance of contracts of or terms of employment, while others refer to decisions taken by the administrative authority which adversely affect the staff member.42 The problems that have arisen relate to whether fact-situations over which the jurisdiction of tribunals has been invoked fall within the concepts referred to in the statutes. The answers have depended to a large extent on the specific total written law of the organization which has been in issue and on the circumstances of each case. Thus, in one case investigating the validity of elections to Staff Associations or Staff Committees may be within the scope of a tribunal's jurisdiction,43 while in another it may not,44 since the Staff Regulations on the subject may vary. Rights under a pension plan have been regarded as pertaining to conditions of employment,45 as have allegations that international or 41
In Hebrant the CJEC held that budgetary decisions of the competent departments of an institution were not capable of affecting the position of officials under the Staff Regulations and consequently could not adversely affect officials for the purposes of the Court's jurisdiction, so that an application questioning such decisions was inadmissible: CJEC Case 141/80 [1980] ECRp. 3509. See also, e.g., Lafuma, Council of Europe Appeals Board, Appeal No. 7 [1972], Case-Law Digest (1985) p. 33, Decision No. 32, ESRO/CR/81, ESRO Appeals Board [1973], Fonzi, CJEC Cases 27 & 30/64 [1965] ECR p. 481, Korter, CJEC Case 148/79 [1981] ECR p. 615, Schloh, CJEC Case 85/82 [1983] ECR p. 2105. 42 For the first kind of statute see: Article 2(1) of the UNAT statute, Article 11(1) of the WBAT statute: Amerasinghe (ed.), op. cit. note 16. For the second kind of provision see: Article 59(1) of the staff Regulations of the Council of Europe, Article 4.21 of Annex IX of the NATO Civilian Personnel Regulations: see Amerasinghe (ed.), ibid. 43 de Dapper and Others, CJEC Case 54/75 [1976] ECR p. 1381. 44 Pilleboue, ILOAT Judgment No. 78 [1964]. 45 See Charbonnieras, ILOAT Judgment No. 277 [1976], Ribeiro, IDBAT Reports [1986], Decision No. 10. On the other hand, the ILOAT has held that it has no jurisdiction over disputes concerning the Joint UN Pension Fund and its
Jurisdictional competence
681
other agreements giving rise to rights for staff members have been violated.46 Whether a matter relates to a condition of or to the terms of employment may not depend on whether it is expressly dealt with in Staff Regulations or in other written law, as rights could flow from the status of international civil servants.47 It has been confirmed that tribunals normally have jurisdiction in cases concerning the refusal to renew fixed-term contracts.48 On the other hand, tribunals have held that they are incompetent to hear complaints against violations as such of the laws of member states of the respondent organization.49 A complaint is outside the competence of the tribunal's jurisdiction because, while attacking general legislation, it does not allege a violation of the applicant's particular rights.50 Regulations over which the UNAT had jurisdiction: see Freemen (No. 2) and Malcolm (No. 2), ILOAT Judgment No. 867 [1987], Cabral et al, ILOAT Judgment No. 836 [1987]. The ILOAT has also held that a dispute relating to reduced pension fund contributions of GATT officials was not within it jurisdiction under Article 11(5) of its statute: Thorn (No. 2) et al., ILOAT Judgment No. 837 [1987]. The UNAT has assumed jurisdiction in cases filed by staff members of organizations relating to the provision of the Joint UN Pension Fund and its Regulations: see Gilbert and Others, UNAT Judgment No. 379 [1986], Connolly-Battisti, UNAT Judgment No. 400 [1987]. 46 See Lamadie (No. 2), and Kraanen, ILOAT Judgment No. 365 [1978], Bernard and Coffino, ILOAT Judgment No. 380 [1979], Domon and Lhoest, ILOAT Judgment No. 381 [1979]. 47 See Press, ILOAT Judgment No. 66 [1962] at p. 3, Berti, CJEC Case 131/81 [1982] ECR p. 3493. 48 See Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 90 ff, Duberg etc., ILOAT Judgment Nos. 17-19, 21 [1955], Robert, ILOAT Judgment No. 56 [1961]. For other cases in which jurisdiction was seen to be exercisable in matters concerning the Staff Regulations or general rights see Belchamber, UNAT Judgment No. 236 [1978], JUNAT Nos. 231-300 p. 39, Fournier d'Albe (No. 2), ILOAT Judgment No. 417 [1980], Mendaro, WBAT Reports [1985], Decision No. 26, Graneros, OASAT Judgment No. 49 [1979], de Bruyn, CJEC Case 25/60 [1962] ECR p. 21. Apart from the Staff Regulations or general rights competence may exist as a result of an arbitration clause, depending on the statute of the tribunal: see Mirossevich, CJEC Case 10/55 [1954-6] ECR p. 333. 49 See de Agiiero, OASAT Judgment No. 52 [1980], Brunetti and Others, OASAT Judgment No. 95 [1986]. 50 Jurado (No. 10), ILOAT Judgment No. 103 [1967]. There are other cases in which the ILOAT particularly has held that the subject-matter of the complaint
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Chapter 15. International administrative tribunals
The ICJ has held that, unless there is a specific plea by an applicant for a remedy and alleging a particular violation of his rights, an administrative tribunal as an independent and truly judicial body could not be expected to examine such a plea proprio motu, even though the subject-matter may be within its competence.51 The Court did not say that the plea, if not made, would be outside the jurisdiction of the tribunal. While it could not be expected to take up the plea proprio motu, the plea would still be within the tribunal's competence, provided the subject-matter of the plea was within its competence. A special problem has arisen in connection with legislative acts of the respondent organization and decisions taken by the governing body of the organization. The ILOAT has held that the mere fact that a decision has been taken by the governing body does not remove the decision from the tribunal's competence, since it is competent to hear an appeal taken against any authority in the organization, if it alleges infringement of the contract of employment of the applicant or violation of the Staff Regulations.52 The WBAT has held that was outside its competence: see Jurado, ILOAT Judgment No. 70 [1964], Aelvoet and Others, ILOAT Judgment No. 902 [1988]. In Decision No, 38, NATO Appeals Board [1972], Collection of the Decisions (1972), the tribunal held that a decision of the US authorities was outside its competence. In de Peganow, LNT Judgment No. 16 [1937], the LNT ruled that the applicant's complaint related to matters arising after the applicant's service had been terminated and was, therefore, outside its competence. See also Campo, UNAT Judgment No. 417 [1988]. There are several cases in which tribunals have examined the relevant instruments in the light of the facts before them and found that they did have jurisdiction ratione materiae: see e.g., Elle, UNAT Judgment No. 375 [1986], Snell, ILOA Judgment No. 744 [ 1986], Da, ILOAT Judgment No. 873 [1987], Castro, IDBAT Reports [1985], Decision No. 7, Feme et al., Decision No. 107, OECD Appeal Board [1987], Decisions Nos. 174 to 180, 182, 184 to 186, 188 to 195, NA Appeals Board [1985], Tordeur and Others, CJEC Case 232/84 [1985] p. 3223. 51 Application for Review of Judgment No. 158 of the UNAT Opinion, 1973 ICJ Reports at p. 207. 52 Tevoedjre, ILOAT Judgment No. 580 [1983] at p. 6. See also Krug, Decision No. 87, OECD Appeals Board [1981], Recueil des decisions 83 a 102 (1983) p. 11, Bernot, Decision No. 89, OECD Appeals Board [1981], ibid. p. 19. In the latter cases the tribunal held that the execution by the administration of a decision of the council of OECD could be questioned, even though the application virtually attacked a decision of the Council.
Jurisdictional competence
683
legislative acts of the rule-making body of the World Bank could be questioned before it.53 The mere fact that legislative acts are being put in issue is not, thus, a bar to the competence of the tribunal. On the other hand, tribunals have held in effect that, where legislative acts or abstract rules of general purport are brought into question, there must be a challenge of an actual decision taken in respect of and applied to the applicant in the case, it being inadequate merely to seek the annulment of the legislative act which the tribunal has no authority to grant.54 Thus, while legislative acts and abstract rules of general purport are within the competence of tribunals, it is not within their power generally to annul such acts or rules. Legislative acts which involve the authorization of entry into international agreements, and thus give the latter effect in the sphere of staff relations with the organization, are on the same footing as legislative acts in general.55 The argument that, if tribunals had competence to review such acts, the authority of the states parties to such agreements would be impaired has been rejected. 53
de Merode, WBAT Reports [1981], Decision No. 1. See also Decision No. 9, Decision No, 10 and Decision No. 11, ELDO Appeals Board [1973], Decision No. 12, ELDO Appeals Board [1974]. The WBAT has held implicitly that policy decisions are also not outside the competence of the tribunal; see Einthoven, WBAT Reports [1985], Decision No. 23. On the other hand, the justification for policy decisions may not be questioned; Decision No. 36, NATO Appeals Board [1972], Collection of the Decision, (1972), though, as was held by the WBAT in Einthoven, a policy decision, may be examined by the tribunal in order to establish whether there had been an abuse of discretion. 54 See, e.g., Powell, UNAT Judgment No. 237 [1979], JUNAT Nos. 231-300 p. 56, Cuvillier and Others, UNAT Judgment No. 328 [1984], Giroud (No. 2) and Lovrecich, ILOAT Judgment No. 624 [1984], Chisman and Others, OASAT Judgment No. 64 [1982], Decision No. 169(b), NATO Appeals Board [1984], Collection of the Decisions 135 to 171 (1984), Ooms and Others, CJEC Case 48/79 [1979] ECR p. 3121, Amesz and Others, CJEC Cases 532, 534, 567, 600 618 & 660/79 [1982] ECR p. 4465. Internal or general measures may not be questioned as such until they result in a decision taken in respect of the applicant which must, of course, adversely affect him: see, e.g., Muller, CJEC Cases 109/63 & 13/64 [1964] ECR p. 663, List, CJEC Case 124/78 [1979] ECR p. 2499. See more recently, e.g., Ngoma, ILOAT Judgment No. 1134 [1992]. 55 See Lamadie No. 2 and Kraanen, ILOAT Judgment No. 365 [1978], Mertens (No. 2) ILOAT Judgment No. 371 [1979].
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Just as in the above cases it has been emphasized that in the case of legislative decisions or general rules there must be a decision affecting the applicant to activate the competence of a tribunal, the ILOAT has drawn attention to the fact that even in other situations, in order that the tribunal may exercise its jurisdiction there must be a final administrative decision affecting the staff member taken by the administration.56 Such a decision may, of course, be implied.57 56
Crapon de Caprona, ILOAT Judgment No. 112 [1967] at p. 3. A report was held in that case not to be a decision of the kind that would activate the tribunal's jurisdiction. Contra Tarrab (No. 5), ILOAT Judgment No. 466 [1982]. While the conclusion that a decision is necessary to activate the jurisdiction of a tribunal cannot be questioned, on the facts Tarrab (No. 5) is to be preferred to Crapon de Caprona, as far as the ruling on whether there was a decision is concerned. In Kiister, CJEC Case 122/75 [1976] ECR p. 1685, the CJEC took a view similar to that taken in Tarrab (No. 5). There are some cases in which the issue whether there was a final decision was raised and it was held that there was such a decision: see, e.g., Berube, UNAT Judgment No. 221 [1977], JUNAT Nos. 167-230 p. 512, Moser, UNAT Judgment No. 304 [1983], Lindsey, ILOAT Judgment No. 61 [1962], Algera, CJEC Cases 7/56 & 3 to 7/57 [1957] ECR p. 39, Carbognani and Coda Zabetta, CJEC Cases 161 & 162/80 [1981] ECR p. 543. The issue may be a difficult one to resolve in a given case and may depend to a large extent on the circumstances of the case. In many cases tribunals have held that there was no decision such as would activate their jurisdiction. In Kahal, ILOAT Judgment No. 45 [1960], for instance, correspondence relating to the applicant's case was held not to be a final decision, because an internal board was dealing with the case and had not pronounced on it. In Jadoul, ILOAT Judgment No. 468 [1982], the tribunal held that the applicant's challenge to an appraisal report was premature because the report could only have become final after some further internal procedures had been completed. Other cases in which there was held to be no final decision which could activate the jurisdiction of the tribunal are, e.g., Bauta y Delgado, OASAT Judgment No. 4 [1973], Decision No. 46, NATO Appeals Board [1973], Collection of the Decision 46 to 73 (1976), Decision No. 95, NATO Appeals Board [1978], Collection of the Decision 65(b), 74 to 99 (1979), B, CJEC Case 123/80 [1980] ECR p. 1789. 57 There does not always have to be a positive act in order that rights of staff members be infringed. Where an omission results in such infringements, a decision confirming the omission may, in the appropriate circumstances, be taken to be implied for the purpose of a tribunal's competence. On the other hand, where an express decision is relied on, it must be final, if the competence of the tribunal is to be activated: see Hayward, ILOAT Judgment No. 336 [1978]. See Amerasinghe, 1 The Law of the International Civil Service (1994), Chapter 20.
Jurisdictional competence
685
It is possible that a matter may lie within the competence of one international administrative tribunal, such as the ILOAT, but not within that of another, such as the UNAT. In such cases tribunals have been careful not to assume jurisdiction because the matter was outside their competence ratione materiae.58 Where a statute of a tribunal required an allegation of nonobservance of the law, the ICJ has explained what was involved in such a requirement. The Court held59 that, in order that the tribunal have competence ratione materiae, it is necessary that the complaint indicate some genuine relationship between the complaint and the provisions invoked but that it is not required that the facts alleged should necessarily lead to the results alleged by the applicants, which is a matter for decision on the merits. On the other hand, it was insufficient that an artificial or remote connection be established between the facts of the claim and the rules alleged to have been infringed.60 More than one tribunal has applied the rule that where the application is devoid of purpose, especially because of subsequent events, it cannot proceed to decide the merits. For example, in Angelopoulos, the Appeals Board of the OECD held that the applicant's request for the reimbursement of travelling expenses incurred 58
See Vermaat, UNAT Judgment No. 118 [1968], JUNAT Nos. 114-166 p. 43, Ambrozy, ILOAT Judgment No. 119 [1968]. 59 Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 89. In that case the Court found that the allegations that by not renewing the fixed-term contracts of the applicants the organization had infringed their rights were based on an interpretation of their contracts and of certain lawcreating instruments. These terms and provisions which had been invoked were held apparently to have a substantial and not merely an artificial connection with the refusal to renew the contracts. 60 The statute of the ILOAT in Article 11(2) gives the tribunal jurisdiction in cases involving injury sustained in the course of employment: see Amerasinghe (ed.), op. cit. note 16. In Alonzo, ILOAT Judgment No. 362 [1978], the tribunal was called upon to decide whether it was competent in a case in which the applicant alleged that she had suffered pecuniary loss as a result of her having personally to pay counsel's fees because she was chairperson of a committee of the Staff Association. The tribunal held that, inter alia, 'injury' meant physical injury, and the loss was in any case not suffered in the course of her employment with the result that the case was outside its competence.
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by his counsel had become moot, since the respondent had reimbursed the amount requested.61 In Miss M, on the other hand, where the applicant was suing the Commission of the EC for failure to appoint her to a vacant post in the EC, the Court held that the fact that she had been appointed an official of the European Parliament after she had filed her application did not render her application without purpose, since, on any view, she had an interest in causing to be withdrawn any trace of a finding of unfitness at a physical level, even though she was in a different position from that in which she was before she filed her application.62 (3) IRRECEIVABILITY OR INADMISSIBILITY Even though a case may truly fall within the jurisdictional competence of an IAT, there may be reasons for its irreceivability or inadmissibility, arising from the provisions of the tribunal's statute or governing instruments. Inadmissibility results from conditions required to be fulfilled by those provisions, as appropriately interpreted, sometimes in the light of general principles. (a) Ratione Temporis Conditions relating to time-limits for the filing of an application may result in the application being inadmissible ratione temporis. The provisions governing the different tribunals vary but those which apply now all set a time-limit within which applications must 61
Decision No. 78, OECD Appeals Board [1980], Recueil des decisions 63 a 82 (1980) p. 45. See also, e.g., Elz, CJEC Case 15/68 [1969] ECR p. 31, Giry, CJEC Cases 126/75, 34 & 92/76 [1977] ECR p. 1937, List, CJEC Case 124/78 [1979] ECR p. 2499, Mascetti, CJEC Case 145/80 [1983] ECR p. 2343. Unfortunately both the CJEC and OECD Appeals Board have referred to issues relating to absence of purpose as being related to receivability or admissibility. It is clear that they relate to competence. Again, reference is made to the practice of the ICJ in this regard (Chapter 7), as in the case of absence of interest discussed above. 62 CJEC Case 155/78 [1980] ECR p. 1797. See also Kiisterk, CJEC Case 79/74 [1975] ECR p. 725, Michel, CJEC Case 195/80 [1981] ECR p. 2861.
Irreceivability or inadmissibility
687
be filed.63 Since the governing provisions vary, much will depend on the particular provisions relating to a tribunal. However, there are certain common problems which have arisen in the implementation of these provisions. In Mirossevich64 the CJEC held that, since there was no time-limit specified in the governing instruments for an application to the Court, no time-limits were applicable. Thus, the relevance of a time-limit for admissibility of an application depends entirely on the express written law. No doubt in the absence of such a time-limit, the possibility of requiring a time-limit based on the doctrine of undue delay or laches remains, though in Mirossevich no such delay was evident on the facts of the case. (i) Mandatory Nature of Time-limits Especially where the governing instruments do not give the tribunal the option of extending or waiving the time-limit for the filing of an 63
The provisions of the UNAT statute may be taken as an example. Article 7 provides: 2. In the event of the joint body's recommendations being favourable to the application submitted to it, and in so far as this is the case, an application to the Tribunal shall be receivable if the Secretary General has: (a) Rejected the recommendations; (b) Failed to take any action within the thirty days following the communication of the opinion; or (c) Failed to carry out the recommendations within the thirty days following the communication of the opinion... 4. An application shall not be receivable unless it is filed within ninety days reckoned from the respective dates and periods referred to in paragraph 2 above, or within ninety days reckoned from the date of the com-munication of the joint body's opinion containing recommendations unfavourable to the applicant. If the circumstances rendering the application receivable by the Tribunal... is anterior to the date of announcement of the first session of the Tribunal, the time limit of ninety days shall begin to run from that date. Nevertheless, the said time limit on his behalf shall be extended to one year if the heirs of a deceased staff member who is not in a position to manage his own affairs, file the application in the name of the said staff member. 5. In any particular case the Tribunal may decide to suspend the provisions regarding time limits. Amerasinghe (ed.), op. cit. note 16 at pp. 8-9. 64 CJEC Case 10/55 [1954-6] ECRp. 333.
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application, it has been held that the observance of the time-limit is mandatory with the consequence that it must be respected and cannot be extended or waived by the parties or by the tribunal at will.65 But even where extension or waiver by the tribunal is permitted by the governing instruments, it has been said that the timelimit may not be modified by the tribunal at will.66 On the other hand, the ILOAT has explained that the rules as to receivability, which are procedural rules, are designed to protect the organization against what might be a greater injustice to it, if access to the tribunal were totally unrestricted,67 while the Appeals Board of ESRO took the view that it should take a liberal approach to the application of time-limits.68 Though it cannot be denied that provisions as to time-limits are mandatory and, especially where no exception is made for special situations, must be strictly observed, it may be possible also to concede that a somewhat liberal approach should be taken to their application where special circumstances are provided for and sometimes where they are not, and that there may be certain consequences flowing from recognition of the fact that the object of time-limits for the filing applications is in reality to protect the organization. As stated by the LNT, a consequence of the mandatory nature of the time-limits for the filing of applications is that the tribunal must strictly, even if not requested to do so by one of the parties, consider whether the application is receivable before considering the substance of the dispute.69 Not only may the time-limits not be tacitly and automatically waived by the parties, so that the decision on 65
See Raina, ILOAT Judgment No. 31 [1958], Hunt, ILOAT Judgment No. 739 [1986], Belfiore, CJEC Case 108/79 [1980], ECR p. 1769, Delbez and Others, CJEC Case 264/83 [1985] ECR p. 2179, Bauer, UNAT Judgment No. 420 [1988], Brown, Council of Europe Appeals Board [1988], Decision No. 150, Decision No. 207, NATO Appeals Board [1986], Malatesta and Others, OASAT Judgment No. 75 [1984]. 66 Novak, WBAT Reports [1982], Decision No. 8 at p. 6. 67 Nielsen, ILOAT Judgment No. 522 [1982] at p. 11. 68 Decision No. 33, ESRO/CR/85, ESRO Appeals Board [1973]. The statute of the tribunal, like many other statutes, allowed for exceptional circumstances. 69 Desplanque, LNT Judgment No. 19 [1938].
Irreceivability or inadmissibility
689
admissibility is taken away from the tribunal, but the tribunal can proprio motu decide the issue of receivability in relation to timelimits.70 On the other hand, there is nothing to prevent a tribunal from considering the merits of the case, if it thinks it necessary to do so, in order to decide the issue of admissibility ratione temporis, particularly because it is necessary, with a view to understanding the arguments on admissibility, to examine the nature of the claim on the merits.71 It is not a valid argument against the mandatory character of time-limits that, where a claim is made against the administration and not conceded, the administration against which such a claim has been made is under an obligation to seize the tribunal of the case, because no such obligation exists and on the contrary the right and duty to seize the tribunal of a dispute belongs solely to the aggrieved party.72 (ii) Extension by Agreement between the Parties Where the governing provisions do not permit of any exceptions to the time-limits, the CJEC has categorically held that the parties cannot even by agreement extend the time-limits at their own convenience.73 On the other hand, the LNT held in Desplanque14 that in similar circumstances the respondent could waive the advantage of the requirement of time-limits, because by their nature these timelimits were not an essential element of the public law governing the 70
See further Guyon and Nicolas, ILOAT Judgment No. 305 [1977], Belfwre, CJEC Case 108/79 [1980] ECR p. 1769. Contra Decision No. 4, ESRO/CR/22, ESRO Appeals Board [1969], and Decision No. 5, ESRO/CR/23, ESRO Appeals Board [1969], where the tribunal held that it was not in the interests of justice to raise on its own motion the issue of non-receivability of the application. In de Villegas, ILOAT Judgment No. 404 [1980], the ILOAT dismissed the case without settling the issue of receivability ratione temporis, because the pleas were manifestly without substance. This was an unusual case. 71 Nielsen, ILOAT Judgment No. 522 [1982] at p. 5. 72 Raina, ILOAT Judgment No. 31 [1958]. 73 Mutters, CJEC Case 79/70 [1971] ECR p. 689. See also Muller, CJEC Case 4/67 [1967] ECR p. 365. 74 LNT Judgment No. 19 [1938] at p. 3.
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internal administration of the League of Nations and existed solely for the benefit of the respondent. Where the governing provisions permit the late filing of applications in exceptional circumstances, there are several cases decided by different tribunals in which late applications have been held to be admissible, because the respondent agreed to the late submission or had agreed not to raise the issue of receivability ratione temporis.75 (iii) Exceptional Circumstances The governing instruments of most tribunals have provisions permitting the submission of late applications in exceptional circumstances.76 In all decided cases the tribunals have determined whether exceptional circumstances exist which justify the lateness of the filing. It is not an issue which a party or the parties may decide. Where the governing provisions do not expressly permit extensions 75
See, e.g., El-Tawil, UNAT Judgment No. 258 [1980], JUNAT Nos. 231300 p. 281, Mortished, UNAT Judgment No. 273 [1981], ibid. p. 246, Perucho, UNAT Judgment No. 285 [1982], ibid. p. 527, Marrett, UNAT Judgment No. 288 [1982] (ICAO), ibid., p. 550, Mr. X, WBAT Reports [1984], Decision No. 16, Leguin, Council of Europe Appeals Board, Appeal No. 32 [1975], Case-Law Digest (1985) p. 58, Hill and Others, Decision No. 36, OECD Appeals Board [1963], Recueil des decisions 1 a 62 (1979) p. 101, Decision No. 5, ESRO/CR/23, ESRO Appeals Board [1969]. In Mr. X the tribunal only took into account the fact that the respondent had not objected to the late submission in deciding that exceptional circumstances existed in the case, without holding that the agreement of the respondent to the late submission was by itself sufficient to circumvent the timelimit: WBAT Reports [1984], Decision No. 16 at p. 12, whereas the other tribunals have generally regarded the agreement of the respondent to the late submission as by itself amounting to a ground for receivability, though that application had been filed late. The view taken by this tribunal must, thus, be regarded as exceptional and unique. According to that view there could be circumstances in which the agreement of the parties would, thus, be only one element to be taken into account in assessing whether there are exceptional circumstances warranting the requested extension of the time-limit. 76 The statutes of the ILOAT and of the CJEC do not, and the statute of the LNT did not, provide for exceptional circumstances as a justification for late applications.
Irreceivability or inadmissibility
691
of the time-limit, it has been held that there can be no extensions of the time-limit, even if the applicants can show that there were exceptional circumstances justifying an extension, since the timelimit in the governing provisions is mandatory.77 Among those tribunals whose governing instruments permit an extension of the time-limit for the filing of an application some are or have been more liberal than others in deciding whether to permit an extension of the time-limit. The UNAT seems to be somewhat liberal in its approach, as was the Appeals Board of ESRO. In both cases little seems to be or have been required to justify an extension.78 In the case of the UNAT sometimes extensions have been granted without explanation in the decision.79 In the case of both tribunals extensions for exceptional reasons have not generally been refused. However, this does not mean that the UNAT might not in an appropriate case refuse to grant an extension of the time-limit for the filing of an application. Whether there are exceptional circumstances warranting an extension of the time-limit clearly depends on the circumstances of the case, it being a matter for the appreciation of the tribunal whether the circumstances justify an extension and how much of an extension should be given.80 77
See de Peganow, LNT Judgment No. 16 [1973], Lamming, ILOAT Judgment No. 40 [1960], Muller, CJEC Case 4/67 [1967] ECR p. 365. See also Goodrum, ILOAT Judgment No. 55 [1961], Kundra, ILOAT Judgment No. 108 [1967], where the tribunal held that in any case no special circumstances had been proved. 78 See, e.g., Odvidian, UNAT Judgment No. 75 [1958], JUNAT Nos. 71-86 p. 28, Mendez, UNAT Judgment No. 268 [1981], JUNAT Nos. 231-300 p. 381, Perucho, UNAT Judgment No. 285 [1982], ibid. p. 527, Decision No. 6, ESRO/CR/31, ESRO Appeals Board [1970], Decision No. 33, ESRO/CR/85, ESRO Appeals Board [1973]. 79 See, e.g., Miss Y, UNAT Judgment No. 83 [1961], JUNAT Nos. 71-86 p. 90. In some of these cases the respondent agreed to the granting of the extension of the time-limit: see, e.g., Mendez, UNAT Judgment No. 268 [1981], JUNAT Nos. 231-300 p. 381. 80 In Miss X, the UNAT granted a substantial extension of time to the applicant because it was shown that she could not manage her own affairs, even though earlier the tribunal had refused an extension of the time-limit after she had filed a defective preliminary application: UNAT Judgment No. 81 [1960], JUNAT
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Chapter 15. International administrative tribunals
Among the cases in which it was held that the circumstances were not exceptional so as to justify an extension of the time-limit, Mendaro 81 decided by the WBAT, is significant. The tribunal said that doubts regarding the outcome of proceedings before a judicial body (the tribunal), whether jurisdictional or relating to the merits, cannot be regarded as justification for ignoring the pertinent statutory time-limits.82 (iv) The Terminus a Quo There have been numerous problems related to the determination of the terminus a quo for the measurement of the period of time within Nos. 71-86 p. 67. In Mr. X the final decision of the administration was taken on 20 January 1983. On 24 March 1983 the applicant's lawyer informed the applicant and the Executive Secretary of the WBAT that he could not longer act for his client. Arrangements for the engagement of new lawyers were completed only on 19 April 1983. Particularly because of the shortness of the delay, the application having been filed 6 May 1983, when the 90-day limit had expired on 20 April 1983, and because the respondent had raised no objection, the WBAT declared the application not out of time on account of the exceptional circumstances: WBAT Reports [1984], Decision No. 6. 81 WBAT Reports [1985], Decision No. 26. 82 Ibid. at p. 15. Where the applicant had been ill during the thirty days following the final decision of the respondent but could establish neither that such illness prevented her from seizing in time of her case the Appeals Board of the Council of Europe nor that the delay in introducing the application was in any way due to the information given her by members of the Legal Directorate, the tribunal held that there were no exceptional circumstances warranting an extension of the time-limit: Terrain, Council of Europe Appeals Board, Appeal No. 1 [1968], Case-Law Digest (1985) p. 5. Ignorance of the statute of and the existence of the tribunal has been held not to be by itself an exceptional circumstance justifying the extension of the time-limit, particularly because the reason turned upon as elusive a matter as the subjective state of mind of the applicant: Novak, WBAT Reports [1982], Decision No. 8. See also for findings that there were no exceptional circumstances warranting an extension of the time-limit for the filing of applications, e.g., Kavoukas and Parham, WBAT Reports [1981], Decision No. 3, Racz, Decision No. 101, OECD Appeals Board [1983], Recueil des decisions 83 a 102 (1983) p. 57, Decision No. 37, NATO Appeals Board [1971], Collection of the Decisions (1972), Decision No. 97, NATO Appeals Board [1979], Collection of the Decisions 65(b), 74 to 99 (1979), Obes Pollen, OASAT Judgment No. 5 [1973].
Irreceivability or inadmissibility
693
which an application must be filed. Here the issues become fairly technical. The concern is mainly with determining what is the relevant administrative decision or what happens when there is a failure to take an administrative decision, though there are other matters that arise.83 (b) Other Reasons than Tempus There are other reasons for irreceivability or inadmissibility than ratione temporis, which have prevailed. Such reasons depend to a large extent on the written law governing the jurisdiction of each tribunal. However, it is a distinct possibility that there are certain general principles which may be applicable in common situations in the implementation of the written law. It is the most important of these general principles that will be examined here.84 Tribunals attach considerable importance to conditions for admissibility of applications. Very seldom do they decide the merits of a case without deciding an objection to admissibility.85 Further, as in the case of inadmissibility ratione temporis, the question of admissibility for other reasons may be taken up proprio motu, if the record reveals a possibility of inadmissibility. (i) Insufficient Clarity of Grounds The CJEC has decided several cases in which the issue has been raised that the applicant had failed precisely to indicate the grounds, including the legal rules, on which he was relying. In Lacroix86 the Court found that, where the applicant attacked several decisions to appoint other officials than him to posts in certain grades, as required by the written law, the subject-matter of the application had 83
See for a detailed treatment of this, Amerasinghe, op. cit. note 57 pp. 222-8. 84 See also Amerasinghe, ibid. pp. 229-40. 85 Exceptionally see Beelen, ILOAT Judgment No. 545 [1983], where the application was dismissed on the merits without an objection based on the nonexhaustion of internal remedies having been decided. 86 CJEC Case 30/68 [1970]ECRp. 301. The Court also held in that case that subsequent clarification during the proceedings could not rectify the omissions made earlier.
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not been indicated with sufficient precision to enable it to be examined profitably, the applicant had failed to append the measures the annulment of which was sought, and the measures contested were so generally defined that the Court was left the task of finding out which of the measures described were really the subject-matter of the application.87 Hence, the application was held to be inadmissible. However, the Court has also held that an exception could be made to the requirement of clarity, if, because of the special nature of the decision-making process followed in the particular case, it was difficult for the applicant to know to which institution he should apply, to decide at what moment his action could be effective, and to recognize the measure affecting him adversely.88 Clearly, the rule of clarity is a functional one so that it will depend on the circumstances of the case how strictly it is applied. Further, it is the written law of the CJEC that has been interpreted to make clarity as defined above a requirement. It is to be expected, therefore, that other tribunals could, where appropriate and to the extent appropriate, interpret their written law so as to make clarity of grounds a requirement for admissibility for applications to them.89 (ii) Agreement of Release One tribunal has held that an agreement to release or settle all claims arising from an adverse personnel action has the effect of rendering inadmissible an application based on such claims.90 The reasoning was that it would unduly interfere with the constructive and efficient resolution of claims if the organization could not negotiate—in exchange for concessions on its part—for a return promise from the staff member not to press his or her claim further; if such an agreed settlement were not binding upon the affected staff 87
See also Alfieri, CJEC Case 3/66 [1966] ECR p. 437, Fournier, CJEC Case 18/69 [1970] ECR p. 249, Farrall, CJEC Case 10/81 [1981] ER p. 717. 88 Asmussen and Others, CJEC Case 50/74 [1975] ECR p. 1003. 89 The ILOAT has held that insufficient clarity of grounds is a good basis for inadmissibility: see Biswas, ILOAT Judgment No. 654 [1985], Loroch (No. 5), ILOAT Judgment No. 898 [1988]. 90 Mr. Y, WBAT Reports [1985], Decision No. 25, Kirk, WBAT Reports [1986], Decision No. 29, Gamble, WBAT Reports [1987], Decision No. 35.
Irreceivability or inadmissibility
695
member, there would be little incentive for the organization to enter into compromise arrangements, and there might instead be an inducement to be unyielding and to defend each claim through the process of administrative and judicial review; it was therefore in the interest of both the organization and the staff that effect should be given to such settlements.91 It is a matter of interpretation whether the agreement in question covers the claims which are the subjectmatter of the application. The tribunal must decide this question and not either of the parties.92 While such agreements are effective bars to admissibility in the appropriate circumstances, they may also be found to be invalid because, for instance, the applicant's consent was vitiated by duress or fraud. That duress could be a ground for invalidity of the release agreement was conceded by the WBAT, though it was also made clear that such duress must be proved to the satisfaction of the tribunal.93 A release which is imposed by the organization upon staff members in a staff rule will not be recognized.94 The reason is that this is not a negotiated agreement but a statutory imposition which unilaterally deprived the staff members of their right of access to the 91
See Mr. Y, WBAT Reports [1985] Decision No. 25 at p. 14. Ibid. 93 Ibid. at p. 17. Where the pressure was no more than that derived from the fact that the applicant was urgently seeking an extension of his special leave period and other perquisites and he appears to have regarded those additional benefits as more important than the release of his claims against the respondent, that was the kind of balancing of priorities which inhered in every settlement and it could not properly be regarded as duress: ibid. The validity of a release agreement may conceivably also be affected by circumstances such as public policy. 94 See Klaus Berg, WBAT Reports [1987, Part III], Decision No. 51, Knox, WBAT Reports [1987, Part III], Decision No. 54. While a release agreement may be a ground for inadmissibility where the employment relationship is based on a contract of employment, as is the case in most organizations, it is not so clear whether in principle such an agreement may be invoked as a bar to admissibility in cases where the employment relationship is based on status or a statutory appointment, since agreement is not the basis for the employment relationship and direct agreement can have no relevance to the right to bring claims before a tribunal. Thus, it is possible that in the case of the OECD and the EU such agreements would not effectively release the claims of staff members against those organizations and would not be a bar to admissibility. 92
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tribunal, a fundamental and essential right which could not be taken away unilaterally. (Hi) Scope of Claims Both the CJEC and the ILOAT have ruled on the issue whether claims raised after the application had been filed and not included in the application could be admitted. Both tribunals have conceded that the rule is that a claim made in the course of the proceedings will be receivable only if it comes within the scope of a claim made in the complaint. Thus, in Reinarz95 the application contained only a claim for reinstatement. The CJEC held that a claim for damages in lieu of reinstatement if the latter were impossible, which was made for the first time during the oral proceedings, was inadmissible. The rule is not to be too strictly construed. There are circumstances in which a claim not made in the original application may be admissible. Thus, the CJEC has held that a submission which may be regarded as amplifying the application is admissible.96 (iv) Exhaustion of Internal Remedies Considerable importance has been attached by tribunals to the exhaustion of internal remedies as a condition of admissibiliry, whatever their nature. What remedies need be exhausted will depend in the case of each tribunal on the applicable written law, 95
CJEC Case 17/68 [1969] ECR p. 61. See also Verms, CJEC Case 306/81 [1983] ECR p. 1755, AH Khan (No. 2), ILOAT Judgment No. 565 [1983]. In the case of the CJEC the Rules of Procedure embody this rule, but it would seem to be a general principle of law. See also, for claims declared inadmissible, Lakey, ILOAT Judgment no. 475 [1982], Berti, CJEC Case 131/81 [1985] ECR p. 645, Licata, CJEC Case 270/84 [1986] ECR p. 2305, Geisler (No. 2) and Wenzel (No. 3), ILOAT Judgment No. 899 [1988], Noor, ILOAT Judgment No. 939 [1988], Dayan, OECD Appeals Board, Decision No. 113 [1989]. 96 Where, for instance, the applicant altered his claim for damages and interest thereon to a more limited claim for damages it was held that the new claim was contained by implication in the submissions made in the application seeking the annulment of the disputed decision to dismiss the applicant: Degreef, CJEC Case 80/63 [1964] ECR p. 391. See also for case where new claims were held to be within the scope of the original claims, e.g., Morina, CJEC Case 18/83 [1983] ECR p. 4051, Ali Khan (No. 2), ILOAT Judgment No. 565 [1983].
Irreceivability or inadmissibility
697
since internal remedies need only be exhausted, if there is an express requirement to that effect. In the absence of an express written requirement there does not seem to be a general principle of law that applicants must seek internal means of redress as a prior condition of admissibility for their applications. In regard to the principle relating to internal remedies the LNT said: "As a general rule, this principle seems to answer to a legal necessity... inasmuch as, while reconciling the interest of the officials with those of the Administration, it gives the latter an opportunity of verifying the facts alleged to be the cause of the damage to be made good."97 It has also been said that the purpose of such procedures is to encourage amicable settlements.98 Clearly the purpose of internal remedies in general is to facilitate the settlement of disputes by informal means before they are subjected to the more rigorous test of judicial scrutiny. In regard to the requirement of the internal remedy of administrative review, for instance, the UNAT has stated that: It gives the Administration an opportunity to redress a grievance before it is taken any further... It is quite clear that the number of case in which there are grievances and which are submitted for administrative review by the Secretary-General is greater than the number of those that reach the JAB or even the Tribunal. This proves the importance of administrative review in dissipating dissatisfaction and settling grievances. It is of the utmost importance that the Administration be given this opportunity, not only because it could result in avoidance of complicated and extended litigation but because it is only fair that the Administration be given the opportunity to reconsider and re-evaluate its decision before that decision is litigated. This is also the manner in which the process of settling grievances is generally structured in international administrative law. Administrative review... is not a mere embellishment or option. It is an integral part of internal procedures and the rules require that it be exhausted. The Staff Rules make administrative review an obligatory internal procedure, and not an optional one nor one that can be waived, except by the Respondent." 97
Perrasse, LNT Judgment No. 14 [1935] at p. 3. Sergy, CJEC Case 58/75 [1976] ECR p. 1139 at p. 1152. 99 El-Far, UNAT Judgment No. 905 [1998] at pp. 7-8. The present author drafted this judgment as a Judge of the UNAT. 98
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There are several instances where tribunals have been confronted with the objection that internal remedies had not been exhausted and in which they have held that the applicant had fulfilled the requirement of the governing law that internal remedies be exhausted.100 While the content of the requirement that internal remedies be exhausted and whether the requirement has been fulfilled will depend always on the written law that governs the tribunal, there is general agreement that internal remedies need not be exhausted where the written law does not require it,101 or where there are in effect none or no more to exhaust.102 Where the appeals body of the organization fails to report within a reasonable time, the ILOAT has held that the applicant is exempted from pursuing internal remedies to their conclusion.103 On the other hand, in allowing an exception to the rule that internal remedies must be exhausted, because in effect there are none to exhaust, tribunals are cautious. Hence, exceptions are not lightly to be presumed. One of the reasons given by the ILOAT for caution in dispensing with the requirement of internal recourse was that, if an exception were made lightly, the tribunal might in many instances forgo material evidence obtainable from the hearing of internal appeals bodies which were more familiar with the position of the staff in the organization.104 Where the applicant has failed to observe the time-limits for the submission of internal complaints or appeals, with the result that his appeal had been rejected as inadmissible, he will be deemed not to have 100
See, e.g., Vassilou, UNAT Judgment No. 275 [1981], JUNAT Nos. 231-300 p. 457, Breuckmann, ILOAT Judgment No. 270 [1976]. 101 Saravia, OASAT Judgment No. 47 [1979], von Willlerstorf und Urbair, CJEC Case 7/77 [1978] ECR p. 769, Mavridis, CJEC Case 289/81 [1983] ECR p. 1731. 102 See, e.g., AH Khan (No. 2), ILOAT Judgment No. 565 [1983]. 103 Ido, ILOAT Judgment No. 588 [1983]. See also Garcia and Mdrquez (No. 2), ILOAT Judgment No. 496 [1982], Tarrab (No. 9), ILOAT Judgment No. 499 [1982] at p. 5. Where the organization showed shifting attitudes about internal remedies, it has been held that an exception is to be made to the rule: Tarrab (No. 9) ILOAT Judgment No. 499 [1982]. See also Saravia, OASAT Judgment No. 47 [1979], and Ozorio (Nos. 1 & 2) ILOAT Judgment No. 185 [1971]. 104 Garcia and Marquez, ILOAT Judgment No. 408 [1980] at p. 6.
Irreceivability or inadmissibility
699
exhausted internal remedies.105 Time-limits connected with internal appeals can cause problems106 but ultimately tribunals must decide whether the applicant has failed to exhaust the internal remedy because of some conduct on the part of either party which affects the time-limit. In order that internal remedies may be properly exhausted so as not to render an application inadmissible, allegations and claims raised in the application before the tribunal must be raised before the internal body.107 The subject-matter of the application and of the internal appeal need not, however, be identical, provided it is substantially the same.108 The essential facts must be the same, though the submissions made may be different, and the claims made in the application before the tribunal may be different from those made in the internal appeal, provided they are narrower in scope.109 Indeed, it is sufficient if the claims in both proceedings are substantially similar even if they are not identical, and those presented in the application to the tribunal are not narrower than those of the internal appeal. This is so, even to the extent that a claim for damages as an alternative to annulment may be regarded as having been implied in a claim for annulment by itself made in the internal appeal.110 The statute of a tribunal may provide for an exception to the requirement that internal remedies must be exhausted in the case of 105
See, e.g., Schulz, ILOAT Judgment No. 575 [1983], Branckaert, UNAT Judgment No. 201 [1975], JUNAT Nos. 167-230 p. 310, Deshormes, CJEC Case 17-78 [1979] ECRp. 189. 106 See the discussion in Amerasinghe, 1 op. cit. note 57 pp. 237-8. 107 See Hakin (No. 4) ILOAT Judgment No. 437 [1980], Glorioso (No. 2), ILOAT Judgment No. 550 [1983], Aglion, UNAT Judgment No. 56 [1954], JUNAT Nos. 1-70 p. 283, Kahale, UNAT Judgment No. 165 [1972], ibid. p. 406. 108 See Bode, CJEC Cases 45 & 49/70 [1971] ECR p. 465, Miss B, CJEC Case 152/77 [1979] ECR p. 2819. It is also not required that the internal appeal spell out all the possible grounds of illegality, since what is required is that the respondent must be able to have full knowledge of the facts, the purpose of the complaint, and all the grounds underlying it in order to take a decision: Ktister, CJEC Case 23/74 [1975] ECR p. 353. 109 See Zihler, ILOAT Judgment No. 435 [1980] at pp. 6 ff., Gubin and Nemo, ILOAT Judgment No. 429 [1980]. 110 See Herpels, CJEC Case 54/77 [1978] ECR p. 585.
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exceptional circumstances. But such exceptional circumstances must be clearly established.111 (v) Inappropriate Respondent An application will be inadmissible because it cites an inappropriate respondent. In Culmsee and Others the CJEC held that an action questioning statements issued by the Economic and Social Committee was wrongly brought against the Council of the EC.112 (4) JURISDICTION IN REGARD TO GRANTING REMEDIES There are some special considerations to be taken into account with regard to remedies granted by lATs. The statutes of most IATs deal with the remedies which may be granted by the tribunals. Thus, in the case of the UNAT, Article 9 of the statute contains the provisions on remedies.113 The statutes of several other international administrative tribunals have similar, though not exactly the same, provisions.114 In many of these cases there are slight variations but substantially the effect of the provisions is the same. For example, in the case of the WBAT the normal maximum amount for compensation awarded is 3 years' net pay and not 2 years' net base 111
In many cases tribunals have held that there were no exceptional circumstances: see Vandenheede, WBAT Reports [1987, Part III], Decision No. 52, Harrison, WBAT Reports [1987, Part III], Decision No. 53, Knox, WBAT Reports [1987, Part III], Decision No. 54, Thresher, ILOAT Judgment No. 758 [1986], Levy, Council of Europe Appeals Board, Appeal No. 129 [1986]. In Powell, CJEC Case 219/84 [1988] ECR p. 3629, the Court held that there were exceptional circumstances which extended the time limit for contesting the administrative decision. 112 CJEC Case 175/83 [1985] ECR p. 3321. See also Maag, CJEC Case 43/84 [4985] ECR p. 2581. If the respondent was not merely inappropriate but not eligible at all under the basic law of the tribunal, it would be a matter of competence not receivability. 113 See Amerasinghe (ed.), op. cit. note 16 at pp. 9-10. 114 Article XII of the WBAT statute: see Amerasinghe (ed.), ibid. at p. 48; Article IX of the IDBAT statute: see Amerasinghe (ed.), ibid. at p. 67; Article VII of the OASAT statute: see Amerasinghe (ed.), ibid. at pp. 86-7.
Jurisdiction in regard to granting remedies
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salary, as in the case of the UNAT, while in other respects the provisions are similar to those of the UNAT statute. The statute of the ILOAT provides for remedies in Article VIII.115 The LNT statute in Article IX had exactly the same provision.116 Significant differences between these provisions on remedies and those modeled on the statute of the UNAT are that in them there is no ceiling for compensation in the normal case where compensation is awarded and the option whether the decision is to be rescinded (or the obligation enforced) or compensation is to be paid instead lies with the tribunal and not with the respondent institution. In the case of most European institutions the statutes of lATs provide in common that administrative decisions may be annulled (or rescinded) and that in addition compensation may be awarded for damage resulting from the impugned act.117 Most of these statutes also include a provision which permits substitution for the annulment or rescission of the decision which would generally involve reinstatement or some form of specific performance the payment of compensation fixed by the tribunal, though in some of these statutes the decision as to whether the substitution is to take place is entrusted to the tribunal,118 while in others it is left to the choice of the respondent.119 In any event a 115
See Amerasinghe (ed.), ibid. p. 31 at p. 33. See Amerasinghe (ed.), ibid. p. 177 at pp. 179-80. 117 See Article 60.2 of the Staff Regulations of the Council of Europe: Amerasinghe (ed.), ibid. p. 120, Article 4.22 of Annex IX of the NATO Civilian Personnel Regulations: Amerasinghe (ed.), ibid, at p. 139, Regulations 33.2 and 33.3 of the Staff Regulations of the ESA: Amerasinghe (ed.), ibid. at p. 148, Regulation 22(d) of the Staff Regulations, Article 16(c) of the Regulations for Council Experts and Consultants, Regulation 18(c) of the Regulations for Employees, of the OECD: Amerasinghe (ed.), ibid. at pp. 106, 108, 108-9, Article 59(a) of the Staff Rules of the WEU: Amerasinghe (ed.), ibid. at p. 172. 118 See Article 60.7 of the Staff Regulations of the Council of Europe: ibid, at p. 121, Regulation 33.4 of the Staff Regulations of the ESA: ibid. at pp. 148-9. 119 Article 4.23 of Annex IX of the NATO Civilian Personnel Regulations: ibid, at p. 139. In the case of the OECD and the WEU the statutes of their Appeals Boards are silent on whether such substitutions may take place. The statute of the Appeal Board of the ICM provides for rescission of decisions or an order of specific performance and requires the tribunal to give a monetary award 116
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tribunal has the power, as such, of annulling administrative decisions, even if the statute is not explicit on the point. (a) Inherent Powers In all these cases where there is either explicit provision in statutes for the granting of remedies or the power to grant certain remedies is clearly implied, the practice and jurisprudence of tribunals raise the question how limiting are the express provisions of statutes on the power of tribunals to grant remedies. Tribunals have often granted remedies, generally of the kind referred to in their statutes, in a manner or in circumstances which are not explicitly provided for in their statutes. Thus, both the UNAT and the WBAT, to mention only two examples, have often awarded compensation without ordering rescission of the administrative decision contested or specific performance, or even in circumstances in which they have found that the decision was not invalid, with the result that it was not subject to rescission or an order for specific performance was not warranted.120 There are also a few cases in which the ILOAT has made an award of compensation in circumstances in which the complaint as a whole was not well founded, so that rescission or specific performance was not in order, although the statute does not refer to the possibility that compensatory awards may be made in these circumstances.121 by way of compensation in lieu of execution of the judgment, leaving it to the respondent to decide whether it will execute the judgment or pay the compensation. It is also provided in this statute that the normal maximum applicable to an award of compensation is 1 year's net salary: for these provisions see ICM Appeals Board statute Article X(l)-(4); ibid. p. 159 at pp. 161-2. None of these statutes provide for remand unlike those of the UNAT, WBAT, IDBAT, and OASAT. In the case of the Appeals Board of IMT the statute does not refer to any powers of the tribunal to grant remedies other than providing that "[w]here the Director-General maintains that the execution of an annulment decision might give rise to practical difficulties, the Board shall determine the amount of compensation to be paid to the Claimant for the wrong done": Article 8(b) of the IMT Appeals Board statute, Amerasinghe (ed.), 2 Statutes and Rules at p. 148. 120 See, e.g., Fasla, UNAT Judgment No. 158 [1972], JUNAT Nos. 114-66 p. 355; Buranavanichkit, WBAT Reports [1982], Decision No. 7, Sehgal, UNAT Judgment No. 203 [1975], JUNAT Nos. 167-230 p. 324, Broemser, WBAT Reports [1985], Decision No. 27. 121 See, e.g., Lingham, ILOAT Judgment No. 628 [1984].
Jurisdiction in regard to granting remedies
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In the case of the European institutions, where the provisions of the statutes do not make it absolutely clear whether compensation may be awarded when the impugned administrative decision is not annulled, there are instances in which tribunals have awarded compensation for wrongful acts, though they have not annulled the decision concerned. Thus, in Decision No. 24122 the Appeals Board of NATO found the administrative decision to terminate the applicant's employment improper and tainted but did not annul the decision. Substantial compensation was, nevertheless, awarded to the applicant. In Petel123 the Appeals Board of the OECD awarded compensation without annulling a decision not to pay interest on a delayed payment of a pension benefit and in Wolfson124 the same tribunal awarded compensation, while finding that the administrative decision not to promote the applicant was legal in all respects. These decisions warrant the conclusion that tribunals have not been reluctant to assume inherent powers to grant remedies. It seems accepted that, even in the absence of specific provision in a statute of a tribunal which expressly or by clear implication refers to certain remedies that the tribunal may grant and the circumstances in which they may be granted, and even where the statute may appear exhaustively to describe those remedies and the circumstances in which they may be granted, a tribunal has an inherent power to grant remedies other than those specifically mentioned and in circumstances other than those expressly referred to in the statute. It is reasonable, however, that this inherent power should not be too broadly construed. Clearly, a tribunal must not exceed a power to grant remedies that is clearly and unequivocally circumscribed in the statute. Thus, for example, where a statute leaves to the administrative authority the choice between rescinding the administrative decision (or specifically performing an obligation) and paying compensation in lieu of such rescission or specific performance, it would not be within the power of the tribunal to impose 122
Decision No. 24, NATO Appeals Board [1971], Collection of the Decisions (1972). 123 Decision No. 65, OECD Appeals Board [1978], Recueil des decisions 63 a 82 (1980) p. 11. 124 Decision No. 75, OECD Appeals Board [1979], ibid. p. 39.
