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[p .132]
The International Court of Justice,
Composed as above,
After deliberation,
Makes the following Order:
Having regard to Article 48 of the Statute of the Court and to Articles
31,44, 45,48 and 79 of the Rules of Court; and
Whereas on 17 May 1989 the Islamic Republic of Iran filed in the Registry
of the Court an Application instituting proceedings against the United
States of America in respect of a dispute concerning the interpretation and
application of the 1944 Convention on International Civil Avia-tion and the
1971 Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation, which arose from the destruction of an Iranian aircraft, and
the killing of its 290 passengers and crew, on 3 July 1988;[p 133]
Whereas the United States of America was on 18 May 1989 notified by the
Registrar of the filing of the Application and a copy of the Application was
transmitted to it by him;
Whereas at the time of filing of the Application the Islamic Republic of
Iran notified the Court of the appointment as Agent of Mr. Mohammed K.
Eshragh, and by letter dated 9 August 1989, received in the Registry on 14
August 1989, the United States of America notified the Court of the
appointment as Agent of Mr. Abraham D. Sofaer;
Whereas at a meeting between the President of the Court and the Agents of
the Parties, convened by the President, pursuant to Article 31 of the Rules
of Court, and held on 1 September 1989, the Agent of the United States of
America stated that, as indicated in a letter filed in the Registry the same
day, his Government intended to file preliminary objections to jurisdiction
and admissibility prior to the filing of a Memorial by the Applicant;
Whereas at a further meeting between the President of the Court and the
Agents of the Parties held on 12 September 1989 the Agent of the Islamic
Republic of Iran stated that his Government contended that a preliminary
objection should not be filed before the Memorial, and requested that
appropriate time-limits be fixed for the written proceedings; and whereas
the President of the Court then invited the Parties to state their
respective positions more fully in writing with a view to a decision by the
Court on the procedural question thus raised;
Whereas by a letter dated 26 September 1989 the Agent of the United States
confirmed his Government's intention, and explained what was in the
contention of the United States the legal basis in the Statute and Rules of
Court for the filing of a preliminary objection prior to the filing of a
Memorial by the Applicant;
Whereas by a letter dated 11 October 1989 the Agent of Iran contended on
behalf of his Government that, for reasons explained in the letter, the
United States was estopped and time-barred from raising jurisdictional
questions; that even if the United States were still entitled to raise
preliminary objections there was, for the reasons stated in the letter, no
legal basis for the submission of preliminary objections prior to the filing
of the Memorial in the present case; and whereas the Agent of Iran therefore
requested the Court to fix time-limits for the written proceedings;
Whereas the time-limit for filing a preliminary objection is fixed by
Article 79 of the Rules of Court, which provides that such an objection
shall be made "within the time-limit fixed for the delivery of the
Counter-Memorial"; whereas the Court is not at the present time seised of a
preli-minary objection by the United States; and whereas accordingly the
Court is not called upon, at the present stage of the proceedings, to pro-[p
134]nounce on the questions of preclusion and estoppel raised by Iran,
whose views in this respect may be put forward later;
Whereas, in accordance with Article 79, paragraph 1, of the Rules of Court,
while a respondent which wishes to submit a preliminary objection is
entitled before doing so to be informed as to the nature of the claim by the
submission of a Memorial by the Applicant, it may nevertheless file its
objection earlier,
The Court,
Unanimously,
Fixes the following time-limits for the written proceedings:
12 June 1990 for the Memorial of the Islamic Republic of Iran;
10 December 1990 for the Counter-Memorial of the United States of America;
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 thirteenth day of December, one thousand nine
hundred and eighty-nine, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Islamic Republic of Iran and the Government of the United States of America,
respectively.
(Signed) José Maria Ruda,
President.
(Signed) Eduardo Valencia-Ospina,
Registrar.
Judge Oda appends a declaration to the Order of the Court.
Judges Schwebel and Shahabuddeen append separate opinions to the Order of
the Court.
(Initialled) J.M.R.
(Initialled) E.V.O.
[p 135]
Declaration of judge Oda
I agree to the operative part of the Order which unanimously fixes the
time-limits for the written proceedings. However, I feel bound to declare
that, while I agree with the substance of the statement in the last
paragraph of the preambular part reading that:
"Whereas, in accordance with Article 79, paragraph 1, of the Rules of Court,
while a respondent which wishes to submit a preliminary objection is
entitled before doing so to be informed as to the nature of the claim by the
submission of a Memorial by the Applicant, it may nevertheless file its
objection earlier",
I have two observations in respect of this statement. As observed in the
Order, "the Court is not at the present time seised of a preliminary
objection by the United States". This being so, it seems to me that it is
not required at this stage to take any decision on whether the preliminary
objection may be submitted before the filing of the Memorial. Moreover, if
the Court is to make such an important interpretation of its Rules as is
given in the passage quoted above, this should, in my view, be dealt with in
the operative part, not in the preambular part of the Order.
(Signed) Shigeru Oda.
[P 136]
Separate opinion of judge Schwebel
I have voted for the Order of the Court, which is in accordance with the
pertinent provisions of the Rules of Court and, I believe, predominant
practice in pursuance of those provisions. Since some doubt has been
expressed about the consistency of the last recital of the Order with the
practice of the Court, however, it may be useful to set out my
understanding of why that sparse and somewhat divergent practice is not
inconsistent with the intent and terms of the Rules and with the provisions
of this Order.
There appears to be no difference in the Court about the tenor of the terms
of the Rules, i.e., of the provisions of Article 79. Paragraph 1 of Article
79 provides:
"Any objection by the respondent to the jurisdiction of the Court... the
decision upon which is requested before any further proceedings on the
merits, shall be made in writing within the time-limit fixed for the
delivery of the Counter-Memorial..." (Emphasis added.)
Paragraph 3 provides:
"Upon receipt by the Registry of a preliminary objection, the proceedings on
the merits shall be suspended and the Court . . . shall fix the time-limit
within which the other party may present a written statement of its
observations and submissions ..." (Emphasis added.)
It follows that not only some but "any" — that is to say, "no matter which",
"all", "every" (Webster's New International Dictionary of the English
Language, 2nd ed., unabridged, 1945, p. 121) — objection by the respondent
to the jurisdiction of the Court, the decision upon which objection is
requested before "any" further proceedings on the merits, shall be dealt
with as prescribed by Article 79. "Any" further proceedings on the merits
must be understood to be just that: that is, all such proceedings, whether
they be the Memorial (if the preliminary objection is filed before the
Memorial has been filed), or subsequent pleadings, written or oral. The sole
qualifications to this rule are that the objection shall be made "in
writing" and "within the time-limit fixed for the delivery of the
Counter-Memorial". The outer time-limit so fixed clearly embraces the period
of time between the filing of the Application and the filing of the
applicant's Memorial on the merits as well as the time between the filing of
the Memorial and the delivery of the Counter-Memorial. Upon receipt [p 137]
by the Registry of a preliminary objection, the proceedings on the merits
"shall" — i.e., must — be suspended; this is a mandatory provision to which
the Court gives automatic effect.
That this interpretation of the rule is the correct interpretation is
supported by the published references to the travaux préparatoires of
Article 79 found in an authoritative article by Judge Jimenez de Aréchaga,
then President of the Court. He recounts that, while it was decided not to
require that a party should file a preliminary objection as soon as it
receives the Application because "it was felt that a Respondent had a right
to wait for the full development of the Applicant's case in the Memorial
before being obliged to file its objection", the purpose of omitting such a
requirement was to protect "the right of defense of the Respondent". He
accordingly imports that, if the respondent were to choose to file its
preliminary objection before the applicant were to file its Memorial, that
would be a permissible procedure; any burden of so proceeding would be
assumed by it (Eduardo Jimenez de Aréchaga, "The Amendments to the Rules of
Procedure of the International Court of Justice", American Journal of
International Law, 1973, Vol. 67, p. 19).
