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Article 60 ICJ Statute, Interpretation Proceedings, and the Competing Concepts of Res Judicata

Published online by Cambridge University Press:  27 January 2015

ANDREAS KULICK
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Abstract

The judgment of the International Court of Justice (ICJ) of 11 November 2013, interpreting its 1962 judgment in the case concerning the Temple of Preah Vihear, inspires a reconsideration of the role of interpretation proceedings pursuant to Article 60 of the Statute of the Court. In particular, it invites us to take a closer look at the role and scope of the principle of res judicata in public international law in general and as considered in the case law of the Court in particular. This contribution reveals the competing concepts of the principle in interpretation and consecutive original contentious proceedings, and promotes instead a uniform concept that avoids the conflict inherent in current approaches.

Section 1 introduces Article 60 of the ICJ Statute (section 1.1.) and thereinafter views interpretation proceedings before the Court in light of the Court's case law, in particular its 2013 interpretation judgment in the Temple case (section 1.2.). Section 2 constitutes the heart of the analysis and discusses what will be identified as the competing concepts of res judicata. Section 2.1. presents the functions, concepts, and case law of res judicata in public international law in general, whereas section 2.2. focuses specifically on the case law of the ICJ and the Permanent Court of International Justice (PCIJ) in this regard. Finally, section 2.3. concludes this study by setting out the approach that the author regards as appropriate to reconcile the competing concepts of res judicata.

Keywords

Article 60 and Article 36 of the ICJ Statutecompeting conceptsinterpretation proceedingsres judicataTemple case
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 28 , Issue 1 , March 2015 , pp. 73 - 89
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2015 

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References

1 Whereas Art. 59 of the ICJ Statute, albeit in a somewhat cryptic manner, contains the substantive aspect of that principle: ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’

2 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11 of 16 December 1927, Dissenting Opinion by M. Anzelotti, PCIJ Rep., Series A No. 13, at 23.

3 Ibid.; see also Dodge, W. S., ‘Res Iudicata’, in Wolfrum, R., Encyclopedia of International Law (2012), Vol. VIII, at 944Google Scholar, para. 4.

4 See, for instance, Delgado case (Spanish-United States Claims Commission) (1881), in Moore, J. B. (ed.), International Arbitrations to which the United States Has Been a Party (1898)Google Scholar, 2196 at 2199: ‘Even if the claimant did not at the time of the former case ask indemnity of the commission for the value of the lands, the claimant had the same power to do so as other claimants in other cases where it has been done, and he can not have relief by a new claim before a new umpire.’ Machado case (Spanish-United States Claims Commission) (1881), in J. B. Moore (ed.), International Arbitrations to which the United States Has Been a Party (1898), 2193 at 2194.

5 See Haya de la Torre (Colombia v. Peru), Merits, Judgment of 13 June 1951, [1951] ICJ Rep. 71, at 80; see also Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), Judgment of 27 November 1950, [1950] ICJ Rep. 395.

6 Not to forget the revision of judgments pursuant to Art. 61 of the Statute, which is possible if the ICJ is presented with new facts that were ‘unknown’ to both the Court and the party claiming revision when the original judgment was delivered, ‘provided that such ignorance was not due to negligence’.

7 Ann. VI to the United Nations Convention on the Law of the Sea (UNCLOS).

8 Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (United Kingdom v. France), Decision of 14 March 1978 (Interpretation of the Decision of 30 June 1977), UNRIAA, Vol. XVII, 271 et seq. See also recently Indus Waters Kishenganga Arbitration (Pakistan v. India), PCA, Dec. on India's Request for Clarification or Interpretation of 20 December 2013.

9 See Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, dissenting opinion of Judge Donoghue [2011] ICJ Rep. (II) 613, at 615, para. 7.

10 If this is possible, which might not always be the case regarding (ad hoc) arbitration, see, for instance, Art. 50(2) of the ICSID Convention.

11 Zimmermann, A., ‘Interpretation of Judgments of the International Court of Justice under Art. 60 of the Statute of the ICJ’, in Zehetner, F. (ed.), Festschrift für Hans-Ernst Folz (2003), 407Google Scholar at 408.

12 As opposed to some interpretation clauses in ad hoc state-to-state arbitration, see Case Concerning the Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (United Kingdom v. France), Decision of 14 March 1978 (Interpretation of the Decision of 30 June 1977), UNRIA. Vol. XVII, 271 et seq.

