Interpretation, Revision and Other Recourse from International Judgments and Awards (International Litigation in Practice)

Interpretation, Revision and Other Recourse from International Judgments and Awards

International Litigation in Practice General Editors

Loretta Malintoppi Eduardo Valencia-Ospina Advisory Board

David Anderson John R. Crook Gilbert Guillaume Pieter Kooijmans Sean D. Murphy Alain Pellet Shabtai Rosenne Krzysztof Skubiszewski Brigitte Stern Prosper Weil Rüdiger Wolfrum Sir Michael Wood

VOLUME 1

Interpretation, Revision and Other Recourse from International Judgments and Awards by

Shabtai Rosenne

LEIDEN • BOSTON 2007

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication data A Cataloging-in-Publication record for this book is available from the Library of Congress.

ISSN 1874-0502 ISBN 978-90-04-15727-9 Copyright 2007 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. PRINTED IN THE NETHERLANDS

CONTENTS

Foreword ............................................................................................... Preface ................................................................................................... Documentation ...................................................................................... Table of Cases ...................................................................................... Sources Cited ........................................................................................

ix xi xiii xv xix

Chapter 1. Introducing the Topic .........................................................

1

Chapter 2. The Origins in Arbitration ................................................ 2.1. The Institute of International Law (1875) ............................... 2.2. Arbitration: The Hague Conferences of 1899 and 1907 and later codication ................................................................ 2.3. Later developments (1908–2005) .............................................

7 7

Chapter 3. The Statutes ....................................................................... 3.1. The League of Nations Covenant, Article 14: The Advisory Committee of Jurists (1920) ..................................................... 3.2. The Permanent Court of International Justice: The adoption of the Statute (1920) ................................................................. 3.3. The Establishment of the International Court of Justice (1945) ........................................................................................ 3.4. The United Nations Convention on the Law of the Sea (1982) ........................................................................................ 3.5. The Principle of Res Judicata .................................................. Chapter 4. The Rules .......................................................................... I. The Permanent Court of International Justice ............................... 4.1. Rules of Court .......................................................................... 4.2. The Rules of 1922 .................................................................... 4.3. The Rules of 1926 .................................................................... 4.4. The Rules of 1931 .................................................................... 4.5. The Rules of 1936 .................................................................... 4.6. Corrections: Article 75 of 1931 ............................................... II. The International Court of Justice ................................................ 4.7. The Rules of 1946/1972 ........................................................... 4.8. The Rules of 1978 ....................................................................

9 17 27 27 31 34 38 43 49 49 49 51 54 57 57 61 62 62 64

vi

CONTENTS

4.9. Reference to the International Court ..................................... III. The International Tribunal for the Law of the Sea ..................... 4.10. Preparing Rules for ITLOS .................................................... IV. Arbitration Procedure .................................................................... 4.11. Arbitration ............................................................................... Appendix I to Chapter 4 .................................................................. Appendix II to Chapter 4 ................................................................. Appendix III to Chapter 4 ................................................................

70 74 74 80 80 83 86 89

Chapter 5. International Case Law I – Interpretation ........................ I. The Permanent Court of International Justice ............................... 5.1. The Interpretation of Judgment No. 3 (1925) ....................... 5.2. Chorzów Factory (Interpretation) case (1927) ...................... II. The International Court of Justice ................................................ 5.3. The Asylum case (1950) ......................................................... 5.4. The Continental Shelf Delimitation between Libya and Tunisia (1982–1985) ....................................................... 5.5. Cameroon-Nigeria Preliminary Objections, Interpretation ... III. International Arbitral Awards ...................................................... 5.6. The Anglo-French Continental Shelf Arbitration (1978) ...... 5.7. The Heathrow Charges Arbitration (United Kingdom/ United States of America, 1992–1993) ................................. 5.8. The Laguna del Desierto Arbitration (Argentina/Chile, 1994–1995) ............................................................................. 5.9. The Eritrea-Ethiopia Boundary Arbitration (2002) ............... 5.10. The Iron Rhine (IJzeren Rijn) Railway Arbitration (Belgium/Netherlands, 2005) .................................................

91 91 91 93 97 97

Chapter 6. International Case Law II – Revision, Recourse ............. 6.1. The Continental Shelf Delimitation between Libya and Tunisia (1982–1985) ....................................................... 6.2. The Laguna del Desierto Arbitration (Argentina/ Chile, 1994–1995) .................................................................. 6.3. Revision in the Application of the Genocide Convention Case (2003) ............................................................................. 6.4. The Frontier Dispute between El Salvador and Honduras (1992–2003) ............................................................................ 6.5. Correction of a Judgment ....................................................... 6.6. Awards: Reference to the International Court of Justice ...... The Arbitral Award of the King of Spain case ..................... The Arbitral Award of 31 July 1989 case .............................

100 108 112 112 120 122 125 127 129 129 132 133 140 144 145 147 149

CONTENTS

6.7. Appeals to the Permanent Court of International Justice ....... 6.8. Special Reference to the International Court of Justice .......... 6.9. Recourse from Administrative Tribunals to the International Court of Justice ...................................................

vii

154 156 158

Chapter 7. Some Essential Procedural Matters .................................. 7.1. The Seisin and Jurisdiction of the Court ................................. 7.2. Institution of Proceedings in Interpretation ............................. 7.3. Institution of Proceedings in Revision and Composite Proceedings ............................................................................... 7.4. Seisin in Other Reference Proceedings .................................... 7.5. The Composition of the Bench ................................................ 7.6. The Pleadings ........................................................................... 7.7. The Dispositif of the Decision ................................................. 7.8. Types of Judgments and Awards .............................................

167 167 169 172 175 176 183 184 186

Select Bibliography .............................................................................. Index .....................................................................................................

195 197

FOREWORD

The present is the rst in a new Series published by Martinus Nijhoff under the title “International Litigation in Practice”. The Series aims at lling a perceived need among practitioners and academics, arising from the increased recourse by States to the International Court of Justice and the growth of international litigation involving States before other courts and tribunals during the past twenty-years. As a result of the enhanced utilization of judicial and arbitral means of peaceful settlement of disputes involving States, new procedures have developed, while previously unused or controversial provisions found in the statutory and other governing instruments have come under scrutiny and have been claried by judges and arbitrators. This was the case, for example, for the interpretation and revision of judgments, the binding force of orders indicating provisional measures of protection, counter-claims and the examination of experts and witnesses. The new Series will set out issues such as those, and will consist of practical booklets prepared by specialists. While their format would not make them suitable for publication in the Journal on the Law and Practice of International Courts and Tribunals, also published by Martinus Nijhoff under our editorship, they will serve as a self contained, easy reference whenever the issues they cover come to the fore in a particular case. Although the point of departure will be the International Court of Justice, on whose Statute those of other courts and tribunals are modeled, the Series will also deal with the International Tribunal for the Law of the Sea and other international judicial and arbitral courts and tribunals established for the settlement of disputes involving States. The present book, dealing with Interpretation, Revision and other Recourse from International Judgments and Awards, is authored by Shabtai Rosenne. The Series is fortunate to have Professor Rosenne, the foremost authority on the International Court of Justice, as its initial contributor. Professor Rosenne needs no presentation. His numerous writings on the ICJ, to which this booklet is a worthy addition, have been and will remain required reading for judges, agents, counsel and advocates and anyone else that might have an interest in international litigation. The Series could not have had a more auspicious launching. The Editors Loretta Malintoppi Eduardo Valencia-Ospina

PREFACE

Although there had been a few cases of the interpretation of judgments of the Permanent Court of International Justice and the International Court of Justice, it was not until the mid-1980s that serious judicial discussion of the related problems of the interpretation and revision by the International Court of one of its own judgments came before the Court. Similar cases have also arisen in international arbitration proceedings between States. The present work has grown out of my initial attempt to analyse more closely the issues that provisions such as Articles 59, 60 and 61 of the Statute of the International Court of Justice and the similar provisions in the Hague Conventions of 1899 and 1907 pose. Indeed, those provisions lay at the basis for those Articles of the Statute. As the work progressed I found that it had to take in the International Tribunal for the Law of the Sea. That Tribunal’s Statute is closely modelled on that of the International Court of Justice. There are also other types of case in which States have requested the International Court of Justice in one way or other to review a decision of some other international court or tribunal which, under the basic instruments governing its work, was ‘nal and binding’, and perhaps also ‘without appeal’. On the other hand I found it necessary to limit the scope of this study to cases of international litigation between States, even when the State might have been acting as parens patriae (as it is frequently put nowadays) in exercise of its right of diplomatic protection in the traditional sense. I felt that it would only confuse matters if this study took in cases in which one party had been an individual with no right of access to the international courts and tribunals. This excluded cases of recourse to the International Court or its predecessor from nal decisions of some other competent international organ, especially mixed arbitration and mixed claims courts and tribunals. Those cases undergo a transformation when the State invites one of the standing international judicial organs to review a case in whatever form that re-examination may take. The State takes the place of the individual who had been a party in the initial case. These cases raise other problems beyond our scope here. In the course of this work I enjoyed some long-distance library assistance from the American Society of International Law and the Max Planck Institute for Comparative Public Law and International Law of Heidelberg, and it gives me pleasure to acknowledge this. I also had the advantage of being able to see the proofs of the relevant pages of P. Chandrasekhara Rao

xii

PREFACE

and Ph. Gautier (eds.), The Rules of the International Tribunal for the Law of the Sea: a Commentary (Martinus Nijhoff, Leiden, 2006). Once again my thanks are due to Annebeth Rosenboom, Peter Buschman and their colleagues at my publishers, Martinus Nijhoff of Leiden. Beth ha Kerem Jerusalem

March 2007

DOCUMENTATION

As far as possible documents are cited by reference to their printed versions and ofcial number. Most modern documents are available on an appropriate website. Treaties are cited by reference to one of the standard treaty collections. Treaties that have been registered with the UN but not yet printed in the UNTS are cited by reference to their registration number. Decisions of the Permanent Court of International Justice, the International Court of Justice, and the International Tribunal for the Law of the Sea are cited by reference to their ofcial reports or to their website. Resolutions of standing organs of international organizations are taken from the Ofcial Records or from the website. The principal websites are as follows, all http: ICJ ILC ITLOS

www.icj-cij.org (also through the UN home page) www.un.org/law/ilc/ (also through the UN home page) www.itlos.org (English) www.tidm.org (French) (also through the UN home page) PCA www.pca-cpa.org PCIJ through the ICJ home page UN www.un.org (in all the ofcial languages) UNAT United Nations Administrative Tribunal, through the UN home page Institute of International Law – www.idi-iil.org * Law and Practice4

*

*

Sh. Rosenne, The Law and Practice of the International Court 1920–2005 (Martinus Nijhoff Publishers, Leiden, 2006).

TABLE

OF

CASES

Admission, 6, 53, 63, 66, 79, 135–136, 138–139, 142, 174, 179 fn. 8 Alabama, The, 7 Anglo-French Continental Shelf arbitration, 25, 112–119, 121, 123, 126, 185 Andes Boundary, see Frontier Post 61 arbitration Appeal Relating to the Jurisdiction of the ICAO Council, 73 Appeals from the Hungaro-Czechoslovak Mixed Arbitral Tribunal, 70, 154– 156 Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute, 38, 140–144, 178, 189 fn. 35 Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections), 37, 188 Application for Revision and Interpretation [of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libya), 38, 68, 95 fn. 4, 96 fn. 5, 138, 144, 183, 185 Application of the Genocide Convention, 36 fn. 25, 37, 38 fn. 35, 44, 47, 133–140, 170, 184, 188 Application of the Genocide Convention (Bosnia-Herzegovina v Yugoslavia), 133 Application of the Genocide Convention (Croatia v Serbia and Montenegro), 133 Arbitral Award [Made by the King of Spain on 23 December 1906], 145, 147–148, 151, 153, 185 Arbitral Award of 31 July 1989 Arbitration, 145–146, 149–154, 185 Arbitral Award of 31 July 1989 Judgment (ICJ), 152–153 Argentina-Chile Frontier (Palena) arbitration, 122 Armed Activities on the Territory of the Congo (Congo v Rwanda), 190 Asylum, 20 fn. 34, 37, 97–100, 110, 117, 124, 185 Barcelona Traction (New Application 1962), 62 Borchgrave, 59 fn. 33 Camouco, The (ITLOS), 73 n. 61 Certain Criminal Proceedings in France, 69 fn. 51

xvi

TABLE OF CASES

Chorzów Factory, 20 fn. 34, 33, 44 fn. 47, 46, 58 fn. 32, 93–97, 100, 104, 106, 109, 115, 116, 117, 123, 124, 126, 180, 184 Continental Shelf Delimitation between Libya and Tunisia, 25, 38, 67 fn. 46, 68, 95 fn. 4, 96 fn. 5, 100–108, 110, 112–119, 121, 123, 126, 129–132, 138, 144, 149, 175, 185 Cordillera of the Andes Boundary arbitration¸ 122 Corfu Channel, 190 Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, see Immunity from Legal Process Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, see United Nations Administrative Tribunal (UNAT) El Salvador v Nicaragua, see Gulf of Fonseca Eritrea-Ethiopia Boundary Delimitation, 25, 125–126 Fasla, see Review of UNAT Judgement No. 158 Fisheries, 144, 178 Fourchet v. Austria, 20 Free Zones, 145 Frontier Dispute (Benin/Niger), 180 fn. 9 Frontier Dispute (Burkina Faso/Mali), 190 Frontier Post 61 arbitration, 25, 122–125, 131–133 Gabíkovo-Nagymaros Project, 191 fn. 38 German Interests in Polish Upper Silesia, 93–94, 180 Guinea-Bissau/Senegal Maritime Delimitation arbitration, 146, 149–152, 153, 185 Gulf of Fonseca, 141 Guyana v Suriname arbitration, 40 fn. 41 Haya de la Torre, 97–99 Heathrow Airport User Charges arbitration, 25, 120–122 ICAO Council Appeal, 73, 156–157 I.L.O. Administrative Tribunal (UNESCO), 36 fn. 25, 159 fn. 35, 165 fn. 52 Immunity from Legal Process, 164 fn. 48 International Status of South Africa, see South-West Africa (Status) Interpretation of the Treaty of Lausanne [Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne], 192 fn. 42 Interpretation of the Treaty of Neuilly Article 179, 20 fn. 34, 33, 55 fns. 23, 26, 91, 93, 180, 184

TABLE OF CASES

xvii

Iran-U.S.A. Case No. 21, 167 Iron Rhine Railway arbitration, 24, 25, 127 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, see ILO Administrative Tribunal [ILOAT] (UNESCO) LaGrand, 67 Laguna del Desierto, see Frontier Post 61 arbitration Land and Maritime Boundary between Cameroon and Nigeria, 36 fn. 26, 37, 45 fn. 50, 108–111, 168, 172, 188 fn. 31, 191 fn. 41 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua Intervening), 38, 140–144, 178, 189 fn. 35 — And see Gulf of Fonseca Land Reclamation in and around the Strait of Johor, 40 fn. 41 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, see Namibia Legality of Use of Force cases, 35, 38 fn. 35, 44 fn. 49, 134 fn. 8, 138–139 Maritime Delimitation between Guinea-Bissau and Senegal, Arbitration, and see Guinea-Bissau/Senegal Maritime Delimitation arbitration Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea, 19 fn. 32, 146 Mavrommatis, 187 fn. 27 Mavrommatis Palestine Concessions, 187 fn. 27 Mortished, see Review of UNAT Judgement No. 273 Mox Plant arbitration, 40 fn. 41 Mox Plant (ITLOS), 40 fn. 41 Namibia, 38 Nuclear Tests, 191 fn. 39 — New Zealand v France, 191 fn. 39 Oil Platforms, 68 fn. 49 Pajzs, Csáky, Esterházy, 71, 155 Peace Treaties, 27, 28, 154, 157 fn. 33 Peter Pázmány University, 70, 155 Pious Funds arbitration, 13 Polish Upper Silesia, 93–94, 180 Portendick, 8–9

xviii

TABLE OF CASES

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 case], 191 fn. 39 Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections), see Land and Maritime Boundary between Cameroon and Nigeria Review of UNAT Judgement No. 158 (Fasla), 159–160 Review of UNAT Judgement No. 273 (Mortished), 159, 162, 164 Review of UNAT Judgement No. 333 (Yakimetz), 159, 164 Saiga (No. 2), M/V, 188 South West Africa, 38, 182 fn. 13 South West Africa (Status), 38 Southern Bluen Tuna arbitration, 40, 74, 81 Thadeus Amat et al. v. Mexico, 30 Trinidad & Tobago v Barbados arbitration, 40 fn. 41 Tunisia/Libya Continental Shelf, 38, 67–68, 95 fn. 4, 138, 144, 185 UNAT (UNESCO), 5, 158–165 Yakimetz, see Review of UNAT Judgement No. 333

SOURCES CITED

Charter of the United Nations Article 7, 34 Article 13, 17 Article 92, 34 Article 93, 34 Article 94, 2, 3 Article 95, 17, Article 96, 139, 160, 164, 176 Covenant of the League of Nations Article 14, 3, 27–29, 31 Hague Convention No. I (1899), 5, 12 Article 31, 12, Article 49, 80 Article 54, 36 Article 55, 12–14 Hague Convention No. I (1907), 5 Article 52, 81 Article 74, 80 Article 81, 14, 16, 36, 43 Article 82, 15, 29 Article 83, 15, 24

Model Rules on Arbitral Procedure (International Law Commission), 21–23

xx

SOURCES CITED

International Court of Justice – Statute Article 13, 179 Article 26, 63, 140, 177, 191 Article 27, 178 Article 29, 64 Article 30, 62 Article 34, 4 Article 35, 134, 139 Article 36, 44, 68, 103, 145, 146, 151, 153, 156, 157, 175, 189 Article 40, 170–171 Article 41, 67 Article 50, 106, Article 54, 182 Article 59, 3, 33, 41, 43–47, Article 60, 3, 33, 35, 36, 41, 42, 43–47, 92, 93, 94–5, 98–100, 101, 103, 105, 109–110, 146, 154, 183, 184, 185, 188, 189 Article 61, 3, 4, 5, 33, 35–37, 43–47, 101, 102–103, 129, 130–131, 136–138, 139, 142–143, 145, 154, 173, 174, 179, 182, 185, 188, 189 Article 62, 170 Article 64, 110 Article 65, 159, 160, 163, 164, 176 International Court of Justice – Rules of Court (1946/1972), 62–64, 72, 96, 98, 179, 180 International Court of Justice – Rules of Court (1978), 64 Article 17, 179 Article 38, 69 Article 42, 170 Article 38, 170, 171 Article 75, 34, 37 Article 81, 170 Article 87, 72–73, 156 Article 95, 111, Article 98, 65, 67–68, 77, 102, 109, 170,171, 183 Article 99, 65, 68–69, 70, 102, 130, 172, 173–174, 182, 183 Article 100, 66, 141, 184 International Tribunal for the Law of the Sea, Rules, 43, 73, 78–80, 86–88, 179, 184, 187, 188

SOURCES CITED

Model Rules on Arbitral Procedure (International Law Commission), 20–23, 40, 43, 81, 89–90 Permanent Court of Arbitration Optional Rules, 23, 24, 81–82 Permanent Court of International Justice – Statute Article 1, 17 Article 13, 181 Article 26, 176 Article 27, 176 Article 29, 176 Article 30, 29, 49 Article 31, 181 Article 34, 70 Article 36, 30, 31 Article 59, 30, 31–33, 97, Article 60, 33, 96, 97, 184 Article 61, 33 —— Rules of Court (1922, 1925), 50–54, 176, 177, 181 —— Rules of Court (1926), 54–57 Rules of Court (1931), 57, 61–62 Rules of Court (1936), 57–61, 71, 157–158, 176 UNCITRAL Arbitration Rules, 23, 24, 81 United Nations Convention on the Law of the Sea (1982), 5, 39–43 Article 1, 39 Article 292, 43, 73, 188 Article 294, 43, 187 Article 295, 43 Article 296, 40, 167, 179 Part XI (Articles 186–191), 39, 178–179 Part XIII (Articles 264–265), 39 Part XV (Articles 279–299), 39 Annex V, 39 Annex VI, 5, 39, 40, 41, 43, 74, 167, 168, 178, 192 Annex VII, 5, 39, 40, 42–43, 44, 81. 168, 192 Annex VIII, 5, 39, 40, 43, 44

xxi

CHAPTER ONE

INTRODUCING

THE

TOPIC

It is a commonplace that while a judgment of an international court is nal, binding, and without appeal, circumstances can arise in which its nality can be questioned and its review can be required. For instance, the parties to the litigation may be in dispute over whether the case was correctly decided on the ground that evidence has since come to light and it might have a bearing on the matter. There are other challenges to the nality of a judgment. This could include a dispute over the nature of the obligation imposed on the judgment debtor, or over the question whether the judgment as published correctly represents the thinking of the judges who took part in it, and so on. In internal law with a hierarchical court system this set of problems has given rise to subsequent proceedings such as an appeal, that is some sort of general review of the proceedings as a whole for their correctness, cassation, a review of the law on the basis of some objective or agreed statement of the facts, revision, interpretation, correction of errors, and the like. In internal legal systems these procedures are regulated by the law, usually by some form of statute or other principal legislation, or by rules of court or of practice. There are also established ways of dealing with typographical errors, errors of calculation, incorrect dates, misspelling of names and other slips of that sort. All this produces a hierarchy and perhaps a parallelism of courts and tribunals whose jurisdiction is laid down by the law in objective and generalized terms, characteristic of an internal judicial system. Given the consensual basis of all international litigation and the absence of any systemic hierarchy of international courts and tribunals, procedures such as these are not easily set up in the international community, although all the factors that have led to them in the internal judicial systems certainly can be found in the international judicial system. Following the nearly two centuries of judicial and arbitral activity through ad hoc tribunals and later through standing courts such as the Permanent Court of International Justice and the International Court of Justice (with an accumulation of experience in their Registries and in the International Bureau of the Permanent Court of Arbitration), we now have comprehensive and systematic international practice for dealing with this type of situation. Following the absence of any formal

2

Chapter One. Introducing the Topic

hierarchy between different international courts and tribunals is the absence of anything corresponding to the English or American procedures of certiorari, a form of review by a ‘superior’ court of the actions of a ‘lower’ court and if necessary transferring a case from one court or tribunal to another. Such a system can only operate within the context of a formal hierarchy or a formal parallelism of courts. A preliminary to any consideration of the judicial interpretation and the judicial revision of an international judgment or award is to establish the legal regime in which such a decision is placed. Here we can say that international litigation between two or more States or involving an international intergovernmental organization comes within the scope of the international law of arbitration or judicial settlement of disputes,1 with general guidance now being provided by the Statute and practice of the International Court of Justice as the principal judicial organ of the United Nations. This Court has its own features which sharply distinguish international litigation from litigation taking place within a State and under a State’s constitutional, legal and judicial system. One provision of the Charter of the United Nations and three provisions of the Statute of the International Court of Justice that is annexed to the Charter supply the general legal conguration of all proceedings before that Court. They also provide strong guidance when States have recourse to other legal or judicial procedures for the settlement of their disputes by some sort of what is technically designated (in advance) as a nal and binding legal decision made in application of international law. The relevant provision of the Charter is Article 94, paragraph 1. According to that paragraph, ‘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’. That constitutes the general obligation on all parties to the Statute to ‘comply with’ the decision in any case in the International Court to which it is a party. It is sufcient to note here that this provision sets

1

It is appropriate to note here that the English word dispute in the basic texts – the Covenant of the League of Nations, the Charter of the United Nations, the Statutes of the different courts and tribunals and their Rules – is used to render two words in French: différend and contestation. Perusal of different French dictionaries conveys that the two French words are synonymous. There is, however, no unitary denition of dispute for purposes of international litigation and judicial experience seems to indicate that whether a given situation constitutes a dispute for the purposes of a particular provision in one of the basic texts depends on all the relevant circumstances, including the nature of the proceeding that requires the existence of a dispute. For purposes of this study, a dispute over the meaning or scope of a judgment has its own meaning, set out in the extract from a judgment of the Permanent Court of International Justice cited at Ch. 5 fn. 4 below.

Chapter One. Introducing the Topic

3

out the general obligation of compliance with a decision of the International Court and in that way completes the parameters of the regime in which the decision is placed. It is not necessary to examine the details of the application of that provision for purposes of this study.2 The relevant provisions of the Statute are Articles 59, 60, and 61. Here the major statement of principle appears in Article 59, which is somewhat curiously worded. It reads: ‘The decision of the Court has no binding force except between the parties and in respect of that particular case.’ That has two aspects, the one positive and the other negative. In a positive sense it ts in with Article 94, paragraph 1, of the Charter by enunciating the principle that a decision is binding on its parties, meaning that the parties are under the obligation to act in good faith in accordance with what the Court has decided. At the same time the negative wording of Article 59 implies that a decision of the Court is, for non-parties to a case, res inter alios acta, and they have no legal standing in the Court as regards any aspect of the binding force of the decision qua decision. Article 60 deals with the function of a judgment in settling a dispute. ‘The judgment is nal and without appeal. In the event of dispute as to its meaning or scope, the Court shall construe it upon the request of any party.’ The rst sentence sets out the dominant principle and in a sense, the second sentence

2

On the obligation of compliance in general, see M. Reisman, Nullity and Revision: The Review and Enforcement of International Judgments and Awards (Yale University Press, New Haven, 1971); M. K. Bulterman and M. Kuijer (eds.), Compliance with Judgments of International Courts (Martinus Nijhoff, The Hague, 1996); A. Azar, L’Exécution de décisions de la Cour internationale de Justice (Bruylant, Brussels, 2003); C. Schulte, Compliance with Decisions of the International Court of Justice (Oxford University Press, Oxford, 2004); P. Paulson, ‘Compliance with Final Judgments of the International Court of Justice since 1987’, 98 AJIL 434 (2004); Sh. Rosenne, ‘Decisions of the International Court of Justice and the New Law of State Responsibility’, his Essays on International Law and Practice, 543 (Martinus Nijhoff, Leiden, 2007); id., Law and Practice4, vol. i, 195. However, Art. 94 formally only applies to decisions of the International Court of Justice. In that respect it is markedly different from its predecessor in Art. 19 (4) of the Covenant of the League of Nations as amended in 1924. By that, the members of the League undertook to carry out in full good faith any arbitral award or judicial decision that may be rendered. For all other courts and tribunals operating on the international level it is usual to include in the basic text under which the court or tribunal is working a statement on the nality of the decision and the obligation of the parties to comply with it. Indeed, it is doubtful whether persons would agree to serve as members of such a court or tribunal if no such provision was contained in the relevant text. As has been recently pointed out, ‘Among the most important obligations that the arbitral tribunal owes the parties is the rendering of a coherent, accurate, and complete award’. D.O. Caron, L.M. Caplan and M. Pellonpää, The UNCITRAL Arbitration Rules: A Commentary 880 (Oxford University Press, Oxford, 2006).

4

Chapter One. Introducing the Topic

contradicts it. If a judgment is nal and without appeal, how can the Court ‘construe’ it beyond dotting its i’s and crossing its t’s? The rst sentence qualies the ‘construction’ envisaged by the second sentence, which can only be implemented in a way that will not be seen as an ‘appeal’.3 This provision gives the Court jurisdiction ‘in the event of a dispute’, that is a difference between the parties to the litigation that produced the impeached judgment. The exercise of that construction-competence does not require any further expression of consent by either party; their consent to the jurisdiction over the original case carries through to the interpretation phase should there be one. This does not preclude the Court from dealing with any request for interpretation submitted to it jointly by the parties, or even unilaterally should the named respondent consent, provided that there is a ‘dispute’ over the meaning or scope of the impeached judgment. The fact that a party to the litigation either is a member of the United Nations or has otherwise accepted the obligations of a member of the United Nations supplies the necessary consent to the Court’s jurisdiction to construe a judgment in the event of a dispute as to its meaning or scope or to revise a judgment on the conditions laid down in Article 61 of the Statute. Only a State that is a party to the litigation may invoke this jurisdiction unilaterally, not a State that may be interested in or affected by the outcome of a judgment. Apart from interpretation and revision of any decision, States have requested the International Court of Justice to decide disputes over the legal standing of awards and decisions of other courts and tribunals including cases designated as ‘appeals’ as well as disputes about the alleged nullity of an arbitral award. These directly place in issue the nality and the binding quality of the impeached decision. The Statute does not specically regulate any of these other forms of reference of an impeached judicial decision (including an arbitral award) to the International Court. These cases, therefore, come within the Court’s normal jurisdictional competence. Notwithstanding that different parties may be involved if the case is moved to the inter-State level, the International Court may hear the case on ‘appeal’ even if one of the parties to the impeached judgment was an entity or a person not qualied under Article 34 of the Statute to have access to the Court. One result of this type of case is that the obligation of compliance will shift from the impeached decision to that of the International Court. These phenomena – interpretation, revision, and other forms of ‘reference’ – have in turn produced a complex pattern of black letter texts supplemented by an even more complex set of judge made rules and practices. The close

3

The literature on interpretation is sparse. See the Select Bibliography in this volume.

Chapter One. Introducing the Topic

5

tie between the nal decision and the highly political context of the obligation to comply with it produces a continuing tension between the nality of the decision and any one of the possible references in recourse from it. If any tendency can be discerned from the relevant materials it is in the strong preference for maintaining the integrity and the authority of the res judicata, provided that no obvious miscarriage of justice is engendered. Interpretation is preferable to revision. There are writers who assert that an international tribunal has an implied or inherent power to interpret or to revise its own judgments provided that certain minimal conditions are met. They nd support for this view in a dictum of the International Court of Justice concerning the United Nations Administrative Tribunal (UNAT). The International Court of Justice has said: The rule contained in [the UNAT Statute that a judgment is nal and without appeal] cannot however be considered as excluding the Tribunal itself from 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 an ‘appeal’ within the meaning of that Article and would conform with rules generally provided in statutes or laws issued for courts of justice, such as Article 61 of the Statute of the International Court of Justice.4

For the courts tribunals and other dispute settlement regimes examined in this book, the relevant basic texts set out the relevant special circumstances. The Statute of the International Court of Justice contains provisions for the interpretation and for the revision of its judgments. For international arbitrations between States the provisions of the Hague Convention No. I of 1899 and No. I of 1907, on the pacic settlement of international disputes, and frequently the particular rules of procedure governing an instance of arbitration supply a legal basis for one or other or both of these processes similar to what we nd in the Statute of the International Court of Justice. The Convention on the Law of the Sea contains in Annex VI, the Statute of the International Tribunal for the Law of the Sea, appropriate provisions for the interpretation of its decisions by the ITLOS. In Annexes VII and VIII, on arbitration proceedings, there are corresponding provisions for the interpretation of arbitral decisions conducted within the framework of Part XV

4

Effects of Awards of Compensation made by the United Nations Administrative Tribunal advisory opinion, ICJ Rep. 1954 47, 55. Earlier in that opinion the Court had referred to that provision of the UNAT Statute as being ‘of an essentially judicial character’ and one which conforms with ‘rules generally laid down in statutes or laws issued for courts of justice, such as, for instance, in the Statute of the International Court of Justice’ (at p. 52). And see Chester Brown, ‘The Inherent Powers of International Courts and Tribunals’, 76 British Year Book of International Law 195, 222 (2005).

6

Chapter One. Introducing the Topic

of the Convention. That Convention contains no provision for the revision of the decisions of ITLOS or of the arbitral tribunal. As will be seen (Chapter 4 § 4.10 below), the States Parties, acting through the Preparatory Committee, strongly urged the Tribunal to assert its power to revise its decisions, and suggested following the International Court of Justice in doing this. The Tribunal reacted in a positive way and inserted corresponding provisions in its Rules of the Tribunal, with the strong political backing of the States Parties. For arbitration proceedings, whether an arbitral award can be subject to a process of interpretation or of revision is in the nal resort a matter for the parties and Rules of Procedure can supply the necessary authorization and regulate the procedure. Given this, it does not appear necessary for the purposes of this book to examine whether international courts and tribunals have any implied or inherent general powers, competence, or jurisdiction over requests for the admission of proceedings in interpretation or in revision. The basic texts governing the work of the courts and tribunals examined in this book formulate the necessary powers and the manner of their exercise, and that should be sufcient. Interest reipublicae ut sit nis litium! ‘Nothing is settled until it is settled right!’ That is the measure of the tension. Yet is there any real contradiction between the two?

CHAPTER TWO

THE ORIGINS

IN

ARBITRATION

2.1. The Institute of International Law (1875) One of the features of the development of international law and relations and the conduct of international affairs during the nineteenth century has been the increasing use of arbitration procedures for the pacic settlement of international disputes – that is the settlement of a dispute between two or more States (in the nineteenth century conception of ‘State’) by judges of their own choice. This process reached its culmination in the Alabama arbitration of 1871–72 between Great Britain and the United States of America.1 That led the Institute of International Law, founded in 1873, to examine the topic of arbitration procedure as one of its rst projects. Professor L. Goldschmidt of Leipzig was appointed raspporteur.2 In article 29 of his draft regulations for international tribunals Goldschmidt dealt with the correction and with the interpretation of an arbitral award as two separate processes. After addressing the communication of the award to the parties and the legal signicance of that act, the draft continued that ‘the award can no longer be changed by the arbitral tribunal’. It went on: ‘The tribunal, however, has the right to correct mere errors in writing or reckoning

1

2

For that arbitration, see J.B. Moore, 1 History and Digest of the International Arbitrations to which the United States has been a Party (Government Printing Ofce, Washington D.C., 1893); 61 British and Foreign State Papers 40 (1871); A.M. Stuyt, Survey of International Arbitrations 1794–1989 96 (Martinus Nijhoff, Dordrecht, 1972). L. Goldschmidt, “Projet de règlement pour tribunaux arbitraux internationaux présenté à l’Institut de Droit international (Session de Genève, 1874)”, 6 Revue de Droit international et de Législation comparée 421 (1874), reproduced in J.B. Scott (ed.), Institut de Droit international, Tableau général des travaux (1873–1913), (Carnegie Endowment for International Peace, Oxford University Press, New York, 1920). English version of all these documents is in J.B. Scott (Director), Resolutions of the Institute of International Law dealing with the Law of Nations: with an historical introduction and explanatory notes at 1 and 205 (Carnegie Endowment for International Peace, Oxford University Press, New York, 1916), hereafter ‘Scott, Resolutions’.

8

Chapter Two. The Origins in Arbitration

[ fautes d’écriture ou de calcul ], even when neither of the parties makes a motion to that effect. . . . An interpretation of the award as notied is not admissible, unless both [italics in original] parties request it.’ Goldschmidt followed this with article 30 that ‘the award, when duly pronounced . . . decides, within the limits of its scope, the dispute between the parties.’3 This was included, with some minor modications, as articles 24 and 25 of the resolution on arbitral procedure adopted by the Institute at The Hague on 28 August 1875.4 An authoritative study of international arbitral procedure of the period found article 24 to be ‘rational’ [rationnel ] since an interpretative decision could largely change the award and sometimes even replace it, in guise of interpretation.5 It is to be noticed that neither the Institute nor the contemporary literature addressed the possibility of the revision of an award.6 There are accounts of some occasional disputes or uncertainties over the precise meaning of an arbitral award. These differences always arose out of difculties encountered in attempts to act in compliance with the terms of the award. An important example of this is the Portendick case between France and Great Britain. That case originated in damage caused by the French authorities to British shermen during a French blockade of the coast of Portendick in Senegal, West Africa, in 1834 and 1835, in the course of some sort of local colonial war.7 King Frederick-Wilhelm IV of Prussia was the

3

4

5

6

7

Scott, Resolutions, 232. Goldschmidt explained that the direct effect of an arbitral award was generally recognized in modern law, adding however, in a passage that reads rather quaintly today, that unless there be a convention to the contrary, none of the parties may refuse to comply, ‘not even upon payment of a promised sum as a penalty’. Now available in H. Wehberg (ed.), Institut de Droit international, Tableau général des Résolutions (1973–1956) 147 (Editions juridiques et sociologiques S.A., Basle, 1957); Scott, Resolutions, 1. A. Mérignhac, Traité théorique et pratique de l’Arbitrage international: Le rôle du droit dans le fonctionnement actuel de l’institution et dans ses destinées futures 282 (L. Larose, Paris, 1895). The French translation of the equally authoritative work in Russian by Count Kamarowsky uses the word révision. L. Kamarowsky, Le Tribunal international (tr. Westman) at p. 514 (Durand et Pedone-Lauriel, Paris, 1887). The use of the word révision here is puzzling, since the concept of revision had not yet appeared either in arbitration practice to date or in the discussions in the Institute of International Law. In the original Russian of this work, the word used is (in modern spelling) ɩɪɨɫɦɨɬɪ which literally means ‘examination’ as opposed to ɩɟɪɟɫɦɨɬɪ meaning ‘revision’. It is understood that Kamarowsky was using the rst word in the sense of ‘cassation’ of the decision, not of its revision in the modern meaning of the word. E-mail, Judge Vereschchetin to the author, 23 February 2006. Stuyt, op. cit. in note 1 above, at p. 40; 42 British and Foreign State Papers, p. 1377 (Award only); A. de La Pradelle and N. Politis, Recueil des arbitrages internationaux2, vol. i, p. 512 at 530 (Les Editions Internationales, Paris, 1957). I am indebted to Ms

§ 2.2. Arbitration: The Hague Conferences of 1899 and 1907

9

arbitrator. The award of 30 November 1843 required France to pay sums of reparation to Great Britain in respect of different incidents that had occurred during the time of that blockade. In the process of complying with the award doubts arose as to what exactly had been included in the damages to be paid to Great Britain, and the British Government approached the King asking him to clarify the meaning and scope of the award. The Prussian Secretary of State, Baron von Bülow, gave the following reply on 15 May 1845: S’il pourrait être nécessaire d’expliquer ou d’interpréter authentiquement le sens de ladite décision arbitrale, une interprétation de cette nature ne pourrait guère avoir lieu que moyennant un acte formel, dont l’émanation, après avoir été dûment préparé dans la voie qui semblerait la plus propre, aurait nalement besoin de la sanction expresse de l’auguste arbitre lui-même. Mais il ne s’agit point ici d’une telle interprétation; les éclaircissements qu’il importe au Cabinet de S. M. B. d’obtenir ne se rapportent qu’à la manière dont le Roi et son gouvernement ont compris la déclaration signée à Paris le 14 novembre 1842 et par laquelle l’Angleterre et la France ont soumis leur différend à l’arbitrage de S. M. Or, le Cabinet du Roi, se trouvant parfaitement à même de fournir ces éclaircissements d’une manière authentique, ne saurait hésiter à se conformer au vœu témoigné par la dépêche susmentionnée de lord Aberdeen. Il s’empresse, en conséquence, de donner la réponse suivante aux deux questions que S. S. a posées dans cette pièce.

This is believed to be the only instance from the arbitrations of the nineteenth century of a formal approach to the arbitrator with a question about the precise meaning of an arbitral award. Most of the reports of that incident and award omit all reference to the British approach to the arbitrator and Baron von Bülow’s reply of 1845 and the correspondence that led to that. However, as an instance of State practice it is an important ‘precedent’ of a unilateral request to the arbitrator for clarication of the award, arising out of difculties encountered in its application. 2.2. Arbitration: The Hague Conferences of 1899 and 1907 and later codication The scene next moves to the First Hague Peace Conference of 1899. This and the second Conference of 1907 together constitute the earliest attempt to employ the heavy machinery of a diplomatic conference in order to consolidate or codify the international law governing inter-State litigation by means of a process of arbitration. The texts adopted in those Conferences, still in force, laid the basis for all later developments. Experience will show

Kate Parlett, Research Fellow, Lauterpacht Centre for International Law, Cambridge, for bringing this and other relevant material to my notice.

10

Chapter Two. The Origins in Arbitration

how the foundations laid down in 1899 and 1907 were well conceived and well laid, and have stood the tests of time. In the 1899 Conference, convened in response to Russian initiative, the discussion took place in the Third Commission meeting under the chairmanship of the French representative, Léon Bourgeois,8 and in the Commission’s Committee of Examination (something akin to a negotiating group and a drafting committee in modern conference procedure), with Chevalier Descamps (of Belgium) as its presiding ofcer. The Russian Proposal was the basis for this discussion.9 That proposal had nothing to say about the interpretation or the revision of an award. Point 24 of a draft arbitral code submitted by the Russian delegation proposed that the arbitral award duly pronounced and notied to the parties ‘settles the dispute . . . denitively and without appeal and closes all of the arbitral procedure instituted by the compromis’.10 The United States also submitted a Plan for an International Tribunal.11 Point 7 of that Plan proposed that every litigant before the international tribunal should have the right to make an appeal for re-examination of a case within three months after the notication of the decision, upon presentation of evidence that the judgment contained a substantial error of fact or law. This gave rise to a prolonged discussion on the question of the revision of an award. At the tenth meeting of the Committee of Examination on 26 June 1899 the American representative (F.W. Holls) raised the question of revision. At rst there was little inclination to discuss the issue in detail and the matter was reserved.12 However, the Committee of Examination returned to the matter at its next meeting on 30 June.13 The American delegate explained that the sole purpose of the amendment was to provide for the consequence

8

9 10 11 12 13

J.B. Scott (ed.), The Proceedings of the Hague Peace Conferences: Translation of the Ofcial Texts, The Conference of 1899 (Carnegie Endowment for International Peace, Oxford University Press, New York, 1920) (hereafter Hague 1899). The Committee of Examination was appointed by the Third Commission at its second meeting on 26 May. Its function was to subject to a preliminary examination the two main proposals then before the Commission, namely the Russian Outlines for the Preparation of a Draft Convention to be concluded between the Powers taking part in the Conference (ibid. p. 797) and a British proposal for a Permanent Court of Arbitration (ibid. 813). The special committee, designated in accordance with the Conference procedures as the Committee of Examination, consisted of representatives from the Netherlands (Asser), Belgium (Descamps), France (Baron d’Estournelles de Constant), United States (Holls), Austria (Lammasch), Russia (Martens), Switzerland (Odier), and Germany (Zorn). Ibid. 585. Ibid. 106. Ibid. Ibid. 111. Ibid. 741. Ibid. 749.

§ 2.2. Arbitration: The Hague Conferences of 1899 and 1907

11

of the discovery of a new fact. The discussions showed doubts about this, and the 1875 resolution of the Institute of International Law was mentioned. The next day, at the twelfth meeting,14 apparently after some informal discussion, the Dutch delegate T.M.C. Asser proposed a new text relating to what he explained as rehearing or revision. The President of the Committee rst put to the vote the ‘principle of revision’, which was adopted. After further discussion and some redrafting the Committee adopted the Asser proposal in the following terms as article 54 of the draft convention for the pacic settlement of international disputes:15 The parties can reserve in the compromis the right to demand the revision of the award. In this case, and unless there be an agreement to the contrary, the demand must be addressed to the tribunal which pronounced the award. It can only be made on the ground of discovery of some new fact which is of a nature to exercise a decisive inuence upon the award and which, at the time the tribunal entered its decree, was unknown to the tribunal and to the party demanding the revision. Proceedings for revision can only be instituted by a decision of the tribunal expressly recording the existence of the new fact, recognizing in it the character described in the preceding paragraph, and declaring the demand admissible on this ground. No demand for revision can be received unless it is formulated within three months following the notication of the award.

After further minor drafting changes, the draft convention came before the Third Commission, which discussed it at its fth meeting on 17 July.16 The debate on this proposal is probably the most fundamental of all the debates since 1899 on the principle of the revision of an award which is intended to be the nal settlement of an international dispute between two or more sovereign States. It was marked by a strong speech by the Russian delegate Feodor Martens. The American delegate Holls, in an equally strong speech, recalled the saying attributed to President Lincoln ‘Nothing is settled until it is settled right’. That is set against the public interest – Interest reipublicae ut sit nis litium. After a discussion to and fro Asser submitted a further amendment to the last paragraph, to the effect that the compromis would determine the period within which the demand for revision had to be made. In that form the Third Commission adopted the proposal unanimously. The Conference adopted the Third Commission’s draft at its seventh meeting

14 15

16

Ibid. 752. Ibid. 857, where the Asser proposal is also reproduced. In the last paragraph it proposed a period of six months from the notication of the award. The change to three months was proposed by the President of the Committee of Examination. For the third reading, see p. 779. Ibid. 617.

12

Chapter Two. The Origins in Arbitration

on 25 July without further discussion.17 This became Article 55 of the Convention of 1899. It followed immediately on Article 54 which declared that the award, duly pronounced, and notied to the agents of the parties ‘puts an end to the dispute denitively and without appeal’ (décide dénitivement et sans appel la contestation). This was followed by Article 56 providing that the Award is only binding on the parties who concluded the ‘Compromis’. The distinguishing feature of this discussion and of the Convention as adopted in 1899 is that the principle of revision as accepted was rmly based on the central characteristic of international arbitration as it had developed during the nineteenth century and as was also reected in both of the Hague Conventions. That feature was that the whole of the proceedings rested upon and was the consequence of a special agreement to refer a dened dispute to arbitration. Article 31 of the 1899 Convention gave the meaning of special agreement as an agreement ‘in which the subject of the difference is clearly dened, as well as the extent of the Arbitrator’s powers. This Act implies the undertaking of the parties to submit loyally to the Award’. The special agreement dominated the arbitral proceedings, even to the extent that it could provide not only for the limited revision as set out in Article 55 of the Convention, but also for the time period within which any demand for revision would have to be made. As will be seen, the situation which faced the Permanent Court of International Justice when it came to deal with this issue in drawing up its rules of court was fundamentally different. In all the discussions regarding arbitration before 1920, the arbitration tribunal was an ad hoc body, established by the special agreement which could also formulate its working rules. As an ad hoc body it became technically functus ofcio with the delivery of its award which was nal and binding and without appeal, in the sense that the parties to the special agreement agreed in advance to comply with it. The establishment of the Permanent Court of International Justice as a standing international judicial organ operating under standing rules of procedure, with the possibility of a State being able to bring a case before it by unilateral application against another State without any special agreement, changed this. It became necessary to reformulate the provisions for revision (and proceedings for interpretation also) as an independent self-standing institution of the procedure for the judicial settlement of international disputes and separate the two from any dependence on the special agreement or to make them applicable in cases brought before the Court by unilateral application. Nevertheless the debate of 1899 retains its signicance as bringing out the

17

Ibid. 91. This became Art. 55 in the nal text of the Convention of 1899.

§ 2.2. Arbitration: The Hague Conferences of 1899 and 1907

13

mixed political and legal issues raised by the very suggestion of possible revision of a nal and binding decision. The Second Hague Peace Conference of 1907 was convened jointly by the Russian and United States Governments, inter alia for the purpose of considering improvements to be made in the provisions of the 1899 Convention.18 The Conference reviewed the 1899 Convention article by article and decided on any amendments that were submitted. It received two amendments of relevance to this study. Italy proposed adding a new article 54 bis on the interpretation of an award. It was to the effect that any dispute between the parties as to the interpretation and execution of the arbitral award should be submitted to the decision of the same tribunal which pronounced it.19 Russia wanted to suppress Article 55 – the same position that it had adopted in 1899.20 The First Subcommission of Commission I discussed these proposals at its eleventh meeting on 13 August 1907. It sent the Italian proposal to the Committee of Examination without any further discussion.21 Regarding Article 55, it was again Martens who spoke to this issue. After referring to the discussion of 1899 he recalled that the question of revision had been taken up in 1902 by the Tribunal that had determined the Pious Funds arbitration between Mexico and the United States of America.22 On 14 October 1902 the members of that Tribunal had addressed a letter to the Dutch Foreign Minister, in his capacity of President of the Administrative Council of the Permanent Court of Arbitration, containing some reections respecting the procedure to be followed before the Permanent Court of Arbitration. Referring to Article 55 of the 1899 Convention, the members of the Tribunal saw in that

18

19

20 21

22

For the ofcial correspondence on the convening of the Second Conference, see Sh. Rosenne (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents 242 (The Permanent Court of Arbitration, Asser Press, The Hague, 2001). J.B. Scott (ed.), The Proceedings of the Hague Peace Conferences: Translation of the Ofcial Texts, The Conference of 1907 (Carnegie Endowment for International Peace, Oxford University Press, New York, 1921) (hereafter Hague 1907), vol. ii, p. 871. Ibid. 869. Ibid. p. 368. Committee C consisted of Fustinato (Italy), Guillaume (Belgium), Sir Edward Fry (as Vice-President of the First Commission), Kriege (Germany), Fromageot (France), Lange (Norway), Lammasch (Austria-Hungary), Eyre Crowe (Great Britain), d’Oliveira (Portugal) and James Brown Scott (U.S.A.). Ibid. p. 709. IX RIAA p. 7. For particulars of that Arbitration, see Stuyt, op. cit. in n. 1 above, p. 250. Three of the ve arbitrators in that case were delegates at the 1907 Conference – Fry, Martens and Asser. Mexico circulated their letter to the Conference. Hague 1907, vol. ii, p. 938.

14

Chapter Two. The Origins in Arbitration

provision a source of very grave inconvenience. If the period within which the demand for revision is admissible was very short, it would very seldom happen that a new fact giving rise to a revision would be discovered in time. If a rather long period was stipulated, or if the right to demand revision at any time was granted, the obligatory force of the award would remain for a long time in suspense. Pointing out that the award will almost always occasion a feeling of discontent in one of the parties, the letter went on to state that if that feeling was not speedily extinguished by reason of the nality of the award, the dispute might assume an acute character endangering international peace. The ve arbitrators therefore recommended that in the compromis the smallest possible use be made of the power accorded by Article 55. The debate on Article 55 in the First Subcommission was for the most part a repetition of the debate of 1899. The Subcommission decided to refer the issue to the Committee of Examination together with the record of the debate. Committee C of the Committee of Examination discussed these two articles at its fth meeting on 2 September 1907.23 The Committee rst turned its attention to the Italian proposal for a new article 54a. The British delegate (Sir Edward Fry) opposed that on the ground that ‘a new dispute requires a new compromis’ and in such a case there must be a new arbitration. The delegate of Austria-Hungary (Lammasch) proposed adding to the article in question the words ‘in so far as the compromis does not exclude it’. In that form the Committee adopted the Italian proposal. The Committee then turned to Article 55. The President recalled the Russian proposal to suppress that provision. The record laconically states: ‘In consequence of an exchange of views, the Committee decides to retain the present Article 55’.24 The First Commission adopted the two articles at its seventh meeting on 7 October, Russia through Martens once again expressing reservations to Article 83 (as article 55 was renumbered).25 The Conference nally adopted these provisions as articles 81, 82 and 83 with the Convention as a whole at its ninth meeting on 16 October 1907.26 Article 81 La sentence, dûment prononcée et notiée aux agents des parties, décide dénitivement et sans appel la contestation.

23 24 25 26

The award, duly pronounced and notied to the agents of the parties, settles the dispute denitively and without appeal.

Ibid. p. 727. Ibid. 731. Ibid. 131. These became Arts. 82 and 83 of the First Hague Convention of 1907. Hague 1907, vol. i, p. 325. For the authentic French text see 205 CTS 234.

§ 2.2. Arbitration: The Hague Conferences of 1899 and 1907

15

Article 82 Tout différend qui pourrait surgir entre les parties, concernant l’interprétation et l’exécution de la sentence, sera, sauf stipulation contraire, soumis au jugement du tribunal qui l’a rendue.

Any dispute arising between the parties as to the interpretation and execution of the award shall, in the absence of an agreement to the contrary, be submitted to the Tribunal which pronounced it.

Article 83 Les parties peuvent se réserver dans le compromis de demander la révision de la sentence arbitrale. Dans ce cas, et sauf stipulation contraire, la demande doit être adressée au tribunal qui a rendu la sentence. Elle ne peut être motivée que par la découverte d’un fait nouveau qu’eût été de nature à exercer une inuence décisive sur la sentence et qui, lors de la clôture des débats, était inconnu du tribunal luimême et de la partie qui a demandé la révision. La procédure de révision ne peut être ouverte que par une décision du tribunal constatant expressément l’existence du fait nouveau, lui reconnaissant les caractères prévus par le paragraphe précédent et déclarant à ce titre la demande recevable. Le compromis détermine le délai dans lequel la demande de révision doit être formée.

The parties can reserve in the ‘Compromis’ the right to demand the revision of the Award. In this case, and unless there be an agreement to the contrary, the demand must be addressed to the Tribunal which pronounced the Award. It can only be made on the ground of the discovery of some new fact calculated to exercise a decisive inuence on the Award, and which, at the time the discussion was closed, was unknown to the Tribunal and to the party demanding the revision. Proceedings for revision can only be instituted by a decision of the Tribunal expressly recording the existence of the new fact, recognizing in it the character described in the forgoing paragraph, and declaring the demand admissible on this ground. The ‘Compromis’ xes the period within which the demand for revision must be made.

The Conference also adopted a draft convention for a court of arbitral justice, but was unable to complete the work primarily because of difculties over the composition of the court and its constitution. By article 22 of that draft, the court was to follow the rules of procedure laid down in the Convention of 1899, except in so far as the procedure was laid down in the present convention.27 In addition, the Conference adopted Conventions respecting the Limitation of the Employment of Force for the Recovery of Contract

27

295 CTS 216 (Annex).

16

Chapter Two. The Origins in Arbitration

Debts28 and on the International Prize Court.29 Neither of these dealt specically with the interpretation or the revision of their sentences, being content with a cross-reference to the First Convention. This ended the rst phase of the consolidation on the international level of the general international law governing inter-State arbitration proceedings. The Hague Conventions are the rst attempt to set a regular pattern for international litigation. The main feature was the nality and binding quality of the award for the parties to the litigation subject to controlled procedures for the revision and for the interpretation of the award in given circumstances. These cardinal features of international arbitration law continue to dominate international arbitrations between States. They have also been incorporated into the law and practice of the two standing international courts, the International Court of Justice and the International Tribunal for the Law of the Sea. Reviewing these discussions more than a century after they had taken place, the intended essential difference between interpretation and revision becomes clear. The starting point of both is the obligation that the award imposes on each of the parties, namely the obligation to comply with the award, to act in conformity with what it lays down with nal and binding force for the parties to the arbitration proceedings. Interpretation deals with the question of the precise nature and scope of that obligation, the real conduct that it requires of the parties, what precisely is that obligation. Revision addresses something quite different, namely, in light of the established new fact, meaning a fact which was unknown to the parties and to the arbitral organ at the time of the deliberations and of the award and the ignorance was not due to negligence, was the decision embodied in the res judicata still the correct one. Interpretation is focused on the result of the collective thought-process of the judges constituting the tribunal, as expressed in the award stated to be nal and binding. The aim of revision is to examine that thought-process itself and the relevant factors that inuenced it. Some might think that this is a procedure that can only be fully performed by the same persons who rendered the original award. If other personalities become engaged in the process, whatever technical designations may be given to it in fact the personalities constituting the later tribunal substitute their thought-process for that of the original judges. In addition, both interpretation and revision of an award take place within a legal context that includes Article 81 of the Convention, to the effect that the award, duly pronounced and notied to the agents of the parties, settles the dispute ‘denitively and without appeal’.