The evolution of thinking in the Court from as early as 1922 to the
adoption of the Rules currently in force on the question of whether or not
a preliminary objection by a respondent may be filed before the
presentation of the applicant's Memorial is well set out in the separate
opinion of Judge Shahabuddeen which follows this opinion. It is clear that
views in the Court have fluctuated, in response to competing considerations.
On the one hand, there has been the view that it is preferable that, as
Judge Anzilotti in 1926 put it, "the Court should only deal with the
question of jurisdiction when it had before it the merits of the case ...
at all events up to a certain point" (P.C.I.J., Series D, Addendum to No. 2,
p. 79). On the other hand, there has been the view that it is preferable
that, as the then Registrar and later Judge Ake Hammarskjold maintained,
"a State should be able to stop the proceedings before any discussion on the
merits... any inequality between the Parties must be avoided and that
equality might not be secured if the Court decided the question of
jurisdiction after having received a Case on the merits from one Party only"
(ibid., p. 84).
Lord Finlay took an intermediate position:
"Often, a State against whom an action was brought before the Court, simply
declared that the Court had no jurisdiction and refused to acknowledge the
obligation which the other side had alleged to exist under some treaty. In
that case, it was necessary that the Court should be able to decide in a
summary and rapid manner in regard to that first objection. But often also,
the question of jurisdiction and the merits were so intermingled that it
was difficult, sometimes impossible, to decide the question of jurisdiction
before
[p 138] examining the merits. It did not therefore seem right to insert in
the Rules an invariable rule. It should rather be for the Court to exercise
its power of discrimination by deciding in accordance with the
circumstances of each case." (P.C.I.J., Series D, Addendum to No. 2, p.
87.)
In 1926, the Court decided in favour of the position of Judge Anzilotti; in
1936, as Judge Shahabuddeen more fully describes, the Court reversed that
position to permit a preliminary objection to be filed before as well as
after the filing of the applicant's Memorial. The Court, when reconstituted
as the International Court of Justice in 1946, maintained that reversed
position in its 1946 Rules and in the Rules adopted in 1972, which were
maintained on this point in 1978 in the terms in which Article 79 of the
Rules of Court today appear.
At the same time, apparently in order to conciliate the positions
represented at one extreme in the Anzilotti approach and at the other
extreme in the Hammarskjold approach, the Court adopted what is now
paragraphs 5 and 6 of Article 79, providing:
"5. The statements of fact and law in the pleadings referred to in
paragraphs 2 and 3 of this Article, and the statements and evidence
presented at the hearings contemplated by paragraph 4, shall be confined to
those matters that are relevant to the objection.
6. In order to enable the Court to determine its jurisdiction at the
preliminary stage of the proceedings, the Court, whenever necessary, may
request the parties to argue all questions of law and fact, and to adduce
all evidence, which bear on the issue."
Accordingly, in the pleadings and oral argument on the preliminary
objection, the parties shall confine themselves to those matters that are
relevant to the objection and not enter unduly into the merits of the case.
At the same time, in so far as it may be necessary for the Court, in
deter-mining a preliminary objection, to be more fully informed of the facts
or the law of the merits of the dispute (which otherwise would be expected
to have been argued in the Memorial), the Court itself may request the
parties to argue such questions of law and fact in so far as they bear on
the jurisdictional issue.
The Practice of the Court
What of the practice of the Court in implementation of its Rules? Does that
practice substantially maintain or substantially modify their import?
In my understanding, the practice, while variable, more sustains than
subtracts from the provisions of the Rules.
There are a number of cases in which the respondent did not appear but in
which, nevertheless, it made manifest its objections to the jurisdiction [p
139]on which the applicant relied. That is to say, while, because of its
non-participation, the respondent could not and did not file a preliminary
objection strictly so-called and so denominated by it, at the same time it
brought to the attention of the Court its objections to the Court's
jurisdiction. It is significant that, in these cases, the preliminary
objections which, had the respondent been appearing in the case, could have
been regularly filed and determined either before or after the filing of the
applicant's Memorial, were in substance uniformly determined before the
filing of any Memorial. While these cases are not dispositive, they
accordingly support rather than counter the terms of the Rules.
Thus, in the Fisheries Jurisdiction case, Iceland, while not appearing,
submitted communications in which it "was asserted that there was no basis
under the Statute of the Court for exercising jurisdiction in the case"; the
Court nevertheless indicated provisional measures "which ... in no way
prejudges the jurisdiction of the Court to consider the merits of the
dispute". The Court then continued: "Whereas, in these circumstances, it is
necessary to resolve first of all the question of the Court's jurisdiction";
and the Court decided "that the first pleadings shall be addressed to the
question of the jurisdiction of the Court to entertain the dispute"
(Fisheries Jurisdiction (United Kingdom v. Iceland), Order of 18 August
1972,I.C.J. Reports 1972, p. 182). The Court subsequently proceeded to
consider pleadings on jurisdiction and to find that it had jurisdiction to
entertain the Application filed by the United Kingdom; only thereafter did
it fix time-limits for the written proceedings on the merits, including the
Memorial of the United Kingdom (Fisheries Jurisdiction (United Kingdom v.
Iceland), Order of 15 February 1973,I.C.J. Reports 1973, p. 94).
In the Aegean Sea case, Turkey, while not appearing, communicated
observations to the Court maintaining that it had no jurisdiction to
entertain the Greek Application. The Court responsively concluded that "it
is necessary to resolve first of all the question of the Court's
jurisdiction with respect to the case" and it decided that "the written
proceedings shall first be addressed to the question of the jurisdiction of
the Court to entertain the dispute" (that is, it decided that the written
proceedings should not first of all comprise the Memorial of Greece) (Aegean
Sea Continental Shelf Interim Protection, Order of 11 September 1976,I.C.J.
Reports 1976, pp. 13-14). The Court subsequently determined, without having
had the benefit of a Greek Memorial on the merits, "that it is without
jurisdiction" to entertain the Greek Application (Aegean Sea Continental
Shelf, Judgment, I.C.J. Reports 1978, p. 45).
In the Nuclear Tests cases between Australia and New Zealand, and France,
the French Government informed the Court that it "was manifestly not
competent in the case" and was not represented at the hearings on
provisional measures; the Court indicated interim measures of protection;
it held that, "in these circumstances, it is necessary to resolve as soon [p
140] as possible the questions of the Court's jurisdiction and the
admissibility of the Application"; and it decided that "the written
proceedings shall first be addressed to the questions of the jurisdiction of
the Court to entertain the dispute, and of the admissibility of the
Application" (Nuclear Tests (Australia v. France), Interim Protection, Order
of 22 June 1973, I.C.J. Reports 1973, pp. 105-106; and Nuclear Tests (New
Zealand v. France), Interim Protection, Order of 22 June 1973, I.C.J.
Reports 1973, p. 142). Once again, there was no question of the Court
concluding that, in order to resolve those questions, it had need of a prior
filing of the Applicants' Memorials on the merits.