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upon the administrative authority rescission or specific performance without an option to choose the payment of compensation as an alternative. What is permitted is the exercise of the inherent power to grant remedies on a residuary basis and in circumstances where it may really be said that the statute is silent and has not addressed the situation. A tribunal may not grant remedies in circumstances in which its statute clearly prohibits it from doing so. The view that there is an inherent power to grant remedies vested in international administrative tribunals is supported further by the fact that certain tribunals whose statutes are more or less completely silent on the issue of remedies have assumed the power of granting remedies to applicants and have not confined themselves to giving, so to speak, declaratory judgments dealing only with the status of the primary substantive rights and obligations of the parties. Thus, in the case of the CJEC, its statutes contain no reference to the remedies it may afford in disposing of cases brought before it, though the treaties setting up the European Communities refer to some forms of remedies. Nevertheless, the CJEC has not been deterred, as will be seen, from granting a number and variety of effective remedies during its existence. No objection has ever been raised by the respondents that the CJEC has no power to grant remedies in the absence of specific authorization in its statutes. Indeed, if the view were taken that there is no authority to grant remedies in the absence of specific authorization in the written law, the avenue of judicial redress open to staff members of international organizations would be completely toothless. A basic presumption is that an IAT has the inherent power to annul administrative decisions. (b) General Nature of Remedies Tribunals have granted a variety of remedies in various circumstances, whether in the exercise of expressly authorized powers or in exercising inherent powers. There have also been different combinations of the remedies granted. While there has been little or no discussion of the legality of the power to grant remedies or to grant them in certain combinations or alternatives, tribunals have generally
Jurisdiction in regard to granting remedies
705
granted remedies which have not been questioned. It is difficult to extract any general principles applicable to all tribunals which underlie the granting of particular remedies or a combination of them. Also, the fact that the provisions of the various statutes differ has not resulted in a uniformity of approach to the issue of remedies. By and large each tribunal has decided on remedies, whether in the implementation of the express terms of its statute or in the exercise of the inherent power to grant remedies, in the light of a certain judicial expediency and discretion, the result being that it is sometimes difficult to use decisions on remedies of one tribunal as useful precedents before other tribunals or as illustrations of principles relating to remedies, their choice, and their exact dimensions which could be relevant to the decision of cases which come before more than one tribunal. In general tribunals have tended to tailor remedies to the needs of the particular cases which they have had in hand, which is as it should be, since the cause of justice may not be fully served if too much insistence is placed on uniformity and adherence to generalities in the determination of particular remedies or their extent. The nature of remedies in general has, however, been linked to the express terms of statutes and to certain general notions relating to the content of certain remedies. (i) Annulment, Rescission and Specific Performance125 Annulment of an administrative decision is a remedy which may be granted by a tribunal, particularly where the statute, as in the case of the Appeals Board of the Council of Europe, specifically empowers it to annul administrative decisions. In other cases rescission of administrative decisions may be ordered. In both cases, it would appear, the result is to restore as far as possible the status quo ante. That is to say, the applicant is regarded as being as far as possible in the same position as he would have been in, had the administrative decision annulled or rescinded never been taken. In this 125
These remedies and the others referred to below in the context of the different tribunals are discussed in Amerasinghe, op. cit. note 57, Chapters 27 ff., passim.
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context the remedy of reinstatement, especially where a decision to terminate employment is concerned, may be regarded as a form of annulment or rescission of the administrative decision taken. Whether the annulled administrative decision is regarded as not having been taken or whether a decision with a different, and most often opposite, content is to be regarded as being substituted for the impugned decision will depend on the circumstances of each case. There are situations in which the remedy ordered has been specific performance of an obligation of the administrative authority which was in issue before the tribunal. Specific performance may also refer to certain acts to be carried out by the respondent, which may not be exactly the same as its obligations which have been brought into question. Thus, a tribunal, while holding that an administrative decision has not been tainted by the application of an illegal procedure by the respondent, may, nevertheless, order an appraisal report or part of it to be excluded from the applicant's personnel file. (ii) Compensation Tribunals have sometimes ordered compensation or damages in addition to annulment, rescission, or specific performance. This is done generally where the wrongful action of the respondent is regarded as having caused additional damage to the applicant. Further, compensation may be awarded as an alternative to rescission, annulment, or specific performance whether any of these is ordered or not. Compensation is regularly ordered in lieu of these remedies where, particularly, the statutes of tribunals require that the alternative of compensation be given the respondent, if the respondent or the tribunal decides that the judgment should not be executed. On the other hand, where an administrative decision is held to be in violation of the law, the tribunal may decide not to annul or rescind the decision or order specific performance but may award as the sole remedy compensation. This is a convenient and reasonable solution where rescission, annulment, or specific performance maybe inappropriate or impossible for a variety of reasons.126 126
See Buranavanichkit, WBAT Reports [1982], Decision No. 7.
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In certain instances tribunals have decided that the administrative decision was not invalid but have awarded damages for the injury caused by irregularities which, however, were not serious enough to invalidate the decision.127 Administrative decisions are not annulled or rescinded in these cases because they are regarded as having been validly taken, and not because of difficulties connected with annulment or rescission in the circumstances of the case. On the other hand, the irregularities in question are regarded as not being so unimportant as to be ignored and, therefore, as deserving to be compensated. In most of these cases, though not always, the irregularities have been of a procedural nature. Compensation has less frequently been awarded where not only have administrative decisions been found to be valid but also there have been no irregularities.128 This is a very unusual procedure and not doubt is reserved for cases where the conduct of the administrative authority, though legally proper and free of taint, has caused the applicant undue hardship even though his legal rights have in no way been violated either substantially or intangibly. (a) Material Loss and Moral Injury. Awards of compensation have covered material loss and, in appropriate cases, moral injury. The usual award has apparently purported to cover material loss only. In these situations tribunals often do not make an extensive analysis of the loss suffered with a view to establishing the amount of the compensation payable. Sometimes a figure is named without any explanation at all. Sometimes it is not clear whether the award was intended to cover material loss as well a moral injury or only one or the other of these. Sometimes an award of compensation will be quantified in terms of net base salary with or without a reference to equity (ex aequo et bond) as the basis for the calculation of the amount. In the case of some tribunals the amount of compensation that may be awarded in the usual case is by the written law limited 127
See Durrant-Bell, WBAT Reports [1985], Decision No. 24, Broemser, WBAT Reports [1985], Decision No. 27. 128 See Wblfson, Decision No. 75, OECD Appeals Board [1979], Recueil des decisions 63 a 82 (1980) p. 11.
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to 1, 2, or 3 year's net pay. In these circumstances it is likely that other reasons than actual material loss may govern the award of compensation, a notional scale of injury being the guide within the parameters of the limits stated in the written law. Moral injury (sometimes described as intangible injury) is difficult to relate to any quantification of damages in any system of law. Tribunals have, however, made awards for moral injury alone or for damage caused which includes moral injury. Generally such awards are reasonably modest but it is difficult to relate them to any general principles governing their determination. (b) Quantum of Compensation. Whether compensation is awarded for material loss or for moral injury or for both, tribunals have adopted different approaches, as will be seen, to the quantification of compensation. The ICJ has subscribed to the view that, because the precise determination of the actual amount to be awarded cannot be based on any specific rule of law, what international administrative tribunals do is to fix the true measure of compensation and the reasonable figure of such compensation.129 This generalization cannot be gainsaid. In general, most frequently there are two methods which have been utilized by tribunals in dealing with the issue. One is to state a lump sum as compensation for whatever the injury is in question, the other is to describe the compensation in terms of the salary earned by the applicant, that is, as a multiple of a month's or year's salary. Whichever method is used, there remains the problem of how the amount awarded in a given case is determined. Further though some tribunals, such as the CJEC, prefer to make lump-sum awards by way of compensation, while others, such as the WBAT, generally choose to make an award described in terms of the salary earned, whichever method is selected it is not always clear whether an award includes both material damages as well as moral damages or only one or the other. This makes it more difficult to deduce principles applicable to the calculation of material damages 129
Judgments of the I.L.O. Administrative Tribunal Opinion, 1956 ICJ Reports at p. 100.
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as contrasted with moral damages and vice versa. The fact that the two elements are often combined would seem to indicate that tribunals do not necessarily attach too much scientific precision to the quantification of the compensation in respect of either element. In respect of material damages, in such cases as it is possible it has happened that a tribunal will try to arrive at a figure for compensation which represents the actual loss suffered by the applicant, taking into account the evidence presented to it with regard to the material damage caused.130 But this is not generally the situation before tribunals, particularly because material damages are often combined with moral damages in the same award or it is not apparent on the face of the judgment that the award is only for material loss. Where material loss is quantified by reference to the evidence placed before a tribunal on the basis that the actual loss suffered must be compensated, there is no question of principle involved except that actual losses identified on a reasonable basis are selected for compensation. Where, however, material damages are quantified merely by reference to a lump sum or to the applicant's salary or where the same is done when material damages and moral damages are combined in the same award, it is much more difficult to discuss principles which form the basis for an award. In the case where an award of compensation is made covering both material and moral damages or material damages alone and whether the award is in terms of a lump sum or of the applicant's salary, the salary of the applicant seems expressly or implicitly to be made a point of reference and tribunals seem to bear in mind the salary of the applicant in arriving at an amount of compensation. But it seems difficult to deduce any distinct principles which govern the choice of, for example, BF 10,000 or 3 months' net salary, in a given case as the amount of compensation for the wrong done. All that can be said is that there may be discerned a certain internal relativity between awards of the same tribunal, taking into account the circumstances of cases, including such factors as the salary of the applicant, the value of money, and exchange rates at any given time. 130
See Justin, WBAT Reports [1984], Decision No. 15.
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In any case, no real comparison can be made in respect of awards between different tribunals as such, because they may be operating in different contexts and their statutes may vary. But awards made by the same tribunal may show some consistency when all the circumstances of the relevant cases are considered. Thus it may be possible to understand why in one case 1 year's net salary was awarded as compensation by a tribunal and a different amount was awarded by the same tribunal in another case by comparing, among other things, the seriousness of the wrongs committed by the respondent or the position of the applicants in the two cases. In some cases tribunals have taken some trouble to explain what factors they had taken into consideration in arriving at certain figures for the awards they made.131 In the case of some tribunals the size of awards may be influenced by the ceiling placed by their statutes on the amount of compensation that may usually be awarded. Thus, for the usual case the UNAT statute has a ceiling of 2 year's net salary,132 while the WBAT statute has a ceiling of 3 years' net salary.133 The ILOAT statute imposes no limits on awards of compensation.134 Such differences undoubtedly influence awards made by tribunals and tend to make comparisons between awards made by different tribunals unfruitful. On the other hand, limitations on awards of compensation imposed by statutes do affect the size of awards made by the same tribunal in different cases. Suffice it to say that there is possibly a notional scale of value by which the same tribunal will assess compensation in cases brought before it. This scale of value will take into account not only any ceiling on the usual award of compensation imposed by the statute of the tribunal but also the comparative merits of cases depending on the seriousness of the delinquency involved and other circumstances of the cases. Much of what has been said above in regard to awards of compensation which cover both material loss and moral injury would apply to awards made for moral injury alone. Each tribunal will 131
See, e.g., Elveson, UNAT Judgment No. 36 [1953], JUNAT Nos. 1-70 at p. 183. 132 Article 9.1: see Amerasinghe (ed.), op. cit. note 16 at p. 9. 133 Article XII.1: see Amerasinghe (ed.), ibid. at p. 48. 134 Article VIII: see Amerasinghe (ed.), ibid. at p. 33.
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have its own internal scale of value determined by the provisions of its statute, among other things. In any event, moral injury being an abstraction, there is more room for subjectivity in the assessment of damages for such injury or in the appreciation of gravamen. Therefore, while comparisons on the basis of the circumstances of each case may be made between awards of compensation made by the same tribunal, they would tend to be less compelling than in the case of awards made covering material loss alone or a combination of material and moral injury. As between different tribunals comparisons would be even less cogent. In short each tribunal will have its own methods for differentiating between cases involving moral injury but, except for internal relativities and an internal scale of values, there cannot be discerned any clear principles even within the same tribunal governing the assessment of damages for moral injury. At best any explanations given by the tribunal in arriving at a figure for moral damages would have to suffice as justification for the award made in a given case.135 (iii) Remand Especially where the statute of a tribunal provides for the remedy, the tribunal may decide to remand the case, when it finds that there has been a violation of procedure which vitiates the administrative decision taken or in other circumstances. A remand may, depending also on the written law, be accompanied by the award of damages for the injury done either at the time of the remand or thereafter. (iv) Costs The statutes of many tribunals contain no provisions explicitly authorizing the tribunal to award costs. This is the case with, for instance, the statutes of the UNAT, the ILOAT, and the WBAT. On the other hand, the statutes of some tribunals deal with the question of awarding costs in differing degrees of detail. The statutes of the CJEC give the Court the power in a general way to adjudicate upon costs.136 The statute of the Appeals Board of the OECD gives the 135
See Gyamfi, WBAT Reports [1986], Decision No. 28 at p. 27. Article 35 of the statute in the EEC Treaty: Amerasinghe (ed.), 2 op. cit. note 35 at p. 48, Article 32 of the statute in the ECSC Treaty: ibid, at 136
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tribunal the power to order the respondent to reimburse, within reasonable limits, justified expenses incurred by the applicant, if the latter had good grounds for bringing the appeal.137 The statute of the IDBAT, on the contrary, states that each party to proceedings shall bear its own costs with one exception relating to transportation expenses incurred by a staff member in a field office.138 Even in the absence of specific authorization by the statutes, tribunals have proceeded to award costs in certain circumstances. In Schumann the LNT, in whose statute no provision was made for the award of costs in any circumstances said: The Secretariat avers that the practice of ordering the losing party to pay costs is not supported by the Statute of the Administrative Tribunal, but the Tribunal cannot accept that contention; Where the losing party is the Administration of the League, there is no reason for departing from the general principle of law that, subject to set offs, costs are payable by the losing party.139
This statement clearly subjects statutes which are silent on the issue of costs to interpretation in the light of the general principle of law referred to therein. Further, the UNAT,140 the ILOAT,141 and the WBAT,142 for instance, have all established the practice of awarding costs in the appropriate circumstances, although their statutes are silent on the matter. The ICJ has said of the UNAT's power to award costs: "Although not expressly empowered by its statute to award costs, the Tribunal did so in some of its early cases on the basis of what it considered p. 61, Article 36 of the statute in the Eurotom Treaty: ibid. at p. 74. Article 69 and 75 of the Rules of Procedure of the Court elaborate on the award of costs: ibid. at pp. 93 ff. 137 Article 8(e): ibid. at p. 125. 138 Article V(3): Amerasinghe (ed.), op. cit. note 16 at p. 65. 139 LNT Judgment No. 13 [1934] at p. 10. 140 See, e.g., Aubert and 14 Others, UNAT Judgment No. 2 [1950], JUNAT Nos. 1-70 p. 3, Robinson, UNAT Judgment No. 15 [1952], ibid. p. 43. 141 See, e.g., Lamadie, ILOAT Judgment No. 262 [1975], Ghaffar, ILOAT Judgment No. 320 [1977]. 142 See, e.g., Buranavanichkit, WBAT Reports [1982], Decision No. 7.
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to be an inherent power."143 The Court did not disagree with the assumption of the tribunal, while at the same time noting that the tribunal had set itself a policy in regard to the award of costs since the early cases and that the UN Secretariat had established a Panel of Counsel in disciplinary and appeal cases who were assigned to assist applicants as part of their official duties without cost to the applicants, which fact had negatively affected the awarding of costs.144 The Court also stated: Account must also be taken of the basic principle regarding the question of costs in contentious proceedings before international tribunals, to the effect that each party shall bear its own in the absence of a specific decision of the tribunal awarding costs... An award of costs in derogation of this general principle, and imposing on one of the parties the obligation to reimburse expenses incurred by its adversary, requires not only an express decision, but also a statement of reasons in support. On the other hand, the decision merely to allow the general principle to apply does not necessarily require detailed reasoning, and may even be adopted by implication.145
Thus, while a tribunal may have, under a general principle of law, an inherent power to award costs against one party and in favour of the other, the exercise of this power cannot be presumed, since the exercise of the power is in derogation of another general principle of law that each party should bear its own costs. It is also understandable that consequently reasons should be given for the award of costs. Tribunals have generally satisfied the requirement that reasons for the award of costs must be given by having a general policy governing the award of costs and following it expressly or by implication, as the UNAT and the ILOAT have done for some time. However, the express provisions of statutes of tribunals have been regarded as giving tribunals the power to award costs in accordance with such provisions and without necessarily giving detailed reasons 143
Application for Review of Judgment No. 158 of the UNAT Opinion, 1973 ICJ Reports at p. 200. 144 Ibid. 145 Ibid. at p. 212.
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for the award of costs in each specific case. There are cases also where tribunals have awarded costs in circumstances in which the reasons for the award of costs can only be inferred from the circumstances of the case. Whether tribunals whose statutes explicitly lay down the rules governing the award of costs can go beyond them and award costs in circumstances not referred to in their statutes has yet to be decided. However, while the general principle stated by the LNT in Schumann limits the award of costs to (a) the applicant and (b) the situation where the respondent loses, there is evidence in the practice of some tribunals that costs may be awarded both against the applicant, where the respondent wins, and to the applicant, even if he loses. Both the UNAT and the ILOAT have awarded costs in certain circumstances to unsuccessful applicants.146 As for the award of costs against applicants where they lose, the ILOAT, when requested to do so, has so far refused the award of such costs,147 while the UNAT in one case in which the issue was raised apparently did not deny that in exceptional cases it may award costs against an applicant.148 Moreover, in a series of cases brought by the same applicant in which the WBAT was confronted with a request for the award of costs against an applicant, the tribunal did not deny that costs may be awarded against the applicant but merely stated that in the circumstances of the cases it considered it inappropriate to award costs against the applicant.149 Thus, it would seem that under general principles of law tribunals may award costs to applicants, even where they lose, and to respondents in certain circumstances, where the applicants lose.150 146
See, e.g., Harpignies, UNAT Judgment No. 182 [1974], JUNAT Nos. 167-230 p. 114, Hoefnagels, ILOAT Judgment No. 25 [1957]. 147 See, e.g., Diaz Acevedo, ILOAT Judgment No. 349 [1978]. 148 Powell, UNAT Judgment No. 237 [1979], JUNAT Nos. 231-300 p. 56 at p. 75. 149 van Gent (No. 4), WBAT Reports [1985], Decision No. 19 at p. 7, van Gent (No. 5), WBAT Reports [1985] Decision No. 20 at p. 6, van Gent (No. 6), WBAT Reports [1985], Decision No. 21 at p. 12, van Gent (No. 7), WBAT Reports [1985], Decision No. 22 at p. 9. 150 For a detailed discussion of how the principal IATs have dealt with costs see Amerasinghe, 1 op. cit. note 57 pp. 545-86.
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(5) JURISDICTION TO REVIEW The application of the principle of res judicata results in the inadmissibility of an action and thus pertains to the jurisdiction of IATs. Conversely, the power of tribunals to review judgments which they have already rendered affords tribunals a reason for exercising jurisdiction and, consequently, also relates to their jurisdiction. (a) Res Judicata The doctrine of res judicata has been long recognized as applicable to their judgments by IATs.151 The principle of res judicata means that a judgment given by a tribunal closes without further recourse the proceedings brought under its jurisdiction.152 In so far as the statute of a tribunal may state that its judgments are final and without appeal, the doctrine is clearly applicable. The UNAT endorsed this view when it linked the inability to reopen a case to the provision that judgments were final and without appeal.153 But the doctrine is applicable even in the absence of express reference to finality in the constitutive documents of the tribunal.154 The doctrine of res judicata has been frequently applied specifically by tribunals to render applications inadmissible. Thus, in Chen (No. 2)155 the ILOAT found that a claim relating to premature 151
See, e.g., Tranter, ILOAT Judgment No. 37 [1958], Thevenet, OASAT Judgment No. 43 [1979], Eh, CJEC Cases 22 & 23/60 [1961] ECR p. 181. 152 Tranter, ILOAT Judgment No. 37 [1958] at p. 2. 153 Khalil, UNAT Judgment No. 973 [2000] at p. 3. The present author drafted the judgment in this case as a Judge of the tribunal. See also van Gent, WBAT Reports [1983, Part II], Decision No. 13 at p. 6, A. Berg (No. 2), WBAT Reports [1990], Decision No. 87 at p. 4. 154 For the meaning and incidence of the doctrine see Chapter 11 pp. 426 ff. 155 ILOAT Judgment No. 547 [1983]. See also, e.g., de Aguero, OASAT Judgment No. 51 [1980], Tranter, ILOAT Judgment No. 37 [1958], Charbin (No. 2), ILOAT Judgment No. 10 [1982], Loroch (No. 2), ILOAT Judgment No. 620 [1984], Decision No. 3 (2nd Appeal), ESRO/CR/21, ESRO Appeals Board [1969], van Kick, CJEC Case 57/70 [1971] ECR p. 613, Decision No. I69(b) NATO Appeals Board [1984], Collection of the Decisions 135 to 171 [1984], van Gent (No. 4), WBAT Reports [1985], Decision No. 19, A. Berg (No. 2), WBAT Reports [1990], Decision No. 87.
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retirement made by the applicant was clearly resjudicata, because in an earlier judgment the tribunal had dismissed his application against the refusal of WHO to renew his contract and the subsequent application was substantially the same. There are cases in which tribunals have referred to and accepted the principle of resjudicata but have found that the principle was inapplicable in the circumstances of the case with the result that the applications were admissible.156 lATs have recognized that there are situations in which a judgment which has been rendered and would otherwise be covered by the principle of resjudicata may be reopened, even if the statute of the tribunal is silent on the matter.157 The ILOAT has also said in this context that pleas based on mistake of law or mistake in the appraisal of facts do not cause the exception to operate.158 On the question when a judgment may be reopened the UNAT has said in explaining its statute that "The inherent powers of the Tribunal relate to instances such as when an interpretation of a judgment... or rectification in a judgment of a clerical error is requested or when there is fraud or corruption in connection with the judgment."159 (b) Review The power to review judgments is an exception to the principle of res judicata and, consequently, is strictly construed,160 whether 156
E.g., Glorioso, ILOAT Judgment no. 550 [1983], Hubeau, ILOAT Judgment No. 574 [1983], Thevenet, OASAT Judgment No. 43 [1979], Reynier andErba, CJEC Cases 79 & 82/63 [1964] ECR p. 259. In Garcia and Mdrquez (No. 2), ILOAT Judgment No. 496 [1982], the tribunal held that the fact that an application had been dismissed as irreceivable did not constitute a barrier to a second presentation, if the objection of inadmissibility could be overcome. 157 Charbin (No. 2) ILOAT Judgment No. 510 [1982]. 158 See, e.g., Tarrab (No. JO), ILOAT Judgment No. 555 [1983] at p. 1, Acosta Andres, Azola Blanco and Veliz Garcia (No. 2), ILOAT Judgment No. 570 [1983] at p. 3. 159 Khalil, UNAT Judgment No. 973 [2000] at p. 3. Some of these powers may sometimes be specifically mentioned in the written law, i.e., statutes: see, e.g., Article 11 of the UNAT statute. 160 See Acosta Andres, Azola Blanco and Veliz Garcia (No. 2), ILOAT Judgment No. 570 [1983] at p. 2.
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under general principles of law or in the interpretation of the statutes of the tribunals. The power to review judgments, it is important to recognize, is to be seen as a derogation from the principle of resjudicata and the finality of judgments. It is the power to review judgments other than where there has been an element of fraud or corruption, an interpretation has been requested, or a clerical error requires to be rectified, which are governed in any event by general principles of law, that is in issue here. In the case of some tribunals, such as the ILOAT, the statutes are silent on the question of review by the same tribunal. In an early case, Tranter,161 the ILOAT tended to the view that, since its statute did not give it the power, it could not review its judgment. However, in later cases the tribunal changed its view and decided that there were circumstances in which it could review its own judgments. Thus, in de Villegas (No. 4) it referred in general terms to the grounds on which it would assume jurisdiction to review and reexamine a case decided by it. It stated: Other pleas in favour of review may be allowed if they are such as to affect the Tribunal's decision. They include an omission to take account of particular facts; a material error, i.e., a mistaken finding of fact, which, unlike a mistake in appraisal of the facts, involves no exercise of judgment; an omission to pass judgment on a claim; and the discovery of a so-called 'new' fact, i.e., a factor which the complainant discovered too late to cite in the original proceedings.162
In most of the decided cases the applicants failed to submit admissible applications for review because their pleas failed to meet the requirements set out above. In regard to the discovery of new facts there have been cases in which it has been held that the claim was inadmissible, because no plea had been made that the facts were 161
ILOAT Judgment No. 37 [1958]. The case involved the discovery of confidential documents by the applicant which allegedly would have affected the decision in the earlier case. 162 ILOAT Judgment No. 442 [1981] at p. 2. See also Tarrab (No. 10), ILOAT Judgment No. 555 [1983] at p. 1, Loroch (No. 2) ILOAT Judgment No. 620 [1984] at p. 6.
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not and could not have been discovered in time to cite in the original proceedings163 or because the new facts were either known to the applicant at the time of the original proceedings or were accessible to him.164 Sometimes the tribunal has pointed out that the fact alleged to have been discovered must be material or relevant for the judgment to be reviewed.165 In Leger (No. 2)166 the tribunal held that the willingness to adduce new evidence by itself was not a ground for review, if that evidence was irrelevant to the outcome of the decision. The ILOAT has not been slow to point out what in its opinion would be inadmissible grounds for review. In de Villegas (No. 4), it said that an alleged mistake of law or an alleged mistake in the appraisal of facts would not render a judgment susceptible of review.167 Further, the tribunal said that allegations that there had been a failure to admit evidence or that the tribunal had failed to comment on pleas submitted by the parties were not valid reasons for review of judgments.168 The tribunal has also held that pleas that the applicant had made an error or omission in the earlier case,169 that the respondent wished to dispute facts that had not been disputed 163
See Acosta Andres, Azola Blanco and Veliz Garcia (No. 2), ILOAT Judgment No. 570 [1983]. 164 Smith, ILOAT Judgment No. 201 [1973], Verdrager (No. 3), ILOAT Judgment No. 400 [1980], Ido (No. 2) ILOAT Judgment No. 645 [1984]. 165 See Verdrager (No. 3), ILOAT Judgment No. 400 [1980]. In Verron (No. 3), ILOAT Judgment No. 704 [1985], invocation of a fact which occurred after the original judgment had been given was held no to be sufficient ground for review. 166 ILOAT Judgment No. 554 [1983]. 167 ILOAT Judgment No. 442 [1981] at p. 2. Cases where such pleas were held to be inadmissible for the purposes of review were Verdrager (No. 5), ILOAT Judgment No. 443 [1981], Verdrager (No. 6), ILOAT Judgment No. 504 [1982], de Villegas (Nos. 8, 9 & 10), ILOAT Judgment No. 536 [1982], Acosta Andres, Azola Blanco and Veliz Garcia (No. 2) ILOAT Judgment No. 570 [1983], Ziante (No. 2), ILOAT Judgment No. 593 [1983], de Villegas (No. 77), ILOAT Judgment No. 604 [1984]. 168 de Villegas (No. 4), ILOAT Judgment No. 442 [1981] at p. 2. 169 Smith, ILOAT Judgment No. 201 [1973].
Jurisdiction to review
719
before,170 that the applicant had failed to admit evidence,171 or that there were objections to the reasoning of the tribunal172 were not good grounds for admissibility of a case for review. The tribunal has, further, pointed out that admissibility for review also hinged on whether the alleged flaws had an effect on the earlier decision of the tribunal.173 In a few cases the ILOAT has held that the pleas for review were admissible but in most of them after examining the pleas it found that they had no substance. Thus, the tribunal has held that a plea that there had been an omission on the part of the tribunal to hear a claim for compensation for moral prejudice,174 a plea that there had been a failure to take account of particular facts in the earlier case,175 and a plea that a new fact had been discovered in the form of a post description of which the applicant was unaware176 were good grounds for reopening a case for review. Unlike the statute of the ILOAT most statutes (or sometimes Rules of Procedure) have provisions relating to the power of tribunals to review judgments. In general, it would seem that tribunals would regard such provisions as strictly limiting. There are not many judgments on this point but it is significant that the UNAT has stated that its power to review decisions, apart from inherent 170
Acosta Andres, Azola Blanco and Veliz Garcia (No. 2), ILOAT Judgment No. 570 [1983]. 171 Seghal (No. 2), ILOAT Judgment No. 579 [1983]. 172 Espinola (No. 2) ILOAT Judgment No. 610 [1984]. For other cases in which the ILOAT held that there were no grounds for review see, e.g., Bambinelli (No. 3) ILOAT Judgment No. 708 [1985], Nesic (No. 4) ILOAT Judgment No. 796 [1986], Loroch (No. 6), ILOAT Judgment No. 950 [1988], Maugis (No. 3), ILOAT Judgment No. 980 [1989]. 173 See de Villegas (No. 4), ILOAT Judgment No. 442 [1981]. 174 See ibid.: de Villegas (No. 11), ILOAT Judgment No. 604 [1984]. 175 Ayyangar (No. 2), ILOAT Judgment No. 578 [1983]. 176 Espinola (No. 2), ILOAT Judgment No. 610 [1984]. Other cases in which it was held that there were good grounds for reopening the cases were e.g., Alt Khan (No. 4), ILOAT Judgment No. 649 [1985], Bonneau, ILOAT Judgment No. 671 [1985], Bonneau (No. 2), ILOAT Judgment No. 757 [1986], Maugain (No. 5), ILOAT Judgment No. 813 [1987].
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powers referred to above, is strictly limited and may be exercised only upon compliance with the conditions set forth in its statute.177 It has also made it clear that: Consequently, no party may seek revision of a judgment merely because that party is dissatisfied with the decision of the Tribunal and wants to have a second round of litigation. (See Judgment No. 894, Mansour.) Any claim for revision based on unacceptable reasoning, misinterpretation of the evidence, or alleged failure specifically to address a plea or take into account facts produced in evidence, other than a claim based on the circumstances specified in Article 11 , would not be accepted by the Tribunal.178
The implication is that the power of tribunals to review their judgments would be more circumscribed that that which the ILOAT has exercised, presumably pursuant to general principles of law, because the explicit provisions of statutes or Rules of Procedure where they exist grant fairly narrow powers of review. It is also not clear whether a grant of power to rectify clerical or accidental mistakes in decisions, without more, such as is made by the statutes of the Appeals Boards of the Council of Europe179 and of the WEU180 would preclude the assumption of powers by these tribunals to review judgments in any other circumstances, as under the general principles of law applied by the ILOAT. There are several kinds of provisions relating to the power of tribunals to review judgments. In the case of one tribunal, for instance, review is permitted where: (a) a new fact is discovered; (b) the fact might have had a decisive influence on the judgment of the tribunal; 177
Khalil, UNAT Judgment No. 973 [2000] at pp. 3-4, Skandera, WBAT Reports [1982], Decision No. 9 at p. 3, van Gent, WBAT Reports [1983, Part III], Decision No. 13 at p. 7. See also Bulsara, UNAT Judgment No. 73 [1958], JUNAT Nos. 71-86 p. 12, Bellintani and Others, CJEC Case 116/78 Rev. [1980] ECR p. 23, Decision Nos. 8 & 10, ESRO/CR/52, ESRO Appeals board [1971]. 178 Khalil, UNAT Judgment No. 973 [2000] at p. 4. 179 Amerasinghe (ed.), op. cit. note 16 at p. 124 (Article 12(2)). 180 Ibid. at p. 172 (Article 59(b)).
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721
(c) the fact was unknown to the tribunal at the time the judgment was delivered; (d) the fact was unknown to the party requesting review at the time the judgment was delivered; (e) the request for revision is made within six months after the party acquired knowledge of the fact.181 Similar provisions are sometimes combined with the grant of power to interpret judgments or to correct arithmetical or clerical mistakes or both.182 In the case of some statutes provision is made for review in the above circumstances with the addition that a case may be reopened in order to correct an accidental mistake.183 In the case of yet other tribunals provision is made only for the reopening of decisions to correct clerical or accidental mistakes.184 Where the written law provides only for the rectification of clerical and accidental errors, it has been understood that accidental errors could cover a wide variety of alleged defects. The Appeals Board of the OECD has implied that the alleged defect could be that some new facts or elements existed which could have had an influence on the previous decision.185 While no explanation was given of the exact requirements for the review of judgments on the ground 181
Article XIII of the WBAT statute: see Amerasinghe (ed.) op. cit. note 16 at pp. 48-9, van Gent, WBAT Reports [1983, Part III], Decision No. 13 at p. 7, van Gent (No. 8), WBAT Reports [1987, Part I], Decision No. 33, A. Berg (No. 2), WBAT Reports [1990], Decision No. 87. Articles No. 41, 38, and 42 of the statutes of the CJEC have similar provisions: see Amerasinghe (ed.) 2 op. cit. note 35 at pp. 50, 62, and 70, Bellintani and Others, CJEC Case 116/78 Rev. [1980] ECR p. 23. The time-limit prescribed is different. See also Article 26 of the IDBAT Rules of Procedure: Amerasinghe (ed.) op. cit. note 16 at p. 80. 182 See Article 12 of the UNAT statute: Amerasinghe (ed.), ibid. at pp. 11-12, Article IX of the OASAT statute: Amerasinghe (ed.), ibid. at p. 87. 183 See Article 4.84 of the NATO Appeals Board statute: Amerasinghe (ed.), ibid, at p. 142. Regulation 41.17 of the statute of the ESA Appeals Board: ibid. at pp. 157-8. 184 See Rule 5(c) of the Rules of Procedure of the OECD Appeals Board: Amerasinghe (ed.), ibid. at p. 116, Article 59(b) of the statute of the WEU Appeals Board: Amerasinghe (ed.), ibid. at p. 172. 185 See Angelopoulos, Decision No. 91, OECD Appeals Board [1982], Recueil des decisions 83 a 102 (1983) p. 26, Angelopoulos, Decision No. 97,
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that such new facts or elements existed, there are no cases in which a review has been held to have been admissible on this ground. In regard to accidental error some indication has been given by the Appeals Board of the OECD and of NATO of what else might or might not amount to a defect warranting review of a judgment, although in general it has not been found possible to review judgments on any of the possible grounds. However, in Decision No. 13(b)186 the Appeals Board of NATO held that, where the applicant was able to prove that she had not received the letter informing her that the deposit of the security was necessary, its earlier decision to dismiss the action on the ground that security had not been deposited was subject to review because until she received the decision she was not aware that security was required. Apart from this case, the Appeals Board of OECD has reviewed a case on the ground of material error187 and said that errors in establishing facts because of a failure to consider certain elements or a failure to rule on pleas which should normally have been considered and which were not abandoned were grounds for review of a previous decision.188 In several cases it has been indicated what would be insufficient to precipitate the review of a previous decision. Thus, alleged error of law,189 absence or inadequacy of justification for the decision,190 OECD Appeals Board [1983], ibid. p. 43. See also Angelopoulos, Decision No. 58, OECD Appeals Board [1977], Recueil des decisions 1 a 62 (1979) p. 162, Angelopoulos, Decision No. 74, OECD Appeals Board [1980], Recueil des decisions 63 a 82 (1980) p. 36. 186 Decision No. 13(b), NATO Appeals Board [1969], Collection of the Decisions (1972). 187 Thornton. Decision No. 114, OECD Appeals Board [1989]. 188 Angelopoulos, Decision No. 58, OECD Appeals Board [1977], Recueil des decisions 1 a 62 (1979) p. 162 at p. 163. See also Angelopoulos, Decision No. 74, OECD Appeals Board [1980], Recueil des decisions 63 a 82 (1980) p. 36 at p. 37, and Decision No. 15(b), NATO Appeals Board [1970], Collection of the Decisions (1972). Errors must be material errors in order to have an effect: Decision No. 19, OECD Appeals Board [1955], Recueil des decisions 1 a 62 (1979) p. 54. 189 Decision No. 15(b), NATO Appeals Board [1970], Collection of the Decisions (1972), Decision No. 19, OEEC Appeals Board [1955], Recueil des decisions 1 a 62 (1979) p. 54. 190 Decision No. 114, NATO Appeals Board [1980], Collection of the Decision 100 to 134 [1981], Decision No. 116, NATO Appeals Board [1980],
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723
error in the appraisal of facts,191 and failure to rule on invoked pleas which were not pertinent192 or on pleas not invoked193 were inadequate grounds for review. The Appeals Board of the OECD has also specifically stated that the material errors invoked should not be due to the fault or negligence of the applicant who invokes them, nor should they affect decisions by which he had obtained satisfaction and that the applicant should take advantage of the errors invoked as soon as he found out about them and that an appeal for rectification of material errors is not receivable against a judgment which is based on a previous appeal for rectification of material errors.194 Where written law provides for rectification of clerical or mathematical errors as a ground for review, tribunals have in several cases accepted pleas for rectification and made corrections in their judgments,195 but it has been held that rectification of clerical errors may not have an effect on the purport of the previous decision.196 There is considerable jurisprudence relating to the issue of review based on the discovery of new facts. It has been held that there must genuinely be a fact discovered but in most cases tribunals have found that no new facts have been discovered.197 In particular ibid., Angelopoulos, Decision No. 63, OECD Appeals Board [1978], Recueil des decisions 63 a 82 (1980) p. 5. 191 Decision No. 19, OEEC Appeals Board [1955], Recueil des decisions 1 a 62 (1979) p. 54, Angelopoulos, Decision No. 58, OECD Appeals Board [1977], ibid. p. 162, Angelopoulos, Decision No. 63, OECD Appeals Board [1978], Recueil des decisions 63 a 82 (1980) p. 5. 192 Angelopoulos, Decision No. 58, OECD Appeals Board [1977], Recueil des decisions 1 a 62 (1979) p. 162. 193 Angelopoulos, Decision No. 58, OECD Appeals Board [1977], ibid. 194 Angelopoulos, Decision No. 91, OECD Appeals Board [1982], Recueil des decisions 83 a 102 (1983) p. 26. 195 See Osman, UNAT Judgment No. 197 [1975], JUNAT Nos. 167-230 p. 258, Pattillo, UNAT Judgment No. 294 [1982], JUNAT Nos. 231-300 p. 593, Decision No. 137, NATO Appeals Board [1981], Collection of the Decisions 135 to 171 (1984), Decision No. 151, NATO Appeals Board [1982], ibid., Geist, CJEC Case 192/80 [1981] ECRp. 1387. 196 Decision No. 137, NATO Appeals Board [1981], Collection of the Decision 135 to 171 (1984). 197 See, e.g., Bulsara, UNAT Judgment No. 73 [1958], JUNAT Nos. 71-86 p. 12, Quememis, UNAT Judgment No. 187 [1974], JUNAT Nos. 167-230
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they have made it clear that new arguments or inferences cannot be regarded as new facts.198 Thus, the conviction that the applicant's case should have been presented differently is not a new fact for this purpose.199 A new interpretation of administrative provisions by the applicant or the application to the case already decided of case-law contained in an earlier judgment or the reference to a possible grading under rules in force is not a new fact either.200 The facts must not have been known to the applicant and the tribunal at the time the decision sought to be reviewed was rendered.201 It has also been held that the facts must not have arisen after the date of delivery of the judgment sought to be reviewed.202 Further, the facts discovered must be relevant or of such nature as to have been capable of having a decisive effect on the previous judgment.203 It is also p. 164, Teixeira, UNAT Judgment No. 255 [1980], JUNAT Nos. 231-300 p. 259, Sforza-Chrzanowski, UNAT Judgment No. 270 [1981], ibid. p. 402, Decisions No. 8 & 10, ESRO/CR/52, ESRO Appeals Board [1971], Decisions No. 8 & 10, ESRO/CR/58, ESRO Appeals Board [1971], Decisions No. 8 & 10, ESRO/CR/86, ESRO Appeals Board [1973], Decisions No. 8 & 10, ESRO/CR/91, ESRO Appeals Board [1974], Elz, CJEC Case 56/75 Rev. [1977] ECR p. 1617, Serio, CJEC Case 115/73 Rev. [1974] ECR p. 671, Bellintani and Others, CJEC Case 116/78 Rev. [1980] ECR p. 23, Decision No. 66, NATO Appeals Board [1975], Collection of the Decisions 46 to 73 (1976), Decision No. 98, NATO Appeals Board [1978], Collection of the Decisions 65(b), 74 to 99 (1979). More recently see Howlader, UNAT Judgment No. 430 [1988]. 198 See the cases cited in the previous footnote. 199 Fasla, UNAT Judgment No. 177 [1973], JUNAT Nos. 167-230 p. 77. 200 Bellintani and Others, CJEC Case 116/78 Rev. [1980] ECR p. 23. 201 See Bartel, UNAT Judgment No. 277 [1981], JUNAT Nos. 231-300 p. 474, Skandera, WBAT Reports [1982], Decision No. 9, Decision No. 16(a) NATO Appeals Board [1969], Collection of the Decisions (1972), Decision No. 43, NATO Appeals Board [1972] ibid. It is no excuse that the applicant had forgotten the fact: Decision No. 166, NATO Appeals Board [1984], Collection of the Decisions 135 to 171 (1984). See also more recently, A. Berg (No. 2) WBAT Reports [1990], Decision No. 87. 202 Khederian, UNAT Judgment No. 137 [1970], JUNAT Nos. 114-166 p. 217, van Gent, WBAT Reports [1983, Part II], Decision No. 13, Decision No. 170, NATO Appeals Board [1984], Collection of the Decisions 135 to 171 (1984). 203 Thus, where revision was sought of a judgment awarding compensation upon termination of service in UNICEF for abolition of post, it was held that the
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important that the time-limits prescribed in the written law be observed, since tribunals have declared applications for review inadmissible because they were out of time according to those provisions.204 In this connection, where a second action is brought for review after a prior action for review, the relevant time is deemed to run not from the date of the judgment in the first action for review but from the date of the judgment in the original action which was sought to be reviewed.205 In the case of the ILOAT, its statute provides for the review by another international court, the ICJ, of its judgments in limited
discovery of the fact that some locally recruited staff members of the European Office of UNICEF were transferred to UNESCO was irrelevant, because the applicant was not eligible for consideration for posts outside UNICEF: Quememis, UNAT Judgment No. 187 [1974], JUNAT Nos. 167-230 p. 164. See also, e.g., Osman, UNAT Judgment No. 197 [1975], JUNAT Nos. 167-230 p. 258, Kennedy, UNAT Judgment No. 271 [1981], JUNAT Nos. 231-300 p. 406, Panis, UNAT Judgment No. 303 [1983], Muller, CJEC Case 28/64 Rev. [1967] ECRp. l4l,Schuerer, CJEC Case 107/79 Rev. [1983] ECRp. 3805, Decision No. 109, NATO Appeals Board [1980], Collection of the Decisions 100 to 134 (1981), Decision No. 140(b), NATO Appeals Board [1982], Collection of the Decisions 135 to 171 (1984), Decision No. 165, NATO Appeals Board [1983], ibid., SforzaChrzanowski, UNAT Judgment No. 357 [1985], Howlader, UNAT Judgment No. 430 [1988], van Gent (No. 8), WBAT Reports [1987, Part I], Decision No. 33, A. Berg (No. 2), WBAT Reports [1990], Decision No. 87. 204 See Touhami, UNAT Judgment No. 163 [1972], JUNAT Nos. 114-166 p. 395, Bartel, UNAT Judgment No. 282 [1982], JUNAT Nos. 231-300 p. 514, Kennedy, UNAT Judgment No. 284 [1982], ibid. p. 525, Richez-Parise, CJEC Case 40/71 [1972] ECR p. 73. 205 Kennedy, UNAT Judgment No. 284 [1982], JUNAT Nos. 231-300 p. 525. The Appeals Board of NATO has been confronted with the argument that there is a general procedural principle that an appeal for a rehearing should invariably be heard by persons other than those responsible for the judgment which is challenged. The tribunal held that there was no general procedural principle debarring members of international tribunals from hearing petitions for the reversal of decisions in which they had had a part. Thus, it was proper, in the absence of express provisions to the contrary, that members of an international tribunal who had had a part in a given decision hear a petition for the quashing of that decision: Decision No. 15(a), NATO Appeals Board [1969], Collection of the Decisions (1972).
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Chapter 15. International administrative tribunals
situations.206 The statute permits reference of a judgment of the ILOAT to the ICJ for an advisory opinion where the Governing Body of the ILO or the Administrative Branch of the Pension Fund challenges such judgment confirming the jurisdiction of ILOAT or considers that the judgment is vitiated by a fundamental fault in the procedure followed.207 The Judgments of the ILO Administrative Tribunal Opinion208 concerned the jurisdiction of the ILOAT to determine certain questions which arose in connection with several cases brought against UNESCO relating to the non-renewal of fixed-term contracts. The ICJ held that the ILOAT had acted properly in exercising jurisdiction in regard to all these questions.
206
See Article XI of the ILOAT statute: Amerasinghe (ed.), op. cit. note 16
at p. 34. 207 Arrangements have been made for other organizations than the ILO who have subscribed to the statute of the ILOAT to seek review of ILOAT judgments concerning them from the ICJ. 208 1956 ICJ Reports p. 77. The statute of UNAT in the then Article 11 had provisions for the limited review of UNAT cases by the ICJ. These provisions have now been removed. For the application of these provisions see: Amerasinghe (ed.), 1 op. cit. note 57 pp. 252-3.
16 THE EUROPEAN COMMISSION AND COURT OF HUMAN RIGHTS
The current European Convention on Human Rights (post-Protocol 11) has explicit provisions on the contentious jurisdiction of the ECHR (Articles 32 to 35). The former Convention had express provisions dealing with the contentious jurisdiction of both the ECHR and the EComHR (Articles 45 to 49 and Articles 26 and 27 respectively). Although the EComHR acted quasi-judicially, its jurisdictional authority and the way it dealt with it were given judicial treatment by it. The current Convention abolishes the EComHR and more or less fuses the contentious jurisdictional features of the two bodies which were reflected in the former Convention. Consequently much of what applied to the jurisdiction of the EComHR is relevant for the current jurisdiction of the ECHR. Thus, in addition to the precurrent Convention jurisprudence of the ECHR the jurisprudence of the EComHR on jurisdictional matters is still relevant and must be examined, while noting the special features of the current jurisdiction of the ECHR. The former Convention dealt with the contentious jurisdiction of the EComHR in Articles 24 to 27. The earlier Convention's special
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Chapter 16. The ECHR
provisions on the contentious jurisdiction of the ECHR were contained in Articles 45 to 49. The current Convention provides as follows in regard to the contentious jurisdiction of the ECHR: Article 32—Jurisdiction of the Court 1. The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47. 2. In the event of dispute as to whether the Court has jurisdiction, the Court shall decide. Article 33—Inter-State cases Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party. Article 34—Individual Applications The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. Article 35—Admissibility Criteria 1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decisions was taken. 2. The Court shall not deal with any application submitted under Article 34 that a. is anonymous; or b. is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information. 3. The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of application.
The ECHR
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4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.
It would be observed that the provisions relating to the jurisdiction of the ECHR under the new Convention are similar with minor changes to those of the old Convention dealing with the jurisdiction of the EComHR. For example, Article 35 of the new Convention on admissibility criteria (ECHR) is identical in content with Articles 26 and 27 of the old Convention also on admissibility (EComHR). Hence, the relevance of the jurisprudence of the Commission on Articles 26 and 27 (modified by the jurisprudence of the ECHR in the same regard to the extent it had jurisdiction to deal with such matters) cannot be ignored for the work of the ECHR under the new Convention. There are also similarities, though not an identity, between Articles 33 and 34 (ECHR) of the new Convention and Articles 24 and 25 (EComHR) of the old Convention. There is included an extensive examination and analysis, therefore, of the jurisprudence of the EComHR. An initial point to be made is that ostensibly no distinction is clearly made between matters of competence (competence) and those of admissibility (recevabilite). However, it is clear that, while the general practice in both bodies has been to deal with both matters of competence and those of admissibility under a general concept of admissibility which has been clearly encouraged by the manner in which the Convention both new and old has been drafted, there is no indication that either body regarded the distinction between competence and admissibility proper as irrelevant or that the two concepts were not regarded as having different consequences in given situations. Consequently in the present discussion matters of competence will be kept separate from matters of admissibility where this is possible and where it is required. Two of the admissibility conditions included in the former Convention for the EComHR applied to applications submitted by states as well as to those submitted by individuals. These are the condition relating to the exhaustion of domestic remedies and the six-month rule (Article 26). For the "admissibility" of an individual application, five additional requirements were that the application
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Chapter 16. The ECHR
(i) was not anonymous; (ii) was not substantially the same as a matter which had already been examined by the Commission or had already been submitted to another procedure of international investigation or settlement and contained no relevant new information; (iii) was not incompatible with the provisions of the Convention; (iv) was not manifestly ill-founded; and (v) did not constitute an abuse of the right to lodge an application (Article 27(1) and (2)). Applications by states could only be rejected on the grounds mentioned in Article 26, and not on the ground of incompatibility with the Convention mentioned in Article 27(2), a ground on which the Commission sometimes rejected individual applications with respect to which it had no competence.1 But it is evident that applications by states could also fall outside the competence of the Commission, for instance ratione temporis, when the application related to a time period in which the Convention had not yet become binding upon the respondent state. The practice concerning individual applications shows that the Commission usually accepted or rejected applications outside its competence ratione personae, ratione materiae, ratione loci, or ratione temporis by reference to admissibility and inadmissibility. MATTERS STRICTLY OF COMPETENCE (1) Competence Ratione Loci (a) Article 1 of the European Convention on Human rights provides that the Convention is applicable to everyone within the jurisdiction of the contracting states. According to general international law a treaty is applicable to the whole territory of a contracting state, 1
See, e.g., Appl. 473/59, X v. Austria, 2 YBECHR (1958-1959), p. 400, Appl. 1452/62, X v. Austria, 6 YBECHR (1963) p. 268. On the question of "admissibility" (recevabilite) see generally van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights (1998), De Bruyn, Les exceptions preliminaires dans la Convention europeenne des droits de l'homme (1997), Schermers, "European Convention On Human Rights", 7 Collected Courses of the Academy of European Law (1996) p. 1. All these works deal with the pre-1998 situation. Article references are to the old Convention.