28 29

205 CTS 250. Ibid. 381.

§ 2.3. Later Developments (1908–2005)

17

The two procedures are to take place in such a manner as not to call into question the accuracy of the legal reasoning and its application to the facts as established in the decision. 2.3. Later developments (1908–2005) The Hague texts were to form the basis for the next major development in this branch of international law. That was the adoption of the Statute of the Permanent Court of International Justice in 1920 as a standing international judicial organ and the adoption by the Permanent Court of its rst Rules of Court in 1922, discussed in Chapters 3 and 4 below. Article 1 of the Statute of that Court maintained the continued existence of the arrangements for arbitration set out in the Hague Conventions. Throughout, since 1920, inter-State arbitration has ourished and developed alongside the judicial settlement of international disputes through the Permanent Court. This has been continued in the Charter of the United Nations, with the current International Court of Justice as the principal judicial organ of the United Nations, joined in 1996 by the ITLOS. Article 95 of the Charter preserves the right of the parties to the Statute to entrust the solution of their differences to other tribunals.30 It was therefore inevitable that sooner or later international arbitration procedures would come within the scope of the codication and progressive development of international law which Article 13 of the United Nations Charter imposes upon the General Assembly. That process was to bring about the complete separation of the interpretation and the revision processes from the special agreement to submit a dispute to the judicial process. This was to lead in 1982 to the introduction of the possibility of unilateral recourse to arbitration for certain types of law of the sea disputes. In addition, processes involving examination by the International Court of Justice of the validity of an arbitral award and processes of ‘appeal’ from certain arbitral decisions have been developed. These all take place within a legal context which postulates that an arbitral award, like a judgment of one of the standing judicial organs, is nal, binding, and without appeal. In 1949 the newly formed International Law Commission selected arbitral procedure as one of the topics for codication and appointed the French Professor Georges Scelle as special rapporteur. In the draft convention submitted by the Commission in 1953, after postulating the binding quality of the award three articles dealt with the topics of the correction of errors, the interpretation,

30

See Sh. Rosenne, ‘Article 95 of the Charter Revisited’, in Essays on International Law and Practice, 65 (Martinus Nijhoff, Leiden, 2007).

18

Chapter Two. The Origins in Arbitration

and the revision of awards, and these were clearly written under the inuence of the Statute of the International Court.31 Those provisions read: Article 26 The award is binding upon the parties when it is rendered. It must be carried out in good faith.

Article 27 Within a month after the award has been rendered and communicated to the parties, the tribunal, either of its own accord or at the request of either party, shall be entitled to rectify any clerical, typographical or arithmetical error or errors of the same nature apparent on the face of the award.

Article 28 1. Any dispute between the parties as to the meaning and scope of the award may, at the request of either party and within one month of the rendering of the award, be submitted to the tribunal which rendered the award. A request for interpretation shall stay execution of the award pending the decision of the tribunal on the request. 2. If, for any reason, it is impossible to submit the dispute to the tribunal which rendered the award, and if the parties have not agreed otherwise within three months, the dispute may be referred to the International Court of Justice at the request of either party.

Article 29 1. An application for the revision of the award may be made by either party on the ground of the discovery of some fact of such a nature as to have a decisive inuence on the award, provided that when the award was rendered that fact was unknown to the tribunal and to the party requesting revision and that such ignorance was not due to the negligence of the party requesting revision. 2. The application for revision must be made within six months of the discovery of the new fact and in any case within ten years of the rendering of the award. 3. In the proceedings for revision the tribunal shall, in the rst instance, make a nding as to the existence of the alleged new fact and rule on the admissibility of the applica-

31

Report of the Commission on the work of its fth session (A/2456), YBILC 1953–II, ch. II, articles 27, 28 and 29. Reproduced in A. Watts. The International Law Commission 1949–1998, vol. iii 1778 (Oxford University Press, Oxford, 1999). The Commentary on those draft articles was prepared by the Secretariat and is published separately in Commentary on the Draft Articles on Arbitral Procedure adopted by the International Law Commission at its Fifth Session, prepared by the Secretariat (A/CN.4/92) (United Nations, New York, 1955, Sales No. 1955.V.1).

§ 2.3. Later Developments (1908–2005)

19

tion. If the tribunal nds the application admissible it shall then decide on the merits of the dispute. 4. The application for revision shall be made to the tribunal which rendered the award. If, for any reason, it is not possible to make the application to that tribunal, the application may, unless the parties agree otherwise, be made to the International Court of Justice, by either party.

As will be seen in Chapters 5 and 6, the application of provisions such as these closely follows the application of the relevant texts of the Statute of the International Court of Justice, with however three major differences. Firstly, the statement that the award is nal and binding is not followed by the words and without appeal. There is an implication that some sort of recourse against the nality of an arbitral award may be available. Indeed, the articles themselves formulate rules for different types of recourse. Articles 25, 26 and 27 are in Chapter V of the draft articles dealing with the award, while article 28 is the sole article in Chapter VI, entitled simply Revision. This follows the way in which the items had been discussed in the 1907 Hague Conference. The mutual coalescing of interpretation and revision which is now a characteristic of the current (1978) Rules of the International Court of Justice had not yet occurred. The two topics appear to have been conceptionally unrelated to one another both substantively and procedurally. The second difference is the introduction of a reference to the continued execution of the impeached judgment when a request for interpretation is led, following the lead of the precedent on revision. However, the wording of this is reversed. Instead of speaking about requiring compliance with the terms of that judgment, the formulation here introduces the concept of requiring a stay in the compliance process. The implication here is that the impeached judgment continues to be in force and binding subject however to the possibility of a change coming about in consequence of the interpretation process. The third difference is the introduction of a time limit for interpretation which has to be requested quickly, within one month of the rendering of the impeached award. This only applies to interpretation. Other forms of recourse from an impeached award, for instance to the International Court of Justice (or other forms of renvoi) can be made at any time, subject to possible objection based on the principle of laches. Indeed as these words are being written there is pending in the International Court of Justice a case which may involve the interpretation of an arbitral award rendered in 1906, a century ago.32

32

Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea (pending).

20

Chapter Two. The Origins in Arbitration

The Secretariat prepared the Commentary on this draft. It draws attention to several useful precedents. It is silent with regard to the absence from Article 26 of the phrase without appeal. Dealing with Article 27, it points out – and indeed this is cardinal to the whole discussion of interpretation and revision – that once rendered the award becomes res judicata ‘and may not thereafter be modied by the tribunal’, subject to article 29 on revision. It points out that the power of revising an award has to be distinguished from the mere rectication of ‘clerical, typographical or arithmetical error or errors of the same nature apparent on the face of the award’. According to the Secretariat, such rectication ‘merely supplements or completes the award and does not involve its modication’.33 The Secretariat also explained that the limitation that the tribunal could only exercise its power to make the correction within one month of the communication of the award to the parties would not prevent the parties from acknowledging and correcting a manifest error after the expiration of that time limit. This provision thus maintains the distinction between an optional process of revision and a compulsory process of revision. In the commentary on article 28, the Secretariat relied on the principle eius est interpretari cuius est condere. It stressed how important it was that, to the extent possible consistent with the interests of the international community, no step be taken which would derogate from the authority and independence of the tribunal or would needlessly tend to create a hierarchy of international tribunals. Article 28 avoided any such step by reserving for decision by the original tribunal the determination of disputes as to the interpretation of its award. However, the acceptance of a residual jurisdiction in the International Court of Justice, which according to the Secretariat preserved the interests of the international community, may not be fully consistent with the concept of the absence of any hierarchy in the system of international courts and tribunals.34 The General Assembly did not accept the draft convention proposed by the International Law Commission. In resolution 989 (X), 14 December 1955, it asked the Commission to reconsider its draft and to report to the General

33

34

The Secretariat drew attention to two cases determined by a United States-Mexican Claims Tribunal relevant to the correction of an award, Thadeus Amat et al v. Mexico, J.B. Moore, op. cit. in n. 1 above, vol. ii, 1358; and an unnamed decision by the Umpire recorded in vol. iii at p. 2192. In this part of the Commentary, the Secretariat referred to the three precedents from the Permanent Court of International Justice and International Court that had taken place up to that date, the Chorzów Factory (Interpretation) case, the Treaty of Neuilly (Interpretation) case and the Asylum (Interpretation) case, examined in Ch. 5, and to a decision of the Franco-Austrian Mixed Claims Tribunal in Fourchet v. Austria, 9 Recueil des décisions des Tribunaux Arbitraux Mixtes, p. 283.

§ 2.3. Later Developments (1908–2005)

21

Assembly in 1958. In that year the Commission adopted a set of Model Rules on Arbitral Procedure and invited the General Assembly to adopt its report. In those Model Rules the relevant provisions appear as articles 30 (on the binding force of the award), 31 (on the correction of clerical errors), 32 (on the ‘denitive settlement’ of the dispute), 33 (on the interpretation of the award), 34 to 37 (on the validity and annulment of the award) and 38 (on the revision of the award). Their texts are as follows: THE AWARD

Article 30 Once rendered, the award shall be binding upon the parties. It shall be carried out in good faith immediately, unless the tribunal has allowed a time limit for the carrying out of the award or any part of it.

Article 31 During a period of one month after the award has been rendered and communicated to the parties, the tribunal may, either of its own accord or at the request of either party, rectify any clerical, typographical or arithmetical error in the award, or any obvious error of a similar nature.

Article 32 The award shall constitute a denitive settlement of the dispute. INTERPRETATION OF THE AWARD

Article 33 1. Any dispute between the parties as to the meaning or scope of the award shall, at the request of either party and within three months of the rendering of the award, be referred to the tribunal which rendered the award. 2. If, for any reason, it is found impossible to submit the dispute to the tribunal which rendered the award, and if within the above-mentioned time limit the parties have not agreed upon another solution, the dispute may be referred to the International Court of Justice at the request of either party. 3. In the event of a request for interpretation, it shall be for the tribunal or for the International Court of Justice, as the case may be, to decide whether and to what extent the ward shall be stayed pending a decision on the request.

Article 34 deals with the disposal of the archives relating to the case.

22

Chapter Two. The Origins in Arbitration

VALIDITY

AND ANNULMENT OF THE AWARD

Article 35 The validity of an award may be challenged by either party on one or more of the following grounds: (a) That the tribunal has exceeded its powers; (b) That there was corruption on the part of a member of the tribunal; (c) That there has been a failure to state the reasons for the award or a serious departure from a fundamental rule of procedure; (d ) That the undertaking to arbitrate or the compromis is a nullity.

Article 36 deals with the modalities and time limits for proceedings contesting the validity of an award. Paragraph 3 provided for a stay of execution pending the nal decision on the application for annulment. Article 37 provided for further proceedings if the award is duly declared invalid. REVISION OF THE AWARD

Article 38 1. An application for the revision of the award may be made by either party on the ground of the discovery of some fact of such a nature as to constitute a decisive factor, provided that when the award was rendered that fact was unknown to the tribunal and to the party requesting revision, and that such ignorance was not due to the negligence of the party requesting revision. 2. The application for revision must be made within six months of the discovery of the new fact, and in any case within ten years of the rendering of the award. 3. In the proceedings for revision, the tribunal shall, in the rst instance, make a nding as to the existence of the alleged new fact and rule on the admissibility of the application. 4. If the tribunal nds the application admissible, it shall then decide on the merits of the dispute. 5. The application for revision shall, whenever possible, be made to the tribunal which made the award. 6. If, for any reason, it is not possible to make the application to the tribunal which rendered the award, it may, unless the parties otherwise agree, be made by either of them to the International Court of Justice. 7. The tribunal or the Court may, at the request of the interested party, and if circumstances so require, grant a stay of execution pending the nal decision on the application for revision.

§ 2.3. Later Developments (1908–2005)

23

In resolution 1262 (XIII), 14 November 1958, the General Assembly took note of those Model Rules and brought them to the attention of member States for their consideration and use.35 As for the Permanent Court of Arbitration, in 1991, in preparation for the centenary of the 1899 Conference, the Secretary-General convened a working group on improving the functioning of the PCA. This working group concluded that the time had come for bringing the international arbitral procedure up to date on the basis of the arbitration rules adopted by the UNCITRAL in 1976.36 The Optional Rules for Arbitrating Disputes between Two States were then adopted by the Administrative Council of the Permanent Court of Arbitration in 1997 as part of its process of modernizing the arbitration provisions of the 1907 Convention. These optional rules contain two relevant provisions.37 In the section devoted to the form and effect of the award, by Article 32 – 1. – – – 2. The award shall be made in writing and shall be nal and binding on the parties. The parties undertake to carry out the award without delay. 3. The arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons shall be given. ––– 5. The award may be made public only with the consent of both parties. 6. – – –

In the section on the interpretation of the award, Article 35 provides: 1. Within sixty days after the receipt of the award either party, with notice to the other party, may request that the arbitral tribunal give an interpretation of the award. 2. The interpretation shall be given in writing within forty days after the receipt of the request. The interpretation shall form part of the award – – –.

Article 35 is drafted in much wider terms than had been used previously, and it is not limited to an interpretation when there is a dispute as to the meaning and scope of the award. A useful addition in article 35, paragraph 2, lays down that the interpretation ‘shall form part of the award’. An instance

35

36 37

Report of the Commission on the work of its tenth session, YBILC 1958/II (A/3859). Arts. 31 (correction of the award), 33 (interpretation of the award) and 38 (revision of the award) correspond to the provisions cited above in the Commission’s earlier draft, with some drafting changes. United Nations Commission for International Trade Law (UNCITRAL), Yearbook 1976, 22. Reproduced in the work cited in the next note, at p. 269. Permanent Court of Arbitration, Basic Documents: Conventions, Rules, Model Clauses and Guidelines, 2005 edition 45 (Peace Palace, The Hague, 2005). Similar provisions appear in other Optional Rules adopted on the same occasion.

24

Chapter Two. The Origins in Arbitration

of this occurred late in 2005, when a correction was requested by one party to one word in the reasons (not the operative clause) in the Iron Rhine (IJzeren Rijn) Railway arbitration between Belgium and the Netherlands, and concurred in by the other party.38 So far as is known that is the earliest example of this type of correction. Article 36 of these Optional Rules, on the correction of the award, provides that within sixty days after the receipt of the award, either party, with notice to the other party, may request the arbitral tribunal to correct in the award any errors in computation, any clerical or typographical errors, or any errors of similar nature. The arbitral tribunal may within thirty days after the communication of the award make such corrections on its own initiative. The corrections are to be in writing and the relevant provisions of article 32 are applicable.39 On the other hand there is no provision for revision in these Optional Rules. Presumably, if relevant, the general law of international arbitration as set out in Article 83 of the Hague Convention could supply a formal basis for revision proceedings.40 An explanation for the non-inclusion in the Optional Rules of any provision for revision can be found in the fact that those Optional Rules were themselves an adaptation of the UNCITRAL Arbitration Rules of 1976, which were designed for commercial arbitrations, not for inter-State arbitrations. The commercial arbitrations would probably be subject to the governing system of internal law which in many cases would provide for different forms of recourse from arbitral awards coming within its jurisdiction. Since 1978 there have been several inter-State arbitration proceedings in interpretation and revision, as follows:

38

39

40

Correction to the Award of the Arbitral Tribunal in the Arbitration regarding the Iron Rhine (IJzeren Rijn) Railway, 20 September 2005, available on the website of the PCA. For surveys of relevant treaty provisions, see United Nations, Systematic Survey of Treaties for the Pacic Settlement of International Disputes 1928–1948 (UN, New York, 1949 Sales No. 1949.V.3); United Nations, A Survey of Treaty Provisions for the Pacic Settlement of International Disputes 1949–1962 (UN, New York, 1966, Sales No. 66.V.5). This is a continuation of a similar publication of the League of Nations. Art. 1 (3) of the Optional Rules provides that if at the date of the commencement of arbitration proceedings either of the Hague Conventions is in force between the parties, the applicable Convention shall remain in force and the parties, in the exercise of their rights under the Convention, agree that the procedures set forth in the Optional Rules shall govern the arbitration as provided for in the parties’ agreement. This gives the Conventions a certain standing in relation to proceedings governed by the Optional Rules.

§ 2.3. Later Developments (1908–2005)

25

• Anglo-French Continental Shelf, Decision of 14 March 1978, proceedings in revision and interpretation;41 • Laguna del Desierto Judgment of 21 October 1994 (Argentina/Chile) (Chile v Argentina), revision and interpretation;42 • Heathrow User Charges arbitration, Decision No. 23 (Supplementary Decisions and Clarications) 1 November 1993 (United Kingdom/United States of America);43 • Iron Rhine (IJzeren Rijn) Railway Case, Interpretation of the Award of the Arbitral Tribunal (Belgium/Netherlands);44 • Request for Interpretation, Correction and Consultation of the Eritrea/Ethiopia Boundary Arbitration (Ethiopia v Eritrea) decision of 24 June 2002.45 For a correction pure and simple, see the Arbitration regarding the Iron Rhine (IJzeren Rijn) Railway, Correction to the Award of the Tribunal, 20 September 2005.46

41 42 43 44 45 46

UNRIAA, vol. xviii, p. 271. 13 October 1995. 113 ILR 194. 102 ILR 564. 20 September 2005, PCA website. 24 June 2002, PCA website. Also available in UN doc. S/2002/732. For the original award, available on the PCA website, see doc. S /2002/423, 15 April 2002. PCA website.

CHAPTER THREE

THE STATUTES

3.1. League of Nations Covenant, Article 14: The Advisory Committee of Jurists (1920) With the end of the First World War following the Armistice of 11 November 1918, preparations for the peace conference were put in hand. They included proposals to set up a general association of nations for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small States alike, in the words of President Wilson’s XIV Points. With these proposals was the idea that to be complete, an international court should be included among the new organization’s principal organs. That, in turn, led to a revival of the efforts to establish a permanent international court, efforts which had been suspended at the 1907 Conference for the reasons explained in Chapter 2, § 2.2 above. Several plans for such a court were drawn up, some before the signing of the Treaty of Versailles (28 June 1919), when it was thought that the court would be part of the new League of Nations, and some after that date, when it had been decided that a new court would be created apart from the League. Most of those plans addressed the major issues left open in the 1907 Conference. Others went further and contained detailed proposals for the working of a permanent international court. The Peace Conference accepted the principle of the establishment of such a court but left the details for future action. Article 14 of the Covenant of the League of Nations, which was Part I of the Peace Treaties of 1919, required the League Council to formulate plans for the establishment of a Permanent Court of International Justice and submit them to the members of the League for adoption. That Court would be empowered to hear and determine any dispute of an international character [tous différends de caractère international] which the parties to the dispute might submit to it. It could also give an advisory opinion upon any dispute or question referred to it by the Assembly or the Council of the League. The Council quickly set to work. On 14 February 1920, at its second session it established the Advisory Committee of Jurists to prepare plans for the establishment of the Court. That was the beginning of the political process that at

28

Chapter Three. The Statutes

the end of 1920 led to the adoption of the Statute of the Permanent Court of International Justice. The election of the members of the Permanent Court took place at the second session of the League Assembly in 1921 and the Court was established as a functioning judicial organ in 1922. The Advisory Committee of Jurists was in session at The Hague from 10 June to 24 July 1920.1 For the most part the Committee was concerned with the major issues of the organization and constitution of the Court, its composition, and its contentious jurisdiction. These were the principal matters left open at the 1907 Conference with regard to the proposed Court of Arbitral Justice. The Committee settled the question of the composition of the Court – the system of the election of the judges simultaneously by the Council and Assembly of the League, the institution of judges ad hoc and the composition of the Court (Bench) for any case in the system that formally has been maintained in the combined Charter of the United Nations and Statute of the International Court of Justice to this day. The basis for this was the so-called Root-Phillimore Plan, named after the American and British members of the Committee who put it forward. The constitution of the Court was left for the Assembly to decide – and that led to the Protocol of Signature of the Statute of the Permanent Court of International Justice as an instrument independent of the Covenant and hence of the Peace Treaties of 1919.2 The issue of jurisdiction raised the question whether Article 14 of the Covenant required that the Court’s jurisdiction over legal disputes should be compulsory. The Committee gave a positive answer to that question and proposed a system by which the Court’s jurisdiction over a series of categories of dispute would be compulsory. That system did embody one major innovation in comparison with earlier arbitration practice. It envisaged the

1

2

See Permanent Court of International Justice, Advisory Committee of Jurists, Procèsverbaux of the Proceedings (1920, reprinted 2006 by Lawbook Exchange, Union NJ, and distributed by W.S. Hein and Co. Inc., Buffalo NY), hereafter Procès-verbaux; Permanent Court of International Justice, Advisory Committee of Jurists, Documents presented to the Committee relating to Existing Plans for the Establishment of a Permanent Court of International Justice (London n. d. [1920]), hereafter Documents. The rst publication is also known as Vol. II, referred to as such in some of the contemporary documentation. The Committee was composed as follows: M. Adatci (Japan), R. Altamira (Spain), C. Bevilaqua, replaced by Raoul Fernandes (Brazil), Baron Descamps (Belgium), F. Hagerup (Norway), A. de Lapradelle (France), B.C.J. Loder (the Netherlands), Lord Phillimore (United Kingdom), A. Ricci-Busatti (Italy), and E. Root with J.B. Scott as legal adviser (United States of America). Baron Descamps was elected President and Loder Vice-President of the Committee. For the Protocol of Signature relating to the Statute of the Permanent Court of International Justice, provided for in Art. 14 of the Covenant of the League of Nations, see 6 LNTS 379. The Protocol of Signature entered into force on 20 August 1921.

§ 3.1. The League of Nations Convenant, Article 14

29

possibility of a State invoking the Court’s jurisdiction by a unilateral application alongside the traditional special agreement as a title of jurisdiction. The League Council rejected the Advisory Committee’s approach to the issue of jurisdiction (while leaving undisturbed the possibility of a unilateral application to the Court). The Council insisted that Article 14 should not disturb the traditional rule of international arbitration. This traditional rule was to the effect that the Court’s jurisdiction to determine any case required the consent of the parties to that dispute and that, following Article 14 of the Covenant, the Court could only hear cases that the parties submitted to it. Although the draft prepared by the Advisory Committee was based on the assumption that the new Court’s jurisdiction over legal disputes would be compulsory, the Council did not require a second look at the text when it rejected this and decided to maintain the traditional approach of ad litem consent to the jurisdiction in any particular case. One of the consequences is that in the new context some of the Advisory Committee’s proposals may not be easily applicable as they stand. The League Secretariat presented the Committee with a detailed memorandum setting out the different plans for the Court.3 Section VI of the Secretariat’s memorandum addressed the Court’s procedure and other miscellaneous matters affecting it. Very little attention was paid to the issues of the interpretation of a judgment and the revision of a judgment. Item 28, As to the decision of the Court, paragraph ( j ), asked: ‘Suppose there is a dispute as to the meaning of an award?’ It referred to Article 82 of the 1907 Convention and recalled that the British delegation had objected to the original proposal for that provision. Item 29 asked whether an appeal or a demand for revision was to be allowed. The memorandum cited President Lincoln’s remark that the American delegate had used in 1907 and drew attention to Russia’s objections to that provision. Given the Committee’s preoccupation with those essential matters, it did not have much time for the details of the Court’s procedure, especially as many of these had to a large extent been settled in Convention No. I of the 1907 Conference and the Court would be able to handle unregulated matters through its rule-making power under Article 30 of the Statute. At its fteenth meeting on 3 July 1920, the Committee established a Drafting Committee to draw up those rules for the procedure in the new court which were considered to be of sufcient importance to warrant mention in the Statute, at least in principle. The Committee required those rules to be considered at unofcial meetings with no procès-verbaux.

3

Documents, previous note.

30

Chapter Three. The Statutes

The Drafting Committee presented its proposals at the Committee’s twenty-fth meeting on 19 July. A summary of questions relating to the establishment of the Court which had not yet been fully discussed in the Committee of 15 July included ‘Revision or appeal’.4 Chapter 2, article 29, of the Drafting Committee’s text regarding the Court’s jurisdiction (later Article 36 of the Statute) enumerated the types of legal disputes over which the new court would have compulsory jurisdiction. It included jurisdiction to hear and determine cases concerning ‘the interpretation of a sentence passed by the Court’. Chapter 3, on procedure, contained substantive proposals regarding the interpretation and the revision of the future court’s judgments. For interpretation, after stating that a judgment is nal and without appeal, article 21 went on: ‘In the event of uncertainty as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.’ For revision, article 22 was substantially similar to what became Article 61 of the Statute, except that ve years was proposed as the period within which an application for revision had to be made.5 The Committee adopted these two proposals with little discussion at its twenty-eighth meeting on 20 July.6 They appeared as articles 34 ( jurisdiction), 58 (interpretation), and 59 (revision) of the Committee’s report.7 The only comment of signicance in that report concerned article 59, where the Committee explained why it had not followed strictly the provisions of the 1907 Convention: The right of revision is a very important right, and affects adversely in the matter of res judicata, a point which for the sake of international peace should be considered as nally settled. Justice, however, has certain legitimate requirements; the Committee, after due consideration, decided that there must be a right of intervention [sic]. The conditions would be the same as in the case in which it was authorized by the ‘compromis’ . . .; a new fact is required which is of a nature to exercise a decisive inuence, and which, before pronouncement of sentence, was unknown to the Court. An improvement is introduced whereby the Committee, not content as in Art. 55 of 1899 (Art. 82 of 1907), with ignorance of the fact on the part of the party requesting revision, stipulates that such ignorance must not be due to a failure on the part of the party to use due diligence in the conduct of the case. Eventually the words ‘not due to negligence’ were considered sufcient.8

On the question of the time limit, the Committee felt that this could not be left to the parties and it therefore decided on a limit of ve years. The Committee

4 5 6 7 8

Procès-verbaux at p. 360. Ibid. p. 561. Ibid. p. 592. In its report the Committee merely stated that this varied only slightly from the corresponding provisions of the Conventions of 1899 and 1907, ibid. at 743. Ibid. p. 693 at pp. 729, 744, 745. Ibid. p. 744.

§ 3.2. The Permanent Court of International Justice (1920)

31

gave as its explanation its fear that a party might delay compliance with a judgment until the expiration of the period of ve years on the ground that during this period some new fact might be discovered which would lead to a reversal of the decision. To meet that the Committee considered that it would be advisable to give the Court the power, not provided for in 1907, of refusing to grant the request for revision ‘until the sentence of the Court has been carried out’. One who participated in the work of the Advisory Committee as adviser to one of its members has termed this addition ‘wise’, and has explained it as indicating that a judgment speaks from its delivery, even though it be subject to revision.9 3.2. The Permanent Court of International Justice: The adoption of the Statute (1920) With that the matter came before the League Council.10 On 27 October 1920 the Council decided that Article 14 of the Covenant had not brought any change in the traditional position and that the Court’s jurisdiction was to be optional. The Council therefore adopted a redraft of the Advisory Committee’s article 34 (Statute, Article 36). In that redraft, the detailed enumeration of legal disputes to come within the scope of the court’s compulsory jurisdiction was dropped.11 That included the reference to cases concerning the interpretation of a sentence passed by the Court. The Council also decided, contrary to the Advisory Committee’s proposal, that both English and French should be the Court’s ofcial languages, leaving it to the Court to indicate which of the two texts, ‘equally authentic’, should be accepted in the unlikely alternative of an inconsistency between them. This is a matter which could affect both the drafting and the interpretation of complex legal texts such as a judgment in an international case and the procedure in international litigation.12 Several amendments were submitted at this stage of the work. Italy put forward a drafting amendment to the proposed article 59 on revision; it also suggested extending to ten years the time during which an application for

9

10

11 12

J.B. Scott, The Project of a Permanent Court of International Justice and Resolutions of the Advisory Committee of Jurists: Report and Commentary 130 (Carnegie Endowment for International Peace, Washington D.C., 1920). For this phase, see League of Nations, Permanent Court of International Justice, Documents concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court (Geneva, n. d. [1921]), hereafter Action Taken. Ibid. p. 45. Ibid. p. 51. For the draft scheme for the institution of the Permanent Court as amended by virtue of decisions of the Council, see p. 54.

32

Chapter Three. The Statutes

revision might be made.13 Argentina submitted a new text for draft article 34, dealing with the court’s jurisdiction. In that proposal the reference to the interpretation of a sentence was dropped (this amendment became unnecessary after the Council had redrafted the relevant proposal of the Advisory Committee). Argentina also proposed suppressing the last paragraph of draft article 59 imposing a time limit for the application for revision of a judgment.14 However, the Council decided that questions of detail relating to the draft articles were not the object of its deliberations, which were limited to fundamental questions of principle. Accordingly, those amendments were left for the Assembly. In that form the draft statute came before the rst Assembly of the League of Nations (1920) for adoption. Here it was allocated to the Third Committee which, in turn, referred the detailed scrutiny article by article of the draft statute to a Sub-Committee.15 The Sub-Committee discussed draft article 59 (revision, adopted as Article 61) at its sixth meeting on 29 November 1920.16 With regard to the Italian amendments,17 the Sub-Committee noted that the concept of the discovery of a fact included the discovery of a document: with that the rst Italian amendment originally submitted to the Council became unnecessary and was withdrawn. According to the record the Sub-Committee approved the deletion of the word ‘new’, but apparently this was for the rst paragraph of this article only. With regard to the proposals for prolonging the period within which an application for revision had to be made or for dropping that provision altogether, after discussion Fromageot proposed a new formula: ‘The application for revision [demande en revision] must be made at latest within six months of the discovery of the new fact. No application for revision may be made after the lapse of ten years from the date of the sentence.’ The Argentine amendment was then unanimously rejected: the

13 14 15

16

17

Ibid. p. 28 at p. 30. Ibid. 65 at p. 69. The Sub-Committee consisted of ve members (delegates of their country) who had been members of the Committee of Jurists – Adatci (Japan), Fernandes (Brazil), Hagerup (Norway, Chairman), Loder (the Netherlands), and Ricci-Busatti (Italy), and ve members appointed by the Bureau of the Third Committee – Doherty (Canada), Fromageot (France), Huber (Switzerland), Sir Cecil Hurst (Great Britain), and Politis (Greece). Action Taken at p. 138. The record of this meeting is confused and the discussion only becomes clear on reading the Sub-Committee’s report to the Third Committee, ibid. p. 206 at p. 213. The relevant amendment proposed (a) the substitution in the second line of the rst paragraph of the words ‘of some new fact or document’ for ‘some new fact’; and (b) to extend to ten years the time during which an application for revision may be made.

§ 3.2. The Permanent Court of International Justice (1920)

33

Italian amendment xing the time period at ten years was adopted by seven votes against three and the Fromageot formula was adopted by the close vote of ve to four, with the Chairman abstaining.18 As the result of this discussion the word ‘new’ was dropped from the rst paragraph only, being retained in the second and in the fourth (the Fromageot formula) paragraphs. The Third Committee adopted the text as modied by the Sub-Committee at its sixth meeting on 9 December.19 In their nal form, these provisions appeared as Articles 60 (interpretation) and 61 (revision) of the Statute of the Permanent Court of International Justice, substantially repeated in Articles 60 and 61 of the Statute of the International Court of Justice, as set out below. The Permanent Court had two formal cases of interpretation of an earlier judgment: • Interpretation of Judgment No. 3, Judgment No. 4 (Treaty of Neuilly, Article 179, Annex, Paragraph 4 (Interpretation)) [Chamber of Summary Procedure];20 • Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów) Judgment No. 11.21 At the same time the prolonged litigation in contentious and advisory cases between Germany and Poland brought out that there could be other instances requiring interpretation of a judgment not brought within the scope of Article 60 of the Statute. That is another matter altogether. No request for the revision of a judgment came before the Permanent Court of International Justice.

18

19

20 21

This part of the record as printed is apparently garbled, and the expression ‘some new fact’ in the rst paragraph was replaced in the text adopted by the Sub-Committee by ‘some fact’. In the second paragraph the expression ‘the new fact’ was retained. The Sub-Committee’s report to its parent body does not mention this. Ibid. at p. 213. Ibid. at p. 103. The Committee rejected an amendment by Romania that ‘The right to appeal against the judgment is open to parties who have not been summoned to appear’. Hagerup, Chairman of the Sub-Committee, explained that this proposal was useless and dangerous: it was essential that the Court’s judgments should be nal ‘except in the case of discovery of a new fact’. It seems that before nal adoption the text was given some screening, probably by the Secretariat together with one or two delegates who had been prominent in the previous discussions. In particular there are improvements in the punctuation, especially of the English text. It is generally assumed that the French text is the original for the Statute of the Permanent Court. On the language of the Statutes, see Sh. Rosenne, Law and Practice4, vol. i p. 69. PCIJ, Ser. A No. 4 (1925). PCIJ, Ser. A.13 (1927).

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3.3. The Establishment of the International Court of Justice (1945) As the Second World War approached its end the four allied great powers of the time, China, the Union of Soviet Socialist Republics, the United Kingdom and the United States of America, engaged in negotiations regarding the future international arrangements to be put in place on the restoration of peace. Those negotiations let to the Proposals for the Establishment of a General International Organization – the Dumbarton Oaks Proposals – published on 9 October 1944.22 These Proposals presaged a major change for the Court. They anticipated the possible establishment of a new Court under the name of the International Court of Justice in functional continuity with the Permanent Court and a change in its constitutional position in the new organization. In the Charter of the United Nations Article 7, paragraph 1, establishes the Court as one of the principal organs of the United Nations on a footing of formal equality with the other principal organs of the Organization. This replaces the Protocol of Signature of the Statute of the Permanent Court. By Article 92, the Court is to be the principal judicial organ of the United Nations. That provision of the Charter is followed by Article 93, according to which all members of the United Nations are ipso facto parties to the Statute. Unlike the League of Nations, participation in the Statute of the International Court is inherent in membership in the international organization. On the other hand, the Statute left the conditions for access to the Court as they were under the previous system. In consequence, for the Court to have jurisdiction ratione personae to determine a particular case both parties must be members of the United Nations on the critical date or otherwise both parties – as States to which in Court is open – must have given their consent to the exercise of jurisdiction for the purposes of the particular case. The Statute of the Permanent Court was rst examined in detail in the Committee of Jurists which met at Washington in April 1945. The International Court has pointed out in another context that this examination of the Statute took place early in 1945, at a stage in the planning of the future international organization when it had not yet been settled whether the Permanent Court

22

United Nations Conference on International Organizations, Documents (UNCIO), vol. 3, p. 10. The use of lower case letters for the international court of justice in those Proposals was deliberate, and was designed not to prejudice the question of whether to continue the Permanent Court or to create a new court. The solution ultimately adopted was to create a new court on the basis of a Statute, itself an integral part of the Charter of the Organization, that was based on the Statute of the Permanent Court, and to maintain functional continuity with the Permanent Court. See Law and Practice4, vol. i p. 65.

§ 3.3. The Establishment of the International Court of Justice (1945)

35

was to be maintained or replaced by a new court.23 However, it is clear that the provisions of the Statute relating to the interpretation and the revision of a judgment apply to the work of an international court as a court, and are not directly affected by that court’s constituent instrument or its place in the organized international community. In the Washington Committee Cuba advanced a minor amendment to Article 60 to the effect that the decision on interpretation should be in the form of an order, but this was not taken up.24 No amendments were proposed to Article 61 of the Statute, and there was no discussion on either provision in that Committee. The Drafting Committee, however, made a slight change in Article 61, replacing the last word of the English version of that provision, sentence, by judgment. In their current form, the relevant provisions of the Statute of the International Court of Justice are as follows: Article 60 The judgment is nal 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.

L’arrêt est dénitif et sans recours. En cas de contestation sur le sens et la portée de l’arrêt, il appartient à la Cour de l’interpréter, à la demande de toute partie.

Article 61 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. 2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground.

23 24

1. La révision de l’arrêt ne peut être eventuellement demandée à la Cour qu’en raison de la découverte d’un fait de nature à exercer une inuence décisive et qui, avant le prononcé de l’arrét, était inconnu de la Cour et de la partie qui demande la révision, sans qu’il y ait, de sa part, faute à l’ignorer. 2. La procédure de révision s’ouvre par un arrêt de la Cour constatant expressément l’existence du fait nouveau, lui reconnaissant les caractères qui donnent ouverture à la révision, et declarant de ce chef la demande recevable.

Legality of Use of Force (Serbia and Montenegro v Belgium), ICJ Rep. 2004, 279, 323 (para. 113) and the corresponding paragraph in the other judgments of that date. UNCIO vol. 3, 522.

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3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision. 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.

3. La Cour peut subordonner l’ouverture de la procédure en révision à l’exécution préalable de l’arrêt. 4. La demande en revision devra être formée au plus tard dans le délai de six mois après la découverte du fait nouveau. 5. Aucune demande de révision ne pourra être formée après l’expiration d’un délai de dix ans à dater de l’arrêt.

In connection with both those provisions, the Court has emphasized that according to generally accepted practice, legal remedies against a judgment are equally open to either party.25 The Court has explained that the second sentence of Article 60 gives the Court jurisdiction to entertain requests for interpretation of any judgment rendered by the Court. ‘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.’26 The statement in Article 60 that the judgment is nal and without appeal (denitif et sans recours) is taken almost verbatim from Article 54 of the Hague Convention of 1899 and Article 81 of the Convention of 1907. As the report of the Third Commission of the 1899 Conference puts it, the article ‘insists upon the decisive and unappealable character of the arbitral award’.27 The present Court has given the following interpretation of Article 61 of the Statute:

25

26

27

Judgments of the Administrative Tribunal of the ILO upon Complaints made against the UNESCO, advisory opinion, ICJ Rep. 1956 77, 85. For the limitation of Article 60 to the Interpretation of judgments and not of other decisions of the Court, see the Application of the Genocide Convention (Merits) case ICJ Rep. 2007, 26 February, para 105. Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, ICJ Rep. 1999–I 31, 35 (para. 10). This is equally applicable to requests for revision. It should be noted here that the French original sans recours has frequently been rendered in English as ‘without appeal’. In some recent texts, for example in Annex VII of the Convention on the Law of the Sea of 1982, the French appears as sans appel. The expression ‘without appeal’ originated in art. 24 of Appendix A of the Russian proposals concerning the arbitral tribunal annexed to the Report of the Third Commission at the 1899 Conference. Reproduced in Sh. Rosenne (ed.), The Hague Peace Conferences of 1899 and 1907 and International Arbitration: Reports and Documents at p. 106 (Asser Press, The Hague, 2001). See Ch. 2 text at footnote 10 above. In 1907 it was rendered as sans appel.

§ 3.3. The Establishment of the International Court of Justice (1945)

37

under the terms of Article 61, paragraph 1, of the Statute, an application for revision of a judgment may be made only when it is “based upon the discovery” of some fact which, “when the judgment was given”, was unknown. These are the characteristics which the “new” fact referred to in paragraph 2 of that Article must possess. Thus both paragraphs refer to a fact existing at the time when the judgment was given and discovered subsequently. A fact which occurs several years after a judgment has been given is not a “new” fact within the meaning of Article 61; this remains the case irrespective of the legal consequences that such a fact may have.28

Consequently, in Article 61 the word ‘new’ is to be understood as meaning ‘new’ only in the sense that the ‘fact’ had been in existence at the time of the deliberation and judgment in the original case but had not been included in the case le and accordingly was not before the Court when it was considering its decision. It does not mean ‘new’ in the sense that it had come into existence since the judgment was pronounced. In paragraphs 2 and 4, therefore, the word new means that the ‘fact’ in question (including a document), not having been included in the case le at the time when the judgment was given, was ‘discovered’ and came to light later, always on condition that there had been no negligence on the part of the State making the request for revision. It is to be distinguished from the expression ‘new facts’ in Article 75, paragraph 3, of the Rules of Court dealing with provisional measures of protection. The principle of rebus sic stantibus does not as such apply to nal decisions of the International Court. Since its establishment, the International Court of Justice has heard several requests relevant to this study. On the interpretation of a previous judgment, these include the following cases: • Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v Peru);29 • 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) (Nigeria v Cameroon).30 The Court has received two requests for the revision of an earlier judgment: • Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia) (Yugoslavia v Bosnia-Herzegovina);31

28 29 30 31

Application for Revision of the Judgment of 11 July 1996 in the Application of the Gernocide Convention case, ICJ Rep. 2003 7, 30 (para. 67). ICJ Rep. 1950 395. ICJ Rep. 1999 31. ICJ Rep. 2003 7.

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• Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras, Nicaragua intervening) (El Salvador v Honduras) [case referred to a Chamber].32 In addition there has been one case involving all three processes of interpretation, revision, and correction of a previous judgment, • 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 Jamahariya).33 As in the case of the Permanent Court, the present Court has had instances of prolonged litigation around a single issue. This has included the cases relating to South West Africa and Namibia,34 and the situation of the State today named Serbia after the dissolution of the Socialist Federal Republic of Yugoslavia.35 The stream of litigation has led to later cases requiring application, and hence interpretation, of earlier judgments, advisory opinions and other decisions. 3.4. The United Nations Convention on the Law of the Sea (1982) The next major development took place within the framework of the consolidation of the law of the sea in the Third UN Conference on the Law of the Sea. This Conference was in session from December 1973 and culminated in the United Nations Convention on the Law of the Sea of 10 December 1982.36 It was convened to deal with the law of the sea in its totality, and the

32 33 34

35

36

ICJ Rep. 2003 392. ICJ Rep. 1985 192. International Status of South-West Africa advisory opinion, ICJ Rep. 1950, 128; Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa advisory opinion, ICJ Rep. 1955, 67; Admissibility of Hearings of Petitioners by the Committee on South West Africa advisory opinion, ICJ Rep. 1956, 23; South West Africa, (Ethiopia v South Africa, Liberia v South Africa), ICJ Rep. 1962, 319 and 1966, 6; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) advisory opinion, ICJ Rep. 1971, 16. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia), ICJ Rep. 1993, 3, 325, 1996 II, 595, 1997, 243, 2001, 572, 2003, 7, 2007, 26 February; (Croatia v Yugoslavia), 279–1207; Legality of Use of Force cases, 1999, 124 to 916 (ten cases), 2004, 15 December (eight cases). 1833 UNTS 3 together with the Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, adopted

§ 3.4. The United Nations Convention on the Law of the Sea (1982)

39

topic of the pacic settlement of disputes arising out of that Convention was a by-product of its principal pre-occupation. This was sufcient to remove any element of abstraction from its consideration of the settlement of those disputes. The agreed detailed list of topics which the Conference was to consider included the compulsory settlement of disputes. In dealing with this, the Conference encountered two major problems. One was the complexity of the law of the sea, which required differential treatment for various parts of the Convention. The second was the principle of the freedom of choice of methods for the pacic settlement of disputes embodied in Article 33 of the Charter.37 Part XV (Articles 279–299) together with Annexes V (Conciliation), VI (Statute of the International Tribunal for the Law of the Sea), VII (Arbitration), and VIII (Special Arbitration) of the Convention embody the principal results of the complicated negotiation on the settlement of disputes.38 Part XV and the related Annexes do not exhaust the Convention’s provisions on the settlement of disputes. Additional rules are found in Part XI, section 5 (Articles 186–191), on the settlement of disputes relating to activities in the international seabed area, and Part XIII, section 6 (Articles 264–265), on the settlement of disputes relating to marine scientic research.39 For the compulsory procedures entailing binding decisions of disputes between States Parties (as dened in Article 1, paragraph 2, of the Convention) relating to the interpretation or the application of the Convention, the parties to the Convention are given a choice. They may choose between two standing courts and tribunals – the International Court of Justice and the International Tribunal for the Law of the Sea (ITLOS)40 – and one of

37

38

39

40

by the General Assembly in resolution 48/263, 28 July 1994. UNTS registration No. 31364. For a consolidated edition of these two instruments, see International Seabed Authority, Compendium of Basic Documents p. 1 (ISA, Jamaica, 2001). That Article gives the following list of appropriate means for the pacic settlement of disputes: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their [the parties’] own choice. On this part of the Convention, see in general University of Virginia, Center for Oceans Law and Policy, United Nations Convention on the Law of the Sea: A Commentary, vol. v (M.H. Nordquist, Sh. Rosenne and L. Sohn, eds.), passim (hereafter Virginia Commentary) (Martinus Nijhoff, The Hague, 1989); N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press, Cambridge, 2005). On the settlement of disputes in Part XI, see the Virginia Commentary, vol. vi 595 (S.N. Nandan, M.W. Lodge and Sh. Rosenne eds., Martinus Nijhoff, The Hague, 2002). On Part XIII, see vol. iv 643 (M.H. Nordquist, Sh. Rosenne and A. Yankov, eds., Martinus Nijhoff, Dordrecht, 1991). On ITLOS, see G. Eiriksson, The International Tribunal for the Law of the Sea (Martinus Nijhoff, The Hague, 2000); Chandrasekhara Rao P., and Rahmatullah

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two forms of arbitration, namely regular arbitration under Annex VII41 and what is termed special arbitration under Annex VIII, that is by technically inclined arbitrators as opposed to jurists. In principle such a dispute should be brought before whichever one of these means has been chosen by the respondent. However, if the respondent has not made any such choice, or if the two parties have chosen different means, the residual compulsory method is arbitration under Annex VII. Annex VI, the Statute of ITLOS, is to a large extent based on the Statute of the International Court of Justice, and Annex VII draws inspiration from the Model Rules on Arbitral Procedure drawn up by the International Law Commission.42 For disputes under Part XI (Articles 133–191 and Annexes III and IV), arrangements are also made for binding commercial arbitration in certain types of dispute in which one party is a commercial interest.43 Article 296 of the Convention postulates the fundamental rule applicable to all the methods for the settlement of disputes (subject to the constituent instrument in the case of a standing tribunal).

41

42

43

Khan (eds.), The International Tribunal for the Law of the Sea: Law and Practice (Kluwer Law International, The Hague, 2001); Chandrasekhara Rao, P. and Gautier, Ph. (eds.), The Rules of the International Tribunal for the Law of the Sea: A Commentary (2006). On the order of the different methods set out in Art. 287 see the Virginia Commentary, vol. v at 44 (para. 287.6). Since the Convention entered into force ve Annex VII arbitrations have taken place. In three cases, proceedings for provisional measures in ITLOS have come after the originating unilateral request for arbitration in the following cases: the Southern Bluen Tuna case (Australia and New Zealand v Japan), ITLOS Reports, 1999, 274 (Joinder), 280 (Provisional Measures), 119 ILR 508 (2000) (arbitration); the Mox Plant case (Ireland v United Kingdom), ITLOS Reports, 2001, 95 (Provisional Measures), Arbitral Tribunal, Order No. 3, 126 ILR 310 (2003) suspending the proceedings; and see, in the European Court of Justice, Case C-459/03 Commission v. Ireland [2006] ECR I-4635; Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), ITLOS Reports, 2003, 10 (Provisional Measures), Award on agreed terms and termination of proceedings, 1 September 2005, on PCA website; Trinidad and Tobago v Barbados, award of 13 April 2006 on PCA website; Guyana v Suriname (pending), on PCA website. See on this Sh. Rosenne, ‘Arbitrations under Annex VII of the Convention on the Law of the Sea’ to be published in The Interplay between Negotiation and Litigation in International Dispute Settlement, in honour of T. Mensah (Martinus Nijhoff, Leiden, 2007). For Annex VI, see Virginia Commentary, vol. v, p. 336 (para. A.VI.10). For Annex VII, ibid. p. 421 (para. A.VII.1). For the ILC’s Model Rules, see ch. 2, § 2.3. For special arbitrations under Annex VIII, Art. 5 of that Annex provides that Annex VII, Arts. 4 to 13, apply mutatis mutandis to the special arbitration proceedings. Art. 187. On this, see Virginia Commentary, vol. vi (note 39 abvove) p. 621.

§ 3.4. The United Nations Convention on the Law of the Sea (1982)

41

Finality and binding force of decisions/Caractère dénitif et force obligatoire des décisions Article 296 1. Any decision rendered by a court or tribunal having jurisdiction under this section shall be nal and complied with by all the parties to such dispute. 2 Any such decision shall have no binding force except between the parties and in respect of that particular dispute.

1. Les décisions rendues par une cour ou tribunal ayant compétence en vertu du présente section sont dénitives, et toutes les parties au différend doivent s’y conformer. 2. Ces décisions n’ont force obligatoire que pour les parties et dans le cas d’espèce consideré.

This applies in equal measure to disputes between States governed by Part XV of the Convention and to the commercial arbitrations undertaken in virtue of Part XI. In the case of ITLOS, Annex VI, Article 33, amplies Article 296 of the Convention: Finality and binding force of decisions/Caractère dénitif et force obligatoire des décisions Article 33 1. The decision of the Tribunal is nal and shall be complied with by all the parties to the dispute. 2. The decision shall have no binding force except between the parties in respect of that particular dispute. 3. In the event of dispute as to the meaning or scope of the decision, the Tribunal shall construe it upon the request of any party.

1. La décision du Tribunal est dénitive et toutes les parties au différend doivent s’y conformer. 2. La décision du Tribunal n’est obligatoire que pour les parties et dans le cas qui a été décidé. 3. En cas de contestation sur le sens et la portée de la décision, il appartient au Tribunal de l’interpréter, à la demande de toute partie.

There are some signicant differences between that provision and Articles 59 and 60 of the Statute of the International Court of Justice. Article 33 corresponds in part to Article 60 of that Statute and in part to Article 94, paragraph 1, of the Charter, in this respect repeating Article 296 of the Convention. Paragraph 2 is taken from Article 59 of the Statute of the International Court with a minor drafting change in the English version not reected in the French

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text.44 It differs from Article 59 in another respect. It does not include the phrase that the judgment is nal and without appeal. For arbitrations under Annex VII, Article 11 on the nality (caractère dénitif ) of the award in an arbitration and Article 12 on the interpretation or implementation of an award provide: Article 11 Finality of award/Caractère dénitif de la sentence The award shall be nal and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.

La sentence est dénitive et sans appel, à moins que les parties au différend ne soient convenues à l’avance d’une procédure d’appel. Toutes les parties au différend doivent s’y conformer.

Article 12 Intepretation or implementation of the award/Interprétation ou exécution de la sentence 1. Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party to the arbitral tribunal which made the award. For this purpose, any vacancy in the tribunal shall be lled in the manner provided for in the original appointment of the members of the tribunal. 2. Any such controversy may be submtted to another court or tribunal under article 287 by agreement of all the parties to the dispute.

44

1. Toute contestation pouvant surgir entre les parties au différend en ce qui concerne l’interprétation ou la manière d’exécuter la sentence peut être soumise par l’une ou l’autre des parties à la décision du tribunal arbitral qui a prononcé la sentence. A cet effet, il est pourvu aux siêges devenus vacants selon la méthode prévue pour la nomination initiale des membres du tribunal. 2. Si toutes les parties au différend en conviennent, toute contestation de ce genre peut être soumise à une autre cour ou à un autre tribunal, conformément à l’article 287.

Art. 60 of the ICJ Statute uses the expression ‘except between the parties and in respect of that particular case’. The omission of and in the English text was proposed by the Conference Drafting Committee, and no explanation appears on the record. The French text, however, remains unchanged in this respect. See Virginia Commentary, vol. v, at p. 397.

§ 3.5. The Principle of Res Judicata

43

In Article 11 unappellancy in a limited form is introduced notwithstanding that it does not appear in the Convention or in Annex VI. In arbitration cases the parties may agree in advance to an appellate procedure, and in that case the appellate jurisdiction follows automatically from that agreement. This does not prevent the parties from agreeing ad hoc to an appellate procedure after the award has been rendered. While the normal English expression’without appeal’ is used, the French has been changed to sans appel, as in Article 81 of the Hague Convention No. 1 of 1907. No explanation has been vouchsafed for this.45 The last sentence of Article 12, paragraph 1, is a further adaptation of article 26, paragraph 2, of the Model Rules on Arbitral Procedure of the International Law Commission making provision for the situation in which the arbitration proceedings are not dependent on the conclusion of a special agreement.46 Annex VII contains detailed arrangements designed to prevent the deliberate frustration of the obligation to proceed to arbitration. This is achieved through the provision for a residual appointing authority should any of the parties fail to appoint its arbitrators in accordance with the requirements of the Annex. For Annex VII arbitrations, the President of ITLOS is the residual appointing authority. For Annex VIII arbitrations, the Secretary-General of the United Nations has this function. At this point it should be noted that the Convention has introduced two new procedures in international litigation. One is Article 292, on the prompt release of vessels and crews. The second is what are denominated ‘preliminary proceedings’ under Article 294. Both of these are examined in Chapter 7 § 7.4 below. In both cases the Rules of the Tribunal (Rule 96, paragraph 8 on preliminary proceedings and Rule 113, paragraph 1) require the Tribunal’s decision to be in the form of a judgment. 3.5. The Principle of Res Judicata Articles 59, 60, and 61 set out the contours of the concept of res judicata for the International Court of Justice. Similarly, Article 295 of the Law of the Sea Convention and together with Annex VI, article 33 and Annex VII, articles 11 and 12 for compulsory arbitrations set out the contours of that concept for

45

46

A possible explanation is that while the Hague Conventions at the begtinning of the century were negotiated in French and were authenticated only in French, most of the Law of the Sea Convention (including Annex VII) was negotiated in English, and the text was authenticated in the usual six languages of the United Nations. On the rendering of sans recours by without appeal, see Ch. 4 fn. 51 below. See ch. 2 § 2.3 at note 29 above. Those Model Rules are reproduced in Appendix III to Chapter 4 below.

