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The International Court and ‘Its Freedom to Select the Ground Upon Which it Will Base its Judgment’

Published online by Cambridge University Press:  17 January 2008

Alexander Orakhelashvili
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Extract

The outcome of the litigation before the International Court of Justice can be seriously affected by the Court's treatment of the parties' submissions, not just because the Court's disregard of the submission of the party can affect the legal rights of that party. The final decision can end up being substantially different from what most people would expect. This happened, for instance, in some cases in which much was at stake, such as Arrest Warrant, Oil Platforms or Legality of the Use of Force. The reasoning and outcome of these cases, involving the issues of the use of force and the account-ability for serious violations of human rights and humanitarian law, was important not merely for the parties' rights and interests, but also had a wider dimension of clarifying the applicable law on the important questions that very frequently arises within the international legal system and affects its operation and efficiency. It is therefore crucial to ascertain what the Court's powers are in dealing with the parties' submissions and if such powers are subject to certain limits.

Type
Shorter Articles, Comments, and Notes
Information
International & Comparative Law Quarterly , Volume 56 , Issue 1 , January 2007 , pp. 171 - 184
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 Merits can be conveniently defined as ‘the issues of fact and law which give rise to the cause of action, and which an applicant State must establish in order to be entitled to the relief claimed’, Judge Read, Anglo-Iranian Oil Co [1952] ICJ Rep 148.Google Scholar

2 For the sake of convenience, hereinafter referred to as ‘freedom to select’.

3 eg, Fitzmaurice, G, The Law and Procedure of the International Court of Justice (Grotius, Cambridge, 1986).Google ScholarThere is however a very brief treatment of this issue in Rosenne, S, The Law and Practice of the International Court, 1920–1996 (Kluwer, Amsterdam, 1997) 1270.Google Scholar

4 See, for instance, Mavrommatis Palestine Concessions, PCIJ Series A, No 2 (1924) 11Google Scholar, and South-West Africa [1962] ICJ Rep 319, 328.Google Scholar

5 Anglo-Norwegian Fisheries (UK v Norway) [1951–2.Google Scholar

6 [1952] ICJ Rep 122; as for the Point 14, which related to the UK's claim that Norway should pay compensation for the arrests of British ships, the Court left this for the latter stage in which the parties agreed to consider the possible terms of settlement.Google Scholar

7 Similarly, in the Minquiers and Echrehos case, the Court examined the British and French submissions and singled out the actual submissions, distinguishing them from the submissions that were the reasons underlying the actual submissions, The Minquiers and Echrehos Case (France v United Kingdom) [1953] ICJ Rep 47, 52.Google Scholar

8 Case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v Sweden) [1958] ICJ Rep 55, 61.Google Scholar

9 [1958] ICJ Rep, 62Google Scholar; see also ibid 70.

10 See the next section.

11 Norwegian Loans (France v Norway) [1957] ICJ Rep 25Google Scholar; similarly, in Aegean Sea, the Court had to examine whether the 1928 General Act on Pacific Settlement of Disputes, on which Greece had based its jurisdictional plea, was in force, and whether the jurisdictional reservation to that Act precluded adjudication. The Court refused to adjudicate on the first issue and decided the case by interpreting the jurisdictional reservation which led to the exclusion of the dispute from the Court's jurisdiction. The Court did so by adopting the Norwegian Loans approach to use the ‘more direct and conclusive’ basis for decisions on jurisdiction, Aegean Sea Continental Shelf, Jurisdiction (Greece v Turkey), 1912 1978, [1978] ICJ Rep 3, 17.Google Scholar However, it is far from certain how the latter issue was ‘more direct and conclusive’ when the former one was logically anterior to it. For a similar approach see Aerial Incident of 10 August 1999, Jurisdiction (Pakistan v India), 21 06 2000, General List No 119, paras 26–8.Google Scholar

12 Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v Libyan Arab Jamahiriya), 10 Dec 1985, [1985] ICJ Rep 192, 207.Google Scholar

13 [1985] ICJ Rep 214.Google Scholar

14 Oil Platforms (Islamic Republic of Iran v USA), 6 11 2003, General List No 90.Google Scholar

15 Oil Platforms paras 32 and 36.

16 ibid paras 37.8.

17 ibid para 36.

18 This point was elaborated upon in individual opinions, Judge Simma, para 9; Judge Al-Khasawneh, paras 8.9. See also Art 53 of the 1969 Vienna Convention on the Law of Treaties; see also the case review on Oil Platforms: Orakhelashvili, A, ‘Oil Platforms (Islamic Republic of Iran v United States of America), Merits, Judgment of 6 Nov 2003’ (2004) 53 International and Comparative Law Quarterly 753–61.Google Scholar

19 Legality of the Use of Force, Preliminary Objection (Serbia and Montenegro v Belgium), 15 12 2004, General List No 105.Google Scholar

20 Legality of the Use of Force para 46. The Court found that Serbia and Montenegro could not appear as parties before the Court and hence the examination of the issue of jurisdiction was not required, ibid para 127. Strangely enough, the operative paragraph suggests that the Court ‘has no jurisdiction to entertain the claims’ of Serbia and Montenegro.