Matters strictly of competence
731
including those territories for whose international relations the state in question is responsible.2 Under Article 63(1), however, the European Convention extends to the latter territories only when the contracting state concerned has agreed to this by means of an appropriate declaration to that effect. Several contracting states made such declarations at one time or another. The question what the words "territory for whose international relations a state is responsible" meant was raised in X v. Belgium.3 Even though the area, the Belgian Congo, formed part of the national territory of Belgium at the time of the acts complained of, the Commission held that the Belgian Congo had to be regarded as a territory for whose international relations Belgium was responsible in the sense of Article 63, because that was what it was at the time of the complaint, and that the complaint was not admissible ratione loci, since Belgium had not made any declaration under Article 63 with reference to this territory. When territories become independent, a declaration under Article 63 automatically ceases to apply, because the contracting state which made it, is no longer responsible for the international relations of the new state.4 (b) That the Convention is applicable only to the territory of the contracting states, subject to Article 63 does not imply that a contracting state cannot be responsible under the Convention for acts of its organs that have been committed outside its territory, where there is control, whether, e.g., militarily or through a subordinate local 2
See Art. 29 of the 1969 Vienna Convention on the Law of Treaties, 8 ILM p. 679. 3 Appl. 1965/61, 4 YBECHR (1961) p. 260. According to Article 63(3) the provisions of the Convention are applied to the territories referred to in Article 63 with due regard to local requirements. In the Tyrer Case the British Government submitted in this context that corporal punishment on the Isle of Man was justified as a preventive measure, based on public opinion on the island. The Court, however, held that: "for the application of Article 63(3), more would be needed: there would have to be positive and conclusive proof of a requirement, and the Court could not regard beliefs and local 'public' opinion on their own as constituting proof.": Judgment of 25 April 1978, A.26 at p. 18. See also the Piermont Case, 38 YBECHR (1995) at p. 258, the Wiggins Case (1979), 13 D&R at p. 48. 4 See, e.g., Appl. 7230/75, X v. the Netherlands, 1 D&R (1977) p. 109.
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administration.5 The responsibility of contracting states may be incurred on account of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory.6 On the other hand, a contracting state is responsible for acts committed on its territory only to the extent that they have been committed by its own organs.7 (2) Competence Ratione Temporis Pursuant to a generally accepted principle of international law a treaty is presumed not to be applicable to acts or facts that have occurred, or to situations that have ceased to exist, before the treaty entered into force and was ratified by the state in question. This applies also to the European Convention.8 In the Pfunders Case the Commission held that from the nature of the obligations under the Convention it could be inferred that the fact that the respondent state (Italy) was a party to the Convention at the time of the alleged violation was decisive, it being irrelevant that at that moment the applicant state (Austria) had not ratified the Convention and was not a party.9 5
The Loizidou Case, Judgment of 23 March 1995, A.310, p. 24. See also, Appl. 1611/2, X v. Federal Republic of Germany, 8 YBECHR (1965) p. 158, Appls. 7289/75 and 7349/76, X and Y v. Switzerland, 9 D&R (1978) p. 57. In this context see, however, Appl. 6231/73, Use Hess v. United Kingdom, 18 YBECHR p. 146. 6 Judgment of 26 June 1992, Drozd and Janousek, 35 YBECHR(1992) at p. 161, but in that case the Court agreed with the Commission that there was no jurisdiction ratione loci. 7 See Appl. 2095/63, Xv. Sweden, Federal Republic of Germany and Other States, 7 YBECHR (1965) at p. 282, where it was decided that the alleged violations of the Convention by the Supreme Restitution Court could not be held against the Federal Republic of Germany, even though this tribunal had its sessions on West German territory. It was to be considered as an international tribunal, in respect of which Germany had neither legislative nor supervisory powers. See also Appl. 235/56, X v. Federal Republic of Germany, 2 YBECHR (1958-1959) p. 256, and Drozd and Janousek, 35 YBECHR (1992) p. 160. 8 Appl. 343/57, Schouw Nielsen v. Denmark, 2 YBECHR (1958-1959) p. 412, Appl. 7742/76, A.B. & Company A.S. v. Federal Republic of Germany, 14 D&R (1979) p. 146. 9 Appl. 788/60, Austria v. Italy, 4 YBECHR (1961) p. 116.
Matters strictly of competence
733
The Commission has had to decide objections to jurisdiction in complaints which relate to a continuing situation, i.e., to violations of the Convention which are caused by an act committed at a given moment but continue owing to the consequences of the original act. Such a case occurred with respect to a Belgian national who lodged a complaint concerning a conviction by a Belgian court for treason during World War II. The verdict had been pronounced before Belgium had ratified the Convention, but the situation complained about—the punishment in the form of, inter alia, a limitation of the right of free expression—continued after the Convention had become binding on Belgium. The Commission declared the complaint admissible because it held that the latter fact was decisive.10 The ECHR took a similar view in the Papamichalopoulos Case.11 A special situation occurred when several complaints concerning criminal proceedings in Italy were lodged. The issue of applying restrictions in jurisdictional acceptances ratione temporis arose. In its declaration under Article 25 this country had laid down that it accepted the rights of individual petition as from 1 August 1973. The procedure in the first instance in these cases had ended in 1969. On appeal, the verdict had been pronounced on 11 February 1976. To the extent that the complaint concerned the first-mentioned procedure it was rejected by the Commission ratione temporis, while with respect to the appeal procedure the application was declared admissible.12 10
Appl. 214/56, De Becker v. Belgium, 2 YBECHR (1958-1959) p. 214. See also, e.g., Appl. 8701/79, X v. Belgium, 18 D&R (1980) p. 250. See also the negative decision of the Commission in the joined Appls. 8560/79 and 8613/79, X andYv. Portugal, 16 D&R (1979) p. 209. 11 Judgment of 24 June 1993,36 YBECHR (1993) at p. 206. In the Yagci and Sargin Cases, the Court rejected the preliminary objection, holding that the Court's jurisdiction was not excluded in respect of events subsequent to the date of the acceptance by Turkey of the Court's compulsory jurisdiction but which by their nature were merely "extensions of ones occurring before that date": Judgments of 8 June 1995, 38 YBECHR (1995) at p. 271. On the other hand, the Court found that the "continuing situation" doctrine did not apply to the facts of the Stamoulakatos Case, Judgment of 26 October 1993, 36 YBECHR (1993) at p. 240. 12 Appl. 8261/78, X v. Italy, 18 D&R (1980) at p. 151.
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Chapter 16. The ECHR
In regard to the temporal scope of the Convention, Article 65(2) provides that, even after a state has denounced the Convention in accordance with Article 65(1), the latter remains fully applicable to that state for a further six months. A complaint submitted between the date of denunciation of the Convention and that on which that denunciation becomes effective thus falls within the scope of the Convention ratione temporis.12 (3) Restrictions on Acceptances of Jurisdiction Pursuant to Articles 25 and 46 A declaration of a contracting state made pursuant to Article 25 in which the competence of the Commission to receive applications from individuals is recognized generally has retrospective effect to the moment of the ratification of the Convention.14 As a consequence of this approach an individual may draw the Commission's attention to an alleged violation of the Convention, even if this violation took place prior to the moment at which the respondent state made that declaration, provided that at the moment in question the Convention was binding upon that state. When making that declaration, however, a state may indicate that it applies to the future only.15 But even in that event what has been said above in regard to "continuing violations" becomes relevant. When Turkey accepted the right of individual petition, it subjected its acceptance of the Commission's competence to several limitations.16 The Commission and the Court had the opportunity to consider the validity of these limitations, when they were confronted with a complaint against Turkey. The Commission held that apart from the temporal limitations provided for in Article 25(2) the 13
Appl. 4448/70, Denmark, Norway and Sweden v. Greece, 13 YBECHR (1970) at p. 120. 14 Appl. 9578/81, X v. France, 29 D&R (1982) at pp. 238 ff., Appl. 9990/82, Bozano v. France, 39 D&R (1984) p. 143. 15 See, e.g., the declaration of the United Kingdom, 9 YBECHR (1966) p. 8. See also Appls. 15299/89, 15300/89 and 15318/89, Chrysostomos, Papachrysostomou andLoizidou v. Turkey, 34 YBECHR (1991) at pp. 49 ff. 16 Ibid. at p. 43.
Matters strictly of competence
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Convention did not authorize any other restriction in a declaration accepting the right of individual petition.17 In the Loizidou Case the Court sought to ascertain the ordinary meaning given to Articles 25 and 46 in their context and in the light of their object and purpose. The Court said that, if Articles 25 and 46 were to be interpreted as giving states the power to make restrictions (other than of a temporal nature), they would be enabled to qualify their consent under the optional clauses. This would severely weaken the role of the Commission and Court and diminish the effectiveness of the Convention as a constitutional instrument of European public order. The consequences for the enforcement of the Convention would be so far-reaching that express provision should have been made for such a power; neither Article 25 nor Article 46 contained such a provision; moreover, the subsequent practice of contracting parties of not attaching restrictions ratione loci or ratione materiae confirmed the view that these were not permitted.18 (4) Competence Ratione Personae Under the Convention there is a right of complaint. The right of complaint concerns jurisdiction ratione personae. There are two aspects to it. (A) Inter-state Applications In regard to active legitimation, a state party to the Convention could lodge an application with the EComHR on the ground of an alleged violation of one or more provisions of the Convention by another contracting state. Unlike the case of diplomatic protection, a state could lodge complaints about violations committed against persons who might or might not be its nationals or even against persons who were not nationals of any of the contracting states, or were 17
Ibid. at pp. 50 ff. See also Appl. 14524/89, Yanasik v. Turkey, 74 D&R (1993) at pp. 24 ff. 18 Judgment of 23 March 1995, 38 YBECHR (1995) at pp. 248 ff. The Court gave other reasons for its conclusion: ibid. On this case see Cohen, "L'affaire Loizidou devant la Cour europeenne des droits de rhomme—quelques observations", 102 RGDIP (1998) p. 123.
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stateless, and even about violations against nationals of the respondent state. States may equally lodge complaints about the incompatibility with the Convention of the national legislation or of an administrative practice of another state without having to allege a violation against any specific person: the so-called "abstract applications". Thus the right of complaint for states assumed the character of an actio popularis: any contracting state had the right to lodge a complaint about any alleged violation of the Convention, regardless of whether there was a special relation between the rights and interests of the applicant state and the alleged violation. In the Pfunders Case between Austria and Italy the Commission said that a state which brings an application under Article 24 "is not to be regarded as exercising a right of action for the purpose of enforcing its own rights, but rather as bringing before the Commission an alleged violation of the public order of Europe".19 Elsewhere, the Court has likewise held that, unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a "collective enforcement".20
The supervisory procedure of the Convention aims at protecting the fundamental rights of the individual against violations by the contracting states, rather than at implementing mutual rights and obligations between those states.21 19
Appl. 788/60, Austria v. Italy, 6 YBECHR (1961) p. 116. See also Appls. 9940/82-9944/82, France, Norway, Denmark, Sweden and Netherlands v. Turkey, 35 D&R (1984) p. 143; Joined Appls. 15299/89, 15300/89 and 15318/89, Chrysostomos, Papachrysostomou and Loizidou v Turkey 34 YBECHR (1991) p. 35. 20 Judgment of 18 January 1978, Ireland v. United Kingdom, A.25, p. 90. In the report of 4 October 1983, Cyprus v. Turkey, 72 D&R (1992) at p. 19, the Commission further noted that a government cannot avoid this collective enforcement by not recognising the government of the applicant state. 21 See also Appls. 3321-3323 and 3344/67, Denmark, Norway, Sweden and Netherlands v. Greece, 9 YBECHR (1968) p. 690, and Appl. 4448/70, Denmark, Norway and Sweden v. Greece, 13 YBECHR (1970) p. 108, both of which were
Matters strictly of competence
737
The Convention at the same time protects the particular interests of the contracting states when they claim that the rights set forth in the Convention must be secured to their nationals coming under the jurisdiction of another contracting state. A case in which the applicant state's own nationals were involved occurred for the first time when Cyprus brought applications against Turkey concerning the treatment of nationals of Cyprus during the Turkish invasion and subsequent occupation of that island.22 Examples of applications concerning persons with whom the applicant state had a special relation other than the link of nationality are the applications of Greece against the UK, which concerned the treatment of Cypriots of Greek origin.23 In order for state complaints to be admissible hardly any prima facie evidence is required. The Commission has deduced from both the English text ("alleged breach") and the French ("qu 'elle croira pouvoir etre impute") that the mere allegation of such a breach is, in principle, sufficient under Article 24.24 The Commission explained that the provisions of Article 27(2)—empowering it to declare inadmissible any petition submitted under Article 25, which it considers either incompatible with the provisions of the Convention or manifestly ill-founded—apply, according to their express terms, to individual applications under Article 25 only, and that, consequently, any examination of the merits of state complaints must be entirely reserved for the post-admissibility stage. On the other hand, the Commission also stated in the same case that the application of a joint applications in the framework of collective enforcement. See also Appls. 9940-9944/82, France, Norway, Denmark, Sweden and Netherlands v. Turkey, 35 D&R(1984)p. 143. 22 Appls. 6780/74 and 6950/75, Cyprus v. Turkey, 18 YBECHR (1975) p. 82. Appl. 8007/77, Cyprus v. Turkey, 20 YBECHR (1977) p. 98, Appl. 25781/94, Cyprus v. Turkey, 42 YBECHR (1998) p. 63. 23 Appls. 176/56 and 299/57, Greece v. United Kingdom, 2 YBECHR (1958-1959) pp. 182 and 186 respectively. See also Appl. 788/60, Austria v. Italy, 4 YBECHR (1961) p. 116, Appls. 5310/71 and 5451/72, Ireland v. United Kingdom, 15 YBECHR (1972) p. 76. 24 Appls. 9940/82-9944/82, France, Norway, Denmark, Sweden and Netherlands v. Turkey, 35 D&R (1984) at p. 161.
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general rule according to which an application under Article 24 may be declared inadmissible if it is clear from the outset that it is wholly unsubstantiated, or otherwise lacking the requirements of a genuine allegation in the sense of Article 24 of the Convention was possible. With regard to applications by states it is also to be noted that they must be lodged by a national authority competent to act on behalf of the state in international relations. In that respect regard must be had not only to the text of the state's constitution but also to the practice under it.25 (B) Individual Applications Article 25 which dealt with active legitimation removed a serious limitation which characterized generally the position of the individual in international law. The requirement of the link of nationality which is the basis of diplomatic protection has been removed. Moreover, because states may generally be reluctant to submit an application against another state, the individual right of complaint constitutes a necessary expedient removed. Moreover, because states may generally be reluctant to submit an application against another state, the individual right of complaint constitutes a necessary expedient for achieving the aim of the Convention which is to secure the rights and freedoms of individuals against states. The right to lodge an application concerns active legitimation. When a state had made the declaration under Article 25(1), anyone who was in some respect subject to the jurisdiction of that state and was allegedly a victim of a violation of the Convention by that state could lodge an application. Article 1 of the Convention made it evident that the nationality of the applicant was irrelevant. It was also irrelevant whether the national state of the individual was a contracting state or had made the declaration under Article 25(1). Stateless persons were also included. Lack of legal capacity did not affect the natural person's right of complaint. In several cases the Court held that minors had the right, of their own accord and without being represented by their guardians, to lodge a complaint
25
Appls. 6780/74 and 6950/75, Cyprus v. Turkey, 18 YBECHR (1975) p. 82.
Matters strictly of competence
739
with the comer. The same applied to persons who have lost their legal capacity after being committed to a psychiatric hospital.26 Besides individuals, non-governmental organisations and groups of persons could also file an application. With respect to the last-mentioned category the Commission decided during its first session that these must be groups which had been established in a regular way according to the law of one of the contracting states. If that were not the case the application must have been signed by all the persons belonging to the group.27 As to the category of nongovernmental organisations, the Commission decided that they had to be private organisations, and that municipalities, for instance could not be considered as such.28 A wide range of organisations29 has submitted applications.30 (i) Being a "victim". Whereas states may complain about "any alleged breach of the provisions of the Convention by another High 26
See, for lack of legal capacity, e.g., the Judgment of 28 November 1988, the Nielsen Case, A. 144, p. 8. Judgment of 24 October 1979, the Winterwerp Case, A.33, p. 6, Judgment of 21 February 1990, the Van der Leer Case, 33 YBECHR (1990) p. 129, Judgment of 24 September 1992, the Herczegfalvy Case, 35 YBECHR (1992) p. 173. 27 See the report of the relevant session, DH(54)3, p. 8. 28 Joined Appls. 5767/72, 5922/72, 5929-5931/72, 5953-5957/72, 59845988/73 and 6011/73, Austrian Municipalities v. Austria, 17 YBECHR (1974) p. 338, Appl. 15090/89, Ayuntamiento M. v. Spain, 68 D&R (1991) p. 209. 29 Newspapers, Appl. 10243/83, Times Newspapers Ltd., Giles, Knightly and Potter v. the United Kingdom, 41 D&R (1985) p. 123, churches, Appl. 8282/78, Church of Scientology v. Sweden, 21 D&R (1981) p. 109, associations, Plattform "Arztefiir das Leben ", v. Austria, 31 YBECHR (1988) p. 153, companies, the Tre TraktorerAB Case, 32 YBECHR (1989) p. 173. 30 Although the rights and freedoms laid down in the Convention apply to individuals as well as to non-governmental organisations, some of the rights and freedoms are by their nature not susceptible of being exercised by a legal person. See, e.g., Appl. 11921/86, Verein Kontakt Information Therapie andHagen v. Austria, 57 D&R (1988) p. 81, Appl. 11533/85, Ingrid Jordebo Foundation of Christian Schools and Ingrid Jordebo v. Sweden, 30 YBECHR (1987) p. 104. On the receivability of individual applications generally see Arend, Kinsch and Spielmann, "Commission europeenne des droits de rhomme: Decisions sur la recevabilite des requets individuelles," 6 Bulletin des droits de I'homme (1996) p. 67.
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Contracting Party", and consequently also about national legislation or administrative practices in abstracto, individuals must claim "to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention" (Article 25). The individual applicant must be the victim of the alleged violation.31 Thus, he may not bring an actio popularis, nor may he submit to the Commission abstract complaints.32 The Commission has held that the mere fact that trade unions considers themselves as guardians of the collective interests of their members does not suffice to make them "victims" of measures affecting those members.33 The Commission has, however, declared admissible individual applications which had a partly abstract character.34 For admissibility the applicant was not required to prove that he was the victim of the alleged violation. Article 25(1) only provides that the applicant must be a person "claiming to be the victim" ("qui se pretend victime"}. However, this does not mean that the mere submission of the applicant that he was a victim was in itself sufficient. The Commission examined whether, assuming that the alleged violation had taken place, it was to be deemed plausible that the applicant was a victim, on the basis of the facts submitted by the applicant and the facts, if any, advanced against them by the defendant state.35 Even if the applicant did not expressly submit that he was the victim of the challenged act or omission, the Commission was, nevertheless, prepared to examine this point and to declare the 31
For the importance of this see Appl. 9320/81, D. v. FRG, 36 D&R (1984) p. 24. In the OZDEP Case the applicant was still held to be a victim, in spite of its dissolution in the circumstances: Judgment of 8 December 1999, 39 ILM p. 513. 32 The Klass Case (1978), A.28 pp. 17-18, the Marckx Case, A. 31 p. 13. 33 Appl. 15404/89, Purcell v. Ireland, 34 YBECHR (1991) p. 90. 34 The Commission has held that "neither Article 25, nor any other provisions in the Convention,... prevent an individual applicant from raising before the Commission a complaint in respect of an alleged administrative practice in breach of the Convention provided that he brings prima facie evidence of such a practice and of his being a victim of it." Appls. 557-5583/72, Donnelly v. the United Kingdom, 16 YBECHR (1973) at p. 216. 35 If in the Commission's opinion this is not the case, it declares the application "incompatible with the provisions of the present Convention" and that it is
Matters strictly of competence
741
application admissible if there appeared to be sufficient ground for this.36 (a) Being a victim means that the applicant must be personally affected by the alleged violation. According to the Court's wellestablished case-law "the word 'victim' in Article 25 refers to the person directly affected by the act or omission at issue".37 To this, however, the Court usually added a phrase on the lines of "the existence of a violation being conceivable even in the absence of prejudice ... ,"38 The requirement that the applicant be personally affected by the alleged violation was also stressed by the Commission.39 inadmissible: see, e.g., Appl. 1983/63, Xv. The Netherlands, 9 YBECHR (1966) at p. 304. In a few cases the Commission declared the application "manifestly illfounded" because in its view the applicant could not be regarded as a victim: see, e.g., Appl. 4653/70, Xv. Federal Republic of Germany, 17 YBECHR (1974) at p. 178. This also led to a declaration of inadmissibility, but this was not the appropriate ground, because the question of whether the application is well-founded depends on whether there has been a violation of the Convention, not on the question of the relationship of such a violation to the applicant. 36 See, e.g., Appl. 99/55, X v. Federal Republic of Germany, 2 YBECHR (1955-1957) p. 160. 37 Recently see the Liidi Case, 35 YBECHR (1992) p. 155, the Groppera Radio AG Case, 33 YBECHR (1990) p. 138. 38 The Liidi Case, 35 YBECHR (1992) p. 155. 39 Appl. 867/60, Xv. Norway, 4 YBECHR (1961) p. 270, Appl. 7045/75, X v. Austria, D&R (1977) p. 87 (88). See also Appl. 7806/77, Webster v. the United Kingdom, 12 D&R (1978) p. 168. For some refinements of the notion and some complications arising from abortion legislation see Annex II to the report of 12 July 1977, Briiggemann and Scheuten, 10 D&R (1978) p. 100, Appl. 6959/75, Briiggemann and Scheuten v. FRG, 5 D&R (1976) p. 103, Appl. 8416/78, Xv. the United Kingdom, 19 D&R (1980) p. 244, Appl. 17004/90, Hercz v. Norway, 35 YBECHR (1992) p. 55. In a case where a journalist and two newspapers alleged violation of their right to receive and impart information as a result of a ruling by the House of Lords that a lawyer had acted in contempt of court because she allowed inspection of confidential documents by the journalist after these had been read out in the course of a public hearing, the Commission took a more restrictive position. It declared the application inadmissible because it did "not consider that the concept of "victim" in Article 25(1) may be interpreted so broadly, in the present case, as to encompass every newspaper or journalist in the United Kingdom who might conceivably be affected by the decision of the House
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(b) The Commission and the Court have also accepted as victims in the sense of Article 25 a category of persons of whom it could not be ascertained with certainty that they had suffered an injury, i.e., those who were potential victims. The reason is that the applicants could not know whether legislation that had been challenged had or had not been applied to them. In the Klass Case three lawyers, a judge and a public prosecutor alleged violation of the secrecy of their mail and telecommunications by the authorities. The measures concerned were secret because the persons in question were not informed of them in all cases, and if they had been informed, then that happened only later. The Commission settled the matter of the victim-requirement in a brief statement, stressing the secret character of the measures, and concluding that, "In view of this particularity of the case the applicants have to be considered as victims for purposes of Article 25".40 The Court dealt with the matter in greater detail.41 It first stated that under Article 25 individuals in principle may neither bring an actio popularis nor complain about legislation in abstracto. The principle of effectiveness (I'effet utile), however, in the Court's view, called for exceptions to this rule. This principle implied that the procedural provisions of the Convention were to be applied in such a way as to support the effectiveness of the system of individual applications. The Court thus concluded that an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of of Lords. The form of detriment required must be of a less indirect and remote nature.": Appl. 10039/82, Leigh and Others v. United Kingdom, 38 D&R (1984) p. 74. However, in a case where the applicants, an editor of a newspaper and a journalist, complained that the law of contempt of court prevented the preparation of a newspaper article on a case which was sub judice, the Commission considered that in view of the applicants' professional activities, they might be directly affected by the Contempt of Court Act 1981 and might, therefore, claim rightly to be victims in regard to this legislation: Appl. 10243/83, Times Newspapers Ltd., Giles, Knightly and Potter v. United Kingdom, 41 D&R (1985) at p. 130. 40 Appl. 5029/71, Klaas v. FRG, 17 YBECHR (1974) p. 178. 41 Judgment of 6 September 1978, A.28, pp. 17-18. See also Appl. 10799/84, Radio X,S,W&A\. Switzerland, 37 D&R (1984) p. 236.
Matters strictly of competence
743
a secret measure or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. Such conditions were satisfied in the case under consideration, because the contested legislation instituted a system of surveillance under which all persons in the FRG could potentially have had their mail, post and telecommunications monitored, without their even knowing this unless there had been either some indiscretion or subsequent notification. The conclusion implied that in case of the existence of secret measures (whether based on legislation or not) the victim-requirement under Article 25 might already be satisfied when the applicant is a potential victim.42 In the later Marckx Case the Court reached the same conclusion expressly referring to the Klass Case. In the Marckx: Case43 the argument was made that the Belgian legislation concerning illegitimate children conflicted with the Convention. The Belgian government 42
See also Report of 16 May 1980, Campbell and Cosans, B.42 (1985), p. 36: the reasoning of the Court in the Klass Case was relied upon by two mothers, who submitted, on behalf of their children, that Article 3 of the Convention had been violated because of the existence of a system of corporal punishment at the schools in Scotland attended by their children. According to the Commission there was no direct analogy with the Klass Case but it did refer to the criterion of effectiveness relied upon by the Court in that case and held subsequently that in order to be accepted as victims under Article 25 of the Convention, individuals must satisfy the Commission that they run the risk of being directly affected by the particular matter which they wish to bring before it. Thus, here again, the mere fact of running a risk was deemed sufficient to be considered as "victims". According to the Commission it would be too restrictive an interpretation of Article 25 to require that the children had in actual fact been subjected to corporal punishment. It therefore considered the children as victims because they "may be affected by the existence of physical violence around them and by the threat of a potential use on themselves of corporal punishment": ibid, at pp. 36-37. However, in a case where a mother and her son complained about the existence of corporal punishment for breach of school discipline the Commission held that, having failed to inquire about the disciplinary methods when she put her child in a private school, a mother cannot claim to be a victim direct or indirect, of a violation of the rights guaranteed in the Convention in respect of corporal punishment inflicted on the child for a breach of school discipline: see Appl. 13134/87, Costello-Roberts v. UK, 67 D&R (1991) p. 216. 43 Judgment of 13 June 1979, A.31 p. 8.
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submitted that this was in reality an abstract complaint, because the challenged legislation had not been applied to the applicant. The Court applied the principle that Article 25 of the Convention entitles individuals to contend that a law violates their rights by itself, in the absence of an individual measure of implementation, if they run the risk of being directly affected by it.44 The question whether the applicant had actually been placed in an unfavourable position was said not to be a criterion of the victim-requirement, because "the question of prejudice is not a matter for Article 25 which, in its use of the word 'victim', denotes 'the person directly affected by the act or omission which is in issue'."45 In later cases, such as the Norris Case and the Modinos Case, the applicants complained about the existence of laws which had the effect of making certain homosexual acts, between consenting adult males, criminal offences. The Court held that "in the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life."46 (c) The question whether applicants having & future interest may also be considered victims in the sense of Article 25 has come before the Commission. The Commission seems to be prepared to recognise future interest in certain cases. In one case two parents complained about legal and administrative measures concerning sexual instruction at primary schools. The measures were not yet applicable to their school-age daughter. Nevertheless, the Commission admitted their application, without mentioning the victimrequirement.47 In the Kirkwood Case the complaint was that the envisaged extradition from the UK to California of Kirkwood would amount to inhuman and degrading treatment contrary to Article 3 of the Convention because, if extradited, he would be tried for two 44
Ibid, at pp. 12-14. Ibid. See also the Commission in Appl. 8307/78, De Klerck v. Belgium, 21 D&R (1981) p. 116, Appl. 9697/S2,Jand Others v. Ireland, 34 D&R (1983) p. 131, Appl. 15070/89, Modinos v. Cyprus 34 YBECHR (1991) p. 145. 46 Judgment of 26 October 1988, 31 YBECHR (1988) at p. 165, Judgment of 22 April 1993, 36 YBECHR (1993) at p. 179. 47 Appl. 5095/71, V.andA. Kjeldsen v. Denmark, 15 YBECHR (1972) p. 482. 45
Matters strictly of competence
745
accusations of murder and one of attempt to murder, and would very probably be sentenced to death. He argued that the circumstances surrounding the implementation of such a death penalty, and in particular the 'death row' phenomenon of excessive delay during a prolonged appeal procedure lasting several years, during which he would be gripped with uncertainty as to the outcome of his appeal and therefore as to his fate, would constitute inhuman and degrading treatment. The Commission held with respect to the victimrequirement that because the complainant in these circumstances was faced with an imminent act of the executive, the consequences of which for him would allegedly expose him to Article 3 treatment, he could claim to be a victim of an alleged violation of Article 3.48 In other cases where a decision had been taken to expel a person to a country where he claimed he risked being treated contrary to Article 3, the Commission has held that a person who is about to be subjected to a violation of the Convention may claim to be a victim.49 If, however, the order to leave the territory of the state concerned was not enforceable, the person concerned could not yet claim to be a victim. Only the notification of an expulsion order referring to the country of destination could, after the domestic remedies had been exhausted, confer on him the status of victim. If an alleged future prejudice could not yet be foreseen, the application was inadmissible.50 (d) It is conceivable that an individual may become an indirect victim by experiencing a personal injury, owing to a violation of the Convention against another. Under certain circumstances, therefore, an individual could lodge an application on his own account concerning a violation of the Convention against another, without his having directly suffered a violation of one of his rights or freedoms. In such cases the applicant must have had so close a link with the 48
App. 10479/83, 37 D&R (1984) p. 158. Appl. 17262/90, A v. France, 68 D&R (1991) p. 319, Appls. 17550/90 and 17825/91, FandP v. France, 70 D&R (1991) p. 298, Appl. 19373/92, Voulfovitch and Oulianova v. Sweden, 74 D&R (1993) p. 199. 50 See Appl. 2358/64, X \. Sweden, 23 Coll. (1967) p. 147. See also the V and P Case, Judgment of 27 August 1992, 35 YBECHR (1992) at p. 168. 49
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Chapter 16. The ECHR
direct victim that he himself was also considered to be a victim. The concept of "indirect victim" meant that a near relative of the victim or any other third party could refer the matter to the Commission on his own initiative insofar as the violation concerned was also prejudicial to him or insofar as he had a personal interest in the termination of that violation.51 Thus, a spouse has been considered a victim, because she had suffered financial and moral injury in consequence of a violation of the Convention committed against her husband.52 A purely non-material interest is sufficient for this purpose. For example, the Commission has accepted a complaint of a mother about the treatment of her detained son.53 On the other hand, an applicant was not considered an indirect victim because his sisters had wrongfully failed to receive compensation for their sufferings during the Nazi regime. The compensation was regarded as related only to the sufferings of the sisters.54 In two other cases the Court developed further the concept of indirect victim. In the Open Door and Dublin Well Women Case55 the applications concerned restrictions imposed on the two applicant companies as a result of a court injunction prohibiting them from providing information to pregnant women on abortion clinics in Great Britain. The applicant companies were engaged at the time in non-directive counseling of pregnant women. The other applicants were two of the counselors employed by one of the companies and two women of child-bearing age. The respondent government objected that the complaint submitted by the two women of child-bearing age amounted to an actio 51
Appl. 100/55, Xv.FRG, 1 YBECHR (1955-1957) p. 162. Appl. 1478/62, Yv. Belgium, 6 YBECHR (1963) p. 590. See also Appl. 7467/76, Xv. Belgium, 8 D&R (1978) p. 220 (twin brother), Appls. 9214/80, 9473/81 and 9474/81, the X, Cabales and Balkandali Case, 29 D&R (1982) p. 176 (spouse). 53 Appl. 898/60, Y v. Austria, 8 Coll. (1962) p. 136. See also Appl. 7011/75, Becker v. Denmark, 19 YBECHR (1976) p. 416, Appl. 9320/81, D v. FRG, 36 D&R (1984) p. 24, Appl. 9348/81, W v. UK, 32 D&R (1983) p. 190, and Appl. 9360/81, Wv. Ireland, ibid. p. 211. 54 Appl. 113/55, Xv. FRG, 1 YBECHR (1955-1957) p. 161. See also Appl. 9639/82, B, R andJv. FRG, 36 D&R (1984) p. 139. 55 Judgment of 29 October 1992, 35 YBECHR (1992) p. 188. 52
Matters strictly of competence
747
popularis, since they could not claim to be "victims" of an infringement of their Convention rights. The Court held that Although it has not been asserted that Mrs. X and Mrs. Geragthy are pregnant, it is not disputed that they belong to a class of women of child-bearing age which may be adversely affected by the restrictions imposed by the injunction. They are not seeking to challenge in abstracto the compatibility of Irish law with the Convention since they run a risk of being directly prejudiced by the measures complained of. They can thus claim to be "victims" within the meaning of Article 25 § I.56
While the facts related also to the concept of "potential victim", in the context of the concept of "indirect victim" it is clear that a measure could be challenged not only by the persons at whom it was directed, but also by those who may have been affected by it in another way. Earlier in the Groppera Radio AG Case a company which owned a radio station, its sole shareholder and two of its employees complained about an Ordinance adopted by the Federal Council prohibiting Swiss cable companies which had a community-antenna license from rebroadcasting programs from transmitters which did not satisfy the requirement of the international agreements on radio and tele-communications. Groppera Radio did not satisfy these requirements. A violation of Article 10 was alleged. The Court dismissed the objection that the applicants were not "victims" within the meaning of Article 25 on the Convention, because the Ordinance was not directed against them and assumed jurisdiction.57 (e) In certain cases the Commission has qualified shareholders as victims of alleged violations of rights and freedoms of the company. But it appears that shareholders in such cases are regarded not as indirect but as direct victims.58 In all these cases the individual concerned held a majority share in the company. On the other hand, 56
Ibid, at p. 192. Judgment of 28 March 1990, 33 YBECHR (1990) p. 138. 58 Appl. 1706/62, X\. Austria, 9 YBECHR (1966) p. 112, the report of 17 July 1980 in Kaplan, 21 D&R (1981) p. 5, Appl. 14807/89. In the Agrotexim 57
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Chapter 16. The ECHR
in the Yarrow Case the Commission held that a minority shareholder of Company A could not claim to be a victim of an interference with property rights of Company B, all the securities in which were owned by Company A, because the nationalisation measure complained of did not involve him personally. It was open only to Company A to lodge a complaint under the Convention.59 In the case of Wasa and Others v. Sweden the Commission found that a group of persons who were policyholders in an insurance company could not be considered as a victim, because the policyholders did not have any legal claim to direct ownership of the company's assets as such.60 (f) Cases may occur in which the violation complained of has subsequently been terminated, or no longer exists at the moment the Commission examines the case. The applicant then did not have standing, because he could no longer allege that he was a victim.61 That is to say, if the violation of the Convention complained of Hellas Case the Commission found that the question whether a shareholder could claim to be victim of measures against a company could not be determined on the basis of the sole criterion of whether the shareholders hold the majority of the company shares. The Commission took into account that in addition to holding as a group the majority of the shares in the company, the shareholders had a direct interest in the subject matter of the application. Moreover, the company was in liquidation and was under a special regime of effective state control. Consequently, the company could not reasonably be expected to lodge an application with the Commission against the state. The Commission, therefore, concluded that the applicant shareholders were entitled, by lifting the veil of the company's legal personality, to claim that they were victims of the measures affecting the company's property within the meaning of Article 25: Appl. 14807/89, 72 D&R (1992) p. 148. 59 Appl. 9266/81, 30 D&R (1983) p. 155. 60 Appl. 13013/87, 31 YBECHR (1988) p. 74. 61 See, e.g., Appl. 7826/77, X v.UK, 14 D&R (1978) p. 197. See also the report of 6 July 1983, Dores and Silveira v. Portugal, 41 D&R (1985) p. 60, Appl. 10103/82, Faragut v. France, 39 D&R (1984) p. 186. See also, e.g., Appl. 8865/80, Verband Deutscher Flugleiter and Others v. FRG, 25 D&R (1982) p. 252, Appl. 10092/82, Baraona v. Portugal, 40 D&R (1985) p. 118, Appl. 13156/87, Byrn v. Denmark, 73 D&R (1993) p. 5, and Appl. 8858/80, G v. FRG, 33 D&R (1983) p. 5.
Matters strictly of competence
749
has been recognized by the authorities and the applicant has got sufficient redress, he can no longer claim to be a victim of that violation. In cases where the applicant's sentence had been reduced in an express and measurable manner after a judicial finding concerning the undue length of the proceedings, the Commission took the position that he could no longer be considered to be a victim of a violation of Article 6(1).62 On the other hand, there are several cases in which the status of victim has on the facts not been lost. In a case in which the applicants submitted that the authorities' recording of their telephone conversations with counsel was contrary to the Convention, the records had been destroyed. The German government objected that the alleged violation had become moot. The Commission, however, decided that because the destruction had not taken place in response to a request of the applicants and the latter had not received reparation otherwise, the applicants still had to be considered as victims although the records in question no longer existed.63 In the cases of Van den Brink and Zuiderveld and Klappe the respondent government contended before the Court that the applicants could not claim to be victims of a breach of Article 5(3), as the time each one spent in custody on remand was deducted in its entirety from the sentence ultimately imposed on them. The Court held that the relevant deduction did not per se deprive the individual concerned of his status as an alleged victim within the meaning of Article 25 of a breach of Article 5(3). The Court added that: "The position might be otherwise if the deduction from sentence had been based upon an acknowledgment by the national courts of a violation of the Convention."64 Similarly, in the Inze Case the fact that a judicial settlement had been reached between the parties that might have mitigated the disadvantage suffered by the applicant was considered insufficient reason to deprive the applicant of his status as victim. 62
Appl. 17669/91, Van Laak v. The Netherlands, 74 D&R (1993) p. 156, report of 16 February 1993, Byrn v. Denmark, 73 D&R (1993) p. 5. 63 Appl. 8290/78, A, B, C and D v. FRG, 18 D&R (1980) p. 176. 64 Judgments of 22 May 1984, A.77 at p. 20 and A.78 at p. 16 respectively.
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Here again the Court added that the position might have been otherwise, if, for instance, the national authorities had acknowledged either expressly or in substance, and then afforded redress for, the alleged breach of the Convention.65 In the East African Asians Cases the Commission held that where Article 3 was violated by a state's exclusion from its territory of a person on the ground of race, the violation was substantially terminated, but not redressed, by that person's admission and therefore, such a person could claim to be a victim of a violation notwithstanding admission.66 It seems to have been unusual for the status of victim to be lost on the basis of nonexistence of the violation.67 (g) The Commission has proprio motu examined the question whether the applicant was a victim in the event that the respondent did not raise the issue as a preliminary objection.68 The doctrines of estoppel or waiver do not apply in these cases. That is so to the extent that subsequently before the Court the respondent is not estopped from raising the issue as an objection to jurisdiction.69 This approach of the Commission in raising the matter proprio motu and of the Court in not regarding the right to raise the objection as lost point to the conclusion that the qualification of being a victim pertains to competence (competence) and not to receivability (recevabilite), although the term used by the two bodies in this connection is often "admissibility". (C) Passive Legitimation with Regard to Both Kinds of Applications In regard to passive legitimation an application by a state could be directed against any other contracting state, an individual application only against those contracting states which had recognized the competence of the Commission to receive such applications. This 65
Judgment of 28 October 1987, 30 YBECHR (1987) at p. 155. Report of 14 December 1973, 78-A D&R (1994) p. 5. See also the Moustaquim Case, 34 YBECHR (1991) p. 181. 67 This ground looks similar to mootness. 68 See Ozdep v. Turkey (2000), 39 ILM at 523. 69 Ibid. 66
Matters strictly of competence
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meant that the Commission could not receive applications directed against a state which was not a party to the Convention70 or, as the case may be, to the Protocols relied upon in the application,71 or, in the case of an individual application, against a state which was a party to the Convention, but which had not made the declaration referred to in Article 25.72 Furthermore, an application was to be declared inadmissible ratione personae, if the alleged violation did not fall under the responsibility of the respondent state. In general, a state is internationally responsible for the acts of its legislative, executive and judicial branches of government. The question may arise as to whether a particular organ or person can be considered to belong to these government organs for the purpose of the European Convention. A foreign or international organ which is active in the territory of a contracting state may not fall within its responsibility. Furthermore, the situation may arise where a state is responsible for the international relations of a given territory, without it being possible that an application is lodged against it on account of the acts of the authorities if the state in question has made a declaration as referred to in Article 63(1). Applications may be directed only against states and consequently not against individuals or groups of individuals. Applications against individuals are therefore declared "inadmissible" ratione personae.13 In practice, a comparatively large number of complaints have been directed against the most widely varied categories of individuals and organisations, such as judges and lawyers in their personal capacity, employers, private radio and TV stations and banks. For the rejection of such complaints the Commission generally invoked Article 19, under which it had to ensure the observance of 70
See, e.g., Appl. 262/57, X v. Czechoslovakia, 1 YBECHR (1955-1957) p. 170, Appl. 8030/77, Confederation Francaise Democratique du Travail v. European Communities, 21 YBECHR (1978) p. 530. 71 See, e.g., the Appls. 5351/72 and 6579/74, Xv. Belgium, 46 Coll. (1974) p. 71, Appl. 22564/93, Grice v. UK, 77-A D&R (1994) p. 90. 72 See Appl. 62/55, Xv.FRG, 1 YBECHR (1955-1957) p. 180. 73 See Appl. 6956/75, X v. UK, 8 D&R (1987) p. 103, Appl. 19217/91, Durini v. Italy, 76-A D&R (1994) p. 76.
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the engagements which the contracting states had undertaken, and also Article 25, which permitted the Commission to consider applications if the applicant claimed to be the victim of a violation of the Convention by a contracting state.74 It appears that the Commission did investigate whether a violation of the Convention by an individual might involve the responsibility of a state. Under international law a state is responsible for acts of individuals to the extent that the state has urged the individuals to commit the acts in question, or has given its consent to them, or in violation of its international obligations has neglected to prevent those acts, to punish the perpetrators, or to impose the obligation to redress the injury caused. These principles also apply within the framework of the European Convention.75 This is so by analogy, while Article 1 creates that responsibility with respect to the treatment of "everyone within their jurisdiction", and not only of foreigners. The Court has held that a state cannot absolve itself from responsibility by delegating its obligations to private bodies or individuals.76 The starting point for state responsibility under the Convention is that it applies to all organs of the state, even those which under national law are independent of the government, such as the judiciary.77 Whether under the Convention a particular institution must be considered as an organ of the state concerned, so that the latter is responsible for it depends on the precise position of the said institution under national law78 and the involvement of public authorities. Thus, in the Campbell and Cosans Case the Court held the government of the UK responsible for formulating general policy.79 In a subsequent case an applicant and his mother complained about corporal punishment at a private school. The Commission stated that the punishment of the applicant was administered by the headmaster of the private school for whose disciplinary regime the government specifically declined responsibility under the Convention but 74 75 76 77 78 79
See, e.g., Appl. 2413/65, Xv. FRG, 23 Coll. (1967) p. 1. See Appl. 852/60, Xv. FRG, 47 YBECHR (1961) p. 346. Judgment of 23 November 1983, Van der Mussele, A.70, pp. 14-15. See, e.g., Appl. 7743/76, J.Y. Cosans v. UK, 12 D&R (1978) p. 140. See, e.g., Appl. 1706/62,Xv. Austria, 9 YBECHR (1966) p. 112. Judgment of 25 February 1982, A.48, p. 15.
Matters strictly of competence
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held in its decision on admissibility that the UK was responsible under the Convention, Articles 1, 3 and 8 of which had imposed a positive obligation on High Contracting Parties to ensure a legal system which provides adequate protection to children's physical and emotional integrity. The Commission referred to Articles 1 and 3 of the Convention and stated that the duty under Article 3 is recognised in English law which provides certain criminal and civil law safeguards against assault or unreasonable punishment. Moreover, children subjected to, or at risk of being subjected to ill-treatment by their parents, including excessive corporal punishment, may be removed from their parents' custody and placed in local authority care.80
In the Costello-Roberts Case, the Court first pointed out that the state had an obligation to secure to children their right to education under Article 2 of Protocol No.l. Functions relating to the internal administration of a school, such as discipline, could not be said to be ancillary to the educational process. In this respect, the Court noted that a school's disciplinary system fell within the ambit of the right to education. Secondly, it said that in the UK independent schools co-existed with a system of public education. The fundamental right of everyone to education was a right guaranteed equally to pupils in state schools and independent schools, no distinction being made between the two. Finally, the Court referred to a previous judgment where it held that a state could not absolve itself from responsibility by delegating its obligations to private bodies or individuals.81 With respect to public industries and enterprises, the Commission in a number of cases did not reach a decision on responsibility.82 In one case the Commission described public transport companies as entreprises para-etatiques, for which the government was not responsible.83 Two later decisions, however, point in 80
Appl. 14229/88, Yv. UK (not published). Judgment of 25 March 1993, A.247-C, p. 58. 82 Appl. 3059/67, Xv. UK, 88 Coll. (1969) p. 89 and Appl. 4515/70, X and the Association ofZv. UK, 14 YBECHR (1971) p. 538. 83 Appl. 3789/68, Xv. Belgium, 33 Coll. (1970) p. 1. 81
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the other direction. In both cases the applicants had been discharged by British Rail, because they had refused to join a trade union. The Commission reached the conclusion that, as a public industry, British Rail came under the responsibility of the UK and that accordingly the applications were admissible.84 An important question is whether contracting states under the Convention are responsible, even where direct responsibility for the acts or omissions of governmental organs is not involved nor is there negligence with respect to the acts of individuals. One decision of the Commission supports the view that they may be. The issue was whether the Irish Government was responsible for certain acts of an institution which had been established by law but which otherwise was largely independent of the state. The Commission said that the acts involved in this case (alleged violation of Article 11) did not fall under the direct responsibility of the Irish Government but that, despite this, the Irish Government would have violated the Convention if it were to be established that the national law did not protect one of the rights or freedoms guaranteed by the Convention, the violation of which was alleged before the Commission, or at least did not provide a remedy for enforcing such protection.85 In the Nielssen Case, the government argued that the placement of a minor in a psychiatric hospital was the sole responsibility of the mother. The majority of the Commission found, however, that the final decision on the question of hospitalisation of the applicant was not taken by the holder of parental right but by the Chief Physician of the Child Psychiatric Ward of the state hospital, thus engaging the responsibility of the state under Article 5(1).86 The Court, however, held that the decision on the hospitalisation was in fact taken by the mother in her capacity as holder of parental rights and that the act was one not engaging the state's responsibility. There 84
Appl. 7601/76, Young and James v. UK, 20 YBECHR (1977) p. 520 and Appl. 7806/77, Webster v. UK, 12 D&R (1978) p. 168. 85 Appl. 4125/69, Xv. Ireland, 14 YBECHR (1971) p. 198. This case could be regarded as not involving a matter of state responsibility for acts of individuals but rather the possible violation by the state of a special obligation resulting from the Convention, viz. under Article 13. 86 Report of 12 March 1987, A. 144, p. 38.
Matters strictly of competence
755
is, in fact, insufficient jurisprudence to determine what is the position regarding acts of individuals not involving the negligence of the state.87 (5) Competence Ratione Materiae In order to answer the question whether an application falls within the scope of the Convention ratione materiae, it is necessary to differentiate between state applications and individual applications. Article 24, which permitted the contracting states to lodge applications on "any alleged breach of the provisions of the Convention by another High Contracting Party", left open the possibility for states to submit applications which relate to provisions of the Convention other than the articles of Section I. Articles that might be considered as such, for instance, were Article 1, insofar as it refers to the obligations of a contracting state to secure to everyone within its jurisdiction the rights and freedoms of Section I of the Convention, and Article 25(1) in case of interference with the exercise of the individual right of complaint. The same applied to Articles 32(4) and 53 in case of refusal to give effect to a decision of the Committee of Ministers or the Court respectively, and Article 57 in case of refusal to furnish the requested information to the Secretary General of the Council of Europe concerning the implementation of the provisions of the Convention. Contracting states had not availed themselves of this wider right of action, except with respect to the oblique reference of Article 1. The right of complaint of individuals had a somewhat more limited character. It appeared from Article 25 that individuals could lodge complaints only about "the rights set forth in this Convention", which implied that their complaints could relate only to the articles of Section I and the articles of the Protocols containing additional rights. The question did arise whether an exception had to be made for Article 25; in other words, whether the right of complaint itself, the exercise of which the contracting states had undertaken not to obstruct could be considered a "right". As a rule the Commission 87
Judgment of 28 November 1988, A. 144, p. 23.
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dealt with such a complaint differently from the manner in which it dealt with a complaint concerning one of the rights or freedoms of Section I, in that it consulted directly with the government concerned. It might be argued that apart from the right of individual complaint under Article 25, an individual who has been successful before the Court, if he felt that the judgment has not been complied with, properly may claim to be a victim of a violation of Article 53, which contained the obligation to abide by the judgment of the Court.88 The Commission could not, of course, deal with complaints about rights or freedoms not set forth in the Convention. Complaints concerning such rights and freedoms were declared "inadmissible" by the Commission as being incompatible with the Convention. In practice a great many complaints concern the most widely varied "rights and freedoms". From the Court's jurisprudence the following examples of matters which were outside the competence ratione materiae of the Commission may be cited: right to a university degree, right to asylum, right to start a business, right to diplomatic protection, right to a divorce, right to a driving license, a general right to free legal aid, right to free medical aid, right to adequate housing, right to a nationality, right to a passport, right to a pension, right to a promotion and the right to be recognized as a scholar. In 88
In the case of Olsson I, the main issue was whether the decision of the Swedish authorities to take the children of the applicants into care had given rise to a violation of Article 8 of the Convention. The Court found that the provision had been violated: Judgment of 24 March 1988, A. 130. In the case of Olsson II the applicants complained that despite the Court's Olsson I judgment the Swedish authorities had continued to hinder their reunion with their children. The Court held that in the circumstances of the case no separate issue arose under Article 53, because the present complaint raised a new issue which had not been determined by the Olsson /judgment. It left open the possibility that there might be circumstances under which a complaint under Article 53 of the Convention could be examined by it: Judgment of 27 November 1992, A.250. Martens, "Individual Complaints under Article 53 of the European Convention on Human Rights", in Lawson and de Blois (eds.), 3 The Dynamics of the Protection of Human Rights in Europe. Essays in Honour of Henry G. Schermers (1994), at pp. 284, takes the view that the Court has jurisdiction ratione materiae in the situation in question.