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ITLOS and for arbitration proceedings under Annexes VII and VIII. The nature and extent of that concept as applied to a decision on a matter of jurisdiction is examined in the judgment on the merits of the Application of the Genocide Convention case between Bosnia & Herzegovina and Serbia.47 That judgment contains what is probably the fullest and most complex analysis of the principle of res judicata leading to its practical application in relation to a series of issues that arose in this phase of the case. Here the Court had to examine a question of its jurisdiction based on the status of the applicant State as a party to the Statute at the time of the institution of these proceedings. The Court had taken decisions on matters of jurisdiction in this case (to take the language of Article 36 (6) of the Statute) four times before the merits stage of the proceedings. That was in its two orders of 1993 on provisional measures, its judgment of 1996 on preliminary objections, and its judgment of 2003 in a decision on the admissibility of a request for revision of the 1996 judgment.48 In addition similar issues had arisen twice in another set of cases.49 The question that it faced in the merits stage of the Genocide Convention case was what precisely it had decided in all these previous cases. This raised issues of the scope of the res judicata. The Court rst examined the relevance of its past decisions (paragraphs 105 to 113). No question of res judicata arose in connection with the 1993 orders on the requests for the indication of provisional measures (paragraph 105). With regard to the revision proceedings, which it analysed closely, the Court found that for the purposes of the merits case the 2003 judgment, while binding between the parties, and nal and without appeal, did not contain any nding on the question whether or not the Federal Republic of Yugoslavia (as the respondent State was known at the time) had actually been a member of the United Nations in 1993 (an issue that arose as a matter of jurisdiction in the merits phase of the current case). ‘The question of the status of the FRY in 1993 formed no part of the issues upon which the Court pronounced judgment when dismissing that Application’ (paragraph 113). This led the Court into a discussion of the principle of res judicata and its application to the 1996 judgment on the preliminary objections. The Court

47

48

49

Judgment of 26 February 2007. For the ‘three traditional elements for identication, persona, petitum, causa petendi’ in an instance of res judicata, see the dissenting opinion of Judge Anzilotti in the Chorzów Factory (Interpretation) case, PCIJ Ser. A 13 (1927) at 23. For these cases see ICJ Rep. 1993 3 and 325, 1996 595 and 2003 7. There was also a counter-claim admitted as such but later withdrawn. ICJ Rep. 1997 243, 2001 572. This did not directly implicate the res judicata principle. Legality of Use of Force cases, provisional measures ICJ Rep. 1999 124 to 916 (ten cases) and preliminary objections, 2004 279 to 1307 (eight cases). Here citations are made to the case against Belgium.

§ 3.5. The Principle of Res Judicata

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rst explained the character of that principle as it appears from the terms of the Statute of the Court and the Charter of the United Nations: The fundamental character of that principle appears from the terms of the Statute and the Charter of the United Nations. The underlying character and purposes of the principle are reected in the judicial practice of the Court. That principle signies that the decisions of the Court are not only binding on the parties, but are nal, in the sense that they cannot be reopened by the parties as regards issues that have been determined, save by procedures of an exceptional nature, specially laid down for that purpose. Article 59 of the Statute, notwithstanding its negative wording, has as its core the positive statement that the parties are bound by the decision of the Court in respect of the particular case. Article 60 of the Statute provides that the judgment is nal and without appeal; Article 61 places close limits of time and substance on the ability of the parties to seek revision of the judgment. . . . Two purposes, one general, the other specic, underlie the principle of res judicata, internationally as nationally. First, the stability of legal relations requires that litigation come to an end. The Court’s function, according to Article 38 of its Statute, is to “decide”, that is, to bring to an end, “such disputes as are submitted to it”. Secondly, it is to the interest of each party that an issue which has already been adjudicated in favour of that party be not argued again. Article 60 of the Statute articulates this nality of judgments. Depriving a litigant of the benet of a judgment it has already obtained must in general be seen as a breach of the principles governing the legal settlement of disputes [paragraphs 115, 116].

The Court dismissed any argument based on the idea that distinction may be drawn between the application of the principle to judgments on the merits of a case and judgments determining the Court’s jurisdiction. It pointed out the Article 36, paragraph 6 of the Statute does not distinguish between judgments on jurisdiction and admissibility, and judgments on the merits. Citing here its 1999 judgment on interpretation in the Cameroon v Nigeria case,50 it went on to point out that the 2003 judgment in the Revision case ‘undoubtedly recognized that an application could be made for revision of a judgment on preliminary objections; this could in turn only derive from a recognition that such a judgment is “nal and without appeal” (paragraph 117). The Court concluded this part of this judgment with the following categorical statement: This does not however mean that, should a party to a case believe that elements have come to light subsequent to the decision of the Court which tend to show that the Court’s conclusions may have been based on incorrect or insufcient facts, the decision must remain nal, even if it is in apparent contradiction to reality. The Statute provides for

50

Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, ICJ Rep. 1999 31 39 (para. 16).

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only one procedure in such an event: the procedure under Article 61, which offers the possibility for the revision of judgments, subject to the restrictions stated in that Article. In the interests of the stability of legal relations, those restrictions must be rigorously applied. . . . Subject only to this possibility of revision, the applicable principle is res judicata pro veritate habetur, that is to say that the ndings of a judgment are, for the purposes of the case and between the parties, to be taken as correct, and may not be reopened on the basis of claims that doubt has been thrown on them by subsequent events [paragraph 120].

The Court then turned to the application of this holding to the case at hand. Starting with the statement that the operative part of a judgment of the Court possesses the force of res judicata and recalling that the operative part of the 1996 judgment stated that the Court found that it had jurisdiction. it went on: ‘That jurisdiction is established with all the weight of the Court’s judicial authority. . . . [I]f any question arises as to the scope of the res judicata attaching to a judgment, it must be determined in each case having regard to the context in which the judgment was given (paragraph 123). The Court continued: For this purpose, in respect of a particular judgment it may be necessary to distinguish between, rst, the issues which have been decided with the force of res judicata, or which are necessarily entailed in the decision of those issues; secondly, any peripheral or subsidiary matters, or obiter dicta; and nally matters which have not been ruled upon at all. Thus an application for interpretation of a judgment under Article 60 of the Statute may well require the Court to settle “[a] difference of opinion [between the parties] as to whether a particular point has or has not been decided with binding force” [a reference to Chorzów Factory (Interpretation) case]. If a matter has not in fact been determined, expressly or by necessary implication, then no force of res judicata attaches to it; and a general nding may have to be read in context in order to ascertain whether a particular matter is or is not contained in it [paragraph 126].

And: That principle [res judicata] signies that once the Court has made a determination whether on a matter of the merits of a dispute brought before it, or on a question of its own jurisdiction, that determination is denitive both for the parties to the case, in respect of the case (Article 59 of the Statute) and for the Court itself in the context of that case. . . . [O]nce a nding in favour of jurisdiction has been pronounced with the force of res judicata, it is not open to question or re-examination, except by way of revision under Article 61 of the Statute. . . . [paragraph 138].51

51

Applying this to different issues that arose in the merits phase of the case, the Court found that it had to decide the meaning and legal scope of several provisions of the Genocide Convention (para. 152) and that it still had to rule on the question of the territorial extent of obligations under the Convention: “It is not res judicata” (para. 154).

§ 3.5. The Principle of Res Judicata

47

It is, of course, a fact that a dispute as to the scope of the operative clause of a judgment can be treated as a dispute as to the meaning or scope of that judgment as contemplated in Article 60 of the Statute. Where there is a dispute as to the scope of a judgment on the merits of a dispute, that would certainly be the appropriate procedure and that is presumably what the Court had in mind in the passages from the Application of the Genocide Convention case quoted above. In the case of a judgment on preliminary objections, dismissing the objections and holding that the Court had jurisdiction to entertain the case, the context is different. On the one hand such a judgment is interlocutory in relation to the merits. On the other, the holding that the Court has jurisdiction to entertain the case is not an absolute pronouncement but relative, being circumscribed by the preliminary objections actually dismissed. Given the parallelism between the Statute and the Rules of the International Court of Justice and those of the ITLOS, as well as the general tendency of compulsory inter-State arbitrations to seek guidance where necessary from the practice of the International Court, one may assume that these pronouncements in the Genocide Convention will be taken into the general law of international litigation between States. This is, of course, subject to any particular provision in the basic text governing an individual exercise of jurisdiction. All proceedings for the interpretation or the revision of any judgment of the International Court of Justice or of the ITLOS implicate the principle of res judicata.

CHAPTER FOUR

THE RULES

I. The Permanent Court of International Justice 4.1. Rules of Court Article 30 of the Statute of the Permanent Court of International Justice required the Court to ‘frame rules for regulating its procedure. In particular it shall lay down rules for summary procedure’. That is the statutory authority for the Court’s Rules of Procedure. A State that is a party to the Statute or otherwise bound by its terms accepts all the Rules of Court as they are in force at any particular time. They are part of the basic texts governing the operation of the Court and part of the title of jurisdiction in a contentious case. In October 2001 the present Court commenced issuing Practice Directions and where relevant these also have to be included with the basic instruments governing the functioning of the Court and in pleading before it. The Permanent Court rst adopted Rules of Court in its preliminary session on 24 March 1922, thus making itself open for business.1 These Rules are a pioneering endeavour, being the rst attempt to draw up rules of procedure for the rst standing international court with potentially universal jurisdiction.2 They quite clearly drew their inspiration from two disparate

1

2

The records of the proceedings in this preliminary session are published in Permanent Court of International Justice, Acts and Documents concerning the Organization of the Court, No. 2, Preparation of the Rules of Court, PCIJ, Ser. D No. 2 (1922) (hereafter D2). The Permanent Court had been preceded by the Central American Court of Justice established by the Convention of 20 December 1907. Art. XXIV provided that the decisions ‘cannot be altered on any account, but, at the request of the parties, the Tribunal may declare the interpretation which must be given to its judgments’. Art. 22 of the Tribunal’s Rules of Procedure of 2 December 1911 provided that the Tribunal’s jurisdiction terminates with the formal notication of the nal decision ‘sin perjuicio de la facultad de interpretar el fallo pronunciado, conforme al artículo XXIV de la Convención’. K. Oellers-Frahm and A. Zimmermann (eds.), Dispute Settlement in Public International Law: Texts and Materials, 2nd edn., vol. I, 207 (Springer, Berlin, 2001).

50

Chapter Four. The Rules

elements – such practice as had been generated by international inter-State arbitrations, especially after the entry into force of the Hague Conventions of 1899 and 1907 together with, where appropriate, experience of some of the higher national courts. They are to some extent hesitant and display a degree of deference to the sensitivities of the national sovereign States that the Court was primarily designed to serve. The Rules are also not complete. They do not cover every eventuality foreseen in the Statute of the Court, including in particular for present purposes procedural requirements for the implementation of the provisions of the Statute relating to the Court’s power to construe and to revise its judgments. They represent in procedural terms the Permanent Court’s initial understanding of the purport of the different provisions of the Statute which are frequently framed in general language requiring the Court’s directives for their application. The Court adopted those Rules before it had acquired any judicial experience whatsoever. In 1925 it made a small addition to them, dealing with the precedence of the President, not a matter of any normative or procedural signicance.3 In 1926 the Court adopted some further revisions, reecting the rst four years of judicial experience (both contentious and advisory).4 In 19315 it revised the Rules again, after the League Assembly had requested the Court to examine various suggestions made by a Committee of Jurists which convened in 1929 as well as the issues raised by the possible accession of the United States of America to the Protocol of Signature of the Statute of the Court.6 In 1931 the League Assembly adopted the Protocol concerning the Revision of the Statute of the Permanent Court of International Justice signed at Geneva on 14 September 1930.7 There was an unexpected delay in the entry into force of this Protocol, which did not occur until 1 February 1936.

3 4

5

6

7

PCIJ Ser. E No. 1, pp. 13, 127. The records of the proceedings leading to this revision are published in Permanent Court of International Justice, Acts and Documents concerning the Organization of the Court, Revision of the Rules of Court, PCIJ, Ser. D Addendum to No. 2 (1926), hereafter D2 Add. And see Å. Hammarskjöld (Registrar of the Permanent Court), “Le règlement revisé de la Cour permanente de Justice internationale”, reproduced in his Juridiction internationale 125 (A.W. Sijthoff, Leiden, 1938). The records of the proceedings leading to this revision are published in Permanent Court of International Justice, Acts and Documents concerning the Organization of the Court, Preparation of the Rules of Court, PCIJ, Ser. D Second Addendum to No. 2 hereafter D2 Add. 2. (1931). These amendments were also adopted with a view to the possible accession of the United States to the Protocol of Signature of the Statute of the Permanent Court. League of Nations, Committee of Jurists on the Statute of the Permanent Court of International Justice, Reports adopted by the Committee at its session held at Geneva from March 11th to 19th, 1929, LoN doc. C.166.M.66.1929.V. 165 LNTS 353.

§ 4.2. The Rules of 1922

51

However, the existence of those amendments and the further accumulation of judicial experience prompted the Court to continue its work on the Rules. In the course of that the Court put in hand a comprehensive review of the whole of its organization and procedure. The Court rst examined the topic of the revision of the Rules in 1934, when pressure of judicial business required it to postpone further action. It resumed consideration of the matter in 1935 when it adopted the new Rules in rst reading. After the resolution of the League Assembly of September 1935 that the amendments to the Statute would enter into force on 1 February 1936, the Court continued with its second reading aiming to complete the new Rules in time for the entry into force of the revised Statute. The Court adopted these Rules on 11 March 1936.8 They were designed to supplement the former Rules by incorporating rules evolved from the Court’s practice since 1926; to arrange the provisions of the Rules in a more logical order, and to bring them into consonance with the letter and spirit of the revised Statute and resolutions of the League Assembly.9 4.2. The Rules of 1922 Following the rst general election of the members of the Court in the League of Nations Assembly of 1921, the Permanent Court convened in its preliminary session on 30 January 1922. Its principal objective at that session was to organize itself and adopt rules of procedure as required by Article 30 of the Statute, so that it would be in a position to function as intended by the Covenant of the League of Nations and the Court’s Statute. Its draft agenda, prepared by the Secretary-General of the League of Nations, included as item 18: ‘Rules of Court – (a) for ordinary proceedings: rules needed to elaborate the procedure outlined in the Court Statute . . .’.10 In that connection the League Secretariat also submitted draft rules of court.11 Two more drafts were placed before the judges, one by Judge Loder (who in the meantime had been elected the rst President of the Court12) and the second

8

9 10 11 12

The records of the proceedings leading to this revision are published in Permanent Court, Acts and Documents concerning the Organization of the Court, Third Addendum to No. 2, Elaboration of the Rules of Court of March 11th, 1936, PCIJ, Ser. D No. 2 Addendum 3 (1936), hereafter D2 Add. 3; Elaboration of the Rules of Court of March 11th, 1936 (Extracts from the Minutes of 1924, 1935, 1936, arranged according to the articles of the Rules), Acts and Documents concerning the Organization of the Court, Fourth Addendum to No. 2, PCIJ Ser. D No. 2 Add. 4 (Geneva, 1943). From the Introduction to D2 Add. 3. D2 p. 238. D2 p. 253. Ibid. 249.

52

Chapter Four. The Rules

by Judge Altamira.13 At its fourth meeting the Court appointed a Committee for the purpose of drawing up a questionnaire embodying the main points to be settled in the Rules of Court. The Committee consisted of Judges Lord Finlay, Altamira, Anzilotti, Huber and Weiss, together with the Registrar (Å. Hammarskjöld). The President was not a member of that Committee but was available for consultation if necessary.14 There are no published records of the Committee’s deliberations, but it seems that the Committee took the Secretariat’s draft as its point of departure. Its President submitted the draft articles of the Rules of Court to the Court with the minimum of explanations. Discussion in the Court was usually short and led the Committee to re-examine its proposal and prepare a revised text. In all the Court gave three readings to the proposed rules, which were nally adopted in English and in French at the Court’s fortieth meeting.15 In the course of this process, one member of the Court, Judge Nyholm, submitted what is designated as Revised rules of court of the Permanent Court of International Justice (M. Nyholm’s draft).16 This contained two proposals of interest to this study. Article 94, on the interpretation of a judgment, addressed a topic that was mentioned in the Statute but had not been taken up in the Secretariat’s draft rules, presumably on the ground that Article 60 of the Statute could be applied as is. Nyholm’s article 94 contained two paragraphs. The rst was a reproduction of Article 60 of the Statute. The second paragraph went on to provide that the Court may ‘under the same conditions make any formal correction necessary in a judgment’. Article 95 was short: ‘An application for revision of a judgment under the terms of article 61 of the Statute shall be addressed to the President.’ Two main issues arose out of Article 61 of the Statute on the revision of a judgment and required further detailed provision in the rules. The rst was how a party to the impeached judgment was to bring such a case before the Court. The second was how to deal with the possibility that the Court would require previous compliance with the terms of the impeached judgment before admitting the proceedings in revision. The Secretariat’s draft rst provided that the only way in which a State could bring proceedings in revision before the Court would be by the ling of a unilateral application. From this it went on to provide that if the Court made the admissibility depend on prior compliance with the impeached judgment, the Registrar was to communicate the condition ‘immediately’ to the applicant for revision. It continued: ‘Proceedings in revision shall be stayed pending receipt by the Registrar of the Court

13 14 15 16

Ibid. Ibid. Ibid. Ibid.

274. 19. For the Questionnaires see ibid. at pp. 289 and 295. at 232. at 353.

53

§ 4.2. The Rules of 1922

of proof concerning previous compliance with the original judgment, and until such proof shall have been approved by the Court.’17 Judge Altamira’s draft approached the matter differently. It proposed that after the Court had decided that a new fact had been discovered the case was to be re-argued and the party opposing the application for revision could bring forward rebutting evidence. When the arguments were concluded the Court was to sit in private to consider its decision.18 The implication of the Secretariat’s approach and of that of Judge Loder was that the proceedings in revision would be a new case, in that way preserving the nality of the original res judicata so long as the revision proceedings were outstanding.19 The implication of Judge Altamira’s proposal was that the case decided by the impeached judgment would be reopened, with possible prejudice to the nality of the res judicata. Judge Nyholm seems to have tried to get round that issue. In the nal form of the Rules of Court, Chapter II – Procedure, Section B, – Procedure before the Court and before the special Chambers, viii – Revision, read as follows [at that time the paragraphs were not numbered, the numbering here has been inserted for convenience]: Article 66 [1] Application for revision shall be made in the same form as the application mentioned in article 40 of the Statute. [2] It shall contain: 1) the reference to the judgment impeached; 2) the fact on which the application is based; 3) the list of documents in support; these documents shall be attached. [3] It shall be the duty of the Registrar to give immediate notice of an application for revision to the other parties concerned. The latter may submit observations within a time limit to be xed by the Court, or by the President should the Court not be sitting. [4] If the judgment impeached was pronounced by the full Court, the application for revision shall also be dealt with by the full Court. If the judgment impeached was pronounced by one of the Chambers mentioned in Articles 26, 27 or 29 of the Statute, the application for revision shall be dealt with by the same Chamber. The provisions of Article 13 of the Statute shall apply in all cases. [5] If the Court, under the third paragraph of Article 61 of the Statute, makes a special order rendering the admission of an application conditional upon previous compliance with the terms of the judgment impeached, this condition shall be immediately communicated

17 18 19

Ibid. at 267. Ibid. at 280. It has been consistent practice since the Permanent Court to inscribe interpretation cases as new cases in the General List. This practice is also followed for revision cases.

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Chapter Four. The Rules

to the applicant by the Registrar, and proceedings in revision shall be stayed pending receipt by the Registrar of proof of previous compliance with the original judgment and until such proof shall have been accepted by the Court.

With reference to the fourth paragraph of that Rule, in the Permanent Court the Chambers to which it refers were all standing chambers – a position that was altered in 1945 for the present International Court of Justice. Article 13 dealt with the term of ofce of the elected members of the Court. The third paragraph of Article 13 addressed the matter of the termination by efuxion of time of the term of ofce of an elected member of the Court. It provided that the members of the Court shall continue to discharge their duties until their places have been lled, and ‘Though replaced, they shall nish any cases which they may have begun’. Two of the standing chambers to which Article 66 refers consisted of members of the Court appointed to the chamber for a period of three years, while the third, the Chamber for Summary Procedure was formed annually. The effect of this paragraph of Article 66 was that a request for the revision of a judgment would be determined by that organ of the Court – the full Court or a standing chamber as the case might be – that had rendered the impeached judgment.20 The problem of the composition of the bench to determine cases of interpretation or revision is discussed separately in Chapter 7 § 7.3 below. The Rules also contained a provision on errors, inserted on the initiative of the Committee, as follows: Article 75 The Court, or the President if the Court is not sitting, shall be entitled to correct an error in any order, judgment or opinion, arising from a slip or accidental omission.

When that proposal came before the Court, according to the record ‘it was understood that before correcting clerical errors, the Court or the President should ascertain that the parties give their consent’. At the same time, a proposal to omit the words ‘arising from a slip or accidental omission’ was rejected by the narrow vote of seven to ve.21 4.3. The Rules of 1926 After the Permanent Court had been in operation for three years, during which it faced problems for which there was no provision in the Rules of Court,

20 21

For a discussion of the meaning of the reference to Art. 13 of the Statute in this Rule, during the preparation of the Rules of 1936, see § 4.5 note 30 below. D2 221.

§ 4.3. The Rules of 1926

55

including a request for interpretation of a judgment rendered by the Chamber for Summary Procedure, it decided in June 1925 to undertake during the following year a general revision of the 1922 Rules. Different proposals for revision of the Rules by members of the Court did not deal with any of the items related to the present study. However, at the President’s request the Registrar prepared a substantial report on the modications of the Rules that experience of their application had shown to be desirable.22 In connection with Article 66 of the 1922 Rules, the Registrar proposed the introduction of a detailed regime for dealing with requests for the interpretation of a judgment. Those proposals closely followed the pattern of the provisions governing requests for the revision of a judgment in the original Article 66 (for which no change was proposed). The Registrar also suggested an assimilation of the two procedures. A completely new idea was that objections to the Court’s jurisdiction to revise or to construe a judgment, or other similar preliminary objections, should be dealt with in accordance with the suggestions contained in proposed new article 38 for preliminary objections. This was followed by a provision that the construction of the earlier judgment should be given in the form of a judgment. The only explanation furnished by the Registrar with that proposal was to the effect that practice had shown that some such rules on interpretation were necessary.23 The Court discussed the new article 66 at the twenty-sixth meeting of the 1926 session on 24 July 1926.24 Opening the discussion President Loder pointed out that a rule on interpretation had by then become necessary. He explained that in the Chamber for Summary Procedure the absence of rules regarding proceedings in interpretation had given rise to a somewhat extensive correspondence between members of the Chamber as to the manner in which requests for interpretation were to be dealt with.25 The Registrar brought two issues arising from the proposed amendment to the Court’s attention. The rst was the question whether the Court26 was competent to give an interpretation at the request of one party only, even when the principal suit had been brought on the basis of a special agreement. The draft assumed that this was

22 23

24 25 26

D2 Add. at p. 303. Ibid. 313. The only case on interpretation that had come before the Court at that time was the Interpretation of the Treaty of Neuilly, Article 179, Annex, Paragraph 4 (Interpretation) case, brought before the Chamber for Summary Procedure. PCIJ Ser. A, Nos. 3 and 4 (1924, 1925). However, in that case the Chamber declared that the Greek request for an authoritative interpretation of the earlier judgment could not be granted. For a discussion of this case, see Ch. 5 § 5.1 below. D2 Add. at 174. Ibid. This correspondence does not seem to have been published. The record here uses the word ‘Chamber’ but in the context it is believed that if the Registrar did use that word, he was referring to the only case on interpretation that had come before the Court at that time, the Interpretation of the Treaty of Neuilly case.

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Chapter Four. The Rules

possible. The second concerned the fact that provisions for what were there called ‘special proceedings’ were limited to a case where the request for an interpretation was submitted by unilateral application and did not cover a case in which such request was submitted by agreement. ‘The explanation naturally was that such proceedings would only be necessary if the admissibility of the request for interpretation were open to discussion; if the Parties were agreed in asking for an interpretation, the Court could at once proceed to give it’. While the debate on these two points can be seen as inconclusive, the solution, after several votes, would appear to be that while all members of the Court were agreed that the Court had ‘compulsory jurisdiction’ over requests for the interpretation of a judgment, there was no agreement on the basis for that conclusion. In consequence, as the Registrar explained, the third paragraph of the section on interpretation was intended to enable the Court to decide in each particular case, if confronted with a possible objection, whether it had jurisdiction or not. Hammarskjöld thought that this solution would avert the necessity for deciding once and for all in regard to the question whether the Court’s jurisdiction under Article 60 of the Statute was compulsory or not. This question was reserved for decision in each particular case. There is nothing in the record to contradict that interpretation, given before the vote when the relevant part of that paragraph was adopted by ten votes to one (Judge Nyholm). At the thirty-rst meeting, during the second reading, Judge Anzilotti pointed out that the text on interpretation made no mention of the composition of the Court when dealing with such requests. He proposed an adjustment to paragraph 3, to make it applicable both to proceedings in interpretation and to proceedings in revision. There was no further discussion of these questions in the second reading, when the text was approved.27 In its nal form Article 66 of those Rules – a composite provision – reads: 1. Repetition unchanged of Article 66 of the Rules of 1922. 2. A request to the Court to construe a judgment which it has given may be made either by the notication of a special agreement between all the parties or by an application by one or more of the parties. The agreement or application shall contain: (a) a specication of the judgment the interpretation of which is requested; (b) an indication of the precise point or points in dispute. If the request for interpretation is made by means of an application, it shall be the duty of the Registrar to give immediate notice of such application to the other parties, and the latter may submit observations within a time limit to be xed by the Court or by the President, as the case may be.

27

Ibid. 216.

§ 4.5. The Rules of 1936

57

The Court may, whether the request be made by agreement or by application, invite the parties to furnish further written or oral explanations. 3. If the judgment impeached or to be construed was pronounced by the full Court, the application for revision or the request for interpretation shall also be dealt with by the full Court. If the judgment was pronounced by one of the Chambers mentioned in Articles 26, 27 or 29 of the Statute, the application for revision or the request for interpretation shall be dealt with by the same Chamber. The provisions of Article 13 of the Statute shall apply in all cases. 4. Objections to the Court’s jurisdiction to revise or to construe a judgment, or other similar preliminary objections, shall be dealt with according to the procedure laid down in Article 38 of the present Rules [a new provision dealing with preliminary objections]. 5. The Court’s decision on requests for revision or interpretation shall be given in the form of a judgment.

Article 75 on the correction of errors was retained unchanged. 4.4. The Rules of 1931 The modication of the Rules adopted in 1931 was concerned with the organizational matter of the replacement by the ‘judicial year’ of the initial organization of sessions of the Court and the attendance of the judges. The League Assembly had requested this on the basis of the report of the 1929 Committee of Jurists.28 Nothing of substance relating to the interpretation or the revision of a judgment was discussed. 4.5. The Rules of 1936 As the Court nished its 1931 amendments to the Rules, it decided that it should undertake a general revision of the Rules at a later date. In preparation for that in May 1931 it set up four committees, between which for study and report it divided the provisions of the Rules then in force together with the as yet uncodied decisions constituting its practice. The Rapporteurs of these committees constituted the Committee of Co-ordination, with the task of combining the work of the other four committees. Article 66 of the Rules was assigned to the Third Committee and Article 75 to the Second Committee. These Committees submitted their reports by early in 1934. In addition, in 1932 the Court invited the Registrar to complete for the years 1926–1933 the work which he had submitted to the Court in 1926, with emphasis on the Court’s practice. The Registrar could also indicate possible solutions to different questions that arose.29

28 29

Note 4 above. D2 Add. 3 at p. 803. For the Registrar’s 1926 Report, see note 19 above.

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Chapter Four. The Rules

The Third Committee’s report, dealing with revision and interpretation, commences by describing the history of Article 66 of the Rules and concentrated on the last sentence of paragraph 3. This section of the report (only available in French) reads as follows: Une modication pourrait être envisagée. En effet, la suppression de la dernière phrase du paragraphe 3, portant: « Dans tous les cas l’article 13 du Statut est applicable » devrait être envisagée. Une demande en revision peut être introduite presque dix ans après l’arrêt, et une demande en interprétation peut toujours être introduite. Cette contestation semble sufre pour illustrer les difcultés pratiques auxquelles peut se heurter l’application de cette disposition. Mais, à part cela, la dernière phrase de l’article 13 du Statut, qui est apparemment visée dans l’article 66 du Règlement, dit qu’après leur remplacement les membres de la Cour continuent de connaître des affaires dont ils sont déjà saisis. Eh bien, au moment où une demande en interprétation ou en revision est introduite, la Cour ne se trouve pas déjà saisie de ces affaires-là, et il y a lieu de se demander si la Cour est même compétente pour élargir dans son Règlement les exceptions à la troisième phrase de l’article 13 du Statut, portant que les membres de la Cour restent en fonction jusqu’à leur remplacement.30

The Registrar submitted his report in June 1933.31 He commenced by recalling that there was no practice on the revision of a judgment. However, in connection with Article 66 he drew attention to the pending discussion in organs of the League of Nations on the possibility of introducing into the Rules provisions dealing with the question of ‘appeals’. He thought that this might give rise to problems akin to those arising out of the provisions under which appeals can be made to the Court. For the moment, it seemed possible to consider two points as established. Firstly, from the point of view of procedure the Court had already dealt with appeals in the same way as with ordinary applications. Secondly, it had been admitted in the course of the discussions at the League of Nations that the Court ‘will always give decisions de novo’. Referring to the ‘precedent created in the only case in which this Article has been applied’,32 the Registrar went on: the request to the Court to construe a judgment constitutes at the same time the rst document of the written procedure in the proceedings for interpretation; it follows directly from the wording of paragraph 2 that the same applies to special agreements in which the Court may be asked to construe a judgment. In other words, as proceedings for interpretation partake of the nature of summary procedure,

30 31 32

Ser. D 2 Add. 3 at p. 780. Ibid. 803. The section on Art. 66 of the Rules of 1922/1931 commences at p. 832. This is a reference to the Chorzów Factory (Interpretation) case, Ser. A 13 (1927).

§ 4.5. The Rules of 1936

59

if the request is introduced by application the ‘request’ and the ‘observations’ referred to in Article 66, paragraph 2 correspond to the ‘Cases’ and Counter-Cases’ [today, Memorials and Counter-memorials] referred to in Article 69 [dealing with the Chamber for Summary Procedure]; if the case is introduced by special agreement, that agreement corresponds to the ‘Cases’ which have to be led simultaneously by the parties, while the ‘further explanations’ correspond to the Counter-Cases.

The Registrar’s report then turned to objections. It follows that a preliminary objection designed to stay proceedings in interpretation should be led within the time-limit for the submission of the ‘observations’; on the request for interpretation it is, moreover, thus that the Article has been interpreted in practice. Article 66, like Article 38, makes no provision in regard to preliminary objections led in a suit introduced by special agreement.33

The Registrar explained that in practice the written proceedings on the request for interpretation may, if the Court so desired, be followed by oral proceedings. What occurs is that the ‘further explanations’ referred to in Article 66 are submitted orally, corresponding to the optional oral proceedings in the procedure before the Chamber for Summary Procedure of Article 69. He suggested that the provision would be clearer if the terminology of Articles 66 and 69 were made uniform. Regarding the composition of the Court in the proceedings in interpretation: To judge from the Court’s practice, the last phrase of paragraph 3 does not mean that in principle the Court is constrained, when construing a judgment, to sit with the same judges as when it rendered the judgment in question: the phrase has been held to apply only to judges who have ceased to belong to the Court. The reason would seem to be that proceedings for interpretation are not considered as a sequel to the main proceedings, but as independent proceedings of an urgent nature. (It is observed that, although this doctrine may be reconciled with the wording of Art. 13 of the Statute, it is not in harmony with the spirit of that Article; in any case, if it is argued that, in principle, the composition of the Court need not be the same on the two occasions, it is not clear why it should be necessary to call upon judges who no longer belong to the Court, for in this way one arrives at the extraordinary result that if a

33

For preliminary objections in a case introduced by notication of a special agreement, see the Borchgrave case, PCIJ A/B 72 (1937). It should be kept in mind that in the 1930s when the Court discussed this question there was no formal explanation of what was meant by the expression ‘preliminary objection’. The Court explained the term for the rst time in the new Art. 67 (1) of the Rules of 1972 (Art. 79 of the Rules of 1978) as an objection to the jurisdiction of the Court or the admissibility of the application or any other objection ‘the decision on which is requested before any further proceedings on the merits’.

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judgment has been rendered with the participation of two judges, of whom one has gone on leave while the other has resigned, it becomes necessary to recall the judge who has resigned but not the judge who is on leave. In these circumstances, it is submitted that it might be better to delete the reference to Art. 13 of the Statute.) For the purpose of the proceedings for interpretation, the presence of national judges is required; those national judges need not, however, according to the Court’s practice, necessarily be the same as those who took part in the preparation of the judgment to be construed. The Court has held [see Chapter 5 § 5.2 below] that the present wording of the Article does not compel it to reply by ‘yes’ or by ‘no’ to the formulæ suggested by the parties as representing the proper interpretation of the award.

The Co-ordination Committee decided to adopt the text as submitted by the Third Committee with minor drafting changes.34 It also suggested dividing the text into three separate articles, one dealing with the interpretation of a judgment, one with revision, and the third with procedural matters which could be the same for each type of proceedings. The Court adopted this approach on rst reading in 1935.35 The record of this discussion is unfortunately excessively succinct. It reports that there was an exchange of views on the terminology of Article 61 of the Statute which uses both expressions ‘fact’ and ‘new fact’, and as to the meaning of the latter term (an objectively new fact or a newly discovered fact). The discussion indicates that the Court adopted the second meaning. This led to the nal wording of what became in Article 78, paragraph 1, ‘the particulars necessary to show that the conditions laid down in Article 61 of the Statute are fullled’. With regard to what became Article 78, paragraph 3, of the 1936 text, the Court simply approved the text as adopted by the Co-ordination Committee. That Committee had also proposed to include a provision that the procedure laid down in Article 38 of the Rules (regarding preliminary objections) should apply ‘in the event of an objection to the Court’s jurisdiction or an objection on any other ground, in connection with the revision or interpretation of a judgment’. Judge Anzilotti thought that this went too far, while the Registrar observed that the reference to Article 38 ‘involved certain practical difculties as Article 38 of the Rules was designed to apply to the normal procedure’. The Court then adopted the draft proposed by the Co-ordination Committee on the understanding that the Drafting Committee would consider the points raised by Judge Anzilotti and the Registrar. For reasons which are not explained in the records, the Drafting Committee later decided to drop that provision.36 The consequence would appear to be that objections to the

34 35 36

Ibid. 857 at p. 878. Ibid. 329. Ibid. 677. For the Drafting Committee’s text, see p. 929.

§ 4.6. Corrections: Article 75 of 1931

61

admissibility of an application for the interpretation or for the revision of a judgment are not ‘preliminary objections’ as that term is now understood in relation to normal contentious proceedings. Rather they are what Article 79, paragraph 4, of the 1936 Rules called ‘further written or oral explanations’ on the basis of which the Court would reach its preliminary and independent decision limited to the admissibility of the application. In their nal form, Articles 78 to 81 of the Rules of 1936 correspond to Article 66 of the Rules of 1931. Together they form Heading II (Contentious Procedure), Section 4 (Requests for the revision or interpretation of a judgment), of those Rules. 4.6. Corrections: Article 75 of 1931 In 1932, study of Article 75 of the Rules of 1931 was a matter for the Second Committee which recommended dropping that provision from the Rules.37 The Committee pointed out that the Rule had never been applied and it was not clear how it would be possible to put it in practice. The Committee explained that the original text of a judgment or an advisory opinion did not remain in the hands of the Court. Duplicate originals were ofcially transmitted to the parties or to the League of Nations. The Committee thought that the Rule had been framed on the basis that there was one original text which remained in the hands of the Court, and that this could be produced and corrected as and when required. The Court’s practice was different. In the case of judgments the text is issued in triplicate at least, one for each of the parties, and ‘from the moment when it is read in open court the judgment has created rights and duties for them’. The Committee also recalled that when the Court originally adopted this provision in 1922, it had acted on the assumption that the corrections would be made with the consent of the parties. That was not stated in the text, but if that was the intention the Rule did not seem to be very important. The governments concerned might equally agree to regard the error as a mere slip whether it was actually corrected or not in the original text. The fact that in twelve years no application of this Rule had been made conrmed the impression that it could be suppressed without inconvenience. The Co-ordination Committee supported that recommendation.38 The Registrar reported that Article 75 had never been applied in practice. It had ‘no doubt’ happened that the Registrar had drawn attention to errors occurring in the printed text of judgments, etc., but that had not so far given rise to

37 38

Ibid. 773. Ibid. 881.

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the application of the procedure of Article 75.39 After a brief discussion the Court agreed to this deletion in 1934.40 II. The International Court of Justice 4.7. The Rules of 1946/1972 Following the Statute of the Permanent Court, Article 30 of the Statute of the present International Court of Justice likewise requires the Court to ‘frame rules for carrying out its functions. In particular it shall lay down rules of procedure’. The International Court of Justice has not followed the practice of the Permanent Court and has not published the records of its deliberations on its Rules. This notwithstanding, in the Barcelona Traction (New Application) (Preliminary Objections) case it referred to the ‘drafting records’ of some of the Rules of Court then in force, without any indication of what records it had in mind.41 Some indication of what the Court intended in the revisions can be obtained from the few authoritative remarks made by members of the Court when any particular amendment was adopted, and appropriate references to those statements will be included hereafter. The International Court of Justice rst adopted Rules of Court on 6 May 1946. They were based on the latest text of the Rules of the Permanent Court, those of 11 March 1936, with a number of changes. Some of the changes were formal, adapting the Rules to the Charter of the United Nations and the new status of the Court as a principal organ and the principal judicial organ of the United Nations. Others were more substantial.42 These Rules remained unchanged until 10 May 1972 when the Court adopted some partial amendments of immediate interest.43 Articles 78 to 81 were renumbered as articles 83 to 86, otherwise unchanged. They read as follows:

39 40 41

42 43

Ibid. 839. Ibid. 457. ICJ Rep. 1964, 6 at p. 19. The provisions then under discussion were originally contained in the Rules of 1936 and were maintained unchanged in the 1946 Rules of the present Court. On these Rules see M.O. Hudson, “The Twenty-fth Year of the World Court”, 41 AJIL 1 (1947). See E. Jiménez de Aréchaga, “Amendments to the Rules of Procedure of the International Court of Justice”, 67 AJIL 1 (1973); G. Guyomar, Commentaire du Règlement de le Cour Internationale de Justice: Interprétation et Pratique (Pedone, Paris, 1973): Sh. Rosenne, “The 1972 Revision of the Rules of the International Court of Justice”, 8 Israel Law Review 197 (1973).

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§ 4.7. The Rules of 1946/1972

Article 78/83 1. A request [La demande] for the revision of a judgment shall be made by an application [requête]. The application shall state the judgment of which the revision is desired, and shall contain the particulars necessary to show that the conditions laid down in Article 61 of the Statute are fullled, and a list of the documents in support; those documents shall be attached to the application. 2. The request for revision shall be communicated by the Registrar to the other parties. The latter may submit observations within a time-limit to be xed by the Court, or by the President is the Court is not sitting. 3. If the Court admits the application for a revision [demande en revision], it will determine the written procedure required for examining the merits of the application [la demande]. 4. If the Court makes the admission of the application [requête] conditional upon previous compliance with the judgment to be revised, this condition shall be communicated forthwith to the applicant by the Registrar and proceedings in revision shall be stayed pending proof of compliance with the judgment.

Article 79/84 1. A request [La demande] to the Court to interpret a judgment which it has given may be made either by the notication of a special agreement between the parties or by an application [requête] by one or more parties. 2. The special agreement or application shall state the judgment of which an interpretation is requested and shall specify the precise point or points in dispute. 3. If the request for interpretation [la demande d’interprétation] is made by means of an application, the Registrar shall communicate the application to the other parties, and the latter may submit observations within a time-limit to be xed by the Court, or by the President if the Court is not sitting. 4. Whether the request be made by special agreement or by application, the Court may invite the parties to furnish further written or oral explanations.

Article 80/85 If the judgment to be revised or to be interpreted was given by the Court, the request for its revision shall be dealt with by the Court. If the judgment was given by one of the Chambers mentioned in Articles 26 or 29 of the Statute, the request for its revision shall be dealt with by the same Chamber.44

44

The provisions of the Statute relating to Chambers were completely revised in 1945. By Art. 26 (1) the Court may from time to time form one or more chambers for dealing with particular categories of cases. By para. 2, the Court may at any time form a chamber for dealing with a particular case. The number of judges to constitute

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Article 81/86 The decision of the Court on requests for revision or interpretation shall be given in the form of a judgment.

4.8. The Rules of 1978 Those Rules, as amended in 1972, remained in force until 14 April 1978, when the Court adopted a completely new set of Rules which entered into force on 1 July 1978.45 In 2001, the Court started adopting Practice Directions. So far none of those adopted refer directly to proceedings in revision or interpretation, although those that apply to pleadings generally are relevant for pleadings in these two procedures. In 2005, the Court adopted a new procedure for the promulgation of amendments to the Rules of Court. Under that new procedure, whenever the Court adopts an amendment to an article of the Rules the text will be posted on the Court’s website [www. icj-cij.org] with an indication of the date of its entry into force and a note of any temporal reservation relating to its applicability. There has been no amendment regarding proceedings in revision or in interpretation up to the time of writing. Under the 1978 Rules of Court as currently in force, Part III [Proceedings in contentious cases], Section F [Judgments, Interpretation and Revision], subsection 2 [Requests for the Interpretation or Revision of a Judgment], Articles 98 to 100, deals with the interpretation and the revision of a judgment. Their text is as follows:

45

such a chamber shall be determined by the Court with the approval of the parties. Chambers formed under para. 1 are standing chambers, while those formed under para. 2 are ad hoc chambers which cease to exist on delivery of the nal decision in the case for which they were formed. Art. 29 of the Statute retains the provisions of the previous Statute regarding the annual formation of a Chamber of Summary Procedure, also a standing chamber with a new composition each year. See M. Lachs, “Revised Procedure of the International Court of Justice”, Essays on the Development of the International Legal Order in Memory of Haro F. Panhuys 21 (Sijthoff & Noordhof, Alphen aan den Rijn, 1980); G. Guyomar, Commentaire du Règlement de la Cour Internationale de Justice adopté le 14 avril 1978, Interprétation et Pratique (Pedone, Paris, 1983); Sh. Rosenne, Procedure in the International Court; A Commentary on the 1978 Rules of the International Court of Justice (Martinus Nijhoff, The Hague, 1983).

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§ 4.8. The Rules of 1978

Article 98 1. In the event of dispute as to the meaning or scope of a judgment any party may make a request for its interpretation, whether the original proceedings were begun by an application or by the notication of a special agreement. 2. A request for the interpretation of a judgment may be made either by an application or by notication of a special agreement to that effect between the parties; the precise point or points in dispute as to the meaning or scope of the judgment shall be indicated. 3. If the request for interpretation is made by an application, the requesting party’s contentions shall be set out therein, and the other party shall be entitled to le written observations thereon within a time-limit xed by the Court, or by the President if the Court is not sitting. 4. Whether the request is made by an application or by notication of a special agreement, the Court may, if necessary, afford the parties the opportunity of furnishing further written or oral explanations.

1. En cas de contestation sur le sens ou la portée d’un arrêt, toute partie peut présenter une demande en interprétation que l’instance initiale ait été introduite par une requête ou par notication d’un compromis. 2. Une demande en interprétation d’un arrêt peut être introduite soit par une requête, soit par notification d’un compromis conclu à cet effet entre les parties; elle indique avec précision le point ou les points contestés quant au sens ou à la portée de l’arrêt. 3. Si la demande en interprétation est introduite par une requête, les thèses de la partie qui la présente y sont énoncées et la partie adverse a le droit de présenter des observations écrites dans un délai xé par la Cour, ou si elle ne siège pas, par le président. 4. Que la demande en interprétation ait été introduite par une requête ou par la notication d’un compromis, la Cour peut, s’il y a lieu, donner aux parties la possibilité de lui fournir par écrit ou oralement un supplément d’information.

Article 99 1. A request for the revision of a judgment shall be made by an application containing the particulars necessary to show that the conditions specied in Article 61 of the Statute are fullled. Any documents in support of the application shall be annexed to it. 2. The other party shall be entitled to le written observations on the admissibility of the application within a time-limit xed by the Court, or by the President if the Court is not sitting. These observations shall be communicated to the party making the application.

1. Une demande en revision d’un arrêt est introduite par une requête contenant les indications nécessaires pour établir que les conditions prévues à l’article 61 du Statut sont remplies. Les documents à l’appui sont annexés à la requête. 2. La partie adverse a le droit de présenter des observations écrites sur la recevabilité de la requête dans un délai xé par la Cour ou, si elle ne siège pas, par le président. Ces observations sont communiquées à la partie dont émane la requête.

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3. The Court, before giving its judgment on the admissibility of the application may afford the parties a further opportunity of presenting their views thereon. 4. If the Court nds that the application is admissible it shall x time-limits for such further proceedings on the merits of the application as, after ascertaining the views of the parties, it considers necessary. 5. If the Court decides to make the admission of the proceedings in revision conditional on previous compliance with the judgment, it shall make an order accordingly.

3. Avant de rendre son arrêt sur la recevabilité de la requête, la Cour peut donner à nouveau aux parties la possibilité de présenter leurs vues à ce sujet. 4. Si la requête est déclarée recevable, la Cour xe, après s’être renseignée auprès des parties, les délais pour toute procédure ultérieure qu’elle estime nécessaire sur le fond de la demande. 5. Si la Cour décide de subordonner l’ouverture de la procédure de revision à une exécution préalable de l’arrêt, elle rend une ordonnance à cet effet.

Article 100 1. If the judgment to be revised or to be interpreted was given by the Court, the request for its revision or interpretation shall be dealt with by the Court. If the judgment was given by a chamber, the request for revision or interpretation shall be dealt with by that chamber. 2. The decision of the Court, or of the chamber, on a request for interpretation or revision of a judgment shall itself be given in the form of a judgment.

1. Si l’arrêt à interpréter ou à reviser a été rendu par la Cour, celle-ci connaît de la demande en interprétation ou en revision. Si l’arrêt a été rendu par une chambre, celle-ci connaît de la demande en interprétation ou en revision. 2. La décision de la Cour ou de la chambre sur la demande en interprétation ou en revision de l’arrêt prend elle-même la forme d’un arrêt.

In the title of this subsection, the order of ‘interpretation’ and ‘revision’ has been reversed in comparison with previous versions of the Rules. This corresponds to the order in which the Statute deals with the two institutions. This section of the Rules is strictly limited in its scope. It is concerned only with the formal procedure for the making of a request for the interpretation of a judgment or for the revision of a judgment, and not with any subsequent procedure if the request is admitted. If the Court admits the request, and to the extent of the admission, the contentious procedure of the Rules will apply to the subsequent proceedings, as is discussed in Chapter 7 below. It will be noted that the Statute imposes no time limit within which a request for the construction of a judgment may be made – a matter that a special agreement sometimes addresses. This contrasts with the double time limit required in the case of a request for the revision of a judgment.46

46

On the question of the relation of such a provision appearing in the special agreement

§ 4.8. The Rules of 1978

67

It also stands in contrast to the practice of the International Bureau of the Permanent Court of Arbitration when it is providing registry services to an on-going arbitration proceeding. In its draft rules of procedure submitted for the approval of the parties it usually includes a period such as sixty days from the notication of an award within which any application for interpretation has to be made, and State practice usually follows this. There is no provision in the Rules for the interpretation or the revision of any other decision the Court in a contentious case. Since no question of disturbing jural relations decided with nality and binding force in a judgment would arise in that type of situation, one could suppose that normal interlocutory proceedings coupled with the Court’s general power under Article 48 of the Statute to make orders for the conduct of a case would be sufcient. In the case of an order indicating provisional measures of protection the binding force of which is now claried following the LaGrand case,47 Article 41 of the Statute, under which those proceedings take place, ascribes no nality to such an order which may be modied should circumstances change.48 This part of the Rules is normally not applicable to advisory opinions. Should a question arise of the interpretation or the revision of an advisory opinion, new advisory proceedings would have to be instituted in the normal way by an organ, which need not be the organ that made the original request, duly qualied to request an advisory opinion. Article 98 corresponds to Article 79 of the 1946 Rules (Article 84 of the 1972 Rules). The purport of paragraph 1, which is new, is not clear. The Statute does not make the process of interpretation dependent in any way on the manner in which the original proceedings were instituted. However, if the original special agreement addressed the possibility of a difference over the interpretation of any judgment to be given in the case, presumably the Court would give effect to such a provision so long as what the party or parties were asking the Court to do was not incompatible with the Statute. In principle, following the separation of the process of interpretation from a special agreement, presumably the Statute will be the dominant instrument in any case of interpretation. In the discussion in the Permanent Court on the preparation of the 1936 Rules of Court, the Registrar appears to have regarded an objection to a request for the interpretation of a judgment as being somewhat akin to a

47 48

and the jurisdiction of the Court to interpret a judgment, see the Tunisia-Libya Continental Shelf (Interpretation) case, Ch. 5 § 5.4 below. ICJ Rep. 2001, 466. Sh. Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea 170 (Oxford University Press, Oxford, 2004).

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preliminary objection. Indeed the initial words in the event of a dispute [contestation] as to the meaning recall the initial words of Article 36, paragraph 6, of the Statue of the Court, in the event of a dispute [contestation] as to whether the Court has jurisdiction. However, the analogy with a preliminary objection should not be pushed too far. A request for interpretation, and like it a request for revision of a judgment, has to be admissible objectively in the sense that it must meet the requirements of the Statute for each of those procedures. There is no option about this. Raising a preliminary objection to the admissibility of a case is an option available to the party making the objection, and can be waived at will. The Court’s practice hitherto has been to treat in a single set of proceedings the issue of the admissibility of a request for interpretation (in the event of a dispute as to the meaning or scope of the judgment) and the merits of the issue giving rise to the question of the proper construction of the judgment. This would not preclude the introduction of a two-stage procedure similar to that found in the procedure for revision of a judgment, should that be appropriate in given circumstances. It is possible that the issues raised in the discussion on the admissibility issue are in the circumstances of the case not exclusive to that question and can best be resolved when the merits of the construction of the impeached judgment are considered, as occurred in the interpretation and revision phase of the Tunisia/Libya Continental Shelf Delimitation case. Article 99, setting out the main lines of the procedure to be followed in cases of revision of a judgment, is in the main a clearer rendering of the fundamental procedural requirements of previous versions of the Rules. At the time the Court adopted this provision there had been no experience at all of the application of Article 61 of the Statute: that was to come later. In its current form Article 99 clearly postulates the two-stage procedure in cases of a request for revision, the rst stage, leading to a judgment, dealing only with the question of whether the request meets the requirements of the Statute, termed the admissibility of the request.49 The admissibility issue is to some extent summary in the sense that only a single round of written pleadings is envisaged in the rst place (paragraphs 1 and 2) while not excluding a second round at the Court’s discretion (paragraph 3). However, this summary

49

In connection with the admissibility of a counter-claim the Court has held that an order admitting a counter-claim ‘as such’ is limited to verication of the bare question of admissibility, i.e. that the counter-claim conforms to the requirements of the Rules governing counter-claims. This leaves intact the party’s right to raise any other question of jurisdiction or admissibility. Oil Platforms case, ICJ Rep. 1998, 190. It is submitted that the same principle applies to any question of the admissibility of a request for interpretation or revision of a judgment.

§ 4.8. The Rules of 1978

69

character of the proceedings does not lead to any prima facie conclusions in the judgment on the admissibility of the request, which, like any other judgment, is nal, and without appeal on the issue that it determines. How this would work in practice is purely speculative. The most that can be said is that if the Court admits the request, the subsequent proceedings would be contentious proceedings in the normal sense of the expression, and the procedure will be that of a case introduced by the ling of an originating application. In this connection, it is recalled that in the revised Rules of 1978 an attempt is made to reduce the number of rounds of written pleadings in a normal contentious case. Under these Rules the rst round (memorial and counter-memorial) is obligatory, leaving the question of a written reply and a rejoinder to the discretion of the Court after ascertaining the parties’ views. This is likely to reduce a possible distinction between the procedure of the Chamber for Summary Procedure and the procedure in the full Court. Article 99 does in as many words emphasize one major difference between proceedings for the revision of a judgment and proceedings for the interpretation of a judgment. According to Article 99, the only way of introducing proceedings in revision is by an application, while according to Article 98 proceedings in interpretation can be introduced either by application or by the notication of a special agreement. In the absence of any published record of the Court’s deliberations on the preparation of the Rules of 1978, the reasons for this distinction are not clear. What is more, the two Rules seem to assume that there is a sharp differentiation between these two methods of instituting proceedings. This does not accord with current practice and with the development of what we like to call the framework agreement as the title of jurisdiction.50 In short, this is an agreement in which the parties recognize that a dispute exists between them and that the Court should be invited to settle it. However, the agreement does not dene the dispute and accepts that either party may seise the Court of a dispute and introduce the proceedings by a unilateral application. There has also been a development in the form of an application, which may now be made even when the Court is without jurisdiction, the addressee of the application being invited to accept the jurisdiction for the particular case.51 The wording of Article 98 is broad

50

51

On the framework agreement, see Law and Practice4 vol. ii at 652; Sh. Rosenne, Essays on International Law and Practice, 155 (Martinus Nijhoff, Leiden, 2007). The Registrar regards framework agreements as special agreements which regulate the seisin of the Court. ICJYB 2002–2003 at 115 footnote 2. Art. 38 (5) of the Rules of Court of 1978. There are two examples of this pending, the Certain Criminal Proceedings in France case, ICJ Rep. 2003, 102, and the Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), ICJ Rep. 2006, 159. In fact this practice, the so-called forum prorogatum jurisdiction,

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enough to cover all types of agreement and application bringing a dispute before the Court. Article 99 limits the compulsory jurisdiction of the Court to requests for revision introduced unilaterally, thus not excluding voluntary acceptance of this jurisdiction by means of a special agreement or a framework agreement asking for the revision of a judgment. 4.9. Reference to the International Court In the 1929 Committee of Jurists on the Statute of the Permanent Court of International Justice, Professor Rundstein submitted a proposal to widen the Court’s competence as a court of appeal.52 He was satised if the Committee would bring this to the attention of the League Council. This proposal was therefore attached to the Committee’s report.53 When the matter came before the League Council later in 1929 it was joined by a proposal from Finland to give the Court an appellate jurisdiction from arbitration tribunals. Nothing came of this, however:54 the proposal was probably ahead of its time. In this context, the impact of Article 34, paragraph 1, of the Statute is fundamental. That provides that only States may be parties in cases before the Court. In instances of recourse from another jurisdiction it may well happen that the parties in the International Court, States, may be different from the parties in the other jurisdiction, which could include individuals.55 In the preparatory work for the 1936 Rules of Court the Third Committee reported that the Peter Pázmány University case56 – the only appeal of this nature so far decided by the Permanent Court – was not sufcient as the basis for a new rule about appeals.57 This was followed by a long report

52

53

54 55 56 57

originated in the decision of the Permanent Court in the Interpretation of Judgment No. 3 case, that since the respondent had not disputed the Court’s jurisdiction the Court had jurisdiction. PCIJ Ser. A No. 4 at p. 6. On the use of the words ‘appeal’ in English to render ‘recours’ in French, as being words of generality covering every kind of reference of a case from a lower court to a higher or other court in internal legal systems, see the 1934 Report of the Committee of Co-ordination of the Permanent Court of International Justice in Appendix I to this Chapter. The referred case is between the same parties over the same set of facts. Note 6 above. And see S. Rundstein, “La Cour permanente de Justice internationale comme instance de recours”, 43 Academy of International Law, Recueil des Cours 1 (1933). For discussion of this proposal see Hudson, Permanent Court 430. Ibid. 221. Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University) case, Ser. A/B 61 (1933). Ser. D 2 Add. 3, at 781. For a preliminary report by Judge van Eysinga see p. 777.