13 See [2011] ICJ Rep. (II) 613, at 615, para. 7; Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 16 July 2008, [2008] ICJ Rep. 311, at 323, para. 44. See also Zimmerman, A. and Thienel, T., Art. 60, Mn. 40, in Zimmermann, A., Tomuschat, C., Oellers-Frahm, K. (eds.), The Statute of the International Court of Justice – A Commentary (2006)Google Scholar; H. Thirlway, The Law and Procedure of the International Court of Justice – Fifty Years of Jurisprudence (2013), Vol. II, at 1859.

14 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11 of 16 December 1927, PCIJ Rep., Series A No. 13, at 21.

15 [1950] ICJ Rep. 395, at 402; Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), Judgments of 10 December 1985, [1985] ICJ Rep. 192, at 223, para. 56; Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment of 25 March 1999, [1999 (I)] 31, at 35, para. 12; Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 19 January 2009, [2009] ICJ Rep. 3, at 10, para. 21 and 17, para. 43.

16 PCIJ Rep., Series A, No. 13, at 10; Interpretation of Paragraph 4 of the Annex Following Article 79 of the Treaty of Neuilly, Judgment No. 3 of 26 March 1925, PCIJ Rep., Series A No. 4 remained opaque in this regard.

17 See section 1.2. below.

18 Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 11 November 2013, para. 31 (not yet published in the ICJ Rep, available at <www.icj-cij.org/docket/files/151/17704.pdf?>, visited on 16 June 2014. Hereinafter: (Cambodia v. Thailand), Judgment of 11 November 2013).

19 See also A. Zimmermann and T. Thienel, Art. 60, Mn. 46–52.

20 See [1950] ICJ Rep. 395, at 402 and 2. below.

21 [1950] ICJ Rep. 395, at 403; see also PCIJ Rep., Series A No. 13, at 11 (‘difference of views’).

22 [1950] ICJ Rep. 395, at 403. See also Art. 98(2) of the Rules of Court: ‘[T]he precise point or points in dispute as to the meaning or scope of the judgment shall be indicated.’

23 [1950] ICJ Rep. 395, at 403.

24 PCIJ Rep., Series A No. 13, at 10–11; see also [1985] ICJ Rep. 192, at 218, para. 46.

25 See (Cambodia v. Thailand), Judgment of 11 November 2013, para. 33; [2008] ICJ Rep. 311, at 325–6, para. 54.

26 For a detailed description of the facts see Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment of 15 June 1962, [1962] ICJ Rep. 6, at 15–32 and (Cambodia v. Thailand), Judgment of 11 November 2013, paras. 14–29.

27 Ibid., at 21.

28 Ibid., at 30.

29 Ibid., at 36–37.

30 (Cambodia v. Thailand), Judgment of 11 November 2013, Separate Opinion of Judge Cançado Trindade, para. 19 (not yet published in ICJ Rep.).

31 Ibid., paras. 21–25.

32 See also [2011] ICJ Rep. (II) 537 at 542, para. 23; [2008] ICJ Rep. 311, at 323, para. 47.

33 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 34 [emphasis added].

34 Ibid.

35 PCIJ Rep., Series A No. 13, at 15–16. Cited in (Cambodia v. Thailand), Judgment of 11 November 2013, para. 67.

36 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 68. See also ibid., Joint Declaration of Judges Owada, Bennoua, and Gaja, para. 4.

37 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 69.

38 [1962] ICJ Rep. 6, at 36–37 [emphasis added].

39 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 86.

40 Ibid., para. 87.

41 Ibid., para. 88.

42 Ibid., para. 89 [emphasis added].

43 Ibid., paras. 92–99.

44 Ibid., para. 93.

45 Ibid., paras. 94–96.

46 Ibid., para. 100–3.

47 See D. Bowett, ‘Res Judicata and the Limits of Rectification of Decisions by International Tribunals’, (1996) 8 African Journal of International & Comparative Law 577.

48 See, for instance, Reinisch, A., ‘The Use and Limits of Res Judicata and Lis Pendens As Procedural Tools to Avoid Conflicting Dispute Settlement Outcomes’, (2004) 3 The Law & Practice of International Courts and Tribunals 37CrossRefGoogle Scholar, at 43; L. E. Salles, Forum Shopping in International Adjudication (2014), at 268.

49 The recent refusal of China to participate in international arbitration under Ann. VII of UNCLOS, or even preliminary measures before ITLOS, demonstrates that even nowadays the authority of international adjudication is not considered as a given, see The Republic of the Philippines v. The People's Republic of China, Permanent Court of Arbitration, Press Release of 27 August 2013, citing The People's Republic of China's unpublished Note Verbale of 1 August 2013.

