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Australian Year Book of International Law |
Iain Scobbie[∗]
It is an honour and pleasure to have been asked to contribute to this volume of the Australian Year Book of International Law which is intended as a Festschrift for Don Greig. Although it is more years ago than I care to remember, the year I spent under his tutelage at the Australian National University is a source of many fond memories. In hindsight, that year was a crucial one in my intellectual development. I learnt a lot and thought many things through. Don is probably more to blame for the outcome than he would care to admit. As an inadequate recompense for his encouragement and intellectual nurturing, I offer this with affection and thanks — although part of me wonders whether he might not have preferred a contribution on the Gentle Art of Football.
The doctrine of res judicata is perhaps most frequently seen as a general principle of law, imported into public international law by virtue of the operation of Article 38.1c of the Statute of the International Court. Professor Lammers reminds us that during the deliberations of the Advisory Committee of Jurists, appointed by the Council of the League of Nations to draft the Statute of the Permanent Court, Lord Phillimore noted that:
the general principles … were these which were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata…[1]
The validity of this claim was expressly endorsed by Judge Anzilotti in his dissenting opinion in the Chorzów Factory (Interpretation) Case,[2]
and is supported by publicists who have paid particular attention to the normative category of general principles, such as Cheng,[3] Mosler[4] and, of course, Lauterpacht.[5]
Lammers points out that international tribunals employed general principles as the basis of awards before the genesis of the Permanent Court, and thus their inclusion as a source of law in the Statute was not innovatory.[6] The Advisory Committee did so in order to provide a guarantee against the Court declaring a non liquet.[7] Nevertheless, the ultimate juridical justification of general principles as a formal source of international law has been contested. Some see the category as rooted in natural law;[8] others in Roman law doctrines of either the naturalistic ius gentium or positivist ius inter gentes;[9] while other schools of international law have completely denied this category any normative force whatsoever.[10] The general principle of res judicata itself has been claimed to have diverse underpinning bases, some arguing that it is based in estoppel,[11] while others claim that it is simply an axiom, a necessary consequence of engaging in litigation in the first place.[12] Thus Bowett locates the rationale of res judicata as lying in:
the maxim interest rei publicae ut sit finis litium: it is essentially a rule of common sense and public policy that litigation should have finality. It follows, therefore, that, though in its effect of precluding a party from raising certain issues before a court it is remarkably similar to the preclusion of an estoppel, the principle of res judicata is distinguishable from estoppel. The rationale of estoppel is expressed in the maxim allegans contraria non audiendus est; its essential aim is to preclude a party from benefiting from its own inconsistency… Res judicata, in contrast, is not concerned with inconsistency in the party’s conduct: indeed, there could be nothing more consistent than the attempt to raise before a court the very same issues which had been finally determined by a previous court. The reason for this course of action is based on the necessity to put an end to litigation, not, as with estoppel, to avoid inconsistency.[13]
Regardless of all these doctrinal disputes, one thing is clear: general principles are inexorably general. They express an abstract kernel of a legal idea which can guide legal activity but which is not itself fully determinative.[14] This is a matter of common agreement but nevertheless crucial. As Lord McNair famously declared in the International Status of South West Africa advisory opinion,[15] although rules and institutions of international law may be based in general principles:
The way in which international law borrows from this source is not by means of importing private law institutions ‘lock, stock and barrel’, ready-made and fully equipped with a set of rules. It would be difficult to reconcile such a process with the application of ‘the general principles of law’ … the duty of international tribunals in this matter is to regard any features or terminology which are reminiscent of the rules and institutions of private law as an indication of policy and principles rather than as directly importing these rules and principles.[16]
In so far as res judicata is concerned, although there appears to be a core of common agreement on its necessary elements within domestic legal systems, the penumbra of the concept diverges from system to system. For instance, in English law one finds the doctrine of wider res judicata which provides that, once a matter has been litigated, it cannot be relitigated on the basis of different grounds which should have been raised during the first case:
The plea of res judicata applies, except in special cases, not only to the points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.[17]
It should not be expected that res judicata, as a doctrine of international law, replicates exactly the contours of the doctrine as it exists within any particular domestic system.[18] For instance, the simple fact that international judicial tribunals exercise only consensual jurisdiction means that they operate within a different structural context which can delimit the substantive issues the tribunal is competent to hear. During the Hostages proceedings, to take one example, the United States thought itself constrained in pleading alleged Iranian violations of customary international law because the jurisdictional titles upon which it relied were restricted to disputes arising from the interpretation and application of treaties.[19] Similarly, a special agreement submitting a dispute might place restrictions on permissible grounds of argument.[20] Consensual jurisdiction thus appears to be in itself a reason to reject or contain any international projection of doctrines such as that of wider res judicata.
This brief paper cannot provide a comprehensive exposition of the different questions res judicata poses within the international legal system. Some important issues must, inevitably, be ignored or mentioned only in passing.[21] A striking feature, which forms the focus of this paper, is that there appears to be a less than water-tight division between the doctrines of res judicata and precedent, or perhaps a fluidity about the boundary between the two in practice. For instance, in Barcelona Traction (second phase) final judgment, Judge Gros in his separate opinion stated:
Although the force of res judicata does not extend to the reasoning of a judgment, it is the practice of the Court, as of arbitral tribunals, to stand by the reasoning set forth in previous decisions (cf. Judgment No.10: “The Court sees no reason to depart from a construction which clearly flows from the previous judgments the reasoning of which it still regards as sound”; P.C.I.J., Series A, No.11, p.18). Although I accept the operative part of the present Judgment, my reasoning is entirely different.[22]
Judge Gros appears to fuse the two conceptually distinct notions of res judicata and precedent in this statement. Although there is little analytical utility in building doctrine on the back of rigid definitions, it is useful to provide initial basic definitions. Res judicata refers to the terms of the definitive disposition of a specific case as between the parties by a competent court. This is stated in the operative clause (dispositif) of a judgment binding on the parties. In essence, this is the court’s directive regarding the parties’ future action concerning the matters decided by the case. In contrast, the doctrine of precedent concerns relatively abstract legal propositions which may be used in future cases, which need not involve the same parties, drawn from the statement of reasons (motifs) provided by the court in justification of its decision.
As a rule of thumb, and formally this is quite clear, what distinguishes the two is that res judicata refers to the determination of the parties’ legal relationships within the context of a specific dispute whereas precedent refers to abstract or general statements of law which are embedded in a decision. Res judicata is the final disposition of a given case: precedent looks beyond the case to the future application of the rulings it contains. This should be uncontroversial, if not banal. This, however, only sets out the formal conceptual distinction between the two doctrines, and this can become more complex once the doctrines are examined in more detail.
The basic features of the doctrine of res judicata, as it obtains within the International Court,[23] are apparently both well-known and uncontroversial.[24] Although the International Court has affirmed that, by virtue of a ‘well-established and generally recognised principle’, res judicata attaches to judgments delivered by a judicial body,[25] there is an immediate foundation for the doctrine in the Statute,[26] Articles 59 and 60 of which provide:
Article 59: The decision of the Court has no binding force except between the parties and in respect of that particular case.
Article 60: The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.