§ 4.9. Reference to the International Court

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from the Co-Ordination Committee which unfortunately has only been published in French and is included as Appendix I to this Chapter.58 In brief, the Committee accepted three principles. The rst was that any application or special agreement bringing a case before the Court should be deemed to institute a new case even if the object of the case was a judgment rendered by another jurisdiction on the same facts. The second was that all questions of the Court’s jurisdiction would be governed by the parties’ agreement, whether a special agreement or a compromissory clause. Following that, the third principle was based on Article 36 of the Statute. There was nothing to prevent States from bringing before the Court cases of appeal, of cassation, or any other recourse from a judgment of any other court or tribunal. The Permanent Court’s examination of this proposal led to Article 67 of the Rules of 1936, repeated as Article 67 of the Rules of 1946 and Article 72 of the Rules of 1972. That read: Appeals to the Court Article 67/72 1. When an appeal is made to the Court against a decision given by some other tribunal, the proceedings before the Court shall be governed by the provisions of the Statute and of the present Rules. 2. If the document instituting the appeal must be led within a certain limit of time, the date of the receipt of this document in the Registry will be taken by the Court as the material date. 3. The document instituting the appeal shall contain a precise statement of the grounds of the objections to the decision complained of, and these constitute the subject of the dispute referred to the Court. 4. An authenticated copy of the decision complained of shall be attached to the document instituting the appeal. 5. It lies upon the parties to produce before the Court any useful and relevant material upon which the decision complained of was rendered.

After the 1936 Rules had been adopted but before they entered into force Hungary seised the Permanent Court of the Pajzs, Csáky, Esterházy case, an appeal from several judgments of the Hungaro-Yugoslav MAT.59 No other case of appeal coming within the terms of this Rule came before either the Permanent Court or the present International Court. Since 1945 the question of developing new procedures in the International Court of Justice for special references has been the subject of considerable

58 59

Ibid. 878. Ser. A/B 68 (1936).

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discussion. It received impetus from the establishment of the different courts of human rights and the Court of Justice of the European Communities. Each of these has opened up new concepts of the operation of international courts and tribunals, of their functions, of access to them, and of their place in the judicial schema. They have done this both on the level of inter-State disputes and as a means of recourse from certain decisions of international organs and of national courts and tribunals on relevant points of law. This led the Court in its major revision of the Rules of 1978 to replace the previous Article on appeals to the Court with the completely new Article 87. This reads: Subsection 5. Special Reference to the Court/Renvoi spécial devant la Cour Article 87 1. When in accordance with a treaty or convention in force a contentious case is brought before the Court concerning a matter which has been the subject of proceedings before some other international body, the provisions of the Statute and of the Rules governing contentious cases shall apply. 2. The application instituting the proceedings shall identify the decision or other act of the international body concerned and a copy thereof shall be annexed; it shall contain a precise statement of the questions raised in regard to that decision or act, which constitute the subject of the dispute referred to the Court.

1. Lorsque, conformément à un traité ou à une convention en vigueur, une affaire contentieuse est portée devant la Cour au sujet d’une question qui a fait l’objet d’une procédure devant un autre organe international, les dispositions du Statut et du présent Règlement en matière contentieuse s’appliquent. 2. La requête introductive d’instance indique la décision ou l’acte de l’organe international intéressé et copie de la décision ou de l’acte y est jointe; la requête formule en termes précis, comme objet du différend devant la Cour, les questions soulevées contre cette décision ou cet acte.

This provision is limited to recourse of any type from a decision or other act of an international body under a treaty in force – presumably here on the date of the institution of the proceedings in the International Court. This formulation therefore excludes from the jurisdiction of the International Court of Justice the type of reference from a national court or tribunal that is addressed in Article 234/177 of the Treaty of Amsterdam/Rome on the European Union. It also precludes what publicists have been suggesting, that in certain circumstances national supreme courts should be enabled to refer questions of international law to the International Court (thought it has to be frankly admitted that it is not easy to imagine many supreme courts availing themselves of any such faculty).

§ 4.9. Reference to the International Court

73

Paragraph 1 embodies what little practice the Court had had in this type of case, in the Appeal relating to the Jurisdiction of the ICAO Council.60 The words ‘in force’ in Article 98 repeat the language of Article 36, paragraph 1, of the Statute laying down the fundamental rule that the Court’s jurisdiction extends to all cases which the parties refer to it and all matters specially provided for in treaties and conventions in force. It differs from the supercially similar expression ‘treaties or conventions in force’ in Article 37 of the Statute, referring to treaties and conventions that were in force on the day of the entry into force of the combined Charter of the United Nations and Statute of the Court (20 October 1945). The difference in meaning is explained by the entirely different context and function of Article 37, with its emphasis on the instrument, in comparison with the other provisions, with their emphasis on the jurisdiction. Paragraph 2 also generalizes the procedure followed in the ICAO Council case. However, it does not have to be read as excluding such recourse by way of a request for an advisory opinion from a duly qualied organ. There is no direct parallel in the International Tribunal for the Law of the Sea. However, Article 292 of the Law of the Sea Convention on the prompt release of vessels may open the way to a slight opening to allowing an individual to initiate judicial proceedings in the name of a State in certain types of case. Under paragraph 2 of that Article, an application for the release of a vessel allegedly detained in violation of the provisions of the Convention may be made ‘only by or on behalf of the ag State of the vessel’. Article 110, paragraphs 2 and 3, of the Rules of the Tribunal set out the detailed procedure for applications to be made on behalf of the ag State and for the authorization to a person to act on behalf of that State. In the Tribunal those cases are formally contentious cases between the two States. In practice, if properly authorized the ship-owners or some other person can act ‘on behalf of’ the ag State.61 This shows a way through which an individual duly authorized by an appropriate State can institute proceedings against another State for limited types of case in a standing international court or tribunal.

60 61

ICJ Rep. 1972 45. This case was instituted by application on 30 November 1971, and was conducted under the Rules of 1946. See J.-P. Cot, “Appearing ‘for’ or ‘on behalf of’ a State: the Role of Private Counsel before International Tribunals” in Liber Amicorum Judge Shigeru Oda 835 (Martinus Nijhoff, Dordrecht, 2002). In the Camouco case, ITLOS accepted jurisdiction and ordered the prompt release of the vessel notwithstanding that an appeal was pending in the local court of France, the detaining State and respondent in ITLOS. ITLOS Reports 2000, 10.

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III. The International Tribunal for the Law of the Sea 4.10. Preparing Rules for ITLOS It is recalled that while the Convention and Annex VI (the Statute of the International Tribunal for the Law of the Sea – ITLOS) contain provisions regarding the nality of decisions ( judgments and awards) rendered by every court or tribunal having jurisdiction under the Convention and the interpretation of the judgments of ITLOS, there is no provision in the Convention regarding the revision of decisions. There is apparently no explanation for this on the record. However, it seems that the effect of this omission is to leave the question of revision to the individual decision of each court or tribunal having jurisdiction under the Convention. In addition, it was always understood in the course of the negotiation of the relevant provisions of the Convention, including Annex VI, that, as the President of the Conference had written as far back as 1976, ‘the general procedures for the functioning of [ITLOS] and its powers are on the lines of the Statute of the International Court of Justice and other international judicial tribunals’.62 Resolution I annexed to the Final Act of the Third United Nations Conference on the Law of the Sea established the Preparatory Commission to make the necessary arrangements to ensure the effective entry into force of the Convention. Its terms of reference included the preparation of a report containing recommendations for submission to the States Parties regarding practical arrangements for the establishment of the International Tribunal for the Law of the Sea. The Commission was open to all States that had signed the Convention or had acceded to it; States that had only signed the Final Act could also participate in its work, but without the right to vote. The Commission was to remain in existence until the conclusion of the rst session of the Meeting of States Parties. In accordance with that, the Preparatory Commission at its rst session in 1983 established Special Commission 4, charged with the preparation of this report.63 The Secretariat prepared a working paper on practical arrangements for the establishment of ITLOS (LOS/PCN/SCN.4/WP.1) and presented it to the rst session of Commission 4. In Section VII on procedural rules the Secretariat suggested that the Special Commission might wish to formulate draft

62 63

Memorandum of the President of the Conference, Third United Nations Conference on the Law of the Sea, Ofcial Records (A/CONF.62/WP.9/Add.1, para. 30) vol. v. For the report of Special Commission 4, see LOS/PCN/152, April 1995 (4 vols.) (PrepCom Report). Vol. I contains the Commission’s report. The remaining volumes consist of a reproduction of its documents. Vol. II contains most of the documents relating to ITLOS.

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rules of procedure ‘which would give the necessary direction and provide the political framework for their consideration and adoption by the Tribunal’.64 The Commission requested the Secretariat to prepare a set of draft rules based on those of the International Court of Justice and the Court of Justice of the European Economic Community (as it was then known). The Preparatory Commission also called on the Secretariat to take into account any interpretations the Courts had given in the application of their Rules as well as to the need to ensure that the procedures should be expeditious, not unduly expensive to the parties and should encourage resort to ITLOS.65 Part III, Section F, Subsection 2, of the Secretariat’s draft (on requests for the interpretation and revision of judgments) contained articles 109 to 111, corresponding to Articles 98 to 100 of the 1978 Rules of the International Court of Justice with necessary adaptations. The Commission decided that it should proceed with a rst reading of the draft in an article by article examination of the Draft Rules and that subject to the discussions and suggestions made, the articles reviewed would be considered as approved ad referendum unless further examination was deferred. In carrying out that examination the Special Commission followed its Chairman’s suggestion that (i) since many of the draft rules closely followed the Rules of the International Court of Justice in cases in which their respective Statutes were parallel, in such cases only changes necessary to align the text in the different languages should be examined; (ii) drafting suggestions which did not touch on substance should be submitted to the chair for consideration in revising the text; and (iii) discussions should be limited to substantive matters which arose because the special provisions of the Covenant were different from those of the International Court of Justice.66 The Commission discussed the draft articles on interpretation and revision in 1985.67 In view of the fact that neither the Convention nor the ITLOS Statute makes provision for a revision of the Tribunal’s decisions, attention initially focused on the possibility of including provisions on revision in the Rules. The Secretary of the Commission explained that the drafting history of the provisions regarding judgments or decisions of the Tribunal did not show any examination of the question as to whether the Tribunal should be enabled to review its decisions either on the basis of new information or on any other grounds. He drew attention to the memorandum of the Conference

64 65 66 67

PrepCom Report vol. ii (LOS/PN/SCN.4/WP.1) at 17. Draft Rules of the Tribunal, PrepCom Report ibid. (LOS/PCN/SCN.4/WP/2, 27 July 1984) 20. PrepCom Report vol. iii (LOS/PCN/SCN.4/L.2) at 17. The discussion is summarized in the Chairman’s summary. PrepCom Report vol. iii (LOS//PCN/SCN.4/L.4) 55, 61.

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President cited at note 62 above and concluded that the omission from the Statute of any provision regarding revision of its decisions did not imply ipso facto that the possibility of revision could not be contemplated. While some delegations expressed doubts about this, many others pointed out that no provision of the Statute prohibited the possibility of revision of decisions. Delegations stressed that provisions on revision were necessary in order to avoid a miscarriage of justice, and that any court had an inherent power to revise its own decisions if new facts of a decisive nature came to light which, at the time when the decision was given were unknown both to the court and to the party claiming revision so long as it was not due to that party’s negligence. ‘Provisions on the revision of decisions (those delegations explained) were found in every legal system, both domestic and international.’ As a result of this discussion there was general agreement that while provisions on the revision of decisions should be included in the draft rules, the Commission’s report was to draw attention to the absence from the ITLOS Statute of any provision concerning the revision of decisions or judgments and that the Preparatory Commission felt the necessity to include some provisions on revision in the Tribunal’s Rules. It would be for the Meeting of States Parties to consider this recommendation. In the light of the discussions within the Preparatory Commission on this problem and the position taken by the Meeting of States Parties, the Tribunal could then make the necessary decision acting under Article 16 of its Statute. There was also a suggestion to shorten the six-month and ten-year periods within which the request for revision may be made, but this attracted no support.68 Regarding draft article 111 (Rules of the Tribunal, Article 128) and the effect of a request for revision on the implementation of the original judgment, various suggestions were made and the Secretariat was requested to prepare a redraft, which it did. Introducing that redraft, the Secretary explained that it was only nal decisions that could be reviewed.69 Various other drafting suggestions were made and the article was found satisfactory. Perhaps the most important discussion in this phase related to draft article 112 (Article 129 in the current Rules of the Tribunal). The Chairman’s Summary on this reads:

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PrepCom Report vol. iii (LOS/PCN/SCN.4/1985/CRP/14) 385. It is not clear from the report what is meant by ‘nal decisions’ in this context. Later case law in the International Court of Justice suggests that the expression refers to any judgment which is ‘nal’ for the phase of the case in which it is rendered. See Ch. 2 § 2.3 note 25 above.

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77

This article provides that where the original submission has been heard either by a Tribunal or a Chamber the request for interpretation or revision must be heard by the same Tribunal or Chamber. The language of the draft followed closely the rules of the ICJ (article 99). However, the Secretary explained that the ad hoc chambers of the Tribunal were constituted by the parties unlike the case of the ICJ. He also explained that in view of the fact that a comparatively long space of time may elapse between the rendering of the decision and the application for interpretation or revision and that therefore the same judges may no longer be available, it would be appropriate to make paragraph 1 more exible. The Secretary suggested that it should provide that if the decision was given by a chamber, the request for its revision or interpretation should be dealt with by that same chamber or by a chamber constituted in a manner similar to the original chamber. This approach was found acceptable, with however some reservations over the use of the term ‘decisions’.

Following this discussion, the Secretariat prepared a new draft. The provisions on interpretation and revision appeared in articles 113 to 116.70 This gave rise to a further long discussion, which the Chairman duly summarized.71 On the question of terminology, the Commission’s Secretary pointed out that consistent with the trend of the discussion during the rst reading, the term ‘decision’ had been replaced by ‘judgment’ to the extent that the context permitted. Recognizing that the ICJ’s practice should also be taken into account, the revised articles 114 and 115 were a combination of former articles 110 and 111. The Secretary also stated, in reply to a question, that in accordance with Article 13, paragraph 5, of the ITLOS Statute, this section of the Rules also applied to requests for the interpretation or revision of judgments of the Sea-Bed Disputes Chamber. During the discussion of draft article 113, the suggestion was made to x a time limit beyond which a request for interpretation of a judgment should no longer be admissible. There was a risk that the possibility of making such a request could be abused to delay the enforcement of a judgment. Other delegations felt that such a time limit could be superuous or even harmful. This suggestion was not adopted. As in the case of Article 98 of the 1978 Rules of the ICJ, draft article 113 of the Secretariat’s revised text (ITLOS Rules, Article 126) ended with the phrase ‘whether the original proceedings were begun by an application or by the notication of a special agreement’. One delegation questioned the need for this. The Secretary explained that if the practice of other international courts was taken into account, then an application for interpretation or revision may not be entertained where the case had been submitted by notication of a special agreement. The request for interpretation or revision would in such

70 71

PrepCom Report vol. ii (LOS/PCN/SCN.4/WP.2/Rev.1 (Part II)) 118. PrepCom Report vol. iii (LOS/PCN/SCN.4/L.9/Add.1, paras. 41 to 50) 126.

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a case have to be by special agreement, the argument being that in such an event the request for interpretation or revision should be made in the same manner as the original submission of the dispute. Regarding draft article 114 (ITLOS Rules, Article 128), one delegation thought that the ten-year period was too long, especially when applied to judgments of the Sea-Bed Disputes Chamber. Such a long time limit might give rise to legal insecurity. Another delegation thought that the six-month time limit would be adequate also for the purposes of paragraph 4 and that paragraph 3 would become superuous. The prevailing view on this was that paragraphs 3 and 4 dealt with different situations requiring different time limits, and favoured keeping the time limits as xed in the draft, corresponding to the relevant provisions of Article 61 of the Statute of the ICJ. One delegation suggested that the time limit for the discovery of the new fact should be determined according to objective criteria in order to make sure that the requesting party could not manipulate this time limit in its interest. Several delegations wanted paragraph 1 to be more specic as regards the nature of the new facts that enable a request for revision to be made, and they suggested a further elaboration of the nature of the facts that could give rise to the revision of a judgment. In that view, the fact should be such as would materially affect the validity or basis on which the judgment was given. A further suggestion was that the party requesting revision should establish that the ignorance was nor due to negligence. In the discussion on draft article 115 (ITLOS Rules, Article 127), apart from some drafting changes intended to make the provision clearer, the question was raised as to why a decision to entertain the application for revision of a judgment should be in the form of a judgment. The explanation was that entertaining the application for revision implied a review of the original judgment and thus such a decision could not be in the form of an order but should itself be in the form of a judgment. In the light of those observations, the nal text of the draft rules was adopted and presented to the States Parties.72 The nal text of these draft rules as adopted by the Preparatory Commission is as follows: Article 114 1. In the event of a dispute as to the meaning or scope of a judgment rendered by the Tribunal, any party may, in accordance with article 33 of the Statute, make a request for

72

The original redraft is contained in doc. LOS/PCN/SCN.4/WP.15/Add.1, reissued as LOS/PCN/SCN.4/WP.16/Add.1, reproduced in PrepCom Report vol. i 26. It appears from the Introductory note to that document that further discussions took place after WP.15 was issued, but there is no published record of them.

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its interpretation, whether the original proceedings were begun by an application or by the notication of a special agreement. 2. A request for the interpretation of a judgment may be made either by an application or by the notication of a special agreement to that effect between the parties; the precise point or points in dispute as to the meaning or scope of the decision shall be indicated. 3. If the request for interpretation is made by application, the requesting party’s contentions shall be set out therein, and the other party shall be notied and entitled to le written observations thereon within a time-limit to be xed by the Tribunal, or by the President if the Tribunal is not sitting. 4. Whether the request is made by application or by notication of a special agreement, the Tribunal may, if necessary, afford the parties the opportunity of furnishing further written or oral explanations.

Article 115 1. A request 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 Tribunal and also to the party claiming revision, always provided that such ignorance was not due to negligence. 2. A request for the revision of a judgment shall be made by an application containing the particulars necessary to show that the conditions specied in paragraphs 1, 3 and 4 of this article are fullled. Any document in support of the application shall be annexed to it. 3. The application for revision must be made at the latest within six months of the discovery of the new fact. 4. No application for revision may be made after the lapse of ten years from the date of the judgment. 5. The other party shall be entitled to le written observations on the admissibility of the application within a time-limit xed by the Tribunal, or by the President if the Tribunal is not sitting. These observations shall be communicated to the party making the application. [A footnote states that there are no specic provisions in the Statute of the Tribunal relating to the revision of judgments. Nevertheless, the Preparatory Commission considers that the inclusion of such provisions in the Rules of the Tribunal to be appropriate.]

Article 116 1. The Tribunal, before giving its decision on the admissibility of the application for revision, shall afford the parties a further opportunity of presenting their views thereon. 2. The proceedings for revision shall be opened by a decision of the Tribunal in the form of a judgment expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground. 3. When appropriate, the Tribunal may require previous compliance with the terms of the judgment in respect of which the application is made before it admits proceedings in revision. In such case it shall make an order that the admission of proceedings in revision is conditional on previous compliance with such decision.

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4. If the Tribunal nds that the application is admissible, it shall x time-limits for such further proceedings on the merits of the application as, after ascertaining the views of the parties, it considers necessary.

Article 117 1. If the judgment to be revised or to be interpreted was given by the Tribunal, the request for its revision or interpretation shall be dealt with by the Tribunal. If the judgment was given by a chamber, the request for its revision or interpretation shall be dealt with by that chamber, or if that is not possible, then a chamber comprised in a similar manner by the Tribunal. 3. The decision of the Tribunal, or of a chamber, on a request for interpretation or revision of a judgment shall itself be given in the form of a judgment.

The Tribunal made further changes in these provisions, which it adopted as Articles 126 to 129 of its Rules on 28 October 1997.73 They are reproduced in Appendix II to this Chapter. The cardinal feature of this legislative history is that a political decision was taken by the Preparatory Commission, composed of signatory States of the 1982 Convention, that the Rules of the Tribunal should include provisions for the revision of the Tribunal’s judgments, and that there was nothing in the legislative history of the Convention to prohibit this. This solid political decision, deliberately taken by the Preparatory Commission, makes it unnecessary to consider any theoretical question such as whether ITLOS as an international court or tribunal possesses an inherent jurisdiction to entertain requests for the revision of any of its judgments. IV. Arbitration Procedure 4.11. Arbitration Chapter III (Articles 51 to 90) of the Hague Convention of 1907, corresponding to Article 49 of the Convention of 1899, is entitled ‘Arbitration procedure’. It contains a number of rules to regulate both the activity of the Permanent Court of Arbitration as Registrar in an arbitration case and how the case is to be conducted. Article 74 empowers an arbitral tribunal to issue rules of procedure for the conduct of the case, to decide the forms, order and time in which each party must conclude its nal arguments, and to arrange all the formalities required for dealing with the evidence. This is, however,

73

International Tribunal for the Law of the Sea, Basic Texts (2005) 16. And see on this G. Eirikkson, The International Tribunal for the Law of the Sea 275 (Martinus Nijhoff, The Hague, 2000).

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subject to the special agreement. This by Article 52 may deal with different aspects of the procedure to be followed. The implication is that every case of arbitration would require its own set of rules of procedure to the extent that questions of procedure were not regulated in the compromis or in the Convention (or other constituent instrument applicable in the case). Within this broad framework a general pattern of arbitral procedure developed for cases between States. There was no general set of ready-made rules of procedure to hand ready for adoption by litigating parties.74 This approach has been largely consolidated in the Model Rules on Arbitral Procedure prepared by the International Law Commission and adopted by the UN General Assembly in 1958.75 Article 2, paragraph 2 (iv), requires the compromis to include (if so desired by the parties) the procedure to be followed by the arbitral tribunal, provided that once constituted, the tribunal should be free to override any provisions of the compromis which may prevent it from rendering its award. At the same time Article 12 provided that in the absence of agreement between the parties concerning the procedure of the tribunal, or if the rules laid down by them are insufcient, the tribunal shall be competent to formulate or complete the rules of procedure. In line with that, Annex VII, Article 5, of the Law of the Sea Convention provides that unless the parties agree otherwise, the arbitral tribunal shall determine its own procedure, assuring to each party a full opportunity of be heard and present its case. Matters have been taken a stage further in the Optional Rules for Arbitrating Disputes between Two States, adopted by the International Bureau of the Permanent Court of Arbitration in 1992.76 In most of the arbitration proceedings that have taken place since 1945 the parties have adopted Rules

74

75 76

There was, however, a natural tendency for successive arbitrations to follow procedural precedents from preceding arbitrations or (if appropriate) the Rules of Court of the International Court. For a rare instance of a major arbitration which took place without any rules of procedure, each question being decided ad hoc by agreement between the parties and the tribunal, see the Southern Bluen Tuna arbitration (Australia and New Zealand v Japan) award of 4 August 2000, 119 ILR 508. These compulsory arbitration proceedings were held under Annex VII of the Law of the Sea Convention. On these Model Rules, see ch. 1 note 32 above. They are reproduced in Appendix III to this Chapter. Permanent Court of Arbitration, Basic Documents 2005 edition, 45. Similar provisions appear in the Optional Rules for Arbitrating Disputes between Two Parties of which only One is a State, ibid. 37, Arts. 35 (interpretation) and 36 (correction); Optional Rules for Arbitration involving International Organizations and States, ibid. 99 (arts. 35 and 36) and between International Organizations and Private Parties, ibid. 125 (arts. 35 and 36). All these are based on the UNCITRAL Arbitration Rules of 1976, arts. 35 and 36 (ibid. 267). On those Rules see Ch. I note 34 above. There is no provision for the revision of the award in any of these Optional Rules.

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of Procedure, nowadays closely modelled on the practices of the Permanent Court of Arbitration. Draft rules of procedure submitted by the Permanent Court of Arbitration in cases in which it is performing registry functions follow the general lines of the Optional Rules and normally make no provision for revision. When the International Bureau of the Permanent Court of Arbitration is performing registry functions it normally requires the parties to an arbitral process formally to adopt the Rules of Procedure. This provides the legal authority for the governance of the proceedings.

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Appendix I to Chapter 4

APPENDIX I TO CHAPTER 4

REPORT

CO-ORDINATION COMMITTEE APPEALS TO THE COURT77

OF THE

ON

IX. Des instances en rcours (« Appeals ») 1. Si la Cour est saisi d’un compromis ou d’une requête la priant d’examiner le bien-fondé d’une sentence rendue par une autre juridiction internationale, ce compromis ou cette requête sera à tous égards régi par les dispositions du Statut et du Règlement relatives aux compromis ou requêtes introduisant une nouvelle instance devant la Cour. 2. Si une demande tendant à faire examiner par la Cour le bien-fondé d’une sentence internationale est introduite par requête, elle sera considérée comme faite à la date de l’enregistrement de la requête au Greffe. 3. Toute requête visée à l’alinéa précédent formulera en termes précis, à titre de l’objet du différend, les griefs invoqués contre la sentence attaquée. 4. Il y sera joint une expédition authentique de ladite sentence. Cette disposition s’applique également à un compromis par lequel la Cour serait saisie. 5. A moins qu’il ne soit prévu dans l’accord, en vertu duquel la Cour est saisie, qu’il incombe à la juridiction qui a rendu la sentence attaquée de transmettre à la Cour le dossier au vu duquel la sentence a été rendue, et que cette juridiction ait effectué la transmission dans le délai xé par la Cour pour la présentation de la première pièce de la procédure écrite, il appartiendra aux parties de produire, conformément à l’article (40) du Règlement, tous éléments pertinents et utiles dudit dossier. C’est la Troisième Commission qui, selon la division du travail arrêtée par la Cour, s’est occupée de la question des « appels ». Elle est arrivée sur ce point à la conclusion que l’expérience acquise jusqu’ici par la Cour ne fournit pas de base sufsante pour permettre la présentation de

77

PCIJ Ser. D 2 Add. 3. 878.

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propositions en la matière. D’autre part, un des membres de la Cour a insisté sur l’opportunité qu’il y aurait, notamment au point de vue du développement de l’arbitrage internationale, à exprimer clairement l’idée que le droit d’appel existe; et un autre membre a saisi la Commission de coordination de propositions concrètes dans le même ordre d’idées. En présence de cette situation, la Commission a provisoirement adopté un texte s’inspirant de ces dernières propositions, dont il s’écarte cependant quant aux détails. Les trois principes suivants ont présidé à la rédaction du nouveau texte : 1º Au point de vue de la procédure devant la Cour, toute requête ou tout compromis doit être considéré comme introduisant une nouvelle affaire, même si l’instance est la sentence rendue, sur le même état de fait, par une autre juridiction. 2º Tout ce qui a trait à la compétence de la Cour est nécessairement régi par l’accord des parties, que celui-ci prenne la forme d’un compromis établi en vue d’un cas concret ou bien d’une convention sur laquelle se fonde une requête unilatérale. 3º A titre de corollaire du principe 2 ci-dessus, la nature juridique de l’instance de recours devant la Cour peut être quelconque, car, étant donné les termes de l’article 36 du Statut, rien n’empêche des États admis à ester devant la Cour de la prier par exemple, soit de casser, soit de reformer, soit de reviser la sentence d’une autre juridiction internationale. C’est par application de ces principes que la Commission propose d’intituler la section de Règlement consacré à la matière: « Des instances en recours », la Commission ayant acquis la conviction que c’est par un terme très général pouvant comprendre toutes les diverses espèces de recours admises dans la procédure devant les tribunaux nationaux. Cette rubrique devrait être rendue en anglais par le mot « appeals », dont la portée est également générale. La Commission a constaté d’ailleurs que les organes de l’Assemblée, en étudiant un problème connexe, se sont en n de compte arrêtés à une terminologie analogue. Dans le même ordre d’idées, le texte proposé se sert toujours de l’expression « examen du bien-fondé d’une sentence rendue par une autre juridiction internationale », expression, elle aussi, très générale. Quant à l’alinéa 3 du texte proposé, la Commission tient à faire observer que, dans son esprit, l’expression « les griefs invoqués » est sufsamment large pour comprendre l’éventualité où la revision d’une sentence serait demandée à raison de faits nouveaux inconnus de la juridiction qui avait rendu la sentence. Au sujet du même alinéa, la Commission observe que

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les mots « à titre d’objet du différend » ont été employés an d’indiquer clairement que le texte n’est pas destiné à ajouter aux dispositions de l’article 40 du Statut. De l’avis de la Commission, les matières traitées dans les propositions concrètes émanant, ainsi que cela a été dit ci-dessus, d’un membre de la Cour mais dont ne s’occupe pas le texte proposé ci-dessus, doivent être considérées comme étant du domaine de l’accord des parties, notamment en tant qu’elles affectent l’étendue de la juridiction de la Cour.

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APPENDIX II

THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA RULES OF THE TRIBUNAL (AS AMENDED UP TO 2001) SECTION G. JUDGMENTS, INTERPRETATION AND REVISION SUBSECTION 2. REQUESTS FOR THE INTERPRETATION OR REVISION OF A JUDGMENT

Article 126 1. In the event of a dispute over the meaning or scope of a judgment, any party may make a request for its interpretation. 2. A request for the interpretation of a judgment may be made either by an application or by the notication of a special agreement to that effect between the parties; the precise point or points in dispute as to the meaning or scope of the judgment shall be indicated. 3. If the request for interpretation is made by an application, the requesting party’s contentions shall be set out therein, and the other party shall be entitled to le written observations thereon within a time-limit xed by the Tribunal, or by the President if the Tribunal is not sitting. 4. Whether the request is made by an application or by notication of a special agreement, the Tribunal may, if necessary, afford the parties the opportunity of furnishing further written or oral explanations.

1. En cas de contestation sur le sens ou la portée d’un arrêt, toute partie peut présenter une demande en interprétation. 2. Une demande en interprétation d’un arrêt peut être introduite soit par une requête, soit par la notication d’un compromis conclu à cet effet entre les parties; elle indique avec précision le point ou les points contestés quant au sens ou la portée de l’arrêt. 3. Si la demande en interprétation est introduite par requête, les thèses de la partie qui la présente y sont énoncées et la partie adverse a le droit de présenter des observations écrites dans un délai xé par le Tribunal ou, s’il ne siège pas, par le Président. 4. Que la demande en interprétation ait été introduite par une requête ou par la notication d’un compromis, le Tribunal peut, s’il y a lieu, donner aux parties la possibilité de lui fournir par écrit ou oralement un supplément d’information.

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Appendix II to Chapter 4

Article 127 1. A request 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 Tribunal and also to the party claiming revision, always provided that such ignorance was not due to negligence. Such request must be made at the latest within six months of the discovery of the new fact and before the lapse of ten years from the date of the judgment. 2. The proceedings for revision shall be opened by a decision of the Tribunal in the form of a judgment expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on that ground.

1. La revision d’un arrêt ne peut être demandée qu’en raison de la découverte d’un fait de nature à exercer une inuence décisive et qui, avant le prononcé de l’arrêt, était inconnu du Tribunal et de la partie qui demande la revision, sans qu’il y ait, de sa part, faute à l’ignorer. La demande doit être formée six mois au plus après la découverte du fait nouveau et avant l’expiration d’un délai de dix ans à dater de l’arrêt.

2. La procédure en revision s’ouvre par une décision du Tribunal constatant expressément, dans un arrêt, l’existence du fait nouveau, lui reconnaissant les caractères qui donnent ouverture à la révision, et declarant de ce chef la demande recevable.

Article 128 1. A request for the revision of a judgment shall be made by an application containing the particulars necessary to show that the conditions specied in article 127, paragraph 1, are fullled. Any document in support of the application shall be annexed to it. 2. The other party shall be entitled to le written observations on the admissibility of the application within a time-limit xed by the Tribunal, or by the President if the Tribunal is not sitting. These observations shall be communicated to the party making the application. 3. The Tribunal, before giving its judgment on the admissibility of the application, may afford the parties a further opportunity of presenting their views thereon.

1. Une demande en revision d’un arrêt est introduite par requête contenant les éléments nécessaires pour établir que les conditions prescrites au paragraphe 1 de l’article 127 sont remplies. Tout document présenté à l’appui de la requête doit y être joint. 2. La partie adverse a le droit de présenter des observations écrites sur la recevabilité de la requête dans un délai xé par le Tribunal ou, s’il ne siège pas, par le Président. Ces observations sont communiquées à la partie dont émane la requête. 3. Avant de rendre son arrêt sur la recevabilité de la demande, le Tribunal peut à nouveau donner aux parties la possibilité de présenter leurs vues à ce sujet.

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4. If the Tribunal decides to make the admis sion of the proceedings in revision conditional on previous compliance with the judgment, it shall make an order accordingly. 5. If the Tribunal nds that the application is admissible it shall x time-limits for such further proceedings on the merits as, after ascertaining the views of the parties, it considers necessary.

4. Si le Tribunal décide de subordonner l’ouverture de la procédure de revision à une exécution préalable de l’arrêt, il rend une ordonnance à cet effet. 5. Si la requête est déclarée recevable, le Tribunal xe, après s’être renseigné auprès des parties, les délais pour toute la procédure ultérieure qu’il estime nécessaire sur le fond de la demande.

Article 129 1. If the judgment to be interpreted or revised was given by the Tribunal, the request for its revision or interpretation shall be dealt with by the Tribunal. 2. If the judgment was delivered by a chamber, the request for its revision or interpretation shall, if possible, be dealt with by that chamber. If that is not possible, the request shall be dealt with by a chamber composed in conformity with the relevant provisions of the Statute and these Rules. If, according to the Statute and these Rules, the composition of the chamber requires the approval of the parties which cannot be obtained within time-limits xed by the Tribunal, the request shall be dealt with by the Tribunal. 3. The decision on a request for interpretation or revision of a judgment shall be given in the form of a judgment.

1. Si l’arrêt à reviser ou à interpréter a été rendu par le Tribunal, celui-ci connaît de la demande en interprétation ou en revision. 2. Si l’arrêt a été rendu par une chambre, celle-ci, si cela est possible, connait de la demande en interprétation ou en revision. Si cela n’est pas possible, une chambre, composée conformément aux dispositions pertinentes du Statut et du présent Règlement, connaît de la demande en interprétation ou en revision. Lorsque’, conformément aux dispositions du Statut et du présent Règlement, la composition de la chambre exige l’assentiment des parties et que celui-ci ne peut être obtenu dans les délais xés par le Tribunal, le Tribunal connaît de la demande. 3. La décision sur la demande en interprétation ou en revision d’un arrêt prend la forme d’un arrêt.

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APPENDIX III

THE INTERNATIONAL LAW COMMISSION MODEL RULES ON ARBITRAL PROCEDURE (1958)

THE AWARD

Article 30 Once rendered, the award shall be binding upon the parties. It shall be carried out in good faith immediately, unless the tribunal has allowed a time limit for the carrying out of the award or any part of it.

Article 32 The award shall constitute a denitive settlement of the dispute. INTERPRETATION OF THE AWARD

Article 33 1. Any dispute between the parties as to the meaning or scope of the award shall, at the request of either party and within three months of the rendering of the award, be referred to the tribunal which rendered the award. 2. If, for any reason, it is found impossible to submit the dispute to the tribunal which rendered the award, and if within the above-mentioned time limit the parties have not agreed upon another solution, the dispute may be referred to the International Court of Justice at the request of either party. 3. In the event of a request for interpretation, it shall be for the tribunal or for the International Court of Justice, as the case may be, to decide whether and to what extent the award shall be stayed pending a decision on the request.

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REVISION OF THE AWARD

Article 38 1. An application for the revision of the award may be made by either party on the ground of the discovery of some fact of such a nature as to constitute a decisive factor, provided that when the award was rendered that fact was unknown to the tribunal and to the party requesting revision, and that such ignorance was not due to the negligence of the party requesting revision. 2. The application for revision must be made within six months of the discovery of the new fact, and in any case within ten years of the rendering of the award. 3. In the proceedings for revision, the tribunal shall, in the rst instance, make a nding as to the existence of the alleged new fact and rule on the admissibility of the application. 4. If the tribunal nds the application admissible, it shall then decide on the merits of the dispute. 5. The application for revision shall, whenever possible, be made to the tribunal which made the award. 6. If, for any reason, it is not possible to make the application to the tribunal which rendered the award, it may, unless the parties otherwise agree, be made by either of them to the International Court of Justice. 7. The tribunal or the Court may, at the request of the interested party, and if circumstances so require, grant a stay of execution pending the nal decision on the application for revision.

CHAPTER FIVE

INTERNATIONAL CASE LAW I – INTERPRETATION

I. The Permanent Court of International Justice 5.1. The Interpretation of Judgment No. 3 (1925) The third contentious case to come before the Permanent Court of International Justice was the case concerning the Interpretation of Paragraph 4 of the Annex following Article 179 of the Treaty of Neuilly, between Bulgaria and Greece.1 Those two countries, both parties to the Neuilly Peace Treaty of 27 November 1919, concluded a special agreement which was notied to the Registry on 2 June 1924. This was the rst case brought before the Permanent Court by notication of a special agreement, and the rst (and so far the only) case to have been determined by the Chamber for Summary Procedure. The special agreement invited the Court to determine the ‘precise meaning’ of a sentence in the Treaty, ‘replying in particular to the two following questions’. The questions were whether the text of the cited Treaty authorized certain claims against Bulgaria. In its judgment of 10 September 1924, the Chamber decided how the passage in question was to be interpreted, thus giving a precise answer to the questions set forth in the special agreement. On 27 November 1924 Greece led an application instituting the proceedings known as Interpretation of Judgment No. 3 case.2 Greece requested the

1

2

PCIJ Ser. A No. 3. For the pleadings in that case, see PCIJ Ser. C No. 6. The written pleadings were limited to one round of written ‘Cases’ (as the memorials were then known) led simultaneously. The Chamber did not nd it necessary to hold oral proceedings. In this and the following judgment the Chamber always referred to itself as the Court and both judgments stated that they were by the ‘Court, sitting as a Chamber of Summary Procedure’. In the above summary of the proceedings the word Chamber replaces the word Court’ used in the original judgments. PCIJ Ser. A No. 4. For the pleadings in that case, see PCIJ Ser. C No. 6 additional volume. The written pleadings were limited to one round of written ‘Cases’ led sequentially. The Chamber did not nd it necessary to hold oral proceedings. It sat in the same composition as in the original case. The printed text of Judgment No. 4 contains an erratum in Judgment No. 3.

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Chamber, in accordance with Article 60 of the Statute, to furnish it with an authoritative and, as far as possible, detailed interpretation of the judgment of September 12th, 1924. More especially it raised the question whether, under that judgment, the claims in question may only be paid from the proceeds of’ certain dened Bulgarian property. Greece later set out more specically the interpretation that it desired. For its part Bulgaria submitted observations regarding the Greek request ‘without disputing the Court’s jurisdiction to give such interpretation’. The Chamber saw in that statement an agreement for the Court to decide that dispute (the rst instance of what has come to be known as the forum prorogatum jurisdiction), and went on to nd that on the basis of this agreement it had jurisdiction. Consequently, there was no need for it to consider whether in the absence of a denite dispute [contestation formelle] between the parties regarding the interpretation of the previous judgment the requisite jurisdiction could be based exclusively on the unilateral request (demande) made by the Greek Government. The Chamber then turned to the question before it. On this, it explained that having regard to the manner in which the dispute [litige] was dened, the interpretation desired by the parties related only to the basis and extent of the obligations mentioned in the clause in question, the applicability of which was taken for granted in the special agreement. Accordingly, on this submission the question did not arise whether and to what extent the sentence in the Treaty of Neuilly was in fact applicable as between the parties, apart from the question of its applicability as between other signatories of the Treaty. Therefore the Greek request for the interpretation was ‘clearly based’ on a different conception unknown to the special agreement, namely that there was some doubt as to the applicability of the sentence in question as between the parties. The Chamber concluded its judgment: Whereas the Greek Government, in its request asking for an interpretation of the judgment of September 12th in regard to the question whether, under that judgment, the claims in question can be satised only through the proceeds of the sale of Bulgarian property situated in Greek territory, though adopting, as regards the applicability of the sentence in dispute, the same standpoint as the special agreement, envisages a matter other than the determination of the basis and extent of the obligations referred to in the clause in question; As the same observation applies with regard to the question concerning the right of Greece, under the terms of the judgment, to apply to the Reparation Commission with a view to obtaining a redistribution amongst the Allied Powers of their claim on Bulgaria in respect of reparation; Whereas an interpretation – given in accordance with Article 60 of the Statute – of the judgment of September 12th, 1924, cannot go beyond the limits of that Judgment itself, which are xed by the special agreement[.]

Accordingly the Chamber declared that Greece’s request for an authoritative interpretation of the earlier judgment, in accordance with Article 60 of the Statute, could not be granted.

§ 5.2. The Chórzow Factory (Interpretation) case (1927)

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The important and long-term normative ruling of this case is that an interpretation made under Article 60 of the Statute cannot go beyond the limits of the judgment being interpreted. Where the original case is introduced by the ling of a special agreement, the special agreement xes the limits of the original judgment and those of the judgment in interpretation. Where the original case is introduced by the ling of an application instituting proceedings, the nal submissions of the parties determine the limits of the judgment, and hence the limits of the process of interpretation. It is also interesting to see that at the time, the 1925 judgment gives no indication of difculty over the fact that although the original proceedings were introduced by the ling of the special agreement, the request for interpretation was made by unilateral application. That issue was to arise later in connection with the preparation of the Rules of Court. The current Rules settle the matter by not making the method of seising the Court with proceedings in interpretation dependent in any way on how the Court was seised of the original proceedings, although that could have a forward reach into the substance of the decision on interpretation. The other procedural determinations at a time when the Court as a whole had little judicial experience of contentious cases and before it had adopted any rule of procedure for applying Article 60 of the Statute, are today of little more than historical interest. The fact that the Chamber saw the initial issue as one of jurisdiction and not the admissibility of the request for interpretation explains the Registrar’s later preoccupation with preliminary objections in interpretation cases (see Chapter 4 above at note 23) when the issue is really one of the admissibility of the request for interpretation where the Court has true compulsory interpretation-competence. 5.2. The Chorzów Factory (Interpretation) case (1927)3 In May 1925 Germany led an application instituting proceedings against Poland in the case at rst denominated the Case concerning Certain German Interests in Polish Upper Silesia, later continued as a separate case under

3

On this complicated set of proceedings brought by Germany against Poland, and arising out of the establishment of Poland as an independent State on territory part of which had been German before the First World War, see the following: Judgment No. 6 in the case of German Interests in Polish Upper Silesia, in which certain preliminary objections were dismissed; Judgment No. 7 on the merits of that case; Judgment No. 8 in the new case named Factory at Chorzów; Judgment No. 11, interpretation of Judgments Nos. 7 and 8; Chorzów Factory Judgment No. 13 (merits), and order of 25 May 1929 recording the settlement of the case. PCIJ Ser. A Nos. 6 (1925), 7 (1926), 11 (1927) 13 (1927), 17 (1928), and 19 (1929). The Pleadings in these cases are contained in PCIJ Ser. C Nos. 9 (I), 11 (I–III), 13 (I), 13 (V), 15(II) and 16 (II). The Chorzów factory was a nitrate factory. On the composition of the bench in the interpretation case, see Ch. 7 § 7.5 below.

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the title of the Factory at Chorzów case. This dispute related to the application to certain German property in Poland of the German-Polish Convention regarding Upper Silesia concluded at Geneva on 15 May 1922 (the Geneva Convention). The Court’s jurisdiction derived from Poland’s actions in pleading to the merits, raising questions of jurisdiction only in its written rejoinder. In Judgment No. 6 the Court dealt with Poland’s objections in the Certain German Interests in Polish Upper Silesia case. In Judgment No. 7, the decision on the merits of that case, the Court made a complicated set of ndings. For the most part it held that different activities attributed to Poland were not in conformity with the Geneva Convention and dismissed some of Germany’s claims. Following that judgment, on 8 February 1927 Germany led an application instituting proceedings in the Factory at Chorzów case. In Judgment No. 8 the Court addressed the questions of jurisdiction in that case. On 18 October 1927 Germany led an application under Article 60 of the Statute requesting an interpretation of Judgments Nos. 7 and 8, alleging that a divergence of opinion had arisen between the two Governments in regard to the meaning and scope of those two judgments. Judgment No. 11 was on the interpretation of Judgments No. 7 (in the Settlers case) and No. 8 (in Chorzów). Germany’s request for an interpretation related to two judgments, one in each case (the same nding appearing in both). In the judgment on interpretation the Court rst gave its understanding of Article 60: From the article it appears that [the] conditions [required by article 60] are the following: (1) there must be a dispute [contestation] as to the meaning and scope of the judgment; (2) the request should have for its object an interpretation of the judgment. As regards the latter condition, the Court is of the opinion that the expression “to construe” must be understood as meaning to give a precise denition of the meaning and scope which the Court intended to give to the judgment in question, and the Polish Government does not appear to claim that this is not its meaning. But it denies the existence of a dispute between the two Governments as to the meaning and scope of the judgments referred to in the German Request [for interpretation], and its submission is that there is no ground for proceeding with the Request (p. 10).

The Court then found it necessary to dene the meaning of the terms ‘dispute’ and ‘meaning or scope of the judgment’ in Article 60. 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 specic 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

§ 5.2. The Chórzow Factory (Interpretation) case (1927)

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article, the Court considers that it cannot require that the dispute should have manifested itself in a formal way; according to the Court’s view, it should be sufcient 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.4 The Court in this respect recalls the fact that in its Judgment No. 6 (relating to the objection to the jurisdiction raised by Poland in regard to the application of the German Government concerning Upper Silesia), it expressed the opinion that, the article in question not requiring preliminary diplomatic negotiations as a condition precedent, recourse could be had to the Court as soon as one of the Parties considered that there was a difference of opinion arising out of the interpretation and application of Articles 6 and 22 of the Convention [of Geneva]. In order to realize the meaning of the expression “meaning or scope of the judgment” in Article 60 of the Statute, this expression should be compared with the terms of the preceding article of the Statute, which states that a decision of the Court has no binding force except between the Parties and in respect of the particular case decided. The natural inference to be drawn is that the second sentence of Article 60 was inserted in order, if necessary, to enable the Court to make quite clear the points which had been settled with binding force in a judgment, and, on the other hand, that a request which has not that object does not come within the terms of this provision. In order that a difference of opinion should become the subject of a request for an interpretation under Article 60 of the Statute, there must therefore exist a difference of opinion between the Parties as to those points in the judgment in question which have been decided with binding force. That does not imply that it must be beyond dispute that the point the meaning of which is questioned is related to a part of the judgement 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 [p. 13].

On that basis the Court proceeded to deal with the substance (or merits) of Germany’s request for the interpretation of the two earlier judgments. It embodied that result of its examination in a formal operative clause of the judgment in interpretation, stating what it had intended on the point under discussion in its judgment No. 7. In this context the Court made an important statement of how it sees its task in dealing with the ‘merits’ ( fond) of a case of interpretation:

4

This denition of dispute as to the meaning or scope of the judgment for the purposes of Art. 60 of the Statute was repeated and endorsed in the judgment in the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Rep. 1985 192, 223 (para. 55). On that case, see § 5.4 below.

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[T]he Court does not consider itself as bound simply to reply “yes” or “no” to the propositions formulated in the submissions of the German Application. It adopts this attitude because, for the purpose of the interpretation of a judgment, it cannot be bound by formulæ chosen by the Parties concerned, but must be able to take an unhampered decision.5 This view is consistent with the present terms of Article 66 of the Rules of Court [of 1926]. In fact, according to this article – which was intended by the Court to furnish information indispensable in regard to proceedings for interpretation – the application submitting the request for an interpretation shall contain: – “(a) a specication of the judgment the interpretation of which is requested; “(b) an indication of the precise point or points in dispute.” Whereas Article 35 of the Rules, which deals with an application instituting ordinary proceedings [une affaire ordinaire], requires “an indication of the claim”, Article 66 provides for “an indication of the . . . points in dispute”. And whereas, in the case of ordinary procedure, Article 40 of the Rules provides for the compulsory submission of Cases [Memorials] containing, as an essential part, “a statement of conclusions” [submissions], Article 66 only mentions optional “observations” and “further explanations” to be furnished upon the invitation of the Court. The Court therefore considers that it should interpret the “submissions” of the German Application . . . as simply constituting an indication, within the meaning of Article 66 of the Rules, of the points the meaning and scope of which are in dispute between the Parties. Construed in any other way, the Application in question would not satisfy the express conditions laid down by the above-mentioned article; and the Court, as it already had occasion to observe in previous judgments, may within reasonable limits disregard the defects of form of documents placed before it [p. 15].

The Court then proceeded to examine rst the meaning of the passage in question, and then its scope. It concluded its judgment with the following paragraphs: . . . [T]he obligation incumbent upon the Court under Article 60 of the Statute to construe its judgments at the request of any Party, cannot be set aside merely because the interpretation to be given by the Court might possibly be of importance in another case which is pending. The interpretation adds nothing to the decision, which has acquired the force of res judicata, and can only have binding force within the limits of what was decided in the judgment concerned. Moreover, the Court, when giving an interpretation, refrains from any examination of facts other than those which it has considered in the judgment under interpretation, and consequently all facts subsequent to that judgment. Similarly, the Court abstains from any consideration of the effect which the judgment to be construed might exercise upon submissions made by the Parties in another case or otherwise brought to its knowledge.

5

This passage was also cited verbatim in the judgment on the Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, at page 223 (para. 55), see previous note.

§ 5.3. The Asylum case (1950)

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It connes itself to explaining, by an interpretation, that upon which it has already passed judgment [p. 21].

That judgment gave rise to an important dissenting opinion by Judge Anzilotti, who thought that the German request was inadmissible (irrecevable, translated here as ‘could not be entertained’). Anzilotti’s understanding of the implications of Article 60 is important, and goes some way to explaining his position when engaged on drafting later Rules of Court. His dissent was based on the view that the only part of a judgment that is binding is the operative clause (dispositif ), and that having regard for Article 59 of the Statute, the Court can only have jurisdiction to construe a judgment if there is a dispute over the meaning or scope of the operative clause. However, experience since shows that a strict and literal adherence to that approach is not practical and that the real problem set by a request for interpretation is to ascertain whether the operative clause accurately reects the legal reasoning which led up to it (not whether that legal reasoning was correct or not). No further requests for interpretation under Article 60 came before the Permanent Court. II. The International Court of Justice 5.3. The Asylum case (1950)6 On 31 August 1949 the Governments of Colombia and Peru concluded the Act of Lima to refer to the International Court of Justice a dispute which arose following the request by the Colombian Embassy in Lima for the delivery of a safe conduct of Señor Haya de la Torre, who had taken refuge in that Embassy following a tradition in South America. The plenipotentiaries appointed to negotiate the matter were unable to reach agreement on the terms of reference to the Court, whereupon they agreed that proceedings before the Court may be instituted by either Government without this being regarded as an unfriendly act by the other. The Act of Lima also contained some rules for the procedure to be followed. That was the rst ‘framework agreement’ in the present Court, an agreement laying down how either party may refer a dispute to the Court without dening that dispute as would be required in a formal special agreement. On 15 October 1949 Colombia led an application instituting proceedings against Peru in accordance with the Act of Lima in the Asylum case. The proceedings took their normal course, Peru ling a counter-claim. On 20 November 1950 the Court rendered its judgment. It partly dismissed

6

ICJ Rep. 1950 266; ibid. 395 (Interpretation).