Finally, in the case of Trial of Pakistani Prisoners of War, India claimed
that "there was no legal basis whatever for the jurisdiction of the Court in
the case" and, while not appearing at public hearings on Pakistan's request
for interim measures, sent communications which "presented a further
reasoned statement that the Court had no jurisdiction in the case". While
the Court in circumstances in which Pakistan asked the Court to postpone
consideration of its request for the indication of interim measures held
that it was not called upon to pronounce upon that request, the Court
concluded that it "must first of all satisfy itself that it has
jurisdiction to entertain the dispute". It accordingly decided that "the
written proceedings shall first be addressed to the question of the
jurisdiction of the Court" (i.e., before the filing of any Memorial of the
applicant on the merits) (Trial of Pakistani Prisoners of War, Interim
Protection, Order of 13 July 1973,I.C.J. Reports 1973, pp. 329-330).
The cases in which the issue has arisen and in which the respondent
participated also are predominantly consistent with the terms of the Rules
of Court.
In the Monetary Gold case, a case of exceptional singularity, the Court
issued an Order providing for the filing of a Memorial on the merits by the
Applicant, Italy. Before the due date of that Memorial, Italy filed a
document entitled, "Preliminary Question", by which Italy requested the
Court to adjudicate "on the Preliminary Question of its jurisdiction to deal
with the merits of the claim" (case of the Monetary Gold Removed from Rome
in ¡943 (Preliminary Question), Judgment, I.C.J. Reports 1954, p. 22). By an
Order of 3 November 1953, the Court, "without prejudging the question of the
interpretation and application of Article 62 [today, Article 79) of the
Rules of Court" (ibid., pp. 22-23), suspended proceedings on the merits and
fixed time-limits for pleadings on the preliminary question. The submissions
of Italy in the Court were couched as "Having regard to Article 62 of the
Rules of Court" (ibid., p. 23), and requested the Court to adjudicate the
preliminary question of its jurisdiction and to hold that the Court was
without jurisdiction to adjudicate the merits of the claim. The United
Kingdom submitted, inter alia, that the Court had jurisdiction. In its
Judgment, the Court noted that Italy, "instead of presenting a Memorial on
the merits within the time-limit fixed for that purpose by [p 141] the
Court... raised an issue as to the Court's jurisdiction" and had done so "in
the form of a 'preliminary question'" (I.C.J. Reports 1954, pp. 26-27). The
Court observed that it is "indeed unusual that a State which has submitted a
claim by the filing of an Application should subsequently challenge the
jurisdiction of the Court to which of its own accord it has applied" (ibid.,
p. 28). Nevertheless, the Court characterized Italy's action as "a genuine
Preliminary Objection" and proceeded to deal with it (ibid., p. 29). In so
doing, it held that Article 62 did not preclude the raising of a preliminary
objection by an applicant. What is suggestive for present purposes is that
the Court treated that preliminary objection not only as genuine but as
filed in a timely fashion, even though filed before the filing of a Memorial
on the merits whose filing had already been provided for. At the same time,
the current Rules expressly contemplate that, where a preliminary objection
is made by a party other than the respondent, it "shall be filed within the
time-limit fixed for the delivery of that party's first pleading" (Art. 79,
para. 1). Thus Monetary Goidmay be held to shed no clear light on the
present issue.
The remaining cases are only somewhat more instructive.
In the Ambatielos case, Greece filed an Application; the United Kingdom
notified the Court that it was its intention to contest the grounds on which
Greece maintained that the Court had jurisdiction; and the President of the
Court, "having ascertained the views of the Parties upon questions of
procedure", fixed the time-limits of Greece and the United Kingdom for the
Memorial and Counter-Memorial on the merits (Ambatielos, Order of 18 May
1951. I.C.J. Reports 1951, p. 12). The United Kingdom did not choose to
file in advance of the pleadings on the merits a preliminary objection which
sought to suspend proceedings on the merits; it was content to receive
Greece's Memorial and to argue at the outset of its Counter-Memorial that
the Court had no jurisdiction in the case (United Kingdom Counter-Memorial,
I.C.J. Pleadings, Ambatielos (Greece v. United Kingdom), pp. 132,133-139).
The Court apparently was not called upon to decide the question of whether
or not the United Kingdom could if it wished file its preliminary objection
before receipt of Greece's Memorial; rather, it seems that the United
Kingdom itself preferred to receive Greece's Memorial before responding
both on jurisdiction and on the merits, as was its right. Thus, in my view,
the Ambatielos case leans neither one way nor the other.
In the Interhandel case, the United States filed a succinct document
denominated as "Preliminary Objection" with respect to only one element of
Switzerland's Application, in the following terms:
"The Government of the United States of America ... herewith files a
preliminary objection under Article 62 of the Rules of the Court, to the
proceedings instituted by the Government of Switzerland in the Interhandel
case by its application of October 1,1957, in so far as that application
relates to the sale or other disposition of the [p 142]shares of General
Aniline and Film Corporation now held by the United States Government. The
United States Government has determined that such sale or disposition of the
shares in the American corporation, title to which is held by the United
States Government in the exercise of its sovereign authority, is a matter
essentially within its domestic jurisdiction. Accordingly, pursuant to
paragraph (b) of the conditions attached to this country's acceptance of
the Court's compulsory jurisdiction, dated, August 14, 1946, this country
respectfully declines, without prejudice to other and further preliminary
objections which it may file, to submit the matter of the sale or
disposition of such shares to the jurisdiction of the Court." (I.C.J.
Pleadings, Interhandel (Switzerland v. United States of Amer-ica),p.77.)
The Court held with respect to the foregoing contention that, if
maintained, "it will fall to be dealt with by the Court in due course" in
accordance with the procedure set forth in Article 62 of its Rules
(Interhandel, Interim Protection, Order of 24 October 1957, I.C.J. Reports
1957, p. 111) but that it was immediately concerned with Switzerland's
request for interim measures of protection, a decision as to which "in no
way prejudges the question of the jurisdiction of the Court to deal with
the merits of the case" (ibid.). It held that, in circumstances in which the
sale of Inter-handel's shares in the United States was conditional upon a
United States judicial decision and in which no time schedule for the sale
of such shares was fixed; there was no need to indicate interim measures of
protection (ibid., p. 112). On the same day, the Court issued another Order,
which, having regard to its Order on interim measures, and having
ascertained the views of the Parties, fixed time-limits for the filing of
pleadings: the Memorial of Switzerland and the Counter-Memorial of the
United States. In due course, Switzerland filed a Memorial on the merits
which maintained, inter alia, that the Court had jurisdiction, and the
United States filed a Counter-Memorial, which exclusively maintained, on a
multiplicity of grounds, that it did not or that the case was inadmissible
(I.C.J. Pleadings, loc. cit., pp. 139-141,303-327). Thus in this case, it is
clear that Preliminary Objections were filed and argued after the receipt of
the Applicant's Memorial on the merits. But what this case does not show is
that the Court concluded that this was the necessary course. For the
one-paragraph paper initially submitted by the United States and described
by it as a "Preliminary Objection", and which was directed solely against
the granting of interim measures of protection, was simply not acted upon as
a preliminary objection by the Court, which rather found it possible to
reject Switzerland's request for interim measures on another ground.
Apparently the Court was of the view that "the preliminary objection
procedure is only operative to suspend the proceedings on the merits, and
cannot be applied in incidental proceedings" (Shabtai Rosenne, The Law and
Practice of the International Court, 1965, Vol. I, p. 455). It is not at [p
143] all clear from this series of events that the United States ever
maintained that it was entitled to file a comprehensive Preliminary
Objection before Switzerland filed its Memorial on the merits and that the
Court rejected such a contention of the United States. Thus the light shed
by this case too is limited.