50 L. N. Caldeira Brant, L’Autorité de la Chose Jugée en Droit International Public (2003), at 291: ‘The Court and the international tribunals immediately place, in international law, the scope of action of res judicata within the aim of maintaining peace and within the peaceful resolution of international conflicts’.

51 S. Rosenne, The Law and Practice of the International Court, 1920–2005 (2006), Vol. I, at 3.

52 See, for instance, (Cambodia v. Thailand), Judgment of 11 November 2013, Separate Opinion of Judge Cançado Trindade, para. 40 (not yet published in ICJ Rep). See also section 1.2. above.

53 D. Bowett, (1996) 8 African Journal of International & Comparative Law 577.

54 Ibid.

55 (Cambodia v. Thailand), Judgment of 11 November 2013, Joint Declaration of Judges Owada, Bennoua, and Gaja, para. 1.

56 (Cambodia v. Thailand), Judgment of 11 November 2013, para. 34.

57 [1999 (I)] 31, at 35, para. 10; [2008] ICJ Rep. 311, at 323, para. 47; see also [2011 (II)] ICJ Rep. 537, at 542, para. 23.

58 PCIJ Rep., Series A No. 13, at 21.

59 (Cambodia v. Thailand), Judgment of 11 November 2013, Joint Declaration of Judges Owada, Bennoua and Gaja, para. 2.

60 Ibid., para 1: ‘Reasons are “inseparable” when the operative part of the Judgment is not self-standing and contains an express or implicit reference to these reasons.’

61 (Cambodia v. Thailand), Judgment of 11 November 2013, Separate Opinion of Judge Cançado Trindade, para. 55.

62 The following is particularly pertinent if, as I do, one views res judicata as a general principle of law. For the scope and definition of the term ‘general principles of law’ see M. N. Shaw, International Law (2008), at 98–105.

63 ‘“Res Judicata” and Arbitration’, International Law Association, Interim Report of the Committee on International Commercial Arbitration, Berlin Conference, 2004 (“ILA Interim Report 2004”), at 6–18. For a comparative perspective see also Sinai, Y., ‘Reconsidering Res Judicata: A Comparative Perspective’, (2010–11) 21 Duke Journal of International Law 353Google Scholar.

64 The English common law tradition treats res judicata as a matter of ‘issue estoppel’, so does the United States common law doctrine, which merely uses a different name (‘issue preclusion’), as the ILA Interim Report observes, ibid., at 7–8 and 11–12.

65 Ibid., at 7.

66 Ibid., at 7, citing Mills v. Cooper [1967] 2 QB 49 at 468–9, per Diplock LJ; approved by the House of Lords in Arnold v. National Westminster plc [1991] 2 AC 93.

67 ILA Interim Report 2004, at 11–12.

68 Ibid., at 14.

69 Ibid., at 14–15.

70 Pious Fund of the Californias (United States v. Mexico), Permanent Court of Arbitration, Decision of 22 May 1902, (1908) 2 AJIL 893, at 900 [emphases added].

71 Channel Arbitration (United Kingdom v. France), Decision of 14 March 1978 on Delimitation of the Continental Shelf (Interpretation of the Decision of 30 June 1977), Court of Arbitration, 54 ILR 139, at 170, para. 28 [emphases added].

72 Note that D. Bowett, (1996) 8 African Journal of International & Comparative Law 578, arrives at a somewhat different conclusion, stating that the decision ‘closely follows the view of the [Pious Fund Arbitration]’.

73 See Channel Arbitration (United Kingdom v. France), Decision of 14 March 1978 on Delimitation of the Continental Shelf (Interpretation of the Decision of 30 June 1977), Court of Arbitration, 54 ILR 6, at 126–7, para. 255; see also D. Bowett, (1996) 8 African Journal of International & Comparative Law 578.

74 Polish Postal Service in Danzig, Advisory Opinion No. 11 of 16 May, 1925, PCIJ Rep., Series B, at 21–22, 29 [emphases added].

75 Ibid., at 28–29.

76 Ibid., 30.

77 See Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment of 18 November 1960, [1960] ICJ Rep. 192, at 214; Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), Judgment of 12 November 1991, [1991] ICJ Rep. 53, at 62, paras. 24–25. However, Yuval Shany appears to regard the 1989 Arbitral Award case as in fact, at least partly, re-examining the 1989 arbitral award, see Y. Shany, The Competing Jurisdiction of International Courts and Tribunals (2003), at 250.