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Colombia’s rst submission in so far as it involved a right for Colombia, as the country granting asylum, to qualify the nature of the offence by a unilateral and denitive decision binding on Peru. It went on to dismiss another submission by Colombia and Peru’s counter-claim, nding that the grant of asylum by Colombia to Haya de la Torre was not made in conformity with the relevant provision of the Havana Convention on Asylum of 1928. On 20 November 1950, Colombia informed the Court that it wished to obtain an interpretation of the judgment in conformity with Article 60 of the Statute and the relevant Rules of Court. The case was entered in the Court’s General List under a new number, and the judges ad hoc were required to make a new solemn declaration. On 27 November the Court, in the same composition, rendered its judgment in this case, declaring the request for interpretation of the judgment of 20 November to be inadmissible. The Court took the opportunity to explain the concept of the admissibility of a request for interpretation under Article 60 of the Statute. Article 60 lays down two conditions for admissibility of a request for interpretation. (1) The real purpose of the request must be to obtain an interpretation of the judgment. This signies that the object of the request must be solely to obtain clarication 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. According to the Court, ‘any other construction of Article 60 . . . would nullify the provision of that article that the judgment is nal and without appeal’. (2) In addition, there has to exist a dispute as to the meaning or scope of the judgment. The Court explained that to decide whether the rst of these requirements is fullled ‘one 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 nal submissions of the parties, but also to abstain from deciding points not included in those submissions’.7 This is a rule of pleading which should be kept in mind when drawing up any instrument for submitting a dispute to the Court. As for the aspect of ‘dispute’, the Court said: Obviously, one cannot treat as a dispute, in the sense of that provision [Article 60], the mere fact that one Party nds the judgment obscure while the other considers it to be perfectly clear. A dispute requires a divergence of views between the parties on denite points. Article 79, paragraph 2, of the Rules [of 1946, Article 98 paragraph 2 of the Rules of 1978] conrms this condition by stating that the application for interpretation “shall specify the precise point or points in dispute”.

7

On nal submissions, see Law and Practice4, vol. iii 1335.

§ 5.3. The Asylum case (1950)

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The Court’s examination of the request for interpretation showed that the requirements of the Statute and Rules had not been satised, leading the Court to declare that the request for the interpretation of the original judgment was inadmissible. The second judgment of 1950 establishes rmly that the admissibility of a request for interpretation under Article 60 and the corresponding Rules of Court is something distinct from the interpretation itself. This in due course was reected in the 1978 version of the Rules of Court. However, unlike requests for revision of a judgment, the need to establish the admissibility of a request for interpretation under Article 60 is not a condition precedent to the opening of the proceedings in interpretation and does not normally lead to a two-stage procedure characteristic of proceedings in revision. In this respect, the two steps usually are treated together in the pleadings and in a single judgment. This manner of proceeding preserves the possibility of forum prorogatum jurisdiction over a request for interpretation which does not necessarily have to be limited to the binding provision of the judgment concerned. That need not always be a request under Article 60, since the agreement to the exercise of jurisdiction over an interpretation case avoids the need to establish the existence of a dispute over the meaning or scope of the judgment in question. That was not the end of the matter. On 13 December 1950 Colombia led an application instituting proceedings against Peru in a new case entitled the Haya de la Torre case.8 This application referred to the two judgments and explained that the two Governments had not been able to come to an agreement on the manner in which effect should be given to them as regards the surrender of Haya de la Torre. The Court’s jurisdiction came to be based on the consent of the parties in the proceedings. The nal submissions of each party raised difcult issues of pleading techniques but avoided any direct question of how to bring the asylum to an end. In its judgment of 13 June 1951 the Court dismissed the principal submission of each party and made a nding that the asylum that had been granted to Haya de la Torre ‘ought to have ceased’ after the delivery of the rst judgment in the Asylum case. This left matters as they were with some peripheral legal questions answered by the Court but not the principal issue that had given rise to the dispute between the two countries.9 This is an unsatisfactory instance of the invocation of the procedure of judicial settlement of a dispute. That was largely due to the failure of the

8 9

ICJ Rep. 1951 71. For a full account of this case see C. Schulte, Compliance with Decisions of the International Court of Justice 99 (Oxford University Press, Oxford, 2004).

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parties to bring their pleadings, and especially their nal submissions, into line with the requirements of international litigation. However, on the topic of the treatment of a request for interpretation and the application of Article 60 of the Statute, these cases gave the Court the opportunity to make a major clarication of the law taking into account the considerable general judicial experience that had been gained since Chorzów Factory in 1927. The second judgment of 1950 has set the pattern for future interpretation cases and that pattern has since been consolidated in the1978 Rules of Court. 5.4. The Continental Shelf Delimitation between Libya and Tunisia (1982–1985)10 On 25 November 1978 Tunisia led in court a special agreement with Libya referring to the Court a question about the delimitation of the continental shelf between Tunisia and Libya. The Court was asked to render a judgment on the principles and rules of international law which may be applied for the delimitation of the area of the continental shelf appertaining to Tunisia and the area of continental shelf appertaining to Libya. In rendering its decision, the Court was to take into account equitable principles and the relevant circumstances which characterize the area, as well as the recent trends admitted in the Third UN Conference on the Law of the Sea. Article 2 of the special agreement addressed how the parties would put the judgment to be given into effect. The Court anticipated that this would lead to the conclusion of a treaty. The Court was to specify precisely the practical way in which the said principles and rules applied in this particular situation ‘so as to enable the experts of the two countries to delimit those areas without any difculties’. Article 3 of the special agreement provided that if such agreement was not reached within a specied time, ‘the two parties shall together go back to the Court and request such explanations or clarications as may facilitate the task of the two delegations to arrive at the line separating the two areas of continental shelf, and the two parties shall comply with the Judgment of the Court and with its explanations and clarications.’ The prolonged proceedings in this case produced the rst instance of a request for the revision of a judgment to come before either the Permanent Court of International Justice or the present Court.

10

For this string of cases see ICJ Rep. 1981 3 (Application of Italy to Intervene); ibid. 1982 (Merits); ibid. 1985 192 (Revision and Interpretation). Seven of the fteen judges who heard the revision case had participated in the original decision. One member of the Court who had been judge ad hoc in 1982 recused himself.

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In the impeached judgment of 24 February 1982 the Court included the following as paragraph C of the dispositif: C. The practical method for the application of the aforesaid principles and rules of international law in the particular situation of the present case is the following: (1) – – – (2) in the rst sector, namely in the sector closer to the coast of the Parties, the starting point for the line of delimitation is the point where the outer limit of the territorial sea of the Parties is intersected by a straight line drawn from the land frontier point of Ras Ajdir through the point 33º 55' N, 12º E, which line runs at a bearing of approximately 26º east of north, corresponding to the angle formed by the north-western boundary of the Libyan petroleum concessions numbers NC 76, 137, NC 41 and NC 53, which was aligned on the south-eastern boundary of Tunisian petroleum concession ‘Permis complémentaire offshore du Golfe de Gabès (21 October 1966); from the intersection point so determined, the line of demarcation between the two continental shelves is to run north-east through the point 35º 55' N, 12º E, thus on that same bearing, to the point of intersection with the parallel passing through the most westerly point of the Tunisian coastline between Ras Kaboudia and Ras Adjir, that is to say, the most westerly point on the shoreline (low-water mark) of the Gulf of Gabes; (3) in the second sector, namely in the area which extends seawards beyond the parallel of the most westerly point of the Gulf of Gabes, the line of delimitation of the two continental shelves is to veer to the east in such a way as to take account of the Kerkennah Islands; that is to say, the delimitation line is to run parallel to a line drawn from the most westerly point of the Gulf of Gabes bisecting the angle formed by a line from that point to Ras Kaboudia and a line drawn from that same point along the seaward coast of the Kerkennah Islands, the bearing of the delimitation line parallel to such bisector being 52º to the meridian; the extension of this line northeastwards is a matter falling outside the jurisdiction of the Court in the present case, as it will depend on the delimitation to be agreed with third States.

The 1982 decision regarding the rst sector closely follows paragraph 121 of the judgment, and the decision regarding the second sector reects the conclusion at which the Court arrived in paragraph 129 of the judgment. The Court included in the judgment (at page 90) map No. 3 for illustrative purposes only, and without prejudice to the role of the experts in determining the delimitation line with exactness. Problems arose out of the expression ‘the most westerly point of the Gulf of Gabes’ and the location of the turning point for the two sectors of the delimitation. On 27 July 1984 Tunisia led in the Registry an application instituting proceedings in reliance on Articles 60 and 61 of the Statute and relevant Rules of Court then in force.11 In that application Tunisia requested three things: the revision of the original judgment, the interpretation of that judgment, and the

11

For the decision on the revision aspect, see Ch. 6 § 6.1 below.

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correction of what Tunisia regarded as an error in the co-ordinates given in the operative clause on the rst sector of the delimitation. These requests were all interrelated. As expressed in the nal submission, Tunisia was addressing in particular the rst sector of delimitation and the co-ordinates 33º 55' N, 12º E which it wanted to be replaced by 33º 50' 17" N, 11º 59' 53" E. For the second sector of delimitation Tunisia also wanted to x the western point of the Gulf of Gabes as lying on latitude 34º 05' 20" N (Carthage). Libya’s nal submissions asked the Court to declare that the request for revision was inadmissible on ground of non-compliance with the conditions of Article 61, that there were no grounds to grant Tunisia’s request to construe the judgment, and that there was no foundation in law or in fact for the request to correct an error in the judgment. The application met the requirements for an application instituting proceedings on a request for revision as laid down in Article 99, paragraph 1, of the 1978 Rules of Court, and the requirements for an application instituting proceedings for interpretation as laid down in Article 98, paragraph 1. In its judgment, the Court rst dealt with the broader question of the admissibility of an application such as this one, which contained three distinct requests, each one of which has its own requirements for admissibility and its own procedure. This particularly concerned the relationship of the requests for revision and for interpretation. The reason is that for revision the Statute expressly contemplates a two-stage procedure consisting of a judgment on the admissibility of the request for revision to be followed by the proceedings on the merits of the application in the event that by its initial judgment the Court nds the request to be admissible. ‘The provisions of Article 60 of the Statute and Article 98 of the Rules [on interpretation] do not contemplate such a two-stage procedure’, and there was no provision in either the Statute or the Rules governing a request for the correction of an error (paragraph 8). To meet this situation the Court adopted a special procedure. It rst authorized Libya to le written observations on the Tunisian application as a whole, and in particular on its admissibility as provided in Article 99, paragraph 2, of the Rules (on revision). It then held oral proceedings for the purpose of hearing the Parties’ argument in regard to the application as a whole. That argument was limited, so far as the request for revision was concerned, to the question of admissibility, but did not have to be so limited to that aspect of the requests for interpretation and for the correction of an error (paragraph 9). The judgment continues: While Article 61 of the Statute requires, as a rst 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

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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 rst deal with the admissibility of the request for revision, and will then, if appropriate in the light of its nding on the matter, examine the request for interpretation, sector by sector, and the request for the correction of an error [paragraph 10].

On the request for interpretation, to which the second part of the judgment (paragraphs 41 to 68) is devoted, the Court rst examined an objection by Libya based on article 3 of the special agreement. The question arose of the relationship between the procedure contemplated by that provision and the possibility for either party to request an interpretation under Article 60 of the Statute. In view of the importance of the question, the Court nds it necessary to deal with it. It is of course a fundamental principle that “The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases”. . . . It follows, rst that parties to treaties or special agreements are free to make their consent to the seisin of the Court, and hence the Court’s jurisdiction, subject to whatever pre-conditions, consistent with the Statute, as may be agreed between them; and secondly, that in principle a State may validly waive an objection to jurisdiction which it might otherwise have been entitled to raise. When examining its jurisdiction under Article 36 of the Statute, the Court is accordingly bound to examine and give effect both to any such jurisdictional pre-conditions, and to any unambiguous waiver of a jurisdictional objection. 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 fullled. Furthermore, the Parties to this case, in becoming parties to the Statute of the Court, have consented to that jurisdiction without pre-condition. The effect of Article 3 of the Special Agreement, as interpreted by Libya as being in pari materia with Article 60 of the Statute, would be to make the right of each Party to request an interpretation – a right exercisable unilaterally – subject to the prior employment of a procedure requiring the participation of both Parties. In other words, the exercise of the right of one party to seek an interpretation under 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 [paragraph 43].

Accordingly, the Court was unable to interpret the Special Agreement in that sense. The Court, therefore, did not consider that Tunisia’s request for interpretation in reliance on Article 60 of the Statute was affected by the existence of Article 3 of the Special Agreement. However, the introduction in the application of the request for revision had an impact on the part of the judgment dealing with interpretation. Libya

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introduced an argument based on this. The general effect of Libya’s contention was that the essence of the Tunisian request was not interpretation but something quite different, namely, a ‘plea for revision of the Court’s judgment’, an ‘attempt to alter what the Court has already decided with binding force’, namely the indication that the delimitation line was to run through the point 35º 55' N, 12º E. The Court interpreted that contention to the effect that the indication in the 1982 judgment that the line should pass through the point 33º 55' N, 12º E does not constitute a matter decided by the Court with binding force. This conclusion was based on the precise terms of the special agreement which asked the Court to indicate the principles to be applied, not to effect the delimitation. The Court said: It will be apparent from what has already been said on the request for revision that the Court is unable to uphold Tunisia’s view on this issue; but this is not in itself a reason for holding the request for interpretation to have been inadmissible, Similarly, the argument of Libya that the object of Tunisia’s request for interpretation is to alter what the Court has decided with binding force rests upon a particular view as to what has been so decided: it is therefore a refutation of the interpretation proposed by Tunisia rather than an objection to its admissibility [paragraph 45].

On the question whether a dispute existed as to the meaning or scope of the judgment, the Court recalled the ruling of the Permanent Court in the Chorzów Factory (Interpretation) case (§ 5.2 above). In light of that ruling the question here was whether the difference of views between the parties which had manifested itself before the Court was a ‘difference of opinion between the parties as to those points in the judgment which have been decided with binding force’, including a difference of opinion as to whether a particular point has or has not been decided with binding force. This led the Court to make some observations on ‘binding force’ in this case. On this, the Court rst explained its task under the special agreement, noting that it was limited to indicating the principles and rules of international law relating to the delimitation and specifying precisely the practical way in which they applied in the particular situation: the parties had agreed to meet to put into effect the principles and rules to determine the line of delimitation with a view to the conclusion of a treaty. The Court explained that it was always open to the parties to a dispute to have recourse to a conjunction of judicial determination and settlement by agreement. The fact that in this case the Parties did not entrust the Court with the task of drawing the delimitation line in no way affected the judgment of the Court or its binding effect on the Parties as a matter of res judicata. It will be the treaty contemplated by Article 2 of the Special Agreement which will contain the nal delimitation. The treaty will however be the implementation of an obligation

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already entered into, in Article 2 of the Special Agreement; and that provision is not a bare pactum de contrahendo. The Parties have undertaken not merely to conclude a treaty, but in doing so to apply the principles and rules indicated by the Court in its 1982 Judgment. While the Parties requested the Court to indicate “what principles and rules of international law may be applied for the delimitation of the area of continental shelf ”, they may of course still reach mutual agreement upon a delimitation that does not correspond to that decision. Nevertheless, it must be understood that in such circumstances their accord will constitute an instrument superseding their Special Agreement. What should be emphasized is that, failing such mutual agreement, the terms of the Court’s judgment are denitive and binding. In any event, moreover, they stand, not as something proposed to the Parties by the Court, but as something established by the Court [paragraph 48].

So far as the Tunisian request for interpretation may go further, and seek ‘to obtain an answer to questions not so decided’, or to achieve a revision of the Judgment, no effect could be given to it; but within the limits dened by Article 60 of the Statute, it was admissible. However, the Court was unable to uphold Tunisia’s submission as to the correct interpretation of the relevant portion of the 1982 judgment. The judgment explains that in dealing with the request for revision the Court had explained that the 1982 judgment laid down a precise criterion for the drawing of the line, a criterion involving simply the application of the experts’ professional knowledge in the eld of geodesy and cartography. The request for interpretation was therefore founded on a misreading of the purport of the relevant passage of the operative clause of the 1982 judgment. The judgment continues: since it has been possible for the Court to clear up the misunderstanding in the course of its reasoning on the admissibility of the request for revision, the Court considers that there is nothing to be added to what it has already said as to the meaning and scope of the 1982 Judgment in that reasoning [paragraph 50].

That led the Court to consider Tunisia’s request for the correction of an error. Here the Court found, referring back to what it had said about the point 33º 55' N, 12º E, that Tunisia’s application for a correction of the 1982 judgment was ‘based upon a misreading of the Judgment, and has thus become without object. There is therefore no need for the Court to examine the wider question of the correction of an error in a judgment’ (paragraph 52). On that basis the Court examined Tunisia’s contentions under this head ‘solely in so far as they relate to the subject of Article 60 of the Statute, namely, the meaning and scope of the 1982 Judgment’. Here the Court found that, for the purposes of the conditions of admissibility of a request for interpretation, there was clearly a dispute between the parties as to what in the 1982 judgment had been decided with binding force. That formulation of the dispute, however, did not imply that the Court had to choose between the two possible interpretations laid before it in the proceedings (paragraph 55).

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Regarding the second sector, the Court noted that there was clearly a dispute between the parties as to the signicance, for the interpretation of the expression ‘the most westerly point’ of the Gulf of Gabes, of the presence of a tidal channel in the region of latitude 34º 10'. More fundamentally, there was a dispute as to what, on a particular question, the Court had decided with binding force in the 1982 judgment. The Court explained this difference as whether it had decided that the turning point between the rst and second sectors of the line should be the parallel of a point on the Tunisian shoreline already identied by the Court as furthest to the west, and lying on, or very near, the parallel to 34º 10' 30", or whether the Court merely found that the parallel to determine the turning point should be drawn through whatever the parties’ experts might regard as the most westerly point of the Gulf, whether or not it lay in the neighbourhood of 34º 10' 30". Recalling the passage in the judgment in Chorzów Factory (Interpretation) cited in the text to note 5 above, the Court explained that this formulation of the dispute did not imply that the Court had to choose between the two possible interpretations. It went on: It is however a condition of admissibility of a request for interpretation . . . not only that there be a dispute between the parties as to the meaning or scope of the judgment, but also that the real purpose of the request be to obtain an interpretation – a clarication of that meaning and scope [paragraph 56].

Libya contended that the real object of Tunisia’s request was to obtain a substantial revision of the 1985 judgment. However, the Court had established that there was a dispute between the parties as to what on a particular question the Court had decided with binding force in 1982 and it was clear that Tunisia was asking the Court for a clarication of the meaning and scope of what the Court had decided. Tunisia also presented a nal submission that was altogether subsidiary, that there was cause to order an expert survey for the purpose of ascertaining the exact co-ordinates of the most westerly point of the Gulf of Gabes. That submission was presented only in the oral proceedings and Libya had not specically commented on it. The Court referred to Article 50 of the Statute empowering it at any time to obtain an expert opinion. That provision has to be read in relation to the terms in which jurisdiction is conferred on the Court in a specic case. The purpose of the expert opinion must be to assist the Court in giving judgment on the issues submitted to it for decision. In the present case it would be appropriate to accede to Tunisia’s request ‘only if the determination of the exact co-ordinates of the most westerly point of the Gulf of Gabes were required to enable the Court to give judgment on the matters submitted to it.’ In this case the Court was seised with a request for the interpretation of a judgment and, following again Chorzów Factory (Interpretation), such an interpretation adds nothing to the decision and can only have binding force

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within the limits of what was decided in the judgment concerned. In 1982 the Court stipulated that it did not purport to determine the exact co-ordinates of the most westerly point of the Gulf. On the contrary, it had expressly left that to the experts of the parties, the judgment having giving the co-ordinates ‘approximately’ as a ‘reference point’. The Court was prepared to leave it at that, the parties having undertaken in the special agreement to conclude a treaty for the purpose of the delimitation (paragraph 60). In the operative clause of this judgment, the Court found the application for interpretation admissible as far as relates to the rst sector of the delimitation. In paragraphs 32 to 39 of the 1985 judgment it gave an explanation of that part of the 1982 judgment that related to the rst sector, and in the operative clause specied that the meaning and scope of that part of the 1982 judgment were to be understood according to paragraphs 32 to 39 of the 1985 judgment. It also found that Tunisia’s submission of 1985 relating to the rst sector could not be upheld, and that Tunisia’s request for the correction of an error was without object and that it was therefore not called upon to give a decision thereon. Regarding the second sector, the Court also found admissible Tunisia’s request as far as relates to the ‘most westerly point of the Gulf of Gabes’. It declared by way of interpretation what it meant by that expression, and found that Tunisia’s submission relating to the second sector – the replacement of the co-ordinates – could not be upheld. On the other hand it found Tunisia’s request for interpretation admissible as far as it related to the ‘most westerly point of the Gulf of Gabes’ and proceeded to clarify its intent and how the experts were to calculate the turning point (paragraph 63). This led to a long dispositif in which the Court declared by way of interpretation the meaning to be given to the relevant paragraph (124) in the 1982 judgment and the consequential clarication of the relevant paragraph of the operative clause of the 1982 judgment.12 Finally the Court found that there was at the present time no cause for it to order an expert survey for the purpose of ascertaining the precise co-ordinates of the most westerly point of the Gulf of Gabes. This formulation left it open to the parties jointly to return to the Court if they should agree to do so.

12

There is interest in the way in which the Court claried the dispositif of 1982: ‘declares by way of interpretation . . . that the reference in paragraph 133 C (2) of that Judgment to “the most westerly point of the Tunisian coastline between Ras Kaboudia and Ras Ajdir, that is to say, the most westerly point on the shoreline (low-water mark) of the Gulf of Gabes”, and the similar reference in paragraph C (3) are to be understood as meaning the point on that shoreline which is furthest to the west on the low-water mark.’ The dispositif went on to give particulars of the task of the experts in determining the precise co-ordinates of that point, and to reject the Tunisian submission of where that co-ordinate should be.

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This is the rst, and so far the only instance in the International Court in which the Court has made a formal interpretation of the meaning and scope of an impeached decision leading to a clarication of the meaning of the dispositif of the impeached judgment. In all the other interpretation cases considered in this section the claim for interpretation was declared inadmissible, However, the present Court, although the admissibility arises in a somewhat different way than in revision proceedings, has usually dealt with a request for interpretation in a single phase combining the question of admissibility with the merits of the case. That is what it has done in the present case, and that shows the extreme delicacy of the task in an instance of maritime delimitation where considerations of geography and marine cartography can also be relevant. The case also shows the possibility of an extremely subtle distinction between ‘revision’ and ‘interpretation’ of a passage in a judgment and the overriding desire to maintain the integrity of the res judicata, all depending on the match of the relevant passage in the legal reasoning with the corresponding operative clause. Here the terms on which the Court was seised of the case remain dominant. The judgment removed a serious difculty that the parties had encountered in their negotiations to give effect to the judgment, in accordance with the special agreement. Further negotiations in light of the 1985 judgment led to the establishment of the Libyan-Tunisian Joint Oil Company to exploit the rich oil and gas resources of the area. The delimitation was completed by an agreement of 8 August 1988.13 5.5. Cameroon-Nigeria Preliminary Objections, Interpretation (1999)14 The Land and Maritime Boundary between Cameroon and Nigeria case occupied the Court from 29 March 1994 when Cameroon led its initial

13

14

C. Schulte, note 9 above at 162. For the agreement of 1988, see J. Charney and L.M. Alexander (eds.), International Maritime Boundaries, vol. ii 1663 (Martinus Nijhoff, Dordrecht, 1993). ICJ Rep. 1998 275 (Preliminary Objections); 2002 303 (Merits); 1999–I 31 (Application for Interpretation). All the judges who heard the original case except one heard the interpretation case. Judge Schwebel was president on both occasions. Given the short time that elapsed between the judgment on the preliminary objections and the judgment on the request for interpretation one may presume that the judges’ personal knowledge was a major factor in the 1999 decision on interpretation. Unusually succinct, that judgment conveys an impression of having been composed in an air of exasperation and irritation. In June 2006 the Secretary-General reported (S/2006/218) that the parties had concluded the Greentree Agreement concerning the modalities of withdrawal and transfer of authority in the Bakassi Peninsula with a Follow-up Committee to monitor the implementation of the Agreement.

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application instituting the proceedings, to 10 October 2002 when the Court rendered its nal judgment on the merits of the case. In the course of these proceedings, Nigeria led eight preliminary objections of which the Court disposed in a judgment of 11 June 1998. In that judgment it rejected seven objections, declared the eighth not to have, in the circumstances of the case, an exclusively preliminary character, and found that it had jurisdiction and that the application was admissible. The sixth objection related to issues of State responsibility. It contended that the application did not meet the required standard of adequacy as to the facts on which it was based, including the dates, circumstances and precise locations of alleged incursions and incidents attributable to Nigeria. This made it impossible for Nigeria to have knowledge of the circumstances alleged to result in Nigeria’s international responsibility or for the Court to carry out a fair and effective judicial examination of the issues of responsibility. The Court dealt with this objection in paragraphs 95 to 102 of its judgment on the preliminary objections, and in the relevant operative clause simply ‘rejects the sixth preliminary objection’. On 28 October 1998 Nigeria led an application instituting proceedings for the interpretation of the judgment on the preliminary objections. This application related to the Court’s decision rejecting Nigeria’s sixth objection, and in that application Nigeria gave the interpretation for which it was contending. The Court did not hold any oral proceedings in that case. In light of the case le submitted to it the Court considered that it had sufcient information on the positions of the parties on that application. Article 98, paragraph 4, of the Rules allowed it to do this (paragraph 5). In its judgment of 25 March 1999 the Court analysed and gave some explanations of the relevant passages in its original judgment. The Court rst examined whether it had jurisdiction over the request for interpretation. Reciting the main contentions of the parties and Article 60 of the Statute the judgment continues: ‘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’ (paragraph 10). The judgment goes on to recall what the Permanent Court had to say about the second sentence of Article 60 in the Chorzów Factory (Interpretation) case [see § 5.2 above] and continued: ‘. . . 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’ (paragraph 10) – a circular piece of reasoning which, apart from being self-contradictory, does not really add anything to the judgment. Moreover, the operative clause of the impeached judgment here was clear enough and in itself does not require

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any further interpretation. The Court then analysed the discussion on the sixth preliminary objection in the 1982 judgment. It held that those reasons were inseparable from the operative part of that judgment, so that in this respect the request for interpretation met the conditions laid down by Article 60 for the Court to have jurisdiction to entertain a request for interpretation of a judgment (paragraph 11). Next the judgment examines the admissibility of the request. Here the Court made an important observation of general application: 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 nality, and delaying the implementation, of these judgments. It is not without reason that Article 60 of the Statute lays down, in the rst place, that judgments are “nal 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 reect the principle of res judicata. That principle must be maintained [paragraph 12].

At this point the Court recited what it had said about this in the Asylum (Interpretation) case at § 5.3 above and in the Tunisia-Libya Continental Shelf (Interpretation) case at § 5.4 above, to the effect that the real purpose of the request is to obtain an interpretation – a clarication of the meaning and scope of the judgment. The Court then subjected its 1998 nding on Nigeria’s sixth preliminary objection to close analysis from which it followed that the Court had clearly dealt with and rejected the rst of three submission presented by Nigeria in its request for interpretation. From this the Court reached the conclusion that it would therefore be unable to entertain that submission without calling into question the effect of the judgment of 1998 as res judicata. The other submissions in the application for interpretation endeavoured to remove from the Court’s consideration elements of law and fact which the Court had in that judgment already authorized Cameroon to present or which Cameroon had not yet put forward. In either case the Court would be unable to entertain those submissions. Consequently, Nigeria’s request for interpretation was inadmissible (paragraph 16). This made it unnecessary for the Court to examine whether there was between the parties a dispute as to the meaning or scope of the 1998 judgment, as contemplated by Article 60 of the Statute (paragraph 17).15

15

As a curiosity, Cameroon asked for Nigeria to be charged with the additional costs caused by Nigeria’s request. The Court saw no reason to depart from the general rule set forth in Art. 64 of the Statute that each party shall bear its own costs, while pointing out that Art. 64 does anticipate the possibility of exceptions ‘which it does not specify’. The Court was unanimous on this nding.

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This judgment would appear to settle the doctrinal controversy whether a judgment on preliminary objections constitutes res judicata. The judgment is not a sweeping generalization in this respect. However, it shows that in given circumstances a judgment on a preliminary objection, which is nal and binding to the same extent as any other judgment and as such can be subjected to the procedures of interpretation and presumably revision, can constitute a res judicata if it lays down what would be admissible in subsequent phases of the case. For formal purposes this request was treated as a new case. It was the subject of a separate entry in the Court’s General List and the two judges ad hoc were required to make a new solemn declaration. For that purpose the Court opened a special public meeting although it held no hearings in this case, However, in the 2002 judgment on the merits, the Court included a reference to the interpretation proceedings in paragraph 14, as part of what Article 95, paragraph 1, of the Rules calls ‘a summary of the proceedings’. Proceedings on preliminary objections are commonly regarded as the archtype of incidental proceedings. There is no unanimity on the classication of proceedings in interpretation as incidental proceedings. However, it would seem that if the preliminary objection proceedings are classed as incidental proceedings in relation to the principal case, interpretation (and revision) proceedings in relation to that incidental judgment can be seen as incidental to the mainline proceedings. In the Cameroon-Nigeria case the sixth preliminary objection to which the interpretation proceedings referred was to the effect that there was no basis for a judicial determination that Nigeria bears international responsibility for alleged frontier incidents. After the rejection of the sixth preliminary objection and the request for interpretation, Nigeria led a counter-claim concerning Cameroon’s State responsibility.16 In the judgment on the merits the Court disposed of the claim that was the subject of the sixth preliminary objection and the counter-claim with a nding that neither of the parties had sufciently proved the facts which it was alleging or their imputability to the other party. The nal result was that the Court was unable to uphold either the claims or the counter-claims based on the incidents cited and therefore rejected both that part of Cameroon’s claim and Nigeria’s counter-claims (paragraph 324). No reference was made to the interpretation proceedings in this part of the judgment on the merits.

16

ICJ Rep. 1999–II 983.

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III. International Arbitral Awards 5.6. The Anglo French Continental Shelf Arbitration (1978)17 This arbitration award, by a tribunal which included two members of the International Court of Justice is probably the most signicant of the cases noted in this and the following Chapter. The Tribunal came to accept that the dispositif of the impugned award did not accurately reect its decision and required adjustment and rectication. The Tribunal proceeded to do this in effect by replacing the formal wording of the impeached dispositif with what it called ‘rectication’, and by clarifying as an apparently technical matter that the delimitation lines that it was drawing were geodesics on a specied datum – which allocated a considerably greater area of ocean space to the party requesting the interpretation. On 10 July 1975 the United Kingdom and France concluded an agreement to refer to arbitration the question: What is the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic, respectively, westward of 30 minutes west of the Greenwich meridian as far as the 1,000-metre isobath? By Article 10 of that agreement the Governments agreed to accept the decision of the Court of Arbitration as nal and binding. By paragraph 2 of that Article, either party might, within three months of the rendering of the decision (dans les trois mois suivant la décision), refer to the Court any dispute between them as to the meaning and scope of the decision. In its decision of 30 June 1977, the Court of Arbitration decided that except as provided in paragraph (2), the course of the boundary between the portions of the continental shelf appertaining to the United Kingdom and

17

XVIII UNRIAA 3 (award, in English) 271 (Interpretation); 130 (award, in French) 339 (Interpretation, in French); 54 ILR 6, 139. The Court of Arbitration was composed of E. Castrén (President), H. Briggs, Judge A. Gros, E. Ustor and Judge Sir Humphrey Waldock. The Court appointed as Expert a former director of nautical surveys and charting of the Deutsches Hydrographisches Institut of Berlin, H. Ermel. His Technical Report is annexed to the decision. For my comment on that award, see Sh. Rosenne, “Some Procedural Aspects of the English Channel Continental Shelf Arbitration”, Essays in Honour of E. Castrén 96 (Helsinki, 1979). At the time of this arbitration the Third UN Conference on the Law of the Sea was in the throes of a difcult negotiation over the delimitation of overlapping claims to the continental shelf and exclusive economic zone of countries with neighbouring or opposite coasts. The decision gives the impression of being deliberately worded in such a way as not to be seen as an attempt to inuence the deliberations of that Conference.

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France respectively, westward of 30 minutes west of the Greenwich meridian as far as the 1,000-metre isobath, should be the line traced in black on the Boundary-Line Chart included with the decision between a series of points of which the co-ordinates were given. In paragraph 2, the decision was that to the north and west of the Channel Islands the boundary should be composed of segments of arcs of circles of a 12-mile radius drawn from the baselines of the Bailiwick of Guernsey and traced in black on the Boundary-Line Chart included with the decision between a series of points of which the co-ordinates were given. That decision was seen as largely favourable to France, particularly as regards the Atlantic line between Points M and N. That line was approximately 170 nautical miles in length, according to paragraph 254 of the 1977 decision. The 1,000-metres isobath was well within the outer limit of any possible exclusive economic zone or 200 nautical miles from the baseline, so the possible impact of the decision, should the parties wish to extend the course of the boundary westwards beyond Point N, is even greater. On 17 October 1977 the United Kingdom led an application concerning the meaning and scope of that decision, on the basis of article 10 of the agreement. In the opinion of the British Government, the techniques and methods employed to arrive at those co-ordinates and to trace the corresponding lines on the Boundary-Line Chart in certain parts of the arbitration area gave rise to certain technical problems involving contradictions between segments of the boundary line thus traced and dened and the intentions of the Court set out in the body of its decision. On 14 March 1978 the Court of Arbitration gave its decision on that application. After dismissing a series of French objections to the application, the Court of Arbitration decided: (4) In relation to the boundary to the north and west of the Channel Islands, a. the course of the boundary for the region dened in paragraph 2 of the dispositif of the Decision of 30 June 1977 is not a correct application of the express ndings of the Court in paragraph 20218 of that Decision regarding the principles to be applied in delimiting the said boundary;

18

That paragraph reads: The second part of the solution is to delimit a second boundary establishing, vis-à-vis the Channel Islands, the southern limit of the continental shelf held by the Court to be appurtenant to the French Republic in this region to the south of the mid-Channel median line. This second boundary must not, in the opinion of the Court, be so drawn as to allow the continental shelf of the French Republic to encroach upon the established 12-mile shery zone of the Channel Islands. The Court therefore further decides that the boundary shall be drawn at a distance of 12 nautical miles from the established baselines of the territorial sea of the Channel Islands. The effect will be to accord to the French Republic a substantial band of continental shelf in mid-Channel which is continuous with its continental shelf to the east and west of

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b. paragraph 202 of the Decision of 30 June 1977 expresses the intention of the Court, and the delimitation of the boundary to the north and west of the Channel Islands shall, therefore, now be rectied so as to follow the line composed of segments of arcs of circles of a 12-mile radius, drawn from the base-points A to M on the baselines of the Bailiwick of Guernsey listed in Appendix A to the Application which is reproduced on page 19 of this Decision, and joining the 12 points of intersection of those arcs of circles also listed in that Appendix; c. the co-ordinates of the base-points A to M and of the 12 points of intersection of arcs of circles listed in the said Appendix are to be taken as referred to European datum (1950) in the same manner as all the coordinates given in the Decision of 30 June 1977. By four votes to one [Briggs] further decides that: (5) In relation to the course of the boundary westward from Point M, a. it has not been established that the course of the line M-N dened in the dispositif and traced on the Boundary Line Chart is in such contradiction with the ndings of the Court in paragraphs 251, 253 and 254 of the Decision of 30 June 1977 as to be incompatible with the method of delimitation prescribed in those ndings; b. the United Kingdom’s request for the rectication of this segment of the boundary is, therefore, not well-founded and must be rejected.

France raised three objections to the 1977 application, to the following effect: (1) the application was inadmissible since it had not been submitted ‘dans les trois mois suivant la décision prise’; (2) it did not relate to a dispute concerning the meaning or scope of the decision which itself arose within the three-month period however calculated; and (3) the request went beyond elucidation of some obscurity in the decision and was in reality an attempt to ‘reconcile’ certain elements in the decision and to ‘rectify’ certain elements of the decision, including the boundary lines traced on the chart. Since France at the same time pleaded to the merits those objections were not ‘preliminary objections’ as that term is understood in international litigation. They were objections to the admissibility of the request for interpretation of the award on grounds of non-conformity with the conditions required for such requests according to article 10 of the agreement of 1975. The rst two objections were rejected. The third was found not to possess an exclusively preliminary character and accordingly had to be examined within the framework of the merits.

the Channel Islands region; and at the same time to leave to the Channel Islands, to their north and to their west, a zone of seabed and subsoil extending 12 nautical miles from the baselines of the two Bailiwicks. The result, so far as the Channel Islands are concerned, is to enclose them in an enclave formed to their north and west, by the boundary of the 12-mile zone just described by the Court and, to their east, south and south-west by the boundary between them and the coasts of Normandy and Brittany, the exact course of which it is outside the competence of the Court to specify.

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The rst objection was that the application was out of time. This objection was based on the fact that while the decision was dated 30 June 1977 it was not communicated to the parties until 18 July 1977. According to France that delay in communicating the decision to the parties took place with their consent. The Court of Arbitration found this objection to be ‘wholly unfounded’, although it required three long and dense paragraphs to dispose of it. The second objection was based on the contention that certain diplomatic notes of September 1977 made in the process of the initial attempt to put the decision into effect did not relate to the meaning or scope of the decision but only to contentions of the United Kingdom (a) that certain parts of the decision were attributable to the Court’s expert and not to the Court, and (b) that certain passages in the reasoning should prevail over the dispositif and the chart. France rejected this and argued that the disagreement was simply a facet of the dispute between the parties concerning the value to be attributed to the several parts of the decision and the role played by the Court in regard to them. This was not a dispute as to the meaning and scope of the 1977 decision but rather as to the origin of its several parts. The Court closely analysed the diplomatic correspondence (paragraphs 7 to 13 of the 1978 decision). It adopted the view of the Permanent Court in Chorzów Factory (Interpretation) that to require undue formality in establishing the existence of the dispute would be out of place in the context of interpretation proceedings. That reasoning would apply a fortiori where, as in article 10 of the initial agreement in the present case, the right to request an interpretation of a decision has been made subject to a comparatively short time limit (paragraph 12). The Court therefore had no doubt that the two Governments in fact showed themselves as holding opposite views in regard to the meaning or scope of the 1977 decision. The diplomatic correspondence disclosed a ‘complete divergence of view’ concerning the existence of alleged contradictions between the reasoning and the dispositif and concerning their alleged implication in regard to the meaning and scope of the 1977 decision. That divergence of view came within the scope of article 10 of the 1975 agreement, so that the objection to the admissibility on this ground was without foundation and should be dismissed (paragraph 13). Paragraphs 14 to 16 address the third objection, which the Court found was intimately linked to the merits of the claim which was the subject of the United Kingdom’s application. The Court recited the United Kingdom’s answer to a question of the Court which dened more precisely the rectication of the Chart and the dispositif claimed by the United Kingdom, namely the continuation westwards of the line from Point M at the angle of 247º 09' 37" prescribed by the Court, by a geodetic line instead of by the loxodrome indicated in the dispositif and drawn on the chart. That would have been expressed by a curve in a southerly direction, according several hundred

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more square kilometres to the United Kingdom than resulted from the 1977 decision. The Court described in detail the relevant contentions of the parties and found that their submissions only have to be stated for it to become apparent that the issue of admissibility was intimately linked to the merits of the claim which was the subject of the application for interpretation. The issues raised a question as to the meaning or scope of the decision for the purposes of article 10 of the arbitration agreement. The determination of those issues was in large measure dependent on the conclusions to be reached by the Court on other issues of the merits (paragraph 14). The Court prefaced its consideration of the merits with what it called ‘some general observations’ regarding the nature and extent of the function entrusted to it by article 10, paragraph 2, of the 1975 agreement. The differences between the parties concerned a series of questions such as: what constituted the court’s decision for the purposes of article 10, paragraph 2; under what conditions might the reasoning have binding force to prevail over the dispositif and the chart allegedly in conict with it; whether such a conict raised a question of the meaning and scope of the decision; and supposing such a conict to exist, what power did the Court have under article 10, paragraph 2, to correct the dispositif and the chart? After summarizing the parties’ views and contentions (paragraphs 18 to 24) the Court refused to limit the word decision in article 10 to the delimitation of the boundary in the dispositif together with the chart. It was no doubt correct that the actual decision and its drawing on the chart as the operative part – the kernel – of the decision were the elements to which the authority of the res judicata attached. But it by no means followed that the word decision in the 1975 agreement was to be considered as ‘denoting a disembodied dispositif and chart wholly detached from the reasoning leading up to and justifying the provisions of the dispositif and the course of the boundary drawn on the chart. Such a view of the effect of Articles 2, 9 and 10 would be so contrary to the accepted concepts in international procedure that it could not be adopted without the clearest indication that such was indeed the intention of the parties’ (paragraph 25). The Court of Arbitration considers it to be well settled that in international proceedings the authority of res judicata, that is the binding force of the decision, attaches in principle only to the provisions of its dispositif and not to its reasoning. In the opinion of the Court, it is equally clear that, having regard to the close links that exist between the reasoning of a decision and the provisions of its dispositif, recourse may in principle be had to the reasoning in order to elucidate the meaning and scope of the dispositif. From this it follows that under certain conditions and within certain limits, the reasoning in a decision may properly be invoked as a ground for requesting an interpretation of provisions of its dispositif (cf. Chorzów Factory case, P.C.I.J., Series A, No. 13). But the subject of a request for interpretation must genuinely be directed to the question of what

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it is that has been settled with binding force in the decision, that is in the dispositif (ibid., p. 11; Asylum (Interpretation) case, I.C.J. Reports 1950, p. 402); the reasoning cannot therefore be invoked for the purpose of obtaining a ruling on a point not so settled in the dispositif. A request for interpretation may, on the other hand, be directed to obtaining a ruling on the question whether a certain point has or has not been settled with binding force in the decision (Chorzów Factory case, P.C.I.J., Series A, No. 13 pp. 11–12); and the reasoning of a decision may accordingly be referred to for this purpose. Furthermore, if ndings in the reasoning constitute a condition essential to the decision given in the dispositif, these ndings are to be considered as included amongst the points settled with binding force in the decision (ibid., p. 20). At the same time, account must be taken of the nature and limits of the right to request from a Court an interpretation of its decision. “Interpretation” is a process that is merely auxiliary, and may serve to explain but may not change what the Court has already settled with binding force as res judicata. It poses the question, what was it that the Court decided with binding force in its decision, not the question what ought the Court now to decide in the light of fresh facts or fresh arguments. A request for interpretation must, therefore, genuinely relate to the determination of the meaning and scope of the decision, and cannot be used as a means for its “revision” or “annulment”; processes of a different kind to which different considerations apply. Where, as in the present case, the request for interpretation must, if upheld, entail some adjustment – to use a neutral term – of the dispositif, the task of determining whether the remedy sought in the request falls within the ambit of the process of ‘interpretation’ or amounts to a demand for ‘revision’ may be a difcult one. The determination of this question necessarily depends on the particular facts of each case and will therefore be examined later in connexion with the facts relating to each of the two problems raised in the United Kingdom’s Application. It sufces here for the Court of Arbitration to note that the United Kingdom explicitly disclaims that it has any right to seek or to obtain a “revision” of the Decision of 30 June 1977 [paragraphs 28–29].

The Court gave the following explanation of the position: . . . it is undoubtedly the fact that in passages of its reasoning relating to each of the regions the Court in express terms either “decides” or “nds” that the boundary is to be drawn in conformity with certain principles and by certain methods; and that the corresponding provisions of the dispositif are no more than the Court’s application of those principles and methods. It is therefore evident that the express ndings of the Court in those passages of the reasoning “constitute a condition essential to the Court’s decision”, and that the United Kingdom is justied in its contention that they should be considered as included amongst the points settled with binding force in the decision (see paragraph 28 above). It follows that recourse to the paragraphs containing these ndings may properly be invoked by the United Kingdom as a basis for determining the meaning and scope of the dispositif. The Court must, however, observe that the “ndings” incorporated in those paragraphs of the reasoning are themselves conclusions drawn by the Court from its examination in previous paragraphs of the considerations of fact and law held by it to be pertinent to the determination of the course of the boundary in each region. Consequently, it is not only the reasoning of the paragraphs embodying the ndings invoked

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by the United Kingdom to which reference has to be made in interpreting the relevant provisions of the dispositif; account may at the same time also have to be taken of the reasoning in other paragraphs by process of which the Court arrived at those ndings “essential” to its decisions in the dispositif [paragraph 30].

On that basis, the Court accepted that express ndings in certain passages of the reasoning constituted a condition that recourse to them for the purpose of elucidating the meaning and scope of the decision was valid. The Arbitration Court then turned to examining the British claim for the rst sector, the boundary to the north and west of the Channel Islands. It found that there was a ‘manifest discrepancy’ between the Court’s ‘decision’ in paragraph 202 regarding the principle and method to be applied in delimiting this boundary and the actual delimitation of the boundary in paragraph 2 of the dispositif (paragraph 31). ‘Since the boundary dened in paragraph 2 of the dispositif and traced in black on the Boundary-Line Chart does not respect the principle stated by the Court to be a cardinal element in its decision, it clearly does not give effect to the intention of the Court in its decision of 30 June 1977 (paragraph 35). Therefore, if that intention was not to be defeated the contradiction between the express ndings in paragraph 202 and the delimitation of the boundary in the dispositif must be resolved in favour of the former. That involved ‘some rectication’ of the denition of the boundary in paragraph 2 of the dispositif in order to effect a reconciliation of its provisions with the ndings in paragraph 202. The Court examined whether such rectication fell within the scope of its competence under article 10, paragraph 2, of the 1975 agreement. The discrepancy between the dispositif and the Court’s ndings in the reasoning arises purely and simply from technical causes resulting in a mis-application of those ndings, a discrepancy not detected by the Court owing to the differences in character and scale between the Boundary-Line Chart and the relevant charts submitted during the proceedings in 1977. The discrepancy is therefore one which is properly characterized as a “material error”, analogous to one resulting from a “slip of the pen” or from the miscalculation or miscasting of arithmetical gures. The power of a court to rectify such a discrepancy, where in the interests of good administration of justice it is necessary to correct a material error that appears on the face of its decision, is considered by the Court of Arbitration to be generally accepted. Where, as in the present case, a contradiction between different parts of a decision is said to exist by reason of an alleged material error, the question of rectication necessarily arises only after the question of interpretation has been decided and the contradiction has been found to exist. A compromissory clause, such as that in Article 10, paragraph 2, of the Arbitration Agreement, may then furnish the basis for obtaining a rule as to the true meaning and scope of the decision and as to the existence of the contradiction alleged. The power of the Court to rectify the resulting error remains, however, its inherent power to rectify a material error found to exist in its decision. The

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power to rectify need not, therefore, be stated in the compromissory clause; but equally the compromissory clause does not enlarge the Court’s power to rectify its decision, unless expressly so provided in the clause [paragraph 36].

The Court concluded this part of the 1978 judgment with the following categorical statement: The function of the Court under Article 10, paragraph 2, is to declare denitively the meaning and scope of its Decision of 30 June 1977, rather than to decide anew the course of the boundary. This function the Court of Arbitration considers it will duly discharge if it now prescribes, with binding effect, the nature of the rectication required to harmonize paragraph 2 of the dispositif with the Court’s ndings in paragraph 202 of the Decision.

After describing the required rectication the Court ended this part of the award: The Court . . . nds no reason to anticipate any difculty in leaving it to the Parties themselves to effect a corresponding correction of the boundary traced in black on the Boundary-Line Chart to the north and west of the Channel Islands [paragraph 37].

The remainder of this award (paragraphs 38 to 111) deals with the course of the line between the Points M and N dened in the dispositif. The Court found no contradiction between the ndings in the reasoning and the relevant provisions of the dispositif. ‘It follows that the principle of res judicata applies, and that it is not open to the Court to entertain the request of the United Kingdom for the rectication of this segment of the boundary’ (paragraph 113). This is so far the rst and the only decision in interpretation in which an incompatibility has been found to exist between the relevant passages in the tribunal’s reasoning and the corresponding provision in the operative clause. The absence from the instruments governing the arbitration of any specic rule for revision of the award led the Court of Arbitration to base itself on the widely accepted principle of an inherent right to correct a material error such as an arithmetical slip or the like manifest of the face of the award. The case raises the question whether the time has not come for a more thorough examination of the problem of rectication of an award. Given the depth of the enquiry undertaken by the Court of Arbitration to establish the existence of the incompatibility between the reasons and the dispositif, the characterization of the discrepancy as a material error which the Court was empowered to rectify per se is not convincing.

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5.7. The Heathrow User Charges Arbitration (United Kingdom/United States of America, 1992–1993)19 This arbitration arose under the Air Services Agreement between the United Kingdom and the United States of America of 23 July 1977 (otherwise known as the Bermuda 2 Agreement). By an exchange of letters of December 1988 the two Governments referred to arbitration the ‘the continuing dispute between our Governments concerning the user charges imposed by the British Airport Authority on US airlines and of the conduct of the British Government in relation thereto’. The parties did not reach full agreement on the precise terms of reference of the arbitration and had requested the Tribunal to dene them. This the Tribunal did (decision, paragraph 3.2). At the Tribunal’s rst session the parties agreed that the hearing on the merits would be limited to the issue of liability and all appropriate forms of relief stemming from six years of Heathrow user charges commencing 1 April 1983. Upon the issuance of the Tribunal’s nal award concerning those issues the parties were to attempt to resolve by agreement any question of the award’s application to any subsequent period up to the date of the Tribunal’s nal award. The Tribunal rendered its award on 30 November 1992, nding in general in favour of the United States. Rule 13, paragraph 2, of the Tribunal’s Rules of Procedure provided that within 30 days after the decision or award was rendered, the Tribunal, upon the request of a party or upon its own motion, may after notice to the parties rectify any clerical, arithmetical or similar error in the decision or award. In the course of the proceedings the parties agreed that in the circumstances of the arbitration they should be free to request clarication of the written decision within eight weeks after that decision had been rendered and that the Tribunal should issue such a clarication within eight weeks of any such request.20 It appears from the Foreword to the United Nations’ reproduction of the decision that on 18 June 1993 the Tribunal issued Decisions 20 (Correction of Errors) and 21 (Clarication) and these are incorporated in the text as reproduced by the United Nations. On 17 May 1993, the United States requested clarications and supplemental decisions. Written observations by each of the parties were exchanged during the subsequent months. On 1 November 1993, the Tribunal issued

19

20

XXIV UNRIAA 5 (Award) 338 (Decision No. 23); 102 ILR 564 (Award), 117 ILR (Additional materials). The arbitral tribunal was composed of Isi Foighel (President), Fielding, Lever. The International Bureau of the Permanent Court of Arbitration provided registry services. Note by the Registrar to Rule 26 of the Rules of Procedure, Appendix III to the decision of 30 November 1992.

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Decision No. 23 in which it decided that for the reasons set out in the Annex to that decision, it had no power under its Rules of Procedure or otherwise to take any of the steps proposed by the United States. It accordingly rejected the United States’ requests that the Tribunal issue any correction, clarication, or supplemental decision such as was proposed in the requests. The Tribunal’s reasons for this decision are set out in section II of that Annex. For the most part, they derive from a close analysis of the intricate proceedings in this case. In paragraphs 2.6 and 2.7 there is a useful discussion on the meaning of revision, as a distinct process which involves changing the substance of what was decided as distinct from spelling it out more clearly or more fully The denition of the circumstances in which revision is possible must be found either in the rules of the applicable legal system, or in the case of an arbitration in the rules of procedure agreed by the parties as the rules that are to govern the arbitration. The Tribunal pointed out that revision as a distinct process is clearly recognized in the ICSID arbitration process and in Article 61 of the Statute of the International Court of Justice. The Tribunal thought that it was impossible that the drafters of Bermuda 2 could have intended the expression clarication to embrace the distinct process of revision. Accordingly the Tribunal rejected the submission that the expression clarication in Bermuda 2 embraced not only the explanation [emphasis in original] of points that appeared contradictory or obscure but also the possibility of changing [emphasis in original] elements in the award ‘if that is necessary to eliminate apparent contradiction or other mistake or “impurity”.’ Paragraph 2.20 contains a useful dictum on ‘correction’: . . . as a matter of substance, Rule 13(2) of the Tribunal’s Rules of Procedure only empowers the Tribunal to correct errors in the expression [emphasis in original] of its true intention arising from some accidental slip. Although no doubt it enables not only “slips of the pen” and the correction of miscalculation or miscarriage of arithmetical gures but also the required consequential rectication of conclusions that had been drawn on the basis of the miscalculation or miscasting. Rule 13(2) cannot be invoked to correct conclusions of fact or law contained in a decision or an award where the text accurately reects what the Tribunal meant to say.

The reader will recognize the borrowing here from the interpretation award in the Anglo-French Continental Shelf case, which was adduced in the American pleading as recounted by the Tribunal in paragraph 1.26 of the Annex to Decision 23. The Tribunal then examined whether under international law it had inherent revisionary powers even if its constituent texts and Rules of Procedure contained no expression of agreement on the part of the parties that the Tribunal should enjoy such powers. The basic principle, set out in paragraph 2.26, is that the Tribunal cannot exercise any power the existence of which is inconsistent with the terms of the parties’ agreement as a result of which

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alone the Tribunal has any being. The Rules of Procedure did not contain a provision to the effect that the discovery of a new fact of such a nature as decisively to affect the award was a ground for reopening the hearing. On this, the Tribunal commented (paragraph 2.30) that the parties having chosen, ‘presumably consciously’, not to incorporate such a power in the Tribunal’s Rules, ‘it must be extremely doubtful that the inherent powers of this [emphasis in original] Tribunal can include the much wider and less qualied power to ‘revisit’ its awards (to use the expression used by USG) in circumstances which have led the other [emphasis in original] Tribunals, to which USG refers, to revise awards that they had rendered. This decision was clearly one which the Tribunal thought was imposed on it by the specics of the Rules of Procedure of this arbitration. 5.8. The Laguna del Desierto Arbitration (Argentina/Chile, 1994–1995)21 By a special Arbitral Agreement of 31 October 1991 Argentina and Chile decided to request an arbitral tribunal ‘to decide the course of the line of the frontier in the sector comprised between BP62 and Mount Fitzroy in the Third Region, as dened in Point 18 of the Report of the Tribunal of Arbitration of 1902 and described in detail in the nal paragraph of Point 22 of the said Report’. Article XI of the Special Arbitral Agreement empowered the Tribunal to adopt such procedural rules as had not been agreed by the parties. By Article XII, the Tribunal’s decisions were to be governed by the provisions of Article 34 of Chapter II of Annex I to the Tratado de Paz y Amistad of 29 November 1984. Article XVII laid down that the judgment shall be nal and not subject to appeal, and compliance with it was entrusted to the honour of both Nations. In its judgment of 21 October 1994 the Tribunal, by three votes

21

113 ILR 1 (Award), 194 (Revision and Interpretation). This case is also known as the Dispute concerning the Course of the Frontier between BP 62 and Mount Fitzroy. The arbitral tribunal was composed of Rafael Nieto Navia (President), Galindo Pohl, Santiago Benadava, Julio Barberis and Pedro Nikken. The original award was in Spanish. The English translation used here was prepared for the International Law Reports as is set out in the Preface to volume 113. For the earlier arbitral award of 20 November 1902 relating to this part of the frontier between the two countries, by King Edward VII of Great Britain, known as the Cordillera of the Andes Boundary case, see 9 UNRIAA 29; further particulars in A.M. Stuyt (ed.), Survey of International Arbitrations 1794–1989 203 (third edition, Martinus Nijhoff, Dordrecht, 1972). These proceedings followed a previous case also arising out of the 1902 award, the Argentine-Chile Frontier case of 24 November 1966, 15 UNRIAA 109, 38 ILR 10. That case is also known as the Palena case. The Tribunal did not hold hearings in the 1995 proceedings.