A more instructive case is Military and Paramilitary Activities in and
against Nicaragua. In that case, at the stage of provisional measures,
Nicaragua maintained that the Court had jurisdiction whereas the United
States maintained that it did not. The United States also argued that the
case was inadmissible on more than one ground, while Nicaragua argued to the
contrary. The clash of views between the Parties on these questions was of
exceptional intensity. The Court unanimously rejected the United States
request that Nicaragua's Application and request for the indication of
provisional measures be terminated by removal of the case from the list. It
indicated certain provisional measures, most by unanimous vote, the most
important measure by a divided vote. Apparently treating the objections of
the United States on preliminary grounds as substantially fulfilling the
requirements of the Rules, the Court unanimously decided that "the written
proceedings shall first be addressed to the questions of the jurisdiction of
the Court to entertain the dispute and of the admissibility of the
Application" (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Provisional Measures, Order of 10
May 1984,I.C.J. Reports 1984, p. 187). It thereafter ascertained the views
of the Parties and issued an Order of 14 May 1984 fixing the time-limits for
the Memorial and Counter-Memorial of the Parties on the questions of
jurisdiction and admissibility, both to be filed before the filing of any
Memorial on the merits of the case. Thus the Court acted as if the United
States had filed a preliminary objection; in effect, it suspended
proceedings on the merits and required the Parties to plead to jurisdiction
and admissibility, a course to which neither Party objected. By proceeding
in this way, the Court hardly construed the Rules as meaning that the
Memorial of the applicant should be filed before the Court considers
preliminary objections of the respondent; rather, it seems to have acted on
a contrary understanding.
Finally, in what appears to be consistent with the pattern of agreement —
whether express or not — between the parties which some of the foregoing
cases suggest, in the case of Border and Transborder Armed Actions the Order
of the Court records that "the Parties are agreed that the issues of
jurisdiction and admissibility should be dealt with at a preliminary stage
of the proceedings" (Border and Transborder Armed Actions (Nicaragua v.
Honduras), Order of 22 October 1986, I.C.J. Reports ¡986, p. 552). The Court
thus decided that the initial pleadings should exclusively deal with issues
of jurisdiction and admissibility. This case illustrates the full
[p 144] freedom of the Court and the parties to a case to deal with
pleadings on jurisdiction and admissibility before the filing of a Memorial
on the merits by the applicant; it in no way suggests that agreement between
the parties is a condition precedent for that result.
In the light of the foregoing analysis, I conclude that predominant
practice supports the provisions of the Rules which permit a respondent in
a case to file its preliminary objections before the Memorial of the
applicant on the merits is filed.
It should be added that, once a respondent files a preliminary objection,
what the Court has described as the "categorical" provision of the Rules
takes effect (Interhandel, I.C.J. Reports 1959, p. 20). As the Court held in
Barcelona Traction, by filing a plea as a preliminary objection, the
respondents "automatically bring about the suspension of the proceedings on
the merits" (Barcelona Traction, Light and Power Company, Limited,
Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 43).
(Signed) Stephen M. Schwebel.
[p 145]
Separate opinion of judge Shahabuddeen
The operative part of the Order of Court made today, with which I agree,
fixes time-limits for pleadings. But, as is shown by the body of the Order
and by the oral and written arguments of the Parties addressed to the
President of the Court and by him laid before the Court, the real interest
in this matter, indeed, the real matter in contention between the Parties at
this stage, is the question of law whether a respondent has a right to file
a preliminary objection before the filing of the applicant's Memorial. This
issue is determined not in the operative part of the Order, but in the last
recital. This recital, about which I entertain a reservation which I would
like to explain, reads as follows:
"Whereas, in accordance with Article 79, paragraph 1, of the Rules of Court,
while a respondent which wishes to submit a preliminary objection is
entitled before doing so to be informed as to the nature of the claim by the
submission of a Memorial by the Applicant, it may nevertheless file its
objection earlier."
This statement is accurate as far as it goes, but, with much respect, it
seems to me that it does not go far enough. The absolute terms in which the
Court, through that statement, for the first time enunciates a right on the
part of a respondent to file its preliminary objection before the filing of
the applicant's Memorial takes no account of, and gives no weight to, an
important qualifying practice of the Court. This aspect is referred to as
follows by two of the leading commentators on the Court's practice:
"As is well known, and as is maintained in this paragraph, the Court's
practice is only to take formal preliminary objections by the respondent
after the merits have been laid before it in a pleading, normally the
memorial, and it will be rare that the application alone will be sufficient
to elucidate questions of jurisdiction or admissibility." (Shabtai Rosenne,
Procedure in the International Court: A Commentary on the 1978 Rules of the
International Court of Justice, 1983, p. 161.)
"Paragraph 1 [of Article 79 of the 1978 Rules of Court] makes no change in
the existing practice by which a formal preliminary objection, of whatever
class, need not (in fact should not) be filed until the time-limit for the
objecting party's first written pleading." (Ibid., p. 163.) [p 146]
"Il semblerait que la Cour ne puisse prendre en considération les exceptions
préliminaires soulevées par le défendeur avant le dépôt par le demandeur de
son mémoire." (Geneviève Guyomar, Commentaire du Règlement de la Cour
internationale de Justice, 1983, p. 508.)
Testifying to the same practice, Prof. Guggenheim, arguing in 1957 for
Switzerland against the United States in the Interhandel case, said in an
unrebutted statement:
"L'exception préliminaire américaine doit être traitée conformément aux
dispositions de l'article 62 du Règlement. La Cour devra donc instituer une
procédure particulière, qui commencera après la présentation du mémoire de
la Partie demanderesse, c'est-à-dire de la Confédération suisse, mémoire qui
se rapportera au fond de l'affaire." (I.C.J. Pleadings, p. 449.)
Fifteen years later, in a joint dissenting opinion in the Fisheries
Jurisdiction (United Kingdom v. Iceland) case, Judges Bengzon and Jimenez de
Aréchaga likewise said in another uncontradicted and equally categorical
statement (quoted more fully below):
"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 [1946] Rules."
(I.C.J. Reports 1972, p. 185.)
Were these distinguished lawyers and judges wrong? It will be the burden of
this opinion that they were not, and that the practice of the Court, the
existence of which they attested, constitutes an important qualification to
the open-ended terms in which the right of a respondent to file a
preliminary objection before the filing of the Memorial has been cast in the
recital in question.
In a prefatory way, it may be said that the problem presented is not an
unusual one to be thrown up from time to time within the evolution of a
living procedural régime, the question in essence being, how are the literal
terms of a formal rule of procedure to be reconciled with a variant
supervening practice? For I should say at once that I appreciate the force
of the respondent's interpretation of the relevant rule but consider that
the difficulty is to determine to what extent, if any, the operation of the
rule has come to be qualified by the Court's interpretation of it as
evidenced by a somewhat different practice. A good beginning would be to
look briefly at the legislative history of the relevant Rules.
The Legislative History
The origins of the problem go back to the fact that, notwithstanding some
discussions in the Permanent Court (P.C.I.J., Series D, No. 2, pp. 77-78,
201-203, 213-214, 408, 434 and 522), the 1922 Rules of Court [p 147] made no
provision for preliminary objections. As is well known, the need for some
formal rule arose out of the experience gained in the Mavrommatis Palestine
Concessions case (P.C.I.J., Series A, No. 2, pp. 9 and 16) and the Certain
German Interests in Polish Upper Silesia, Jurisdiction case (P.C.I.J.,
Series A, No. 6, p. 15). In the first case, the preliminary objection was
filed after the filing of the Case (or Memorial as it was termed as from
1936) though, such was the procedural uncertainty, that it was filed
together with a "Preliminary Counter-Case" (P.C.I.J., Series C, No. 5-1, pp.