78 See [1951] ICJ Rep. 71, at 80.

79 [1950] ICJ Rep. 395, at 403: ‘The “gaps” which the Colombian Government claims to have discovered in the Court's Judgment in reality are new questions, which cannot be decided by means of interpretation. Interpretation can in no way go beyond the limits of the Judgment, fixed in advance by the Parties themselves in their submissions.’

80 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment of 26 February 2007, [2007] ICJ Rep. 43.

81 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment of 11 July 1996, [1996] ICJ Rep. 595.

82 See Art. 93(1) of the UN Charter.

83 As notes Wittich, S., ‘Permissible Derogation from Mandatory Rules? The Problem of Party Status in the Genocide Case’, (2007) 18 EJIL 591CrossRefGoogle Scholar, at 605.

84 [2007] ICJ Rep. 43, at 99, para. 133.

85 Ibid., 100, para. 136 [emphasis added].

86 See, for instance, Ottolenghi, M. and Prows, P., ‘Res Judicata and the ICJ's Genocide Case: Implications for other Courts and Tribunals?’, (2009) 21 Pace International Law Review 37Google Scholar, at 50; Wittich, supra note 83, at 607; see also L. E. Salles, Forum Shopping in International Adjudication (2014), 271.

87 [1996] ICJ Rep. 595, at 623, para. 47(2)(a).

88 See Wittich supra, note 83 at 607; see also ILA Interim Report 2004, at 7–8.

89 See [2007] ICJ Rep. 43, at 99, para. 132, referring primarily to Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Preliminary Objections, Judgment of 11 July 1996, [1996] ICJ Rep. 595, at 610, para. 17, where the Court observed that the Federal Republic of Yugoslavia's assertion to continue the Socialist Federal Republic of Yugoslavia's party status to international treaties included its party status to the Genocide Convention.

90 Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras for Permission to Intervene, Judgment of 4 May 2011, [2011] ICJ Rep. 420.

91 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, [2007] ICJ Rep. 659.

92 [2011] ICJ Rep. 420, at 443, para. 70.

93 See section 2.2. above.

94 The Court underlined in the 2007 Genocide judgment that, in its 1996 judgment, it had to decide the matter of jurisdiction ex officio and therefore, ‘by necessary implication’ pronounced also on Serbia's standing under the ICJ Statute, see [2007] ICJ Rep. 43, at 98–99, para. 132.

95 However, it is submitted that the 2011 judgment may also be reconciled with a narrower view in that it underlines the importance of the reasoning of the 2007 judgment for understanding the outcome of the decision, thus arguably embracing that such reasoning was ‘inseparable’ from the dispositif, see [2011] ICJ Rep. 420, at 443, para. 70: ‘Without such reasoning, it may be difficult to understand why the Court did not fix an endpoint in its decision. With this reasoning, the decision made by the Court in its 2007 judgment leaves no room for any alternative interpretation’; see also Nicaragua's submissions, ibid., para. 54.

96 See section 1.1. above on the purpose and limits of interpretation proceedings pursuant to Art. 60 of the ICJ Statute.

97 I concede that the Genocide case differs in that it was not a new proceeding but merely a new judgment in the same proceeding. However, to my mind, there is no reason why the Court's reasoning would not equally apply in case of new proceedings under Art. 36 of the Statute.

98 (Cambodia v. Thailand), Judgment of 11 November 2013, Separate Opinion of Judge Cançado Trindade, para. 55.

99 [1999 (I)] 31, at 35, para. 10; [2008] ICJ Rep. 311, at 323, para. 47; see also [2011 (II)] ICJ Rep. 537, at 542, para. 23.

100 (Cambodia v. Thailand), Judgment of 11 November 2013, paras. 86, 88; see also supra section 2.3.

101 Ibid., paras. 90–98 and also 77; see also supra section 2.3.

102 Ibid., paras. 79–106.

103 That is, in the words of Judges Owada, Bennoua, and Gaja, ‘when the operative part of the Judgment is not self-standing and contains an express or implicit reference to [the reasoning]’; see (Cambodia v. Thailand), Judgment of 11 November 2013, Joint Declaration of Judges Owada, Bennoua, and Gaja, para. 1.

104 See section 2.1. above.

105 See section 2.2. above.