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[p 188]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Article 48 of the Statute of the Court,
Having regard to Article 37 of the Rules of Court,
Makes the following Order:
Having regard to the Application by the Federal Republic of Germany filed in
the Registry of the Court on 5 June 1972, instituting proceedings against
the Republic of Iceland in the dispute which has arisen between the two
Governments relating to the proposed extension by the Government of Iceland
of its fisheries jurisdiction around Iceland;
Whereas the Government of Iceland was notified immediately of the filing of
the Application, and a copy thereof was transmitted to it by air mail;
Having regard to the letter dated 27 June 1972 from the Minister for Foreign
Affairs of Iceland, received in the Registry on 4 July 1972, the [p 189]
telegram from the said Minister dated 28 July 1972 received in the Registry
on 29 July 1972, the telegram from the said Minister dated 11 August 1972,
received in the Registry the same day, and repeated and confirmed by letter
from the said Minister of 11 August 1972, in each of which communications it
was asserted that there was no basis under the Statute of the Court for
exercising jurisdiction in the case;
Having regard to the refusal by the Government of Iceland, in its letter of
27 June 1972, to appoint an Agent, and to the fact that the Government of
Iceland, which had been duly notified by telegram and letter of 21 July 1972
that the Court would hold hearings, opening on 2 August 1972, to give the
Parties the opportunity of presenting their observations on the request for
the indication of provisional measures, was not represented at the hearing
held on that date;
Having regard to the Order of 17 August 1972, by which, following the
request of the Government of the Federal Republic dated 21 July 1972, the
Court indicated interim measures of protection in the case, which
indication in no way prejudges the jurisdiction of the Court to consider
the merits of the dispute;
Whereas, in these circumstances, it is necessary to resolve first of all the
question of the Court's jurisdiction,
The Court
Decides, by 9 votes to 6, that the first pleadings shall be addressed to the
question of the jurisdiction of the Court to entertain the dispute;
Fixes as follows the time-limits for the written proceedings:
13 October 1972 for the Memorial of the Government of the Federal Republic
of Germany,
8 December 1972 for the Counter-Memorial of the Government of Iceland ;
And reserves the subsequent procedure for further decision.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this eighteenth day of August, one thousand nine
hundred and seventy-two, in three copies, one of which will be placed in the
archives of the Court, and the others transmitted to the Government of the
Federal Republic of Germany and the Government of Iceland, respectively.
(Signed) Zafrulla Khan,
President.
(Signed) S. Aquarone,
Registrar. [p 190]
Judges Bengzon and Jiménez de Aréchaga append a joint dissenting opinion to
the Order of the Court.
(Initialled) Z. K.
(Initialled) S. A.
[P 191]
Joint dissenting opinion of judges Bengzon and Jiménez de Aréchaga
1. We voted against the first operative paragraph of the Order in which the
Court decides that the Memorial and Counter-Memorial shall be addressed to
the question of the jurisdiction of the Court to entertain the dispute.
In our view, the Court should have followed its normal procedure in fixing
time-limits for the Memorial and Counter-Memorial without prescribing their
contents or confining them to the jurisdictional issue. This practice has
been followed by the Court in every case, even when, as occurs here, the
Respondent had failed or refused to appoint an Agent at the time when the
Order fixing time-limits for the Memorial and Counter-Memorial was issued.
(Anglo-Iranian Oil Co. case, I.C.J. Reports 1951, p. 100; Nottebohm case,
I.C.J. Reports 1952, p. 10; Compagnie du Port, des Quais et des Entrepots de
Beyrouth case, I.C.J. Reports 1959, p. 260.)
2. We fail to see any reasons or grounds to depart now from the established
practice. The Order does not invoke nor base itself on Article 53 of the
Statute, and it could hardly do so since the conditions required for a
default under this provision are not fulfilled at the present stage of the
proceedings.
3. In the absence of such an application or invocation of Article 53, it
seems to us there are no grounds in the Statute or the Rules for
instructing the Parties to address their Memorial and Counter-Memorial to
the jurisdictional issue.