These provisions do not provide a full account of the doctrine and have been subject to judicial interpretation which has drawn on general international law to supplement their terms. The classic exposition of the essentials of the doctrine is found in Judge Anzilotti’s dissenting opinion in the Chorzów Factory: Interpretation Case. In construing Articles 59 and 60, he stated:
The first object of Article 60 being to ensure, by excluding every ordinary means of appeal against them, that the Court’s judgments shall possess the formal value of res judicata, it is evident that that article is closely connected with Article 59 which determines the material limits of res judicata when stating that “the decision of the Court has no binding force except between the Parties and in respect of that particular case”: we have here the three traditional elements for identification, persona, petitum, causa petendi, for it is clear that “the particular case” (le cas qui a été décidé) covers both the object and the grounds of the claim.[27]
Anzilotti clearly based this construction in general principles, referring to ‘a generally accepted rule which is derived from the very conception of res judicata’,[28] and expressly stating that he had ‘relied on principles obtaining in civil procedure’ as Article 59 ‘clearly refers to a traditional and generally accepted theory in regard to the material limits of res judicata’:
if there be a case in which it is legitimate to have recourse, in the absence of conventions or custom, to the “general principles of law recognised by civilised nations” … that case is assuredly the present one.[29]
It is purely a matter of speculation, but Anzilotti’s express inclusion of the grounds of the decision within the doctrine might have resulted from a decision adopted by the Court earlier during the Certain German Interests in Polish Upper Silesia proceedings. The Court had decided that it could not ask the parties for information on the relative importance of certain estates, belonging to two individuals, which were divided by the German-Polish frontier. If it did so, the Court would go beyond the terms of the dispute submitted and raise a question of law not referred to it by the parties. The Court opined that this could not be done by a court whose jurisdiction depended solely on the parties’ consent.[30] This question undoubtedly was whether the nationality of the two individuals could be established on the basis of the relative importance of the divided estates, but the parties had based their arguments on nationality solely on the individuals’ domicile. According to the Court, this indicated that they were deemed to be in agreement on all other questions which could arise. Accordingly:
il est clair que les parties n’ont pas voulu soumettre ces autres questions à l’appréciation de la Cour qui, dès lors, n’a pas compétence pour s’en occuper.[31]
The importance of this for present purposes is that it was argued that, although the Court could not raise new legal questions in its decisions, it could decide those raised by the parties using arguments they had not adduced.[32] ‘Questions’ and ‘arguments’ were distinguished on the basis that ‘une question de droit’ lay in treating a given rule as relevant to the case, whereas an ‘argument juridique’ referred to the legal considerations and logical deductions used to determine the effect of a rule already admitted as relevant.[33] Although it must be doubted whether this schematic dichotomy is tenable[34] — as, at best, it rests on an inarticulate theory of the individuation of norms — it does perhaps cast light on Anzilotti’s express inclusion of the grounds of the decision in his construction of res judicata. Quite simply, it amounts to a denial of the relevance of the doctrine of wider res judicata to judgments of the International Court, a denial based on the Court’s then contemporary practice.
The initial inclusion of Article 59 in the Statute can be seen to have an analogous function in limiting the import of a judgment, but in relation to third parties not the litigants themselves. Just as res judicata would not attach to ‘questions de droit’ not argued by the parties, Article 59 was intended to protect third parties from the arguments raised by the litigants. This arose in League Council discussions of the draft Statute prepared by the Advisory Committee of Jurists concerning intervention regarding the interpretation of multilateral treaties under draft Article 61 (subsequently Article 63). The Balfour Note of October 1920, submitted by the United Kingdom, commented:
the decision of the Permanent Court cannot but have the effect of gradually moulding and modifying international law. This may be bad or good; but I do not think this was contemplated by the Covenant; and in any case there ought to be some provision by which a State can enter a protest, not against any particular decision arrived at by the Court, but against any ulterior conclusions to which that decision may seem to point.[35]
This point was addressed in the Bourgeois Report[36] prepared for and unanimously adopted by the Council later that month. Adverting to the point raised by Balfour, the Report noted that the draft Statute gave non-litigant states the right to intervene in a case if they thought it concerned a matter in which they had a legal interest. The analogous draft Article 61 provided that the interpretation of a multilateral convention delivered by the Court would be binding on an intervening state but, a contrario, this interpretation could not be forced on a non-intervening party to that treaty. Accordingly, no disadvantage would arise from stating this general point expressly, and thus the Report proposed the insertion of draft Article 57a (subsequently Article 59).[37] In the Lighthouses arbitration,[38]
the Permanent Court of Arbitration commented that Article 59 was badly drafted and must be interpreted in a more liberal sense than its terms apparently justified, arguing:
Il y a beaucoup à dire en faveur de cette thèse, d’autant plus que ce texte n’a pas été emprunté au projet du Comité de juristes qui a élaboré le Statut de 1920, mais a été déformé par l’amendement mal venu d’un corps politique.[39]
Regardless of who is to blame for the drafting of Article 59, it nevertheless exists and calls for interpretation.
The received consensus is that, in accordance with domestic doctrines of res judicata, this only attaches to the litigating parties in a given case. This is expressly stated in Article 59 itself. One may wonder, however, whether an attenuation of this position may be seen in the practice of the International Court. In principle, judgments which decide issues of territorial sovereignty or delimit boundaries between two states are not really in issue here. As de Visscher notes, although these judgments form an exception to the relativity of res judicata, as they are opposable to all states and not simply the parties to the case, this is because territorial status is ‘une situation objective ayant effet erga omnes’.[40] Problems arise, however, when the matter involves the recognised interests of another state which is not a party to the proceedings.
This was demonstrated acutely in the Land, Island and Maritime Frontier Dispute proceedings.[41] Nicaragua had a legal interest in the maritime aspects of these proceedings as it is a littoral state of the Gulf of Fonseca whose status was in issue between El Salvador and Honduras.[42] Due to the absence of a jurisdictional link between Nicaragua and the parties, the Chamber of the Court dealing with this case allowed Nicaragua to intervene only as a non-party.[43] Consequently it ruled that:
the intervening State … does not acquire the rights, or become subject to the obligations, which attach to the status of a party, under the Statute and Rules of Court, or the general principles of procedural law.[44]
In the merits judgment, the consequence of this status was expressly spelt out, ‘this Judgment is not res judicata for Nicaragua’, because res judicata
does not operate in one direction only: if an intervener becomes a party, and is thus bound by the judgment, it becomes entitled equally to assert the binding force of the judgment against the other parties. A non-party to a case before the Court, whether or not admitted to intervene, cannot by its own unilateral act place itself in the position of a party, and claim to be entitled to rely on the judgment against the original parties … [N]either Party has given any indication of consent to Nicaragua’s being recognised to have any status which would enable it to rely on the Judgment.[45]
This conclusion appears to be at odds with the rationale for the introduction of Article 59 expressed in the Bourgeois Report,[46] and ostensibly appears to deprive intervention under Article 62 of any point.[47] Rosenne rejects the accuracy of this ruling, on the basis that ‘a judgment stating what the law is as regards a — any — territorial dispute or a dispute concerning maritime delimitations of or entitlements to sovereign rights under the modern law of the sea, has effect erga omnes’.[48] This reflects the traditional view expressed, for instance, by de Visscher but it must be doubted whether the adjudication of territorial questions always has erga omnes effects, particularly where an interested third state remains aloof from the proceedings.[49]
In the Burkina Faso-Mali Frontier Dispute Case ,[50] the International Court addressed this problem by relying on Article 59, and affirming that the bilateral disposition of a territorial dispute involving a third state did not prejudice its interests. It ruled:
The rights of the neighbouring State, Niger, are in any event safeguarded by the operation of Article 59 … The Parties could at any time have concluded an agreement for the delimitation of their frontier, according to whatever perception they might have had of it, and an agreement of this kind, although legally binding upon them by virtue of the principle pacta sunt servanda, would not be opposable to Niger. A judicial decision … merely substitutes for the solution stemming directly from their shared intention, the solution arrived at by a court under the mandate which they have given it. In both instances, the solution only has legal and binding effect as between the States which have accepted it…
In accordance with Article 59 of the Statute, this Judgment will not be opposable to Niger as regards the course of that country’s frontiers.[51]
This ruling is, to some degree, disingenuous as boundary agreements and judgments are not equivalent for the purposes of this comparison. In concluding a boundary agreement, the parties need not employ legal criteria. This the Court cannot do: ‘practical considerations and considerations of expediency might suggest to the Parties a settlement … departing from strict law; … the Court, being a Court of Justice, cannot disregard rights recognised by it, and base its decision on considerations of pure expediency’.[52] Consequently, its rulings on territorial questions must inevitably attract a greater normative weight.