Matters of admissibility proper
757
this context it should, however, be borne in mind that a right which is not set forth in the Convention may find protection indirectly via one of the provisions of the Convention.89 In this connection it is important that the Commission did not require the applicant to indicate accurately in his application the rights set forth in the Convention which in his opinion had been violated. The Commission has investigated ex officio, by reference to the submissions of the applicant, whether the issue was a violation of one or more of the provisions of Section I. While the Commission may sometimes be cautious in deciding on its competence in relation to matters not raised, the Court has been more ready not to exclude from its competence matters which have not necessarily been argued as being connected with particular provisions of the Convention.90 It is to be noted that matters relating to ratione materiae have been treated as matters of admissibility. MATTERS OF ADMISSIBILITY PROPER The first five conditions of admissibility related only to individual applications made to the Commission. The last two applied to all applications to the Commission. (1) Inadmissibility on the Ground that the Application was Anonymous This condition (Article 27(1 )(a)) makes it possible to exclude applications which may have been lodged, e.g. for purely political reasons. In certain cases, however, a serious individual applicant may wish to remain anonymous for whatever reasons. Anonymity of this kind is different from that which may be granted at the complainant's 89
Complaints to be equated with those concerning rights not protected in the Convention are complaints about rights which are incorporated in the Convention but with respect to which the respondent state has made a reservation. Complaints relating to such rights are also declared inadmissible by the Commission on account of incompatibility with the Convention: see, e.g., Appl. 1452/62, X v. Austria, 6 YBECHR (1963) p. 268. 90 See the Winterwerp Case, Judgment of 24 October 1979, A.33, at pp. 27-28.
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request by the Commission or Court after the complaint has been lodged, which is permitted and does not affect the admissibility of the complaint. This admissibility condition is not very important in practice. In any event, the Commission took a flexible attitude as regards the requirement that the identity of the applicant be disclosed.91 The Commission's flexible attitude appears, for instance, from a case in which a number of complaints had been submitted by an association.92 The Commission considered both the association and its individual members as applicants. With respect to the individual members the Commission held that their identity had been insufficiently established and that accordingly their application, properly speaking, was inadmissible under Article 27(1 )(a). Nevertheless, the Commission pursued the examination of the case, on the presumption that this procedural defect would subsequently be redressed. The application was ultimately declared inadmissible on other grounds.93 (2) The Application must not Constitute an Abuse of the Right of Complaint In practice very few applications are declared inadmissible on this ground (Article 27(1 )(a)). The reason is probably that such an abuse is difficult to establish because the applicant's motives cannot easily be ascertained. The Commission gave a particular meaning to the term "abuse". Thus, the fact that the applicant is inspired by motives of publicity and political propaganda does not necessarily result in an abuse.94 It is only if an applicant unduly stresses the political aspects of the case that it will amount to an abuse.95 The question 91
Appl. 361/58, X v. Ireland, 3 Case-Law Topics, Bringing an application before the European Commission of Human Rights (1972) p. 10. 92 Appl. 3798/68, Church of X v. UK, 12 YBECHR (1969) p. 306. 93 See also, Appl. 10983/84, Confederation des Syndicats Medicaux Francais and Federation Nationale des Infirmiers v. France, 47 D&R (1986) p. 224, where anonymity triggered the condition of Article 27(1 )(a). 94 Appl. 332/57, Lawless v. Ireland, 2 YBECHR (1958-1959) p. 308, Appl. 8317/78, McFeeley v. UK, 29 D&R (1980) p. 44. 95 Appl. 1468/62, Iversen v. Norway, 6 YBECHR (1963) p. 278.
Matters of admissibility proper
759
whether there is an abuse where merely no practical effects are envisaged by the application has been left open.96 An application alleged to be devoid of any sound juridical basis and to have been lodged for propaganda purposes is not an abuse, unless it is clearly based on untrue statements of fact.97 There are several factors that have been considered in determining the existence of an abuse intended in filing an application. In the Use Koch Casen the wife of the former commandant of the Buchenwald concentration camp had been convicted for violation of the most elementary human rights. She submitted that she was innocent and claimed her release, without invoking a specific provision of the Convention. In her application she voiced a number of accusations and complaints which were not supported in any way by the Convention. The Commission declared her application inadmissible on the ground of a clear and manifest abuse of the right of complaint, because her sole aim evidently was to escape the consequences of her conviction. The condition that an application must not constitute an abuse enabled the Commission also to exclude querulous applicants.99 Not only the aim pursued in lodging an application, but also the applicant's conduct during the procedure may lead to a declaration of inadmissibility on account of abuse.100 The fact that an applicant had omitted to inform the Commission that after the introduction of 96
Appls. 7289/75 and 7349/76, Xand Y v. Switzerland, 20 YBECHR (1977)
p. 372. 97
Appl. 21987/93, Aksoy v. Turkey, 79-A D&R (1994) p. 60. Appl. 1270/61, Use Koch v. FRG, 5 YBECHR (1962) p. 126. See also Appl. 5207/71, Raupp v. FRG, 42 Coll. (1973) p. 85. 99 Appls. 5070, 5171, 5186/71, Xv.FRG, 15 YBECHR (1972) at p. 482. See also Appl. 13284/87, Mv. UK, 54 D&R (1987) p. 241. 100 Thus, applications have been rejected because the applicant had deliberately made false declarations in an attempt to mislead the Commission: e.g., Xv. Austria, 44 Coll. (1972) p. 134, or because the applicant failed to furnish the necessary information even after repeated requests: e.g., Appl. 244/57 , X v. FRG, 1 YBECHR (1955-1957) p. 196, or because the applicant had broken bail and had fled: Appl. 9742/82, Xv. Ireland, 32 D&R (1983) p. 251, or because he had used threatening or insulting language vis-d-vis the Commission or the respondent government: e.g., Xv. FRG, 43 Coll. (1973) p. 154. 98
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his application he had instituted before domestic courts proceedings concerning the same facts, was not considered an abuse of the right of petition.101 The fact that an applicant gave publicity to certain elements from the examination of his case, contrary to Article 33 of the Convention, could have resulted in the Commission's declaring the application inadmissible on account of abuse.102 However, the Commission has held that the appearance of an article disclosing confidential information relating to the proceedings before the Commission did not constitute an abuse, where the applicant's representative had merely answered questions put to him by the press. It was held that there was no conclusive evidence that the applicant's representative was responsible for the disclosure of this information which the press had secured by other means.103 Although this condition of admissibility does not apply to applications by states, the Commission would appear not to have excluded the possibility that an application by a state may be rejected on account of abuse. This would be done on the ground of the general legal principle that the right to bring an action before an international judicial or quasi-judicial organ must not be abused. For example, the Commission in the case of Cyprus v. Turkey took the view that even on the assumption that it was empowered pursuant to a general principle to make such a finding of abuse, the applicant government had at the particular stage of the proceedings provided sufficient particularised information of alleged breaches of the Convention for the purpose of Article 24 and found that the principle could not be applied adversely.104 While in practice the Commission did not lightly reach a conclusion of abuse of right, the application of the general principle was not excluded.
101
Appl. 13524/88, Fv. Spain, 69 D&R (1991) p. 185. Council of Europe, Press Release C(78)42, 11 October 1978. 103 Appl. 13524/88, Fv. Spain, 69 D&R (1991) p. 185. See also Buscarini v. San Marino (2000), 13 ILM at p.742. 104 Appls. 6780/74 and 6950/75, Cyprus v. Turkey, 18 YBECHR (1975) p. 82. See also Appls. 3321-3323/67 and 3344/67, Denmark, Norway, Sweden and the Netherlands v. Greece, 9 YBECHR (1968) p. 690. 102
Matters of admissibility proper
761
(3) The Application must not be Substantially the Same as a Matter which has Already been Examined by the Commission or has Already been Submitted to Another Procedure of International Investigation or Settlement unless It Contains Relevant New Information In practice in the application of Article 27(1 )(b), declarations of inadmissibility on the ground of the identical character of two or more cases submitted to the Commission did not occur frequently. The Commission considered any preceding procedures before the Court in applying Article 27(l)(b).105 (a) What is of importance is that new facts be put forward in the application. These facts must be of such a nature that they bring about a difference in the legal and/or factual data on which the Commission based its earlier decision. The mere submission of one or more new legal arguments was therefore insufficient, if the facts on which the application was based were the same.106 The Commission did not consider as new facts those which were already known to the applicant at the time of the introduction of his earlier application and should have been presented by him on that occasion.107 For example, an applicant had submitted in a previous application that the final decision in his case had been taken by the Court of Appeal at Liege which was not the case and on that his application was declared inadmissible because he had not exhausted internal remedies. In the new application he proved that he had made a mistake, since the decision in question had in reality been taken by the Court of Cassation, from whose decisions no appeal lay. The Commission considered this relevant new information in the sense of Article 27(1 )(b).108 A new fact may arise from new 105
See Appl. 6832/74, X.v. Sweden (not published). See also Appl. 10243/83, Times Newspapers Ltd. and Others v. UK, 41 D&R (1985) p. 123, where the Commission rejected a part of the application under Article 27(2). 106 See Appl. 202/56, X v. Belgium, 1 YBECHR (1955-1957) p. 190, Appl. 8206/78, Xv. UK, 25 D&R (1982) p. 147. 107 Appl. 13365/86, Ajinaja v. UK, 55 D&R (1988) p. 294. 108 Appl. 3780/68,Xv. Belgium, 37 Coll. (1971)p. 6. See also Appl. 21962/93, A.D. v. The Netherlands, 76-A D&R (1994) p. 157. See also, on the one hand,
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obligations being incurred under the Convention by the contracting state in question.109 (b) The formulation of Article 27(1 )(b) permitted an interpretation that allowed "substantially the same matter" to cover also an application that was otherwise identical but was lodged by another applicant. The provision, in other words, was to be interpreted as directed against identical applications by the same applicant. The Commission did not object to identical applications from different applicants, although it would then join such cases, if possible.110 Article 27(1 )(b) may, however, have barred applications from different applicants which concerned the same violation against the same person, as in the case where in connection with one and the same violation both the direct and the indirect victim lodged an application. In its earlier case-law, the Commission thought that a new examination of the case was justified, only if in each individual case a new fact was involved.111 The Commission had subsequently been less rigid. In a case which concerned the execution of an expulsion order from the FRG to Yugoslavia, the fiancee of the person to be expelled lodged a complaint. With respect to the latter application, the Commission decided that it could not be rejected under Article 27(1 )(b) as being substantially the same as the first application, because "this applicant has a specific personal interest in bringing an application before the Commission".112 Appl. 4517/70, Huber v. Austria, 14 YBECHR (1971) p. 548, on the other hand, Appl. 6821/74, Huber v. Austria, 6 D&R (1977) p. 65. See also Appl. 8233/78, X v. UK, 17 D&R (1980) p. 122 "a fair and public hearing" case, and Appl. 9621/81, Vallon v. Italy, 33 D&R (1983) p. 217. 109 Appl. 4256/69, X\. FRG, 37 Coll. (1971) p. 67. However, in that case there was strictly no firm new obligation. 110 See, e.g., the successive Appls. 6878/75, Le Compte v. Belgium, 6 D&R (1977) p. 79, and 7238/75, Van Leuvan andDe Meyere v. Belgium, 8 D&R (1977) p. 140. In its decision in the last-mentioned case the Commission held (at p. 160): "In view of all the similarities between the two applications it is desirable that they should be examined together." See also Appls. 5577/72-5583/72, Donnelly et al. v. UK, 16 YBECHR (1973) p. 212. 111 Appl. 499/59, X\. FRG, 2 YBECHR (1958-1959) at p. 399. 112 Appl. 9028/80, X\. FRG, 22 D&R (1981) at p. 237.
Matters of admissibility proper
763
The problem of identical complaints may also arise where a state and an individual file complaints. Thus, the applications of a number of Northern Irishmen concerned matters which had already formed the subject of an application of the Irish Government against the UK. The latter application had already been declared admissible, but the examination of the merits was still pending. The Commission did not need to decide the question whether the individual applications were to be rejected pursuant to Article 27(1 )(b) because "The relevant part of the inter-State case has (...) not yet been examined within the meaning of Article 27(1 )(b) of the Convention".113 It is unclear what conclusion the Commission would have reached, if the examination had already taken place. There should not be a distinction based on whether the original case had been examined or not, unless the complaints were not distinctly different which they usually were. (c) Few decisions of the Commission have been published hitherto in which an application was declared inadmissible on the ground that a matter had already been submitted to another international body for investigation or settlement. With the increase in the number of human rights organs covering human rights violations the possibility of a clash of jurisdictions may occur. The Commission had taken the view that the purpose of the provision in Article 27(1 )(b) was to avoid a plurality of international proceedings relating to the same case.114 In order to avoid the risk of an application being declared inadmissible, the applicant must withdraw his petition made to the other organ. It was not sufficient to request a suspension of the proceedings pending before another international body, because this did not have the same effect as a complete withdrawal of the application. It is only if the latter had been done that the Commission could examine an application also brought before it.115 In this connection new events subsequent to the introduction of an application but directly related to the facts 113
Appls. 5577/5583/72, Donnelly etal.v. UK, 16 YBECHR (1973) at p. 266. Appl. 17512/90, Calcerrada Fornielles and Cabeza Mato v. Spain, 35 YBECHR (1992) at p. 66. 114
115
Ibid.
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Chapter 16. The ECHR
adverted to therein would have been taken into account by the Commission at the time of the examination of the application. Therefore, an application, introduced before the Commission by two applicants, which had the same object as the application submitted to the HRC by one of the applicants and joined by the second after the introduction of the application before the Commission was considered to be substantially the same as the one submitted to the HRC.116 Inadmissibility, it is conceivable, may also result from the submission of the same matter to the CJEC.117 But it must be quite clear in the two cases, however, that, even if the facts are the same, legal issues are also the same.118 (4) The Application must not be Incompatible with the Provisions of the Convention Incompatibility with the Convention (Article 27(2), is found to be present where (1) the application falls outside the scope of the Convention ratione personae, ratione materiae, ratione loci, or ratione temporis; (2) the individual applicant does not satisfy the condition of Article 25(1); and (3) the applicant, contrary to Article 17, aims at the destruction of one of the rights and freedoms guaranteed in the Convention. In relation to (1) and (2) above, which have been discussed earlier, the organs that operate under the Convention treat these matters 116 117
Ibid.
Standing case-law since Case 11/70, Internationale Handelsgesellschaft, ECR (1970) p. 1134. The CJEC seems to be ready to review the acts and omissions of the member states of the Communities and of the Community Institutions for their conformity with fundamental human rights because in its view they form part of the general principles of Community law. 118 See Appl. 6452/74, Saechi v. Italy, 5 D&R (1976), p. 43, where the legal issues were different from those in Case 155/73, Saechi, [1974] ECR p. 409. There are cases in which the issue arose whether Article 27(1 )(b) could be applied successfully where case had been filed before organs of the ILO and the Commission—with differing results: Appl. 11603/85, Council of Civil Service Unions and Others v. UK, 50 D&R (1987) p. 228, and Appl. 16358/90, Cereceda Martin and Others v. Spain, 35 YBECHR (1992) at pp. 80 ff.
Matters of admissibility proper
765
of competence under conditions of admissibility, though it is clear that they are matters of competence. The most obvious case of incompatibility with the provisions of the Convention is (3). This concerned applications which were directed at the destruction or limitation of one of the rights or freedoms guaranteed in the Convention and as such conflicted with Article 17. Even if Article 17 had not been written, such applications would probably still have been inadmissible, i.e., because they were an abuse of the right of complaint under Article 27(2). From the formulation of Article 17 it is quite clear that this provision does not have an independent character; its violation is necessarily connected with one or more of the rights and freedoms enumerated in Section I of the Convention and the relevant Protocols.119 When Article 17 is invoked against private parties it generally relates to the admissibility of the application. With regards to individuals and groups the aim of Article 17 was to prevent them from invoking the rights and freedoms to which they were entitled, when they used them for the purpose of destroying or limiting those rights and freedoms of others.120 In this case Article 17 must therefore be connected both with the rights of the person against whom this article was invoked and with one or more of the rights of others. As to the first-mentioned rights, the Commission held in the Glimmerveen and Hagenbeek Case that Article 17 covered essentially those rights which, if invoked, would facilitate the attempt to derive therefrom a right to engage personally in activities aimed at the destruction of any of the rights and freedoms set forth in the Convention.121 When the Kommunistische Partei Deutschland (KPD) submitted a complaint against the FRG with respect to the decision of the Bundesverfassungsgericht by which it had been dissolved and had been declared a prohibited party, the Commission, apparently ex qfficio, instituted an inquiry into the applicability of Article 17. On the basis of depositions made by the KPD during the proceedings 119 120 121
See Judgment of 8 June 1976, the Engel Case, A.22, p. 43. See Judgment of 1 July 1961, the Lawless Case, A.3, p. 45. Appls. 8348 and 8406/78, 18 D&R (1980) at p. 195.
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before the Bundesverfassungsgericht the Commission concluded that the aim of the KPD was to establish a socialist-communist system by means of a proletarian revolution and the dictatorship of the proletariat, and that it had intimated that it still adhered to these principles. Even if it were to be found the KPD was trying to seise power only via constitutional methods, in the Commission's opinion this did not mean that it had renounced the principles in question. On that ground the Commission deemed Article 17 to be applicable and decided that the application could not be based on any of the provisions of the Convention and was therefore inadmissible as being incompatible with the Convention.122 In the Glimmerveen and Hagenbeek Case the Commission again declared the application inadmissible by invocation of Article 17. The Commission recognized that the challenged acts constituted a breach of the freedom of expression of Article 3 of Protocol No. 1. It also recalled that the freedom of expression constituted one of the essential foundations of a democratic society. But it concluded that, pursuant to Article 17, the two applicants could not invoke this provision, or these provisions, and declared the applications incompatible with the provisions of the Convention.123 The Commission and the Court have introduced a very important restriction on the respondent state's right to invoke Article 17 as a ground for inadmissibility among other things. Both in the Lawless Case and in the De Becker Case it was held that, even if it had been firmly established that the applicant himself aimed at the destruction or restriction of the fundamental rights of others, or belonged to a group with such an objective, it did not follow that he might therefore remain deprived of all the rights laid down in the Convention; Article 17 applied exclusively to those rights which he abused directly for the said aim. In the Lawless Case this connection between that aim and the rights invoked was altogether absent in the opinion of the Commission and the Court; even if Lawless had been involved in IRA activities, his invocation, as a detained person, of the guarantees of Articles 5 and 6 in any case 122 123
Appl. 250/57, 1 YBECHR (1955-1957) p. 222. Appls. 8348 and 8406/78, 18 D&R (1980) at pp. 194-7.
Matters of admissibility proper
767
was not aimed at engaging in such activities.124 In the De Becker Case, where the complaint concerned the freedom of expression, the connection was absent, because De Becker's totalitarian views and activities dated from the past and it had not been shown that he would abuse his freedom of expression again for that purpose.125 The question of how close the link between the right claimed and the activity prohibited under Article 17 must be is not yet settled.126 (5) The Application must not be Manifestly Ill-founded This admissibility condition (Article 27(2) explicitly) applied only to individual applications, but the Commission, while conceding this had held that it recognized "the application of a general rule providing for the possibility of declaring an application under Article 24 inadmissible, if it is clear from the outset that it is wholly unsubstantiated or otherwise lacking the requirements of a genuine allegation in the sense of Article 14 of the Convention".127 When the Commission declared an application to be manifestly ill-founded, in actual fact it pronounced on the merits, in finding on the alleged facts and the law presented a complete absence of any violation of the provisions of the Convention dealing with substantive rights when declaring an application manifestly ill-founded, the Commission itself took a final decision on the interpretation and application of one or more of the provisions of Section I of the Convention. A finding of this nature barred the ECHR (or the Committee of Ministers) from dealing with the case. Thus, it is 124
See the report of 19 December 1959 and the judgment of 1 July 1961 in this case, B.I (1961), at p. 180 and A.3, at pp. 45-6 respectively. 125 Report of 8 January 1960, B.2 (1962), at pp. 137-8. 126 See Appl. 712/60, RetimagS.A. v. FRG, 4 YBECHR (1961), p. 384, where the issue was raised but not decided because the request was declared inadmissible on account of non-exhaustion of the domestic remedies. 127 Appls. 9940-9944/82, France, Norway, Denmark, Sweden and Netherlands v. Turkey, 35 D&R (1984) at pp. 161-2. Article 24 deals with inter-state applications. The general rule has, however, apparently not been applied to inter-state applications.
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important to know what the Commission meant by this ground of inadmissibility. The Commission has explained what it did when it found an application manifestly ill-founded. In the De Becker Case, for instance, the Commission held that it could declare an application manifestly ill-founded only if the examination of the complaint did not disclose any prima facie violation of the Convention.128 In the Petaki Case it said that "it follows that at the present stage of the proceedings the task of the Commission is not to determine whether an examination of the case submitted by the Applicant discloses the actual existence of a violation of one of the rights and freedoms guaranteed by the Convention but only to determine whether it includes any possibility of the existence of such a violation".129 In practice applications were declared manifestly ill-founded in particular, if the facts about which a complaint had been lodged evidently did not constitute a violation of the Convention or if those facts had not been proven or were manifestly incorrect. As to the latter the Commission required the applicant to give prima facie evidence of the facts put forward by him.130 As to the former, it covered both manifest ill-foundedness per se and incompatibility with the Convention. There is incompatibility with the Convention which is ratione materiae, if an application concerned the violation of a right not protected by the Convention. In that case the application fell entirely outside the scope of the Convention and no examination of the merits was possible. An application was manifestly ill-founded if it concerned a right protected by the Convention, but a prima facie examination disclosed that the facts put forward could not by any means justify the claim of violation, so that an examination of the merits was superfluous. However, the two notions have not always been kept separate. The case-law has not always been consistent. For example, according to 128
Appl. 214/56, 2 YBECHR (1958-1959) at p. 254. Appl. 596/59, 3 YBECHR (1960) at p. 368. See also Appl. 7640/76, Greek v. Switzerland, 21 YBECHR (1978) at pp. 474 ff. 130 See, e.g., Appl. 556/59, Xv. Austria, 3 YBECHR (1960) p. 288, Judgment of 9 October 1979, Airey, A.32, p. 10. 129
Matters of admissibility proper
769
Article 14 the enjoyment of the rights and freedoms set forth in the Convention must be guaranteed without discrimination on any ground. Applications containing complaints about discrimination with respect to rights or freedoms which the Convention did not protect have sometimes been declared to be manifestly ill-founded and sometimes incompatible with the Convention.131 In general the Commission has taken the position, rightly or wrongly, that applications in regard to which the interpretation of one or more articles of Section I of the Convention was required should not be rejected as being incompatible with the Convention ratione materiae. While manifest ill-foundedness does require interpretation of articles in the Convention, and therefore, required consideration of the merits, it was not always that such a finding was made, only where the ill-foundedness was patently manifest. For example, in the Iversen Case,132 the applicant complained about the possibility existing in Norway that dentists who had recently completed their studies could be obliged to work for some time in the public service. The complaint was declared "manifestly ill-founded" by the Commission, though it raised very complicated questions concerning Article 4 which moreover divided the members of the Commission. In such a situation a more detailed examination of the merits appeared decidedly justified and such an examination should have taken place without the application being declared inadmissible. Again, an application relating to the violation of the freedom of expression was declared manifestly ill-founded by the Commission on the basis of the finding that prohibiting a Buddhist prisoner from sending a manuscript to the publisher of a Buddhist journal constituted a reasonable application of the prison rule concerned, and that this rule itself "is necessary in a democratic society for the prevention of disorder or crime within the meaning of Article 10(2)".133 In this case also it was doubtful whether the interpretation of the 131
For a finding of manifest ill-foundedness see e.g., Appl. 1452/62, Xv. Austria, 6 YBECHR (1963) p. 268. For a declaration of incompatibility see e.g., Appl. 2333/64, Inhabitants of Leeuw-St. Pierre v. Belgium, 8 YBECHR (1965) p. 338. 132 Appl. 1468/62, Iversen v. Norway, 6 YBECHR (1963) p. 278. 133 Appl. 5442/72, Xv. UK, 1 D&R (1975) p. 41.
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relevant provision of the Convention in this way was so obvious that no difference of opinion was possible among reasonable persons. Because decisions that cases were manifestly ill-founded barred the Court in particular from giving its opinion on the interpretation and application of important provisions of the Convention, as the case may not go further, it was imperative that the Commission declared an application to suffer from this defect, only if the ill-founded character was actually evident at first sight (of perhaps if the Commission based its decision on the constant case-law of the Court). For example, in its report in the Powell and Rayner Case134 the Commission took the view that in the Commission's constant caselaw the term "manifestly ill-founded" under Article 27(2) extended further than the literal meaning of the word "manifestly" suggested. This approach may be questionable. Clearly, while the finding of manifest ill-foundedness required an examination of the merits, whether on facts or law or both, it was not intended to be a thorough examination. Hence, a full examination of the facts and law should not have been prevented, only if there was no doubt at all that the case was manifestly ill-founded after the initial examination. If the applicant's claims had an "arguable" character which may emerge in different ways, a finding of inadmissibility was appropriately to be avoided. The question also arises whether, where the Commission was obviously divided on the issue of manifest ill-foundedness, it should not simply have declared the application not inadmissible as a matter of course. (6) Domestic Remedies must have been Exhausted That domestic remedies must have been exhausted "according to the generally recognized rules of international law" is a requirement of admissibility (Articles 26 and 27(3)) of the old Convention (see Article 35(1) of the new Convention). Since the application of the rule of local or internal remedies to the protection of human rights under the European Convention is conventional, it is important to 134
Report of 19 January 1989, A. 172, p. 27. See also Appl. 15404/89, Purcell v. Ireland, 34 YBECHR (1991) at pp. 98 ff., where it hardly could be said that the applicant did not have an "arguable claim".
Matters of admissibilityproper
771
understand how the Convention which provides for such protection has been interpreted. The approach taken by the EComHR and the ECHR in some of the leading cases decided by them is illustrative. (a) Basic Considerations In Austria v. Italy the Commission followed an objective method of interpretation. The view was taken that the obligations undertaken by the parties to the European Convention on Human Rights were essentially of an objective nature intended to protect the fundamental human rights of individuals rather than creative of subjective and reciprocal rights for the parties themselves.135 The ECHR in Golder v. UK endorsed the views of the Commission that interpretation should be in the light of the ultimate object and purpose of the Convention and as a step towards the collective enforcement of human rights.136 The approach to interpretation of the Convention described above reflects some of the basic differences between human rights protection and diplomatic protection. While the former is based at present entirely on conventional law and the latter primarily on customary law, another significant difference between the two institutions is the nature of the connecting link which is a prerequisite for the exercise of protection. In the case of diplomatic protection the connecting link is nationality—the alien must be a national of the protecting state. In the case of human rights protection there is no such requirement. The individual is protected by the enforcement system qua individual and not as a national of a particular state. The fact that a person, natural or legal, is injured or a victim as a result of a breach of the Convention gives him a right directly to litigate his grievance before international organs set up under the Convention. 135
Appl. No. 788/60, Report of the Plenary Commission at p. 37. In Golder v. UK the Commission reaffirmed this view, adding that "The provisions of the Convention shall not be interpreted restrictively so as to prevent its aims and objects being achieved": Appl. No. 4451/70, Report of the Commission at p. 25. 136 Golder v. UK, ECHR, Judgment (1975), Series A, at pp. 9-12. See also Wemhoffv. FRG, ECHR, Judgment (1968), Series A, at p. 23, and the Belgian Linguistics Case, ECHR, Judgment (1968), Series A, at p. 32. Later cases have said nothing to contradict what has been said above.
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Even where a state takes up a case where an individual's rights have been violated, there is no vinculum juris required in the form of nationality. A state party to the Convention which takes up a case does not defend its national interest, as happens in diplomatic protection, nor does it act in defense purely of the interests of its national. Not only may a state take up a case where its national is injured but it may do so when any individual is injured, national or not. The collective and mutual guarantee of human rights by all parties to the Convention is a basic premise of the system of human rights protection and empowers a state party to the Convention to act in respect of an injured individual, while also permitting an injured individual to seek protection himself. States may protect not only their own nationals but stateless persons, nationals of the respondent state and nationals of third states. As the EComHR stated in connection with the right of a state party to the European Convention to bring a case before it: the High Contracting Parties have empowered any one of their members to bring before the Commission any alleged breach of the Convention, regardless of whether the victims of the alleged breach are nationals of the applicant State or whether the alleged breach otherwise particularly affects the interests of the applicant States ... It follows that a High Contracting Party,... is not to be regarded as exercising a right of action for the purpose of enforcing its own rights, but rather as bringing before the Commission an alleged violation of the public order of Europe.137
Unlike the case of diplomatic protection, not only may the individual initiate action himself, when he makes use of the machinery of protection, which is the unusual situation in diplomatic protection, 137
Austria v. Italy, Appl. 788/60, Report of the Plenary Commission at p. 37. The fact that before the European Court individuals could not be parties further reinforces the theory of the collective guarantee. In proceedings before the Court the European Commission participated in the proceedings vis-a-vis the state alleged to have violated the Convention. In this capacity it represented the public interest: see Mosler, "The Protection of Human Rights by International Legal Procedure", 52 Georgetown Law Journal (1964) at p. 818.
Matters of admissibility proper
773
but the entire system under the European Convention, involving the Commission, the Court and the states parties to the Convention, is aimed at protecting the individual directly erga omnes through the mechanism of the collective guarantee, without the intervention of a national state which may invoke political considerations in taking a decision whether to exercise protection or not, and even against his own national state.138 The ability of individuals directly to litigate under the system of human rights protection is also a departure from the practice of diplomatic protection. This power is a basic premise of the systems of human rights protection. It gives the individual a status which he never really had under the institution of diplomatic protection. The differences between conventional systems of human rights protection and diplomatic protection may result in a slightly different orientation in certain respects of the basis of the rule of local remedies as it is applied in human rights protection. In general the instruments on which such protection is based refer to "the generally recognized principles of international law" as the point of reference for the rule of local or internal remedies to be applied. However, the implications of this formulation are subject to analysis.
138
See Eustathiades, "La Convention europeenne des Droits de l'homme et le Statut du Conseil de 1'Europe", 53 Die Friedens-Warte (1955-1956) at pp. 68-9, Rolin, "Le role du requerant dans la procedure prevue par la Commission europeenne des droits de l'homme", 9 RHDI (1956) at p. 9, Eustathiades, "Les recours individuels a la Commission europeenne des droits de rhomme", in Grundprobleme des Interntionalen Rechts—Fetschrift fur Jean Spiropoulos (1957) at p. 121, Pilotti, "Le recours des particuliers devant les juridictions internationales", id. at p. 351, Durante, Ricorsi Individuali ad Organi Internazionali (1958) pp. 129 ff., Vasak, La Convention europeenne des droits de l'homme (1964) pp. 96 ff., Mosler, loc. cit. note 137 at pp. 818 ff., Virally, "L'acces des particuliers a une instance internationale: la protection des droits de rhomme dans le cadre europeenne", 20 Memoires Publies par la Faculte de Droit de Geneve (1964) at pp. 67 ff., Miiller-Rappard, "Le droit d'action en vertu des dispositions de la Convention europeenne des droits de rhomme", 9 RBDI (1968) at pp. 491 ff., 497 ff., 503, Economopoulos, "Les elements politiques et judiciaires dans la procedure instauree par la Convention europeenne des droits de l'homme", 22 RHDI (1969) at pp. 125 ff.
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The rule of local remedies in the law of diplomatic protection in general revolves around four groups of interests, and certain values are reflected in the application of the rule.139 In the case of the protection of human rights the interests involved are those of the respondent state, the individual, any particular state that may make a claim on behalf of an injured individual, and the international community, particularly of states parties to the instrument creating the protective system. The interests of these entities correspond to, but are not the same as, the interests of the four groups connected with diplomatic protection. The rule is applicable to the protection of human rights on the basis that primary recognition is given to the respondent state's interest in preventing "la substitution d'une procedure internationale sur voies de recours internes en vue de permettre a 1'Etat de reparer ses propres moyens".140 The EComHR has said that "the rule requiring the exhaustion of domestic remedies as a condition of the presentation of an international claim is founded upon the principle that the respondent state must first have an opportunity to redress by its own means within the framework of its own domestic legal system the wrong alleged to have been done to the individual".141 139
See Amerasinghe, Local Remedies in International Law (1991) pp. 66-75. Eustathiades, "La Convention europeenne des Droits de Phomme et le Statut du Conseil de 1'Europe", 52 Die Friedens-Warte (1953-4) at pp. 355 ff. On the rule of domestic remedies under the European Convention on Human Rights and in the protection of human rights in particular see Amerasinghe, "The Rule of Exhaustion of Domestic Remedies in the Framework of International Systems for the Protection of Human Rights", 28 ZAORV (1968) p. 257, Amerasinghe, "The Rule of Exhaustion of Local Remedies and the International Protection of Human Rights", IYBIA (1968) p. 3, Amerasinghe, op. cit. note 139, passim, Cancado Trindade, The Rule of Exhaustion of Local Remedies in International Protection of Individual Rights (1983) passim. 141 Appl. 343/57, Report of the Commission at p. 36, Austria v. Italy, Appl. 788/60, Report of the Plenary Commission at p. 43. This idea has been confirmed in later cases. See also Appl. 12945/87, Hatjianastasiou v. Greece, 33 YBECHR (1990) at pp. 64-5, Judgment of 20 September 1993, Sai'di, 36 YBECHR (1993) at p. 226. In a different sense and as a consequence it has been said that the Convention system of protection is subsidiary to national systems: Judgment of 20 September 1993, Sai'di, ibid. 140
Matters of admissibility proper
775
This reason is similar to that which underlies the rule of local remedies in the law of diplomatic protection. Furthermore, the individual, the state that may bring a claim and the international community of states parties to the instrument also have an interest in seeing that the local remedies work and provide satisfactory solutions for reasons similar to those which the alien, the alien's national state, and the international community have for seeing that local remedies work in the law of diplomatic protection. However, in fact the individual who is not an alien may have a greater interest in seeing that local remedies work than an alien, because he will generally be more closely connected with the defendant state. Moreover, the interests of individual states as such may have less importance in the application of the rule to human rights protection, although the collective interest of the parties to the instrument in guaranteeing effective protection might require giving their concern for the proper application of the rule a special emphasis, more so than the interest of the international community in the application of the rule to diplomatic protection. It would seem that logically the interests of the individual should enjoy greater emphasis in certain respects in the context of human rights protection that in the law of diplomatic protection. Although the conventional arrangements on human rights provide collective guarantees, there was every intention that the rights guaranteed were to be conferred on individuals; the violation of such rights is not regarded merely as the breach of an obligation owed to the guaranteeing state or states but as an interference with the rights of individuals. Thus, there is a good case for giving his special interests somewhat greater emphasis. In both diplomatic protection and human rights protection the principal object of the local or internal remedies rule is similar, viz. to enable the respondent state to do justice in a situation which to a large extant it has controlled. There is also a similarity between the two institutions insofar as the affected entity is an individual. On the other hand, in the case of human rights protection the interests of the individual are given special prominence, to the extent that the rights violated are considered to be those of the individual, and he is given direct access to international machinery to enforce the
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protection of his rights. By the same token the international community of states parties to the conventional arrangements has a significant interest in the protection of the individual through the system it has established, an interest which may be more pervasive than that of the international community in the protection of the alien through diplomatic intervention. On the theoretical level, therefore, there may be a good argument for giving more recognition to the interests of the individual and of the international community of states parties to the conventional arrangements, at least to some extent and in certain respects, in the application of the rule of local or internal remedies to human rights protection, than is given to them in the case of diplomatic protection. However, the formulation of reference to the rule in the conventional instruments, for example, would override any of the purely theoretical considerations. But any departures from the principles governing the application of the rule to diplomatic protection could be justified on the premise that it is a particularly important objective in the protection of human rights that the individual should have quick and efficient access to the international forum created under the conventional scheme.142 It is because of express reference to the rule of local or internal remedies in conventions on human rights protection that the rule is applicable. The European Convention on Human Rights stated in Article 26, and now states in Article 35(1), that the EComHR or ECHR, as the case may be, "may only deal with the matter after all domestic remedies have been exhausted according to the generally recognized rules \principes] of international law...". The travaux preparatories give little indication of how this article was to be interpreted.143 However, the exhaustion must be according to the generally recognized principles of international law. It is not entirely clear how far the interests of the individual and of the international community may be given greater weight than in connection with 142
For an exhaustive discussion of the question of the basis of rule of local or domestic remedies in the context of both diplomatic protection and the protection of human rights see Amerasinghe, op. cit. note 139, pp. 53 ff. 143 See Eustathiades, loc. cit. note 140, pp. 354 ff.
Matters of admissibility proper
111
diplomatic protection, but there is room for interpretation. The Commission has taken the view that it must investigate the question of local remedies proprio motu, even if the matter is not raised by the respondent state.144 Under Article 27(3) the Commission had to reject any petition which it considered inadmissible under Article 26. The Commission took the view that this does not prevent the joinder to the merits of the objection to admissibility.145 No express mention of the rule of local remedies was made in the Convention in connection with cases brought before the ECHR. However, necessary implication required the Court to take account of the rule.146 Now, the present Convention is clear on this matter. In implementing the rule147 an important distinction was made by the Commission in Austria v. Italy, when it pointed out that "by including words 'according to the generally recognized rules of international law' in Article 26 the authors of the Convention intended to limit the material content of the rule and not its field of application ratione personae".148 The issue raised was whether the rule of local remedies applied when applications where brought by states (rather than individuals) under Article 24 of the Convention, which did not specifically incorporate the rule of local remedies. While the Commission held that the rule was applicable under Article 24 as under Article 26 it made it quite clear that in regard to the material content of the rule customary international law was to be followed. The material content covers such matters as the scope of and limitations on the rule. In regard to other matters, such as the incidence of the rule and waiver, the Commission left room for differing approaches. Thus, as far as the material content of the rule is 144
Appl. 524/59, 3 YBECHR p. 354. See also Rule 45 of the Rules of Procedure of the Commission. 145 Appl. 2991/66, 24 Coll. at pp. 116 ff. 146 See the Matznetter Case, ECHR, Judgment (1969), Series A. 147 The question of how far a departure may be made from the detailed rules applicable to diplomatic protection has been discussed in some detail in Amerasinghe, op. cit. note 139, pp. 89 ff. See also the writers there cited in footnotes 78 ff. The relevant case law under the European Convention is also discussed there. 148 Appl. 788/60, Report of the Plenary Commission at p. 44.
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concerned, where, as in the European Convention, generally recognized rules of international law are textually invoked, the application of the rule in the context of human rights protection must be treated as compatible with and, indeed, a development of the rule of local remedies applicable to diplomatic protection, even though in other areas differences may appear. So much having been said for the identity of the material content of the rule in the two systems of protection, it must be recognized that the differences in the policies behind the rule as applied in the two systems of protection could affect the implementation of the rule. The EComHR and ECHR have indicated that the differences may have an impact in certain areas. As regards areas outside the material content of the rule, there is good reason to believe that in human rights protection an individual approach is being taken to the application of the rule, based on the contextual situation of such protection and the interpretation of the written instruments governing it. As the examples discussed above show, it does not follow from this that the approach taken to the application of the rule will always favour the individual or individuals affected by eliminating or relaxing the vigour of its application. The real issue in regard to the non-material content of the rule does not appear to be whether it should be applied less rigidly in order to favour the individual and access to an international forum under the institution of human rights protection. What is at stake is the proper application of the rule in relation to the policies behind it and to differences in the contextual background of human rights protection and diplomatic protection. This may result in preference being given to the interests of the individual and the international community, or of the defendant state on the assumption that the rule of customary international law is one which primarily favours the defendant state. With respect to the material content of the rule, however, the presumption is that, where the written law states that the rule should be applied in accordance with the rules of general or customary international law, it should be applied to human rights protection in the same way as it is applied to diplomatic protection. In this connection differences in the fundamental premises of the two systems of protection are basically irrelevant.
Matters of admissibility proper
779
In practice the EComHR and ECHR have applied the rule in a rather pragmatic way while respecting the principles of international law which are invoked by the Convention. (b) The Relevance of the Direct Injury149 In the context of human rights protection the issue of the direct injury has not been discussed in these terms in the jurisprudence of the organs entrusted with enforcing such protection. The discussion has pertained almost entirely to the question whether the rule of internal or local remedies is applicable to inter-state disputes under the ECHR. However, it is conceivable that, if a violation of the Convention also amounts to a direct injury to a foreign state, the issue could arise. There is no reason why in such an event the incidence of the rule would not be affected under the Convention, if the application is filed by the state injured in an inter-state dispute. Under Article 27(3) the rule of internal remedies, which is referred to in Article 26, is expressly made applicable to applications filed before the EComHR by individuals. Article 24, which deals with inter-state disputes, is not clear on the question whether the rule of internal remedies is applicable to such disputes. The EComHR took the view that the rule is applicable at least in principle to inter-state disputes,150 but this does not mean that the incidence of the rule in such cases would not be affected by the doctrine of the direct injury, where appropriate. The reasoning that the rule was never intended by its nature to apply to such a situation would be equally applicable in the area of human rights protection under an instrument such 149
For a discussion of the "direct injury" see Amerasinghe, op. cit. note 139, pp. 108 ff. 150 See Austria v. Italy, Appl. 788/60, Report of the Plenary Commission at pp. 42 ff. The reasoning and decision in Austria v. Italy have been criticized: see Vasak, La Convention europeenne des droits de I'homme (1964) p. 114, Eustathiades, "Une nouvelle experience en Droit international—Les recours individuels a la Commission des droits de l'homme" in Grundprobleme des internationalen Rechts—Festschrift fur Jean Spiropoulos (1957) at pp. Ill ff. See further, on inter-state cases, Cancado Trindade, "Exhaustion of Local Remedies in Inter-State Cases: The Practice Under the European Convention on Human Rights", 29 OZOR (1978) at pp. 214 ff.
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as the European Convention. In regard to the protection of human rights, the relevance of the direct injury exclusion for the rule of internal remedies would seem to be less apparent. However, there may be situations in which the concept of the "direct injury" may be invoked in order to exclude the application of the rule.151 (c) Jurisdictional Connection Another question that has been raised is whether in cases where a state is obviously protecting its national, i.e. genuine cases of diplomatic protection, there could arise situations in which the application of the rule of internal remedies is excluded, because there is no adequate "Jurisdictional connection". In the area of human rights protection the problems arising from issues related to Jurisdictional connection do not appear to be as acute as in regard to diplomatic protection, partly for the reason that the conventional instruments are limited in their area of application. Article 1 of the European Convention states that parties "shall secure to every one within their jurisdiction the rights and freedoms defined in Section I of this Convention". The Convention, therefore, applies only in respect of persons within a state's jurisdiction. It is clear that under the Convention a state is at the most under an obligation to respect human rights only in respect of persons within its jurisdiction. Problems arise in connection with the rule of local remedies under the Convention, where jurisdiction and territory are not co-extensive. Thus, where Y, a national of state C, who is in state D, is arbitrarily deprived of his liberty by officers of state C acting officially in state D, state C has interfered with the rights of Y. Since Y is a national of state C, it may be contended that he is within state C's jurisdiction and that state C has violated the Convention. In such a case the question that arises is whether Y must exhaust local remedies in state C before he can, under the Convention, bring his case before an international instance. From a more general point 151
The issue has not been faced in the cases that have come up. Reference is made to Amerasinghe, op. cit. note 139 for a discussion of the issue in relation to the European Convention on Human Rights.
Matters of admissibility proper
781
of view the issue is whether the incidence of the rule of internal remedies is co-extensive with any violation of the Convention. The principles applicable to diplomatic protection will be applicable to the protection of human rights, where the rule of internal remedies is made applicable by reference to the general principles of international law.152 Thus, it is arguable that it would at least be necessary for the violation of the Convention to take place on the territory of the respondent state for the rule of internal remedies to become applicable. Where state A commits a wrong against Y on the territory of state B, or anywhere outside its territory, the rule of internal remedies would not be applicable to that wrong, even though the injury may be actionable under the Convention. This is an important point, especially since jurisdictional connection in this sense may not be the same as jurisdiction for the purposes of determining whether the Convention has been violated so as to make it possible to invoke its machinery. Under the Convention, while it would be possible for proceedings to be instituted against state A where state A commits a wrong in respect of X, one of its nationals, in state B because state A has jurisdiction over X, it should not be necessary for X to exhaust internal remedies anywhere, because there is no jurisdictional connection between state A and the wrong for the purposes of the incidence of the rule of internal remedies. Again, even if the violation of the relevant convention takes place on the territory of state A, and if the victim had come to be there as a result of a seizure made in violation of international law by state A, there should be no need for the exhaustion of internal remedies, although state A may have sufficient jurisdiction over the victim for proceedings to be instituted. The analogy drawn from customary international law in regard to the incidence of the rule of internal remedies where there is no adequate jurisdictional connection is relevant because it may be reasonable in terms of policy to apply it. On the other hand, the applicability of the relevant principles depends on the interpretation of the European Convention. It has also been observed that the 152
For the principles applicable in the law of diplomatic protection see Amerasinghe, op. cit. note 139, pp. 138 ff.
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reference to the generally recognized principles of international law has been interpreted under the European Convention to be confined to the material content of the rule. This does not mean, however, that principles not related to the material content of the rule cannot be applied, if it is warranted by good policy. In the case of the principles relating to jurisdictional connection, it may be desirable, for practical and other reasons connected with the nature of the rule, to apply them to human rights protection, when and if they become relevant. The Commission and the Court have been aware of the significance of "jurisdiction" in the Convention. However, the points discussed above are to be borne in mind. (d) Scope of the Rule In Nielsen v. Denmark the EComHR said that "the rules governing the exhaustion of domestic remedies, as these are generally recognized today, in principle require that recourse should be had to all legal remedies available under the local law which are in principle capable of providing an effective and sufficient means of redressing the wrongs for which, on the international plane, the respondent State is alleged to be responsible".153 This statement emphasized the requirements that (i) all remedies must be tested, provided (ii) they are available, (iii) they are sufficient and effective, and (iv) a normal use of such remedies is made. (i) There has in fact been no serious doubt about the requirement of availability or admissibility. In Englert,154 for instance, the ECHR held that no appeal was required because none was available. (ii) There is evidence that the EComHR has been aware of the problem of the nature of the remedy that needs to be exhausted, although its general approach has been rather to determine whether the remedy is effective as a criterion of whether it should be 153
Appl. 343/57, Report of the Commission (1961) at p. 37. See also X v. Ireland, Appl. 493/59, 7 Coll. at pp. 94, 96, Syndicat National de la Police Beige v. Belgium, Appl. 4464/70, 39 Coll. at p. 32. 154 [1987], Case 9/1986/107/155, Judgment. In Farrell v. UK, Appl. 9013/80, 25 YBECHR (1982) p. 124, the requirement of availability was stressed by the EComHR.
Matters of admissibility proper
783
exhausted.155 In regard to extraordinary remedies, the Commission has taken the view that the extraordinary nature of the remedy does not affect the requirement of exhaustion, because the answer to the question whether the remedy should have been exhausted depended entirely on whether the remedy was adequate and effective. There are several cases in which the Commission has taken the view that the remedy was exhaustible, although it was an extraordinary one. Thus, the right to petition the Special Court of Revision in Denmark for the reopening of proceedings and an order for a new trial, although an extraordinary remedy, was held to be a legal remedy to which resort should have been had.156 It is not clear what is meant by "legal nature" but it would seem that this concept is compatible with the concept of "judicial nature" current in customary international law.157 In the cases in which remedies were held to be exhaustible the remedies available were held to be determinable according to law and not to rest on pure discretion exercised in a non-judicial manner. It may also be necessary to seek alternative judicial remedies successively. Thus, where in a federal state there is a Federal Constitutional Court and a State Constitutional Court, both of which have jurisdiction over the same matter, it will be necessary to litigate in both courts.158 There have been some cases in which the Commission has held that an extraordinary remedy was not subject to exhaustion; however, 155
See Danielus, "Conditions of Admissibility in the Jurisprudence of the European Commission of Human Rights", 2 HRJ (1969) at p. 292. 156 Nielsen v. Denmark, Appl. 343/57, Report of the Commission at pp. 37 ff. 157 The remedies may include reference to a special constitutional court, or to administrative courts of different kinds, such as administrative courts of first instance, superior administrative courts, administrative courts of appeal, a federal administrative court or an administrative Detention Commission. They may include a disciplinary action of a special nature against the officer concerned before a person or committee with judicial powers, an appeal to the AttorneyGeneral acting in a quasi-judicial capacity, an application for the transfer of a case to another court on the grounds of prejudice which would have resulted in a rehearing, or an appeal which would have resulted in the rehearing of the case. For the relevant cases see Amerasinghe, op. cit. note 139, pp. 162-3, notes 45- 54. 158 Appl. 302/57 (not published), cited by Vasak, La Convention europeenne des droits de I'homme (1964) p. 120.