439-440 and 479). In the second case, the preliminary objection was filed
before the filing of the Case (P.C.I.J., Series C, No. 9-I, pp. 119-125).
In the light of these differing procedures, in 1926 the Rules of Court were
amended by the insertion of a new Article 38, the first paragraph of which
read:
"When proceedings are begun by means of an application, any preliminary
objection shall be filed after the filing of the Case by the Applicant and
within the time fixed for the filing of the Counter-Case." (P.C.I.J., Series
D, No. 1, p. 50.)
Judge Anzilotti, the chief sponsor of the provision, had put it forward in
opposition to a very different idea proposed by Registrar Hammarskjold.
Referring to the Registrar's idea, the record of the 1926 discussions reads:
"M. Anzilotti stated that there was an essential difference between his
conception and that of the Registrar.
According to the Registrar's proposal, an objection to the jurisdiction
must be dealt with separately, if it were submitted by a document which must
follow the application and be presented at a time when the Court knew
nothing of the case.
M. Anzilotti started from the contrary conception. He thought that the Court
should only deal with the question of jurisdiction when it had before it the
merits of the case. Having established this fundamental difference, M.
Anzilotti saw no objection to dealing at that point with the question of
objection to the jurisdiction... In his opinion, having regard to the
Court's special character, the latter could not deal with objections to its
jurisdiction, without also having before it the merits of the case, at all
events up to a certain point." (P.C.I.J., Series D, Addendum to No. 2, p.
79; and see his written proposal, ibid., p. 266.)
To some extent, these ideas had been anticipated by Judges Beichmann and
Moore in 1922 (P.C.I.J., Series D, No. 2, pp. 201 and 214). Their
vindication in 1926 was however short-lived: new thinking favoured the
Registrar's earlier view that a preliminary objection should be taken
before the filing of the Case or Memorial. Returning to the fray in June
1933 he said:[p 148]
"An essential feature of Article 38 is that preliminary objections are not
presented in limine litis, but only after the filing of the claimant's first
Memorial. It is an open question whether it would be desirable to maintain
this principle if the present tendency — at all events in practice —
requiring submissions to be formulated as early as in the document
instituting proceedings (cf. Art. 35 above) should become sanctioned."
(P.C.I.J., Series D, Third Addendum to No. 2, pp. 819-820.)
The record of the ensuing discussions in the Court in 1934 then reads:
"The President pointed out that the first Rules of Court did not contain any
provisions in regard to objections. It was in the light of the experience
gained in the Mavrommatis case that the Court had introduced Article 38 of
the existing Rules ; that Article precluded the filing of an objection
before the submission of the Case. As that rule had, in its turn, led to
practical difficulties in a recent suit, the Second Commission had proposed
to open the door to the submission of an objection which had nothing to do
with the merits of the case, even before the filing of the Case ..."
(P.C.I.J., Series D, Third Addendum to No. 2, p. 90.)
Explaining the substance of the new formulation, Judge Fromageot said that
"the provision, in his text, that the objection must be filed at the latest
by the expiry of the time-limit fixed for the filing of the Coun-Case [sic,
but "contre-mémoire" in the French text], showed that the party concerned
was free to raise the objection immediately, if it thought fit" (ibid., p.
89).
On the basis of the related discussions, a revised text of Article 38, first
paragraph, was then adopted as Article 62, paragraph 1, of the 1936 Rules of
Court, reading:
"A preliminary objection must be filed at the latest before the expiry of
the time-limit fixed for the filing by the party submitting the objection of
the first document of the written proceedings to be filed by that party."
(P.C.I.J., Series D, No. 1,3rd ed., p. 49.)
The corresponding provisions of Article 62, paragraph 1, of the 1946 Rules
read:
"A preliminary objection must be filed by a party at the latest before the
expiry of the time-limit fixed for the delivery of its first pleading."
On the substance of the matter in hand, the 1946 provision cannot be
usefully distinguished from its 1936 predecessor. Hence, it being clear that
the 1936 wording was designed to permit of an objection being filed by a
respondent before the filing of the Memorial, this intention would seem to
be equally ascribable to the 1946 provision, which continued in force up to
1972. [p 149]
Now, what was the change made in 1972? Article 67, paragraph 1, of the
revised 1972 Rules ran:
"Any objection by the respondent to the jurisdiction of the Court or to the
admissibility of the application, or other objection the decision upon
which is requested before any further proceedings on the merits, shall be
made in writing within the time-limit fixed for the delivery of the
Counter-Memorial. Any such objection made by a party other than the
respondent shall be filed within the time-limit fixed for the delivery of
that party's first pleading."
This provision has been continued as Article 79, paragraph 1, of the 1978
Rules.
Under the 1972 formulation, the words "within the time-limit fixed for the
delivery of the Counter-Memorial" replaced the previous words "before the
expiry of the time-limit fixed for the delivery of its first pleading",
but, so far as a respondent is concerned, it is not very clear that any
material change in meaning was intended. It may conceivably be argued that,
under the new formulation, the word "within" impliedly, if elliptic-ally,
confined the filing of the objection to the period commencing with the
filing of the Memorial and ending with the terminal date fixed for filing
the Counter-Memorial. That the words "within the time-limit" may not however
be a reliable basis to support the kind of double limitation involved in
words such as "within the period" is suggested by the fact that in the case
of Article 38 of the 1926 Rules it was judged necessary for the words
"within the time fixed for the filing of the Counter-Case" to be coupled
with and preceded by the words "after the filing of the Case by the
Applicant and ...". In effect, whereas the 1926 provision prescribed two
distinct time-limits — an opening and a closing one — the existing provision
prescribes only a closing limit.
The Practice of the Court
There is much then to support an argument that, on the face of the Rules, a
respondent has had a continuous right from 1936 to the present to file a
preliminary objection even before the Memorial is filed. In considering
whether a different practice has developed it is right to remember that the
1936 change was made in the light of experience of the working of the 1926
Rule and was presumably intended to protect the right of a respondent to
employ a preliminary objection (as it was to be later said) "to avoid not
merely a decision on, but even any discussion of the merits" (Barcelona
Traction, Light and Power Company, Limited, Preliminary Objections,
Judgment, I.C.J. Reports 1964, p. 44. And see the Panevezys-Saldutiskis
Railway case, P.C.I.J., Series A/B, No. 76, p. 24, per Judges De Visscher
and Rostworowski). A respondent may also have a legitimate [p 150] interest
in acting with maximum speed with a view to discouraging any contention that
a prorogated jurisdiction has impliedly arisen through failure to protest
with reasonable promptitude. On the other hand, it is possible that the
Court tended in practice to revert to the earlier view that, as Judge
Anzilotti had warned, there could be difficulty in enter-taining a
preliminary objection without the benefit of considering it in the light of
the merits of the applicant's case as they might later appear in the
Memorial.
Two groups of cases may be considered, namely, those in which the respondent
did not appear, and those in which the respondent did appear.