This issue has also arisen in maritime boundary cases. The unsuccessful Maltese attempt to intervene in the Libya-Tunisia Continental Shelf proceedings was followed by an equally unsuccessful Italian attempt to intervene in the Libya-Malta Continental Shelf proceedings.[53] In rejecting the Maltese application to intervene, the Court concentrated on the interpretation of Article 62 of the Statute, making only a veiled reference to Article 59 as protective of Maltese interests.[54] In contrast, overt reliance was placed on Article 59 in the rejection of the Italian application:
the rights claimed by Italy would be safeguarded by Article 59 of the Statute … the principles and rules of international law found by the Court to be applicable to the delimitation between Libya and Malta, and the indications given by the Court as to their application in practice, cannot be relied on by the Parties against any other State … [t]here can be no doubt that the Court will, in its future judgment in the case, take account, as a fact, of the existence of other States having claims in the region … The future judgment will not merely be limited in its effects by Article 59 of the Statute: it will be expressed, upon its face, to be without prejudice to the rights and titles of third States.[55]
The Court’s affirmation of the protective function of Article 59 was treated with some scepticism in the dissenting opinions of Judges Schwebel and Jennings.[56] Both argued that the Court’s exposition of the rules governing maritime delimitation could not but affect Italian interests:
the slightest acquaintance with the jurisprudence of this Court shows that Article 59 does by no matter of means exclude the force of persuasive precedent. So the idea that Article 59 is protective of third States’ interests in this sense is at least illusory.[57]
This demonstrates the malleability of Article 59, in that it straddles both res judicata and precedent. Before considering this, however, the doctrine of res judicata to which the International Court adheres should be further investigated.
Publicists appear to be agreed that the International Court has, on occasion, effectively extended the res judicata of decisions to non-parties despite the strictures of Article 59.[58] This clearly occurred by virtue of the restrictions placed on the Cuban intervention under Article 63 of the Statute in the Haya de la Torre proceedings.[59] This case arose from the earlier Asylum proceedings[60] and was intended to obtain the Court’s advice on how these judgments were to be implemented, in particular whether Colombia should surrender to Peru a political refugee, Haya de la Torre, who had been granted diplomatic asylum in its embassy in Lima. The Court noted that Cuba’s written statement[61] had dealt almost entirely with matters decided in the principal Asylum judgment, namely the interpretation of the 1928 Havana Asylum Convention, which had the force of res judicata. Consequently, the Court admitted the intervention only in so far as it considered interpretative points which were not decided in the earlier case. The rationale for this was that any intervention was incidental to the principal proceedings.[62] This extension of res judicata cannot be objectionable, otherwise the possibility could be raised of an intervener attempting to appeal a prior judgment.[63]
In contrast, in the Certain Phosphate Lands proceedings,[64]
the Court appeared to be willing to countenance at least the informal extension of res judicata to states not party to the case. This case concerned liability for environmental damage caused to Nauru before its independence when the island was under the joint administration of Australia, New Zealand and the United Kingdom. Australia argued that Nauru’s claim, in substance, was not a claim against Australia but rather a claim against the Administering Authority, which had comprised New Zealand and the United Kingdom as well as Australia. Accordingly, the Court could not pass upon Australian responsibility without simultaneously adjudicating upon that of New Zealand and the United Kingdom. As these had not consented to the Court’s jurisdiction, the claim was inadmissible.[65]
Australia employed a two-part argument in support of this objection, one aspect of which was an invocation of the Monetary Gold doctrine.[66] Relying on this, Australia argued that the application was inadmissible as a decision adverse to Australia would concurrently determine the responsibility of New Zealand and the United Kingdom, and thus their interests would ‘form the very subject matter of the decision’.[67] The Court responded by noting that the interests of non-litigant states were protected by Article 59 of the Statute,[68] and rejected the Australian objection. It distinguished Monetary Gold on the basis that, in that case, determination of Albanian responsibility was a logically prior prerequisite to a decision on the claims presented by Italy>, whereas in the instant case, possible New Zealand or United Kingdom responsibility would be determined simultaneously with any ruling on Australian responsibility. The Court continued:
a finding by the Court regarding the existence or the content of the responsibility attributed to Australia by Nauru might well have implications for the legal situation of the two other States concerned, but no finding in respect of that legal situation will be needed as a basis for the Court’s decision on Nauru’s claims against Australia.[69]
As Judge Schwebel commented, the protection afforded by Article 59 in the ‘quite exceptional’ circumstances of this case ‘would be notional rather than real’.[70]
The third party effects contemplated by the Court in Certain Phosphate Lands were prefigured to some extent in earlier cases. For instance, although in principle advisory opinions formally do not give rise to res judicata,[71] they have been put to use in subsequent contentious cases where the same point has arisen for decision. In the Certain German Interests in Polish Upper Silesia Case,[72] the Permanent Court had to consider the weight to be given to the German Settlers in Poland Advisory Opinion,[73] whereas in the preliminary objections phase of the South West Africa Cases,[74] the International Court had to consider the effect of the International Status of South West Africa Advisory Opinion.[75] In both contentious proceedings, the parties argued at length on the effect to be given to the earlier advisory opinion.[76]
In Certain German Interests, the Permanent Court ruled that on the issue under consideration (the effect of a change of sovereignty on private rights), nothing had been advanced in the contentious proceedings to alter the Court’s opinion on the point.[77] This judicial transaction became the focal point of the arguments in the South West Africa Cases. Liberia and Ethiopia saw the 1950 advisory opinion as the legal basis for their argument that South Africa had breached the Mandate over South West Africa through its failure to observe the supervisory authority of the United Nations. While conceding that the opinion had no binding force, Liberia and Ethiopia argued:
the substance of a ruling and the enforceability of a ruling are two separate matters. There is no reason to suppose that the absence of the latter impairs the quality of the former, or that the Court will find the law to be one thing in an advisory proceeding and another thing in a contentious proceeding.[78]
South Africa did not deny in principle that authority attached to the 1950 advisory opinion, but rather claimed that the points which the applicants sought to derive from the 1950 opinion should be re-argued:
the general considerations which normally operate in favour of affirmation of a previous advisory opinion, are in this case outweighed by certain special considerations to the contrary.[79]
This the Court rejected and it expressly upheld the applicability of the 1950 advisory opinion.[80]
The nature of the arguments deployed by the parties in the South West Africa proceedings further demonstrates a fluidity in the notions of res judicata and precedent indicated by Judge Jennings in Libya-Malta Continental Shelf Case (Italian Intervention)[81] and by Judge Gros in Barcelona Traction.[82]
The argument first presented in the Ethiopian Memorial had at its core the admission that advisory opinions were not binding and did not generate res judicata but, nevertheless, expressed a definitive statement of the law on a given issue. To buttress this, the German Settlers-Certain German Interests judicial transaction was emphasised as analogical practice which the Court ought to endorse. Ethiopia stressed that, in the earlier proceedings as well as in the instant, the respondent states involved were the same (Poland and South Africa); the issues identical in both the advisory and contentious proceedings; that Poland and South Africa had pled these issues in the advisory proceedings; and that the relevant operative facts had not changed between the delivery of the advisory opinion and the contentious proceedings.[83] This argument meshes together res judicata and precedent. The emphasis on the identity of the state concerned and issues to be decided points in the direction of res judicata, while its status as a definitive statement of the law inclines more towards precedent.