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to two (Galindo Pohl and Benadava) laid down the course of the frontier, to be demarcated by the Expert Geographer appointed by the Tribunal. On 31 January 1995 Chile lodged with the Tribunal an application for revision and subsidiary application for interpretation and directions as to the manner of execution, in respect of the judgment of 21 October 1994. The Tribunal’s judgment of 13 October 1995 dismissed the request for revision and the subsidiary request for interpretation. This Chapter discusses the section of the judgment (paragraphs 128 to 134) that deal with the request for interpretation of the 1994 judgment. The request for revision is examined in Chapter 6 § 6.2 below. The 1994 judgment commenced its legal reasoning with a long discourse on the relationship that existed between the 1994 proceedings and the earlier proceedings of 1902. That award had been accepted by the parties as res judicata and was not subject to any form of proceeding by way of revision, appeal or nullity (paragraph 63). The Tribunal explained that it was an autonomous body set up by the special agreement of 1991. It was called upon to decide the course of the frontier in one sector of that frontier and its decision ‘must be taken on the basis of the Award of 1902, which the Tribunal must interpret and apply in accordance with international law. In reaching its decision the Tribunal is not limited to the text of the Award, but may apply any act or instrument of international law binding upon the parties’ (paragraph 65). The Tribunal pointed out that the parties had not challenged the authority of the 1902 award as res judicata, and accordingly had recognized that its provisions were legally binding on them. The judgment goes on to explain that the force of an international judgment as res judicata ‘relates primarily to its operative part (dispositif ), that is to say that part in which the Tribunal rules on the dispute and establishes the rights and obligations of the parties’. However, the Tribunal continued, relying on the Chorzów Factory (Interpretation) and Anglo-French Continental Shelf (Revision and Interpretation) cases, that jurisprudence has likewise accepted that those propositions contained in the grounds of the judgment which constitute the necessary logical antecedents to the operative part have the same binding force as the latter. The meaning of the terms used in an arbitral award also forms part of the res judicata (paragraph 70). The Tribunal found ‘guidelines’ for the interpretation of the 1902 award in the 1966 case: ‘The interpretation of a judgment involves not only precisely dening the text of the operative part of the judgment, but also specifying its scope, meaning and purpose, based on the considerations of the judgment.’ Applying to the 1902 award the basic principle of interpretation that a text must be interpreted in a manner that produces effects that are in accordance with international law rather than at variance with it, the Tribunal said:

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In the case of international judgments, whose legal validity is not in question and which have the force of res judicata, these must be so interpreted as not to lead to the result that the decision of the judge or arbitrator is found to have been given in violation of international law. Thus, in fullling its judicial role, a tribunal charged with interpreting a legal instrument must not only ensure that its decision has the support of and conforms with international law, but it must also exclude any possibility of producing results contrary to international law (paragraph 76).

That constituted part of the introduction to the main factual dispute that was remitted to the 1992 Tribunal. The application of those principles was the function of the 1994 judgment and is therefore not directly relevant to this book. The 1995 judgment incorporated those general observations on interpretation in its section on interpretation (1995 judgment, paragraph 129). In addition, article 39 of Annex I, Chapter II, of the Tratado de Paz y Amistad of 1984 was part of the title of jurisdiction for the Arbitral Tribunal. By that provision, unless the parties agreed otherwise, any disagreement arising between them with regard to the interpretation or manner of execution of the arbitral judgment may be submitted by either party for decision to the tribunal which handed it down. Chile’s application for interpretation recognized that at the time when the request was lodged there was no dispute between the parties with regard to the interpretation of the 1994 judgment. Chile was contending, however, that disagreement ‘might well arise as a result of the transmission which the Tribunal may be disposed to make of the request lodged by one of the Parties concerning the interpretation of the Judgment with a view to its execution in a prompt and proper manner’. Chile added that the ‘request for an interpretation is made in the terms indicated, and it is requested that it be transmitted to the other Party, in order that the latter may indicate whether or not it is in agreement with the foregoing interpretations set out by Chile in this Submission’ (paragraph 138). However, contrary to Chile’s expectations, Argentina in its written observations simply stated that no disagreement had arisen and requested the Tribunal to dismiss in its entirety the so-called subsidiary request for an interpretation (paragraph 13). This led the Tribunal to review the law governing requests for interpretation of a judgment (paragraphs 128 to 137). The Tribunal postulated that ‘it is a requirement of international jurisprudence that, in order for a request for the interpretation of a judgment to be admissible, there must be disagreement between the Parties’. It referred to the Chorzów Factory (Interpretation) and the Asylum (Interpretation) cases, and went on to say that ‘the question posed must . . . be capable of resolution by interpretation’. It then adduced the international jurisprudence on the interpretation of treaties, that the Tribunal’s task is to revise the treaty concerned and not to change it. ‘Following these precedents, this Tribunal

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can state that, in virtue of Chile’s . . . request . . . it is entitled to interpret its Judgment but not to change it’. It continued that the case-law has made it clear that interpretation of a judgment cannot go beyond the scope of the judgment itself. Finally, ‘the interpretation must be sought in respect of a specic expression or paragraph, and cannot be requested for the judgment in general’ (paragraphs 133 to 137). Applying these principles to the details of Chile’s request, the Tribunal resolved to dismiss the subsidiary request for interpretation. 5.9. The Eritrea-Ethiopia Boundary Delimitation (2002)22 By the agreement between the Governments of Eritrea and Ethiopia of 12 December 2000 the parties agreed that a neutral Boundary Commission composed of ve members should be established with a mandate to delimit and demarcate the colonial treaty border based on pertinent colonial treaties (1900, 1902 and 1908) and applicable international law. The agreement expressly provided that the Commission would not have the power to make decisions ex aequo et bono. Article 28 of the Commission’s Rules of Procedure addressed the interpretation of the decision. It provided that within thirty days after receipt of the decision on delimitation or the decision promulgating the demarcation either party, with notice to the other, might request the Commission to give an interpretation of the decision. That interpretation was to be given in writing and the interpretation would form part of the decision. Article 29 of the Rules dealt with the correction of the decision, along similar lines. There is nothing in the Rules about the possible revision of either decision. On 13 April 2002 the Commission published its decision delimiting the border and set in motion the process of demarcation to implement the boundary decision. On 13 May 2002 Ethiopia led a Request for Interpretation, Correction and Consultation. In explanation of its request, Ethiopia stated that certain issues as set out in the request were clearly appropriate for the Commission’s action under the Rules of Procedure. Other issues had been deferred for resolution during the demarcation process. In Ethiopia’s view many such issues could

22

UN doc. S/2002/423. 15 April 2002 (Decision), S/2002/732, 24 June 2002 (Interpretation); 41 ILM 1057 (2002). The Boundary Commission was composed of Sir E. Lauterpacht (President), Ajibola, Reisman, Schwebel, Sir A. Watts. The International Bureau of the Permanent Court of Arbitration provided registry services. Following continued frustration by both parties of the demarcation process, the Boundary Commission issued a statement on 27 November 2006 indicating its intention to proceed with the demarcation using modern techniques. See docs. S/2006/992, 15 December 1006, S/2007/33, 11 January 1007 and S/RES/1741, 30 January 2007.

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best be decided by the Commission once factual information obtained from eld work was available and the views of the parties had been considered. Thus, deferral of certain matters from the delimitation to the demarcation phase of the Commission’s work was highly appropriate. However, ‘Should Ethiopia’s understanding of the Commission’s decision with respect to deferral of certain issues for decision during the demarcation process be in error, this request is intended to raise such issues as matters for resolution under Articles 29 and 30’. In its decision of 24 June 2002, the Boundary Commission found that the request appeared to be founded on a misapprehension regarding the scope and effect of the relevant articles of the Commission’s Rules of Procedure. The facility accorded to the parties to request the Commission to give an interpretation of the decision may only be invoked when the meaning of some specic statement in the decision is unclear and requires clarication in order that the decision should be properly applied. The concept of interpretation does not open up the possibility of appeal against a decision or the reopening of matters clearly settled by a decision. The Commission through its president had already stated ‘that the provisions of Articles 28 and 29 of the Rules of Procedure neither allow substantive amendment nor affect the binding quality of the Decision as rendered on 13 April 2002. Re-argument of the case is not permitted.’ In this respect, the Commission was adhering to the authoritative views on the limits of interpretation expressed by the Permanent Court in the Chorzów Factory (Interpretation) case and by the Arbitration Tribunal in the Anglo-French Continental Shelf case. ‘Interpretation is a process that is merely auxiliary, and may serve to explain, but may not change, what the Court has already settled with binding force as res judicata’ (Decision paragraph 16). The Commission did not nd in any of the items listed in the Ethiopian request anything that identied an uncertainty in the decision that could be resolved by interpretation at that time. Nor was any case made out for revision. In addition, the conclusions of the request were not so expressed as to invite the Commission to interpret or revise the decision in any specic respect by reference to applicable considerations of international law or the actual terms of the relevant articles of the Rules of Procedure. Accordingly, the Commission concluded that the Ethiopian request was inadmissible and would take no further action on it. The request would, however, remain on the Commission’s record as a statement of Ethiopia’s views on the matters mentioned in it. Eritrea’s response of 14 June 2002 would also remain on the record as a statement of Eritrea’s views on the matters raised in Ethiopia’s request. To the extent that the Commission might deem appropriate, some of those matters might be considered further during the demarcation process, pursuant to the original decision.

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5.10. The Iron Rhine (IJzeren Rijn) Railway Arbitration (Belgium/the Netherlands, 2005)23 The Arbitration Agreement of 22 and 23 July 2003 referred to an arbitral tribunal a number of questions arising out of railway communications between Antwerp and the Rhine Basin in Germany and Dutch legislation for the protection of the environment. The agreed Rules of Procedure contained provisions for the interpretation of the award within sixty days of its receipt, on a request by either party with notice to the other (Article 23), and for the correction of the award, likewise within sixty days of its receipt, again at the request of either party with notice to the other. The Arbitral Tribunal rendered its award on 24 May 2005. On 25 July 2005, Belgium led two applications with the Registry. One asked for the interpretation of three passages in the award; the second was a request for the correction of one word in the reasoning of the award. In the application for interpretation, referring to separate parts of the award, the rst two requests commenced with the words ‘Should the Award be interpreted as meaning . . .?’ The third request was worded differently: ‘Should the Tribunal’s ruling on the apportionment of costs . . . be interpreted as laying with Belgium the costs . . .?’ The application continued with Belgium’s interpretations of the passages in question. In written comments, the Netherlands gave its interpretations of the passages in question. In a pronouncement of 20 September 2005, which presumably has the status of an order, the Tribunal observed that it had examined carefully the contentions of each of the parties. At the same time, it noted that it was for the Tribunal to interpret how the award was to be understood, in the light of its own intentions at the time of rendering the Award. The paragraphs which followed thus did not respond to the various observations and comments of the parties but rather constituted an authoritative interpretation by the Tribunal of its own award, under article 23 (1) of the Rules of Procedure. With regard to the correction, the Netherlands concurred with Belgium’s request. In a pronouncement of 20 September 2005, which presumably has the status of an order, the Tribunal found that this correction should be made. Both these instruments are practical applications of the general principle applicable in all cases of this character, that in interpreting an award the tribunal is not bound by any formula proposed by the parties but is free to make its own interpretation.

23

PCA website. The arbitral tribunal was composed of Judge Higgins (President), Schrans, Judge Simma, Soons, Judge Tomka. The International Bureau of the Permanent Court of Arbitration provided registry services.

CHAPTER SIX

INTERNATIONAL CASE LAW II – REVISION, RECOURSE

6.1. The Continental Shelf Delimitation between Libya and Tunisia (1982–1985)1 As described in Chapter 5 § 5.4 above, on 25 November 1978 Tunisia led in the Registry of the International Court of Justice a special agreement with Libya. The special agreement asked the Court to render a judgment on the principles and rules of international law which may be applied for the delimitation of the area of the continental shelf appertaining to Tunisia and the area of continental shelf appertaining to Libya. The principal element of the Court’s decision that led to the proceedings in revision and in interpretation was in paragraph C of the operative clause of the 1982 judgment as quoted in the previous chapter. On 27 July 1984 Tunisia submitted an application instituting proceedings requesting the revision of that part of the operative clause of the 1982 judgment that related to the rst sector, the interpretation of both parts of that operative clause, and the correction of an alleged error. This was the rst request for the revision of a judgment on the basis of Article 61 of the Statute before either the Permanent Court or the present International Court of Justice. It was also the rst, and so far the only instance of a multiple request for revision of one part of the judgment, the interpretation of that and another part of the judgment, and the correction of an alleged error in the impeached judgment. The operative clause of the impeached judgment divided the delimitation line into two sectors, and the central issue of the second case was the exact location of the turning point where the two sectors met. The Court delivered its single judgment on that application on 10 December 1985.2 After the general

1 2

For particulars of this set of proceedings see Ch. 5 fn. 10 above. ICJ Rep. 1985 192. Eight of the judges who participated in the 1982 judgment took part in the 1985 judgment. One of the judges ad hoc in 1985 had been a member of the Court in 1982, and the second had been Registrar on that occasion. Of the fourteen judges who heard the case in 1985 nine had been directly involved in the original judgment of 1982. One must presume that to a great extent the 1985 Court was inuenced

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examination of the admissibility of the Tunisian application formulated in this way the Court rst dealt with the revision issue before going on to deal with the questions of interpretation. It seems that the reason for treating the two major questions in this way is that, as will be seen, the Court found that some of the reasoning on the question of the admissibility of the application in revision claried certain matters and so facilitated the Court’s task on the request for interpretation. In that judgment, after dealing with the admissibility of the application in this case as a whole, the Court turned rst to the request for revision. Interpreting Article 61 of the Statute, the Court explained that it required a two-stage procedure. The proceedings for revision would be opened by a judgment declaring the application admissible on the grounds stipulated in the Statute. Article 99 of the Rules provides expressly for proceedings on the merits of the application in the event that, by its initial judgment, the Court nds it admissible (paragraph 8). Most of this part of the judgment deals with two aspects of Article 61. The rst was the application to the facts of the case of the expression in Article 61: the discovery of a fact ‘which was, when the judgment was given, unknown to the Court and also to the party claiming revision’ and the related question of whether the claimant State had acted with all due diligence. The second was the concept that the fact the discovery of which is relied on must be ‘of such a nature as to be a decisive factor’. The Court started with an important statement relating the rst requirement to the pleadings in the original case: So far as knowledge of the fact in question could be derived from the pleadings and material submitted to the Court in the proceedings 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 [paragraph 19].

On that basis the Court analysed the Tunisian request for revision, which it found related to the co-ordinates dening the boundary of Libyan concession No. 137. Closely examining the pleadings in the original case, the Court found that the fact that the concession boundary co-ordinates were obtainable by

by the personal knowledge and recollections of the majority of colleagues who had been directly involved in the 1982 proceedings. For the proceedings in interpretation and correction in 1985, see Ch. 5 § 5.4 above.

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Tunisia, and the fact that it was in its own interest to ascertain them, signied that one of the essential conditions of admissibility required by Article 61 of the Statute, namely ignorance of a new fact not due to negligence of the party claiming revision, was lacking. In view of this conclusion, there was no need to enquire into the question whether the application for revision was made within six months of the discovery of the new fact of the co-ordinates, as required by paragraph 4 of Article 61 of the Statute (paragraph 28). This led the Court to look into 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 explained that strictly speaking, once it is established that the request for revision fails to meet one of the conditions for admissibility, the Court is not required to go further and investigate whether the other conditions are fullled. However, in the special circumstances of the present case, in which the request for revision was accompanied by a request for interpretation, the Court found it useful to consider also whether the fact of the concession coordinates was ‘of such a nature as to be a decisive factor’. The Court considered that it should deal with that aspect of the admissibility of the request for revision before turning to the requests for interpretation (paragraph 29). The judgment then embarks upon a detailed discussion of the meaning and scope of the relevant part of the reasoning of the 1982 judgment and its reection in the operative clause. From this the Court concluded that the reasoning was wholly unaffected by the evidence produced in the revision proceedings as to the boundaries of Concession No. 137. The judgment recognized that had that fact been known the Court might have been more precise in its 1982 judgment. However, the judgment states that ‘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 specic in its decision; it must also have been a “fact of such a nature as to be a decisive factor”. So far from constituting such an act the details of the correct co-ordinates of Concession No. 137 would not have changed the decision of the Court as to the rst sector of the delimitation’ (paragraph 39). Accordingly the Court found that the application for revision of the 1982 judgment was not admissible according to the terms of Article 61 of the Statute (paragraph 49), with the rst operative provision to that effect. Nevertheless the reasoning on this part of Tunisia’s case was not without inuence on the interpretation part of the case. As the Court said, that examination of the meaning and scope of the 1982 judgment for the purposes of its decision on the admissibility of the application for revision considerably simplied the Court’s task in dealing with Tunisia’s subsidiary request for the interpretation of the 1982 judgment as regards the rst sector of the delimitation line (paragraph 41).

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The remainder of this judgment deals with the requests for interpretation and for the correction of an error and is examined in Chapter 5 § 5.4 above. 6.2. The Laguna del Desierto Arbitration (Argentina/Chile, 1994–1995)3 The origin of this impeached award of 1994 is described in § 5.8 above. After delivery of the original arbitral judgment of 21 October 1994 Chile, on 31 January 1995, lodged with the Tribunal an application for revision and a subsidiary application for interpretation and directions as to the manner of execution, in respect of the judgment of 21 October 1994. The Tribunal’s judgment of 13 October 1995 dismissed the request for revision and the subsidiary request for interpretation. This Chapter discusses the section of the judgment that deals with the request for revision of the 1994 judgment (paragraphs 17 to 127). The governing text is Annex I, Chapter II, Article 40, of the Tratado de Paz y Amistad of 1984. By that, either party may request revision of the judgment from the tribunal which handed it down, provided that such request is made before expiry of the period xed for its execution, where the judgment has been given wholly or in part in consequence of an error of fact which resulted from an act or document of the proceedings. The Tribunal stressed that its revision-competence was limited to errors of fact. ‘Hence there can be no question of a claim for revision in reliance on alleged errors of law’ (paragraph 20). In its judgment of 13 October 1995 the Arbitral Tribunal rst discussed the provision in the Rules of Procedure that the error must have resulted from an act or document of the proceedings. It said: That is a characteristic typical of revision proceedings and one of the features which clearly distinguishes such proceedings from appellate proceedings. In the latter a court is entitled to make good any error of fact or law contained in the judgment under appeal. It may also re-examine the evidence, correct the original reasoning and amend the decision, replacing it by a fresh decision. By contrast, under the revision procedure . . . the tribunal has no power to correct errors of law, or to re-examine the evidence, or to alter the reasoning on which the judgment is based, or to adopt denitions of terms differing from those used in the judgment. Under the revision procedure all that the tribunal may do is to amend the judgment in so far as it was given in consequence of an error resulting from an act or document of the proceedings. Thus, in every case where revision is sought, the tribunal must identify the act or document which gave rise to the request. ––– The judgment in the present arbitral proceedings is not susceptible of appeal . . . “The judgment shall be binding on the Parties, nal and not subject to appeal” . . . We must now analyse, in the light of the foregoing considerations, the “errors of fact” relied on by Chile in support of its request for revision of the Judgment [paragraphs 21 to 24].

3

For particulars of these proceedings, see Chapter 5 § 5.8 footnote 21 above.

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This led the Tribunal to an examination of the general question of errors in a judgment: In international law there are two types of error: errors of fact and errors of law. The former relate to questions of fact, the latter to questions of law. An error can only be one of fact or of law. Tertium non datur. It follows that the law does not admit of an intermediate or mixed category of “defects” . . . “errors of fact which are the result of errors of law” or “errors of fact which are the result of defects in the reasoning of the Tribunal” . . . Chile recognizes . . . that the grounds raised by it are errors of law and that ‘had the relevant remedies existed’ it would have been able to appeal against the Award. Such recognition is in itself sufcient, having regard to the terms of Article 40 of Chapter II of Annex I to the 1984 Treaty, to entitle this Tribunal to dismiss a claim to revision of the Judgment founded on such alleged errors [paragraph 27].

Nevertheless the Tribunal decided to deal with a series of Chilean contentions of errors in different parts of the 1994 Judgment. It found that some of the alleged errors of fact were actually allegations of errors in law and as such not within the Tribunal’s jurisdiction. After exhaustive analysis it reached the conclusion (paragraph 127) that none of the alleged errors of fact constituted a ground for revision of the 1994 judgment. Accordingly, by four votes to one (Benadava) it dismissed the request for revision. 6.3. Revision in the Application of the Genocide Convention case (2003)4 On 24 April 2001 the Federal Republic of Yugoslavia (FRY) as it was then known (now known as Serbia) led a request for the revision of the Court’s judgment of 11 July 1996 in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v Yugoslavia).5 That was a judgment by which the Court dismissed a series of preliminary objections raised by Yugoslavia and resumed the proceedings on the merits.6 The difculties, legal and political, of this case mirror some of the legal problems posed by the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY) as a party to the title of jurisdiction invoked in this case, namely the Convention on the Prevention

4

5

6

ICJ Rep. 2003 7. Of the thirteen judges who decided the revision case, six had heard the 1996 case. For the circumstances attending the institution of these revision proceedings, see the judgment on the merits (note 6 below), paras. 26, 28. ICJ Rep. 1996–II 595. For this case see 1993 3 (Provisional Measures), ibid. 325 (Further Provisional Measures, 1997 243 (Counter-claims); 2001 572 (Withdrawal of Counter-claims). In addition to the case brought by Bosnia-Herzegovina, on 2 July 1999 Croatia instituted similar proceedings against Serbia & Montenegro. Preliminary objections have been led. Those proceedings are pending at the time of writing. The Court delivered its nal judgment on the merits, closing the case, on 26 February 2007.

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and Punishment of the Crime of Genocide of 1948.7 That case was instituted by application led by Bosnia & Herzegovina on 20 March 1993 against the State then known as the SFRY (Serbia and Montenegro). On 22 September 1992 the General Assembly, on the recommendation of the Security Council, adopted resolution 47/1 in which in relevant part it considered that the Federal Republic ‘cannot continue automatically the membership of the SFRY in the United Nations; and therefore decides that the FRY should apply for membership in the United Nations . . .’. After a change of government and of regime in Yugoslavia, on 27 October 2000 the FRY applied for membership in the United Nations and on 1 November 2000 the General Assembly, on the recommendation of the Security Council, adopted resolution 55/12 admitting it to membership of the United Nations. This decision affected both of the underlying aspects of the legal background of this case, namely the standing of the FRY as a party to the Statute as from 1 November 2000, and its standing as a party to the Genocide Convention as from the same date. It did nothing to affect the respondent’s standing in relation to both aspects in the period between 22 September 1992 and 1 November 2000. In that period resolution 47/1 was the governing text in the United Nations context. To make matters more complicated, on 29 April 1999 the FRY instituted proceedings against ten States members of NATO – Belgium, Canada, France, Germany (the Federal Republic), Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States of America – alleging violations of the Genocide Convention. On the same date it requested the indication of provisional measures. In a series of ten orders of 2 June 1999 the Court rejected the request for provisional measures in eight of these cases, continuing with the proceedings. In the cases against Spain and the United States it found that the absence of jurisdiction was manifest (inter alia owing to established reservations to the compromissory clause of the Genocide Convention) and removed those two cases from the General List. The remaining eight respondents raised preliminary objections. In a series of eight judgments of 15 December 2004 the Court concluded that at the time of the institution of these proceedings Serbia and Montenegro did not have access to the Court under Article 35 of the Statute and found that it had no jurisdiction to entertain the claims.8

7 8

78 UNTS 277. The Legality of Use of Force cases, provisional measures phase, ICJ Rep. 1999, 124–916; preliminary objections phase, 2004 279–1207. The citations here are taken from the judgment in the case brought against Belgium (ICJ Rep. 2004 279).

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The background of the issue raised in the Revision case was the status of the respondent, today Serbia, as a party to the Statute of the Court and as a separate issue its status as a party to the Genocide Convention. Those issues have arisen in consequence of different decisions of the United Nations General Assembly on the participation of that country in the work of different organs of the United Nations on the one hand, and the change in the name and structure of the respondent State on the other. The issue of the respondent’s standing has been raised in the different phases through which this case has passed – provisional measures of protection in 1993, preliminary objections, to the jurisdiction and to the admissibility of the case in 1996, these revision proceedings in 2003, and nally in the merits phase. The issue has also arisen in some other action initiated by the respondent in the Court; a formal decision on which appeared in the Court’s decision on the merits. This complex background makes it necessary to outline in greater detail how these two interconnected background issues have appeared in the Court proceedings and their impact on the problem of revision. On 4 May 2001 the respondent submitted a document entitled Initiative to the Court to Reconsider ex ofcio Jurisdiction over Yugoslavia. In this document the present FRY argued that it had not been a party to the Statute until its admission to the United Nations in November 2000 and that it had not been and still was not a contracting party to the Genocide Convention. Its notication of accession to that Convention containing a reservation to the compromissory clause, Article IX, was deposited with the Secretary-General of the United Nations on 8 March 2001. The FRY asked the Court to suspend the proceedings on the merits of the case brought by Bosnia & Herzegovina until a decision was reached on this Initiative. After some interim correspondence and a meeting of the parties with the President of the Court, on 12 June 2003 the Registrar informed the parties that the Court had decided that it could not accede to the request to suspend the proceedings until a decision was rendered on the jurisdictional issues. However, the respondent would be free to present further argument on jurisdictional questions during the oral proceedings on the merits. The question was accordingly argued in those oral proceedings.9 In the application for revision of the 1996 judgment the FRY contended that there were newly discovered facts of such a character as to lay the 1996 judgment open to revision. As stated, the application for revision was led on 24 April 2001 and was entered in the Court’s General List as a new

9

On the opening of the oral proceedings in the preliminary objections phase the documents of the written proceedings were made available to the public. That includes the papers relating to this Initiative. They can be accessed on the Court’s website.

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case.10 The claim for revision was based on the discovery of a ‘new fact’, namely Yugoslavia’s admission to the United Nations as a new member on 1 November 2000 following General Assembly resolution 55/12. In its nal form that submission was that there were newly discovered facts of such a character as to lay the 1996 judgment open to revision under Article 61 and therefore the application for revision was admissible. The application was circulated in the usual way. Bosnia & Herzegovina led written observations on the admissibility of the application, as contemplated by Article 90 of the Rules of Court. The Court decided that a second round of written pleadings was not necessary. Public hearings were held and the judgment was rendered on 3 February 2003 – the rst judgment since the establishment of the Permanent Court in 1921 dealing exclusively with a question of the revision of a previous judgment in the same case. The peculiarity of this case, however, is that the impeached judgment was an interlocutory judgment on preliminary objections, the principal proceedings in that case being pending.11 This gave the Court the opportunity to lay out clearly how it will treat an application for revision. The Court rst explained the ‘two-stage procedure’ in cases of requests for revision. After quoting Article 61 of the Statute the judgment continues: Article 61 provides for revision proceedings to open with a judgment of the Court declaring the application admissible on the grounds contemplated by the Statute; Article 99 of the Rules makes express provision for proceedings on the merits if, in its rst judgment, the Court has declared the application admissible. ––– The rst stage of the procedure for a request for revision of the Court’s judgment should be “limited to the question of the admissibility of that request” – – –. Therefore, at this stage the Court’s decision is limited to the question whether the request satises the conditions contemplated by the Statute – – – [paragraphs 13 to 16].

The judgment then sets out the conditions contemplated by Article 61, in the following terms:

10 11

Seven of the judges who participated in the 2003 case had been members of the Court who had decided the rst. Neither of the judges ad hoc of 1996 sat in 2003. This is the rst instance of a request for the revision of an interlocutory judgment, and the second instance in which an interlocutory judgment has been impeached and an alteration requested. For the rst instance of this, the request for the interpretation of a judgment on preliminary objections in the Cameroon v Nigeria case, see Ch. 5 § 5.5 above. As in that case, this revision case required the complete replacement of the relevant operative clause of the impeached judgment.

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(a) the application should be based upon the “discovery” of a “fact”; (b) the fact, the discovery of which is relied on, must be “of such a nature as to be a decisive factor”; (c) the fact should have been “unknown” to the Court and to the party claiming revision when the judgment was given; (d) ignorance of this fact must not be “due to negligence”; and (e) the application for revision must be “made at latest within six months of the discovery of the new ‘fact’ and before ten years have elapsed from the date of the judgment” (paragraph 16). The Court concluded this introduction with the observation that an application for revision is admissible “only if each one of the conditions laid down in Article 61 is satised. If any one of them is not met, the application must be dismissed” (paragraph 17). Of this enumeration of the conditions of Article 61, point (e) is open to query. Our reading of Article 61 in light of the general legislative history of the evolution of what became Article 61 of the Statute of the Permanent Court, is that there are two temporal conditions, each one reacting to a different set of hypotheses and performing different functions, namely (e) the application must be made ‘at the latest within six months of the discovery of the new fact’ and in addition, (f) the application must be made within a xed period from the date of the judgment. In the Statute that period is xed at ten years from the date of the judgment. The rst time element apparently has as its object to prevent the discovery of a new fact from prejudicing the continued application of the obligations of the judgment. The second time element is directed at preserving the stability of the jural arrangements established for the parties by the impeached judgment. It is open to question whether either of these temporal factors is essential to any revision process, and there is nothing xed about this in general international arbitration processes. It is to be noted that at different times in the legislative process different proposals have been advanced regarding each of these time limits, making it clear that the one is not linked to the other, and that either or both can be dropped without affecting the general conception of revision. After a lengthy account of different aspects of the relations of ‘Yugoslavia’ with the United Nations the judgment examines whether the FRY was relying on facts which fell within the terms of Article 61 of the Statute (paragraph 65). The Court would begin by observing that, under the terms of Article 61, paragraph 1, of the Statute, an application for revision of a judgment may be made only when it is “based upon the discovery” of some fact which, “when the judgment was given”, was unknown. These are the characteristics which the “new” fact referred to in paragraph 2 of that Article must possess. Thus both paragraphs refer to a fact existing at the time

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when the judgment was given and discovered subsequently. A fact which occurs several years after a judgment has been given is not a “new” fact within the meaning of Article 61; this remains the case irrespective of the legal consequences that such a fact may have [paragraph 67].

In this case, the admission of the FRY into the UN occurred on 1 November 2000, ‘well after the 1996 Judgment’. The Court accordingly concluded that the admission could not be regarded as a new fact within the meaning of Article 61 capable of founding a request for revision of that judgment (paragraph 68). The judgment then analyses Yugoslavia’s standing vis-à-vis the Statute of the Court and found that the initial resolution 47/1 of 1992 did not affect the FRY’s right to appear before the Court under the conditions laid down by the Statute. Nor did it affect the position of the FRY in relation to the Genocide Convention. To terminate the situation created by resolution 47/1 the FRY had to submit a request for admission to the UN. All these elements were known to the Court and to the FRY at the time when the judgment was given (paragraph 70). The judgment concludes: It follows from the foregoing that it has not been established that the request of the FRY is based upon the discovery of “some fact” which was “when the judgment was given, unknown to the Court and also to the party claiming revision”. The Court therefore concludes that one of the conditions for the admissibility of an application for revision prescribed by paragraph 1 of Article 61 of the Statute has not been satised [paragraph 72]. Article 61 of the Statute lays down further requirements which an application for revision of a judgment must satisfy in order to be admissible. However, the Court recalls that “once it is established that the request for revision fails to meet one of the conditions for admissibility, the Court is not required to go further and investigate whether the other conditions are fullled” [a reference to paragraph 29 of the judgment on revision in the Tunisia/Libya Continental Shelf case]. In the present case, the Court has concluded that no facts within the meaning of Article 61 of the Statute have been discovered since 1996. The Court therefore does not need to address the issue of whether the other requirements of Article 61 of the Statute for the admissibility of the FRY’s Application have been satised [paragraph 73].

Accordingly the FRY’s application for revision had to be rejected. The formal operative part of that judgment therefore simply found that the application for revision was inadmissible. That Application for Revision judgment had a forward reach into the proceedings on the preliminary objections in the Legality of Use of Force cases.12 In those cases the issue arose whether Yugoslavia’s admission to the United Nations by virtue of General Assembly resolution 55/12, 1 Novem-

12

See footnote 8 above.

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ber 2000, affected its status as a party to the Charter and the Statute. That matter had been raised in the revision proceedings when the Court had held that the admission into the UN in 2000 was not a new fact for the purposes of Article 61 of the Statute and in that respect the status of Yugoslavia had not been changed. In the preliminary objection proceedings in Legality of Use of Force the Court discussed the relevance of the Application for Revision judgment. There is no question of that Judgment possessing any force of res judicata in relation to the present case. Nevertheless, the relevance of that judgment to the present case has to be examined, inasmuch as Serbia and Montenegro raised, in connection with its Application for revision, the same issue of its access to the Court under Article 35, paragraph 1, of the Statute, and the judgment of the Court was given in 2003 at a time when the new development described above had come to be known to the Court (paragraph 80).

It explained that the Revision judgment was strictly limited to the question of admissibility according to Article 61 of the Statute. Accordingly the Court did not have to rule then on the question whether the legal consequences could legitimately be deduced from later facts. That is whether the admission to the United Nations affected the legal status of Yugoslavia when the proceedings were introduced against it (paragraph 87). The judgment explains that the Revision judgment did not entail any nding by the Court as to what Yugoslavia’s situation vis-à-vis the United Nations actually was: Given the specic characteristics of the procedure under Article 61 of the Statute, in which the conditions for granting an application for revision of a judgment are strictly circumscribed, there is no reason to treat the judgment in the Application for Revision case as having pronounced upon the issue of the legal status of Serbia and Montenegro vis-à-vis the United Nations. Nor does the judgment pronounce upon the legal status of Serbia and Montenegro in relation to the Statute of the Court (paragraph 90).

Against that background the issue arose again in the merits phase of the Application of the Genocide Convention case. In the judgment on the merits of this case of 26 February 2007 the Court proceeded to re-examine this issue at length and in that connection it addressed the principle of res judicata as noted in chapter 3 § 3.5 above. This examination required a detailed analysis of what had and what had not been decided in the 1996 judgment on the preliminary objections. In addition. the 2003 judgment on the request for revision was relevant. In paragraph 113 of that judgment the Court formulated its nding on this issue. For the purposes of the present case, it is thus clear that the Judgment of 2003 on the Application by the FRY for revision, while binding between the parties, and nal and without appeal, did not contain any nding on the question whether or not that State

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had actually been a Member of the United Nations in 1993. The question of the status of the FRY formed no part of the issues upon which the Court pronounced judgment when dismissing that Application.

In a document entitled ‘Initiative to the Court to consider ex ofcio Jurisdiction over Yugoslavia’ led on 4 May 2001 before dismissal of the application for revision, Yugoslavia had raised the issue in another way. On 12 June 2003 the Court decided that it could not accede to the request in the Initiative, but the respondent would be free to present further arguments on jurisdictional questions during the oral proceedings on the merits, which it did.13 In that way the issue came before the Court for decision in the merits phase. The Court nally concluded that, in respect of the contention that the respondent was not, on the date of the ling of the application instituting these proceedings in 1993, a State having the capacity to come before the Court under the Statute, the principle of res judicata precluded any reopening of the decision embodied in the 1996 judgment. That judgment settled the question with the force of res judicata, being quite specic on this point. The Court thus afrmed its jurisdiction (paragraph 140).

6.4. The Frontier Dispute between El Salvador and Honduras (1992–2003)14 On 10 September 2002 El Salvador led an application instituting proceedings for the revision of the judgment of 11 September 1992, given by an ad hoc Chamber of the Court formed to deal with the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening). On 18 December 2003 the Chamber formed to deal with the revision case delivered its judgment, nding that the application for revision was inadmissible. The original dispute between El Salvador and Honduras was brought before the Court, for determination by an ad hoc Chamber formed under Article 26, paragraph 2, of the Statute, by the ling of an agreement signed at Esquipulas, Guatemala, on 24 May 1986. By that agreement the parties agreed to request

13 14

Judgment on the merits, para. 35. ICJ Rep. 2003 392. For the formation of this Chamber, see ICJ Rep. 2002 618. For the original judgment, see ICJ Rep. 1992 351. The original Chamber formed under Art. 26 (2) of the Statute was composed of Judges Sette-Camara (President), Sir Robert Jennings, Oda, and as judges ad hoc – Valticos, Torres Bernárdez. Of these only Oda, nearing the end of his third and nal term of ofce as a member of the Court, and Torres Bernárdez (an attorney in private practice in Madrid) were alive when the application for revision was led.

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a Chamber of the International Court of Justice to delimit the boundary line in the zones or sections not described in Article 16 of the General Treaty of Peace of 30 October 1980 and to determine the legal situation of the islands and maritime spaces.15 In a long judgment of 11 September 1992 the Chamber delimited the boundary in six separate sections of the land frontier between the two countries, and made a series of ndings about several islands, about the Gulf of Fonseca, and about the waters outside the Gulf. This left the demarcation to the parties. The application for revision related to the sixth sector of the frontier, namely a point on the river Goascorán known as Los Amates, and the waters of the Gulf of Fonseca. Paragraphs 306 to 322 and operative paragraph 430 of the 1992 judgment deal with this sector of the land frontier. There is no doubt that the decision on the sixth sector came as a surprise to El Salvador which showed no sense of urgency in complying with it. In its application for revision, based on the alleged discovery of a new fact, El Salvador requested the Chamber to adopt a new boundary for the sixth sector, which it proceeded to delimit. The fact that the original judgment had been delivered by an ad hoc chamber of the Court brought into play for this case Article 100, paragraph 1, of the Rules of Court. By virtue of that provision, since the original judgment had been given by an ad hoc Chamber the request for its revision should be dealt with ‘by that Chamber’. However, that was not possible. With the delivery of its nal judgment on the merits in 1992 the ad hoc Chamber had completed its functions and ceased to exist. Moreover most of its members had passed away. Accordingly, El Salvador requested the Court to proceed to form a chamber that will hear the application for revision, bearing in mind the terms that El Salvador and Honduras had agreed upon in the special agreement of 24 May 1986. The Court proceeded to do this, and it duly formed a new ad hoc chamber to deal with this case.16 This chamber consisted of three members of the Court (following the previous chamber) and two judges ad hoc. In paragraphs 18 to 20 of its 2003 judgment the Chamber repeated verbatim what the Court had said earlier in the year regarding the requirements for

15

16

The reference to maritime spaces related to the Gulf of Fonseca and to the waters outside the Gulf. The Gulf of Fonseca had been the subject of a judgment by the Central American Court of Justice of 9 March 1917. VI Anales de la Corte de Justicia Centroamericana, Nos. 16–18 at 96 (1917), 11 AJIL 674 (1917). By virtue of decisions of the International Court and of the Chamber, Nicaragua was given permission to intervene in the Chamber case on the basis of Art. 62 of the Statute solely in respect of the decision on the legal regime of the waters of the Gulf of Fonseca. ICJ Rep. 1990 3 and 92. Because of that, the application for revision was formally communicated to Nicaragua ‘for information purposes’. 2004 judgment, para. 2. Nicaragua made no attempt to intervene in this case. ICJ Rep. 2002 618.

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admissibility of a request for the revision of a judgment. The Chamber then proceeded to apply those principles to the present case. One apparent argument of El Salvador was in limine that there was no need for the Chamber to consider whether the conditions of Article 61 had been satised. El Salvador based this argument on a statement in a letter from Honduras to the president of the Chamber by which Honduras reserved its right to require previous compliance with the 1992 judgment as a condition precedent to the admissibility of the request for revision. In a later letter Honduras had informed the President that it had decided not to ask for prior compliance with the 1992 judgment. El Salvador saw this as an acknowledgment of the admissibility of the application for revision. The Chamber went to some length to dismiss this contention (paragraphs 21 to 22): The Chamber observes rst that, in its letter of 29 October 2002, Honduras informed the President of the Court that it would “request that the Court make the admission of the proceedings in revision conditional on previous compliance with the judgment” and that accordingly it would “submit a formal petition” to that effect. However, Honduras never submitted that request and stated in its observations of 24 July 2003 . . . that it had “decided, on reection, not to ask the Chamber to require prior compliance with the terms of the Judgment”. Thus, Honduras’s conduct cannot be construed as implying a tacit acceptance of the admissibility of El Salvador’s Application for revision. Further, paragraph 3 of Article 61 of the Statute and paragraph 5 of Article 99 of the Rules of Court afford the Court the possibility at any time to require previous compliance with the terms of the judgment whose revision is sought, before it admits proceedings in revision; accordingly, even if Honduras had submitted a request to the Court to require previous compliance without awaiting the Chamber’s decision on the admissibility of El Salvador’s Application, the request would not have implied recognition of the admissibility of the Application. Finally, the Chamber notes that, regardless of the parties’ views on the admissibility of an application for revision, it is in any event for the Court, when seised of such an application, to ascertain whether the admissibility requirements laid down in Article 61 of the Statute have been met. Revision is not available simply by consent of the parties, but solely when the conditions of Article 61 are met [this possibly obscure passage reads in its authoritative French version – La voie de la revision ne saurait être ouverte du seul consentement des parties; elle l’est uniquement lorsque les conditions de l’article 61 sont réunies]. . . . the parties raise the question whether the Application for revision was properly made within the six-month time-limit stipulated in paragraph 4 of Article 61 of the Statute. They do acknowledge, however, that it was submitted within the ten-year time-limit provided for in paragraph 5 of that Article, specically, one day before the expiry of that timelimit. Honduras maintains nevertheless that, by proceeding in this fashion, the Applicant had shown procedural bad faith. That is denied by El Salvador (paragraph 35).

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However, given the substantive conclusion at which it had arrived, it was not necessary for the Chamber to ascertain whether the other conditions laid down in Article 61 were satised in this case [paragraph 59]. El Salvador’s rst fact on which it relied as a new fact within the meaning of Article 61 related to the avulsion of the river Goascorán. The Chamber analysed closely the 1992 Chamber’s reasoning on this point to reach the conclusion that the nding on the sixth sector of the frontier favourable to Honduras was largely based on El Salvador’s conduct during the nineteenth century. It did not matter whether or not there was an avulsion of the river. Even if avulsion were now proved and even if its legal consequences were those inferred by El Salvador, ndings to that effect would provide no basis for calling into question the 1992 decision. The facts asserted by El Salvador were not ‘decisive factors’ in respect of the 1992 judgment. This part of the judgment concludes: ‘Au vu de l’arrêt de 1992, la Chambre ne peut que le constater, indépendamment des positions prises sur ce point par les Parties au cours de la présente procédure’ [‘In light of the 1992 Judgment, the Chamber cannot but reach such a conclusion, independently of the positions taken by the Parties on this point in the course of the present proceedings’] (paragraph 40). The second ‘new fact’ on which El Salvador relied was the discovery of a further copy of a certain map to which the 1992 judgment had referred. The 2003 Chamber proceeded, as it had done in respect of the avulsion argument, to determine rst whether the alleged facts concerning this map were of such a nature so to be decisive factors in respect of the 1992 judgment (paragraphs 49 to 55). The Chamber concluded from its examination that the new facts alleged by El Salvador and a related report were not decisive actors in respect of the 1992 judgment. The Chamber then turned to a contention by El Salvador that the proper contextualization of the alleged new facts ‘necessitates consideration of other facts that the Chamber weighed and that are now affected by the new facts’. The Chamber agreed with the view that in order to determine whether the alleged new facts concerning the avulsion and concerning the map and the report fall within the provisions of Article 61, they should be placed in context. The Chamber had done this earlier in its judgment. The Chamber recalled that under Article 61 revision of a judgment can be opened only by ‘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’. Thus, the Chamber could not nd admissible an application for revision on the basis of facts which the applicant for revision does not allege to be new facts within the meaning of Article 61 (paragraph 58).

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The Chamber accordingly found that the application for revision was inadmissible. 6.5. Correction of a Judgment17 In the Revision and Interpretation phase of the Tunisia/Libya Continental Shelf case (§ 6.1 above), the possibility of making a simple correction to the original judgment was raised. The Court had this to say about correction: ‘The Court does, of course have the power to correct, in one of its judgments, any mistakes which might be described as ‘erreurs matérielles’. That power would not normally be exercised by way of a judgment, since the very nature of the correction of such an error excludes any element of contentious procedure; yet there is no reason why a judgment devoted to another purpose should not also deal with a request connected therewith for such a correction.’ However, in this case the Court found that Tunisia’s request related to an alleged error of a more substantial kind and in that way raised wider questions than whether a judgment should be the appropriate means for such correction.18 On the substance of Tunisia’s request, which the Court designated as ‘the rectication of an error’, the Court examined the Tunisian contention in depth. It found that Tunisia’s application proved in this respect to be based upon a misreading of the judgment, and had become without object. ‘There is therefore no need for the Court to examine the wider question of the correction of an error in a judgment.’19 Non-controversial misprints in the Court’s Reports are normally corrected through pink errata slips inserted into the Reports. No other notice of these appears in any other publication of the Court. The Permanent Court had a more permanent system of printing corrigenda in a later fascicle of its reports. As a curiosity it may be recalled that the International Law Commission has at least twice encountered difculties over the correct understanding of a passage in the authoritative text of a judgment in light of the second text. In 1956, in its work on the law of the sea, it noticed confusion in the nonauthoritative text of the judgment in the Fisheries case of 1951, so much so that a formal erratum was issued by the Court on 22 October 1956 followed by a reference in the Court’s Yearbook and an appropriate communication to

17 18 19

On this case, see Ch. 5 footnote 10 and footnote 1 above. ICJ Rep. 1985 192, 198 (para. 10). Ibid. 221 (para. 52).

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the parties.20 In 1964 the Commission experienced difculties over the phrase in the judgment of the Permanent Court in the Free Zones case véritable droit, rendered in English by the unusual expression actual rights. These difculties were only resolved by a careful comparison of the two texts, with the collaboration of the United Nations translators, and the Commission found a circumlocution for its immediate purposes.21 6.6. Awards: Reference to the International Court of Justice The cases considered in Chapter 5 and in this Chapter up to this section have all been cases in which the court or tribunal (but not necessarily the same bench personwise) that rendered the impeached judgment or award was asked to construe it or to revise it. Furthermore, the requests in all those cases invoked specic provisions in the constituent text or other basic instrument forming part of the title of jurisdiction in the initial case, permitting requests for interpretation or revision and regarding their admissibility. A new phenomenon is encountered in this and the following sections of this Chapter, where the International Court is requested to accept a reference from some other court or tribunal which had dealt with the case, whether for revision or for interpretation or for some other purpose such as a declaration of nullity. These are denominated here recourse cases. In the last half century States have developed a new method of impeaching an arbitral award that has been rendered after normal arbitral proceedings leading to a decision purportedly nal and binding. This is achieved through contentious proceedings in the International Court of Justice alleging the nullity or the invalidity of the impeached award. The Court’s jurisdiction in these cases is established in the usual way, on the basis of the consent ad litem of all the parties as required by Article 36, paragraph 1, of the Statute. Two cases of this nature led to the conrmation of the original award and the additional obligation of the losing party to comply with it as part of the obligation of compliance with the judgment of the International Court. A third case (possibly with some connection to the rst) is pending at the time of writing. The cases are the Arbitral Award made by the King of Spain on 23 December 1906 case between Honduras and Nicaragua and the Arbitral

20 21

ICJ Yearbook for 1956–1957 at page 125. See on this YBILC 1956/2 (doc. A/3159*) 267 (note 12); and YBILC 1964/1 736th meeting 80, 84. For the passage in question in the Free Zones case, see PCIJ Ser. A/B 46 (1932) at 147. Of course, no corrigendum for this was possible.

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Award of 31 July 1989 case between Guinea-Bissau and Senegal. The pending case is the Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea case, also connected with the King of Spain’s Award of 1906. The novelty lies in the following. All the preceding cases were instances of recourse in interpretation or in revision to the court or tribunal that had rendered the impeached decision, frequently though not always even the same or many of the same persons who had formulated that decision. The recourse was undertaken on the basis of the special jurisdiction of the Court according to Article 60 or Article 61 of the Statute and the corresponding Rules to give effect to those provisions. Each case had a regular place within the context of a single juridical system. The cases examined in this section are different. The recourse is from an arbitration – in the King of Spain case the arbitration that had taken place over half a century earlier – taking place within the context of one legal order to the International Court, a judicial organ operating within the context of an entirely different legal order. Furthermore, there was no provision in the basic texts of the arbitration envisaging any sort of appeal: indeed the award was to be nal and binding. In the euphoria of the nineteen-twenties following the commencement of the functioning of the Permanent Court of International Justice attention began turning toward the possibility of strengthening international arbitration by placing under the Court’s control certain functions open to abuse with the aim of thwarting an arbitration process as the settlement of an international dispute. Thus, the Institute of International Law at its New York Session of 1929 adopted a resolution on compulsory arbitration in which it suggested that special agreements to submit a dispute to arbitration should contain a provision for recourse to the Permanent Court over disputes as to the jurisdiction of an arbitral tribunal or disputes alleging excess of power.22 In the same year Finland raised in the Assembly of the League of Nations a proposal to confer on the Permanent Court appellate jurisdiction over arbitral tribunals, but nothing came of this.23 The International Law Commission picked up this idea in its initial treatment of arbitral procedure but this attracted strong opposition in the General Assembly and was replaced by the Model Rules as is described in Chapter 2, § 2.3 above.

22 23

Institute of International Law, Tableau général des Résolutions (1973–1956) 146 (Editions juridiques et sociologiques S.A., Basle, 1957). See M.O. Hudson, The Permanent Court of International Justice 1920–1942 435 (MacMillan, New York, 1943).

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The Arbitral Award of the King of Spain case24 Nicaragua has had troubled frontier relations with both its neighbours, Honduras to the north-east and the Atlantic, and Costa Rica to the south and the Pacic.25 On 7 October 1894 Honduras and Nicaragua concluded a Treaty by which they agreed on a procedure to settle all pending doubts and differences and to demarcate the boundary between them. A Mixed Commission was established to settle the boundary. Should the Boundary Commission fail to reach a friendly agreement on any point, the point or points on the boundary line not thus settled were to be referred to an arbitral tribunal for decision without appeal. The Mixed Boundary Commission was unable to agree on the boundary from a point on land to the Atlantic Coast, and that issue went to the arbitration of the King of Spain. In the award of 26 December 1906 the King of Spain xed the dividing line in question, for the most part favourable to Honduras. In the course of the process of demarcation, in March 1912 Nicaragua challenged the validity and binding character of the award. After a long period of disagreement on this, marked by several incidents and hostilities, the Organization of American States started to deal with the matter and on 21 July 1957 the parties reached an ambiguously worded agreement to submit the disagreement to the International Court of Justice. Relying on that agreement, and noting also that both parties had made declarations accepting the Court’s jurisdiction under Article 36, paragraph 2, of the Statute – the so-called ‘compulsory jurisdiction’ – Honduras led the application instituting these proceedings on 1 July 1958. As expressed in the nal submissions of the parties, Honduras asked the Court to declare that Nicaragua was under an obligation to give effect to the 1906 award. Nicaragua asked the Court to declare that the award did not possess the character of a binding arbitral award with the consequence that the parties were, in respect of their frontier,

24

25

ICJ Rep. 1960 192. For the original award of 1906, see XI UNRIAA 107. This award was in Spanish. The English translation given here, and used in the International Court, was originally published in 100 British and Foreign State Papers 1096 (1906–1907). The territory involved was a very large populated area, mostly jungle, including some 150 miles along the Atlantic (Caribbean) Coast of the South American Continent, a total area of some 4.5m acres. For a broad survey of the ins and outs of this prolonged dispute, see W.M. Reisman, “The Supervisory Jurisdiction of the International Court of Justice: International Arbitration and International Adjudication”, Academy of International Law, 258 Recueil des Cours 13, 253 (1999). In addition to the two cases with Honduras, there is a case pending with Costa Rica, the Dispute regarding Navigational Rights, ICJ Rep. 2005 165.

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in the same legal situation as before 23 December 1906. The proceedings followed their normal course. In the judgment of 18 November 1960 the Court found that the award was valid and binding and that Nicaragua was under an obligation to give effect to it. Nicaragua advanced three challenges to the 1906 award. Two of them were what might be regarded as external to the award itself – that the requirements of the 1894 Treaty were not complied with in the designation of the arbitrator, and that the 1984 Treaty had lapsed before the King of Spain had agreed to act as arbitrator. The Court analysed the development of each aspect to reject each of these two contentions. It then turned to Nicaragua’s main contention to the effect that the award was a nullity. There were three aspects: (a) excess of jurisdiction; (b) essential error; and (c) lack or inadequacy of reasons in support of the arbitrator’s conclusions. Nicaragua also contended that the award was in any case incapable of execution by reason of its omissions, contradictions and obscurities. The Court then gave its reasons for nding that the award would still have to be recognized as valid. Before doing so, the Court will observe that the Award is not subject to appeal and that the Court cannot approach the consideration of the objections raised by Nicaragua on the validity of the Award as a Court of Appeal. The Court is not called upon to pronounce on whether the arbitrator’s decision was right or wrong. These and cognate considerations have no relevance to the function that the Court is called upon to discharge in these proceedings, which is to decide whether the Award is proved to be a nullity having no effect [page 214].