As to the first group of cases, the non-appearance of the respondent meant,
of course, that a preliminary objection could not be filed. It is the
position, however, that in these cases preliminary issues of a kind which
could have been raised on such an objection were heard and determined
without any Memorial having been in fact filed (see the Fisheries
Jurisdiction case, I.C.J. Reports 1972, p. 182, and I.C.J. Reports 1973,
pp. 3 and 93; the Aegean Sea Continental Shelf case, I.C.J. Reports 1976,
pp. 13-14 and 43, and I.C.J. Reports 1978, p. 45; and the Nuclear Tests
(Australia v. France) case, I.C.J. Reports 1973, p. 106). A similar course
seems to have been followed in the case concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America)
(I.C.J. Reports 1984, pp. 187 and 209, and I.C.J. Reports 1985, p. 3) but
there also, although the respondent did appear, it was clear that a formal
preliminary objection had not been filed (see the United States
Counter-Memorial on jurisdiction and admissibility, 17 August 1984, para.
2).
An argument that these cases — and particularly the last-mentioned —
involved preliminary objections in substance though not in form is
attractive. The approach which they take points plausibly in the direction
of the respondent's position in this case. But not perhaps conclusively so;
for, although it may appear technical to distinguish between a preliminary
objection filed as such and a preliminary issue in the nature of a
preliminary objection but not raised as a preliminary objection, the
distinction is not an arid technicality: something of substance turns — and
turns decisively — on it, in the important sense that the raising of a
preliminary issue does not operate to suspend the proceedings unless it is
specifically raised as a preliminary objection under Article 79, paragraph
1, of the Rules of Court.
The innovative character of the approach taken in the first group of cases
in relation to the Rules, the operation of which they effectively qualified,
did not pass unchallenged (see the Fisheries Jurisdiction cases, I.C.J.
Reports 1972, pp. 184 and 191). But, granted the competence of the Court
through a new practice so to qualify the operation of the Rules, it by the
same token follows that the Court was equally competent by its practice to
qualify the operation of the Rules in relation to the time for filing a [p
151] preliminary objection where there was in fact one. And, it seems to me,
that this is what the Court did.
The second group of cases suggests that an approach different from that
taken in the first group is adopted where the respondent appears and seeks
to file a preliminary objection. Some difficulty does exist in respect of
the Monetary Gold case (I. C.J. Reports 1953, pp. 37 and 44), in which the
applicant was allowed to file a preliminary objection before the filing of
the Memorial. The special circumstances of the case led the Court expressly
to record that its decision did not prejudge the question of the
interpretation and application of Article 62 of the 1946 Rules of Court.
But, that apart, it seems to me that Italy's preliminary objection was
cor-rectly filed within the terms of that provision, this being so worded as
to require "a party" to file its preliminary objection before the expiry of
the time-limit fixed for the delivery of its "first pleading". Since the
Court held that an applicant (as Italy was) could also make a preliminary
objection (I.C.J. Reports 1954, p. 29), that provision effectively meant
that Italy, as "a party", not only could file, but had to file, its
preliminary objection before filing its Memorial or "first pleading": it
simply could not do so after the filing of the Memorial. In the case of an
applicant, this indeed is still the position under the second sentence of
the existing provisions of Article 79, paragraph 1, of the 1978 Rules. In
the case of a respondent, in terms of the 1946 provision, the first pleading
was of course the Counter-Memorial. So a respondent was required then, as it
is now, to file its preliminary objection before filing its
Counter-Memorial. But the particular circumstances and reasoning in the
Monetary Gold case would not seem a secure basis for suggesting that the
Court in that case would have been equally disposed to countenance a
preliminary objection being filed by a respondent before the filing of the
Memorial, as in the case of an applicant.
In the Interhandel case, following on an application for provisional
measures, the respondent filed a document intituled "Preliminary Objection
of the United States of America", which expressly stated that it was
"a preliminary objection under Article 62 of the Rules of the Court, to the
proceedings instituted by the Government of Switzerland in the Interhandel
case by its application of October 1, 1957, in so far as that application
relates to the sale or other disposition of the shares..." (I.C.J.
Pleadings, p. 77).
Thus, the document was by way of preliminary objection to the case itself,
even though limited to one branch — a limitation which, in my
understanding, was not defeasive of the character of the document as such
an [p 152] objection. The Court, however, did not deal with it as such but
proceeded in due course to make an Order fixing time-limits for filing the
Memorial and "the Counter-Memorial or any Preliminary Objections of the
Government of the United States of America" (I.C.J. Reports 1957, p. 123),
a formulation which presumably meant that, so far as time-limits were
concerned, the Preliminary Objections should be treated like the
Counter-Memorial and that, accordingly, since the Counter-Memorial naturally
could not be filed before the Memorial, this would also apply to the filing
of any Preliminary Objections. And, indeed, the Preliminary Objections were
filed after the Memorial (I.C.J. Pleadings, Interhandel, p. 327; cf. p.
144). For these reasons, it would not be convincing to seek to explain the
decision on the ground that the Court simply acted on the basis that the
rule implied that an Order fixing time-limits must have been in existence
before a preliminary objection could be filed, irrespective of the issue
whether or not it could be filed before the Memorial. It is not easy to
appreciate why the making of an Order fixing time-limits for pleadings
should possess such special juridical significance for the question whether
the respondent may file a preliminary objection before the Memorial is in
fact filed, as to lead to the conclusion that it may do so if such an Order
has been made but may not if none has been.
Nor can the explanation be found in the fact that the preliminary objection
was sought to be used in opposition to the application for provisional
measures. It is true that Judge Koo said:
"Although the objection was raised by the United States in the form of a
Preliminary Objection, under Article 62 of the Rules of Court... it was, in
fact, an objection directed against the Court's jurisdiction to indicate
provisional measures ..." (I.C.J. Reports 1957,p. 113.)
But Judge Koo's emphasis on the latter aspect was intended to support his
view (with which the Court disagreed) that it was necessary to deal with the
objection at the provisional measures stage; it could not reasonably be
interpreted as indicating that the fact that the objection was sought to be
relied upon by the respondent against the application for provisional
measures meant that it was any the less directed to a part of the
applicant's main application itself: it was so relied upon because it was so
directed (ibid., p. 115,per Judge Klaestad, and pp. 117-118, per Judge
Lauterpacht.)
It does seem more probable that the explanation lay in an unspoken
assumption by the Court that Judge Anzilotti's reasoning, which had inspired
the making of the revoked 1926 Rule, had retained enough of its original
wisdom and virtue to be still operative in practice to justify deferring the
filing of a preliminary objection until after the filing of the Memorial.
This, I think, is the approach implied in the observation by the Court that
—[p 153]
"the examination of the contention of the Government of the United States
requires the application of a different procedure, the procedure laid down
in Article 62 of the Rules of Court, and ... if this contention is
maintained, it will fall to be dealt with by the Court in due course in
accordance with that procedure" (I.C.J. Reports 1957, p. 111).
The Court could not have understood that the objection was not intended as a
preliminary objection filed under Article 62 of the 1946 Rules. What it
seemed to be saying was that the objection could only be dealt with as such
a preliminary objection "in due course in accordance with [the] procedure"
prescribed by that provision. In taking this position, the Court seemed to
be at one with Prof. Guggenheim whose unrebutted oral argument for the
applicant on this point has been quoted above. That argument was not merely
that jurisdiction did not have to be decided with finality in order to
indicate provisional measures, but that the reason why a preliminary
objection could not be heard during such proceedings was because it could
only be heard within the framework of the procedure relating to preliminary
objections, this being understood by him as indicated in his submissions
quoted above, that is to say, as meaning that a preliminary objection had to
be filed after the filing of the Memorial (I.C.J. Pleadings, Interhandel,
pp. 449 and 461-462). It seems to me that this presentation found favour
with the Court in the passage from its Order quoted above and was in turn
reflected in the course which the proceedings actually took pursuant to
that Order.