South Africa agreed that advisory opinions did not attract res judicata, but argued that the Court should depart from an earlier advisory opinion where sound reasons existed to do so.[84] As the 1950 advisory opinion did not constitute res judicata, fresh facts were not required to warrant its reconsideration, but South Africa sought to adduce new evidence; the question in issue was substantially different from that examined earlier; and thus the 1950 opinion had little precedential weight in the instant proceedings.[85] Liberia and Ethiopia classified this as the ‘new facts’ argument, but argued that any reconsideration of the 1950 opinion should not deviate from the minimum standards for the revision of a judgment contained in Article 61.1 of the Statute. They claimed that as South Africa had adduced no new facts, these conditions had not been met.[86] These arguments again blur the distinction between res judicata and precedent. Article 61.1 is clearly aimed at preserving the integrity of the res judicata of a judgment, which all parties were agreed did not arise as a result of the 1950 opinion, but it is equally the case that an argument that different operative facts are present is a classic method of distinguishing a precedent. The Court decided the issue in a manner reminiscent of the Permanent Court in Certain German Interests:
What is relevant to the issue under consideration is the finding of the Court in the … [1950] Advisory Opinion on the effect of the dissolution of the League of Nations on Article 7 [the compromissory clause] of the Mandate … The unanimous holding of the Court in 1950 on the survival and continuing effect of Article 9 of the Mandate, continues to reflect the Court’s opinion today. Nothing has since occurred which would warrant the Court reconsidering it. All important facts were stated or referred to in the proceedings before the Court in 1950.[87]
It is possible to interpret this ruling as the inarticulate affirmation of an equally inarticulate and innovatory doctrine of res judicata arising from advisory opinions. It could, however, also be maintained that the effect of precedent approaches so closely to that of res judicata in the circumstances of these cases that the distinction between the two doctrines functionally disappears. The point in issue was both specific and peculiar to one of the parties, thus inducing a possible conflation of the two doctrines. These examples, however, are not isolated anomalies in the jurisprudence of the Court. There are other examples where the clear, albeit formal, distinction between the two doctrines has been blurred.
On occasion, for instance, litigant states may be seen to manipulate the ambiguity of the boundary between the two for ulterior motives. A good example is apparent in the Norwegian Fisheries proceedings.[88] The final submissions of the United Kingdom[89] principally comprised a series of abstract legal propositions which it claimed determined the legality of territorial sea baselines. In introducing these submissions, the United Kingdom argued that a decision of principle would simplify the task of the Court, as it would not be encumbered with the detail of the impugned baselines, and the parties could be left to implement the judgment in practice.[90]
On the face of it, this would appear to be a plea for a declaratory judgment where the norms governing the dispute between the parties should be fixed in the operative clause and thus constitute res judicata between the parties. The United Kingdom’s intention was, in reality, more perfidious. As Norway argued, the intent of the United Kingdom was to displace the precise dispute, namely the legality of the impugned Norwegian baselines, in an attempt to turn the litigation into the fixing of general rules of international law regulating the delimitation of the territorial sea. Rejecting the proposal that the Court deliver a judgment of principle, the Norwegian Agent (Arntzen) commented:
Le Gouvernement du Royaume-Uni a moins le désir, semble-t-il, de voir trancher le litige juridique concret qui devise les Parties, que de faire établir par la Cour un précédent pour la communauté des nations concernant les principes formulés par l’honorable Partie adverse. En effet, après n’avoir entendu que les deux membres de la communauté internationale qui sont Parties à cette affaire, la Cour est invitée par le Gouvernement du Royaume-Uni à établir pour une partie du droit international, où il règle tant d’incertitude et de divergence de vues, des règles juridiques normatives pour toute la communauté de droit international. Elle devrait, partant, déclarer implicitement comme sans force et commes contraires au droit, toutes les autres conceptions qui se sont manifestées au sein des différents États par une série de lois et de décrets, et par la pratique judiciaire et administrative. … [c]ette tâche la Cour est invitée à l’entreprendre sans avoir entendu les autres membres de la communauté internationale.[91]
The United Kingdom had made clear its perception of the proceedings, stating ‘this case … will be of the very greatest importance to the world generally as a precedent’, and had then immediately indicated that it sought to obtain a judgment it could assert against Iceland, noting that Iceland had promulgated regulations inspired by the Norwegian legislation.[92] The substantive identity of the Icelandic regulations was affirmed by Norway.[93] The United Kingdom argued that a decision on the validity of the Norwegian legislation would be equally applicable to the Icelandic regulations.[94] As if this were not enough to demonstrate the effect a judgment in principle could have on states not parties to the case, the proceedings were characterised by the active participation of three non-parties, Belgium, Iceland and the Netherlands, each of which submitted its views on the legality of the Icelandic regulations to the Court through one or other of the parties.[95] The International Court conclusively defeated this strategy in its judgment. It rejected the request for a judgment of principle, noting that the bulk of the United Kingdom’s final submissions:
appear to be a set of propositions which, in the form of definitions, principles or rules, purport to justify certain conclusions and do not constitute a precise and direct statement of a claim. The subject of the dispute being quite concrete, the Court cannot entertain the suggestion made by the Agent of the United Kingdom… that the Court should deliver a Judgment which for the moment would confine itself to adjudicating on the definitions, principles or rules stated … These are elements which might furnish reasons in support of the Judgment, but cannot constitute the decision. It further follows that even understood in this way, these elements may be taken into account only in so far as they would appear to be relevant for deciding the sole question in dispute, namely, the validity or otherwise under international law of the lines of delimitation laid down by the 1935 [Norwegian] Decree.[96]
By rejecting as inadmissible the United Kingdom submissions of principle, and confining the object of the claim to the validity of the Norwegian baselines, the Court defeated the United Kingdom’s strategy of attempting to obtain a favourable precedent. Moreover, it decided that the Norwegian baselines were lawful, but for reasons peculiar to the situation which left untouched the legality of similar baselines drawn by other states. The Court ruled that the United Kingdom had acquiesced in the method of drawing baselines adopted by Norway, thus making this a matter of obligation and not general international law,[97] and founded the validity of those in issue on the distinctive configuration of the Norwegian coast coupled with long-established socio-economic factors.[98] By the terms of the judgment, the Court individuated its decision to the Norwegian baselines,[99] thus attempting to confine the scope of its findings within the doctrine of res judicata and to minimise any wider precedential effects. It failed in this attempt. Although perceived as innovative,[100] the Court’s ruling passed quickly into customary law[101] before being incorporated in Article 4 of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.