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this was not on the ground that it was an extraordinary remedy, but rather because the remedy was not adequate and effective. Thus, in Bruckmann v. FRG,159 it was held that a petition filed with the Court of Appeal after a decision of the German Federal Constitutional Court, in order to re-open proceedings in the case, was not an effective and adequate remedy and, therefore, did not have to be exhausted.160 It is not necessary to resort to a merely discretionary extraordinary remedy of a non-judicial nature, such as one whose object is to obtain a favour and not to vindicate a right. Fore example, in the De Becker Case, it was held that an action for re-instatement under a statute, which would have enabled the complainant to resume his profession, if it had succeeded, was not a remedy to which he should have had recourse, because "its purpose is to obtain a favour and not to vindicate a right".161 Special remedies provided by constitutional courts in such countries as the FRG and Austria are also subject to exhaustion, although they are not ordinary remedies. The Commission has consistently affirmed this. In X and Y v. Austria, for example, the Commission found that, while the applicant had exhausted remedies available in the ordinary courts by appealing to the Supreme Court, this did not absolve him from pursuing the remedy available for an alleged breach of his human and constitutional rights by means of a direct appeal to the Constitutional Court.162 159
Appl. 6242/73, 46 Coll. p. 207. See also, X v. FRG, Appl. 918/60, 7 Coll. p. 110, X v. Sweden, Appl. 1739/6213, Coll. p. 102, X v. Denmark, Appl. 4311/69, 37 Coll. p. 96, X v. FRG, Appl. 6049/73, 1 D&R, p. 56. See also comments by Wiebringhaus, "La regie de I'epuisement prealable des voies de recours internes dans la jurisprudence de la Commission europeenne des droits de l'homme", 5 AFDI(1959) at p. 695. For administrative remedies see Appl. 9266/81, Yarrow P.L.C. and Others v. UK, 30 D&R (1983) at pp. 188 ff. 161 Appl. 214/56, 2 YBECHR p. 237 at p. 238. See also Lawless v. Ireland, Appl. 332/57, 2 YBECHR p. 326. Other decisions where the remedy has been regarded as discretionary include Greece v. UK, Appl. 299/57, 2 YBECHR p. 192 (petition to the Queen which was a measure of grace), Xv. Belgium, Appl. 458/59, 3 YBECHR p. 234 (appeal for pardon). 162 Appl. 2854/66, 26 Coll. at p. 54. See also, e.g., X v. Austria, Appl. 1135/61, 11 Coll. p. 22, X v. Austria, Appl. 2370/64, 22 Coll. p. 101, 160
Matters of admissibility proper
785
However, the need to exhaust constitutional appeals may not exist, if that recourse does not afford an effective remedy for the particular complaint.163 (iii) The Commission has dealt with the issue of effectiveness and adequacy on more than one occasion. Thus, on the issue of adequacy (sufflsance) the Commission has held that, where the applicant was seeking compensation and damages for unlawful imprisonment after his release, the right of recourse to an Internment Commission, which did not have the power to grant compensation and damages but could only recommend release, was not an adequate remedy with respect to the applicant's claim for damages and compensation, and therefore, it did not have to be invoked.164 X v. Austria, Appl. 4511/70, 38 Coll. p. 85. There were several cases against the FRG in which a similar conclusion was reached: see, e.g., X v. FRG, Appl. 1086/61, 9 Coll. p. 16, Xv. FRG, Appl. 2201/64, 16 Coll. p. 75, Soltikow v. FRG, Appl. 2257/64, 27 Coll. p. 24, Xv. FRG, Appl 4046/69, 35 Coll. p. 115, Xv. FRG, Appl. 4445/70, 37 Coll. p. 121, Xv. FRG, Appl. 5172/71, 44 Coll. p. 125. On constitutional appeals see Verdussen, "La Cour europeenne des droits de rhomme et Pepuisement preable de recours interne au juge constitutionnel", in Liber Amicorum Marc-Andre Eissen (1995) p. 435. 163 See, e.g., Ringeisen v. Austria, Appl. 2614/65, 27 Coll. at pp. 53-4. 164 Lawless v. Ireland, Appl. 332/57, 2 YBECHR (1958-1959) p. 318. See also X.v. Sweden, Appl 1739/62, 13 Coll. p. 102, Xv. Austria, Appl. 3972/69, 37 Coll. at p. 19. See also Van der Sluijs, Zuiderveld and Klappe v. The Netherlands, Appls. 9362/81, 9363/81, 9387/81, 25 YBECHR p. 212. On the adequacy and effectiveness of remedies see also the De Jong and Baljet Case, Appls. 8805/79 and 8806/79, 24 D&R(1981) atp. 150, Zv. The Netherlands, Appl 10400/83, 38 D&R (1984) at p. 150, M v. France, Appl. 10078/82, 41 D&R (1985) at p. 119, Moution v. France, Appl. 1192/84, 52 D&R (1987) at p. 235, the Civet Case, Judgment of 28 September 1999,42 YBECHR (1999) p. 166, the Selmouni Case, Judgment of 28 July 1999, ibid. The Commission has held that where the remedy could satisfy the object of the applicant's claim it should have been invoked and exhausted. Thus, in X v. FRG the applicant's complaint was against the Public Prosecutor for having violated his right of defense. Since this complaint could have been satisfied by recourse to a disciplinary action to which the applicant had not resorted, the Commission held that domestic remedies had not been exhausted: Appl. 297/57, 2 YBECHR at p. 214. See also X v. Sweden, Appl. 3788/68, 35 Coll. p. 72.
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The notion of effectiveness (efflcacite) has attracted the attention of the Commission more obviously.165 As a rule the Commission has taken the view that if a remedy is likely to be effective, resort must be had to it.166 There can be no question that it is generally agreed that remedies must be exhausted where they are adequate for the object sought or effective. The problems really arise when an exception is sought to the application of the rule on the ground that a remedy is ineffective. This aspect will be considered later below. (iv) "Normal use" has been referred to in the case-law of the EComHR on the local remedies rule. In Austria v. Italy the Commission said that the rule required "the normal use of remedies likely to be effective and adequate".167 In Ringeisen v. Austria, the Commission stated that "if remedies which seem effective and sufficient are open to an individual within the legal system of the respondent state, he must use and exhaust such remedies in the normal way".168 But in fact for the Commission the normal use of remedies has meant no more than that "time-limits laid down in domestic law for the introduction of appeals must be observed by 165
See Nay-Cadoux, Les Conditions de recevabilite des requetes individuelles devant la Commission europeenne des droits de I'homme (1996) pp. 97 ff. 166 In X v. Ireland the Commission held that an application to the Detention Commission of the respondent state was a legal remedy which would have secured the applicant's early release from the alleged illegal detention, and therefore resort should have been had to it: Appl. 493/59, 7 Coll. at p. 95. See also Xv. Ireland, Appl. 4125/69, 37 Coll. p. 50, Xv. UK, Appl. 5006/71, 39 Coll. p. 93, Kamma v. Netherlands, Appl. 4771/71, 42 Coll. p. 20, Svenska Lotsforbundet v. Sweden, Appl. 4475/70, 42 Coll. p. 13. See also on proof of effectiveness App. 9013/80, the Farrell Case, 30 D&R (1983) at p. 83, Appls. 8805/79 and 8806/79, the De Jong andBaljet Case, 24 D&R (1981) at p. 150. On effectiveness in general see, e.g., Remli v. France, Appl. 16839/90, 77-A D&R (1994) at p. 29, the Cardot Case, Judgment of 19 March 1991, 34 YBECHR (1991) at p. 195 ff., the Guzzardi Case, Judgment of 6 November 1980, A.39 (1981) at pp. 21 ff. 167 Appl. 788/60, Report of the Plenary Commission at p. 57. 168 Appl. 2614/65, 27 Coll. at p. 53. See also Simon-Herold v. Austria, Appl. 4340/69, 38 Coll. at p. 33. Some other decisions to the same effect are referred to in the latter case.
Matters of admissibility proper
787
applicants ,.."169 or that the applicant must exercise remedies in a manner that was valid, taking into account his capacity.170 There is no indication in the jurisprudence of the Commission that the concept of "normal use" is a means of introducing flexibility into the application of the rule of local remedies by reference to reasonableness or equity.171 There is no unequivocal judicial precedent or practice which warrants the conclusion that a victim may avoid resorting to remedies which would otherwise be covered by the rule of local remedies because normal practice or use would justify such omission. What the jurisprudence of the Commission does is to support the interpretation that "normal use" merely refers to the obligations of the alien or individual to fulfil the requirements of local law with respect to such matters as time-limits and capacity. (v) In the Finnish Ships Arbitration it was held that in customary international law the individual need only raise in local proceedings the arguments which he raises in international proceedings.172 He is not expected to raise such arguments in the local courts as the defendant state claims would have given him redress, nor is he bound to raise these in international proceedings. Conversely, he need only have raised in the local proceedings those matters which he raises in the international proceedings. The 169
See X v. FRG, Appl. 352/58, 2 YBECHR at p. 344, X v. FRG, Appl. 945/60, 8 Coll. at p. 105, Inhabitants of Alsemberg and of Beersel v. Belgium (1963), 12 Coll. at pp. 27-8, X v. Norway, Appl. 2002/63, 14 Coll. at pp. 27-8, X v. FRG, Appl. 2366/64, 22 Coll at p. 122, X and Y v. Austria, Appl. 2854/66, 26 Coll. at p. 53, X and Y v. FRG, Appl. 3897/68, 35 Coll. at p. 80. 170 See X.v.F/ZG, Appl. 225/56, 1 YBECHR at pp. 145-6. 171 See comments by Monconduit, La Commission europeenne des droits de I'homme (1965) at p. 315. However, the view has been expressed that the test of reasonableness or "normal use" should be introduced to modify the application of the rule of local remedies: see Directorate of Human Rights, CE doc. H (64) 1 (1964) at p. 20; Vasak op. cit. note 158. 172 (1934), 3 UNRIAA at p. 1502, when it was said that "all the contentions of fact and propositions of law which are brought forward by the claimant government ... must have been investigated and adjudicated upon by the municipal courts ...". See also the Ambatielos Claim (1956), 12 UNRIAA at p. 123.
788
Chapter 16. The ECHR
individual may formulate his case as he thinks fit, but, of course, he will not succeed on his substantive formulation at an international level unless it discloses a cause of action according to international law. Thus, exhaustion of local remedies in connection with arguments of substance is related to the cause of action. It is a natural corollary of the above principle that the individual must raise at the local level any arguments which he raises at an international level. In this area exhaustion takes place in relation to substantive arguments, the arguments covering contentions of fact, propositions of law, pleas and claims. The EComHR applied this principle early in its history, when an application was declared inadmissible for failure to exhaust domestic remedies, because the complaint raised before the Commission that the proceedings before a landgericht (regional court) in the FRG had been conducted in such a manner as to violate certain provisions of the European Convention had not been raised on appeal before the bundesgerichtshof (federal court).173 There are many cases in which the Commission took the same stand and declared the application inadmissible for failure to exhaust domestic remedies.174 The Commission has, on the other hand, made it clear in Xv. Austria that the requirement is that the matter be raised in substance before the relevant local courts, stating that "the mere fact that the applicant has, in pursuance of Article 26, submitted his case to the various competent courts does not constitute compliance with this rule;... it is also required that any complaint made before the Commission and relating to lower courts or authorities should have been substantially raised before the competence higher court or authority".175 The Commission applied the principle in Ringeisen v. Austria and found that the applicant had indeed exhausted domestic 173
X v. FRG, Appl. 627/59, 8 Coll. at pp. 23-4. To mention only a few, see X v. FRG, Appl. 263/57, 1 YBECHR p. 146, X v. Belgium, Appl. 1103/61, 8 Coll. p. 124, X v. Austria, Appl. 3001/66, 26 Coll. p. 59, Samer v. FRG, Appl. 4319/60, 39 Coll. p. 18, Kamma v. Netherlands, Appl. 4771/71, 42 Coll p. 19, X v. Austria, Appl. 5560/72, 45 Coll. p. 64. 174
175
Appl. 3001/66, 26 Coll. at p. 59.
Matters of admissibility proper
789
remedies.176 As a result of the development of the law by the Commission, the point has been clarified that what is required is that the matter be substantially (and not formally) raised before the relevant domestic courts. Another example is Austria v. Italy where the Commission held that: the question of presumed innocence raised by the Austrian Government in paragraph 1(2) of their written conclusions was submitted in substance to the Court of Cassation of Italy... [I]f they had expressly invoked Article 27(2) of the Italian Constitution and Article 6, paragraph (2) of the European Convention, the young men of Fundres/Pfunders would therefore not have submitted any supplementary argument but would simply have put forward one more argument which in practice coincides, by its intention, with those which they effectively promoted.177
The Commission derived the principle it applied from the broader principle that "only the non-utilisation of an 'essential' recourse for establishing the merits of a case before the municipal tribunals leads to non-admissibility of the international complaint".178 The issue has been raised before the Commission whether the applicant can rely on the duty of a local court to examine an issue ex officio in order to avoid the necessity of raising a particular issue before that court. Although in Delcourt v. Belgium the Commission was reluctant to deal with the question,179 in that same case, which came up before it later, and in other cases decided both before and after the case, it has held that the failure of the applicant to raise an issue before a local court which must deal with the question ex officio results in the non-exhaustion of domestic remedies.180 176
Appl. 2614/65, 27 Coll. at p. 55. On the recent practice see Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights (1998) pp. 142ff. 177 Appl. 788/60, 4 YBECHR at p. 176. 178 Ibid, at p. 172. 179 Appl. 2689/65, 22 Coll. at p. 84. 180 See, e.g., X v. Belgium, Appl. 2322/64, 24 Coll. at p. 42, Delcourt v. Belgium, Appl. 2689/65, 24 Coll. at p. 84, X v. Norway, Appl. 2002/63, 14 Coll. at p. 270.
790
Chapter 16. The ECHR
(vi) The Commission has had to deal with the issue of the final decision on more than one occasion, both in order to determine whether the rule of domestic remedies had been observed and for other purposes. It has not been disputed by the Commission that an applicant must have recourse to all competent domestic courts and obtain a final decision from the highest court before the Commission may pronounce on his case. In Ringeisen v. Austria the ECHR implicitly endorsed this view when it held that, while a final decision was necessary before an international forum such as the Commission could pronounce on the dispute, in the case of the Commission it was sufficient if that decision was given before the Commission was called upon to pronounce on the question of admissibility of the application, even though the final decision may not have been delivered before the application had been filed with the Commission.181 Needless to say, this merely means that domestic remedies must have been exhausted before the Court also may assume jurisdiction. The Commission has held that proceedings must be completed, in the sense that they must neither be still pending nor have been discontinued, and that appeals must have been carried to the highest court. Where an appeal in a court was still pending,182 where proceedings had been previously discontinued because of the applicant's health and at his request,183 and where the applicant had lost his case in the court of first instance and an appeal could have been taken which would have led to the rehearing of the case,184 it has been held in each case that domestic remedies had not been exhausted. Where an appeal had been withdrawn and a plea of nullity had not been raised with the result that the decision of the court had become res judicata, it was held that, because the original appeal had not proceeded, domestic remedies had not been exhausted.185 It is in connection, however, with the application of the provision relating to the six-month time-limit in Article 26 of the ECHR 181 182 183 184 185
ECHR Series A [1971] at p. 38. Xv.FRG,App\. 115/55, 1 YBECHR at p. 137. Xv. FRG, Appl. 722/60, 5 YBECHR at p. 104. Xv. Sweden, Appl. 434/58, 2 YBECHR at p. 354. Xv. Austria, Appl. 1234/61, 5 YBECHR at p. 96.
Matters of admissibility proper
791
that the Commission has really had to deal with the question of the final decision. That provision requires that the Commission deal with a dispute within a period of six months of the date on which the final decision was made. The final decision for this purpose has been held in Nielsen v. Denmark to be exclusively "the final decision resulting from the exhaustion of all domestic remedies according to the generally recognized rules of international law".186 Thus, the Commission's view of the final decision for the purposes of the sixmonth rule will also be relevant to the definition of that concept for the exhaustion of domestic remedies proper. There are many occasions on which the Commission has identified the final decision as being the decision of the relevant court in a given municipal legal system,187 but what is of importance for the purpose of determining whether domestic remedies have been exhausted is the distinction made between those situations in which recourse to a higher court is still available, with the result that exhaustion would take place only when that court has taken a decision, and those in which such recourse is obviously not available, so that exhaustion has already taken place. For the purpose of the six-month rule the fact that further recourse is available would result in time not having begun to run, while if there is not further recourse available the final decision would have been taken and time would have begun to run from the time that decision had been taken, regardless of whether the applicant was making or had made further efforts to invoke other remedies. The Commission has had to make its determinations on the basis of its estimate of the adequacy and effectiveness of recourse to a given court.188 In certain circumstances it may be a difficult decision 186
Appl. 343/57, Report of the Commission at p. 35. See, e.g., X v. FRG, Appl. 918/60, 7 Coll. at p. 110, X v. Austria, Appl. 1053/61, 8 Coll. at pp. 7-8, X v. UK, Appl. 3505/68, 29 Coll. at p. 63, X v. Austria, Appl. 3972/69, 37 Coll. at p. 20, Svenska Lotsforbundet v. Sweden, Appl. 4475/70, 42 Coll. at p. 13. 188 See X v. UK, where the Commission upheld the view that the remedy by way of appeal to the High Court for a writ of habeas corpus would not have been an effective one, with the result that the decision of the Court of Appeal, to which the applicant had appealed his conviction, was the final decision. Thus, the time for the purposes of Article 26 had begun to run from the date of the latter 187
792
Chapter 16. The ECHR
for an applicant to take as to whether a recourse to another higher court is effective or adequate, which recourse may put him at a disadvantage when time-limits are an element to be considered.189 From the point of view of the rule of exhaustion of local or domestic remedies per se, however, the requirement is clear that an alien or individual needs and is required only to resort to the higher or last court from which he could have obtained an effective remedy. (e) Limitations on the Rule The EComHR has recognized the general principle that, where remedies are not available or they are inadequate, they need not be exhausted. decision: Appl. 3505/68, 29 Coll. at pp. 62-3. There are other cases in which a similar conclusion has been reached: see, e.g., X v. Sweden, Appl. 3893/68, 33 Coll at p. 10, X v. FRG, Appl. 3979/69, 33 Coll. at p. 13, X v. Austria, Appl. 3972/69, 37 Coll. at p. 19, Xv. Austria, Appl. 5560/72, 45 Coll. at p. 64. 189 There are several problems that may arise, e.g., what should an applicant do when he has reached the highest court but there may be some extraordinary court available, the effectiveness of which is not clear, or when there is a continuing situation and the highest court has already been reached, or when the applicant has decided to reopen the case in the municipal courts in the hope of securing a remedy? The decision in Ringeisen v. Austria, ECHR Series A [1971] at p. 38, where it was held that remedies must have been exhausted at the time when the Commission pronounces on admissibility, and not at the time the application has been filed, tends to mitigate some of the hardship that may be caused in so far as the applicant may, after the highest court has given an apparently final decision, file a case with the Commission while still pursuing remedies in the domestic courts, with the object of having a decision from the new source of recourse before the Commission pronounces on admissibility. See also for a discussion of these issues, X v. Belgium, Appl. 4859/71, 44 Coll. at pp. 6-7, Nielsen v. Denmark, Appl. 343/57, Report of the Commission at pp. 32-5, X v. Sweden, Appl. 1739/62, 13 Coll. at p. 102, Xv. Denmark, Appl 4311/69, 37 Coll. at p. 95. It may not always be possible for an applicant to take advantage of the ruling in Nielsen v. Denmark, as much may depend on chance. On the other hand, it may not be desirable to use or extend that ruling so as to deprive the six-month rule of any real significance by trying to accommodate applicants who may like to gamble on resort to internal remedies: see for similar comments Jacobs, The European Convention on Human Rights (1975) p. 242.
Matters of admissibility proper
793
(i) Where the remedies are inaccessible on the facts of they case they need not be exhausted.190 (ii) Where the remedies are inadequate in that it is obviously futile to resort to them, they need not be exhausted. The EComHR has repeatedly held that it was not necessary to have recourse to domestic tribunals "if the result must initially be the repetition of a decision already pronounced".191 Where the remedies available clearly will not satisfy the object sought by the claimant, they need not be resorted to because they are ineffective or obviously futile. There are several decided case on this matter under the ECHR. Where the object of the claimant's action was to prevent his removal from a state's territory in violation of the Convention, a court action which did not have suspensive effect was not a remedy that had to be exhausted because it was obviously ineffective for the object sought by the claimant.192 The question has been raised by some decisions of the Commission whether the requirement of "obvious futility" has been changed for the application of the rule of local remedies in the context of the protection of human rights under the European Convention. There is some element of doubt in the jurisprudence of the Commission. There are cases in which the Commission has apparently supported the test of obvious futility in regard to limitations on the rule of local remedies, while in some cases a less stringent test of absence of a reasonable prospect of success of the 190
See, e.g., Greece v. UK, Appl. 299/57, 2 YBECHR (1958-1959) at pp. 194-6, Donnelly and Others v. UK, Appls. 5577-83/72, 43 Coll. at p. 147. 191 See, e.g. Neumeister v. Austria, Appl. 1936/63, 14 Coll. at p. 48, Jand Others v. Ireland, Appl. 9697/82, 26 YBECHR (1983) p. 120. 192 Becker v. Denmark, Appl. 7011/75, 4 D&R at pp. 227-8 and 232-3. See also X v. Denmark, Appl. 7465/76, 7 D&R, at pp. 154, X v. Austria, Appl. 6701/74, 5 D&R, at pp. 78-9, Zamir v. UK, Appl. 9174/80, Report of the Commission. Similarly, the Commission has held that, where a claimant finds it impossible to prove before the authorities concerned allegations which are basic to the object of his application, it is obvious that the remedies concerned cannot give the claimant satisfaction and cannot be effective: Kornmann v. FRG, Appl. 2686/65, 22 Coll. at p. 10.
794
Chapter 16. The ECHR
remedies in question has been applied. The difference between the two tests is that under the former test what must be shown in order to trigger an exception to the application of the rule is that it was clear beyond reasonable doubt or that it was manifestly clear that remedies could not result in a successful outcome, while in the case of the latter test all than need be shown for an exception to operate is that the remedy in question would probably not have resulted in successful reparation. There have been cases decided by the Commission in which, on the one hand, it has been said that "if there is any doubt as to whether a given remedy is or is not intrinsically able to offer a real chance of success", it should be canvassed so that the issue may be decided by the local courts.193 In Kjeldsen v. Denmark,194 one part of the application was held to be inadmissible because the remedy indicated by the respondent against certain other administrative measures could not clearly have been said to lack any prospect of success, while the other part, which related to measures taken under an Act of Parliament, could not be contested in court, because no proceedings could be taken against such an instrument, and therefore was held to be admissible. On the other hand, there are numerous cases in which the test applied has been whether the remedy "soit efficace et offre des 193
X v. UK, Appl. 3651/68, 31 Coll. at p. 90. For this reason an appeal to the Court of Appeal in the UK was held to be subject to exhaustion in this case. See also Retimag v. FRG, Appl. 712/60, 4 YBECHR at p. 400, X.v. FRG, Appl. 8961/80, 24 YBECHR p. 74, McVeigh, O'Neill and Evans v. UK, Appls. 8022/77, 8025/77, 8027/77, Report of the Commission at pp. 112-13. There is a certain relativity about the notion of "obvious futility". Much depends on the circumstances of both the applicant and the context in which he is operation: see theAkdivar Case, Judgment of 16 September 1996, 15 Reports 1996-IV para. 70. The rule must, therefore, be applied with some degree of flexibility and without excessive formalism: ibid. para. 69, Judgment of 19 March 1991, the Cardot Case, 34 YBECHR (1991) at pp. 195 ff. Judgment of 16 December 1992, the de la Pradelle Case, 35 YBECHR (1992) at p. 219. 194 Appl. 5095/71, 43 Coll. at pp. 54-5. On administrative practices in particular and the domestic remedies rule see McGovern, "The Local Remedies Rule and Administrative Practices in the European Convention on Human Rights", 24ICLQ(1975)p. 119.
Matters of admissibility proper
795
chances raisonnables de succes".195 In Lawless v. Ireland196 the applicant had failed in his bid to secure a writ of habeas corpus in regard to his detention so that it was clear that he could not succeed in an action for damages for false imprisonment. The Commission held that such action had no reasonable prospect of success and was, therefore, an ineffective remedy. It is not apparent whether in all the cases in which the test was said to be absence of a reasonable prospect of success, with the result that the rule of domestic remedies was found to be inapplicable, the facts showed that while this test was met, the decision would have been different if the stricter test of obvious futility had been applied. At the same time, it is not always clear in many of the cases in which the Commission held that domestic remedies should have been exhausted, because they were not obviously futile or there was some doubt about their effectiveness, that the decision would have been different if the less strict test of absence of a reasonable prospect of success had been applied. What emerges is that there is a conflict in the jurisprudence of the Commission. It cannot be asserted with certainty that the general trend in its decisions is to apply the less strict test in favour of the exception, although there are many cases in which it has ostensibly been applied.197 (iii) The Commission has often held that domestic remedies need not be exhausted where there had been unreasonable delays in the administration of justice, even though the European Convention does not specifically refer to this exception. It had obviously done so in carrying out the prescription to apply generally recognized 195
X v. FRG, Appl. 968/61, 8 Coll. at p. 27. See also Austria v. Italy, Appl. 788/60, Report of the Plenary Commission at pp. 55 ff. 196 Lawless v. Ireland, Appl. 332/57, 2 YBECHR p. 318. 197 Cancado Trindade notes that the less strict test is more widely applied, and concludes that this has replaced the stricter test in the jurisprudence of the European Commission: op. cit. note 140, p. 97. This conclusion is suspect, particularly in the light of the more recent cases. On the application of the principle of ineffectiveness and obvious futility in the cases see now, Buscarini v. San Marino, Judgment of 18 February 1999, 38 ILM at p. 743, Selmouni v. France, Judgment of 28 July 1999, 38 ILM at pp. 1506 ff., van Dijk and van Hoof, op. cit. note 176, pp. 137^2, and 144-7.
796
Chapter 16. The ECHR
rules of international law. As early as 1959, in X v. FRG, the Commission stated that "les lenteurs de procedure" before the Federal Constitutional Court could be a circumstance which would relieve the applicant of the duty to exhaust that remedy,198 although in the case itself it held that delay had not been proved. In de Becker v. Belgium the Commission held that one reason why a particular remedy did not have to be exhausted was that the applicant would have had to wait five years after his release in order to canvass it, which was too long.199 (iv) The Commission has referred to two situations in which the rule of domestic remedies is inapplicable because of the nature of the particular situations. These limitations on the applicability of the rule relate to (a) the prevailing condition and (b) legislative measures and administrative practices. (a) In Austria v. Italy the parties virtually agreed that domestic remedies did not have to be exhausted where there was a prevailing condition which transgressed the provisions of the European Convention.200 The Commission agreed with this position.201 The exact scope of this exception is not clear, nor, indeed, is the question whether it is the same as, or how different it is from, the next one to be considered, which concerns legislative measures and administrative practices. There is also the question whether it applies equally to inter-state cases as to individual applications. It may be difficult 198
Appl. 222/56, 2 YBECHR (1958-1959) at p. 350. Appl. 214/56, 2 YBECHR (1958-1959) at p. 238. Other cases in which undue delay has been referred to as a ground for releasing the applicant from the duty to exhaust remedies are Nielsen v. Denmark, Appl. 343/57, 2 YBECHR (1958-1959) at p. 440, X v. FRG, Appl. 297/57, 2 YBECHR (1958-1959) at pp. 213-14, X v. FRG, Appl. 568/59, 2 Coll. at pp. 348-9, X v. FRG, Appl. 704/60, 3 Coll. at p. 6, Orchin v. UK, Appl. 8435/78, Report of the Commission, Ventura v. Italy, Appl. 7438/76, Report of the Commission. There are special circumstances which are cautiously conceded in which domestic remedies may not be exhausted. These are all related to the practical aspects of "effectiveness": see van Dijk and van Hoof, op. cit. note 176, pp. 152-3. 200 Appl. 788/60, 4 YBECHR at p. 146. 201 Ibid, at p. 148. 199
Matters of admissibility proper
797
to apply it in individual cases, because in these the individual must be a victim of the alleged injury or must have suffered an injury. (b) In the First Cyprus Case202 the applicant government charged that the respondent government had violated the Convention on account of the latter's legislative measures and administrative practices in Cyprus. In its decision the Commission stated that the rule of domestic remedies as recognized in general international law did not apply to the application in the case, the scope of which was to determine the compatibility with the Convention of legislative measures and administrative practices in Cyprus.203 This was an inter-state case, and in many subsequent inter-state cases the Commission has followed the ruling in this decision.204 The reason given for this exception is basically that, whereas the local or domestic remedies rule was based on the effectiveness and availability of remedies, in the kind of case under consideration "judicial remedies prescribed would tend to be rendered ineffective by the difficulty of securing probative evidence, and administrative inquiries would either be not instituted, or, if they were would be likely to be halfhearted and incomplete".205 While the exception may be based on ineffectiveness and inadequacy of the remedies likely to be available, it is not clear that in the kind of case envisaged the remedies would be obviously futile, although there may be no reasonable prospect of success. Further, it may be that in a given case there may be no injury to an individual in the case of an impugned legislative measure, which would make the exception a very special one.
202
Greece v. UK, Appl. 176/56, 2 YBECHR (1958-1959) p. 182. Id. at p. 184. 204 See the Second Cyprus Case, Greece v. UK, Appl. 299/57, 2 YBECHR (1958-1959) at pp. 188-92, Austria v. Italy, Appl. 788/60, 4 YBECHR p. 182, the First Greek Case, Denmark, Norway, Sweden, Netherlands v. Greece, Appls. 3321-3/67, 3344/67, 11 YBECHR p. 710 and 12 YBECHR p. 194, the Second Greek Case, Denmark, Norway, Sweden v. Greece, Appl. 4448/70, 13 YBECHR p. 108, Ireland v. UK, Appl. 5310/71, 41 Coll p. 25. 205 First Greek Case, Denmark, Norway, Sweden, Netherlands v. Greece, Appls. 3321-3/67, 12 YBECHR at p. 194. 203
798
Chapter 16. The ECHR
The complicated and difficult nature of the exception is attested to be the problems encountered with identifying "administrative practice" for the purposes of this exception. It was laid down in the First Greek Case206 that not all administrative practices would be covered by the exception, but only such practices as involved both the repetition of acts and official tolerance which were subject to proof, and it was explained further that such administrative practice did not require merely the repetition of administrative decisions, but consisted rather of repeated factual events which were tolerated. In regard to individual applications under the European Convention, the applicability of the exception has been regarded as being dependent both on whether the applicant has been affected by the situation as a victim and whether administrative practice in the sense defined could be proven to exist.207 Thus, in the case of an individual application it is inadequate that the situation merely exist; it must have a definite adverse impact on the applicant.208
206
Denmark, Norway, Sweden, Netherlands v. Greece, Appls. 3321-3/67, 3344/67, 12 YBECHR at pp. 195—6. See also on administrative practices Ireland v. UK, Appl. 5310/71, 41 Coll. p. 25, Judgment of 16 September 1996, the Akdivar Case, 15 Reports 1996-IV, para. 67. 207 See, e.g., Kjeldsen v. Denmark, Appl. 5095/71, 43 Coll. at pp. 46 ff., Pedersen v. Denmark, Appl. 5926/72, 43 Coll. at pp. 93 ff., Busk Madsen v. Denmark, Appl. 5920/74, cited in 44 Coll. p. 93 note 1, Donnelly and Others v. UK, Appls. 5577-5583/72, 43 Coll. p. 122. See also G v. Belgium, Appl 9107/80, 22 D&R (1983) at p. 79, XandYv. UK, Appl. 9471/81, 36 D&R (1984) at p. 61, the Aksoy Case, Appl. 21987/93, 37 YBECHR (1994) at p. 117 ff. 208 There is a fairly lengthy discussion of the exception which is the subject of this subsection and its scope in Cancado Trindade op. cit. note 140, pp. 187-212. For others who have discussed the issue see e.g., Wai dock, "General Course on Public International Law", 106 Hague Recueil (1962) at pp. 209 ff.; MiillerRappard, "Le droit d'action en vertu des dispositions de la Convention europeenne des droits de I'homme", 4 RBDI (1968) at pp. 489-90, Danielus, "Conditions of Admissibility in the Jurisprudence of the European Commission of Human Rights", 2 HRJ (1969) at pp. 286-7; Boyle and Hannum, "Individual Applications under the European Convention on Human Rights and the Concept of Administrative Practice: the Donnelly Case", 68 AJIL (1974) at pp. 440-53; Castberg, The European Convention on Human Rights (1974) pp. 46-8; McGovern, loc. cit. note 194 at pp. 119-27.
Matters of admissibility proper
799
(f) Raising the Objection Based on Domestic Remedies Because in the area of human rights protection international organs such as the EComHR have the power to investigate ex officio oiproprio motu whether the rule of domestic remedies has been satisfied, the problem of the effect of a failure on the part of the respondent state to raise the objection that domestic remedies have not been exhausted is somewhat more complex. Because the Commission may take up the issue ex officio, the initial failure of the respondent state to raise the objection may not be fatal. On the other hand, once the issue is raised by the Commission, if the respondent state refuses to take up the case that domestic remedies have not been exhausted when it is requested to do so by the Commission, the position taken is that it is deemed to have waived the benefit of the rule. Thus, where in a case in which the Commission raised the issue of domestic remedies, the Belgian Government consistently maintained throughout the oral hearing that it did not intend to rely on the rule of domestic remedies, because the application was directed not against a ministerial decision but against legislation as such, the Commission found that the respondent had waived its right to rely on the rule and, therefore, the Commission did not have to examine whether the applicant should have had resort to the Belgian Conseil d'Etat before seizing the Commission.209 But the practice of the Commission has not been consistent. In X v. Austria, for instance, where the respondent had objected to the failure of the applicant to resort only to certain remedies, the Commission found the application inadmissible, stating ex officio that the applicant should have resorted to a remedy which had not been referred to by the respondent as being exhaustible.210 It is thus not entirely clear how the doctrine of implied waiver as a result of the failure of the respondent state to take up the objection based on local remedies is applicable,
209
Inhabitants ofLouvain and Environs v. Belgium, Appl. 1994/63, 13 Coll. at p. 109. 210 Appl. 2547/65, 20 Coll at pp. 80 ff. The Court has more recently resorted to the concept of waiver or estoppel, where the objection relating to domestic remedies has not been raised in time: see Hasan v. Bulgaria, Judgment of 26 October 2000, 40 ILM at p. 20.
800
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where the body concerned must investigate ex officio whether the rule has been satisfied. The Convention did not advert to the procedure of raising an objection founded on the rule of domestic remedies. Thus, there is no fixed time-limit in the treaty law for the submission of such an objection. In practice, however, some time-limits do operate. The fact that international organs established under human rights conventions have assumed the role of raising ex officio the issue of local remedies, even if the defendant has not raised it, means that any normal time-limit may be superseded by the decision of the organ concerned to raise the issue, which theoretically it may do at any stage in the proceedings. But apart from this, these organs have established a procedure under their rules for the raising of objections based on the rule of domestic remedies which involves certain timelimits, although these happen to be fairly extended. It would seem that time-limits for the raising of the objection based on the rule of domestic remedies are to some extent flexible under the European Convention. There does not seem to be any fixed time-limit for the submission of such an objection, provided it is made in the course of the examination of admissibility.211 Clearly the objection must be raised at some point during the admissibility stage, in accordance with the general principle that all points must be pleaded at the proper time.212 In several cases the objection based on the domestic remedies rule was accepted, although it was only raised at the oral hearings.213 The Commission has held that there was no requirement that a preliminary objection such as this one should be raised at the stage of the written proceedings, it being possible for the objection to be raised later at the oral hearings. 211
See Grille Pasquarelli, "The Question of the Exhaustion of Domestic Remedies in the Context of the Examination of Admissibility of an Application to the European Commission of Human Rights", in Robertson (ed.), Privacy and Human Rights (1973) at p. 336. See now on this matter, van Dijk and van Hoof, op. cit. note 176, pp. 149-50. 212 Morrison, the Developing European Law of Human Rights (1967) p. 86. 213 See, e.g., Retimag v. FRG, Appl. 712/60, 8 Coll. at pp. 36-7, Boeckmans v. Belgium, Appl. 1727/62, 12 Coll at p. 45.
Matters of admissibility proper
801
(g) The Time at which Remedies must be Exhausted It may be important to determine at what point in time local remedies must be exhausted. The issue is whether the exhaustion of local remedies must be completed before the date of filing of the application with the international organ, or whether the critical date may occur later. In general, the critical date would not be so crucial, because even if it has not occurred at the appropriate time, it is possible for another action to be filed after that date occurs, as the effect of dismissal of the action on the ground that it is inadmissible for failure to exhaust local or internal remedies is not to render the matter res judicata. But sometimes in the law of human rights protection it may matter what date is chosen as the critical date because a second application may be excluded by operation of the six-months rule, or by some provision in the compromis or other instrument giving the tribunal jurisdiction. The ECHR has had an opportunity effacing the problem. It took the view in Ringeisen v. Austria214 that, provided the applicant had resorted to internal remedies before he filed his application with the EComHR, it did not matter that he had not received a decision with final effect from the last court before the time of filing the application, although it was necessary for such a decision to be in existence by the time the Commission was called upon to pronounce on the admissibility of the application. Whether because of the existence of the six-months rule, the formal nature of the issue or some other policy reason, the ECHR agreed that "there was a need for flexibility in the application of the rule.215 It would seem that there is a difference in the treatment of the critical date for the exhaustion of remedies between the law of diplomatic protection and the law of human rights protection. (h) The Continuing Situation The issue in the case of a continuing situation is not so much the time of exhaustion of remedies, in the sense discussed in the previous 214
[1971], ECHR Series A. Ibid, at p. 37. For comments on this case see Cancado Trindade, op. cit. note 140, pp. 214 ff. 215
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section, as the time at which the internal or local remedies are deemed to have been exhausted for an application to be lodged without an objection based on the rule of local remedies being tenable. This situation has arisen where there has been a detention while on remand for an unreasonable length of time.216 It has been held by the ECHR in Stogmuller v. Austria that, where there has been such a continuing detention, internal remedies will be deemed to have been exhausted when the first final decision has been given without securing the release of the applicant, it being unnecessary for the applicant to continue thereafter to resort to remedies in order the secure his release in order that remedies may be fully exhausted. It becomes apparent also in these circumstances that the application may relate to a situation which persists after the filing of the application, in respect of which internal remedies, it may be argued, have not been exhausted. The Court said in Stogmuller v. Austria: As to the point whether the proceedings instituted may embrace complaints concerning facts which occurred after the lodging of the application, international law, to which Article 26 refers explicitly, is far from conferring on the rule of exhaustion the inflexible character which the government seems to attribute to it. International law only imposes the use of the remedies which are not only available to the persons concerned but are also sufficient, that is to say capable of redressing their complaints. Thus, in matters of detention while on remand, it is in the light of the circumstances of the case that the question is, in appropriate cases, to be assessed whether and to what extent it was necessary, pursuant to Article 26, for the detained applicant, who had exhausted the remedies before the Commission declared his application inadmissible, to make later on further appeals to the national courts in order to make it possible to examine, at international level, the reasonableness of his continued detention. But such question only arises if the examination of the reasons given by the national courts in their decisions on the appeals made before the lodging of the application has not led to the conclusion that, at that date, the detention had exceeded a reasonable time. Indeed, if the opposite be the case it is clear that the detention while on remand which is held 216
See, e.g., Article 5(3) of the European Convention on Human Rights.
Matters of admissibility proper
803
to have exceeded a reasonable time on the day when the application was lodged must be found, except in extraordinary circumstances, to have necessarily kept such character throughout the time for which it was continued.217 In regard to the need for several applications in the case of continued detention, the ECHR had held earlier in Neumeister v. Austria that: it would be excessively formalistic to demand that an applicant denouncing such a situation should file a new application with the Commission after each final decision rejecting a request for release. This would pointlessly involve both the Commission and the Court in a confusing multiplication of proceedings which would tend to paralyse their working.218 (I) The Burden of Proof Questions relating to the burden of proof in the application of the rule of local remedies have arisen in connection with the implementation of the protection of human rights in the practice under the European Convention on Human Rights. While the respondent which claims that the rule of domestic remedies applies must prove significant elements, the applicant has a share in the burden of proof.219 (7) The Six-months Rule The European Convention on Human Rights provides in Article 26 that an application to the EComHR is inadmissible if it is not brought within six months from the date of the final domestic decision.220 217
[1969], ECHR Series A at pp. 42-3. Ibid, at p. 38. 219 The details of the burden of proof are discussed in Amerasinghe, op. cit. note 139, pp. 291 ff. See also van Dijk and van Hoof, op. cit. note 176, pp. 148-9. For recent cases decided by the ECHR on the burden of proof see, e.g., the Brozano Case, Judgment of 18 December 1986, A.I 11, p. 19, the Akdivar Case, Judgment of 15 September 1996, 15 Reports 1996-IV, para. 68. EComHR decisions of interest are, e.g., Chave nee Mien v. France, Appl. 14461/88, 71 D&R (1991) at p. 153, Kelly v. UK, Appl. 17599/90, 74f D&R (1993) at p. 144. 220 See Appl. 15213/89, M v. Belgium, 71 D&R (1991) at p. 234 for the reason for the rule which is based on the fact that the longer the delay the more difficult the establishment of facts becomes. 218
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In an early case,221 the Commission held that where the injury, which was in any case a continuing one, had taken place before the entry into force of the Convention for the defendant state, the sixmonths period began to run not from the date of the first commission of the injury but from the date of the entry into force of the European Convention for the defendant state and the acceptance by it of the right of individuals to apply to the Commission under Article 25 of the Convention. As a result the application was held to have been filed in time. There are many cases in which the Commission has applied the principle that the terminus a quo for the running of the six-months period is the final decision in the last "effective and sufficient" remedy. This prevents the applicant from resorting to remedies which are not effective and sufficient after such a final decision, with the result that the running of time may be delayed. In X v. FRG the Commission said that the remedies to be taken into account were: those which are capable of providing an effective and sufficient means of redressing the wrongs which are the subject of the international claim;... it is for the Commission itself to appreciate in the light of the particular facts of each case whether any given remedy at any given date appears to have offered to the applicant the possibility of an effective and sufficient remedy for the wrong of which he complains and, if not, to exclude it from consideration in applying the six-months time-limit in Article 26.222
In Xv. UK223 the Commission held that the final decision to be considered for the running of the six-months period was the decision in the applicant's unsuccessful appeal to the Court of Criminal Appeal and not the subsequent refusal of an order of habeas corpus which occurred as a result of the applicant's resort to this remedy. As a result the application was found to have been filed out of time.224 221 222
De Becker v. Belgium, Appl. 214/56, 2 YBECHR p. 236. Appl. 645/59, 7 Coll. at pp. 4-5. See alsoX.v. FRG, Appl. 968/61, 8 Coll.
at p. 27. 223
Appl. 3505/68, 29 Coll. at pp. 62-3. There are several other cases in which the Commission has had to determine which decision was the final decision on the basis of effectiveness or the 224
Matters of admissibility proper
805
In many cases the Commission has been faced with the problem of reopening a case for retrial. In Nielsen v. Denmark,225 for instance, the Commission held that the decision of the Special Court of Revision of Denmark given after the decision of the Danish Supreme Court was the terminus a quo for the running of time because the remedy before the Special Court of Revision offered the applicant an opportunity of an effective and efficient means of redress. On the other hand, in X v. Denmark226 which came later before the Commission, it held that recourse to the Special Court of Revision did not in the applicant's particular case afford an effective and sufficient remedy and the decision of that court could therefore not be considered in determining the point from which the sixmonths period began to run. In circumstances such as these the Commission has consistently applied the test of effectiveness of the local remedies concerned in determining whether they could be considered as the terminus a quo for the running of time.227 The continuing situation has also been the focus of attention in connection with the determination of the terminus a quo for the application of the six-months rule. The Commission has taken a absence of it for the purposes of the running of time: see, e.g., X v. Belgium, Appl. 512/59, 1 Coll. p. 4, X v. FRG, Appl. 1216/61, 11 Coll. p. 5,X.v. FRG, Appl. 2694/65, 23 Coll. p. 97, X v. Sweden, Appl. 3893/68, 33 Coll p. 10, Xv. Austria, Appl. 3972/69, 37 Coll. at pp. 19-20, X v. Sweden, Appl. 4475/70, 42 Coll. p. \3,Xv. Austria, Appl. 5560/72, 45 Coll. p. 64. In cases where there is no remedy, for example, the running of time would commence from the time at which the applicant was actually affected and the time limit cannot be deferred, for example, by lodging a request for pardon, applying to an incompetent organ or asking for reopening of the case: see, e.g., the Christians against Racism and Fascism Case, Appl. 8440/78, 21 D&R (1981), at p. 147, Xv. Sweden, Appl. 10230/82, 32 D&R (1983) p. 303,Altern v. FRG, Appl. 10308/83, 36 D&R (1984) p. 209. 225 Appl. 343/57, Report of the Commission at pp. 32-9. 226 Appl. 4311/69, 37 Coll. at p. 96. 227 See, e.g., X v. FRG, Appl. 918/60, 7 Coll. p. 110, X v. Sweden, Appl. 1739/62, 13 Coll. p. 102, Xv. Austria, Appl. 3591/68, 31 Coll. p. 46. On the exact terminus a quo which may vary given the particular circumstances of the case, see, e.g., Bozano v. Italy, Appl. 9991/82, 39 D&R (1984) p. 147, the Aarts Case, Appl. 14056/88, 70 D&R (1991) p. 208, X v. France, Appl. 9908/82, 32 D&R (1983) p. 266, C v. Italy, Appl. 10899/84, 31 YBECHR (1988) at p. 37.
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Chapter 16. The ECHR
rather flexible approach in this regard, on the basis that restrictive provisions such as those which imposed a time-limit on the filing of applications could not be interpreted broadly.228 In De Becker v. Belgium, where the applicant was complaining of a continuing state of affairs which infringed his rights, the Commission said: when the Commission receives an application concerning a legal provision which involves a permanent state of affairs for which there is no domestic remedy, the problem of the six-months' period specified in Article 26 can arise only after this state of affairs has ceased to exist;... in the circumstances, it is exactly as though the alleged violation was being repeated daily, thus preventing the running of the six months' period.229 As a result of this approach, the Commission has held that in a continuing situation, where the applicant had no domestic remedy to which he might resort, the six-months rule is not rigidly applicable.230 There may be circumstances, however, in which the Commission will not reject the objection based on non-exhaustion of domestic remedies on these grounds. Although rejection of such an objection is not automatic, it will only be for good reasons that the Commission will uphold it. In X v. Austria231 the applicant contended that the delay in filing was due to his ill-health and morale during the period at issue. The Commission found that he had not produced evidence to support these contentions, and therefore had not filed his application within the required six-months period. The Commission has on occasion examined the question whether the running of time under the six-months rule could be 228
See De Becker v. Belgium, Appl. 214/56, 2 YBECHR at p. 238. Appl. 214/56, 2 YBECHR at p. 238. See now Agrotexim Relies S.A. v. Greece, Appl. 14807/89, 35 YBECHR (1992) at p. 46, and van Dijk and van Hoof, op. cit. note 176, pp. 160-62. 230 See, e.g., 23 Inhabitants of Alsemberg and of Beersel v. Belgium, Appl. 1474/62, 11 Coll. at pp. 57-8, Denmark/Norway/Sweden/Netherlands v. Greece, Appls. 3321/67, 3322/67, 3323/67 and 3344/67, 11 YBECHR at p. 778, Huber v. Austria, Appl. 4517/70, 38 Coll. at p. 113, X v. FRG, Appl. 6181/73, 46 Coll. at p. 196. 231 Appl. 6317/73, 2 D&R at pp. 87-8. 229
The function and jurisdiction of the Court
807
interrupted or suspended as such. There are cases in which the Commission has proceeded on the basis that the running of time may be suspended or interrupted, and has examined the question whether there were any justifying circumstances.232 More recently the Commission and the Court have absolved the applicant from observing the six-month rule because of special circumstances.233 The Commission has in many cases determined the final decision from which time began to run. Thus, in Krzycki v. FRG,234 it was held to be the decision dismissing a claim for compensation, while in X.v. Norway,235 the relevant decision, in criminal proceedings, was found to be the decision on the last appeal against conviction. There is also the question of the terminus ad quern in relation to the six-months rule. The Commission has held that this was the date of filing of the pleading with the Secretary General of the Council of Europe.236 THE FUNCTION AND JURISDICTION OF THE COURT UNDER THE OLD AND NEW SYSTEM Under the old system after an application had been declared admissible by the Commission and attempts to reach a friendly settlement had failed, within a period of three months from the date on which the Commission had transmitted its report to the Committee of Ministers, the case could be referred to the European Court of Human Rights (Articles 32(1) and 47). The following could bring 232
See, e.g., X v. Belgium, Appl. 613/59, 3 Coll. p. 2, X v. Sweden, Appl. 3071/67, 26 Coll. p. 76, Xv. FRG, Appl. 4149/69, 36 Coll. p. 67. Recently the Court held that the filing of a letter could effectively be the terminus ad quern: Buscarini v. San Marino, Judgment of 28 July 1999, 38 ILM at p. 742. 233 See the Toth Case, Judgment of 12 December 1991, 34 YBECHR (1991) p. 258, A.224 at pp. 22-3. 234 Appl. 7629/76, 9 D&R at pp. 175 ff. 235 Appl. 6930/75, ibid, at pp. 37 ff. 236 See X v. Norway, Appl. 1468/62, 12 Coll. at pp. 104-5. The rule was derived from the Rules of Procedure of the European Commission. See on this aspect van Dijk and van Hoof, op. cit. note 176, pp. 156 ff.
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Chapter 16. The ECHR
a case before the Court: (i) the Commission, (ii) the contracting state of which the alleged victim was a national, (iii) the contracting state which had brought the case before the Commission, and (iv) the contracting state against which the complaint had been directed (Article 48), (v) in the appropriate case (under Protocol 9) the individual applicant. The main aspects of the new post-Protocol-11 Convention are the following, (i) The present part-time monitoring institutions, namely the European Commission of Human Rights and the European Court of Human Rights, ceased to exist. A new European Court of Human Rights, operating full-time, was set up in Strasbourg, (ii) All applicants will have direct access to the new Court, (iii) All allegations of violations of the Convention will be referred to the Court, including all inter-state cases, (iv) The right of individual application and the jurisdiction of the Court will no longer be of an optional character. The jurisdiction of the Court is compulsory. As already seen, in proceedings before the Commission, under the old scheme the distinction between admissibility and jurisdiction was not always strictly observed. Procedurally the following requirements applied to proceedings before the Court: (i) the case must have been brought before the Commission and must have been declared admissible; (ii) the attempts of the Commission to reach a friendly settlement must have failed; (iii) the case must have been referred to the Court within a period of three months from the date of the transmission of the Commission's report to the Committee of Ministers; (iv) this must have been done by the Commission and/or by one of the states which were competent to do so under Article 48, and/or by the individual applicant in the appropriate case; and (v) the respondent state must have recognized the Court's jurisdiction as compulsory.237 While the Court had complete control over matters of its competence, there were certain strictures imposed by the Convention on the examination of "admissibility" which had been done by the Commission. Apart from difficulties arising from the fact that 237
For the procedure of reference to the Court see van Dijk and van Hoof, op. cit. note 176, pp. 193 ff.
The function and jurisdiction of the Court
809
competence and admissibility were not clearly distinguished, it was clear that competence could arise in the two procedures, and that the same questions of admissibility could be raised. The case-law of the Court shows that issues dealt with in a decision of the Commission concerning competence in respect of an individual application ratione materiae could also be decided by the Court in a judgment on its jurisdiction ratione materiae. The Commission formally did not make a distinction between questions concerning its competence and questions concerning the admissibility of the application. It always framed its decision in the form of a pronouncement on admissibility. However, the examination by the Commission and that by the Court ratione materiae dealt with the same question, viz. whether the application concerned the violation of a right that was protected by one or more provisions of the Convention or the Protocols.238 At first sight the relationship between the competence of the Commission and the powers of the Court as to admissibility issues seemed to be clearer than was the case with respect to issues of competence. In fact, the Convention itself seemed to provide that the Commission was the organ competent to take decisions about admissibility. Nevertheless, the court has exercised jurisdiction in this field as well.239 The view that it was competent to subject questions concerning admissibility to a renewed examination was once more confirmed by the Court in the Klass Case240 and since adopted by the Court. Earlier the Commission had challenged the Court's jurisdiction in matters of admissibility proper. In the Klass Case, however, it took quite a different position. In that case the delegate of the Commission himself invited the Court to examine a particular admissibility condition by requesting the Court in his final submissions to say and judge "Whether, having regard to the circumstances of the case, the applicants could claim to be 'victims' of a violation 238
See the Belgian Linguistics Case, Judgment of 9 February 1967, A.6, p. 13. See the Vagrancy Cases, Judgment of 18 June 1971, A. 12, p. 29, the Ringeisen Case, Judgment of 18 June 1971, A. 13, p. 30. 240 Judgment of 6 September 1978, A.28 at pp. 16-20. 239
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Chapter 16. The ECHR
of their rights guaranteed by the Convention".241 The Court accordingly concluded that the Commission concurred that the Court had jurisdiction in the matter. The first instance in which the Court came to a different conclusion on admissibility from that taken by the Commission occurred in the Van Oosterwijck Case.242 This case concerned the complaint of a transsexual about the refusal of the Belgian authorities to adapt his civil status certificate to his change of sex. The admissibility issue concerned the question as to exhaustion of the local remedies. The Commission had found this requirement to be met and had declared the complaint admissible. The Court, however, decided that it could not deal with the merits.243 The Court did decide questions of admissibility proper in addition to questions of competence, so that its decisions in this regard became precedents. Nevertheless, the Court could only do this if the Commission had held that the application was admissible because otherwise the case could not have come to the Court, so that it did not have complete control over the examination of all cases. Now the Court controls the examination of all cases on matters of jurisdiction completely, subsequent to abolition of the Commission. The decisions of the Commission relating to both competence proper and admissibility proper (even though these were not sometimes distinguishable) will still, however, be relevant for the Court's work, as far as principles go, because the provisions relating to the jurisdiction, i.e., in relation to both competence and admissibility, of the new Court have some similarity to those that covered the jurisdiction of the Commission and of the Court, taken together, under the old system.