A course similar to that taken in the Interhandel case had been followed in
the Ambatielos case (I.C.J. Reports 1951, p. 11, and I.C.J. Reports 1952,
pp. 16 and 31) where (as in this case) what was involved was not a
preliminary objection as such but a notification of intention to file one
(I.C.J. Pleadings, p. 522). For this reason, in proceeding to fix
time-limits for pleadings the Court referred only to the Memorial and
Counter-Memorial, no mention being made of any possible preliminary
objections.
Whatever the precise rationale — whether to enable the Court better to
appreciate the objections in the light of the merits, and, or, to afford the
applicant a fair opportunity to supplement through its Memorial the
possibly limited averments of its application before a preliminary
objection was filed with immediate suspensory effects — it does appear that,
in the case of an appearing respondent, as in the Ambatielos and Interhandel
cases, the Court has in fact proceeded on the basis that a preliminary
objection by a respondent should not be filed until after the Memorial has
been, even though, as has been seen, the 1936 rule was designed to permit of
such an objection being filed before the filing of the Memorial (see Georges
Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour
internationale, 1967, p. 214). This was clearly recognized by Judges [p 154]
Bengzon and Jimenez de Arechaga in their joint dissenting opinion in the
Fisheries Jurisdiction (United Kingdom v. Iceland) case where, in
contrasting objections made before the filing of the Memorial with
objections made subsequently, they said:
"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." (I.C.J. Reports 1972, p. 185.
Emphasis added. See likewise the Fisheries Jurisdiction (Federal Republic of
Germany v. Iceland) case, I.C.J. Reports 1972, p. 192.)
The fact that this uncontradicted statement formed part of a dissenting
opinion in no way impaired its value as authoritative recognition of the
actual practice of the Court.
Neither side has cited any case decided by this Court in which a respondent
was allowed to file a preliminary objection as of right before the filing of
the applicant's Memorial: in one case where that course was taken, it was
taken by consent of both parties, the Order of Court expressly reciting that
"the Parties are agreed that the issues of jurisdiction and admissibility
should be dealt with at a preliminary stage of the proceedings" (case
concerning Border and Transborder Armed Actions (Nicaragua v. Honduras),
I.C.J. Reports 1986, p.552; and see I.C.J. Reports 1989, p. 6). That the
Court thought it appropriate to record that circumstance in its formal
Order suggests that it did not consider it as a simple private transaction
unimpressed with the juridical significance which attaches to consent under
Article 101 of the Rules of Court. In this con-nection, the letter dated 26
September 1989 from the United States Agent to the President of the Court
states:
"While the United States recognizes that the Court has not previously
addressed a preliminary objection prior to the Memorial without the consent
of the Applicant, there is nothing in the practice of the Court contrary to
the United States reading of Article 79 [of the Rules of Court]."
It seems to me that the recognition prefacing that contention was made
consistently with what may be regarded as a generally understood practice
to the effect that, while a preliminary objection could be filed by a
respondent before the filing of the Memorial, in the normal case the Court
[p 155] would not entertain it if so filed but would proceed on the basis
that it should be filed after the filing of the Memorial (see, generally,
Shabtai Rosenne, The Law and Practice of the International Court, 1965, Vol.
1, p. 451; also by him, Procedure in the international Court: A Commentary
on the ¡978 Rules of the International Court of Justice, 1983, pp. 161 and
163; and Genevieve Guyomar, Commentaire du Reglement de la Cour
international de Justice, 1983, p. 508).
Perhaps I should add that, the decisions of the Court not being as numerous
as in the case of national courts, the fact that the practice referred to is
demonstrated by not very many cases does not necessarily tell against its
existence. A point of greater importance is that presented by Judge
Schwebel's able and careful arguments — which I do respect — to the effect
that the specific issue as to whether a preliminary objection may be filed
before the filing of the Memorial has not heretofore been the subject of
direct contest before the Court. But, while this may go to the weight of the
decisions in question, it does not, in my view, neutralize their value as
indicative of the actual course of the Court's practice: a practice seldom
originates in a reasoned decision given after contest on the particular
point. Moreover, as sought to be shown above, it does seem to be the
position that in the Interhandel case the Court had in mind the practice
explicitly mentioned in the submissions of Prof. Guggenheim to the effect
that a preliminary objection was to be filed only after the filing of the
Memorial. While it is possible to interpret the case in different ways, the
hard fact which stubbornly remains is that, in that case, a document which
was indubitably in the form of a preliminary objection purporting to be
filed as such under the applicable rule, but which was filed before the
filing of the Memorial, was not entertained as such by the Court, which left
it to the respondent to file a fresh preliminary objection after the filing
of the Memorial.
The Effect of the 1972 Rules on the Practice of the Court
The question arises whether this practice should be regarded as having been
abolished by the 1972 Rules. Two provisions of these Rules suggest
themselves for consideration, namely, paragraphs 6 and 7 of Article 67
(corresponding to paragraphs 6 and 7 of Article 79 of the 1978 Rules). They
read as follows:
"6. In order to enable the Court to determine its jurisdiction at the
preliminary stage of the proceedings, the Court, whenever necessary, may
request the parties to argue all questions of law and fact, and to adduce
all evidence, which bear on the issue.
7. After hearing the parties, the Court shall give its decision in the form
of a judgment, by which it shall either uphold the objection, reject it, or
declare that the objection does not possess, in the circum-[p 156]stances
of the case, an exclusively preliminary character. If the Court rejects the
objection or declares that it does not possess an exclusively preliminary
character, it shall fix time-limits for the further proceedings."
As to paragraph 6, in my opinion, the reference therein to jurisdiction
being determined "at the preliminary stage of the proceedings" is not
synonymous with a determination being made before the filing of the
Memorial. The "preliminary stage of the proceedings" was a well-understood
concept which was used simply in opposition to the "merits stage". It was
not confined to the period before the filing of the Memorial. On the
contrary, in the case of a preliminary objection by a respondent the
preliminary stage always extended into the period after the filing of the
Memorial. Nothing in Article 67, paragraph 6, of the 1972 Rules operated to
change this understanding.
As to paragraph 7 of Article 67 of the 1972 Rules, the object here was to
ensure that preliminary objections were determined as far as practicable
before the hearing on the merits and not joined to the latter unnecessarily.
This had nothing to do with the particular stage at which a preliminary
objection could be filed. The fact that a preliminary objection is filed
after the filing of the Memorial should not necessarily lead to its being
joined to the merits. The 1972 changes did place a proper emphasis on early
determination of preliminary objections, but the focus was on not
unnecessarily deferring them to the hearing on the merits.