The Memorial and Counter-Memorial are referred to in Article 43 (2), of the
Statute and their contents are prescribed in Article 42 of the Rules, which
says:
"1. A memorial shall contain a statement of the relevant facts, a statement
of law, and the submissions.
2. A Counter-Memorial shall contain an admission or denial of the facts
stated in the Memorial; any additional facts, if necessary; observations
concerning the statement of law in the Memorial; a statement of law in
answer thereto; and the submissions."
4. In our view, the only basis under the Rules for asking the Applicant to
submit a pleading confined to jurisdiction would have been to consider the
letter of the Foreign Minister of Iceland of 27 June 1972 as raising a
preliminary objection against the Court's jurisdiction. The Court could [p
192] then have requested observations limited to the jurisdictional issue,
in accordance with Article 62, paragraph 3, of the Rules. This was done in
the Nottebohm case, the Court dealing with a telegram from the Foreign
Minister of Guatemala as though it had raised a preliminary objection
(I.C.J. Reports 1953, p. 7).
There are however important differences between these two communications,
in particular as to the time of their presentation and this, in our view,
makes it impossible to consider the letter of the Icelandic Foreign Minister
as constituting a preliminary objection. A preliminary objection must be
filed within the time-limit assigned for the Counter-Memorial, that is to
say, after the presentation of the Memorial, not before it: it is only then
that it may have the suspensive effects provided for in Article 62,
paragraph 3, of the Rules. Otherwise, a respondent might be able to block
the proceedings before the Memorial is filed.
5. The foregoing reasons, based on the Statute and the Rules, are not the
only ones which determined our negative votes. There are, in our view, even
stronger considerations of convenience and of the due protection of the
interests of both Parties which made it advisable in this case to request
the Parties to submit a proper and complete Memorial and Counter-Memorial.
There is a possibility that Article 53 may have to be applied if the Court
finds itself competent and Iceland fails to file a Counter-Memorial. If that
occurs, it is indispensable, in our view, that the Memorial should contain a
complete statement of the Applicant's claim, full supporting arguments of
fact and law and the submissions.
It is only in the presence and in the light of such a complete Memorial that
(1) the respondent must take a final decision as to whether it shall appear
to defend its case or not, and (2) the Court must, in case of default, base
its final pronouncement as to whether it will "decide in favour of [the
applicant's] claim". For such a purpose the Court must determine "that the
claim is well founded in fact and in law".
How will this be done if the Memorial is defective in respect of the facts
or the law concerning the merits of the claim?
6. A possible answer could be that, in such an event, the applicant would be
asked to submit a further pleading—a Reply—with a full development of the
merits of its case.
However, to allow the applicant to present new submissions and develop its
supporting arguments after the default has occurred would be contrary to the
general principles of law recognized in national legislations concerning
default proceedings.
The party which decides not to contest a case must know with precision
before taking this attitude which questions are going to be decided and
which precisely are the claims and grounds of law and fact the other party
invokes. Therefore the respondent, before the term expires for the
[p 193] deposit of its Counter-Memorial, should have before it a complete
Memorial from the applicant and not one confined to jurisdiction.
We fear, therefore, that as a result of this decision, the Court, if it
reaches the stage of the merits, might be confronted with serious
difficulties in the event that Article 53 would need to be applied.
7. Finally, while we agree with the consideration that it may be convenient
in this case to decide in the first instance the question of the Court's
jurisdiction, it seems to us to be a non sequitur to infer from such
consideration the consequence that the initial pleadings must therefore be
confined to jurisdictional questions.
The Court would be in a much better position to isolate and examine the
jurisdictional issue after receiving a proper Memorial and Counter-Memorial,
dealing with both jurisdiction and merits.
A full explanation by the Parties of all aspects of the question would seem
to be particularly necessary in a case such as the present one, where both
jurisdiction and merits appear to be in many respects interrelated.
(Signed) C. Bengzon.
(Signed) E. Jiménez de Aréchaga. |
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