This example clearly underlines Judges Jennings’ and Schwebel’s scepticism about the nature of the protection afforded to non-litigant states by Article 59. Nevertheless it should be recognised that it is not without utility. If Judge Anzilotti’s exegesis of res judicata remains valid, whether or not this was informed by Registrar Hammarskjöld’s note on the Court’s process of decision-making, this negation of a doctrine of wider res judicata must entail the possibility of the re-argument of issues on different grounds.
Moreover, it seems reasonable to expect that the International Court would follow the decision of the arbitral tribunal in the Laguna del Desierto award[102] which recognised that one aspect of res judicata is its respect for the inter-temporal rule:
res judicata also applies to the meaning of the terms used in the propositions which shape an arbitral decision. Meanings cannot be modified by usage subsequent to the Judgment, nor by linguistic developments or by the activities or the decisions of one of the Parties to the dispute.[103]
The scope of the res judicata of a judgment is thus frozen within the framework of legal doctrine prevailing at the time of its delivery. It cannot take account of subsequent changes in the law. The weight to be accorded to precedents, on the other hand, must mutate as the law develops. The import of legal propositions for the purposes of decision making depends on the contemporary content of the system of which they form part. There can be no doubt that that content is partially shaped by precedents, but that content also shapes the weight to be accorded to precedents.
CASES
Aegean Sea Continental Shelf Case (Greece v Turkey) (Preliminary Objections) [1978] ICJ Rep 3 14
Affaire relative à la concession des phares de l’Empire Ottoman (Greece v France) (1956) 12 RIAA 155 8, 9
Amco Asia Corporation v Republic of Indonesia (Resubmitted Case: Decision on Jurisdiction) 89 ILR 368 2
Anglo-Norwegian Fisheries [1950] ICJ Rep 142 18, 19
Asylum Case (Columbia v Peru) [1950] ICJ Rep 266 12
Barcelona Traction, Light and Power Company Limited [1970] ICJ Rep 3 5, 16
Burkina Faso-Mali Frontier Dispute Case [1986] ICJ Rep 554 10
Case Concerning Certain German Interests in Polish Upper Silesia (Merits) [1926] PCIJ (ser A), No 7 7, 15, 17
Case Concerning the Aerial Incident of 10 August 1999 (Pakistan v India) [2000] ICJ 13
Case of the Monetary Gold removed from Rome in 1943 (Italy v France, United Kingdom and the United States) (Preliminary Question) [1954] ICJ Rep 1 13
Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 12, 13, 14
Chorzów Factory (Germany v Poland) (Interpretation of Judgments 7 and 8) [1927] PCIJ (ser A) No 13 1
Dallal v Bank Mellat [1985] 75 ILR 151 3, 4
Delimitation of the Continental Shelf (UK v France) (First Decision) (1977) 18 RIAA 3 12
Dispute concerning the course of the Frontier between BP62 and Mount Fitzroy award (Argentina v Chile) (1994) 113 ILR 1 20
Effect of Awards of Compensation made by the UN Administrative Tribunal Advisory Opinion [1954] ICJ Rep 47 6
El Salvador v Honduras (Nicaraguan Intervention) [1990] ICJ Rep 92 9
Free Zones of Upper Savoy and the District of Gex (France v Switzerland) (Order of 6 December 1930) [1930] PCIJ (ser A) 11
German Settlers in Poland (Advisory Opinion) [1923] PCIJ (ser B), No 6 15
Haya de la Torre (Colombia v Peru) (Cuban Intervention) [1951] ICJ Rep 71 12
International Status of South West Africa Advisory Opinion [1950] ICJ Rep 128 15
Land and Maritime Boundary between Cameroon and Nigeria (2000) 38 ILM 112 10
Libya-Malta Continental Shelf Case (Italian Intervention) [1984] ICJ Rep 3 10, 11, 16
Libya-Malta Continental Shelf Case [1985] ICJ Rep 13 12, 16
Libya-Tunisia Continental Shelf Case (Maltese Intervention) [1981] ICJ Rep 3 10
Norwegian Fisheries Case (United Kingdom v Norway) [1951] ICJ Rep 116 17, 18, 19
Norwegian Loans Case (France v Norway) [1957] ICJ Rep 9 19
Re application no 182/56 (X v FR Germany) (1957) 24 ILR 401 4
Re application no 202/56 (X v Belgium) (1956) 24 ILR 391 6
South West Africa (Ethiopia and Liberia v South Africa) Cases [1962] ICJ Rep 319 15
South West Africa Case [1950] ICJ Rep 128 15
The Cysne (Portugal v Germany) (1929-30) 5 Annual Digest of Public International Law Cases 487 4
US Diplomatic and Consular Staff in Tehran Case [1980] ICJ Rep 3 4
Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] UKPC 6; [1975] AC 581 4
OTHER AUTHORITIES
United Nations Charter 1945 14
[∗] Reader in International Law, University of Glasgow. A version of this paper was originally presented at the International Law Association (British Branch) Spring Conference on International litigation and the fragmentation of international law in Edinburgh in May 1996. This Festschrift provides a welcome opportunity for this much revised version finally to see the light of day.
[1] J G Lammers, ‘General Principles of Law Recognized by Civilised Nations’ in F Kalshoven, P J Kuyper and J G Lammers (eds), Essays on the Development of the International Legal Order in Memory of Haro F van Panhuys (1980) 53, 59. For a detailed analysis of the deliberations of the Advisory Committee on this point, see B Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) 6–21. Cf, however, S Rosenne, The Law and Practice of the International Court, 1920–1996 (3rd ed, 1997) 1656 fn 206.
[2] Chorzów Factory (Germany v Poland
(Interpretation of Judgments 7 and 8) [1927] PCIJ (ser A) No 13, 23, 27.
[4] H Mosler, ‘General Principles of Law’ 7 Encyclopedia of Public International Law 89, 100.
[5] H Lauterpacht, Private Law Sources and Analogies of International Law (1927) 206–207.
[6] Lammers, above n 1, 65. See also Lauterpacht, above n 5, 38–42; and P G Vallindas, ‘General Principles of Law and the Hierarchy of the Sources of International Law’ in D S Constantopoulos, C T Eustathiades and C N Fragistas (eds), Grundprobleme des internationalen Rechts: Festschrift für Jean Spiropoulos (1957) 425, 427–428.
[7] The Advisory Committee considered the question of non liquet at its 13th, 14th and 15th meetings: see Procès-Verbaux of the Proceedings of the Committee: June 16–July 24, 1920 (1920) 296, 307–308, 314, 317, 332 and 338, especially Baron Descamps, 332; see also Lauterpacht, above n 5, 67–71.
[8] Eg, G G Fitzmaurice, ‘The General Principles of Law Considered from the Standpoint of the Rule of Law’ (1957–II) 92 Recueil des Cours 1, 55–56, esp 56 fn 1; see also Cheng, above n 1, 3–4.