241 242
243
Ibid, at p. 15. Judgment of 6 November 1980, A.40 at p. 20. See also the Cardot Case, Judgment of 19 March 1991, A.200 at p. 19.
17 THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
The jurisdictional powers of the CJEC flow mainly from what was the EC Treaty, though there were provisions of other Community treaties such as the ECSC Treaty, which concerned its jurisdiction. The provisions of the EC Treaty and other treaties have now been transformed into the provisions that are incorporated in the EU Treaty of 1997 (TEU) with some changes, but what occurred under the original treaties is still relevant. Article 220 (ex 164) of the present treaty requires the Court to "ensure that in the interpretation and application of this Treaty the law is observed". For the purpose of fulfilling this duty, other provisions of the Treaty confer on it a range of specific powers. These include the power, in what may be contentious cases: (i) at the suit of the Commission or a member state, to pronounce on whether a member state has failed to comply with its obligations under the Treaty; (ii) to exercise the power of review by annulling certain Community acts, declaring regulations illegal and pronouncing on whether institutions have unlawfully failed to act; (iii) to assist national courts called upon to apply provisions of Community law
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Chapter 17. The CJEC
by giving rulings; and (iv) to hear claims relating to compensation for damage caused by the institutions of the community or its servants in the performance of their duties.1 The creation of the European Union at Maastricht led to the Court being given new powers under the new treaty. The most important aspects of the Court's jurisdiction in contentious cases have proved of special importance to the functioning of the legal order are (i) the enforcement action against member states, (ii) power of review, (iii) plenary jurisdiction and (iv) the power to give preliminary rulings. What is significant and singular about the CJEC, an international regional court created by an international treaty, is, among other things, the special nature of its jurisdictional powers ratione personae, ratione materiae and in many other respects.2 (A) ENFORCEMENT ACTIONS AGAINST MEMBER STATES One of the special aspects of the EC legal order is the authority given to the Commission, an institution independent of the member states.3 It is required to act in the general interest of the Community and may bring proceedings before the CJEC against any member state which fails to fulfill its obligations under the Treaty.4 Under 1
On the nature of the Court's jurisdiction in contentious cases see Arnull, "Does the Court of Justice have inherent jurisdiction?", 27 CMLRev (1990) 683. 2 See on the jurisdiction of the CJEC in general Arnull, The European Union and its Court of Justice (1999) pp. 21-74. Earlier works on the subject under the original EC Treaty are Bebr, Development of Judicial Control of the European Communities (1981), Brown and Kennedy, The Court of Justice of the European Communities (1994) pp. 101-225, Hartley, The Foundations of European Community Law (1998), ch. 10 ff., Lasok and Bridge, Law and Institutions of the European Communities (1998) pp. 281-322. See now also, Beaumont, "European Court of Justice and Jurisdiction and Enforcment of Judgements in Civil and Commercial Matters", 48ICLQ (1999) p. 223, Bergeres, Contentieux communautaire (1998) passim. 3 That is, as contrasted with the member states as parties to the Treaty: see Evans, "The Enforcement Procedure of Article 169 EEC: Commission Discretion", 4 ELRev (1979) at p. 443. 4 Art. 213(2) (ex 157(2) EC).
Enforcement actions against member states
813
the Treaty that power derives principally5 from Article 226 (ex 169) which provides: If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.6
Member states have a similar power but this has not been used often in practice.7 Decisions of the Court under Articles 226 and 227 (ex 170), simply required member states (Article 228 (ex 171)) to take the steps necessary to comply with the Court's judgment. After the entry into force of the TEU, the Court now has the authority under Article 228(2) to impose financial sanctions on member states which fail to take such steps. This is an important new power. (1) Under the Article 226 procedure, the Court has accepted, firstly, that it is solely for the Community to decide whether to institute proceedings, consequently, if it decides not to institute proceedings, its decision cannot be challenged by a third party with an interest in having the alleged breach established.8 Secondly, once proceedings are set in motion, the Court insists on strict compliance by the 5
See also Arts. 88(2) (ex 93(2)), 95(9) (ex 100a(4)) and 298 (ex 225). Cf.Art. 237(d) (ex 180(d)). 6 On the implications of this Article see generally Audretsch, Supervision in European Community Law (1986), Brown and Kennedy, Brown and Jacobs' The Court of Justice of the European Communities (1994), ch. 6, Hartley, The Foundations of European Community Law (1998), ch. 10, Dashwood and White, "Enforcement Actions under Articles 169 and 170 EEC", 14 ELRev (1989) p. 388. 7 Under Article 227 (ex 170). France v. United Kingdom, Case 141/78 [1979] ECR p. 2923, is the only case which the Court has decided under this provision. 8 See, e.g., Commission v. Germany, Case C-191/95, Judgment of 29 September 1998, Star Fruit v. Commission [1989] Case 247/87, ECR p. 291.
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Chapter 17. The CJEC
commission with the procedural requirements laid down by Article 226. The Court has said that the purpose of the first paragraph of the article is: to give the Member State an opportunity to justify its position and, as the case may be, to enable to Commission to persuade the Member State to comply of its own accord with the requirements of the Treaty. If this attempt to reach a settlement is unsuccessful, the function of the reasoned opinion is to define the subject-matter of the dispute.9 The reasoned opinion should therefore contain "a coherent statement of the reasons which led the Commission to believe that the state in question has failed to fulfil an obligation under the Treaty".10 Because the reasoned opinion defines the scope of the proceedings, any subsequent application by the Commission to the Court must be founded on the same grounds and submissions. The Court will, therefore, not consider a complaint that was not formulated in the reasoned opinion.11 The reasoned opinion according to Article 226, must also lay down a deadline for compliance by the member state. That deadline determines the relevant date for the purposes of any subsequent proceedings before the Court.12 Thus, compliance with its obligations by the member state concerned after the deadline has passed does not prevent the Commission from bringing the matter before the Court. Although the Commission is free to withdraw its action in these circumstances, the Court has said that it retains an interest in continuing with the case, since a judgment of the Court "may be of substantive interest as establishing the basis of a responsibility that a Member State can incur as a result of its default, as regards other Member States, the Community or private parties".13
9
Amministrazione delle Finanze dello Stato v. Essevi and Salengo, Joined Cases 142 and 143/80, [1981] ECRp. 1413, para. 15. 10 Commission v. Germany, Case 325/82, [1984] ECR p. 777, para. 8. 11 Commission v. Belgium, Case 186/85, [1987] ECR p. 2029, para. 13. 12 Commission v. Italy, Case C-362/90, [1992] ECR I, p. 2353. 13 Commission v. Italy, Case 39/72, [1973] ECRp. 101, para. 11, Commission v. Greece, Case C-29/90, ECR I, p. 1971, para. 12.
Enforcement actions against member states
815
Thirdly, in deciding whether a case is admissible the Court has allowed the Commission a degree of flexibility in the internal procedure it follows in deciding whether proceedings should be brought. In Commission v. Germany14 it was argued that the proceedings were inadmissible because the internal procedure was defective. The matter of the reasoned opinion and the decision to commence proceedings before the Court had been delegated to a single Commissioner instead of the Commission acting as a college taking the decision. The Commission explained that, because of the number of infringement proceedings, Commissioners did not have before them draft reasoned opinions when they decided to issue such measures. However, they did have available to them the facts of each case and details of the provisions of Community law which the Commission's services considered to have been breached. They therefore took the decision in principle to issue the reasoned opinion and to commence proceedings before the Court in full knowledge of the essential facts. Drafting of the reasoned opinion then took place at administrative level under the responsibility of the competent Commissioner. The Court concluded that this procedure was acceptable. It said that, while it was true that the functioning of the Commission was governed by the principle of collegiate responsibility and that therefore "both the Commission's decision to issue a reasoned opinion and its decision to bring an action for a declaration of failure to fulfil obligations must be the subject of collective deliberation by the college of Commissioners", it was not necessary "for the college itself formally to decide on the wording of the acts which give effect to those decisions and put them in final form".15 Commission v. Germany16 illustrates the extent allowed for the Commission's discretion to pursue proceedings before the Court, 14
Commission v. Germany, Case C-191/95, Judgment of 29 September 1998. Ibid. para. 48. See also on the point Commission v. Germany, Judgment of 22 April 1999, Case C-272/99. 16 Case C-422/92 [1995] ECR I, p. 1097. See also Commission v. Belgium, Case C-207/97, Judgment of 21 January 1999. In Commission v. Italy, Case C-362/90 [1992] ECR I, p. 2353, the Court dismissed an application by the Commission as inadmissible on the basis that, by the expiry of the deadline laid down in the reasoned opinion, the alleged infringement no longer existed. 15
816
Chapter 17. The CJEC
while it also demonstrates its occasional reluctance to withdraw actions which are evidently without object. The Commission brought proceedings against Germany for failure to comply with various Council directives on waste. All had been substantially amended or repealed during the administrative or judicial phases of the proceedings. The Court said that it was "somewhat surprising that the Commission brought its action more than six years after the entry into force of the basic German legislation on the shipment of waste, and did so at a time when the Community had in fact changed its policy in that field along the same lines as those followed by that legislation".17 Nevertheless, the Court held that it was for the Commission to decide when it was appropriate to bring an action. It refused to review the exercise of that discretion. The action was therefore declared admissible. The flexibility allowed the Commission may be contrasted with the Court's attitude in proceedings for failure to act under Article 232 (ex 175). If the respondent institution remedies its inaction after the commencement of proceedings, the Court treats the subject matter of the action as having ceased to exist,18 notwithstanding the hypothetical possibility that an action for damages might be brought against the institution concerned under the second paragraph of Article 288 (ex 215). This results in a declaration of inadmissibility. Where the Commission decides to make an application to the Court, it bears the burden of proving that the alleged infringement took place. That burden is a heavy one. The Court requires the Commission to indicate the specific complaints on which it is being asked to rule as well as the legal and factual particulars on which those complaints are based.19 The application may then be declared inadmissible because there is manifestly no case, i.e. that no prima facie case appears to exist. Thus, where a member state is required by a directive to inform the Commission of the measures it has introduced to comply with it, failure to satisfy that requirement may 17 18 19
[1995]ECRI,para. 17. See, e.g., Parliament v. Council Case 377/87, [1988] ECR p. 4017. Commission v. Greece, Case C-347/88, [1990] ECR I, p. 4747.
Enforcement actions against member states
817
amount to a breach of Community law, but it will not entitle the Commission to assume that no implementing measures have in fact been adopted.20 In Commission v. Denmark21 the Commission sought a declaration that Denmark had failed to apply properly a directive on tax exemptions for means of transport temporarily imported from one member state into another. The Court dismissed the application as inadmissible on the basis that it "does no more than mention a number of provisions of the directive, certain judgments of the Court and Articles 5 [now 10], 8a [now 18], 95 [now 90] and 189 [now 249] of the Treaty; the application does not given any details of the facts and circumstances which allegedly gave rise to the failure by the Danish authorities to fulfil their obligations".22 (2) The alternative procedure to Article 226 is that under Article 227 which permits any member state to bring another member state before the Court if it considers the latter has failed to fulfil an obligation under the Treaty. This form of action has rarely been used. Like the procedure under Article 226, Article 227 procedure is in successive phases. The first phase requires the complaining state to bring the alleged infringement before the Commission. The Commission must then deliver a reasoned opinion, as under Article 226, after allowing the states concerned to submit their observations. Only then (or if the Commission has not delivered an opinion after three months) may the complaining state bring the defaulting state before the Court. The procedure under Article 226 is preferred to that under Article 227. Only one case under Article 227 has proceeded to judgment: France v. United Kingdom.23 In that case the UK was adjudged in breach of its obligations under the EC Treaty by adopting a national measure governing the minimum size of mesh for fishing nets used in British territorial waters. As required by Article 227(3) the Commission had given a reasoned opinion which was in support of the French application and also intervened in the proceedings. 20 21 22 23
Commission v. Netherlands, Case 96/81, [1982] ECR p. 1791. Case C-52/90, [1992] ECR I, p. 2187. Ibid. para. 18. Case 141/78, [1979] ECR p. 2923.
818
Chapter 17. The CJEC
(3) In addition, certain categories of infringements of the Treaty by member states may be the subject of a more expeditious procedure which dispenses with the requirement of the Commission delivering a reasoned opinion (Article 226). Instead, the Commission may proceed directly to the taking of a binding decision or bring the matter directly before the Court of Justice. Under Article 88 (ex 93), where state aid distorts or threatens to distort competition within the common market, the Commission, after giving notice to the parties concerned to submit their comments, may proceed to decide that the state concerned shall abolish or alter such aid within a prescribed time. If the state does not comply with this decision within the time prescribed, the Commission (or any other interested state) may, pursuant to Article 88(2), refer the matter to the Court of Justice direct. Of course, the decision (unlike the reasoned opinion under Article 226) is open to challenge by the state as a binding act under Article 230 (ex 173). This special procedure under Article 88 resembles the enforcement procedure under Article 88 ECSC Treaty. Under the latter provision, the Commission took a decision that the state was in breach of the ECSC Treaty, it did not merely deliver an opinion. It differs, however, from that Article in that under Article 88 it is the Commission which must seize the Court in the event that the offending state has not complied with the decision, whereas Article 88 ECSC Treaty leaves it to the state to challenge the decision before the Court. An example of the special procedure under Article 88 is provided by the Pig Producers Case.24 The Commission, pursuant to the Article, in the circumstances of the case, took a decision requiring the UK to terminate a subsidy for pig producers "forthwith". The UK Government did not comply. The Commission then began an enforcement action under Article 88. The Court issued an intervention injunction. But before the action could proceed to judgment the subsidy ceased. The Court, therefore, had no opportunity to exercise jurisdiction it undoubtedly had.
24
p. 921.
Commission v. United Kingdom, Cases 31/77 and 53/77R, [1997] ECR
The jurisdiction to review
819
The procedure under Article 95 (ex 100a) is similar to that under Article 88.25
(B) THE JURISDICTION TO REVIEW (1) Annulment Under Article 230 (ex 173) the Court has jurisdiction to review the legality of Community acts. The jurisdiction relates to the extensive legislative powers which the Treaty gives the political institutions. In its approach to its jurisdictional powers in this regard, the Court has been liberal in some respects, while in others it has taken a stricter line. The present Article 230 provides: The Court of Justice shall review the legality of acts adopted jointly by the European Parliament, and the Council, of acts of the Council, of the Commission, and of the ECB other than recommendations or opinions, and of acts of the European Parliament intended to produce legal effects vis-a-vis third parties. It shall for this purpose have jurisdiction in actions brought by a Member State, the Council or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The Court of Justice shall have jurisdiction under the same conditions in actions brought by the European Parliament, by the Court of Auditors and by the ECB for the purpose of protecting their prerogatives. Any natural or legal person may, under the same conditions, institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former. 25
The similarities (and important differences) between Arts. 95 and 88 are discussed by J. Flynn, "How Will Article 100a(4) Work? A Comparison with Article 93", 24 CMLRev (1987) p. 689. Article 95(9) provides for a state or the
820
Chapter 17. The CJEC The proceedings provided for in this Article shall be instituted within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be.
(a) As regards the type of act which is susceptible of review, the Court's approach has been a liberal one. Under the first paragraph, proceedings may be brought in respect of acts adopted jointly by the European Parliament and the Council and acts of the Council, of the Commission, and of the ECB other than recommendations or opinions. According to Article 249 (ex 189), which describes various types of acts permissible under the Treaty, recommendations and opinions have no binding force, though they may not be without legal significance.26 The other categories of acts mentioned in Article 249 (regulations, directives, and decisions) do have binding force and are obviously in principle susceptible to review under Article 230. On the other hand, the question whether measures adopted by the Council or the Commission which produce legal effects, but which do not take the form of any of the binding acts referred to in Article 249, are susceptible of review under Article 230 first came up for consideration in the ERTA Case.21 There the Commission sought the annulment of certain "conclusions" reached by the Council concerning the negotiating position to be adopted by the member states in discussions on a European road transport agreement. The Court took the view that Article 173 (now 230) treats as acts open to review by the Court all measures adopted by the institutions which are intended to have legal force and that it would be inconsistent with the purpose of that Article, which was to ensure that the law was observed in accordance with Article 220 (ex 164) Commission to bring the matter directly before the Court in derogation of the provisions of Articles 226 and 227. 26 See Grimaldi v. Fonds des Maladies Professionnelles, Case C-322/88, [1989] ECR p. 4407. See also, Arnull, "The Legal Status of Recommendations", 15ELRev(1990)p. 318. 27 Commission v. Council, Case 22/70, [1971] ECR p. 263. See also France v. Commission, Case C-366/88, [1990] ECR I, p. 3571.
The jurisdiction to review
821
EC, to limit the availability of this procedure merely to the categories of measures referred to by Article 249 (ex 189).28 It concluded that an action for annulment must therefore be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects.29 There is great value in the conclusion reached in the ERTA Case in preserving the institutional balance. For example, in France v. Commission, the Commission had withdrawn a proposal for a directive on pension funds following failure to reach agreement in the Council. A few days later, it published in the Official Journal a Communication on the same subject which bore a marked similarity to the withdrawn proposal. When France sought the annulment of the Communication, the Commission argued that it was not of a binding nature but that it was an interpretive document which merely spelled out the consequences in a particular context of rules laid down in the Treaty itself. The Court held that the wording of the Communication was imperative in nature, that it did more than just clarify the application of provisions of the Treaty and, therefore, constituted an act intended to have legal effects of its own which the Commission had no power to adopt.30 The Communication was therefore annulled by the Court. However, a provisional measure intended to pave the way for the final decision in a procedure involving several stages cannot be challenged under Article 230.31 In the Airport Transit Visas Case}2 the Court developed its approach further. The applicant sought the annulment pursuant to Article 230 (ex 173) of a joint action adopted by the Council under Article K.3(2) of the Maastricht version of the TEU (now Article 31). The argument of the respondent was that the Court had no jurisdiction, because the contested act had been adopted outside the framework of the EC Treaty. Article 47 (ex M) of the TEU, 28
Paras. 39 and 41. Para. 42. 30 Case C-57/95, [1997] ECR I, p. 1627 at para. 23. See also Les Verts v. Parliament, Case 294/83 [1986] ECR p. 1339, Council v. Parliament, Case 34/86 [1986] ECR p. 2155. 31 IBMv. Commission, Case 60/81, [1981] ECR p. 2639. 32 Commission v. Council, Case C-l70/96, [1986] ECR I, p. 2736. 29
822
Chapter 17. The CJEC
which the Court had jurisdiction under Article 46 (ex L) to apply, made it clear that measures such as the contested joint action were not intended to affect the EC Treaty. The Court concluded that "It is therefore the task of the Court to ensure that acts which, according to the Council, fall within the scope of Article K.3(2) of the Treaty on European Union, do not encroach upon the powers conferred by the EC Treaty on the Community",33 assumed jurisdiction and annulled the act. The result is that the member states may not use the TEU to avoid the decision-making processes laid down in the EC Treaty in fields which fall within the scope of the latter. (b) The scope of the jurisdiction relating to the grounds on which the annulment of a Community act may be sought (second paragraph of Article 230 (ex 173)) is not determined by the Court in a narrow formalistic manner. What has happened is that almost any well substantiated infringement of Community law, other than a really minor one, may be invoked to establish the illegality of a measure and may in principle lead to its annulment. This is a consequence of the fact that the various grounds referred to in the Article are framed in such wide terms that they encompass amongst themselves almost all conceivable cases of illegality. The third ground, for example, mentioned: "infringement of this Treaty or of any rule of law relating to its application", is so broad that it is capable of encompassing the other three. This ground has been applied by the Court to strike down even measures which fail to comply with general principles of law, such as legal certainty, nondiscrimination, or proportionality.34 (c) The deadline laid down in the fifth paragraph of Article 230 within which proceedings must be brought is relatively short. It is somewhat relaxed by the Rules of Procedure of the Community Courts. These clarify the moment from which time starts running and allow extra time on account of the distance between Luxembourg and the applicant's home or registered office.35 The failure to 33
At para. 16. See Arnull, op. cit. note 2, chapter 6, for the general principles of law in question. 35 Arts. 80 and 81 and Annex II of the Rules of Procedure of the Court; Arts. 101 and 102 of the Rules of Procedure of the CFI. 34
The jurisdiction to review
823
observe time-limits would normally result in irreceivability (inadmissibility). (d) Where an application under Article 230 is successful, the jurisdiction that the Court has is to declare the contested act void.36 It has no authority to order the defendant institution to take any particular steps. However, the institution is required by the Treaty to do what is necessary to comply with the judgment.37 In principle, a declaration by the Court that a measure is void takes effect from the moment the measure was adopted and is good against the whole world. In addition the second paragraph of Article 231 (ex 174) provides that, where a regulation is declared void, the Court may declare some of its effects definitive. Thus, the potential threat to legal certainty which might arise from the disappearance of the contested regulation is avoided. Where a threat to legal certainty was liable to arise from the annulment of a directive, the Court invoked the second paragraph of Article 231 to preserve the effects of the directive until it had been replaced.38 (e) There were and are some problems connected with jurisdiction ratione personae. While legitimation active and passive in regard to certain institutions only was clear under the pre-Maastricht EC Treaty, now Article 230 makes quite clear the scope of the Court's jurisdiction in regard to the institutions therein mentioned. First, there is the problem of the European Parliament. Though the problem is of historical interest it is important to understand how the Court dealt with it. Before the amendments introduced at Maastricht Article 230 contained no reference to the European Parliament which it now does. Thus, the question whether the Parliament could sue (legitimation active} or be sued (legitimation passive) became the subject of great controversy, particularly after 36
Art. 231 (ex 174). Art. 233 (ex 176). 38 See Parliament v. Council, Case C-295/90, [1992] ECR I p. 4793. Advocate General Jacobs pointed out that "to declare a directive void without preserving some or all of its effects might pose as serious a threat to legal certainty as a similar declaration in respect of a regulation..." ibid, at pp. 4227-9. The directive annulled concerned the right of residence for students. 37
824
Chapter 17. The CJEC
the first set of direct elections in 1979.39 The standing of the European Parliament, thus, created problems. The Court had had no difficulty in allowing the Parliament to benefit from provisions which referred in general terms to the institutions.40 Under the original version of Article 230, however, the status of the European Parliament was more problematic. The Court was, thus, called upon to address the issue. The question of the Parliament's legitimation passive was dealt with in Les Verts v. European Parliament.41 The principle it applied in order to permit actions against the Parliament was based on denial of justice. It concluded that: An interpretation of Article 173 of the Treaty which excluded measures adopted by the European Parliament from those which could be contested would lead to a result contrary both to the spirit of the Treaty as expressed in Article 164 and to its system. Measures adopted by the European Parliament in the context of the EEC Treaty could encroach on the powers of the Member States or of the other institutions, or exceed the limits which have been set to the Parliament's powers, without it being possible to refer to them for review by the Court. It must therefore be concluded that an action for annulment may lie against measures adopted by the European Parliament intended to have legal effects vis-a-vis third parties.42
The Les Verts Case had implications for the legitimation active of the Parliament under Article 173 (now 230).43 The Court's 39
See Bradley, "The Variable Evolution of the Standing of the European Parliament in Proceedings before the Court of Justice", 8 YEL (1988) p. 27; DeLousse, The European Court of Justice (1988) pp. 97-104. 40 See, e.g., Roquette Freres v. Council, Case 138/79, [1980] ECR p. 333 and Maizena v. Council, Case 139/79, [1980] ECR p. 3393 (Art. 37 EC Statute), European Parliament \. Council, Case 13/83, [1985] ECR p. 1513 (Art. 175 EEC 41 Case 294/83, [1986] ECR p. 1339. See Arnull, op. cit. note 2 p. 35, where the case is discussed, and Brown and Kennedy, op. cit. note 2 pp. 127-30, on the issue of legitimation passive. 42 Ibid, at para. 25. 43 This aspect also being of historical interest, reference may be made to Arnull, op. cit. note 2 pp. 36-8.
The jurisdiction to review
825
departure in that case from the strict wording of the article set a precedent for no longer maintaining that the Parliament had no right to bring annulment proceedings simply because Article 173 did not refer to it. The cases in which the issue of the European Parliament's legitimation active was discussed and the Court's approach really developed were the Comitology Case,44 the Chernobyl Case45 and Parliament v. Council46 In the first of these cases the Parliament launched its first proceedings under Article 173 against the Council. It contended that Article 173 must be interpreted extensively in favor of the Parliament, as it had been against the Parliament in, inter alia, Les Verts. But the analogy was not exact, because the Parliament could be sued as that was necessary to complete the availability of judicial review of all Community acts and so secure the rule of law. There was no corresponding justification for giving the Parliament an unqualified right to sue. The Court firmly rejected any right of the Parliament to sue under Article 173. It was not impressed by the argument either of symmetry or justice: Parliament had its own political machinery for making its voice heard. Advocate General Darmon, however, in his opinion, had proposed a compromise: while not contending that the Parliament had an unqualified right of action under Article 173, he argued that it would be in a uniquely unfavorable position compared not only with other institutions and member states but even with private parties. This compromise, while rejected in the Comitology Case., found favour with the Court soon afterwards in the second case. This concerned a decision taken by the Council, allegedly in breach of its obligation to consult the Parliament. The Court modified its view in the Comitology Case by holding that the Parliament did have standing to challenge acts of the Council or Commission under Article 173 where this was necessary to protect its prerogatives. In the Chernobyl Case it was recognized that the Commission and the Parliament would not always agree and that the former could 44 45 46
Parliament v. Council, Case 302/87, [1988] ECR p. 5615. Parliament v. Council, Case C-70/88, [1990] ECR I, p. 2041. Case C-295/90, [1992] ECR I, p. 1493 (right of residence for students).
826
Chapter 17. The CJEC
not be expected to defend the interests of the latter where the two were in disagreement. The later decision in Parliament v. Council41 shows that the Court in the Chernobyl Case intended to sever definitively the link established in the Comitology Case between the right of the Parliament to bring annulment proceedings and the attitude of the Commission. In Parliament v. Council the Court dismissed the argument of the UK that the Parliament's right of action arose only where it was not in agreement with the Commission. The Court did not expressly overrule the Comitology Case in the Chernobyl Case. However, in the former the Court said that the relevant provisions did not enable the Court to permit the Parliament to bring annulment proceedings. In the latter the Court allowed the Parliament to do just that. But the Court did not say in the later case that Article 173 (now 230) permitted the Parliament to bring annulment proceedings. Instead the Court cited the former case as authority for the opposite view.48 What the Court apparently did in the later case was to create a new right of action, analogous to but separate from the right of the other institutions to bring annulment proceedings under Article 173 (now 230) in order to preserve the institutional balance created by the Treaties and enable it to fulfil its task of ensuring respect for the law.49 Now under Article 230 the Parliament expressly enjoys standing where the purpose of the proceedings is to protect its prerogatives. Secondly, the issue of the standing of private parties calls for attention. In order to bring proceedings for annulment, an applicant must show that he satisfies the conditions regarding standing laid down in the Treaty. Article 230 (ex 173) distinguishes three categories of applicant. The member states, the Council and the Commission are presumed to have an interest in the legality of all Community acts and as a result do not have to establish standing to bring proceedings for annulment. Now the European Parliament, 47 48
Ibid.
See ibid., paras. 12-14. See Arnull, "Does the Court of Justice Have Inherent Jurisdiction?", 27 CMLRev (1990) p. 683. 49
The jurisdiction to review
827
and the European Central Bank and the Court of Auditors, which are in the second category enjoy standing where the purpose of the proceedings is to protect their prerogatives. The third category comprises natural and legal persons or so-called private applicants, that is, individuals, companies, unincorporated associations, and the like.50 The members of this category are often described as nonprivileged because the Treaty appears only to allow them to challenge acts which are, in substance, if not in form, decisions which are either addressed to them or of direct and individual concern to them. The Treaty does not give such applicants an express right to challenge regulations or directives.51 The attitude of the Court to the locus standi of private parties has on the whole been somewhat restrictive. In general it may be said that it is difficult for a non-privileged applicant to establish standing to challenge any act which is not addressed to him.52 Particularly problematic have been the requirement of a decision and the requirement of individual concern.53 However, in general there has been a relaxation recently of a strict attitude. 50
On the concept of a legal person, see Sinochem Heilongjiang v. Council, Case T-161/94, [1996] ECR II, p. 695 at para. 31. 51 See Albors-Llorens, Private Parties in European Community Law (1996). See also Saggio, "Appunti sulla recevibilita del ricorsi d'annullamento proposti da persone fisiche e giuridiche in base al I'articulo 173, quarto comma, del Tattato CE", 37 Rivista di diritto europeo (1997) p. 401, Harding, "The Private Interest in Challenging Community Actions", 5 ELRev (1980) p. 354. 52 See Arnull, "Private Applicants and the Action for Annulment under Article 173 of the EC Treaty", 32 CMLRev (1995) p. 7, Neuwhal, "Article 173, paragraph 4 EC: Past, Present and Possible Future", 21 ELRev (1996) p. 17, Nihoul, "La recevabilite des recours en annulation introduits par un particulier a 1'encontre d'un acte communautaire de portee generale", 30 RTDE (1994) p. 171, Usher, "Judicial Review of Community Acts and the Private Litigant" in Campbell and Voyatzi (eds.), Legal Reasoning and Judicial Interpretation of Community Law (1996) p. 121, Vandersanden, "Pour un elargissement du droit des particuliers d'agir en annulation contre des actes autres que les decisions qui leur sont adressees", 31 CDE (1995) p. 535, Waelbroeck and Verheyden, "Les conditions de recevabilite des recours en annulation des particuliers centre les actes normatifs communautaires", 31 CDE (1995) p. 399. 53 The requirement of "concern" has in general proved less of an obstacle: see Piraiki-Patraiki v. Commission, Case 11/82, [1985] ECR p. 207. See also
828
Chapter 17. The CJEC
Where the contested measure was labeled a regulation, the applicant first had to establish that it was in substance a decision. In this connection there were two important principles established. The Court recognized, on the one hand, that the label was not decisive and that, where the annulment of some only of the provisions of an act was sought, it was the proper classification of those provisions, and not that of the act as a whole, which mattered.54 On the other hand, a measure which applied to an entire class defined in abstract terms was regarded as a true regulation, even if in practice it was possible to determine the number of even the identity of those affected by it.55 The requirement of individual concern is closely related to that of a decision. The Court stated that "In order for a measure to be of individual concern to the persons to whom it apples, it must affect their legal position because of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as a person to whom it is addressed".56 Where an applicant could show that he was affected by the contested measure because he was a member of a class which was closed, both in theory and in practice, at the time the measure was adopted, he would generally have been able to establish individual concern.57 However, where the class of persons affected by a measure was potentially an open one, it was much more difficult to do so.58 CCE de la Societe Generate des Grandes Sources and Others v. Commission, Case T-96/92, [1995] ECR II, p. 1213 and CCE de Vittel and Others v. Commission Case T-12/93, [1995] ECR II, p. 1247. 54 E.g., Producteurs de Fruits v. Council, Joined Cases 16 and 17/62, [1962] ECR p. 471. 55 E.g., Calpak v. Commission, Joined Cases 789 and 790/79, [1980] ECR p. 1949. 56 Deutz und Geldermann v. Council, Case 26/86, [1987] ECR p. 941, para. 9. See also, e.g., Plaumann v. Commission, Case 25/62, [1963] ECR at p. 107, CAMv. Commission, Case 100/74, [1975] ECR p. 1393, para. 19. 57 International Fruit Company v. Commission, Joined Cases 41 to 44/70, [1971] ECR p. 411, paras. 21 and 22. See also Toepfer v. Commission, Joined Cases 106 and 107/63, [1965] ECR p. 405, Bock v. Commission, Case 62/70, [1971] ECR p. 897, Exportation des Sucres v. Commission, Case 88/76 [1977] ECR p. 709. 58 E.g., Deutsche Lebensmittelwerke v. Commission, Case 97/85, [1987] ECR p. 2265, GlucoseriesReuniesv. Commission, Case 1/64, [1964] ECR p. 413.
The jurisdiction to review
829
In spite of this strict approach the Court in due course was ready to allow annulment proceedings to be brought by private applicants who enjoyed the right to be heard during an administrative procedure culminating in the adoption of a Community act. Such procedures are particularly prominent in three fields: competition, dumping, and state aid.59 The Court's earlier approach was especially ill-suited to the second of those fields, since anti-dumping duties could only be imposed by regulation and such regulations were in principle legislative in nature, applying to all the traders concerned. It would obviously have been unacceptable, if such measures had been immune to challenge by such traders.60 This more relaxed approach in certain areas eventually affected the Court's attitude in other fields. Yet, cases where the Court did demonstrate a more liberal approach were characterized by a variety of special features so that their extended application was not automatic. In Piraiki-Patraiki v. Commission?1 the applicants sought the annulment of a Commission decision authorizing France to restrict imports of cotton yarn from Greece during a specific period. The Court did hold that the contested decision was of individual concern to those of the applicants which, prior to its adoption, had entered into contracts to be performed while it was in force, insofar as the execution of those contracts was wholly or partly prevented by its adoption. The Court ruled that the Commission had been in a position to discover the existence of contracts to be performed during the period of application of the contested decision. Parties to such contracts were therefore individually concerned "as members of a limited class of traders identified or identifiable by the Commission and by reason of those contracts particularly affected by the decision at issue". However, the Court referred as relevant to the fact that Article 130 of the Greek Act of Accession required the Commission to take account of the likely effect the measures it was proposing to authorize would have on 59
See Arnull, "Private Applicants and the Action for Annulment under Article 173 of the EC Treaty" 32 CMLRev (1995) at pp. 30-3. 60 See Arnull, "Challenging EC Anti-dumping Regulations: the Problem of Admissibility", 13 ECLR (1992) p. 73. 61 Case 11/82, [1985] ECRp. 207.
830
Chapter 17. The CJEC
such traders, which may mean that because of this special factor the principle may not be applicable in other cases. For example, the Court later held that the reasoning in this case did not apply where the defendant institution was not required to inquire into the effect of its action on pre-existing contractual arrangements.62 The question of individual concern was an issue in the Les Verts Case also. The applicant sought the annulment under Article 173 (now 230) of two measures adopted by the European Parliament, in 1982 and 1983 respectively, concerning the reimbursement of election expenses incurred by political groupings taking part in the 1984 European elections. The contested measures affected all groupings participating in those elections, whether or not they were already represented in the Parliament. However, groupings which were already represented took part in the procedure leading to the adoption of the contested measures. The applicant, which was not represented in the Parliament at the time the contested measures were adopted but which intended to contest the 1984 elections, alleged that the measures discriminated in favor of groupings which were already represented. One issue was whether the applicant was individually concerned by the contested measures. On the basis of the Court's existing case law, this might have seemed an impossible task, since, at the time the contested measures were adopted, political groupings which were not represented in the Parliament but which might wish to contest the 1984 elections, and which would therefore be affected by the measures, could not be identified. That is to say, the class to which the applicant belonged was an open one. The only class the members of which could be identified at the time the measures were adopted comprised groupings which were already represented, but they were not interested in challenging the measures. The Court noted the unprecedented circumstances of the action and said that, because the main measure being challenged concerned "the allocation of public funds for the purpose of preparing for elections and it is alleged that those funds were allocated unequally, it cannot be considered that only groupings which were 62
Bumlux and Others v. Council, Case C-209/94, [1996] ECR I, p. 615.
The jurisdiction to review
831
represented and which were therefore identifiable at the date of the adoption of the contested measure are individually concerned by it" and concluded that the applicant association, which was in existence at the time when the 1982 Decision was adopted and which was able to present candidates in the 1984 elections, was individually concerned by the contested measures.63 It, therefore, had jurisdiction. The Court continued to apply its traditional approach in other contexts,64 suggesting that the Les Verts Case was on the issue of locus standi of individuals confined to its own special facts. But because the Court had departed from the conventional test in several cases, it needed to be reexamined. A decisive break with the Court's earlier case law, on both the requirement of individual concern and that of a decision, appeared to have been made in Codorniu v. Council,65 which concerned the validity of a regulation on the description and presentation of sparkling wines. The Court accepted that true regulations could in principle be challenged by the applicants if they could establish individual concern. The Court held that the applicant was indeed individually concerned because the contested regulation prevented it from using a term which it had registered as a trade mark in 1924 and had traditionally used both before and after that date. That factor, according to the Court, was enough to distinguish the applicant from all other traders affected by the regulation. Soon after this case jurisdiction in such cases was transferred to the CFI.66 By confirming that a private applicant could challenge a 63
Case 294/83, [1986] ECR p. 1339 at paras. 35 and 37. The measures were annulled later. See also Joliet, "The Reimbursement of Election Expenses: a Forgotten Dispute", 19 ELRev (1994) p. 636. 64 See, e.g., Deustche Lebensmittelwerke v. Commission, Case 97/85, [1987] ECR p. 2265. 65 Case C-309/89, [1994] ECR I, p. 2853. See also Usher, "Individual Concern in General Legislation—10 Years on", 19 ELRev (1994) p. 636. The Court's judgment built on its ruling in Case C-358/89, Extramet Industries v. Council, [1991] ECR I, p. 2501, a dumping case to which Advocate General Lenz attached particular importance. 66 See Dec. 93/350, Official Journal 1993 L144/21, Dec. 94/149 Official Journal 1994 L66/29.
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Chapter 17. The CJEC
true regulation and apparently relaxing the requirement of individual concern, the judgment seemed to indicate that the Court was more willing to allow natural and legal persons to have standing in actions for annulment. The CFI, however, was less cooperative. In a series of cases, annulment proceedings brought by private applicants were dismissed as inadmissible by the CFI on the basis of the conventional test of standing.67 The CJEC itself was in no hurry to reinforce the liberal attitude shown in the Codorniu Case. In Asocarne v. Council68 the Second Chamber of the Court endorsed the CFI's view that a measure of general application could only be of individual concern to an applicant if its "specific rights" were adversely affected. It said that that was true of the applicant in the Codorniu Case, because the contested regulation prevented it from using its trade mark but that it was not true of the applicant in the Asocarne Case, because it was affected only because it was active in the sector covered by the contested act. The Court also took a restrictive approach in Buralux and Others v. Council,69 where the Court upheld an Order of the CFI dismissing as inadmissible an application for the annulment of a regulation restricting movements of waste within the Community. The applicants were undertakings engaged in the transport of waste from Germany to France. Although the contested regulation had particularly serious consequences for their business, the Court concluded that the applicants were affected by it "only in their objective capacity as economic operators in the business of waste transfer between Member States, in the same way as any other operator in that business .. .",70 and that therefore, they were not individually concerned. Any further relaxation in the rules relating to locus standi applicable to private applicants was not encouraged by the CJEC or CFI. In Greenpeace and Others v. Commission, the applicants, three 67
See Arnull, "Challenging Community Acts - An Introduction", in Micklitz and Reich (eds.), Public Interest Litigation before European Courts (1996) at pp. 47-51. 68 Case C-10/95 P, [1995] ECR I, p. 4149. 69 Case C-209/94 P, [1996] ECR I, p. 615. 70 Ibid, at para. 28.
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associations concerned with the protection of the environment together with a number of individuals, sought the annulment of a Commission decision granting Spain financial assistance towards the construction of two electric power stations in the Canary Islands. The applicants specifically invited the CFI to take a liberal approach on the question of admissibility and to accept that standing could derive not only from purely economic considerations but also from a concern for the protection of the environment. The applicants claimed that in each member state associations set up for the protection of the environment which were sufficiently representative of the interests of their members, or which satisfied certain formalities, were entitled to challenge administrative decisions alleged to breach rules on environmental protection. The CFI refused to accept that the standing of the applicants should be assessed by reference to criteria other than those laid down in the case law.71 It concluded that the individual applicants were affected by the contested measure in the same way as anyone living in, working in, or visiting the area concerned and that they could not therefore be considered individually concerned, and also that the same was true of the applicant associations, since they had been unable to establish any interest of their own distinct from that of their members, whose position was no different from that of the individual applicants. On appeal, the Court declared that the approach taken by the CFI was "consonant with the settled case-law of the Court of Justice" and dismissed the appeal.72 It now seems to be established that regulations may in principle be challenged by private applicants. It also seems to have been accepted that a private applicant may challenge a directive, either on the basis that it constitutes a disguised decision or simply that it is of direct and individual concern to the applicant. These options are, however, available only in exceptional circumstances. It also seems that the traditional test of individual concern still prevails. 71
Case T-585/93, [1995] ECR II, p. 2205. Case C-321/95 P, [1998] ECR I, p. 1651. See also France v. Comafrica and Dole, Case C-73/97, Judgment of 21 January 1999, where the Court quashed a decision of the CFI and dismissed an application for annulment as inadmissible. 72
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(f) The jurisdiction to annul in staff cases has been covered in Chapter 15 in connection with international administrative tribunals. (2) Action for Inactivity The authors of both the ECSC and the EC Treaties recognized that a remedy should be available not only where an institution had acted illegally but also where it had failed to act. Article 175 EC (now Article 232 TEU) and Article 35 ECSC sought to fill this gap. The first paragraph of the present Article 232 states: Should the European Parliament, the Council or the Commission, in infringement of this Treaty, fail to act, the Member States and the other institutions of the Community may bring an action before the Court of Justice to have the infringement established.73
The third paragraph of Article 232 confers upon individuals and companies the right to complain to the Court that an institution has failed to address to the complainant any act other than a recommendation or an opinion. Finally the new fourth paragraph of Article 232, added in the TEU, enables the ECB to sue or be sued. It should be noted that Article 232 permits the European Parliament, as one of the "other institutions of the Community", to bring the Council or Commission before the Court for a failure to act. The Parliament, having threatened to do so on several previous occasions, exercised this right for the first time in proceedings which it introduced against the Council in 1983 complaining of the latter's failure to adopt an adequate transport policy as required by Article 74 et seq. of the EC Treaty. The Court rejected various objections by the Council to the admissibility of the action and admitted the action. The action was partially successful. An action under Article 232 is only admissible if the institution in default has first been called upon to act. If then, within two months of being so called upon, the institution has not defined its 73
European Parliament v. Council, Case 13/3, [1985] ECR p. 1513
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835
position, the action may be brought within a further period of two months. This procedure is prescribed by Article 232(2). There are two further obstacles to success in proceedings under Article 232 which are more difficult to overcome. The first arises from the requirement under paragraph Article 232(3) that the applicant (if not a member state or a Community institution) must apparently show that the desired act would have been addressed to him, when it will often be the case that he wanted the defendant (normally the Commission) to take a decision in respect of someone else: for example, against another undertaking which he alleges is infringing the EC competition rules.74 Secondly, the defendant will be able to meet the complaint of failure to act if it has "defined its position" (Art. 232(2)). As the cases show, the Commission may be able to "define its position" without adopting a measure which can be challenged under Article 230 (ex 173).75 In contrast, under the ECSC Treaty, the decisions of the Court established that a complaint of inactivity (under Article 35) could be met only by a binding act, which will itself be liable to challenge under Article 33. The absence of a defined position could result in inadmissibility.76 (3) Illegality The Court has jurisdiction under Article 241 (ex 184) to entertain an action based on I'exception d'illegalite, drawing from a concept of French administrative law. In Community law this is a means of challenging an illegal act, even after the lapse of the time limit
74
See the opinion of Advocate General Dutheillet de Lamothe in Mackprang v. Commission, Case 15/71, [1971] ECR at p. 807-8. 75 See, for example, Lutticke v. Commission, Case 48/65, [1966] ECR p. 19, and GEMA v. Commission, Case 125/78, [1979] ECR p. 3173. 76 Actions brought under the ECSC Treaty have been successful: see SNUPAT v. Higher Authority, Joined Cases 42 and 49/59, [1961] ECR p. 53 and ASSIDER and Another v. Commission, Joined Cases 167 and 212/85, [1987] ECR p. 170. Only one action brought by the European Parliament under the EC Treaty was successful.
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imposed by Article 230 (ex 173). The pleas, if successful, renders the act, not void, but "inapplicable". Article 230 provides: Notwithstanding the expiry of the period laid down in the fifth paragraph of Article 230, any party may, in proceedings in which a regulation adopted jointly by the European Parliament and the Council, or a regulation of the Council, of the Commission, or of the ECB is at issue, plead the grounds specified in the first paragraph of Article 230, in order to invoke before the Court of Justice the inapplicability of that regulation.
The remedy under Article 241 is an important supplement to that given under Article 230. First, it mitigates the effect of the very short time limit under the latter Article. For, although the regulation in issue may have become immune from annulment by lapse of time, a decision based upon that regulation may be challenged by the person affected through the plea of illegality. A party may have the decision in issue set aside on the basis that the parent regulation involved is tainted with illegality on one or more of the grounds set out in Article 230. The jurisdiction of the Court is limited to determining that the regulation is inapplicable in the particular case, so that the decision becomes without legal foundation. Article 230 may be invoked against a wide category of acts. The action for illegality, on the other hand, would appear to lie only against a regulation. But in Simmenthal v. Commission, the CJEC interpreted Article 241 as giving expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision that is being attacked, but which that party lacked locus standi to challenge under Article 230.77 77
Case 92/78, [1979] ECR p. 777. In that case the applicant was allowed to bring the plea against a general notice of tender issue by the Commission for the purchase, by importers such as Simmenthal, of meat held by an intervention agency. The general notice, though not in form a regulation, was held to be analogous in effect and normative in character: it could therefore be challenged by way of the pleas of illegality, although the applicant was directly and individually affected only by the consequent decision of the Commission which fixed the price
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The plea of illegality prevents an illegal act, although unimpeachable by lapse of time, from "fathering" further illegal acts: a party affected thereby may challenge the offspring as illegal because of the original illegality of the parent regulation. If the challenge succeeds, the regulation is rendered inapplicable in the particular case. The regulation is not thereby rendered absolutely null and void: in the unlikely event of it being invoked again to found a further decision, a party affected by that decision will be obliged, in turn, to invoke the plea: otherwise the decision will be valid. The plea of illegality does not provide an independent cause of action but can only be invoked where proceedings are already properly before the Court under some other Article of the Treaty. The Court made this clear in the Wohrmann and Dalmas Cases relating to the former Articles 184 EC and 36(3) ECSC respectively.78 Commonly, the plea is made in conjunction with an action to annul under Article 230. But in the SNUPAT Case it was invoked in an action for inactivity under Article 35 ECSC.79 As for locus standi in terms of legitimation active, the pleas may not be invoked by a Community institution, for the apparent purpose of this remedy is to protect the interests of a private party against the threatened application of an illegal general act, such as a regulation. Moreover, Community institutions are not subject to the restrictive rules of locus standi applicable to private parties in annulment proceedings: the Council or Commission have an unrestricted opportunity to challenge general acts under Article 230, subject only to the two months time limit. As far as concerns private parties, an individual or a company may rely upon Article 241. Under Article 241 the extent to which a member state may invoke the plea is not for tenders from Italian importers at a price above that offered by Simmenthal, thereby leading to the rejection of the tender. 78 Joined Cases 31 and 33/62, [1962] ECR p. 501, and Case 21/64, [1965] ECR p. 175, respectively. 79 Joined Cases 42 and 49/59, [1961] ECR p. 53. The pleas may also be invoked in staff cases: Sabbatini v. European Parliament, Case 20/71, [1972] ECR p. 345. The manner in which the plea operated under the ECSC Treaty is demonstrated by Meroni v. Higher Authority, Case 9/56, [1958] ECR p. 133.