The Court proceeded to examine – and dismiss – each one of Nicaragua’s complaints and contentions against the award to reach the virtually unanimous nding that the award was valid and binding. This judgment settled the century old dispute, with the further assistance of the Organization of American States. This was the rst instance of a boundary dispute affecting a relatively large area of populated land territory. Compliance with the award and with the Court’s judgment required meeting the desires of the population, not all of the members of which wished to be transferred from Nicaraguan sovereignty. These and other consequent administrative matters were amicably resolved with the assistance of the Inter-American Peace Committee.26

26

C. Schulte, Compliance with Decisions of the International Court of Justice 126 (Oxford University Press, Oxford, 2004).

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The Arbitral Award of 31 July 1989 case27 This dispute, between two neighbouring African countries that gained their independence in the great decolonization process of the 1960s, concerned the delimitation of their maritime zones, that is to say their areas of territorial sea, exclusive economic zone and continental shelf. The solution of that dispute depended on the interpretation of previous correspondence between the colonial powers, France and Portugal. By an arbitration agreement of 12 March 1985 the parties agreed to submit their dispute to arbitration. The Arbitral Tribunal was asked to decide two questions: (1) Does the Agreement concluded by an exchange of letters on 26 April 1960, and which relates to the maritime boundary, have the force of law in the relations between the parties? (2) In the event of a negative answer to that question, what is the course of the line delimiting the maritime territories appertaining to each party respectively? The decision was to include the drawing of the boundary line on a map. The Arbitral award of 31 July 1989 was ambiguous. It only gave an answer to the rst question and did not include a map. On that rst question it declared that the 1960 agreement ‘does not delimit those maritime spaces which did not exist at that date, whether they be termed exclusive economic zone, shery zone or whatever . . .’ but that the territorial sea, the contiguous zone and the continental shelf . . . are expressly mentioned in the 1960 Agreement and they existed at the time of its conclusion’. The award’s operative provision replied to the rst question that the 1960 agreement had the force of law in the relations between the two countries ‘with regard solely to the areas mentioned in that agreement, namely the territorial sea, the contiguous zone and the continental shelf. The straight line drawn at 240º is a loxodromic line.’ In view of this nding the Tribunal decided that it was not called upon to answer the second question and that there was no need to append a map showing the course of the boundary line. Guinea-Bissau did not accept that award, and on 23 August 1989 instituted proceedings against Senegal, concerning the existence and the validity of the arbitral award. Jurisdiction was based on the two countries’ declarations

27

ICJ Rep. 1991 53. This was preceded by provisional measures proceedings, ICJ Rep. 1990 64 (a pink errata slip was issued on 23 April 1990). For the arbitration of 1989, see XX UNRIAA 119. The Arbitral Tribunal was composed of Barberis (President), Judges Bedjaoui and Gros, with Torres Bernárdez as Registrar. The award was in French and Portuguese, and parts of it have been translated into English for inclusion in the ICJ’s judgment. The area of the Atlantic involved in this dispute was believed to be rich in oil.

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accepting the ‘compulsory’ jurisdiction under Article 36, paragraph 2, of the Statute. Senegal’s declaration of 2 December 1985 excluded disputes in regard to which the parties have agreed to have recourse to some other method of settlement; and disputes with regard to questions which, under international law, fall exclusively within the jurisdiction of Senegal. This was entitled the Maritime Delimitation between Guinea-Bissau and Senegal case. On 18 January Guinea-Bissau led a request for the indication of provisional measures on the ground of actions said to have been taken by the Senegalese Navy in the disputed area. The Court dismissed this request in its order of 2 March 1990. In the hearings on that request, Guinea-Bissau explained that the application instituting the proceedings brought a new dispute before the Court. The request for provisional measures was prompted by acts of sovereignty by Senegal which prejudiced both the judgment on the merits to be given by the Court and the maritime delimitation to be effected subsequently by agreement between the States. Those acts were the boarding of Japanese shing vessels holding a licence from Guinea-Bissau and subsequent prosecutions. There were also similar actions by the Guinea-Bissau authorities against Senegalese vessels shing in the same area under licence from Senegal. After establishing its prima facie jurisdiction sufcient to enable it to deal with the request for the indication of provisional measures, the Court, noting Senegal’s reservations to the jurisdiction, gave its description of the dispute then before it: Whereas the Application instituting proceedings asks the Court to declare the 1989 award to be “inexistent” or, subsidiarily, “null and void”, and to declare “that the Government of Senegal is thus not justied in seeking to require the Government of Guinea-Bissau to apply the so-called award of 31 July 1989”; whereas the Application thus asks the Court to pass upon the existence and validity of the award but does not ask the Court to pass upon the respective rights of the Parties in the maritime areas in question; whereas accordingly the alleged rights sought to be made the subject of provisional measures are not the subject of the proceedings before the Court on the merits of the case; and whereas any such measures could not be subsumed by the Court’s judgment on the merits. Whereas moreover a decision of the Court that the award is inexistent or null and void would in no way entail any decision that the Applicant’s claims in respect of the disputed maritime delimitation are well founded, in whole or in part; and whereas the dispute over those claims will therefore not be resolved by the Court’s judgment[.]

Accordingly, the Court dismissed the request for provisional measures. This distinction between the dispute before the Court, and the dispute which the impeached arbitral award determined, is fundamental, and points to an underlying weakness of this form of recourse from an arbitral award. The proceedings on the merits accordingly continued. On 12 March 1991, shortly before the opening of the hearings, Guinea-Bissau led a new application instituting proceedings. In that application Guinea-Bissau asked the Court to adjudge and declare what should be, on the basis of international

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law and of all the relevant elements of the case, including the future decision of the Court in the case concerning the arbitral award of 31 July 1989, the line (to be drawn on a map) delimiting all the maritime territories appertaining respectively to Guinea-Bissau and Senegal. The Court noted this and a declaration by Guinea-Bissau looking to the settlement of the dispute either by negotiation or by further proceedings in the Court. The judgment commences with a discussion of the Court’s jurisdiction. The Court noted from the pleadings on this issue that the parties were agreed that there was a distinction between the substantive dispute relating to maritime delimitation and the dispute relating to the arbitral award. Only the latter dispute was the subject of the proceedings and both parties accepted the position that these proceedings were not intended by way of appeal from the Award or as an application for revision of it. Thus, both Parties recognize that no aspect of the substantive delimitation dispute is involved. On this basis, Senegal did not dispute that the Court had jurisdiction to entertain the Application under Article 36, paragraph 2, of the Statute. In the circumstances of the case the Court regards its jurisdiction as established [paragraph 24]. In this respect, the Court would emphasize that, as the Parties were both agreed, these proceedings allege the inexistence and nullity of the Award rendered by the Arbitration Tribunal and are not by way of appeal from it or application for revision of it [paragraph 25].

The Court continued with a long quotation from page 214 of the judgment in the Arbitral Award of the King of Spain case as quoted above (paragraph 25). The Arbitral Tribunal had adopted the operative clause of the Arbitral Award by two votes (Barberis, Gros) to one (Bedjaoui). Bedjaoui appended a dissenting opinion, Barberis a Declaration in which he explained his reasons why he would have decided the case in such a way as would have covered the exclusive economic zone and the shery zone, in that way disposing of the whole dispute. In the International Court proceedings, Senegal contended that the application was inadmissible in so far as it sought to use the Barberis declaration for the purpose of casting doubt on the validity of the award. Senegal’s argument was that the declaration was not part of the award and that therefore any attempt by Guinea-Bissau to make use of it for that purpose was to be regarded as an ‘abuse of process’ (abus de procédure). The Court gave this contention short shrift. ‘Guinea-Bissau’s Application has been properly presented in the framework of its right to have recourse to the Court in the circumstances of this case.’ Accordingly, it did not accept Senegal’s contention that Guinea-Bissau’s Application, or the arguments used in support of it, amounted to an abuse of process’ (paragraph 27). This is in line with the Court’s general attitude of caution when faced with arguments based on some alleged procedural abuse. The Tribunal’s hearings in this case had taken place in private. It appears that arbitrator Gros, who took part in the Tribunal’s meeting when the vote

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was cast, was not present at the meeting at which the award was pronounced. On the basis of this Guinea-Bissau argued that this amounted to a recognition that the Tribunal had failed to resolve the dispute. The Court dismissed this somewhat unusual contention. It pointed out that there was no dispute that Gros had participated in the session at which the award was adopted. The award had thereafter been delivered to the parties in accordance with the relevant provision of the Arbitration Agreement. Gros’ absence from a meeting at which the award was read could not affect the validity of the award which had already been adopted (paragraph 29). More substantial was the contention that because of the Barberis declaration the award was not supported by a real majority, the declaration contradicting the vote. The Court gave its explanation of how it understood the declaration, and then came to the principle involved: Furthermore, even if there had been any contradiction . . . such contradiction could not prevail over the position which President Barberis had taken when voting for the Award. In agreeing to the Award, he denitively agreed to the decisions, which it incorporated, as to the extent of the maritime areas governed by the 1960 Agreement, and as to the Tribunal not being required to answer the second question in view of its answer to the rst. As the practice of international tribunals shows, it sometimes happens that a member of a tribunal votes in favour of a decision of the tribunal even though he might individually have been inclined to prefer another solution. The validity of his vote remains unaffected by the expression of any such differences in a declaration or separate opinion of the member concerned, which are therefore without consequence for the decision of the tribunal [paragraph 33].

The Court then examined the substantive contentions of Guinea-Bissau that the award was, as a whole, null and void, on the grounds of excès de pouvoir and of insufciency of reasoning. While critical (paragraph 41) of some aspects of the award, the Court found that the award was not awed by any failure to decide, that its reasoning, while succinct, was clear and precise (paragraph 43), and, rejecting all the arguments of irregularities, that the award was valid and binding on both parties (paragraph 64). The Court rejected all the contentions against the validity of the arbitral award, and concluded its judgment with its view that it was highly desirable that the elements of the dispute not settled by the 1989 award be resolved as soon as possible. Judge Mbaye, in his declaration appended to the judgment (at page 80), explained the signicance of this. The Court had been confronted with a serious question of jurisdiction. Citing an authoritative work written in the period of the Permanent Court,28 he said:

28

E. Borel, “Les voies de recours contre les sentences arbitrales”, Academy of International Law, 52 Recueil des Cours 75 (1935). This passage in Judge Mbaye’s

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. . . [I]t does not appear possible to consider that Article 36, paragraph 2, subparagraphs (a) and (b) “already provides a legal basis, sound and indisputable, for the jurisdiction of the Court”. Many other authors have asked themselves whether it does and some have responded in the negative. I share their view. I fail to see why the International Court of Justice should automatically constitute itself as a cour de cassation for all States having made declarations under Article 36, paragraph 2, of the Statute, with respect to all arbitral awards in cases to which those States are parties, even if the Court were each time to take care not to act as a court of appeal or as one revising the award. That the need to decide a “question of international law” has been raised is surely not sufcient justication for such an inroad into another means of settlement of disputes between States. To deny this would be to embark on an adventure which would have disastrous consequences not conned to arbitral decisions. The Court has fortunately refused to take this path.

Since Guinea-Bissau’s second case in the International Court of Justice remained pending after the delivery of the judgment in the rst case, the President of the Court was in touch with the parties as to the procedure to be followed in the second case. Compliance with the Arbitral Award judgment spread over into the issues raised by the Delimitation case. It appears that the negotiations for a broader settlement of the dispute were successful. This led to the settlement of the dispute between the two countries and the discontinuance of the Delimitation case in 1995.29 Taken together, this and the King of Spain case are a very strong hint that the International Court will entertain proceedings in unilateral recourse from a decision of another court or tribunal that is nal and binding only if it is specically authorized by an agreement of the parties concerned in the original decision and in the recourse proceedings. In such a case, if the original decision is nal and binding the International Court will not review the impeached decision. It will concern itself only with answering the question put to it, such as the existence or the validity of the original decision as a decision, that is to say its conformity with the requirements of the terms of reference in the arbitration agreement. It can only exercise such jurisdiction if it is shown that the parties have given their agreement to such proceedings in the particular case. It is not easy to separate recourse in interpretation or in revision out from this wider framework, and this must cast doubt on whether, in today’s structure of the non-hierarchical international court system, the International Court of Justice can be taken to have any general recourse jurisdiction from

29

declaration recalls to this reader the decision taken by the Council of the League of Nations in 1920, during the drafting of the Statute of the Permanent Court, not to include in what became Article 36, paragraph 2, any denition of legal disputes, and in particular to drop the idea of a dispute over the decision of the Court proposed by the Advisory Committee of Jurists. See Chapter 2 § 2.2 note 11 above. C. Schulte, note 25 above at 228 and ICJ Rep. 1995, 423.

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other courts and tribunals. Since its own judgments are also nal and binding, the same question mark attaches to its own competence to entertain this type of case. Articles 60 and 61 of the Statute certainly confer a special jurisdiction on the International Court in response to a unilateral request to interpret and to revise its decisions subject to its own stringent conditions for the admissibility of a request for interpretation or revision. 6.7. Appeals to the Permanent Court of International Justice An appeal consists in a complete review and reconsideration of a judicial decision by a court which is hierarchically superior to the tribunal that rendered the appealed judgment, the two courts functioning in the same juridical context. The parties to the appeal procedure are the same as the parties to the original proceedings, the law laying down the conditions required for the admissibility of an appeal and the powers of the appellate judicial organ. The Permanent Court had several cases of ‘appeal’ from a Mixed Arbitral Tribunal (MAT) set up by one of the 1919 Peace Treaties. The basic texts under which the MATs worked provided for the possibility of appeal to the Permanent Court. However, this did not imply any formal hierarchical relationship between the MATs and the Permanent Court or any automatic right of appeal from the one to the other. Moreover, the parties in the appellate proceedings in the Permanent Court, two States only one of which had been respondent in the proceedings in the MAT, were not identical with the parties in the proceedings in the MAT – an individual claimant and the respondent State. In the Permanent Court one of the parties would be exercising its right of diplomatic protection in favour of its national who had been a party to the proceedings in the MAT. This alone is sufcient to differentiate these ‘appeals’ from the type of ‘appeal’ encountered in domestic litigation. Appeal has to be distinguished from the continental procedure of cassation. This has been explained as a mode of review of a judicial decision found in civil law countries under which a decision may be brought up to a superior court for review and its rightness in law challenged. Cassation differs from an appeal in that if the court of cassation upholds the challenge it does not substitute its ruling on the law and alter the impeached decision but strikes down that decision as incorrect and remits the case to the or a lower court for a fresh decision.30

30

D.M. Walker, The Oxford Companion to Law 190 (Oxford University Press, Oxford, 1980). The nearest common law equivalent is the case stated procedure of English law.

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In 1932 Czechoslovakia led two applications against Hungary instituting proceedings appealing from certain judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (MAT) in cases of two Hungarian citizens against Czechoslovakia and one Hungarian corporation against Czechoslovakia, two separate cases. After preliminary objections had been led the Court joined the two cases but Czechoslovakia then discontinued them.31 A year later Czechoslovakia led an application instituting proceedings against Hungary as an appeal from the judgment on jurisdiction and merits given by the same Arbitral Tribunal in the Peter Pázmány University case. In a judgment of 15 December 1933 the Court dismissed Czechoslovakia’s submissions. It declared that the impeached judgment had been rightly decided and that Czechoslovakia was bound to restore the claimed property to the University.32 The Court adopted a special procedure for this case. It required the parties to devote the rst part of their oral presentations to the question of the nature of the jurisdiction conferred on the Court by the title of jurisdiction invoked in that case. Under that instrument the two Governments had agreed to recognize a right of appeal to the Permanent Court from all judgments on questions of jurisdiction or merits to be given by the MAT with certain exceptions. The Court had no doubt of its jurisdiction and the fact that the impeached judgment had been rendered in litigation between a private individual and a State did not prevent that judgment from forming the subject of a dispute between two States capable of being submitted to the Court in virtue of a special or general agreement between them. There was a ‘distinct point at issue between them’. This careful enunciation of what the international litigation was about distinguishes this type of case from the type of appeal encountered in internal litigation. The next case of this nature to come before the Permanent Court was the Pajzs, Csáky, Esterházy case. This was an appeal brought in 1935 by Hungary against three judgments of the Hungaro-Yugoslav MAT declining jurisdiction in these three cases.33 Yugoslavia led preliminary objections against this application, and the Court joined the objections to the merits. In its judgment of 16 December 1936 the Permanent Court in effect decided that it could not entertain the application. This decision, however, was based on the substance of the matter, not on any procedural issue. In that judgment the Court rst considered whether it could entertain Hungary’s appeal against the decisions

31 32 33

Appeals from Certain Judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal, Ser. A/B 56 (1933). Appeal from a Judgment of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (The Peter Pázmány University v. the State of Czechoslovakia), Ser. A/B 61 (1933). Ser. A/B 68 (1936). This dispute arose out of the Young Plan of 1929–1930 for the reorganization of the reparation provisions of the 1919 Peace Treaties.

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of the MAT. The Court examined closely the MAT’s jurisdiction and the conditions for an appeal, and found that although the MAT had declined jurisdiction it had in doing so passed upon the merits (page 51). The appeal met the formal conditions required by the Peace Treaty of Trianon but on its substance the Court found that it could not entertain the case. The Court made no comment on the fact that in the case before it the individuals who had been parties in the MAT proceedings were not parties in any way in the international proceedings. 6.8. Special reference to the International Court of Justice A different kind of recourse to the International Court of Justice is envisaged in Article 87 of that Court’s current Rules, the text of which is given in Chapter 4 § 4.9 above. Article 87 replaces the previous Rule which was limited to appeals to the Court from a decision of some other tribunal (recours contre une sentence rendue par quelque autre juridiction). It is a step in the development of new procedures for recourse to the International Court of Justice. The provision only deals with the procedure to be followed in this type of case. The jurisdiction of the International Court to entertain this type of recourse depends on the normal rules laid down in the Statute governing the Court’s jurisdiction both ratione personae and ratione materiae. Article 87 enables the International Court of Justice to act as a court of appeal in the non-hierarchical sense if there is in force a treaty or convention – the two terms are synonymous – providing for an appeal from a decision of a given organ. This is distinguished from the special jurisdiction under Articles 60 and 61 of the Statute relating its jurisdiction over the interpretation and the revision of its own judgments which are nal and without appeal. This appellate jurisdiction has to be kept distinct from any recourse to the Court under Article 36, paragraph 2, of the Statute asking whether a given decision is a valid or existing arbitral award. For the purposes of Article 87 of the Rules the organ that gave the appealed decision does not have to be a judicial organ or an organ acting in a judicial capacity, but presumably the decision has to be a decision that is binding on the parties. One appeal has been brought before the International Court. The importance of that case is that it accepts the notion of ‘appeal’ as referring in equal measure to a decision of another body as to its jurisdiction and to a decision on the merits of a case. Under the Convention on International Civil Aviation of 1944 the Council of the International Civil Aviation Authority (ICAO) has the power to decide any disagreement between two or more contracting States relating to the interpretation or application of the Convention, with a right of appeal to an ad hoc arbitral tribunal or to the Permanent Court of International

§ 6.8. Special Reference to the International Court of Justice

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Justice. Pakistan had brought a dispute with India before the Council. In the subsequent proceedings the Council rejected a preliminary objection by India. The case in the International Court was instituted by India as an appeal against that decision.34 The Court’s jurisdiction was based on that provision of the Convention (and on Article 36, paragraph 5, of the Court’s Statute), and neither party invoked the provisions of the Rules of Court then in force relating to appeals. In its judgment the Court made an important statement on the nature of its task in this type of case: . . . [I]n the proceedings before the Court, it is the act of a third party – the Council of ICAO – which one of the Parties is impugning and the other defending. In that aspect of the matter, the appeal to the Court contemplated by the Chicago Convention . . . must be regarded as an element of the general régime established in respect of ICAO. In thus providing for judicial recourse by way of appeal to the Court against decisions of the Council concerning interpretation and application . . . the Chicago Treaties gave member States, and through them the Council, the possibility of ensuring a certain measure of supervision by the Court over those decisions. To this extent, these Treaties enlist the support of the Court for the good functioning of the Organization, and therefore the rst reassurance for the Council lies in the knowledge that means exist for determining whether a decision as to its own competence is in conformity or not with the provisions of the treaties governing its action. If nothing in the text requires a different conclusion, an appeal against a decision of the Council as to its own jurisdiction must therefore be receivable since, from the standpoint of the supervision by the Court of the validity of the Council’s acts, there is no ground for distinguishing between supervision as to jurisdiction, and supervision as to merits (page 60).

As a general proposition, the Court stated that as it was dealing with an appeal from a decision of the ICAO Council as to its own jurisdiction it [the Court] ‘must obviously refrain from pronouncing’ on the validity or otherwise of the opposing views of the Parties as to the object and correct interpretation of certain provisions of the relevant treaties ‘since this touches directly upon the merits of the case’ (page 69). The Court held that the Council was competent to entertain the application laid before it by Pakistan and in consequence rejected the appeal made by India against the Council’s decision assuming jurisdiction. The origin of Article 67, introduced into the Rules in 1936, lies in the fact that after the First World War a number of treaties purported to confer on the Permanent Court some sort of vaguely dened appellate jurisdiction. In light of experience it was felt desirable to include a provision in the Rules to deal with the procedure in that type of case. As seen in Appendix I to Chapter 4 above, in 1934 the Co-ordination Committee of the Permanent

34

ICJ Rep. 1972 46.

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Court laid down the ground rules for this type of case and that led to the introduction of Article 67 into the 1936 Rules of Court. In substance the new text of Article 87 does not differ much from that provision, except that the specic references to ‘appeal’ have been dropped and replaced by a somewhat broader framework. However, States have not shown any inclination to carry this any further. Article 87, like its predecessor in the earlier versions of the Rules of Court, does not address the Court’s jurisdiction in this type of case, which continues to be regulated exclusively by the relevant provisions of the Statute. The presence of this provision in the Rules does, however, indicate willingness on the part of the Court to hear and determine references from other courts and tribunals or other organs of which it is regularly seised. 6.9. Recourse from Administrative Tribunals to the International Court of Justice Between 1955 and 1995 the United Nations had in place a completely novel system of formal recourse from its Administrative Tribunal – not an international court or tribunal formed to deal with disputes between independent States but an internal organ to deal with work-related disputes between a staff member of the UN and the administration of the organization. The basic pattern was that the standard advisory procedure available to duly qualied organs of the United Nations and the specialized agency should be available not for appeal or review purposes in relation to UNAT judgment but for cassation purposes, that is to review the law, or certain dened questions, and refer the answer back to the UNAT for the reconciliation of its impeached judgment in light of the advisory opinion rendered by the International Court. This is a major expansion of the function of international courts and tribunals as they had developed out of diplomatic practices in the nineteenth century. While this type of approach has not yet found its way into peace-keeping crises it does seem to offer a possible new approach to addressing important legal issues which place obstacles in the way of crisis-management and of peace-making and hinder progress towards a solution of major differences. General Assembly resolution 957 (X), 8 November 1955, amended the Statute of the United Nations Administrative Tribunal (UNAT). In that resolution, the General Assembly provided for a system of recourse in the nature of cassation of individual judgments of the UNAT through the Court’s advisory competence should a judgment of the Tribunal be challenged on the ground that the Tribunal had exceeded its jurisdiction or competence, or that it had failed to exercise jurisdiction vested in it, had erred on a question of law relating to provisions of the Charter, or had committed a fundamental error in procedure which occasioned a failure of justice. The challenge could be made by a member State, the Secretary-General, or the staff member concerned.

§ 6.9. Recourse from Administrative Tribunals to the ICJ

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Special machinery was instituted for the formal adoption of the request for the advisory opinion so as to meet the requirements of Article 96 of the Charter and Article 65 of the Statute relating to advisory opinions. This was the Committee for Review of Administrative Tribunal Judgments which ltered applications for review of individual judgments of UNAT and was authorized under Article 96, paragraph 2, of the Charter to request advisory opinions on legal questions arising within the scope of its activities. Other procedural provisions were designed to preserve the de facto equality between the staff member and the Secretary-General, along the lines laid out by the Court in some earlier opinions.35 The Committee was to decide whether or not there was a substantial basis for the application, and if it decided that such a basis existed ‘it shall request an advisory opinion of the Court’.36 The Committee has on three occasions requested an advisory opinion under this provision, for the review of Judgements No. 158 (Fasla),37 No. 273 (Mortished),38 and No. 333 (Yakimetz).39 The initiative for the rst and third of those cases

35

Effect of Awards of Compensation made by the UN Administrative Tribunal advisory opinion, ICJ Rep. 1954 47; Judgments of the Administrative Tribunal of the ILO upon Complaints made against Unesco advisory opinion, ICJ Rep. 1956 77.

36

Statute of the Administrative Tribunal of the United Nations, Art. 11 (doc. AT/11/ Rev. 3, Sales No. E.71.X.1) (since amended). Text recited in Review of UNAT Judgement No. 158 (Fasla) advisory opinion, ICJ Rep. 1973 166, 170 (para. 12) and in the other Review cases. A similar provision had been included as Art. XII of the Statute of the International Labour Organization Administrative Tribunal and was discussed in the ILOAT (UNESCO) advisory opinion, ICJ Rep. 1956 77. The competent organs of the International Labour Organization have never had recourse to this procedure. Cited in previous note. For the judgement of UNAT, see Judgements of the United Nations Administrative Tribunal Numbers 114 to 166 1968–1972 (Sales No. E.73.X.2) at 355 (Fasla). For conrmation after the advisory opinion see Judgement No. 177, Judgements of the United Nations Administrative Tribunal Numbers 167 to 230 1973–1977 (Sales No. E.78.X.1) 77. ICJ Rep. 1982 325 (Mortished). And see Judgements of the United Nations Administrative Tribunal Numbers 231 to 300 1978–1982 (Sales No. E.83.X.1) 426. For conrmation, see Judgement No. 282, ibid. 584. For subsequent action by the Secretary-General and the General Assembly in relation to the repatriation grant, the main issue in this case, see Note by the Secretary-General and the report of the Advisory Committee on Administrative and Budgetary Questions (ACABQ ), United Nations, General Assembly Official Records, 37th Session Annexes, agenda item 111 (1) (A/C.5/37/26 and A/37/675), and General Assembly res. 37/235 C, 21 December 1982. ICJ Rep. 1987 18 (Yakimetz). And see Judgements of the United Nations Administrative Tribunal Numbers 301 to 370 1983–1985 (Sales No. E.91.X.1) 239. For conrmation, see Judgement No. 393, Judgements of the United Nations Administrative Tribunal Numbers 371 to 438 1986–1988 (Sales No. E.83.X.1) 196.

37

38

39

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came from the staff member concerned; and in the second from a member State. There has been no instance before the Court in which the SecretaryGeneral had taken the initiative before the Committee. These advisory opinions furnish an important indication of how one can anticipate an international judicial organ will act in this type of cassation proceeding, and how it can be reconciled with fundamental principles of international judicial procedure. In the rst of these cases, the Fasla case where the initiative in the Committee had been taken by the staff member concerned, the Court reviewed the procedure thoroughly, in view of doubts regarding the legality of the use of the advisory jurisdiction for the review of the judgments of UNAT. There was also a question of the propriety of the Court’s exercising its discretion whether to give the requested opinion. The Court made a number of points: . . . [T]he existence, in the background, of a dispute the parties to which may be affected as a consequence of the Court’s opinion, does not change the advisory nature of the Court’s task, which is to answer the questions put to it with regard to a judgment. . . . If a request for advisory opinion emanates from a body duly authorized in accordance with the Charter to make it, the Court is competent under Article 65 of its Statute to give such opinion on any legal question arising within the scope of the activities of that body. The mere fact that it is not the rights of States which are in issue in the proceedings cannot sufce to deprive the Court of a competence expressly conferred on it by its Statute.40

The Court dealt at length with the question whether the General Assembly was empowered to establish the Committee and whether the Committee could be considered an organ of the United Nations within the meaning of Article 96, paragraph 2, of the Charter, since it had no activities other than to examine applications for review by the Court and to request the advisory opinions. The Court reached the general conclusion that the Committee was an organ of the United Nations duly constituted and duly authorized under Article 96, paragraph 2, of the Charter to request advisory opinions. It followed that the Court was competent under Article 65 of the Statute to entertain a request for an advisory opinion from the Committee made within the scope of Article 11 of the UNAT Statute.41 After establishing its jurisdiction, the Court turned to the issue of the propriety or discretion of its acceding to the request for the opinion. The Court reviewed the debates in the General Assembly and the procedure to date followed by the Committee, the proceedings of which are regarded as condential. The Court said:

40 41

ICJ Rep. 1973 166, 171 (para. 14). Ibid. 171–175 (paras. 14–23).

§ 6.9. Recourse from Administrative Tribunals to the ICJ

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While it might be desirable for the applicant to receive some indication of the grounds for the Committee’s decision in those cases in which the application is rejected, the fact that the Committee’s reports are conned to a bare statement of the decision reached does not deprive the review proceedings as a whole of their judicial character, nor constitute a valid reason for the Court’s declining to answer the present request. A refusal by the Court to play its role in the system of judicial review set up by the General Assembly would only have the consequence that this system would not operate precisely in those cases in which the Committee has found that there is a substantial basis for the objections which have been raised against a judgement. When the Committee reaches such an afrmative decision there is no occasion for a reasoned statement of its views or a public record of its proceedings; for the Committee’s afrmative decision, based only on a prima facie appreciation of the objections, is merely a necessary condition for the opening of the Court’s advisory jurisdiction. It is then for the Court itself to reach its own, unhampered, opinion as to whether the objections which have been raised against a judgement are well founded or not and to state the reasons for its opinion.

The Court concluded that there was nothing in the character or operation of the Committee which made the judicial review of UNAT judgments incompatible with the general principles governing the judicial process.42 The Court left open the question of propriety should the initiative in the Committee be taken by a member State. It went on to consider objections against the use of the advisory jurisdiction because of what was said to be an inherent inequality under the Statute between the Staff member on the one hand, and the Secretary-General and member States on the other. Here the Court referred fully to its 1956 opinion in the ILOAT (UNESCO) case, the legal implications of which had been introduced in an appropriate form into the Statute of UNAT and in that way brought into the review process. The Court’s nal conclusion on the issue of propriety was as follows: The Court has repeatedly stated that a reply to a request for an advisory opinion should not, in principle, be refused and that only compelling reasons would justify such a refusal. . . . In the light of what has been said above, it does not appear to the Court that there is any compelling reason why it should decline to reply to the request in the present instance. . . . Accordingly, as already indicated, although the Court does not consider the review procedure provided by Article 11 [of the UNAT Statute] as free from difculty, it has no doubt that, in the circumstances of the present case, it should comply with the request by the Committee . . . for an advisory opinion.43

The Court gave a careful explanation of what was required of it in this type of case:

42 43

Ibid. 177 (paras. 28–30). Ibid. 183 (para. 40). By ten votes to three the Court decided to comply with the request. The Court upheld the judgment of the Administrative Tribunal.

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Under Article 11 of the Statute of the Tribunal . . . the task of the Court is not to retry the case but to give its opinion on the questions submitted to it concerning the objections lodged against the Judgement. The Court is not therefore entitled to substitute its own opinion for that of the Tribunal on the merits of the case adjudicated by the Tribunal. Its role is to determine if the circumstances of the case, whether they relate to merits or procedure, show that any objection made to the Judgement on one of the grounds mentioned in Article 11 is well founded. In so doing, the Court is not limited to the contents of the challenged award itself, but takes under its consideration all relevant aspects of the proceedings before the Tribunal as well as all relevant matters submitted to the Court itself by the staff member and by the Secretary-General with regard to the objections raised against that judgement. These objections the Court examines on their merits in the light of the information before it. Furthermore . . . a challenge to an administrative tribunal judgment on the ground of unauthorized assumption of jurisdiction cannot serve simply as a means of attacking the tribunal’s decisions on the merits. . . . So too, under Article 11 . . . a challenge to a decision for alleged failure to exercise jurisdiction of [sic] fundamental error in procedure cannot properly be transformed into a proceeding against the substance of the decision. This does not mean that in an appropriate case, where the judgement has been challenged on the ground of an error on a question of law relating to the provisions of the Charter, the Court may not be called upon to review the actual substance of the decision. But both the text of Article 11 and its legislative history make it clear that challenges to the Administrative Tribunal judgements under its provisions were intended to be conned to the specic grounds of objection mentioned in the Article.44

In Mortished the initiative in the Committee was taken by a member State.45 This led the Court to review again general and specic problems of the review procedure. The 1973 opinion constituted the point of departure for this examination, although it had not dealt with the situation that would arise were a member State to take the initiative in the Committee. The Court found that there was an issue whether the part played by a member State in submitting an application for review was tantamount to intervention in the review process by an entity which was not a party to the original proceedings. The Court answered this by stating that although a member State was not a party to the original proceedings, ‘it may well have a legal interest giving rise to a review of the Judgement. This is certainly so, where . . . the Judgement in question is challenged on the ground that an error has been committed on a question of law relating to the provisions of the Charter, that is to say of a treaty to which this State is a party’ (paragraph 24). The Court also pointed out that the origin of the application to the Committee does not affect the Committee’s deliberations leading to its decision to request the advisory opin-

44

Ibid. 187 (para. 47). And see the Mortished advisory opinion, note 37 above at p. 355 (para. 57).

45

Ibid. 347.

§ 6.9. Recourse from Administrative Tribunals to the ICJ

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ion – some might think this hyperbolic, considering that the State in question in that case was a permanent member of the Security Council. The Court developed these contentions. It drew attention to the difculties of using the advisory jurisdiction for the task of trying a contentious case, and especially one to which one of the parties was an individual. Some of the difculties might be mitigated by such devices as dispensing with oral proceedings and enabling an individual to present written observations through an intermediary such as the Secretary-General. However, although such safeguards for elementary principles of international judicial procedure such as the equality of the parties and the need to hear all sides may be adequate where the issue before the Court is limited as in the UNAT cases, the most careful re-appraisal would be required were the Court called upon to function as an appeal court in respect of the contentious case itself.46 With this caveat, it should not be beyond the power of an international court or tribunal to function as a court of appeal, should that be the will of the States concerned. Different considerations were raised against the Court’s entertaining the request. The objections were rejected, mainly on grounds set out in the earlier opinions. The Court disposed of an argument based on the inequality of the parties by reference also to its earlier opinions, but expanded it also to inequality before the Committee. It found that there had been a number of irregularities in the Committee’s proceedings in this case, but these did not affect the Court’s entertaining the case: Despite the irregularities . . . the Court nevertheless feels called upon, for reasons now to be explained, to accept the task of assisting the United Nations Organization. It is in accordance with the Court’s jurisprudence that, even though its power to give advisory opinions is discretionary under Article 65 of its Statute, only “compelling reasons” would justify refusal of such a request. . . . Of course the irregularities which feature throughout the proceedings in the present case could well be regarded as constituting “compelling reasons” for a refusal by the Court to entertain the request. The stability and efciency of the international organizations, of which the United Nations is the supreme example, are however of such paramount importance to world order, that the Court should not fail to assist a subsidiary body of the United Nations General Assembly in putting its operation upon a rm and secure foundation. While it would have been a compelling reason, making it inappropriate for the Court to entertain a request, that its judicial role would be endangered or discredited, that is not so in the present case, and the Court thus does not nd that considerations of judicial restraint should prevent it from rendering the advisory opinion requested. In the present case such a refusal would leave in suspense a very serious allegation against the Administrative Tribunal, that it had in effect challenged the authority of the General Assembly. While there can be no question . . . of any restriction on the Court’s discretion, the Court will not refuse “its participation in the

46

Ibid. 356 (para. 59).

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activities of the Organization” . . ., so that the important legal principles involved may be disposed of, whilst at the same time the Court must point out the various irregularities. It is not by appearing to shy away from the latter that the Court can discharge its true judicial functions (paragraph 45).

The voting on this issue was close: by nine votes to six the Court decided to comply with the request. The votes on the other questions, in which the Court upheld the judgment of UNAT, were more conclusive: ten to ve on one question and twelve to three on another. The last case in this series was the Review of UNAT Judgement No. 333 (Yakimetz) advisory opinion, requested by the Committee on the initiative of the staff member.47 As before, the Court rst considered its competence and the propriety of its giving the opinion. Relying on Article 96 of the Charter which it called the ‘fundamental text in this respect’ and on Article 65 of the Statute, and on its two previous review cases, it specically indicated that the question whether a judicial body failed to exercise jurisdiction is clearly a legal question, as is also the question whether it erred on a question of law.48 This gave the Court an opportunity to develop further its understanding of the nature of its task in this type of case. In Mortished the Court had laid out clearly how it sees its function in this type of advisory case: That the Court’s proper role is not to retry the case and to attempt to substitute its own opinion on the merits for that of the Tribunal, is apparent from the very fact that the question or questions on which the Court is asked its opinion are, since they must conform to Article 11, paragraph 1, of the Tribunal’s Statute, different from the questions which the Tribunal had to decide. – – – Foremost amongst those [other] reasons [why the Court should not attempt by an advisory opinion to ll the role of a court of appeal and retry the issues on the merits] must be the difculties of using the advisory jurisdiction of the Court for the task of trying a contentious case, and especially one to which one of the parties is an individual. ––– [I]t would . . . be unacceptable if the advisory opinion were to be assimilated to a decision on appeal.49

The Court then re-afrmed its previous jurisprudence and re-emphasized that taking into account the limits of its competence set by the applicable texts it should not express any view on the correctness or otherwise of any nding

47 48

49

ICJ Rep. 1987 18. Ibid. 30 (para. 24); also in Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights advisory opinion, ICJ Rep. 1999–I 62, 78 (para. 26). Mortished (note 37 above) 356 (para. 58).

§ 6.9. Recourse from Administrative Tribunals to the ICJ

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of UNAT in the impeached judgment ‘unless it is necessary to do so in order to reply to the questions put to it’.50 The Court had no real difculty in concluding that it should give the opinion. It was unanimous in deciding to comply with the request; it answered unanimously one of the questions put to it, and by eleven votes to three the second. At the same time, individual opinions of members of the Court, especially those of Judges Lachs and Elias, indicated serious misgivings at the whole procedure. Both former Presidents of the Court urged the General Assembly to review the whole process, which the General Assembly eventually did. The General Assembly found that the procedure of recourse to the Court from the United Nations Administrative Tribunal was unsatisfactory, and abolished it in its resolution 50/54, 11 December 1995. *

*

*

In 2000, the Joint Inspection Unit, reporting on the administration of justice within the United Nations, expressed the belief that consideration should be given to reviving the Court’s advisory function in the internal recourse procedure. However, the Advisory Committee on Administrative and Budgetary Questions had serious doubts about the appropriateness of involving the Court in staff disputes.51 The matter was dropped. This experience is nevertheless important as it points the way to possible new diplomatic procedures for using the Court as a means for judicial settlement or partial judicial settlement of international difculties. The reviews required by the Court in these three cases turned upon very detailed examination of the internal staff regulations of the United Nations, and only remotely reached into questions of international law. There are signs in the individual opinions attached to these advisory opinions that several of the members of the Court felt uncomfortable with this. This system was abolished after forty years of experience. However, that does not mean that in other situations the General Assembly and the Security Council could not establish a system for States to screen suggestions for advisory opinion on disputed questions of international law, to be operated on the initiative of a State, of the SecretaryGeneral, or of other competent international authorities.52

50 51 52

Note 38 above at 34 (para. 27). General Assembly, Ofcial Records, 55th Session Annexes, agenda item 116, 123 (A/55/57 and A/55/514). See generally, Kaiyan Homi Kaikobad, The International Court of Justice and Judicial Review: A Study of the Court’s Power with Respect to Judgements of the ILO and UN Administrative Tribunals (Kluwer Law International, The Hague, 2000).

CHAPTER SEVEN

SOME ESSENTIAL PROCEDURAL MATTERS

7.1. The Seisin and Jurisdiction of the Court The preceding Chapters show that, in addition to interpretation and revision by the International Court of its own judgments through contentious proceedings based on the special jurisdiction that the Statute gives it over these matters, similar processes exist for the International Tribunal for the Law of the Sea as the second standing international tribunal and for the Seabed Disputes Chamber as an autonomous standing judicial organ of limited material competence. The system can also exist for the standard inter-State arbitration proceedings provided that the instruments under which the arbitration is being conducted contain appropriate provisions. In this type of case the interpretation-competence and the revision-competence are so to speak compulsory in the sense that they do not require any additional expression of consent on the part of the respondent State. Its consent to the original litigation carries through to these two processes for which the basic constituent instruments of the initial litigation provide the legal framework. The statement included in the Statute of the International Court and in a different way in the Law of the Sea Convention for ITLOS and the Seabed Disputes Chamber, that the decision is ‘nal and binding’ has to be read as being subject to this.1 In addition, political

1

Art. 296 of the Law of the Sea Convention states that any decision rendered by any court or tribunal having jurisdiction under the Convention shall be nal and attracts the obligation of compliance. It omits the customary phrase ‘and without appeal’. Annex VI, Art. 33 (1) is similar. The reason apparently is that some ‘nal’ decisions envisaged in the Convention may be subject to some sort of recourse, including ‘appeal’ in other courts or tribunals, including domestic courts or tribunals. At the same time, the absence of those words would not prevent some other treaty conferring jurisdiction on the Tribunal from containing provisions regarding possible appeal. The Virginia Commentary cites, in this respect, Iran v U.S.A. Case No. 21 (1987) in the Iran/US Claims Tribunal as an illustration of an appeal from an arbitral decision (14 Iran-U.S. Claims Tribunal Reports 347). See M.H. Nordquist, Sh. Rosenne and L.B. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, vol. v 84 (Art. 296), 396 (Annex VII Art. 33), (Martinus Nijhoff, Dordrecht, 1989).

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and diplomatic requirements have led to the development of further forms of reference to the International Court. These, which are based on the International Court’s normal jurisdiction, include disputes over the existence, the validity, the nullity, the procedural regularity of an arbitral award, and a form of appeal from the judgment of some other international court or tribunal in a case in which only one party was a State. There is also limited experience of a form of cassation employing the International Court’s advisory competence for review of dened legal aspects of another tribunal’s decision. Where the proceedings involve the Court’s contentious jurisdiction under specic provisions of its Statute, the seisin of the Court is effected by the simple ling of the instrument instituting the proceedings in accordance with particular provisions of the Statute and the Rules of Court governing that form of case. In other cases the normal rules of jurisdiction ratione personae and ratione materiae apply and the respondent’s consent to the particular litigation is required. Although there is to date no experience of this in the International Tribunal for the Law of the Sea, given the close reection of the ICJ’s Statute in that of ITLOS, one may assume that the same principles will apply there should occasion arise. Given the speciality of the jurisdiction over interpretation and revision cases in the International Court of Justice, special rules govern the institution of those proceedings, and to some extent we nd them imitated in arbitration proceedings. Those Rules govern the form and contents of the instrument effecting the seisin of the Court for cases of the interpretation and for the revision of judgments of those Courts and Tribunals. There are also rules for all forms of reference to the International Court and to the Law of the Sea Tribunal from other international organs that may have dealt with a case. The reference must be based on some treaty in force or otherwise the respondent has to give specic consent to the reference. An important feature of all these cases is that each is technically a new case. Opening the meeting of the Court on 17 February 1999 (CR 99/3), at which the judges ad hoc made their solemn declarations in the revision phase of the Request for Interpretation of the Judgment of 11 June 1998 in the Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, the President (Judge Schwebel) said that a request for interpre-

Annex VII (on arbitration), Art. 11, uses the customary formula ‘nal and without appeal’. See the Virginia Commentary at p. 434. With regard to the Seabed Disputes Chamber, Annex VI, Article 39 provides that its decisions ‘shall be enforceable in the territories of the States Parties in the same manner as judgments or orders of the highest court of the State Party in whose territory the enforcement is sought’. There is no known instance of this at the time of writing.

§ 7.2. Institution of Proceedings in Interpretation

169

tation, inasmuch as it is submitted in an application instituting proceedings, does not fall within the category of incidental proceedings: it gives rise to a new case and is procedurally independent from the case for which the interpretation is requested. ‘Both parties have accordingly nominated agents for the present proceedings.’ This is also the rule for requests for the revision of a judgment. It is entered as such in the Court’s General List and is subject to all the substantive, procedural, and administrative requirements of any new case. This follows the considered examination of the matter in the Committee of Co-ordination in 1934 as shown in its report (see Chapter 4, Appendix I). The immediate effect of this is to maintain the integrity of the res judicata of the impeached judgment until the decision is reached on the new case. Subject to the title of jurisdiction the integrity of the res judicata may go further and nevertheless require either continued compliance with the terms of the impeached judgment or a stay in the process of compliance with that decision. If the impeached decision is interlocutory in relation to the principal proceedings which are still in progress when the Court is seised of the new process, the proceedings on the new case may require a temporary suspension or stay of the proceedings in the original case. The outcome of the new case may have implications for the earlier one which remains pending in suspense. All other types of case in which the International Court is requested to pass upon the standing (to use a neutral word) of an existing arbitral award or decision of any other court or tribunal are treated as any other new case. Such proceedings are instituted and the Court is seised of the case in the normal way, subject to any special provision in the title of jurisdiction. Except for the two instances of interpretation and of revision where there is a question of the admissibility of the request, the seisin and the jurisdiction in the other reference cases may be perfected by the doctrine of the forum prorogatum as set out in Article 38, paragraph 5, of the Rules of the International Court of Justice and Article 54, paragraph 5, of the Rules of ITLOS.2 7.2. Institution of Proceedings in Interpretation In the event of a dispute (contestation) as to the meaning or scope of a judgment any party both to the impeached judgment and to the dispute may make a request for the interpretation of that judgment on the basis of Article 60 of the Statute. This excludes the non-party intervener, whose rights would normally not extend to initiating proceedings in interpretation or revision of the judgment in the case. (It could request permission to intervene under Article

2

On this jurisdiction, see Law and Practice4, vol. ii at 672.

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62 of the Statute if it considers that it has an interest of a legal nature which may be affected by the decision in the interpretation or the revision case. However, in that respect it is in no different a position from that of any other State.) There is no time limit within which proceedings in interpretation have to be begun, but in the nature of things this step should be taken as soon as possible when it is clear that the parties are contesting the meaning or scope of the judgment in question. One might note, however, that the tendency of modern arbitration practice is to set a very short time limit within which interpretation proceedings may be instituted. It is immaterial for interpretation proceedings whether the original proceedings were begun by an application or by the notication of a special agreement. Such proceedings in interpretation of a judgment may be instituted either by the ling of a request for interpretation (demande en interprétation) in the form of an application (requête) or by notication of a special agreement. The word request and its French equivalent are used here in a general sense. Each applies to both methods of instituting interpretation proceedings. The word request may nevertheless be the cause of a possible terminological confusion against which the Registrar of the Permanent Court (Hammarskjöld) warned.3 The Rules are not consistent in their rendering in French of the word request, sometimes using requête as in Article 98, and sometimes demande as in Article 42, paragraph 3, or the heading of Subsection 2 of Section F of the Rules. The word only has the technical meaning of an application introducing proceedings including proceedings in interpretation and in revision or an interlocutory matter such as an application for permission to intervene under Article 81 of the Rules, when its French equivalent is requête. Should a question arise out of an interlocutory judgment on preliminary objections, it may be raised in subsequent proceedings. This would not be, of course, as a preliminary objection but as a further plea in bar, following the Application of the Genocide Convention (Merits) case noted in §§ 3.5 and 6.3 above. Presumably that precedent would be applicable to any interlocutory judgment followed by proceedings on the merits. When the proceedings in interpretation are introduced unilaterally in the form of an application, Article 40 of the Statute and the relevant Rules of Court apply, save where replaced by the particular rules governing the request for interpretation. Article 40 details the duties of the Registrar regarding the communication of the application, namely ‘to all concerned’ and to the Secretary-General of the United Nations for communication to the members of the UN (communication to any other States not members of the UN is effected by the Registrar). Article 38 of the Rules addresses in general terms

3

See Chapter 3 § 3.5 above.

§ 7.2. Institution of Proceedings in Interpretation

171

the contents and form of unilateral applications. An application must be in writing, and must indicate the party making it (the applicant) and the State against which it is brought (the respondent). By Article 98, paragraph 2, an application for interpretation must also indicate ‘the precise point or points in dispute as to the meaning or scope of the judgment’ (elle indique avec précision le point ou les points contestés quant au sens ou à la portée de l’arrêt). This takes the place of the general rule for applications, that the instrument must indicate the ‘subject of the dispute’ and specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based.4 Unlike an originating application instituting proceedings, which at most has to contain a succinct statement of the facts and grounds on which the claim is based ([l]es faits et moyens sur lesquels cette demande repose), an application introducing proceedings in interpretation has also to set out the requesting party’s contentions (les thèses de la partie qui la présente y sont énoncées). It therefore also partakes of the quality of a written pleading, and more particularly of a memorial. The reason for this is the need to maintain as far as possible the integrity of the res judicata of the original impeached judgment so long as the interpretation proceedings are pending. A request for interpretation, whether formulated in an application or in a special agreement has to be admissible. It only fulls that condition if it shows that a dispute exists as to the meaning or scope of the impeached judgment. This is not the same as a formal dispute on the merits of a claim which is required for all contentious proceedings introduced unilaterally (subject to the title of jurisdiction) but a difference between the parties, howsoever manifested, as to the meaning or scope of the impeached judgment. However, the Statute does not require a rigid twostage procedure in cases of interpretation, the rst for admissibility and thus opening the interpretation proceedings and the second for the merits if the application is admitted, in this way differentiating interpretation proceedings from proceedings in revision. The reason for this is that an interpretation should not disturb the nality of the impeached judgment but claries it. If the interpretation case is introduced by the notication of a special agreement, that agreement may well be sufcient to establish the existence of such a dispute and hence the admissibility of the case. However, a special agreement per se does not necessarily settle the question of admissibility of the case. The Court has to be satised that a dispute as to the meaning or scope of the original judgment exists. Since this provision of the Statute and the Rules to give effect to it only applies if there is a dispute as to the meaning or scope of the judgment, it is

4

Rules of Court, Art. 38; Rules of ITLOS, Art. 54.

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natural that the following proceedings on the merits are normal contentious proceedings. Indeed, so much is this so that frequently an observation objecting to the admissibility of an application for interpretation is seen as a preliminary objection, although this is not an accurate way of looking at it. During the discussion on the Rules of the Permanent Court, especially the Rules of 1936, there was a general understanding that there is an element of urgency about proceedings in interpretation since they would normally have a direct impact on the implementation of the judgment concerned. It was therefore felt that proceedings in interpretation should be similar to contentious proceedings in the Chamber for Summary Procedure. In principle, subject to the control of the Chamber, those proceedings should be limited to one round of written pleadings, and oral proceedings should be at the Chamber’s decision. Although a request for interpretation is entered as a new case, this does not mean that it can have no consequences for the original case if that remains pending before the Court. This occurred the Land and Maritime Boundary between Cameroon and Nigeria case. While this case was pending on the merits, after the Court had dealt with a series of preliminary objections Nigeria introduced proceedings for the interpretation of the preliminary objection judgment. Shortly after ling that request, which related to difculties that Nigeria was experiencing in drafting its counter-memorial owing to the Court’s decision on one of the objections, Nigeria requested a postponement of the date for the ling of the counter-memorial. It contended that it would not be in a position to complete that pleading if it did not know the outcome of the interpretation case. Cameroon contended that this was a new case which could not have any consequences for the merits of the principal case. The Court rejected that contention. In a cautiously worded order, the Court accepted that the request for interpretation constituted a new case which ‘cannot in itself sufce to justify the extension of the time-limit’. It then went on to say that ‘given the circumstances of this case, the Court considers that it should grant Nigeria an extension of the time-limit for the ling of its Counter-Memorial’.5 7.3. Institution of Proceedings in Revision and Composite Proceedings Article 99 of the Rules provides that a request for the revision of a judgment shall be made by an application. As in the case of interpretation, it is immater-

5

ICJ Rep. 1999–I, 24. And see on this M. Forteau, “La saisine des juridictions internationales à vocation universelle” in H. Fabri and J.-M. Sorel, La saisine des juridictions internationales 9, 18 (Pedone, Paris, 2006). On seisin in general, see P. Weil, “Compétence et saisine: un nouvel aspect du principe de la juridiction consensuelle” in Theory of International Law at the end of the 21st Century: Essays in honour of Krzysztof Skubiszewski 835 (Kluwer Law International, The Hague, 1996).