21 Asylum, Judgment on Interpretation (Colombia v Peru), 20 11 1950, [1950] ICJ Rep 402Google Scholar; also, in Corfu Channel, Assessment of the Amount of Compensation (UK v Albania), Judgment of 15 Dec 1949, [1949] ICJ Rep 244, 250, the Court awarded only as much compensation as was expressly claimed by the UK.Google Scholar

22 Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium), Judgment of 14 Feb 2002, General List No 121, paras 41–3.

23 Fitzmaurice, G, ‘The Law and Procedure of the International Court of Justice, 1951–54. (1958) 34 BYIL 103–4.Google Scholar Theoretically, the use of the non ultra petita rule as this was done in The Minquiers and Echrehos Case [1953] ICJ Rep 52, where the Court followed the parties' submissions based on the special agreement that it should decide that the islands belong to one or another of them, and exclude the options of res nullius and condominium from its consideration can be somehow problematic. Although the Court's approach was correct in that case, other similar case could have involved the situation where the factors of res nullius and condominium are indeed relevant. The same holds true for situations where parties attempt at proscribing the Court from considering the impact of the adjudication on the third parties' rights.Google Scholar

24 In Arrest Warrant, the Joint Separate Opinion of Judges Higgins, Koojmans and Buergenthal, para 12, refers to Fitzmaurice's view while disapproving of the Court's use of the non ultra petita rule.

25 Fitzmaurice (n 23) 105–6.Google Scholar

26 On the affirmation of jus cogens limits of the non ultra petita rule see Verzjil, J, ‘La validité et la nullité des actes juridiques internationales’ (1935) 15 Revue de droit international 321–2 and 327Google Scholar; Verdross, A, ‘Forbidden Treaties in International Law’ (1937) 31 AJIL 577Google Scholar, and Lowe, V, ‘The Role of Equity’ (1992) 31 Australian YIL 68.Google Scholar

27 Certain German Interests in Polish Upper Silesia, PCIJ Ser, A, No 7, 35.

28 Free Zones of Upper Savoy and the District of Gex (France/Switzerland), 6 12 1930, PCIJ Ser A, No 24, 3, 10.Google Scholar

29 ibid 11; see also Free Zones of Upper Savoy and the District of Gex (France/Switzerland), 7 06 1932, PCIJ Ser A, No 46, 96, 153Google Scholar, suggesting that the freedom to modify or abrogate the parties' rights is ‘contrary to the proper function of the Court’, unless conferred to it under the clear and explicit provision. Hand in hand with this goes the Permanent Court's observation in Certain German Interests in Polish Upper Silesia, Judgment of 25 05 1926, Ser A, No 7, 34–5, that the Court cannot reformulate the parties' submissions.Google Scholar

30 Free Zones (1932) 138.Google Scholar

31 Legality of the Use of Force, para 36 (emphasis original).

32 Northern Cameroons, Preliminary Objections (Cameroon v UK), 2 12 1963, [1963] ICJ Rep 33–4; it was reaffirmed in Legality of the Use of Force that the Court must decide the case on merits rather than engaging ‘in a clarification of a controversial issue of a general nature’ para 38.Google Scholar

33 Nuclear Tests (Australia v France), 20 12 1974, [1974] ICJ Rep 253, 261–2Google Scholar; further followed in Request for an Examination of the Situation in accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, Order, 22 09 1995, [1995] ICJ Rep 288, 304.Google Scholar

34 [1974] ICJ Rep 262.Google Scholar

35 ibid 263. Even in advisory proceedings, the Court asserts a similar power. The Court can, as part of its judicial function, identify the ‘true meaning’ of the question to avoid construing the question as incomplete or ‘actually misleading as to the legal rules applicable to the matter under consideration’, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, 20 12 1980, [1980] ICJ Rep 88–9Google Scholar; and to avoid the situation where ‘a reply to the question on its own terms … would not appear to resolve the questions really in issue’, Application for Review of Judgment No 273 of the UN Administrative Tribunal, Advisory Opinion, 20 07 1982, [1982] ICJ Rep 349.Google Scholar

36 Fisheries Jurisdiction, Merits (UK v Iceland), 25 July 1974, [1974] ICJ Rep 3, 21; the Court decided accordingly, in operative paras, p 34.Google Scholar

37 [1974] ICJ Rep 21–2.Google Scholar