[9] See Mosler, above n 4, 90–91. The pre-eminent contemporary examination of the distinction between ius gentium and the ius inter gentes is undoubtedly A P Rubin, Ethics and Authority in International Law (1997). See ch 2 in particular, and also 141–143 on Lauterpacht’s naturalist transformation of international law through the medium of general principles.
[10] Eg, G I Tunkin, Theory of International Law (W E Butler trans, 1974) ch 7. It is perhaps fitting in this context to note that, when I studied under Don Greig at the Australian National University, substantial extracts from Tunkin formed part of the course materials students were expected to read.
[11] See, eg, Lauterpacht, above n 5, 203–205. Cf A V Lowe, ‘Res Judicata and the Rule of Law in International Arbitration’ (1996) 8 Revue Africaine de Droit International et Comparé 38, 41–42 on the employment of the common law doctrine of issue estoppel in the Amco Asia Corporation v Republic of Indonesia (Resubmitted Case: Decision on Jurisdiction) award of 1988, reported 89 ILR 368, 552. Professor Bowett argues that this common law doctrine is in fact a form of partial res judicata rather than a variant of estoppel as such: see D W Bowett, ‘Estoppel before International Tribunals and its Relation to Acquiescence’ (1957) 33 British Yearbook of International Law 176, 178–180.
[12] Cf H Kelsen, Principles of International Law (1st ed, 1952) 395.
[13] Bowett, above n 11, 177; see also Dallal v Bank Mellat [1985] 75 ILR 151, 161–162, 164–165.
[14] See, eg, M Cherif Bassiouni, ‘A Functional Approach to “General Principles of International Law”’ (1990) 11 Michigan Journal of International Law 768.
[15] [1950] ICJ Rep 128.
[16] Ibid (separate opinion of McNair J) 146, 148.
[17] Dallal v Bank Mellat, above n 13, 163 (Hobhouse J), quoting with approval Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] UKPC 6; [1975] AC 581, 590 (Lord Kilbrandon); see Dallal, 163–165, 174 generally.
[18] Even within domestic systems, the implications of the general doctrine may differ from court to court. For instance, an international tribunal has held that decisions of domestic prize courts are unimpeachable: see The Cysne (Portugal v Germany) (1929–30) 5 Annual Digest of Public International Law Cases 487, 489; also L Oppenheim, International Law: Vol II, Disputes, War and Neutrality (7th ed, H Lauterpacht ed, 1952) vol II, 475 and 875. Similarly, leaving to one side domestic rules on appeals, the doctrine of non bis in idem can give differential implications to the finality of criminal decisions, on one aspect of this, cf In re András (1931–32) 6 Annual Digest of Public International Law Cases 448, with Re application no 182/56 (X v FR Germany) (1957) 24 ILR 401. The European Commission of Human Rights in the latter case would appear to have a better understanding of the law of belligerent occupation.
[19] See S M Schwebel, ‘The ICJ Decisions and Other Public International Law Issues’ in R D Steele (ed), The Iran Crisis and International Law (1981) 20, 21–22. This constraint is apparent in the United States’ application instituting proceedings in the US Diplomatic and Consular Staff in Tehran Case [1980] ICJ Rep 3. This makes only one reference to diplomatic immunities and the protection of US nationals under customary international law in a residual submission. The principal submission, on which the others were dependent, asked the Court to declare that Iran was in breach of specified treaty obligations.
[20] Cf J H W Verzijl, The Jurisprudence of the World Court: A Case by Case Commentary (1966) vol II, 169 et seq.
[21] Two exclusions in particular should be mentioned: the relationship between res judicata and intervention in proceedings before the International Court; and its role in proceedings for the interpretation and revision of a judgment, including the question of determining the scope of res judicata by reference to the judgment’s reasoning. On the latter see, eg, D W Bowett, ‘Res Judicata and the Limits of Rectification of Decisions by International Tribunals’ (1996) 8 Revue Africaine de Droit International et Comparé 577; L Cavaré, ‘Quelques Remarques sur les Recours en Interprétation des Arrêts Rendus par les Cours de Justice Internationales à Propos de l’Arrêt no 5–55 du 28 Juin 1955 de la Cour de Justice de la CECA’ in C Chaumont (ed), Hommage d’une Génération de Juristes au Président Basdevant (1960) 96; Rosenne, above n 1, 1673–1686; J Stańczyk, ‘Application for Interpretation of a Judgment Delivered by the International Court of Justice’ (1988) 17 Polish Yearbook of International Law 193; and S Torres Bernárdez, ‘A Propos de l’Interprétation et de la Revision des Arrêts de la Cour Internationale de Justice’ in Le Droit International à l’Heure de sa Codification: Etudes en l’Honneur de Roberto Ago (1987) vol III, 443. Consequently, an examination of the issues embedded in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, Order of 22 September 1995, [1995] ICJ Rep 288, proceedings falls outside the scope of this paper.
[22] Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3, 267 [1].
[23] An early award of the European Commission indicates that variations in the practice of international tribunals should be expected as it rejected the application of a strict doctrine of res judicata as inappropriate in the context of safeguarding human rights. See Re application no 202/56 (X v Belgium) (1956) 24 ILR 391. This fundamental policy consideration is not germane to all instances of international adjudication.
[24] Commentaries on this aspect of the Court’s doctrine include P Couvreur, ‘The Effectiveness of the International Court of Justice in the Peaceful Settlement of International Disputes’ in A S Muller, D Raič and J M Thuránszky (eds), The International Court of Justice: Its Future Role after Fifty Years (1997) 83, 100–104; Rosenne, above n 1, 1655–1668, see also 1627–1655, and also his ‘Article 59 of the Statute of the International Court of Justice Revisited’ in M Rama-Montaldo (ed), El Derecho Internacional en un Mundo en Transformacion: Liber Amicorum al Profesor Eduardo Jiménez de Aréchaga (1994) vol II, 1129; C de Visscher, ‘La Chose Jugée Devant la Cour Internationale de la Haye’ (1965) 1 Revue Belge de Droit International 5.
[25] Effect of Awards of Compensation made by the UN Administrative Tribunal Advisory Opinion [1954] ICJ Rep 47, 53.
[26] Rosenne’s view, that the Court applies res judicata not as an autonomous general principle but primarily by reference to the Statute is undoubtedly correct: see Rosenne, above n 1, 1656. Although the Advisory Committee of Jurists referred to res judicata as an example of a general principle, it is nevertheless the case that art 59 was inserted into the Statute by the League to rectify a perceived omission in the Committee’s draft Statute: see below, text accompanying nn 36–40. Rosenne, ibid also argues that the revision provisions of art 61 complete the Statutory regulation of res judicata: discussion of the revision provisions is beyond the bounds of this paper.
[27] [1927] PCIJ (ser A), No 13, 23 [1].
[28] Ibid 26 [6].
[29] Ibid 27 [7].
[30] PCIJ (ser E), No 2, 189: English version of the Yearbook.
[31] ‘Note de M A Hammarskjöld’, appended to Barra and Mercier, ‘Report on Arbitral Procedure’ (1927) 2 Annuaire de l’Institut de Droit International 585, 586–587, quotation 587. Hammarskjöld, at that time, was Registrar of the Permanent Court.
[32] Ibid 585–586.
[33] Ibid 588.
[34] The difficulties in this dichotomy are perhaps latent in the statement that: ‘Cette question est d’autant plus importante que la solution apportée aux diverses questions de droit soulevées dans un procès constitue évidemment autant d’arguments pour l’acceptation ou le rejet des conclusions.’ Ibid 586 (emphasis in original).