§ 7.3. Institution of Proceedings in Revision and Composite Proceedings

173

ial whether the original proceedings were begun by an application or by the notication of a special agreement. The application for revision must contain the particulars to show that the conditions specied in Article 61 of the Statute are fullled, that is that the request for revision meets the requirements of Article 61 of the Statute and is therefore admissible. Any documents in support of the application are to be annexed to it. Unlike the requirement for interpretation, a request for revision does not require the prior existence of any dispute or difference between the parties as a precondition for the admissibility of the request for revision. As in the case of interpretation, the document instituting proceedings in revision is also the claimant party’s rst pleading. While it must show that the conditions of the Statute are met in order to ensure the admissibility of the case, it presumably should at least outline the party’s contentions in so far as would be relevant to the issue of admissibility. A decision that the request is admissible opens the proceedings in revision. Article 99 of the 1989 Rules incorporates several changes in comparison to its predecessor, Article 78/83 of the Rules of 1946/1972. By paragraph 1 the request for revision is to be made by an application (requête) containing the particulars necessary to show that the conditions specied in Article 61 of the Statute are fullled, that is that the application is admissible. Paragraph 2, as now worded, goes on to provide that the other party is entitled to le ‘observations on the admissibility of the application’. This conforms more closely to the two-stage process characteristic of revision in the International Court in that it limits the respondent party’s initial written observations to the question of the admissibility of the application for revision. There is thus a certain asymmetry between the application, which must contain the particulars (les indications) necessary to show that the conditions of Article 61 of the Statute are fullled, and the respondent State’s initial observations which are to be limited to the admissibility of the application for revision. Paragraph 3 is exible and leaves the Court with all options in dealing with the admissibility issue. It may decide that has sufcient information on the positions of the parties so that no further exchanges of ‘observations’ (as the pleadings in this phase are called) are required, or that a further exchange of written observations would be needed, or that the Court would prefer a hearing, limited to the question of the admissibility of the application, before reaching its decision on the admissibility issue. It is not to be excluded, following the analogy of the treatment of preliminary objections, that the Court could nd that the issue of admissibility is closely linked to the substance of the request so that in the circumstances it cannot reach a decision limited to admissibility. This would let the case go forward, with the understanding that before deciding on the substance of the request the admissibility issue has to be resolved. Taken together these provisions are a more elaborate outline of the admissibility process as a phase in itself in all revision proceedings. It is this protection for the integrity of the res judicata that distinguishes

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proceedings in revision from proceedings in interpretation. While a request for interpretation has to be admissible, the admissibility process and the substantive proceedings can take place together and the proceedings and the decision on admissibility do not have to be separated from the proceedings and the decision on the substance of the interpretation dispute. Indeed, the Court may clarify its position on interpretation in its discussion of the admissibility of a request for revision, in that way maintaining the integrity of the original judgment. Only if the request for revision is admitted will the following proceedings on the merits of the application revert to the normal pattern of a contentious case, the Court having freedom of action after ascertaining the views of the parties as it considers necessary. The institution of proceedings in revision does not in itself affect the continuing obligation of the parties, and more particularly the judgment debtor, to comply with the terms of the impeached judgment. If any enforcement proceedings are in progress when revision proceedings are commenced they can continue unless stayed. The institution of the revision proceedings only operates as a stay if the title of jurisdiction so provides. If the enforcement proceedings are taking place before another organ, whether judicial or administrative, the institution of revision proceedings in an international court or tribunal does not in itself affect the discretion of that other organ as to the continuance of the enforcement proceedings. However, Article 61 of the Statute gives the Court discretion whether to require previous compliance with the terms of the judgment ‘before it admits proceedings in revision’. Article 99, paragraph 5, of the Rules gives effect to this. By that, if the Court decides to make the admission of the proceedings in revision conditional on previous compliance with the judgment, it is to make an order accordingly. There is no instance yet of the application of this provision in either judicial or in arbitral proceedings so it is impossible to foresee how it would be applied in practice. It will be noted that the Statute does not require any particular time for this decision of the Court, so long as it is taken before the request for revision is admitted. That being so, it is not clear why paragraph 5 is so specic that the decision is to be in the form of an order, presumably meaning that it should not form part of the judgment on admissibility. There has been no case to date in the International Court in which a request for revision has been admitted. As seen (Chapter 5 § 5.4 above), the Court will accept an application which at one and the same time contains a request for revision and a request for interpretation of the same judgment, if this is appropriate in the circumstances. When faced with that type of application, the initial procedure will be a combination of the admissibility of the request for revision and the admissibility and the merits of the request for interpretation, as occurred in the

§ 7.4. Seisin in Other Reference Proceedings

175

Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia v Libya).6 The Court has given no indication of the type of case in which this combination of proceedings is appropriate. This is a matter that is left to the discretion of the State initiating the proceedings. In the one instance so far encountered of this, the clarication of the admissibility of the revision request went a long way to removing the ambiguity that had led to the request for interpretation, and enabled the Court to ‘clarify’ the operative clause of the impeached judgment in such a way as maintained the integrity of the res judicata. The various proceedings outlined in Chapters 4 and 5 above show how it is sometimes difcult to distinguish between the revision of a decision and the interpretation of a decision, especially when the interpretation leads to the replacement of the dispositif of the impeached judgment or any part of it. As in the case of an application for interpretation, the procedure in applications for revision resembles closely the procedure intended for the Chamber of Summary Procedure. Revision cases are usually closely connected to the execution of the original judgment. Neither of these procedures had any direct parallel in interstate arbitration practice. Should a question of interpretation or possible revision arise in the immediate aftermath of the rendering of an award, and provided that the basic instruments governing the arbitration contain appropriate provisions, the processes of interpretation and revision can be initiated in any way that is in conformity with the requirements of the basic text, and that text determines all the requirements of admissibility. All the cases of interpretation of an arbitral award so far encountered were instituted unilaterally by the party requesting the interpretation. 7.4. Seisin in Other Reference Proceedings As we have seen, all other contentious recourse proceedings come within the scope of the Court’s normal jurisdiction and procedure. They require the consent of the respondent to the exercise of jurisdiction. However, it is immaterial whether that consent is contained in a treaty in force – the expression ‘in force’ having the same meaning as in Article 36, paragraph 1, of the Statute – or is notied to the Court or Tribunal after an application has been led, the so-called forum prorogatum jurisdiction. If the recourse proceedings invoke the advisory competence of the International Court (or of any other court or tribunal empowered to render advisory opinions) the regular procedure for requesting an advisory opinion is followed.

6

ICJ Rep. 1985 192.

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In the United Nations and the International Court of Justice, the provisions of Article 96 of the Charter for the requesting organ supplemented by Article 65 of the Statute for the Court apply. Accordingly, the General Assembly and the Security Council can request an advisory opinion on any legal question. Other duly authorized organs of the United Nations and specialized agencies can request an opinion on ‘legal questions arising within the scope of their activities’. For its part the International 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 to make such a request. As a request can only be made by an international intergovernmental body authorized by or in accordance with Article 96 of the Charter, no question of jurisdiction ratione personae arises as to the requesting organ. Such questions could arise, however, if an unauthorized body or person were directly involved in the impeached decision. It will then be the responsibility of the Court or tribunal seised of the request for an advisory opinion to ensure that the fundamental principle of international litigation law and practice – the equality of the parties – is maintained throughout the judicial phase. 7.5. The Composition of the Bench The Statutes are silent about the composition of the bench in cases of interpretation and revision. As seen in Chapter 4, this caused difculties in the drafting of the Rules of the Permanent Court although the matter was not discussed in any depth. Only one aspect was settled in principle in the third paragraph of Article 66 adopted in 1926, substantially repeated as Article 60 of the Rules of 1936. That was to the effect that the request for interpretation or revision should be dealt with by the Court, and if the original judgment had been given by one of the Chambers envisaged in the Statute of the Permanent Court, the proceedings in interpretation or revision should be dealt with by the same chamber. That did not go so far as to deal with the composition of the bench – the persons who would sit in the case and render the judgment. It seems, however, that what the members of the Permanent Court who adopted those Rules had in mind was that, to the extent possible, the same judges who had given the impeached judgment should deal with proceedings in interpretation or revision of that judgment. That Statute required the Permanent Court to establish three chambers, one for labour cases under Article 26, one for cases relating to communications and transit under Article 27, and the Chamber for Summary Procedure formed under Article 29. These were all to be standing chambers. The consequence was that when the 1936 Rules referred to any of the Chambers, it referred

§ 7.5. The Composition of the Bench

177

to a standing judicial organ that took the place of the full Permanent Court and acted in its name. The Rules said nothing about the personal composition of the bench. Provisions existed regarding the participation of judges ad hoc for each one of the chambers. It is obvious from the context that when the 1899 Conference adopted the original provision for revision (Chapter 2 § 2.2 note 15 above) and referred to ‘the Tribunal which pronounced the award’, it had in mind the same arbitrators as had pronounced the original award. The same can be said of the decision of the 1907 Conference to introduce proceedings for interpretation of an award, also by the same tribunal as pronounced the original award (Chapter 2 § 2.2 note 26 above). That indeed has been the practice in all the inter-State arbitrations noted in this work. When the two concepts were taken into the Statute of the Permanent Court, little attention seems to have been paid to this aspect, and the provision of the 1922 Rules presumably had the same idea in mind, notwithstanding the long time limit of 10 years during which a request for revision could be made. That would also conform to the provision of the Statute of the Permanent Court that all the judges served for a term of nine years, the term of ofce of each one of them terminating on the same date. This provided the statutory context for another relevant provision of the Statute of the Permanent Court, the third paragraph of Article 13 that the judges shall continue to discharge their duties until their places have been lled and though replaced, they shall nish any cases which they may have begun. This only applied to a judge whose term of ofce expired while a case was in progress and that judge was among the sitting members of the Court in the particular case. Both aspects were changed fundamentally in 1945, so much so that today little guidance can be found in any of the proceedings of the Permanent Court. The system of standing chambers which the Permanent Court was obliged to establish has been replaced by Article 26 of the current Statute. By that, the Court is given the option to form one or more chambers ‘for dealing with particular categories of cases; for example, labour cases and cases relating to transport and communications’. For a long time the Court made no use of this provision. In 1993 it established a seven-member Chamber for Environmental Matters, as a standing chamber of the Court. No case has yet been referred to it. At the same time Article 26, paragraph 2, of the Statute introduced a new conception of chambers: ‘The Court may at any time form a chamber for dealing with a particular case. The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties’. These are designated as ‘ad hoc chambers’. It is clear from the context of this provision in the Statute that an ad hoc chamber ceases to exist when it

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has delivered the nal decision in the case for which it was formed. This too remained unused for a long time until 1982. Since then six ad hoc chambers have been formed, and in one case, the Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, a request for revision was led in 2002, at the end of the ten-year period. ITLOS is in a special position, owing to the inclusion in it of the Seabed Disputes Chamber. The Tribunal has several chambers. Under Annex VI, Article 15, paragraph 3, it is obliged to form annually the Chamber for Summary Procedure. By paragraph 1 of that Article the Tribunal may form such chambers composed of three or more of its elected members for dealing with particular categories of disputes. The Tribunal has accordingly established a Chamber for Marine Environment Disputes, a Chamber for Fisheries Disputes, and a Chamber for Maritime Delimitation Disputes. These are all standing Chambers. The Tribunal also has power similar to that of the International Court of Justice to form an ad hoc chamber for dealing with a particular dispute. It has once made use of this power when it formed an ad hoc chamber to deal with the dispute between Chile and the European Union over swordsh stocks in the South-East Pacic Ocean.7 By Article 15, paragraph 5, a judgment given by any of these chambers shall be considered as rendered by the Tribunal, a provision that corresponds to Article 27 of the Statute of the International Court of Justice. Under the Convention the Tribunal is obliged to establish a Seabed Disputes Chamber with both contentious and advisory jurisdiction under Part XI of the Convention and Annex VI, Articles 14 and 35 to 40. This Chamber is virtually an independent standing judicial organ. Its only link with the Tribunal is that the Chamber’s members are ‘selected’ by the Tribunal from among its members. Under Annex VI, Article 35, paragraphs 2 and 3, they serve for a period of three years and may be reselected only for a second term. The Declaration of Principles governing the Sea-Bed and the Ocean Floor, and the subsoil thereof, beyond the Limits of National Jurisdiction (General Assembly resolution 2749 (XXV), 17 December 1970) laid down that the parties to any dispute relating to activities in that area and its resources should resolve such dispute by the measures indicated in Article 33 of the Charter ‘and such procedures for settling disputes as may be agreed upon in the international regime to be established’. The settlement of such disputes through Part XI, Section 5, Articles 186 to 191, is an integral element of the regime established for this purpose by

7

ITLOS Rep. 2000, 148. This case is pending. For particulars about this case see Annual Report of the International Tribunal for the Law of the Sea for 2005 (SPLOS/136, 24 March 2006) para. 28.

§ 7.5. The Composition of the Bench

179

Part XI of the Convention. In that capacity the Chamber has an independent power under Article 188 of the Convention to form special chambers under Annex VI, Articles 15 and 17. and ad hoc chambers in accordance with Annex VI, Article 36. Those Chambers parallel the similar powers conferred on the ITLOS by other provisions of the Convention. By Article 186 of the Convention the establishment of the Chamber and the manner in which it is to exercise its jurisdiction are governed by the provisions of Part XI, section 5, Part XV, and Annex VI. It therefore appears that the provisions of Article 296 on interpretation and of Article 129 of the Tribunal’s Rules apply equally to judgments and awards rendered under Part XI. Section 5. The Statutes of the ICJ and ITLOS each provide for a system of staggered elections and staggered terms of ofce of the members of the Court and of the Tribunal. While the term of ofce remains at nine years, one third of the members of the Court or Tribunal elected at the rst election of 1946 and 1996 respectively served for a term of three years, one third for a term of six years, and the remaining third for the full term of nine years. This has led to the current system of an election of ve members of the Court and seven members of the Tribunal taking place every third year (with additional elections whenever required to ll occasional vacancies caused by the decease of a serving member or resignation), producing kaleidoscopic changes in the composition of these two judicial organs. To match this, the Court has interpreted and applied Article 13, paragraph 3, of the Statute as meaning that although replaced, members of the Court shall nish any phase of a case which they may have begun. The Tribunal has adopted a similar provision in Article 17 of its Rules. In this context ‘phase’ means also an interlocutory proceeding ending in a formal decision such as a judgment or in the case of provisional measures of protection (and possibly preliminary objection proceedings) in an order.8 With regard to the chambers, Article 24 of the 1946 Rules provided that the members of a chamber shall, in conformity with Article 13, paragraph 3, of the Statute nish any case which they may have begun, though they have ceased to be members of the chamber. This has been replaced by Article 17, paragraph 4, of the Rules of 1978, which provides that members of an ad hoc chamber who have been replaced following the expiration of their terms of ofce shall continue to sit in all phases of the case, whatever the stage it has then reached. There has been no difculty in applying this provision.

8

Other interlocutory phases that have been terminated by an order include the admissibility as such of counter-claims and the uncontested admission of a State requesting permission to intervene under Art. 61 of the Statute.

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The resignation from the Court of a member of an ad hoc chamber before which the case for which it was formed is pending entails the resignation of that member from the chamber also. In those circumstances the Court will consult the parties with regard to the composition of the chamber and then proceed to declare the new composition of the chamber.9 Notwithstanding these two fundamental changes, Articles 78 to 81 (1972 Rules, Articles 83 to 86) were left unchanged in 1946. In the absence of any published records of the Court’s deliberations on those Rules, it is impossible to know whether it gave any consideration to the problems of the personal composition of the bench in either of these two exceptional proceedings of interpretation or revision. The interpretation cases determined by the Permanent Court of International Justice were handled by the Court in approximately the same composition as had determined the impeached judgment. The two interpretation cases both occurred during the rst nine years of that Court’s existence so the term of ofce of none of the members of the Court who had delivered the impeached judgment had terminated. In the initial Treaty of Neuilly case the President of the Court, Loder, was President of the Chamber of Summary Procedure. He was no longer President of the Court for the interpretation phase but was retained as President of the Chamber for the interpretation case.10 The precedence of his colleagues was changed, since at that time the former President of the Court had a protocol status immediately after the President (this was abolished in 1931). In the Chorzów Factory (Interpretation) case the problem was more complex, as the composition of the Court was slightly different in Judgment No. 7, Certain German Interests in Polish Upper Silesia (Merits) and Judgment No. 8, Factory at Chorzów (Claim for Indemnity). However, all the judges who sat in the interpretation proceedings except one had participated in one or other of the original proceedings. The exception was the Polish judge ad hoc in the interpretation case, Ehrlich, who replaced Rostworowski who had been Polish judge ad hoc in the two original cases. Huber was President of the Court throughout. In connection with that case the Permanent Court has reported that the question was raised whether, for the purposes of that interpretation, it would be necessary to summon all the judges who had taken part in either of the two judgments to be construed. The Court decided in this respect that there was no need to summon the ordinary and deputy-judges who had sat when

9

10

This occurred in the Frontier Dispute (Benin/Niger) case. The judge who replaced the resigning judge on the Court was elected as the replacement on the Chamber. ICJ Rep. 2005 84. See on this PCIJ Ser. E No. 3 at p. 191 (1927).

§ 7.5. The Composition of the Bench

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judgments Nos. 7 and 8 had been pronounced. That decision was based on the view that Article 13 of the Statute only referred to judges who had ceased to belong to the Court or to one of the chambers, as the case might be, and that the reference to Article 13 in Article 66 of the Rules of 1922 would only authorize the summons of judges who had sat in those two cases if they were no longer members of the Court. It was also observed on this occasion that the procedure for the interpretation of a judgment, like that in regard to preliminary objections, was in the nature of a summary procedure. A request for interpretation was not a continuation of the original suit, but a new action distinct from it. Its urgent character was incompatible with the possible delays which might result from a liberal construction of the condition laid down in the last sentence of clause 3 of Article 66 of the Rules. The Court was therefore competent as composed on that date with the addition of judges ad hoc who, in view of this decision, need not be the same as those who had sat in the original cases. In accordance with this, the Registrar: (1) notied the parties that the provisions of Article 35, No. 1, of those Rules regarding the appointment of an agent and the selection of an address for service at the seat of the Court were applicable by analogy in proceedings for the interpretation of a judgment; (2) informed the parties that they had the right under Article 31 of the Statute to appoint a judge ad hoc, at the same time drawing their attention to the names of the judges ad hoc appointed by them who had sat in the original cases the interpretation of which was sought; and (3) pointed out that the time allowed for the presentation by Poland of observations on the request for an interpretation made by the German Government corresponded, as regards proceedings for an interpretation, to the time allowed for the submission of the counter-case (now counter-memorial) in ordinary proceedings.11 That has remained the procedure in cases of the interpretation of a judgment and, basically, in cases of the revision of a judgment. In all the cases of interpretation and revision that have come before the present International Court of Justice the Court has sat in its composition as at the date of the hearing. The judges ad hoc, even if the same persons who had acted in that capacity earlier, had to make a fresh solemn declaration in a public meeting of the Court. The document instituting the proceedings and the appointment of the agent had to be authenticated in the normal way. The difculties over the composition of the bench came to a head in the El Salvador-Honduras Revision case which was led on 10 September 2002, one day short of the ten year period from the date of the original judgment of

11

Ser. E4 at p. 295 (1928).

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1992. Only one member of the chamber that had dealt with the original case was still alive and a member of the Court, and the termination of that judge’s third term of ofce as a member of the Court was due to occur in 2003. One of the judges ad hoc of the 1992 proceedings was also alive, a lawyer in private practice in his home country. The applicant party requested the Court to form a new ad hoc chamber, which it did.12 Not one of the members of that chamber had sat in the original proceedings. Here Article 54, paragraph 3, of the Statute may have some relevance. By that, the Court’s deliberations take place in private and remain secret. One can understand from this that they remain secret from future members of the Court, and that in consequence in a differently composed bench trying an interpretation or revision case, some members may have a degree of personal knowledge and private papers regarding that case, while others of their colleagues will not have that kind of information at their disposal.13 In these respects, the developments in the International Court stand in striking contrast to corresponding developments in inter-State arbitrations. All the interpretation/revision arbitrations discussed in Chapters 4 and 5 were determined as a continuation of the original case by the arbitration tribunal that had rendered the impeached award, with the same agents and other personnel (including the registry) that had undertaken those functions in the original case. In the arbitrations, the interpretation/revision problems had arisen soon after the original award, in the immediate compliance process. The arbitrators certainly had their personal recollections and their personal documentation about the original proceedings. Article 99 only addresses the institution of proceedings in revision by means of a unilateral application. This conforms to Article 61 of the Statute which implies that proceedings in revision unilaterally instituted in this way come within the jurisdiction of the Court. This does not exclude a special agreement by which both parties agree in requesting the Court to revise a judgment, although such a special agreement would certainly be exceptional. Any such special agreement would have to contain the particulars necessary to show that the conditions specied in Article 61 are fullled. Those conditions are peremptory and have to be fullled in any case. Following the dictum of the

12 13

ICJ Rep. 2002 618. Note the observation of Judge Sir Hersch Lauterpacht in his separate opinion in the advisory opinion on Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South-West Africa that, confronted with an apparent gap in an earlier opinion the Court has to ll the lacuna by all available means of interpretation. ‘These do not include the knowledge of any particular member of the present Court as to the state of his – or his colleagues’ – minds at the time when the Advisory Opinion was rendered in 1950’. ICJ Rep. 1955 67 at 96.

§ 7.6. The Pleadings

183

International Court in the Tunisia-Libya (Revision and Interpretation) case on the relationship between a provision in a special agreement and the provision of Article 60 of the Statute regarding the interpretation of a judgment, the Court’s jurisdiction to undertake a revision of one of its own judgments is a special jurisdiction. That jurisdiction exists independently of any other rights that a party might possess in connection with that judgment. States when becoming parties to the Statute consent to that jurisdiction without precondition.14 That case also decided that the Statute will prevail should the special agreement under which the original case was heard contain conicting provisions regarding the interpretation of the judgment to be delivered. 7.6. The Pleadings The relatively summary and expeditious character intended for interpretation and revision proceedings is apparent from the provisions of the Rules regarding the procedure following the institution of the proceedings. In the case of proceedings in interpretation, Article 98, paragraph 3, of the Rules addresses only the case where the request for interpretation is made by application. The requesting party’s contentions (les thèses) are to be set out in the application and the other party shall be entitled to le written observations within a time limit to be xed by the Court or by the President if the Court is not sitting. As a consequence of this, the application instituting interpretation proceedings parallels the memorial in regular contentious cases. There is nothing about the further written pleadings when the request for interpretation is made by the notication of a special agreement. As the special agreement should set out the contentions of each party, it too will parallel the memorials led concurrently in a contentious case. In a request for revision, the procedure at this stage is different because of the necessity for a judgment on the admissibility of the request to open the revision case on its merits. Article 99, paragraph 2, of the Rules accordingly entitles the other party to le written observations limited to the admissibility of the application, within a time limit to be xed by the Court or by the President if the Court is not sitting. By paragraph 3, the Court may afford both parties a further opportunity of presenting their views on the admissibility of the application. This provision is in exible terms, leaving open whether the further presentation of views on the admissibility issue is to be in writing or in oral proceedings. In the Tunisia/Libya Revision and Interpretation case the Court held oral proceedings for the purpose of hearing argument by the parties on the application as a whole, but the argument was limited,

14

Cf. ICJ Rep. 1985 192, 216 (para. 43) as cited in Chapter 5 § 5.4 above.

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in so far as concerned revision, to the question of the admissibility of the request for revision.15 In the Application of the Genocide Convention (Revision) case the parties asked for a second round of written observations, but the Court decided that this was not necessary. On the other hand it held oral proceedings at which the parties led formal nal submissions.16 In the El Salvador/Honduras Revision case the written phase was a little more complicated as El Salvador contended that Honduras had submitted new documents with corresponding arguments in its written observations, and this required a response accompanied by the necessary documents. The Court decided, following a meeting with the parties, that additional written pleadings were not necessary and that if El Salvador wished to le new documents its request would be considered in accordance with the procedure for the ling of new documents after the closure of the written proceedings. The Court then held hearings at which the parties led nal submissions.17 7.7. The decision Article 100, paragraph 2, of the Rules of the International Court of Justice and Article 129, paragraph 3, of the Rules of ITLOS provide that the decision (La décision) on a request for interpretation or revision of a judgment shall be given in the form of a judgment (arrêt). In so far as concerns revision, the word ‘decision’ in this provision refers, it is believed, both to the nal decision on the admissibility of the request for revision and to the nal decision on the substance (or merits) of the request if it is admitted, and not to any interlocutory decision which will normally be in the form of an order. As a judgment, the decision of the International Court will automatically be on a par with any like judgment and come within the scope of Article 94 of the Charter.18 Various formulas have been employed in the operative clause of these judgments. In the Treaty of Neuilly (Interpretation) case, the Chamber of Summary Procedure of the Permanent Court of International Justice ‘declare[d] that the request . . . for an authoritative interpretation of the judgment of September 12th, 1924, in accordance with Article 60 of the Statute cannot be granted’.19 In the Chorzów Factory (Interpretation) case, the Permanent Court ‘gives

15 16 17 18 19

ICJ Rep. 1985 192, 197 (para. 9). ICJ Rep. 2003 7, 10 (paras. 7, 10). ICJ Rep. 2003 392, 395 (para. 8). Application of Genocide Convention (Merits) case, ICJ Rep. 2007, 26 February, para. 113 PCIJ Ser. A4.

§ 7.7. The decision

185

judgment as follows . . . that . . . [the Court explained what it had meant in the relevant passage of its earlier judgment]’.20 The present Court in the Asylum (Interpretation) case simply declared the request for interpretation of the judgment of November 20th 1950, presented on the same day, to be inadmissible.21 The judgment in the Tunisia/Libya Continental Shelf (Revision and Interpretation) case was much more complicated. In ve main paragraphs it found the request for revision under Article 61 of the Statute inadmissible, found the request for interpretation under Article 60 of the Statute admissible and declared by way of interpretation how a given passage in the impeached judgment was to be understood. It went on to nd that the request for the correction of an error was without object ‘and that the Court is therefore not called upon to give a decision thereon’. It then found Tunisia’s request for another interpretation admissible under Article 60, as far as it related to the ‘most westerly point of the Gulf of Gabes’, and declared ‘by way of interpretation of the Judgment of 24 February 1982’ how certain paragraphs of the impeached judgment were to be understood and applied, leaving it for the parties’ experts to determine the precise co-ordinates.22 The judgments in the cases of recourse in nullity or suchlike go further. In the Arbitral Award of the King of Spain case the Court found ‘that the Award . . . is valid and binding and that Nicaragua is under an obligation to give effect to it’.23 In the Arbitral Award of 31 July 1989 case it rejected a submission of Guinea-Bissau that the award was inexistent and another submission that it was absolutely null and void, and then rejected a submission that the Government of Senegal (the respondent) was not justied in seeking to require the applicant to apply that award, and on the respondent’s submission to that effect found that the award was nal and binding for both parties, which have the obligation to apply it.24 The judgment in the Cameroon-Nigeria (Interpretation) case found that the request for interpretation was inadmissible and rejected Cameroon’s submission that Nigeria bear the additional costs caused to Cameroon by the request for interpretation.25 We nd a different picture in the relevant arbitral awards. The dispositif in the Anglo-French Continental Shelf arbitration, after disposing of the French objections to the admissibility of the request for interpretation, determines that the course of the boundary dened in the 1997 dispositif was not a correct

20 21 22 23 24 25

PCIJ Ser. A13 at p. 22. ICJ Rep. 1950 395, 404. ICJ Rep. 1985 192, 229 (para. 69). ICJ Rep. 1960 192, 217. ICJ Rep. 1991 53, 75 (para. 69). ICJ Rep. 1999–I 31, 40 (para. 19).

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application of the ndings in the reasoning and then proceeded to formally ‘rectify’ the line drawn in 1997. It also determined that the co-ordinates of certain base points and of points of intersection of arcs of circles were to be taken as referring to European datum (1950), that is were geodesics.26 7.8. Types of Judgments and Awards There is no question but that when the rst Hague Convention of 1899 was negotiated, the only type of ‘award’ then encountered in inter-State arbitrations was an award on the merits of the case that had been submitted to an arbitral tribunal. The operative provisions of such an award were nal. They established the relevant legal relations between the States parties and prescribed the conduct required of the parties to settle the dispute. The implementation of that conduct to the parties’ mutual satisfaction met the undertaking implied by Article 31 of the Convention (Article 37 of the Convention of 1907) to submit loyally to the award. Carrying on from the initiative of the Institute of International Law in 1875, the Conferences found it necessary to develop the notion of proceedings for the interpretation of an award and also to introduce provisions for proceedings for the revision of the award in closely dened conditions. Proceedings in interpretation became necessary to give precision to the required conduct should the implementation of the decision give rise to further contentions. Proceedings in revision addressed the particular question of whether the case had been correctly decided in light of all the known relevant facts of the case. The facts of the case included facts which, although in existence at the time, were unknown to the parties and to the tribunal when it made its determination, always provided that such ignorance was not due to the negligence of the party requesting the revision. However, with the establishment of the rst standing international tribunal – the Permanent Court of International Justice – other types of judgment have come into existence and not all of them impose obligations of conduct on the parties in the same sense as a decision on the merits of a dispute. What is more, they do not all lay the basis for the nal settlement of the dispute. These new types of decision have found their way into international arbitral proceedings. The rst of these new types of judgment is mentioned in Article 61, paragraph 2, of the Statute. That provision opens the way to proceedings in revision. To protect the integrity of the res judicata it requires the decision on the admissibility to be in the form of a judgment containing certain par-

26

Since that award it has become usual for a judgment or award on delimitation and a delimitation treaty to specify whether the lines are geodesic or loxodromic. Previous practice had been spasmodic.

§ 7.8. Types of Judgments and Awards

187

ticulars and making certain ndings. That judgment a priori is strictly limited to admissibility of the request for revision and those ndings. However, this does not preclude that if the request is admitted, in the next (merits) stage of the proceedings in revision the judgment on admissibility may be found give rise to more contentions when the parties come to apply it. There is nothing in the recorded legislative history of that provision of the Statute to show that the negotiation of that provision examined in depth all the implications of the introduction of this new type of judgment into international practice. The second of these new types of judgment is judge-made and came fairly soon in the history of the Permanent Court. In 1924 the respondent in the second contentious case before the Permanent Court raised a preliminary objection to the Court’s jurisdiction. The Permanent Court gave its decision on that issue in the form of a judgment, and that practice has been followed ever since for preliminary objections.27 Here, if an objection is upheld the judicial proceedings are terminated and the dispute reverts to the diplomatic eld with the major legal aspects untouched in a denitive form. If an objection is rejected, or if the Court or tribunal nds that the objection does not possess, in the circumstances of the case, an exclusively preliminary character, the judicial proceedings continue. Here the Court or tribunal has to deal with the objection (unless it is withdrawn) before it can give its decision on the merits. Given the subtleties of contemporary litigation, the possibility of the admissibility phase of a revision case arriving at a similar conclusion is one that cannot be dismissed out of hand. Recently the Law of the Sea Convention has introduced two more new types of proceeding, and in ITLOS the decision on them is to be in the form of a judgment. The rst of these are the so-called preliminary proceedings of Article 294 of the Law of the Sea Convention and Article 96 of the ITLOS Rules. These are proceedings, which may be instituted by either party or be determined by the court or tribunal seised of the case proprio motu, to the effect that a claim contained in a unilateral application instituting proceedings constitutes an abuse of legal process or prima facie is not well founded. These preliminary proceedings seem to be somewhat akin to preliminary objections although they are couched in stronger language, and are stated to be without prejudice to the right of any party to raise preliminary objections. There has been no instance of this type of case yet in ITLOS, but clearly, if the application under Article 294 is dismissed those proceedings will become incidental in relation to the main case. It is not clear, in the absence of experience, how the other competent courts or tribunals would be able to deal with this type of case.

27

The Mavrommatis Palestine Concessions case, PCIJ, Ser. A.2 (1924).

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Chapter Seven. Some Essential Procedural Matters

The second innovation is the opportunity given for judicial proceedings for the prompt release of vessels and crews under Article 292 of that Convention and Articles 110–114 of the ITLOS Rules. The decision in the prompt release cases is to be in the form a judgment containing certain ndings.28 In the experience of ITLOS, these are completely independent proceedings even if a single incident leads both to a claim for prompt release and to a claim for reparation in the traditional sense, as occurred in connection with the M/V Saiga of St. Vincent and the Grenadines in the rst contentious case to come before ITLOS.29 However, should allegations of State responsibility arise out of the incident that led to the initial detention of the vessel and crew, the prompt release case may become incidental to the principal case. It is surely only a matter of time before requests for the interpretation or for the revision of a prompt release judgment will come before one or other court or tribunal competent to hear these cases under that Convention.30 As seen the question whether the provision for interpretation of Article 60 of the Statute could be applied to a judgment on preliminary objections has arisen in the present International Court of Justice, and answered in the afrmative.31 The parallel question whether Article 61 of the Statute applies to a judgment on preliminary objections rst arose before the International Court of Justice in the Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) Preliminary Objections (Yugoslavia v Bosnia and Herzegovina).32 As Judge ad hoc Dimitrijevi said in that case: ‘Article 61 of the Statute does not distinguish between various kinds of judgments.’33 The Court made no comment on this in its judgment nding that the request for revision was inadmissible.

28 29 30

31

32 33

Rules, Art. 112 (4). Saiga case, ITLOS Reports 1997 16 (Prompt Release); Saiga No. 2 ibid. 1998 24 (Provisional Measures), ibid. 1999 10 (Merits). It appears that in the Saiga No. 2 case at one time the applicant considered bringing interpretation proceedings in relation to the judgment on the prompt release of a vessel in the initial case concerning that vessel. See the Memorial of Saint Vincent and the Grenadines, para. 148, Pleadings, vol. 3 at p. 67. On the possibility of a revision of that same prompt release judgment, see the dissenting opinion of Judge Ndiaye. ITLOS Reports 1999, at p. 255. Request for Interpretation of the Judgment of 11 June 1998 in Case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Nigeria v Cameroon). ICJ Rep. 1999 31. See Ch. 5 text to fn. 17 above. ICJ Rep. 2003 7. See Ch. 5 § 5.3 above. The Court found the request inadmissible. Ibid. at p. 58 (para. 10).

§ 7.8. Types of Judgments and Awards

189

Hudson introduced the expression ‘incidental jurisdiction’ in the rst edition of his treatise on the Permanent Court. This, described as jurisdiction incidental to that under Article 36 of the Statute, included among other matters Articles 60 and 61 ‘as to the construction and revision of judgments’.34 The common feature of the incidental jurisdiction as set out by Hudson is that the Court’s jurisdiction to deal with the particular matter does not depend on the express consent of the parties such as is required for the mainline proceedings. It derives from the existence, at least in a prima facie sense, of a case that has been duly entered in the Court’s General List and not removed from it and it follows from express provisions of the Statute as amplied in the Rules. Nevertheless, ‘incidental jurisdiction’ is a term with no precise legal meaning in international law. The International Court of Justice has taken the opportunity to explain its conception of incidental proceedings. A Chamber of the Court has put it in the following positive and negative terms: ‘Incidental proceedings by denition must be those which are incidental to a case which is already [emphasis added] before the Court or Chamber. An incidental proceeding cannot be one which transforms the case into a different case with different parties.’35 This implies that when a court or tribunal is regularly seised of a case, and provided that it has prima facie jurisdiction over the merits of any claim or other question that it is asked to decide, it can take all necessary decisions for the conduct of the proceedings or the conduct of the parties in relation to the subject-matter of the dispute pending the nal decision. The fundamental condition is that it remains within its jurisdiction both ratione personae and ratione materiae. The form which those decisions take is not material, even if the constituent instrument has special provisions requiring certain decisions to be in the form of a judgment. It is also probably better to reserve the term incidental for the proceedings and avoid any a priori qualication of the decision, since that might change as the proceedings progress. The term ‘incidental jurisdiction’ rst appeared in a normative text in the report of the Committee of Experts adopted by the Security Council and annexed to General Assembly resolution 91 (I), 11 December 1946, on the conditions on which Switzerland might become a party to the Statute. In the

34

35

M.O. Hudson, The Permanent Court of International Justice: A Treatise, p. 360 (Macmillan, New York, 1934), slightly revised in his The Permanent Court of International Justice 1920–1942, p. 408 (Macmillan, New York, 1943). More on incidental jurisdiction in J.-M. Sorel (ed.), Les procédures incidentes devant la Cour internationale de Justice: exercice ou abus de droits? (Pedone, Paris, 2001); Sh. Rosenne, Law and Practice4, vol. ii, p. 578, vol. iii, p. 1241. Land, Island and Maritime Frontier Dispute (Application to Intervene), ICJ Rep. 1990, 92, 134 (para. 48).

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Experts’ opinion, a declaration by Switzerland accepting the provisions of the Statute included ‘acceptance of any incidental jurisdiction exercisable by the Court under the provisions of the Statute’. The Committee did not explain what it understood by the term ‘incidental jurisdiction’ in this context. There is no room for doubt, however, that in that particular context the expression extended to the Court’s jurisdiction under the Statute to determine questions of interpretation and revision of an earlier judgment. In the light of accumulated experience, cases involving this type of jurisdiction, that is jurisdiction not dependent on the ad litem consent of the parties but implied from their consent to the exercise by the court or tribunal seised of the case of jurisdiction over the mainline case, fall into two distinct categories: incidental proceedings that take place pendente lite, that is while the mainline proceedings are in progress; and proceedings that take place after the principal judgment on the merits of the case or a nal judgment terminating a particular phase of a case, and arising out of that or otherwise dependent on that judgment. These we can designate as ‘derivative proceedings’. The Court introduced one new type of proceeding of this character in Corfu Channel. In that case, in the judgment on the merits it reserved for further consideration the assessment of the amount of compensation due under its principal judgment and regulated the procedure on this subject by a separate order.36 The ad hoc Chamber that decided the Frontier Dispute (Burkina Faso/Mali) case introduced another type of court-ordered derivative proceeding, namely the appointment of experts to assist the parties in the demarcation of the frontier in accordance with the judgment on the merits. Provision for this was contained in the special agreement referring the dispute to the Chamber, and an appropriate provision was written into the operative clause of that judgment. The Chamber proceeded to make the necessary appointment: it went further and authorized its President, in the event of a vacancy in the group of experts, to nominate a substitute.37 The

36

37

ICJ Rep. 1949, p. 4 at p. 36. After a round of written proceedings and a hearing this led to a judgment limited to the issue of the reparation due. Ibid. p. 244. This has been carried to its extreme if logical conclusion in the judgment of 19 December 2005 in the Armed Activities on the Territory of the Congo (Congo v Uganda) case. Here the Court found that Uganda was under obligation to make reparation to the Congo arising out of the principal claim, and that the Congo was under obligation to make reparation to Uganda for injury caused as presented in a counter-claim. In both respects the Court decided that failing agreement, the questions of the reparation due should be settled by the Court and reserved for that purpose the subsequent procedure in the case. See paras. 345 (5), (6), (13), and (14) of the judgment on the merits. This phase of this case is pending. ICJ Rep. 1986, 554 at 557 (special agreement), 648, (para. 176) (statement in judgment regarding the experts) and 650 (para. 179 B, operative clause of the judgment), ICJ Rep. 1987, at p. 7 (Order Nominating the experts).

§ 7.8. Types of Judgments and Awards

191

parties to a special agreement may even contemplate that should difculties arise over the implementation of a judgment said to be nal and binding, either party may seise the Court unilaterally to render an additional judgment to determine the modalities for executing the judgment on the merits.38 Other derivative proceedings, notably proceedings in interpretation and proceedings in revision have to be instituted by one of the parties. Their relation to the initial case derives from the impeached judgment that is sought to be construed or revised. As such the Court treats it as a new case for all purposes. It is entered in the General List as a new case.39 The agents of the parties and any judges ad hoc, have to be reappointed even if they are the same persons as exercised those functions in the original case. Only where the original case was heard by an ad hoc chamber under Article 26, paragraph 2, of the Statute is the derivative proceeding to come before the same individuals as decided the original case (if that is possible).40 However, since clearly the provisions of the ICJ Statute on interpretation and on revision and in ITLOS the provisions on interpretation apply to all judgments, the derivative proceedings may also at the same time become incidental proceedings if they relate to a judgment that was given in an incidental phase of the original case, in specie a judgment on preliminary objections. The fact that a proceeding for the interpretation of a judgment on preliminary objections constitutes a ‘new case’41 for different formal aspects of the proceedings including an entry in the General List does not exclude its being also incidental to the case in connection with which the original judgment up for interpretation was made.

38 39

40 41

See the special agreement of 7 April 1993 for the submission to the Court of the Gabíkovo-Nagymaros Project case, ICJ Rep. 1997 at 10. The Court requires a request for any action by the Court, including proceedings that are incidental to the request, to be the object of an entry in the General List before it can hold a hearing in the case. 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, ICJ Rep. 1995 288 at p. 302 and 306 (paras. 44, 66). On the General List, see the author’s Essays on International Law and Practice, 197 (Martinus Nijhoff, Leiden, 2007). On the composition of the Court and Bench in cases of interpretation and revision, see § 7.3 above. Order xing time limits in the Land and Maritime Boundary between Cameroon and Nigeria case, ICJ Rep. 1999–I 24. The Court amplied this in its judgment on the merits – ‘a new case, separate from the present proceedings’. Ibid. 2002 303, 313 (para. 14). Nevertheless, as that paragraph shows, the formal summary of the proceedings in the judgment on the merits includes recital of the proceedings for interpretation.

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Chapter Seven. Some Essential Procedural Matters

In the case of ITLOS, where the Convention on the Law of the Sea and Annex VI contain no provisions for revision of a judgment, that Tribunal has assumed in its Rules of Court the power to entertain proceedings in revision of a judgment. This parallels another provision in those Rules for which there is no corresponding provision in the Convention (including Annex VI) – the power to give advisory opinions. The effect of these two sets of rules is that the Tribunal has made it possible for interested parties to bring an appropriate case before it and has indicated how such a case is to be dealt with. The Permanent Court has expressed the law on this aspect quite clearly in a passage which draws a sharp distinction between ad hoc arbitration proceedings and litigation before a standing international organ: [I]t should be observed that though certain arguments . . . might be regarded as wellfounded in the case of arbitrators appointed ad hoc and not forming a permanent body, they do not, on the other hand, apply in a case where the Parties have had recourse to a body already constituted and having its own rules of organization and procedure. Unless a contrary intention has been expressed, the interested Parties are in such cases held to have accepted such rules.42

This principle is equally applicable in the case of ITLOS. If a qualied entity has recourse to ITLOS on the basis of the Law of the Sea Convention or any other treaty related to it and conferring jurisdiction on ITLOS, by its status as a party to the Statute or to the related treaty it has given its consent to the exercise by ITLOS of all the powers set out in the basic texts of ITLOS. That includes the Rules of the Tribunal. As far as Annex VII arbitrations are concerned under the Law of the Sea Convention, except for the anomalous Southern Bluen Tuna case which operated without Rules of Procedure, in the other cases the parties formally adopted Rules of Procedure suggested by the International Bureau of the Permanent Court of Arbitration serving as Registry. Those Rules of Procedure included relevant provisions. Here again by this adoption the parties gave their consent to whatever incidental or derivative proceedings became necessary before the dispute was nally settled, and settled right (to return to President Lincoln). *

*

*

The matters discussed here concern only the interpretation or revision by an international court or tribunal of one of its own decisions, as between the parties to the original impeached judgment said to be nal and without appeal, denitively settling the dispute. This poses special problems. In addition, both the Permanent Court of International Justice and the International

42

Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne advisory opinion, PCIJ Ser. B12 at p. 31.

§ 7.8. Types of Judgments and Awards

193

Court of Justice have had cases of the interpretation of arbitral awards and other decisions of arbitral tribunals and even of mixed claims tribunals deciding claims of individuals against a foreign States. The recourse to the international court of cases of that type is of a fundamentally different character and does not require any action in relation to the earlier judgment. The normal provisions of the Statute or other basic instrument and the normal rules of procedure govern that type of international litigation. Nevertheless, if the international instrument or instruments under which the original decision was made provided that the decision of that court or tribunal was to be nal, with or without the addition of ‘and without appeal’, the practice of the international court in dealing with such a case regularly brought before it can be of some precedential value in cases of interpretation or revision of its own decisions.

SELECT BIBLIOGRAPHY

Bardonnet, D., “De l’équivoque des catégories juridiques: la révision des sentences arbitrales pour ‘erreur de fait’ ou ‘fait nouveau’ dans la pratique latino-américaine”, Liber Amicorum in Memoriam Judge José María Ruda 199 (Kluwer Law International, Dordrecht, 2000). Caron, D.D., Caplan, L.M. and Pellonpää, M., The Uncitral Arbitration Rules: A Commentary, Chapter 24, Post-Award Proceedings 879 (Oxford University Press, Oxford, 2006). Chandrasekhara Rao, P., and Gautier, Ph. (eds.), The Rules of the International Tribunal for the Law of the Sea: A Commentary pp. 353, 366 (Martinus Nijhoff, Leiden, 2006). Geiss, R., “Revision Proceedings before the International Court of Justice”, 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 179 (2003). Kaikobad, K.H., Interpretation and Revision of International Boundary Decisions (Cambridge University Press, Cambridge, 2007). Reisman, W.M., Nullity and Revision: the Review and Enforcement of International Judgments and Awards (Yale University Press, New Haven, 1971). Torres Bernárdez, S., “A propos de l’interprétation et de la révision des arrêts de la Cour Internationale de Justice”, Le Droit International à l’heure de sa codication : Etudes en l’honneur de Roberto Ago, III, 443 (Giuffré, Milan, 1987). Zimmermann, A., Interpretation of Judgments of the International Court of Justice under Article 60 of the Statute, LL.M Thesis, Tübingen, 1989. Zimmermann, A. and Geiss, R., on Articles 60 and 61 in A. Zimmermann et al. (eds.), The Statute of the International Court of Justice: A Commentary 1275, 1299 (Oxford University Press, Oxford, 2006). Zoller, E., “Observations sur la révision et l’interprétation des sentences internationales”, 24 Annuaire français de droit international 327 (1978).

INDEX

Appeals cassation distinguished, 154 complete review and reconsideration, as, 154 International Civil Aviation Authority, from decisions of, 156–157 International Court of Justice, to, 71 Permanent Court of International Justice, to new rule for, 70–71 cases of, 154–156 jurisdiction, 157–158 ‘without appeal’, 16, 19, 35, 36, 42, 43, 45, 110, 132, 148, 156, 168, 185 Arbitration States, settlement of disputes between, 7 Award aim of revision of, 16 binding nature of, 18, 21 denitive settlement of dispute, 21 existence and validity, challenge to, 149–154 nality of, 14 ICJ, reference to, 145–146 insufciency of reasoning, 152 interpretation of, 8, 21, 23, 89, 193 decisions, 185–186 time limit for, 19 meaning and scope of, 8–9, 18 nullity, decision of, 185 real majority, supported by, 152 revision of, 18, 19, 22, 90 decisions, 185–186 substantive dispute and dispute relating to award, distinction between, 151 validity and annulment, 21 Bench, composition of, 56, 58, 77, 93, 129, 133, 136, 140, 145, 176–183 Cassation appeal distinguished, 154 UN Administrative Tribunal, judgments of, 158–159 Certiorari international procedure, lack of, 2 Compromis – see Special Agreement

Correction, award or judgment, of, 1, 18, 20, 21, 24, 54, 57, 61, 105, 114–119, 120–122, 129, 132–133, 144–145, 186 Dispute meaning or scope of judgment, as to, 65, 98, 104, 108, 169, 171–172 Experts ICJ, appointment by, 190–191 First World War, Peace Conference, 27 Hague Conventions (1899, 1907), 9 Hague Peace Conferences (1899, 1907) arbitral code, discussion of, 10 contract debts, Convention concerning recovery of, 15–16 court of arbitral justice, draft convention for, 15 international disputes, settlement of, draft convention, 11–12 inter-State litigation, codication of, 9–17 principle of revision, adoption of, 11–12 revision, demand for, 11–12 review of discussions, 16 second, purpose of, 13 Institute of International Law arbitration procedure, on 7–9, 186 compulsory arbitration, on, 146 International Civil Aviation Authority appeal from, 156–157 disagreements, deciding, 156 International Court of Justice Administrative Tribunal, recourse from, 158–165 advisory opinion, request for, 175–176 interpretation or revision of, 67 appeals to, 71 chambers, 177 decisions, compliance with, 2 decisions other than judgments, interpretation or revision of, 67

198

derivative proceedings, 190–191 establishment of, 34–38 experts, appointment, by, 190–191 instrument instituting proceedings, ling, 168 judgment of, binding force between parties, 3 both parties, legal remedies open to, 36 compliance with, 2–3 construction of, 3–4 nality of, 35 interpretation of – see Sources Cited, Statute Article 60 and Rules of Court (1978) Articles 98, 100 preliminary objections, on, 188 types of, 186–193 jurisdiction, contentious, 168 incidental, 189–190 interpretation of judgments, requests for, 36–37 special, 167–169 members of, resignation of, 180 staggered elections and terms of ofce, 179 Practice Directions, 49, 64 principal judicial organ of UN, as, 17, 34 references to, decision or act of international body, recourse from, 72 extent of jurisdiction, 73 practice, 73 procedures, development of, 71–72 seisin, 175–176 revision of judgments, of, see Sources Cited, Statute Article 61 and Rules of Court, Articles 99, 100 ad hoc chamber, original judgment delivered by, 141 admissibility application, conditions of, 130–131, 137 admissibility and merits, consideration in single proceedings, 68 application and proceedings for, 35–36, 65, 66, 68, 172 chamber, by, 66, 141 composite proceedings, 174–175 conditions for, 137 continuing obligation of parties, 174 death of original judges, 181–182 decision, 184–186 decisive fact, discovery of, 131 inadmissible application for, 140–144

Index

institution of proceedings, 172–175 interpretation distinguished, 108 interpretation proceedings, differences in, 69 jurisdiction, 69–70 jurisdictional questions, 135 newly discovered facts, contention of, 10–11, 131, 135–138, 143 non-party intervener, rights of, 169–170 objection to, 103 operative clause, interpretation of, 129, 131 pleadings, 183–184 previous compliance with judgment as condition precedent for, 142 procedure, 68–69, 173–174 request, conditions for, 102 special jurisdiction, 167–169 special procedure, 102 status of respondent as party, 135 Statute, provision in, 5–6 time limit, 132, 142 two-stage procedure, 102, 136 Rules of Court, of, 62 amendments, promulgation of, 64 basis of, 62 drafting records, 62 rst, adoption of, 62 interpretation of judgment, request for, 63–66 meaning or scope of judgment, dispute as to, 65 new, 1978, 64–70 partial amendment, 1972, 62 revision of judgment, request for, 63–66 special reference, 72 seisin of Court, 167–169 special reference to, 156–158 standing to appear before, 138–140 status of respondent as party before, 135 Statute – see Sources Cited, binding force of decisions, provisions on, 3 interpretation and revision of judgments, provision for, 5–6 legal conguration of proceedings, setting out, 2 Rules of International Tribunal for the Law of the Sea, parallels with, 47 settlement of dispute, function of judgment for, 3 Switzerland as party to, 189–190 unilateral recourse from decision of another court, entertaining, 153–154

Index

International courts and tribunals interpretation or revision, requests for admission of proceedings, 6 legal standing of awards and decisions, determining, 4 systemic hierarchy, lack of, 1–2 International judgment or award nality of, 1, 4, 35, legal standing, determining, 4 obligation to comply with, and, 4 own decisions, interpretation or revision of, 5 published, correctness of, 1 International Law Commission arbitral procedure, codication of, 17–23, Model Rules for Arbitral Procedure, 21–23, 81, 89–90 International litigation consensual basis of, 1 International Prize Court Convention (1907), 16 International Tribunal for the Law of the Sea chambers, 178 decisions, nality and binding force of, 41, 74 interpretation of judgments of, decision, 184–186 decision to entertain application, form of, 78 request for 76 Rules of, 76–80, 86–88 special agreement, 78 time limit, 77–78 Tribunal or Chamber hearing request, 77 types of judgments and awards, 186–193 judicial proceedings, initiation of, 73 jurisdiction, special, 167 members, staggered elections and terms of ofce, 179 practical arrangements for establishment of, 74 preliminary proceedings, 187 recourse to, 192 revision of judgments of, decision, 184–186 decision to entertain application, form of, 78 proceedings for, 192 request for 76 Rules of, 78–80, 86–88 special agreement, 78 time limit, 77–78

199

Tribunal or Chamber hearing request, 77 types of judgments and awards, 186–193 Rules, of – see Sources Cited, draft, 75–76 interpretation and revision of judgments of, 86–88 preparation of, 74 seabed and ocean oor, settlement of disputes as to, 178–179 Seabed Disputes Chamber, 178 settlement of disputes in, 39 Statute, 39–40 Statute of the International Court of Justice, parallels with, 47 vessels and crew, proceedings for prompt release of, 188 League of Nations Permanent Court of International Justice, plans for, 28–31 court, separate from, 27 Permanent Court of Arbitration, 13, 17, 23 Optional Rules for Arbitrating Disputes between Two States, 81 registry services, 67 revision of judgments, objection to request for, 67–68 rules of procedure, 80–82 Permanent Court of International Justice Advisory Committee of Jurists (1920), 28–31 jurisdiction, proposal for, 30 appeals to, cases of, 71, 154–156 jurisdiction, 157–158 new rule for, 70–71 chambers, 176–177 composition, 28 Co-ordination Committee Report (1935), 71, 83–85 establishment of, 12 interpretation of judgments of, application, admissibility of, 60–61 composition of Court for, 56 conditions for, 94 dispute as to meaning or scope of impeached decision, denition, 29, 94–97 judgment being interpreted, not going beyond, 93 jurisdiction, 30, 55

200

request for, 56–57 written proceedings on, 59–60 Rules of Court, provisions in, 55–57 substance or merit of request for, 95–96 objection to jurisdiction, as to, 187 types of, 186–187 jurisdiction, derivative, 190–191 incidental, 189 objection to, 60–61 optional, 31 scope of, 28–29 unilateral application to invoke, 29 members, election of, 28 plans for establishment of, 27 preliminary session, 51 procedure, details of, 29–30 revision of judgments, application for, 53–54 admissibility of, 60–61 time limit for, 31–33 issue of, 29, 52 proceedings for, 52–53 right of, 30 Rules of Court, provision in, 52–54 rules, drafting, 30–31 Third Committee’s report, 58 Rules of Court, of, 17, 49–54, 57–61

Index

Statute of, 17, 28, 31–33 Protocol of Signature of, 50 revision of, 50 Washington Committee of Jurists (1945), examination by, 34–35 Res judicata, 20, 43–47, 111, 123, 139, 169, 171, 173–174 Special agreement, 12, 67, 69, 77, 81, 93, 103, 171 United Nations administration of justice within, 165 advisory procedure, 158–160 Committee for Review of Administrative Tribunal Judgments. 158–162 United Nations Administrative Tribunal cassation of judgements of, 158–159 judicial review of judgements, 161–165 jurisdiction, exceeding, 158 nature of, 158 recourse from, 158–165 revision of decisions of, 5 Statute of, 158 United Nations Charter International Court of Justice, provisions relating to, 34 decisions, compliance with, 2–3