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entirely settled. In Italy v. Council and Commission80 the Court impliedly accepted that a member state could do so when challenging a regulation under Article 230. In that case Italy invoked Article 241 to extend its challenge to earlier (and related) regulations. But in Commission v. Belgium81 where, in the course of enforcement proceedings brought against Belgium by the Commission under the Treaty in respect of a prohibited state aid, the Belgian Government sought to invoke the plea against a specific decision addressed to it which it had failed to challenge directly and in time by an action under Article 230. The Court ruled that the plea could in no case be invoked by a member state to whom an individual decision has been addressed, because in effect, Belgium was seeking to challenge the decision, out of time, by resort to the plea. While a member state may invoke the plea against a regulation, but not against an individual decision addressed to it, the question remains open whether it may do so against a directive, which may not be individual in character but may be addressed to it. (C) PLENARY JURISDICTION In French administrative law a distinction is made in regard to actions before the administrative courts between actions to annul and recours de pleine juridiction (actions where the Court is asked to exercise its fullest powers, for example, by awarding damages against the administration or by itself revising (as distinct from merely quashing) the administrative act submitted to it). This notion of plenary jurisdiction as one common to French and other continental systems of administrative law was included in the EC Treaty and is now present in the TEU. In Article 229 (ex 172) the Court is given 80
Case 32/65, [1966] ECRp. 389. Case 156/77, [1978] ECRp. 1881. See also Commission v. Greece, Case 226/87, [1988] ECR p. 361, where the Court held that a member state could only plead the unlawfulness of a decision addressed to it as a defense in an action under the former Article 169 where the measure concerned contained such particularly serious and manifest defects that it could be deemed non-existent. 81
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"unlimited jurisdiction" in regard to penalties provided for in the regulations made by the Council and by the Council and European Parliament pursuant to the Treaty. This means that the Court can not only cancel such a penalty but also alter its amount. For example, in Article 17 of Regulation 17/62 of the Council (relating to competition) it is acknowledged that "The Court shall have unlimited jurisdiction within the meaning of Article 172 of the Treaty to review decisions whereby the Commission has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed." The Court's plenary jurisdiction covers: (a) Actions to review penalties (Article 229 (ex 172 EC, 36(2) ECSC)); (b) Actions for damages based upon the non-contractual liability of the Communities (Article 235 (ex 178 EC, 40 ECSC)). There is also jurisdiction in staff cases (employment) which has been dealt with in Chapter 15. The scope of (a) has been briefly referred to above and needs no further discussion. Category (b) calls for attention here. Although actions for damages by natural or legal persons have now been transferred to the CFI, the CJEC itself has shaped the principles of non-contractual liability and will still control their development on appeal. First, however, a word must be said about jurisdiction in regard to the contractual (as distinct from the non-contractual) liability of the Communities. (1) Contractual Actions Liability on the part of the Communities may obviously arise in contract as well as in tort because their activities and functions extend over a wide range. Article 288 (ex 215) draws a distinction between contractual and non-contractual liability, although the latter term, because of its residuary character, could extend beyond tort into the field, for example, of restitution. Under that Article contractual liability is governed by the law applicable to the contract in question. The law referred to will be whichever national law
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governs that contract as its proper law, and any litigation arising on the contract will come before the relevant national court. The jurisdiction of the national courts is exclusive. The jurisdiction of the CJEC arises only where it is expressly conferred by the Treaties, and there is no provision conferring jurisdiction on the Court in these cases, as there is (under Article 235) in cases of noncontractual liability. It is only where the contract contains an arbitration clause conferring jurisdiction in any dispute upon the CJEC (as Article 238 (ex 181 EC, 153 Euratom)) can a question of contractual liability be taken up directly before that Court. Euratom research contracts, for example, usually contain such clauses. Indirectly, however, a claim in contract against the Community may be the subject of a reference to the CJEC by a national court under Article 234 (ex 177) which concerns preliminary rulings.82 Article 238 is applicable whether the contract in question is categorized as "public" or "private"—a distinction derived from French administrative law and embodied in the Article. In Pellegrini v. Commission83 the contract with Euratom included an arbitration clause conferring jurisdiction upon the Court and also provided that the contract was to be governed by Italian law. The Court accepted jurisdiction and resolved the dispute in accordance with Italian law. Similarly, contracts made between the Commission and universities in the member states for the provision of various technical services usually embody an arbitration clause and provide for the contract to be governed by the national law of the university in question or of the seat of the Community institution concerned (in the case of the Commission, Belgium). Moreover, such cases in contract are the only instances in which a private individual may find himself the defendant before the Court in a direct action brought by the Community. In Commission v. Zoubeck?4 the Commission invoked the Court's jurisdiction under Article 181 EC (Article 288 TEU) to recover, under an arbitration
82 83 84
See below section D on the subject. Case 23/76, [1976] ECRp. 1807. Case 426/85, [1986] ECR p. 4057.
Plenary jurisdiction
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clause, an advance paid to a journalist who had failed to produce a report which it had commissioned.85 (2) Non-contractual Actions against the Community The relatively clear-cut pattern in contract contrasts with the jurisdictional position of the CJEC in respect of the Communities' noncontractual liability. Article 235 (ex 178) which refers to Article 288 (ex 215) confers exclusive jurisdiction on the Court (now exercised by the CFI), when read together with Article 240 (ex 183). Thus, the Court has been vested with an exclusive jurisdiction over the noncontractual liability of the Community and has been entrusted with the fashioning of an independent Community law to govern such liability, guided only by the broad terms of Article 288 (ex 215(2) EC, 188(2)Euratom). Originally, the ECSC Treaty adopted the French position of vesting in one and the same jurisdiction actions for the annulment of official acts and suits for damages arising from the tortious liability of public authorities. In this way, the CJEC could exercise the most effective judicial control over Community institutions. There was also the advantage of excluding the national courts from sitting in judgment upon the administrative activities of Community institutions. If this had been permitted, it would have threatened the Community's independence. Subsequently, the principles in this respect embodied in the ECSC Treaty were carried over without substantial modification into the EC and Euratom Treaties, and are now reflected in the TEU. Article 235 settles categorically the question of which court has jurisdiction, while Article 288 determines what principles of substantive law shall govern that liability. In effect, for such liability the lex causae is to be the lex fori: the Community Court is to apply Community law. What, however, Article 288 offers as the Community law governing non-contractual liability is a mere reference to "the general principles common to the laws of the Member States". This vague formula has been left for the Court itself to elaborate in a series of cases. Generally there 85
Jurisdiction in staff cases, whether based on contract or status, have been considered in Chapter 15.
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is a dearth of clear principle as far as the substantive law is concerned but there has been no dispute in regard to the jurisdiction of the Court in respect of non-contractual liability of the Communities nor has the authority of the Court to develop principles been in question, though the law in a given case may be disputed.86 (3) Liability Arising from Legislation Liability under the terms of Article 288 (ex 215(2)) can extend to liability in respect of legislation—what has been referred to in the context of Community law as "normative injustice". Normative is here used to describe an act such as a regulation, laying down a rule, as opposed to an individual decision. The Zuckerfabrik Schoppenstedt Case81 explored the nature of this normative injustice in Community law. It arises where a Community institution (in that case it was the Council) has taken a measure of a legislative or normative character, such as a regulation, which measure is subsequently proved to be in breach of the Treaties or other provisions of Community law. But the Court requires, as it stated in that case, a sufficiently flagrant breach of a superior rule of law protecting individuals. This stringent test was held not to be satisfied in that case. It is enough however that the provision allegedly violated was for the protection of individuals generally rather than for the protection of the particular plaintiffs, i.e., there is no equivalent under Article 288 of the requirement of "direct and individual concern" which is a requirement under Article 230 (ex 173). This is the better view.88 (4) Period of Limitation Actions under Article 288 (ex 215) are subject to a limitation period of five years (Article 43 of the statute of the Court) and not two 86
For a consideration of substantive principles, including that offaute de service, see Brown and Kennedy, op. cit. note 2 pp. 161-4. For non-contractual liability in general see Schermers and Others, Non-Contractual Liability of the European Communities (1989). 87 Zuckerfrabrik Schoppenstedt v. Council, Case 5/71, [1971] ECRp. 975. 88 See Brown and Kennedy, op. cit. note 2 pp. 165-8, on how the substantive law was developed.
Plenary jurisdiction
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months, which is the time allowed for actions to annul under Article 230 (ex 173). Article 43 of the statute makes the period of five years run from the occurrence of the event giving rise to the alleged liability; the period is interrupted if an application for relief is made to the Community institution concerned, in which case, if the institution has not defined its position (for example, by accepting liability) the applicant will have two further months in which to commence proceedings (Article 232 (ex 175)). De Franceshi S.p.A. Monfalcone v. Council and Commission89 concerned these provisions. The applicant suffered loss through the operation of a Council regulation, published on March 4, 1975 and abolishing certain refunds, which was held invalid by the Court on October 19, 1977 in Joined Cases 124/76 and 20/77. The present action was commenced on March 9,1981. The defendants raised the objection that proceedings were time-barred, the five-year limitation period having begun to run on March 4, 1975. The Court held that the period only began to run from the moment when the damage became known: the injurious effects of the regulation were produced only with effect from October 19, 1977, on which date the measure was adjudged unlawful.90 (5) Jurisdiction in Regard to Remedies In Plaumann v. Commission the CJEC pronounced in an action under Article 288 (ex 215) that an administrative act which had not been annulled could not amount to a wrong founding liability in damages.91 This view has been rejected in several more recent cases. The Court now acknowledges that actions under Article 230 (ex 173) sought to annul particular acts erga omnes; Article 288 on the other hand, provided for compensation to the individual who has 89
Case 51/81, [1982] ECR p. 117. Similarly, in Adams v. Commission it was held that the limitation period did not begin to run until the injured party became aware of the event giving rise to his claim, namely the visit of the company's lawyer to the Commission; he only learnt of this visit when it was disclosed in the Commission's pleadings, Case 45/83, [1985] ECR p. 3539. 91 Case 25/62, [1963] ECR p. 95. 90
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sustained damage through the faulty exercise of its functions by a Community institution. In the Zuckerfabrik Schoppenstedt Case the plaintiffs sought damages for the loss they had suffered in consequence of a regulation of the Council fixing sugar prices. The Court was prepared to entertain the claim under Article 288 without action also being brought under Article 230, observing that "in the present case, the non-contractual liability of the Community presupposes at the very least the unlawful nature of the act alleged to be the cause of the damage".92 Subsequently in the Merkur Case the Court made explicit its readiness to rule on the illegality of an act in an action brought for damages.93 The consequence is that the two-month limitation period in Article 230 may be circumvented either by way of an action under the second paragraph of Article 288 (subject to a fiveyear limitation period), or by resort to the plea of illegality under Article 241 (ex 184), or by a reference for a preliminary ruling as to validity made by a national court under Article 234 (ex 177), neither Article 241 nor Article 234 being subject to any period of limitation. However, as far as the relationship between annulment proceedings and proceedings for damages goes, in terms of remedial jurisdiction, in several staff cases, claims for damages have been rejected on the ground that the plaintiffs could, by timely proceedings, have sought annulment of the allegedly illegal regulations. Because they failed to do so, they could not then complain of the damage caused then by such illegality.94 The cases may illustrate a wider principle that the Court will not usually entertain a claim for damages by a plaintiff who could have sought annulment of the normative act in issue. (6) Concurrent Liability of the Communities and Member States In a typical case of alleged joint liability, the plaintiff complains that his own government, acting on behalf of the Communities, refuses 92
Case 5/71, [1971] ECR at p. 984. Case 43/72, [1973] ECR p. 1055. 94 Muller-Collignon v. Commission, Case 4/67, [1967] ECR p. 365, SchotsKortner and Others v. Council, Commission and Parliament, Joined Cases 15-33, etc./73, [1974] ECR p. 177. 93
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to pay him money allegedly due under Community law, but he elects for whatever reason to bring his suit against the Communities in the Court of Justice rather than to sue his own government in the national court. In dealing with the problem, first, the Court has asked the question whether there is joint liability on the part both of the Communities and the member state. If it finds there is, then it asks whether the member state is to be considered primarily liable so that it would be reasonable for it rather than the Communities to pay compensation. If this is the case, thirdly, the Court has taken the view that the plaintiff must pursue his remedy in the national courts, before the CJEC can further entertain his claim. For example, in Kampffmeyer v. Commission95 the Court found liability established against the Communities on account of the Commission's decision, held illegal, authorizing the German Government to take safeguard measures. But the Court refused to settle the amount of damages until the plaintiffs had completed proceedings against their government in the German courts, stating that final judgment cannot be given before the applicants have produced the decision of the national court. The principle that normally the plaintiff should first pursue his remedy in the national courts has been upheld by the Court in a series of cases beginning with Haegeman v. Commission.96 Behind the very complicated facts of three later cases was the common basic feature that, as the plaintiffs alleged, their national government was refusing them certain payments to which they believed themselves entitled under Community regulations. In each case the Court decided there was a concurrent remedy in the national courts which had therefore to be pursued before any action would be admissible against the Community. 95
Cases 5, 7 and 13-24/66, [1967] ECR p. 245. On concurrent liability in general see Wils, "Concurrent Liability of the Community and a Member State", 17 ELRev(1992) p. 191. 96 Case 96/71, [1972] ECR p. 1005, [1973] C.M.L.R. 365. Later cases have been Societe des Grands Moulins des Antilles v. Commission, Case 99/74, [1975] ECR p. 1531, Importazione Bestiame Carni v. Commission, [1976] ECR p. 65 and Lesieur Cotelle S.A. v. Commission, [1976] ECR p. 391.
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Criticisms have been levelled against this approach.97 However, subsequent cases indicate that the Court may be ready to relax its restrictive approach of requiring the prior exhaustion of the national remedy, at least where the action under Article 288 (ex 215) is for damages in tort rather than a claim in quasi-contract for money unlawfully exacted by the national authorities on behalf of the Community. Thus, in Dietz v. Commission98 the applicant was a German exporter who contracted to export certain goods from Germany to Italy. After the contract was made, certain charges were introduced by the Community on the imported goods, which resulted in Dietz making an unexpected loss on the transaction. He sued the Commission under the then Article 215 for his actual loss on the ground that the sudden imposition of the charges was a violation of the principle of the protection of legitimate expectations. The Commission argued that the claim was inadmissible since Dietz should first be required to proceed in his national court against the national authority imposing the charges. In fact such an action by Dietz was pending. But the CJEC held the action before it to be admissible; for the alleged loss stemmed from the act of the Community itself rather than from the measures adopted by the national authorities in applying Community law. In Krohn v. Commission99 Krohn applied to the German Intervention Agency for an import license for manioc from Thailand but this was refused by the Agency acting on mandatory instructions from the Commission. When Krohn sued the Commission for damages under the then Article 215, the Court rejected the argument of the Commission that Krohn should first sue the Agency, holding that the Commission was responsible, by its instructions, for the Agency's alleged unlawful conduct. Thus, the admissibility of the action before the Court was not dependent upon the prior exhaustion of the national remedies (nor was the action under the second paragraph of the then Article 215 bared by the fact that Krohn had not challenged 97
See Brown and Kennedy, op. cit. note 2 pp. 177-8. See also Hartley, in 1 ELRev. (1976) at pp. 299-304, 396-9, Schermers, in Legal Issues of European Integration (1975) p. 113. 98 Case 126/76, [1977] ECR p. 2431. The plaintiff lost on the merits. 99 Case 175/84, [1984] ECR p. 753, [1987] ECR p. 97.
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the instructions by proceedings to annul under the second paragraph of the then Article 173 (now Article 230 TEU)). (D) PRELIMINARY RULINGS Under Article 234 (ex 177 EC) the CJEC has jurisdiction to answer questions put to it by national courts about the impact of Community law in cases pending before them. By involving the Court directly in litigation before the national courts, it allows the Court to promote the uniform application of the law in a manner which is consistent with the spirit and objectives of the Treaty. The preliminary rulings procedure ensured that the Court could resolve questions of fundamental importance to the functioning of the legal order which might not otherwise have been brought before it. The questions came before national courts first. The possibility that Community law might grant rights to individuals which national courts were expected to recognize with the result that Community law was given precedence over provisions of national law which were inconsistent and failed to respect Treaty obligations and that member states might be liable in damages to individuals who thereby suffered loss or be subject to redress led to questions being put to the CJEC, directly or indirectly, by judges in the member states.100 Article 234 (ex 177) which deals with preliminary rulings provides: The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty; (b) the validity and interpretation of acts of the institutions of the Community and of the ECB; 100
On the Court's activity in this regard see Edward, "Judicial Activism - Myth or Reality?" in Campbell and Voyatzi (eds.), Legal Reasoning and Judicial Interpretation of European Law (1996) ch. 3. p. 44. See also Barnard and Sharpston, "The Changing Face of Article 177 References", 34 CMLRev p. 113, Goletti, "L'art. 177, tr CE e la sua applicability", 73 Foro Administrivo (1997) p. 2615, Arnull, "References to the European Court", 15 ELRev (1990) p. 375, Dashwood and Arnull, "English Courts and Article 177 of the EEC Treaty", 4 YEL (1984) p. 255, Schermers and Others, Article 177 EEC: Experience and Problems (1987).
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(c) the interpretation of the statutes of bodies established by an act of the Council, where those statutes so provide. Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State, against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of Justice.
Under this Article any question of Community law may be referred to the Court at the instance of any national court before which such a question is raised. The ruling given by the Court is interlocutory in that it constitutes a step in the proceedings before the national court which, while being bound by it, must, nevertheless, proceed to apply it to the facts of the case, and thus, it is preliminary. In a certain respect the Court has interpreted its jurisdiction under Article 234 narrowly. The article might consistently have been interpreted as conferring on it a power to assess the compatibility of provisions of national law with the Treaty and to require the referring court not to apply any which failed to meet with the approval of the Court, and might have been seen as both reinforcing the Treaty obligations of member states and strengthening the rights of individuals. However, in a long line of cases the Court has emphasized the limits of its jurisdiction under Article 234. Beginning in 1964 the Court explained in Costa v. ENEL that the article gave it no jurisdiction either to apply the Treaty to a specific case or to decide upon the validity of a provision of domestic law in relation to the Treaty, as it would be possible for it to do under Article 226 (ex 169) and added that, nevertheless, the Court had power to extract from a question imperfectly worded by the national court those questions which alone pertained to the interpretation of the Treaty.101 While the Court's answers are often quite clear, the 101
Case 6/64, [1964] ECR at pp. 592-3. See also now Eurico Italia v. Others, Joined Cases C-332/92, C-333/92, C-335/92, [1994] ECR I, p. 711 at para. 19.
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application of law to the facts particularly and the final decision is that of the national court. Thus, the relationship between the CJEC and the national court referring the issue is co-operative rather than hierarchical and a reference for a preliminary ruling cannot be called an appeal.102 It may be said that the proceedings are in the form of a dialogue in which the two courts seek a solution to the case in hand consonant with the relevant Community law.103 (1) Jurisdiction Ratione Materiae Article 234 now permits references to be made to the Court on questions of both validity and interpretation, whatever was the position before under some of the Treaties.104 Questions which may be referred under the first paragraph of Article 234 include not only questions on the interpretation of the EC Treaty itself, but also questions on the interpretation of Treaties amending the Treaty105 or of one of the Treaties of Accession. In addition, the Court has jurisdiction under Article 234 to rule on the interpretation of an international agreement concluded by the Community.106 Questions may be referred on acts of the Community institutions, such as regulations, directives, and decisions of the Council or Commission and non-binding measures such 102
Technically, there are no parties to the proceedings for rulings before the CJEC: see Wilnsche v. Germany, Case 69/85, [1986] ECR p. 947 at para. 14. 103 See Slaughter, Stone and Weiler (eds.), The European Courts and National Courts: Doctrine and Jurisprudence (1998), Weiler, The Constitution of Europe (1999), pp. 192-5. 104 For discussion of the position before the TEU, particularly under the ECSC Treaty, see Arnull, op. cit. note 2 pp. 51-52, Hartley, Foundations of European Community Law (1988) pp. 248 ff., Schermers and Waelbroeck, Judicial Protection in the European Communities (1987) pp. 354 ff, Hartley, Constitutional Problems of the European Union (1999) pp. 34-35. 105 The Court does not have jurisdiction under Article 234 to rule on the interpretation of provisions of the TEU other than those mentioned in Article 46 (ex L): see Grau Gomis and Others, Case C-167/94, [1995] ECR I, p. 1023. 106 This is so even where the agreement has also been signed by the member states because it falls partly within their jurisdiction: see Hermes v. FHT, Case C-53/96, [1998] ECR I, p. 3603 (TRIPS Agreement).
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as recommendations.107 Article 234 has been construed to allow national courts to ask not only what provisions of Community law mean but also whether they confer rights on individuals which the national courts are bound to protect, that is, whether they produce direct effect.108 A question that has caused problems is whether the Court has jurisdiction to rule on the effect of provisions of Community law which are applicable in the national proceedings only where national law has incorporated them. In Dzodzi v. Belgium, in spite of the opinion of Advocate General Darmon that the Court had no jurisdiction to give a ruling where Community law was not applicable in its own right and where the guidance of the Court was being sought essentially to enable the national court to apply provisions of national law, the Court concluded that the proper functioning of the Community legal order made it imperative that provisions of Community law should be given a uniform interpretation regardless of the circumstances in which they fell to be applied and that therefore it had jurisdiction in the matter.109 Doubt was cast on the continued applicability of the Dzodzi approach in Kleinwort Benson v. City of Glasgow District Council.110 In that case the English Court of Appeal made a reference on the interpretation of the Brussels Convention111 which regulates the circumstances in which 107
See Grimaldi v. Fonds des Maladies Professionnelles, Case C-322/88, [1989]ECRp. 4407. 108 See Van Gend en Loos v. Nederlandse Administratie der Belastingen, Case 26/62, [1963] ECR at p. 11. 109 Joined Cases C-297/88 and C-197/89, [1990] ECR I, p. 3763. See also Gmurzynska-Bscher v. Oberfmanzdirektion Koln, Case C-231/89, 1990 ECR I, p. 4003. The Court in these cases seems to have been concerned that, had it declined jurisdiction to giver preliminary rulings in these circumstances, parallel lines of national case law might have developed, one concerning the interpretation of provisions of Community law applicable in their own right, the other concerning the interpretation of the same provisions when applicable solely by virtue of national law. The possibility that cases in the second category might influence cases in the first would in theory have jeopardized the uniform application of Community law. 110 Case C-346/93, [1995] ECR I, p. 615, particularly at para. 24. 111 The Convention was an agreement covered ratione materiae by the TEU.
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judgments made by the courts of one member state have to be recognized and enforced in another member state. In the UK rules based on the Brussels Convention were laid down by the Civil Jurisdiction and Judgments Act 1982 to provide for the allocation of civil jurisdiction between the separate jurisdictions comprising the UK, namely England and Wales, Scotland, and Northern Ireland. The Court of Appeal asked the CJEC for guidance on the meaning of the Convention, so that it could decide whether, under the 1982 Act, the dispute between the parties fell within the jurisdiction of the English or Scottish courts. The Court of Justice said it had no jurisdiction to answer, because the national court had made the reference to enable it to apply, not the Convention, but its national law. Moreover, the 1982 Act, although modelled on the Convention, did not wholly reproduce its terms. The Court concluded that the Act did not render applicable as such the provisions of the Brussels Convention in cases which fell outside the scope of that Convention. Moreover, the Act did not require UK courts to apply absolutely and unconditionally the interpretation of the Convention supplied by the CJEC, but merely to have regard to it when applying provisions of national law modelled on the Convention. Thus, any ruling given by the Court would not be binding on the referring court. Therefore, it was incompatible with the function of the Court under the preliminary rulings procedure for it to give replies which were purely advisory and without binding effect.112 112
Although the circumstances of Kleinwort Benson were distinguishable from those of Dzodzi, the cases are not easy to reconcile. The possibility that a line of domestic case law might develop on the effect of the Brussels Convention without any direct contribution by the CJEC might have been thought to pose a threat to the uniform application of Community law as serious as that which concerned the Court the Dzodzi. Moreover, in declining to answer the question referred to it in Kleinwort Benson, the Court was led into an examination of the effect of the 1982 Act, a matter which might have been thought to fall outside its jurisdiction. In Dzodzi the Court said that: "Where Community law is made applicable by national provisions, it is for the national court alone to assess the precise scope of that reference to Community law": at para. 41. See also Thomasdunger v. Oberfmanzdirektion Frankfurt am Main, Case 166/84, [1985] ECR p. 3001, para 11.
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In two later cases the Court made it clear that the Kleinwort Benson Case did not mark a change of direction and that it was confined to situations where a member state has adapted a solution applied under Community law to suit its own internal requirements and that the Dzodzi approach continued to apply where a member state had chosen to align its domestic legislation with Community law so as to apply the same treatment to purely internal situations as that accorded to situations governed by Community law. The cases were Leur-Bloem v. Inspecteur der Belastingdienst/Ondernemingen Amersterdam 2113 and Giloy v. Hauptzollamt Frankfurt am MainOst.114 They concerned domestic rules on the imposition of tax. In deciding that it could assume jurisdiction the Court reiterated that "where, in regulating internal situations, domestic legislation adopts the same solutions as those adopted in Community law so as to provide for one single procedure in comparable situations, it is clearly in the Community interest that, in order to forestall future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply.. ,".115 (2) Preliminary Rulings on Validity Article 234 permits national courts to make references to the CJEC not only on matters of interpretation but also on the validity of Community acts.116 The second and third paragraphs of the article 113
Case C-28/95, [1997] ECR I, p. 4161. Case C-130/95, [1997] ECR I, p. 4291. 115 The Giloy Case, Case C-28/95, [1997] ECR I, p. 1161 at para. 28, the Leur-Bloem Case, Case C-130/95, [1997] ECR I, p. 4291 at para. 31. In both cases Advocate General Jacobs came to a different conclusion from the Court: see the Leur-Bloem Case, ibid, at pp. 4180, 4187. Arnull, op. cit. note 2 pp. 55-56, agrees with limitations placed on jurisdiction by Advocate General Jacobs. 116 The Court's jurisdiction under Article 234 to review the validity of Community acts covers all grounds capable of invalidating them, including incompatibility with a rule of international law: International Fruit Company v. Produktschap voor Groenten en Fruit, Joined Cases 21 to 24/72, [1972] ECR p. 1219 at para. 6, Racke v. Hauptzollamt Main, Case C-162/96, [1998] ECR I, p. 3655. 114
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do not distinguish between questions of interpretation and questions of validity, referring simply to questions of the type mentioned in the first paragraph. While the third paragraph expressly requires courts and tribunals of the member states against whose decisions there is no judicial remedy in national law to refer to the CJEC questions of Community law they are called upon to decide, the Treaty appears to leave with inferior courts the discretion to decide for themselves questions concerning interpretation or validity. However, a consequence of the national court's doing this and not referring such questions to the CJEC is that, because the decision of the national court would be limited to the state in which the court was situated and the contested act would in principle continue to apply in other member states, legal certainty and the uniform application of Community law would be undermined. The role of national courts when confronted with a challenge to the validity of a Community act was the subject of a reference to the Court in Foto-Frost v. Hauptzollamt Lubeck-Ost,117 in which the Court exercised its jurisdiction. The Court's view on the merits was that, although national courts could reject as unfounded challenges to the validity of Community acts, they did not have the power to declare such acts invalid.118 The Court pointed out that it had exclusive jurisdiction to entertain actions for the annulment of Community acts and that "coherence of the system of judicial protection established by the Treaty" 119 required that, where the validity of a Community act was challenged before a national court, the power to declare the act invalid should also be reserved to the CJEC.120 117
Case 314/85, [1987] ECR p. 4199. Ibid, at para. 15. On the reasons for this see ibid, at para. 16. 119 Ibid. 120 The Court added that in preliminary ruling proceedings the institution whose act was challenged would be able to take part, while this would not generally be possible in proceedings before a national court, with the result that the question might have to be determined in the absence of representations from the institution most directly concerned. The Foto-Frost Case has been criticized: see Hartley, Constitutional Problems of the European Union (1999) p. 34, Arnull, op. cit. note 2 pp. 62-63, Neill, 112 LQR (1996) at p. 100. 118
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In the TWD Textilwerke Deggendorf Case121 the applicant, a recipient of aid from both Federal and State authorities in Germany, challenged before the national courts the validity of a Commission decision, adopted under Article 88(2) (ex 93(2)) of the Treaty and addressed to the Federal Republic of Germany, declaring the aid unlawful and requiring it to be recovered. Neither the Federal Republic nor the applicant had brought proceedings for the annulment of the decision under Article 230, although the Federal Economics Ministry had specifically drawn the applicant's attention to its right to do so. The Court was asked for a preliminary ruling on the question whether an applicant in those circumstances could contest the validity of the Commission decision in a national court. The jurisdiction of the Court was not questioned and the Court ruled on the merits.122
121
Case C-l88/92, [1994] ECR I, p. 833. The Court said that considerations of legal certainty prevented a recipient of aid which was the subject of a Commission decision adopted under Article 88 (ex 93) of the Treaty, who could have attacked the decision under Article 230 but who had allowed the deadline laid down in that article to expire, from contesting its legality before the national courts in the context of a challenge to national measures adopted to give effect to it. The Court distinguished earlier case law on the basis that it had not previously been called upon to address the effect in the national courts of the expiry of the deadline for bringing annulment proceedings. The Court's ruling in TWD followed the advice of Advocate General Jacobs, who said that it was only when an applicant's standing to bring annulment proceedings was clear beyond doubt that he should be prevented from challenging the validity of the contested act in the national courts: ibid, at p. 844. Otherwise national courts would have to resolve the sometimes difficult question whether the applicant would have had standing under Article 230 (ex 173), had proceedings been brought. The view of the Advocate General was reflected in the judgment of the Court, which emphasized that there was no doubt that the applicant could have attacked the Commission's decision under Article 230: ibid, at paras. 14 and 24. The point was confirmed in Wilfo v. Belgian State where, in a different context, the Court held that the validity of a Commission decision could not be challenged before a national court where the applicant had not sought its annulment in a direct action even though it could undoubtedly have done so: Case C-l78/95, [1997] ECR I, p. 585 at para. 23. There is no inconsistency between the rulings in TWD and Foto-Frost. The situations in the two cases are 122
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(3) Who May Refer As regards the courts or tribunals that may make references the CJEC has construed Article 234 broadly. Thus, the term 'court or tribunal of a Member State' has been interpreted by the Court of Justice as embracing any national institution exercising a judicial function, even if it does not constitute a court or tribunal for the purposes of its own domestic law.123 It has also been held that references may be made under Article 234 by courts situated in territories which do not form part of a member state, if the Treaty is applicable there, even if only in part.124 (a) Courts of Last Resort National courts and tribunals in general enjoy a discretion in deciding whether to make a reference to the CJEC but those against whose decision there is no judicial remedy in national law must do so (third paragraph of Article 234). That obligation is imposed not only in courts whose decisions are always final, but also on any other national court in the event that there is no judicial remedy clearly different. However, the ruling in the TWD Case attracted some criticism: see, e.g., Wyatt, "The Relationship between Actions for Annulment and References on Validity after TWD Deggendorf in Lonbay and Biondi (eds.), Remedies for Breach of EC Law (1997), ch. 6, Tesauro, "The Effectiveness of Judicial Protection and Co-operation between the Court of Justice and the National Courts", 13 YEL (1993) at pp. 15-16. See, however, the Opinion of Advocate General Jacobs in the TWD Textilwerke Deggendorf Case, Case C-l 88/92, [1994] ECR at pp. 841-3. See also Nihoul, 'La recevabilite des recours en annulation introduits par un particulier a 1'encontre d'un acte communautaire de portee generale", 30 RTDE (1994) at pp. 188-93. 123 See, e.g., Nederlandse Spoorwegen v. Minister Verkeer en Waterstaat, Case 36/73, [1973] ECR p. 1299 (in particular the opinion of Advocate General Mayras at pp. 1317-20), Pretore di Salo v. Persons Unknown, Case 14/86, [1987] ECR p. 2545, Garofolo and Others v. Minstero della Sanita, Joined Cases C-69/96 to C-79/96, [1997] ECR I, p. 5603. 124 See Barr and Montrose Holdings, Case C-355/89, [1991] ECR I, p. 3479 (Isle of Man), in particular the Opinion of Advocate General Jacobs at pp. 3493-4, Pereira Roque v. Lieutenant Governor of Jersey, Case C-171/96, [1998] ECR I, p. 4607.
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against its decision in the particular case.125 Whether this obligation was an absolute one was for a long time disputed. In Da Costa v. Nederlandse Belastingadministratie,126 a reference was made by the Tariefcommissie, a Dutch administrative court of last instance in taxation matters, in circumstances which were virtually identical to those of a reference made by it shortly beforehand in Van Gend en Loos v. Nederlandse Administratie der Belastingen.121 By the time the CJEC came to deliver judgment in Da Costa, it had already decided Van Gend en Loos. It therefore took the opportunity to offer guidance on the scope of the obligation imposed on courts of last resort. The Court said: Although the third paragraph of Article 177[now 234] unreservedly requires courts or tribunals of a member State against whose decisions there is no judicial remedy under national law—like the Tariefcommissie—to refer to the Court every question of interpretation raised before them, the authority of an interpretation under Article 177 already given by the Court may deprive the obligation of its purpose and thus empty it of its substance. Such is the case especially when the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case.128
Thus, in the circumstances, there was no need for the national court to make a reference in the later case, because it could simply have waited and applied the ruling of the Court in Van Gend en Loos. The complication was that there were exceptions to the rule that national courts of last resort make a reference for a ruling. But it was clear that the circumstances in which the obligation would not apply were strictly limited, i.e., only where the question raised in the new case was materially identical with a question on which the Court had already made a preliminary ruling, did the obligation not apply. In effect the Court accepted more or less that a preliminary 125
Costa v. ENEL, Case 6/64, [1964] ECR p. 585; Morson and Jhanjan v. Netherlands, Joined Cases 35 and 36/82, [1982] ECR p. 3723. 126 Joined Cases 28, 29 and 30/62, [1963] ECR p. 31. 127 Case 26/62, [1963] ECR p. 1. 128 [1963] ECR at p. 38.
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ruling might have an authority which extended beyond the case in which it was delivered.129 Much later the Court relaxed the obligation in question to a much more significant extent. In CILFITv. Ministry of Health130 the Court concluded that the obligation laid down in the third paragraph of Article 234 was conditional on the prior finding of a reasonable interpretative doubt, that is, whether the acte clair theory of French law was applicable. Advocate General Capotorti's view was that the theory meant simply that "if a provision is unequivocal there is no need to interpret it"131 and that the theory had no place in relation to preliminary rulings procedure. He stated that: "Clearly, acceptance of the idea that the obligation to refer a matter to the Court exists only where a reasonable interpretative doubt has arisen would lead to the introduction of a subjective and uncertain factor and might prevent the procedure from attaining its objective, which is...to ensure certainty and uniformity in the application of Community law".132 The Court took a different approach. It said that because all national courts and tribunals had the same discretion in deciding whether a decision on a question of Community law was necessary to enable them to give judgment, it followed that courts of last resort were not obliged to make a reference where the question raised was not relevant, in other words, where the answer to the question, regardless of what it may be, can in no way affect the outcome of the case.133 Where the question was relevant, the Court said that there was no obligation to refer "where previous decisions of the Court have already dealt with the point of law in question, irrespective of the nature of the proceedings which led to those decision, even though the questions at issue are not strictly identical".134 This was 129
See Rasmussen, "The European Court's Acte Clair Strategy in CILFIT\ 9ELRev(1984)atp. 249. 130 Case 283/81, [1982] ECRp. 3415. 131 Ibid, at p. 3435. 132 Ibid, at p. 3439. 133 Ibid, at para. 10. 134 Ibid, at para. 14. All national courts, including those covered by the third paragraph of Article 234, remain free to bring a matter before the CJEC, if they consider it appropriate to do so: see the CILFIT Case, ibid, at para. 15.
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an extension of the principle in Da Costa insofar as national courts were being permitted to examine the Court's previous case law in order to determine whether the point at issue had in substance already been dealt with, irrespective of the nature of the earlier proceedings or the precise content of the questions raised. The Court explained that, where the point had not previously been dealt with by the Court, the obligation to refer did not apply in cases in which "the correct application of Community law is so obvious as to leave no scope for any reasonable doubt".135 The national court was to ask itself whether the answer to the question would be equally obvious to the courts of the other member states and to the CJEC. This involved bearing in mind the characteristic features of Community law and the particular difficulties to which its interpretation gave rise. The Court mentioned three features in particular (i) that Community legislation was drafted in several languages, all of which were equally authentic, which meant that interpreting a provision of Community law involved comparing the different language versions; (ii) that Community law used its own terminology and that legal concepts did not necessarily have the same meaning in Community law as in the national laws of the member states; and (iii) that every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question was to be applied.136 Clearly the criteria set out by the Court in the CILFIT Case are also relevant where courts which are not covered by the third paragraph of Article 234 have to interpret Community law. This is because, where those criteria are satisfied, such courts may properly decline in the exercise of their discretion to make a reference. But the criteria laid down in the CILFIT Case apply only where the question of Community law raised before the national court is one of interpretation. Where there is a real possibility in proceedings
135 136
Ibid, at para. 21. Ibid, at paras. 17-20.
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before a national court of last resort that a Community measure is invalid, the matter must be referred to the CJEC.137 Although the CILFIT decision involved a departure from the strict terms of the Treaty, it is rarely attacked by critics of the Court's alleged activism. In CILFIT, the creative approach adopted to the interpretation of the third paragraph of Article 234 had precisely the opposite effect, allowing national courts of last resort to decide for themselves points of Community law which would otherwise have had to be referred to the CJEC.138 (b) Inferior National Courts Under the second paragraph of Article 234 (ex 177), courts and tribunals in the member states whose decision are further subject to a judicial remedy under national law enjoy a discretion in deciding whether or not to ask for a preliminary ruling on points of Community law they are called on to decide. It is well established that the national court in this situation is in principle the sole judge of whether a preliminary ruling is necessary and of the relevance of the questions referred. Thus, in Eurico Italia and Others,139 the Court pointed out that it has consistently held that it is solely for the national courts before which actions are brought, and which must bear the responsibility for the subsequent judicial decision, to determine in the light of the special features of each case both the need for a preliminary ruling in order to enable them to deliver judgment 137
See the Foto-Frost Case, Case 314/85, [1987] ECR p. 4199. For an evaluation of the CILFIT decision see Arnull, op. cit. note 2 pp. 67-68. 138 Was the Court wise to depart from the advice of its Advocate General on this issue? The risks inherent in the approach of the Court are evident. The philosophy underlying Article 234 is that, although the parties to a case cannot insist that inferior national courts make a reference, they can, by pursuing the case up to a court of last resort, ensure that relevant points of Community law will not be decided in the absence of guidance from the CJEC. The third paragraph of Article 234 is therefore a fail-safe mechanism which helps to guard against the threat to uniform application posed by inferior national courts which decide points of Community law incorrectly without making a reference to the CJEC. 139 Joined Cases C-332/92, C-333/92 and C-335/92, [1994] ECR I, p. 711 at para 17.
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and the relevance of the questions which they submit to the Court. In Rheinmilhlen v. Einfuhr-und Vorratsstelle Getreide the Court also indicated that a national court cannot be deprived of its power to make a reference by the rulings of superior national courts.140 But while the Treaty does not preclude a decision to refer from remaining subject to the remedies normally available under national law, the Court will act on the decision to refer until it has been formally revoked.141 But earlier the approach was for the Court not to question the decision of the national court to make a reference.142 The discretion enjoyed by the national courts was again questioned in the Foglia v. Novello Cases,143 where the Court refused to entertain a reference made in the context of a collusive action brought in one member state by parties who were not really in dispute with each other with the intention of challenging the compatibility with the Treaty of the law of another member state.144 But the Court's judgments in those cases were subsequently applied with considerable restraint.145 In Meilicke v. ADV/ORGA146 the Court refused to give a ruling, where the referring Court asked a lengthy and complex series of
140
Case 166/73, [1974] ECR p. 33, at paras. 4 and 5. Rheinmuhlen-Dusseldorf v. Einfuhr-und Vorratsstelle Getreide, Case 146/73, [1974] ECR p. 139 at para. 3, Salonia v. Poidomam, Case 126/80, [1981] ECR p. 1563, the Falciola Case, Case C-286/88, [1990] ECR I, p. 191. See also Irish Creamery Milk Suppliers Association v. Ireland, Joined Cases 36 and 71/80, [1981] ECR p. 735 at paras. 6-8. 142 See the Rheinmuhlen Case, Case 166/73 [1974] ECR p. 33 at para. 4. 143 Case 104/79, [1980] ECR p. 745 and Case 244/80, [1981] ECR p. 3045. 144 For criticism of the judgments in the cases see, e.g., Barav, "Preliminary Censorship? The Judgment of the European Court in Foglia v. Novello", 5 ELRev (91980) p. 443, Bebr, "The Existence of a Genuine Dispute: an Indispensable Precondition for the Jurisdiction of the Court under Article 177 EEC Treaty?" 17 CMLRev (1980) p. 525, and "The Possible Implications of Foglia v. Novello II", 19CMLRev(1982)p. 421. 145 Rau v. De Smedt, Case 261/81, [1982] ECR p. 3961, Parfumerie-Fabrik 4711 v. Provide, Case C-150/88, [1989] ECR p. 3891. 146 Case C-83/91, [1992] ECR I, p. 4871. See Kennedy, "First steps towards a European Certiorari?", 18 ELRev (1993) p. 121. 141
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questions on a company law directive referred to it by a court in Germany. The Court decided that the questions referred were hypothetical in nature and that the legal and factual background had in any event not been adequately explained. Meilicke proved to be the catalyst in a new approach by the Court for reviewing the circumstances in which references were made. There were several subsequent cases in which this new approach developed. In Telemarsicabruzzo v. Circostel,141 the Vice Pretore di Frascati referred two questions on the compatibility with the Treaty, and in particular the rules on competition, of provisions of Italian law restricting the right of private sector television channels to use certain frequencies. The orders for reference contained very little information about the factual background to the cases or the relevant provisions of Italian law. The Court explained that the need to give a useful ruling in proceedings under Article 234 made it essential for the national judge to define the factual and legislative background to the case, or at least the factual hypotheses on which the questions referred were based. Those requirements, it said, were particularly important in the field of competition, characterized as it was by complex legal and factual situations. The Court pointed out that the orders for reference in the case contained no information from the referring court's file as well as from the written and oral observations which had been submitted in the course of the proceedings. It was of the view that this was no more than fragmentary and did not enable the Court, in the absence of sufficient knowledge of the facts at the origin of the main actions, to interpret the Treaty competition rules in the light of those facts pursuant to the referring court's invitation. Hence, the Court concluded that there were no grounds for ruling on the questions submitted to it. The judgment in Telemarsicabruzzo was delivered by the grand plenum. It indicated clearly to national judges intending to make a reference under Article 234 that, if the background to the case was not clearly set out, the Court would decline to give a ruling. In a series of cases inadequately-explained references were dismissed as 147
Joined Cases C-320/90, C-321/90 and 322/90, [1993] ECR I, p. 393.
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manifestly inadmissible. The point made in that case has been accentuated in later cases.148 Moreover, in Zabala Erasun and Others,149 the Court refused to give a ruling, where it considered that a reference, although admissible at the time it was made, should have been withdrawn in the light of later developments. Clearly these cases emphasize the circumstances in which references should not be made and will be refused.150 There are limits, however, to the Telemarsicabruzzo line of authority. First, the Court's approach does not exclude the possibility of pursuing before the Court test cases, that is to say, real disputes which have implications for large 148
The Banchero Case, Case C-157/92, [1993] ECR I, p. 1085, the Monin Automobiles Case, Case C-386/92, [1993] ECR I, p. 2049, the Testa andModesti Cases, Joined Cases C-128/97 and C-137/97, [1998] ECR I, p. 2181, Nour v. Burgenldndische Gebietskrankenkasse, Case C-361/97, [1998] ECR I, p. 3101. 149 Joined Cases C-422/93, C-423/93 and C-424/93, [1995] ECR I, p. 1567. 150 There may, however, be some drawbacks in this approach. First, it may in fact lead the Court to refuse to rule on a question which the national court in fact needs to resolve in order to give judgment. In these circumstances, the national court is faced with the choice of making a further reference to the Court (see the Monin Automobiles Case, Case C-428/93, [1994] ECR I, p. 170, the Banchero Case, Case C-387/93, [1995] ECR I, p. 4663) or deciding the question itself. Where it decides the issue itself, there is a risk against which Article 234 is intended to guard—that of divergences in the application of Community law. In Dzodzi the Court had emphasized the need to ensure the uniform application of every provision of Community law, yet the threat to uniformity is surely greater where the Court refuses to assist a national judge seeking to apply a Community provision which may be directly relevant than where the scope of a Community provision has been enlarged by a member state. In his opinion in Leur-Bloem and Giloy, Attorney General Jacobs described Dzodzi as "irreconcilable" with the Telemarsicabruzzo line of case law: [1997] ECR I at p. 4181. Secondly, the Telemarsicabruzzo approach may discourage national courts from using the preliminary rulings procedure. It is not always easy for a judge, especially when he is unfamiliar with Community law and does not have the benefit of experienced counsel, to identify and formulate relevant questions and to set out the background to a case clearly and concisely. See Arnull, op. cit. note 2 pp. 58-60, Anderson, "The Admissibility of Preliminary References" 14 YEL (1994) p. 179, Barnard and Sharpston, "The Changing Face of Article 177 References", 34 CMLRev (1997) p. 113, O'Keefe, "Is the Spirit of Article 177 Under Attack? Preliminary References and Admissibility", 23 ELRev (1998) p. 509.
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numbers of people who find themselves in a similar position and which are therefore conducted with special vigor.151 Secondly, the Court in fact has dealt with some references which might have been covered by the Telemarsicabruzzo doctrine. In Vaneetveld,152 for example, the order for reference contained no information about the facts of the case. Advocate General Jacobs thought that the facts could be derived from the case file and the written observations, that, besides, the issue was a straightforward one and there was no doubt that the answer to the questions would be helpful to the referring court, and that, therefore, the reference should be admitted. The Court agreed stating that: It is true that the Court has held that the need to arrive at an interpretation of Community law which is useful for the national court requires that court to define the factual and legislative context of the questions, or at least to explain the factual hypotheses on which they are based... none the less, that requirement is less pressing where the questions relate to specific technical points and enable the Court to give a useful reply even where the national court has not given an exhaustive description of the legal and factual situation.153
The Court concluded that it had enough information to enable it to give a useful answer and did not declare the reference inadmissible. In Leclerc-Siplec v. TF1 Publicite and M6 Publicite,154 where the parties to the main action were agreed on the correct position under Community law, the defendant considered itself obliged to apply the relevant national law until the position had been clarified by the CJEC. The Commission argued that, because the parties were not in dispute, the reference was inadmissible. The Court refused to deal 151
Cases of this nature have made an important contribution to the development of Community law, notably in the area of equal treatment for men and women, and the Court has never shown any reluctance to deal with them: see, e.g., Worringham and Humphreys v. Lloyds Bank, Case 69/80, [1981] ECR p. 767, Equal Opportunities Commission, Case C-9/91, [1992] ECR I, p. 4297. 152 Case C-316/93, [1994] ECR I, p. 763. 153 Ibid, at para. 13. 154 Case C-412/93, [1995] ECR I, p. 179. See also URBSFA and Others v. Bosnian and Others, Case C-415/93, [1995] ECR I, p. 4921.
864
Chapter 17. The CJEC
with aspects of the question referred which did not relate to the dispute between the parties but said that the fact that the parties were in agreement as to the result did not make the dispute any less real, because other aspects of the question were objectively necessary to the outcome of the proceedings and dealt with them.155 It may be concluded that, where the referring court sets out clearly what the case is about and gives a plausible explanation of why it needs an answer to the question it has referred, the Court will normally proceed to answer it. However, it remains the case that the Court will not answer questions which are clearly irrelevant or spend time trying to identify what a case is about when this has not been properly explained by the national court.156 The Court does not at present have the power to ask the national court for clarification of its order for reference.