[35] 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 of International Justice (1921) Doc No 28, 38.
[36] Ibid Doc No 32, 45. In the Council discussions, Bourgeois stated ibid 42 that he had been helped by the Council’s legal advisers in preparing his Report, in particular by Anzilotti.
[37] Ibid 45, 50. See also B S von Stauffenberg, Statut et Règlement de la Cour Permanente de Justice Internationale: Eléments d’Interprétation (1934) 419 et seq.
[38] Affaire relative à la concession des phares de l’Empire Ottoman (Greece v France)
(1956) 12 RIAA 155: relevant extract trans 23 ILR 81.
[39] 12 RIAA 155, 194; 23 ILR 81, 86.
[40] de Visscher, above n 24, 9.
[41] El Salvador v Honduras (Nicaraguan Intervention) (Judgment on the Nicaraguan application to intervene) [1990] ICJ Rep 92; (Merits) [1992] ICJ Rep 351.
[42] For details of the maritime aspects of the case, see I Scobbie, ‘The ICJ and the Gulf of Fonseca: When Two Implies Three but Entails One’ (1994) 18 Marine Policy 249.
[43] See Rosenne, above n 1, 1542–1551, and also his Intervention in the International Court of Justice (1993) 148–155, for a profound analysis of the procedural aspects of this intervention. The admission of Nicaragua as a non-party intervener in this case stands in contrast to the Court’s refusal to admit Malta in that capacity in the Libya-Tunisia Continental Shelf proceedings: see the Libya-Tunisia Continental Shelf Case: (Maltese Intervention) [1981] ICJ Rep 3.
[44] Nicaraguan Intervention judgment [1990] ICJ Rep 135–136 [102].
[45] [1992] ICJ Rep 610 [424].
[46] It also appears to be at odds with the Chamber’s treatment in this case of a 1917 decision of the Central American Court of Justice in a dispute regarding the status of the Gulf of Fonseca between El Salvador and Nicaragua, reported (1917) 11 American Journal of International Law 674. Arguably the Chamber extended the res judicata of this decision to encompass Honduras, a non-party to the 1917 case. See Scobbie, above n 42, passim for a discussion of this point; and compare the attitude expressed by the British-Mexican Claims Commission in In re Roy (1931–32) 6 Annual Digest of Public International Law Cases 421, 423.
[47] On the other hand there are relevant jurisdictional issues, see Rosenne, above n 1, 1526–1542. As Rosenne notes, in some circumstances the function of intervention under art 62 has been transformed from the active protection of rights to a procedural mechanism aimed simply at informing the Court of the intervener’s perception of the issues in order that the Court can then decide the bilateral dispute before it while bearing these views in mind: see Rosenne, above n 1, 1540–1541 and above n 24, 1156; and also Libya-Tunisia Continental Shelf Case (Maltese Intervention) [1981] ICJ Rep 3, 20 [35]. Rosenne’s perception of the transformation of the nature and purpose of intervention under art 62 appears to be confirmed by the Court’s admission of Equatorial Guinea as a non-party intervener in the Land and Maritime Boundary between Cameroon and Nigeria proceedings. See Order of 21 October 1999, <www.icj-cij.org>, reproduced (2000) 38 ILM 112.
[48] Rosenne, above n 1, 1550–1551. In the circumstances of this particular case, I now incline more towards Rosenne’s view than that expressed in the article cited above n 42, 261–262.
[49] The Court has indicated that, where a third state has an interest, the judgment does not have erga omnes effects. See Libya-Malta Continental Shelf Case (Italian Intervention) [1984] ICJ Rep 3, 26–27 [43].
[50] [1986] ICJ Rep 554.
[51] Ibid 577 [45], 580 [50].
[52] Free Zones of Upper Savoy and the District of Gex (France v Switzerland) (Order of 6 December 1930) [1930] PCIJ (ser A), No 24, 15.
[53] Libya-Malta Continental Shelf Case (Italian Intervention) [1984] ICJ Rep 3.
[54] [1981] ICJ Rep 20 [35].
[55] [1984] ICJ Rep 26–27 [42–43]. In the merits judgment, the Court reaffirmed reliance on art 59 and restricted the geographical scope of the judgment to exclude areas subject to Italian claims. See Libya-Malta Continental Shelf Case [1985] ICJ Rep 13, 24–28 [20–23]. Compare the Delimitation of the Continental Shelf (UK v France) (First Decision) (1977) 18 RIAA 3, 24–27 [23]–[28] 110 [236].
[56] [1984] ICJ Rep 26–7, 131, 134–135 [9]–[12] (dissenting opinion of Schwebel J); 148, 157–160 [27]–[34] (dissenting opinion of Jennings J).
[57] Ibid 157 [27] (dissenting opinion of Jennings J).
[58] See, eg, de Visscher, above n 24, 8–9; Rosenne, above n 1, 1662.
[59] Haya de la Torre (Colombia v Peru) (Cuban Intervention) [1951] ICJ Rep 71.
[60] Asylum Case (Columbia v Peru) [1950] ICJ Rep 266; and Asylum Case (Colombia v Peru) (Interpretation) [1950] ICJ Rep 395.
[61] This statement was annexed to Cuba’s declaration of intervention, see Haya de la Torre Pleadings 117, 118. Peru objected to the admissibility of the intervention, ibid 128. The oral arguments on the question of intervention are at ibid 136 et seq.
[62] [1951] ICJ Rep 76–77.
[63] Peru raised the impermissibility of an appeal by way of intervention in its pleadings. See, eg, Haya de la Torre Pleadings 126–127, 142–143.
[64] Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240. This case was subsequently discontinued before the merits were decided: see the Court’s Order of 13 September 1993 [1993] ICJ Rep 322. The 1993 Nauru-Australia agreement settling the case is reproduced at (1993) 32 ILM 1471. For an analysis of the preliminary objections judgment see I Scobbie, ‘Case Concerning Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections Judgment’ (1993) 42 International and Comparative Law Quarterly 710.
[65] The application instituting proceedings by Nauru was dated by on 19 May 1989. Although the terms of New Zealand’s declaration under art 36.2 of the Statute, reproduced [1989–90] Yearbook of the International Court of Justice 85–86, would appear to provide a jurisdictional title on which Nauru could have relied, the Optional Clause system could not have given a basis for proceedings against the United Kingdom. The United Kingdom’s declaration (reproduced ibid 96–97) excluded from the submission to jurisdiction ‘disputes with the government of any other country which is a Member of the Commonwealth with regard to situations or facts existing before 1 January 1969’. Nauru is a special member of the Commonwealth: see Judge Ago’s dissenting opinion, 326, 327 [5]. In the Aerial Incident Case (Pakistan v India) (Jurisdiction) [21 June 1999], available on <www.icj-cij.org>, the Court upheld a similar reservation contained in India’s 36.2 declaration, which excluded jurisdiction in ‘disputes with the government of any State which is or has been a Member of the Commonwealth of Nations’. See [29]–[31] [34] et seq, especially [41]–[44].
[66] Monetary Gold removed from Rome (Italy v France, the United Kingdom and the United States) (Preliminary Question) [1954] ICJ Rep 19.
[67] Australia’s objection based on the non-participation of New Zealand and the United Kingdom constitutes pt III, ch III of the Australian Preliminary Objections. These pleadings are now available on the Court’s website <www.icj-cij.org>. The phrase employed is from Monetary Gold above n 66, 32.