The letter to the President of the Court from the Agent for the United
States of America dated 26 September 1989 invited attention to a learned
article by a former President of the Court, the relevant part of which reads
as follows:
"(a) Time-limit forfiling a preliminary objection: With a view to the
acceleration of proceedings and to avoid unnecessary delays it has been
suggested that a party should file a preliminary objection as soon as it
receives the Application or a short time after receiving the Memorial. While
these proposals have an objective that coincides with the main approach
followed in the amendments to the Rules of Procedure, they could not be
adopted since they might affect the right of defense of the Respondent. As
to the first suggestion, that the preliminary objection should be filed as
soon as the Application had been received, it was felt that a Respondent had
a right to wait for the full development of the Applicant's case in the
Memorial before being obliged to file its objection. Otherwise the
Applicant, who had had all the time it wished to draft its Application,
would also be allowed to shape its Memorial so as to try to defeat the
objection it had already been able to study." (Eduardo Jimenez de Arechaga,
"The Amendments to the Rules of Procedure of the International ' Court of
Justice", American Journal of International Law, 1973, Vol. 67, p. 19.) [p
157]
This statement is indeed consistent with an assumption that a respondent had
a right in law to file a preliminary objection either before or after the
filing of the Memorial. But it seems to me that the statement shows
something more: for, if "it was felt that a Respondent had a right to wait
for the full development of the Applicant's case in the Memorial before
being obliged to file its objection", this at the same time assumed the
existence of a system under which an applicant was entitled to include in
its Memorial matters of law or of fact which might turn out to be of
relevance to a possible preliminary objection. This in turn seems consistent
with the conclusion reached above that, while on the face of the Rules a
respondent had a right to file its preliminary objection before the filing
of the Memorial, this right had in fact come to be qualified by a practice
under which, if such an objection was filed before the Memorial, the Court
could in its discretion decline to recognize or treat with it as such and
direct that it be filed after the Memorial — and this precisely for the
reason that the Memorial might prove pertinent to the objection when
eventually taken. Judge Jimenez de Arechaga's helpful article does not seem
to go as far as to suggest that this practice was being abrogated by the
1972 Rules. He gave no hint of any such effect in the passage quoted above
from the joint dissenting opinion in which he participated in the Fisheries
Jurisdiction (United Kingdom v. Iceland) case (I.C.J. Reports 1972, p. 185).
True, that opinion was based on the 1946 Rules, but it was delivered three
months after the 1972 Rules were adopted. If any significant change had
been made on a procedural point to which decisive importance was clearly
attached by the opinion, he might naturally have been expected to mention
it. As has been seen, he did not. Nor is this surprising: there was no
material difference on the point between the 1946 Rules and the 1972 Rules.
Other commentators, writing after the 1972 changes were made, appear to
recognize the continuance of the practice (see Shabtai Rosenne, Procedure in
the International Court: A Commentary on the 1978 Rules of the International
Court of Justice, 1983, pp. 161 and 163; and Genevieve Guyomar, op. cit., p.
508). As suggested above, the procedure by consent of parties adopted in the
Border and Transborder Armed Actions (Nicaragua v. Honduras) case (I.C.J.
Reports 1986, p. 551) seemed also to posit its continuance. The United
States statement referred to above can scarcely be construed as pointing to
a different conclusion so far as the actual practice was concerned.
Should the Rules Prevail over the Practice?
For the reasons given, it may be contended that the practice referred to is
not strictly consistent with the terms of the existing rule, in the sense
that it tends to inhibit a respondent in the exercise of a seemingly
absolute right [p 158] available under the strict terms of the rule to file
a preliminary objection before the filing of the Memorial. But, however
arguable that might be, the possibility of a different interpretation of the
rule could not be wholly excluded, and of course the competence to interpret
the Rules lay with the Court. It is general experience that formal rules of
procedure — at any rate where no conflict with an overriding constituent
instrument is involved (a caveat to which I attach importance in this field)
— develop through the way in which they are interpreted and applied by the
court concerned as evidenced by its practice.
The real question then is, should this Court at this stage overrule the
interpretation of Article 79 of the Rules, which is implicit in its
practice, on the ground that it is erroneous? The Court is not committed to
any doctrine of binding precedent, but it does respect its own
jurisprudence. Con-sequently, though competent to reverse its previous
holdings on the law, the Court is not expected to exercise that competence
lightly and without good reason (Sir Hersch Lauterpacht, The Development of
International Law by the International Court, 1958, p. 19). It may be too
general a way of putting the position merely to say that the Court should
act cautiously. But what then should be the criteria guiding the prudence of
the Court in a procedural matter of this kind? In the absence of any clear
guidelines having been adopted by the Court, it seems to me that, in a case
of this particular kind, it would be reasonable for the Court to apply
something corresponding to the twin tests of clear error and public mischief
as known to the upper levels of judicial activity in many jurisdictions.
There should, I think, be clear error in the sense that the Court must be
satisfied that the opposing arguments are not barely persuasive but are
conclu-sively demonstrative of manifest error in a previous holding. And
there should be public mischief, or something akin to it, in the sense that
the injustice created by maintaining a previous but erroneous holding must
decisively outweigh the injustice created by disturbing settled
expectations based on the assumption of its continuance; mere marginal
superiority of a new ruling should not suffice.
In this case, it could plausibly be argued that the test of clear error is
satisfied. I am not however convinced that the test of public mischief is
met. Under the strict terms of Article 79, paragraph I, of the Rules of
Court, a respondent would be entitled as of right to file a preliminary
objection before the disclosure of the merits of the applicant's claim
through its Memorial. And that is a right not to be underestimated. But that
right has to be balanced against possibly substantial injustice which an
applicant might suffer if its case were dismissed on a preliminary
objection before it had the opportunity, through its Memorial, of
developing and supplementing its application on points of possible
deficiency pursuant to a right to do so which it not unreasonably thought
it had under the [p 159] rule as interpreted and applied by the Court in the
course of its own practice. Had it not been for the existence of the
practice, such an applicant's application might have been more fully framed
in the first instance. In my opinion, the balance when struck speaks with
persuasive fairness in favour of the continuance of that practice and of the
corresponding interpretation of the Rules which it portrays. If there is to
be a change — and there may be good reason why there should be — it should
be made by way of a formal amendment of the Rules designed to take effect
prospectively, and not by way of a decision of the Court retrospectively
invalidating a practice of its own creation upon which reasonable
expectations have been founded.
Conclusion
Though not without hesitation — for the position is not quite tidy and the
logic of development not fully revealed — I reach the conclusion that, while
in principle a respondent has a right to file its preliminary objection
before the applicant's Memorial is filed and while in some cases recourse to
that right may be perfectly justifiable, the Court may exercise a
discretion both to decline to recognize or treat with a preliminary
objection so filed and to direct that it be filed after the filing of the
Memorial. The terms and grounds of the proposed preliminary objections not
having been disclosed, there is no apparent basis at this stage for
considering a possible departure in this case from the usual way in which it
is considered that that discretion should be exercised. In the result, the
only course is to make an Order fixing time-limits for pleadings (including
any preliminary objections). This has been done, and this I support. But,
for the reasons given, I consider that the last recital of the Court's Order
lacks internal balance in that —
(i) the recital focuses on the entitlement of a respondent to defer the
filing of its preliminary objection until after it has been "informed as to
the nature of the claim by the submission of a Memorial by the Applicant"
but neglects to balance this by taking account of what, on the other hand,
seems to be a recognized entitlement of an applicant to supplement its
application through its Memorial on matters of fact or law which could help
to protect it against an eventual preliminary objection; and
(ii) the recital focuses on the entitlement of a respondent to "file its
objection earlier" (i.e., before the Memorial), but neglects to balance
this by taking account of what, on the other hand, seems to be a discretion
of the Court to decline to recognize or treat with an objection so filed and
to direct that it be filed after the filing of the Memorial. [p 160]
In sum, the recital in question approaches the procedural situation as if it
were designed solely to confer options on a respondent. I am of opinion that
the procedural regime actually in force (that is to say, the Rules of Court
as well as the practice of the Court) is both more flexible and more
balanced, and that, in particular, there are rights and expectations of an
applicant which are also to be considered but which the recital does not
take into account. I accept that, in law, a respondent has a right to file
its preliminary objection before the filing of the Memorial. But that is not
the whole picture, and the whole picture is not projected by the recital in
question. Whence this reservation to that effect.
(Signed) Mohamed Shahabuddeen |
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