155
Case C-412/93, [1995] ECR I, p. 179 at para. 15. In late 1996 the Court took the unusual step of publishing a Note for Guidance on References by National Courts for Preliminary Rulings: see 1 CMLR [1997] p. 78. In that note, the Court attempted to summarize its case law and offered advice on what references should contain. The note was widely circulated and should help to improve the quality of the dialogue between the Court of Justice and the national courts on which the success of the preliminary rulings procedure depends. The Treaty of Amsterdam made certain changes in regard to the material scope of the Court's jurisdiction, particularly in relation to the Court's authority to make preliminary rulings. The scope of some of these changes is not clear. These changes and their impact have been discussed in Arnull, op. cit. note 2 pp. 69-74, and in Albors-Llorens, "Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam", 35 CMLRev (1998) p. 1273. See also Gibson and Caldeira, "Changes in the Legitimacy of the European Court of Justice", 28 British JPol.Sc. (1998) p. 63. 156
INDEX Abstract Question: See Advisory Opinions Actio Popularis 228, 736, 740, 742 See also ECHR Ad hoc Tribunals: See International Tribunals Adjudicatory Dispute Settlement: See International Adjudicatory Dispute Settlement Adjudicatory Methods 18-33 See also Dispute Settlement, International Adjudicatory Administrative Decision: See lATs Administrative Practices: See Practices, Administrative Administrative Review: See lATs Admissibility: See Receivability Advisory Opinions 27, 66, 171-8, 227, 466-74, 503^5, 726 abstract or political questions and 522-1 binding force of 508 competence to give: see herein jurisdiction to give concrete questions and 526 consent and 507, 508, 528 discretion and 506-7, 509, 5 3 7 - 4 Eastern Carelia Opinion principle 528-9, 534, 536 factual questions and 526-7 hypothetical answers and 525-6 incidental questions in 510 inherent jurisdiction and 503 interpretation and 510,542-3 jurisdiction to give 97, 227, 503-45 legal question and 227, 507, 521-7 object of 510,525 proprio motu actions and 537-8 reopening 542-5 resjudicata and 543 review and 466-74 revision of 543-5 scope of organization's activities and 510-21 specific terms of reference and 527 See also CJEC; Competence; ECHR; ICJ; PCIJ; Reopening Cases, Jurisdiction vis-a-vis Aequo et Bono, Ex: See ExAequo et Bono Agreement: See CJEC, Consent, Forum Pmrogatum
Agreements: See Conventions Agreement of Release: See Release, Agreement of Amendment 513 American Convention on Human Rights: See Conventions Annulment: See Reopening Cases, and under individual Tribunals or Courts Answers, Hypothetical: See Advisory Opinions Appeal: See CJEC; ICTR; ICTY; Reopening Cases, Jurisdiction vis-a-vis Arbitral Tribunals: See International Tribunals Arbitration, International 5, 11, 18, 19-26, 61, 63, 70-2, 121-4, 124-30, 132-3, 141-50, 158-9, 168-9, 190, 195-6, 199-200, 203-4, 205, 213-20, 221, 222, 260, 262, 268, 269, 281, 282-3, 288, 289, 291-4, 295-303, 315-20, 322, 328, 329-30, 332, 335,358,359, 375-7, 398, 406-22, 427, 436-8, 439-40, 450, 454-60, 474-7, 616-68, 671 development of 12-16 Greek city states and 12-14 interim measures in 346-7, 354-5, 375-7 interpretation in 101-2, 103, 104, 109-10, 111-12, 118-19 Jay Treaties and 19, 33, 48, 70, 121, 122 Middle ages 13-15 nation states and 15-16 resjudicata and 436-8 See also ICSID, Res Judicata revision and 454-60 See also ICSID, Reopening Cases, Jurisdiction vis-a-vis Rome and 13 See also Consent; Forum Prorogatum; ICSID; Competence de la competence; Remedies Arbitration, International Commercial: See International Commercial Arbitration Automatic Reservation: See Optional Clause Binding Force 508-9 See also Advisory Opinions, Finality Burden of Proof: See Proof, Burden of; Local Remedies, Exhaustion of Capacity, Inherent: See Inherent Powers Central American Court of Justice 412
866 CFI: See CJEC Chapter VII of Charter: See UN Charter, Chapter VII of: See Chapter VII of Charter Charter of UN: See UN Civil Law System 503 See also National Legal System Civil Service, International: See International Civil Service CJEC 11, 27, 28, 31, 33, 37, 38, 45, 46, 50, 75, 83,93, 242, 322, 359-68, 377, 391-2, 396, 426, 430, 431, 442-4, 451, 474, 503, 504,505,811-64 action for inactivity (Article 232 procedure) before 834-5 actions for damages (Article 235 procedure) before 839^2 admissibility in 815, 861-2, 863 advisory opinions by 97, 503, 504, 505 See also Advisory Opinions agreement of parties in 862-3 annulment in 811,819-34, 843-4, 854 appeal in 442-4 Article 226 procedure in 813-17 Article 227 procedure in 817 Article 230 procedure in 819-23 Article 88 procedure in 818-19 as IAT 834 See also lATs CFI of 831-3,841 Commission: see herein community institutions of CJEC community institutions of 837-8 compensation for damage in 812, 843-4 compliance by member with treaty and 811 concurrent liability before 845-7 contractual actions before 839-41 Council: see herein community institutions of CJEC courts of last resort and 855-9, 860 discretion to refer to 857-8, 859-60 enforcement action by 812-19 European Parliament before 824-7 finality in 426,430,431 form of consent for 83 fraud and corruption and 474 general principles and 841 hypothetical questions in 861 illegality (Article 241 procedure) in 835-8, 844 inferior national courts and 859-64
Index interpretation in 111, 480, 847, 848, 849-52, 852-3, 857, 858, 861 interim measures in 360-8, 377 intervention in 339-44 judicial remedy and 835, 859 lack of explanation in 861-4 legitimation active in 823-34, 837-8 legitimation passive in 823-34 liability for legislation (Article 228 procedure) before 842, 844 limitation periods in 842-3 national courts and 848-64 non-contractual actions against community before 841-2, 844 plenary jurisdiction of 812,838-47 preliminary rulings by 97, 811-12, 844, 847-64 private parties before 827-33, 837 ratione materiae and 812, 849-52 ratione personae and 812, 823-34 remedies in 391-2, 396, 843-4 review in 451,812,819-38,839 review penalties (Article 229 procedure) by 819-38, 839 superior national courts and: see herein courts of last resort and CJEC test cases in 862 validity of acts before 847, 849-52, 852-4, 859, 861 See also Jurisdiction; Remedies CJEC, Jurisdiction of: See CJEC Claims Commissions 34, 93, 288, 406, 408,415,437 Clause Contraire: See Competence de la competence Clauses, Compromissory: See Compromis Clauses, Jurisdictional: See Jurisdictional Clauses, Interpretation of Commission, Conciliation: See Conciliation Commission Commission, European: See CJEC Commissions, Claims: See Claims Commissions Common Law System 503 See also National Legal System Common Will: See Competence de la competence Communities, European: See European Communities Compensation: See CJEC; lATs; Remedies Competence 54, 58-62, 65, 78-82, 97, 121, 157, 158, 163-4, 165, 187, 189-240, 241,
Index 242, 243, 245, 257, 259, 287, 309, 506, 507, 509, 536-7, 670 advisory opinions and 506, 507, 509, 536-7 See also Advisory Opinions constitution of tribunal and: See Constitution of Tribunal criminal proceedings and 236-8 ex officio powers: see herein proprio motu powers forum prorogatum and: See Forum Prorogatum fundamental limitations on 222-38 identifying matters of 202-4 ius de non evocando and 237-8 judgment on, and resjudicata 200-2 legal dispute and 223-7 limitations on 191,203,213-38 merits and 189 mootness and 197, 203 See also Mootness non bis in idem and 236-7 objections to 309 preemption of 205-7 proof of 239-40 proprio motu powers 165, 192, 195-8, 202, 244, 287 Rule in Monetary Gold Case and: See Monetary Gold Case, Rule in scope of 213-22 third parties and 231-6 time for raising matters of 205-7 to settle disputes 189-240 See also Advisory Opinions; Consent; Constitution of Tribunal; ECHR; lATs; ICJ; ICSID; Intervention; Iran-US Claims Tribunal; PCIJ Competence de la competence 58-59, 65, 96, 121-162, 163^, 312-13 arbitration and 121-4 clause contraire 142-54 common will and 127-30 conflict of interest and 159-62 established courts and 150-4 finality of determination of 155-7 general jurisprudence and 130-5 history of 121^ inherent jurisdiction and 127-30, 141 judicial organs and 127-30 other tribunals and 15 7-9 proprio motu powers 154-5,161 rationale of 121-30 reservations 148-9
867 subjective determination of 151 See also Interpretation Competence, Fundamental Limitations on: See Fundamental Limitations on Competence Compromis: See Conventions Compromissory Clauses: See Compromis Compulsory Jurisdiction: See Optional Clause, Jurisdiction under Conciliation 12 See also ICSID Conciliation Commission 269, 271, 273, 274 See also ICSID Conflict of Interest: See Constitution of Tribunal; Competence de la competence Consent 21, 142, 207, 236, 287, 314-15, 631-5 admissibility and 88, 96 arbitration and 21, 83, 86-7, 631-5 competence and 88 derivative 89-93 form of 82-5 forum prorogatum and: see herein subsequent conduct general 79-80 lATs and 88-9, 94-5, 88-9, 94-5: see also lATs ICJ and 77-80, 84-5, 87 ICSID Convention and 81 -3, 86 indirect: see herein derivative individuals and 93-5 ineffective 99 inherent jurisdiction and 95-7 irrelevance of 97-8 jurisdiction and 57-8, 69-100, 189, 236 limits of: see herein parameters of parameters of 98-100 particular 79-80 PCIJ and 84 requirements for effective 77-89 subsequent agreement and 86-9 subsequent conduct and 86-9, 196-200 two step unwaivable limitations and 99 war crimes tribunals and 83, 89, 90-2, 93,96 See also Advisory Opinions; CJEC; ECHR; Forum Prorogatum; ICJ; ICSID; Intervention; Iran-US Claims Tribunal; Jurisdiction; Optional Clause Constitution of Tribunal 60-1,65, 161, 163-87,230
868 Constitution of Tribunal contd. competence to determine validity of 60-1, 65, 161, 163-87 conflict of interest and 160-2, 163-4 establishment by law and 185-7 lATs and 169-78 ICTY and 178-87 rule of law and 186 See also lATs; ICTY; Jurisdiction Constitutional Interpretation: See Interpretation Constitutive Instruments: See Conventions Consultation 12 Contentious Jurisdiction: See Jurisdiction Continuing Situation: See Situation, Continuing Continuous Nationality: See Nationality of Claims Contra Proferentem Rule: See Interpretation, PCIJ Contract, Transnational: See Transnational Contract Contracts 8, 9, 109-10, 289-90, 295-303 governing law of 9 Control: See ICSID, Nationality of Claims Control, Foreign: See ICSID Convention, ICSID: See ICSID Convention Conventional Law: See Conventions Conventions 4, 7, 123, 137, 153, 164, 190, 193, 199, 203, 207, 212-20, 221-2, 225, 229-35, 246, 261-2, 266-7, 273, 275, 288, 289, 300-2, 319, 342, 343, 347, 408, 410, 411, 415, 416, 421, 425, 426, 427, 440, 442-8, 449-74, 477-502, 503, 504, 507, 508, 510, 511, 512, 514-18, 519, 522, 526-42, 544, 545, 555-6, 727-810, 811-64 American, on Human Rights 111, 261, 322, 391,393,474,504-5 European, on Human Rights 194, 322, 391, 393^,474,504,727-810 Geneva 220 investment 190 negotiations and 103 Pacific Settlement of International Disputes, on 16,19,21,25,131 travaux preparatoires and 301-3 See also Travaux Preparatoires unequal 103 Vienna, on treaties (1969) 85, 101, 102, 110, 114, 115, 119, 120, 153,612-13, 630 See also ICSID Convention, Interpretation
Index Corruption: See CJEC; Fraud; Iran-US Claims Tribunal; Reopening Cases, Jurisdiction vis-a-vis Costs: See lATs Council, European: See CJEC Court, Rules of: See Procedure, Rules of Courts, Established: See Established Courts Courts, International: See International Tribunals Courts, National: See National Courts Criminal Penalties: See Remedies Criminal Court, International: See International Criminal Court Criminal Proceedings: See Competence Customary International Law 4, 137, 140, 164, 259, 260, 262, 264, 273, 285, 730, 770, 777-9, 779-803 interpretation and 105 See also Interpretation Damages: See CJEC; lATs; Remedies Damages, Punitive: See Punitive Damages Decision, Administrative: See Administrative Decision Declarations, Unilateral: See Interpretation Declaratory Judgment: See Judgment, Declaratory Denial of Justice 300,304 Denunciation: See ICSID; Optional Clause Diplomatic History 225 Diplomatic Protection 259-86, 165-6, 770-803 See also Admissibility; ECHR; Local Remedies, Exhaustion of; Nationality of Claims Direct Injury: See Local Remedies, Exhaustion of Discretion: See Advisory Opinions; CJEC; Jurisdiction Dispute, Legal 193, 198, 223-7, 241, 243, 557, 636-43 See also Competence; ICJ; ICSID; Jurisdiction; PCIJ Dispute Settlement, Adjudicatory: See International Adjudicatory Dispute Settlement Dispute Settlement, International Adjudicatory 3-46, 289, 569 aliens and 3, 5 arbitration and 5,19-26 individuals and 3, 4, 5, 8, 9, 11, 20
Index
869
European Convention on Human Rights, incompatibility with, and 728, 729, 737, 764-7 final decision and 803-7 form of consent and 83 fundamental rights and 736 individual applications in 728, 729-30, 737, 738-50, 750-5, 755-7, 757-70, 770-803 interpretation and 110, 769-70 inter-state cases in 728, 729, 730, 735-8, 750-5, 755-7, 770-803 intervention and 331 jurisdiction of 194-5, 206, 727-810 See also Competence; Admissibility, Jurisdiction legislation and 736, 741-4, 796, 797-8 manifestly ill-founded applications in 728, 729, 737, 767-70 new system and 807-10 old system and 807-10 passive legitimation and 750-5 preliminary objections and 733 prima facie evidence and 737-8, 768 proprio motu powers and 750 Eastern Carelia Opinion, Principle in 528-9, ratione loci conditions and 730, 764-5 534,536 See also Advisory Opinions ratione materiae conditions and 730, EC: See EEC 755-7, 764-5, 768, 769, 777-8, 809 ECHR 11,27,31,33, 36-7, 45, 46, 50, 70, ratione personae conditions and 730, 735-55, 764-5, 777 75, 131, 150, 151, 194, 206, 242, 245, 246, ratione temporis conditions and 730, 287, 331, 391, 393-4, 399, 426, 466, 503, 732-4, 764-5 504, 505, 727-810 remedies in 391,393-4,399 absence of new information and 728, 729, 761-4 resjudicata and 426 restrictions on jurisdictional acceptances in abuse of right of complaint and 728, 729, 758-60 734-5 review by 426, 466 actio popularis and: SeeActio Popularis six month rule in 729, 803-7 active legitimation in 734, 738-50 submission to another procedure and 728, administrative practice and 736, 744, 796, 797-8 729, 761-4 substantial similarity and 728, 729, 761-4 admissibility and 194-5, 728-9, 757-807, territories and 730-1 807-10 advisory opinions and 503, 504, 505 victim, being, and 739-50, 809-10 See also Jurisdiction; Remedies anonymity and 728, 729, 757-8 competence and 131,194-5, 729, ECOSOC 511 ECSC 170, 460, 818, 834, 835 730-57, 807-10 destruction of rights under European See also CJEC; EU; TEU EComHR 194-5, 206, 287, 727-810 Convention and 764-7 See also ECHR domestic remedies and 728, 729, EEC 170, 451, 480, 504, 677, 686, 700, 770-803 704, 812-61 See also Domestic Remedies See also CJEC; TEU erga omnes protection and 773 international organizations and 3, 7, 8, 20 proliferation of 33^4 states and 3, 4, 7, 8, 20 structure of modern 16-18 submission to 291-4 Disputes, International 3-9, 197, 425 aliens and 3, 5 individuals and 4, 9 inter-governmental organizations and 4 nationals and 4, 9 states and 4 subjects of international law and 4, 7 Disputes, Transnational: See Transnational Disputes Disqualification of Judges 163 See also Conflict of Interest Domestic Jurisdiction: See Jurisdiction Domestic Remedies: See ECHR; Local Remedies Dominant Nationality: See Nationality of Claims Dual Nationality; See Nationality of Claims
870 Effective Link: See Nationality of Claims Effective Nationality: See Nationality of Claims EIB 834 See also CJEC; EU; TEU Employment 6, 7, 76 disputes 6 international organizations and 6 staff 6 See also lATs; International Organizations Errors: See Rectification; Reopening Cases, Jurisdiction vis-a-vis Established Courts: See International Tribunals; Competence de la competence Estoppel 285,305-8 See also Local Remedies, Exhaustion of; Receivability EU: See EEC EURATOM 170, 451, 480, 504 See also CJEC; EU; TEU European Commission: See CJEC European Communities 339, 342 See also European Union; EC; EC Treaty; ECSC; ECSC Treaty; EEC; EU; Euratom; Euratom Treaty European Convention on Human Rights: See Conventions, ECHR European Council: See CJEC European Parliament: See CJEC Exhaustion of Local Remedies: See Local Remedies, Exhaustion of ExAequo et Bono 100 See also Equity; lATs; ICSID; Optional Clause Express Waiver: See Waiver Finality: See Reopening of Cases, Jurisdiction vis-a-vis Finality of Judgments: See Judgments, Finality of Force, Binding: See Binding Force Foreign Control: See ICSID Forum Prorogatum 56, 86-9, 196-200, 205, 287,310,549-68,583,610 agreement and: see herein consent arbitration and 86, 199-200, 205 consent and 549-68 competence and 198-200, 205 declaration and 553 evolution of 552-4 general considerations 550-2 limitations on 566 maturation of consent and 555-66
Index mootness and 197 procedure for 566 unilateral arraignment and 566-8 See also Consent; ICJ; Jurisdiction; PCIJ Fraud: See CJEC; Iran-US Claims Tribunal; Reopening Cases, Jurisdiction vis-a-vis Fundamental Limitations on Competence: See lus Cogens Fundamental Principles of Law: See General Principles of Law; lus Cogens GA: See UNGA General International Law: See Customary International Law General Principles: See CJEC, General Principles of Law General Principles of Law 4, 137, 139, 141, 166-8, 213, 222-38, 262, 273, 304, 423, 427, 440, 454-66, 480-91, 697, 725 See also lus Cogens Geneva Conventions: See Conventions Good Faith 287, 305-308 See also Interpretation; Local Remedies, Exhaustion of; Nationality of Claims Governing Law of Contracts: See Contracts Hague Peace Conferences 16,71 History, Diplomatic: See Diplomatic History Human Rights 186-7, 245, 261, 273 See also Conventions; ECHR; EComHR; IACHR; Local Remedies, Exhaustion of; Nationality of Claims Human Rights, American Convention on: See Conventions Human Rights, European Convention on: See European Convention on Human Rights Human Rights Protection: See Human Rights IACHR 11, 27, 31, 33, 46, 50, 70, 75, 195, 245, 261-3, 290, 391, 426, 460, 503, 504 advisory opinions by 503, 504 interpretation by 110-11 remedies in 391, 392-3 review by 425-6 See also ECHR, Human Rights lATs 6-7, 37-41, 45-6, 50, 51-2, 76-7, 83-4, 87, 88-9, 94-5, 113-15, 131, 150, 156-7, 160-2, 164-8, 169-78, 184, 190, 192, 193-4, 200-1, 204, 228, 230, 243, 246, 386-7, 395-6, 426, 427, 428, 429, 430, 431, 440-1, 442, 450, 451, 460-3, 466-74, 488, 503, 526, 257, 529, 534-5, 538-9, 669-726
Index abuse of discretion and 671 administrative decision, annulment of, and 671,684,703,705-6,707 administrative decision, rescission of: see herein administrative decision, annulment of administrative review in 697 admissibility and: see herein recevabilite advisory opinions and 503,506-45,671 agreement of release in 694-6 annulment in 701,703,705-6 compensation in 700,701,702,703, 706-11,724-5 competence of 670,671,672,674-86 costs in 711-14 damages in: see herein compensation declaratory judgments by 671 equity in: see herein ex aequo et bono doctrine ex aequo et bono doctrine in 707 exceptional circumstances and 690-2 extension by agreement and 689-90 general nature of remedies in 704-14 inherent powers and 702-4, 713 insufficient clarity and 693—4 internal remedies in 696-700 international tribunals, as 6 interpretation and 113-5 interpretation of judgments and 488, 489-91, 721 juridiction d'attribution and 669 juridiction de droit commun and 669 jurisdiction of 669-726 laches and 687 legislation and 671,672,683 mandatory provisions and 687-9 material damages in: see herein material injury material injury and 707-8, 709, 710,711 moral injury in 707-8, 710, 711 proprio motu powers of 673, 689 ratione materiae jurisdiction and 672, 679, 680-6 ratione personae jurisdiction and 672, 675-80 ratione temporis jurisdiction and 672, 674-5, 686-93 recevabilite and 670, 671, 679, 686-700 rectification in 479-721 remand in 711 remedies, jurisdiction to grant, in 700-14 representation before 37-41
871 resjudicata in 440-1, 442, 715-16, 717 rescission in 701, 702, 703, 704, 705-6 respondent, inappropriate, and 700 review, jurisdiction to, in 450, 451, 460-3, 466-74, 715-26 scope of claims in 696 specific performance in 702, 703, 704, 705-6 staff associations and 671, 672, 677, 680 terminus a quo and 690-1 waiver and 688 See also CJEC; Consent; Constitution of Tribunals; Jurisdiction; Local Remedies, Exhaustion of; Remedies lATs, Individual: See lATs Individual International Administrative Tribunals, such as ADBAT, AfDBAT, COEAB and COEAT, CSAT, ESA App. Bd., ICMAB and ICM Tribunal, IDBAT, ILOAT, IMFAT, LNT, NATO App. Bd., OASAT, OECDAB and OECDAT, UNAT, WBAT are not indexed as such. They are covered under title lATs. ICCPR 446,448-9 ICJ 6, 17-18, 25, 27-30, 33-4, 35,45, 50-1, 54-5, 59, 60, 62-3, 67-8, 70, 72-5, 77-81, 83,87,97,99, 107, 115, 130, 131, 132, 135-40, 141, 143, 146-7, 150-4, 155-6, 157-9, 169, 171-8, 187, 189, 190, 192-3, 196-8, 199, 200, 201, 204, 205, 207-13, 221, 224-36, 239-40, 242, 250-7, 268-9, 270-1, 276-81, 282, 283, 287, 291, 292, 294, 295, 296, 297, 305-8, 311-14, 315, 318, 322-9, 330, 331, 335-9, 342, 344, 345, 348-54, 356-60, 368-75, 377-83, 392, 394, 395, 396, 397-406, 421, 422, 426, 427, 431-6, 450, 460-1, 466-74, 479, 480-5, 486, 487, 488, 489, 490, 491, 503, 504, 505, 506-45, 549-616, 639, 640, 641, 642, 646-7, 662, 669-70, 676, 677, 681, 685, 686, 708, 712-13, 726 advisory opinions of 503, 504, 505, 506-45, 726 competence of: see herein also ICJ consent and 77-80, 84-5, 87, 97, 99, 100 forum prorogatum and : See Forum Prorogatum interim measures in 348-60, 377-83 interim measures, jurisdiction in regard to 368-75
872 ICJ contd. interpretation by 101, 103, 104, 105, 107-9, 115, 116-17,479,480-5,486, 487, 488, 491, 506-45, 549-616 jurisdiction of 189: see herein also ICJ Monetary Gold Case, rule in 231-6, 528, 536-7 Optional Clause of: See Optional Clause remedies in 388-9, 392, 394, 395, 396, 397-^0 reopening cases by 426, 427, 431-6, 450, 452-4, 460, 466-74, 479, 480-5, 486, 487, 488, 490, 491 See also Consent; Jurisdiction; Remedies ICJ, Statute of: See Statute of ICJ ICSID 5, 26, 33, 45, 71, 81-2, 83, 86, 109-10, 131, 132, 144, 148-9, 156, 200, 280, 284, 288, 301, 330, 346, 358, 359, 376, 395, 406, 426, 451, 478, 480, 491-502,617-68 Amerasinghe on control and 665-7 annulment and 471-502 See also Reopening Cases, Jurisdiction vis-a-vis awards of 624,625,626 competence of 626-68 conciliation and 621-4, 643 consent for 81-2, 83, 94, 626, 627, 631-5 constituent subdivision and 643-4 control and 283, 284 corporations and: see herein juridical persons denunciation and 632 designation and 644 dispute, legal, and 636-7, 643 dual nationality and 649 ex aequo et bono and 623, 643 finality and 426 See also Res Judicata foreign control and 653-68 form of consent in 83 government owned entities and 645 governments and 645 in favorem jurisdictionis in 628, 663 interim measures in 346, 358 interpretation and 109-10, 626-31 See also Interpretation investment and 635-6 juridical persons and 650-68 jurisdiction of 625, 626-68 law applicable and 623 MNCs and 616
Index nationality and 625, 644-68: see also herein jurisdiction of natural persons and 646-50 non liquet and 623, 625 outline of system of 621-5 partnerships and 667 proceedings for arbitration under 621-4, 625, 643 proprio motu powers and 637 rationale for 616-21 ratione materiae jurisdiction of 626, 635^3, 658 ratione personae jurisdiction of 626, 643-68 recevabilite in 626 remedies in 395, 406, 623-4 See also Remedies reasonable possible criterion and 661 review and 451 See also Reopening Cases shareholders and 663 special features of 624-5 state agency and 643-4 subsequent agreement in 86 subsequent conduct in 86 terminations and 632-3 travaux preparatoires in 628, 629, 630, 641,645 via media approach in 628 See also Consent; Interpretation; Jurisdiction; Remedies; Reopening Cases, Jurisdiction vis-a-vis ICSID Convention 5, 26, 45, 71, 81-2, 83, 94, 131, 190, 283, 288, 289, 297, 300-1, 320, 346, 359, 376, 395, 426, 451, 474, 480, 491-502,617-68 See also ICSID ICTR 11,32, 36, 46, 50, 70, 89-90, 90-2, 112-113, 150, 190, 198, 206, 391-2, 444-9,451 appeal in 444-9 finality and 426 interpretation by 112-13 remedies in 391-2 See also Jurisdiction; Remedies ICTY 11, 32, 36, 46, 50, 52-4, 59, 70, 83, 87, 89-92, 96, 112-13, 133-4, 135, 141, 144, 145, 150, 151, 169, 190, 198, 206, 220-1, 237-8, 391-2, 396, 426, 444-9, 451 appeal in 444-9 constitution of 178-87
Index finality in 426 interpretation by 112-13, 120 remedies in 391-2, 396 See also Constitution of Tribunal; Jurisdiction; Remedies Implied Powers 172-8 See also Inherent Powers HA: See International Institute of Agriculture ILA 270 ILC 130, 157, 265, 270, 274, 276, 298, 305, 306 ILO 51,171,679,726 See also lATs; International Organizations Immunities: See International Tribunals Implied Waiver: See Waiver In Favorem Jurisdictionis Principle: See ICSID; Jurisdiction Inadmissibility: See Receivability Incidental Jurisdiction: See Interim Measures; Intervention; Jurisdiction Individuals 3, 4, 5, 8, 9, 11, 93-5 consent and 93-5 See also CJEC; Consent; ECHR; lATs; ICSID; International Tribunals; Intervention Inherent Capacity: See Inherent Powers Inherent Jurisdiction: See Advisory Opinions; Consent; Competence de la competence', Remedies; Reopening Cases, Jurisdiction vis-a-vis Injunctions, Negative: See Negative Injunctions Inherent Powers 172-8 See also Advisory Opinions; Competence de la competence; Consent; lATs; Iran-US Claims Tribunal; Jurisdiction; Remedies; Reopening Cases, Jurisdiction vis-a-vis Injury direct: See Direct Injury material: See Material Injury moral: See Moral Injury personal: See Personal Injury Institutionalized Tribunals: See ICSID; International Tribunals Instruments, Constitutive: See Conventions Intentions: See Interpretation Interest, Conflict of: See Constitution of Tribunal; Competence de la competence Interest 227-8, 638, 736-7 ECHR and 736 lATs and 228 ICSID and 638
873 See also CJEC; ECHR; lATs; ICJ; ICSID; Intervention; PCIJ; Remedies Interests: See Local Remedies, Exhaustion of Interim Measures 57, 61-3, 65, 96, 190, 344-83, 559-60, 564-5 arbitration and 375-7 basic jurisdiction for 345-358 orders of, legal effect 377-83 prima facie test and 349-58, 559-60, 564-5 principles for jurisdiction 358-67 See also CJEC; ICJ; ICSID; International Arbitration; Iran-US Claims Tribunal, Jurisdiction; PCIJ Internal Remedies: See lATs, Local Remedies, Exhaustion of International Adjudicatory Dispute Settlement: See Dispute Settlement, International Adjudicatory International Arbitration: See Arbitration, International International Civil Service 6, 427 International Commercial Arbitration 9, 10, 132-3,300-3,320,427 International Courts: See International Tribunals International Criminal Court 94,451 International Disputes: See Disputes, International International Institute of Agriculture 176 International Instruments: See Conventions International Law, General: See Customary International Law International Law, Customary: See Customary International Law International Law, Private: See Private International Law International Law, Private: See Private International Law International Law, Public: See Public International Law International Legal System 7, 12, 56-8 International Organizations 5, 7, 115, 140, 169-78, 506, 507, 510-21, 670, 678 organ of 511-12,520-21 See also under each different organization; Advisory Opinions; lATs, International Tribunals International Personality: See International Tribunals International System: See Jurisdiction International Tribunals, Standing: See International Tribunals
874 International Tribunals 6, 7, 9-12, 27-33, 92, 112, 121, 127, 132-5, 190,210,243, 389-90, 503, 569 ad hoc 11,35,46,142,205, arbitral 9, 19-26, 61, 86, 132-3, 139, 190-1, 195-6, 288, 294, 608, 317-20, 346-8, 356, 358-60, 406-22, 425-502, 616, 668 established: see herein standing International Tribunals immunities of 41,42,43-44 individuals and 11 institutionalized 330 See also ICSID international organizations and 10,11 international personality of 41-3, 44 interpretation and 117 See also Interpretation mixed arbitral 11,317-20, 335 representation before 34-41 standing 11, 27-33, 150-4, 187, 196-8, 205,328,330,421,426,460 states and 10, 11 status of 41-6 See also Arbitration; CJEC; ECHR; IACHR; lATs; ICJ; ICSID; Competence de la competence; Jurisdiction; PCIJ; Remedies Interpretation 101-20, 138, 169-78, 190-91, 203,303,509,513-14,611-16 ambiguity in 105, 106, 628 competence de la competence and 121—62 constitutional 514-18 contra proferentem 102-5, 115, 611 effective approach in 172-8,614-16 functional approach in 173-8,191 good faith and 109-10, 117, 119 ICSID and 623,626-31 intentions and 102, 105, 106-10, 119, 613-14,629 judgments, of 311 jurisdictional clauses, of 101-20, 127 meaning in context for: see herein ordinary meaning negotiations and 103, 108, 110, 119 object and purpose in 119 ordinary meaning in 101-2,103,119, 611-12,616 pacta sunt servanda and 109, 627 presumptions of 102 remedial clauses, of 392-4 restrictive 102,103,104,105-15,117
Index sovereignty and 105-6, 114-48 speciality principle in 514-15 supplementary means of 119-20 surrounding circumstances and 109-10 travaux preparatoires in 110, 119, 628, 629,630,641,662 unilateral declarations 105, 107-9 ut magis valeat quam pereat in 151, 627, 631,357 See also Advisory Opinions, CJEC, ICTR; ICTY; International Arbitration; International Tribunals; Iran-US Claims Tribunal; ITLOS; Competence de la competence; Optional clause; PCIJ; Remedies; Reopening Cases, Jurisdiction vis-a-vis Interpretation, Constitutional: See Interpretation Interpretation of Judgments: See Judgements, Interpretation of Intervention 314-44 changes of pleas and 335 CJEC and 339-44 consent of principal parties and 314-29 definition of dispute and 338 individuals and 335-42 judicial interest: see herein legitimate interest jurisdictional link and 324-7 legal interest: see herein legitimate interest legitimate interest for 317-19, 329-35 moral interest for: see herein legitimate interest object of 335-7 other requirements and 329-35 ratione materiae requirements and 331 ratione personae requirements and 331 right of 323,330,331 scope and procedures of 335-9, 340 time for 337-8 See also Arbitral Tribunals, Arbitration; CJEC; ECHR; lATs; ICJ; ICSID; Incidental Jurisdiction; Jurisdiction; PCIJ Intra Vires 171,511-18 Investment: See ICSID Investment Treaties: See Conventions Iran-US Claims Tribunal 11, 33-4, 46, 62, 71, 131, 132, 190, 195, 203-4, 206, 214-20, 246-9, 271-2, 273, 274, 275, 281, 283-4, 293, 319-20, 331, 346, 354-5, 358, 395, 406, 441, 460, 463-6, 476-7, 488-9, 490 admissibility before 246-9 competence of 190, 195, 203-4, 206, 214-20
Index consent and 86 corruption and: see herein fraud and corruption fraud and corruption before 476-7 interim measures and 346-7, 354-5, 375-6 interpretation by 112, 48 8-9, 490 rectification by 477-8 remedies in 395, 406 review by 460, 463-6 Irreceivability: See Receivability ITLOS 11, 27, 31, 33, 34, 35, 46, 50, 70, 75, 83, 113, 133, 134, 150, 153, 187, 193, 206, 257-8, 396, 422, 460, 474, 480 interpretation in 113, 120, 222, 312, 320-2, 330-1, 346, 355-6, 357, 359, 426, 480: see also Interpretation See also Competence; Consent; Jurisdiction; Remedies lus Cogens 222-38 criminal proceedings and 236-8 See also Competence, Fundamental Limitations on; ICTR; ICTY; Remedies lus de non Evocando: See Competence lus Sanguinis: See Nationality of Claims lus Soli: See Nationality of Claims Judges, Qualification of: See Qualification of Judges Judgment, Declaratory: See lATs; Local Remedies, Exhaustion of; Remedies; Waiver Judgments, Finality of 155-7, 161-2, 245, 801 advisory opinions and 508-9 See also CJEC; ICSID; ICTR; ICTY; Competence de la competence; Reopening Cases, Jurisdiction vis-a-vis Judgments, Interpretation of: See lATs; Interpretation; Reopening Cases, Jurisdiction vis-a-vis Judgements, Revision of: See Revision of Judgments Judicial Function, Character of 137-8, 145-54, 236, 503, 510, 522, 527-37 Judicial Function, Quality of: See Judicial Function, Character of Judicial Organs: See Competence de la competence Judicial Settlement 12-16, 18, 289 by arbitration 18,19-26 by court 18,26-33 ex aequo et bono 18
875 legal rules and 18 third party 12-16,18 See also Dispute Settlement, International Adjudicatory Juridical Persons: See ICSID Jurisdiction 189, 242, 243-4, 249, 309, 610-11 advisory opinions and: See Advisory Opinions attribue: see herein d'attribution basic: see herein primary consent and 57-8 constitution of tribunal and 60-1 contentious 508, 528 d'attribution 55, 113, 190, 204 de droit commun 55, 113, 190 d'exception 55, 627 discretion and 147-8, 151, 203, 236, 238-9, 242, 472^ diversity of connotation 49-56, 200 domestic 139,241,262 ex officio consideration of: see herein proprio motu powers forum prorogatum and 56,196-200 See also Forum Prorogatum in favorem jurisdictionis 610-11 inadmissibility and: see herein irreceivability incidental 62, 65, 95-7, 190, 311-83, 560 interim measures and 57, 61, 63, 344-83 international organizations and 140 international system and 56-8 interventions and 96 irreceivability and 62-3 locus standi and: see herein ratione personae meaning of 49-68 merits and 64 mootness and 197, 228-30, 241 See also Mootness national legal systems and 56-8 objections to 196-8, 206, 560, 564, 572, 576-8 other tribunals and 157-9 preliminary objections to: see herein objections primary 60-2, 189-240 primary sense of 57, 64-6, 134, 550 proofof 239-40 proprio motu powers and 57, 147, 161, 165, 192, 195-8,244,471-4 provisional measures and: see herein interim measures ratione loci 198,550 ratione materiae 198, 220, 323, 550, 558
Index
876 Jurisdiction contd. rationepersonae 194, 215-20, 323, 550 ratione temporis 198 remedies and 63-4, 66, 96, 385-423 revision and 63-4, 66, 96 rules of procedure and 206-7 seisin and 66-8 sources of: See Sources of Jurisdiction See also Admissibility; Advisory Opinions; Competence; Consent; Constitution of Tribunal; ECHR; Eastern Carelia Opinion', Forum Prorogatum; lATs; ICJ; ICSID; Interest; each individual tribunal and court; Competence de la competence; Legal Dispute; Monetary Gold Case; Optional Clause; Receivability; Rules Jurisdiction, Compulsory: See Compulsory Jurisdiction Jurisdiction, Contentious: See Jurisdiction Jurisdiction, Domestic: See Jurisdiction Jurisdiction, Incidental: See Incidental Jurisdiction Jurisdiction, Inherent: See Inherent Jurisdiction Jurisdiction, Plenary: See Plenary Jurisdiction Jurisdiction, Sources of: See Sources of Jurisdiction Jurisdiction of CJEC: See CJEC Jurisdictional Clauses, Interpretation of: See Interpretation Jurisdictional Connection: See Local Remedies, Exhaustion of Jus Sanguinis: See lus Sanguinis Jus Soli: See lus Soli Justice, Denial of: See Denial of Justice Laches: See lATs Law, Conventional: See Conventions Law, National: See National Law Law, Private International : See Private International Law Law, Public International: See Public International Law Law of Contract: See Contracts Legal Dispute: See Dispute, Legal Legal Interest: See Interest Legal System, International: See International Legal System Legal Systems, National: See National Legal Systems Legitimation Active: See CJEC; ECHR Legitimation Passive: See CJEC; ECHR
LN
546, 176, 228, 530, 531, 544-5, 676 See also lATs Local Remedies: See Local Remedies, Exhaustion of Local Remedies, Exhaustion of 241, 243, 245, 257, 259, 260, 273, 284-6, 286-308, 696-700, 728, 729, 770-803 accessibility of remedies and: see herein availability of remedies adequacy of remedies and 285, 785-7, 792, 793-5, 797 administrative practices and 797-8 availability of remedies and 285, 782, 792, 793, 797 basic considerations and 771-9 burden of proof in relation to 285, 803 constitutional courts and 784-5 continuing situation and 286, 801-3 direct injury and 285, 779-80 discretionary remedies and 784-5 effectiveness of remedies and 285, 785-7, 793-5, 797 essential recourse and 789 estoppel and 285, 305-8 ex officio powers and 799-800 final decision and 285, 790-2, 803-7 human rights protection and 728, 729, 770-83 lATs and 686-700 interests and 285 Jurisdictional connection and 285 legislative measures and 797-8 limitations on 285, 792 nature of remedy and 782-5 normal use and 786-7 obvious futility and 285, 793-5 prevailing condition and 796-7 procedural nature of rule of 286 procedural resources in relation to 285 raising objections based on 286, 799-800 raising of arguments and 787-9 reasonable success and 793-5 resort to remedies in relation to 286 scope of rule of 782-92 time for 801 time to raise objection based on: see herein raising objections based on unreasonable delay and 795-6 waiver and 285, 286-305 Local Remedies, Objections based on: See Local Remedies, Exhaustion of
Index
877
Material Injury: See lATs MATs: See Claims Commissions; International Tribunals Measures, Interim: See Interim Measures Mediation 12 Methods, Adjudicatory: See Adjudicatory Methods MIGA 301-2 Mixed Arbitral Tribunals: See MATs Mixed Claims Commissions: See Claims Commissions MNC: See ICSID Monetary Gold Case, Rule in 231-6, 528, 536-7 See also ICJ Mootness 197,228-30,241 lATs and 230 See also Competence; Forum Prorogatum; ICJ; Jurisdiction Moral Injury: See lATs; Remedies Moral Interest: See Interest Multiple Nationality: See Nationality of Claims
effective nationality and: see herein dominant nationality good faith and 265-6 human rights protection and 771-9 juridical persons and 259, 266, 282-4 jus sanguinis and 263—4 jus soli and 263-4 multiple: see herein dual nationality nationality of ships for 264 naturalization and 262, 277 refugee status and 259 statelessness and 259 waiver and 204 See also ICSID Natural Persons: See ICSID, Individuals Naturalization: See Nationality of Claims Negative Injunctions: See Remedies Negotiation 12 See also Conventions; Interpretation Non Bis in Idem: See Competence Non Liquet: See ICSID Nullity: See Annulment; ICSID; Reopening Cases, Jurisdiction vis-a-vis Nullity, Partial: See Annulment; ICSID; Reopening Cases, Jurisdiction vis-a-vis Nuremberg Tribunal: See War Crimes Tribunal
NAFTA 5,11,131,320,331 National Courts 7, 12, 69-70, 92, 127, 162, 176 See also CJEC National Law 8,214,304 violation of 11,12,304 National Legal System 8, 9, 56-8, 503 See also Jurisdiction Nationalities 10 Nationality: See ICSID; Nationality of Claims Nationality, Continuous: See Nationality of Claims Nationality, Dominant: See Nationality of Claims Nationality, Dual: See Nationality of Claims Nationality, Effective: See Nationality of Claims Nationality, Multiple: See Nationality of Claims Nationality of Claims 193, 203-4, 241, 245, 258, 259-84, 625, 735-6, 737, 738, 771-9 continuous nationality and 259, 281-2 control and 284 determination of nationality for 259, 261-6 dominant nationality and 269-75 dual nationality for 259, 264, 266-77 effective link and 259, 262, 263-6, 268-9, 277-81
OAPEC 170 OAS 505 See also lATs; International Organizations Objections to Receivability: See Receivability Optional Clause: See Optional Clauses, Jurisdiction under Optional Clause, Jurisdiction under 139, 151^, 211-13, 257, 291, 568-616 agreement and: see herein consent automatic reservation and 150,151-4 common will and: see herein consent consent and 568-616 denunciation of 212-13 ex aequo et bono and 576 interpretation of 611-16 proprio motu powers and 610—11 quality and 578 reciprocity and 569, 575, 578-84, 597 reservations to 139, 569, 580-4, 584-611 validity of 603-11 waiver and 291 See also ICJ; PCIJ Organ, Subordinate: See Subordinate Organ Organ, Subsidiary: See Subsidiary Organ
Local Remedies, Rule of: See Local Remedies, Exhaustion of Locus Standi: See Jurisdiction
Index
878 Organizations, International: See International Organizations Organs, Judicial: See Judicial Organs Pacific Settlement of Disputes: See Conventions Pacta Sunt Servanda: See Interpretation PAHO 675 See also lATs; International Organizations Partial Nullity: See Nullity, Partial PCA 25, 33, 45, 71, 130, 131, 144, 148-9, 412,414 PCIJ 11, 12-13, 25, 27, 33, 34, 45, 46, 50-1, 56-7, 60, 63, 72, 77, 99, 101, 131, 135-6, 143, 144, 150, 196, 197, 199, 205, 207, 209-13, 224, 243-4, 250, 251, 260, 261, 281, 291, 292, 295, 296, 303-4, 305, 311, 316, 390, 395, 397-406, 410, 421, 427, 428, 434, 439, 452, 457, 459, 480-2, 486-7, 503, 505, 506, 509-10, 515, 527-31, 534, 536, 538, 543, 544, 549-616, 639, 642 advisory opinions of 503, 505, 506, 509-10, 515, 527-31, 534, 536-8, 543, 544 See also Advisory Opinions contra proferentem rule in 102-3 forum prorogatum before: See Forum Prorogatum interim measures and 368-75 See also Interim Measures interpretation by 101, 102-3, 105, 106-7, 110-11, 116-18,303-4,480-2,486-7 See also Interpretation optional clause of: See Optional Clause resjudicata in 426, 427, 434 See also Res Judicata remedies in 390, 395, 397-406, 421 See also Remedies restrictive interpretation in 105, 106-7 review by 452, 457 See also Reopening Cases sovereignty and 107-8 See also Consent; Jurisdiction; Remedies PCIJ, Statute of: See Statute of PCIJ Peace Conference, Hague: See Hague Peace Conferences Penalties, Criminal: See Remedies Pension Fund 726 Personal Injury: See Remedies Personality, International: See International Personality Persons juridical: See ICSID; Juridical Persons
natural: See ICSID; Individuals; Natural Persons Plenary Jurisdiction: See CJEC Powers, Ex Offlcio: See Proprio Motu Powers Powers, Implied: See Implied Powers Powers, Inherent: See Inherent Powers Powers, Proprio Motu: See Proprio Motu Powers Practice 513 Practices, Administrative: See Administrative Practices Preliminary Objections: See ECHR Preliminary Rulings: See CJEC Principle in Eastern Carelia Opinion: See Eastern Carelia Opinion, Principle in Principles of Law, General: See General Principles of Law Private International Law 8, 9 Procedural Resources: See Local Remedies, Exhaustion of Procedure, Rules of 187, 243, 251, 255, 308-10, 311,319, 347, 450, 455, 466, 477-8, 554, 568, 622, 635, 712,713 See also Jurisdiction Proof, Burden of 239-40 See also Local Remedies, Exhaustion of Proprio Motu Powers: See Advisory Opinions; Competence; Constitution of Tribunal; ECHR; lATs; ICJ; ICSID; Incidental Jurisdiction; Jurisdiction; Competence de la competence', Local Remedies, Exhaustion of; Optional Clause; PCIJ Protection, Diplomatic: See Diplomatic Protection Protection, Human Rights: See Human Rights Provisional Measures: See Interim Measures Public International Law 6, 8, 170 violation of 8,9,11,304 Punitive Damages: See Remedies Questions abstract: See Advisory Opinions incidental: See Advisory Opinions legal: See Advisory Opinions political: See Advisory Opinions preliminary: See Reopening Cases, Jurisdiction vis-a-vis Ratione Loci: See ECHR; Jurisdiction Ratione Materiae: See CJEC; ECHR; lATs; ICSID; Intervention; Jurisdiction
Index Rations Personae: See CJEC; ECHR; lATs; ICSID; Intervention; Jurisdiction Ratione Temporis: See ECHR; lATs; Jurisdiction Receivability 62-3, 65, 80-1, 97, 157, 158, 191-5, 203-4, 206, 241-310, 481, 671 bankruptcy and 247 estoppel and: see herein waiver grounds for rejecting: see herein objections matters ratione personae and 257-9 objections to 245-59, 303 objections ratione temporis to 193, 206 political factors and 247-8, 255 resjudicata and 245 time to raise objections to 243, 244, 285, 308-310 undue delay and 245 vagueness and 249 waiver (estoppel) and 244, 285, 286-308 See also CJEC; Consent; ECHR; lATs; ICJ; ICSID; Iran-US Claims Tribunal; Jurisdiction; Local Remedies, Exhaustion of; Nationality of Claims; PCIJ Receivability, Objections to: See Receivability Reciprocity: See Optional Clause Rectification: See lATs; Iran-US claims Tribunal; Reopening Case, Jurisdiction vis-a-vis Refugee Status: See Nationality of Claims Regulations, Staff: See Staff Regulations Release, Agreement of: See lATs Remand: See lATs Remedies 63-4, 66, 360, 385-423 agreement and specific provision for 390-2, 407 annulment: See Annulment arbitration and 406-22 compensation: See Reparation damages as 202, 398-402, 406, 407, 408, 409, 411, 413, 416-17, 418, 420, 421, 423, 643 declaratory judgment as 229-30, 408, 409, 418,419,421,423 lATs and 386-7, 395-6 See also lATs ICSID and 623-4 See also ICSID implied jurisdiction and: see herein inherent jurisdiction inherent jurisdiction and 394^22 injury to individual in 417, 418 injury to state in 417
879 interest in 415 interpretation and 392-4, 394-6, 398 ius cogens and 389 jurisdiction with respect to 385-423 moral injury and 414,417,418,419 negative injunctions as 407, 409, 410-15, 423 penalties, criminal 423 personal injury and 414 punitive damages as 418 reopening cases: See Reopening Cases, Jurisdiction vis-a-vis reparation and 399-402, 405-6, 417-19, 421,423 resitutio in integrum and 395-402, 407, 408, 409, 423, 643 restitution: see herein restitutio in integrum revision: See Revision satisfaction 405-6, 407, 417-19, 420, 423 specific performance as 402-5, 407, 411, 415-16,419,420,421,423 ultra petita principle and 422-36 See also CJEC; ECHR; lATs; ICJ; ICSID; ICTR; ICTY; Iran-US Claims Tribunal; Jurisdiction; PCIJ Remedies, Domestic: See Domestic Remedies Remedies, Internal: See Local Remedies Remedies, Local: See Exhaustion of Local Remedies Reopening Cases, Jurisdiction vis-a-vis 63-4, 66, 157,311,425-502 advisory opinions and 542-5 annulment 426, 466, 491 -502 appeal 425, 440-1, 441-9, 469 corruption: see herein fraud errors and 426, 459-60, 477-9 express provision and 441-9, 450, 474, 477-9,479-91,491-7 finality and 426-41, 479, 493 fraud 425,474-7 ICSID and 623 inherent 440-1, 454-74, 489-91, 502 interpretation of judgments 426, 434-6, 479-91,637-8 ius cogens and 449 partial nullity 497-502 preliminary questions and 438-40 rectification 426, 459-60, 477-9 res judicata and 426-41, 449, 480, 481, 482, 483, 485, 497-502 revision: see herein review
880 Reopening Cases, Jurisdiction vis-a-vis contd. review 63-64, 66, 157, 311, 425-6, 441, 448, 449-74, 542-5 See also Advisory Opinions, ICJ; ICSID; Interpretations; Interpretation of Judgments; PCIJ Reparation: See lATs; Remedies Representation: See lATs; International Tribunals Res Judicata: See Advisory Opinions; Competence; ECHR; lATs; ICSID; International Arbitration; Judgments, Finality of; PCIJ; Receivability; Reopening Cases, Jurisdiction vis-a-vis Rescission: See lATs Reservations 584-611 Commonwealth 605-6 discretion and 603-5 domestic jurisdiction 592-4, 603-4 interpretation of 611-16 ratione materiae 587-92 ratione temporis 595-602 severance and 607-11 subjective 592-4, 603-4, 606-11 validity of 603-11 See also ICJ; Competence de la competence; Optional Clause; PCIJ Reservations, Automatic: See Optional Clause Responsibility, State: See State Responsibility Restitutio in Integrum: See Remedies Review: See Advisory Opinions; CJEC, ECHR; lATs; ICSID; International Arbitration; Iran-US Claims Tribunal; Jurisdiction; PCIJ; Reopening Cases, Jurisdiction vis-a-vis administrative: See Administrative Review Revision: See Review Revision of Judgments: See Reopening Cases, Jurisdiction vis-a-vis, and under each individual tribunal or court Rule in Monetary Gold Case: See Monetary Gold Case, Rule in Rule of Local Remedies: See Local Remedies, Rule of Rules: See Procedure, Rules of Rules of Court: See Court, Rules of Rules of Procedure: See Procedure, Rules of Rulings: See Preliminary Rulings Rules, Staff: See Staff Rules Sanguinis, Jus: See lus Sanguinis Satisfaction: See Remedies SC: See UNSC
Index SG 507,519 Scheme of Study: See Study, Scheme of Seisin: See Jurisdiction Settlement, Judicial: See Judicial Settlement Ships: See Nationality of Claims Situations, Continuing: See Local Remedies, Exhaustion of Six-Month Rule: See ECHR Soli, Jus: See lus Soli Sources of Jurisdiction 207-13 multiple 207-9 termination of validity of 210-13 validity in time of 209-10 Sovereignty: See Interpretation; PCIJ Specialty Principle: See Interpretation Specific Performance: See lATs, Remedies Staff Regulations 341, 690, 701 See also lATs Staff Rules: See lATs; Staff Regulations Standing Tribunals: See Tribunals, Standing State: See Remedies State Responsibility 5, 260, 265, 266, 272, 273, 274, 288, 295, 299, 300, 411, 417, 420, 618 Statelessness: See Nationality of Claims Status: See International Tribunals refugee: See Nationality of Claims Statute of ICJ: See ICJ Statute of PCIJ: See PCIJ Statutes: See Constitutional Instruments Study, Scheme of 44-6 general principles in 44-5 particular tribunals in 45-6 Subordinate Organ 176, 511 Subsidiary Organ 176, 511 System, Civil Law: See Civil Law System System, Common Law: See Common Law System System of Law, Transnational: See Transnational System of Law Termination: See ICSID, Optional Clause TEU 339, 341, 346, 359, 360-8, 390-1, 504,811-64 See also Conventions, EU Third Parties: See Competence Tokyo War Crimes Tribunal: See War Crimes Tribunals Transnational Arbitration 189, 295-303, 410,416 Transnational Contract 6, 9, 295-303, 619 Transnational Disputes 5, 6, 295-303
881
Index Transnational System of Law 5, 295-303 Transnational Tribunals 11, 69, 119, 132-3, 295-303,410 Travaux Preparatoires 301-3, 776 See also Conventions; 1CJ; 1CS1D; Interpretation; PC1J Treaties: See Conventions Vienna Convention on: See Conventions Tribunal, Constitution of: See Constitution of Tribunal Tribunals ad hoc: See International Tribunals arbitral: See International Tribunals international: See International Tribunals institutionalized: See Institutionalized Tribunals standing: See International Tribunals; Competence de la competence transnational: See Transnational Tribunals War Crimes: See War Crimes Tribunals Trusteeship 229-30,233, 235 Ultra Petita Principle; See Remedies Ultra Vires 511-18,620 UN 27, 39, 46, 74-5, 83, 89, 97-8, 174-8, 225, 473, 506, 507, 508, 510, 518-27, 531, 533, 537, 538, 539, 540, 541, 542-5, 673, 675 Charter of 16, 17,27, 74-5, 89, 97-8, 176, 178-87, 473, 507, 510, 511, 519, 521, 522-7, 533, 536, 541 Chapter VII of Charter and 178-87 UN Charter: See Charter of UN UNCITRAL 35, 320, 327 UNCLOS 27, 31, 33, 45, 71, 75, 113, 132, 134, 149-50, 190, 222, 257-8, 320-2, 330, 346, 356, 357, 359,426 See also 1TLOS UNEF 184 UNESCO 51, 534-5,675,726 See also lATs; International Organizations
UNGA 17, 130, 174, 175, 177, 174, 227, 232, 306,473, 512, 518-21, 522, 531, 535-6, 540,541,542,543,671 resolutions of 17 UN1DROIT 170 Unilateral Declarations: See Declarations, Unilateral UNSC 21,32,59,73,83,89,92,97-8, 178-87, 193,232,524 determinations of 180 orders of 179-87 recommendations of 179 Ut Magis Valeat non Pereat: See Interpretation Vienna Convention on Treaties: See Conventions Vires, Intro: See Intra Vires Vires, Ultra; See Ultra Vires Waiver 286-308 arbitrability and 294 arbitration agreements and 295-303 declaratory judgment and 303-5 express 288-90,291 failure to raise objection and 303 implied 290-305 optional clause and 291 submission to international adjudication and 291-4 War Crimes Tribunals 323, 89-90,90-2, 445 See also Consent WHO 511-18, 520-21, 675, 677, 716 See also lATs; International Organizations Will, Common: See Common Will World Bank 177, 630, 631,677,683 See also lATs World Bank Group: See World Bank World Court: See ICJ; PCIJ