[68] Certain Phosphate Lands above n 64, 261 [54].
[69] Ibid 261–262 [55]. A comparable but less state-specific example occurred in the Aegean Sea Continental Shelf Case (Greece v Turkey) (Preliminary Objections) [1978] ICJ Rep 3, 17–18 [39] where the Court noted that any ruling it might make on the status of the 1928 Geneva General Act for the Pacific Settlement of Disputes ‘whether it were to be found a convention in force or to be no longer in force, may have implications in the relations between States other than Greece and Turkey’.
[70] Ibid 329, 342 (dissenting opinion of Schwebel J).
[71] Under certain circumstances, as the result of an agreement alien to the Statute, advisory opinions can have a determinative effect on a dispute. Eg, art VIII, s 30 of the 1946 Convention on the Privileges and Immunities of the United Nations provides, in part, in relation to ‘differences arising out of the interpretation or application of present convention’ that:
If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties.
In the Difference relating to Immunity from Legal Process of a Special Rapporteur of the Commission
on Human Rights Advisory Opinion [29 April 1999], reported
A distinction should thus be drawn between the advisory nature of the Court's task and the particular effects that parties to an existing dispute may wish to attribute, in their mutual relations, to an advisory opinion of the Court, which, "as such … has no binding force" (Interpretation of Peace treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p.71). These particular effects, extraneous to the Charter and the Statute which regulate the functioning of the Court, are derived from separate agreements.Ibid 885 [25]. In such circumstances, although the formal position is that the operative clause of the opinion does not generate res judicata, in effect this must be the case.
[72] (Germany v Poland) [1926] PCIJ (ser A), No 7.
[73] [1923] PCIJ (ser B), No 6.
[74] (Ethiopia and Liberia v South Africa) [1962] ICJ Rep 319.
[75] [1950] ICJ Rep 128.
[76] See the Certain German interests in Polish Upper Silesia Pleadings Ser C, Vol 11(I), 361 et seq, Ser C Vol 11(II), 663 et seq, 816 et seq, and 942 et seq. In the South West Africa Cases, this issue was addressed at Pleadings Vol I 51–54, 96–103, 214–215, 321 et seq, 368–373, 419–420, 425–427, 438–439; and Vol VII at 21–24, 91–97, 100–101, 300–301, 350–351, 367.
[77] [1926] PCIJ (ser A), No 7, 31.
[78] Ethiopian Memorial South West Africa Pleadings Vol I, 97.
[79] South African Preliminary Objections, South West Africa Pleadings Vol I, 321.
[80] See the South West Africa Cases [1962] ICJ Rep 319, 333–334; and also C de Visscher, ‘Les Avis Consultatifs de la Cour Permanente de Justice Internationale’ (1929) 26 Recueil des Cours 35–36, 60–61. An analogous situation arose in the Aerial Incident of 27 July 1955 Cases between Bulgaria and the United Kingdom and United States. The United Kingdom expressly discontinued its action as a result of the rejection of the case brought by Israel against Bulgaria: [1959] ICJ Rep 127, see Aerial Incident Pleadings 698. The United States persisted in its action, relying on art 59 to isolate its case from the Israeli — see ibid 310–311 — before requesting discontinuance because it accepted the Bulgarian arguments on the effect of the automatic reservation contained in the US declaration under art 36.2 of the Statute — see ibid 676–677.
[81] See text accompanying above n 57.
[82] See text accompanying above n 22.
[83] Ethiopian Memorial, South West Africa Pleadings Vol I, 32, 96–100.
[84] South African oral pleadings, South West Africa Pleadings Vol VII 21–22 (oral argument of 2 October 1962) and 100 (oral argument of 4 October 1962).
[85] Ibid 100–101.
[86] Ibid 300–301 (oral argument of 16 October 1962).
[87] [1962] ICJ Rep 334 (paragraph breaks suppressed).
[88] Norwegian Fisheries Case (United Kingdom v Norway) [1951] ICJ Rep 116.
[89] Ibid 121–123.
[90] Norwegian Fisheries Pleadings Vol IV 144–145, 152, 162–164 (oral argument of 1 October 1951).
[91] See Norwegian Fisheries Pleadings Vol IV 170–172, quotation 171, comma omitted in the final paragraph (oral argument of 5 October 1951); and also J Evensen, ‘The Anglo-Norwegian Fisheries Case and its Legal Consequences’ (1952) 46 American Journal of International Law 609, 619. Evensen was counsel for Norway in the case.
[92] Norwegian Fisheries Pleadings Vol IV 23 (oral argument of 25 September 1951).
[93] Ibid Vol III 317 (Norwegian Rejoinder [385]).
[94] Ibid Vol IV 79 (oral argument of 27 September 1951).
[95] See in particular ibid Vol III 696–702; and Vol IV 79, 401–402, 680–682 (in conjunction with 606–607), 687 (in conjunction with 607–609). See also Evensen, above n 91, 185.
[96] [1951] ICJ Rep 126, emphasis added. Arntzen subsequently employed this ruling to attack a French submission seeking a declaration of principle in the Norwegian Loans Case (France v Norway) [1957] ICJ Rep 9. See Pleadings Vol II 177 and 200.
[97] [1951] ICJ Rep 116, 138–139.
[98] Ibid 133, 140–142. See also Norwegian Fisheries Pleadings Vol IV 166–169.
[99] See L F E Goldie, ‘The International Court of Justice’s “Natural Prolongation” and the Continental Shelf Problem of Islands’ (1973) 4 Netherlands Yearbook of International Law 237, 239–240; and also the statement of Sir G Fitzmaurice in Vol III of the Official Records of the 1958 UN Conference on the Law of the Sea (A/CONF. 13/39) 159 [52].
[100] This opinion has frequently been expressed by publicists: see, eg, R R Churchill and A V Lowe, The Law of the Sea (2nd ed, 1988) 29; D H N Johnson, ‘The Anglo-Norwegian Fisheries Case’ (1952) 1 International and Comparative Law Quarterly 145, 156, 180; and H Lauterpacht, ‘Implications of the Norwegian Fisheries Case’ in E Lauterpacht (ed), International Law: Being the Collected Papers of Hersch Lauterpacht (1977) vol III, 213, 215. Cf D P O’Connell, The International Law of the Sea (I Shearer ed, 1982) vol I, 205.
[101] When formulating its draft article on straight baselines preparatory to the 1958 Geneva Conference, the International Law Commission viewed the 1951 judgment as ‘expressing the law in force; it accordingly drafted the article on the basis of this judgement’ [1956] Yearbook of the International Law Commission 267 [2]. This view was reflected in governments’ comments on the final draft articles adopted by the Commission preparatory to the Geneva Conference. See Official Records, Vol I (A/CONF. 13/37) 76 (Canada), 93 (Norway), 102 (United Kingdom) and 110 (China). This opinion was also held in the First Committee (Territorial sea and contiguous zone) of the Conference: see Official Records, Vol III (A/CONF. 13/39) particularly at 158–159. See also O’Connell, above n 100, vol I, 206–208.
[102] Dispute concerning the course of the Frontier between BP62 and Mount Fitzroy award (Argentina v Chile) (1994) 113 ILR 1.
[103] Ibid 62 [122] reiterated at 67–68 [130].
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